Court name
High Court
Case number
APPEAL 210 of 2007
Title

Alexender v Minister of Justice and Others (APPEAL 210 of 2007) [2008] NAHC 19 (02 July 2008);

Media neutral citation
[2008] NAHC 19




















SUMMARY



Case No.: A 210/2007



JACOB ALEXENDER


and


THE
MINISTER OF JUSTICE AND OTHERS






Heard
on: 2008 June 16-17



Delivered on: 2008 July2



PARKER, J



___________________________________________________________________________



Statute - Interpretation
of – Section 10 (1), read with s 11 (7) (a) and (b), s 11 (8) and s
12 (1), of the Extradition Act (Act No. 11 of 1996) – Minister may
not authorize a specific magistrate by name in terms of s 12 of
Extradition Act to conduct extradition enquiry proceedings under that
Act – To insist that a magistrate who remands claimed person in
custody or admits him or her to bail must be the only magistrate
to be authorised to conduct extradition enquiry proceedings in
respect of the claimed person will undoubtedly lead to such unjust
and absurd results that cannot be countenanced by the Legislature
– Conclusion based on rule of construction that there is
presumption against absurdity and that a statute must be
interpreted so as to make it workable – Court declaring 5
th
respondent is not the only magistrate that can lawfully be authorised
by Minister of Justice to hold enquiry proceedings in respect of
applicant.



Statute
-
Interpretation of –
Golden rule of construction – Words of a statute must be given
their ordinary, literal and grammatical meaning and effect given to
such meaning unless such literal construction would lead to a
manifest absurdity, inconsistency, hardship or a result contrary to
the legislative intent – Interpretation of “Chief: Lower Courts”
in s 1 of the Magistrates Act, 2003 (Act No. 3 of 2003) – Court
giving the defining words their ordinary, literal and grammatical
meaning – Court therefore finding that the Chief: Lower Courts is a
public servant in terms of the Public Service Act (Act No. 13 of
1995) and not a magistrate in terms of the Magistrates Act.







Administrative
Law
- Magistrates Act
(Act No. 3 of 2003) – Whether the Magistrates Commission has power
under the Act to select particular magistrates to hold extradition
enquiry proceedings in terms of s 12 of the Extradition Act (Act No.
11 of 1996) – Court finding that in terms of the Extradition Act
only the Minister of Justice has the power to authorize magistrates
to hold such enquiry proceedings – Court holding that the
Magistrates Commission acted
ultra
vires
when it
assigned Mr. Unengu, Chief: Lower Courts, to hold extradition enquiry
proceedings in respect of the applicant – Court reviewing and
setting aside Magistrates Commission’s decision.







Constitutional
Law
– Human Rights
– right to liberty (Article 7 of the Constitution) and right to
freedom from arbitrary arrest or detention (Article 11 (1) of the
Constitution) – Court holding that those rights are derogable –
Hence, what the Constitution outlaws is deprivation of right to
liberty not according to procedures established by law, and in terms
of Article 11 (1) arrest or detention that is arbitrary, not just
arrest or detention per se or simpliciter – Court finding that
constitutional derogation of right to freedom from arbitrary arrest
or detention also found in Article 9 (1) of the International
Covenant on Civil and Political Rights (ICCPR), and Article 6 of the
African Charter on Human and Peoples’ Rights.






Constitutional
Law
– Human Rights
guaranteed by the Constitution – Enforcement



of in terms of Article 25 (2) of
the Constitution – Applicant must show he or she is an aggrieved
person and also that a right has been infringed or its infringement
is threatened in relation to him in order to be entitled to approach
the Court for redress – Court explaining the meaning of
“threatened”.






Constitutional
Law
– Separation
of powers and independence of the judiciary –



Court finding that these
principles are firmly embedded in Namibia’s constitutionalism –
Court explaining that independence of judiciary comprises
institutional independence and individual independence – Position
of Chief: Lower Courts in the Ministry of Justice –– Court
finding therefore that Chief: Lower Courts cannot lawfully hold
extradition enquiry proceedings in terms of the Extradition Act (Act
No. 11 of 1996) without offending the principles of separation of
powers and independence of the judiciary – Court declaring that
Chief: Lower Courts, cannot lawfully hold such enquiry proceedings.







Constitutional
Law
– Legislation
– Section 21 of Extradition Act (Act No. 11 of 1996) – Validity
of – Court finding that applicant’s rights under Articles 7, 10
and 11 (1) were not threatened when applicant launched the
application – The mere fact that s 21 exists on the statute books
is not a good enough ground to entitle applicant to approach the
Court for relief – Enquiring magistrate in terms of s 12 of
Extradition Act may or may not commit applicant to prison to await
the decision of his surrender to requesting State – Court finding
that determination of constitutionality or otherwise of s 21 in
respect of applicant is premature and not ripe for determination –
Court therefore refusing to declare s 21 of the Extradition Act
unconstitutional in respect of the applicant.







Constitutional
Law
– Legislation
– Section 11 (7) of Magistrates Act (Act No. 3 of 2003) –
Validity of – Section providing for appointment of temporary
magistrates – Court holding that s 11 (7) of Magistrates Act for
all intends and purposes not different from Articles 83 (2) and 83
(3) which permit appointment of acting Judges of the Supreme Court
and High Court, respectively – Court finding section 11 (7) not
inconsistent with the Constitution because it does not offend
independence of the judiciary – Court declaring s 11 (7)
constitutional and valid.


















Case No.: A 210/2007



IN THE HIGH COURT OF NAMIBIA



In the matter between



JACOB ALEXANDER Applicant



and



THE MINISTER OF JUSTICE 1st
Respondent



THE CHAIRPERSON OF THE



MAGISTRATES COMMISSION 2nd Respondent







THE CHIEF: LOWER COURTS 3rd
Respondent


THE PROSECUTOR GENERAL 4th
Respondent


MAGISTRATE UAATJO UANIVI 5th
Respondent







CORAM: PARKER, J



Heard on: 2008 June 16-17


Delivered
on: 2008 July 2


__________________________________________________________________


JUDGMENT:



PARKER, J.:



Introduction



[1] In this matter, application is made, on notice of
motion, by the applicant in which he has prayed for orders in the
following terms:






1. declaring that Mr. Uaatjo Uanivi, a
magistrate duly appointed as such under the Magistrates Act, 3 of
2003, is the only magistrate lawfully authorised by the first
respondent to conduct an extradition enquiry in terms of section 12
of the Extradition Act No. 11 of 1996 (“
the
Extradition Act
”) against the applicant
(“
the Extradition enquiry”)
in respect of a request dated 24 October 2006 by the United States of
America for the extradition of the applicant;





2. in the
alternative to paragraph 1 above,







    1. declaring
      that the Chief: Lower Courts in the Ministry of Justice may not
      lawfully conduct an extradition enquiry in terms of section 12 of
      the Extradition Act;










    1. in
      the alternative to paragraph 2.1 above,








2.2.1 reviewing and setting aside the
decision of the Magistrates Commission (“
the
Commission
”), dated 1 August 2006, to
appoint the Chief: Lower Courts in the Ministry of Justice, Mr.
Petrus Unengu, to act temporarily as magistrate for the regional and
district divisions of Windhoek, Otjiwarongo, Oshakati and
Keetmanshoop with effect from 1 August 2006 to 31 July 2007;







2.2.2 reviewing and setting aside the decision of the
Commission, dated 31 July 2007, to appoint the Chief: Lower Courts in
the Ministry of Justice, Mr. Petrus Unengu, to act temporarily as a
magistrate for the Central, Oshakati, Rundu, Keetmanshoop and
Otjiwarongo regional divisions and every magisterial district
division in Namibia with effect from 1 August 2007 to 31 August 2008;






2.2.3 declaring that the Chief: Lower Courts in the
Ministry of Justice may not lawfully conduct an extradition enquiry
in terms of section 12 of the Extradition Act.






2A. Reviewing and setting aside the decision of the
Magistrates Commission dated 25 April 2007 to appoint the Chief:
Lower Courts in the Ministry of Justice, Mr. Petrus Unengu, to
‘handle’ the Applicant’s ‘extradition matter’.






2B. To the extent that it is necessary for the relief
sought in prayers 2 and 2A above, declaring section 11 (7) of the
Magistrates Act 3 of 2003 to be inconsistent with the Constitution
and invalid.






3. Declaring that section 21 of the Extradition Act is
inconsistent with the Constitution and invalid.






4. Ordering the first respondent and such of the second
to fifth respondents who oppose this application to pay the costs of
the application, jointly and severally, the one paying the other(s)
to be absolved, such costs to include those attendant upon the
employment of one instructing legal practitioner and two instructed
counsel.





5. Granting
further and/or alternative relief.






[2] What all
this means is as follows. If I refuse to grant the relief sought in
prayer 1, I must go on to consider whether to grant the relief sought
in 2.1. However, if I grant the relief sought in 1, I need not
bother myself with 2.1. Second, if I refuse to grant the relief
sought in 2.1, I must go on to consider whether to grant all the
relief sought in prayer 2.2. But if I grant the relief sought in
2.1, I need not concern myself with prayer 2.2. Accordingly, if I
grant the relief sought in 1, I need not bother myself with 2.1 and
2.2. Third, the relief sought in prayers 2A, 2B, 3, 4 and 5 stand on
their own: irrespective of whatever decision I take in respect of
prayers1, 2.1 and 2.2, I must consider 2A, 2B, 3, 4 and 5, except
that I ought to consider 2B only to the extent that it is necessary
for 2.1 and 2.2 and 2A.





[3] In
determining the present application, I have taken under advisement
submissions by counsel, including the authorities that have been
referred to me, and the applicable statutory provisions. My
respectful view is that it seems to me that this application, despite
the fact that it has been argued extensively and I have been referred
to a plethora of cases, falls within an extremely short and narrow
compass.





[4] I note
that the 4th and 5th respondents did not file
answering affidavits; neither do I see notices of their intention to
oppose the application.






Relief sought in prayer 1: the s 11 (8) (of the
Extradition Act) argument






[5] The
holding of extradition enquiry proceedings in respect of the
applicant (the claimed person) in terms of the Extradition Act are
pending. The proceedings were initiated by a request for the
provisional arrest of the applicant. The applicant was arrested
pursuant to the request for his provisional arrest and brought before
Magistrate Uaatjo Uanivi (the 5th respondent) who admitted
the claimed person (the applicant) to bail in terms of s 11 (8) of
the Extradition Act. Meanwhile an authorization under s 10 (1) of
that Act was being awaited from the Minister of Justice (the
Minister) (1st respondent) for the matter to be proceeded
with in terms of s 12 of the Act. The Magistrates Commission (2nd
respondent) appointed Mr. Unengu, Chief: Lower Courts (the 3rd
respondent) to act as a temporary magistrate in terms of s 11 (7) of
the Magistrates Act for the period 1 August 2007–1 August 2008.
Indeed, this was the fifth such temporary appointment of the 3rd
respondent under the Magistrates Act.





[6] Having
received a formal request in October 2006 from the United States of
America (the requesting State) for the extradition of the applicant,
the Minister, in terms of s 10 (1) of the Extradition Act issued an
authorization, authorizing a magistrate to proceed with
enquiry proceedings aimed at making a finding as to the return of the
claimed person to the requesting State. The enquiry proceedings were
scheduled to commence on 25 April 2007 before Magistrate Jacobs, but
the learned Magistrate ‘recused’ himself: the reason for so
‘recusing’ himself is irrelevant to the present enterprise. The
3rd respondent was then assigned to conduct the enquiry
proceedings. This is the basis of the relief sought in prayer 1.
The gravamen of the applicant’s challenge in 1 is this: it is the
5th respondent who admitted the applicant to bail as
aforesaid, and therefore it is only the 5th respondent who
can be lawfully authorized to hold the enquiry proceedings for
committal of the applicant in terms of the Extradition Act.





[7] The
provisions that are relevant to the determination of prayer 1 are as
follows:





Section
10 (1)



Upon receiving a request made under section
7 the Minister shall, if he or she is satisfied that an order for the
return of the person requested can lawfully be made in accordance
with this Act, forward the request together with the relevant
documents contemplated in sections 8 and 9 to
a
magistrate
and issue to that magistrate an
authority in writing to proceed with the matter in accordance with
section 12.









Section
11 (7) (a) and (b)



Any person arrested under subsection (6) shall in
accordance with Article 11 of the Namibian Constitution be –







(a) informed promptly in a language that he or she
understands of the grounds for such arrest; and







  1. be
    brought before
    a magistrate
    within 48 hours of his or her arrest or, if it is not reasonably
    possible, as soon as possible thereafter.







Section
11 (8)



The Magistrate referred to in subsection (7) (b), while
awaiting an authorization under section 10 (1) from the Minister to
proceed with the matter in accordance with section 12, shall remand a
person brought before him or her either in custody or on bail as if
such person was brought before him or her for a preparatory
examination or trial.






Section
12 (1)



Where the return of a person has been
requested under this Act and the Minister has under section 6 (3) or
10 (1) authorized
a magistrate
to proceed with such matter, such person shall, subject to section
15, be brought before that magistrate who shall hold an enquiry with
a view to make a finding as to the return of such person to the
country concerned.






[8] I append, hereunder, the authorization document
issued by the Minister:






REPUBLIC OF NAMIBIA






ISSUED IN TERMS OF SECTION 10 (1) OF THE EXTRADITION
ACT, ACT NO. 11 OF 1996






AUTHORITY TO PROCEED IN ACCORDANCE WITH SECTION 12 OF
THE EXTRADITION ACT, ACT NO. 11 OF 1996






WHEREAS THE MINISTER OF JUSTICE OF THE REPUBLIC OF
NAMIBIA has received an extradition request made under section 7 of
the aforesaid Act from the United States of America for the surrender
of Jacob Alexander alias Kobi to the United States of America.






NOW THEREFORE, and acting under the
provisions of sections 10 (1) of the Extradition Act, Act No. 11 of
1996, I hereby authorize
a magistrate
to proceed with this matter in accordance with the provisions of
section 12 of the Extradition Act, Act No. 11 of 1996. I herewith
forward to you the request and three sets of documents contemplated
in section 8 and 9 of the said Act, the original set of documents is
properly and duly sealed and it is for the Magistrate, and the other
two sets for the State and the Respondent respectively.






Signed at Windhoek on this 23rd
day of October 2006.






[Signed]


MRS.
PENDUKENI IIVULA ITHANA, MP


MINISTER OF
JUSTICE


REPUBLIC OF
NAMIBIA






The
authorization document was enclosed in a letter addressed to the “The
Magistrate of Windhoek”.





[9] The
authorization document (s10 (1)-authority) does not refer to any
magistrate by name. I respectfully accept the 1st
respondent’s contention that the Extradition Act does not say that
the Minister must identify a specific magistrate and also put his or
her name down in the authorization document. I also accept the 1st
respondent’s evidence that she forwarded the s 10 (1)-authority to
the Magistrate of Windhoek (I take that to mean the head of
magistrates of the Windhoek Magistrate’s Court.) for him or her to
assign the enquiry proceedings to a magistrate of the Windhoek
Magistrate’s Court to hold the enquiry proceedings. The
applicant’s contention is that since the 5th respondent
admitted the applicant to bail it is only the 5th
respondent who must in law be authorized to hold the enquiry
proceedings in terms of s 12 of the Extradition Act.





[10] As this
Court observed in Koch v The State Case No.: CA 12/2004 (HC)
(Unreported) at p 8, “There is no provision in the Act which
requires that the Minister must authorize a specific magistrate by
name. On the other hand there is also no provision which states that
he (or she) may not do so.” In my respectful view, I think the
intention of the Legislature in those relevant provisions I have
referred to above is that the Minister may not authorize a
particular magistrate by name
in the authorization document to
hold extradition enquiry proceedings under the Extradition Act.





[11] The
reason is not far to seek; and, in my opinion, the applicant’s
contention can therefore, with respect, be reductio ad absurdum
in the following way. The Minister may authorize a specific
Magistrate X, who had remanded the claimed person in custody or
admitted to bail, by name, and by the time the authorization document
gets to the Magistrate’s Court in question, Magistrate X has died,
or has resigned, or has been dismissed. In that event, going by the
contention of the applicant, the claimed person must be re-arrested –
whether he or she is in custody or out on bail – for Magistrate Y
to remind the claimed person in custody or admit him or her to bail
the second time. The Minister would once more issue a s 10
(1)-authority, authorizing a specific Magistrate Y by name. By the
time the second s 10 (1)-authority arrives at the Magistrate’s
Court in question Magistrate Y has died, or has resigned, or has been
dismissed. In that event, going by the contention of the applicant,
the claimed person must be re-arrested the third time – whether he
or she is in custody or out on bail – for Magistrate Z to remind
the claimed person in custody or admit him or her to bail the third
time. The Minister would once again issue a s 10 (1)-authority,
authorizing Magistrate Z by name. There is no guarantee that the
named Magistrate Z in the Magistrate’s Court in question will not
meet any of the fate that befell Magistrate X and Magistrate Y. If
Magistrate Z does suffer a similar fate as X and Y, the claimed
person must be re-arrested the fourth time – whether he or she is
in custody or out on bail – for Magistrate A to remind the claimed
person in custody or admit him or her to bail the fourth time. The
Minister would once more issue a s 10 (1)-authority, authorizing
Magistrate A by name, who, in human experience, cannot be immune to
what came upon Magistrate X, Magistrate Y and Magistrate Z. If
Magistrate A is not so immune as I have said and suffers a similar
fate as Magistrate X, Magistrate Y, Magistrate Z, the process of
re-arresting and re-remanding in custody or re-admitting admitting to
bail and the Minister’s appointments must go on unceasingly in that
fashion until hopefully a particular magistrate who remands the
claimed person in custody or admits him or her to bail does not
suffer any of the fate that befell Magistrate X, Magistrate Y,
Magistrate Z, and Magistrate A.





[12] With the
greatest deference, the glaring absurdity of the applicant’s
contention – forget about its sheer ludicrousness – even looms
large where the Magistrate’s Court in question has only one
Magistrate. Accordingly, in my view, where the Magistrate’s Court
in question has only on magistrate, the Minister may issue the
s10-authority to the magistrate of that court, without a name, i.e.
in virtue of being the holder of an office, e.g. the magistrate of
Tsumeb, as was done in Koch (HC) supra. But in a case where
the Magistrate’s Court in question has more than one magistrate, a
s 10 (1)-authority must be issued to a magistrate, without a
name, only; it cannot be issued to a magistrate in virtue of being
the holder of an office, as I will demonstrate shortly. The
Magistrate designated in terms of s 11 (2) (b) of the Magistrates Act
as the head of that Magistrate’s Court, having more that one
magistrate, will then decide which particular magistrate on his or
her staff should hold the enquiry proceedings.





[13] I am
fortified in my view, as regards the Windhoek Magistrate’s Court,
by the essence of the following passage from Koch (HC) supra,
at p 8:






One can well imagine that the Minister may,
e.g. in the case of a person sought to be extradited who resides in
the magisterial district of Windhoek, issue an authorization in terms
of the Act to the Chief Magistrate of Windhoek. The magistracy in
this district (Windhoek District) is large, consisting of several
magistrates. The Chief Magistrate would then allocate the matter to
one of the magistrates on his or her staff.
The
Minister may very well not even know who that particular individual
is
. (My emphasis)









[14] In sum, in my opinion, the arrangements I have
described above in respect of a Magistrate’s Court that has only
one magistrate and a Magistrate’s Court that has more than one
magistrate make a great deal of sense. The Legislature could not
have intended anything so absurd, ludicrous and incapable of being
given effect to as the contention canvassed by the applicant. The
interpretation I have put forth will not result in a manifest
absurdity; indeed, a fortiori, it is not contrary to the
legislative intent.





[15] I think
the 1st respondent issuing a s 10 (1)-authority to a
magistrate “by name or by virtue of being the holder of the office
mentioned in the authorization,” as was put forth by this Court in
Koch (HC) at p 8, which Mr. Hodes, lead counsel of the
applicant, was so much enamoured with, has attendant insoluble
difficulties. As I say, the Minister issuing such authority to a
specific magistrate “by name” will indubitably result in manifest
absurdity and intractable impracticalities for any Magistrate’s
Court, whether it has one magistrate or more than one magistrate, as
I have shown above. The Minister issuing a s 10 (1)-authority to a
magistrate “by virtue of being the holder of the office” may work
well in single-magistrate Magistrate’s Courts; but it will be
utterly unworkable in more-than-one-magistrate Magistrate’s Courts.
The reason is simple: suppose, for example, the 1st
respondent’s authorization document says, “I hereby authorize the
Chief Magistrate of Windhoek to proceed with this matter.” By any
true interpretation of the sentence, only the Chief Magistrate of
Windhoek can lawfully hold the extradition enquiry proceedings in
terms of s 12 of the Extradition Act. In fact this is not what this
Court envisaged in the passage I have quoted from Koch (HC)
supra at p.8. The correct approach is what was followed by the 1st
respondent in the s 10 (1)-authority set out above: the authority
authorized “a magistrate”; then a covering note enclosing the
authorization document was sent to the Chief Magistrate of the
Windhoek Magistrate’s Court for him or her to take the necessary
action. It is he or she qua head of the Windhoek Magistrate’s
Court who will “then allocate the matter to one of the magistrates
on his or her staff.” I have not an iota of doubt in my mind that
this is the only correct approach according to the true
interpretation and the proper application of s 10 (1), read with s
12, of the Extradition Act as far as more-than-one-magistrate
Magistrate’s Courts are concerned.





[16] I must
add as an adjunct that I have not accepted Ms Katjipuka-Sibolile’s
(the 1st, 2nd and 3rd respondents’
counsel’s) reliance on S v Koch 2006 (2) NR 513 (SC)
as regards the point under consideration because that case concerned
bail under s 12 (2) and not bail under s 11 (8),
as Mr. Hodes correctly argued.





[17] For all
the above reasons, I have come to the reasonable conclusion that the
true interpretation and the proper application of ss (10) (1) and 11
(7) (b), read with ss 11 (8) and 12, of the Extradition Act cannot in
any imaginable way support the contention that if it was Magistrate X
who remanded the claimed person in custody or admitted him or her to
bail, it is Magistrate X who the Minister must authorize by name in
the authorization document to hold the enquiry proceedings in terms
of s 12 of the Extradition Act, and it is only Magistrate X who can
lawfully hold the enquiry proceedings – whether Magistrate X has
died or has resigned or has been dismissed from the magistracy by the
time the authorization document arrives at the Magistrate’s Court
in question. As I have said ad nauseam, the applicant’s
contention as to the interpretation of the relevant provisions of the
Extradition Act can and will surely lead to real and glaring absurd
results, which offends the well known rule of construction that when
interpreting a statute there is a presumption against absurdity (Du
Toit v Office of the Prime Minister
1996 NR 52). In the present
case, the absurdity I have demonstrated above would a fortiori be
so intractable that effect can not be given to the Extradition Act.





[18] Moreover,
rules of construction of Acts of Parliament clearly state that Acts
must be constructed according to the intention of the Legislature
expressed in the Acts (Engels v Allied Chemical Manufacturers
(Pty) Ltd and another
1992 NR 372); and, in my opinion, the
“absurdity (in the applicant’s contention is) so glaring that it
could never have been contemplated by the legislature.” (Engels
supra at 380H) In other words, “such an unjust and absurd result
could not have been countenanced by the Legislature.” (S v
Zemburuka
(2) 2003 NR 200 at 212J)





[19] It
follows that I find that the applicant has not made out a case for
the grant of the relief sought in prayer 1; and so in the exercise of
my discretion, I refuse to grant the relief. Consequently, I pass to
consider prayer 2.1, together with prayer 2B, as far as it is
necessary in relation to it.






Relief sought in prayers 2.1 and 2B: Argument that
the Chief: Lower Courts may not lawfully hold extradition enquiry
proceedings (2.1) and the constitutionality or otherwise of s 11 (7)
of the Magistrates Act (2B)






[20] In terms
of s 12 of the Extradition Act, if the Minister is satisfied that the
return of a claimed person can lawfully be made in accordance with
the Extradition Act he or she forwards the request and the relevant
documents to a magistrate and a s 10 (1)-authority for holding
enquiry proceedings.





[21] The
Extradition Act defines “magistrate” to include “an additional
magistrate, divisional magistrate, or regional magistrate.” It is
to the Magistrate Act that I must therefore now direct my attention.
Section 1 of hat Act defines “magistrate” as “a magistrate
appointed under this Act (i.e. the Magistrates Act).” Section 13
(1) of the Magistrates Act provides:






The Minister may, on the recommendation of
the Commission but subject to subsection (2), appoint as many
magistrates as there are posts on the permanent establishment of the
magistracy
.






[22] As the
title of s 13 shows, that section deals only with the appointment of
magistrates on the permanent establishment. The upshot of
this statutory provision is that some persons may be lawfully
appointed in addition to the permanent establishment as
magistrates; and these are temporary magistrates, and their
appointment is provided for in s 11 (7) of the Magistrates Act.
Section 11 (7) provides:






  1. Notwithstanding
    section 13 (1), the Commission may appoint temporarily any person
    who is qualified to be appointed as a magistrate under this Act to
    act, either generally or in a particular matter, as magistrate of a
    regional division, district division, district or subdistrict in
    addition to any magistrate of that regional division, district
    division, district or subdisrict.








  1. A
    person appointed under paragraph (a) must be appointed for such
    period as the Commission may determine at the time of the
    appointment or for the duration of a particular matter.







  1. Notwithstanding
    section 18 (1) and (2), the Minister, in consultation with the
    Commission and with the concurrence of the Minister responsible for
    finance, may determine the remuneration and allowances and the
    method of calculation of such remuneration and allowances, payable
    to a person appointed under paragraph (a) who is not subject to the
    laws governing the Public Service.







[23] As I
understand it, the essence of the applicant’s argument in support
of the relief sought in prayer 2.1 may be reduced to the following
syllogism: only a magistrate can lawfully be issued with the
Minister’s authority to hold enquiry proceedings in terms of s 12
of the Extradition Act; the Chief: Lower Courts in the Ministry of
Justice is not a magistrate; ergo, the Chief: Lower Courts cannot
lawfully be issued with the Minister’s authority to hold such
enquiry proceedings.





[24] The
crisp question I must therefore answer is this: is the Chief: Lower
Courts a magistrate within the meaning of the applicable laws,
particularly the Magistrates’ Courts Act, 1944 (Act 32 of 1944),
and the Magistrates Act?





[25] Prior to
the coming into force of the Magistrates Act in June 2003,
magistrates were appointed in terms of Act 32 of 1944, and the
definition of “magistrate” in s 1 of Act 32 of 1944, which is a
stipulative definition, is as follows: “ ‘Magistrate’ does not
include assistant magistrate.” This definition has been repealed
by deletion by the Magistrates Act in terms of s 31 thereof. Another
reference to “magistrate” in s 1 of Act 32 of 1944 is this:
“’judicial officer’ means a magistrate, an additional
magistrate or an assistant magistrate.” This definition has been
amended by s 31 of the Magistrates Act to read: “’judicial’
officer means a magistrate appointed under the Magistrates Act,
2003.” Thus, in terms of Act 32 of 1944 a judicial officer is now
a magistrate appointed under the Magistrates Act; and as I have shown
above, as the law now stands, a magistrate’s position may be either
within the permanent establishment (s 13 (1)), or additional to the
permanent establishment (s 11 (7)), of the Magistrates Act. This
latter situation is the subject of the challenge in 2B. I will
proceed to deal with the relief sought in prayer 2B now before
returning to deal with the relief sought in prayer 2.1.





[26] The
practice of appointing persons as temporary magistrates additional
to the permanent establishment is not, in my opinion, per se
offensive of the Namibian Constitution; but a particular appointment
under s 11 (7) may be inconsistent with the Namibian Constitution,
and that would depend rather on the individual appointed.





[27] I find
that what s 11 (7) of the Magistrates Act permits is not different
from what the Namibian Constitution permits in respect of the
appointment of acting Judges of the High Court under Article 82 (3)
of the Constitution, which is:






At the request of the Judge-President, the
President (the appointing authority of Judges) may appoint Acting
Judges of the High Court from time to time to fill casual vacancies
in the Court, to enable the Court to deal expeditiously with its
work
.






[28] I accept
applicant’s counsel’s submission that the object of s 11 (7)
appointment is to address a temporary exigency; but in my opinion
that object ought to take into account the meaning of the phrase
“permanent establishment” in s 13 (1) of the Magistrates Act and
the requirements for appointment to the permanent establishment. As
I understand it, a s 11 (7)-appointment is made where, there is the
need for a magistrate to be appointed but there is no post on the
“permanent establishment of the magistracy” within the meaning of
s 13 (1) of the Magistrates Act, i.e. the pensionable staff
complement determined by the Minister, in terms of s 12 of the
Magistrates Act, in consultation with the Magistrates Commission and
with the concurrence of the Minister responsible for Finance, and
funded. In such a situation and as the exigency of the situation
demands, a person may be appointed as a temporary magistrate
additional to the permanent establishment in terms of s 11 (7) to
“act either generally or in a particular matter.”





[29] Thus,
there may be so many reasons why a person qualified to be a
magistrate in terms of the Magistrate’s Act cannot be appointed to
the permanent establishment; e.g. there may be no suitable vacant
post on the permanent establishment; the person’s age may be higher
than the retirement age stipulated in s 20 of the Magistrates Act; or
the person may not be a Namibian citizen or a permanent resident of
Namibia.





[30] As I
said previously, a s 11 (7)-appointment of a person temporarily to
act as a magistrate under the Magistrates Act is by all intends and
purposes not different from an Article 82 (3)-appointment of acting
Judges of the High Court or, indeed, Article 82 (2)-appointment of
acting Judges of the Supreme Court. In this regard, I take judicial
notice of the fact that at least one person has acted continually
as acting Judge of the Supreme Court on one-year terms since 1993;
and some other persons have acted continually as acting Judges
of the High Court on one-year terms for between five to eight years.
In terms of s 11 (7) of the Magistrates Act, too, a person appointed
temporarily as a temporary magistrate acts as a magistrate generally
or in a particular matter.





[31] I
understand a temporary appointment to mean the appointment must be
for a period certain, because it is not permanent; that is to say it
is not a pensionable (or ‘retireable’) appointment within the
meaning of s 13 (1), read with s 20, of the Magistrates Act. In my
opinion, the object of such temporary appointments is to enable the
magistracy “to deal expeditiously with its work.” In this
regard, I take judicial notice of the fact that the magistracy is
plagued unendingly by a very long list of pending cases and the
magistrates on the permanent establishment are humanly unable to cope
with the problem – try as they may – hence the need to employ
qualified persons as temporary magistrates additional to the
permanent establishment.





[32] I have
perused the authorities referred to me by applicant’s counsel
dealing with the independence of the judiciary, and I accept the
principles enunciated by the courts. But we must not lose sight of
the fact that, as I have demonstrated above, the Namibian
Constitution permits the appointment of acting, non-pensionable
Judges both in the High Court and in the Supreme Court additional to
the permanent establishment of the (upper) judiciary. If that is the
constitutional reality and practice in Namibia, I fail to see how and
why the appointment of temporary, non-pensionable magistrates
additional to the permanent establishment of the (lower) judiciary,
i.e. the magistracy, can be inconsistent with the Namibian
Constitution.





[33] The
fact that permanent appointments are made by the Minister on the
recommendation of the Magistrates Commission in terms of s 13 of the
Magistrates Act but temporary appointments are made by the
Magistrates Commission in terms of s 11 (7) cannot, in my opinion,
make a s 11 (7)-appointment inconsistent with judicial independence.
The making of a temporary appointment, as I have said, is determined
by the exigency of the situation, requiring “urgent
decision-making.” (Van Rooyen and others v The State and others
2002 (5) SA 246 (CC) at 328E) Regard should also be had to the fact
that there are by far more magistrates than there are High Court
Judges in Namibia, and also to the fact that while all High Court
Judges are at the seat of the High Court, magistrates are scattered
throughout the country in all 32 magisterial districts, not to count
subdistricts, and regional divisions. Moreover, a temporary
appointment is for determinate period, which means that the temporary
magistrate has security of tenure during that period, for which the
appointment is made, and he or she does not hold office at the
discretion of the Commission or, indeed, the Minister (Van Rooyen
supra).





[34] For all
the above reasons, I hold that s 11 (7) of the Magistrates Act is
consistent with the Namibian Constitution, and valid.





[35] However,
that is not all. As I said previously, the person appointed to act
as a temporary magistrate may, in the particular circumstances,
render the particular appointment inconsistent with the independence
of the judiciary which is one of the touchstones of Namibia’s
constitutionalism, even if the appointment is made under s 11 (7) of
the Magistrates Act, which as I have held, is consistent with the
Namibian Constitution. In this regard, the applicant takes issue with
the appointment of Chief: Lower Courts as a temporary magistrate.
One of the primary arguments on 2.1 and 2B is that while magistrates,
in terms of the Magistrates Act, occupy posts on an establishment
that is independent from, and that exists, outside the establishment
of the Ministry of Justice, the Chief: Lower Courts remains the Chief
of Lower Courts in the Ministry of Justice. For this reason,
so the argument goes, the Chief: Lower Courts is a public servant and
therefore his appointment to act as a temporary magistrate from 1
August 2007 to 31 August 2008 violates the principle of separation of
powers and independence of the judiciary. I accept that separation of
powers and independence of the judiciary are some of the key
constitutional principles confirmed by the Namibian Constitution and
upon which our constitutional milieu is anchored.





[36] The 1st
respondent responded contrariwise. In an earlier opinion given to
the


Magistrates
Commission – upon the Commission’s request – the 1st
respondent had stated that the Chief: Lower Courts did not fall under
the Magistrates Act but under the Public Service Act, 1995 (Act No.
13 of 1995) (the Public Service Act); thus, making the holder of the
post a public servant. However, in the 1st respondent’s
answering affidavit in these proceedings, the 1st
respondent did an about-turn over the position of Chief: Lower
Courts. The 1st respondent now states that the Chief:
Lower Courts is not a public servant but a magistrate on the
permanent establishment of the magistracy.





[37] According
to s 1 of the Magistrates Act,



Chief: Lower Courts means the Chief of Lower Courts in
the Ministry of Justice; …






[38] As I
said in Japhta Jacobs v The State Case No.: 198/2007
(Unreported), it is trite that in interpreting statute, recourse
should first be had to the golden rule of construction. In Paxton
v Namibia Rand Desert Trails (Pty) Ltd
1996 NR 109 at 111A-C, and
Sheehama v Inspector-General of Namibia Police 2006 (1) NR 106
at 114G-I, this Court relied on the restatement of the golden rule by
Joubert, JA in Adampol (Pty) Ltd v Administrator, Transvaal
1989 (3) SA 800 (A) at 804B-C in the following passage:






The plain meaning of the language in a
statute is the safest guide to follow in construing the statute.
According to the golden or general rule of construction the words of
a statute must be given their ordinary, literal and grammatical
meaning and if by so doing it is ascertained that the words are clear
and unambiguous, then effect should be given to their ordinary
meaning unless it is apparent that such a literal construction falls
within one of those exceptional cases in which it would be
permissible for a court of law to depart from such a literal
construction, e.g. where it leads to a manifest absurdity,
inconsistency, hardship or a result contrary to the legislative
intent. See
Venter v Rex
1907 TS 910 at 913-14,
Johannesburg
Municipality v Cohen’s Trustees
1909 TS 811
at 813-14,
Senker v The Master and Another
1936 AD 136 at 142;
Ebrahim v Minister of The
Interior
1977 (1) SA 665 (A) at 678A-G.









In Tinkham
v Perry
[1951] 1 All ER 249 at 250E, which Hannah, J cited with
approval in Engels v Allied Chemical Manufacturers (Pty) Ltd and
another
1992 NR 372 at 380F-G, Evershed, MR said:






Plainly, words should not be added by implication into
the language of a statute unless it is necessary to do so to give the
paragraph sense and meaning in its context.






[39] There is
no need for this Court to add any words by implication to the
provisions of s 1 of the Magistrates Act, which have defined “Chief:
Lower Courts”. The words are clear and unambiguous. Accordingly,
in my respectful view, this Court must give effect to the ordinary,
literal and grammatical meaning of the clear and unambiguous words
“in the Ministry of Justice” in that section. In Borcherds v
CW Peace & J Sheward t/a Lubrite Distributors
(1993) 13 ILJ
1262 (LAC) at 1269C-D, which this Court also relied on in Paxon
supra at 111H, McCall, J said:






It must not be lost sight of, however, that the purpose
of interpretation is to give effect to the intention of the
legislature, and in ascertaining that intention, regard is to be had
both to the language of the enactment and to the context.






[40] Having
relied on these trite rules of construction of statutes as developed
and restated by the Courts, I have come to the only reasonable and
inescapable conclusion that “Chief of Lower Courts in the Ministry
of Justice” means the holder of the post is “a member of” the
Ministry of Justice (see Concise Oxford Dictionary, 10th
ed.) The “Organization and Establishment of the Ministry of
Justice” attached to the 1st respondent’s answering
affidavit, showing that the Chief: Lower Courts is not a part of the
organization and establishment of the Ministry of Justice, and which
Ms Katjipuka-Sibolile relied on cannot take her submission any
further. The document, in my opinion, is merely an attempt to add by
implication words into the plain, grammatical and literal meaning of
the words “Chief of Lower Courts in the Ministry of
Justice”, which attempt offends the golden rule of construction.





[41] Ms
Katjipuka-Sibolile sought to rely also on “Regulations regarding
Magistrates” made in terms of s 27 of the Magistrates Act (GN No.
130 of 27 June 2003) to support her argument that the Chief: Lower
Courts is in the magistracy. Regulation 5 provides:






The
remuneration payable to a magistrate in terms of s 18 of the Act
(Magistrates Act) is as set out in Schedule 1 opposite his or her
grade.”






And “Chief:
Lower Courts” appears in Schedule 1 to the Regulations. The
conclusion I have made above in respect of the “Organization and
Establishment of the Ministry of Justice” applies with equal force
to reg. 5, apart from the added point that since reg. 5 is a
delegated legislation, it cannot add by implication words into the
Act, which would have the effect of the delegated legislation
amending the principal legislation; an approach, which is unallowable
in statute law.





[42] I am
fortified in my view by the following. First, in his answering
affidavit, the 2nd respondent concedes that the holder of
the post of Chief of Lower Courts was appointed to act as a temporary
magistrate for the period 1st August 2007–31 August 2008
in terms of s 11 (7) of the Magistrates Act. If the post is, indeed,
within the permanent establishment of the magistracy, it is
inexplicable that the holder of the post was appointed as a temporary
magistrate, additional to the permanent establishment, if regard is
had to the transitional provisions in s 29 of the Magistrates Act.
That was also the rhetorical question that Mr Hodes asked in his
submission. Section 29 provides:







  1. All posts created for magistrates on the permanent
    establishment of the Ministry of Justice and which existed
    immediately before the date of commence of section 12 are, as from
    the said date, deemed to be posts created in terms of that section
    for magistrates on the permanent establishment of the magistracy.









  1. Any person who immediately before the date of
    commencement of section 13 held the office of magistrate is, as from
    the said date, deemed to have been duly appointed as a magistrate
    under that section, and the provisions of this Act apply to such
    person.











[43] This unexplained situation on its own, in my
opinion, buries any argument by Ms Katjipuka-Sibolile that the
Chief: Lower Courts is not a public servant within the meaning of the
Public Service Act but a magistrate in terms of the Magistrates Act.
Be that as it may, counsel’s response to this is that “as a
matter of law these temporary appointments were not necessary.”
But the appointments were made by the Magistrates Commission, which
must know.





[44] As to
the phrase “in the Ministry of Justice” contained in the
definition of Chief: Lower Courts; I have found above that it can
only mean that in terms of the Act, the Chief: Lower Courts is a
member of the Public Service, i.e. a public servant. However, Ms
Katjipuka-Sibolile submits that these “words were inserted by
mistake by the draftsmen (i.e. the legislative drafters);” and that
the intention of the Legislature was that the Chief: Lower Courts is
not a public servant, subject to the Public Service Act. The
stupendous difficulty, which faces any argument that claims better
knowledge of what the Legislature intended than what the Legislature
actually had in mind when it expressed itself clearly as it did in
the Magistrates Act, is to put forward, without any justification,
the unexpressed intention of the Legislature. (See Poswa v Member
of the Executive Council for Economic Affairs, Environment and
Tourism, Eastern Cape
2001 (3) SA 582 (SCA).) By her submission,
counsel shot herself in the foot and has, probably unwittingly,
vindicated my conclusion that the proper construction of the words
“in the Ministry of Justice” means the Chief: Lower Courts is a
public servant and a staff member of the Ministry of Justice within
the meaning of the Public Service Act. In any case, it need hardly
be said that legislative drafters who are a part of the bureaucratic
Executive do not make law in Namibia.





[45] I have
discussed in extenso the golden rule of construction above.
In my view, the words “in the Ministry of Justice” are clear and
unambiguous; and going by the golden rule of construction, they must,
therefore, be given their ordinary, literal and grammatical meaning,
as I have done above. I have not one iota of doubt in my mind that
the literal construction of the phrase does not fall within one of
those exceptional cases permitting this Court to depart from such
literal construction; for it does not lead to a glaring or manifest
absurdity, inconsistency, or a result contrary to the intention of
the Legislature. “It is a well-known principle,” Cockburn, J
said in The Queen v Bishop of Oxford (1879) 4 QBD 245 at 261,
“that a statute ought to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void or
insignificant.” (Bishop of Oxford is cited with approval in
Attorney-General, Transvaal v Additional Magistrate for
Johannesburg
1924 AD 421 at 436; S v Weinberg 1979 (3) SA
89 (A) at 98E; and Watchenuka and another v Minister of Home
Affairs
2003 (1) SA 619 (C) at 625B.)





[46] Thus, in
construing the phrase “in the Ministry of Justice” in the way I
have done, I have taken it into account that no word in the phrase is
superfluous, void or insignificant.





[47] It
follows that, in my judgment, the Chief: Lower Courts is a member of
the public service within the meaning of the Public Service Act, and
so the Chief: Lower Courts cannot at the same time be a part of the
magistracy without offending the Namibian Constitution. I have come
to this irrefragable conclusion based on Namibia’s constitutional
ambience. In this regard, it must be remembered that the concept of
independence of the judiciary stands on two inseparable pillars,
namely, individual independence and institutional independence.
Individual independence means the complete liberty of individual
judges and magistrates to hear and decide the cases that come before
them. (Provincial Court Judges Assn. (Manitoba) v Manitoba
(Minister of Justice)
) (1977) 46 (CRR 2nd) 1 (SCC),
approving The Queen in Right of Canada v Beauregard (1986) 26
CRR 59, [1986] 2 SCR); Van Rooyen supra)) This facet of
judicial independence has found expression in Article 78 (3) of the
Namibian Constitution. Institutional independence of the judiciary,
on the other hand, reflects a deeper commitment to the separation of
powers between and among the legislative, executive and judicial
organs of State (Provincial Court Judges Assn. supra at 47;
Mostert and another v The Magistrates Commission and another
2005 NR 491 (HC)). The doctrine of separation of powers is also a
part of Namibia’s constitutional make-up, as I have said above; and
in Mostert (HC) supra at 501H, this Court observed tersely
that “institutional independence of the judiciary is not subject to
any limitation.”





[48] In sum,
I find that the Chief: Lower Courts is a staff member of the Ministry
of Justice, and the situation violates institutional judicial
independence which inheres in the principle of separation of powers,
and therefore it is unconstitutional.





[49] Any
lingering doubt as to the fact that the Chief: Lower Courts is not a
magistrate within the meaning of the Magistrates Act, as was held by
this Court in Mostert (HC) supra, must now be put to rest, if
regard is also had to the above analyses and conclusions and the
reasons therefor.





[50] For all
the above reasons, I have come to the only reasonable conclusion that
the applicant has made a case for the grant of the declaration sought
in 2.1, and so I exercise my discretion in favour of granting the
relief sought. Consequently, I need not bother myself with the relief
sought in 2.2. I therefore, pass on to deal with the relief sought
in prayer 2A.





The
relief sought in prayer 2A: Argument that the Magistrates
Commission’s decision to appoint Mr Petrus Unengu, Chief: Lower
Courts to hold extradition enquiry proceedings in respect of the
applicant is
ultra vires







[51] If the determination I have made in respect of the
relief sought in prayer 2.1 is


extrapolated
to the relief sought in prayer 2A, the following result emerges as a
matter of course and inexorably: any individual qua Chief:
Lower Courts cannot lawfully hold enquiry proceedings in terms of the
Extradition Act. It follows that Mr. Petrus Unengu qua Chief:
Lower Courts cannot lawfully hold extradition enquiry proceedings
under the Extradition Act in relation to the applicant. The reason is
that the Chief: Lower Courts is a public servant and not a
magistrate who may be authorized to hold extradition enquiry
proceedings under the Extradition Act since the proceedings, as I
have said, are judicial proceedings. (See United States of America
v Ferras
268 D.L.R. (4th), 1.) For this reason, I
respectfully accept Mr Hodes’s submission on the point.





[52] Besides,
Mr Hodes submitted that the Magistrates Commission has no power to
determine which specific person may be authorized to conduct enquiry
proceedings in terms of s 12 of the Extradition Act. Ms
Katjipuka-Sibolile argued in the opposite direction thus: the
Magistrates Commission has the power to appoint any magistrate to
deal with a particular matter; the Extradition Act provides that
enquiry proceedings must be held by a magistrate; ergo, the
Commission has the power to assign a magistrate to hold such enquiry
proceedings because such proceedings are “a particular matter”
within the meaning of s 11 (7) of the Magistrates Act.





[53] This is
seemingly an attractive proposition, but with the greatest deference,
counsel’s interpretation of s 11 (7) is parochial as far as it
relates to the instant case. In my view, in the present case, the
interpretation and application of s 11 (7) should unavoidably take
into account contextually ss 10 (1) and (12) of the Extradition Act.
While under s 11 (7) of the Magistrates Act, the Magistrates
Commission may appoint temporarily any qualified person to act as a
magistrate, “either generally or in a particular matter,” it is
only the Minister (1st respondent) who has the power, as I
have demonstrated previously, to issue a s 10 (1)-authority required
to hold enquiry proceedings under the Extradition Act.





[54] In my
view, s 11 (6), which Ms Katjipuka-Sibolile relied on, too, comes
into play when, for instance, Magistrate M is seized with holding
extradition enquiry proceedings but he or she is unable to continue
because of his or her absence or incapacity, and therefore it becomes
necessary to take quick action to enable the proceedings to continue
without undue delay. I also fail to see how s 3 (b) and (d) of the
Magistrates Act are relevant to the point under consideration. I
respectfully accept Mr. Hodes’s submission that s 11 (6) and s 3
(b) and (d) cannot assist the respondents.





[55] As I
have held above, if the authorization document issued by the Minister
is to go to a magistrate’s court which usually has one magistrate,
the authorization will be directed to “the Magistrate” of that
court, as was done in the Koch case (HC) supra. In Koch
the authorization document was directed to the magistrate of Tsumeb.
There is no evidence that the Minister directed the authorization
document to the Magistrates Commission for the Commission to decide
which magistrate should deal with the matter in Tsumeb; neither, in
my opinion, would it have been lawful if that had been done. And, as
I have said previously, if the magistrate’s court in question has
more than one magistrate, the Minister must issue the s 10
(1)-authority to “a magistrate”, and send the authorization
document, under cover of a covering note, to the head of that
Magistrate’s Court, who would then “allocate the matter to one of
the magistrates on his or her staff.”





[56] For all
the foregoing reasons, I hold that the decision of the Magistrates
Commission dated 25 April 2007 appointing Mr. Petrus Unengu, Chief:
Lower Courts, to hold enquiry proceedings in respect of the applicant
cannot be allowed to stand: the Commission acted ultra vires
in terms of the Magistrates Act. The result is that that decision
falls to be reviewed and set aside; accordingly, the relief in prayer
2A is granted.





[57] I have
already determined the constitutionality, and therefore validity, of
s 11 (7) of the Magistrates Act (prayer 2B); there is therefore no
point in rehashing the discussion and the conclusions thereanent in
relation to 2A, too.






Relief sought in prayer 3: Constitutionality or
otherwise of s 21 of the Extradition Act






[58] I now proceed to consider the relief sought in 3.
The essence of the applicant’s constitutional challenge is as
follows. According to s 21 of the Extradition Act, a person who has
been committed to prison in terms of either s 12 (5) or s 15 (2) of
the Extradition Act to await the Minister’s decision under s 16 of
that Act to return such claimed person to the requesting State is not
entitled to bail. It is the applicant’s contention that s 21 is
unconstitutional because it infringes Articles 7, 11 (1), and 10 (1)
of the Namibian Constitution. In support of this submission, the
applicant’s counsel, Mr Chaskalson, referred to me a bevy of
authorities from Namibia and other jurisdictions, as well as the
International Covenant on Civil and Political Rights (ICCPR), which,
like the domestic instrument, prohibits arbitrary arrest or
detention.





[59] I have
considered the authorities, and, in my opinion, some of them are
persuasive, if not binding, while some of them are binding. The
primary counter argument by Ms Katjipuka-Sibolile is that the
constitutional challenge is premature and not so it is not ripe for
determination. Of course, counsel goes on to argue on the merits
that, in any case, s 21 is not unconstitutional, and refers
authorities to me in support of both responses.





[60] Mr
Chaskalson does not agree that the constitutional challenge to s 21
of the Extradition Act is premature and that it is not ripe for
determination. Counsel relies for support also on Article 25 (2) of
the Constitution, which deals with the enforcement of fundamental
rights and freedoms, and in his written submission, he underlines the
word “threatened”; for emphasis, I suppose. I think the word
“aggrieved” must also be underlined because it is also
fundamental to the interpretation and application of Article 25 (2)
of the Namibian Constitution since the word “aggrieved” connotes
the question of locus standi. Accordingly, it must necessarily
be read intertextually with the word “threatened” (and, indeed,
“infringed”). Article 25 (2), in a material part, provides:






Aggrieved
persons who claim that a fundamental right or freedom guaranteed by
this Constitution has been
infringed
or
threatened shall be
entitled to approach a competent Court to enforce or protect such
right or freedom.
(My emphasis)






[61] In my
view, in every application where an applicant relies on Article 25
(2) of the Constitution, the threshold he or she must cross in order
to persuade a competent Court that he or she is entitled to approach
the Court for redress is that he or she must show that he or she is
an “aggrieved” person and that a human right guaranteed to him or
her by the Constitution has already been violated
(“infringed”) or is likely to be violated or it is
immediately in danger of being violated (“threatened”).
(See Cabinet of the Transitional Government of SWA v Eins 1988
(3) SA 369 (A).) According to the Oxford Advanced Learners
Dictionary
, 9th ed., the meaning of “threatened” is “to
seem likely to happen”. Thus, the likelihood that the right may be
violated must be real, not open to doubt, in the sense that the
violation may or may not occur; i.e. the danger must also be
immediate not anticipated in advance, not knowing whether it may or
may not occur. (Eins supra)





[62] Thus,
the question that immediately arises is whether when the applicant
launched the present application, the applicant’s right to personal
liberty guaranteed to him by Article 7 was threatened; that is,
likely to be violated or in immediate danger of being violated. It
must be remembered that Article 7 of the Namibian Constitution does
not say that a person cannot be deprived of his liberty: on the
contrary, under this Article a person can be deprived lawfully of his
or her personal liberty in terms of the Constitution, so long as the
deprivation is done “according to procedures established by law.”
In short, the right under Article 7 is derogable: it is not
absolute. In this regard, I find that there is not a phantom of
evidence before me on which to decide that when the time comes, if it
comes, for the applicant to be deprived of his personal liberty there
is the real likelihood that it would not be done in accordance with
“procedures established by law.” For this reason, in my opinion
the applicant’s reliance on Article 7 of the Constitution to
challenge s 21 of the Extradition Act at this stage is, accordingly,
premature: the applicant was admitted to bail in October 2006 and
remains free on bail, enjoying his right to liberty, as we speak.





[63] The fact
that the right to liberty “is one of the most important fundamental
rights of an individual” (Amakali v Minister of Prisons and
Correctional Services
2000 NR 221 at 223J) cannot detract from my
view that this human right is not absolute; it is derogable. Whether
the applicant may be deprived of his right to liberty lies in the
future; what is more, whether the deprivation will be in accordance
with procedures established by law also lies in the future. What the
applicant is asking me to do is that I must look into the future and
decide that so long as s 21 of the Extradition Act remains on
Namibia’s statute books, it is likely that the applicant’s right
to liberty under the Constitution will indubitably be
violated. With respect, I cannot humanly and judicially do that. I
must add that in Amakali supra the applicant had been detained
by executive action, and so he had applied for interdictum de
libero homine exhibendo.





[64] By a
parity of reasoning, the applicant’s right to freedom from
arbitrary arrest or detention is also derogable: it is not absolute.
Article 11 (1) of the Constitution, too, does not say no person shall
be subjected to arrest or detention. What Article 11 (1) of the
Namibian Constitution, Article 9 (1) of the ICCPR and Article 6 of
the African Charter on Human and Peoples’ Rights (the African
Charter) outlaw is “arbitrary” arrest or detention and not
arrest or detention per se and simpliciter. To arrest or detain an
individual arbitrarily means the arrest or detention has been carried
out without lawful excuse. An arrest or detention can be lawful
within the meaning of the derogation under the Namibian Constitution
and the aforementioned international instruments, if the arrest or
detention is carried out with “due process of law”, that is to
say, in accordance with the law (Prof. Wade, Administrative Law,
5th ed: p 22). As Muller, AJ (as he then was) correctly
stated in Djama v Government of the Republic of Namibia and others
1993 (1) SA 387 (NmH) at 394H, “It will be arbitrary to detain a
person if such detention is not authorized by law.” This is also
the case under Article 5 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, which has been
interpreted and applied by some of the authorities referred to me by
Mr. Chaskalson, e.g. the Case of Nasrulioyev v Russia (Application
No. 665/06), that the right to freedom from arbitrary arrest or
detention is not absolute. In any case, Nasrulioyev v Russia
is not relevant here inasmuch as what the petitioner complained about
was that he had not been able to obtain effective domestic judicial
review of his continuing detention.





[65] Like the
argument based on Article 7, the argument based on Article 11 (1),
too, is without merit, because under this head, too, what the
applicant is inviting this Court to do is to speculate that if the
time comes for him to be committed to prison, it is likely that the
detention would be done arbitrarily; but not a scintilla of evidence
is before this Court to support such contention.





[66] With
respect, I do not find Attorney-General’s Reference: In re The
State v Marapo
[2000] 2 BLR 26 of real assistance on the point
under consideration. In that case the Court of Appeal of Botswana was
interpreting s 5 (3) (b) of the Botswana Constitution, which in a way
constitutionalizes an accused’s right to bail, contextually with s
142 (1) (i) of the Penal Code, which provides that a person who is
charged with the offence of rape shall not be entitled to be
granted bail. In that case the respondent, Marapo, had been arrested
and charged with rape on 27 September 2000, and when he brought the
application on 9 February 2001 he was in custody awaiting trial. In
casu
, as I have said ad nauseam, the applicant remains
free on bail.





[67] Ex
parte Graham: In re United States of America v Graham
1987 (1)
368, too, is not relevant here inasmuch as that case concerns mainly
the Court holding that under South African Extradition Act 67 of 1962
it had inherent power to grant bail to a person committed to prison
pending his or her surrender to the requesting State. By the same
token, R v Spilsbury [1898] 2 QB 615, too, is of no assistance
on the point under consideration. Attorney-General v Gilliland
[1985] IR 643 must be counted together with Graham and
Spilsbury. I also do not see how Giancarlo Parretti v
United States of America
112 F. 3rd 1363 (9th
Circuit 1997) can take the applicant’s case any further. In that
case the Court of Appeals held that detention of the
petitioner-appellant without bail violated due process in terms of
the United States Constitution. As I have said more than once above,
in terms of the Namibian Constitution an individual can be arrested
or detained so long as such arrest or detention is not arbitrary, and
I have explained above what I understand the qualifying word
“arbitrary” to mean. As we speak, the applicant is not under
detention, let alone arbitrary detention.





[68] I have
said above, and I accept Mr. Chaskalson’s submission, that the
notion of separation of powers is firmly embedded in Namibia’s
constitutionalism. I also accept that the Courts are the ultimate
protectors of individual rights. But I do not find that at this stage
the doctrine of separation of powers in respect of the applicant
will indubitably be breached just because s 21 exists on Namibia’s
statute books. The applicant was arrested by the Executive, he was
admitted to bail by the lower court in terms of the law – that is,
in accordance with the rule of law – and he remains free on bail;
and the Legislature or the Executive has not interfered with the
lower court’s decision – taken in terms of the applicable law –
to admit the applicant to bail. It would be highly presumptuous of
me to decide that the applicant will be committed to prison in breach
of the procedures established by law or that such detention will be
arbitrary. If I took any such decision, I will not be acting
judicially, if regard is had to the constitutional provisions
discussed above.





[69] In terms
of Namibia’s constitutional jurisprudence as regards Article 7 of
the Constitution, an individual may be deprived of his or her right
to liberty, including his or her freedom of movement, which is
relevant in the present matter, but it must be done according to
procedures established by law, e.g. the Criminal Procedure Act, 1977
(Act No. 51 of 1977), the Extradition Act, 1996 (Act No. 11 of 1996),
and the Immigration Control Act, 1993 (Act No. 7 of 1993). Such a
law, for example, the Criminal Procedure Act or the Extradition Act
or the Immigration Control A, decides on what grounds and in what
manner the deprivation under the particular Act may take place. On
that score, I accept Mr Chaskalson’s submission that Articles 7 and
11 (1) rights have both substantive and procedural elements in their
contents. (See Zealand v Minister for Justice and
Constitutional Development
2008 (6) BCLR 601 (CC) at 612 E-G,
where Langa, CJ cited with approval the principles in a passage by
O’Regan, J in S v Coetzee 1997 (3) SA 527 (CC) at 591 G-H,
and De Lange v Smuts NO and others 1998 (3) SA 785 (CC) at 795
C-D, where Ackermann, J also approved the passage in Coetzee.)





[70] In any
case, in my opinion, it is even pleonastic to talk about substantive
and procedural elements of these rights, e.g. the right to freedom of
movement. Even under Article 11 (1) in which the word “procedures”
does not appear under the right to freedom from arbitrary arrest or
detention, an aggrieved person is entitled to know on what ground –
and the ground must be acceptable – he or she is being arrested or
detained, and the arrest or detention must be carried out in a manner
that is procedurally fair.





[71] But all
these considerations about Article 7 and Article 11 (1) rights having
substantive and procedural elements do not detract from my conclusion
that there is no evidence before me tending to show that at the time
the applicant launched the present application, there was the real
likelihood that those rights were going to be infringed or that he
stood immediately in danger of having those rights infringed just
because s 21 of the Extradition Act exists on the statute books.
How, if I may ask, am I able to decide at this stage that if a s 10
(1)-enquiring-magistrate holds extradition enquiry proceedings in
respect of the applicant, he or she will commit the applicant to
prison awaiting his surrender and there will be no acceptable reasons
for the deprivation of the applicant’s liberty or there will be no
grounds for violating the applicant’s right to freedom from
arbitrary arrest and detention, and/or that the deprivation or
violation will be done in a manner that is procedurally unfair?
(Zealand; Coetzee; and De Lange supra)





[72] One must
not lose sight of the fact that extradition enquiry proceedings under
the Extradition Act are held by a competent court as judicial
proceedings, as I have noted above, and decisions taken by such a
court must be taken judicially; they are not an administrative
inquiry. (United States of America v Ferras 2006 268 D.L.R.
(4th), 1 at paras. 24-26) This is the stage, which Mr
Chaskalson correctly referred to the as the judicial phase in the
extradition process. As I have said, the magistrate who will be
authorized to hold the proceedings may find that he or she is not
satisfied after hearing evidence tendered at such enquiry and may,
therefore, not commit the applicant to prison to await the Minister’s
decision under s 16 of that Act to return the applicant to the
requesting State.





[73] While
accepting this apparent reality, Mr. Chaskalson still argued that
there was a threat that the applicant would be committed without
recourse to bail. With respect I cannot accept that argument. As
matters stand, in my opinion, there is no real likelihood that the
enquiring magistrate will commit the applicant to prison, and so the
applicant is not immediately in danger of having his right to freedom
from arbitrary arrest or detention being trampled over. As I have
explained ad nauseam, under the Namibian Constitution, the
rights under Article 7 and 11 (1) are derogable; and therefore a
person can lawfully be deprived of his or her personal liberty so
long as the deprivation is done “according to procedures
established by law” and is based on acceptable grounds; and a
person can lawfully be arrested or detained so long as the arrest or
detention is not arbitrary.





[74] As I
say, the applicant’s prayer in this regard amounts to asking this
Court to hold that when the time comes – if it comes – for him to
be committed to prison it will be done arbitrarily. More important,
there is not one grain of evidence before me that in terms of s 15
(1) of the Extradition Act, the applicant had at the time he brought
the present application he had waived or would waive his right to any
impending inquiry proceedings, which may result in the evocation of s
15 (1) of that Act.





[75] In this
connection, I do not for a moment, with the greatest deference, find
Geuking v President of the Republic of South Africa and others
2003 (3) SA 34 (CC) of any real assistance on the point under
consideration. The action that the appellant in Geuking sought
to impugn was not only threatened; it was certain that
the Director of Public Prosecutions was going to carry it out in
terms of s 10 (2) of South Africa’s Extradition Act, 1962 (Act 67
of 1962). In terms of s 10 (2) of South Africa’s Act, the
magistrate who holds an extradition enquiry is obliged to accept as
conclusive proof that there is sufficient evidence to warrant a
prosecution in the requesting State, a certificate to that effect
issued by an appropriate authority in the requesting State. Thus, in
Geuking it was certain, not just likely, as I
say, that the certificate from the requesting State was going to be
used in the extradition proceedings involving the appellant because,
as Ms Katjipuka-Sibolile correctly submitted, the Director of Public
Prosecutions in that case had indicated that he or she intended to
use the certificate at the appellant’s extradition hearing.





[76] For all
the above reasons, I hold that the applicant has not shown that at
the time that he brought the present application his rights
guaranteed to him by the Constitution under Articles 7, 10 and 11 (1)
and Article 9 (1) of the ICCPR and Article 6 of the African Charter
were likely to be contravened in respect of him or that
he stood immediately in danger of having those rights violated
just because s 21 of the Extradition Act exists on the statute books.
In this regard it has been said, and I respectfully subscribe to it,
that “in accordance with the general rules governing the necessity
of determination of constitutional questions, they will not be
determined abstractly, or in a hypothetical case, or anticipated
in advance
of the necessity for determination thereof …”
(Corpus Juris Secundum vol. 16 (1984 ed.; cited with approval
by Rabie, ACJ in Eins supra at 395G)





[77] In the
light of the factual averments in the applicant’s affidavits, read
with the other parties’ papers filled of record, considered against
the backdrop of the applicable constitutional provisions, provisions
of the Extradition Act, and the relevant case law thereanent, I am
not at all persuaded that the applicant’s constitutional attack on
s 21 of the Extradition Act was justiciable at his instance at the
time he brought the present application. I find nothing in the
plethora of cases referred to me by Mr. Chaskalson, some of which I
have discussed above, which would persuade me to hold that the
applicant is an aggrieved person whose right to liberty and right to
freedom from arbitrary arrest or detention were at the time he
brought the present application threatened or immediately in danger
of being violated, just because of the existence of s 21 of the
Extradition Act. By a parity of reasoning, I do not find anything in
the authorities to convince me to hold that at the time the applicant
brought the present application his right under Article 10 was
infringed or threatened for the same reason.





[78] For the
foregoing reasons, I respectfully accept Ms Katjipuka-Sibolile’s
submission that any decision I take now on the merits as respects the
constitutional challenge to s 21 of the Extradition Act will be
hypothetical and academic. I have taken into consideration the
conclusions I have reached above in respect of the applicant’s
constitutional challenge together with the principle that a court may
decline to exercise its discretion to grant a declaration if the
court regards the question raised before it as hypothetical,
abstract, or academic (Shoba v Officer Commanding, Temporary
Police Camp, Wagendrift Dam, and another
1995 (4) SA 1 (A)).
Having done so, I have come to the only reasonable conclusion that I
must refuse to grant the declaration prayed for in prayer 3. I now
proceed to deal with the relief sought in 4, which concerns costs.






Costs






[79] Mr Hodes
asked for costs on the attorney and client scale and for one
instructing counsel and three instructed counsel. The main ground on
which Mr Hodes based his argument is that the 2nd and 3rd
respondents made unacceptable assertions that the applicant has
brought the present application merely to delay the proceedings,
when, according to him, the applicant is merely asserting his rights
under the Constitution. Ms Katjipuka-Sibolile, on the other hand,
submitted that the Court should refuse to award costs because of the
nature of the case.





[80] The
basic rule with regard to costs is that all costs – unless
expressly otherwise enacted – are in the discretion of the Judge,
and the discretion must be exercised judicially (Levben
Products (Pvt) Ltd v Alexander Films (SA) (Pty) Ltd

1957 (4) SA 225 (SR);
Kruger Bros &
Wasserman v Ruskin
1918 AD 63); that
is, not
arbitrarily. (Merber v Merber
1948 (1) SA 446 (A)) In short,
an award of costs ought to be
fair and just between the parties. (Fripp v Gibbon & Co
1913 AD 354) It has also been held that the
successful party should be awarded his or her costs, and the
rule ought not to be departed from without good grounds (Letsitele
Stores (Pty) Ltd v Roets
1959 (4) SA
579). B
ut the rule is subject to the above-mentioned
overriding principle that the award of costs is in the discretion of
the Judge (Unimark Distributors (Pty) Ltd
2003 (1) SA 204); it
depends upon the circumstances of the
particular case.





[81] The
logical question that arises is therefore this: is a party
“successful” if he or she recovers only a small portion of what
he or she claimed? It has been stated that there must be substantial
success before the party achieving such success will be regarded as
“successful” for the purposes of an award of costs. (Cillliers,
ibid., p.
2-10;
Fleming v Johnson & Richardson
1903 TS 319)





[82] I will
now apply the principles set out above to the facts of this case.
The applicant sought substantive relief in prayers1, and/or 2.1,
and/or prayer 2.2, and 2A, 2B, 3, and 4; bar prayer 5, which is for
further and/or alternative relief. I have considered five prayers,
viz. prayers1, 2.1, 2A, 2B, and 3. The applicant was successful in
only two, namely, 2.1 and 2A; if anything, it is rather the 1st,
2nd, and 3rd respondents who chalked greater
success as their opposition to three of the five prayers was
successful, namely, prayers1, 2B, and 3. Therefore, the applicant’s
success is not substantial success on any pan of scale; the parties
shared the honours almost equally. Besides, according to the Supreme
Court an extradition enquiry is neither a criminal trial nor a civil
matter; it is something sui generis (Koch supra (SC)),
and according to the House of Lords, “extradition proceedings are
criminal proceedings; of course criminal proceedings of a very
special kind, but criminal proceedings nonetheless” (R v
Governor of Brixton Prison, ex p. Levin
[1997] 3 All ER 289 (HC)
at 293j) (Emphasis added) One must not lose sight of the fact that
in criminal proceedings orders for costs are not ordinarily made (Van
Rooyen
supra ). In this regard, it must be signalized that the
present application arose out of an ongoing extradition matter.





[83] I have
taken into consideration my conclusion that the applicant’s success
is not substantial by any measure. I have also taken into account the
observations of the Supreme Court in Koch and of the House of
Lords in Ex parte Levin about the nature of extradition
proceedings, and of the South African Constitutional Court on costs
in criminal proceedings. Having taken these considerations into
account, in the circumstances of this case, I think this is a fitting
case in which it would be just and fair, and therefore appropriate,
to make no order as to costs.





[84] In the
result, I make the following orders:







  1. It is declared that the 5th respondent is
    not the only magistrate that may be authorized in terms of s 12 of
    the Extradition Act by the 1st respondent to hold enquiry
    proceedings in terms of that Act in respect of the applicant.









  1. It is declared that the Chief of Lower Courts in the
    Ministry of Justice must not be authorized in terms of s 10, read
    with s 12, of the Extradition Act to hold enquiry proceedings under
    that Act.









  1. The decision of the Magistrates Commission dated 25
    April 2007 to appoint Mr. Petrus Unengu, in his capacity as
    Chief: Lower Courts, to hold enquiry proceedings in terms of the
    Extradition Act in respect of the applicant is reviewed and set
    aside.









  1. It is declared that s 11 (7) of the Magistrates Act is
    consistent with the Namibian Constitution, and therefore valid.









  1. It is ordered that a determination of the
    constitutionality or otherwise of s 21 of the Extradition Act in
    respect of the applicant
    is premature and therefore the question
    is not ripe for determination.









  1. There is no order as to costs.













__________________________



Parker, J
















ON BEHALF OF THE APPLICANT: Adv. P Hodes, SC



Adv. M Chaskalson


Adv A
Katz



Instructed by: Metcalfe Legal



Practitioners





ON BEHALF OF
THE 1ST, 2ND, 3RD RESPONDENTS: Ms U
Katjipuka-Sibolile


Instructed
by: The Government Attorney








ON BEHALF OF
THE, 4TH RESPONDENT: No appearance





ON BEHALF OF
THE, 5TH RESPONDENT: No appearance