Reportable

SUMMARY

CASE NO.: A 176/2007

HAMWAAMA AND OTHERS

v

ATTORNEY-GENERAL

Heard on: 2008 July
2008

Delivered
on: 2008 July 31

HOFF,
J et
PARKER, J

____________________________________________________________________

Criminal
procedure - Appeal
– Leave to appeal – Constitutionality of s 316 (6), (7),
and (9) of the Criminal Procedures Act, 1977 (Act No. 51 of 1977) –
Section not inconsistent with Articles 12 (a), (c), and (e) and 10 of
Namibian Constitution.

Constitutional
law - Human
rights – Right to fair trial in terms of Article 12 (a), (c)
and (e) of the Constitution – Court holding that unlike the
South African Constitution (1996) Namibian Constitution does not
expressly provide for constitutional right to appeal – A
persons’ right to appeal rather regulated by the Criminal
Procedure Act – Court holding that leave provisions in the
Criminal Procedure Act (particularly s 316 (6), (7), and (9) of the
Act) in line with fair trial provisions under the Constitution –
Furthermore, leave provisions (particularly s 316 (6), (7) and (9))
not inconsistent with Article 12 of the Constitution.

Constitutional
law- Human
rights – Right to equality and freedom from discrimination in
terms of Article 10 of the Namibian Constitution – Court
holding that leave provisions in Criminal Procedure Act (particularly
s 316 (6), (7), and (9) of the Act) not inconsistent with Article 10
0f Namibian Constitution.

International
human rights

Law
- International
Covenant of Civil and Political Rights (ICCPR) – Fair trial
provisions under Article 14 thereof – Court holding that
absence of oral submissions when petition to Chief Justice is
considered does not infringe principle of fair hearing under ICCPR –
Additionally, in-chamber consideration of petition by three judges do
not infringe public hearing requirements under ICCPR, so long as
procedure is fair.

CASE NO.: A 176/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between

TUHAFENI HELMUTH HAMWAAMA 1^st
Applicant

THOMAS HEITA 2^nd
Applicant

KAIN MCNAB 3^rd
Applicant

FREDIS KAVALE 4^th
Applicant

and

ATTORNEY-GENERAL
OF NAMIBIA 1^st
Respondent

MINISTER OF JUSTICE 2^nd
Respondent

PROSECUTOR-GENERAL OF NAMIBIA 3^rd
Respondent

CORAM: HOFF, J et
PARKER, J

Heard on: 2008 July 25

Delivered on: 2008 July 31

__________________________________________________________________

JUDGMENT:

PARKER, J.:

[1] The application filed by Hamwaama (1^st
applicant), Heita (2^nd applicant) and McNab (3^rd
applicant) on 13 August 2007 is entitled “Application to the
High Court of Namibia to challenge constitutionality of s 316 (6),
(7), (9) (a) of the Criminal Procedure Act of 1977”. In the
application the applicants pray for orders in the following terms
(hereunder set out verbatim):

(1) Granting the applicants an order of enforcement or
protecting the applicants’ fundamental rights and freedoms
guaranteed by the Constitution Articles 10, 12, (1) (a), (c), (e) and
138 (c).

(2) Declaring the in-chambers consideration and refusal
decision of the applicants’ petitions for leave to appeal to
the Supreme Court of Namibia in terms of Section 316 (6), (7) and (9)
(a) of the Criminal Procedure Act, Act 51 of 1977, to be null and
void and setting aside the refusal decision of 19 July 2000 and 14
March 2005.

(3) Declaring the following parts of the
Criminal Procedure Act, Act 51 of 1977,

Section 316 (6), (7) and (9) (a) to be
unconstitutional and in conflict with the constitution of Namibia and
setting aside the subsections in question.

(4) Granting the applicants an order for a fair and
public hearing and prosecuting their appeals against their trial
proceedings, conviction and sentence to the finality in the Supreme
Court of Namibia.

(5) That the Honourable Supreme Court of Namibia be
directed that the applicants’ appeals be dealt with in a
reasonable time as a matter or urgency.

[2] On the court file is a handwritten note by Kavale
(4^th applicant), entitled “Application to challenge
the unconstitutionality (constitutionality) of section 316 (7) (a) of
the Criminal Procedure Act, Act 51 of 1977”. The 4^th
applicant sets out what he terms grounds for challenging the
constitutionality of s 316 (7) (a) of the CPA. He had applied that he
be joined as an applicant: the rest of the applicants had no
objection, and we accepted the application because his constitutional
challenge is the same as that of the first three applicants’.
It must be made abundantly clear that we are considering the 4^th
applicant’s so-called ‘application” solely because
the only aspect of the handwritten note that makes a modicum of sense
and therefore merits any consideration appears to be the same as the
constitutional challenge mounted by the first three applicants, as I
have said above. For this reason, we think it is prudent and
efficacious to consolidate the 4^th applicant’s
so-called “application” with that of the 1^st,
2^nd, and 3^rd applicants’ application so
that we can determine the constitutional challenge against the
subsections of s 316 of the CPA, cited below, and put the matter to
rest as far as this Court is concerned. It is also noted that the
applicants informed the Court that they had appointed the 1^st
applicant to speak on their behalf in making oral submissions during
the hearing of the application.

[3] Before going into the merits of the case, we must
consider the 3^rd respondent’s application to condone
the late filing of the 3^rd respondent’s answering
affidavit and the late filing of the respondents’ counsel’s
heads of argument. We find that the 1^st, 2^nd,
and 3^rd applicants have filed answering (i.e. replying)
affidavit to the 3^rd respondent’s answering
affidavit. They have also filed supplementary heads of argument.
Therefore we do not see that any prejudice has been occasioned to the
1^st, 2^nd and 3^rd applicants by the
late filing of the 3^rd respondent’s answering
affidavit and the respondents’ counsel’s heads of
argument. We also accept as reasonable the explanation given for the
late filing of these processes. In any case, the applicants informed
the Court that they had no objection to the Court granting the
application for condonation. The result is that we grant the
application for condonation. We now proceed to deal with the
constitutional challenge.

[4] It behoves us at the outset to make the following
determination in respect of some of the relief sought by the 1^st,
2^nd and 3^rd applicants. We will come to a
similar unmeritorious contention by the 4^th applicant
later. As to prayer 1; this Court cannot grant an order in vacuo
for the “enforcement or protecting the applicants’
fundamental rights and freedoms guaranteed by the Constitution
Articles 10, 12, (1) (a) (c), (e) and 138 (c).” The applicants
do not say in what way the 1^st, 2^nd and 3^rd
respondents have violated those rights. In other words, it is not
clear to us what action the respondents have taken in respect of the
applicants that has violated their constitutionally guaranteed human
rights. A fortiori, it is equally not clear as to the nature
of the order that the applicants seek in prayer (1). In short,
prayer (1) is too amorphous to determine; and this Court cannot grant
an order that is hypothetical and abstract. (See Jacob Alexander
v The Minister of Justice and others Case No.: A210/2007
(Unreported).) The relief sought in prayer (1) is therefore refused.

[5] With regard to prayers 2 and 5, considering the
hierarchical structure of the courts in Namibia in terms of the law
and the Constitution, this Court is a lower court in contrapositive
to the Supreme Court. For this reason - and we accept Ms Katjipuka’s
submission - it is absolutely legally impossible in terms of the
Namibian Constitution for this Court to question, let alone, set
aside a decision of the Supreme Court; or issue any directions to the
Supreme Court. Thus, with regard to the present matter, the decision
of the Supreme Court to refuse the applicants’ petition to the
Chief Justice is final in terms of s 316 (9) of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977) (the CPA); and that is the
law, as pronounced by the Supreme Court in S v Strowitzki 2003
NR 145 (SC), “until repealed or amended by Act of Parliament or
until they are declared unconstitutional by a competent court.”
(Strowitzki supra at 161D) Prayers 2 and 3, too, are
accordingly refused.

[6] With regard to the 4^th applicant; he
refers to “South African Judicial matters amendment Bill”.
We must note it here immediately that South Africa’s Bill does
not in any way concern Namibia; so we take no cognizance of that
Bill. The 4^th applicant also contends that the CPA was
amended in South Africa and so the amendment should apply in Namibia
in virtue of Article 144 of the Namibian Constitution. With respect,
his contention has not even a semblance of merit whatsoever. He does
not say when the amendment was passed, and whether the amendment
applied to Namibia before 21 March 1990. By a parity of reasoning,
his reference to “S v Ntuli 1996 (1) SACR 94 (CC)”
cannot assist him. Ntuli is absolutely irrelevant to the
matter at hand because that case dealt with s 309 (4) (a) of the CPA,
which concerned Judge’s certificate; and that is not the
concern of s 316 of CPA, which is the subject matter of the present
application. Indeed, this Court relied on Ntuli in S v
Ganeb 20012 NR 294 when the Court was considering the
constitutionality or otherwise of s 309 (4) (a). For these reasons,
we take no cognizance of 1^st applicant’s wide
assertions in this regard.

[7] The applicants have brought the present application
to also ask this Court to declare s 316 (6), (7) and (9) (the leave
provisions) unconstitutional, as we have intimated previously.
Accordingly, it remains to deal with prayers (3) and (4), which we
shall do in due course. In our opinion, a determination of prayer
(3) will dispose of prayer (4) as well because, in a way, prayer (4)
is related to prayer (3), although prayer 4 is not formulated
elegantly.

[8] As we understand the applicants, the applicants’
contend that subsections (6), (7), and (9) of s 316 of the CPA are
inconsistent with the Constitution, particularly Article 12 (a), (c),
and (e), and Article 10 thereof. They also argue that these
subsections are offensive of Article 14 (5) of the International
Covenant on Civil and Political Rights (ICCPR), to which Namibia is a
State Party. Article 14 (5) provides:

Everyone convicted of a crime shall have
the right to his conviction and sentence being reviewed by a higher
tribunal according to law.
(My emphasis)

[9] Section 316 should perforce be read with s 315 of
the CPA. These sections of the CPA afford a right of appeal against
conviction and sentence to any person convicted of a crime and
sentenced by the High Court only if the person has been granted leave
to appeal by the High Court. Thus, s 315 provides that appeals
against conviction or sentence by the High Court are not competent as
of right and are available only as provided for in ss 316-319 of the
CPA.

[10] Section 315 provides:

(1) In respect of appeals and questions of law reserved
in connection with criminal cases heard by the High Court of Namibia
the court of appeal shall be the Supreme Court of Namibia.

(2) An appeal referred to in subsection (1) shall lie to
the Supreme Court of Namibia only as provided in sections 316 to 319
inclusive, and not as a right.

And s 316, inasmuch as it is relevant to the present
application, provides:

(1) An accused convicted of any offence
before the High Court of Namibia may, within a period of fourteen
days of the passing of any sentence as a result of such conviction or
within such extended period as may on application (in this section
referred to as an application for condonation) on good cause be
allowed; apply to the judge who presided at the trial or, if that
judge is not available, to any other judge of that court for leave to
appeal against his or her conviction or against any sentence or order
following thereon (in this section referred to as an application for
leave to appeal), and an accused convicted of an offence before such
court on a plea of guilty may, within the same period, apply for
leave to appeal against any sentence or any order following thereon.

(6) If an application under subsection (1)
for condonation or leave to appeal is refused or if in any
application for leave to appeal an application for leave to call
further evidence is refused, the accused may, within a period of
twenty-one days of such refusal, or within such extended period as
may on good cause be allowed, by petition addressed to the Chief
Justice submit his application for condonation or for leave to appeal
or his application for leave to call further evidence, or all such
applications, as the case may be, to the Appellate Division, at the
same time giving written notice that this has been done to the
registrar of the provincial or local division (other than a circuit
court) within whose area of jurisdiction the trial took place, and of
which the judge who presided at the trial was a member when he so
presided, and such registrar shall forward to the Appellate Division
a copy of the application or applications in question and of the
reasons for refusing such application or applications.

(7) The petition shall be considered in
chambers by three judges of the Appellate Division designated by the
Chief Justice.

(9) The decision of the Appellate Division
or of the judges thereof considering the petition, as the case may
be, to grant or refuse any application, shall be final.

I must mention in parentheses that in Namibia subsection
(9) has no paragraph (a) or any paragraph at all, as contended by the
applicants.

[11] Having had their leave to appeal against conviction
and sentence refused by this Court, the 1^st, 2^nd
and 3^rd applicants petitioned the Chief Justice for leave
to appeal. Their petition was considered by three judges of the
Supreme Court “according to law” and refused on 19 July
2000. The 4^th applicant’s petition suffered a
similar fate on 14 March 2004. These are the main, relevant facts in
the present matter, and they are not in dispute. Consequently, in my
view the question this Court is called upon to determine is primarily
a matter of constitutional law; and that is the manner in which we
approach this case.

[12] We now turn to the grounds of the challenge based
on Article 12, particularly paragraphs (a), (c), and (e) thereof. In
this regard, it must be borne in mind that unlike the South African
Constitution – and this is significant – the Namibian
Constitution, in its fair trial provisions under Article 12 thereof,
does not provide for a constitutionally guaranteed right to appeal:
rather in Namibia “the right of appeal is given to everybody in
terms of the Criminal Procedure Act.” (Ganeb supra at
303G) This constitutional and legal fact is lost on the applicants,
we must say. Indeed, it has been said that the position is in accord
with the fair trial provisions of Article 12 of the Namibian
Constitution, because “[t]he concept of fair or unfair trial
does not cease to be relevant until all channels open to an
accused have been exhausted.” (Ganeb supra at 298I)
Thus, in terms of Namibian law the “all channels” that
are open to every person are those contained in ss 315-319 of the
CPA.

[13] In Ganeb supra at 305H-306B, this Court
approved the decision by the South African Constitutional Court in S
v Rens 1996 (1) SACR 105 (CC) that s 316, read with s 315 (4), of
the CPA is not inconsistent with s 25 (3) (h) of South Africa’s
Interim Constitution, which reads:

25 (3) Every accused person shall have the right to a
fair trial, which shall include the right –

(h) to have recourse by way of appeal or review to a
higher Court than the court of first instance…

Identical provisions are found in s 35 (3) (o) of the
South African Constitution, 1996. Section 35 (3) provides:

E very accused person has a right to a fair trial, which
includes the right:

(o) of appeal to, or review by, a higher court.

[14] The Constitutional Court in Rens supra held
at 111i-112c that,

[25] The doors of the appeal Court are not
closed to a person convicted in the Supreme Court, and in my view,
the requirements of fairness are satisfied. It cannot be in the
interests of justice and fairness to allow unmeritorious and
vexatious issues of procedures, law or fact to be placed before three
judges of the appellate tribunal sitting in open Court to rehear oral
arguments. The rolls would be clogged by hopeless cases, thus
prejudicing the speedy resolution of those cases where there is
sufficient substance to justify an appeal.

[26] In my view the petition procedure
which is available to every accused whose application for leave to
appeal has been refused by the Supreme Court in which he or she was
convicted, allows such accused recourse to a higher Court to review,
in a broad and not a technical sense, the judgment of the trial
court. The procedure involves a reassessment
of the disputed issues by two Judges of he
higher Court, and provides a framework for that reassessment, which
ensures that an informed decision
is made by them as to the prospects of success. (Emphasis
added)

[15] “It is true”, stated Madala, J, who
wrote the unanimous decision of the Constitutional Court in Rens
supra at 111f, “that the reassessment of the case usually lacks
full oral arguments or a full rehearing of the matter, but this does
not in itself mean that the procedure is not fair, or that it does
not constitute resort to a higher Court within the meaning of s 25
(3) (h).” We respectfully accept that the Rens decision
represents good law, and so we adopt it, as did Mtambanengwe, J in
Ganeb supra. The Rens decision has consistently been
followed by the same Constitutional Court itself, e.g. in Mphahlele
v First National Bank of SA Ltd 1992 (2) SA 667 (CC). In this
regard Goldstone, J stated in Mphahlele supra at 672B that “it
is not in the public interest to clog the rolls of such Courts by
allowing ‘unmeritorious and vexatious issues of procedure, law
or fact’ to be placed before them.”

[16] As Chaskalson P correctly stated in S v
Pennington and another 1999 (2) SACR 329 at 346b-d, the settled
practice of our courts has always been for appeals to be heard in
public. Applications for leave to appeal are not ordinarily heard in
open court, though a hearing may be called if the application raises
issues on which it is considered desirable to hear oral argument. In
most cases, however, the applications are dealt with in chambers
and are either granted or refused on the basis of the judgment of
the Court a quo and the reasons advanced in the application in
support of the submission that such judgment was wrong. There are
sound practical reasons for this. If such matters had to be dealt
with in open court, the court rolls would be clogged and the result
would be additional expense and delays.

[17] It is apropos to state that the leave provisions
are not unique to Namibia: they are a part of the criminal procedures
of other democratic societies. (See Mphahlele supra; Rens
supra.) In Monnell and Morris v United Kingdom ((1987) 10
EHRR 205) the European Court of Human Rights held that an
application for leave to appeal did not necessarily call for the
hearing of oral argument at a public hearing or the personal
appearance of the accused before the higher Court, and that an
accused who had been denied leave to appeal without such a hearing,
could not contend for that reason alone that there had been a denial
of the right to a fair public hearing by an independent tribunal.
The trial had been conducted in public and this was sufficient in the
circumstances to meet the requirements of Article 6 (1) of the
European Convention for the Protection of Human Rights, which
provides that:

‘in the determination … of any criminal
charge against him, everyone is entitled to a fair and public hearing
…’.

[18] In his authoritative work, The International Law
of Human Rights (1995), at p 278, Professor Paul Sieghart writes
that it does not necessarily follow that the absence of inviting
parties to make oral submissions in a court constitutes an
infringement of the “fair hearing” requirements under
international human rights instruments. The learned author also
states at p 280 of his work that public proceedings may not always be
necessary and a form of in camera procedure satisfies the
“public hearing” requirement under international human
rights instruments, so long as the procedure is fair. From what we
have said previously about the procedure under the leave provisions,
we therefore conclude also that the leave provisions are not
inconsistent with Article 14 of the ICCPR.

[19] The applicants sought to reply on Elifas Gurirab
v The State Case No.: SA 18/2004 (Unreported) that the Chief
Justice made an about-turn in including Gurirab in the appeal that
was heard in respect of the other appellants after Gurirab’s
petition to the Chief Justice had been refused. Gurirab is of
no real assistance on the point under consideration. Gurirab had
petitioned the Chief Justice for leave to appeal against sentence
only in respect of attempted murder. The appeal that was heard
involved conviction; and after the Supreme Court had found that the
conviction on attempted murder by the court a quo was wrong,
that Court replaced the conviction on attempted murder with that of
conviction on murder. Having done so, the Supreme Court was obliged
to sentence Gurirab accordingly. Therefore the Chief Justice did not
make any about-turn on the petition that was in respect of sentence
for attempted murder and which was refused.

[20] In this regard, the applicants submitted that they
are not convinced that the learned judges of the Supreme Court could
read 645 pages and 19 pages of State witnesses in chambers within
eight hours. The fact that the applicants who are not judges of the
Supreme Court cannot read 664 pages within eight hours does not mean
that nobody, including Supreme Court judges, can do that. This,
with respect, is a puerile argument, bordering on the contemptuous;
and it cannot by any stretch of legal imagination assist the
applicants. Besides, to require the Supreme Court to listen to
argument and give reasoned judgments in applications for leave to
appeal, which have no substance, or even to give reasoned judgments
in such matters without hearing oral argument, would defeat the
purpose of the requirement that ‘leave’ be obtained.
Such matters can and should be disposed of summarily. (See Mphahlele
supra at 672F.)

[21] In view of all these considerations, the Courts in
South Africa (including the Constitutional Court) have found that s
316, read with s 315 (4), of the CPA is not inconsistent with s 35
(3) (o) which, as I have set out above, provides for a
constitutionally guaranteed right to appeal or review. Relying on
the dicta in the South African cases, which we accept as the correct
statement of the law, and Ganeb supra, which was a decision of
this Court, albeit obiter, we have come to the inexorable
conclusion that the leave provisions are not inconsistent with the
fair trial provisions of Article 12 of the Constitution. The result
is that the constitutional challenge based on the fair trial
provisions of Article 12 of the Namibian Constitution and Article 14
of the ICCPR is groundless, and cannot therefore succeed.

[22] From the authorities, as we have shown above, it is
clear that the underlying purpose of the leave provisions is to
protect the higher Court from the burden of having to deal with
appeals in which there is no prospect of success. (See Rens
supra.) In our opinion, that is a legitimate and rational purpose.

[23] Furthermore, inherent in the meaning of the word
discrimination in Article 10 of the Constitution is an element of
unjust or unfair treatment brought about principally by unjustified
and illegitimate unequal treatment. (See Müller v The
President of the Republic of Namibia 1999 NR 190 (SC).) The
leave provisions require that anyone without exception who is
convicted of an offence must obtain leave to appeal against the
conviction or sentence and not as a right. That being the case, we
fail to see the unequal treatment that the applicants have suffered
when the leave provisions apply to all persons, and they are for
legitimate and rational purpose. Thus, in our opinion, as long as
all persons appealing from or to a particular Court are subject to
the same procedures, as provided by the leave provisions, the
requirement of equality before the law is met.

[24] The applicants submitted further that “questions
for leave to appeal in chambers, only paves the way to
institutionalized oppression against the poor, illiterate, laymen and
former disadvantaged people.” The argument is, with respect,
groundless. As I have said, the leave provisions apply equally to
all convicted persons petitioning the Chief Justice. The three
Supreme Court judges who consider petitions put before them apply the
same rules and principles to all petitions put before them; whether a
petition comes from an individual or the Prosecutor-General, and
regardless of the individual petitioner’s socio-economic status
or racial or ethnic background. There is no evidence before us
tending to show that the opposite is the case.

[25] Furthermore, in our opinion, it is not unequal
treatment within the meaning of Article 10 of the Constitution that
the appeal provisions in civil matters are different from those of
criminal matters. It is an irrefragable fact that civil proceedings
and procedures are different from criminal proceedings and
procedures; and what is more, the two are subject to fundamentally
different substantive laws.

[26] For all the above reasons, we are not persuaded
that the leave provisions violate the applicants’
anti-discrimination and equality before the law rights under Article
10 of the Constitution. Accordingly, we find that the constitutional
challenge based on Article 10 of the Constitution, too, cannot also
succeed: it has no merit whatsoever.

[27] It follows as a matter of course that we also
refuse to grant prayers 3 and 4.

[28] In the result, we conclude that the leave
provisions of the CPA are not inconsistent with the Namibian
Constitution; they are constitutional.

[29] The order therefore is that the application is
dismissed.

___________________________

Parker, J

I agree.

___________________________

Hoff, J

ON BEHALF OF THE APPLICANTS: In person

ON BEHALF OF THE RESPONDENTS: Ms U. Katjipuka

Instructed by: The Government-Attorney