CASE NO.: CR 95/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

ISMAEL
HUSEB

CORAM:
Smuts, J et Miller, AJ

ARGUMENT
HEARD ON: 3 October 2011

DELIVERED
ON: 21 October 2011

REVIEW JUDGMENT

SMUTS, J [1] The
accused in this automatic review was on 19 April 2011 convicted in
the Magistrate’s Court, Omaruru on a charge of stock theft.
The presiding magistrate convicted him after he had pleaded guilty
and was questioned under s 112 of the Criminal Procedure Act, 31 of
1977 (the Act). The District Magistrate was correctly satisfied that
the accused had admitted the elements of the charge. The accused,
who was not represented, was a first offender and was convicted on a
charge of slaughtering one goat to the value of N$700.00. Having
admitted the value and the elements of the charge, the magistrate
proceeded to sentence the accused to two years imprisonment on 11 May
2011.

[2] The presiding
magistrate did not however refer the accused for sentencing under s
114 of the Act. This was presumably because the mandatory minimum
sentence for the conviction of the offence in question under the
Stock Theft Act (where in the case of the value of the stock being
N$500.00 or more,
a mandatory sentence of not less than 20 years of imprisonment
without the option of a fine would apply for a first conviction), had
been struck down by this Court 10 March 2011.
This mandatory minimum sentence would thus otherwise have applied to
the accused. But was it struck down and set aside as being in
conflict with the Constitution by the Full Bench of this Court in
Protasius
Daniel and Another v The Attorney-General and two others¹.
As a consequence of the Full Court striking down the minimum
sentence as being unconstitutional, the presiding magistrate then
imposed a sentence of two years imprisonment after considering the
mitigating factors raised by the accused and an address by the public
prosecutor on the prevalence of the offence.
The prosecutor had proposed that the accused be sentenced to three
years imprisonment.

[3] Unbeknown to the
Magistrate,
the Prosecutor-General, second respondent in the Protasius
Daniel
matter, had on 26 March 2011 however appealed against that judgment
of the Full Court which had struck down the mandatory minimum
sentences for both first offenders embodied in s 14 (1) (a) (ii) of
the Stock Theft Act as well as the mandatory minimum sentence for
repeat offenders embodied in s 14 (1) (b).
The Attorney-General and the Government of the Republic of Namibia
had not opposed the application to strike down those mandatory
minimum sentences as unconstitutional. The Prosecutor-General’s
notice of appeal is against the whole of the judgment and order by
the Full Court. This was given prior to the sentencing of the
accused by the Magistrate, Omaruru.

[4] The question arises
as to whether the sentence imposed by the magistrate was in
accordance with the law by reason of the fact that a notice of appeal
had been filed against the judgment of the Full Court. This is
because of the common law principle that the noting of an appeal has
the effect of suspending the execution or operation of a judgment and
order of the Court appealed against.²
It is well established that this Court has a wide discretion in
granting or refusing leave to execute a judgment and order pending an
appeal.³
But no application to execute the judgment pending the determination
was brought by the applicants in Protasius
Daniel
matter.

[5] The question
accordingly arises as to whether the noting of the appeal in the
Protasius
Daniel
matter has suspended the operation of the judgment of the Full Court
in respect of the striking down of the mandatory minimum sentences
for first offenders. It would appear from the judgment of the Full
Court that s14(1)(a)(ii).⁴

[6] The
Prosecutor-General did not appear to have placed in issue whether the
mandatory minimum for first offender is unconstitutional but differed
on the question of remedy by the appellant by proceeding in his
application to the Full Court (as opposed to an appeal under the
Act). The position of the Prosecutor-General in respect of the
mandatory minimum sentence for repeat offenders embodied in s14 (1)
(b) was different. The Prosecutor-General denied that s14(1)(b) was
unconstitutional. The opposition to the application to strike down
the mandatory minimum sentence for first offenders was based upon an
argument that it was not the appropriate remedy for that applicant.
It was contended that he should instead have appealed against the
sentence and that an argument should have been made that there were
substantial and compelling circumstances in the appellant’s
case which would justify a deviation from the mandatory minimum
sentence as permitted by s 14 (1) of the Stock Act Theft.
This would have rendered it unnecessary to strike down the
sub-section. This argument was dismissed and the Full Court
proceeded to strike down both mandatory minimum sentences as being
unconstitutional. But, even if a conflict with the Constitution was
not then placed in issue by the Prosecutor-General, this would not
preclude that office appealing from on that issue.

[7] If the common law
rule were to have suspended the operation of the judgment of the Full
Court in the Protasius
Daniel matter,
then this would have implications for the legality of the proceedings
in this review matter (and for several other matters). If the
impugned provisions of the Stock Theft Act remain operative pending
the appeal, then the proceedings before the presiding magistrate and
in particular the failure to refer the matter to a regional
magistrate for sentencing, would be irregular. In view of this
consideration, I directed that a letter be addressed to the
Prosecutor-General on 29 July 2011, advising that the issue would be
set down for oral argument on 3 October 2011. Despite the potential
far-reaching implications of appealing against the decision of the
Full Court, the appeal itself was surprisingly not prosecuted as a
matter of urgency by the Prosecutor-General’s office.
I would have expected that, particularly in view of the position of
Prosecutor-General’s office in this application namely that the
notice of appeal did stay the effect of the order of the Full Court.

[8] Amici
curiae,
Messrs R Heathcote, SC and Mr D Obbes,
were appointed to represent the accused in the argument of this
review. Both sets of counsel provided detailed written argument in
advance of the hearing. We express our gratitude to counsel for
their helpful industry in preparing and presenting argument. Amicus
counsel
raised the fact that the court did not enquire whether the admission
as to the value of the stock in question was within the accused’s
knowledge in view of the judgment in this court in S
v Undari
⁵.
In view of the conclusion I reach in this matter,
it is not necessary to deal with this particular aspect, save to
express my respectful agreement with the approach adopted by the
court in that matter.

[9] When the matter was
argued, amicus
counsel
contended that the common law rule which serves to suspend the
operation of a judgment pending an appeal would not apply in
instances of the kind where a competent court has declared
legislation unconstitutional in proceedings which were incidental to
criminal proceedings (and where an appeal had been noted against
declaratory relief striking legislation down as unconstitutional).
They correctly pointed out that this common law rule is in any event
a general rule which is subject to exceptions⁶.
Counsel also referred to Article 25 of the Constitution which, in
peremptory terms, precludes parliament from passing any law
infringing on the fundamental rights protected under the
Constitution. Article 25 further expressly provides that to the
extent of a conflict with the Constitution, the law shall
be invalid. It was submitted that once a competent court had found
s14(1)(a)(ii) to be unconstitutional and invalid,
then the common law rule would give way to the declaration of
invalidity and could not be relied upon by the State to perpetuate a
regime in conflict with the Constitution when noting an appeal. That
was the thrust of their argument. Counsel invited us, in line with
the approach of the Supreme Court in Trustco
Group International v Shikongo,⁷
to develop the common law to be in harmony with the Constitution.

[10] We requested
counsel for the State, Mr Nduna, to address us on this proposition.
He essentially confined his submission to a reference to s 307(1) of
the Act. It provides that the execution of a sentence would not be
suspended by the transmission of, or the obligation to transmit, a
record for review unless the court which imposes the sentence
releases the person convicted on bail. This was in any event only
relied upon by counsel after there was reference to this section by
Miller, AJ in a question posed to amicus counsel.

[11] When I enquired as
to whether there was any authority for the proposition that the
common law rule suspending the operation of a judgment pending an
appeal would not apply in circumstances such as the present, amicus
counsel reiterated their reliance on Article 25, submitting that
that once a competent court had struck down legislation as
unconstitutional and invalid, the common law rule would not apply due
to the wording of Article 25 of the Constitution, providing in
peremptory terms that any law made by parliament shall to the extent
of a conflict with the rights enshrined in chapter 3 be invalid.

[12] At the conclusion of
the oral argument, on 3 October 2011,
we reserved judgment. On 5 October 2011, amicus
counsel provided a supplementary note which included further
authority.
This was done with the consent of the Prosecutor-General’s
Chambers. In their supplementary note, counsel referred to Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others:
In Re Application for declaratory relief⁸.
After the amicus
counsel provided their additional note with the consent of the
Prosecutor-General Chambers, an opportunity was provided to the
Prosecutor-General’s Chambers to file further argument. That
office declined to do so.

[13] In the New
Clicks
matter, the Constitutional Court in South Africa made it clear with
reference to section 2 of the South African Constitution that any law
inconsistent with the Constitution is invalid. It held that:

“Any
law inconsistent with the Constitution is therefore invalid. When a
court considers and upholds a challenge to the validity of a law, it
then declares the law to be invalid, but the law’s fundamental
invalidity flows from its inconsistency with the Constitution, not
from the court order. As this Court held in Ferreira v Levin NO:

“The
Court’s order does not invalidate the law; it merely declares
it to be invalid. It is very seldom patent, and in most cases is
disputed, that pre-constitutional laws are inconsistent with the
provisions of the Constitution. It is one of this Court’s
functions to determine and pronounce on the invalidity of laws,
including Acts of Parliament. This does not detract from the reality
that pre-existing laws either remained valid or became invalid upon
the provisions of the Constitution coming into operation. In this
sense laws are objectively valid or invalid depending on whether they
are or are not inconsistent with the Constitution. The fact that a
dispute concerning inconsistency may only be decided years
afterwards, does not affect the objective nature of the invalidity.”

[16] The
common-law rule that execution of a judgment is suspended pending an
appeal has no application to declarations of constitutional
invalidity of legislation. If a law is objectively invalid, a
declaration of invalidity made by a competent court that is
subsequently set aside on appeal does not validate the law. For the
same reason, an appeal against a declaration of constitutional
invalidity of a law does not breathe life into that law. The
objective validity or invalidity of a law will ultimately be
determined at the end of the appeal process. That does not mean,
however, that courts have no power to temper the effect of orders of
constitutional invalidity made pending the finalisation of the appeal
process.

[17] The
ordinary effect of the constitutional doctrine of objective
invalidity would be that a law declared invalid will have been
invalid from the date upon which its inconsistency with the
Constitution arose. Ordinarily, this would be the date of
promulgation of the law, or the date upon which the Constitution came
into force”.⁹ 

That
court proceeded to refer to s172 of the South African Constitution
which authorizes courts there to ameliorate the effect of invalidity
when they consider it just and equitable to do so. Although different
in certain respects to Article 25 of the Constitution and more
detailed given the different court structures and the powers provided
for, the thrust of the court’s powers to temper or mediate the
effects of an order of invalidity is essentially similar in principle
to the fundamental approach underpinning Article 25.

[14] The provisions in
the Constitution of Namibia are thus similar in their basic impact,
thrust and effect to s 2 read with s 172 of the South African
Constitution. Article 25 makes it clear that any law in conflict of
the Constitution is to the extent of the conflict invalid in terms of
similar to s 2. There are however provisos in Article 25 which
empower the court to allow parliament to correct a defect in an
impugned law within a specified period subject to conditions
specified by the court.
Although less detailed than s172, the underlying principle of
invalidity to the extent of a conflict is also at the heart of
Article 25 and likewise provides ways in which this effect may be
ameliorated by a court which makes the declaration of invalidity. As
is stressed by the court in the New
Clicks
– matter, that court (making such an order) is best placed to
determine what is just and equitable with regard to suspending the
order of invalidity and the conditions for doing so. I respectfully
agree with that approach and find that it should apply to Namibia.
Article 25 thus also expressly vests a competent court (such as a
full bench in the Protasius
Daniel
matter), with the power and discretion to make such an order instead
of declaring the law to be invalid.
It is also best placed to do so. The courts in Namibia have in the
past exercised that power¹⁰.

[15] The Full Court in
the Protasius Daniel matter however elected not to exercise
the power to allow parliament to correct the defect in the impugned
law but instead struck down the offending provisions as invalid.

[16] I find the authority
in the New Clicks matter to be both instructive and applicable
to the position in Namibia in view of the provisions of Article 25.
The Full Court decided not to ameliorate the invalidity of the
sections which it struck down in accordance with Article 25(1)(a) of
the constitution. By doing so, it elected not to temper the effect of
the order of constitutional invalidity.

[17] I respectfully agree
with the approach of the South African Constitutional Court that an
appeal against a declaration of constitutional invalidity of
legislation will not breathe new life into that law in the absence of
a competent court tempering the effect of the order of constitutional
invalidity as contemplated by Article 25(1)(a). It could follow in my
view that the common law rule that the execution of a judgment is
suspended pending an appeal would likewise have no application to
declarations of constitutional invalidity of legislation.

[18] It would follow in
circumstances that the appeal against declaration of invalidity of
the two subsections in the Stock Theft Act by the Full Court would
not have the effect of suspending the operation of that judgment. It
follows that the sentence imposed by the Magistrate in this matter
was thus valid and competent in the circumstances.

__________

SMUTS, J

I concur

____________

MILLER, AJ

ON BEHALF OF THE STATE
MR. NDUNA

Instructed
by: OFFICE OF THE
PROSECUTOR-GENERAL

ON BEHALF OF THE ACCUSED
ADV HEATHCOTE, SC

Assisted by:
ADV OBBES

Instructed by:

AMICUS CURIAE