CASE NO.: A 54/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TECKLA NANDJILA LAMECK
…....................................................1^st
APPLICANT

JEROBEAM KONGO MOKAXWA
…..............................................2^nd
APPLICANT

and

THE PRESIDENT OF THE REPUBLIC

OF NAMIBIA
….............................................................................1^st
RESPONDENT

THE MINISTER OF JUSTICE
….................................................2^nd
RESPONDENT

PENDUKENI IIVULA-ITHANA
….................................................3^rd
RESPONDENT

THE PROSECUTOR-GENERAL OF NAMIBIA
….......................4^th
RESPONDENT

THE ATTORNEY-GENERAL OF NAMIBIA
….............................5^th
RESPONDENT

YANG FAN 6^th RESPONDENT

THE DIRECTOR OF THE ANTI-CORRUPTION

COMMISSION
…..........................................................................7^th
RESPONDENT

CORAM:
HOFF, J et SMUTS, J et MILLER, AJ

Heard
on: 30 November 2011

Delivered
on: 20 February 2012

JUDGMENT

Smuts,
J [1] This application for declaratory relief concerns the
validity of the dual appointment of Ms Pendukeni Iivula-Ithana as
Minister of Justice and Attorney-General, as well as the validity of
certain provisions in the Prevention of Organized Crime Act, 2004
(Act No 29 of 2004) (“POCA”) and the Anti-Corruption Act,
2003 (Act 8 of 2003) (“ACA”).

[2]
After POCA was passed by Parliament, it was signed by the President
and promulgated in December 2004. In terms of s 103(1) of that Act,
it would “come into
operation on a date to be fixed by the Minister (of
Justice) by notice in the
Government Gazette”.
The Minister proceeded to do so on 5 May 2009 by Government Notice 77
of 2009. ¹

[3]
The applicants and the sixth respondent stand accused of a range of
criminal charges in pending criminal proceedings. These charges
include alleged contraventions of POCA and ACA. Certain of the
charges arise from the supply of x-ray equipment to the Ministry of
Finance of the Government of Namibia by a concern called Nuctech
Company Ltd, a company incorporated in the People’s Republic of
China for a sum exceeding U$55 million.

[4]
It is alleged that Nuctech in February 2009 entered into two
contracts with a Namibian close corporation called Teko Trading CC
(Teko) in which the applicants each have a 50% members’
interest. The one contract was described as an agency agreement and
the other was for consulting services. During March 2009 Teko
received payments pursuant to invoices provided to Nuctech in a total
amount exceeding N$42 million. In April 2009 further contracts were
entered into between Nuctech and Teko.

[5]
The dates of these payments and contracts are raised in this
application by the applicants because the contracts were entered into
and the sums in question were received by Teko prior to 5 May 2009
when POCA was put into operation. The applicants contend that POCA
has retrospective operation in respect of these payments despite the
fact that POCA did not have enforceable status at the time when the
payments were received and the underlying contracts were entered
into. The applicants thus seek to set aside certain provisions in
POCA including some relating to asset forfeiture which they contend
provide for retrospectivity. The applicants also apply for the
declaration as invalid certain sections in both POCA and ACA which
they contend are impermissibly wide.

[6]
The eleven declaratory orders sought in this application can usefully
be divided into three separate categories or issues. The first issue
concerns the constitutionality of the concurrent appointment of Ms
Iivula-Ithana as Minister of Justice and Attorney-General. This issue
is raised by paragraphs 1 and 2 of the notice of motion. These
paragraphs respectively seek an order declaring the appointment of Ms
Iivula-Ithana as Minister of Justice and Attorney-General to be ultra
vires article 32(3)(i) and 32(8) read with arts 86 and 87 of the
constitution and an order declaring Government Notice 77 ultra vires
the Constitution and s103 of POCA.

[7]
In the second instance, the constitutionality of various provisions
of POCA specified in the charge sheet, namely sections 1(5), 4, 6, 7,
8, 11, 22 and 23 and the definitions of “unlawful activity”
and “proceeds of unlawful activity” are challenged
as being unconstitutional.

[8]
Thirdly, the applicants take issue with constitutionality of two
definitions in ACA, namely “corruptly” and
“gratification” contained in s 32. They contend that
sections 33, 36, 42 and 43 of ACA, which are raised in the charge
sheets, depend for their validity upon those definitions. They
contend that these provisions are likewise unconstitutional and
invalid and seek declaratory orders to that effect.

[9]
Before dealing this those issues in that sequence, certain
preliminary issues raised in the respondents’ answering
affidavit are briefly referred to. They question the ripeness of the
application and the standing of the applicants to seek the relief
contained in the notice of motion.

Ripeness
and standing

[10]
The respondents, in the answering affidavit also raised defences to
this application by taking issue with the standing of the applicants
and whether the matter is ripe for hearing in the sense of being
premature.

[11]
As to the question of standing, Mr Trengove, who appeared for the
governmental respondents with Mr N. Marcus, did not press the issue
and said that those respondents would want to have the issues raised
in the application being determined. This court has correctly
stressed that a broad approach to standing should be adopted in
constitutional challenges².
The Supreme Court has confirmed this approach³.
The applicants are currently charged with offences which include
contraventions of and the impugned provisions of POCA and others
relating to them as well as contraventions of ACA dependent upon the
impugned definitions of that Act. This would in my view give them
standing to challenge the coming into operation of POCA and the
provisions in POCA and ACA raised in the charge sheet against them.

[12]
The ripeness point taken by the respondents would appear to be
founded on the fact that it is presently uncertain that the
applicants will be convicted on the charges against them and, even if
convicted, it is uncertain that the asset forfeiture procedures
contained in chapter 5 of POCA would be invoked against them. But the
applicants currently face charges which could give rise to those
procedures being invoked against them. They have also already been
the subjects of prior proceedings involving POCA. This Act has thus
been invoked against the applicants and they are at risk of those
procedures (involving asset forfeiture) being employed against them.
They are in my view entitled to challenge the provisions in question
which are pertinent to the proceedings against them under POCA.

[13]
It follows that these defences, not pursued with any vigour by Mr
Trengove, are not sustained.

Attorney-General
and Minister of Justice

[14]
It is common cause that the President of the Republic of Namibia
appointed Ms Iivula-Ithana as both Minister of Justice and as
Attorney-General on 21 March 2005. ⁴
The applicants contend that this was
invalid under the Constitution because, so they contend, the
Attorney-General may not hold office as a member of Cabinet. They
contend that Ms Iivula-Ithana’s appointment as Minister of
Justice was thus invalid and that she did not then have the power to
validly put POCA into operation under s 103(1) of POCA. If that were
to be the case, POCA would not have validly come into force and the
declaratory relief in respect of the specific provisions of POCA
raised in this application would not arise.

[15]
Mr Gauntlett SC, who with Mr R Heathcote SC and Mr F Pelser, appeared
for the applicants, submitted that the Constitution construed in
context makes it clear that the different roles of Cabinet Minister
and Attorney-General cannot vest in the same individual at the same
time. Mr Gauntlett stressed that the Constitution required the
President to appoint an Attorney-General. Mr Trengove agreed that the
appointment of an Attorney-General was essential under the
Constitution. But their arguments thereafter diverged.

[16]
Mr Gauntlett argued that the scheme of the Constitution was against a
dual appointment of the kind held by Ms Iivula-Ithana as Minister of
Justice and Attorney-General at the time when Notice 77 was
published. He submitted that the institutional integrity of State
structures and the roles of its different constituent parts are
diluted where any autonomous component thereof such as the office of
Attorney-General is held by an individual who simultaneously heads a
Government Ministry. The applicants thus contend that the autonomy of
the office of the Attorney-General would exclude the incumbent from
serving as a member of Cabinet.

[17]
For support for this submission, the applicants referred to art 35.
It provides for the composition of Cabinet. Mr Gauntlett referred to
the three constituent parts, namely the President, Prime Minister and
other Ministers. He submitted that the exclusion of the
Attorney-General from this class should be accorded due weight. He
further referred to the different constitutional models for the
office of Attorney-General referred to by the Supreme Court in Ex
Parte Attorney-General in re Relationship between the
Attorney-General and Prosecutor-General ⁵
(the Attorney-General-case). One of
the models referred to by the Supreme Court was the merging of the
office of Minister of Justice with that of Attorney-General. He
submitted that this was not adopted in the Constitution and that the
fundamental choice in not doing so could not then be undone by
presidential predilection.

[18]
Mr Gauntlett argued that the exclusion of the Attorney-General from
Cabinet membership meant that it would be impermissible to fill that
office by a Cabinet member. He also referred to the constitutional
scheme which deliberately created separate offices in respect of
functionaries such as the Ombudsman, the Governor of the Central Bank
and Prosecutor-General and pointed out that these are excluded from
Cabinet posts. He also submitted that the dual appointment would
weaken the importance attributed to the principle of legality where
the government’s chief legal advisor is also tasked with the
full responsibilities of a whole government ministry. The burden of
running and being responsible for a ministry, he submitted, would
impact upon the ability to render legal advice of high quality to all
ministries, the Government as a whole and to the President. This, he
submitted, weakens the constitutional state based upon the rule of
law, entrenched in art 1 of the Constitution. Mr Gauntlett thus
contended that the presidential appointment of Ms Iivula-Ithana to
the dual position of both Minister and Attorney-General subverted a
legal advisor’s position and rendered the appointment both
qualitatively and conceptionally unconstitutional. Mr Gauntlett also
referred to the various provisions in the Constitution which
specifically set out certain functions for the Attorney-General. He
accordingly submitted that the dual appointment vitiated the
proclamation of the commencement date of POCA and that Notice 77
should be declared invalid as a consequence and that POCA did not
validly enter into force.

[19]
Mr Trengove however countered that, although the Constitution did not
make the Attorney-General a member of Cabinet or require the
incumbent to be a member of Cabinet, the Constitution also did not
preclude the appointment of the Attorney-General to Cabinet. He
argued that the President had a wide discretion in deciding whether
or not to appoint the Attorney-General to Cabinet. He further
referred to the wide power of appointment by the President when it
came to appointing the Attorney-General. He submitted that the
applicant’s case amounted to an implied limitation on the
President’s power to appoint the Attorney-General and submitted
that there was no justification for such an approach.

[20]
Mr Trengove submitted that the Attorney-General, upon a proper
construction of the Constitution, was a member of the executive
branch of Government. He stressed out that the Attorney-General is a
political appointee holding office at the President’s pleasure.
He submitted that the significance of the office of the
Attorney-General lies in its separation from the office of the
Prosecutor-General and not in its autonomy or exclusion from Cabinet.

[21]
In addressing the first question to be determined in this matter, the
starting point is the constitutional scheme and the establishment,
appointment and functions of the office of Attorney-General.

[22] Article
86 established the office of the Attorney-General. It provides:

“There
shall be an Attorney-General appointed by the President in accordance
with the provisions of Article 32(3)(1)(cc) hereof.”

[23]
Article 87 sets out the powers and functions of the Attorney-General
as follows:

“The
powers and functions of the Attorney-General shall be:

(a) to exercise the final
responsibility for the office of the Prosecutor-General;

(b) to be the principal legal
advisor to the President and the Government;

(c) to take all action necessary
for the protection and upholding of the Constitution;

(d) to perform all such functions
as may be assigned to the Attorney-General by Act of Parliament.”

[24]
Article 32, which in general terms provides for the functions, powers
and duties of the President, includes the power, subject to the
Constitution, to appoint the Attorney-General. This is contained in
Article 32(3)(i)(cc). The appointment of the Attorney-General falls
within the same category as the appointment of the Prime Minister, ⁶
Ministers and Deputy Ministers ⁷
and the Director-General of Planning.
⁸

[25]
It is to be stressed at the outset that the President has a wide
discretion in appointing the Attorney-General. As is pointed out by
the Supreme Court in the
Attorney-General case with
regard to the office of the Attorney-General, ⁹

“Although
the Constitution does not require the Attorney-General to possess any
legal qualifications one can assume that in practice he would as he
is the Chief Legal Advisor to the President and the Government.

However, it is clear under the
Constitution that his appointment is a political one and that his
functions are executive in nature.”

[26]
The appointment of the Attorney-General and Ministers under art
32(3)(i) is unlike the power of the President to appoint Judges, the
Ombudsman and Prosecutor-General as the latter appointments under
Article 32(4) can only occur on the recommendation of the Judicial
Service Commission. The Supreme Court referred to the difference in
the appointment of the Prosecutor-General which, unlike the
Attorney-General, expressly requires legal qualifications and certain
further constitutional requirements for the incumbent. After
referring to these provisions and the manner of appointment of the
Prosecutor-General, the Supreme Court concluded in the
Attorney-General
case that: ¹⁰

“The
provisions of the Constitution referred to above suggest to me that
the functions of the Prosecutor-General are quasi-judicial in nature
unlike the executive functions of the Attorney-General. Moreover, the
manner of his appointment makes it clear that, unlike the
Attorney-General, the Prosecutor-General is not a political
appointment because he is appointed by the Judicial Services
Commission. That Commission is constituted under art 85 of the
Constitution and consists of the following persons: The Chief
Justice, a judge appointed by the President, the Attorney-General and
two nominated members of the legal profession.”

[27]
In the course of oral argument, Mr Gauntlett criticised the Supreme
Court’s characterisation of the Prosecutor-General’s
functions as being quasi-judicial.
Although this phrase has in the past been more frequently utilized in
the context of administrative action¹¹
and may, with respect, have been
better selected in this context, it is however clear that the Supreme
Court employed this phrase for the purpose of describing the
distinction between the two offices in question. The use of that term
is to be understood within that context. The thrust of what was
stated by the Supreme Court in this regard was to stress the
distinction between the political and executive nature of the office
of the Attorney-General which forms part of the Executive on the one
hand from that of the Prosecutor-General on the other, which although
not part of the judicial branch is none the less to be viewed as
essentially separate from the executive in the sense of the powers
and functions of that office which are to be exercised independently
of the executive.

[28]
As was correctly pointed out by Mr Trengove, the Attorney-General is
thus a political appointee who holds office at the President’s
pleasure. This is entirely unlike the position of the
Prosecutor-General and the other appointments under sub-art 32(4).

[29]
The main functions of the Attorney-General as set out above are to
exercise “final responsibility” for the office of the
Prosecutor-General, to be principal legal advisor to the President
and the Government, to take action for the protection and upholding
of the Constitution and those further functions which are
specifically assigned to the Attorney-General in legislation.

[30]
As to the first of these functions, namely the exercise of the final
responsibility for the office of the Prosecutor-General, the Supreme
Court, after a detailed analysis, concluded:

“In the
light of what I have said earlier in this judgment on my
understanding of the aspirations, expectations and the ethos of the
Namibian people, it seems to me that one must interpret the
Constitution in the most beneficial way giving it the full amplitude
of the powers which are given to the Prosecutor-General. Thus
interpreted, the office, appointed by an independent body, should be
regarded as truly independent subject only to the duty of the
Prosecutor-General to keep the Attorney-General properly informed so
that the latter may be able to exercise ultimate responsibility for
the office. In this regard it is my view that final responsibility
means not only financial responsibility for the office of the
Prosecutor-General but it will also be his duty to account to the
President, the Executive and the Legislature therefor. I accept that
on this view of the respective articles the 'final responsibility'
may be more diluted and less direct but it is nevertheless still
possible for such responsibility to be exercised provided that the
Attorney-General is kept properly informed. On this view of the
matter the Constitution creates on the one hand an independent
Prosecutor-General while at the same time it enables the
Attorney-General to exercise final responsibility for the office of
the Prosecutor-General. The notions are not incompatible. Indeed it
is my strong view that this conclusion is the only one which reflects
the spirit of the Constitution, its cardinal values, the ethos of the
people, and articulates their values, their ideals and their
aspirations. It also is entirely in accordance with the 'uniquely
caring and humanitarian quality of the Constitution'.”¹²

[31]
It is accordingly clear that the Supreme Court posits the position of
Attorney-General within the Executive branch of Government. The Court
in its judgment also noted that the then incumbent (at the time of
those proceedings) was a Minister and member of Cabinet. This was
referred to in the following way:

“When the
matter was first argued it was assumed by both counsel that the
Attorney-General in Namibia is a minister and a member of the
executive by virtue of his office. At the second hearing it was
correctly conceded in reply to a question raised by this Court at the
earlier hearing that this is not correct. While the present incumbent
is indeed a minister and a member of the Cabinet there is nothing in
the Constitution which requires him to be such or indeed to hold
political office. However, it is clear from what follows that he is a
political appointee.”¹³

[32]
Mr Trengove submitted that the Supreme Court, in this passing
reference, did not suggest that there was anything untoward in the
fact that the incumbent was a member of Cabinet and a Minister. Mr
Gauntlett however submitted that this reference would not constitute
authority for that point and questioned the correctness of that
statement in the judgment.

[33]
What is however clear from the judgment is that, upon the assumption
that the incumbent at that time was a member of Cabinet and a
Minister as stated by the court, the Supreme Court clearly did not
consider that this was untoward or inappropriate after finding that
cabinet membership was not required by the Constitution, after
expressly referring to the incumbent’s membership of cabinet.

[34]
Both counsel also referred to the other provisions in the
Constitution where there was specific and express reference to
Attorney-General. These include art 64. It deals with the power of
the President to withhold his assent to a bill passed by parliament
on the grounds of a conflict with the Constitution. In such an event
the Attorney-General “may
then take appropriate steps to have the matter decided by a competent
Court”. This
provision is to be read with the provision contained in the Supreme
Court Act empowering the Attorney-General to refer matters to that
Court for determination, as occurred in respect of corporal
punishment.¹⁴
I agree with Mr Trengove’s
submission that there would not be an inconsistency between this
function and if the Attorney-General were to be member of Cabinet. It
would seem to me that there is thus no inherent conflict in this
context.

[35]
It is both clear from the terms of art 32 and the approach of the
Supreme Court that the Attorney-General, being a political appointee
in the same category as Minister, falls within the Executive branch
of government. The Attorney-General holds office at the President’s
pleasure who may appoint any person to that position. Whilst the
Constitution would not appear to contemplate that a person appointed
to the specific offices referred to in art 32(4) could hold office as
Attorney-General, as contended by Mr Gauntlett, it does not in my
view follow that a Minister cannot be appointed as Attorney-General
or vice versa. The appointments under art 32(4) not only have
different prerequisites, requiring recommendations for those
appointments by different bodies established by the Constitution. But
those offices contemplate functions at variance (and not compatible
with) with those to be exercised by the Attorney-General under the
Constitution. The latter’s powers and functions would in my
view not necessarily preclude and be incompatible with membership of
Cabinet, as argued by Mr Gauntlett. Given the wide powers of
appointment vested in the President, it would not in my view be in
conflict with the Constitution for the President to appoint a
Minister as Attorney-General or the latter as a member of Cabinet if
he or she is a member of the National Assembly as is required (for
Cabinet membership) by art 35.

[36]
Although it may be desirable for qualitative reasons, as argued by Mr
Gauntlett, for an Attorney-General not to be burdened with the
further demands of being responsible for the running of a Ministry,
it would not seem to me that a dual position, as occurred with Ms
Iivula-Ithana, is a matter of law impermissible and in conflict with
the Constitution. It may also be desirable that the Attorney-General
as the Executive’s Chief Legal Advisor should not be a member
of Cabinet to whom advice is given and be responsible for a portfolio
in respect of which she provides advice, this would also not of
itself in my view be in conflict with the Constitution.

[37]
The Constitution does not in my view require that the positions of
Minister of Justice and Attorney-General are to be held by two
people. Even if I were to be wrong in finding that the Constitution
did not permit the Attorney-General to hold office as a member of
Cabinet, and that the Constitution would not permit a member of
Cabinet to be appointed to that office, it would not seem to me that
the converse would necessarily follow and that the appointment of the
Minister of Justice would be tainted by the simultaneous appointment
as Attorney-General. But, in view of the conclusion I have reached,
it is not necessary to further consider this question or to deal with
what Mr Gauntlett termed as the “floodgates” argument
raised by Mr Trengove or his reliance upon Oudekraal
Estates v City of Cape Town¹⁵.

The
constitutional challenge upon POCA

[38]
The applicants contend that certain of the provisions of POCA relied
upon by the Prosecutor-General in the charges against them, breach
art 12(3) of the Constitution on the ground that they violate the
fundamental principle embodied in art 12(3) of the Constitution by
retrospectively criminalising and imposing penalties for conduct
which was lawful when it was committed and also by contravening art
21(1)(j) and other articles reinforcing those provisions such as
articles 7, 8, 11 and 16. The applicants then seek to have certain
provisions in POCA declared invalid in their notice of motion
including the definitions of “unlawful activity”
and “proceeds of unlawful activities” in s 1(1) as
well as ss 1(5), 4, 6, 11, 22 and 23. The provisions in question
relate to money laundering offences provided for in s 4, 6 and 11 and
asset forfeiture in terms of chapters 5 and 6 respectively.

[39]
Article 12(3) of the Constitution provides:

“No
persons shall be tried or convicted for any criminal offence or on
account of any act or omission which did not constitute a criminal
offence at the time when it was committed, nor shall a penalty be
imposed exceeding that which was applicable at the time when the
offence was committed.”

[40]
The Supreme Court has held that this sub-article concerns only
criminal proceedings and proscribes the retrospective imposition of
offences or increase of penalties for the commission of criminal
offences. Art 12(3) would thus not apply to civil proceedings or
civil penalties imposed pursuant to them, as was held by the Supreme
Court¹⁶.

[41]
The applicants contend that the money laundering offences have
retrospective operation by virtue of the definitions of “unlawful
activity” and “proceeds of unlawful activities”
and by virtue of s 1(1)(5). They contend that these definitions read
with s 1 (1)(5) have a similar effect upon the provisions relating to
asset forfeiture in both Chapters 5 and 6 of POCA.

[42]
The definition of “unlawful activity” contained in
s 1(1) of the Act is in the following terms:

"unlawful activity" means
any conduct which constitutes an offence or which contravenes any law
whether that conduct occurred before or after the commencement of
this Act and whether that conduct occurred in Namibia or elsewhere as
long as that conduct constitutes an offence in Namibia or contravenes
any law of Namibia.”

[43]
The definition of “proceeds of unlawful activities”
is stated to mean:

any property or any service,
advantage, benefit or reward that was derived, received or retained,
directly or indirectly in Namibia or elsewhere, at any time before or
after the commencement of this Act, in connection with or as a result
of any unlawful activity carried on by any person, and includes any
property representing property so derived and includes property which
is mingled with property that is proceeds of unlawful activity.”

[44]
The applicants further rely upon s 1(5). It provides:

“(5)
Nothing in this Act, or in any other law, is to be construed so as to
exclude the application of any provision of Chapter 5 or 6 on account
of the fact that-

1. any
   offence or unlawful activity concerned occurred; or

   
   

(b) any proceeds of unlawful
activities were derived, received or retained

before the commencement of this
Act.”

[45]
The money laundering offences contained in ss 4 and 6, s 4 render it
an offence to conceal or disguise the proceeds of unlawful activities
whilst s 6 makes it an offence to acquire, use, possess, import or
export the proceeds of unlawful activities.

[46]
Section 11 sets out the penalties for money laundering. They are
severe and include a fine not exceeding N$100 million or imprisonment
for a period not exceeding 30 years for a contravention of s 4, 5 or
6 of POCA.

[47]
The applicants contend that the definitions read with s1 (1)(5) thus
render the offences created by s4 and s6 retrospective as the
proceeds may have been derived from activities which were not
unlawful (and thus lawful) prior to the coming into operation of
POCA.

[48]
Despite the wording of the definitions in question, it would not seem
to me that the money laundering offences created in ss4 and 6 operate
retrospectively, as contended by the applicants. These sections in my
view criminalise only current conduct, as submitted by Mr. Trengove.
The current conduct contemplated by those sections relate to the
acquisition, possession, importation and exporting use of proceeds of
unlawful activities. That
is what is criminalised in those
sections and not any conduct committed prior to the coming into
operation of POCA. The offences created by these sections thus
concern conduct after POCA came into force. That is in my view the
clear meaning of the sections.

[49]
What is thus criminalised is the current possession, acquisition and
use of the proceeds of unlawful activities and not
the original conduct which rendered
those proceeds as unlawful. That conduct could have occurred before
POCA came into force. But it is the subsequent possession, use or
acquisition after
POCA came into force which is
criminalised by POCA. An accused would thus not be charged with the
underlying (and prior) unlawful activity or activities which gave
rise to the proceeds. What is hit by the sections is the subsequent
use, possession or acquisition of those proceeds after POCA came into
operation. This would not in my view mean that these offences operate
retrospectively. Their operation is on the contrary prospective. They
do not in my view offend against art 12 (c).

[50]
Even if there were to be any ambiguity in this regard, Mr Trengove
correctly submitted that this would in any event be excluded by the
application of the presumption against retrospectivity, strongly
reinforced by art 12(3). Mr. Trengove also pointed out that counts 6
and 7 charge the applicants with contraventions of s7 read with ss4
and 6 relating to conduct which occurred between 5 May and 7 July
2009 (and not before POCA came into force).

[51]
The reliance upon their rights to property protected under art 16 can
also not in my view avail the applicants. This is because proceeds of
unlawful activity would not constitute property in respect of which
protection is available. These proceeds arise from unlawful activity
which is defined to “constitute an offence or which contravenes
any law”. Mr Trengove’s analogy of possession of stolen
property illustrates both this and the previous point. It is the
current
possession which is criminalised (and
not the prior theft) and further that that property would not be
protected by art 16.

[52]
The protection of property under art 16 is not absolute but subject
to constraints and restrictions which are reasonable, in the public
interest and for a legitimate object, as was made clear by the
Supreme Court in Namibia
Grape Growers and Exporters v Ministry of Mines and Energy and
Others¹⁷:

“If it is
then accepted, as I do, that art 16 protects ownership in property
subject to its constraints as they existed prior to independence, and
that art 16 was not meant to introduce a new format free from any
constraints then, on the strength of what is stated above, and
bearing in mind the sentiments and values expressed in our
Constitution, it seems to me that legislative constraints placed on
the ownership of property which are reasonable, which are in the
public interest and for a legitimate object, would be constitutional.
To this may be added that, bearing in mind the provisions of the
Constitution, it follows in my opinion that legislation
which
is arbitrary would not stand scrutiny by the Constitution.”

[53]
The prohibitions contained in ss4 and 6 with regard to the proceeds
of unlawful activity are in my view eminently reasonable. The Act was
furthermore passed in 2004 and put into operation in May 2009.
Members of the public had thus very ample advance warning of the
creation of offences relating to the proceeds of prior unlawful
activities. The restrictions and prohibitions are also in my view in
the public interest and serve a legitimate object. The purpose of
similar legislation in South Africa was, with respect, succinctly
summarised by that country’s Constitutional Court in the
following way:

“The Act’s
overall purpose can be gathered from its long title and preamble and
summarised as follows: The rapid growth of organised crime, money
laundering, criminal gang activities and racketeering threatens the
rights of all in the Republic, presents a danger to public order,
safety and stability, and threatens economic stability. This is also
a serious international problem and has been identified as an
international security threat. South African common and statutory law
fail to deal adequately with this problem because of its rapid
escalation and because it is often impossible to bring the leaders of
organised crime to book, in view of the fact that they invariably
ensure that they are far removed from the overt criminal activity
involved. The law has also failed to keep pace with international
measures aimed at dealing effectively with organised crime, money
laundering and criminal gang activities. Hence the need for the
measures embodied in the Act.

It is common cause that
conventional criminal penalties are inadequate as measures of
deterrence when organised crime leaders are able to retain the
considerable gains derived from organised crime, even on those
occasions when they are brought to justice. The above problems make a
severe impact on the young South African democracy, where resources
are strained to meet urgent and extensive human needs. Various
international instruments deal with the problem of international
crime in this regard and it is now widely accepted in the
international community that criminals should be stripped of the
proceeds of their crimes, the purpose being to remove the incentive
for crime, not to punish them. This approach has similarly been
adopted by our Legislature.”¹⁸

These
considerations also apply to the Republic of Namibia.

[54]
The invocation of art 21 (1)(j) which protects the right to practise
any profession or carry on a business, occupation or trade can
likewise not avail the applicants. That constitutional provision does
not protect unlawful economic activities and would thus not protect
the proceeds of those activities. As was stressed by the Supreme
Court in Africa Personnel
Services v Government of Namibia¹⁹,

“Article
21(1)(j) in effect only protects lawful economic activities. If
certain economic activities are proscribed by legislation lawfully
enacted, i.e. enacted in accordance with the Constitution, those
activities may no longer be exercised as contemplated by sub-article
(2) or, as the court stated in Hendricks’ case, they are no
longer on ‘the menu of lawful business options available’.
Similarly, if certain economic activities are unlawful under common
law, i.e. so much of the common law as does not conflict with the
Constitution or any other statutory law, those activities are illegal
and, they too, are not available on the ‘menu’.”

Asset
forfeiture in POCA

[55]
The applicants also challenge the asset forfeiture regime in chapters
5 and 6 as offending against the Constitution. In their application,
they do not identify the specific provisions they take issue with in
this regard, save for ss 22 and 33 of POCA. They rather adopt the
position that the retrospective effect of the impugned definitions
(of unlawful activity and proceeds of unlawful activity) make
property which was not originally obtained in contravention of the
law subject to confiscation or forfeiture under POCA would render
that forfeiture unconstitutional.

[56]
Mr Trengove submitted that the applicants’ attack upon asset
forfeiture was not properly pleaded and unsubstantiated in their
founding affidavit.

[57]
Although the notice of motion seeks to set aside ss22 and 33 of POCA
dealing with affected gifts and anti-disposal orders by court
respectively as well as the other sections and definitions already
referred to, the applicants do not identify any other provisions
which relate to asset forfeiture. The founding affidavit furthermore
does not address quite how and in what manner these provisions offend
against the Constitution.

[58]
The rules of pleading clearly apply to applications in which
statutory provisions come under constitutional attack. It is thus
imperative that the impugned provisions are precisely identified and
the attack upon them substantiated with reference to them so that a
respondent is fully apprised of the case to be met and evidence which
might be relevant to it. The relevant principle in this context,
neatly summarised in National
Director of Public Prosecutions v Phillips and Other ²⁰,
referred to by Mr Trengove, in my view find application in Namibia.
This court has also confirmed this principle in the context of a
Constitutional challenge²¹.

[59]
It would appear that the applicants’ challenge on asset
forfeiture in chapters 5 and 6 is based upon the contention that
asset forfeiture contemplated by POCA is a “penalty” for
the purpose of art 12(3) and that the impugned definitions
(identified in the notice of motion) bring about a retrospective
sanction in the form of asset forfeiture. They contend that the
agreements or transactions, if completed before POCA took effect,
render the applicants at risk of being deprived of property which,
when they were transacted, they were free to do so. Their attack on
the basis of the impugned definitions, as I understand it, is raised
on the face of those provisions, and is consequently in my view
sufficiently identified as a challenge on that confined basis.

[60]
Mr Gauntlett submitted that the characterisation of the measures
involving asset forfeiture as “civil” in nature²²
would not avail the respondents and
that this court should have regard to the true nature and effect of
the provisions. He argued that they amounted to the imposition of
additional sanctions and are proscribed by art 12(3) because of their
retrospective reach achieved by the impugned definitions read with
s1(5).

[61]
Mr Trengove submitted that asset forfeiture under chapter 5 of POCA
does not operate retrospectively, relying upon NDPP
v Basson²³.

[62]
Asset forfeiture is dealt with in chapter 5 of POCA. That chapter is
entitled “confiscation of benefits of crime”. It
essentially provides for the court to inquire into benefits an
accused may have derived from an offence after being convicted of a
criminal offence. This would arise by way of an application on the
part of the prosecutor. In the event of the court finding that the
accused had benefited from a crime or criminal activity sufficiently
related to the offence, then the court is authorized to make a
confiscation order against the person convicted for the payment to
the State of any amount which the court considers appropriate.

[63]
Section 18, contained in chapter 5, provides that proceedings in an
application for a confiscation order, restraint order and disposal
order are civil proceedings and not criminal proceedings and that
they are to be determined upon a balance of probability. The order
thus given by the court is, as was submitted by Mr Trengove, a civil
judgment, despite the reference to confiscation. The amount of the
order is furthermore within the discretion of the court subject to
the limitation contained in s 32(6)(b) that the amount of the order
should not exceed the value of the defendant’s proceeds of the
offences or related criminal activities.

[64]
In their notice of motion, the applicants challenge s 22 in part one
of chapter 5. It concerns affected gifts as defined in that section.
The other section challenged is, s 33. It is contained in part 3 of
chapter 5 and concerns an anti disposal order by court.

[65]
What is not however challenged by the applicants is s17(3). It is
contained at the very outset of chapter 5. It provides:

“For the
purpose of this chapter, a person has benefited from the commission
of an offence or related criminal activity if he or she has at any
time, whether before or after the commencement of this Act, received
or retained any proceeds of an offence or related criminal activity,
whether or not that person is still in possession of those proceeds
of an offence or related criminal activity subsequent to having
received or retained those proceeds.”

[66]
As was submitted by Mr Trengove, a court when seized of an enquiry
under chapter 5, is enjoined, upon application by the prosecutor to
have regard to benefits which a defendant in those proceedings has
derived from criminal activities which may thus have been received of
retained before the commencement of POCA.

[67]
The question is whether the forfeiture or confiscation regime set out
in chapter 5 and 6 constitutes a penalty for a criminal offence which
exceeds that which was applicable at the time when the offence was
committed, in breach of art 12(3) of the Constitution. The first part
of the question concerns whether the forfeiture or confiscation
regime in chapter 5 amounts to the imposition of a penalty as
punishment for the commission of criminal offences.

[68]
As was made clear by Mr Trengove, the asset forfeiture regime in
chapter 5 is only triggered in terms of s 32(1) by the conviction of
an accused of an offence. That offence, he correctly contends, must
be one committed after POCA came into operation. Once the conviction
has occurred, the court may on application have regard to the
benefits which an accused derived from the offence or criminal
activity prior to POCA but sufficiently related to the offence, under
the regime provided for in chapter 5 of POCA. That regime would
however have been in place at the time when the offence was committed
for which the accused is convicted and which then triggers the
confiscation remedy, even if sufficiently related criminal activity
from which an accused derives a benefit had occurred before POCA came
into force.

[69]
It follows that the confiscation order would only arise in respect of
a crime committed after POCA was put into operation. It does not
increase any penalty in respect of any crime committed prior to when
POCA came into force. It is after all the regime of confiscation
which is a consequence of conviction for an offence committed after
POCA came into operation even if the benefits of criminal activity
before POCA came into force are sufficiently related. Mr Trengove’s
reliance upon the Supreme Court of Appeals’ dictum in Basson
in my view finds application even though the wording of the
respective statutes differs. That Court held:

“The fact
that events preceding the coming into operation of Act are to be
taken into account in determining whether the defendant has
‘benefited from unlawful activities’ (section 13(3)), and
in valuing the ‘proceeds of unlawful activities’ (section
19(1)), is not decisive of whether section 18(1) operates with the
same effect. Those sections allow for benefits received before the
commission of the particular offence to be taken into account, both
in commission of the particular offence to be taken into account,
both in determining whether a confiscation order should be made, and
in determining the scope of such an order, and are equally consistent
with the section operating only prospectively as they are with it
operating retrospectively. To the extent that they are of assistance
at all, in my view they indicate a contrary intention to that which
the appellant contends for: the express reference in those sections
(and the definitions of ‘pattern of criminal gang activity’
and ‘pattern of racketeering activity’) to events that
preceded the Act coming into operation, indicates that the
legislature was alive to the question to retrospectivity, and that
the absence of similar words in 18(1) suggests that omission was
deliberate.”

“....The
section must thus be construed as operating only prospectively, with
the result that a confiscation order may not be imposed in
consequence of a conviction for an offence committed before the Act
came into effect”.²⁴

[70]
I also agree with Mr Trengove’s submission that art 12(3) is
directed at the imposition of penalty as punishment exceeding that
which was applicable at the time when the offence was committed and
would concern only the particular penalty imposed on the accused for
the commission of the specific offence. I agree with his submission
that art 12(3) is not directed at every potential adverse consequence
imposed by law upon the conviction of the criminal offence. This
could entail civil liability which may arise. But there are also the
other examples referred to by Mr Trengove, such as prohibitions upon
those who are convicted for serious offences from holding public
offices, positions of trust or from obtaining licences of certain
kinds. Mr Trengove correctly pointed out that prohibitions of this
nature would not only disqualify those who committed the
disqualifying crimes after the enactment of the prohibition.

[71]
But more importantly in this context, I respectfully agree with the
approach adopted by the Constitutional Court in South Africa in S
v Shaik²⁵
that the purpose of asset forfeiture
under similar legislation is not to punish. In S
v Shaik, O’Reagan
ADCJ stated on behalf of a unanimous court:

“In my
view it is this clause in the preamble which points most directly to
the key purpose of Ch 5: to ensure that no person can benefit from
his or her wrongdoing. That this is the primary purpose of Ch 5 has
also been recognised by the Supreme Court of Appeal, which held in
National Directory of Public Prosecutions v Rebuzzi that ‘(t)
he primary object of a confiscation order is not to enrich the state
but rather to deprive the convicted person of ill-gotten gains.”²⁶

“From this
primary purpose, two secondary purposes flow. The first is general
deterrence: to ensure that people are deterred in general from
joining the ranks of criminals by the realisation that they will be
prevented from enjoying the proceeds of the crimes they may commit.
And the second is prevention: the scheme seeks to remove from the
hands of criminals the financial wherewithal to commit further
crimes. These purposes are entirely legitimate in our constitutional
order.”²⁷

O’Reagan
, ADCJ concluded that part of the enquiry after her detailed analysis
as follows:

“Upon
proper construction of the Act, I am not persuaded that a primary
purpose of Ch 5 is the punishment of offenders. Its primary purpose
seems rather to be to ensure that criminals cannot enjoy the fruits
of their crimes. It may well be that the achievement of this purpose
might at times have a punitive effect, but that is not to say that
the primary purpose is punitive.”²⁸

[72]
The reasoning underpinning this approach was reaffirmed by that Court
in Falk v NDPP where it held:

“The
primary purpose of Chapter 5 of POCA is not punitive, but to ensure
that no person benefits from his or her wrongdoing. Its secondary
purpose is to promote general crime deterrence and prevention by
depriving people of ‘ill-gotten gains’.”²⁹

[73]
Mr. Trengove also referred to the approach adopted by the South
African High Court in NDPP v
Phillips³⁰
where that Court stated³¹:

“The mere
fact that an application for a confiscation order follows upon a
criminal conviction and culminates in a judgment against the
defendant for payment to the state of an amount based on the benefit
he has derived from his crimes is not sufficient in itself to
constitute the proceedings criminal and to render the confiscation
order criminal punishment.”

[74]
This approach also accords with the characterisation of an order
obtained in such proceedings as a civil judgment by O’Reagan
ADCJ in Shaik in her discussion of confiscation orders in the
scheme of that legislation:

“A
confiscation order is a civil judgment for payment to the State of an
amount of money determined by the court and is made by the court in
addition to a criminal sentence. Before going further, it is
important to emphasise that the order that a court may make in terms
of Chapter 5 is not for the confiscation of a specific object, but an
order for the payment of an amount of money to the State, even though
it is ordinarily referred to as a ‘confiscation order’
and shall be throughout this judgment.”³²

[75]
The South African High Court concluded in Philips that a
confiscation order under Chapter 5 of the South African legislation
was not punishment for a criminal offence for the reasons articulated
thus:

“Whether a
confiscation order constitutes punishment depends on its purpose. It
constitutes punishment only if its purpose is to punish the defendant
for his crime. But that is not the purpose of a confiscation order.
Its purpose is to deprive him of the ill-gotten gains of his criminal
conduct. That much is clear from the provisions of chapter 5. In
terms of section 18(1) a confiscation order may only be made against
a defendant who has derived benefit from his crimes. It follows that,
if two people are convicted of the same offence from which the one
derives benefit but the other not, a confiscation order may be made
against the first but not against the second. This distinction would
have been absurd if the intention was to punish. It makes sense only
because the purpose is the deprivation of the proceeds of crime. In
terms of section 18(2)(a) the amount of the confiscation order may
not exceed the value of the benefit derived from the defendant’s
crimes. This limitation also makes it clear that the confiscation
order is directed at the benefit and not the crime. The heinousness,
severity or impact of the crime is entirely irrelevant. In terms of
section 18(2)(b) the amount of the confiscation order may not exceed
so much of the value of the benefit as remains in the hands of the
defendant and those of third parties enriched by his affected gifts.
Once again this illustrates that the purpose of the order is to
confiscate his gains and not to punish him. If two people are
convicted of the same crimes from which they derive the same benefit
and the one is still in possession of the benefit but the other has
lost it, a confiscation order would be competent against the first
but not the second. This distinction too would be out of place if the
intention was to punish. In terms of s30(2) read with sections 14(1)
and 33(1)(b) a confiscation order extends to and may be execute
against the recipients of the defendant’s gifts to the extent
of the value of those gifts. That would be illogical if the purpose
of the confiscation order was to punish because the Act does not
postulate that they are guilty of any offence at all. It makes sense
only because the purpose of the order is to deprive them of the value
of their enrichment by the affected gifts that they received from the
defendant.”³³

[76]
I respectfully agree with the reasoning of the South African courts
cited above which in my view finds application to forfeiture in
chapter 5 of POCA.

[78]
I agree with Mr. Trengove that the pronouncements of the South
African Courts in respect of similar legislation are of more
assistance than the judgment of the European Court of Human Rights in
Welch v United Kingdom³⁴
relied upon by the applicants, given
the difference in the wording of the European Convention as opposed
to the provisions in the South African and Namibia legislation and
the Namibian Constitution.

[79]
I also agree with Mr Trengove that art 12(3) does not impose a
prohibition or restriction on retrospective laws even if they
retrospectively create civil liability. His reliance upon Professor
Hogg’s work³⁵
which refers to examples in taxation
law would in my view be apposite.

[80]
Asset a forfeiture under chapter 6 of POCA entails two categories of
property. These are what are termed the “instrumentalities”
of crime and the proceeds of unlawful activities, as set out in
s61(1). The latter category by making use of the terms “the
proceeds of unlawful activities” and “unlawful
activities” would, by virtue of the impugned definitions of
those terms referred to above, include within its reach the proceeds
of unlawful activities prior to the commencement of POCA. I agree
with Mr Trengove’s submission that asset forfeiture under
chapter 6 would also not offend against the Constitution for the same
reasons that the money laundering offences under s4 and 6 do not
offend against the Constitution and that there is no breach of art
12(3) because asset forfeiture under chapter 6 is a civil remedy
unrelated to the criminal prosecution and punishment of the
offenders.

[81]
Mr. Trengove correctly points out that the remedy itself is directed
against the proceeds and instrumentalities of crime whether in the
hands of a convicted person or a third party. The purpose of asset
forfeiture under chapter 6 is thus not to punish a person convicted
for an offence but rather to serve the underlying purposes of POCA,
as cogently set out by the Supreme Court of Appeal in South Africa
with reference to similar legislation in Prophet
v NDPP,³⁶
as follows: 2006(1) 38 paragraph 34
page 54 first sentence.”

“The
interrelated purposes of chapter 6 include: (a) removing incentives
for crime; (b) deterring persons from using or allowing their
property to be used in crime; (c) eliminating or incapacitating some
of the means by which crime may be committed, and (d) advancing the
ends of justice by depriving those involved in crime of the property
concerned.

[82]
Asset forfeiture is, as is stated in s50 of POCA, a civil remedy
directed at confiscation of the proceeds of crime and not at
punishing an accused. Chapter 6 proceedings are furthermore not
necessarily related to a prosecution of an accused. Those proceedings
are open to the State to invoke whether or not there is a criminal
prosecution. As is pointed out by Mr Trengove with reference to
s61(6) of POCA, even if there is a prosecution, the remedy is not
affected by the outcome of the criminal proceedings. The remedy is
thus directed at the proceeds and instrumentalities of crime and not
at the person having possession of them. This is in furtherance of
the fundamental purpose of these procedures referred to above. As is
also pointed out by Mr. Trengove, ss63 and 65 clothe innocent third
parties with an “innocent owner” defence where they own
or have an interest in the proceeds or instrumentalities of crime.

[83]
The retrospective operation of chapter 6 is brought about by
providing for the forfeiture of instrumentalities or proceeds of
crime, even where the crimes were committed prior to POCA’s
commencement. To that extent the reach of chapter 6 may be
retrospective. But the forfeiture proceedings under chapter 6 do not
in my view constitute a penalty imposed upon an accused as punishment
for a crime. Those proceedings are directed at the proceeds of crime
and not at the person who committed the crime. I agree with Mr
Trengove’s submission that those proceedings do not in my view
engage art 12(3) and are thus not in conflict with the Constitution.

Challenge
to the Anti-Corruption Act

[84]
The applicants contend that the definitions of “corruptly”
and “gratification” contained in ACA together with
sections 33, 36, 42(2) and 46 of ACA, which are dependent upon those
definitions, should be struck down as unconstitutional on the basis
of their vagueness and their wide sweep in that they violate the rule
of law and the constitutional principle of legality, entrenched in
the Constitution of Namibia. Both counsel referred us to the
formulation of this principle by the House of Lords, approved of by
the Supreme Court in Alexander
v Minister of Justice, ³⁷
to the following effect:

[W]hether the law or rule in
question is sufficiently accessible to the individual who is affected
by the restriction, and sufficiently precise to enable him to
understand its scope and foresee the consequences of his actions so
that he can regulate his conduct without breaking the law.”

[85] The term “corruptly”
is defined in s 32 of ACA to mean:

“in
contravention of or against the spirit of any law, provision, rule,
procedure, process, system, policy, practice, directive, order or any
other term or condition pertaining to-

(a) any employment relationship;

(b) any agreement; or

(c) the performance of any function
in whatever capacity;”

[86]
The applicants also attack the definition of “gratification”
which is defined to include:

“(a) money
or any gift, loan, fee, reward, commission, valuable security or
property or interest in property of any description, whether movable
or immovable;

(b) any office, dignity,
employment, contract of employment or services and any agreement to
give employment or render services in any capacity;

(c) any payment, release, discharge
or liquidation of any loan, obligation or other liability, whether in
whole or in part;

(d) any valuable consideration or
benefit of any kind, any discount, commission, rebate, bonus,
deduction or percentage;

(e) any forbearance to demand any
money or money's worth or valuable thing;

(f) any service or favour,
including protection from any penalty or disability incurred or
apprehended or from any action or proceedings of a disciplinary,
civil or criminal nature, whether or not already instituted, and
including the exercise or the forbearance from the exercise of any
right or any official power or duty;

(g) any right or privilege;

(h) any aid, vote, consent or
influence, or any pretended aid, vote, consent or influence;

(i) any offer, undertaking or
promise, whether conditional or unconditional, of any gratification
within the meaning of any of the preceding paragraphs;”

[87]
Mr. Gauntlett argued that the ACA seeks to make unlegislated norms
binding by the definition of “corruptly” by incorporating
contraventions of a procedure, process, system, policy or practice.
He correctly points out that policies are not binding legal
instruments. He also referred to the difficulties of establishing
practices. They need not be written or of general application and may
thus be indeterminate. He submitted that the vagueness of the
definition is compounded by use of the term “against the spirit
of” with reference to being against the spirit of any law,
rule, practice and the like. He submitted that it was
constitutionally impermissible to criminalise non-compliance with non
binding measures or the spirit of those provisions by means of this
statutory definition. But the definition is to be read in the context
of the provisions where it is employed in creating offences. It is
not the non-compliance with those measures alone which is
criminalised. Those offences have further elements as well as
requiring means rea
which would include knowledge of
unlawfulness.

[88]
Mr. Gauntlett also argued that the definition of gratification is
limitless and is unreasonably and impermissibly wide. He further
submitted that the impugned ACA provisions cannot be saved by
severance.

[89]
Mr Trengove on the other hand submitted that what is required in
penal statutory provisions is “reasonable certainty and not
perfect lucidity” with reference to Affordable Medicines Trust
v Minister of Health³⁸
and to R v

Pretoria
Timber Co (Pty) Ltd and Another.³⁹
Ngcobo, J (as he then was) in the
former matter, with respect, lucidly summarised the applicable
principles to a challenge on the basis of vagueness in a
constitutional dispensation in the following way:”

“The
doctrine of vagueness is founded on the rule of law, which, as
pointed out earlier, is a foundation value of our constitutional
democracy. It requires that laws must be written in a clear and
accessible manner. What is required is reasonable certainty and not
perfect lucidity. The doctrine of vagueness does not require absolute
certainty of laws. The law must indicate with reasonable certainty to
those who are bound by it what is required of them so that they may
regulate their conduct accordingly. The doctrine of vagueness must
recognise the role of government to further legitimate social and
economic objectives and should not be used unduly to impede or
prevent the furtherance of such objectives. As the Canadian Supreme
Court observed after reviewing the case law of the European Court of
Human Rights on the issue:

“Indeed...laws
that are framed in general terms may be better suited to the
achievement of their objectives, inasmuch as in fields governed by
public policy circumstances may vary widely in time and from one case
to the other. A very detailed enactment would not provide the
required flexibility, and it might furthermore obscure its purposes
behind a veil of detailed provisions. The modern State intervenes
today in fields where some generality in the enactments is
inevitable. The substance of these enactments remains nonetheless
intelligible. One must be wary of using the doctrine of vagueness to
prevent or impede State action in furtherance of valid social
objectives, by requiring the law to achieve
a degree
of precision to which the subject-matter does not lend itself...⁴⁰”

These
principles in my view apply with equal force to the position in
Namibia.

[90]
Ngcobo, J formulated the test to be applied in determining a
challenge of this nature is whether a provision construed in
accordance with the rules of statutory construction indicates with
reasonable certainty to those who are bound by it what is required of
them. In applying this test to the attack upon the provisions in ACA,
I stress at the outset my agreement with Mr Trengove’s
submission that the concept of corruption is one which does not lend
itself to neat and precise formulation and delineation. He referred
to the legislative history of the statutory offences of bribery and
corruption which have required that the conduct in question be
committed “corruptly”. He argued that the impugned
definition of corruptly amounts to an attempt on the part of the
legislature to codify the element of unlawfulness. He submitted that
it is no more vague then the requirement of unlawfulness which under
common law is an element of a crime.

[91]
Mr Trengove correctly concluded that the requirement of unlawfulness
as applied to the crime of corruption is particularly difficult to
formulate, involving as it would, the community’s perceptions
of justice or equity and its legal convictions. But the legislature
has in ACA attempted to do that and, in doing so, seeks to
criminalise certain conduct with reference to non compliance with
non-binding measures by means of this definition when the term is
read as na element of the offences referred to. As Mr Gauntlett
submitted, this is compounded by incorporating a conflict to the
“spirit” of those non-binding measures. Despite Mr
Trengove’s explanation for the definition (as an attempt to
codify the concept of unlawfulness), it would seem to me to be unduly
vague and not meet the test of indicating with reasonable certainty
what is hit by it to those who are bound by it, as is required by the
principle of legality⁴¹.
The removal of the phrase “against the spirit of” would
not in my view cure the provision from this inherent vagueness. This
definition should thus in its current form be struck down and the
applicants are entitled to their relief sought in paragraph 9 of the
notice of motion.

[92]
The same cannot be said for the definition of gratification. Although
wide, it is not in my view unduly vague. The concept of gratification
in the context of corruption would doubtless take on many varying
forms. The definition would of necessity be wide. But that does not
translate itself into impermissible vagueness in the sense referred
to. Applying the test set out above to this definition, I find that
the applicants have not established that is impermissibly vague.

[93]
Turning to the challenge upon the sections which ss 33, 36, 42(2) and
46), it would not in my view follow that these sections would
necessarily need to be struck down because they use term “corruptly”
in them. That term would need to be interpreted by the courts. In
doing so, the courts would have regard as to how the term is
understood including its dictionary definition, its definitions in
international instruments and how it has been interpreted by this or
other courts in giving content to that concept. As to the latter, the
South African High Court set out a widely accepted understanding of
the term “corruptly” contained in that country’s
Corruption Act of 1992 as follows:

“Then
finally, it remains to make clear that such giving is done corruptly
if it is done with the intention of persuading or influencing the
recipient to act other than in impartial or proper discharge of his
or her prescribed duties to the advantage of the donor or some other
indicated person. As part of this requirement, the giving of the
benefits or offer to give it must be unlawful, which means it is of a
nature not sanctioned by society’s perception of what is just
or acceptably proper, and it is this requirement that excludes from
the ambit of corruption under the Act the giving of tips such as a
reward for some service done well enough to deserve some recognition,
or lunches or entertainment facilities for clients or customers that
are a common practice among business activities, though that may
depend on the nature and extent of the benefit.”

[94]
I do not agree with Mr Gauntlett submissions that the impugned
definition of “corruptly” is not severable from the other
sections in which it is used. Those sections should in my view remain
intact and “corruptly” would then bear its ordinary
meaning. This would be in accordance with the test for severability
approved by the Supreme Court in Government of the Republic of
Namibia v Cultura 2000⁴².

Costs

[95]
The applicants have succeeded in securing the relief set out in one
out of 11 paragraphs. In the context of the entire application, this
most certainly does not constitute substantial success. On the
contrary the respondents were substantially successful in resisting
almost all the relief sought by the applicants. But the applicants
should be entitled to recover a portion of their costs, as would the
respondents in resisting the bulk of the relief claimed against them.
Taking into account the time spent on the various issues and in the
exercise of my discretion, I would consider that the applicants
should be entitled to 20 per cent of their costs whilst the
respondents to 80 per cent of theirs. The parties rightly agreed that
the issues raised in this application warrant a costs order including
the costs of two instructed counsel.

Order

[96]
In the result, I make the following order:

1. The
   definition of “corruptly” contained in s 32 of the
   Anti-Corruption Act 8 of 2003 is declared unconstitutional and
   struck down.

   
   

2. The
   relief sought in paragraphs 1 to 8, 10 and 11 of the notice of
   motion is dismissed.

   
   

3. The
   first to fifth and seventh respondents are to pay 20% of the
   applicants’ costs.

   
   

4. The
   applicants are to pay 80% of the costs of the first to fifth and
   seventh respondents’ costs.

   
   

5. These
   costs orders include the costs of two instructed and one instructing
   counsel

   
   

___________

SMUTS, J

I
agree

____________

HOFF, J

I
agree

_____________

MILLER, AJ

ON
BEHALF OF APPLICACNT: JJ GAUNTLETT SC, R. HEATHCOTE SC AND F. PELSER

Instructed
by Sisa Namandje & Co. Inc.

ON
BEHALF OF THE RESPONDENT: W. TRENGOVE SC, S. MARCUS

Instructed by: Government Attorney