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REPORTABLE
CASE NO.:
P.12/2009
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IN THE SUPREME COURT
OF NAMIBIA
In the matter between:
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THE
ATTORNEY-GENERAL OF NAMIBIA
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Applicant
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and
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THE MINISTER OF
JUSTICE
THE
PROSECUTOR-GENERAL
HANS PETER ROTHEN
SHARON LYNETTE
BLAAUW
OTNIEL PODEWILTZ
RALPH PATRICK
BLAAUW
GERRY WILSON
MUNYAMA
THEODOR ENGELBRECHT
ETTIENE JOHAN
WEAKLY
HEINZ DRESSELHAUS
NICOLAAS CORNELIUS
JOSEA
MATHIAS SHIWEDA
INEZ GASES
PAULUS ILONGA KAPIA
JAMES
WILLIAM CAMM
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First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth
Respondent
Fourteenth
Respondent
Fifteenth
Respondent
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Coram: SHIVUTE,
CJ, MARITZ, JA and STRYDOM, AJA
Heard on: 09
July 2010
Delivered on: 4
April 2013
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
SHIVUTE, CJ (MARITZ JA
AND STRYDOM AJA CONCURRING):
Introduction
In
the exercise of his powers to take all action necessary for the
protection and upholding of the Constitution pursuant to Art 87(c)
read with Art 79(2)
of the Namibian Constitution, the Attorney-General referred
questions regarding the constitutionality of the provisions of ss
245 and 332(5) of the Criminal Procedure Act 51 of 1977 (hereafter
jointly referred to as 'the impugned provisions') to this Court for
determination. The Attorney-General therefore petitioned the Court
in terms of s 15 of the Supreme Court Act 15 of 1990
for it to assume jurisdiction as a court of first instance and to
determine the constitutional issues. In the petition, the
Attorney-General submits that the impugned provisions were
fundamental to the prosecution of persons accused of fraud and to
the prosecution of the directors or servants of corporate bodies
under prescribed circumstances; that the constitutionality of the
impugned provisions had been challenged in a number of pending
matters before the High Court; and that, unless the multiple
challenges raised in those matters were once and for all determined
by the Supreme Court, delays were likely to be experienced in the
proceedings involving some of the respondents and the process may
result in an undesirable multiplication of individual appeals or
attempts to have the same issues determined in separate substantive
trials. He therefore urges that it is in the interests of justice
that this Court finally determines the constitutionality of the
impugned provisions at a single hearing to set a binding precedent
in pending and future prosecutions.
After consideration of
the petition and affidavits lodged in support thereof by some of the
respondents, we determined that, by virtue of its urgency and the
public as well as constitutional importance of the questions raised
therein, the application is of such nature as to justify the
exercise of the Supreme Court's jurisdiction as contemplated in s 15
of the Supreme Court Act. The Attorney-General, as applicant in the
process, was accordingly given leave to seek the determination of
the constitutionality of the impugned provisions by application,
brought on notice of motion to all the respondents cited in the
petition and such other respondents as may have an interest in the
relief prayed for. A number of further procedural directions
regarding the prosecution of the application were also given. These
included a direction that the applicant should deliver an affidavit
in support of the application noting such facts or circumstances as
may support or challenge the constitutionality of the impugned
provisions and the interests of the respondents in the determination
thereof. He was also directed to lodge two sets of heads of
argument: one set in favour of the constitutionality of the impugned
provisions and the other set against it.
Accordingly, the
applicant has lodged the application on notice of motion as directed
seeking determination of the following questions:
'1. Whether or not sections 245 and
332(5) of the Criminal Procedure Act, No. 51 of 1977, as amended, are
unconstitutional on the contended grounds that the impugned
provisions:
in casting a reverse onus on an
accused person, expose such person to being convicted despite the
existence of a real doubt as to his or her guilt;
infringe an accused’s right (in
terms of Art 12(1)(d) of the Namibian Constitution) to be
presumed innocent until proven guilty according to law;
infringe an accused’s right to
a fair trial, privilege against self-incrimination and not to be a
compellable witness, in terms of Art 12(1)(a) and (f)
of the Namibian Constitution, and
(iv) further infringe any general
right to silence an accused may have under Art 12 of the
Constitution.
Whether any limitation imposed by
section 245 or 332(5) on any right to a fair trial recognised by Art
12 is authorised by the Constitution.'
The parties
The first respondent is
the Minister of Justice and the second respondent is the
Prosecutor-General of Namibia. From the affidavit deposed to by Dr
Albert Kawana, the Attorney General, in support of the Notice of
Motion, it emerged that the third to the fifteenth respondents are
indicted in criminal proceedings pending in the High Court of,
amongst others, the offences of fraud, alternatively theft and/or
corruption. Only the first, second, third, fourth, sixth, ninth and
tenth respondents gave notice of their intention to make submissions
- and were represented - at the hearing of the application. The
second respondent filed an affidavit (to which I shall advert later
in this judgment) setting out certain factual matters pertaining to
the function served by, and the need to retain the impugned
provisions.
On the instructions of
the Attorney-General, MrGauntlett SC, assisted by MrPelser, argued
for the contention that the impugned provisions were constitutional
while MrSemenya SC, assisted by MsA Platt, argued for the
proposition that the provisions were unconstitutional. MrBotes
contended for the unconstitutionality of the impugned provisions on
behalf of the third, fourth, sixth, ninth and tenth respondents. The
Court is indebted to counsel for the assistance rendered to it.
Constitutional
framework under which the impugned provisions are to be considered
It
is necessary to commence the enquiry before us with the
consideration of the historical context and the current
constitutional framework under which the impugned provisions are to
be considered. They were promulgated as part of the Criminal
Procedure Act, an enactment of the South African Parliament applied
as a code of criminal procedure both in the Republic of South Africa
and, what was referred to in the Act as 'the territory of South West
Africa'. At the time of its promulgation, the political,
socio-economic and constitutional landscape in Southern Africa was
vastly different to that which we see today. Most pertinent to the
historical context of the impugned provisions in this case is the
fact that they were passed in an era of 'parliamentary sovereignty'
when the legislative powers of the South African parliament was not
constrained by constitutionally entrenched fundamental rights and
judicial review. Most of its enactments were applied and enforced in
Namibia which, at the time, was occupied and de
facto
administered by South Africa. The constitutional landscape changed
dramatically with this country's Independence in 1990: It brought
with it Namibia’s liberation from South African occupation and
rule; the establishment of the Republic of Namibia as a sovereign,
secular, democratic and unitary State founded upon the principles of
democracy, the rule of law and justice for all under a Constitution;
the constitutional entrenchment of the fundamental rights and
freedoms of all persons
and the judicial power to enforce or protect those rights and
freedoms
– to mention a few of the changes most relevant to this
enquiry. In the interest of a smooth constitutional transition from
the legislative dispensation which prevailed under the predecessor
State and to avoid the obviously undesirable and potentially
devastating consequences which a statutory lacuna under a ‘clean
slate’ constitutional approach might have left immediately
after Independence, provision was made in Art 140 of the
Constitution for the continued application of existing laws in the
following terms:
‘Subject to this constitution,
all laws which were in force immediately before the date of
Independence shall remain in force until repealed or amended by Act
of Parliament or until they are declared unconstitutional by a
competent Court.’
The Criminal Procedure
Act under which the impugned provisions resort is one of the many
laws which were in existence immediately before Independence and
continued to be applied in this country after the event.
It
has also become necessary to restate the well-known general
principles relating to constitutional interpretation, with which all
counsel were in agreement and which are, in any event,
incontrovertible. The first principle is that the Constitution of a
nation is not to be interpreted like an ordinary statute. In his
characteristic eloquence, the late Mahomed AJ described the
Constitution as 'a mirror reflecting the national soul, the
identification of the ideals and aspirations of a nation; the
articulation of the values bonding its people and disciplining its
government'. The spirit and tenor of the Constitution must therefore
preside and permeate the process of judicial interpretation and
judicial discretion.
In keeping with the requirement to allow the constitutional spirit
and tenor to permeate, the Constitution must not be interpreted in
‘a narrow, mechanistic, rigid and artificial’ manner.
Instead, constitutional provisions are to be ‘broadly,
liberally and purposively’ interpreted so as to avoid what has
been described as the ‘austerity of tabulated legalism’.
It is also true to say that situations may arise where the generous
and purposive interpretations do not coincide.
In such instances, it was held that it may be necessary for the
generous to yield to the purposive.
Secondly, in interpreting constitutional rights, close scrutiny
should be given to the language of the Constitution itself in
ascertaining the underlying meaning and purpose of the provision in
question.
The
principal submission advanced on behalf of those respondents
contending for the unconstitutionality of the impugned provisions is
that similar provisions have been held to be unconstitutional by a
decision of the South African Constitutional Court, which decision
is contended to be persuasive authority for this Court to follow. As
regards this contention, while South African and other
jurisdictions' precedent may be persuasive authority for our Courts
under given circumstances, it is worth observing that after our
country’s Independence, Namibian Courts have developed a
reservoir of distinctly Namibian jurisprudence based on the
Constitution and Namibian law. Decisions of foreign courts that are
found to be persuasive due to the similarity of applicable
principles, provisions, issues and other circumstances relevant to
matters at hand may, of course, be followed by our courts on
principle rather than precedent. As far as reliance on South African
authorities in the interpretation of constitutional provisions is
concerned, it should be borne in mind that there are differences
between the wording of certain provisions of the Constitution and
the corresponding provisions in the South African Constitution. Our
Courts have rightly held that South African case law is not to be
followed where there are material differences between the provisions
in the respective constitutions.
Furthermore, even where the wording in a foreign constitution is
similar to that of a provision in the Constitution, caution should
be exercised when considering the constitutionality of the
provisions of a statute: Ultimately the meaning and import of a
particular provision of the Constitution must be ascertained with
due regard to the express or implicit intention of the founders of
the Constitution.
Furthermore, as a general proposition, whilst foreign precedent is a
useful tool to determine the trend of judicial opinion on similar
provisions in jurisdictions which enjoy open and democratic
societies such as ours, ultimately the value judgment that a
Namibian Court has to make in the interpretation of the provisions
of the Constitution in as much as they may impact on the impugned
provisions, must be based on the values and aspirations of the
Namibian society.
Submissions in favour
and against the constitutionality of the impugned provisions
It is with these
principles in mind that I proceed next to consider the arguments for
and against the constitutionality of the impugned provisions before
I deal with the constitutionality of the specific sections.
Counsel arguing for the
unconstitutionality of the impugned provisions principally contend
that they infringe the right to be presumed innocent recognised by
Art 12(1)(d) of the Constitution and that this right is
absolute and cannot be derogated from. Therefore, so the argument
proceeds, under no circumstances can an evidentiary burden be placed
on an accused to prove, on a balance of probabilities, particular
facts. In response to these contentions, Mr Gauntlett submits that
counsel contending for the unconstitutionality of the impugned
provisions have misconstrued the provisions of Art 12. He argues
that the true content of Art 12 is a fair trial. Art 12(1)(a)
is the dominant clause that provides for entitlement to a fair
trial. Art 12(1)(d) is a manifestation of the right to a fair
trial. The rights provided for under Art 12(1)(b) to (f)
should not be viewed as self-standing but rather as a manifestation
and expression of the overall right to a fair trial provision. Mr
Gauntlett contends furthermore that the list of the rights in Art
12(1)(b) – (f) is not exhaustive as suggested in
S v Van den Bergh. The concept of 'fair trial' in criminal
prosecutions is a flexible one; the requirements depend on the
circumstances of each particular case, and does not only involve the
rights and interests of the accused but also those of the State
representing the interests of society in general as well as those of
the victims of crime in particular. The public and victims of crime,
not accused persons only are also entitled to appreciate that trial
proceedings in a court of law are fair, and that their interests are
taken into account in the determination of punishment. Mr Gauntlett
argues that the use of the expression 'according to law' in Art
12(1)(d) means that in the context of the impugned
provisions, the Legislature may determine the scope and ambit of the
proof required to secure a conviction of a particular crime or
offence so long as the parameters are reasonable and do not negate
the essential content of the right to be presumed innocent until
proven guilty. It is therefore open to the Legislature to place an
evidentiary burden on an accused under certain circumstances so that
he or she should be required to establish particular facts. This
does not negate the content of the right to a fair trial. He
contends therefore that the impugned provisions are constitutional
and the Court should so find. In the event that the Court finds that
the words 'unless it is proved that' in s 332(5) place a legal
burden on an accused, he urges the Court to sever those words from
the subsection so that the provision places only an evidentiary
burden on an accused in line with the reasoning of Kentridge AJ in S
v Coetzee 1997 SA 527 (CC). In any event, it is counsel's
submission that the words 'or servant' in s 332(5) are too wide and
may bring within the reach of the provision those persons who may
not be in control of the corporation. He accordingly urges the Court
to excise those words from the subsection. Mr Gauntlett seeks to
rely on the following principal decisions for the proposition that
reverse onus provisions are constitutional: Freiremar SA v
Prosecutor-General of Namibia 1996 NR 18 (HC); S
vChogugudza1996 (1) ZLR 28 (H); S v Meaker 1998 (2) SACR
73 (WLD), and the minority judgment of Kentridge JA in Coetzee.These
cases will be dealt with more fully later on in this judgment.
Continuing with
counsel's submissions, as regards the contention that the right
conferred under Art 12 cannot be derogated from under any
circumstance, Mr Gauntlett argues that on a proper construction of
Art 24(3) upon which counsel contending for the unconstitutionality
of the impugned provisions rely, the derogation contemplated therein
relates to a situation when Namibia is in a state of national
defence or a period when a declaration of emergency is in force and
that it would therefore be untenable to argue that no limitations
whatsoever could be placed on Art 12 on the basis of the provisions
of Art 24(3).
Mr Semenya departed from
his written submissions in respect of the aspect of justification
for the derogation and made common cause with the contentions
originally advanced by Mr Botes in his written heads of argument and
later pressed by him in oral submissions that Art 12 is further
entrenched by Art 24(3) of the Constitution. The effect thereof is
that no derogation from the rights or freedoms referred to in the
Articles listed in Art 24(3) is permitted. Mr Semenya conceded that
the end result of his argument is that under the Constitution, it is
not at all permissible for legislation to create presumptions
against an accused. In other words, in counsel's submission, reverse
onus provisions in relation to certain elements of an offence or
crime are anathema to the Constitution. Mr Semenya continues to
argue that to contend as Mr Gauntlett does that Art 24 seeks to
protect derogation only in instances of state of emergency is in
effect to do considerable violence to the language of the Article in
question since the Article does not say so. He goes on to argue that
to derogate from the rights in the Articles listed in Art 24(3)
would 'in essence' be denying the essential content of those rights,
something that is not permissible under Art 22. For this proposition
Mr Semenya relies, as Mr Botes does, on the dictum of this Court in
the Corporal Punishment-matter, at 187I–188A where
Mahomed AJA, dealing with the interpretation of Art 8 of the
Constitution, made the following seminal observations:
'Although the Namibian Constitution
expressly directs itself to permissible derogations from the
fundamental rights and freedoms entrenched in chap 3 of the
Constitution, no derogation from the rights entrenched by art 8 is
permitted. This is clear from art 24(3) of the Constitution. The
State’s obligation is absolute and unqualified. All that is
therefore required to establish a violation of art 8 is a finding
that the particular statute or practice authorised or regulated by a
State organ falls within one or other of the seven permutations of
art 8(2)(b) set out above; "no questions of justification
can ever arise" (SieghartThe International Law of Human
Rights at 161 para 14.3.3).'
Mr Semenya maintains
that some of the foreign authorities relied upon by counsel
contending for the constitutionality of the impugned sections were
decided in constitutional frameworks markedly different from the
Namibian constitutional set up and should therefore not be followed.
He pointed out that the Chogugudza-case, for example,
relied upon by Mr Gauntlett, was decided against the backdrop of a
provision in s 18(13)(b) of the Constitution of Zimbabwe that
authorises the passing of legislation imposing a reverse onus,
something that the Namibian Constitution, according to the argument,
does not countenance at all. Section 18(13)(b) of the
Constitution of Zimbabwe 1980 as reflected in Chogugudza
provides as follows:
'Nothing contained in or done under
the authority of any law shall be held to be in contravention of-
(a) ...
(b) subsection (3)(a) to the extent
that the law in question imposes upon any person charged with a
criminal offence the burden of proving particular facts.'
Mr Semenya's submission
that s 18(13)(b) appears to permit legislation creating
reverse onus provisions is undoubtedly correct and falls to be
distinguished on that basis. The judgment in Chogugudza
nevertheless is instructive in another respect: It contains an
insightful analysis of the extent to which it is permissible for
legislation to create reverse onus provisions against an accused, a
relevant and important consideration in the enquiry before us. This
aspect will be dealt with further below.
MrBotes made common
cause with the arguments presented by Mr Semenya. He added, however,
that the impugned provisions violate ‘the cluster of rights to
a fair trial’ as enshrined in Art 12 of the Constitution.
These he highlighted to be the presumption of innocence entrenched
in Art 12(1)(d), the right not to be a compellable witness
against oneself provided for in Art 12(1)(f), and ‘the
general right to a fair trial in terms of Art 12 of the
Constitution'. MrBotes contended that the right to a fair trial
provided for under Art 12(1)(a) is broader than the list of
specific rights set out in paragraph (b) to (f) of
subsection (1) of Art 12. He contended that the list of those rights
is not closed and as such may be expanded upon by judicial
interpretation to give effect to the role of the courts in
interpreting the Constitution broadly, liberally and purposively. He
submitted forcefully - as Mr Gauntlett did - that the proposition in
Van den Berg at 46A that the legal maxim
expressiouniusestexclusioalterius (the express mention of one
thing excludes all others) applied to Art 12 and the finding therein
at 45J that the list of requirements of a fair trial in the Article
was therefore closed is erroneous and should not be followed. Also
relying on the dictum of Mahomed AJA intheCorporal
Punishment-case,Mr Botes argued that Art 12 is entrenched and,
given the express proscription in Art 24(3), may not be derogated
from. Mr Botes contended in relation to this sub-article that ‘the
state’s obligation in respect of the rights so entrenched is
absolute and unqualified and once a violation of any right so
entrenched is established no justification in terms of Art 22 of the
Constitution can ever arise'.
Does
Art 12(1)(d) permit limitations to the right to be presumed
innocent until proven guilty?
Art 12 provides as
follows and it has become necessary to quote it in its entirety:
‘Fair Trial
(a) In the determination of their
civil rights and obligations or any criminal charges against them,
all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court or Tribunal established
by law: provided that such Court or Tribunal may exclude the press
and/or the public from all or any part of the trial for reasons of
morals, the public order or national security, as is necessary in a
democratic society.
A trial referred to in Sub-Art (a)
hereof shall take place within a reasonable time, failing which the
accused shall be released.
Judgments in criminal cases shall be
given in public, except where the interests of juvenile persons or
morals otherwise require.
All persons charged with an offence
shall be presumed innocent until proven guilty according to law,
after having had the opportunity of calling witnesses and
cross-examining those called against them.
All persons shall be afforded
adequate time and facilities for the preparation and presentation of
their defence, before the commencement of and during their trial,
and shall be entitled to be defended by a legal practitioner of
their choice.
No persons shall be compelled to give
testimony against themselves or their spouses, who shall include
partners in a marriage by customary law, and no Court shall admit in
evidence against such persons testimony which has been obtained from
such persons in violation of Art 8(2)(b) hereof.
(2) No persons shall be liable to be
tried, convicted or punished again for any criminal offence for which
they have already been convicted or acquitted according to law:
provided that nothing in this Sub-Art shall be construed as changing
the provisions of the common law defences of “previous
acquittal” and “previous conviction”.
(3) 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.’
It appears to me that
the essential content of Art 12 is the right to a fair trial in the
determination of all persons’ ‘civil rights and
obligations or any criminal charges against them’ and that the
rest of the sub-articles, which only relates to criminal trials,
expounds on the minimum procedural and substantive requirements for
hearings of that nature to be fair. A closer reading of Art 12 in
its entirety makes it clear that its substratum is the right to a
fair trial. The list of specific rights embodied in Art 12(1)(b)
to (f) does not, in my view, purport to be exhaustive of the
requirements of the fair criminal hearing and as such it may be
expanded upon by the Courts in their important task to give
substance to the overarching right to a fair trial. To take but one
example: the right to present written and oral argument during a
hearing or trial is undoubtedly an important component of a fair
trial, but one searches in vain for it in Art 12. The contrary view
expressed in Van den Berg, i.e. that the list is exhaustive,
cannot be accepted as correct and should therefore not be followed.
I am fortified in this conclusion by the dictum of Kentridge
AJ in S v Zuma1995 (2) SA 642 (CC) at 651J–652Arelied
on by Mr Botes where the learned Acting Justice in interpreting s
25(3) of the South African Interim Constitution stated as follows:
‘The right to a fair trial
conferred by that provision is broader than the list of specific
rights set out in paragraph (a) to (j) of the subsection. It embraces
a concept of substantive fairness which is not to be equated with
what might have passed muster in our criminal courts before the
constitution came into force.'
Kentridge AJ went to
observe at 652C-D that when the South African constitution came into
operation, s 25(3) had required criminal trials to be conducted in
accordance with the ‘notions of basic fairness and justice’
and that it was then for all courts hearing criminal trials to give
content to those notions.
As is apparent from the
earlier summary of their submissions, much has been made by counsel
on both sides about the application and effect of Art 24(3) of the
Constitution on the issues at hand. Counsel advancing the
unconstitutionality of the impugned provisions strongly relied on it
for their contention that the right conferred under Art 12 may not
be derogated from under any circumstances. Mr Gauntlett on the other
hand, argues that on a proper construction of Art 24(3), the
prohibition against derogation or suspension of the fundamental
rights and freedoms contemplated therein applies only under
circumstances of a state of emergency or martial law and that it is
untenable to rely on the provision for the proposition that no
limitations whatsoever could be placed on Art 12 under different
circumstances.
There is merit in both
of the seemingly contrasting submissions advanced by counsel but, as
I shall presently show, if Art 24(3) is understood and applied in
its proper context, it is of limited assistance in adjudicating the
issues before us. For a determination of the ambit and application
of the proscription of a derogation referred to in Art 24(3), it has
become necessary to reproduce the entire Art 24 here. It reads:
'Article
24 Derogation
Nothing
contained in or done under the authority of Art 26 hereof shall be
held to be inconsistent with or in contravention of this
Constitution to the extent that it authorises the taking of measures
during any period when Namibia is in a state of national defence or
any period when a declaration of emergency under this Constitution
is in force.
(2) Where
any persons are detained by virtue of such authorisation as is
referred to in Sub-Art (1) hereof, the following provisions shall
apply:
(a) they
shall, as soon as reasonably practicable and in any case not more
than five (5) days after the commencement of their detention, be
furnished with a statement in writing in a language that they
understand specifying in detail the grounds upon which they are
detained and, at their request, this statement shall be read to them;
(b) not
more than fourteen (14) days after the commencement of their
detention, a notification shall be published in the Gazette stating
that they have been detained and giving particulars of the provision
of law under which their detention is authorised;
(c) not
more than one (1) month after the commencement of their detention and
thereafter during their detention at intervals of not more than three
(3) months, their cases shall be reviewed by the Advisory Board
referred to in Art 26 (5)(c) hereof, which shall order their release
from detention if it is satisfied that it is not reasonably necessary
for the purposes of the emergency to continue the detention of such
persons;
(d) they
shall be afforded such opportunity for the making of representations
as may be desirable or expedient in the circumstances, having regard
to the public interest and the interests of the detained persons.
(3) Nothing
contained in this Art shall permit a derogation from or suspension of
the fundamental rights or freedoms referred to in Arts 5, 6. 8, 9,
10, 12, 14,15,18,19 and 21(1)(a) (b), (c) and (e) hereof, or the
denial of access by any persons to legal practitioners or a Court of
law.'
Art 26, which defines
the exceptional circumstances under which certain fundamental rights
may be derogated from or suspended as contemplated in Art 24(1), is
part of Chapter 4 in the Constitution which deals exclusively with
the declaration of a state of emergency at a time of national
disaster or during a state of national defence or public emergency
threatening the life of the nation or the constitutional order. Art
24(1) provides, as already noted, that nothing done under the
authority of Art 26 shall be inconsistent with or in contravention
of the Constitution to the extent that it authorises the taking of
measures during any period of national defence or when a declaration
of a state of emergency under the Constitution is in force. As is
apparent from Art 24(3), no derogation from or suspension of the
fundamental rights or freedoms contained in a number of Articles
expressly specified therein (including Art 12) is permitted.
Furthermore, Art 24(2) makes provision for the rights of persons
detained during the state of emergency so as to ensure that such
persons enjoy their basic human rights during the period of
detention. These include the right to be furnished with a written
statement specifying the grounds of their detention;
the publication of a notice in the Gazette stating the fact of their
detention and giving the particulars of the provision of the law
authorising their detention;
the right to have their detention reviewed by the Advisory Board
referred to in Art 26(5)(c) within one month of their
detention and thereafter at intervals of not more than three
months;
the right to be released from detention should the Advisory Board be
satisfied that their continued detention ‘is not reasonably
necessary,’
and the right to be given an opportunity to make representations as
may be desirable or expedient in the circumstances.
It appears to me that
the purpose for the inclusion of some of these provisions in the
Constitution is undoubtedly due to the resolve of the founders of
our Constitution that the shameful chapter in our country's history
where persons were subjected to detention without trial or due
regard to their human rights does not manifest itself in any form in
an independent Namibia, not even in a state of national defence or
state of emergency. I have set out the provisions of Art 24 at
length to demonstrate that in my view, the threshold requirements
for the application of the non-derogation clause set out in Art
24(3) is a state of public emergency, state of national disaster and
martial law. I respectfully agree with the proposition put to
counsel during argument by my Brother Maritz JA that a careful
reading of Art 24 as a whole, makes it clear that the founders of
the Constitution were evidently anxious that, if the derogation or
suspension of certain fundamental rights would be permissible and
would be required in circumstances when Namibia is in a state of
national defence or any period when a declaration of emergency under
the Constitution is in force, it should nevertheless infringe upon
such rights as little as possible. This much is evident from the
provisions of Art 24(1). To paraphrase the language of Article 24:
Art 24(1) provides that nothing contained or done under the
authority of Article 26 (dealing with state of emergency, state of
national defence and martial law) shall be held to be inconsistent
with or in contravention of the Constitution to the extent that it
authorises the taking of measures during the period of a state of
national defence or state of emergency. Art 24(2) sets out specific
measures aimed at ensuring that persons who have been detained
during the state of emergency are given substantial protection of
the law. Art 24(3) then proceeds to provide that certain specified
rights or freedoms may not, nevertheless, be derogated from or
suspended at all. The language used, as we have seen, in Art 24(3)
is 'nothing contained in this Article shall permit a derogation or
suspension of the fundamental rights or freedoms referred to in
Articles...' and goes on to list those Articles. Viewed in this way,
Art 24(3) is, in effect, a form of a proviso put at the end as
opposed to the beginning of the Article.
Mr Gauntlett is
therefore correct that, if considered in its proper context, the
non-derogation clause finds immediate application only during any
period when Namibia is in a state of national defence or any period
when a declaration of emergency under the Constitution is in force.
But, even if the non-derogation clause in Art 24(3) is to be
understood in that context, is it not at the very least a powerful
indication that the rights and freedoms mentioned therein may also
not be derogated from in any other circumstance? If those rights and
freedoms may not even be derogated from during a state of emergency
or national defence, Mr Semenya asked rhetorically during argument,
why should the Constitution countenance a derogation at a time of
peace? Why then was the sub-article expressly relied on by this
Court when it held in the cited quotation from the Corporal
Punishment-matterthat no derogation from the provisions of Art 8
was permissible?
The language of the
Constitution differentiates between the ‘limitation of
fundamental rights and freedoms’
and a ‘derogation from or suspension of...fundamental rights
or freedoms’ as contemplated in Art 24.
Fundamental rights and freedoms contemplated by Chapter 3 of the
Constitution may only be limited ‘(w)henever or wherever in
terms of this Constitution... (it) is authorised’.
Constitutional authorisation for a permissible limitation may
therefore be ascertained with reference to time or place or both.
Generally, the ‘place’ where an authorised limitation of
a fundamental right or freedom is found, is in the Article
entrenching and circumscribing the content and extent of the right
or freedom in question. So, for example, the permissible scope of
authorised limitations to the fundamental freedoms enumerated in Art
21(1) is prescribed in sub-art (2) thereof.
Ultimately, the ambit of a protected right or freedom must also be
determined with reference to the limitation of that right as
authorised by the Constitution. As this Court held in Africa
Personnel Services
‘the restrictions authorised by Art 21(2) 'must be used only
to establish the proper boundaries of the protected right...'So
regarded, the difference between a 'permissible limitation' of, and
a 'permissible derogation'from, a fundamental right or freedom
becomes clear: the prohibition against the derogation from or
suspension of fundamental rights and freedoms expressly referred to
in Art 24(3) relates to derogations extending beyond the scope of
permissible limitations (if any) authorised by the Constitution in
respect of the specific rights. To determine whether a fundamental
right or freedom has been derogated from contrary to the
proscription in Art 24(3), the content and ambit of the fundamental
right or freedom under consideration must first be determined with
reference to the permissible limitations authorised by the
Constitution and it must then be ascertained whether the derogation
thereof further diminishes or detracts from the right or freedom so
defined. This may perhaps best be illustrated by an example:
Article 24(3) makes it
clear that the permissible derogations under sub-art (1) and
regulated derogations permitted under sub-art (2) may not be
construed as permitting a derogation from or suspension of, amongst
others, Art 21(1)(a), (b), (c) and (e)
entrenching the right to freedom of speech and expression; freedom
of thought, conscience and belief; freedom to practice any religion,
and freedom of association. In terms of Art 21(2), these freedoms
may be limited by law ‘in so far as such law imposes
reasonable restrictions on the exercise of the rights and freedoms
conferred to by the said sub-article, which are necessary in a
democratic society and are required in the interests of the
sovereignty and integrity of Namibia, national security, public
order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence’. A law which limits
any of those fundamental freedoms, whether promulgated at a time of
peace or during any period when Namibia is in a state of emergency
or national defence, will not be unconstitutional if the restriction
of the freedom concerned falls squarely within the narrow scope of
permissible limitations defined in Art 21(2). It will only
constitute an impermissible derogation if it diminishes the freedom
in a manner extending beyond the constitutionally permissible
limitations.
Like Art 21(1)(a),
(b), (c) and (e), Art 12(1)(d) is also
one of the Articles expressly mentioned in the non-derogation clause
of Art 24. Drawn to its logical conclusion, the effect of the
argument advanced by counsel contending for the unconstitutionality
of the impugned provisions is that, even if a limitation to the
presumption of innocence is authorised by the language used in Art
12(1)(d), such limitation cannot be countenanced, given the
provisions of Art 24(3) precluding a derogation. Such an approach is
constitutionally untenable. It bears no consideration to the fact
that the scope of a fundamental right or freedom must be determined
with reference to the constitutionally authorised limitations, if
any, of that right. It is only when the content of that right or
freedom, so determined, is diminished beyond the scope of
constitutionally permissible limitations that it will constitute a
derogation contemplated in Art 24.
It is also in this
context that the dictum of Mahomed AJA in the Corporal
Punishment-case on the impermissibility of a derogation of the
right to dignity in Art 8(1) and the guarantee against ‘torture
or cruel, inhuman or degrading treatment or punishment' in Art
8(2)(b) must be considered. Sub-art (1) of Art 8, which is
also one of the Articles expressly mentioned in Art 24(3), provides:
‘The dignity of all persons shall be inviolable’. Both
sub-arts (1) and (2) allow for no limitations. On the contrary, the
word ‘inviolable’ proclaims no exceptions. It may
therefore not be derogated from in any way or at any time: not at
times during a state of emergency or national defence and, by parity
of reasoning, even less at the time of peace. The contents of the
right to dignity being constitutionally inviolable, it was apposite
for the Court to refer under the circumstances to the fact that it
could not even be derogated from during a state of emergency or
national defence as contemplated in Art 24(3). Where the Court
stated in the dictum relied upon that 'the State's obligation
is absolute and unqualified', that statement must be understood in
the context of the Court's earlier finding that dignity was
inviolable and that no justification for the violation of the right
to dignity through torture or cruel, inhuman or degrading treatment
'can ever arise'.
It is for these reasons
that I remarked earlier in the judgment that, although the
contrasting contentions advanced by all counsel have some merits,
their reliance on Art 24(3) is of limited assistance in determining
the issues before the Court. Fundamental to the enquiry is whether
the Constitution authorises a limitation to the presumption of
innocence entrenched in Art 12(1)(d). Unlike the provisions
of some of the constitutions cited to us by counsel, the Namibian
Constitution does not have a general limitation clause which
restricts the scope of some or all of the fundamental rights and
freedoms entrenched therein. The approach adopted by the founders of
our Constitution is different: on the one end of the spectrum are
those fundamental rights and freedoms which are inviolable, such as
the rights to life and dignity entrenched in Articles 5 and 8. On
the other end of the spectrum are those rights and freedoms where
limitations are authorised in the clearest of language and the
extent of those limitations are extensively defined, such as in Art
21 entrenching fundamental freedoms. In between those rights and
freedoms at either end of the spectrum, are a number of other rights
and freedoms of which the scope and application is qualified by
phrases such as ‘according to law’, ‘in accordance
with law’ or ‘according to procedures established by
law’.
I turn to this aspect next.
It will be recalled that
Art 12(1)(d) reads in part that: 'All persons charged with an
offence shall be presumed innocent until proven guilty according
to law.' In Alexander v Minister of Justice and Others 2010
NR 328 (SC), this Court had occasion to deal with the meaning of the
not too dissimilar phrase ‘according to procedures established
by law’ used in Art 7 of the Constitution which provides: ‘No
persons shall be deprived of personal liberty except according to
procedures established by law.' It concluded at para 119 after a
lengthy examination of similar phrases used in the same context in
many other constitutions that the phrase indicates that the Article
in question is not absolute as it authorises the limitation of the
right to liberty embodied therein. As previously stated, the Court
went on to caution that where such limitation is permissible, it
should be limited to what is necessary to achieve the object for
which the limitation was enacted, because Art 22 prohibits
limitations that negate the essential content of the right in
question.
An almost identical
phrase ‘in accordance with law’ is employed in Art 13(1)
which deals with limitations on the right to privacy. The
sub-article reads:
‘No
persons shall be subjected to interference with the privacy of their
homes, correspondence or communications save as in
accordance with lawand
as is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country,
for the protection of health or morals, for the prevention of
disorder or crime or for the protection of the rights or freedoms of
others.’ (Emphasis is mine)
It is clear from a
reading of the sub-article that the phrase ‘in accordance with
law’ contemplates the imposition of a limitation on the
guarantee to persons of the privacy of their homes, correspondence
or communications and that the words which follow immediately on it
are intended to define the permissible extent of the contemplated
limitation - in much the same manner as the Art 21(2) limitations to
the fundamental freedoms enumerated in Art 21(1) are authorised.
The expression
'according to law' in Art 12(1)(d), which, for all intents
and purposes, conveys exactly the same ordinary meaning as the
phrase ‘in accordance with law’ employed in Art 13(1),
serves the same purpose: it allows by implication for the limitation
of the right presumption of innocence and implies a measure of
flexibility to allow the Legislature to determine substantive and
procedural frameworks in the public interest in terms of which a
person may be proved guilty 'according to law'. This implicit
flexibility is necessary if a balance is to be struck between the
rights of the individual to be presumed innocent and the State's
obligation to protect the interest of the public. Mr Gauntlett is
entirely correct in his submission that the concept of a fair trial
is a flexible one, involving as it does, not only the interest of
the accused but also those of victims of crime and the public
interest at large. The concept of balancing the interest of victims
of crime with the rights of the accused though not new has attained
a prominent role in the criminal justice system of late and has thus
become part of the social milieu intrinsic in the notion of fair
trial.
It follows also from
what has been stated above that the dictum in the Corporal
Punishment-case cannot be authority for the proposition that
there can never be a permissible reverse onus provision in our law.
In concluding, as I
have, that the phrase ‘according to law’ in Art 12(1)(d)
by implication authorises a limitation of the right to be presumed
innocent, I am mindful that Dickson CJC (who wrote for the majority
in R v Oakes (1986) 26 DLR (4th) 200 which was followed by
the High Court in the Freiremar-case in formulating the
‘rational connection test’ for determining the validity
of a reverse onus provision) holds a different view on the
interpretation of that phrase in s 11(d) of the Canadian Charter of
Rights and Freedoms (the equivalent of Art 12(1)(d) of our
Constitution). He questioned the appropriateness of reading the
phrase as permitting statutory limitations (or ‘exceptions’,
as it is referred to in the judgment). His approach, it must be
noted, differs from the interpretation of an identical phrase by the
Supreme Court of Canada in s 2(f) of the Canadian Bill of Rights (a
statutory equivalent of s 11(d) of the Charter) under an earlier
constitutional dispensation. In the earlier cases of R v Appelby
(1971) 21 DLR (3d) 325 and R v Shelly (1981) 59 CCC (2d) 292
that Court held that the phrase ‘according to law’ which
qualified the right to be presumed innocent under s 2(f) of the
Canadian Bill of Rights allows for ‘statutory exceptions’
to the presumption. The later interpretational approach adopted by
the same court in the Oakes-case must, of course, be
understood in the context of the constitutional developments in that
country: prior to the implementation of the Canadian Charter of
Rights and Freedoms, fundamental rights and freedoms (including the
right to be presumed innocent until proven guilty) were protected in
the Canadian Bill of Rights, an Act of Parliament promulgated for
the recognition and protection of human rights and fundamental
freedoms. The Bill did not have a general limitation clause
authorising the limitation of the specific rights and freedoms set
out therein, as the Canadian Charter now has. Given the different
nature of the two instruments, the Bill being a statute and the
Charter being part of Canada’s constitution,
Dickson CJC held that earlier jurisprudence on interpretation and
application of the Bill of Rights (such as expounded in the cases of
Appelby and Shelly) no longer constitutes binding
authority when it comes to the interpretation of the Canadian
Charter. Reasoning that adoption of the statutory exception proviso
based in Appelby’s-case on the phrase ‘according
to law’ in s 2(f) of the Bill of Rights would subvert the very
purpose of the entrenchment of the presumption of innocence in the
Canadian Charter, the court preferred to keep s 11(d) and s 1 of the
Charter distinct for analytical purposes and to adopt a two-stage
process in determining the constitutionality of reverse onus
provisions: a strict approach on the question whether a reverse onus
provision detracts from the presumption of innocence in s 11(d) of
the Charter and if so, to determine whether it falls within the
permissible ambit of the general limitation authorised by s 1 of the
Charter. This deviation from the earlier approach of the same court
under the Bill of Rights, Lord Woolf
noted, was understandable given the wording of the express
limitation in s 1 of the Canadian Charter. I respectfully agree with
his observation. Section 1 of the Canadian Charter defines the
permissible ambit of limitations on the fundamental rights and
freedoms set forth in the various sections that follow in the
following terms:
‘The
Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.’
It follows, logically in
my view, that the phrase ‘according to law’ in s 11(d)
of the Charter must be read subject to the general limitation
authorised in s 1 thereof. It cannot be understood to allow for
limitations on grounds or criteria other than those required in
terms of s 1 of the Charter.
These constitutional and
jurisprudential developments in Canada were also extensively
discussed and commented on by the High Court in Van Der
Berg’s-case.O’Linn
J concluded
from his review of the Canadian authorities that ‘in the
absence of a provision such as s 1 (of the Canadian Charter), the
Canadian Supreme Court may very well have persisted in the approach
in their Bill of Rights jurisprudence such as in the Appleby
and Shelly decisions…’. I do not find it
necessary to comment on the correctness of the High Court’s
analysis and conclusion in this regard. Suffice it to re-emphasise
that the reasoning in the Oakes-matter (as further developed
in subsequent Canadian jurisprudence) is based on a constitutional
structure for the protection of human rights and freedoms subject to
a general limitation clause. The constitutional model and language
adopted by the Canadian Charter differs substantially from the
structure and language used to authorise the limitation of certain
fundamental rights and freedoms by law under the Namibian
Constitution. I have already demonstrated with reference to similar
phrases elsewhere in Chapter 3 of the Constitution that the phrase
‘according to law’ in Art 12(1)(b) by implication
permits limitations on the right to be presumed innocent until
proven guilty.
In
what follows, I shall briefly refer to jurisprudence in other
jurisdictions where similar phrases are interpreted and the approach
to be adopted in determining the permissible extent of reverse onus
provisions is discussed. I do so to emphasise that Namibia will not
be unique in this approach. The first case in point is a
constitutional matter decided by the Judicial Committee of the Privy
Council in the matter concerning the interpretation of art 11(1) of
the Hong Kong Bill of Rights. Art 11(1) of the Hong Kong Bill of
Rights, in the terms substantially similar to the provisions of our
Art 12(1)(d)
provides that '(e)veryone charged with a criminal offence shall have
the right to be presumed innocent until proved guilty according to
law.' The position in Hong Kong is also similar to ours in that
their Bill of Rights does not contain a general limitation clause
and no express provision for a reverse onus has been made. The
appeal in the matter of Attorney-General
of Hong Kong v Lee Kwong-kutwent
before the Judicial Committee of the Privy Council. The first
respondent in the appeal was charged in Hong Kong with contravening
s 30 of the Hong Kong Summary Offences Ordinance which provided that
a person charged with 'having in his possession or conveying in any
manner anything which may be reasonably be suspected of having been
stolen or unlawfully obtained' and who was unable to 'give an
account to the satisfaction of a magistrate, how he came by it'
committed an offence. The trial magistrate dismissed the case on the
basis that s 30 was inconsistent with art 11(1) of the Hong Kong
Bill of Rights.
The issue before the
Judicial Committee was whether a reverse onus provision infringed a
right in the Hong Kong Bill of Rights to the same extent as Article
6(2) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (the Convention on Human Rights). It was
held inter alia that the reverse onus was permissible within
certain limits. Giving the opinion of the Board, Lord Woolf stated
at 949c-d in relation to the case law of other jurisdictions to
which the Board was referred in argument:
'Placing to one side for the moment
the decisions in Canada, all of the many decisions in different
jurisdictions to which their Lordships were referred recognise that
provisions similar to art 11(1) are always subject to implied
limitations so that a contravention of the provisions does not
automatically follow as a consequence of a burden on some issues
being placed on a defendant at a criminal trial.'
His Lordship went on to
remark at 954g-h that while the Hong Kong judiciary should be zealous
in upholding an individual's rights under the Bill of Rights, it was
also necessary to ensure that disputes regarding the effect of the
Bill of Rights are not allowed to get out of control. The issues
arising out of the Bill of Rights should be approached with realism
and kept in proportion. If that was not done, the Hong Kong Bill of
Rights would become a source of injustice and would be debased in the
eyes of the public. He concluded at 954j in fine-955a as
follows:
'In order to maintain the balance
between the individual and the society as a whole, rigid and
inflexible standards should not be imposed on the legislature's
attempts to resolve the difficult and intransigent problems with
which society is faced when seeking to deal with serious crime... It
would not assist the individuals who are charged with offences if,
because of the approach adopted to 'statutory defence' by the courts,
the legislature, in order to avoid the risk of legislation being
successfully challenged, did not include in the legislation a
statutory defence to a charge.'
I respectfully associate
myself with the above sentiments. Lord Woolf thus acknowledged that
situations may arise where the strict application of the principle
that the prosecution must prove the guilt of an accused beyond
reasonable doubt may be deviated from and gave an example where this
may be done and why. He reasoned at 950c-h and I find it necessary to
quote in extenso:
'There are situations where it is
clearly sensible and reasonable that deviations should be allowed
from the strict application of the principle that the prosecution
must prove the defendant's guilt beyond reasonable doubt. Take an
obvious example in the case of an offence involving the performance
of some act without a licence. Common sense dictates that the
prosecution should not be required to shoulder the virtually
impossible task of establishing that a defendant has not a licence
when it is a matter of comparative simplicity for a defendant to
establish that he has a licence... Some exceptions will be
justifiable, others will not. Whether they are justifiable will in
the end depend upon whether it remains primarily the responsibility
of the prosecution to prove the guilt of an accused to the required
standard and whether the exception is reasonably imposed,
notwithstanding the importance of maintaining the principle which art
11(1) enshrines. The less significant the departure from the normal
principle, the simpler it will be to justify an exception. If the
prosecution retains responsibility for proving the essential
ingredients of the offence, the less likely it is that an exception
will be regarded as unacceptable. In deciding what are the essential
ingredients, the language of the relevant statutory provision will be
important. However, what will be decisive will be the substance and
reality of the language creating the offence rather than its form. If
the exception requires certain matters to be presumed until the
contrary is shown, then it will be difficult to justify that
presumption unless, as was pointed out by the United States Supreme
Court in Leary v US (1969) US 395 6 at 36, "it can at
least be said with substantial assurance that the presumed fact is
more likely than not to flow from the proved fact on which it is made
to depend".'
See
also the decision of the Hong Kong Court of Appeal in R
v Sin Yau Ming [1992]
HKCLR 127 (CA)
where one of the presumptions with which the court was concerned
provided that if the accused was proved to have had more than a
certain quantity of dangerous drugs, it would be presumed, until the
contrary was proved that he had such drugs with intent to
trafficking therein. Although on the facts the court did not uphold
the presumption on the ground that the volume of drugs required to
trigger the presumption was too small, it nevertheless held that a
mandatory presumption of fact was compatible with the presumption of
innocence if it could be shown, with due regard to the purpose of
the legislation, that the fact to be presumed rationally and
realistically follows from the proved fact and that the presumption
meets the test of proportionality.
I
move next to consider the jurisprudence of the European Court of
Human Rights. Art 6(2) of the European Convention on Human Rights
provides that 'every one charged with a criminal offence shall be
presumed innocent until proven guilty according to law.' As far ago
as 1981, in the well-known decision of Lingens
v Austria
(1981) 4 EHRR 373 at 390-391, the European Court of Human Rights in
the case that concerned an onus provision casting a legal burden on
an accused to prove the truth of a statement when charged with
criminal libel, held that the Convention on Human Rights does not
prohibit rules which transfer to the defence the burden of proving
or disproving an element of an offence, provided that the overall
burden of establishing guilt remains with the prosecution. In
Salabiaku
v France
(1988) 13 EHRR 379 at para 28 the court cautioned, however, that the
article requires Contracting States to confine presumptions within
reasonable limits which take into account the importance of what is
at stake and maintain the rights of the defence. I find the above
decisions of the European Court to be of valuable guidance in the
interpretation of the provisions of Art 12 and the determination of
the issues before us. I do recognize, of course, that the European
Court is not concerned 'directly with the validity of domestic
legislation but whether, in relation to a particular complaint, a
state has in its domestic jurisdiction infringed the rights of a
complainant under the European Convention...'
Against the backdrop of
the need to comply with the Convention on Human Rights and not to
infringe the Human Rights Act, 1998 recent case law of the courts in
England and Wales also shows a trend to uphold reverse onus
provisions within certain limits. The approach is summarised in
Phipson on Evidence 17thed (Sweet & Maxwell
2010), by Malek (ed) at 6-36, where the learned editor, having
distilled the principles to be applied from leading decisions of the
House of Lords, described the position in the following terms:
'In assessing reverse onus provisions,
the court will look to whether the statute imposes a persuasive or
merely evidential burden; whether it is mandatory or discretionary;
whether it relates to an essential element of the offence or only to
an exemption or proviso. Some of the issues to consider in
determining whether a mandatory persuasive burden is imposed is inter
alia what the prosecution must prove before the onus on the accused
arises and the extent to which the factual matter to be proved by the
accused is readily provable by him as a matter within his own
knowledge or to which he has ready access. An overriding
consideration is that it is Parliament's constitutional role to
decide, as a matter of policy, what should be the constituent
elements of a criminal offence. It is not for the court to second
guess Parliament's choice in this regard.'
In line with this
approach to reverse onus provisions it was held, for example, in SA
(A Juvenile) v DPP [2003] QB 137 that a presumption placing an
onus on an accused to show good reason or lawful authority for
carrying a 'bladed or sharply pointed article other than a small
pocket knife' was justified. The presumption was held to be striking
a fair balance between the interests of society and the fundamental
rights of an accused. In Attorney-General's Reference (No 4 of
2002) [2004] UKHL 43, one of the reverse onus provisions in
issue required the accused to prove that he did not participate in a
proscribed organisation. A majority of the House of Lords held that
the section in question had to be read down so as to impose only an
evidential burden. Reverse onus provisions with regard to knowledge
on the part of the accused were also considered and upheld by the
courts of England and Wales in less serious criminal cases which I
do not find necessary to detail here and in not doing so, I mean no
disrespect to counsel who argued for the constitutionality of the
impugned provisions for the many helpful examples he gave in his
written heads. Suffices it to say that the Strasbourg jurisprudence
and English case law evince a trend (postdating Coetzee in
the case of English case law) permitting reverse onus provisions
within certain limits, as previously mentioned. This trend, as I
shall later show, is eminently in accord with Kentridge AJ's
approach in Coetzee. I find this approach highly persuasive
and illuminating and would therefore recommend it to the courts of
this country.
It remains next to
consider whether the impugned provisions amount to a limitation of
the rights as contended for and if so whether such limitation falls
within the ambit of what is authorised by the Constitution.
As a precursor to the
determination whether the impugned provisions are constitutional or
not, I wish to make the following general observations. The Court is
being called upon to determine the constitutionality of the impugned
provisions at the time when crime, particularly commercial crime,
has continued to increase to the extent that the hard-won gains the
country and the people have made in the consolidation of the
country's constitutional democracy and ingraining the values which
our Constitution articulates are in danger of being eroded. We also
live in the times that the roles played by corporations and
particularly by those behind the corporate veil have come in sharp
focus because of the overarching influence of corporations on a
country's economy in particular and their impact on the stability of
the world economic order in general. In her affidavit Mrs Olyvia
Martha Imalwa, Prosecutor-General, also referred to deleterious
effects crime has on the country's development and provides
statistics to demonstrate her point that the offences of fraud and
theft in Namibia had escalated to unacceptable levels. She says that
the impugned provisions serve an important purpose in the
prosecution of commercial crimes since they require the accused in
those cases to deal with matters that are peculiarly within their
knowledge and which are difficult or impossible for the prosecution
to establish. She points out the simple truth that economic crimes
erode the development of a vibrant and reliable economy; that such
economy is essential to the growth of business and employment in the
country, and that the impugned provisions seek to assist her office
to combat those crimes on behalf of society. These considerations
are undoubtedly worthy and must inform the Court in the judgment
that it may be called upon to make in the determination of whether
or not the impugned provisions are constitutional. Against this
brief background, it is proposed then to consider the impugned
provisions starting with s 245.
Section 245 of the
Criminal Procedure Act, 1977
It is trite that s 245
is part of the Criminal Procedure Act, which as previously mentioned
predates the country’s Independence. As already stated, the
Act has remained on our statue books after Independence by virtue of
Art 140(1) of the Constitution. Although the Act has been amended
from time to time since Independence, the impugned provisions have
not been amended and have continued to be applied until the current
challenge. As mentioned before, identical or substantially the same
provisions in the same Act were the subject matter of constitutional
litigation in South Africa where they were declared unconstitutional
by the majority of that country’s Constitutional Court in
Coetzee’s-case.A reading of thearguments advanced by
counsel contending for the unconstitutionality of the impugned
provisions reveals a heavy reliance on the majority judgment in
Coetzee for the proposition they contend for.
Section 245 reads as
follows:
'Evidence
on charge of which false representation is element
If
at criminal proceedings at which an accused is charged with an
offence of which a false representation is an element, it is proved
that the false representation was made by the accused, he shall be
deemed, unless the contrary is proved, to have made such
representation knowing it to be false.'
As the Attorney-General
and the Prosecutor-General rightly point out in their affidavits,
the section is fundamental to the prosecution of cases of fraud and
theft by false pretences where knowledge of the falsity of the
representation by the person making it is an essential element of
the crime. The section is said to contain a type of a reverse onus
presumption the main function of which was explained by Langa J in S
v Coetzee at para 12 as follows:
‘Its
purpose is to facilitate the task of the State in the prosecution of
crimes such as fraud and theft by false pretences by relieving the
prosecution of the need to prove that the accused knew that the
misrepresentation was false at the time that he or she made it. The
presumption has been held to be applicable to instances in which the
representation relates to facts which are objectively ascertainable.’
The
successful prosecution of the crime of fraud would normally require,
amongst others, proof by the State beyond reasonable doubt that the
accused made a misrepresentation knowing it to be false.
The enactment of the presumption has been substantiated on the basis
that it deals with matters that are peculiarly within the knowledge
of the accused and that proving the state of mind of the accused in
the context of a false representation is much more difficult than in
other cases.
The effect of the section is that, in a prosecution where an accused
charged with a crime in which knowledge of the falsity of the
representation is an element, the presumption becomes operative once
the State has proved that the accused had made the false
representation. The onus is then on the accused to prove on a
balance of probabilities that he or she did not know at the time
that the representation was false.
The principal basis on which the presumption is being challenged is
that, in the absence of such proof by the accused to discharge the
onus on him or her and in the circumstances where the probabilities
are, for example even, the court would be obliged to convict
‘notwithstanding the existence of a reasonable doubt regarding
the state of mind of the accused.’
Whether the statutory reverse onus presumption created by s. 245
falls within the ambit of permissible limitations on the
constitutional presumption of innocence is what must be considered
next.
Reverse
onus presumptions and evidential presumptions are not necessarily
unconstitutional. This much is clear from decisions in this
jurisdiction such as, for example, Freiremar,
Van den Berg and
S v Shikunga1997
NR 156 (SC).
The
same approach is also evident from judgments in other jurisdictions
within the region, such as inChogugudza,
Meakerand
Zumacases.
It has become necessary to consider these cases in some detail. The
Freiremar-matter
concerned the constitutionality of the proviso to s 17 of the Sea
Fisheries Act, 58 of 1973,
that provided as follows:
'(1) The court convicting any person
of any offence in terms of this Act may, in addition to any other
penalty it may impose declare any fish, sea-weed, shells or implement
or any fishing boat or other vessel or vehicle in respect of which
the offence was committed or which was used in connection with the
commission thereof, or any rights of the convicted person thereto, to
be forfeited to the State,...: Provided that such a declaration of
forfeiture shall not affect any rights which any person other than
the convicted person may have to such implement, boat, vessel or
vehicle, if it is proved that such other person took all reasonable
steps to prevent the use thereof in connection with the offence...'
Drawing
from Canadian cases considering the general limitation clause in art
1 when applied to the presumption of innocence in Art 11(d) of the
Canadian Charter of Rights and Freedoms, Strydom JP observed that
the fact that a reverse onus is placed on an accused does not
necessarily make the reverse onus provision unconstitutional. Much
will depend on whether the provision in question satisfies the
'rational connection' test. Expanding on the application of the
rational connection test in cases applied by the High Court of
Namibia, Strydom JP stated
that:
'In my opinion the test as applied in
these cases is a practical one which would require an accused to
speak up in circumstances where an explanation would be required
because of the presumption raised by the proved facts and because of
the personal knowledge of the accused. However, where the proven
facts are not such that an explanation is readily required the
placing, in those circumstances, of an inverted onus on an accused
will require an accused to prove his innocence which will be contrary
to the Constitution containing a provision as that set out in art
12(1)(d) of the Namibian Constitution.'
In
Van
den Berg’s-case
the High Court grappled with the question whether the reverse onus
provision in s 35A of the Diamond Industry Protection Proclamation,
1967, violated the presumption of innocence Art 12(1)(d)
of the Constitution. Paragraph (b) of the section provided that if
‘the person charged contends that any article or substance,
the subject of the charge is not a rough and uncut diamond, the
burden
of proving that...such article or substance is not a rough or uncut
diamond...shall
lie upon the person charged.’ After an extensive analysis of
relevant Canadian, United States and Namibian authorities as to
presumptions imposing burden of proof on an accused and a
comparative examination of Art 12(1)(d),
the Court extracted guidelines to be applied in determining the
constitutionality of the reverse onus provision and concluded
that the impugned presumption could not survive the rational
connection test because it failed to mount the first leg, i.e.
because there was no provision for a fact to be proved by the State
with which the presumed fact could be connected. It held that the
provision placed the onus squarely on the accused to prove the
absence of an element of the offence: the element being that the
diamonds bought, sold or possessed were rough and uncut. The Court
thereafter proceeded to consider the constitutionality of the
presumption in paragraph (a) of the section which placed a burden on
the person charged to prove that he or she was the holder of a
licence, permit or authority or was otherwise entitled or authorised
to be in possession of, or authorised to buy, receive, sell, offer
for sale, deal in, barter, pledge or otherwise dispose of or
deliver, or to import or export any diamond. Applying the guidelines
earlier referred to, the Court concluded that the reverse onus
presumption in para (a) of the section was constitutional.
In Chogugudza,
the Supreme Court of Zimbabwe was concerned with the question
whether or not the presumption created under s 15(2)(e) of that
country's Prevention of Corruption Act whereby an onus was cast on a
public officer who is shown to have done an act favouring a person,
to show that he or she did not do the act for the purpose of showing
favour or disfavour to that person was constitutional. Writing for
the unanimous court, Gubbay CJ analysed Southern African case law
dealing with the extent to which it is permissible for legislation
to create reverse onus provisions and distilled the following
principles therefrom:
'(a) The presumption must not place
the entire onus on the accused. There is always an onus on the State
to bring the accused within the general framework of a statute or
regulation before any onus can be placed upon the accused for his
defence.
(b) The presumption may relate to a
state of mind, that is, mensrea, where the element of the
crime is a fact exclusively or particularly within the knowledge of
the accused.
(c) A presumption will be regarded a
reasonable if it places an onus upon the accused where proof by the
prosecution of such a specific fact is a matter of impossibility or
difficulty; whereas such fact is well known to the accused;
(d) The presumption
must not be irrebuttable.'
(Reference to authorities omitted)
The Supreme Court of
Zimbabwe further held, remarkably in line with Strydom JP's approach
in Freiremar, and as succinctly summarised in the headnote
that:
'A
presumption of fact was compatible with the presumption of innocence
if it could be shown by the State, due regard being paid to the
enacted conclusion of the legislation, that the fact to be proved
rationally and realistically follows from that proved; and also if
the presumption is no more than is proportionate to what is warranted
by the nature of the evil against which society requires protection.
On this basis, some presumptions will be justifiable, others not;
whether they are will depend on whether it remains primarily the
responsibility of the prosecution to prove the accused's guilt to the
required standard and whether the presumption is reasonably imposed.
The test of proportionality in particular provides useful guidance,
since it is the need to balance the interests of the individual and
society which is at the heart of the justification of an exception to
the general rule that the prosecution must establish the accused's
guilt.'
Meaker’s-case
concerned the question whether the presumption contained in s 130 of
the South African Road Traffic Act 29 of 1989 offended the
presumption of innocence provided for by s 35(3)(h) of that
country's Constitution. In the judgment rendered by Cameron J
(Mailula J concurring), the court held that whether s 130 infringed
the Constitution and, if so, whether it was justified, depended
largely on facts concerning the social milieu which gave rise to the
legislation. The relevance of the evidence which the parties had
tendered was confined to assisting the court in what is in essence a
common sense analysis of s 130 and in answering the question whether
its application was reasonably justified. As to the question whether
the section in question was constitutional, the court held further
that it was not difficult to conclude that s 130 offended against
the right to be presumed innocent as provided for by s 35(3)(h)
of the South African Constitution. Regarding the issue of whether s
130 was saved by the provisions of s 36 of that country's
Constitution, the Court distilled
the following principles from Constitutional Court decisions on
reverse onus provisions:
Cases where it is
practically impossible or unduly burdensome for the State to
discharge the onus of proving all the elements pertaining to the
offence beyond reasonable doubt;
Where there is a logical
connection between the fact proved and the fact presumed and the
presumed fact is something which is more likely than not to arise
from the basic facts proved;
Cases where the
application of the common law rule relating to the State's onus
cause substantial harm to the administration of justice;
Generally, where the
presumption in its terms is cast to serve only the social need it
purports to address or is it disproportionate in its impact, and
Cases where the State
could adequately achieve its legitimate ends by means which would
not be inconsistent with the constitution in general and the
presumption of innocence in particular.
The Zuma-matter,
concerned the constitutionality of s 217(1)(b)(ii) of the
Criminal Procedure Act, 1977. Writing for the unanimous South
African Constitutional Court, Kentridge AJ embarked upon a survey of
case law of other jurisdictions in open and democratic societies and
came to the conclusion that 'reverse onus provisions were by no
means uncommon and were not necessarily unconstitutional'.
He went on to state that reverse onus provisions in South African
statute law were also not uncommon.
I pause to observe that on this score, and as previously alluded to,
the position in Namibia is no different. Kentridge AJ recognised
that the prosecution authorities in appropriate cases may require
reasonable presumptions to assist them in the execution of the
important task of prosecution so as to meet the ‘pressing
social need for the effective prosecution of crime’. I
respectfully share this view. Kentridge AJ, explained the various
types of presumptions and the scope of the judgment in
theZuma-matter
as follows:
‘Presumptions
are of different types. Some are no more than evidential
presumptions, which give certain prosecution evidence the status of
prima facie proof, requiring the accused to do no more than produce
credible evidence which casts doubt on the prima facie proof. See,
for example, the presumptions in s 212 of the Criminal Procedure Act.
This judgment does not relate to such presumptions. Nor does it seek
to validate every legal presumption reversing the onus of proof. Some
may be justifiable as being rational in themselves, requiring an
accused person to prove only facts to which he or she has easy
access, and which it would be unreasonable to expect the prosecution
to disprove. The provisions in s 237 of the Act (evidence on charge
of bigamy) may be of this type. Or there may be presumptions which
are necessary if certain offences are to be effectively prosecuted,
and the State is able to show that for good reason it cannot be
expected to produce the evidence itself. The presumption that a
person who habitually consorts with prostitutes is living off the
proceeds of prostitution was upheld on that basis in R
v Downey (supra)
by the Supreme Court of Canada. A similar presumption in a United
Kingdom statute was upheld by the European Court of Human Rights in X
v United Kingdom
(Application 5124/71, Collection of Decisions, ECHR 135). This is not
such a case. Nor does this judgment deal with statutory provisions
which are in form presumptions but which in effect create new
offences. See Attorney-General
v Odendaal 1982
Botswana LR 194 at 226-7.’
At paras 22-25 Kentridge
AJ gave a useful and succinct summary of the jurisprudence on
reverse onus provisions developed by the Supreme Court of Canada. At
para 22, reference is made to the decision of Supreme Court of
Canada in the Oakes-matter, where Dickson CJC made the
following seminal observations in relation to the presumption of
innocence:
‘The
presumption of innocence protects the fundamental liberty and human
dignity of any and every person accused by the State of criminal
conduct. An individual charged with a criminal offence faces grave
social and personal consequences, including potential loss of
physical liberty, subjection to social stigma and ostracism from the
community, as well as other social, psychological and economic harms.
In light of the gravity of these consequences, the presumption of
innocence is crucial. It ensures that until the State proves an
accused’s guilt beyond all reasonable doubt, he or she is
innocent. This is essential in a society committed to fairness and
social justice.’
In Coetzee the
South African Constitutional Court found, unanimously and as
previously mentioned, that s 245 was in conflict with the
long-established rule of the common law that the burden of proof had
always been on the prosecution to prove the guilt of the accused
beyond reasonable doubt and that to that extent the provision had
infringed the presumption of innocence entrenched in s 25(3)(c)
of the South African Interim Constitution.
In his written heads of
argument, Mr Gauntlett argued correctly that the wording of the
relevant provisions in the South African and Namibian Constitutions
are different. Section 25(3)(c) of the South African
constitution stated that the right to a fair trial included the
right '...to be presumed innocent and to remain silent during plea
proceedings or trial and not to testify during trial'. In contrast,
Art 12(1)(d) of the Constitution simply states that:
'All persons charged with an offence
shall be presumed innocent until proven guilty according to law,
after having had the opportunity of calling witnesses and
cross-examining those called against them.'
The
differences between the two constitutions in the formulation of the
right to a fair trial and the other constituent rights relating
thereto as emphasised by him in argument are apparent and duly noted.
They are by and large the result of different constitutional
mechanisms employed to protect the substance of those rights: The
South African Constitution, for example, has an extensive general
limitation clause equally applicable to the individual rights
protected in their Constitution’s Bill of Rights,
unlike the Namibian Constitution which, in addition to certain
limitations of general application mentioned in Art 22, authorises
the further limitation only in respect of some of the rights and
freedoms and, in most such instances, defines the permissible ambit
of such limitations differently and with due regard to the specific
right or freedom in question. Mr Gauntlett went on to argue that
where Art 12(1)(f)
of the Constitution provides that 'no person shall be compelled to
give testimony against themselves,' it does not in principle preclude
a rebuttal presumption of knowledge or a presumption that merely
places an evidentiary burden on an accused person and it is not
unconstitutional to discharge a purely evidentiary burden. He
contended that a statutory provision that imposes an evidentiary
burden does not violate the presumption of innocence because there is
no possibility of being convicted despite the existence of a
reasonable doubt. Counsel accordingly submitted that the presumption
deals with matters that are peculiarly within the knowledge of the
accused. The accused is in the best position to explain why he or she
did not know that the presentation was false. The section requires
of him or her to advance facts to which he or she has easy access and
which would be unreasonable to expect of the prosecution to disprove.
There is also a logical connection between the facts which the State
is required to prove beyond reasonable doubt and the presumed fact.
I have carefully
considered Mr Gauntlett's submissions regarding the differences of
the wording of the provisions of the South African and Namibian
Constitutions and other relevant submissions as summarised above.
The mandatory legal presumption created by s 245 significantly
alleviates the evidential burden which the prosecution would
otherwise have borne under common law to prove the guilt of accused
persons charged with offences of which a false representation is an
element. Unlike the position under common law where the prosecution
had to prove all the elements of those offences beyond reasonable
doubt to secure convictions, the section casts a reverse onus on
persons prosecuted for those crimes to disprove an essential element
of those crimes: once the prosecution has proved that they made the
alleged representations and that the representations were false, the
accused persons are required to establish on a preponderance of
probability that they were ignorant of the falsity of the
representations at the time when they were made. The objective of
the section is clear: to alleviate the difficulties experienced by
the State in prosecutions of that nature to prove what the mindsets
of accused persons were regarding the veracity or falseness of the
representations at the time of their making.
I accept that it may be
quite burdensome for the State to prove an accused person’s
state of mind in prosecutions of this nature. I also accept that, in
instances where the falsity of the representation is easily
ascertainable and, given the nature of the fact or belief which is
the subject matter of the representation, it ought to have been
quite apparent to the accused person that the representation was
false, there would be a logical connection between proof that the
representation was false and the presumption that the accused knew
about its falseness. This notwithstanding, it must be recognised
that the presumption created by s 245 relates to an important
element of the type of offences referred to therein and that, once
the operative threshold for the presumption has been met by the
prosecution, the accused would be required to disprove that element
on a balance of probabilities - an element, as noted earlier, which
the State otherwise would have had to prove beyond a reasonable
doubt to secure a conviction. The shifting of the onus from the
State to the accused in respect of such an important element of the
offences in question is a significant departure from the evidential
norm which would otherwise apply in criminal law and procedure. The
Court is therefore obliged to scrutinise the justification for the
deviation closely and to satisfy itself that the presumption is
fair, rational and not disproportionate in its impact.
One of the concerns
about the application of the presumption is that the falseness of
the representation may not always be so obvious or easily
ascertainable by the maker thereof that it can be ‘said with
substantial assurance that (knowledge of its falsity) is more than
likely than not to flow (from later proof that it was false)’
- to borrow from the caveat in Leary’s-case. There are
many instances where the line between what is true or not is
difficult to observe or ascertain and persons may sometimes bona
fide err in representing something as the truth – even
confidently so – which may later be proved false. At other
times a person may so strongly believe in something - which may
later be proved false - that, instead of representing it as his or
her subjective belief, hope or expectation, he or she may bona
fide represent it to another as a factual truth. If the reverse
onus provision created by s 245 were to be retained, there is a real
danger that even if the accused is able to persuade the court that
there is a reasonable possibility that he or she did not know that
the representation was false at the time it was made, but
nevertheless fails to prove that as a fact on a balance of
probabilities, a court will be constrained to convict - assuming, of
course, that the State has proven all the other elements of the
offence in question.
In Alexander v
Minister of Justice this Court restated that the Constitution
must be interpreted liberally so as to afford to its subjects the
full protection of the rights set out therein. As regards
limitations on constitutional rights, the Court emphasised that, to
pass the test of constitutional validity, a limitation on
constitutional rights must be proportionate. The limitation must not
constitute a disproportionate interference with the right in
question: it must be fair, not arbitrary and the means used must
impair the right to the minimum possible extent.
The Court has not been
referred to similar reverse onus provisions in other democratic
societies or, for that matter, a pressing social need to retain a
mandatory legal presumption in the form of s 245. I recognise that
the objective of the provision is to ameliorate the evidential
difficulties which the prosecution might otherwise face to prove
beyond reasonable doubt that a person accused of the offences
contemplated therein knew that the representation was false. Had the
section been formulated differently and, instead of creating a legal
presumption, imposed a mere evidential burden by providing that,
proof of a false representation would constitute prima facie
evidence that the accused had made such representation knowing it to
be false, the section’s impact on the right protected by Art
12(1)(d) would have been significantly less. The imposition
of an evidentiary burden would have been more in line with the
minimum impairment requirement and in my view would have gone a long
way to redress the evidential considerations which had given rise to
the promulgation of the section (or its statutory predecessor) in
the first instance.
For these reasons, I
have come to the conclusion that there is no sufficient
justification for the reverse onus presumption created by s 245 to
warrant a limitation of the fundamental right to be presumed
innocent until proven guilty and, in any event, to the extent that
it permits the conviction of accused persons in spite of the
existence of a reasonable doubt that they knew that the
representations made by them were false, is disproportionate to the
objective which the section seeks to achieve. Therefore, I take the
view that s 245 is unconstitutional. I turn next to consider s
332(5).
Section 332(5)
Section 332(5) reads as
follows:
'When an offence has been committed,
whether by the performance of any act or by the failure to perform
any act, for which any corporate body is or was liable to
prosecution, any person who was, at the time of the commission of the
offence, a director or servant of the corporate body shall be deemed
to be guilty of the said offence, unless it is proved that he did not
take part in the commission of the offence and that he could not have
prevented it, and shall be liable to prosecution therefor, either
jointly with the corporate body or apart therefrom, and shall on
conviction be personally liable to punishment therefor.'
As already mentioned,
the constitutionality of s 332(5) was considered by the South
African Constitutional Court in Coetzee andcounsel contending
for the unconstitutionality of the section urged us to follow the
approach of the majority of that court. The Constitutional Court did
not speak with one voice on the issue whether or not the section was
constitutionally defensible; there were multiple judgments with a
number of dissentions. The majority found, as captured in the
headnote, in the first place that the onus provisions of s
332(5) violated the right to be presumed innocent under s 25(3)(c)
of that country's Interim Constitution. The effect of the provision
was to permit the conviction of the accused despite the existence of
a reasonable doubt as to his or her guilt.Furthermore, the violation
of s 25(3)(c) of the South African Interim Constitution by
the section could not be justified in terms of s 33(1) of that
Constitution. It was further found that in imposing an onus
also on a servant of a corporation for the offences of the corporate
body, the section was impermissibly overbroad. The majority found
further that notwithstanding the legitimate purposes served by the
section in relation to the honest conduct of the affairs of
corporate bodies, the section was impermissibly overbroad in its
scope of operation. The type of offence by the corporate body for
which an accused director or servant could be held liable was not
limited. All offences were included notwithstanding their nature,
purpose or degree of remoteness from the ordinary activities of the
corporate body and therefore from the legitimate purpose of the
section. The majority ultimately came to the conclusion that no
severance of the invalid provisions of s 332(5) that would leave the
section constitutionally valid while giving effect to the purpose of
the legislative scheme was possible and struck it out as being
inconsistent with the constitution.
The
majority nevertheless found that the Legislature was 'fully entitled
to place a positive duty on directors and to make omission to
discharge that duty an offence'.
The majority was concerned about the manner that positive duty had
been placed on directors, pointing out the effect of merely changing
the form of the provision to require the accused, rather than the
prosecution, to prove elements which are essential to the guilt or
innocence of the accused person.
In
a minority judgment, Kentridge AJ took a different approach. He
commenced his judgment by examining the nature of the provision and,
in line with the views of the learned authors De Wet and Swanepoel,
stated that the subsection does not create a new type of offence,
but 'undoubtedly creates a new form of liability for the offence of
another.'
He opined that it was clear from the language of the subsection that
it was the intention of the legislature to create a new form of
vicarious liability. Kentridge AJ went on to say that though
vicarious criminal liability was unknown to the Roman-Dutch common
law, it was a common phenomenon in modern statute law world-wide
informed by the complexities of societies as consequences of
industrialisation and modernisation. In the light of these
developments, it became necessary and imperative to embark upon
measures aimed at controlling, in the public interest, the conduct
of corporations involved in these activities.Kentridge
AJ expressed the view that the legislature did not create an
absolute vicarious liability in s 332(5). Instead, it chose to
mitigate what would have been the harshness of the provision, by
allowing an accused falling within its reach to escape liability
upon proof on a balance of probabilities of the two exempting
factors, namely 'that he did not take part in the commission of the
offence and that he could not have prevented it'.
The learned Acting Justice went on to observe that it cannot be said
in the circumstances that by rendering the impact of the section
less severe than it would have otherwise been, the Legislature was
thereby rendering a trial under the subsection less fair than it
would otherwise have been.
Although he would have considered the analysis he offered about the
nature and scope of the subsection to be 'a complete answer' to the
attack based on the ground of a fair trial provision in the South
African Interim Constitution, he nevertheless found it necessary to
deal with the other contention of the applicants in that case, i.e.
that whatever the position might have had been, the effect of the
subsection was to permit the conviction of an accused person
notwithstanding the existence of a reasonable doubt as to their
guilt, which would in turn offend the presumption of
innocence.Kentridge
AJ indentified the object of the provision to be as follows:
'[T]he object of the subsection is to
control the activities of corporate entities by imposing a
responsibility on those who control or conduct their activities, and
ensuring that they do not regard themselves as beyond the reach of
the criminal law if a crime is committed in the course of corporate
activities.'
He
rejected the contention that the subsection created a new offence,
or a new criminal liability, an essential element of which is that
an accused must have participated in the commission of the offence
and must have been able to prevent its commission. He reasoned
instead that the clause in fact did not constitute an element which
the prosecution must negative, 'but in terms creates an exemption or
excuse which the accused may prove by way of defence'. All that
needs to be charged and proved is that the accused was a director or
servant of a corporate body that was liable to be prosecuted for a
specific offence. It is then left for the accused to bring himself
or herself within the permitted defence.Kentridge
AJ next dealt with the alternative submissions informed by Canadian
jurisprudence, namely that once a criminal statute contained a
reverse onus provision requiring the accused to provide proof of
some fact in order to escape conviction, it mattered not whether
that onus related to an essential element of the offence or to a
defence by way of excuse or one by way of exemption. In either case,
so the argument went, the presumption of innocence was destroyed and
the fairness of the trial impaired. The learned Acting Justice
observed in this regard that even judges of the Canadian Supreme
Court themselves pointed out that the protections to be found in the
Canadian Charter of Rights are to be interpreted and applied
according to the context in which they may arise and not in the
abstract.
After a careful analysis of certain of the Canadian authorities
relied upon for the contentions, Kentridge AJ concluded that those
cases were decided in a completely different statutory context.
Although they dealt with offences of strict liability, they did not
directly deal with a provision imposing a vicarious liability such
as the subsection.
They did not therefore support the contentions made by counsel.
Kentridge AJ also pointed out that the burden of proof imposed by s
332(5) is substantially less than in some of statutes considered in
certain of the Canadian authorities relied upon for the proposition
under consideration.
I respectfully agree
with the persuasive and compelling approach adopted by Kentridge AJ
in his minority judgment. I consider that his views that the
subsection has created a new form of liability for corporate crimes
and that in enacting the subsection, the Legislature chose to
mitigate what would otherwise have been the harshness of the
provision by permitting an accused director or servant to escape
liability upon proof, on a balance of probabilities, of the two
exempting factors are, with respect, correct. It cannot be said with
any degree of conviction that a provision that is meant to
ameliorate what would otherwise have been the harshness of the
strict vicarious liability can for that reason be said to be unfair
or unconstitutional. It is my considered view that the subsection
does not derogate from the presumption of innocence provided for in
Art 12(1)(d) of the Constitution, because, as Kentridge AJ
convincingly reasoned, the State is still required to prove the
offence by the corporate body beyond reasonable doubt without the
aid of the presumption before the accused may be called upon to
establish, on a balance of probabilities, a defence or excuse. As
Kentridge AJ rightly observed, if an accused is convicted under s
332 it will be because all the elements required by s 332(5) in
order to give rise to that liability have been proved beyond a
reasonable doubt and because the excuse provided for by the
subsection has not been established.
It is trite that s
332(5) has been introduced in the public interest. It is meant to
ensure that those that are in control of corporations, particularly
commercial ones, are called to account when the corporations under
their control perpetrate offences. Once the elements of the offence
have been proved and a defence or excuse is called from them, all
that the accused director is required to show is that he or she did
not take part in the commission of the offence and that he or she
could not have prevented it. The accused is, of course, not obliged
to testify but if he or she does not do so, he or she takes a risk
and it is the risk, to my mind, that an accused who elects not to
testify in the face of prima facie evidence against him or her takes
in all criminal cases. It cannot be said that he or she is thereby
compelled to give testimony against oneself and there can be no
question of Art 12(1)(f) being infringed in those
circumstances. It is trite that a corporation is an artificial
person that 'has no body to be kicked or soul to be damned'. The
directors are its controlling minds. Whether the director of a
corporation did not take part in the commission of the offence and
he or she could not have prevented it is a matter that should be
well known by the director concerned. On the other hand, such
specific fact is a matter of considerable difficulty for the
prosecution to prove. The subsection requires the accused director
of the corporate body, in the words of Strydom JP in Freiremar
to 'speak up in the circumstance where an explanation would be
required because of the presumption raised by the proven facts and
because of the personal knowledge of the accused'. Similar remarks
by Gubbay CJ about the nature of the presumption under consideration
in Chogugudza apply with equal force to the presumption under
s 332(5). The learned Chief Justice said:
'The presumption
does not have the effect of requiring the accused unfairly to
discharge a major ingredient of the offence for no reason at all. A
strong suspicion will have been created on the facts proved by the
State from which a permissible inference could be drawn... The
accused is simply called upon to reveal something peculiarly within
his knowledge...This seems to me essentially an exercise in common
sense.'
Kentridge
AJ observed in Coetzee
that s 332(5) has been part of South African statute law since 1939.
The learned Justice decisively commented on what is expected of
those that take positions of control of corporations and remarked as
follows:
'It is not unreasonable to regard
those who take positions of control in corporate bodies as
voluntarily subjecting themselves to the regime of company and
corporation law, which must be taken to include the provisions of s
332(5).'
I respectfully agree with
the above remarks and also agree with the submission by Mr Gauntlett
in his written heads of argument that:
'[T]hose who choose to assume a
directorship of a company have, in doing so, placed themselves in a
position of responsibility not only vis-à-vis the company but
in relation to the public generally. They must accept the
consequences of that position of responsibility on behalf of what is
an artificial legal entity, otherwise beyond effective redress. This
is because any such director of the corporate body is in the best
position to prevent the harm which may result from the activities of
the corporation. More specifically, such persons must accept (and
indeed, for practical purposes, are deemed to accept) that the law
requires them to control the corporate body and in doing so,
otherwise discharge their duties as directors or principals of the
corporation in accordance with the standards of governance, failing
which criminal and/or civil liability would ensue.'
Kentridge AJ's
insightful dictum about the operation of the subsection in
the South African history and the impact of its possible excision
from the Criminal Procedure Act applies with equal force to the
operation of the section in the history of this country since the
two countries share similar historical backgrounds. He said:
'There is nothing before us to show
that the operation of the present subsection or its predecessors has
in practice given rise to injustices. Nor, I should add, have the
provisions anything to do with the history of racial and other
discrimination in this country. They were provisions enacted for the
protection of the public in a society in which corporate entities
played an increasingly pervasive and important role. To strike out s
332(5) would leave a considerable gap in the mechanisms available for
ensuring the honest conduct of corporate institutions.'
Subject to the
considerations that follow, I respectfully agree and have therefore
come to the conclusion that s 332(5) is constitutional. It complies
with the test of proportionality as set out in the Alexander-matter
and other cases in that the provision is not disproportionate in its
impact: there is a logical connection between the fact proved and the
fact presumed. The means adopted to deal with the threat faced by
society which the subsection is designed to combat are reasonable and
necessary if the offence is to be effectively prosecuted.
I am of the considered
view, however, that in extending the deemed liability for corporate
crimes to servants of the corporation, the Legislature has cast the
net too wide. On this aspect counsel were unanimous in their
submissions. I agree that the words 'or servant' make the section
impermissibly overbroad. Included in the description of 'servant'
are lowly placed workers in the corporation who cannot conceivably
be said to be the mind and soul of the corporation so as to be in a
position to prove the two exempting factors set out in the
subsection. Without further qualification, every employee of such a
corporate body is exposed to prosecution irrespective of his or her
position in the corporation or proximity or connection to the act
which constitutes the offence. To that extent, the presumption is
arbitrary and disproportionate in effect, overbroad and irrational.
Thus, the expression 'or servant' in the subsection has the effect
that the subsection exceeds the permissible ambit of the limitation
authorised by the Constitution in respect of the right protected
under Art 12(1)(d).
Although
the expression may well be severable, regard being had to the test
for severability as endorsed by this Court in the Cultura
2000-case,
the application before the Court only requires of it to provide
answers to the questions posed regarding the constitutionality of
the impugned provisions. The terms of the referral under Art 79 and
the nature of the relief prayed for in the Notice of Motion do not
require of the Court to excise any phrases or provisions from the
impugned sections or, for that matter, to strike any of the sections
which offends the Constitution. I assume that the relief prayed for
has been deliberately cast in that form to allow accused persons and
institutions of State alike to take such further action, based on
the determination of the issues by this Court as they may be allowed
or advised to take. For these reasons I conclude that the reverse
onus presumptions created by the impugned provisions exceed the
scope of limitations authorised in respect of the right to be
presumed innocent under Art 12(1)(d).
In as much as the presumption of innocence is also a necessary and
inseparable component of the overarching right to a fair trial in
the determination of criminal charges against accused persons
protected by Art 12(1)(a),
it follows that the latter right is also unconstitutionally
diminished as a result. In view of the conclusion which I have
reached, it is not necessary to elaborate on the question whether
the impugned sections also infringe accused persons’ right not
to be compelled to give testimony against themselves as protected
under Art 12(1)(f)
or other rights or privileges associated with it. Suffice it to say
that if the onus contemplated in s 245 would have been evidential in
nature and the expression ‘or servant’ would have been
omitted in s 332(5), the effect of the ameliorated presumptive
provisions in the impugned sections would not have
unconstitutionally diminished any of the rights protected under Art
12.
For all these reasons, I
would give the following answers to the questions posed by the
Attorney-General:
Sections 245 and 332(5)
of the Criminal Procedure Act 51 of 1977, as amended, are
unconstitutional to the extent that –
(a) the provisions of s
245 cast a mandatory legal onus on an accused person, charged with an
offence of which a false representation is an element, to prove on a
balance of probabilities that he or she did not know that the
representation was false once the State has proved that he or she had
made the false representation;
(b) a servant of a
corporate body is in terms of s 332(5) deemed to be guilty of an
offence committed for which the corporate body is or was liable to be
prosecuted, unless he or she proves on a balance of probabilities
that he or she did not take part in the commission of the offence and
could not have prevented it
on the grounds that they
impermissibly infringe an accused’s right under Art 12(1)(d)
of the Constitution to be presumed innocent until proven guilty
according to law and thus also an accused’s right to a fair
trial in terms of Art 12(1)(a) of the Constitution.
To the extent noted in
paragraphs (1)(a) and (b) above, the limitations imposed by sections
245 and 332(5) on an accused person’s right to a fair trial
under Art 12 of the Constitution are not constitutionally
authorised.
________________________
SHIVUTE CJ
________________________
MARITZ JA
________________________
STRYDOM AJA
APPEARANCES
|
FOR
THE PROPOSITION THAT THE IMPUGNED PROVISIONS ARE CONSTITUTIONAL
AND
FOR THE 1st and 2nd RESPONDENTS
FOR
THE PROPOSITION THAT THE IMPUGNED PROVISIONS ARE UNCONSTITUTIONAL
|
J
JGauntlett, SC (with him F B Pelser)
Instructed
by the Government Attorney
Instructed
by Nixon Marcus Public Law Office
I
A M Semenya SC (with him A Platt)
Instructed
by the Government Attorney
|
|
3rd,
4th,
6th,
9th
and 10thRESPONDENTS:
|
L
C Botes
Instructed
by:
For
the 3rd
Respondent: Engling, Stritter& Partners
For
the 4th
and 6th
Respondents: Stephen F Kenny Legal practitioners
For
the 9th
and 10th
Respondents: DrWeder, Kauta&Hoveka
|
Attorney-General of Namibia v Minister of Justice and Others (P.12/2009) [2013] NASC 3 (04 April 2013);