CASE NO's: A 238/2009
IN THE HIGH COURT OF
the matter between:
THE GOVERNMENT OF THE
Niekerk, J et Geier, AJ
During 1998, and prior to the further amendment of the Stock Theft
Act 12 of 1990, and in the course of considering the
constitutionality of section 14(1)(b) thereof, which provided for the
imposition of a mandatory minimum sentence of three years'
imprisonment for a second or subsequent conviction of stock theft,
which could not be suspended partially or wholly,
Frank J, who delivered the full bench judgment in S v
in which O'Linn J (in a separate judgement) and
Gibson J concurred,
"In order to
attempt to counter the prevalence of stock theft and the effects
thereof especially in the rural areas where people barely eke out a
living with the small number of livestock they possess Parliament
thought it necessary to introduce a minimum sentence. This followed a
public outcry especially from farmers and the rural community. This
can easily be understood. To steal even one sheep or goat from a
person trying to make a living out of say a herd of ten is
catastrophic for such a person. Furthermore with transport and vast
distances that can be covered in one night as well as the fact that
extensive farming is mostly practised in this country it is not easy
to counter stock theft. Parliament had every right to attempt to do
everything within its powers to curb these pernicious activities".
 O'Linn J, in the said
separate judgement, put it even more pertinently when he also took
notice of certain notorious facts at the time:
" These are inter
alia, that Parliament passed this law after an outcry from
law-abiding farmers in Namibia clamouring for heavier sentences for
stock theft on the ground that the crime has escalated considerably
and that many of the owners of the stock are deprived of their
livelihood or at least that considerable inroads are made on such
livelihood by thieves. They demand protection from the State and the
Courts for their fundamental rights to life and the security of their
property. Some members of the High Court, including the writer of
this judgment, had the opportunity to attend consultative conferences
of representatives of society, particularly rural society, where the
agony of farmers, communal and otherwise, were expressed about the
accelerating crime rate and the deprivation of their livelihood by
the thieves stealing the cattle or stock which they need to survive.
They demand the protection of their rights by, inter alia, heavier
sentences by Courts of law.
In my view, full
weight should be given to the aforesaid current public opinion as
evidence of current values in view of the fact that these views are
well-founded and not transient. They are consistent and corroborative
of the general trend in society of escalating crime and the general
expectation of society, for heavier penalties, as one of the means to
counteract the crime phenomenon.
However, the aforesaid
public opinion goes no further than requiring heavier sentences to be
prescribed by the Legislature and imposed by the Courts of law. It
may also be accepted that the Namibian public opinion and norms would
regard as permissible heavier sentences for offenders, who have in
the past been convicted of similar offences. I however sincerely
doubt whether public opinion expect a previous conviction in the
distant past to be used as the basis for such a heavy mandatory
sentence as a minimum of three years in the case of the second
conviction. They will probably also expect a differentiation to be
made between the theft of a goat and the theft of a more valuable
head of cattle. Such an attitude would be consistent with the norms
and values of reasonableness and fair play and the balancing of
rights and responsibilities, which permeate and underpin the
provisions of the Namibian Constitution.
assumption of public opinion, norms and values, is also consistent
with the norms and values of the civilised community of nations of
which Namibia is a part.
The Legislature, when
acting in the public interest, and more specifically in the interests
of the law-abiding citizens and purporting to protect their
fundamental rights, must be presumed to do so bona fide and with due
consideration to the public interest and the fundamental rights of
all, enshrined in the Constitution.
legislation enacted by the Legislature must also be presumed prima
facie to be constitutional. This Court should not necessarily be
prescriptive regarding legislation enacted in such circumstances.
Mwellie v Ministry of Works, Transport & Communications (supra at
 It is not surprising
therefore that the penal clause of the Stock Theft Act 1990,
subsequent to its initial promulgation, continued to be the focus of
Parliament's attention on three occasions: Section 14 was initially
amended by section 6 of Act 4 of 1991, and later substituted by
section 3 of Act 19 of 1993, and again by section 2
of Act 19 of 2004.
 In spite of
Parliament's singling out of this crime for more severe punishment
the Prosecutor General, the second respondent in this application,
still states in the year 2010 that 'stock theft has escalated to
unacceptable levels and erodes economic development in Namibia'.
 The scourge of stock
theft thus continues to plague Namibia.
THE APPLICATION BEFORE
 The applicant Daniel
(hereinafter referred to as Mr Daniel) was convicted of the theft of
nine goats worth N$4450. He was sentenced to 20 years' imprisonment.
 The applicant Peter
(hereinafter referred to as Mr Peter) was a 38 year old man. He was
convicted of participating in the theft of a single cow together with
a number of other accused persons. He had a previous conviction for
stock theft. The court sentenced him to 30 years' imprisonment.
 It is against this
background that both these applicant's have now applied in terms of
of the Constitution for orders declaring that the minimum sentences
prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12
of 1990, as amended, are unconstitutional and invalid. They contend
that the minimum sentences violate the prohibition of cruel, inhuman
or degrading punishment in article 8(2)(b) and the guarantee of
equality in article 10(1) of the Constitution.
 Mr Trengove, on
behalf of applicants, succinctly summed up the main issues before
court in his heads of argument where he submitted that more
particularly Mr Daniel's application:
is directed at section 14(1)(a)(ii). It prescribes a minimum sentence
of 20 years imprisonment for a first offender whose offence relates
to stock to the value of more than N$500. The respondents do not
oppose this application. The Attorney-General filed an answer on
behalf of all of them. He was duly authorised to do so. He concedes
that the minimum sentence violates the prohibition of cruel, inhuman
or degrading punishment in article 8(2)(b) of the Constitution. He
asks merely that, instead of striking down the whole s 14(1)(a)(ii),
Its defect be cured by deleting the words "for
a period not less than twenty years" from
Peter application is directed at s 14(1)(b). It prescribes a minimum
sentence of 30 years imprisonment for a repeat offender. The
respondents differ in their responses to this application: The
Attorney-General and the Government do not oppose the application.
The Attorney-General filed an answer on behalf of both of them. He
was duly authorised to do so. He admits that the minimum sentence
violates the prohibition of cruel, inhuman or degrading punishment in
article 8(2)(b) of the Constitution. He asks merely that, instead of
striking down the whole s 14(1)(b), its defect be cured by the
deletion of the words "for
a period of not less than thirty years" from
The Prosecutor General
however denies that the minimum sentence prescribed by s 14(1)(b) is
unconstitutional. She asks that this application be dismissed with
The issues between the
parties may be summarised as follows:
Mr Daniel's attack on
s 14(1)(a)(ii) is unopposed. The parties agree that the section is
unconstitutional. They differ only on the question of remedy. This
applicant however accepts that the more limited remedy proposed by
the respondents will cure the constitutional defect. There is
accordingly no material dispute between these parties.
Mr Peter's attack on s
14(1)(b) is not opposed by the Attorney-General and the Government.
They concede that the section is unconstitutional. They merely
propose a more limited remedy. This applicant accepts that it will
cure the constitutional defect. There are accordingly no material
disputes between the applicant, the Attorney-General (the first
Respondent) and the Government (the third Respondent). The Prosecutor
General (the second Respondent herein) however denies that the
section is unconstitutional."
 Before however
deciding these issues it becomes necessary to deal with the second
respondent's objection that the constitutional challenge brought by
applicants herein is inappropriate.
THE APPROPRIATENESS OF
THE CONSTITUTIONAL CHALLENGE
 In this regard it
was essentially submitted on behalf of second respondent that
"... Each of
these applicants (Peter with leave) was entitled to appeal their
sentences. In fact, Daniel's appeal would have been heard on 10 July
2009. His appeal was removed from the roll at his instance
(presumably on legal advice) and this application was launched on 14
In each of the cases
the factual findings that there were no substantial and compelling
circumstances led to the sentences applicants now wish to have set
aside by way of constitutional challenge. It is submitted the
challenge is inappropriate.
Daniel was sentenced
by the regional court sitting in Ondangwa. He was unrepresented. It
appears from the record that the magistrate simply mentioned to
Daniel that he must put forward substantial and compelling
circumstances without explaining what it is and without assisting him
as he was obliged to. In Peter's case it can be argued that it was a
misdirection to consider an eleven year old previous conviction -
especially because it predates the minimum sentences.
Furthermore, a strong
argument can be made in respect of both matters that the sentencing
magistrate and judge applied "substantial and compelling"
As a result the
applicants should have appealed their sentences. These constitutional
challenges are inappropriate and should be struck from the roll with
costs, alternatively, treated as appeals."
Mr Coleman, who appeared on behalf of the second respondent, based
these submissions in the first instance on the general principles
court should decide no more than what is absolutely necessary to
determine the case and constitutional law should be developed
cautiously, judiciously and pragmatically
on the principle as expounded by Kentridge AJ in S v
Mhlungu and Others 1995
(3) SA 867 (CC) para  (D-E);
" I would lay it
down as a general principle that where it is possible to decide any
case, civil or criminal, without reaching a constitutional issue,
that is the course which should be followed."
 While it may
undoubtedly be correct that both Mr Peter and Mr Daniel may have the
arguments contended for by Mr Coleman at their disposal during an
appeal hearing, this argument essentially loses sight of the fact
that this application is no appeal and that no relief akin to appeal
relief is sought by the applicants herein in terms of the Criminal
Procedure Act, Act No. 51 of 1977.
On the contrary applicant's crisply state that they 'apply
in terms of article 25(1) of the Constitution for the declaratory
out in the respective notices of motion.
Accordingly they expressly seek a decision only on the constitutional
issues raised on their papers. This in my view leaves no room for the
application for the relied upon 'general principle' as stated in the
as in such circumstances the applications here cannot be decided
'without reaching a constitutional issue'. This aspect also disposes
of Mr Coleman's reliance of the case of S v
constitutes authority for the view that Article 25 of the Namibian
Constitution does not create an avenue for criminal appeals, which is
not what the applicants seek to achieve here.
 As far as the sought
declaratory relief goes, it would appear that Mr
Coleman's argument did
also lose sight of the requirements of section 16 of the High
Court Act which empowers
"... in its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent right or
obligation,notwithstanding that such person cannot claim
consequential upon the determination."
"The Court approaches the question of a declarator
... First, is the applicant a person 'interested' in any 'existing,
future or contingent right or obligation'. Secondly, and only if
satisfied at the first stage, the Court decides whether the case is a
proper one in which to exercise its discretion."
"It was decided in Ex
parte Nell 1963
(1) SA 754 (A) that an existing dispute is not a prerequisite for
jurisdiction under section 19(1)(a)(iii).
There must, however, be interested parties on whom the declaratory
order will be binding. The absence of an existing dispute may, or
course, incline the Court, in the exercise of its discretion, not to
grant a declarator."
 Clearly both Mr
Peter and Mr Daniel are such 'interested persons', who cannot be
said, not to have any 'existing, future or contingent right' to the
determination of the constitutionality or not of the sentences which
they presently serve.
It is also not doubted that the declaratory
sought herein will be binding on the parties hereto.
 As far as the
Court's discretion is concerned it has been held that the Court will
take into account whether:
tangible and justifiable advantage in relation to the applicant's
position with reference to an existing, future or contingent right or
obligation ... [appears] to flow from the grant of the declaratory
In this regard it will be firstly of material significance that it
has been held that "..
Courts are no vehicles of injustice...
that " ... no
derogation from the rights entrenched by art 8
 Secondly, and should
the minimum sentence regime, as imposed by the Stock Theft Act, be
found to be in conflict with art 8 and be declared unconstitutional
as a result of the declaratory orders sought herein, surely some
tangible and justifiable advantage, in relation to the applicants'
position, with reference to their existing, future or contingent
right not to be subject to cruel, inhuman or degrading punishment,
also emerges for the applicants to take this aspect further, should
they be so advised. In this respect the applications under
consideration are also not purely academic.
It is of further relevance that it is only the High Court, as a
that can grant the declaratory constitutional relief sought. It is
eminently desirablethat it should also do so, so as not to perpetuate
a situation in which the courts turn a blind eye to and continue to
of injustice' in
their continued application of a possibly unconstitutional minimum
sentence regime, as currently prescribed by the Stock Theft Act.
 The grant of the
sought declaratory orders, will so to speak also 'clear the decks'
for the future proper application of sections 14(1)(a)(ii) and
14(1)(b) of the Stock Theft Act 12 of 1990, as amended
- in the High Court and all Lower Courts.
 All these factors
indicate therefore that this would be an appropriate instance to
entertain the applications for the declaratory order sought and I
exercise my discretion accordingly.
 I therefore deem the
constitutional challenge appropriate.
IMPUGNED MINIMUM SENTENCE REGIME
 Section 14 of the
Stock Theft Act No 12 of 1990, as amended provides as follows:
Penalties for certain offences
(1) Any person who is
convicted of an offence referred to in section 11(1) (a), (b), (c) or
(d) that relates to stock other than poultry-
a) of which the value-
less than N$500, shall be liable in the case of a first conviction,
to imprisonment for a period not less than two years without the
option of a fine;
(ii) is N$500 or more,
shall be liable in the case of a first conviction, to imprisonment
for a period not less than twenty years without the option of a fine;
(b) shall be liable in
the case of a second or subsequent conviction, to imprisonment for a
period not less than thirty years without the option of a fine.
2) If a court is
satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence
prescribed in subsection (1)(a) or (b), it shall enter those
circumstances on the record of the proceedings and may thereupon
impose such lesser sentence.
3) A sentence of
imprisonment imposed in respect of an offence referred to in section
11(1)(a), (b), (c) or (d), or an additional sentence of imprisonment
imposed under section 17(1)(b) in respect of noncompliance with
an order of compensation, shall, notwithstanding anything to the
contrary in any law contained, not run concurrently with any other
sentence of imprisonment imposed on the convicted person.
(4) The operation of a
sentence, imposed in terms of this section in respect of a second or
subsequent conviction of an offence referred to in section 11(1)(a),
(b), (c) or(d), shall not be suspended as contemplated in section
297(4) of the Criminal Procedure Act, if such person was at the time
of the commission of any such offence eighteen years of age or older.
 In the Heads of
Argument filed on behalf of applicants
it was submitted that the following main features appear upon
analysis of section 14:
" In terms of
section 14(1), minimum sentences must be imposed for all the offences
in sections 11(1)(a), (b), (c) and (d) that relate to "stock
other than poultry".
is defined in section 1. It includes other than poultry-
any horse, mule, ass, bull, cow, ox, heifer, calf, sheep, goat,
pig,... domesticated ostrich, domesticated game" and
carcase or portion of the carcase of any such stock".
The offences in
sections 11(1)(a), (b), (c) and (d) relate to "stock" and
"produce". Insofar as they relate to stock, they include
the following offences:
theft or attempted
theft of stock;
knowing it to have been stolen;
instigating, commanding or conspiring with or procurinq another
person to steal or receive stolen stock;
or assisting in the disposal of stolen stock.
These offences also
extend to the lesser offences of the peripheral role-players involved
in the theft and disposal of stock.
The regime imposed by
s 14, prescribes minimum sentences for all these offences. All of
them are caught in the net created by the section. It prescribes
three minimum sentences for all of them. The applicable sentence
depends in the first place on whether the accused is a first or
prescribes the minimum sentences for first offenders. It
distinguishes between them on the basis of the value of the stock
involved. If it is less than N$500, the minimum sentence is two
years' imprisonment. If it is more than N$500, the minimum sentence
is 20 years' imprisonment. The sentence may be wholly or partially
prescribes a minimum sentence of 30 years' imprisonment for any
second or subsequent conviction of stock theft. It differs from the
approach to first offenders in two fundamental respects:
i) It makes no
distinction between trivial and more serious offences as is done in
the case of first offenders. The minimum sentence of 30 years is
prescribed for all repeat offenders, however trivial their offences
ii) The court may not
ameliorate the minimum sentence by suspending it or any part of it.
Section 14(4) provides that the minimum sentence may not be suspended
at all as long as the offender is 18 years or older.
 It would appear that
this analysis is correct.
THE ARGUMENTS IN
SUPPORT OF THE CONSTITUTIONAL CHALLENGE
 Counsel for both
applicants commenced argument on this score by emphasising the
following cardinal features, which flow from the above analysis:
a) "that the
prescribed minimum sentence regime in respect of first offenders
proceeds from the premise :
a significant custodial sentence of at least two years' imprisonment,
is appropriate for first offenders guilty of stock theft, however
trivial their offence might be;
the N$500 threshold beyond which the minimum sentence jumps from two
to twenty years' imprisonment, is low in itself and gets lower all
the time as the value of money depreciates;
the minimum sentence jumps from two years to twenty years'
imprisonment as soon as the value of the stock exceeds N$500. There
is no gradation of sentences between the two. The minimum sentence
increases ten-fold even if the value of the stock only marginally
exceeds N$500. The section does not distinguish between the isolated
theft of a sheep on the one hand and the theft of a herd of cattle by
an organised gang of cattle hustlers on the other. It prescribes the
same minimum sentence for all of them;
the section prescribes minimum sentences. It means that the only way
in which the courts can implement a system of fair gradation of
sentences commensurate with the severity of the stock theft for which
they are imposed is to impose the minimum sentences for the less
serious offences and even harsher sentences for the more serious
b) that the prescribed
minimum sentence regime in respect of second offenders proceeds from
the premise that the previous conviction which makes the accused a
repeat offender subject to the minimum sentence of 30 years'
imprisonment, need not be one which would otherwise have qualified
him for harsher treatment than a first offender. That is so for two
i) it makes no
difference whether the previous conviction was for a serious or
trivial offence. , It counts as a previous conviction and renders the
accused subject to the prescribed minimum sentence of 30 years'
Imprisonment, however trivial it might have been;
ii) the previous
conviction need not have been recent. It is immaterial when it
occurred, even if it is so long ago as to have lost its
c) The implication of
these features could be that a poor man who steals a piece of meat
(that is a portion of the carcass of an animal) to feed his family,
is subject to a minimum sentence of 30 years' imprisonment if he was
convicted of doing the same thing in his youth, even if it happened
decades earlier. "
RELEVANT TO SENTENCING LEFT OUT OF ACCOUNT
 "The applicable
sentence in any case, depends only on whether the accused is a first
or repeat offender and, in the case of a first offender on the
question whether the stock was worth more or less than N$500. No
other factors relating to the seriousness of the crime, the personal
circumstances of the accused or the interests of society are taken
 "According to
the definition of 'stock' a wide range of animals and even the
carcass or portion of the carcass of any of them fall within the
ambit of the section. Their actual value, the socio-economic
significance and the impact of their loss, will vary enormously from
case to case. Section 14(1) however generalises about all of them
 "The section
also ignores the age of the accused. It applies to juveniles and
adults alike. The only concession made to juveniles, is that s 14(4)
allows the court to suspend the minimum sentence of 30 years'
imprisonment if the repeat offender is under 18. This highlights the
fact that the legislature applied its mind to the application of the
minimum sentence regime to juveniles and intended it to apply to
them, subject only to this concession."
 It was accordingly
submitted further that "the implication of this is that even a
juvenile who steals an item of stock, has to be sentenced to
imprisonment for at least two years if the stock is worth less than
N$500, 20 years if the stock is worth more than that, and 30 years if
the youth has a previous conviction, however trivial it might be. The
youthful offender is subject to the same minimum sentence regime as
members of a hardened gang of cattle rustlers who steal herds of
cattle in an organised fashion for profit."
THE EFFECT OF THE
PROHIBITION THAT SENTENCES MAY NOT RUN CONCURRENTLY
prohibition that sentences may not run concurrently applies to every
sentence imposed for stock theft. Accordingly an accused convicted on
multiple charges of stock theft, is liable to the minimum sentence on
each of them and those sentences must then run concurrently, whatever
their cumulative effect. It means for instance that, if the court
convicts an accused on five charges of stock theft, it must sentence
- to 100 years'
imprisonment if he is a first offender and the value of the stock
exceeded N$500 in each case, and
- to 150 years'
imprisonment if he has a previous conviction of stock theft, however
trivial both the previous and the current offences might be. "
THE EFFECT OF THE
'BENCHMARK' SET BY MINIMUM SENTENCES ON THE COURT'S SENTENCING
 Section 14(2) is the
only provision which ameliorates the sentencing regime created by
section 14 of the Stock Theft Act. It provides that:
" If a court is
satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence
prescribed in subsection (1)(a) or(b), it shall enter those
circumstances on the record of the proceedings and may thereupon
impose such lesser sentence".
 Mr Trengove submits
that this provision does not vest the court with its ordinary
sentencing discretion. The court has no discretion at all to depart
from the minimum sentences in the absence of substantial and
compelling circumstances which justify it. Only if there are such
substantial and compelling circumstances, does a court exercise any
discretion at all. But even then, counsel submits, its discretion
isfettered because the sentence it imposes must have regard to the
benchmark set by the minimum sentence regime.
The first question is accordingly when the circumstances of a case
and compelling" so
as to justify a departure from the minimum sentences.
The Court was referred in this regard to S
the South African Supreme Court of Appeal considered this question in
relation to a different but very similar regime of minimum sentences
for a range of serious offences subject to exception on the grounds
of substantial and compelling circumstances. It considered what
circumstances qualified as substantial and compelling and summarised
its conclusions in paragraph 25 of its judgment as follows:
"A. Section 51
has limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in Part 1 of Schedule 2
(or imprisonment for other specified periods for offences listed in
other parts of Schedule 2).
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances.
C. Unless there are,
and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response from the courts.
D. The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offender, undue sympathy
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be excluded.
E. The Legislature
has, however, deliberately left it to the courts to decide whether
the circumstances of any particular case call for a departure from
the prescribed sentence. While the emphasis has shifted to the
objective gravity of the type of crime and the need for effective
sanctions against it, this does not mean that all other
considerations are to be ignored.
F. All factors (other
than those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish moral guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process.
G. The ultimate impact
of all the circumstances relevant to sentencing must be measured
against the composite yardstick ('substantial and compelling') and
must be such as cumulatively justify a departure from the
standardised response that the Legislature has ordained.
H. In applying the
statutory provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals against sentence as the
I. If the sentencing
court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing,
account must be taken of the fact that crime of that particular kind
has been singled out for severe punishment and that the sentence to
be imposed in lieu of the prescribed sentence should be assessed
paying due regard to the benchmark which the Legislature has
The South African Constitutional Court endorsed this interpretation
of the substantial and compelling requirement in S v
it found that the SCA's interpretation "as
an overarching guideline, is one that this court endorses as a
practical method to be employed by all judicial officers".
 It was on this basis
then submitted further
that the SCA's summary endorsed by the Constitutional Court, makes it
clear that the regime of minimum sentences plays a dual role. The
first is that it prescribes the minimum sentences that must be
imposed in the absence of substantial and compelling circumstances to
depart from them. The second is that, even where substantial and
compelling circumstances are present, the court must still have
regard to the benchmark set by the minimum sentences, in its
determination of the appropriate sentence. As appears from paragraph
J of the SCA's summary above, it held that, when the court finds that
there are substantial and compelling circumstances to impose a lesser
"account must be
taken of the fact that crime of that particular kind has been singled
out for severe punishment and that the sentence to be imposed in lieu
of the prescribed sentence should be assessed paying due regard to
the benchmark which the Legislature has provided."
This interpretation was underscored by the South African Court of
Appeal in S v
it was held that the trial judge in the court a
committed a material misdirection because:
"... having found
substantial and compelling circumstances to be present, he considered
himself to have a free and unfettered discretion to impose any
sentence he considered appropriate" ...
that this constituted such material misdirection because it
bench mark indicating the seriousness with which the legislature
views offences of this type".
PROPER GRADATION OF PUNISHMENT IN THE OVERALL SENTENCING SCHEME
Mr Trengove further submitted
that the minimum sentences are also grossly disproportionate, not
only because they are unduly severe in themselves, but alsobecause
they are wholly out of kilter with the sentences meted out to those
who commit other crimes which are equally and even significantly more
severe than stock theft. He referred the Court to R
the Supreme Court of Canada held
"There is no
doubt that a sentencing regime must exhibit a proportionality to the
seriousness of the offence, or to put it in another way, there must
be a gradation of punishments according to the malignity of the
 The submission is
that the minimum sentences are disproportionate in this regard in
that they are wholly out of keeping with the sentences generally
meted out to those convicted -.
of theft, fraud and
corruption which are at least as serious as stock theft, and
assault to do grievous
bodily harm, robbery, rape and murder which are immeasurably more
serious than stock theft in that they threaten, injure and even
destroy human lives.
 The effect of this
latter discrepancy, so the submissions continue, is that the state
responds more severely to threats to property than to immeasurably
more serious threats to human life and safety. This is, so it is
argued, a manifestation of a skewed perception of constitutional
values. Although property is worthy of protection, it is quite
inimical to the Constitution and the values that underpin it, to
afford property greater and more aggressive protection than that
afforded to human life.
THE ALLEGED VIOLATION
OF ARTICLE 8(2)(b)
In this regard the argument ran thus:
of the Constitution provides that:
"No persons shall
be subject to torture or to cruel, inhuman or degrading treatment or
This prohibition forms
part of the provisions of article 8 which are designed to protect the
innate dignity of every human being. Article 8(1) provides that the
dignity of all persons "shall be inviolable". Article
8(2)(a) goes on to say that, in any judicial proceedings or in other
proceedings before any organ of the state and during the enforcement
of a penalty, "respect for human dignity shall be guaranteed".
The Supreme Court held
in the Corporal Punishment case, that "no derogation from the
rights entrenched by art 8 is permitted", that the state's
obligation under it "is absolute and unqualified" and that
"no questions of justification can ever arise".
A full bench of this
court held in Vries, that a sentence violates article 8(2)(b) if it
is grossly disproportionate to the severity of the offence for which
it is imposed.
It went on to consider when that would be the case and concluded that
the gross proportionality test was not materially different from the
"shocking" test conventionally applied by our courts in
their evaluation of sentences on appeal. It adopted the "shocking"
test, by which it meant that the court should ask whether the
sentence is "so excessive that no reasonableman would have
imposed it", for the determination of its constitutional
This court also
recognised in Vries that, when it assesses the constitutional
validity of a statutory sentence, it should obviously do so, not only
on the basis of the facts of the particular case before it, but also
"with respect to hypothetical cases which ... can be foreseen as
likely to arise commonly".
In the current applications, the constitutional validity of the two
minimum sentences are the only Issue before the court. It is not
called upon to determine the fate of the particular applicants. The
constitutional validity of the minimum sentences under attack must
accordingly be determined, not on the facts of the particular cases
before the court, but on the basis of such hypothetical cases as can
be foreseen as likely to arise commonly. "
Accordingly it was submitted that the minimum sentences under attack
in these applications, are also unconstitutional because of their
disproportionality. They are so severe because their only purpose is
This, so the argument ran further, was made clear by the Prosecutor
General in her defence of the minimum sentences when she states that:
with stock has become the only viable option for many inhabitants of
the country and the high incidence of stock theft threatens this only
means of income to legitimate stock farmers and the legislature was
compelled to devise means that would stem the tide. " But,
applicants submitted, in its zeal to "stem the tide" of
stock theft, the legislature has resorted to minimum sentences which
are grossly disproportionate in that they unfairly and unjustly
punish those who are caught and convicted, not because their crimes
deserve the sentences meted out to them, but to deter others from
committing the same crime.
Persons who fall foul of
the minimum sentences are thus used as instruments of deterrence in
violation of their right to recognition of and respect for their
innate human dignity. They are used as a means to an end and not as
an end in themselves as the Constitution requires. Accordingly it
should be concluded that both sections 14(1)(a)(ii) and (b) are
unconstitutional and invalid.
I pause to mention that an attack on sections 14(1)(a)(ii) and (b)
was also mounted on Article 10 of the Constitution. However in view
of the finding subsequently made it has now become unnecessary to
deal with this aspect.
In addition it was pointed out that any finding of
unconstitutionality of section 14(1)(a)(ii) and 14(1)(b) would
directly also affect the validity of section 14(1)(i). In view of the
principle enunciated by the Supreme Court in Kauesa,
as this aspect was not raised on the papers I am obliged to decline
the invitation to also pronounce on the validity of section 14(1
THE FIRST AND THIRD
 Mr Markus, who
appeared on behalf of the first and third respondent's, conceded on
behalf of these respondents, as already mentioned above, that in
their view both sections are unconstitutional as they are in conflict
with Article 8(2)(b) of the Constitution.
The point of departure of the reasoning advanced on behalf of first
and third respondents is the Supreme Court decision of Ex
parte Attorney General, Namibia: In re Corporal Punishment by the
Organs of State 1991
(3) SA 78 (Nms) were the Court observed that " ... the question
as to whether a particular form of punishment authorized by law is
inhuman or degrading involves the exercise of a value judgment. It is
made with regard to the contemporary norms, aspirations, expectations
and sensitivities of the Namibian people as expressed in its national
institutions and its Constitution. Regard is also had to the emerging
consensus of values in the civilized international community, of
which Namibia is a part, and which Namibians share ... ".
Thus no evidentiary enquiry is required.
values of the Namibian Constitution are that of a 'broad and
universalist human rights culture".
First and third respondents acknowledge that this Court has
previously accepted that the Act serves a legitimate governmental
purpose and that the stipulation of a minimum sentence is in itself
is the methods employed to achieve the laudable objective that are
problematic, so it was submitted.
 The Attorney General
identified the shortcomings of section 14(1)(a)(ii) as follows:
a) "The section
fails to distinguish between different kinds of stock. It makes no
difference whether cattle, sheep or goats are involved, yet it is
common knowledge that the value of cattle is much higher than that of
goats or sheep.
b) The same sentence
is visited on all persons who are convicted of an offence referred to
in section 11(1) (a), (b), (c) or (d) of stock, other than poultry,
of more than N$ 500.00, irrespective of the actual value and quantity
of the stock.
No distinction is made between an offender who is convicted in
respect of stock valued at N$ 500.00 and an offender convicted in
respect of stock valued at N$ 100 000.00."
Therefore it was submitted on behalf of first and third respondents
that as a result of the above mentioned effects, the minimum sentence
prescribed by section 14(1)(a)(ii) is likely to be grossly
disproportionate to the offence committed in many instances. Given
the prevalence of stock theft in the country and the abovementioned
defects the sentence mandated by s 14(1)(a)(ii) will be shocking with
respect to 'hypothetical cases which can be foreseen as likely to
With regard to section 14(1)(b) the Attorney General is for similar
reasons of the view that the mandated sentence will be shocking,
"with respect to hypothetical cases which can be foreseen as
likely to arise commonly".
With reference to the decision of this Court in S v
NR 162 HC, in which Hannah J,( Maritz J, as he then was, concurring)
adopted the interpretation of 'substantial
and compelling circumstances' as
expounded in the South African decisions of S v
was submitted that ' ... given the fact that the benchmark set by the
legislature of twenty and thirty years is relatively high, it is not
difficult to imagine circumstances where the Court finds that
substantial and compelling circumstances exist, but the sentence
ultimately imposed would still be disproportional to the crime and
induces a sense of shock in the constitutional sense'.
 Accordingly, so it
was reasoned, both sections are in conflict with article 8(2) of the
Constitution which proscribes cruel, inhuman or degrading treatment
or punishment, as the infliction of excessive punishments is
incongruent with the tenor and spirit of the Namibian Constitution
referred to above.
RESPONDENT'S GROUNDS FOR OPPOSITION
 As already indicated
above it was only the second respondent that opposed the
In this regard Mr Coleman relied heavily on, what he called, 'certain
articulated by the Constitutional Court in S
v Dodo :
and legislative branches of State have a very real interest in the
severity of sentences. The Executive has a general obligation to
ensure that law-abiding persons are protected, if needs be through
the criminal laws, from persons who are bent on breaking the law
In order to discharge
this obligation to protect its citizens the executive and legislative
branches must have the power, through legislative means, of ensuring
that sufficiently severe penalties are imposed on dangerous criminals
in order to protect society.
It is submitted this consideration is equally applicable to stock
theft which second respondent asserts threatens the livelihood of
many law abiding Namibians.
It is not for the
courts to judge the wisdom of the legislature with respect to the
gravity of various offences and the range of penalties which may be
imposed. Parliament has a broad discretion in proscribing conduct as
criminal and determining proper punishment.
On a proper
construction of the concept "substantial and compelling
circumstances" [as enunciated in S v Malgas 2001 (2) SA 1222
(SCA)] section 51(1) does not require the High Court to impose a
sentence of life imprisonment in circumstances where it would be
inconsistent with the offender's right guaranteed by section 12(1)(e)
of the South African Constitution."
 It was submitted
further that the abovementioned principles are applicable in Namibia
and to these applications. "It takes care of any reliance on
Article 8 of the Namibian Constitution. It was then submitted that
neither section 14(1)(a)(ii) norsection 14(1)(b) of the Act requires
a court in Namibia to impose a minimum sentence of either 20 years or
30 years where it would be inconsistent with the offender's rights
guaranteed by Article 8(2)(b) of the Constitution - or any other
right for that matter."
 If I understand Mr
Coleman's argument correctly he seems to suggest that, on a proper
construction of the concept "substantial and compelling
circumstances", sections 14(1)(a)(ii) and 14(1)(b) do not
require a Court to impose a minimum sentence of 20 or 30 years
imprisonment in circumstances where this would be inconsistent with
the offender's right guaranteed by Article 8(2)(b) of the Namibian
Constitution and that the court would therefore be free, in such
circumstances, to impose a lesser sentence.
 This argument was
also mounted on the 'disproportionality test'. Here the argument ran
"In the Vries
the court expressed the view that the disproportionality test appears
to be the same as the 'shocking' test and ultimately 'disturbingly
inappropriate' test in sentencing. This aspect was addressed cogently
in the Malgas case referred to supra. The court held that the
legislature deliberately and advisedly left the concept 'substantial
and compelling circumstances' undefined to leave it to the courts to
decide whether the circumstances of any particular case call for a
departure from the prescribed sentence.
The court in Malgas
further held that the courts are a good deal freer to depart from the
prescribed sentences than has been assumed in earlier cases. Itthen
summarized the effect of section 51. The aspects of this summary that
are relevant here are: the section imposing the minimum sentence
limited but did not eliminate the courts' discretion in imposing
sentence; If the sentencing court on consideration of the
circumstances of the particular case is satisfied that they render
the prescribed sentence unjust in that it would be disproportionate
to the crime, the criminal and the needs of society, so that an
injustice would be done by imposing the sentence, it is entitled to
impose a lesser sentence.'
challenged sections do not fail the disproportionate test in any of
its manifestations. "
As persuasive as Mr Coleman's arguments seemed at first glance they
are too general as they overlook the so-called dual role that minimum
From the approach laid down in both the Malgas
as endorsed by this Court in Lopez,
becomes apparent that, even where substantial and compelling
circumstances are found to be present, the court does not become
absolutely free to impose any sentence it considers appropriate, as
it must still have regard to the benchmark set by the minimum
sentences, in its determination of an appropriate sentence.
This was confirmed by the South African Constitutional Court in the
for Child Law
in which the manner in which a minimum sentencing regime fettersa
court's sentencing discretion even if substantial and compelling
circumstances are found to exist was succinctly analysed as follows:
"The very nature
of minimum sentences is to diminish the courts' power of
individuation by constraining their discretion in the sentencing
process. The Supreme Court of Appeal in Vilakazi has recently
emphasized that under Malgas and Dodo 'disproportionate sentences are
not to be imposed and that courts are not vehicles for injustice'.
Nevertheless, in its very essence the minimum sentencing regime makes
for tougher and longer sentences. While the hands of the sentencing
courts are not bound, they are at least loosely fettered. As this
court noted in Dodo, the very object of the regime is to 'ensure that
consistently heavier sentences are imposed'.
The minimum sentencing
regime does this in three ways. First, it orientates the sentencing
officer at the start of the sentencing process away from options
other than incarceration. Second it de-inviduates sentencing by
prescribing as a starting point the period for which incarceration is
appropriate. Third, even when not imposed, the prescribed sentences
conduce to longer and heavier sentences by weighing on the
In addition, the argument, mustered on behalf of the second
respondent, also failed to keep in mind that it was found in Mvambu,
the total disregard of the sentencing benchmark by a court in the
imposition of a sentence, it considers appropriate, constitutes a
material misdirection. I respectfully consider the approaches as
formulated and adopted by the SCA in Mvambu,and the Centre
for Child Law cases
as correct as otherwise the appropriate recognition of the legislated
benchmark set by the minimum sentences would not be given as is
required by the statute.
Crucial to second respondent's submissions in support of the
contention that sections 14(1)(a)(ii) and 14(1)(b). are not
unconstitutional is the reliance placed on the following passage from
which the Constitutional Court said:
On the construction that Malgas
on the concept 'substantial and compelling circumstances' in s
51(3)(a), which is undoubtedly correct, s 51(1) does not require the
High Court to impose a sentence of life imprisonment in circumstances
where it would be inconsistent with the offender's right guaranteed
by s 12(1)(e) of the Constitution. The whole approach enunciated in
in particular the determinative test articulated in para I of the
summary, 59 namely:
'If the sentencing court
on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence'
plain that the power of the court to impose a lesser sentence than
that prescribed can be exercised well before the disproportionality
between the mandated sentence and the nature of the offence becomes
so great that it can be typified as gross. Thus the sentencing court
is not obliged to impose a sentence which would limit the offender's
s 12(1)(e) right. Accordingly s 51(1) does not compel the court to
act inconsistently with the Constitution. It is necessary to
emphasise the difference between the two tests, because they serve
different purposes. The test in Malgas
be employed in order to determine when s 51(3)(a) can legitimately be
invoked by a sentencing court to pass a lesser sentence than that
prescribed by s 51(1) or (2). The test of gross disproportionality,
on the other hand, must be applied in order to determine whether a
sentence mandated by law is inconsistent with the offender's s
12(1)(e) right. It has not been suggested that s 51(1) compels the
sentencing court to act inconsistently with the Constitution in any
The Constitutional Court in Dodo
p393C-D) accepted the interpretation of the words substantial and
compelling circumstances in Malgas,
summarized at para 25 of the latter judgment, as being an
"overarching guideline" which is one that the Court
endorsed "as a practical method to be employed by all judicial
officers faced with the application of s 51" and continued:
"It will no doubt be
refined and particularised on a case by case basis, as the need
arises. It steers an appropriate path, which the Legislature
doubtless intended, respecting the Legislature's decision to ensure
that consistently heavier sentences are imposed in relation to the
serious crimes covered by s 51 and at the same time promoting 'the
spirit, purport and objects of the Bill of Rights'."
The Constitutional Court did not go further by specifically
considering in more detail the requirement set by Malgas
para. [25J], namely that "...the sentence to be imposed in lieu
of the prescribed sentence should be assessed paying due regard to
the bench mark which the Legislature has provided." This
requirement is expressed in more detail earlier in Malgas
p1235E) when the Supreme Court of Appeal said that when a lesser
sentence is imposed the courts are "...to respect, and not
merely pay lip service to, the Legislature's view that the prescribed
periods of imprisonment are to be taken to be ordinarily appropriate
when crimes of the specified kind are committed."
The more disproportionate the standard set by the Legislature becomes
through the benchmark set, the more difficult it becomes for the
courts to pay "due regard" to the benchmark, until a stage
is reached where it becomes intolerable. At such a stage any
professed regard being paid to the bench mark would indeed be mere
"lip service". In my view such a stage has been reached
with respect to a large number, if not the majority of stock theft
cases where the value of the stock is above N$500. I am not referring
here to serious cases where a large number of animals are stolen or
slaughtered or where the total value is much higher than N$500.
Forexample, in the recent case of Erastus
Munongo v The State (High
Court Case No. CA 104/2010, unreported judgment dated 2 December
2010), which involved the theft of a single goat valued at N$600, the
Court held (at para. ) on the facts of that case that "...it
would be an injustice to impose such severe sentences as the bench
mark, simply because the value of the livestock brings the case
within the ambit of the prescribed minimum of not less than twenty
years imprisonment." Eventually the Court, having found that
there were substantial and compelling circumstances, imposed a
sentence of 2 years and 5 months imprisonment, a far cry from the
prescribed sentence of 20 years imprisonment.
 It becomes clear
that any appropriate lesser sentence imposed in such circumstances
can therefore never be divorced entirely from the minimum sentences
ordained by the legislature. If this obligatory regard to- and
mandatory linking of an appropriate lesser sentence to the benchmark
set by the minimum sentencing regime nevertheless results in a
'shocking' or 'disproportionate' sentence',
a violation of an accused's Article 8 right would have occurred.
While it is accepted that all this is relative, as this ultimately
depends on how high the benchmark has been set, it does not take much
to imagine that a violation of the Article 8 rights of accused
persons, with respect to 'hypothetical cases which can be foreseen as
likely to arise commonly', will occur, if the benchmark in question,
were set too high. Mr Coleman, fairly and correctly, in my view,
conceded this possibility, when this was put to him by the Court.
 This is however
precisely also the situation that arises in the present case for the
various reasons and examples advanced by Mr Trengove and as also the
Daniel and Peter cases illustrate.
More particularly Mr Daniel was 21 years old. He was convicted of the
theft of nine goats worth N$4450.00. He was a first offender without
any previous convictions. He admitted that he had stolen the goats
and explained that he had done so because, "I
am an orphan, both parents are deceased. I committed this offence to
survive that is all". He
was sentenced to 20 years' imprisonment.
 Mr Peter's
co-accused 3, 4 and 5 were young first offenders of 20, 21 and 25
years respectively. They were convicted of participation in the theft
of a single cow. The court found that there were substantial and
compelling circumstances not to impose the minimum sentence because
of their relatively minor roles in the theft. It nonetheless
sentenced each of them to 15 years imprisonment of which five years
were conditionally suspended.
 Mr Peter was a 38
year old man. He was convicted of participating in the same theft of
a single cow. He played a more active role than his co-accused. He
was not the principal perpetrator. He had a previous conviction for
stock theft committed 11 years earlier. The court held that there
were no substantial and compelling circumstances and sentenced him to
30 years' imprisonment.
 Although the Peter
and Daniel examples make the point I keep in mind that the
constitutional validity of the two minimum sentences in question are
the only issue before the court and that I am not called upon to
determine the fate of theparticular applicants. The constitutional
validity of the minimum sentences under attack is therefore not
determined on the facts of the particular cases before the court, but
on the basis of the hypothetical cases that can be foreseen as likely
to arise commonly. It is in this respect that regard is had to the
examples referred to in paragraphs 31, 35 and 36 above. All these
hypothetical examples show that the resultant sentences, because of
the height of the bench mark set in the Stock Theft Act, would in
themselves be grossly disproportionate to the severity of the crimes
for which they would be meted out, and that they would be
irrationally severe if compared to the sentences for other equally
and more serious offences.
They would thus be rendered 'shocking' and 'disproportionate' in the
constitutional sense because of the level to which the bench mark in
the Stock Theft Act was raised by the amendment to section 14 brought
about by Act 19 of 2004.
 It is for these
reasons alone that the minimum sentences set by section 14(1)(a)(ii)
and 14(1)(b) of the Stock Theft Act do not pass muster.
There is however a further important consideration which underscores
the constitutional invalidity of these sections. It has already been
found in Vries
Parliament has deemed it fit to introduce minimum sentences 'in order
to attempt to counter the prevalence of stock theft and the effects
minimum sentences were subsequent to Vries
increased to their current particularly high level. Deterrence
therefore remains the cardinal feature of this minimum sentencing
regime. Human dignity and the de-individuation of any sentence to
such a degree that it loses the proportionality between the offence
and the periodof imprisonment can, of course, not be sacrificed on
the altar of deterrence in a constitutional dispensation, which has
been held to embrace a 'broad and universalist human rights culture
and which subscribes to the inherent dignity of all members of the
This was also recognised in Dodo
it was held that the concept of proportionality "goes
to the-heart of the inquiry as to whether punishment is cruel,
inhuman or degrading"
were the court went on to elaborate as follows:
" ... To attempt
to justify any period of penal incarceration, let alone imprisonment
for life as in the present case, without inquiring into the
proportionality between the offence and the period of imprisonment,
is to ignore, if not to deny, that which lies at the very heart of
human dignity. Human beings are not commodities to which a price can
be attached; they are creatures with inherent and infinite worth;
they ought to be treated as ends in themselves never merely as means
to an end. Where the length of a sentence, which has been imposed
because of its general deterrent effect on others, bears no relation
to the gravity of the offence... , the offender is being used
essentially as a means to another end and the offender's dignity is
This point is also made by Justice Sachs in Mohunram
v National Director of Public Prosecutions
formulated this principle as follows :
'Deterrence as a law
enforcement objective is constrained by the principle that
individuals may not be used in an instrumental manner as examples to
others if the deterrence is set at levels beyond what is fair and
just to those individuals. To do otherwise would be to breach the
constitutional principle of dignity.
 It follows therefore
that Mr Trengove's argument to the effect that "the minimum
sentences under attack in these applications are unconstitutional as
the legislature has resorted to minimum sentences which are grossly
disproportionate in that they unfairly and unjustly punish those who
are caught and convicted, not because their crimes deserve the
sentences meted out to them, but to deter others from committing the
same crime and that the people who fall foul of the minimum sentences
are thus used as instruments of deterrence in violation of their
right to recognition of and respect for their innate human dignity
and that they are therefore used as a means to an end and not as an
end in themselves as the Constitution requires, is correct and must
 The conclusion is
inescapable that the minimum sentencing regime created by section 14
of the Stock Theft Act has simply set the levels of deterrence beyond
what is fair and just to those caught up in it.
 For the aforegoing
reasons both sections 14(1 )(a)(ii) and (b) of the Stock Theft Act
are found to be unconstitutional and invalid.
THE QUESTION OF RELIEF
The parties were ad
the constitutional invalidity of both these sections would be cured
by merely striking out the periods of the minimum sentences they
prescribe while keeping intact their prescription of imprisonment
without the option of a fine, as such approach would leave intact the
underlying principle, that the perpetrators of stock theft should be
I agree that this would be the correct approach as the essence of the
sections would remain intact, and as "this approach would at the
same time give recognition to the intention of Parliament while also
recognising the ordinary citizen's innate right to dignity and the
right not to be subjected to 'cruel and/or degrading punishment".
That is not to say that in appropriate cases very lengthy periods of
imprisonment may not be imposed. All the other sentiments and grounds
as expressed in motivation of this apposite type of relief by Frank J
also of direct application herein.
 As the logical
consequence of only striking out the periods of the minimum sentences
referred to in sections 14(1)(a)(ii) and 14(1)(b), while leaving the
cross reference to section 14(1)(a) and 14(1)(b) as contained in
section 14(2) unqualified, would cause an obvious and irreconcileable
discrepancy to the entire structure of section 14, it has become
necessary to also effect, at the same time, a consequential
qualification of the
affected provisions of section 14(2). This power is exercised in
terms of Article 25(3) of the Constitution.
 In the result the
following order is made:
a period not less than twenty years" are
struck from section 14(1)(a)(ii) of the Stock Theft Act 12 of 1990,
a period not less than thirty years" are
struck from section 14(1)(b) of the Stock Theft Act 12 of 1990, as
amended; the reference to "subsections
(1)(a) and (b) " in
section 14(2) of the Stock Theft Act 12 of 1990, is consequentially
read down to mean "subsection
the second respondent is
ordered to pay both applicants costs of two instructed and one
VAN NIEKERK, J
BEHALF OF THE APPLICANT: MR.
W. Trengove, sc
Assisted by Mr N. Tjombe
INSTRUCTED BY: Legal
BEHALF OF FIRST & THIRD RESPONDENTS: MR.
N. N. Marcus
BEHALF OF SECOND RESPONDENT: