Group
b)
the? material relied upon consists of one or more statements by a Minister or other promoter of the 3ill together if necessary with such other parliamentary material as it necessary to understand such statements and their effect; andEven if this approach were to be accepted in Namibia, for the reasons which follow, I am of the opinion that it would be unsafe to have regard to the debates before us and that we should decline to do so. Even if it were to be assumed that the relevant provisions of the Constitution are obscure the statements made during the debate are inconclusive. I have read the debates with close attention: while there is no doubt that it was the intention of the Minister to create the oace of a Prosecutor-General who would be independent, problems arose as to where he would be housed and how his office would fit in with that of the Attorney-General. The debate ended on an inconclusive note, the matter being referred to "the lawyers". In these circumstances it is my view that the conditions laid down in English cases have not been satisfied and that therefore' we should not have regard
I turn now to consider Mr Soacrott's argument that his case is supported both by the position in the United Kingdom as well*'-as that which applies in the Commonwealth countries.
V
For the reasons which follow, I am of the view that that argument cannot prevail.
In the United Kingdom, the Attorney-General was so-called in 1461 (D HOOD PHILLIP'S Constitutional and Administrative Law page .334) . The original once of the Director of Public Prosecutions was created in England in 18 7 9 which was in the penultimate year of the second and final term of office of the Disraeli administration. The essential character of the relationship between the Attorney-General and the Director of Public Prosecutions is expressed in section 2 of the enactment which speaks of the Director acting "under the superintendence of the Attorney-General" and "as may be directed in a special case by the Attorney-General". (see The Once of the Attorney-General New Levels of Public Expectations and Accountability by PROFESSOR JOHN EDWARDS, Professor Emeritus, Faculty of Law and Centre of Criminology, University of Toronto at page 9) .
"Superintendence" is defined by the Shorter Oxford Dictionary as being: "the function or occupation of a superintendent; the action or work of superintending" and the relevant meaning of "superintending" is given as: "to exercise supervision over (a person)". "Superintendent" is
defined as "one who superintends, an officer or official who has the chief charge, oversight, control or direction of some business, institution or works".
I pause to observe that unless sec 3(5) of Act 51 of 1977 is applicable, there is nothing whatever in the Namibian Constitution which expressly makes the office cf the Prosecutor-General subject to' the superintendence or direction of the Attorney-General.
Furthermore as I am about to demonstrate, it is extremely unlikely that prayers (i) and (ii) of the Petition would succeed even in an application brought in the United Kingdom today. It is clear from my reading on that subject that, despite the role of superintendence exercised by the Attorney-General over the office of the Director of Public Prosecutions, that the relationship has become a subtle and complex one upon which there is no clear measure of agreement.
A hundred years after the introduction of the 1379 enactment, the then Attorney-General Sir Michael Havers speaking in the House of Commons declared:-
"My responsibility for superintendence of the duties of the Director does not require me to exercise a day-to-day control and specific approval of every decision he takes. The Director makes many decisions in the course of his duties which he does not refer to me but nevertheless I ami still responsible for his actions in the sense
20
that I am answerable in the House for what he does. Superintendence means that I must have regard to the overall prosecution policy which he pursues. My relationship is such that I require to be told in advance of the major, difficult, and, from the public interest point of view, the more important matters so that should the need arise I am in the position to exercise my ultimate power of direction."
Other respective holders of each of the offices in question have taken a somewhat different view. They are referred to at length in a chapter of Professor Edwards' paper en The Attorney-General, Politics and the Public Interest, (1984) SWEET and MAXWELL pp. 53-73; see also Prosecution and the Public Interest by Sir THOMAS HETHERINGTON (Waterloo Publishers pp. 37-45).
In his article, Sir Thomas Hetherington (at p. 42) refers to what Professor Edwards said in his paper (supra cit) where he refers to the Upjohn Lecture given by Sir Thomas on his understanding of the Director's constitutional position when Sir Thomas said that:-
"He is under the superintendence of the Attorney-General and the Attorney-General may give him directions in a special case although in practice he has never done so in mv experience. There is frequent consultation but the Attorney-General does not exercise control over the majority of the Director's decisions, and the Attorney is not, and
21
never has been responsible for the Director to the extent that a Minister is responsible for his office. On the other hand/ because of his general superintending role, the Attorney is answerable to Parliament for the way in which the Director ? s- carries out his duties. That was the position in 1879 and it remains precisely the same under the Consolidating Act of 1979."
Sir Thomas also refers wich approval (at page 43) to the view of a former Attorney-General Mr Silkin:-
"Some seem to think that the Director is a mere creature of the Attorney-General. They are mistaken. The Director is essentially an independent, non-political figure. His decisions are his own and not those of the Attorney-General. Indeed prosecutions under many statutes require his consent, which he is entitled to give or withhold without reference to the Attorney-General . However the powers and responsibilities of the Attorney-General necessarily involve a close and continuous relationship of trust between him and the Director. Each will consult the other, even when no statute obliges him to do so; they could not otherwise perform their respective functions effectively. Yet each is independent of the other" (My underlining)
Reference is made ir. the article to the famous case of the unsuccessful prosecution "of Mr Jeremy Thorpe, a former
Leader of the Liberal Party. That was a matter of great public interest yet the Attorney-General indicated that he did not wish to give the Director any directions about whether to prosecute Mr Thorpe and the Director and most others accepted that the Attorney-General had acted entirely in accordance with accepted constitutional principles and practice.
The above review of the position in the United Kingdom shows that even where the Attorney-General is given express statutory superintendence and direction over the omce of the Director of Public Prosecutions, in practice he seldom if ever exercises any control over prosecutions. Yet there is created and developed a constitutional relationship of trust between the holders of the respective oaces which involves frequent and regular consultation. Unless sec 3(5) of Act 51 of 1977 applies, the position -of the Prosecutor-General is an a fortiori one in the sense that there is nothing in the constitution which expressly places his once under the superintendence or direction of the Attorney-General.
The reliance by the Attorney-General on the provisions of Commonwealth countries rests upon even shakier foundations.
Professor Edwards, at a meeting of Commonwealth Law Ministers in August 1977 prepared a Discussion Paper entitled "Emerging problems in Defining the Modern Role of the OSce of the Attorney-General in Commonwealth Countries" (see Gretchen Carpenter: The Executive 1910 to
23
1983 Introduction to South African Constitutional Law at pp. 196-204). Professor Edwards refers to the fact that it is becoming increasingly evident throughout the Commonwealth that the traditional role of the Attorney-General is no longer uncritically accepted. In paragraph 13 of his paper (see page 200) he deals pertinently with the question whether the control of the entire machinery of criminal prosecutions, namely the initiation and the withdrawal of criminal proceedings should be in the hands of a political Minister or Attorney-General responsible to the Legislature, or be exercised by an independent non-political Director of Public Prosecutions who is a member of the public service. In either case there are the accompanying problems as to what are the essential ingredients of independence and accountability and how best can these basic constituent elements be combined and protected.
Paragraph 14 of the paper (see page 200) is of particularimportance. It reads:-
"A review of the existing systems of operating at present throughout the Commonwealth produces a somewhat bewildering series of alternative arrangements, the nature of which cannot be fully understood without reference to the prevailing political context of each individual country
Nevertheless, it may be helpful to identify
below the respective models, most of which derive from express provisions in the country's constitution though this practice is not universally adopted) in which event resort must be
24 had to other legislative sources to ascertain the precise formula that governs the exercise of prosecutorial functions.
Model No. 1
Where the Attorney-General is a public servant, combines with his office the public functions of a Director of Public Prosecutions and is not subject to the directions or control of any other person or authority. Countries exemplifying this model include Kenya, Sierra Leone, Singapore, Pakistan, Sri Lanka, Malta, Cyprus, Western Samoa, Bahamas, Trinidad and Tobago, Botswana and Seychelles (South Africa can now be added to this list.)
Model No. 2
The Attorney-General is a political appointment. He is a member of the Government but, although holding Ministerial office, he does not sit regularly as a member of the Cabinet. Alone of all the Commonwealth countries, strangely enough, the Attorney-General of England and Wales typifies this particular category.
Model No. 3
The Attorney-General is a member of the Government and, as such, is normally included in the ranks of Cabinet Ministers. In some jurisdictions, though this is by no means a universal practice, the
25
office of the Attorney-General is combined with the portfolio of Minister of Justice (or similar title) . Most of the Canadian provinces and the Federal Government have adopted this model. Other countries that fall within this category include ** Australia (both the States and the Commonwealth Government), Nigeria and Ghana. Where, in these jurisdictions there exists a Director of Public Prosecutions (or its equivalent), the Director is, in the ultimate analysis, subject to the direction and control of the Attorney-General.
Model No. 4
The Director of Public Prosecutions is a public
servant, who is not subject to the direction or
control of any other person or authority.
This model will be recognised as the classic
Commonwealth officer pattern which the United
Kingdom Government consistently sought to
incorporate in the independence constitutions of
many of the countries represented at the present
'meeting. Following independence in many
countries, this particular provision was changed
to bring the Director of Public Prosecutions under
the direct control of the Attorney-General.
Jamaica and Guyana, however, have retained the
total independence of the office of Director of
Public Prosecutions.
26 Model No. 5
The Director of Public Prosecutions is a public servant. In the exercise of his powers he is subject to the directions of the President but to no other person. This is the situation that ?? exists in Tanzania and which prevailed in Ghana during the latter stage of the first Republic from 1962 to 1966.
Model No. 5The Director of Public Prosecutions is a public servant. Generally the Director is not subject to control by any other person but if, in his judgment, a case involves general considerations of public policy, the Director must bring the case to the attention of the Attorney-General, who is empowered to' give directions to the Director. This model is applicable in Zambia alone at present. In Malawi, it is of interest to note, the Director is subject to the directions of the Attorney-General. If, however, the Attorney-General is a public servant, the Minister "responsible for the administration of justice may require any case, or class of case, to be submitted to him for directions as to the institution or discontinuance of criminal proceedings."
Professor Edwards subscribes to the importance of placing a high premium on safeguarding the independent, exercise of
27
prosecutorial decision-making. To do this it is necessary to resist improper political pressure. But this does not mean that the Attorney-General or the Director of Public Prosecutions should not have regard to the political considerations in the non-party political interpretation of the word- "politics".
y r
He concludes by observing (see page 202) that the basic question is who should be the final arbiter of legitimate political considerations affecting prosecutions, the Cabinet, the Prime Minister or Chief Executive, the Attorney-General or Director of Public Prosecutions if the Constitution has made the oSce truly independent.
There has been published a study entitled Chief Public Prosecutors: A Short Comparative Studv of the Constitutional Powers in Commonwealth Jurisdictions in 1992 bv the Commonwealth Leaal Advisory Service of the British Institute of International and Comparative Law, Mew Memoranda Series, Mo. 11.
In the study the point is made (see page 2) as to whether an Attorney-General who is a member of the Legislature and/or the Executive can ensure that any decision to prosecute or not to prosecute is based on important considerations and not on political ones.
"An attempt to solve this dilemma has been the creation in some jurisdictions of the office of D.P.P. The constitutional theory behind this is
28
that the D.P.P., or public servant, will exercise greater independence and impartiality than a political Attorney-General. However much depends on the constitutional powers granted to the D.P.P.; some D.P.P.'s are granted total ¡t independence in their powers to make decisions; while others are subject to the general or special directions of the Attorney-General. The degree of independence granted to the D.P.P. raised the issue of accountability. If the D.P.P. is subject to the directions of the Attorney-General, it is the Attorney-General who is accountable to Parliament. But unless the D.P.P. is totally independent, the accountability is obviously less direct."
The study (at page 3) refers to the four categories of constitutional arrangemer.ts which can, broadly speaking, be discerned in Commonwealth countries:
1.
A political Attorney-General2. A public service Attorney-General
3. A specially appointed public prosecutor subject to at least some specific directions of a supervisor
(including the Attorney-General) 4 . A specially appointed public prosecutor not subject to the directions of a supervisor.
It is pointed out that the distinctions between these categories is sometimes blurred and there follows a list of a number of countries falling into each category.
It is of interest to record that in the Study the following
is stated about Namibia (at page 6):-
"Article 88 of the Constitution creates the office of the Prosecutor-General with a general power, inter alia/ to prosecute in the name of the * Republic. But by Article 87, which creates the once of the Attorney-General one of the latter's powers and functions is to * exercise the final responsibility for the office of the Prosecutor-General' . Whether or not this gives the Attorney-General power to overrule the Prosecutor-General in the exercise of his power is for the moment unclear."
On the other hand, PROFESSOR ERASMUS has no such uncertainty. Writing in the Stellenbosch Law Review 1990(3) he expresses the following ¡ view at page 308 (my translation):-
"It has already been mentioned that the Attorney-General of Namibia is a new creation. It becomes a political appointment. The new Attorney-General becomes the chief legal advisor to the President and the Government and is also responsible for the office (kantoor) of the Prosecutor-General. The latter now fulfils the functions of the erstwhile Attorney-General but with considerably more independence. He or she has a constitutionally prescribed post and is solely responsible for decisions concerning criminal prosecutions. Neither the Attorney-General and even less the
30 Minister of Justice can give instructions to the Prosecutor-General."
The detailed provisions of the various Commonwealth countries are referred to in Mr Hennina's most impressive and comprehensive Heads of Argument. I do not wish to do any injustice to his industry and that of his junior by saying that it is noc necessary to refer to them. What is undoubtedly clear from the analysis above is that there is no single policy to be discerned in these countries as their constitutions have adopted different models and, in some cases, a hybrid mixture. Moreover in none of them has the same language been used as in the Constitution of Namibia. In these circumstances Mr Soacott's argument (which he advanced with much eloquence) relying on constitutions of the Commonwealth countries cannot prevail.
3efore expressing my final views on the remaining issues raised, I wish to say a word about the potential danger of political appointees deciding on when to prosecute and thereafter I shall deal with the concept of legality and the Rechtsstaat.
While is cannot for one moment be suggested that the present incumbent of the o’ce of the Attorney-General has behaved in an oppressive, arbitrary, unreasonable or unfair manner, there is in my view always potential danger of political appointees allowing political considerations to influence their decisions even subconsciously.
31 In a keynote address on the Decisions to Prosecute at the First Conference of Commonwealth Directors of Public Prosecutions (see Commonwealth Law Bulletin July 1991 at pp. 1032-1137) Mr Justice AYOOLA said this at p. 1034:-
"The manner in which such discretion is exercised
.* and the process of prosecutorial decision making
are central to the criminal justice system. If
prosecutorial decision's are to lead to public
confidence in the system and are to be consistent
with Human Rights Norms they must also not only be
just but also be seen to be so. The mechanism for
arriving at such decisions must itself be seen to
be such as can be conducive to fairness."
I respectfully agree. The learned judge went on to say at
page 1037:-
"Experience in many parts of Africa has shown that arbitrary and oppressive use of prosecutorial powers have often been potent weapons of fostering political ends to the detriment and ultimate destruction of democracy. On the other hand, experience, such as that of The Gambia, has also shown that where there is no abuse of prosecutorial powers public confidence in the Criminal Justice System is maintained."
The modern rule-of-law state or Rechtsstaat was created in the ashes of post-war Europe. On 23 March 1933, following the burning of the Reichstag on 28 February, Hitler persuaded it to pass an enabling Act which transferred its legislative powers to the '-Nazi cabinet; conferred on the
Administration the right to make changes to the Weimar Constitution and vested in Hitler the right to draft legislation. Thus was established the Nazi totalitarian state, as the enabling Act in effect meant the end of constitutional government in Germany for nearly two decades.
The weakness of the 1919 Weimar constitution, Hitler's enabling law of 1933, and the ultimate horrors of the Nazi totalitarian state were to lead, in 1949, to the creation of a constitutional democracy by the Basic Law of Grundgesetz. The Basic Law by the Federal Republic of Germany was adopted by the states (lander) of the former West Germany on 23 May 1949 following eight months of intensive negotiations by the Parliamentary Council.
According to LOAMMI C. BLAAU "The Rechtsstaat idea compared with the rule of law as a oaradiam for protecting riahts (1990) 107 SALJ 76, the Rechtsstaat concept was developed in early nineteenth century Germany. This was, however, the formal Rechtsstaat based on a simple concept of legality. The abuse to which this was put led to the material Rechtsstaat with its concept of higher juridical norms. The material .Rechtsstaat of which the Basic Law is a prime example, "'"obliges the legislature to act in accordance with the requirements of substantive justice when exercising its function of lawmaking." (BLAAU ibid 85).
The most outstanding characteristic of the material Rechtsstaat, based upon the formal concept of the Rechtsstaat, is that state authority is bound by a set of
33 higher juridical norms (Grundsatze). The realisation of these norms creates a situation which may be described in legal terms as materially just. The material aspect of the Rechtsstaat provides protection of rights within the normative structure of the Constitution.
?? "The aim is to keep lex and ius in harmony with each other/ that is to say the law as it is formally expressed by statute must also reflect proper ethical norms. The Constitution/ therefore, not only binds state authority to uphold procedural safeguards but also obligates the legislature to act in accordance with the requirements of substantive justice when exercising its function of lawmaking." (BLAAU at page 85 notes 59 to 61 and the writers cited) .
Namibia is a Rechtsstaat just as South Africa under the apartheid regime was not. The famous English poet W.H. AUDEN wrote cynically in 1940:-
"Law is neither wrong nor rightLaw is only crimes
Punished by places and times
Law is the clothes men wear
Anytime, anywhere,
Law is 'Goodmoming' and xGoodnight' " (see W.H. AUDEN 'Law like love' in the Norton Anthology of Poetry (1970) 1076 at 1077.
AUDEN's view of law captures the apartheid state: expedient, transient "and ultimately self-serving. By
34 contrast, Namibia which is properly founded on liberal democratic principles has created a constitutional state founded on law and justice and has thereby established a civil society. [And see also, with regard to the Grundnorm or basic or fundamental norm DIAS, Jurisprudence (4th ed.) 1975 at .pp. 4 93-495; WIECHERS in Essavs in Memory of Oliver Denvs Sc'hreiner (ed. E. Kahn 383 at page 3 90 where he deals with section 79(3) of the German Constitution.) Reference can usefully also be made to che leading Canadian case of R y Oakes (1986) 26 DLR (4th) 200. In that case che Canadian Supreme Court was asked to assess the constitutionality of a reverse onus provision in sec 8 of the Narcotic Control Act, 1970. This seccion provided that if a person was found Co be in possession of a narcocic the onus was on him to establish that he was not trafficking in drugs. The Supreme Court held that the provision was not constitutional as it undermined the presumption of innocence entrenched in the Canadian Charter which muse be interpreted ouroosivelv. The Court emphasised the importance of a purposive approach in examining any guarantee enshrined in the Charter. This shall be done "bv understanding the cardinal values it embodies" (see page 212) .
Againsc the background of the principles which I have discussed in some detail herein I turn now to consider whether sec 3(5) of Ace 51 of 1977 (The Ace) is applicable.
Seccion 3(5) of the Act provides:-
"An Attorney-General shall exercise his authority and perform his ? functions under the Act or under
35 any other law subject to the controls and directions of the Minister, who may reverse any decision arrived at by the Attorney-General and may himself in general or in any specific matter exercise any part of such authority and perform .* any of such functions."
The Attorney-General relies on Article 140(1) of theConstitution which provides:-
"Subject to the provisions of 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 argument for the Attorney-General is that as the Act was in operation immediately before Independence, that the Prosecutor-General takes the place of the former Attorney-General while the latter takes the place of the Minister, and that the Prosecutor-General (like the former Attorney-General) must now prosecute subject to the directions of the Attorney-General just as the former Attorney-General had to prosecute subject to the directions of the Minister under the Act.
With regard to Article 140, I refer again to the Cultura case (supra) where it was pointed out that many of the laws enacted by the South African Government during its administration of Namibia -were 'plainly inconsistent with
36 both the ethos and the express provisions of the Namibian Constitution and were therefore unacceptable to the new Namibia. They were open to challenge on the grounds that they were unconstitutional.Between ?1926 and the 31st December 1992 when sec 3(5) of the Act was repealed, the Attorney-General in South Africa prosecuted subject to the control and directions of the Minister. Before 1925 the Attorney-General was independent. On the other hand the Attorney-General of the former South West Africa was vested with absolute management and control of the right and duty of prosecution until 22 July 1977 when the Act was made applicable to the territory of South West Africa. All the relevant legislation in this regard is referred to in the Prosecutor-General's Heads of Argument (Head 12.1 - Head 12.19 which it is not necessary to repeat here). The analysis of the history of sec 3(5) of the Act indicates that it is the product of legislative developments peculiar to the Republic of South A.frica and out of step with the relevant legislation and constitutional evolution in Namibia. The latest South African legislation has restored the independence of the South African Attorney-General which is similar to the position he enjoyed prior to 1925. The South West African Attorney-General enjoyed independence at all material times until the Act was made applicable to the Territory in 1977. It was made applicable by an apartheid government bent on domination no doubt determined to enforce its political will on the independence of the prosecuting authority in South West Africa. I cannot believe for one moment that that would be in accordance with
37 ? the ethos of the Namibian people.
Section 3(5) of the Act is not the product of a Rechtsstaat and is not compatible with the Grundnorm relating to the separation of powers. It paves the way for executive domination and state despotism. It represents a denial of the cardinal values of the constitution.
The reasons advance above would in themselves justify the conclusion that sec 3(5) of the Act should be regarded by this Court as unconstitutional. 3ut there are ocher reasons why in my view sec 3(5) is not applicable. In the firsc place. Article 140(1) of the Constitution commences by stating "subject to the provisions of this Constitution" which signifies to me that Article 87 and 33 of the constitution which provide specifically for the powers and functions of the Attorney-General and the Prosecutor-General take precedence over the provisions of sec 3(5) .
In New Modderfontein Gold Mining Company v Transvaal Provincial Administration. 1919 AD 367 at 397 the Court cites with approval the following passage from an American decision '(Gorham v Luckett) : -
"And if this last Act professes, or manifestly intends, to regulate the whole subject to which it relates, it necessarily supersedes and repeals all former Acts, so far as it differs from them in its prescriptions. The great object, then, is to ascertain the true interpretation of the last Act. That being ascertained, the necessary consequence
38 is that the legislative intention thus deduced from it must prevail over any prior inconsistent intention to be deduced from a previous Act."
Secondly and allied to the last point is the significant change in language between sec 3(5) and Articles 87 and 88. Sec 3(5) of the Act expressly makes the Attorney-General subject to the directions of the Minister while Articles 87(a) and 88 use quite different language. Under Article 87(a) the Attorney-General exercises "the final responsibility for the office of the Prosecutor-General" while under Article 88 the' Prosecutor-General prosecutes, subject to the provisions of the Constitution, and performs all functions relating to the exercise of his powers. Sec 3(5) of the Act does not therefore apply.
In the light of what I have said earlier in this judgment on my understanding of the aspirations, expectations and the ethos of the Namibian people, it seems to me that one must interpret the Constitution in the most beneficial way giving it the full amplitude of the powers which are given to the Prosecutor-General. Thus interpreted, the o5ce, appointed by an independent body, should be regarded as truly independent subject only to the duty of the Prosecutor-General to keep the Attorney-General properly informed so that the latter may be able to exercise ultimate responsibility for the ofice. In this regard it is my view that final responsibility means not only financial responsibility for the oSce of the Prosecutor-General but it will also be his' duty to account to the President, the
39 Executive and the Legislature therefor. I accept that on this view of the respective Articles the "final responsibility" may be more diluted and less direct but it is nevertheless still possible for such responsibilicy to be exercised provided that the Attorney-General is kept properly informed. On this view of the matter the Constitution creates on the one hand an independent Prosecutor-General while at the'' same time it enables the Attorney-General to exercise final responsibility for the oQce of the Prosecutor-General. The notions are not incompatible. Indeed it is my strong view that this conclusion is the only one which reflects the spirit of the Constitution, its cardinal values, the ethos of the people, and articulates their values, their ideals and their aspirations. It also is entirely in accordance with the "uniquely caring and humanitarian quality of the Constitution. :'
In my judgment questions (i) and (ii) must be answered in the negative while question (iii) must be answered in the affirmative.
I would add only this. I would strongly recommend that, these issues having been settled, the Attorney-General and the Prosecutor-General adopt the English practice of ongoing consultations and discussions which would be in the best interests of the cause of justice and the well-being of all the citizens of Namibia.
L E ON , A. J. A.MAHOMED C.J.
DUMBUTSHENA J. A
40
(with him G.S. Coetzee)
INSTRUCTED BY: The Government Attorney
FOR THE RESPONDENT: P.V. Van R. Kenning S.C.
(with him C.H.J. Badenhorst)
INSTRUCTED BY:
Van Wyngaardt, Kock and Vander Westhuizen
MATTER ARGUED: 3 October 1994 and 0 December
1994
JUDGMENT DELIVERED:
13 July 1995