jtc book criminal procedure 2010 part 1

8/9/2019 JTC Book Criminal Procedure 2010 Part 1

1/34

1

June 8th, 2010

CRIMINAL PROCEDURE AND PRACTICE IN THE NAMIBIAN COURTS

An authorised Namibian adaption of the Legal Education & Development Courses for Candidate Attorneys

The syllabus is compiled by experts in practice. 2009 update by Dr IG Curlewis, Pretoria, adapted for Namibia by Prof. Nico Horn,

Windhoek with the financial assistance of the French Embassy, Windhoek.

Published by the Law Society of South Africa and its educational arm, LEAD as ePLT 2009.

Used under serial no. PLT 2009 -8277.

AIM

After completion of the course candidates should be able to apply the most important

principles and provisions of criminal procedure in the pre-trial, trial and post-trial stages of

criminal proceedings.

PLEASE NOTE THE FOLLOWING:

The application of the contents of these notes may differ from place to place.Where reference is made to the male gender, such reference also includes the female gender

and vice versa.

SYLLABUS

The purpose of the course is to provide a broad overview of the subject from a practical poi nt

of view.

During training, instructors will only cover those aspects which candidate attorneys will

encounter most often in practice the remainder of the course is self study.

1. INTRODUCTION

Criminal court practice is not confined to the proceedings that actually take place in court, but

encompasses the entire process which starts the moment when the attorney is approached to

assist a client who is suspected of having committed an offence or has become involved in a

criminal process of any kind whatsoever, and ends once the attorney has rendered the service

requested or when his/her mandate is terminated.

The assistance requested may range from a mere request for an opinion on whether or not

specific conduct constitutes an offence, or a request to represent a person who allegedly has

been wrongfully arrested or whose property has been seized wrongfully, to a request to

represent a suspect or an accused, or to initiate appeal or review proceedings or to makerepresentations on a client's behalf for a pardon or an early release from prison.

Although it would be impossible to cover all possible requests that may be put to an attorney

and to explain what should be done in each and every instance, we will attempt to explain the

general approach which an attorney should adopt in regard to the more general requests that

he will have to deal with.


2/34

2

2. SOURCES

2.1 CONSTITUTION

On 21 March 1990 the Constitution of the Republic of Namibia, Act 1 of 1990 came into

operation. Chapter 3 of this Act contains a Bill of Fundamental Rights which has had a dramaticeffect on the Namibian Law of criminal procedure. The Constitution also deals with the judiciary

and also creates the High and Supreme Courts of Namibia.

2.2 OTHER STATUTES

The main source of the South African law of criminal procedure and of evidence is the Criminal

Procedure Act 51 of 1977 (hereafter referred to as the "CPA"). By adopting the CPA, parliament

brought about an almost complete codification of the then South African and South West

African law of criminal procedure.

The CPA, however, is not the only Act which contains provisions which are applicable to

practice in our criminal courts. There are several other relevant statutory provisions in this

respect. The most important of these are contained in the Magistrates' Courts Act 32 of 1944

and the High Court Act, 16 of 1990.

In these notes we shall refer to the above-mentioned Acts and other statutory provisions where

applicable. The wording of statutory provisions will, however, not be reproduced in the pre-

documentation, since it is presumed that you are at least in possession of a copy of the Criminal

Procedure Act, as amended, and have access to all the other statutory provisions.

2.3 COMMON LAW

Despite the fact that our law of criminal procedure is, to a large extent, regulated by statute,

there are still certain areas of criminal procedure and evidence law which are still regulated by

common law. In instances of this nature one is obliged to turn to the general principles of the

law of criminal procedure or the law of evidence to find answers to one's questions.

Most of these issues have, at some stage or other, been considered by our courts, which have

made rulin

gs with regard thereto. In

such cases, on

e would obviously con

sult the law reports tofind answers to questions. Other issues have been discussed by some of our leading authors on

criminal procedure or evidence, and one may therefore consult their work to find some

guidance on how to deal with a particular problem. In those exceptional instances where one

fails to find answers to problems in either the law reports or the works of leading authors, one

is obliged to turn to the English law, which has to a very large extent influenced the

development of our law of criminal procedure and of evidence. This will require some research

into legal history. If such research also proves fruitless, one will, as a last resort, have to do


3/34

3

some comparative legal research in order to find out how similar problems have been dealt

with in other countries. This may offer possible solutions to the problem concerned, but one

will have to be extremely careful and wary of the fact that one is dealing with a foreign legal

system and cannot simply take over such principles without taking into account the difference

between the South African legal system and that of the foreign country concerned.

Section 140 of the Constitution provides in this respect that a court may have regard to

international law

The High and Supreme Courts have on several occasions took notice of comparative foreign

case law in interpreting the provisions of the bill of rights. In those judgements that have to

date been delivered on the influence of the bill of rights on criminal procedure, the courts

made extensive references to foreign case law. It seems as if this will remain the tendency in

future. In this regard it is important to note that the South African and Canadian Constitutions

are very similar to ours.

Apart from this, our case law is of course extremely important as far as the interpretation of the

relevant statutory provisions are concerned. In view of the stare decisis principle, lower courts

are generally bound by a higher court's interpretation of a statutory provision. Our law reports

therefore remain an important source of knowledge of the law of criminal procedure and of

evidence. Failure to do a proper search of court decisions relevant to your client's case may

result in you being confronted in court by a recent decision of which you were unaware and

which may necessitate a completely different approach from the one for which you prepared

yourself.

Because of our common history with South Africa, the pre-1990 judgments are still an

important source of our law and the post-1994 judgments of the South African Courts,especially the Constitutional Court has strong persuasive value.

It is presumed that you have access to the Namibian Law Reports (for the latest judgment see

the Namibian superior courts website) South African Law Reports as well as the South African

Criminal Law Reports and the Butterworths Constitutional Law Reports (BCLR).

2.4 TEXT BOOKS

Although text books cannever serve as an original source of the law, they probably represent

the starting point of any research which you may need to do on any legal problem. It goes

without saying that the law constantly changes and one should therefore always endeavour to

consult the newest editions of text books and should take note of every book's date of

publication and the so- called "cut-off" date. Developments since this date will not be dealt

with in the book and require further research.

Although you are not required to study specific textbooks for the purposes of the examination,

we would like to mention some of the most important works by some of our leading authors on


4/34

4

this subject. We will refer to some of these works in the material that follows, and assume that

you have access to them.

E du Toit et al Commentary on the Criminal Procedure Act (hereafter referred to as "Du Toit").

(This work is published in loose-leaf form and is regularly updated. It provides the wording of

sections of the CPA, as amended, as well as of certain sections from other Acts whereapplicable).

Lansdown and Campbell South African Criminal Law and Procedure Vol V Criminal Procedure

and Evidence (1982) (hereafter referred to as "Lansdown and Campbell").

V G Hiemstra Suid-Afrikaanse Strafproses (Fifth edition by J Kriegler) 1993 (hereafter referred to

as "Hiemstra"). (A yearly supplement is published to keep the work up to date between the

publication of new

Geldenhuys & Joubert Handbook on Criminal Procedure 1994 (hereafter referred to as

"Geldenhuys and Joubert").

Hoffmann and Zeffert Law of Evidence (Fourth ed) 1989 (hereafter referred to as "Hoffmann and

Zeffert").

Schwikkard and Van der Merwe Law of Evidence

Amoo, Introduction to Namibian Law, 2009.

Horn & Bsl (eds) Rule of Law in Namibia, 2008.

Horn & Bsl (eds)The Independence of the Judiciary in Namibia 2008.

Horn & Schwikkard Commentary on the Criminal Procedure Act of 2004 (out of print).

2.5 ARTICLES AND OTHER SOURCES

Academics at law faculties across the country (and sometimes even practising advocates,

attorneys and staff members of the Department of Justice) from time to time publish(sometimes extremely useful) articles or reviews of court cases dealing with a specific topic.

These articles appear in our legal periodicals. We assume that you have access to the major

legal periodicals published in South Africa. Doctoral and Master's theses may also be helpful.

Compulsory: Namibia Law Journal, three editions have already been published: Vol 1, nos 1 and

2 and Vol. 2 no. 1.

There are of course several other works which are excellent to consult regarding specific

sections of the law of criminal procedure or of the law of evidence, which are not mentioned

above. Where we refer to some of these in the course material, we will furnish you with full

particulars thereof.

3. PARTICIPANTS

The main participants in the criminal process are the police or other law enforcement agency,

the prosecuting authority, witnesses, the court (which includes the presiding officer and other


5/34

5

staff members involved in the administration of the court), correctional services, and last but

not least, the suspect, accused or convict and/or his representative.

In the following paragraphs a few remarks will be made about the role each of these

participants play. The role of the courts will be discussed in the section that follows.

Before embarking on this discussion, it is necessary to point out that the participants

mentioned above are not the only participants that take part in the administration of justice. In

certain instances, other persons may also play a role. In some cases a probation officer may be

requested to investigate the personal circumstances of an accused and to advise the court on

an appropriate sentence, while in other cases psychiatrists may be requested to advise the

court on the mental condition of the accused, i.e. whether he is fit to stand trial, whether he

was criminally responsible at the time of the commission of the offence and even to what

extent the mental condition of the accused contributed to the commission of the offence. We

will refer to the role of these participants in this documentation, but for the present we will

confine ourselves to the other participants who will always be present and take part in each

and every case.

3.1 THE POLICE OR OTHER LAW ENFORCEMENT AGENCIES

It is inter alia the function of the police to maintain law and order, to prevent crime and to

investigate crimes that were allegedly committed.

The police normally receive notice in one of the following ways that an offence has been

committed:

they may be present during the commission of the offence and witness the commissionthereof;

they may receive a complaint from the victim or his representative or a witness of an alleged

offence;

they may receive information from an informer or an interested party that an offence has

allegedly been committed or that an offence may possibly be committed; or

they may receive a request from the prosecuting authority to investigate an offence that was

allegedly committed.

Once the alleged commission of an offence has been brought to their attention, it is the duty of

the police to investigate the circumstances surrounding the alleged commission of the offence,

to establish whether an offence was, in their view, committed and, if so, to identify the

perpetrator. The police have wide-ranging powers to conduct investigations into alleged

offences. These powers include powers to enter property, to interrogate people, to arrest

persons, to search persons and premises and to seize objects. Once the alleged commission of


6/34

6

an offence is reported to the police, an investigating official is normally appointed to co-

ordinate the investigation. After having completed the investigation, the police will normally

furnish the National Director of Public Prosecutions or his representative with full particulars

concerning the circumstances surrounding the commission of the offence usually contained in

the police docket to enable him to decide whether or not to institute criminal proceedings

against the perpetrator.

The Namibian Police is not the only law enforcement agency in South Africa. By virtue of

regulations promulgated in terms of section 334 of the CPA, several other officials (such as

traffic officers and game wardens) are also regarded as peace officers for the purposes of the

CPA, which means that they may also exercise certain of the powers granted to police officials.

Furthermore, there are also statutes that empower other officials (such as custom officials,

certain inspectors, etc.) to conduct preliminary investigations. They will then hand over the

matter to the police, who will refer the results of all the investigations to the Prosecutor-

General or her representative for her consideration.

3.2 THE PROSECUTING AUTHORITY

Important reading:

Horn. The Independence of the Prosecutoria Authority in Horn and Bsl, Independence of the

Judiciary in Namibia

Ex Parte Attorney-General: In re the relationship between the Attorney-general and

Prosecutor-General, 1998 NR 282 (SC) (1),

A Prosecutor-General (PG) has the authority to prosecute on behalf of the State in the area for

which he has been appointed, and he does so in the name of the Republic.

As far as prosecutions in the High Court are concerned, a PG must personally decide whether to

institute a prosecution, although she may appoint a member of his personnel to conduct the

actual prosecution on his behalf. A member of his personnel is known as a State Advocate, but

are also referred to as High Court Prosecutors.

In the case of lower courts, the public prosecutor, as the representative of the PG and subject

to the con

trol of the Sen

ior Public Prosecutor an

d the deputy PG, is respon

sible for decidin

gwhether a prosecution should be instituted or not and to conduct the actual prosecution.

Once a case docket is received from the police, the PG (or senior public prosecutor in the case

of a lower court) normally appoints a public prosecutor from his staff to peruse it and advise

him on whether or not to institute a prosecution. It sometimes happens that the public

prosecutor needs further clarification or information in order to advise the PG (senior public

prosecutor). In such instances, the docket will be referred back to the police with instructions to


7/34

7

obtain clarification or to conduct further investigations. Once a decision has been made, the

police are advised accordingly. If a prosecution is instituted, a date is set for the trial and the

necessary indictment (summons in the case of a lower court) and subpoenas are issued and

served by the police on the accused and witnesses respectively.

In cases where the accused has been arrested and is still in custody, a slightly differentprocedure is followed. Since an arrested person has to be brought before a lower court within

the extended period of forty eight hours (provided for in section 50 of the CPA) or else be

released, a public prosecutor is often confronted with a case in which the accused has to be

released or be brought before a court, but in respect of which the police investigation has not

yet been completed and he is accordingly unable to proceed with prosecution.

In instances of this nature, the public prosecutor will normally (in consultation with the police)

peruse the available evidence, including the evidence upon which the police official concerned

made the decision to arrest the suspect, and then decide whether there is a reasonable

prospect that the police will be able to obtain sufficient evidence within a reasonable period of

time which would enable him to proceed to prosecute the suspect and whether or not it is in

the interest of justice that the accused remains in custody while the police conduct further

investigations.

If he is satisfied that there is a reasonable prospect that the police will be able to obtain

sufficient evidence within a reasonable period of time which would enable him to proceed to

prosecute the suspect, the public prosecutor will formulate provisional charges, but will request

that the case be remanded until a date in future (suggested by him or arranged with the

suspect's legal representative) by which date he is of the opinion that he will have sufficient

evidential material to proceed with a prosecution and to finalise the actual charges upon which

to prosecute the accused. If he is not so satisfied, the suspect will be brought before Court andthe prosecutor will withdraw the charges which will entitle the accused to his release.

If the PG decides not to prosecute in a particular case, section 7 of the CPA determines that she

must, on the request of an interested party who wishes to institute a private prosecution, issue

a certificate (nolle prosequi certificate) indicating that he has decided not to prosecute. Section

7 - 17 of the CPA provide for matters pertaining to the institution of a private prosecution.

There is a single national prosecuting authority established in terms of Article 78 of the

Constitution.

Any reference in any Act to anAttorney-General must be taken to refer now to the PG.


8/34

8

3.3 WITNESSES

We distinguish between state and defence witnesses.

3.3.1 STATE WITNESSES

A state witness is a person who has supplied the State (prosecutor/police) with information

regarding the commission of the offence and who may potentially be used by the State as a

witness against the accused at the trial. Previously where the need arised for the defence

attorney to consult with a state witness before judgement, he could only do so after having

obtained the permission of the public prosecutor or attorney-general concerned (Hassim 1972

(1) SA 200 (N) and 1972 SALJ 292).

In South Africa in Shabalala and Five Others v Attorney-General of the Transvaal and Another

1996 (1) SA 725 (CC) it was held that this rule must be qualified in the light of section 25(3) of

their Con

stitution

. section

25(3) of the Con

stitution

provides that every accused has a right to afair trial. According to the Constitutional Court this right requires that an accused be given the

opportunity to prepare his or her defence. According to the court this implies that the accused

must be allowed to consult with state witnesses after the accused has been charged and the

indictment or charge sheet has been served upon him or her. The court held that the DPP or his

representative must still be approached for permission to consult with state witnesses, he or

she may only refuse such permission if there are reasonable grounds to believe that such a

consultation might lead to the intimidation of the witness or a tampering with his or her

evidence or that it might lead to the disclosure of state secrets or the identity of informers or

that it might otherwise prejudice the proper ends of justice. The court stated that it is a

precondition that the witness agrees to be interviewed. Furthermore, the DPP/Prosecutor is

entitled to be present during the interview and may record what transpires during it. If the DPP

or his or her representative refuses permission for the interview to take place, the court may

exercise its discretion to order that the defence be allowed to interview the witness despite

such refusal (see par 72 of the judgment). The issue has not been raised in Namibia yet.

It is obvious that an attorney or his client may never attempt to influence state witnesses not to

testify against the accused, whether such consultation takes place with or without the

permission of the DPP or the public prosecutor concerned or not. Although this aspect will be

dealt with later on, it is necessary at this stage to refer to a similar situation with which

attorneys are from time to time confronted. The situation we are referring to, is that where the

client, and not the attorney, has spoken to a state witness and has in the process obtainedhighly relevant information which he then passes on to the attorney. If the client obtained this

information in innocent circumstances (e.g. during the alleged commission of the offence),

there is of course no reason why an attorney should not take note thereof and why he may not

make use of the information.

It sometimes happens, however, that the client approaches the state witnesses after they have

already become state witnesses. In such a case, the client's conduct may constitute an offence


9/34

9

and an attorney must consider carefully whether or not he should act on that information at all.

If a client for instance offers the attorney (as has happened in the past) a copy of the police

docket on the offence, an attorney should in principle refuse to accept it. A police docket often

contains privileged information to which an attorney or his client is not entitled. This fact has

been recognised in all judgments dealing with the right of access to information contained in

police dockets which have been delivered since the commencement date of the Constitution.To accept it would be highly unethical and would amount to conduct unbecoming an attorney,

apart from the fact that the circumstances in which it was obtained may indicate that an

offence was committed by the client. Only in exceptional circumstances, for instance where the

docket or other information obtained by the client supplies proof that he has been framed or of

corruption during the investigation, may an attorney decide to act on it. In such a case, the

correct procedure which an attorney should follow, would be to inform the public prosecutor

or PG concerned of the contents of the information received or of the fact that such proof is

contained in a docket handed to him, and to supply him with the information or a copy of the

docket.

The serious light in which interference with state witnesses is considered, is borne out by the

fact that bail applications are often refused because it is feared that an accused may interfere

with state witnesses. Access to information in a docket is not allowed for purposes of a bail

application unless the prosecutor consents thereto.

3.3.2 DEFENCE WITNESS

A defence witness is a person who is not a state witness and who may potentially testify on

behalf of the client and whose testimony would support the client's case.

It is the duty of the defence attorney to establish during consultation with the client whetherthere are any persons who could potentially testify in support of his client's case and, where

necessary, to consult with such persons to ascertain whether they will in fact be able to testify

on behalf of the client. Not only persons who will potentially be able to testify in support of the

client's innocence, but also persons who are able to testify in mitigation of a possible sentence

are potential defence witnesses and should also be consulted before they are approached to

testify.

Any witness not called by the prosecutor is available as a witness for the defence.

3.4 THE CORRECTIONAL SERVICES

The Correctional Services are responsible for detaining awaiting-trial persons as well as

prisoners sentenced to imprisonment. Once a person is sentenced to imprisonment, the court

issues a warrant in which the correctional services are ordered to take the person identified in

the warrant into custody and to detain him for the specified period. Immediately after sentence

is imposed, the person sentenced is removed from the court by the court orderly and taken to

the police cells at the court. The convict and the warrant is then handed to an official of the


10/34

10

Correctional Services who then removes the convict from the police cells to prison. Under

normal circumstances, the family and friends of the convict are allowed to see him before he is

removed by the official of the Correctional Services. The police official in charge of the police

cells is also normally able to inform the family and friends of the accused to which prison he will

be taken. Once a convict arrives at the prison, his personal belongings are taken into custody by

the officials of the prison, and he is issued with clothes and other necessities which he will needduring his stay in prison. On his arrival at the prison, the convict is also classified according to

the type of offence he was convicted of. This classification will play a role in determining where

he will be held and the type of privileges which he will be entitled to. In prison, the convict is

subject to strict discipline. During his stay in prison, the convict is monitored and his

classification may change from time to time according to the manner in which he conducts

himself. Reclassification may bring with it certain additional privileges, such as more regular

visits by friends and family, etc.

After a specified part of the term of imprisonment has expired, a report on the convict's

conduct in prison and readiness to be re-incorporated into society, is submitted to the parole

board, who may decide to release him on parole before the expiry of his actual term of

imprisonment. It is possible to make representations to the parole board and to bring facts to

their attention which have a bearing on the readiness of the convict to be re-incorporated into

society. Factors which will play an important role in influencing the parole board's decision, are

whether the convict will have a place to stay after his release on parole and whether an

employer is prepared to offer him employment after his release. Information in this regard may

be obtained from the prison where the convict is an inmate at that stage.

The Correctional Services are also from time to time responsible for the detention of persons

who have not yet been tried or convicted. Such persons are known as "awaiting-trial" persons.

Persons awaiting trial are detained separately from convicted prisoners and are not supposedto come into contact with convicted prisoners. They also en joy certain privileges which

convicted prisoners do not have. Their legal representatives are allowed to visit them during

reasonable hours and to consult with them in private. They are allowed to retain their personal

clothes and belongings that they will reasonably require.

3.5 THE CLIENT AND THE DEFENCE ATTORNEY

It isn

ecessary to poin

t out that the SouthA

frican

law of crimin

al procedure is based main

ly on

an accusatorial system in which the presiding judicial officer is supposed to be absolutely

impartial and to act in a certain sense as referee between the State and the defence who are

presenting their cases before him. An accusatorial system can, however, only function

effectively if the parties to the case are on an equal footing as far as their knowledge of the law

and experience are concerned. Although some concessions are made to an accused who is

unrepresented, the accusatorial system is not ideally suited to handle cases where there is an

imbalance in the legal expertise available to the respective parties to the case.


11/34

11

This means that if an accused is not represented by a legal representative, he might be

prejudiced by his own lack of knowledge and expertise, despite the fact that concessions are

made to accommodate him in the system. It is exactly for this reason that the system provides

for legal representation of the accused and in fact jealously guards this right.

However, one has to be aware that the opposite also applies. This means that once an accusedis in fact represented by a legal representative, it is presumed that the defence has the

necessary legal expertise to look after the interests of the accused. If the legal representative is

inexperienced, little if any allowance is made for such inexperience, and he is simply presumed

to be on an equal footing with the representative of the State. This means that inexperienced

legal representatives must take special care to prevent their inexperience from resulting in their

client being prejudiced.

The client is, as far as the defence attorney is concerned, probably the most important role

player of all. A client is normally a layperson as far as the law is concerned and normally

approaches the attorney because he realizes that he has no (or insufficient) knowledge of law.

Once a person briefs a legal representative to act on his behalf, the legal representative is

placed in a position in which he is afforded certain powers to perform certain acts on behalf of

his client. The client will under normal circumstances trust the judgment of his representative

(otherwise he wouldn't have approached him) and will do as his representative tells him to do.

This places a heavy burden on especially the inexperienced attorney to see to it that the client's

interests are looked after in the best possible way and that his own inexperience does not

prejudice his client. In this respect it is important to bear in mind that an accused is normally

bound by what has been done by his legal representative on his behalf during the trial -

Muruven 1953 (2) SA 779 (N).

The right to legal representation which was conferred by section 73 of the CPA is now alsoentrenched in the Bill of Rights inArticle 12 (e) and 95 (h) of the Constitution. The effect of the

entrenchment of this right in the Bill of Rights may, as has happened in the United States,

possibly be that a detained or accused personnow has the right to EFFECTIVE or COMPETENT

legal representation. Whether this right would be interpreted in a similar way in South Africa, is

debatable. Should an attorney be approached by a person and it appears from the consultation

that the person has been prejudiced as a result of being represented by an incompetent legal

representative, one may perhaps consider the possibility of taking the matter on review and of

arguing that our Constitution should be interpreted in a similar way as that of the United States.

In such a case it will be necessary to refer to cases in which this was held in the United States

(see eg McMann v Richardson 397 US 759 (1970); Cuyler v Sullivan 446 US 335 (1980); and

Strickland v Washington 466 US 668 (1984).)


12/34


13/34

13

Typically of the period, the government wanted to limit the rights of the courts to make

decisions that could place a financial burden on the State. Government felt that certificates

were issued indiscriminately by the judges without due regard to available funds with the result

that during successive years the funds allocated for legal aid were exceeded.4

Parliament

amended the Act and scrapped the mention sections by Act 17 of 2000.

The applicants in the court a quo concentrated on the amendments and requested the

High Court to declare them unconstitutional. The High Court found it unnecessary to entertain

the constitutionality or not of the amendments, as did the Supreme Court. The effect was that

the granting of legal aid in terms of the Act was taken from the High Court and placed solely in

the hands the bureaucratic structures of the Ministry of Justice.

The government attorney, who represented the appellant, argued that since principles

of state policy cannot legally be enforced by a Court in terms ofArticle 101, the courts have no

jurisdiction whatsoever to determine if and under what circumstances legal aid should be

awarded. Any instruction by the Court to the State to grant legal representative to an accused

would be inappropriate and an intrusionon the exclusive domain of parliament to decide howand in what way funds should be allocated to its various ministries.

5

The majority judgment, written by Justice Strydom, agreed that that art 95(h) expresses

only the intention of government to facilitate equality and justice by providing statutory legal

aid to those who qualify. The implementing legislation that gives effect to Art 95(h) is the Legal

Aid Act. With the amendment, the judges canno longer intervene where the Legal Aid Board or

the Director have turned down an application for legal aid. The Court calls this form of legal aid

statutory legal aid.6

However, this is not the end of the issue, as the government attorney argued. It may be

that the Court is of the opinion that a accused will under certain circumstances not receive afair trial in terms ofArticle 10 and 12 [especially subsection (1) (e)] of the Constitution if she is

not represented. Then it is the duty of the Court to ensure that steps are taken to guarantee a

fair trial. Article 12, being part of the enshrined Bill of Rights, is not part of the principles of

state policy and not subjected to budget constraints or availability of resources.

But how can the court obtain the leverage to instruct the government to grant legal aid

if it canno longer issue legal aid certificates? The Court begins its argument by pointing out that

the categories of fair trial elements mentioned in Article 12 are not closed. This was

demonstrated in State versus Scholtz7

where the Court looked at the principle of equality

before the law in Article 10(1) of the Constitution and concluded that state disclosure is a

principle of a fair trial.

Consequently, Article 10(1) is also a test to determine if a trial is fair in terms ofArticle

12. There can be instances where two people are equally placed, one may not get a fair trial

4Commentary of the Chief Justice in Mwilima case, p. 250.

5ibid., p. 255.

6ibid.

71998 NR 207 (SC).


14/34

14

because she does not qualify for legal representation in terms of the provisions of the Legal Air

Act or because of a lack of state resources. Yet, the limitations ofArticle 95 (h) and the Legal Aid

Act still stand between a fair trial and the accused. The Chief Justice found the answer inArticle

144 of the Constitution:

Unless otherwise provided by this Constitution or Act of Parliament, thegeneral rules of public international law and international agreements binding

upon Namibia under this Constitution shall form part of the law of Namibia.

Since Namibia ratified both International Covenant on Civil and Political Rights (ICCPR)

and its optional protocols, it forms part of Namibian law. Although the Court does not go into

the general rules of direct application, it found that ICCPR is indeed part of Namibian law and

the courts must accede to it. Section 14(3) of ICCPR is a combination ofArticles 12 (1) (e) and

95(h), without the limitations ofArticle 95, providing legal aid .. in cases where the interests

of justice so require, and without payment by him in any such case if he does not have sufficientmeans to pay for it. Consequently, as a party to ICCPR, Namibia is bound to apply section 14(3)

in its local jurisdiction.

The two judges who wrote separate judgment agreed with the principle that the State is

bound under the specific situation to grand legal aid to the accused. It is necessary for this

study to go into the separate judgment. Suffice to say that Judge O Linn suggest that the idea

of two forms of legal aid is confusing. All legal aid, he holds, is grounded in the Legal Aid Act.

But in terms of the provisions of ICCPR and taking Article 95 (h) in consideration as a principle of

the State in effecting justice, the court can instruct the state to provide legal aid, irrespective of

the fact that specific budget may be depleted.

The Court made it clear that legal aid will never be automatic. The Court will always

have to satisfy itself that it is indeed in the interest of justice to grant legal aid in a specific case,

and that the refusal of legal aid will make a fair trial impossible.

The judgment was a clear message to the legislator. The protection granted by the

Constitution and especially the Bill of Rights (chapter 3) cannot be annulated by innovative

legislation. Justice O Linn made the following comment:

If the intention of the amendment was to exclude the function of the Court, it

was an exercise in futility, because as shown in this decision, the Court retains

the power in accordance with arts 5 and 25 of the H Namibian Constitution to

decide whether or not legal aid must be supplied by the Government (the

executive) and/or the Director of Legal Aid to ensure a fair trial as

contemplated by arts 12 and 10 of the Namibian Constitution and s 14(3) (d)

of the aforesaid convention on political and human rights which is I part of the

law of Namibia.8

8ibid., p.279.


15/34

15

The direct application of the Section 14 of the ICCPR was an innovative and exciting

development in constitutional jurisprudence in Namibia, albeit somewhat nave. The constant

reference to The Covenantgives the reader the impression that the Court is not aware of the

other Coven

an

t The Coven

an

t on

Social, Econ

omic an

d Cultural Rights, (ICSECR) which wasratified by Namibia on 28 November 1994, the same day that it ratified ICCPR.

Nevertheless, judgment open the door for litigation based on a violation of social and

economic rights. If the constitutional mothers and fathers included Article 101 to make sure

that government is not burdened with litigation laying claims on economic and social benefits

envisaged inArticle 95, the Mwilima case came as a wakeup call.

Nakuta reminds us that Namibian litigation has done little to improve the socio-

economic fate of the vast number of poor people and to narrow the gap between the rich and

the poor.9

He reminds his readers of the fact that the Vienna Convention has declared that all

huma rights are un

iversal, in

divisible, in

terdepen

den

t an

d in

terrelated.

10

However, in Namibia civil and political rights has a vast advantage over social and

economic rights, mainly because of the exclusion of social and economic rights from the Bill of

Rights and the limitation to litigate placed on the economic rights by Article 101. Nakuta argues

correctly that the drafters of the Constitution bought into the idea that social and economic

rights were not true rights.11

As a consolation prize, some social and economic rights were listed

in Chapter 11 as principles of State Policy. Instead of second generation rights being human

rights entitlements and tools of empowerment, the poor are still left at the mercy of

government policies and programmes.12

Without referring to the use of the ICCPR in the Mwalima case, but with reference to

two other Namibian cases,13

Nakuta concluded that economic and social rights can be brought

to the Namibian legal agenda through an original application ofArticle 144 of the Constitution.

He also proposed an indirect application of civil and political rights to litigate for second

generation rights.14

Several civil and political rights have social and economic consequences. If

the right to dignity (Article 8 of the Constitution), is taken seriously, social and economic issues

cannot be ignored. How can a person have dignity if she is forced by poverty to live on the

streets, have no prospect to earn a decent living or the possibility to take care of her children?

9

Nakuta, J. 2008. The Justiciability of Social, Economic and Cultural Rights in Namibia and the Role ofthe Non-governmental Organisations, in Horn, N. and Bsl,A. 2008. Human Rights and the Rule of Law inNamibia. Windhoek: MacMillan Namibia, p. 89 ff.10

Quoted on ibid., p. 91.11

ibid., p. 95.12

See ibid., p. 95, as well as the work quoted by Nakuta: Asbjrn, E & Allan, R. 2001. Economic andSocial Rights and Cultural Rights: A universal Challenge.Dortrecht:Martinus Nijhoff, p. 3.13

The first Kauesa case supra. See footnote xxx above. Muller and Engelhard versus Namibia,CCPR/c/74/D?919/2000.14

Supra, p.98 ff.


16/34

16

Nakuta quotes an Indian case India has the same limitation clause and inferior position

of economic rights in its constitution to prove his point:15

(t)he right to life includes the right to live with human dignity and with all that

goes with it, namely the bare necessities of life such as adequate nutrition,

clothing, shelter

16

The point is clear. The Mwilima case opened the door for more innovative

jurisprudence. One question remains: Is it a valid interpretive model used by the judges or is it

what the government attorney called inappropriate and an intrusionon the exclusive domain of

parliament to decide how and in what way funds should be allocated to its various ministries,

and to add Judge O Linns comment, a wrongful and unlawful intrusion?17

The old majoritarian argument also applies here. It was well articulated by the

Government Attorney. If the Constitution makes the granting of legal aid dependent upon

resources and the kind of cases, and the Constitution further stated that Chapter 11 rights (or

Principles of State Policy) cannot be enforced by the Courts, then how is it possible that a Court

can intrude on this exclusive domain of Parliament and force government to allocated money

to a case that was denied funds by the State functionaries? Is the Court not making law here?

And how can the Court rely on a human rights instrument ifArticle 144 of the Constitution

clearly states that Namibian statutory law and the Constitution take precedence over principles

of international law?18

The Government Attorney gave more weight to her position by stating that the

government believes in equality before the law. Therefore it cannot deplete its legal aid budget

on just one case. This seems to be a fair point.

However, the decision of the Prosecutor-General to prosecute all 128 accused for all the

crimes listed in the indictment and especially for high treason, does not make much legal sense.

Since high treason has to do with the attitude of the accused, his intention to overthrow the

government, even the apartheid government seldom succeeded in convicting high numbers of

accused in one case.

Taken into account that many of these accused are linked to the crime only indirectly by

applying the so-called common purpose doctrine,19

the modus operandi of the Prosecutor-

15

Ibid., p.99.16Mullin versus The Administrator,1981. 2SCR 516 at 529, quoted in ibid.

17If the intrusion is not illegal and wrongful, the judge suggested,

18 Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public

international law and international agreements binding upon Namibia under this Constitution shall formpart of the law of Namibia.(Underlining mine JNH).19

The doctrine, valid and acknowledge by most common law jurisdictions, is applied primarily when aobvious conspirator cannot be linked directly to a crime. The school example is the driver of the runawaycar in robbery cases. While he is not present when the pistol is pulled, or the money taken, his actionsshow that he has common purpose with the main perpetrators. In the apartheid era the doctrine was often


17/34

17

General can be questioned.20

While the Prosecutor-General cannot be blamed for using the

traditional test of aprima facie case, the external pressure did not make things easier.21

However, while the Prosecutor-General could have made the process less complicated,

it still does not solve the conflict between the government and the Supreme Court.

used against people who joined a looting mob or were part of a protest march where some protesters

committed crimes.20There is no precedent in Namibia to take the Prosecutor-General on review for his decisions to

prosecute or not, or how and whom to prosecute in a specific situation. See Uanivi, U. 2007.xxxxxx ,Windhoek: University of Namibia. Unpublished LLM thesis.21

This is not to say that the Prosecutor-General made a political decision. Since the Prosecutor-Generalis not compelled to give reasons for his decisions, the public will never know why he prosecuted as hedid. The Prosecutor-General at the time, Adv. Heyman, was not known as one who tried to pleasepoliticians (see the Ex Parte Attorney-General/Prosecutor-General case.). It is nevertheless possible thatall the pressure and emotional appeals made it easy for the Office of the Prosecutor-General not toconsider arguments beyond prima facie evidence.


18/34

18

4.1 HIGH COURTS

See Amoo chapter 4

The high courts in Namibia are divided into the Supreme Court, and the High Court.

The Supreme Court was established by Article 79 of the Constitution. There is only oneSupreme Court and its seat is in Windhoek. The chief justice of Namibia is appointed to head

this court. Judges of the Supreme Court are appointed by the President mostly from the ranks

of judges of the High Court. The Supreme Court has never had more than two permanent

judges. The Court relies on acting appointees to fulfil its mandate.

The High Court of Namibia was established by Article 80 of the Constitution. There is only one

High Court, with two seats, one in Windhoek and one in Oshakati.

Judges of the High Court are appointed by the President acting upon the recommendation of

the Judicial Service Commission

. The judge presiden

t heads the court.

A clerk is appointed to every Judge. The Judge's clerk performs the duties of registrar of the

court when the court is in session. This inter alia means that he is responsible to have witnesses

sworn in. The Judge's clerk in practice also performs certain secretarial functions for the Judge.

If one wishes to approach a Judge in chambers (his office), one would for instance approach the

Judge's clerk who will accompany you, announce you and introduce you to the Judge when he

is available.

As soon as the Court is ready, the Judge is informed thereof by a police official (court orderly)

who will also escort the Judge to the Court.

A registrar is appointed for the High and Supreme Courts. The registrar is responsible for

performing certain administrative functions and has administrative staff under his control to

perform the various tasks on his behalf.

4.2 LOWER COURTS

The only lower courts with which we are concerned at this stage are the regional courts and

magistrates' courts (district courts).

A magistrate's court is instituted for a particular district, while the regional court is appointed

for all of Namibia, with seats in several regions.

Regional court magistrates act as the presiding officials in regional courts, while magistrates act

as presiding officials in magistrate's courts.


19/34

19

A magistrate is appointed as head of the magistrate's office. His first responsibility is the

administration of the courts at that office. Although the magistrates, regional court magistrates

and public prosecutors at that office fall under the head of the office for administrative

purposes, they are all bound by their oath of office to apply the law as it stands, and the head

of the office may not interfere in their adjudication of cases. Public prosecutors are responsible

to the National Director and DPP of the area for the manner in which they handle cases and notto the head of the office (who may also not interfere with the way in which they exercise their

discretion).

The head of the office has administrative personnel under him to perform the administrative

functions at the magistrate's office. These functions are similar to those performed by the

administrative personnel of the registrar of the High Court. In magistrates' courts and regional

courts there are of course no judges' clerks as in the High Court. The duties performed by the

Judge's Clerk in the High Court are in the Lower courts mainly performed by the Clerk of the

Court. Some of the functions are done by the Presiding Officer himself, eg. to sworn in

witnesses.


20/34

20

ABSTRACT

THE INDEPENDENCE OF THE MAGISTRACY

The position of magistrates as part of the independent judiciary in terms of the

Namibian Constitution has been discussed at several magistrates conferences since

independence. However, the issue was only given serious attention when the magistrate of

Gobabis took a decision of the permanent secretary of the Ministry of Justice to transfer to

Gobabis him on review.

The Supreme Court ruled that in the light of the constitutional independence of the

magistrates, the general practice to see magistrates as public servants, is unacceptable.22

Referring to the South African constitutional Court case Van Rooyen and Others versus The

State23

the Court stated that it does not mean that they should be appoint in the same manner

as judges. The Namibian Constitution makes a clear difference as well. Judges are appointed by

the President upon recommendation of the Judicial Service Commission, their salaries may not

be reduced an

d the an

d the circumstan

ces in

which they may be removed from office areprescribed.

The Constitution does not render the same protection to magistrates. There is not even

an indication that they must be appointed by an independent commission.24

However, that

does not mean that their independence should not be protected. Yet, the hierarchical

differences between magistrates and prosecutors must be taken in consideration. Magistrates

have a lesser jurisdiction,25

they do no not have constitutional review powers, i.e. they cannot

strike down unconstitutional laws, they are courts of first instance,26

aggrieved persons can

take all the judgments of the magistrates courts on appeal and longer sentences of district

courts are automatically reviewed by the High Court.

The Court made it nevertheless clear that the independence of magistrates are part of

the constitutional dispensation an so clear, that the judge in the court a quo was correct in

22Mostert versus Minister of Justice, 2003 NR 11 (SC).

232002 (5) SA 246 (CC); 2002 (8) BCLR 810.

24Art. 83, dealing with lower courts, reds as follows:

(1) Lower Courts shall be established by Act of Parliament and shall have the jurisdiction and

adopt the procedures prescribed by such Act and regulations made thereunder.

(2) Lower Courts shall be presided over by Magistrates or other judicial officers appointed in

accordance with procedures prescribed by Act of Parliament.

25The jurisdiction of regional court magistrates have increased tremendously after independence. A

regional court magistrate can trial any crime except high treason, including murder and rape. She canbestow a sentence of twenty years per charge.26

The Community Courts Act has given district courts appeal powers over the community courtjudgments. The Act, although promulgated in 2004, has not been enacted yet.


21/34

21

refusing to make a declaratory order to that effect. Article 78,27

dealing with judicial

independence, the Supreme Court stated, dealt with all the courts in Namibia.28

Since the legislator did not comply with the expectation ofArt. 78 of the Constitution to

pass legislation regulating an independent magistracy, the Permanent Secretary of the Ministry

of Justice just took over the pre-in

depen

den

t role of the SouthA

frican

directors an

d the lawsregulating the Public Service. Consequently, magistrates in Namibia were seen as public

servants and dealt with in terms of the Public Service Act 13 of 1995. The authority of the

permanent secretary to transfer magistrates (the issue of the Mostert case), was derived from

section 23 (2) of the Act.

Before independence both South African and Namibian magistrates courts were

regulated by Act 32 of 1944.The Act dealt with magistrates as part of the public service. The

magistrate was not only to be the presiding officer in the magistrates court, she was also the

head of the office and had to deal with leave of the clerks and prosecutors, the daily

administration of all aspects of the office, such liquor licenses, tax and VAT collections, issuing

of birth certificates, and all other functions assigned to the office.

The main bone of contention of the appellant , Magistrate Mostert, was the power of

the Minister of Justice to appoint magistrates. The Act was amended by Act 1 of 1999, but the

amendment was not aimed at bringing the magisterial profession in line with the Constitution.

On the contrary, the Minister not only remains as the appointing officer of magistrates, she

also received the power to appoint any other competent staff member in the Public Service or a

competent retired staff member to act in the place of an absent or incapacitated magistrate.29

The main objective of the amendment was to deal with the legality of regional court

magistrates. After independence the Appointments Advisory Board, a South African body

dealing with the appointment of regional court magistrates, seized to deal with Namibianappointments. The Minister just took over the boards functions. The amendment gave legality

to this practice. In effect, the Minister gained total control over the appointment of

magistrates.

27Sections 2 and 3 reads as follows:

(2) The Courts shall be independent and subject only to this Constitution and the law.

(3) No member of the Cabinet or the Legislature or any other person shall interfere with

Judges or judicial officers in the exercise of their judicial functions, and all organs of the State

shall accord such assistance as the Courts may require to protect their independence, dignity

and effectiveness, subject to the terms of this Constitution or any other law.

282003 NR p.31.

29Subsection 3.


22/34

22

The Supreme Court concluded correctly that the amendment did not give effect to Art.

83 (1) of the Constitution.30

The Chief Justice then made the following comment regarding the

two Acts:

It seems to me futile to leave intact the provisions of Act 32 of 1944 which are

in conflict with the Constitution. To do so would be to give legal impetus toprovisions which are not constitutional. In my opinion it is necessary to finally

cut the string whereby magistrates are regarded as civil servants, and that will

only be possible once new legislation completely removes them from the

provisions of the Public Service Act.31

Consequently, the Supreme Court declared sections 9 (as amended) and s 10 of the

Magistrates' Courts Act 32 of 1944 unconstitutional. Government was given six months to

correct the legislation (i.e. to give effect to Art 83 of the Constitution, by passing legislation

that will make magistrates really in

depen

den

t).

Further the Court declared that section 23(2) (a) ofAct 13 of 1995 is not applicable to

magistrates and that consequently the order of the permanent secretary to transfer the

appellant, was ultra vires.32

As a result, the Magistrates Court Act , 3 of 2003 was passed by Parliament . The long

title of the Act reads as follows:

To provide for the establishment, objects, functions and constitution of a

Magistrates Commission; to provide for the establishment of a magistracy

outside the Public Service; to further regulate the appointment, qualifications,

remuneration and other conditions of service of, and retirement and vacationof office by, magistrates; to provide that certain conditions of service of

magistrates may be prescribed by regulation; and to provide for matters in

connection therewith.

The objectives of the Supreme Court are clear: It identified two problems in the status

quo: the fact that Minister of Justice, a political appointee, has the exclusive power to appoint

both district and regional magistrates, and the fact that magistrates are still seen as public

servants despite the clear stipulations of the Constitution. The judgment nowhere refers to the

fact that the Minister is a political appointee, the separation of power remains the mostimportant aspect of judicial independence. The conflict between the Attorney-General and the

Prosecutor-General was solved by the Supreme Court with a clear judgment that the

30 ibid., p. 33.

31ibid.p. 35.

32Ibid., p.39


23/34


24/34

24

the judgment did not give specific guidelines as to how the legislator should meet the demands

of Art. 83 of the Constitution, the reference to Van Rooyen and Others versus The State,

possibly inspired the legislator or Cabinet to look south for guidelines. In South Africa the

Minister was replaced by a Magistrates Commission.34

TheA

ct describes the role of the Magistrates Commission

in

appoin

tin

g magistrates asfollows:35

The Commission must:

f) make recommendations to the Minister with regard to

i) the suitability of candidates for appointment as magistrates;

The appointment of magistrates is still left in the hands of the Minister of Justice who

may appoint magistrates at the recommendation of the Magistrates Commission. If it had not

been for the permissible may in the text, the fact that the Minister acts on the

recommen

dation

of the Commission

would have created an

acceptable check on

the power ofthe Minister. Recommendation is a much stronger word thanconsultation.

Consultation places a burden on the official to obtain an opinion from the consultative

body. After consultation the official is free to make her own choice, provided that it does not

contradict the common law, principles ofnatural law and the Constitution.

The Namibian practice has created a precedent which will make it difficult for an official

not to follow the recommendation of a body prescribed by law to recommend. In terms of the

Constitution the President appoints the Ombudsperson at the recommendation of the Judicial

Service Commission. However, after the death of the first Ombudsman, the President

34The South African Magistrates Commission, instituted by the Magistrates Act, is, like the Judicial

Service Commission, loaded with politicians.35

The full text of section 4(1) reads as follows:

(1) The Commission must

a) prepare estimates of the expenditure of the Commission and the magistracy for inclusion in the annual

or additional budget of the Ministry of Justice;

b) compile, after consultation with the Judges and Magistrates Association of Namibia, a code of conduct

to be compiled with by magistrates;

c) receive and investigate, in the prescribed manner but subject to subsection (4), complaints from

members of the public on alleged improper conduct of magistrates or alleged maladministration of justice

in the lower courts;

d) receive and investigate, in the prescribed manner, complaints and grievances of magistrates;

e) carry out or cause to be carried out disciplinary investigations into alleged misconduct of magistrates;

f) make recommendations to the Minister with regard to

i) the suitability of candidates for appointment as magistrates;

ii) the minimum standard of qualification required for the purposes of section 14;

iii) the conditions of service of magistrates, including their remuneration and retirement benefits;

iv) the dismissal and retirement of magistrates; and

v) any matter referred to in section 3(e); and

g) perform any other function entrusted to the Commission by or under this Act or any other law.


25/34

25

appointed the Acting Ombudsperson, Adv. Kasutu without consulting or receiving a

recommendation from the Judicial Service Commission. After an outcry, the President withdrew

the initial appointment and requested the Judicial Service Commission to make a

recommendation. Eventually Adv. Bience Gawannas was appointed as the second

Ombudsperson of the Republic of Namibia.

It is not clear why the legislator used the permissible mayrather than a clear instructive

sentence:

The Minister shall on the recommendation of the Commission

appointment. magistrates.on the permanent establishment.

The word may cannot mean that the Minister does not have to appoint magistrates to

vacant posts if she does not feel like it. It clearly cannot mean that the Minister may leave the

appointment to someone else, or to the Magistrates Commission, since those options are not

provided for. Or does it mean that the Minister can also appoint without any recommendation,

but he may also request the Commission to recommend? Such an interpretation would fly

against the Supreme Court judgment.

Even if the wording cannot be interpreted to allow the Minister unrestricted powers to

appoint, it remains suspicious that the legislator used the permissive sense without any specific

objective. Ifnothing else, it points to yet another stubborn challenge to the Constitution and

constitutionalism by government during this period.

The Act did not go unchallenged. Magistrate Mostert went back to the High Court.36

Mostert challenged the independence of the Magistrates Commission and the role of the

Minister in the new Act.

The High Court concluded that although the Minister plays a role in the appointment of

the Commission, it cannot be said that the members are therefore bound to follow the

directives of the Minister. There are several checks built into the Act that will make the

appointments credible and will make it extremely difficult for the Minister to manipulate any

process.37

The Commission consists of one judge designated by the Judge-President, the chief

lower courts, one person designated by the Attorney-General, one person designated by the

Judicial Service Commission, one magistrate appointed by the Minister from a list of three

magistrates nominated by the Judges and Magistrates Association of Namibia, a staff memberof the Ministry of Justice designated by the Minister and one teacher of law appointed by the

36Walter Mostert and Another versus Magistrates Commission and Another, unreported case of the High

Court of Namibia, Case No.: (P) I 1857/2004.37

See the elaborate answer of the Court to each of the criticisms against the members of theCommission. Supra, p.20ff.


26/34

26

Minister from a list of two teachers of law nominated by the Vice-Chancellor of the University

of Namibia.38

Although the Minister appoints three persons, he is limited in his choices of the

magistrate and the law teacher. The Public Service Commission is an independent

constitutional organ and they have the power to designate a member. In the same way one

cannot question the independence of a High Court judge. Consequently, at least four of theseven members can be seen to be independent. On these points I agree with the judgment.

The applicant is also wrong in stating that six of the seven members of the Commission

are public servants. The Court pointed out that nothing stipulates that the Public Service

Commission designated member must be a public servant39

and the UNAM law teacher is also

not a public servant.40

It seems strange that the Minister should get three nominations from the

Judges' and Magistrates' Association. The section looks suspicious. But it is still highly unlikely

that the Association will nominate anyone to the Minister that will not represent the

Association's own strong principled position on the independence of the judiciary.

The designated members of the Minister41

and the Attorney-General are public

servants, as is the Chief Lower Courts.42

Since the Minister of Justice/Attorney-General is

occupied by one person in the Pohamba cabinet, the Minister/Attorney-General directly

oversees the employment of three of the seven Commission members.

The Court erred in stating that the appointment of a politician is ofno significance to the

independence of the office. This is the position of the South African Constitutional Court, but

not the position of the Namibian Supreme Court. The Constitutional Court explicitly rejected

the Ex Parte Attorney-General/Prosecutor-General case on this point. At the time of the

Certification of the Final Constitution, the Court was requested to look at the independence of

the National Director of Public Prosecutions (NDPP) in the light of the fact that the NDPP is

appointed by the President, unlike the Namibian Constitution, demanding appointment by the

President at the recommendation of the Judicial Service Commission. The Constitutional Court

made the same point as the Namibian High Court: 43 The Ex Parte Prosecutor-General/Attorney-General saw important significance for the independence of the Office of the

Prosecutor-General in the fact that she is, unlike the Attorney-General appointed at the

recommendation of the Judicial Service Commission.

38Section 5(1)

39Supra, p.24.

40Both members of the Law Faculty who have been appointed by the Minister since the Act was

promulgated, are also practicing legal practitioners, possibly an intentional decision by the Vice-Chancellor of the university to prevent the nominated staff members to be pressurized by the Minister.41

The Court stated that the representative of the Ministry of Justice only needs to be a suitable person and not

necessary a public servant. This assertion seems to be wrong if one considers the wording of the Act: one staff

member of the Ministry of Justice designated by the Minister.

42See Kobi Alexander versus the Minister of Justice and Others ????, 2008. Unreported case of the High

Court delivered on 2 July?? 2008, Coram: Justice Parker. The Court ruled that the Chief Lower Courtscannot sit on this extradition case since he is a public servant and that in terms of the Extradition Act theappointment of a magistrate to hear the extradition application, must be done by the Minister and not theMagistrates Commission.43

See the argument on p. xxxx above.


27/34

27

The conflict between the President of South Africa and the NDPP, Mr. Vusi Pikoli,

underlined the problem relating to the difficulties encountered in a relationship where the

President appoints.44

In this case, the President summarily suspended the NDPP, possibly

because the NDPP issued a search warrant and a warrant of arrest for the Commissioner of

Police, Jackie Selebe. Since he was not appointed at the recommendation of the Judicial Service

Commission, Adv. Pikoli also had no protection from the Commission when he was suspended.The fact that the Minister of Justice/Attorney-General appoints two public servants from

her own fold of employees, does not reflect well on the independence of the Commission,

especially if a third member is a staff member of the Ministry of Justice.

The Court stated that even if the Commission is not independent, it does not reflect

negatively on the independence of magistrates.

I see nothing in the Constitution which suggests that magistrates should be

appointed by an independent body. That would in any event be requiring

standards more rigorous than those in place for the appointment of Judges

and would go against the spirit of the Supreme Court judgment. I do not

therefore see on what basis the fact that the Minister is the appointing

authority for Magistrates can, without more, be objectionable if Judges are

appointed by the President who wields ultimate executive power in the

Republic.45

However, as has been stated above, the appointment of judges by the President at the

recommendation of the Judicial Service Commission, is not comparable to the Minister who

may appoint magistrates at the recommendation of the Judicial Service Commission and the

Minister who, appoints two members of the Magistrates Commission and plays a role in the

appointment of four others.

The Supreme Court obviously had a problem with the huge role the Minister and hersenior public servant, the permanent secretary, played under the old dispensation in terms of

the Public Service Act and the Magistrates Act 32 of 1944, as amend. Yet, the Magistrates Act

did not limit the powers of the Minister. Neither did it bring real independence to the

magistrate or gave substantive power to the Magistrates Commission.

The Act gives the magistrates in office at the time of the promulgation of the Act tenure

of office.

Judge President Damaseb based his judgment on the Van Rooyen case and Canadian

and USA cases, all stated that independence can be obtained through different structures.46

He

approvingly quoted from the Valente case, also quoted in South African cases and the first

Mostert case:

44See Horn, N. 2008. A Comparison between the NDPP of South Africa and the Prosecutor-General of

Namibia, in Horn, N and Bsl, A (eds). 2008. The Independence of the Judiciary in Namibia, Windhoek:Gamsberg Publishers.45

Supra, note p. 23.

46See Valente v The Queen. 1986 24 DLR (4

th

) 161 (SCC). The Queen in Right of Canada v Beauregard. 1986 30 DLR

(4th

) 481; De Lange v Smuts NO and Others 1998 (3) SA 785at 813-814 (CC).


28/34

28

Judicial independence can be achieved in a variety of ways; the most rigorous and

elaborate conditions of judicial independence need not be applied to all courts, and it is

permissible for the essential conditions for independence to bear some relationship to the

variety of courts that exist within the judicial system.

On

e cann

ot argue with this position

. The Con

stitution

doesn

ot set the samerequirements of appointment for the Superior Courts and the Magistrate Courts. However,

both the Constitution and the Supreme Court in the first Mostert case and the Ex Parte

Attorney-General/Prosecutor-General case laid down some benchmarks for independence. And

these benchmarks were not met in the second Mostert case.

The applicants did not appeal to the Supreme Court. The magistrate resigned and his

counsel, Adv. E. du Toit, SC, passed away. Despite the positive judgment of Justice Strydom, the

Magistrates Act and subsequent High Court case are opportunities lost. The magistrates are still

not fully independent and the authority of the Minister of Justice remained intact.

For many magistrates the new Act meant less power and more frustration.47

And since

so many aspects of the running of the magistrates courts are still in the hands of the Minister,

magistrates look to the permanent secretary and the Minister to solve their problems rather

than the Magistrates Commission.

4.3 GENERAL REMARKS

The proceedings in all courts are mechanically recorded except in some rural areas where the

presiding officer keeps a record by long hand. In high courts, as well as regional courts, a

stenographer is responsible for the recording of the proceedings while the presiding magistrate

is responsible to record the proceedings in district courts. Unless otherwise ordered by the

court, the record of proceedings is a public document and copies thereof may be ordered from

the compan

y appoin

ted to fulfil this fun

ction

in

the area in

which the court is situated or fromthe clerk of the court. If such records are needed, for instance to lodge an appeal, the clerk of

the court may be approached to find out which company is responsible for the typing of the

recorded proceedings of that court. Arguments by both counsels for the State and for the

defence will be recorded and do form part of the record, but will not be typed or transcribed

because the only purpose thereof is to remind the presiding officer of certian facts or to

persuade him to accept your point of view..

5.1 GENERAL

You will find that we will refer to ethical aspects throughout the documentation. We do not

intend to deal with all those aspects in this section, since we believe that their discussion will bemore valuable when the topic to which they relate, is discussed. This section is therefore not

intended to be an exhaustive discussion of all ethical aspects of criminal court practice. Several

47Since the magistrate is no longer considered to be a public servant, she has no authority over the

administrative staff. Since it is the duty of the clerk of the court to have records typed and sent appealsand reviews to the High Court, the best a magistrate can do if the clerk does not comply, is to report herto her superiors at the Ministry.


29/34

29

general rules of ethics also apply to criminal court practice, such as the prohibition on certain

ways of advertising, etc. These rules will be discussed in the documentation on ethics as a

subject and will not be dealt with at all in this documentation.

5.2 CONFLICT OF INTERESTS

If an attorney is approached by more than one accused in the same case and is requested by all

of them to represent them, the attorney must first of all establish whether there are any

conflicting interests between the various accused. If it should appear that there are indeed

conflicting interests, the attorney may of course not act on behalf of all of them. In fact, once

the attorney establishes that there are conflicting interests, he will have to consider carefully

whether to act on behalf of any of the accused. Remember that if you become aware of

information during consultation with one accused, such information will be privileged

information and may not be divulged by you. If, however, you will need to disclose that

information in order to defend another accused, you may find yourself in an untenable

position

, especially if you have to cross-examin

e the accused you aren

ot defen

din

g. In

Chisvo1968 (3) SA 353 (RA) it was held that once a legal representative has accepted a brief from an

accused and then withdraws from defending him, he may not cross-examine that accused on

behalf of another accused.

If a legal representative establishes during the trial that there are conflicting interests between

the respective accused he is defending, the attorney must immediately withdraw from the case

(Moseli 1969 (1) SA 646 (O); Jacobs 1970 (3) SA 493 (E) Dintwe 1985 (4) SA 593 (BSC)).

It goes without saying of course that if an attorney accepts a brief to act on behalf of an

accused; the attorney may not accept a brief from the victim to institute a civil action against

the accused on account of the alleged commission of the offence. The converse also applies.

In A South African case Retha Meiring Attorneys v Walley 2008 (2) SA 513 (D) the court held

that an agreement in terms whereof an attorney who acted for A against B and thereafter (4

years later) agreed to act for B against A where a conflict of interest might arise, and the

possibility existed that the attorney might use information obtained from A to his prejudice, is

against public policy and the agreement was void.

1. TAKING INSTRUCTIONS1.1 PRELIMINARY CONSULTATION

The first consultation that an attorney has with a client is extremely important. During this

consultation the attorney must first of all establish the reason why he is being approached by

the client. As pointed out above, persons may approach attorneys for various reasons, ranging

from merely seeking advice on whether certain proposed conduct constitutes an offence or

not, to requests for assistance in laying charges against others or to represent the accused at

the trial. In this documentation we will be dealing mainly with requests to represent a person


30/34

30

accused of having committed an offence. However, we will make certain remarks with regard

to other aspects of criminal court practice where necessary and applicable.

A checklist is given below to assist you to determine the type of assistance that your client

requires. This checklist is of course not exhaustive and you may find it necessary to extend it to

cover other types of requests not referred to in it.

1.1.1 WHO APPROACHED YOU?

If you are approached by the very person who seeks the legal assistance, this part may be

skipped. However, if you are approached by a member of his family or by a friend, you first

have to determine why the prospective client did not approach you him-/herself. Is he perhaps

in custody, or is he hiding from the police?

If there are no obvious reasons why the client did not approach you, you should be extremely

careful in your handling of the request. Remember that anything you say to the person that

approaches you, will be conveyed to the prospective client. This is a highly unsatisfactory way

of handling a consultation.

You have no control whatsoever over what the prospective client is told and you may find that

this may differ quite substantially from what you told the person that visited you. You will

therefore be well advised to try and convince whoever it is that is visiting you of the necessity

of you seeing the prospective client as soon as possible so as to consult with him personally.

If the prospective client is in custody, your first duty will be to establish where he is being

detained and more or less on what charges. You will quite often find that the prospective client

is held on different charges than those which you are told of by his family or friends, and itmight therefore be best to have this information checked before you proceed too far with the

consultation so that you know exactly what you are up against. This will place you in a better

position to give advice.

If the prospective client is hiding from the police, you must be extremely careful in what you tell

the person visiting you. Remember that in terms of our law, a person who assists someone in

evading liability for an offence, may qualify as an accessory after the fact and will therefore be

guilty of an offence. Remember further that the professional privilege that exists between a

client and his legal representative does not cover discussions where the client requests advice

on how to commit an offence. It would therefore in the majority of instances be in the best

interests of yourself as well as of your client to convince him to give him-/herself up and to face

the charges. It would therefore once again be best to arrange for a consultation with the

prospective client as soon as possible and to try and convince him of the sensibleness of this

approach. If you succeed in convincing the client, this may be used to the client's advantage

during the trial and at the sentencing stage. Once a client has agreed to hand him- /herself

over, you will accompany him to the police or inform the police that they may question him in

your presence and also where this may be done.


31/34

31

1.1.2 WHAT TYPE OF ASSISTANCE IS REQUESTED?

If your client simply wishes to get advice on how to commit an offence, you must immediately

inform him that the consultation is not covered by professional privilege and that you may later

be compelled by the court to testify on what was said during the discussion. You will also have

to inform him of the fact that it would be unethical for you to advise him on how to commit anoffence and that you may incur liability as an accomplice if you should do so. If it is possible for

your client to achieve the same result without committing an offence, it will of course be your

duty to inform him accordingly.

If your client informs you that he is not a suspect or accused, but that he requires advice on

some procedural aspect, such as the legality of a seizure of his property by the police, you will

naturally explain to him what the powers of the police in this regard are and to what extent this

affects his rights. If it appears that the seizure was unlawful, you will inform him of the various

options available to him. Any action that you may take on his behalf in this respect will of

n

ecessity be a civil or admin

istrative action

, which isn

ot discussed here.

If your client is actually the client of another attorney and simply wishes to get a "second

opinion" from you, you are fully entitled to give him your objective opinion on the matter. In

doing so, you must of course be careful not to do or say something which could be construed as

an attempt on your part to win him over as a client. If the client should afterwards request you

to take over his case and end the mandate of the other attorney, you will have to be able to

defend the ethical correctness of your conduct. Remember that you may, in principle, not act

on his behalf before the other attorney's mandate has actually been terminated. It might,

depending on the circumstances, be a good idea to ask the client to write a letter to the other

attorney and to formally terminate his mandate and to supply you with a copy of the letter on

which receipt of the letter is acknowledged, before you will be prepared to act on his behalf.

If your client has already been convicted of an offence and wants your advice on whether

anything can be done about it, you must bear in mind that there are certain time limits with

regard to the institution of appeal proceedings.

If you are approached by more than one accused who are charged together, the remarks made

above with respect to conflicting interests must of course be borne in mind.

If the accused is in custody, it is of course important to establish whether your assistance is

requested on

ly to secure his release an

d whe

jtc book criminal procedure 2010 part 1

Documents