protasius daniel and another v the attorney general and two others judg.a 238-2009 & a 430-09.geier...

8/7/2019 Protasius Daniel and Another v the Attorney General and Two Others Judg.a 238-2009 & a 430-09.Geier AJ.10Mar11

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CASE NOs: A 238/2009

A 430/2009

IN THE HIGH COURT OF NAMIBIA

In the matter betwee n :

P ROTASIUS DANIEL

WILLEM P ETER

APP LICANT

APP LICANT

a nd

THE ATTORNEY GENERAL

THE P ROSECUTOR GENERAL

THE GOVERNMENT OF THE RE P UBLIC

OF NAMIBIA

FIRST RES P ONDENT

SECOND RES P ONDENT

THIRD RES P ONDENT

CORAM: Va n Niekerk, J et Geier, AJ

HEARD ON: 26/07/2010

DELIVERED ON: 10/03/2011

JUDGMENT:


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writer of this judgment, had the opportunity to att end consultative conferences

of representatives of society, particularly rural society, where the agony of

farmers, communal and otherwise, were expressed about the accelerating

crime rate and the deprivation of their livelihood by the thieves stealing the

cattle or stock which they need to survive. They demand the protection of their

rights by, inter alia, heavier sentences by Courts of law.

In my view, full weight should be given to the aforesaid current public opinion

as evidence of current values in view of the fact that these views are well-

founded and not transient. They are consistent and corroborative of the

general trend in society of escalating crime and the general expectation of

society, for heavier penalties, as one of the means to counteract the crimephenomenon.

However, the aforesaid public opinion goes no further than requiring heavier

sentences to be prescribed by the Legislature and imposed by the Courts of

law. It may also be accepted that the Namibian public opinion and norms

would regard as permissible heavier sentences for offenders, who have in the

past been convicted of similar offences. I however sincerely doubt whether

public opinion expect a previous conviction in the distant past to be used asthe basis for such a heavy mandatory sentence as a minimum of three years

in the case of the second conviction. They will probably also expect a

differentiation to be made between the theft of a goat and the theft of a more

valuable head of cattle. Such an attitude would be consiste nt with the norms

and values of reasonableness and fair play and the balancing of rights and

responsibilities, which permeate and underpin the provisions of the Namibian

Constitution.

The aforesaid assumption of public opinion, norms and values, is also

consistent with the norms and values of the civilised community of nations of

which Namibia is a part.


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The Legislature, when acting in the public interest, and more specifically in the

interests of the law-abiding citizens and purporting to protect their fundamental

rights, must be presumed to do so bona fide and with due consideration to the

public interest and the fundamental rights of all, enshrined in the Constitution.

The legislation enacted by the Legislature must also be presumed prima facie

to be constitutional. This Court should not necessarily be prescriptive

regarding legislation enacted in such circumstances. Mwellie v Ministry of

Works, Transport & Communications (supra at 13). 4

[3] It is not s ur pr is ing t ere fore t a t t e pena l cla use of t e Stoc T e ft Act 1990 ,

s ubseq ue nt to it s initia l pr omulga tion , continu e d to be t e focu s of P ar liame nts

a tte ntion on t ree occ as ions : S e ction 14 as initia lly ame nde d by se ction of Act 4

of 1991 , a nd l a ter subs titute d by se ction 3 of Act 19 of 199 3 , a nd a ga in by se ction 2

of Act 19 of 2004.

[4] In s pite of P ar liame nts s ingling out of t i s cr ime for more se vere puni shme nt

the P r ose cuto r e nera l, the se cond res pond e nt in t his a pplica tion, s till s ta tes in the

year 2010 tha t s toc t he ft has es ca la te d to un a cce ptab le le ve ls a nd er odes

e cono mic de ve lopme nt in am ibia.

[5] The s cou r ge of s toc t he ft thus continu es to pla gue am ibia.

4 S v Vries op cit a t p 279 B 280 B


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TH E PPL I T I E E TH E T

[6] The a pplica nt Da nie l (here ina fter re f erre d to as Mr Da nie l) as convict e d of

the the ft of nine goa ts or th $4450. He as se nte nce d to 20 years impr is onme nt.

[7] The a pplica nt P e ter (here ina fter re f erre d to as Mr Pe ter) as a 38 year old

ma n. He as convict e d of p ar ticipa ting in t he the ft of a s ingle co tog e th er ith a

number of other a ccu se d p ers on s. He ha d a pre vious conviction fo r s toc t he ft . The

cou r t se nte nce d him to 30 years impr ison me nt .

[8] It is a ga ins t this ba c g r ound t ha t both these a pplica nts ha ve no a pplie d in

terms of ar ticle 25 5 of the on s titution fo r or ders de clar ing tha t the minimum

se nte nces pres cr ibe d by se ction s 14(1)(a)( ii) a nd (b) of the Stoc T he ft Act 12 of

1990 , as ame nde d, are uncon s titutiona l a nd inv a lid. The y cont e nd t ha t the minimum

se nte nces viola te the pr ohibition of c r ue l, inhuma n o r de gra ding puni shme nt in ar ticle

8(2)(b) a nd t he guara ntee of eq ua lity in ar ticle 10(1) of the ons titution .

5 HAPTER 3 Fund ame nta l Huma n Rig h ts a nd F ree doms Article 25(2) Aggr ie ve d p ers on s ho cla im tha t a fund ame nta l r ight of f ree do m gu ara ntee d by th is

on s titution has bee n inf r inge d o r threa te ne d sha ll be e ntitle d to a pp r oa ch a co m pe te nt

ou r t toe nfo r ce or pr ote ct s uc h a r igh t of f ree do m, a nd ma y app r oa ch the

mb ud sma n to p r ovide them ith suc h le ga l ass is ta nc e or a dvice as the y req uire , a nd t he

mb ud sma n sha ll ha ve the discre tion inres pon se there to to p r ovide s uc h le ga l or other ass is ta nc e as he or she ma y con s ider ex pe die nt . Article 25(3) Su b je ct to t he pr ovis ions of this

on s titution, t he

ou r t re f erre d to in Su b-Ar ticle (2) here of sha ll ha ve the po er to make a ll s uc h or ders as sha ll be ne cessar y a nd a pp r op r ia te to se cu re suc h a pplica nts the enjoyme nt of t he r ights a nd f ree doms conf erre d on t hem und er the pr ovis ions of th is

on s titution, sh ould t he

ou r t co me to the conclu s ion tha t s uc h r igh ts or f ree do ms ha ve bee nunlaw fully de nie d o r viola te d, o r tha t gr ound s ex is t for the pr ote ction of suc h r igh ts or f ree do ms byinter dict.


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[9] Mr Tre ngov e , on beha lf of a pplica nts , s uccinctly s umme d up t he ma in iss ues

be fore cou r t in his hea ds of ar gu me nt where he subm itte d tha t more par ticular ly Mr

Da nie ls a pplica tion:

... is directed at section 14(1)(a)(ii). It prescribes a minimum sentence of 20

years imprisonment for a first offender whose offence relates to stock to the

value of more than N$500. The respondents do not oppose this application.

The Attorney-General filed an answer on behalf of all of them. He was duly

authorised to do so. He concedes that the minimum sentence violates the

prohibition of cruel, inhuman or degrading punishment in artic le 8(2)(b) of the

Constitution. He asks merely that, instead of striking down the whole s14(1)(a)(ii), Its defect be cured by deleting the words for a per iod not l ess

tha n twe nty years from it.

The Peter application is directed at s 14(1)(b). It prescribes a minimum

sentence of 30 years imprisonment for a repeat offender. The respondents

differ in their responses to this application: The Attorney-General and the

Government do not oppose the application. The Attorney-General filed an

answer on behalf of both of them. He was duly authorised to do so. He admits

that the minimum sentence violates the prohibition of cruel, inhuman or

degrading punishment in article 8(2)(b) of the Constitution. He asks merely

that, instead of striking down the whole s 14(1)(b), its defect be cured by the

deletion of the words for a per iod of not l ess tha n thir ty years from it.

The Prosecutor General however denies that the minimum sentence

prescribed by s 14(1)(b) is unconstitutional. She asks that this application be

dismissed with costs.

The issues between the parties may be summarised as follows:

Mr Daniels attack on s 14(1)(a)(ii) is unopposed. The parties agree that the

section is unconstitutional. They differ only on the question of remedy. This


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applicant however accepts that the more limited remedy proposed by the

respondents will cure the constitutional defect. There is accordingly no

material dispute between these parties.

Mr Peters attack on s 14(1)(b) is not opposed by the Attorney -General and

the Government. They concede that the section is unconstitutional. They

merely propose a more limited remedy. This applicant accepts that it will cure

the constitutional defect. There are accordingly no material disputes between

the applicant, the Attorney-General (the first Respondent) and the

Government (the third Respondent). The Prosecutor General (the second

Respondent herein) however denies that the section is unconstitutional.

[10] Be fore howe ver de ciding t hese iss ues it be comes ne cessar y to d ea l with the

se cond res pond e nts obje ction t ha t the con s titutiona l cha lle nge br oug ht by a pplica nts

here in is ina pp r op r ia te.

TH E A PPROPR IA T E ESS OF TH E ON S T ITUT ION A L H A LL E NG E

[11] In this re gar d it was esse ntia lly s ubm itte d on beha lf of se cond res pond e nt tha t

... Each of these applicants (Peter with leave) was entitled to appeal their

sentences. In fact, Daniels appeal would have been heard on 10 July 2009.

His appeal was removed from the roll at his instance (presumably on legal

advice) and this application was launched on 14 July 2009.

In each of the cases the factual findings that there were no substantial and

compelling circumstances led to the sentences applicants now wish to have

set aside by way of constitutional challenge. It is submitted the challenge is

inappropriate.


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Daniel was sentenced by the regional court sitting in Ondangwa. He was

unrepresented. It appears from the record that the magistrate simply

mentioned to Daniel that he must put forward substantial and compelling

circumstances without explaining what it is and without assisting him as he

was obliged to. In Peters case it can be argued that it was a misdirection to

consider an eleven year old previous conviction especially because it

predates the minimum sentences.

Furthermore, a strong argument can be made in respect of both matters that

the sentencing magistrate and judge applied substantial and compelling too

restrictively.

As a result the applicants should have appealed their sentences. These

constitutional challenges are inappropriate and should be struck from the roll

with costs, alternatively, treated as appeals.

[12] Mr olema n, who a ppeare d on beha lf of the se cond re s pond e nt, base d t hese

s ubm iss ions in the firs t ins ta nce on t he ge nera l pr inciples tha t a court should decide

no more than what is absolutely necessary to determine the case and constitutional

law should be developed cautiously, judiciously and pragmatical ly 6 a nd on t he

pr inciple as ex pound e d by Ke ntr idge A in S v Mhlungu and Others 1995 (3) SA 867

(CC) para [59] (D-E);

I would lay it down as a general principle that where it is possible to decide

any case, civil or criminal, without reaching a constitutional issue, that is thecourse which should be followed.

6 Kauesa v Minister of Home Affairs and Others 1995 R 175 (SC) a t p 184 A


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[13] While it ma y undou bte dly be co rre ct tha t both Mr Pe ter a nd Mr Da nie l ma y

ha ve the ar gu me nts cont e nde d fo r by Mr Cole ma n a t the ir dispo sa l du r ing a n a ppea l

hear ing, t his ar gu me nt esse ntia lly loses s igh t of the f a ct tha t this a pplica tion is no

a ppea l a nd t ha t no re lie f ak in to a ppea l re lie f is s oug ht by the a pplica nts here in in

terms of the Cr imina l Pr oce du re Act, Act o . 51 of 1977.

[14] n the cont rar y a pplica nts cr is ply s ta te tha t the y apply in terms of article

25(1) of the Constitution for the declaratory orders se t out in t he res pe ctive notic es

of motion .

[15] Acco r dingly t he y ex press ly seek a de cis ion only on t he con s titutiona l iss ues

ra ise d on t he ir pa pers. This in my view lea ves no r oo m for the a pplica tion fo r the

re lie d upon ge nera l pr inciple as s ta te d in t he Mhlungu case as in s uc h

cir cums ta nces the a pplica tions here ca nnot be de cide d without rea ching a

con s titutiona l iss ue. This as pe ct a lso dis po ses of Mr Colema ns re lia nc e of the case

of S v Strowitzki 7 wh ich con s titutes a uthor ity for the view tha t Ar ticle 25 of the

am ibia n Cons titution do es not c rea te a n a ve nue for cr im ina l a ppea ls , wh ich is not

wha t the a pplica nts seek to a chie ve here. 8

.

[16] As f ar as the soug ht de clara tor y re lie f goes , it would a ppear tha t Mr

Colema ns ar gume nt did a lso lo se s ight of the req uireme nts of se ction 16 of the High Cou r t Act wh ich em powers the Cou r t:

... in its discretion, and at the instance of any interested person, to enqui re

into and determine any existing, future or contingent right or obligation,

7 1994

R 265 HC 8 See for ins ta nc e S v Strowitzki op cit a t p 274


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notwithstanding that such person cannot claim consequential upon the

determination.

[17] The Cou r t a pp r oa ches the ques tion of a declarator in two s ta ges. 9 ... Firs t, is

the a pplica nt a pers on interes te d in a ny ex is ting, futu re or conting e nt r ight or

obliga tion. Se condly, a nd only if sa tis fie d a t the firs t s ta ge , the Cou r t de cides

whe ther the case is a pr oper one in wh ich to exer cise its dis cre tion . 10

[18] It was de cide d in Ex parte Nell 1963 (1) SA 754 (A) tha t a n ex is ting di s pute is

not a prereq uis ite for jur is diction und er se ction 19(1)(a)( iii).11

There mus t, howe ver ,be interes te d p ar ties on whom the de clara tor y o r der will be binding . The abse nce of

a n ex is ting di spute ma y, o r cou rse , incline the Cou r t, in the exer cise of its discre tion,

not to g ra nt a declarator .12

[19] Clear ly both Mr Pe ter a nd Mr Da nie l are suc h interes te d p ers ons, who

ca nnot be sa id, not to ha ve a ny ex is ting, futu re or conting e nt r ight to the

de term ina tion of t he con s titution a lity or not of t he se nte nces wh ich the y prese ntly

ser ve.

[20] It is a ls o not dou bte d t ha t the declaratory or ders s oug ht here in will be binding

on t he par ties here to.

9 Reinecke v Incorporated General Insurance Ltd 1974 (2) SA 84 (A) a t 93 A -C 10 Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality & Others 2001(4) SA 1144 (C) a t1153 A11 Se ction 19(1)(a)( iii) is eq uiva le nt to se ction 16( d) of the am ib ia n High Cou r t Act o 16 of 1990 12 Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality & Others op cit a t p 1153 B


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[21] As f ar as the Cou r ts dis cre tion is conc er ne d it has bee n he ld tha t the Cou r t

will take into a ccount whe ther :

...some tangible and justifiable advantage in relation to the applicants

position with reference to an existing, future or contingent right or obligation ...

[appears] to flow from the grant of the declaratory order sought 13...

[22] In t his re gar d it will be firs tly of ma ter ia l s ignifica nc e tha t it has bee n he ld tha t

.. Courts are no vehicles of injustice 14 ... a nd t ha t ... no derogation from the rights

entrenched by art 8 15 is permitted 16 ... .

[23] S e condly, a nd sh ould t he m inimum se nte nce re gime , as impo se d by the Stoc k

The ft Act, be found to be in conflict with ar t 8 a nd be de clare d uncon s titutiona l as a

res ult of the de clara tor y o r ders s oug ht here in, s ure ly some ta ngible a nd ju s tifiab le

a dva nta ge , in re la tion to t he a pplica nts pos ition , with re f ere nce to the ir ex is ting,

future or conting e nt r ight not to be s ubje ct to c r ue l, inhuma n o r de gra ding

puni shme nt, a ls o emer ges for the applica nts to take this as pe ct fur ther , sh ould t he y

be s o a dvise d . In this res pe ct the a pplica tions und er con s idera tion are a lso not

pu re ly a ca dem ic.

[24] It is of fur ther re le va nce tha t it is only the High Cou r t, as a co mpe te nt Cou r t 17 ,

tha t ca n g ra nt the de clara tor y con s titutiona l re lie f s oug ht. It is em ine ntly des irab le

13 Adbro Investment Co Ltd v Minister of Interior & Others 1961 (3) SA 283 (T) a t 285 D14 Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC) para 45 15 No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. 16 Ex Parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 (Nm S ) a t p 86 17 Ar ticle 25(3) as rea d with Ar ticle 80(2)


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tha t it sh ould a ls o do s o, so as not to p er pe tua te a s itua tion in wh ich the cou r ts tur n a

blind e ye to a nd continu e to be vehicles of injustice in the ir continu e d a pplica tion of

a poss ibly uncon s titutiona l m inimum se ntence re gime , as cu rre ntly p res cr ibe d by the

Stoc k The ft Act.18

[25] The gra nt of t he s oug ht de clara tor y or ders , will so to s peak a ls o clear the

de cks for the future pr oper a pplica tion of se ction s 14(1)(a)( ii) a nd 14(1)(b) of the

Stoc k The ft Act 12 of 1990 , as ame nde d 19 - in the High Cou r t a nd a ll Lower Cou r t s.

[26] All these f a ctors indica te there fore tha t this would be a n a pp r op r ia te ins ta nce

to e nter ta in the a pplica tions for the de clara tor y o r der s oug ht a nd I exer cise my

dis cre tion a cco r dingly .

[27] I there fore deem the con s titutiona l cha lle nge a pp r op r ia te.

TH E I PUGN E I N I UM SE NT E NC E R E G IM E

[28] Se ction 14 of the Stoc k The ft Act No 12 of 1990 , as ame nde d p r ovides as

follows :

14 Penalties for certain offences

18 See a ls o : Compagnie Interafricaine de Traveaux v South African Transport Services & Others 1991 (4) SA 217 (A) a t 231 B19 See a ls o : Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality & Others op cit a t p 1154 B


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(1) Any person who is convicted of an offence referred to in section 11(1) (a),

(b), (c) or (d) that relates to stock other than poultry-

a) of which the value-

(i) is less than N$500, shall be liable in the case of a first conviction, to

imprisonment for a period not less than two years without the option of

a fine;

(ii) is N$500 or more, shall be liable in the case of a f irst conviction, to

imprisonment for a period not less than twenty years without the option

of a fine;

(b) shall be liable in the case of a second or subsequent conviction, to

imprisonment for a period not less than thirty years without the option of

a fine.

(2) If a court is satisfied that substanti al and compelling circumstances

exist which justify the imposition of a lesser sentence than the sentence

prescribed in subsection (1)(a) or (b), it shall enter those circumstances

on the record of the proceedings and may thereupon impose such

lesser sentence.

(3) A sentence of imprisonment imposed in respect of an offence referred

to in section 11(1)(a), (b), (c) or (d), or an additional sentence of

imprisonment imposed under section 17(1)(b) in respect of non-


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- theft or attempted theft of stock;

- receiving stock knowing it to have been stolen;

- inciting, instigating, commanding or conspiring with or procurinq

another person to steal or receive stolen stock;

- knowingly disposing or assisting in the disposal of stolen stock.

These offences also extend to the lesser offences of the peripheral role -

players involved in the theft and disposal of stock.

The regime imposed by s 14, prescribes minimum sentences for all these

offences. All of them are caught in the net created by the section. It prescribesthree minimum sentences for all of them. The applicable sentence depends in

the first place on whether the accused is a first or repeat offender.

Section 14(1)(a) prescribes the minimum sentences for first offenders. It

distinguishes between them on the basis of the value of the stock involved. If it

is less than N$500, the minimum sentence is two years imprisonment. If it is

more than N$500, the minimum sentence is 20 years imprisonment. The

sentence may be wholly or partially suspended 21

.

Section 14(1)(b) prescribes a minimum sentence of 30 years imprisonment

for any second or subsequent conviction of stock theft. It differs from the

approach to first offenders in two fundamental respects:

i) It makes no distinction between trivial and more serious off ences

as is done in the case of first offenders. The minimum sentence

21 Th is s ubm iss ion is not co rre ct : see S v Tjambiru un re po r te d High Cou r t judg eme nt in c ase no s Cr 47 /2008 , Cr 48 /2008 a nd Cr 49 /2008 , d e livere d on 21 uly 2008 where the cou r t he ld Se ction 297(4) of the Cr imina l Pr oc e du re Act (CPA ) pr ovides for the s us pe ns ion of se nte nc es in cir cu ms ta nc es where m inimum se nte nc es are pres cr ibe d. In s uc h ins ta nc es the Cou r t is em po were d to or der the op era tionof a par t there of to be s us pe nd e d. Th is se ction i s clear a nd where a m inimum se nte nc e is pres cr ibe dit ca nnot be s us pe nd e d in toto a nd only a par t there of ma y be s uspe nd e d. This do es not only follo w f r om the wor ding of t his s ubse ction but be co mes ab und a ntly clear whe n juxta po se d with se ction297( l)(b) wh ich s ta tes tha t the wh ole of a se nte nc e ma y be sus pe nd e d where no m inim um se nte nc e is pres cr ibe d.


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of 30 years is prescribed for all repeat offenders, however trivial

their offences might be.

ii) The court may not ameliorate the minimum sentence by

suspending it or any part of it. Section 14(4) provides that the

minimum sentence may not be suspended at all as long as the

offender is 18 years or older. 22

[30] It would a ppear tha t this a na lys is is co rre ct.

THE

A RGUME

NTS I

NS

UPPORT OF

TH

ECON

ST

ITUT

ION A L

CH A LL

ENG

E

[31] Coun se l for both a pplica nts comme nce d ar gu me nt on t his s co re by

em phas is ing the following c ar dina l f ea tures , wh ich flow f r om the ab ove a na lys is :

a) that the prescribed minimum sentence regime in respect of first offenders

proceeds from the premise :

i) that a significant custodial sentence of at least two years

imprisonment, is appropriate for first offenders guilty of stock

theft, however trivial their offence might be;

ii) that the N$500 threshold beyond which the minimum sentence

jumps from two to twenty years imprisonment, is low in itself and gets lower all the time as the value of money depreciates;

22 At para 15


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iii) that the minimum sentence jumps from two years to twenty

years imprisonment as soon as the value of the stock exceeds

N$500. There is no gradation of senten ces between the two.

The minimum sentence increases ten-fold even if the value of

the stock only marginally exceeds N$500. The section does not

distinguish between the isolated theft of a sheep on the one

hand and the theft of a herd of cattle by an organi sed gang of

cattle hustlers on the other. It prescribes the same m inimum

sentence for all of them;

iv) that the section prescribes minimum sentences. It means that

the only way in which the courts can implement a system of fair gradation of sentences commensurate with the severity of the

stock theft for which they are imposed is to impose the minimum

sentences for the less serious offences and even harsher

sentences for the more serious offences. 23

b) that the prescribed minimum sentence regime in respect o f second

offenders proceeds from the premise that the previous conviction which

makes the accused a repeat offender subject to the minimum sentence of

30 years imprisonment, need not be one which would otherwise have

qualified him for harsher treatment than a first offender. That is so for two

reasons:

i) it makes no difference whether the previous conviction

was for a serious or trivial offence. , It counts as a

previous conviction and renders the accused subject tothe prescribed minimum sentence of 30 years

Imprisonment, however trivial it might have been; 24

23 Hea ds of Ar gu me nt a t para 14.1 -14.4 24 Hea ds of Ar gu me nt a t para 15.1


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ii) the previous conviction need not have been recent. It is

immaterial when it occurred, even if it is so long ago as to

have lost its significance. 25

c) The implication of these features could be that a poor man who steals a

piece of meat (that is a portion of the carcass of an animal) to feed his

family, is subject to a minimum sentence of 30 years imprisonment if he

was convicted of doing the same thing in his youth, even if it happened

decades earlier. 26

C E RT A IN F A CTOR S R E L EV A NT TO SE NT E NC ING L E FT OUT OF A CCOUNT

[32] The a pplicab le se nte nce in a ny c ase , de pe nds only on whe ther the a ccu se d

is a firs t or re pea t off e nder a nd, in t he case of a firs t off e nder on t he ques tion

whe ther the s toc k was wor th more or less tha n N$500. No ot her f a cto rs re la ting to

the ser iousness of the cr ime , the pers ona l cir cums ta nces of the a ccu se d o r the

interes ts of s ocie ty are take n into a ccount . 27

[33] Acco r ding to t he de finition of s tock a wide ra nge of a nima ls a nd e ve n the

car cass or po r tion of t he car cass of a ny of t hem f a ll within the amb it of the se ction .

The ir a ctua l va lue , the socio- e cono mic s ignifica nce a nd t he impa ct of t he ir loss , will

var y e no rmou s ly f r om case to c ase. Se ction 14(1) howe ver ge nera lises ab ou t a ll of

them without di s tinction . 28

25 Hea ds of Ar gu me nt a t para 16.1 26 Applica nts Hea ds of Ar gu me nt p ara 17 27 Hea ds of Ar gu me nt a t para 18 28 Hea ds of Ar gu me nt a t para 19


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[34] The se ction a lso igno res the a ge of the a ccu se d. It a pplies to juve niles a nd

a dults a like. The only conc ess ion ma de to juve niles , is tha t s 14(4) a llows the cou r t to

sus pe nd t he minimum se nte nce of 30 years imp r ison me nt if the re pea t off e nder is

und er 18. This highlights the f a ct tha t the legis la ture a pplie d its m ind to t he

a pplica tion of t he minimum se nte nce re gime to juve niles a nd int e nde d it to a pply to

them , s ubje ct only to t his conc ess ion. 29

[35] It was a cco r dingly subm itte d fur ther tha t the implica tion of t his is tha t e ve n a

juve nile who s tea ls a n item of s tock, has to be se nte nce d to i mpr ison me nt for a t leas t

two years if the s tock is wor th less tha n N$500 , 20 years if the s tock is wor th more

tha n tha t, and 30 years if the yout h has a pre vious conviction, howe ver tr ivia l it m ight

be. The yout hful off e nder is s ubje ct to t he same minimum se nte nce re gime as

members of a har de ne d g a ng of c a ttle r us tlers who s tea l her ds of ca ttle in a n

or ga nise d f ash ion fo r p r ofit.30

TH E E FF E CT OF TH E PROH I IT ION TH A T SE NT E NC ES M A Y NOT RUN

CONCURR E NTL Y

[36] The pr ohibition tha t se nte nces ma y not r un concu rre ntly a pplies to e ver y

se nte nce impo se d fo r s tock the ft. Acco r dingly a n a ccu se d convict e d on multiple

char ges of s toc k the ft, is liab le to t he minimum se nte nce on ea ch of them a nd t hose se nte nces mus t the n r un concu rre ntly, wha te ver the ir cumula tive e ff e ct. It mea ns for

ins ta nce tha t, if the cou r t convict s a n a ccu se d on fiv e char ges of s tock the ft, it mus t

se nte nce him -

29 Hea ds of Ar gu me nt a t para 20 30 Hea ds of Ar gu me nt a t para 21


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- to 100 years impr is on me nt if he is a firs t off e nder a nd t he va lue of

the s tock ex cee de d N$500 in ea ch case , a nd

- to 150 years impr is on me nt if he has a pre vious conviction of s tock

the ft, howe ver tr ivia l both the pre vious a nd t he curre nt off e nces

m ight be. 31

TH E E FF E CT OF TH E ENCHM A RK SE T Y M IN IMUM SE NT E NC ES ON TH E

COURT S SE NT E NC ING IS R E CT ION

[37] Se ction 14(2) is the only p r ovis ion wh ich ame liora te s the se nte ncing re gime

crea te d by se ction 14 of the Stoc k The ft Act . It p r ovides tha t:

If a court is satisfied that substantial and compelling circumstances exist

which justify the imposition of a lesser sentence than the sentence prescribed

in subsection (1)(a) or(b), it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

[38] Mr Tre ngov e s ubm its tha t this pr ovis ion do es not v es t the cou r t with its

or dinar y se nte ncing di s cre tion. The cou r t has no di s cre tion a t a ll to de par t f r om the

m inimum se nte nces in the abse nce of s ubs ta ntia l a nd co mpe lling cir cums ta nces

wh ich jus tify it. nly if there are such subs ta ntia l a nd co mpe lling cir cu ms ta nces , d o es

a cou r t exer cise a ny di s cre tion a t a ll. But e ve n the n , coun se l s ubm its , its dis cre tion is

31 Applica nts Hea ds of Ar gu me nt p ara 23


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f e ttere d be ca use the se nte nce i t impo ses mus t ha ve re gar d to t he be nchmark se t by

the minimum se nte nce re gime. 32

[39] The firs t ques tion is a cco r dingly whe n the cir cums ta nces of a case are

substantial and compelling s o as to jus tify a de par ture f r om the minimum

se nte nces.

[40] The Cou r t was re f erre d in t his re gar d to S v Malgas 33 were the Sout h Af r ica n

Sup reme Cou r t of App ea l con s idere d this ques tion in re la tion to a diff ere nt but ver y

s im ilar re gime of minimum se nte nces for a ra nge of ser ious off e nces s ubje ct to

ex ce ption on t he gr ound s of s ubs ta ntia l a nd co mpe lling cir cums ta nces. It con s idere d

wha t cir cu ms ta nc es qua lifie d as subs ta ntia l a nd co mpe lling a nd s umm ar ise d its

conclu s ions in para gra ph 25 of i ts judg me nt as follows :

A. Section 51 has limited but not eliminated the courts discretion in

imposing sentence in respect of offences referred to in Part 1 of

Schedule 2 (or imprisonment for other specified periods for offences

listed in other parts of Schedule 2).

B Courts are required to approach the imposition of sentence conscious

that the Legislature has ordained life imprisonment (or the particular

prescribed period of imprisonment) as the sentence that should

or dinar ily and in the absence of weighty justification be impose d for thelisted crimes in the specified circumstances.

32 Hea ds of Ar gu me nt a t para 25 33 2001 (2) SA 1222 (SCA)


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C Unless there are, and can be seen to be, tru ly convincing reasons for a

different response, the crimes in question are therefore required to elicit

a severe, standardised and consistent response f rom the courts.

D The specified sentences are not to be departed from lightly and for

flimsy reasons. Speculative hypotheses favourable to the offender,

undue sympathy aversion to imprisoning first offenders, personal

doubts as to the efficacy of the policy underlying the legislation and

marginal differences in personal circumstances or degrees of

participation between co -offenders are to be excluded.

E The Legislature has, however, deliberately left it to the courts to decidewhether the circumstances of any particular case call for a departure

from the prescribed sentence. While the emphasis has shifted to the

objective gravity of the type of crime and the need for effective

sanctions against it, this does not mean that all other considerations

are to be ignored.

F All factors (other than those set out in D above) traditionally taken into

account in sentencing (whether or not they diminish moral guilt) thuscontinue to play a role; none is excluded at the outset from

consideration in the sentencing process.

G The ultimate impact of all the circumstances relevant to sentencing

must be measured against the composite yardstick ( substantial and

compelling) and must be such as cumulatively justify a departure from

the standardised response that the Legi slature has ordained.

H In applying the statutory provisions, it is inappropriately constricting to

use the concepts developed in dealing with appeals against sentence

as the sole criterion.


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I If the sentencing court on consideration of the circumstances of the

particular case is satisfied that they render the prescribed sentence

unjust in that it would be disproportionate to the crime, the criminal and

the needs of society, so that an injustice would be done by imposing

that sentence, it is entitled to impose a lesser sentence.

J In so doing, account must be taken of the fact that crime of that

particular kind has been singled out for severe punishment and that the

sentence to be imposed in lieu of the prescribed sentence should be

assessed paying due regard to the benchmark which the Legislature

has provided.

[41] The Sout h Af r ica n Con s titutiona l Cou r t e ndo rse d this inter pre ta tion of t he

subs ta ntia l a nd co mpe lling req uireme nt in S v Dodo 34 whe n it found t ha t the SCAs

inter pre ta tion as an overarching guideline, is one that this court endorses as a

practical method to be employed by all judicial officers .

[42] It was on t his bas is the n s ubm itte d fu r ther

35

tha t the SCAs s ummar y e ndo rse dby the Cons titutiona l Cou r t, makes it clear tha t the re gime of minimum se nte nces

pla ys a dua l r ole. The firs t is tha t it pres cr ibes the m inimum se nte nces tha t mus t be

impose d in t he abse nce of s ubs ta ntia l a nd co mpe lling cir cu ms ta nces to d e par t f r om

them. The se cond i s tha t, e ve n where subs ta ntia l a nd co mpe lling cir cu ms ta nces are

prese nt, the cou r t mus t s till ha ve re gar d to t he be nchmark se t by the m inimum

se nte nces , in its de term ina tion of t he a ppr op r ia te se nte n ce. As a ppears f r om

para gra ph of the SCAs s ummar y ab ove , it he ld tha t, whe n the cou r t finds tha t

there are subs ta ntia l a nd co mpe lling cir cums ta n ces to impo se a lesser se nte nce ,

34 S v Dodo 2001 (3) SA 382 (CC) para 11 35 Hea ds of Ar gu me nt a t para 28


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account must be taken of the fact that crime of that particular kind has been

singled out for severe punishment and that the sentence to be imposed in lieu

of the prescribed sentence should be assessed paying due regard to thebenchmark which the Legislature has provided. 36

[43] This inter pre ta tion was und ers co re d by the Sout h Af r ica n Cou r t of App ea l in S

v Mvambu 37 were it was he ld tha t the tr ia l judge in the cou r t a quo ha d co mm itte d a

ma ter ia l misdire ction be ca use :

... having found substantial and compelling circumstances to be present, he

considered himself to have a free and unfettered discretion to impose any

sentence he considered appropriate ... 38

a nd t ha t this con s titute d s uch ma ter ia l m is dire ction be ca use it over looke d a bench

mark indicating the seriousness with which the legislature views offences of this

type . 39

NO PROP ER GR ADA T ION OF PUN IS HM ENT IN TH E O VER A LL SE NT ENC ING S CH EM E

[44] Mr Tre ngov e fur ther s ubm itte d 40 tha t the minimum se nte nces are a ls o g r oss ly

dis pr opo r tiona te , not only be ca use the y are unduly se vere in themse lves , but a ls o

36

See a lso S v Abrahams 2002 (SA) SACR 116 (SAC) a t para 25 were the C ou r t confi rme d th is as pe ct b y s ta ting: The prescribed sentences the Act contains play a dual role In the sentencing process. Where factors or substance do not compel the conclusion that the application of theprescribed sentence would be unjust, that sentence must be imposed. However, even where suchfactors are present, the sentences the Act prescribes create a legislative standard that weighs uponthe exercise of the sentencing courts discretion. This entails sentences for the scheduled crimes that are consistently heavier than before. 37 S v Mvambu [2005] 1 All SA 435 (SCA) 38 S v Mvambu a t para 17 39 S v Mvambu a t para 17 40 Hea ds of Ar gu me nt a t para 46


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be ca use the y are wholly out of kilter with the se nte nces me te d out to t hose who

comm it other cr imes wh ich are eq ua lly a nd e ve n s ignifica ntly more se vere tha n s tock

the ft. He re f erre d the Cou r t to R v Latimer 41 were the Sup reme Cou r t of Ca na da he ld

tha t,

"There is no doubt that a sentencing regime must exhibit a proportionality to

the seriousness of the offence, or to put it in another way, there must be a

gradation of punishments according to the malignity of the offences. " 42

[45] The s ubm iss ion is tha t the minimum se nte nces are dispr opo r tiona te in this

re gar d in t ha t the y are wholly out of kee ping with the se nte nces ge nera lly me te d out

to those convict e d - .

- of the ft, f ra ud a nd co rr uption wh ich are a t leas t as ser ious as s toc k the ft,

a nd

- assa ult to do g r ie vous bodily harm , r obber y, ra pe a nd mu r der wh ich are

immeas urab ly more ser ious tha n s tock the ft in tha t the y threa te n, inju re a nde ve n d es tr oy huma n lives. 43

[46] The e ff e ct of t his la tter dis cre pa ncy, so the s ubm iss ions continu e , is tha t the

s ta te res pond s more se vere ly to threa ts to p r oper t y tha n to i mmeas urab ly more

ser ious threa ts to huma n lif e a nd sa f e ty. This is , so it is ar gue d, a ma nif es ta tion of a

skewe d p er ce ption of con s titutiona l va lues. Althoug h pr oper ty is wor thy of p r ote ction,

it is quite inimica l to the Cons titution a nd t he va lues tha t und er pin it, to a ffor d

pr oper ty grea ter a nd more a gg ress ive pr ote ction t ha n tha t a ffor d e d to huma n lif e. 44

41 R v Latimer [2001] 1 SR C 3 42 R v Latimer a t par 83 43 Hea ds of Ar gu me nt a t para 47 44 Hea ds of Ar gu me nt a t para 48


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TH E A LL E G E D VIOL A T ION OF A RT ICL E 8(2)(b)

[47] In th is re gar d the ar gu me nt ra n thus :

Article 8(2)(b) of the Constitution provides that:

No persons shall be subject to torture or to cruel, inhuman or

degrading treatment or punishment.

This prohibition forms part of the provisions of article 8 which are designed to

protect the innate dignity of every human being. Article 8(1) provides that thedignity of all persons shall be inviolable . Article 8(2)(a) goes on to say that, in

any judicial proceedings or in other proceedings before any organ of the state

and during the enforcement of a penalty, respect for human dignity shall be

guaranteed.

The Supreme Court held in the Corporal Punishment case, that no derogation

from the rights entrenched by art 8 is permitted, that the states obligation

under it is absolute and unqualified and that no questions of justification can

ever arise. 45

A full bench of this court held in Vries, that a sentence violates article 8(2)(b) if

it is grossly disproportionate to the severity of the o ffence for which it is

imposed. 46 It went on to consider when that would be the case and concluded

that the gross proportionality test was not materially different from the

shocking test conventionally applied by our courts in their evaluation of

sentences on appeal. It adopted the shocking test, by which it meant that the

court should ask whether the sentence is so excessive that no reasonable

45 Ex Parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State op cit a t p 86 46 S v Vries a t 248J to 249 B


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man would have imposed it, for the determination of its constitutional

validity. 47

This court also recognised in Vries that, when it assesses the constitutional

validity of a statutory sentence, it should obviously do so, not only on the basis

of the facts of the particular case before it, but also with respect to

hypothetical cases which ... can be foreseen as likely to arise commonly . 48 In

the current applications, the constitutional validity of the two minimum

sentences are the only Issue before the court. It is not called upo n to

determine the fate of the particular applicants. The constitutional validity of the

minimum sentences under attack must accordingly be determined, not on the

facts of the particular cases before the court, but on the basis of suchhypothetical cases as can be foreseen as likely to arise commonly. 49

[48] Acco r dingly it was s ubm itte d tha t the minimum se nte nces und er a tta ck i n

these a pplica tions , are a ls o uncon s titutiona l be ca use of the ir dis pr opo r tiona lity. The y

are s o se vere be ca use the ir only pu r po se is to d e ter. 50 This , so the ar gu me nt ra n

fur ther , was ma de clear by the P r ose cuto r e nera l in her de f e nce of the minimum

se nte nces whe n she s ta tes tha t: Farming with stock has become the only viable

option for many inhabitants of the country and the high incidence of stock theft

threatens this only means of income to legitimate stock farmers and the legislature

was compelled to devise means that would stem the tide. But, a pplica nts s ubm itte d,

in its zea l to s tem the tide of s tock the ft, the le gis la ture has res or te d to minimum

se nte nces wh ich are gr oss ly dispr opo r tiona te in tha t the y unf a ir ly a nd unju s tly puni sh

those who are ca ught a nd convict e d, not be ca use the ir cr imes deser ve the

se nte nces me te d out to t hem , but to d e ter others f r om co mm itting the same cr ime.

47 At 250 E48 At 253C 49 Hea ds of Ar gu me nt a t para 36 -41 50 Hea ds of Ar gu me nt a t para 45


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Pers ons who f a ll foul of the minimum se nte nces are thus use d as ins tr ume nts of

de terre nce in viola tion of t he ir r ight to re cognition of a nd res pe ct for the ir inna te

huma n dignity . The y are use d as a mea ns to a n e nd a nd not as a n e nd in

themse lves as the Con s titution req uires. Acco r dingly it sh ould be conclud e d tha t both

se ction s 14(1)(a)( ii) a nd (b) are uncon s titutiona l a nd inv a lid. 51

[49] I pa use to me ntion t ha t an a tta ck on se ction s 14(1)(a)( ii) a nd (b) was a ls o

mount e d on A r ticle 10 of the Cons titution . Howe ver in view of the finding

s ubseq ue ntly ma de it has now be co me unn e cessar y to d ea l with this as pe ct. 52 In

a ddition it was point e d out t ha t a ny finding of uncon s titutiona l ity of se ction 14(1)(a)( ii)

a nd 14(1)(b) would di re ctly a lso a ff e ct the va lidity of se ction 14(1)( i). In view of the

pr inciple e nunci a te d by the Sup reme Cou r t in Kauesa , a nd as this as pe ct was not

ra ise d on t he pa pers I am oblige d to d e cline the invita tion to a ls o p r onounc e on t he

va lidity of se ction 14(1)( i) here in.

TH E F IR S T A N D TH IR D R ES PON D E NT S S T A NC E

[50] Mr Mark us , who a ppeare d on beha lf of the firs t a nd t hir d res pond e nts,

conc e de d on beha lf of these res pond e nts , as a lrea dy me ntion e d ab ove , tha t in the ir

view both se ction s are uncon s titutiona l as the y are in conflict with Ar ticle 8(2)(b) of

the Cons titution .

51 Hea ds of Ar gu me nt a t para 44 - 45 52 Kauesa v Minister of Home Affairs and Others op cit a t p 184 A a court should decide no morethan what is absolutely necessary to determine the case and constitutional law should be developed cautiously, judiciously and pragmatically... .


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[51] The point of d e par ture of the reas oning adva nce d on beha lf of firs t a nd t hir d

res pond e nts is the Sup reme Cou r t de cis ion of Ex parte Attorney General, Namibia:

In re Corporal Punishment by the Organs of State 1991 (3) SA 78 (Nms) were the

Cou r t obser ve d tha t ... the ques tion as to whe ther a par ticular form of puni shme nt

a uthor ize d by law is inhuma n o r de gra ding i nvolv es the exer cise of a va lue judg me nt.

It is ma de with re gar d to t he cont em po rar y no rms , as pira tions , ex pe cta tions a nd

se ns itivities of the Nam ibia n p e ople as ex presse d in its na tiona l ins titution s a nd it s

Con s titution . Re gar d is a ls o ha d to t he emer ging con se ns us of va lues i n the civilize d

inter na tiona l comm unity, of wh ich Nam ibia is a par t, a nd wh ich Nam ibia ns share ...

53 . Thus no e vide ntiar y e nquir y is req uire d. 54 The va lues of the Nam ib ia n

Con s titution are tha t of a br oa d a nd univ ersa lis t huma n r ights cultu re.55

[52] Firs t a nd t hir d res pond e nts a cknowle dge tha t t his Cou r t has pre vious ly

a cce pte d tha t the Act ser ves a le gitima te gover nme nta l pur pose a nd t ha t the

s tipula tion of a minimum se nte nce is in itse lf not o bje ction ab le. 56 It is the me thod s

em ploye d to a chie ve the la udab le obje ctive tha t are pr oblema tic, so it was

subm itte d. 57

[53] The Attor ne y enera l ide ntifie d the sh or tco m ings of se ction 14(1)(a)( ii) as

follows :

a) The section fails to distinguish between different kinds of stock. It makes

no difference whether cattle, sheep or goats are involved, yet it is common

53 At p 86 54 S v Tcoeib 1999 NR 24 SC a t 33 footnot e 11 55 over nme nt of the Re pu blic of Nam iba v Cultura 2000 1994 (1) SA 407 (Nm Sc ) a t 412 C-D56 5 S v Vries 1996 (12) BCLR 1666 (Nm HC) a t 1678 -I -57 Hea ds of Ar gu me nt a t para 15


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knowledge that the value of cattle is much higher than that of goats or

sheep.

b) The same sentence is visited on all persons who are convicted of anoffence referred to in section 11(1) (a), (b), (c) or (d) of stock, other than

poultry, of more than N$ 500.00, irrespective of the actual val ue and

quantity of the stock.

c) No distinction is made between an offender who is convicted in respect of

stock valued at N$ 500.00 and an offender convicted in respect of stock

valued at N$ 100 000.00. 58

[54] There fore it was subm itte d on beha lf of firs t a nd t hir d res pond e nts tha t as a

res ult of the ab ove me ntion e d e ff e cts , the m inimum se nte nce pres cr ibe d by se ction

14(1)(a)( ii) is like ly to be gr oss ly dispr opo r tiona te to the off e nce comm itte d in ma ny

ins ta nces. ive n the pre va le nce of s tock the ft in the count r y a nd t he

ab oveme ntion e d d e f e cts the se nte nce ma nd a te d by s 14(1)(a)( ii) will be sh ocking

with res pe ct to hypot he tica l cases wh ich can be foresee n as like ly to ar ise

co mm only.59

[55] With re gar d to se ction 14(1)(b) the Attor ne y e nera l is for s imilar reas ons of

the view tha t the ma nda te d se nte nce will be sh oc king, with res pe ct to hypot he tica l

cases wh ich ca n be foresee n as like ly to ar ise comm only. 60

58 Hea ds of Ar gu me nt a t para 16 59 Hea ds of Ar gu me nt a t para 17 60 Hea ds of Ar gu me nt a t para 18


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[56] With re f ere nce to the de cis ion of t his Cou r t in S v Lopez 2003 NR 162 HC , in

wh ich Ha nnah J ,( Mar itz J , as he the n was , concu rr ing) a dopt e d the inter pre ta tion of

substantial and compelling circumstances as ex pound e d in t he Sout h Af r ica n

de cis ions of S v Malgas 61 a nd S v Dodo 62 , it was subm itte d tha t ... give n the f a ct

tha t the be nchmark se t by the le gis la tu re of twe nty a nd t hir ty years is re la tive ly high ,

it is not difficult to i ma gine cir cums ta nces where the Cou r t finds tha t s ubs ta ntia l a nd

compe lling cir cums ta nces ex is t, but the se nte nce ultima te ly impo se d would s till be

dis pr opo r tiona l to the cr ime a nd induc es a se nse of sh ock in the con s titutiona l

se nse. 63

[57] Acco r dingly, so it was reas one d, both se ctions are in conflict with ar ticle 8(2)

of the Cons titution wh ich pr os cr ibes cr ue l, inhuma n o r de gra ding t rea tme nt o r

puni shme nt, as the infliction of ex cess ive puni shme nts is incong r ue nt with the te no r

a nd spir it of the Nam ibia n Cons titution re f erre d to ab ove.

TH E SE CON D R ES PON D E NT S GROUN D S FOR OPPO SI T ION

[58] As a lrea dy indic a te d ab ove it was only t he se cond res pond e nt tha t oppo se d

the a pplica tion s.

[59] In this re gar d Mr Colema n re lie d hea vily on, wha t he ca lle d, cer ta in ins tr uctive

pr inciples 64 as ar ticula te d by the Cons titutiona l Cou r t in S v Dodo :

61 2001 (2) SA 1222 (SCA) 62 2001 (3) SA 382 (CC) 63 Hea ds of Ar gu me nt a t para 28 64 Hea ds of Ar gu me nt a t para 36


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The executive and legislative branches of State have a very real interest in

the severity of sentences. The Executive has a general obligation to ensure

that law-abiding persons are protected, if needs be through the criminal laws,

from persons who are bent on breaking the law 65

In order to discharge this obligation to protect its citizens the executive and

legislative branches must have the power, through legislative means, of

ensuring that sufficiently severe penalties are imposed on dangerous criminals

in order to protect society. 66 It is submitted this consideration is equally

applicable to stock theft which second respondent asserts threatens the

livelihood of many law abiding Namibians.

It is not for the courts to judge the wisdom of the legislature with respect to the

gravity of various offences and the range of penalties which may be imposed.

Parliament has a broad discretion in proscribing conduct as criminal and

determining proper punishment. 67

On a proper construction of the concept substantial and compelling

circumstances [as enunciated in S v Malgas 2001 (2) SA 1222 (SCA)] section51(1) does not require the High Court to impose a sentence of life

imprisonment in circumstances where it would be inconsistent with the

offenders right guaranteed by secti on 12(1)(e) of the South African

Constitution. 68

[60] It was s ubm itte d fur ther tha t the ab oveme ntion e d p r inciples are a pplicab le in

Nam ibia a nd to t hese a pplica tions. I

t takes care of a ny re lia nce on A r ticle 8 of the Nam ibia n Cons titution . It was the n subm itte d tha t ne ither se ction 14(1)(a)( ii) no r

65 S v Dodo a t para [24] 66 S v Dodo a t para [25] 67 S v Dodo a t para [30] 68 S v Dodo a t para [39] - S e ction 12(1)(e) of the Sout h Af r ica n Con s titution is the eq uiva le nt of Ar ticle 8(2)(b) of the Nam ibia n Con s titution


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se ction 14(1)(b) of the Act req uires a cou r t in Nam ibia to i mpo se a minimum

se nte nce of e ither 20 years or 30 years where it would be incon s is te nt with the

off e nders r ights guara ntee d by Ar ticle 8(2)(b) of the Cons titution o r a ny ot her r ight

for tha t ma tter. 69

[61] If I und ers ta nd M r Colema ns ar gu me nt co rre ctly he seems to s ugg es t tha t, on

a pr oper con s tr uction of t he conc e pt s ubs ta ntia l a nd co mpe lling c ir cu ms ta nc es ,

se ction s 14(1)(a)( ii) a nd 14(1)(b) do not req uire a Cou r t to impo se a minimum

se nte nce of 20 or 30 years impr ison me nt in ci r cums ta nces where this would be

incon s is te nt with the off enders r ight gu ara ntee d by Ar ticle 8(2)(b) of the Nam ibia n

Con s titution a nd t ha t the cou r t would t here fore be f ree , in suc h cir cu ms ta nc es , to

impose a lesser se nte nce.

[62] This ar gume nt was a ls o mount e d on t he dis pr opo r tiona lity tes t. Here the

ar gu me nt ra n thus :

In the Vries matter 70 the court expressed the view that the disproportionality

test appears to be the same as the shocking test and ultimately disturbingly

inappropriate test in sentencing. This aspect was addressed cogently in the

Malgas case referred to supra. The court held that the legislature deliberately

and advisedly left the concept substantial and compelling circumstances

undefined to leave it to the courts to decide whether the circumstances of any

particular case call for a departure from the prescribed sentence.

The court in Malgas further held that the courts are a good deal freer to depart

from the prescribed sentences than has been assumed in earlier cases. It

69 Hea ds of Ar gu me nt a t para 37 70 a t 249 H-J


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then summarized the effect of section 51. The aspects of this summary that

are relevant here are: the section imposing the minimum sentence limited but

did not eliminate the courts discretion in imposing sentence; If the sentencing

court on consideration of the circumstances of the particular case is satisfied

that they render the prescribed sentence unjust in that it would be

disproportionate to the crime, the criminal and the needs of society, so that an

injustice would be done by imposing the sentence, it is entitled to impose a

lesser sentence.

Therefore the challenged sections do not fail the disproportionate te st in any

of its manifestations. 71

[63] As pers uas ive as Mr Colema ns ar gume nt s seeme d a t firs t gla nc e the y are too

ge nera l as the y over look the so-c a lle d du a l r ole tha t minimum se nte nces pla y 72 .

Fr om the a pp r oa ch la id do wn in both the Malgas a nd Dodo de cis ions , as e ndo rse d

by this Cou r t in Lopez , it be comes a ppare nt tha t, e ve n where subs ta ntia l a nd

co mpe lling cir cu ms ta nces are found to be prese nt, the cou r t do es not be come

abs olute ly f ree to impose a ny se nte nc e it con s iders a pp r op r ia te , as it mus t s till ha ve

re gar d to t he be nchmark se t by the m inimum se nte nc es , in its de term ina tion of an

a pp r op r ia te se nte nce.

[64] This was confirme d by the Sout h Af r ica n Cons titutiona l Cou r t in the Centre for

Child Law 73

case , in wh ich the ma nner in wh ich a minimum se nte ncing re gime f e tters

71 Hea ds of Ar gu me nt a t para 38 - 41 72 The firs t is tha t it pres cr ibes the m inimum se nte nc es tha t m us t be im po se d in t he abse nc e of s ubs ta ntia l a nd co m pe lling cir cu ms ta nc es. The se cond i s tha t, e ve n where s ubs ta ntia l a nd co mpe llingcir cu ms ta nc es are prese nt, t he cou r t m us t s till ha ve re gar d to t he be nc hmark se t by the m inimum se nte nc es , in its de term ina tion of t he a pp r op r ia te se nte nc e. 73 Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC)


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a cou r ts se nte ncing di scre tion e ve n if s ubs ta ntia l a nd co mpe lling cir cums ta nces are

found to ex is t was s uccinctly a na lyse d as follows :

The very nature of minimum sentences is to diminish the courts power of

individuation by constraining their discretion in the sentencing process. The

Supreme Court of Appeal in Vilakazi has recently emphasized that under

Malgas and Dodo disproportionate sentences are not to be imposed and that

courts are not vehicles for injustice. Nevertheless, in its very essence the

minimum sentencing regime makes for tougher and longer sentences. While

the hands of the sentencing courts are not bound, they are at least loosely

fettered. As this court noted in Dodo, the very object of the regime is to ensure that consistently heavier sentences are imposed.

The minimum sentencing regime does this in three ways. First, it orientates

the sentencing officer at the start of the sentencing process away from options

other than incarceration. Second it de-inviduates sentencing by prescribing as

a starting point the period for which incarceration is appropriate. Third, even

when not imposed, the prescribed sentences conduce to longer and heavier

sentences by weighing on the discretion. 74

[65] In a ddition, t he ar gume nt, mus tere d on beha lf of the se cond res pond e nt , a lso

f a ile d to kee p in mind tha t it was found in Mvambu, tha t the tota l disre gar d of t he

se nte ncing be nchmark by a cou r t in the impo s ition of a se nte nce , it con s iders

a pp r op r ia te , con s titutes a ma ter ia l mis dire ction . I res pe ctfully con s ider the

a pp r oa ches as formula te d a nd a dopt ed by the SCA in Mvambu ,a nd t he Centre for Child Law cases as co rre ct as otherw ise the a pp r op r ia te re cognition of t he le gis la te d

be nchmark se t by the minimum se nte nc es would not be give n as is req uire d by the

s ta tute.

74 At paras 45 a nd 46


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[66] Cr ucia l to se cond res pond e nts s ubm iss ions in suppo r t of t he cont e ntion t ha t

se ction s 14(1)(a)( ii) a nd 14(1)(b). are not uncon s titution a l is the re lia nc e pla ce d on

the following p assa ge f r om Dodo , in wh ich the Con s titutiona l Cou r t sa id:

[40] n the con s tr uction t ha t Malgas pla ces on t he conc ept 's ubs tantia l a nd

co mpe lling cir cu ms ta nces ' in s 51(3)(a) , which is undou bte dly co rre ct, s 51(1) does

not req uire the High Cou r t to impose a se nte nce of li f e impr isonme nt in

cir cu ms ta nces where it would be incon s is te nt with the off e nder 's r igh t gu ara ntee d by

s 12(1)(e) of the Cons titution . The whole app r oa ch enunci a te d in Malgas , and in

par ticular the de term ina tive tes t ar ticula ted in p ara I of the s ummar y, 59 name ly:

'If the se nte ncing cou r t on con s idera tion of the cir cu ms tanc es of the par ticular case is sa tis fie d tha t the y re nder the pres cr ibe d se ntenc e unju s t in tha t itwould be dis pr opo r tiona te to the cr ime , the cr imina l a nd t he nee ds of s ocie ty,s o t ha t a n inju s tice would be done by impo s ing tha t se ntenc e , it is e ntitle d toimpose a lesser se ntenc e '

makes pla in tha t the power of the cou r t to impo se a lesser se nte nce tha n tha t

pres cr ibe d c a n be exer cise d we ll be fore the dis pr opo r tiona lity be twee n the m a nda ted

se nte nce and t he na ture of the off enc e be co mes s o g rea t tha t it can be typified as

gr oss. Thus the se nte ncing cou r t is not o bliged to i mpose a se ntenc e which would

lim it the off e nder 's s 12(1)(e) r ight. Acco r dingly s 51(1) does not co mpe l the cou r t to

a ct incon s is tently with the Con s titution . It is ne cessar y to em phas ise the diff ere nce

be twee n the two tes ts , be ca use the y ser ve diff ere nt pu r poses. The tes t in Malgas

mus t be em ploye d in o r der to d e term ine whe n s 51(3)(a) ca n le gitima te ly be invoke d

by a se nte ncing cou r t to p ass a lesser se ntence tha n tha t pres cr ibe d by s 51(1) or

(2). The tes t of g r oss dis pr opo r tiona lity, on t he other ha nd, mus t be a pplie d in o r der to

de term ine whe ther a se ntenc e ma nda ted by law is incon s is tent with the off ender 's s

12(1)(e) r ight. It has not bee n s ugg es ted tha t s 51(1) co mpe ls the se ntencing cou r t toa ct incon s is tently with the Cons titution in any ot her wa y.

[67] The Cons titution a l Cou r t in Dodo (a t p393C -D) a cce pte d the inter pre ta tion of

the wor ds subs ta ntia l a nd co mpe lling cir cu ms tances in Malgas, as summar ize d a t

para 25 of the la tter judg me nt , as be ing a n overar ching guid e line wh ich is one tha t


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the Cou r t e ndo rse d as a pra ctica l me thod to be em ploye d by a ll judicia l officers

f a ce d with the a pplica tion of s 51 a n d continu e d:

It will no dou b t be re fined and p ar ticular ise d on a case by case bas is , as the nee d

ar ises. It s teers an app r opr ia te pa th, which the Legis la ture dou btless inte nded,

res pe cting t he Legis la ture 's de cis ion to e ns ure tha t con s is te ntly hea vier se nte nces

are impose d in re la tion to t he ser ious cr imes covere d by s 51 a nd a t the same time

pr omoting 't he spir it, pu r por t a nd o bje cts of the Bill of Rights '.

[68] The Con s titutiona l Cou r t did not go fu r ther by spe cifica lly con s ider ing in more

de ta il the req uireme nt se t by Malgas a t para. [25J] , name ly tha t t he se nte nce to

be impose d in lie u of t he pres cr ibe d se nte nce sh ould be assesse d p a ying du e re gar d

to the be nch mark wh ich the Le gis la ture has pr ovide d. This req uireme nt is

ex presse d in more de ta il ear lier in Malgas (a t p1235 E) whe n t he Sup reme Cou r t of

Appea l sa id tha t whe n a lesser se nte nce is impose d the cou r ts are to res pe ct, a nd

not mere ly pa y lip ser vice to, the Le gis la ture 's view tha t the pres cr ibe d p er iods of

impr is on me nt are to be take n to be or dinar i ly a pp r op r ia te whe n c r imes of the spe cifie d kind are comm itte d.

[69] The more dis pr opo r tiona te the s ta ndar d se t by the Le gis la ture be comes

thr oug h the be nchmark se t, the more difficult it be co mes for the cou r ts to p a y due

re gar d to t he be nchmark , until a s ta ge is rea che d where it be comes intolerab le. At

suc h a s ta ge a ny p r of esse d re gar d be ing p a id to the be nch mark would ind ee d be

mere lip ser vice. In my view suc h a s ta ge has bee n rea che d with res pe ct to a lar ge

number , if not t he ma jor ity of s tock the ft cases where the va lue of the s tock is ab ove

N$500. I am not re f err ing here to ser ious cases where a lar ge number of a nima ls

are s tole n o r s la ughtere d o r where the tota l va lue is much higher tha n N$500. Fo r


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exam ple , in the re ce nt c ase of Erastus Munongo v The State (High Cou r t Case No.

CA 104 /2010 , un re po r te d judg me nt d a te d 2 De cember 2010) , wh ich involve d the

the ft of a s ingle goa t va lue d a t N$600 , the Cou r t he ld (a t para. [24]) on t he f a cts of

tha t case tha t it would be a n inju s tice to impose s uch se vere se nte nces as the

be nch mark , s imply be ca use the va lue of the lives tock br ings the case within the

amb it of the pres cr ibe d minimum of not less tha n twe nty years impr ison me nt.

Eve ntua lly the Cou r t, ha ving found t ha t there were s ubs ta ntia l a nd co mpe lling

cir cums ta nces , impo se d a se nte nce of 2 years a nd 5 months impr is on me nt, a f ar cr y

f r om the pres cr ibe d se nte nce of 20 years impr is onme nt.

[70] It be co mes clear tha t a ny a pp r op r ia te lesser se nte nc e impo se d in s uc h

cir cums ta nces ca n there fore ne ver be divor ce d e ntire ly f r om the m inimum se nte nces

or da ine d by the le gis la ture. If this obliga tor y re gar d to - a nd ma nda tor y linking of a n

a pp r op r ia te lesser se nte nce to the be nchmark se t by the minimum se nte ncing

re gime ne ver the less res ults in a sh ocking or dispr opo r tiona te se nte nce75 , a

viola tion of an a ccu se ds Ar ticle 8 r ight would ha ve occu rre d 76 . While it is a cce pte d

tha t a ll this is re la tive , as this ultima te ly de pe nds on how high the be nchmark has

bee n se t, it do es not t ake muc h to ima gine tha t a viola tion of t he Ar ticle 8 r ights of

a ccu se d p ers ons , with res pe ct to hypot he tica l cases wh ich ca n be foresee n as like ly

to ar ise co mm only, will occu r , if the be nchmark in ques tion, were se t too high. Mr

Colema n, f a ir ly and co rre ctly, in my view , conc e de d this poss ibility, whe n this was put to him by the Cou r t.

75 ie. a se nte nc e tha t is s o ex cess ive tha t no reas onab le ma n would ha ve im po se d it 76 S v Vries a t 250 I -J


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[71] Th is is howe ver pre cise ly a lso t he s itua tion tha t ar ises in the prese nt c ase for

the var ious reas ons a nd exam ples a dva nce d by Mr Tre ngov e a nd as a lso t he Da nie l

a nd P e ter cases illus tra te.

[72] More par ticular ly Mr Da nie l was 21 years old. He was convict e d of the the ft of

nine goa ts wor th N$4450.00. He was a firs t off e nder without a ny p re vious

conviction s. He a dm itte d tha t he ha d s tole n the goa ts a nd ex pla ine d tha t he ha d

don e s o be ca use , I am an orphan, both parents are deceased. I committed this

offence to survive that is all . He was se nte nce d to 20 years impr ison me nt.

[73] Mr Pe ters co-a ccu se d 3 , 4 a nd 5 were young fi rs t off e nders of 20 , 21 a nd 25

years res pe ctive ly. The y were convict e d of p ar ticipa tion in t he the ft of a s ingle co w.

The cou r t found t ha t there were s ubs ta ntia l a nd co mpe lling cir cums ta nces not to

impose the minimum se nte nce be ca use of the ir re la tive ly minor r oles in the the ft. It

non e the less se nte nce d ea ch of them to 15 years impr ison me nt of wh ich five years

were condition a lly s us pe nde d.

[74] Mr Pe ter was a 38 year old ma n. He was convict e d of p ar ticipa ting in t he

same the ft of a s ingle cow. He pla ye d a more a ctive r ole tha n his co-a ccu se d. He

was not t he pr incipa l per pe tra t or. He ha d a pre vious conviction fo r s tock the ft

comm itte d 11 years ear lier. The cou r t he ld tha t there were no s ubs ta ntia l a nd

compe lling cir cu ms ta nc es a nd se nte nce d him to 30 years impr ison me nt.

[75] Althoug h the Pe ter a nd D a nie l exam ples make the point I kee p in mind tha t

the con s titutiona l va lidity of the two minimum se nte nces in ques tion are the only

iss ue be fore the cou r t and t ha t I am not c a lle d upon to d e term ine the f a te of the


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par ticular a pplica nts. The con s titutiona l va lidity of the minimu m se nte nces und er

a tta ck is there fore not d e term ine d on t he f acts of the par ticular cases be fore the

cou r t, but on t he bas is of the hypot he tica l cases tha t ca n be foresee n as like ly to

ar ise co mm only . It is in this res pe ct tha t re gar d is ha d to t he exam ples re f erre d to in

para gra phs 31 , 35 a nd 36 ab ove. All these hypot he tica l exam ples sh ow tha t the

res ulta nt se nte nces , be ca use of the he ight of the be nch mark se t in the Stoc k The ft

Act, would in t hemse lves be gr oss ly dispr opo r tiona te to the se ver ity of the cr imes for

wh ich the y would be me te d out, a nd t ha t the y would be irra tiona lly se vere if

co mpare d to t he se nte nces for other eq ua lly a nd more ser ious off e nces. 77 The y

would t hus be re ndere d sh ocking a nd dispr opo r tiona te in the con s titutiona l se nse

be ca use of the le ve l to wh ich the be nch mark in the Stoc k The ft Act was ra ise d by

the ame ndme nt to se ction 14 br oug ht ab out by Act 19 of 2004.

[76] It is for these reas ons a lone tha t the minimum se nte nc es se t by se ction

14(1)(a)( ii) and 14(1)(b) of the Stoc k The ft Act do not p ass mus ter.

[77] There is howe ver a fur ther impo r ta nt con s idera tion wh ich und ers co res the

con s titutiona l inva lidity of these se ction s . It has a lrea dy bee n found in Vries tha t

Par liame nt has deeme d it fit to int r oduc e m inimum se nte nces in order to attempt to

counter the prevalence of stock theft and the effects thereof. These minimum

se nte nces were s ubseq ue nt to Vries drama tica lly increase d to t he ir curre ntpar ticular ly high le ve l. De terre nc e there fore rema ins the car dina l f ea ture of this

m inimum se nte ncing re gime. Huma n dignity a nd t he de -individua tion of a ny se nte nce

to such a de gree tha t it loses the pr opo r tiona lity be twee n t he off ence a nd t he per iod

77 Suc h as The ft, f ra ud, co rr uption, assa ult to do g r ie vou s bodily harm , r obber y, ra pe a nd mur der for ins ta nc e


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of impr is onme nt c a n, of cou rse , not be sa cr ifice d on t he a ltar of de terre nce in a

con s titutiona l dis pe nsa tion, wh ich has bee n he ld to embra ce a br oa d a nd

universa lis t huma n r ights cultu re 78 a nd wh ich s ubs cr ibes to the inhere nt dignity of a ll

members of the huma n f am ily. 79

[78] This was a ls o re cogni se d in Dodo were it was he ld tha t the conc e pt of

pr opo r tiona lity goes to the-heart of the inquiry as to whether punishment is cruel,

inhuman or degrading 80 a nd were the cou r t we nt on to e lab ora te as follows :

... To attempt to justify any period of penal incarceration, let alone

imprisonment for life as in the present case, without inquiring into the

proportionality between the offence and the period of imprisonment, is to

ignore, if not to deny, that which lies at the very heart of human dignity.

Human beings are not commodities to which a price can be attached; they are

creatures with inherent and infinite worth; they ought to be treated as ends in

themselves never merely as means to an end. Where the length of a

sentence, which has been imposed because of its general deterrent e ffect onothers, bears no relation to the gravity of the offence..., the offender is being

used essentially as a means to another end and the offenders dignity is

assailed. 81

[79] This point is a ls o ma de by J us tice Sa chs in Mohunram v National Director of

Public Prosecutions 82 who fo rmula te d this pr inciple as follows :

78 Government of the Republic of Namibia v Cultura 2000 1994 (1) SA 407 (Nm Sc ) a t 412 C-D79 See P reamb le to the Nam ib ia n Con s titution80 At para 37 81 At para 38 82 2007 (4) SA 222 {CC)


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Deterrence as a law enforcement objective is constrained by the principle that

individuals may not be used in an instrumental manner as examples to others

if the deterrence is set at levels beyond what is fair and just to those

individuals. To do otherwise would be to breach th e constitutional principle of

dignity. 83

[80] It follows there fore tha t Mr Tre ngov es ar gume nt to t he e ff e ct tha t the

m inimum se nte nces und er a tta ck in these a pplica tions are uncon s titutiona l as the

le gis la ture has res or te d to minimum se nte nces wh ich are gr oss ly dispr opo r tiona te in

tha t the y unf a ir ly a nd unju s tly puni sh those who are ca ught a nd convict e d, not

be ca use the ir cr imes deser ve the se nte nces me te d out to t hem , but to d e ter others

f r om co mm itting the same cr ime a nd t ha t the pe ople who f a ll foul of the minimum

se nte nces are thus use d as ins tr ume nts of de terre nce in viola tion of t he ir r ight to

re cognition of a nd res pe ct for the ir inna te huma n dignity a nd t ha t the y are there fore

use d as a mea ns to a n e nd a nd not as a n e nd in t hemse lves as the Cons titution

req uires , is co rre ct a nd mus t be uphe ld.

[81] The conclu s ion is ines ca pab le tha t the minimum se nte ncing re gime crea te d by

se ction 14 of the Stoc k The ft Act has s imply se t the le ve ls of de terre nce be yond wha t

is f a ir a nd ju s t to t hose ca ught up in it .

[82] For the a fore going reas ons both se ction s 14(1)(a)( ii) and (b) of the Stoc k The ft

Act are found to be uncon s titutiona l a nd inv a lid.

TH E Q U ES T ION OF R EL IEF

83 At para 146


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[83] The par ties were ad idem tha t the con s titutiona l inva lidity of both these

se ction s would be cu re d by mere ly s tr iking out t he per iods of the minimum se nte nces

the y pres cr ibe wh ile kee ping int a ct the ir pres cr iption of impr is onme nt without t he

option of a fine , as s uc h a pp r oa ch would lea ve inta ct the und er lying p r inciple , tha t the

per pe tra tors of s tock the ft sh ould be incar cera te d .

[84] I a gree tha t this would be the corre ct a pp r oa ch as the esse nce of the se ction s

would rema in inta ct, a nd as "this a pp r oa ch would a t the same time give re cognition

to the inte ntion of P ar liame nt wh ile a ls o re cogni s ing the or dinar y citize n s inna te r ight

to dignity a nd t he r ight not to be s ubje cte d to cr ue l a nd/o r de gra ding puni shme nt "84 .

Tha t is not to sa y tha t in a pp r op r ia te cases ver y le ngthy per iods of impr is on me nt ma y

not be impose d. All the other se ntime nts a nd g r ound s a s ex presse d in motiva tion of

this a ppo s ite type of re lie f by Fra nk J in Vries 85 are a lso of di re ct a pplica tion here in.

[85] As the logica l con seq ue nce of only s tr iking out t he per iods of the minimum

se nte nces re f erre d to in se ction s 14(1)(a)( ii) a nd 14(1)(b) , wh ile lea ving the cr oss re f ere nce to se ction 14(1)(a) a nd 14(1)(b) as cont a ine d in se ction 14(2) unqua lifie d,

would c a use a n o bvious a nd irre concil eab le discre pa ncy to t he e ntire s tr uctu re of

se ction 14 , it has be come ne cessar y to a ls o e ff e ct, a t the same time , a con seq ue ntia l

84 At 255 H 256 A85 At 255 H 256 A


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qua lifica tion of t he a ff e cte d p r ovis ions of se ction 14(2). This po wer is exer cise d in

terms of Ar ticle 25(3) of the Cons titution .

[86] In the res ult the following o r der is ma de :

a) the wor ds for a period not less than twenty years are s tr uck f r om se ction

14(1)(a)( ii) of the Stoc k The ft Act 12 of 1990 , as ame nde d;

b) the wor ds for a period not less than thirty years are s tr uc k f r om se ction

14(1)(b) of the Stoc k The ft Act 12 of 1990 , as ame nde d;

c) the re f ere nce to subsections (1)(a) and (b) in se ction 14(2) of the Stoc k

The ft Act 12 of 1990 , is con seq ue ntia lly rea d do wn to mea n subsection

(1)(a)(i);

d) the se cond res pond e nt is or dere d to p a y both a pplica nts co s ts of two

ins tr ucte d a nd on e ins tr ucting coun se l.

_____________________


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G EIE R , AJ

I a gree.

_____________________

VA N N IEK E RK , J

ON E H A LF OF TH E A PPL IC A NT: MR. W. Tre ngov e , s c

Ass is te d by Mr N. Tjombe

INSTRU CTED BY: Le ga l Ass is tance Ce ntre


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ON E H A LF OF F IR S T & TH IR D R ES PON D E NT S : MR. N. N. Mar cu s

over nme nt Atto r ne ys

ON E H A LF OF SE CON D R ES PON D E NT: MR. .B. Colema n

INSTRU CTED BY: Lo re ntz Angul a Inc

protasius daniel and another v the attorney general and two others judg.a 238-2009 & a 430-09.geier...

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