reinard eugen august strowitzki versus the state
TRANSCRIPT
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CASE NO.P3/ 1997
IN THE SUPREME COURT OF NAMIBIA
In the matte r be tween
REINHARD EUGEN AUGUST STROWITZKI APPLICANT
And
THE STATE RESPONDENT
CORAM: MTAMBANENGWE, ACJ, TEEK, AJA etCHOMBA, AJA
HEARD ON: 10/04/2003
DELIVERED ON: 16/ 09/ 2003
APPEAL JUDGMENT
CHOMBA, A.J.A.
INTRODUCTION
This ma tte r ca me befo re us as a result of a let ter written b y the Reg istrar of
this Co urt (hereina fte r the Reg istrar s letter) to Dr. Strow itzki, who , for
convenience only, has been cited as the applicant in the process leading
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to this hea ring. I sta te tha t Dr. Strowitzki has been cited as app lica nt for
c onvenienc e s sake only bec ause of the rea sons I sha ll delve into in the
c ourse of this judg me nt. The Reg istrars let ter has been pivota l to som e of
the a rguments which we re a b ly and forc efully subm itted by Mr. Geier, who
acted as amicus c uriaeon b eha lf of Dr. Strowitzki. I therefo re p roc ee d to
rep rod uc e the Reg istrars let ter.
It sta tes :
J H Viljoen
P.3/07 26 Ap ril 2002
Ad v. H. Ge ier
Soc iety of Advoc ate s
Namlex Building
WINDHOEK
Dear Sir
RE: ARGUMENT: DR. R.E.A. STROWITZKI
The Honourab le Chief Justic e req uested me to set the app lic a tion of
Dr. R.E.A. Strow itzki down for p roper argument on the fo llow ing,
namely:
1. Whether the High Court and Supreme Court have
jurisdiction to consider a further application for leave to
appeal and/or petition to grant leave to appeal afterrefusa l of a n app lica tion by the High and the d ismissa l of
the petition to the Chief Justice even if the new
ap plic ation and pe tition a re launched in respe c t of new
or purported new evide nce ; and
2. If the Court should find that under the circumstances ithas such jurisdiction whether the applicant has made
out a c ase for the granting of lea ve to app ea l .
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Kind ly take notice tha t the ma tter has been set d ow n for a rgum ent in
the Suprem e Court on Wed nesday 2 Oc tober 2002 a t 10h00.
The C ourt a lso req uested your assista nce to a rgue the m atte r amicuscuriae in view thereof tha t you we re the Counsel in the c riminal tria l
from the be g inning.
A copy of the record which includes all the necessary
doc umenta tion for purpo se of the a rgument is atta c hed .
Kindly file Heads of Argument in the same way as is required in an
ap pea l be fore the Supreme Court.
Yours faithfully
J.H. Joubert
REGISTRAR: SUPREME COURT
Prosecutor-General
High Court
WINDHOEK
Copy for your a ttention.
Attac hed please find a c opy o f the rec ord.
J.H. Joubert
REGISTRAR: SUPREME COURT
c c R.E.A. Strowitzki
C/ o Harda p PrisonPrivate Bag 2135
MARIENTAL
BRIEF HISTORY BEHIND DR. STROWITZKIS SO-C ALLED APPLICATION
For a better appreciation of the submissions which were made on Dr.
Strowitzki s beha lf, a b rief summa ry of the history which prop elled this
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ma tter to this court had b ette r be narra ted a t the outset. Way ba c k in 1993
in criminal case number 118 of tha t year, Dr. Strowitzki wa s c ha rged
tog ethe r with one Bernd Albert Bc k in an indic tme nt co nta ining 130
c ounts of fraud . The two stood tria l befo re O Linn, J, as he then wa s. For
rea sons we need not enter into, the trial went o n into 1996 when bo th of
them w ere c onvicte d on a ll c ounts. Before sentence could be imposed o n
them, Dr. Strowitzki instituted rec usa l proc eed ings a lleg ing b ias on the part
of the t ria l judge and c onseq uently seeking the judg e to rec use himself
from the c ase. O Linn, J hea rd the app lica tion and dismissed it in due
course.
During the said recusal proceedings an affidavit deposed to by the said
Bernd Albert Bck, who was the second accused in the criminal
proceedings aforementioned, constituted the base of the accusation
aga inst O Linn, J. At the instiga tion o f the tria l judge b oth Dr. Strowitzki and
the said Bck were prosecuted on four counts charging, as to the first
count that between 9th and 12th August 1996 the two accused persons
colluded with each other with intent to wrongfully and unlawfully defeat
the cause of justice, as to the second count that between the said same
dates the two accused persons did unlawfully and intentionally vitiate the
dignity, repute and authority of OLinn, J, as presiding judge in the
a forement ioned c riminal p roc eed ings, as to the third c ount, tha t on the
self same dates the two accused persons did unlawfully and intentionally
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depose and swear to an affidavit making false allegations against OLinn,
J, and as to the fourth count, that on those very dates the two did
wrongfully and unlawfully make false statements knowing the same to be
false.
In substance the alleged falsehoods were to the effect that while the
c riminal proc eed ings we re pend ing relating to the fraud c harges, O Linn,
J, had made promises to Bc ks mo ther, now d ec ea sed , and la ter to Bc k
himself, tha t O Linn, J, would no t send Bc k to p rison in c onseq uenc e o f the
sa id c rimina l p roc ee dings. The four counts were tried b y Kotz, J, who
subsequently convicted Bck on all four counts while acquitting Dr.
Strowitzki c om p letely. Afte r the sentenc es were imposed in respec t of 130
c ounts of fraud Dr. Strow itzki unsuc c essfully app lied befo re O Linn, J. for
lea ve to ap pe al aga inst both c onvic tion and sentenc e. Unda unted b y the
rejec tion o f his sa id app lica tion, Dr. Strowitzki submitted a pet ition to the
Chief Justice still seeking lea ve to appea l as sta ted .
On July 2, 1997, by o rder of three judges of the Suprem e C ourt, nam ely
Ma hom ed , C.J, Mtamb aneng we , A.J.A, and G ibson, A.J.A. , Dr. Strowitzki
wa s informe d tha t his petition for lea ve to a ppea l had been refused . It is
necessary at this stage to mention that by section 316(7) of the Criminal
Proc ed ure Ac t, No. 51 of 1977, (the Criminal Proc ed ure Ac t), a p et ition to
the Chief Justice is required to be considered in chambers by three
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appella te judge s designa ted by the Chief Justice. And b y subsec tion (9)
(a ) of the sa id sec tion 316, The d ec ision of the Appella te Division or of the
three judg es thereof c onsidering the p etition, as the c ase m ay be , to g rant
or refuse any app lica tion, sha ll be final.
Som ew hat a nom alously, despite the c lea r provision in sec tion 316(9)(a )
a forement ioned Silungwe, J, enterta ined an app lica tion by Dr. Strowitzki
submitted subseq uent to the refusa l of the pet ition to the Chief Justice .
The a pp lic a tion which Silungwe , J, enterta ined w as two-fold , viz, for leave
to a ppea l aga inst Dr. Strowitzki s c onvic tion on the 130 c ounts of fraud a nd
c onseq uential 11 yea r p rison sentence and sec ond ly lea ve to ad duce
new evidenc e. For rea sons which nee d no t deta in us it suffic es to sta te
tha t Silungwe, J, d ismissed both app lica tions. It is in c onseq uenc e o f tha t
d ismissa l that Dr. Strowitzki onc e aga in submitted a pet ition to the Chief
Justice and it was that petition which engendered the writing by the
Reg istrar of this c ourt of the letter I have rep rod uc ed hereinbe fore.
CONSIDERATION OF THE REGISTRARS LETTER
In answering the first question p osed in the Registrar s letter the sta rting
point ha s to be the t ime whe n Dr. Strowitzki first p et itione d the Chief Justice
for leave to appeal after refusal of a similar application which was
c onsidered b y O Linn, J. As we ha ve a lrea dy seen that petition wa s
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trea ted pursuant to sec tion 316 of the Crimina l Proc ed ure Ac t. Let me
straight away reproduce some pertinent provisions of that section.
The Crimina l Proc ed ure Ac t as amend ed by Ac t No. 10 of 2001 p rovides as
follow s in as fa r as sec tion 316 is c onc erned , quot ing o nly the p ertinent
parts of it : -
(1) An ac c used c onvic ted o f any offence b efore the HighCourt of Nam ib ia ma y, within a p eriod of fourteen d ays of
the passing of any sentence as a result of such conviction
or within such extended period as may on application
.on good cause be allowed, apply to the judge who
presided a t the tria l for lea ve to app ea l aga inst his or
her conviction or against sentence
(6) If an application under subsection (1) for condonation orleave to appeal is refused ..the accused may, within aperiod of twenty-one days of such refusal, or within such
extended period as may on good cause be allowed, by
petition addressed to the Chief Justice submit his
application for condonation or for leave to appeal or his
application to call further evidence .to the Appellate
Division, a t the same time g iving written not ic e tha t this
has been do ne to the Reg istra r of the p rovincial or loc a l
d ivisionwithin whose area of jurisd ict ion the trial took
place .and such Registrar shall forward to the
Appella te Division a c op y of the app lica tion...in q uestionand of the rea sons for refusing suc h app lica tion
(7) The p etition sha ll be c onsidered in Cha mb ers by three judg esof the Appella te Division designa ted by the Chief Justice.
(8) The judges c onsidering the p et ition may (a ) -
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(b ) (c ) whether they have acted under paragraph (a) or
(b) or not
(i) -(ii) in the case of an application for leave to
appeal or an application for leave to call
further evidence, grant or refuse the
application..
(d ) refer the matter to the Appellate Division forc onsideration, whethe r upo n a rgum ent or otherwise,and that Division may thereupo n dea l with the
ma tter in a ny manner referred to in parag raph (a).
(9)(a ) The dec ision of the Appella te Division or of the judg es
thereof considering the petition, as the case may
be, to g rant or refuse a ny ap p lica tion, sha ll be final.
The Crimina l Proc ed ure Ac t is by orig in a South Africa n sta tute the
app lic ation of which wa s extended to South West Afric a as a dep endenc y
of South Afric a . The indep end ent sta te of Namibia adop ted this Ac t as
one of its post-independence laws by virtue of Article No. 140 of the
Co nstitution of Namibia. Therefo re the refe renc e in tha t Act to terms suc h
as Ap pella te Division and judge s thereof a re referenc es in p resent d ay
Namib ia to the Supreme Court of Nam ib ia o r judge s of the latte r c ourt. In
the event in my further discussion of the Criminal Procedure Act I shall
simp ly refe r to the Suprem e Court or judges of tha t c ourt, in p lac e o f the
Appellate Division or judges of that Division.
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In casu it is c om mon ca use tha t Dr. Strow itzki unsuc c essfully app lied fo r
lea ve to appea l to the tria l judge , name ly O Linn, J., and late r petitioned
the C hief Justice in the same vein and tha t tha t p etition w as c onsidered in
chambers by the Chief Justice and two appellate judges, namely
Ma hom ed , C.J., Mta mb aneng we , A.J.A. and Gibson, A.J.A. Therefore the
provisions of section 316 subsections (1), (6), (7), (8)(c)(ii) and (d) and (9)(a)
were sa tisfied . Conseq uent ly the d ec ision of refusa l ma de by the three
appella te judges in c hamb ers was in terms of subsec tion (9)(a), fina l. In this
c onnec tion let m e stress the p eremp tory langua ge used in subsec tion 9(a):
it sta tes The d ec ision of .. the three judg es . conside ring the pet ition
. to g rant o r refuse a ny app lica tion, sha ll be fina l (e mp hasis mine).
The q uestion which springs from the c onseq uenc e o f sec tion 316 (9)(a) on
the p etition o f Dr. Strow itzki ma y be posed , name ly, wa s it c om petent for
Silungwe , J, to ente rta in the a pp lica tion ma de by Dr. Strowitzki for lea ve to
appeal and leave to adduce further evidence, considering the finality
which that section attached to the decision made by the appellate
judges. Fortuna te ly we do not have to see k far for an answe r to this
question.
This is in the light o f the heads of a rguments submitted by Mr. Ge ier in the
first o f the four vo lumes c onta ining his a rgum ents. This is wha t is to be fo und
at heading C. Conc lusion of Volume 1 :
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44. It wo uld seem therefore tha t:
39.1 The proc ee dings befo re Silungwe , J, constitute a nullityas Silung we, J, d id no t ha ve the necessary jurisd ict ion to
hear a further application for leave to appeal
subsequent to the appeal procedures having been
exhausted by (Dr. Strowitzki) w ith the refusa l of h is
pet ition to the Suprem e Court during 1997 ; and
39.2 The further app lica tion for condona tion a nd fo r a spec ia lentry in terms of section 317 to the High Court can
simila rly not be ente rta ined b y suc h court on those
grounds.
45. It has also become clear that no inherent jurisdiction of theHigh o r Sup reme Courts, to he ar suc h further app lic a tion, exists.
46. It is submitted therefore that the first question as posed by theHonourable Chief Justice in (the Registrars letter) must be
answe red in the negative.
47. It follows that in such circumstances question 2 (in theReg istrars let ter) d oes not req uire determinat ion.
In agreeing with the position taken by Mr. Geier regarding the status of the
proc ee d ings befo re Silung we, J., Mr. Small went a little further. His
contention was to the following effect, namely that after the refusal of Dr.
Strowitzki s pet ition by the three a ppella te judg es, the High Court, upon
being a pproa ched by Dr. Strow itzki on a purported subseq uent
application, ought to have reacted by informing him that it had no
jurisd ic tion in the ma tte r. As the High Court did no t so reac t but instead
accepted to entertain the matter, the proceedings following upon such
ac c ep tance were a nullity. Such nullity could not give rise to a va lid further
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petition to the Chief Justice which has now been referred by the Chief
Justice to this court as evidenc ed by the Reg istrars let ter.
On the b asis of the extended submission o f Mr. Small as in the p rec ed ing
pa ragraph, it c an sa fely be a sserted tha t the referra l by the Chief Justic e o f
Dr. Strowitzki s matte r to us could not have b een done under sec tion
316(8)(d), which, as we have seen, em pow ers appella te judges who have
been designated by the Chief Justice to consider a petition in chambers,
to refer suc h pe tition to the Sup rem e Court sitting in op en c ourt. In othe r
words the referral can only be validly made on a valid petition emanating
from valid High Court proceedings, unlike the proceedings before
Silung we, J. By inverse rea soning, if the p urpo rted found ing High Court
p roc eed ings a re a nullity, no p etition c an be founde d on a nullity. As Lord
Denning stated in the cause celebr on this point, name ly MACFOY v
UNITED AFRICA CO. LTD (1961) 3 A ll E.R. 1169 a t page 1172:
If an ac t is void , then it is in law a nullity. It is not only ba d , but
inc urab ly ba d . There is no need for an o rder of the c ourt to set it
aside. It is autom atica lly null and vo id without a do, though it issometimes convenient to have the court declare it to be so.
And every proceeding which is founded on it is also bad and
incurably ba d . You ca nnot put something on nothing and
expe c t it to sta y there. It will c ollapse.
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Lord Dennings dictum portrays graphically the emptiness of judge
Silungwe s purpo rted d ismissa l of Dr. Strow itzki s purpo rted ap p lica tion.
Therefore no petition c ould b e p rem ised on it.
In the result, on the c om mon view taken b y both Mr. Ge ier and Mr. Sma ll
relat ing to the p resent referra l of Dr. Strow itzki s c ase to this c ourt, the se
proceed ings would falter at this stag e a nd c ould not b e taken a ny further
but for the alternative arguments forcefully adduced by Mr. Geier into
which I sha ll now delve.
MR. GEIERS SUBMISSIONS
One of the arguments advanced by Mr. Geier touched on the status of
judges of the Suprem e Co urt sitting in c hambers. Are they to be reg arded
as being a t par with the Supreme Court sitting in open c ourt? If not, wha t
authority does a dec ision ma de in c hamb ers by such judge s c arry? Do
judges sitting in chamb ers c onstitute a c ourt of rec ord?
In advancing his arguments touching the foregoing questions Mr. Geier
referred to sta tutory as well as c onstitutiona l provisions. In this ve in he
refe rred to Artic le 79(1) which d efines the c om position of the Suprem e
Court. By this article and sub-article
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The Sup reme Court sha ll c onsist o f a Chief Justice a nd suc h
additional judges as the President, acting on the
rec om mendation of the jud ic ia l servic e c om mission, ma y
determine.
He linked this a rtic le with sec tion 6 of the Sup rem e Co urt Ac t, No. 15 of 1990
(herea fter the Supreme Court Ac t) which p rovides tha t
Save a s otherwise p rov ided in Art. 12(1)(a ) and (b) of the
Nam ibian Constitution, a ll p roc eed ings in the Suprem e Courtshall be c arried out in op en c ourt.
Crowning the argument on the question of the status of judges sitting in
c hamb ers, Mr. Ge ier also refe rred us to sec tion 16(1) of the Sup rem e Court
Ac t, which g ives the Supreme C ourt the additiona l pow er of review. For a
bet ter apprec iation it is nee dful to quote th is p rovision in full thus
16.(1) In ad d ition to a ny jurisd iction c onfe rred upon it by this
Ac t the Suprem e Co urt sha ll, sub jec t to the provisions of this
sec tion and sec tion 20, have the jurisd ict ion to review
proceedings of the High Court or any lower court, or any
administrative tribuna l or authority estab lished or c onstituted by
or under any law.
Submitting o n the foregoing leg a l provisions, Mr. Geier argue d tha t since
the Supreme Court is ma ndatorily req uired to sit in op en c ourt, appella te
judges sitting in chambers could not be considered to constitute the
Suprem e Court as p rov ided in Artic le 79(1) of the Co nstitution. Therefo re,
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he concluded that the appellate judges sitting in chambers constitute a
low er court falling within the contemp la tion of sec tion 16(1) of the Suprem e
Court. In the event he contend ed tha t a de c ision of judg es sitting in
c hamb ers wa s reviewa b le b y the Supreme Court sitting as we d id in op en
c ourt in the p resent he aring . It was his further c ontent ion tha t a sitting in
c hamb ers is not a c ourt of rec ord. In ma king this submission he w as
focusing his attention on the decision of Chief Justice Mohamed sitting in
c ham be rs with ac ting ap pe llate Justic es Mtamb aneng we and Gibson
when they refused the p et ition by Dr. Strowitzki for lea ve to a ppea l.
These submissions beg a number o f q uestions som e of which a re first,
what is a lower court within the purview of subsection (1) of section 16 of
the Supreme Court Ac t; sec ond ly, a re p roc eed ings taken in cha mb ers by
three appellate judges any less in the authority they carry than those
proc ee d ings held in open c ourt; third ly, in the light of sec tion 6, what is the
va lid ity of proc eed ings held in cha mb ers by appella te judg es?
One answer to the question regarding the authority of a decision made in
chambers by appellate judges is to be found in section 316(9)(a) of the
Crimina l Proc ed ure Ac t. As we have seen tha t sec tion plac es suc h a
dec ision a t p ar with a d ec ision m ade b y the Suprem e Court sitting in op en
c ourt. Both dec isions a re fina l. By nec essary imp lica tion sec tion 316(9)(a)
belies the argument that judges sitting in chambers constitute a lower
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c ourt. Ad d itiona lly the p osition is made mo re explic it by Artic le 83 of the
c onstitut ion. This is wha t tha t a rtic le sta tes
83. Low er Co urts
(1) Low er courts sha ll be esta b lished b y Ac t of
Parliame nt a nd sha ll have the jurisd ic tion and adop t
the procedures prescribed by such Act and
reg ula tions ma de there und er;
(2) Low er c ourts sha ll be p resided over by Ma g istrates
or other judicial officers appointed in accordancewith p roc ed ures p resc ribed by Ac t o f Parliament.
Co nsistent w ith Artic le 83 the Crimina l Proc ed ure Ac t, in sec tion 1(1) defines
low er court as me aning any c ourt estab lished unde r the p rovisions of the
Ma gistrates C ourts Ac t No. 32 of 1944.
Mo re light is throw n on to this issue b y sub -artic le (4) of Article 79. This
provides tha t the jurisd ic tion o f the Supreme Court w ith reg a rd to appea ls
sha ll be de termined by Ac t of Parliament . In this c ount ry there are two
suc h Ac ts which p resc ribe the jurisd ic tion o f the Suprem e Court, these
being the Suprem e Court Ac t and the Criminal Proc ed ure Ac t. The former
dea ls mo re elab orate ly with c ivil ap pella te jurisd ic tion while the la tter dea ls
more elaborately with crimina l appella te jurisd iction. In this sense we c an
sta te tha t both these sta tutes derive their authority from the c onstitution.
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Furthermore, section 315 of the Criminal Procedure Act carrying the rubric
Ap pea ls in ca ses of c rimina l appea ls in superior courts p rovides as
hereunder:
(1) In respec t of ap pea ls and questions of law reserved in
c onnec tion with c riminal ca ses hea rd by the High C ourt of
Namibia, the c ourt of ap pea l sha ll be the Suprem e Co urt
of Namibia.
(2) An appeal referred to in subsection (1) shall lie to theSuprem e C ourt o f Nam ibia o nly as p rovided in sec tions 316to 319 inc lusive, and not a s of right.
We have already seen that section 316(7) of the Criminal Procedure Act
makes provision for criminal petitions addressed to the Chief Justice to be
considered in chambers by three appellate judges designated by the
Chief Justice. Quite c lea rly this p rovision plac es the three judges sitting in
c hamb ers on a higher ped esta l than tha t o f jud ic ia l offic ers who p reside in
lowe r c ourts. The three judg es a re involved in the sc hem e of appea ls to
the Suprem e Court. In the event to argue tha t suc h judges sitting in
chambers constitute a lower court flies in the face of an express statutory
provision.
When appellate judges in chambers consider issues pertaining to criminal
appea ls do they c onstitute a c ourt of rec ord or not? Mr. Ge iers answer is,
the y do not . This answer is, in my view, p rem ised o n fa lse ground . Let us
c onsider a rea l situat ion w hic h happens reg ula rly in this court. Dec isions
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ma de b y judge s in chamb ers when considering p etitions a re in ac tua l fac t
rec orded whe ther they be in the neg ative or in the affirma tive. Where the
decision is one of granting the petition, the record of such grant goes
forward to the Suprem e Court sitting in op en c ourt when the latte r hea rs
the substantive a pp ea l. This c ourt wo uld then note , as we have a lwa ys
done, that the appeal comes to it after the appellant was granted leave
to ap pea l. In so sta ting we refer to the rec ord ema nating from c ham bers.
Moreove r this c ourt d id in the c ase of AFSHANI and ANOTHER v. KATRIN
VAATZ, CASE NO. SA 9/ 2002 (unrep orted ) rec og nize tha t when a judg e is
sitting in c hambers he is by nec essary imp lica tion req uired to keep a rec ord
of the p roc eed ings. Delivering the judg ment of the c ourt, O Linn. A.J.A.
had this to say at page 13 :-
Althoug h the re is no express p rovision in a ny law or rule o f c ourt
for a judge in chambers to keep a record, it is clearly a
necessary implication from the provision that a judge is the
func tiona ry and from rule 48 itself, tha t a rec ord m ust b e kep t o f
the p roc eed ings in c ham bers.
I must, however, hasten to point out tha t the d ic tum o f O Linn wa s ma de in
reference to a High Court judge dealing with a civil matter in chambers
and the question in Afshani wa s whe ther a dec ision o f suc h a judge wa s a
judgment or order which, in terms of section 18 of the High Court Act, No.
16 of 1990, provides in subsection (1) that an appeal from a judgment or
order of the High Court in any civil proceedings shall be heard by the
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Suprem e Court. In c ont rad istinct ion from the p resent case, which is
criminal, I must stress that Afshani was a civil case which turned on
c onside ra tions a lien to the p resent one . The c onside ra tions ra ised in limin
in Afshani were : whe ther the de c ision o f a judg e in cha mb ers on a review
wa s fina l and without a right of a ppea l, or, in the a lternative, even if there
was a right of appeal, whether leave to appeal was required but not
ac tua lly ob ta ined . In Afshani, therefo re, the p rovision in sec tion 316(9)(1) of
the Criminal Proc ed ure Ac t d id not fall for co nsideration.
The third issue I must now address is as reg ards the sta tus of p roc ee d ings
before appellate judges in chambers in the light of the requirement of
sec tion 6 of the Supreme Court Ac t. As a lrea dy noted , that sec tion requires
tha t save a s p rovided in a rticle 12(a) a nd (b) p roc eedings in the Supreme
Co urt must be he ld in op en c ourt. If the p rovisions in this sec tion a re to be
construed in their literal or ordinary sense, then no valid business can be
c ond uc ted in the Supreme Court othe rwise tha n in op en c ourt. Is such a
situa tion tena b le? Ac c ording to Mr. Ge ier it is tenab le bec ause in relying
on section 6 he has impugned the validity of the decision made by the
three judg es who rejec ted Dr. Strowitzki s pet ition in c hamb ers and lab eled
it a de c ision ma de b y a lower court.
Unhap p ily the word p roc eed ings is not d efined in the Supreme Court Ac t
and I am presently not aware of any other statute or constitutional
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provision w hic h offers suc h a d efinition. In the event, I am o f the view tha t
since the meaning of sec tion 6 afo resa id has been b roug ht und er sc rutiny
in the current case, it is incumbent on this court to find a purposive
me aning of that wo rd . In attemp ting to do this I have to c onsider the
range of b usiness c ond uc ted in the Supreme Court.
Artic le 79(4) of the c onstitut ion simp ly provides The jurisd ict ion of the
Supreme Court with reg ard to a ppea ls sha ll be d ete rmined by Ac t of
Parliament. When the Suprem e Court Ac t was ena c ted in 1990, Parliament
provided not o nly for ap pella te jurisd ic tion of the Suprem e Court, but a lso
p rovided for jurisd ic tion to hea r and d etermine other matte rs. Thus by
sec tion 2 of the Suprem e Court Ac t it is ena c ted as follow s :
The Sup rem e Court sha ll have jurisd iction to hea r and
determine appeals and any such other matters which may be
conferred or imposed upon it by this Act or the Namibian
Co nstitution o r any othe r law . (underlining supp lied).
This p rov ision puts one o n inquiry as to wha t o the r matters fa ll within the
jurisd ic tion of the Suprem e Co urt and how such ma tters a re to b e d ea lt
with or in othe r wo rds, wha t proc ed ure is to b e employed in dea ling w ith
the othe r mat ters.
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By Artic le 79(2) (T)he Sup rem e Co urt sha ll be p resided ove r by the Chief
Justice and shall hear and determine appeals emanating from the High
Co urt .. The Sup reme Court sha ll a lso d ea l with ma tters referred to it for
decision by the Attorney-General under this constitution, and with such
othe r ma tters as ma y be a uthorized by Act o f Parliame nt. Looking fa r
a field , this time a t the Sup rem e Court Ac t itself, there a re three othe r
provisions which vest in the Sup reme Court jurisd ict ion in respec t of other
matte rs. Sec tion 14(6)(a ) imposes on the Sup rem e Court jurisd iction to hea r
pet itions for lea ve to a ppea l. Sec tion 15(1) of the same Ac t rea ffirms the
jurisd ic tion of the Sup rem e Court to enterta in matte rs refe rred to it by the
Attorney-Genera l and sec tion 16(1) vests in the Sup rem e Court the
jurisdiction of review of proceedings of the High Court, any lower court, or
any administrative tribunal or authority established by or under any law.
The jurisd ic tion to rec eive and dete rmine p etitions for lea ve to app ea l is
a lso p resc ribed by the Crimina l Proc ed ure Ac t as a lrea dy show n.
In as far as the procedural requirements of entertaining appeals, referrals
by the A ttorney-General and p etitions for lea ve to ap pe al are conc erned,
these too a re p resc ribed by sta tute . So fa r as the hea ring and d etermining
of substantive appeals is concerned the position does not lend itself to
doub t. These a re hea rd in ope n court with a norma l complement o f three
judges one of whom must be the Chief Justice a s p residing officer. (Art.
79(2).)
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Reg ard ing petitions for lea ve to appea l to the Supreme Court in criminal
c ases, these a re required to be a ddressed to the Chief Justice who is g iven
power to designate three appellate judges to consider the same in
c hamb ers. As reg ards pet itions for lea ve to a ppea l in c ivil c ases, by sec tion
14(3)(b) of the Supreme Court Ac t, they are to be c onsidered by the Chief
Justice or any o ther judg e d esigna ted for the p urpose b y the Chief Justic e.
To this end the Chief Justice or the designa ted judge may ente rta in
arguments from the parties or their counsel before determining a petition
one wa y or the other. By nec essary imp lica tion suc h co nsidera tion of a
petition, including the hearing of arguments, is to be conducted in
c hamb ers bec ause there is no sta tutory provision for one judg e only to hear
and d etermine a ny ma tters in op en c ourt.
Coming to the procedure of dealing with referrals from the Attorney-
Ge neral to the Sup rem e Court an unc lea r situa tion exists. Ac c ording to
Artic le 79(3) (T)hree judg es sha ll co nstitute a quorum of the Suprem e Court
whe n it hea rs appea ls or de a ls with matters referred to it b y the Atto rney-
Genera l unde r this c onstitution: p rovided tha t provision ma y be ma de by
Act of Parliament for a lesser quorum in circumstances in which a judge
seized of an appeal dies or becomes unable to act at any time prior to
judgment. The imp ression c onveyed by this c lause is tha t referra ls, like
appeals, are to be heard in open court with a normal complement of 3
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judge s. On the o ther hand the c ombined effec t of sub-rules (1) and (4) of
rule 6 of the Suprem e Court Rules is tha t when the Atto rney-General refe rs
a ma tter to the Supreme Court a s p rovided unde r the c onstitution he / she
has to do so by application addressed to the Chief Justice and the
app lica tion has to b e in the na ture of a petition. The petition fa lls to b e
c onsidered either by the Chief Justice o r by a judg e o f the Supreme Court
(sub -rule 4). In terms of rule 6, the refore, the referra l by the Attorney-
Ge neral has to be considered b y one judg e in c hamb ers. Thus there
ap pe ars to be a c onflic t betw een the constitutiona l provision and that
found in the rules.
We were not a ddressed on this apparent c onflic t and the refore it would b e
imp rudent to a ttem pt any de finitive conc lusion on the ma tter. In any ca se
the provisions cited earlier have amply demonstrated that the procedure
of hearing c ertain ma tters in c hamb ers is entrenched by sta tute, name ly by
the Supreme C ourt Ac t and the Criminal Proc ed ure Ac t. Both sta tutes
derive their efficac y from the c onstitution as we ha ve seen. This lea ds me
to the c ontention ra ised by Mr. Geier in reg ard to sec tion 6 of the Suprem e
Court Act. He argued tha t all p roc eed ings of the Supreme Court oug ht
unfailingly to be held in ope n court.
As we have seen the section provides in apparent mandatory terms, that
a ll p roc eed ings in the Supreme Court sha ll be c ond uc ted in op en c ourt. If
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the section is to be understood in the ordinary grammatical or literal sense
then it means that hearing proceedings in chambers is not legally
permissible. In othe r words p roc eed ings in c hamb ers a re null and void in
law. But is tha t the true leg a l position?
The following d ictum b y Park B. in BECK v SMITH (1836) 2M and W 191 a t
page 195 is now held as the loc us c lassicusand is hallowed as the Golden
Rule of c onstruct ion of de ed s and sta tutes. He sa id -
The rule (i.e. the golden Rule) is a very useful rule in the
construction of a statute, to adhere to the ordinary meaning of
words used, and to the grammatical construction, unless that is
at variance with the intention of the legislature, to be collected
from the statute itself, or leads to any manifest absurdity or
repugnance in which case the language may be varied or
mo d ified , so a s to a void such inc onvenienc e, but no further.
Against the backdrop of the golden rule what construction should we put
on the p rovisions of sec tion 6 of the Suprem e Court Ac t? Does it indeed
me an that a ll p roc eedings in the Supreme C ourt, inc luding a ll p roc eed ings
of a n interloc utory nature, should b e transac ted in op en c ourt?
We have a lrea dy noted tha t the supreme Court Ac t itself has p rovided tha t
petitions for leave to appeal from High Court judgments or orders, both in
criminal and civil matters, may be dealt with by an appellate judge or
judges in chambers though procedural law allows the judges in certain
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c irc umstanc es to refer pe titions and/ or ap p lic a tions to the Supreme Court
sitting in open court. It has a lso, though in ap parent c onflic t with the
Constitution, provided that petitions from the Attorney-General may
equally be considered in chambers by the Chief Justice or an appellate
jud ge. The Crimina l Proc ed ure Ac t, which I must em pha size, a lso d erives its
authority from the Constitution, similarly makes provision for petitions for
leave to appeal to be considered in chambers by three judges of the
Suprem e Court.
It is thus c lea r that the intention o f the legislature is not to b ind the Sup rem e
Court to c onsider in op en c ourt all and sundry matters c om ing b efore it. It
would be not only ab surd and inco nvenient to cond uct all proceed ings in
op en c ourt, it w ould a lso be extrem ely co stly to parties for suc h p roc ed ure
to b e a dop ted . Wherea s in cham be rs some ma tters c an b e c onside red in
the absenc e o f the parties or their c ounsel, this c annot b e so whe re o pen
c ourt hearings have to b e held . Op en court proce ed ings more often than
not enta il costs, espec ially in c ivil matters.
Consequently I venture to hold, and do in fact so hold, that the word
proceedings as used on section 6 has a special and restricted meaning.
It means p roc eed ings perta ining to substa ntive ap pea ls. To ho ld o therwise
wo uld be unrea listic and absurd , and indeed, as I ob served in respond ing
to Mr. Geier s sub missions on th is matter, I ha ve yet to lea rn of any
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appella te c ourt in any c ountry which hea rs in the op en court p rac tica lly a ll
ma tters com ing before it. I wo uld , therefo re, and with due respec t d ismiss
as untenab le Mr. Geiers vehement submissions on this issue.
Concom itant with the argum ent tha t all p roc eed ings in the Suprem e Court
should be held in open court was a further submission by Mr. Geier that
there wa s an irrec onc ilab le c onflict b etw een sec tion 6 of the Supreme
Court Ac t and sec tion 316(7) of the Criminal Proc ed ure Ac t. He a rgued
that in such an event the law implies that the later law has repealed the
ea rlier law. As the Suprem e Co urt Ac t wa s ena c ted in 1990 wherea s the
Criminal Procedure Act was enacted in 1977, section 316(7) is presumed,
acc ord ing to Mr. Geier, to have be en repea led by imp lication by sec tion 6.
That a rgument is untenab le in the light o f the result I have c om e to in
app lying the g olden rule o f c onstruc tion to sec tion 6 of the Supreme Court
Act.
Yet another forceful a rgument put forward by Mr. Ge ier is tha t this court
should a c t und er sec tion 16(1) of the Suprem e C ourt Ac t, that is by wa y of
review . He urged tha t sec tion 16(1) vests in the Sup rem e Co urt ad d itiona l
jurisd ic tion over and above its appella te jurisd ic tion. To this end therefo re,
notw ithstand ing the fac t that in ac c orda nc e with sec tion 316(9)(a) of the
Criminal Procedure Act the refusal by the three judges in chambers was a
final decision, the court thus has additional jurisdiction to enable it to
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reopen the High Court case and review it because of irregularities
c om mitted by the tria l judg e in the course of the tria l p roc eed ings. He wa s
a t p a ins in c iting a numb er of c ases which define what kind of irreg ula rities
would justify a review and in which it wa s held tha t the irreg ula rities a re a c ts
which oc c ur during a tria l and not in conseq uence thereof.
The review jurisd ict ion is to be invo ked by this court mero m otu. This lega l
requirement did not escape the attention of Mr. Geier and he therefore
rep ea ted ly reminded us tha t there wa s no a pp lic a tion for review b efore us.
He contended that the reviewable irregularities would come to our
a ttention by rea d ing the rec ords of the p resent ca se. In order to invoke
the review jurisdiction a prescribed procedure has to be complied with.
This proc ed ure is to be fo und in rule 7 of the Sup rem e Co urt Rules. The rule
provide s : -
Wherever it comes to the notice of the Chief Justice or any
othe r judg e o f the Supreme Court tha t a n irreg ula rity has
occurred in any case contemplated in section 16 of the Act,
and he or she decides to invoke the review jurisdiction of the
Suprem e Court in te rms of tha t sec tion
(a) the pa rties affec ted and the c ourt or tribuna l or
authority referred to in the said section shall be
informed of tha t dec ision by the reg istrar; and
(b ) the provisions of rule 6(5)(b) and (6) shall mutatismutandisapply.
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The sa id p rovisions of rule 6 sta te as hereunder :-
(5) If the Chief Justice o r any suc h judge of theSuprem e Court, as the ca se may be, dec ides tha t
an app lic a tion is, by virtue of its urgenc y or
othe rwise of a na ture suffic ient to justify the exerc ise
of the courts jurisdiction as contemplated by
sec tion 15 of the Ac t
(a) the petitioner or his or her a ttorney and the
respondent, if any, or his or her attorney, shall be so
informed by the reg istrar.
(b ) the Chief Justice or suc h other judge, as the
c ase may be, shall thereafte r d irec t
(i) what pleadings or affidavits or documents arerequired to be filed by the parties to the
proceedings;
(ii) the period within which such pleadings ora ffidavits or doc uments sha ll be lodge d;
(iii) whether or not any special dossiers are requiredto be compiled in terms of section 23 of the Act
and if so, the time within which such dossiers are
required to b e lodge d;
(iv) the d a te o n which the Supreme Court sha ll hea rthe matter or any interlocutory proceedings
pertaining thereto.
(6) The Chief Justice or suc h other judg e, as the casema y be, shall be entitled to ca ll for or to hea r
argument from affected parties with regard to
matters referred to in sub-rule (5), and such a
hearing or such argument may be considered by
the Chief Justice o r suc h other judge o f the Sup rem e
Co urt as he o r she may designa te fo r tha t purpose.
As can be seen there is quite an elaborate procedure to be followed if a
matte r is to be review ed under sec tion 16(1). Tha t proc ed ure wa s not
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complied with and in particular the affected parties have not been given
the opportunity to make representations pursuant to rule 6(5)(b) and (6).
Moreover much as Mr. Geier tried to persuade us to invoke the review
jurisd iction mero mo tuwe d id not share his c ontention tha t the tria l before
O Linn, J., should b e reviewed . It is to b e no ted tha t Mr. Ge ier did c onc ed e
that if the court did not find it fitting to invoke its review jurisdiction mero
motuthen that w ould be the end o f the matter.
As the review argument d id not find favour with the c ourt, I find it otiose to
delve into the m any c ited authorities which Mr. Ge ier referred us to on the
point.
Another contention Mr. Geier submitted was in relation to inherent
jurisd iction. In this c onne c tion he c ited the c ase of SEFATSA and OTHERS v.
ATTORNEY-GENERAL, TRANSVAAL and ANOTHER 1989 (1) SA 821. Tha t was
a c ase in which the Appella te Division o f the Suprem e Court of South Africa
was urged to exercise its inherent jurisd ic tion to reg ula te its p roc eed ings by
wa y of c a rrying o ut a rea ppra isa l of the c onvictions of the appellants in the
light o f further evidenc e which tended to show tha t the trial court wa s the
vic tim o f fraud . Rabb ie, Act ing Chief Justice , who d elivered the judg me nt
of the c ourt sta ted a t p age 334, lette r E. the follow ing :
The c ases referred to imm ed ia tely ab ove wo uld seem to show ,in my opinion that it is the settled view of this court that its
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jurisdiction in criminal matters is determined by statute, i.e. the
Criminal Procedure Act and such other relevant statutory
provisions as the re m ay be.
Later at pages 838 letter J and 839, letters A-C the learned Acting Chief
Justice had the fo llow ing to say
Rec ords of this c ourt relating to the ma tter revea l the follow ing.
The C hief Justice referred the petition fo r lea ve to appea l to a
mem ber of this Division (see sec tion 316(7) of the CriminalProc ed ure Ac t 51 of 1977, as wo rded a t that time ) who , a fter
c onsidering it, refused lea ve to ap pea l. Sikweyiya wa s so
notified . Ab out ten days la ter the same judge c ancelled his
refusa l of lea ve and g ranted leave. Sikweyiya wa s then not ified
that lea ve had be en granted. There wa s no judg ment by this
c ourt on the ma tter. The dec ision of the judg e when he refused
leave was, in terms of section 316(9) of the Criminal Procedure
Ac t 51 of 1977, fina l , and the granting of lea ve thereafte r
appears to have been contrary to the provisions of section 316
(9). It hard ly need s saying tha t a c ourt ca nnot have a n inherent jurisdiction which would entitle it to act contrary to an express
provision of an Ac t of Parliament . Sikwe yiya s c ase c annot,
therefore, be regarded as authority for the petitioners
submission (underlining mine).
Mr. Ge ier urge d tha t the forego ing d ic ta b y Rabbie, A.C.J., we re now non
sequiturbec ause o f the c om ing into fo rc e in South Afric a of Artic le 173 of
the Final Rep ub lic o f South Afric a C onstitution Ac t No. 108 of 1996. By tha t
a rtic le the superior courts in South Africa have b een vested with inherent
jurisd iction. The Artic le provid es -
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The Constitutiona l Court, Sup rem e Court of Ap pea l and High
Courts have the inherent power to protect and regulate their
own process, and to develop the common law, taking into
ac c ount the interests of justice .
Back here a t ho me Artic le 78(4) of the c onstitution has p rovisions which a re
virtua lly in pari materia with Artic le 173, sup ra . The a rtic le is c ouched in the
follow ing terms
The Sup rem e Court and the High Co urt sha ll have inherent
jurisd ict ion which vested in the Sup rem e Court of South West
Afric a immed iate ly prior to the d ate of indepe ndence, including
the p ower to regulate their own proced ures and to make c ourt
rules for tha t p urpose.
In distancing himself from the dicta of Rabbie A.C.J., see supra, Mr. Geier
submitted tha t the fa ir hea ring p rovisions in Art. 12 of the Constitution
reinforce the nee d for the Suprem e Court to e xercise inherent jurisd iction in
order to do justice. The p ertinent provisions of Art. 12 a re the fo llowing : -
(1)(a ) In the dete rmina tion of the ir c ivil rights and
obligations or any criminal charges against them, allpersons shall be entitled to a fair and public hearing
by a n indep endent, imp artial and c omp etent c ourt
or tribuna l esta b lished b y law: p rovided tha t suc h
c ourt or tribunal may exclude the p ress and / or the
public from all or any part of the trial for reasons of
mo ra ls, the p ub lic order or na tiona l sec urity, as is
nec essary in a dem oc ra tic soc iety;
(b ) A trial referred to in Sub -Artic le (a ) hereo f sha ll ta keplace within a reasonable time, failing which theaccused shall be released.
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As reg a rds the need for invoking the inherent jurisd ic tion granted by the
c onstitution, I would c onc ur with lea rned Ac ting Chief Justic e Rabb ie tha t a
c ourt c annot have inherent jurisdic tion which wo uld entitle it to ac t
c ont ra ry to a n express p rovision o f an Ac t of Parliament. In other words the
exerc ise of inherent jurisd iction is justified where there is a lacuna in the law.
In this country there no lacunaon the issue und er rev iew : in fac t there is an
express provision, namely section 316(9)(a), which dictates that the refusal
dec ision b y three appella te judges sitting in chamb ers sha ll be final.
Article 140(1) of the constitution provides that all laws which were in force
imm ed ia tely before indep end enc e shall rem a in in forc e until rep ea led o r
amended by Act of Parliament or until they are declared unconstitutional
by a c ompetent court. Neither of these two c ontingenc ies has oc c urred in
respec t o f sec tion 316(9)(a) of the Crimina l Proc ed ure Ac t. Therefore it still
stands as pa rt of the law of indep end ent Nam ibia . In the event this c ourt
has no o p tion b ut to app ly it in the p resent c irc umstances.
Reverting to the fair hearing issue, I am by no means persuaded that Dr.
Strowitzki was denied a fa ir hea ring w hen he was jointly tried with Bc k
befo re O Linn, J. I am reinforc ed in this view having reg ard to the fac t tha t
the records pertaining to this case show that the matters which were
a lleg ed to ha ve c onstituted b ias on the p art of O Linn, J, we re exposed to
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be false in a subsequent trial conducted by Kotz, J. Bck was convicted
of having told fa lsehood s. In any event Bc k wa s not only c onvicte d by
OLinn, J, on all the 130 fraud counts, but he was also sent to prison for 11
yea rs, c ont ra ry to the c om pla int by Dr. Strowitzki tha t Bc k wa s p rom ised
by OLinn, J, tha t he wo uld no t be sent to p rison. In my view therefo re any
mo tion of bias on OLinn, J s part wa s no more than fa nc iful ra ther than
one b orne in rea sona b lene ss.
In the final ana lysis, I am o f the firm view tha t muc h as I com mend Mr. Ge ier
for his industry, resourcefulness and thoroug h resea rc h w hich ena b led him
to a rgue his c ase w ith grea t verve, Dr. Strowitzki wa s not p rop erly be fore
this c ourt in these p roc eed ings. I must stress tha t he c ame by way of
petition addressed to the Chief Justice after the purported dismissal of his
app lica tions c onsidered by Silungwe , J. The Chief Justice then instructed
the Reg istrar to refer the m atte r to us via the Reg istrars let ter quoted a t the
very beg inning of this judg me nt. I reiterate tha t the first of the two
questions posed in the letter was seeking our answer to the question
whether this court had jurisdiction to consider a further application for
lea ve to a pp ea l and / or pe tition to g rant lea ve to a pp ea l after refusal of an
application by the High Court and dismissal of the petition to the Chief
Justic e even if the new a pp lica tion a nd p etition a re launc hed in respe c t of
new o r purported new evidenc e.
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I have exhaustively, I believe, pondered over this question and the
overwhelming conclusion I have arrived at is that this court does not, in the
c irc umsta nc es of this c ase, have jurisd iction to ente rta in the m atte r. In the
event , the sec ond question posed by the let ter is irreleva nt. In pa ssing ,
however, I would, onc e a ga in, rem ind Dr. Strow itzki tha t if he still feels
strongly that he has been paid short shrift in his search for justice, he may
avail himself of the provisions of section 327 of the Criminal Procedure Act
the effec t o f which is to seek the exercise o f the p residential prerog a tive o f
mercy in his favour.
As for the present case it is struck off the role on the ground that this court
lac ks jurisd ic tion to enterta in it. I orde r ac cording ly.
________________________
CHOMBA, A.J.A.
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I agree
________________________
MTAMBANENGWE, A.C.J.
I agree
________________________TEEK, A.J.A.
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COUNSEL FOR THE APPLICANT : ADVOCATE H. GEIER
(AMICUS CURIAE)
COUNSEL FOR THE STATE : ADVOCATE D.F. SMALL
(PROSECUTOR-GENERALS OFFICE)