myburgh v the state

8/8/2019 Myburgh v The State

1/72

CASE NO.: SA 21/2001

IN THE SUPREME COURT OF NAMIBIA

In the ma tter be tween:

PIETER JOHAN MYBURGH APPELLANT

AND

THE STATE RESPONDENT

CORAM: Strydom , C.J.; OLinn, A.J.A. etChomba A.J.A.

HEARD ON: 19 June 2002

DELIVERED ON: 14/ 10/ 2002

APPEAL JUDGMENT

OLINN, A.J.A.:

SECTION A:

INTRODUCTORY REMARKS:

The a ppellant appea ls, with leave of this Court against a finding o f the Court a

quoaga inst the rejec tion of his ap p lica tion for a p ermanent sta y of prosec ution

and ag ainst the sentenc e impo sed on 2 c ounts of fraud .


2/72

2

The a ppellant was represented before us by Mr. Du Toit, S.C., assisted by Mr.

Grob ler. The respondent w as rep resented by Mr. Small, a rep resenta tive of the

Prosecutor-General.

Counsel on both sides provided this Court with detailed and well-researched

heads of argument as well as the viva voc earguments which were extremely

helpful.

The b ac kground to this appea l is as follow s:

1. On 30 Novem ber 2000 the Appellant wa s found guilty of

three counts of fraud , the Sta te ha ving w ithd rawn four othe r

c ounts of fraud on w hic h the Ap pe llant originally ap pe ared

before the Honourable Mr. Justice Mainga from 2 August

1999 in the High Co urt of Nam ibia.

2. On 14 December 2000 the Appellant was sentenced asfollows:

2.1 Co unt 5 (Ga giano ): Three yea rs imprisonme nt of

which two yea rs we re suspe nded ;

2.2 Co unt 6 (Kheimseb ): Four yea rs imp risonment;


3/72

3

2.3 Co unt 7 (Seibeb): Four yea rs imp risonment.

The Ap pe llant therefore rec eived a n effec tive period of nine

years imprisonment in respect of the conviction of the three

counts of fraud.

3. On 22 Ma rc h 2001 the Appellant s app lic at ion in the Court aquo for lea ve to appea l aga inst sentenc e, was d ismissed .

4. The Ap pellant petitioned the Honourab le Chief Justice andlea ve wa s grante d as follow s:

4.1 Aga inst sentenc e on counts 6 and 7;

4.2 Aga inst the refusa l of the Trial Court to grantAppellants application for the stay of the criminal

proceedings on the basis of a lack of urgency and

ag ainst the ac c ompa nying c ost orde r.

5. Leave against the convictions was not granted, nor waslea ve to a pp ea l ag ainst the sentenc e on c ount 5.


4/72

4

The b ac kground to the a pp ellant s ap plicat ion for the stay o f the c riminal

proceedings:

1. On 2 August 1999, before the tria l on the merits c om menc ed ,

ap plication wa s ma de for a p erma nent stay of the c riminal proc eed ings

aga inst the Appellant, on an urge nt basis.

2. The Tria l Court refused the app lic a tion for the p ermanent stay of thecriminal proceedings and gave as its only reason that the Appellant

failed to show tha t the mat ter wa s urge nt; it was ordered tha t the

c riminal trial proc eed . No formal judg ment was hand ed do wn.

3. On 14 August 2000 an application for leave to appeal against the judgment of Mr. Justice Mainga in refusing the application for the

permanent stay wa s filed , but was turned dow n on 14 Dec ember 2000.

4. The a pp lic ation for a pe rma nent stay of the c riminal proc eed ings wa sbrought on the following main grounds, as set out in the appellants

head s of argument on ap pea l:

1. The com pla inant (Com merc ia l Bank) la id c riminal c harge s

aga inst the Ap pellant on 13 July 1996;


5/72

5

2. Detailed negotiations between representatives of thecomplainant and the Appellant took place and continued

in an attempt to resolve the differences and the disputes in

existence.

3. During the d isc ussions and neg otiat ions the Appellant m adedetailed and extensive disclosure of facts known to him as

we ll as his defenc e to the a lleg a tions of fraud .

4. The Appellant was not warned of his right to rem a in silentand was unaware of the fact that the complainant

intended making use of the information gained during the

discussions and negotiations in subsequent criminal

proceedings.

5. The Ap pe llant furthermore d isc ussed the a lleg a tions ma deagainst him with the police officer in charge of the

investiga tion, Inspec to r Oelofse, w ithout being w arned of his

right to rem a in silent .

6. It was only on 26 July 1996 that the Appellant was arrestedwithout warning.


6/72

6

7. Also on 26 July 1996 the complainant brought anapp lica tion for the seq uestra tion of the Appellant. In

support of the application for sequestration the complainant

filed the affidavits of one Willie Dames, containing a series of

a lleg a tions which appellant desc ribed as untrue. The

Appellant laid a c harge of p erjury aga inst Willie Dames.

8. The Appellant a lso laid c harge s of pe rjury a ga inst certainofficials of the complainant for reasons set out fully in the

App ellant s founding affida vit to the a pp lication.

9. As a result of the charges brought against Dames and theofficials of the complainant, the Appellant discussed in

detail the merits of the allegations of fraud brought against

him by the complainant with officials of the Office of the

Prosec uto r-Ge neral. These offic ials inc luded Dr. N. Horn and

Ad voc a te D.F. Sma ll. Ad voc a te D.F. Sma ll subseq uently

ap pe ared for the Sta te in the ma tter aga inst the Ap pe llant,

and at no stage was the Appellant informed that the

information disclosed by him would be used or could be

used in the subseq uent c riminal tria l of the Appe llant.

10. In the light of the abovementioned, the Appellant claimedbefo re the Trial Co urt tha t he would b e seriously p rejud iced


7/72

7

in his defence and that the trial against him should not

p roc eed , sinc e he w ill not b e a b le to enjoy a fa ir tria l.

11. The Ap pellant a lso refe rred to c erta in irreg ularities healleged was committed by the complainant, in support of

his application for a permanent stay of criminal

proceedings.

12. Furthermore, and importantly, the Appellant also averredthat he would be severely prejudiced be c ause o f the period

of four years that lapsed before he was formally

prosecuted.

The main ground on whic h lea ve to ap pe al ag ainst the verdict of the Court a

quo in regard to the application for a permanent stay of prosecution was

granted, was that it appeared that the learned judge a quo rejected the

application on the sole ground that it was not urgent and without going into

the merits of the a pp lic a tion at a ll.

SECTION B:

THE INTERPRETATION OF ART. 12(1)(a ) AND (b ) OF THE NAMIBIAN CONSTITUTION

AS A BASIS FOR AN APPLICATION FOR A PERMANENT STAY OF PROSECUTION


8/72

8

The appellant in th is c ase relies p rima rily on sub -article 12(1)(b) read with

12(1)(a) of the Namibian Constitution as the basis for his application in the

Court a quofor a p ermanent sta y of prosec ution.

In another appeal presently before this Court, namely Margaret Malama-Kean

v The Magistrate fo r the Distric t o f Oshakat i NO and the Prosec uto r-Genera l NO,

the accused similarly relies on the provisions of Art. 12(1)(a) and (b) for her

appeal .

Although the two appellants were represented by different attorneys and

advoc a tes, this Court had the b ene fit of hearing c ounsel in bo th c ases.

At the outset it is best to set o ut the contents of the whole of Art. 12. It reads:

12 Fa ir Trial

(1) (a) In the dete rmination of their c ivil rights and ob ligat ionsor

any criminal chares against them, all persons shall beentitled to a fair and public hearing by anindependent, impartial and competent Court orTribuna l esta b lished by law: prov ided tha t suc h Courtor Tribunal ma y exclude the p ress and / or the p ublic

from all or any part of the trial for reasons or morals,the pub lic order or na tiona l sec urity, as is nec essary ina dem oc ratic soc iety.

(b) A tria l refe rred to in sub -article (a) hereo f sha ll ta keplace within a reasonable time, failing which theac c used sha ll be relea sed .

(c ) Judg me nts in c riminal c ases sha ll be g iven in pub lic,except where the interest of juvenile persons ormo ra ls otherwise req uire.


9/72

9

(d) All persons c harge d with an offenc e sha ll be

presumed innocent until proven guilty according tolaw, after having had the opportunity of calling

witnesses and cross-examining those called againstthem.

(e) All persons sha ll be a fforded ad eq uate time andfacilities for the preparation and presentation of theirdefence, before the commencement of and duringtheir trial, and shall be entitled to be defended by alegal p rac titioner of the ir choice .

(f) No pe rsons sha ll be com pelled to give testimonyagainst themselves or their spouses, who shall include

partners in a marriage by customary law, and noCourt shall admit in evidence against such personstestimony which has been obtained from suchpersons in violat ion of a rtic le 8(2)(b) hereo f.

(2) No persons sha ll be liab le to be tried , c onvicted or punishedagain for any criminal offence for which they have alreadybee n co nvicte d or ac quitted ac co rding to law : providedthat nothing in this sub-article shall be construed aschanging the provisions of the common law defences of previous ac quittal a nd previous c onvic tion .

(3) No persons sha ll be tried or c onvicted for any c riminaloffenc e or on ac c ount of a ny ac t or om ission which d id no tconstitute a criminal offence at the time when it wascommitted, nor shall a penalty be imposed exceeding thatwhich was applicable at the time when the offence wascommitted.

It is apparent from the structure of Art. 12 that whereas subparagraph (a) of

sub-article (1) deals with certain basic requirements of a fair trial relating to the

determination of civil rights and obligations of persons as well as criminal

charges against them, subparagraphs (b) to (f) of sub-article (1) as well as sub-

articles (2) and (3) deal exclusively with certain specific requirements for fair

trials in c riminal cases.


10/72

10

Furthermore no remed ies a re spec ified in the event o f a b rea c h of a ny of these

req uirem ents, exc ep t in the c ase o f subp aragrap h (b ) of a rticle 12(1) whe rein it

is made mandatory for the trial as described in subparagraph (a), to take

p lac e within a reasona b le time, failing whic h the ac c used shall be released .

The p rinciple and req uirement that a t rial must ta ke plac e w ithin a rea sona b le

time is esta b lished in the Co nstitutions of the USA a nd Ca nada in provisions

providing for a speedy trial and in the criminal law systems of all democratic

c ountries. It is c learly a p rincip le and requirem ent o f internat iona l law. So e.g.

the International Covenant of Political and Human Rights provides in Art. 14.3(c)

as a minimum guarantee that Everyone charged with a criminal offence

shall have the right to be tried without undue delay. This Covena nt has

bec ome pa rt of Nam ibian law .1

It is important to emphasize that the principle and requirement of a speedy

tria l or t rial within a reasona b le time has be en ac c ep ted in South Afric an

and Namibian c ommo n law and c riminal law and proc edure long before the

entering into force of the Namibian Independence Constitution on 21 March

1990 and the South Afric an Inte rim Constitution o f 1994 and final Constitution o f

1996. The signific anc e of this fac t is tha t the c ommo n law ha s been developed

by statute and court precedents into a body of law not only recognizing the

right of an accused to a trial within a reasonable time as one of the many

1 The Gove rnme nt of the Rep ublic o f Namibia and O thers v G.K. Mwilima a nd O thers,unrepo rted , NmS, delivered on 7/ 6/2002


11/72

11

req uirem ents of a fa ir tria l, but ha s p rov ided rem ed ies for ensuring a fa ir tria l and

for even quashing a conviction and sentence where the accepted

req uirem ents for a fair tria l were not me t.

Several provisions of the Crimina l Proced ure Ac t were ava ilab le to ensure a fa ir

tria l. So e .g. failure to p rovide suffic ient pa rticulars to a c harge or a c harge not

disc losing a n offenc e m ay lead to a qua shing o f the c harge b efore trial.2 This

how eve r, does not am ount to a perma nent sta y of the prosec ution. The

prerogative of the Attorney General to prosecute was also not untouchable.

Should he unrea sona b ly and unduly delay his dec ision w hethe r or not to

prosecute, it is conceivable that both a victim and/or a private prosecutor or

even an ac c used m ay ap ply to Court to obta in a ma nda mus to de c ide , and if

he has decided, then to proceed with the prosecution, within a reasonable

time.3

It was even possible and still is, to sue the Attorney-General (after Namibian

independence the Prosecutor-General) for malicious prosecution, should the

fac ts show tha t he/ she w as ac ting malic iously.

Then sec tion 317 of the Crimina l Proc ed ure Ac t 51 of 1977 and its p red ec essor

provides for a spec ia l entry for the formula tion of any a lleg ed irreg ula rity e ither

during or after the trial, which c ould lea d to the q uashing of a ny c onvic tion o r

sentence o n ap pea l.

2 Sec tion 85 and 87 of the Crimina l Proc ed ure Ac t 51 of 19773 See Wronsky v Attorney-General, 1971(3) SA 292


12/72

12

As wa s sta ted in Sta te v Xaba 4, the basic concept underlying section 317(1) is

that an ac c used be fairly tried .

But even though convictions and sentences were often quashed on appeal

subsequent to conviction and sentence, because of irregularities committed

during the trial and even before the trial if related to the trial, a further

prosecution and retrial was not barred if the accused was not in jeopardy of

being legally convicted, such as e.g. where the Court did not have the

necessary jurisdiction to hear the matter.

A Court, in the exercise of its discretion, could also refuse a further

postp oneme nt, or put the p rosec ution on te rms, thus forcing the p rosec ution to

proc eed or alternatively to withdraw the c ase a ga inst the a c cused . Sec tion 6

(six) however expressly provides that such withdrawal does not amount to an

ac quittal. Then of course an acc used c ould b e relea sed o n his own

recognisance or warning or on bail by the Court or in the case of certain

spec ified less serious offe nc es, also b y an o ffice r a t a p olic e sta tion. Most of

these methods were available and are still available to prevent or minimise

non-trial related p rejudice .

Authorita tive dec isions of the South Afric an a nd Namib ian Co urts in reg ard to

irregularities before trial which led to convictions and sentences being set aside

4 1983(3) SA 717 AD at 728


13/72

13

or an accused being acquitted at the end of the trial, have recently been

refe rred to in the dec ision o f this Court in the c ase o f Monday v The Sta te.5

Although many principles relating to a fair trial were thus entrenched in the

South Afric an and Namibian Law , the remed y of a pe rma nent stay o f the

prosecution applied for and granted at the pre-trial stage, was not resorted to

as far as I am aw are in the period prior to Namibian indep endenc e. Be tha t as

it may, this fac t serves to unde rline that a p re-tria l rem ed y of a permanent stay

of prosecution, is an extraordinary remedy, certainly to be reserved for

exceptional circumstances.

Once the aforesaid principles and requirements of a fair trial became

embo died in a rtic le 12, they bec am e entrenc hed in the Supreme Law of

Namibia as part of Chapter 3 of the Namibian Constitution and as such no

longer at the mercy of the Legislature or the Executive, even irrespective of

sec urity considerations and the d ec la ra tion of a Sta te o f Emerge ncy, a Sta te o f

Nationa l Defenc e and Ma rtial Law. Moreover, the provisions for the

fundamental rights and freedoms contained in Chapter 3 cannot be repealed

or am end ed by Parliament, in so fa r as such repea l or amendment d iminishes or

de trac ts from the funda menta l rights and freed oms as c onta ined and de fined

in Cha pter 3.6

5 NmS, 21/02/ 2002, not reported.See a lso: Mushimb a v The Sta te , 1977(2) SA 829(A); S v Xab a, 1983(3) SA 717 AD a t 728;S v Burge r and v/ d Merwe , High Court, SWA, 11/5/89, not reported , S v Alexand er &Ors(1) 1965(2) SA 796 (AD) a t 809 C D; S v Ebrahim, 1991(2) SA 553 AD.6 Art 24, 26, 131


14/72

14

The o nly limita tion up on the a foresa id Fund ame nta l Rights and Free dom s is tha t

provided for in Art. 22, which deals with limitations contemplated by Chapter 3

itself, such as those apparent from the definition of the fundamental rights

them selves or provided for in Art. 21(2) in rega rd to funda menta l freedom s.

The Na mibian Constitution is not only unique in the w orld in reg ard to this

feature of rigidity and unamendability of the provisions for fundamental rights

and freedoms, but in its prescription of a mandatory sanction in par (1)(b) of

Art. 12, should the trial as defined in 12(1)(a), not take place within a

reasonable time.

It is this mandatory remedy expressly prescribed, which distinguishes this

p rov ision from speedy tria l p rov isions in the USA a nd in the rest o f the wo rld .

1. THE FIRST LEG OF THE ENQUIRY

Before dealing with the more difficult and controversial issue of the

interpreta tion of the w ords sha ll be released , it is ap posite to briefly dea l with

the interpretation of the words in which the specific right under 12(1)(b) is

formulated , nam ely:

A trial referred to in sub-a rticle (a ) hereof sha ll take p lac e within area sona b le time.

Although not specifically raised or argued before us, I will assume for the

purposes of this decision that when the issue of whether or not art. 12(1)(b) has


15/72

15

been complied with must be decided, time begins to run from the time a

person ha s been a rrested on a pa rticular cha rge or when no t a rrested , from the

time that he is officially informed by the police or prosecutor of the charge

against him and some official action is taken against him in regard to the

c harge , suc h as a summons served upo n him to a ppe ar in Court on a spec ified

charge or given a warning to appear in Court on a specified date on a

spe c ified charge.7

I assume also for the purposes hereof that although not spelled out in the

Namibian Constitution, the right formulated in art. 12(1)(b) includes by

imp lication tha t the trial be gins and conc ludes without unrea sonable d elay.

The South Africa n Co nstitutiona l Court p ointed out tha t sep ara te a nd d istinct

requirements of the right and that of the remedy, should not be overlooked,

even though the ana lysis should not b e performe d in watertight c om pa rtments.

The Constitutiona l Court sa id:

The first leg of the enq uiry is whether the right und er s. 25(3)(a ) ha s

been infringed . If not, tha t is the end of the ma tte r. If the right isfound to have been infringed then the enquiry turns to potentialrem ed ies unde r 7(4)(a ). A finding tha t the conseq uential reliefsought is inap propriate must not be c onfused with the a ntec ed entfinding as to infringement. 8

7 Comp are the South African Interim C onstitution of 1994 where a rt. 25(3)(a) p rov ide thetime to run from having been c harged . Art. 35(3)(d) of the final Constitution o f 1996does not spec ify and merely desc ribes the righ t as: To ha ve their trial beg in andc onc lude without unreasonab le d elay.8 Wild & A v Hoffert NO & Others, 1998(2) SACR 1 at 13 b -c


16/72

16

In my respec tful view , this approa c h should b e a pp lied mutatis mutandis, to the

ana lysis to be unde rta ken in Nam ib ia .

The enquiry is a d iffic ult one. This was und erlined in the Canad ian dec ision of R

v Mo rin in reg ard to the w ording o f the speedy tria l req uirem ent o f a fair tria l:

Though be guiling in its simp licity, the language ha s p resented the

Court with one of the most difficult challenges in search of aninterpretation that respects the right of the individual in an era inwhich the adm inistration of justice is fac ed with d windling resourcesand a b urgeo ning c ase load

Evidenc e p resente d to us indica tes tha t betw een Oc tob er 22, 1990and Sep tem ber 5, 1991, ove r 47 000 c harge s have b een sta yed orwithdraw n in Onta rio a lone . The reac tion to this has been mixed

On the other hand, many other deprecate what in their opinionamo unts to a n am nesty for c riminals, som e o f whom w ere charge d

with very serious c rime s. They assert tha t ac c used p ersons a redisc harged when they have suffered no p rejudice to the c omp leted isma y of vic tims who have suffered , in som e c ases, trag ic losses.9

In Namibia, the remedy provided - namely the accused shall be released,

complicates not only the interpretation of this provision relating to a remedy,

but c om plic a tes the interpretat ion o f the right being the right to a tria l within a

reasonable time.

The inte rp reta tion o f the w ords esta b lishing the right a s we ll as the rem ed y

impacts on each other and cannot be done in watertight separate

9 R v Morin, 8 CRR (2nd ) 193 (SCC ) a t p . 196/7


17/72

17

c om partments, even less so tha n the enquiry ab out w hethe r there wa s in fac t a

brea c h of the right a nd the enquiry as to the a pplic ab le remed y. To illustrate:

Whether or not the w ords sha ll be released must b e interpreted as p roviding

exclusively for a permanent stay of p rosec ution or at least a pe rma nent sta y as

one of the m and atory reme dies in the d isc retion of the C ourt on the one hand,

or merely for a release from detention or a release from the pending trial, on

the other, is influenced by the interpretation of the words within a reasonable

time and vice versa.

This is so b ec ause a n order for a p erma nent sta y of p rosec ution is an extreme,

rad ical and exc ep tiona l reme dy. If ac c ording to the interpretation of the

Court, the remedy for the breach is a permanent stay of prosecution, as the

only remed y or eve n as one of seve ra l ma ndatory remed ies, then the Court will

be inclined in its interpretation of the provision establishing the right and its

breach, to impose a greater and more onerous burden on the applicant to

establish a breach than would be the case if the words shall be released are

interpreted as merely ma ndating a relea se from c ustod y.

If however, the interpreta tion o f the right and the req uirem ents for esta b lishing a

breach are relatively onerous and difficult to establish, then a Court will be

more inclined to interpret the remedy as being a permanent stay of

p rosec ution, or at least a permanent stay as one o f the mandatory rem ed ies.


18/72

18

The conseq uenc e is tha t w hen interpreting the p rovision for the right and the

reme dy the two legs so to spe ak, must ea c h b e c onside red in c onjunction

with the other.

In Sta te v Strowitzki and Another, the Court a dop ted the wo rds of the lea rned

judges in Baker v Wingo where it was sa id:

The app roa c h we a c c ep t is a b alanc ing test, in which the

c onduc t of both the prosec ution and the d efendant a re weighed.A ba lanc ing test necessarily c om pels c ourts to app roa c h speedytrial c ases on an ad hoc basis. We can do little more than identifysome of the factors which courts should assess in determiningwhether a particular defendant has been deprived of his right.Though som e m ight express them in different w ays, we ident ify foursuch fac tors: Leng th of de lay, the rea son for the delay, thedefendants assertion of his right, and prejudice to the defendant.The leng th o f the delay is to some e xtent the t rigg ering m ec hanism.Until there is some delay which is presumptively prejudicial, there isno necessity for enquiry into the other factors that go into the

ba lanc e. Nevertheless, bec ause of the imp ression of the right tospeedy tria l, the leng th o f delay tha t w ill provoke suc h a n inquiry isnecessarily dependent upon the peculiar circumstances of thec ase. To take but one examp le, the de lay that c an be to lerate dfor an ordinary street crime is considerably less than for a serious,c omplex c onspirac y cha rge . Closely related to length of de lay isthe rea son the Government assigns to justify the d elay. Here, too ,d ifferent we ights should be assigned to different rea sons. Adeliberate attempt to delay the trial in order to hamper thede fence should be weighed hea vily ag ainst the Government. Amore neutral reason such as negligence or overcrowded courts

should be weighed less heavily but nevertheless should beconsidered since the ultimate responsibility for such circumstancesmust rest with the Government rather than the defendant Wehave already discussed the third factor, the defendantsresponsibility to assert his right. Whether and how a d efe ndantasserts his right is closely related to the other factors we havementioned We emphasise that failure to assert the right will makeif difficult for a defendant to prove that he was denied a speedytria l. A fourth fac tor is p rejudice to the de fend ant. Prejudice , ofc ourse, should b e a ssessed in the light o f the inte rests of d efendantswhich the speedy tria l wa s designe d to p rote c t. This Court has


19/72

19

identified three suc h interests: (i) to prevent oppressive p re-tria linc arc eration; (ii) to minimise anxiety and c onc ern of theac c used ; and (iii) to limit the po ssib ility that the de fenc e will beimpaired . Of the se, the most serious is the last, bec ause the

inability of a defendant adequately to prepare his case skews thefa irness of the entire system. If witne sses d ie or d isappea r during adelay, the p rejud ice is ob vious. There is a lso p rejud ice if de fenc ewitnesses are unable to recall accurately events of the distantpast.

The Court then a lso spec ific a lly agree d with the fo llow ing rema rks in Baker v

Wingo dea ling w ith req uirem ents of a speedy tria l :

Delay is not a unc ommon defenc e tac tic : If the witnessessupport the prosecution, its case will be weakened, sometimeseriously so. And it is the p rosec ution which c arries the burden ofp roo f. Thus, unlike the right to c ounsel or the right to be free fromcompelled self-incrimination, deprivation of the right to a speedytrial does not per se prejudice the accuseds ability to defendhimself.

Finally, and perhaps most importantly, the right to speedy trial is amo re vague conc ep t tha n other proc ed ura l rights. It is, forexam ple, imp ossib le to dete rmine w ith p rec ision w hen the right ha sbeen denied . We ca nnot definitely say how long is too long in asystem where justice is supposed to b e swift but deliberate. As aconsequence there is no fixed point in the criminal process whenthe State c an c all upon the d efendant to ma ke the c hoic e ofeither exerc ising or wa iving the right to a spee dy trial. 10

The fac tors to b e c onsidered in dec iding when long is too long we re summ ed

up in the Canadian case of R v Morin and accepted as useful guidelines in

Strowitzki. They a re:

1. Length of de lay;

10 407 US 514, 33 L ED 2d 101, 92 S Ct 2182 a t 116 - 118


20/72

20

2. wa iver of time p eriod s;3. the rea sons for the d elay

(a ) inherent time req uirements of the c ase;(b ) ac tions by the ac c used ;(c ) ac tions of the Crown;(d ) limits on institut iona l resource s;(e ) othe r rea sons for the d elay; and

4. prejudic e to the a c c used.11

There is little o r no d isc ernib le differenc e b etween Strow itzki and the Nam ibian

cases that followed in regard to the interpretation of the terms within a

rea sonable time .

In Heidenreich it wa s sa id:

Reasonable is of course a relative term and what constitutes areasonable time for the purposes of Art. 12(1)(b) must bede termined a c c ording to the fac ts of eac h individua l c ase. TheCourts must endeavour to balance the fundamental right of anaccused to be tried within a reasonable time against the publicinterest in the attainment of justice in the context of the prevailingec onom ic , soc ial and c ultural c ond itions to b e found in Namibia

What is req uired a t the end of the d ay is a va lue judgme nt. 12

In the following Namibian decision, that of Van As & Another v Prosecutor-

General, Namibia,13 no effort was made to interpret the words within a

11 IBID, p. 20312 S v Heide nreic h, 1996(2) SACR 171 (Nm) a t 178 d13 2002(1) SACR 70


21/72

21

reasonable time but emphasis was placed on the meaning of the words

shall be relea sed .

Again in the Malama-Kean decision of the High Court, the approach in

Heidenreich in this regard was merely reaffirmed, but the interpretation of the

words shall be relea sed , concentrate d on.

The d ec isions of the Constitutiona l Co urt in South Afric a , proc eeded in

substance on the same lines as those already discussed to establish what was

meant b y the words within a reasona ble time .14

2. THE SECOND LEG OF THE ENQUIRY

I c an now turn to the sec ond leg of the enquiry, be ing the interpretation of the

wo rds sha ll be released .

Those who d rew up the South Afric an Interim Constitution in 1994 and its final

Constitution in 1996, which follow ed upo n the Namibian Constitution a nd which

had the Namibian Constitution as a precedent, clearly declined to follow the

Namibian preced ent in regard to the p resc ription of a reme dy.

In South Africa the writers of b oth the 1994 Inte rim Constitution and the final

Constitution in 1996, prescribed a general remedy for the breach of any

fundamental right and left it to the Court to exercise its discretion within the

14 Sanderson v Attorney Ge nera l, Easte rn Ca pe, 1998(2) SA 38 CCWild & An v Hoffert NO & Others, 1998(2) SACR 1


22/72

22

wide parame ters of the Co nstitution. Sec tion 7(4)(a ) of the Inte rim Co nstitution

merely provided that the Court shall apply an appropriate remedy or

combination of remedies whereas Art. 38 of the Final Constitution provided

that the Co urt ma y grant a pp rop riate relief, inc luding a de c laration of rights .

Mr. Sma ll, for the Sta te, was the only counsel who trac ed a Constitution whe re

the words shall be released were used as part of the specific sanction

prescribed for instances where a person arrested or detained, is not tried

within a reasonab le time . This is Art. 15(3) of the Constitution of Jam aica ,

which rea ds as follow s:

if any person a rrested o r deta ined is not tried within areasonable time, then, without prejudice to any furtherproceedings which may be brought against him, shall be releasedeither unconditionally or upon reasonable conditions, including in

particular such conditions as are reasonably necessary to ensurethat he appears at a later stage for trial or for proceedingsprelimina ry to tria l.

The right protec ted is tha t of a person a rrested or deta ined and the reme dy is a

release from such arrest or detention, not amounting to a permanent stay of

prosecution.

A general remedy for the breach of any of the Namibian fundamental rights

and freed oms and w hic h correspond s to the a foresa id South Afric an rem ed y

for such a breach, is contained in Art. 25 of the Namibian Constitution, sub-

a rticle (3) and (4) of w hic h p rovides:


23/72

23

(3) Sub jec t to the prov isions of this Co nstitution, the Courtreferred to in sub-article (2) hereof shall have the power to

make all such orders as shall be necessary and appropriateto secure such applicants the enjoyment of the rights andfreedoms conferred on them under the provisions of theConstitution, should the Court come to the conclusion thatsuch rights or freedoms have been unlawfully denied orviolated, or that grounds exist for the protection of suchrights or freedom s by inte rd ict .

(4) The pow er of the Court sha ll inc lude the power to awa rdmoneta ry compe nsat ion in respe c t of a ny da ma ge sufferedby the aggrieved persons in consequence of such denial or

violation of their fundamental rights and freedoms, where itconsiders such an award to be appropriate in thec irc umsta nces of pa rticular cases(My empha sis ad de d.)

The a foresa id sub-artic les thus give the c ompete nt Co urt the pow er to make

any order nec essary and a pp rop riate , whic h inc lude interdict a nd d am ag es. A

permanent stay of prosecution is consequently clearly included as one of a

range of possib le rem ed ies in the d isc retion of the Court. One w ould have

thought that the founding fathers would have been satisfied with these wide

partly discretionary powers, making it unnecessary and even inappropriate to

ad d the spec ific and ma nda tory remed y for a breac h of the right of a ac c used

to a t rial within a reasonable time. The words sha ll be relea sed , me rely

c om plica tes and c onfuses the issue. What wa s intend ed b y the found ing

fa the rs is d iffic ult to ima gine. Unfortuna te ly the p roc eed ings of the sessions of

the G ene ra l Assembly of the Constituent Assembly do es not reflec t any de bate

by the rep resentatives or the ir lega l ad visers on the issue a nd the minutes of the

Comm ittee s of the Constituent Assembly are no t freely and rea d ily ava ilab le to


24/72

24

fac ilita te a stud y by c ounsel or the C ourt of these minutes in o rde r to estab lish o r

a t lea st to a ttemp t to esta b lish, wha t the found ing fa thers had in mind . But from

what has been available to the Court, it seems that issues such as these were

left to the d isc retion o f the availab le leg a l ad visers.

It see ms the refo re tha t a t p resent , there is little or no assista nc e which this Court

c an de rive from a referenc e to and stud y of the m inutes of the said Constituent

Assem bly and its Co mm itte es.15

In view of the fac t tha t sub-a rticle (3) of a rticle 25 of the C onstitution ma kes the

sa id w ide d isc ret ion of the Co urt sub jec t to the p rov isions of th is Co nstitution ,

those p owers wo uld be sub jec t to a rticle 12(1)(b) which ma kes it ma ndatory for

the Court to order the release of the accused, should the trial not take place

within a rea sona b le t ime

If the intention was to allow any one or more of the remedies release from

custody, release from onerous conditions of bail, a stay of prosecution,

whether temporary or permanent, then those remedies would have been

adequately covered by the powers provided under sub-articles (2) and (3) of

articles 25 and the mandatory provision that the accused shall be released if

15 The relevanc e a nd usefulness of such rec ords a re a lso a cknowledg ed in the USSup reme C ourt case of Dickey v Florida , 398 US 30 (1970) 398 US 30 where it was sa id: Rec ords are scarce . There is eg no a ccount o f the Sena te Deb ate, and the Housedeliberations give little indica tion of the Rep resenta tives intent . See a lso Makwanyane& Another, the quotation from the judgment written by Chaskalsen, P, infra, whenrefe rring to a judgment w ritten by Kent ridge in S v Zuma & O thers. Ex Parte Atto rney-Gene ral in re the Constitutiona l relationship be twe en the Attorney-Gene ral a nd theProsec utor-General, 1995(8) BCLR 1070 (NmS) a t 1080 D I.


25/72

25

the trial does not take place within a reasonable time as provided in part

12(1)(b) w ould b e supe rfluous and without any purpo se.

It seems that the only way that Art. 25(2) and 25(3) could legally co-exist with

Art. 12(1)(b), is if it could be said that in Art. 12(1)(b), it was intended to provide

for a specific but limited breach of the requirements of a fair trial namely the

requirement that the trial shall be held within a reasonable time and that the

remedy for that particular breach shall be limited to the release, of the

accused.

It further follow s tha t if the b rea c h is a b rea c h othe r than the m ere failure o f the

tria l to ta ke plac e w ithin a rea sona b le time, then Art. 12(1)(b ) will not a pp ly. Art.

25(2), (3) and (4) will then apply and the remedy will be sought and given in

ac c orda nc e with Art. 25(2) rea d w ith Art. 25(3). Art. 25(2), 25(3) and 25(4) rea d

with a rticle 5, provides c om prehensive remed ies, in the d isc retion o f the Court,

which will include an appropriate remedy for failure of a trial to take place

within a reasona b le time.

The p rob lem which has c rysta lized in this case, is a Nam ibian p rob lem in the first

place, emanating from a peculiar and unique provision of the Namibian

Co nstitution. Dec isions in the South Afric an Co urts and the courts of the USA,

Ca nad a , Grea t Britain and other demo crac ies, are c onseq uently not direc tly in

point and no t very helpful in reg ard to the p rovision: sha ll be released . The

Namib ian High Court has howeve r, attemp ted to c om e to grips with this d iffic ult


26/72

26

and important problem on various occasions but the solutions found were not

uniform. It ha s now bec ome necessa ry for this Court to strive to p rovide an

authorita tive and binding final dec ision.

In the first case where an attempt was made to address the difficult problem of

interpreting the words shall be released, the accused had applied before

plea for an order quashing and permanently staying the criminal

p roc eed ings . The ap p lica tion was ba sed on the a lleg ed failure of the tria l to

be held within a reasonable time, combined with several other alleged

irregularities16. The Co urt interpreted the words in Art. 12(1)(b) which rea d :

A tria l refe rred to in sub-a rticle (a ) hereof sha ll take p lac e w ithin area sona b le t ime, failing which, the a c cused shall be relea sed .

The Court co mm ented a s follow s on the remed y provided by the wo rds shall

be relea sed :

A perma nent sta y amo unts to a d ismissa l with prejudice. Thisaccording to certain writers is only permissible where the ability ofthe a c c used to d efend himself or herself is grave ly infringed . See71 L Ed 2 at 990 whe re the fo llow ing c om ment a ppe ars:

Ac c ording to one c omm entator, Amsterda m. Spee dyCrimina l Tria l: Rights and Remed ies, 27 Sta nfo rd L Rev525 (February 1975), the proposition that the onlyremedy for the violation of the right to a speedy trial isd ismissa l with prejud ice is incred ible. The c om me nta torsugg ested tha t the Supreme Court, in the c ase o fStrunk v United Sta te s (1973) 412 US 434, 37 L Ed 2d 56,93 S Ct 2260, was merely stating that dismissal with

16 S v Strowitzki & A, 1995(1) BCLR 12 Nm at 35 - 36


27/72

27

prejud ice is an exclusive post t rial rem ed y, as the Strunkc ase c am e to court after c onviction. The authornoted that the lower federal courts in the past haveincluded dismissal without prejudice, the expediting of

the trial, and discharge from custody as remedies forthe rights violation, and note d tha t the English Habe asCorpus Act of 1979 provided that persons not timelytried should be disc ha rged from imp risonm ent . Thecommentator stated that the speedy trial clause isdesigned to p rotec t three d istinc t inte rests: (1) theundue incarceration of an accused prior to trial, (2)the prolongation of anxiety and other vicissitudesac c omp anying public ac c usation, and (3) thepossibility of the ability of the accused to defendhimself. Only where the third interest is violated in a

particular situation, according to the commentator,should d ismissa l with p rejud ice be the remed y.

The Namib ian constitution prov ides a spec ific rem ed y for fa ilure tobring to trial within a reasona b le time: nam ely:

The a c cused sha ll be relea sed .

This app ea rs to mea n relea sed from incarc eration . It ma y alsoinc lude release from one rous c ond itions of ba il. Prima fac ie, it d oesnot seem to include a pe rma nent q uashing o f stay o f p rosec ution.

See a lso a rticle 5 of the Namibian c onstitution whe re it p rovidesthat the Court shall protect the fundamental rights and freedomsin a ma nner herea fter presc ribe d .

I am not convinced as argued by Mr. Geier, that the provision inarticle 25(3) for the protection of a fundamental right or freedomby interdict overrides the specific provision in article 12(1)(b) that ifa trial does not take place within a reasonable time, the accusedshall be relea sed . The interdic t in the fo rm o f a m anda tory interdic tis then granted to ensure the release, not the permanent stay or

quashing o f a c rimina l c harge .

The words prima facie, it d oes not seem to include a pe rma nent q uashing o r

stay of prosecution indicate that the opinion was expressed as an obiter

opinion but was part and parcel of the interpretation of the whole of Art.

12(1)(b).


28/72

28

The app lic ation by the a c c used however, wa s rejecte d b ec ause the a c c used

had failed to prove the first leg of the Art. 12(1)(b), being that the trial did not

take plac e, or c annot take p lac e within a rea sonable time .

The follow ing c ase wa s Sta te v Heidenreich, a judgm ent written by Hannah, J, in

which Strydom, J.P., as he then w as, co nc urred .17

In the Heidenreich case, the presiding magistrate refused a postponement

req uested by the State and found tha t Art. 12(1)(b) had be en b rea c hed

bec ause the trial had no t taken plac e within a rea sona b le time. It is not q uite

c lea r from the judgm ent w hat were the prec ise w ords of the ma gistrate , but it

was stated in the High Court judgment that the magistrate had said that an

order should be made releasing him from his trial and such an order was

ma de . Thereafte r the ma gistrate had sec ond tho ughts about this order and

submitted the record for review expressing the opinion that she had no

jurisd ic tion to ma ke the order . The c ase was set d own for a rgum ent a nd it wa s

ag reed be tween c ounsel for the Sta te a nd the ac cused that three p oints were

to be a rgued b eing:

(1) Was the m agistrate c orrec t in holding tha t the tria l of the a c c usedhad not taken place within a reasonable time as required by

article 12(1)(b) of the Constitution?

17 1996(2) SACR 171 Nm


29/72

29

(2) If so, is the magistrates court a competent court in terms of Art.25(2) to take the necessary action to enforce or protect the right

of a n ac c used to a fair trial?

(3) Was it c omp etent for the ma gistrate to o rde r that the a cc used bereleased and w hat is the e ffec t of suc h an orde r?

The Court found :

(1) The m agistrate wa s wrong in finding tha t the tria l of the a c cusedhad not ta ken plac e within a reasona ble time.

(2) The ma gistra te had the nec essary jurisd ic tion to enfo rc e theaccuseds right to a fair trial, but the High Court was the only

c om pete nt c ourt to a c t in terms of Art. 25(2), 25(3) and 25(4).

(3) It was competent for the magistrate to make an order for therelease o f an a c c used .

The lea rned judg es, with refe renc e to the judgm ent in Strowitzki, co nc luded :

But when regard is had to the underlying purpose of Art. 12(1)(b) I am of the

view that a broader, more liberal, construction should be given to the word.

Once the main purpose of the sub-article is identified as being not only to


30/72

30

minimise the p ossibility of leng thy p re-tria l inca rcerat ion and to curtail restric tions

placed on an accused who is on bail but also to reduce the inconvenience,

social stigma and other pressures which he is likely to suffer and to advance the

prospects of a fair hearing, then it seems to me that released must mean

released from further prosec ution for the o ffenc e w ith whic h he is c harge d . It is

only by giving the term this wider meaning that the full purpose of the sub-

a rtic le is me t. Relea se from c ustody or from onerous c ond itions of ba il only

me ets pa rt of the purpose of the sub-a rticle . (My emp hasis added .)

As I understand it the learned judges did not find that released has the

meaning of released from further prosecution as one of its meanings, in

addition to be released from incarceration or onerous conditions of bail, but

that released must mea n released from further prosec ution a nd that that is

the m ea ning o f the word as c onta ined in artic le 12(1)(b) of the Constitution.

I am not c onvince d tha t this finding is justified by the so-ca lled ma in purpose

of the provision even though I have no problem with the formulation of the

ma in purpo se in the judg ment.

When dealing with the element of reasonableness in the phrase reasonable

time , the Court inter alia referred to the Ca nad ian d ec ision in R v Askov where

the learned Ca ry, J., inte r a lia sa id:

It can never be forgotten that the victims may be devastated byc riminal ac ts. They have a spec ia l interest and go od rea son to


31/72

31

expect that criminal trials take place within a reasonable time.From a wider point o f view , it is fa ir to say tha t a ll c rime d isturbs thec om munity and tha t serious c rime a la rms the com munity. Allmembers of the community are thus entitled to see that the justice

system works fa irly, effic iently and w ith reasona ble dispa tc h. Thevery reasonable concern and alarm of the community whichna tura lly a rises from ac ts of c rime c annot be assuage d until the tria lta kes p lac e. The tria l not only resolves the g uilt or inco nvenienc e ofthe individual, but acts as a reassurance to the community thatserious crimes are investigated and that those implicated arebrought to trial and d ea lt with ac c ording to law . 18

The Namibian High C ourt and the Supreme Court have in rec ent years p laced

much emphasis on the need to balance the rights and interests of accused

persons with those of the victims of crime and to consider also the public

interest in the ba lanc ing proc ess. In Namib ia a Judic ial Comm ission was eve n

appointed c a lled The Com mission of Inquiry into Leg islation fo r the More

Effec tive Comba ting of Crime . The Comm ission was ma nda ted spec ific a lly to

enquire into and ma ke rec omm endations regarding the b alanc ing o f the rights

of convicted and accused persons with those of victims and with the public

interest.

It must also be borne in mind that a permanent stay of prosecution would

gravely imp ac t on and even qua lify the p rerog ative of the Prosec utor-Gene ral

to p rosec ute, embod ied in Art. 88 of the Namib ian C onstitution a nd sec tion 2 of

the Criminal Procedure Act No. 51 of 197719. It will a lso simila rly a ffec t the

periods of prescription for the institution of crimes provided for in section 18 of

the Crimina l Proc ed ure Ac t. In terms of the lat te r p rov ision, the right to institute

18 (1991) 49 CRR 1 (Sup reme Co urt of Cana da) at 20.19 Ex Parte Attorney-Gene ra l, Namib ia: In re: The Constitut iona l Rela tionship b etwee nthe Attorney-Gene ral and the Prosec uto r-Genera l, 95(2) BCLR 1070 NmS.


32/72

32

a prosecution for crimes for which the death sentence could previously have

been imposed, shall not be barred by the lapse of time, whereas the

prosec ution fo r other crimes, lap se only a fte r the exp ira tion o f 20 years from

the time when the offence was committed, unless some other period is

expressly p rovided by law . The conc ern tha t the permanent stay of the

proceedings based on the mere passage of time would be the equivalent of

imposing a judicially created limitation period for a criminal offence was also

expressed in a dec ision o f the Supreme Court of Canad a.20

One c an therefore ima gine why the sanc tion o r remed y of p erma nent relea se

from prosecution, or permanent stay of prosecution, being a sanction or

rem ed y which may ad versely a ffec t the interests of the vic tims of c rime and the

public interest, as well as that of the accused, should not be imposed in other

than the most exce p tional and extrem e ca ses of unrea sona b le delay. No

wonder then that in those Namibian cases where a permanent stay of

p rosec ution has been ap p lied for, not o ne ha s been suc c essful so fa r. In S v

Uahanga & Others,21 however, the accused was acquitted on the authority of

the Heidenreich decision, but that decision can be distinguished because the

order was ma de after the ac c used had pleade d Not Guilty.

20 R v Franc ois, 18 CRR (2nd ) 1994, 187 at 190, quo ting with a pprova l from R v L, (UK) 19914 CRR (2nd ), 304 - 30521 1998 NR 160. But in the cases of Strow itzki and Heidenreich , supra, and Van As andMalama-Kean, infra, the Nam ibian High C ourt rejec ted the a pp licat ions for ape rma nent stay.


33/72

33

In South Afric a , where the Court has a d isc retion to imp ose a nd/ or to p rovide

necessary and appropriate relief, the Constitutional Court has stated in regard

to a n ap plic at ion for the pe rma nent stay o f the p rosec ution:

The relief the applicant seeks is rad ica l, both philosop hica lly andsoc ially politica lly. Barring the prosec ution be fore the trial beg insand consequently without any opportunity to ascertain the realeffect of the delay on the outcome of the case is far-reaching.Indeed it prevents the prosecution from presenting societyscomplaint against an alleged transgression against societys rule ofconduct that will seldom be warranted in the absence of

significant prejudice to the accused

Ordinarily, and pa rticularly, where the prejudice a lleg ed is not tria lrelated, there is a range of appropriate remedies less radicalthan barring the prosec ution. These would inc lude a mandamusreq uiring the p rosec ution to c ommenc e the c ase, a refusal to grantthe prosecution a remand, or damages after an acquittal arisingout o f the prejudice suffered by the ac c used . A ba r is likely to beavailable only in a narrow range of circumstances, for example

where it is established that the accused has probably sufferedirrep arab le trial prejud ic e as a result o f the delay. 22

In the follow ing dec ision of the South Afric an Constitutiona l Court, name ly Wild

and An v Hoffert & Ors23, where Kriegler, J, writing the judg ment for the Co urt as

in Sanderson, reaffirme d the test in Sanderson, and a dded :

The appellant d o not alleg e, nor is there a ny sugg estion of t ria lp rejudice here. Conseq uently their c la im for a stay of theprosecution must fail unless there are circumstances rendering thecase so extraordinary as to make the otherwise inappropriaterem ed y of a stay, nevertheless approp ria te.

22 Sanderson v Attorney General, Easte rn Ca pe, 1988(1) SACR 227 at 245.23 1998(2) SACR 1 at 12.


34/72

34

It has been argued that in interpreting art. 12(1)(b) the Court must apply a

broad , libe ral and purposive a pp roa c h.

In this reg ard it is approp riate to repea t what was sa id in the ma jority judgm ent

of this Court in Ministe r of the Inte rior v Frank and Another:

In my respectful view, the starting point in interpreting and

app lying a c onstitution, and esta blishing the m ea ning, co ntent a ndambit of a particular fundamental right, or freedom, must besoug ht in the w ords used and the ir p lain mea ning. This p rincip le isendorsed by Seerva iin his authoritative work Constitutional Law ofIndia where he quotes with approval from the Central Provincescase(1939) FCR 18 at 38:

for in the last a na lysis the dec ision must d ep end upo n thewo rds of the C onstitution which the Court is interpreting andsince no two constitutions are in identical terms, it isextremely unsafe to assume that a decision on one of them

c an b e app lied without qualific ation to another. This ma ybe so even when the words or expressions are the same inboth cases, for a word or phrase may take a colour from itsc onte nt and b ea r d ifferent senses a ltog ethe r.

But I am mindful of the dictum of this Court in the Namunjepo-dec ision whe re the lea rned Chief Justice Strydom sa id:

A court interpreting a Constitution will give such words,especially the words expressing fundamental rights andfreedoms, the widest possible meaning so as to protect the

greatest number of rights

The wide st possib le mea ning how eve r, mea ns no more than wha tKent ridge, J.A. sa id in the c ase o f Attorney-Gene ral v Moa gi.

He de c la red : a Constitution such as the Constitution ofBotswana, embodying fundamental rights, should as far as itslang uag e p ermits be given a b roa d construc tion.

And as Friedman, J. comments in Nyamkazi v President ofBophuthatswana, this is in my view the golden mean between the


35/72

35

two approaches meaning the approaches of the positivist and libertarian sc hoo ls. (My emp hasis added .)

I am a lso m ind ful of the ma ny Namib ian dec isions whe re the b asic

approach in interpreting a constitution has been expressed inpoe tic and stirring language. So e.g. it wa s sa id in Government ofthe Rep ub lic of Namib ia v Cultura 2000, :

It must be broadly, liberally and purposively interpreted soas to avoid the 'austerity of tabulated leg a lism' a nd so a s toenable it to c ontinue to p lay a c rea tive and dynam ic role inthe expression and the achievement of the ideals andaspirations of the nation, in the articulation of the valuesbond ing its pe op le and in d isc ip lining its Government.(My empha sis ad de d.)

But a s pointed out by See rva i, c iting what w as sa id by Gw yer, C.J.,

a broad and liberal spirit should inspire those whose dutyit is to interpret the constitution, b ut I do not imp ly by this tha tthey are free to stretch and pervert the language of theenactment in the interests of any legal or constitutionaltheory, or even for the purposes of supplying omissions orc orrec ting supposed e rrors. A Fed eral Court ma y rightlyreflect that a Constitution of Government is a living and

orga nic thing, which of a ll instruments has the grea test c la imto b e c onstrued ut res ma gis valeat qua m p erea t.(My empha sis ad de d.)

This d ic tum wa s quote d by this Court, ap parently with ap prova l, inthe d ec ision o f Minister of Defenc e, Namibia v Mwand ingi.

In the a foresa id dec ision, this Court a lso relied inter aliaon a d ictumby Lord Wilberforce in Minster of Home Affairs & An v Fisher & An,whe rein the learned Law Lord ha d sa id:

A c onstitution is a leg a l instrument g iving rise, amo ngst o the rthings, to individual rights capable of enforcement in aCourt of Law . Respe c t must be p aid to the lang uag e whichhas been used and to the traditions and usages which havegiven meaning to tha t langua ge . It is quite c onsistent w iththis, and with the rec og nition o f the c harac ter and origin ofthe instrument, and to be guided by giving full recognitionand effec t to those funda menta l rights and freed oms with astatement of which the constitution commences (Myemp hasis ad de d.)


36/72

36

Kentridge , A.J., who wrote the unanimous judg me nt o f the SouthAfrican Constitutional Court in the Sta te v Zuma, quoted withapproval the following passage from a judgment of Dickson, J.,(la ter Chief Justice of Ca nada) in the d ec ision R v Big M. Drug Ma rt

Ltd:

The me aning of a right of freed om gua ranteed by theCha rter wa s to be a sc ertained by an analysis of the purposeof such a gua rante e; it was to be und erstood, in otherwo rds, in the light of the inte rests it wa s me ant to p rotec t. Inmy view this analysis is to be undertaken, and the purpose ofthe rights or freedom in q uestion is to be soug ht b y referenc eto the c harac ter and large r ob jec ts of the cha rter itself, tothe language chosen to articulate the specific right orfreedom, to the historical origins of the concept enshrined,

and where a pp lic ab le, to the me aning a nd p urpose of theother specific rights and freedoms with which it is associatedwithin the text of the Cha rter. The interp reta tion should b e a generous rather than legalistic one, aimed at fulfillingthe purpose of a guarantee and the securing for individualsthe full bene fit o f the C harter's p rote c tion.

Kentridge, A.J., also pointed out in S v Zuma & Orsthat it cannotbe too strongly stressed that the Constitution does not meanwha tever we might w ish it to mea n

In the same dec ision, Kent ridg e sa id:

Both Lord Wilberforce and Dic kson, J., la te r Chief Justice, o fCanada, had emphasised that regard must be had to thelegal history, traditions and usages of the countryconcerned, if the purposes of its constitution must be fullyund erstood . This must be right .(My empha sis ad de d.)

The d ictum wa s aga in approved b y the Constitutiona l Court inSta te v Makwanyane and Ano theralthough Chaskalson, P., in his

judgment a dd ed:

Without seeking in any way to qualify anything that wassaid in the Zuma's case, I need say no more in this judgmenttha n tha t s 11(2) of the Constitution must no t b e c onstrued inisolation, but in its context, which includes the history andbackground to the adoption of the Constitution, otherprovision of the Constitution itself and, in particular, theprov isions of c hap 3 of which it is part. It must a lso b econstrued in a way which secures for 'individuals the fullmeasure' of its protection.


37/72

37

It was also pointed out in the latter decision that backgroundmaterial, such as the reports of technical committees whichadvised the Multi-party negotiating process, could provide a

c onte xt for the interpreta tion of the Constitution

It follows from the a bo ve tha t when a Court interprets and ap pliesa constitution and adheres to the principles and guidelines above-stated, a purposive interpretation also requires that a Court hasregard to the legal history, traditions and usages of the countryconcerned, if the purposes of its constitution must be fullyunderstood.

To sum up : The guide line tha t a constitution must be interp retedbroadly, liberally and purposively, is no license for constitutional

flights of fanc y. It is anc hored in the p rov isions of the Namib ianConstitution, the language of its provisions, the reality of its legalhistory, and the traditions, usages norms, values and ideals of theNam ibian peop le. The Namibian rea lity is tha t these trad itions,usages, norms, values and ideals are not always liberal and maybe c onservative o r a mixture of the two . But whethe r or not theyare liberal, conservative or a mixture of the two, does notdetract from the need to bring this reality into the equation wheninterpreting and applying the Namibian Constitution.24

When interpreting Art. 12(1)(b) of the Namibian Constitution, one should also

keep in mind tha t there has neve r been a p rinc ip le in South African and

Namibian law making a permanent stay of prosecution a mandatory remedy

for any b reac h of any of the p rincip les of a fa ir tria l. So e .g. in South Africa , in

the decision of Klein v Attorney-General, Witwatersrand Local Division, it was

stated:

24 The Cha irpe rson of the Immigra tion Selec tion Boa rd v Frank & An, unrepo rted , NmSda ted 05/ 03/ 2001.See a lso: Ministe r of De fenc e v Mwand inghi, 1992(2) SA 355 (NmS); Van As & A vProsec uto r-Genera l of Nam ibia, 2002(1) SACR 70 at 76 C I. Co mp are a lso: Berg vProsec utor-Genera l, Gauteng , 1995(11) BCLR 1441 (T) a t 1445 G 1446 E. Ex ParteAttorney-Gene ra l, Nam ib ia: In re: The Constitutiona l Relat ionship b etw een the Attorney-Ge neral and the Prosec uto r-Genera l, 95(2) BCLR 1070 NmS. At 1080


38/72

38

There has how eve r neve r been a p rinciple that a viola tion of anyof the specific rights encompassed by the right to a fair trial wouldautom atica lly p rec lude the tria l. Suc h a rigid princ ip le wouldop erate to the disad vantag e of law enforce ment a nd the

consequent prejudice of the society which the law and theCo nstitution is intend ed to serve

In the light of the foregoing, it seems extremely unlikely that the Constituent

Assem bly of Namib ia , could eve r have intended to p resc ribe to the C ourts as a

mandatory remedy, and as the one and only remedy, a permanent stay of

prosecution.

None of counsel who appeared in this appeal and the one of Malama-Kean

referred to supra, have been able to point to any court decision, or legal

dic tiona ry, where the wo rd release wa s used to p rovide fo r a p ermanent stay

of the prosecution in a criminal case or a permanent release from prosecution.

The nea rest one c ounsel could g et w as The Oxford Comp anion to Law , by

David M. Wa lker, MA, PL D, LLD, FBA, One of Her Ma jesty s Co unsel in Scott land ,

of the Midd le Tem ple, Barriste r, Reg ius Professor of Law in the University o f

Glasgow.

In this dic tiona ry, the m ea ning of the wo rd release is given a s: A d isc harge or

renunc iation of a c laim or right of ac tion. Also at c ommon law the

conveyance of a larger estate, or a remainder or reversion, to a party already

in possession . (My emp hasis added .) A c la im o r right of ac tion c lea rly refe rs

to c ivil law and proc ed ure, not c riminal law .


39/72

39

It is significant that even an academic, professor of law and Barrister with such

credentials could not find an application for the word release in criminal law

and proced ure. As far as dict iona ry mea nings are co ncerned c onta ined in

non-legal dictionaries, reference can be made to the Oxford Advanced

Lea rners Dic tionary of Current Eng lish by A S Hornsby where the fo llowing

meanings are given with a measure of relevance to the word in Art. 12(1)(b):

To a llow to g o; to set free; relea se a m an from prison on orde r for his relea se

from prison; g iven up or surrend er (a right , deb t p rop erty) to a nothe r .

In Heidenreich the Court d id how eve r refer to the referenc e b y Mr. Sma ll,

c ounsel for the Sta te, to va rious d ic tionary mea nings of the term released

showing that the word released can have a variety of meanings, including

released from detention or relieved from onerous conditions of bail but

concluded as I have shown supra, on the ground of the need for a broader,

more liberal construction, that a permanent release from prosecution, must

be the true and exclusive mea ning to b e g iven to the w ords. Counsel as we ll as

the Court in that case, appears to have given insufficient weight to the fact

that in the most relevant legislation the Criminal Procedure Act, the word

relea sed is only used in the sense o f relea sed from c ustody, relea sed on b a il,

on ow n rec ognizanc es etc .

Sec tion 39(3) of the Crimina l Proc ed ure Ac t p rov ides:

A person a rrested sha ll be in lawful custody until lawfullyd isc harged or relea sed . Sec tion 50(1) furthe r dea ls with the c ase


40/72

40

of a person arrested, whether with or without warrant who, if notreleased by reason that no charge is brought against him Sec tion 56(2) p rovides: If an a c c used is in custod y, the e ffec t of awritten notice handed to him under subsection (1) shall be that he

be released fo rthw ith from c ustod y . In the South Afric an fina lCo nstitut ion of 1996, the terms released is used in art. 35(1)(f) inthe sense o f release from d etention .

Section 58 provides:

The e ffec t o f ba il granted in terms of the suc ceed ing p rovisions is

that an accused who is in custody shall be released from custodyupon payment o f or the furnishing o f a gua rantee to pa y, the sumof m oney d etermined for his ba il, and that he shall ap pe ar at theplac e a nd o n the da te a nd a t the time ap po inted for his trial or towhich the proceedings relating to the offence in respect of whichthe accused is released on bail are adjourned, and that therelease shall, unless sooner terminated under the said provisions,end ure until a ve rdic t is given b y a c ourt in respec t of the charge towhich the offence in question relates, or, where sentence is notimposed forthwith after verdict and the court in question extendsba il, until sente nce is imp osed . (My emp hasis added .)

The term released is a lso used in reg ard to b a il in sec tion 59, 60, 61, 66(1), 71

and 179. Sec tion 72 dea ls with relea se on warning instead o f ba il. Sec tion 185

deals with the detention of witnesses and the release from detention of such

witnesses who had been deta ined to sec ure the ir safe ty.

Nowhe re in the Ac t is the term released used in any other sense than released

from de tention.

The Prison Ac t o f 1995 also uses the te rm in sec tions 5, 61, 62, 64, 66, 67, 69 and

71, in regard to the relea se o f p risone rs from imprisonm ent .


41/72

41

The noto rious sec tion 103 ter(4) and (5) of the Defence Ac t a s it stood be fore

Namibian independence, serves as a precedent for the authors of legislation

should they w ish to b ar a p rosec ution whether befo re or afte r p lea . In the c ase

of a ba r befo re p lea , these p rovisions p rovided tha t the Sta te President c ould

authorize the Minister of Defence to issue a certificate directing that the

proc eed ings sha ll not b e continued . The task for the Court then wa s to

dete rmine whethe r there was suc h a ce rtific ate. Onc e it de termines tha t there

was such a certificate, then the proceedings shall be deemed to be void.25

These p rovisions further serve to indica te how explicit the language must be to

effec t a p erma nent ba r to prosec ution.

Furthermore, the Legislature in enacting the Criminal Procedure Act, has used

the express term acquit in section 6(b) when it intended to provide for that

effec t in ca ses whe re the Sta te stops the p rosec ution afte r p lea . If an ac quitta l

or a permanent stay of prosecution or discharge from prosecution as the

exc lusive rem ed y wa s intend ed , why no t say so, c onsidering the fac t tha t it is an

extraordinary remed y with w ide-ranging imp lic a tions. This need to use the terms

shall be acquitted or the prosecution shall be permanently stayed or the

ac c used sha ll be p ermanently disc harged from prosec ution or simila r words to

the same effect, becomes even more apparent if sub-article (2) of article 12 is

c onsidered . Sub-article (2) provides as follow s: No persons sha ll be tried ,

convicted or punished again for any criminal offence for which they have

25 See the dec isions in:Mweuha nga v Cab inet of the Interim G ove rnme nt & Othe rs, 1989(1) 976 (SWA)Shifidi v Administrato r General o f SWA & Others, 1989(4) SA 631 SWA


42/72

42

alread y been c onvicted or ac quitted a cc ording to law : provided that nothing

in this sub-article shall be construed as changing the provisions of the common

law d efenc e of p revious ac quittal a nd previous c onvic tion . (My empha sis

added.)

Sub-article (2) must a lso b e read in co njunction w ith the p rov isions of sec tion

106 of the Criminal Procedure Act 51 of 1977 which was in existence at the time

the Namibian Constitution was enacted and is still valid and applicable in

ac c orda nc e w ith Art. 138(2)(a) of the Namib ian Constitution. It will rema in in

forc e until rep ea led by an Ac t o f Parliam ent o r dec lared unco nstitutiona l by the

Court. There has be en no rep ea l by Parliament and no d ec la ra tion by any

Co urt tha t it is unc onstitutiona l. I can also see no reason a t a ll for dec la ring the

said sec tion 106 unconstitutiona l.

The signific anc e o f sec tion 106 is tha t it prov ides in sub-sec tion 1(c ) and (d):

When a ac c used p lead s to a c harge he ma y plead

(c ) that he has already been convicted of the offencewith which he is c harge d ; or

(d) that he has alread y be en ac quitted of the offencewith whic h he is c harged ;

(e) that he has rec eived a free pa rdo n under sec tion327(6) from the Sta te President fo r the offe nc echarged; or

(f)


43/72

43

(g ) that he has been discharged under the provisions ofsection 204 from prosecution for the offencecharged.

(My empha sis ad de d.)

Sec tion 204 provide s for a p erson w ho m ay be c harged but is used as a sta te

witness and who, should the Court find at the end of the trial that he has

answered all questions frankly and honestly, such witness shall, subject to the

prov ision of subsec tion (3), be d isc ha rged from p rosec ution . Subsec tion (3)

dea ls with a c ase w here the witness testifies a t a p rep aratory exam ination and

after having been given the immunity, does not testify frankly or honestly at a

subseq uent tria l.

In all these cases the special pleas are tendered before any plea to the merits

and exhaust the pleas under statute where an accused can be permanently

released from prosec ution.

The a c c used can also d emand, in ac c orda nc e w ith sec tion 108 tha t the issues

raised by the plea , other than a p lea of guilty, be tried .

The langua ge used to p rovide fo r a d isc harge from p rosec ution or a p ermanent

sta y of prosec ution is signific ant. In subsec tion 1(d) of sec tion 106 a p erma nent

stay is ob tainab le p rovided an a c c used has previously been ac quitted ; in

the c ase of subsec tion 106(1)(e) read with sec tion 204(2), the remed y p rovide d

is if the ac cused in terms of 204(2)(g), has been d isc harge d from prosec ution .


44/72

44

The words d isc harge from prosec ution a re no t used in any other part of the

Criminal Proc ed ure Ac t.

It is a lso signific ant tha t in the USA a nd Ca nada where a so-c a lled d ismissa l with

prejudice is the remedy, it is equivalent to a permanent stay of prosecution

and/or an acquittal, the relief applied for is the dismissal of indictment or

d ismissa l of the c harge and the foc us is not o n the p erson o f the a c c used but

on such indictment or charge.26 In Namibia, in art. 12(1)(b) the focus is on the

pe rson of the a cc used and provide s that the ac c used shall be released , not

the indictment or charge shall be dismissed.

In the provisions of the Criminal Procedure Act, and Prisons Act where released

from detention is intended, the focus is similarly on the accused or detained

person, but where the order contemplates a permanent stay of prosecution in

terms of the Criminal Procedure Act the terms discharge from prosecution or

ac quittal or ac quitted are used respe c tively.

The Court in Heidenreich held that Art. 25 is c onc erned with spec ific and

independent claims made by aggrieved persons that a fundamental right or

freedom guaranteed by the Constitution has been infringed and whilst such

claims must be made in proceedings before the High Court, it does not mean

tha t a ma gistrate s c ourt has no jurisd ic tion to e nsure the ob servanc e o f c ertain

26 Barker v Wingo, 407 US 514 and Dickey v Florida , 398 US 30


45/72

45

fundamental rights guaranteed by the Constitution during the course of

proc eed ings which take plac e be fore it (My empha sis ad de d.)

I have difficulty in understanding the distinction apparently made between

c la ims unde r Art. 25 and c la ims unde r Art. 12 and tha t c la ims unde r Art. 25 a re

specific and independent claims and that such claims must be made in

proc eed ings be fore the High C ourt and that a ma gistrate s c ourt w ill not ha ve

jurisdiction to hear such claims, but will have jurisdiction to hear complaints

about the observance of certain fundamental rights during the course of

proc eed ings which take p lac e b efore it. The Court went on to indica te that

c la ims unde r Art. 12(1)(b) w ould be justiciab le by the ma gistra te s court in terms

of a rt. 5 if ra ised in the course o f c riminal proc eed ings befo re it. In view the reo f

that the Court also found that the remedy provided for in art. 12(1)(b) is a

permanent stay of prosecution, it follows that it also found, by implication, that

the magistrates court has jurisdiction by virtue of article 5 read with 12(1)(b), to

order a p ermanent stay of prosec ution.

In the subsequent decision of Van As, the Court held tha t: If the e ffect of the

order made by the magistrate to release an accused is to grant a permanent

sta y of prosec ution, the ma gistrate w ould be excee d ing his jurisd ict ion. If the

magistrate has the power to release an accused person by virtue of art. 5, by

necessity release does not have the extended meaning given to it in the

Heidenreich s c ase. It seems tha t the lea rned judg es in Van As based the ir view

on the fact that a permanent stay of prosecution amount to an interdict and


46/72

46

tha t the ma gistrate s court has no jurisd ic tion to grant such an interd ic t in terms

of the Magistrate s Court Ac t.

It follows that the Court in Van As correctly argued that if the words shall be

released mean that the Court shall grant a permanent stay of prosecution,

then a ma gistrate s c ourt will not ha ve the jurisd ic tion to g rant such an order. In

my respectful view, the Court in Van As came to the correct conclusion in this

regard.

This is so b ec ause a rt. 5 c lea rly provides tha t the Court a nd others, hav ing the

duty to uphold and protect the fundamental rights and freedoms, provided

expressly tha t suc h rights and free dom s sha ll be enforcea ble by the Courts in

the ma nner hereina fter p resc ribed . (My em pha sis added .)

The question must the refo re b e further examined wha t is the ma nner hereinafte r

prescribed?

The reg ime of e nforce ment is c onta ined in a rt. 25(3) of the Constitution, rea d

with a rtic les 80(2), 80(3), 12 rea d with sec tion 2 of the High Court Ac t 16 of 1990,

the Magistrates Court Act 32 of 1944, Chapter (VI) Civil Jurisdiction and

Chapter XII Criminal Jurisdiction and the Criminal Procedure Act No. 51 of

1977.


47/72

47

Art. 25(2) introduces the concept of a so-called competent court which in

terms of sub-article (3), has wide powers in regard to providing remedies for the

breach of any fundamental human right or freedom but these powers are

aga in sub jec t to the p rovisions of the Constitution which ob viously also m ea n

that it will be subject to art. 12(1)(b) which provides a specific remedy of

sha ll be relea sed should a tria l not ta ke plac e w ithin a reasona b le time.

Art. 80(2) p rov ides tha t the High Co urt sha ll have origina l jurisd ict ion to hea r and

adjudicate upon all civil disputes and criminal prosecutions, including cases

which involve, the interpretation, implementation and upholding of this

Constitution and the fundamental rights and freedoms guaranteed

thereunder

Art. 83, in c ont rast prov ides: Low er Co urts sha ll be esta b lished by Ac t of

Parliame nt and sha ll have the jurisd iction and adop t the p roc ed ures p resc ribed

by the Ac t and the regulations ma de thereunde r (My emp hasis ad de d.)

It is common cause that neither the Magistrates Court Act, its abovestated

Chapters on jurisdiction, nor the Criminal Procedure Act provides for a

jurisdiction and /or procedures in terms of which an interdict can be granted in

a c riminal ca se.

It is c onseq uently beyond do ubt tha t the only so-ca lled c ompe tent Co urt for

the purposes of article 25 is the High Court and as such, that Court has wide


48/72

48

discretionary powers to provide remedies for breeches of fundamental rights

and freedoms, including interdicts and damages and obviously in the case of

interdicts, irrespective of whether the order is made in a civil proceeding or

c riminal proceed ing. The said c omp etent c ourt c an c onseq uently orde r a

pe rma nent stay o f a c riminal prosec ution. On the o ther hand , a ma gistrate s

c ourt has no jurisd ic tion to d o so a s the law stands a t the mome nt. Even if art.

12(1)(b) envisages a permanent interdict as its only remedy, alternatively, one

of the envisaged remedies for the trial as envisaged in art. 12(1)(a) not taking

place within a reasonable time, that fact, read with art. 5, does not allow a

ma gistrate s c ourt to order a p ermanent stay of prosec ution prior to p lea d ing to

the m erits by a n ac c used .

Once the accused has pleaded to the merits, the Prosecutor-General is no

longer dominus litusand the magistrates court could in an appropriate case,

where the trial has not taken place within a reasonable time, refuse further

postponements and ac quit the ac c used . This wa s done in the c ase of Sta te v

Uaha nga & Othe rs, referred to infra.

In my respectful view, the Legislature should seriously and urgently consider an

amendment to the Magistrates Court Act and the Criminal Procedure Act,

extending the jurisdiction of magistrates courts, particularly courts with the

status of Regional Courts, to be competent courts, for the purposes of art.

25(2) or at any event clothe such courts with the necessary jurisdiction to


49/72

49

enable such courts to order a permanent stay of prosecution prior to pleadings

in approp ria te c ases.

The fa c t tha t a ma gistra te s court does not ha ve the jurisd ic tion to a pp ly the

remedies provided for in art. 25, is not an insuperable obstacle to the granting

of the remed ies p rovided for in a rt. 25. Should a n agg rieved ac c used insist on a

permanent stay of prosecution, a postponement of the trial before the

magistrates court can be requested to enable the accused to apply to the

High Court as the c ompe tent Court, for such a remed y.

The Na mib ian High Co urt dec ision follow ing on Sta te v Heidenreich wa s S v

Uahanga & Others, referred to supra. Smuts, A.J., wrote this judgme nt and

Mtam ba nengwe, J, conc urred.

This wa s a c ase w here a prosec utor, after some delay on the side o f the Sta te

to proc eed with the prosec ution, req uested a p ostponement. The magistra te

apparently did not deal with the application for postponement, but acquitted

the accused in view thereof that he had already pleaded not guilty on a

prev ious oc casion. This time the Sta te a ppea led. The appea l wa s d ismissed on

the a uthority of Sta te v Heidenreich. The Court did no t voice a ny c riticism a nd

did not raise a ny new p oint p ertaining to the p rob lem.


50/72

50

The next d ec ision of the High Co urt wa s tha t in Van As & Anothe r v Prosec uto r-

General of Namibia, a full bench decision of three judges where the judgment

was written by Levy, A.J.27

The first p oint ma de b y the Court in this judgm ent with referenc e to the d ec ision

in S v Heidenreich is tha t tha t d ec ision was an ob iter dic tum in so far as it held

that the words shall be released must mean that the prosecution is

permanently stayed . The content ion that the dictum in Heidenreich relating to

the meaning and effect of the words shall be released in Art. 12(1)(b) was an

obiter dictum is probably correct because once it was found that it was not

proved that the trial did not take place within a reasonable time, it was not

nec essary to dec ide the q uestion of the mea ning a nd e ffect of the words shall

be relea sed .

In the following case, that of Malama-Kean, it was argued that the decision in

Van As rela ting to the words sha ll be relea sed wa s ob iter. It is not nec essary

for this Court to further elaborate on whether or not the aforesaid decisions

were obiter in regard to the Courts interpretation of the words shall be

released, because this Court will not be bound by those decisions, whether or

not they were obiter dicta. This Co urt w ill in any eve nt conside r a ll tho se

decisions and decide to what extent those precedents have persuasive value.

It is apposite however, to point out at this stage that it is not always easy to

draw the line betwe en wha t is a b inding preced ent and w hat is ob iter. A rigid

27 2002(1) SACR 70


51/72

51

approach to avoid at all costs overstepping the line is not necessarily in the

interests of justice . Very often judicial guidelines a re a pp rop ria te fo r guida nc e

in regard to recurring legal problems in a developing legal system, particularly

in a new deve lop ing c onstitutiona l d ispe nsa tion. Ob iter dic tama y be justified ,

particularly in those cases where the points were properly raised and argued

befo re the Court. It is a lso undeniab le tha t our c ase law ha s been enric hed by

ma ny dec isions, which a mounted to ob iter dic ta.

In Van As, the Co urt in my respe c tful view , co rrec tly ac c ep ted that the ratio of

Heidenreich on the issue of the interpretation of the words shall be released,

wa s that the w ord must me an a nd therefore m eans that the m and ated remed y

is a permanent stay of prosecution.

The Court in Van As d isagree d with this conc lusion in Heidenreich and follow ed

S v Strowitzki and Ano ther, which was the first d ec ision on the issue, even tho ugh

the Strowitzki dictumwa s p rob ab ly ob iter in this reg ard .

The rea sons for the Va n As dec ision were set out a s fo llow s:

"With grea t respec t to the lea rned Judge s who hea rd Heidenreic h'scase, the effect of art 12(1)(b) was never intended to be morethan release 'from arrest or from onerous conditions of bail' asdec ided by O'Linn J in S v Strowitzki, 1995 (1) SACR 414 (Nm), 1995(1) BCLR 12 (Nm).

The lea rned Judge s in Heidenreich's c ase ga ve to the wo rd'relea se' a me aning simila r to 'ac quit'. At 239 I - J, the Court sa id:


52/72

52

'The genera l approa c h when construing c onstitutiona lprovisions is that the provisions are to be ''broadly,liberally and purposively'' interpreted: Government ofthe Republic of Namibia v Cultura 2000 and Another

1994 (1) SA 407 (NmS) a t 418F, and if this c anon o fconstruction is to be relied upon it is as well to identifyexpressly the underlying purpose of the constitutionalp rov ision under co nsidera tion.'

With due respect, this 'canon of construction' does not permit aCourt to give a word the meaning it does not have. In Minister ofDefe nc e v Mwand inghi 1992 (2) SA 355 (NmS), 1993 NR 63 (SC) a t69I - J (NR) a Full Bench in a joint decision by Berker CJ, MahomedAJA and Dumbutshena AJA, sa id the fo llow ing :

'H M See rvai, c iting wha t was sa id by Gw yer CJ,rem arked , in The Constitutiona l Law o f Ind ia 3rd ed vo l1 at 68, that

''a broad and liberal spirit should inspirethose whose duty it is to interpret theConstitution; but I do not imply by this thatthey are free to stretch or pervert thelanguage of the enactment in the interestsof any legal or constitutional theory, oreven for the purposes of supplying

omissions or correc ting sup posed errors.'' '

It is true that a Court must sta rt w ith the interpreta tion of any writtendocument whether it be a Co

myburgh v the state

Documents