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Criminal Act Pruned
- Chief Justice declares two sections 'unconstitutional'

By Asser Ntinda

Two controversial sections of the Criminal Procedure Act have been declared unconstitutional by the Supreme Court, effectively striking them off from the Criminal Act of 1977.

In a landmark judgment delivered by Chief Justice, Peter Shivute, with Judges of Appeal, Gerhardt Maritz and Johan Strydom concurring on Thursday, the Chief Justice said sections 245 and 332 (5) were unconstitutional because they cast a mandatory legal onus on an accused person charged with an offence of which a false representation was an element to prove that he or she did not know that the representation was false once the State had proved that he or she had made the false representation.

"In keeping with the requirement to allow the constitutional spirit and tenor to permeate," Chief Justice Shivute said, "the Constitution must not be interpreted in a narrow, mechanistic, rigid and artificial manner. Instead, constitution provisions are to be broadly, liberally and purposively interpreted so as to avoid what has been described as the austerity of tabulated legalism," Chief Justice Peter Shivute


According to section 332 (5) of the Criminal Procedure Act of 1977, a servant of a corporate body is deemed to be guilty of an offence committed for which the corporate body is or was liable to be prosecuted, unless he or she proves on a balance of probabilities that he or she did not take part in the commission of the offence and could not have prevented it.

Chief Justice Shivute said that those sections were unconstitutional "on the grounds that they impermissibly infringe on an accused person's right under Article 12 (1) of the Constitution to be presumed innocent until proven guilty according to law, and thus also an accused person's right to a fair trial in terms of Article 12 (1) of the Constitution. He continued: "To the extent noted in paragraphs (1) (a) and (b) above, the limitations by sections 245 and 332 (5) on an accused person's right to a fair trial under Article 12 of the Constitution are not constitutionally authorized."

The two sections have been challenged in several cases by accused persons such as Paulus Kapia, Gery Munyama, Mathias Shiweda, Ralph Blaauw, Otniel Podewiltz, Inez Gases and other prominent figures. There are also several cases before the High Court which have been delayed because the accused persons have questioned such provisions' constitutionality.

Such challenges have prompted Attorney General, Dr Albert Kawana, to petition the Supreme Court to pronounce itself on the constitutionality of such provisions. Referred to as the "impugned provisions," the Attorney General submitted to the Supreme Court that such provisions were fundamental to the prosecution of persons accused of fraud and to the prosecution of the directors or servants of corporate bodies under prescribed circumstances.

He said that such provisions had been challenged in a number of pending matters before the High Court, and unless such multiple challenges were resolved by the Supreme Court once and for all, delays were likely to be experienced in the proceedings involving the respondents. He said that leaving them unresolved might also result in an undesirable multiplication of individual appeals or attempts to have the same issues determined in separate trials. He called for a single hearing to set a binding precedent in pending and future prosecutions.

The sections were challenged on the grounds that in casting a reverse onus on an accused person, such provisions exposed such person to being convicted despite the existence of a real doubt as to his or her guilt. They also infringed on the accused person's constitutional right to be presumed innocent until proven guilty according to law. They were also challenged on the grounds that they infringed an accused person's right to a fair trial, privilege against self-incrimination and not to be an accomplice witness in terms of the Constitution, as well as on the general right to silence an accused person may have as provided for in Article 12 of the Constitution. In the motion presented by Dr Kawana, 13 respondents were indicted in criminal proceedings before the High Court of offences of fraud, theft and or corruption. Before arriving at the conclusion, Chief Justice Shivute looked at the constitutional framework under which the Criminal Procedure Act was passed in 1977.

"In as much as the presumption of innocence is also a necessary and inseparable component of the overarching right to a fair trial in the determination of criminal charges against accused persons protected by Article 12 (1)(a), it follows that the latter right is also unconstitutionally diminished as a result," Chief Justice Peter Shivute


The Criminal Procedure Act was passed by the South African Parliament, which applied as a code of criminal procedure both in South Africa and what was then referred to in the Act as "the territory of South West Africa." At the time when the Act was passed, Justice Shivute said that the political, socio-economic and constitutional landscape in Southern Africa was vastly different to what it was today.

He said the provisions were passed in an ear of "parliamentary sovereignty" when the legislative powers of the South African Parliament were not constrained by constitutionally entrenched fundamental rights and judicial review. Most of its enactments were applied in Namibia, which was occupied by South Africa by then.

"The constitutional landscape changed dramatically with this country's independence in 1990," remarked Chief Justice Shivute. "It brought with it Namibia's liberation from South African occupation and rule. At independence, Namibia emerged as a sovereign, secular, democratic and unitary state founded on the principles of democracy, the rule of law and justice for all under a constitution."

The Chief Justice said Namibia's Constitution entrenched fundamental human rights and freedoms of all persons and the judicial power to enforce or protect those rights and freedoms. To ensure a smooth transition, Namibia's Constitution also stated that all laws which were in force immediately before independence would remain in force until repealed by Parliament or declared unconstitutional by a competent court.

Justice Shivute said the Constitution should not be interpreted like an "ordinary statute," adding that its spirit and tenor must preside and permeate the process of judicial interpretation and judicial discretion. While situations might arise where the generous and purposive interpretation did not exist, it was necessary for the generous to yield to the purposive. "In keeping with the requirement to allow the constitutional spirit and tenor to permeate," Chief Justice Shivute said, "the Constitution must not be interpreted in a narrow, mechanistic, rigid and artificial manner.

Instead, constitution provisions are to be broadly, liberally and purposively interpreted so as to avoid what has been described as the austerity of tabulated legalism." In their submissions, respondents also contended that similar provisions were declared unconstitutional in South Africa, which were contended to be persuasive. The Chief Justice said that while South African jurisdictions' precedent might be persuasive for Namibian courts under given circumstance, Namibian courts had developed a reservoir of distinctly Namibian jurisprudence based on the country's Constitution.

"...I conclude that the reverse onus presumptions created by the impugned provisions exceed the scope of limitations authorized in respect of the right to be presumed innocent under Article 12 (1)(d)," remarked Chief Justice Shivute.

"In as much as the presumption of innocence is also a necessary and inseparable component of the overarching right to a fair trial in the determination of criminal charges against accused persons protected by Article 12 (1)(a), it follows that the latter right is also unconstitutionally diminished as a result."





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