SUMMARY

CASE NO.: CC 4/2002

HYACINTH JAMES NINGISA & OTHERS

and

THE STATE

SILUNGWE, AJ

12/11/2008

APPEAL - Leave to appeal and petition procedures – Constitutionality of

provisions of section 316(1), (6) and (7) of Criminal Procedure
Act, Act 51 of 1977 – Such provisions not inconsistent with
Article 12(1)(a) of the Constitution and therefore not
unconstitutional.
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CASE NO.: CC 4/2002

IN THE HIGH COURT OF NAMIBIA

In the matter between:

HYACINTH JAMES NINGISA Applicant No. 1

MACDONALD KAMBONDE Applicant No. 2
HENDRICKS HENNY TSIBANDE Applicant No. 3
BRENDON DAVID OMSWA SIMILO Applicant No. 7
ISMAEL OAEB Applicant No. 9
VINCENT NDABULA MABUZA Applicant No. 10
MIKE SANDILE MABENA APANI Applicant No. 11

and

THE STATE Respondent

CORAM: SILUNGWE, AJ

Heard on: 18/01/2008

Delivered on: 01/02/2008
Reasons on: 2008/11/12

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL:

SILUNGWE, AJ: [1] In this judgment, the applicants will retain the same

numbers that they have had since the inception of their trial.
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[2] Applicants 1, 3 and 11 are unrepresented in these proceedings,

whereas Messrs Murorua and Neves kindly appear amica curiae in respect of

applicants 2, 7 and 9 and Applicant 10, respectively. The Court is infinitely

indebted to both of them not only for their assistance in the current

proceedings, but also for having given their valuable time towards the

advancement of the interests of justice.

[3] The applicants, having been variously convicted of, and sentenced for,

crimes ranging from robberies with aggravating circumstances to, inter alia,

theft, are now applying for leave to appeal to the Supreme Court against their

convictions and sentences. Besides the grounds and the supporting

submissions on which the applications rest, and to which I will later return,

there is a constitutional challenge mounted by Applicant 11 – Mike Sandile

Mabena Apani (Mike). The substance of the challenge is that the provisions of

the Criminal Procedure Act, Act 51 of 1977 (subsections (1), (6) and (7) of

section 316 of the Act) which require a convict to apply to this Court for leave

to appeal to the Supreme Court, and, in the event of the Court’s refusal to

grant him such leave, to petition the Chief Justice which petition “shall be

considered in chambers”, are unconstitutional. Although he refers in his

challenge to such Articles as 8, 10, 12 (and so forth) of the Constitution, it is

apparent that his primary reliance rests on Article 12(1)(a) which provides,

inter alia, that -

“12(1)(a) In the determination of their civil rights and obligations or any criminal charges
against them, all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court or Tribunal established by law …”
(Emphasis provided).
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He submits that every Accused has a right to a fair hearing which includes

the right to appeal or review by a higher Court. Mike’s challenge will

conveniently be divided into the following two parts:

(i) the leave to appeal procedure; and

(ii) the petition procedure.

[4] THE LEAVE TO APPEAL PROCEDURE

Mike’s approach is that, in the light of the fair trial constitutional provisions,

he has a right to appeal directly to the Supreme Court with the result that the

provisions of the Criminal Procedure Act which subject him to the application

for leave to appeal procedure is unconstitutional.

[5] A proper scrutiny of Article 12 of the Constitution reveals that it makes

no provision for the right of appeal procedure. However, Articles 80(3) and

79(4) of the Constitution, respectively, provide that-

“80(3) The jurisdiction of the High Court with regard to appeals shall be determined by
Act of Parliament.”

“79(4) The jurisdiction of the Supreme Court with regard to appeals shall be determined
by Act of Parliament.”

Article 140(1) reads as follows:

“140(1) Subject to the provisions of this Constitution, all laws which were in
force immediately before the date of independence shall remain in force until
repealed or amended by Act of Parliament or until they are declared
unconstitutional by a competent Court.”
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[6] Act 51 of 1977 (the Act) was in force when this country achieved its

independence in March 1990 and still remains in force. Section 316 of the Act

is the section that regulates, inter alia, the criminal appeal procedure; this

section has thus far neither been repealed nor declared unconstitutional.

Nonetheless, the Court is now being called upon to declare the allegedly

offending provisions concerning the leave to appeal and the petition

procedures as unconstitutional.

[7] In considering the alleged unconstitutional aspects of section 316, I will

have recourse to some decisions of the South African Superior Courts. In S v

Ganeb 2001 NR 294 (HC), the Full Bench, citing what the Supreme Court had

said in Muller v President of the Republic of Namibia and Another 1999 NR 190

(SC) at 198G-H (per Strydom CJ, as he then was), remarked at 299I–300A:

“The decisions of the South African Courts and more particularly (sic) those of the
Constitutional Court, are very relevant and in the past this Court and the High Court of
Namibia have frequently applied these decisions but this must always be done with
due recognition of the differences between our two Constitutions. In my opinion there
are some differences between our art 10 and s.8 of the Interim Constitution and s.9 of
the South African Constitution, which must be kept in mind when comparisons are
drawn.”

[8] In the case of S v Rens 1996(1) SACR 105 (CC) the Constitutional Court

of South Africa was approached to determine whether the leave to appeal

procedure prescribed by section 316 of the Act was consistent with section

25(3)(h) of the Constitution Act, Act 240 of 1993, which provides that –

“25(3) Every accused person shall have the right to a fair trial, which shall include the
right –

…
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(h) to have recourse by way of appeal or review of a higher Court than the Court of first
instance …”

It was there (at 106i-j) contended on behalf of the applicant, in the Court a

quo, that this section afforded him an automatic right to appeal, and that,

therefore, the provisions of section 316(1)(b) of the Act were unconstitutional

in that they were repugnant to, and in conflict with, section 25(3)(h).

[9] In S v Rens case, supra, and with reference to section 102(11) of the

Interim Constitution, the Constitutional Court said at 108f-109a:

“[14] section 102(11) states:

‘Appeals to the Appellate Division and the Constitutional Court shall be

regulated by law, including the rules of such Courts, which may provide that
leave of the Court from which the appeal is brought, or to which the appeal is
noted, shall be required as a condition for such appeal.’

In S v Madise and Others, the same issue as in the present case as well as s.
102(11) was raised for decision. The accused in that case had taken the point
that the need for leave to appeal against the conviction and sentence had been
eliminated by the provisions s. 25(3)(h) of the Constitution.

Conradie J held at p-2:

‘The point is without merit. Section 102(11) of the Constitution Act makes it
permissible for an Act of Parliament to require (as S 316(1) of the Criminal
Procedure Act 51 of 1977 does) leave as a condition for an appeal. Since both
conditions are contained in the constitution Act they must be accorded equal
force. Section 102(11) therefore necessarily qualifies s. 25(3)(h). It follows that s.
316(1)(b) of the Criminal Procedure is not open to attack.

He accordingly dismissed the application, and also refused to refer the issue to
the Constitutional Court, holding that he was only entitled to refer the issue of
the validity of s. 316(1)(b) if it should be considered to be in the interests of
justice to do so. In that case, so his judgment ran, it was not in the interests of
justice to refer an unarguable point to the Constitutional Court or to any other
Court.”

[10] Although section 102(11) of the South African Interim Constitution

does not mention specific criteria which have to be complied with for the

purpose of the leave to appeal procedure, it should not be construed as

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authorizing procedures that would be inconsistent with section 25(3)(h). The

criterion set by section 25(3)(h) is fairness and, in order to harmonise section

102(11) with section 25(3)(b), the leave to appeal procedure should be

consistent with this requirement. (See S v Rens, supra, at 109e-h).

[11] In S v Bhengu 1995(3) BCLR 394(D), Magid, J had occasion to consider

the provisions of section 25(3)(h). The applicant in that case had been

convicted and sentenced in a Circuit Local Division of the Supreme Court.

When leave was sought to appeal and, in response to the argument that

section 25(3)(h) was intended to confer an absolute right of appeal from a

judgment of the trial Court, Magid, J made this observation at 397I:

“I should indicate that I have very grave doubts whether this provision entitles a
convicted person to have an absolute right of appeal. The phrase to have
recourse by way of appeal is in my view perfectly capable of meaning to have
recourse to a Court of appeal if the proper procedure is followed’.”

[12] An application for leave to appeal in a criminal matter is, as previously

shown, regulated by section 316 of the Act. The provisions of this section do

not, in my view, offend against Article 12(1)(a) of the Constitution which

guarantees a fair trial, by virtue of the provisions of Article 80(3) and 140(1) to

which reference has already been made. The underlying practical reason for

the leave to appeal procedure is to guard against abuse vis-à-vis appeals that

are devoid of merit by protecting the Supreme Court from the burden of

having to deal with appeals in which there are no reasonable prospects of

success. See: S v Pennington and Another 1999(2) SACR 329 at 341a-b; S v

Rens 1996(1) SACR 105 CC at 112i. In any event, it would be undesirable to

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allow unmeritorious and, therefore, hopeless cases to go directly to the

Supreme as such appeals would only serve to prejudice the speedy resolution

of those cases which have sufficient substance to justify an appeal. Cf. S vs

Rens, supra, at 112a.

[13] THE PETITION PROCEDURE

This procedure is available to every convict whose application for leave to

appeal against conviction and/or sentence has been unsuccessful. Such

convict may then approach the Chief Justice, by way of the petition

procedure, for leave to appeal. This procedure entails a reassessment of the

disputed facts and lacks full oral argument or full hearing of the matter in

open Court.

[14] In S v Rens, supra, where both the leave to appeal and the petition

procedures were considered, the Constitutional Court, relying upon decisions

of the European Court of Human Rights, came to the conclusion, at 111e-

112a (paras 24-25), that the absence of oral argument or a complete

rehearing does not per se mean that the procedure is unfair. Furthermore,

the Court made it clear in the judgment that “it cannot be in the interests of

justice and fairness to allow unmeritorious and vexatious issues of procedure,

law or fact to be placed before three judges of the appellate tribunal sitting in

open Court to rehear oral argument. The roll would be clogged by hopeless

cases, thus prejudicing the speedy resolution of those cases where there is

sufficient substance to justify an appeal.” See also S v Twala (South African

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Human Rights Commission Intervening) 1999(2) SACR 622 CC at 631b-d). I

share the view that, in the context of the petition procedure, lack of oral

argument or a complete rehearing does not per se mean that the procedure is

unfair as it cannot be in the interests of justice and fairness to allow hopeless

and, therefore, undeserving cases to be placed before the Supreme Court in

open Court.

[15] For the reasons given above, I find that the leave to appeal and the

petition procedures stipulated in section 316 of the Act are not inconsistent

with Article 12(1)(a) of the Constitution.

[16] In considering an application for leave to appeal, such as the present

one, the proper test is whether another Court may reasonably come to a

different conclusion. It follows that, although I remain satisfied that the

applicants were, to all intents and purposes, properly convicted and

sentenced, in view of the complexity of the case in terms of the multifarious

issues that arise, coupled with the sheer enormity of the matter, the Supreme

Court might come to a different conclusion.

[17] In the circumstances, the following order is made:

1. The challenge that the leave procedure as well as the petition

procedure in terms of section 316 of the Criminal Procedure Code

are unconstitutional fails in its entirety and it is accordingly

dismissed.
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2. All the applications for leave to appeal against convictions and

sentences are hereby granted.

____________________
SILUNGWE, AJ
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COUNSEL ON BEHALF OF THE APPLICANTS NO. 2, 7 AND 9:

Mr Murorua

Instructed by: Murorua & Associates

COUNSEL ON BEHALF OF THE APPLICANT NO. 10:

Mr Neves

Instructed by: Neves & Associates

COUNSEL ON BEHALF OF THE RESPONDENT:

Adv. Small

Instructed by: Office of the Prosecutor General