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IN THE HIGH COURT OF NAMIBIA

MAIN DIVISION
CASE NO.: (A) 5/2018
In the matter between:
MARLETTE PAUL APPLICANT

and

THE ATTORNEY GENERAL 1ST RESPONDENT

MINISTER OF JUSTICE 2ND RESPONDENT
THE MINISTER OF SAFETY AND SECURITY 3RD RESPONDENT
THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA 4TH RESPONDENT

APPLICANT’S HEADS OF ARGUMENT

A. INTRODUCTION TO THE APPLICATION

1. The applicant (“Ms Paul”), is the mother of John Paul (“the deceased”),
who died as a result of one of the shots fired by Sergeant Van der Merwe, of
which one pierced his heart.

2. Ms Paul acts in a representative capacity of the deceased’s family and

seeks orders:

2.1 Declaring that Section 49(2) of the Criminal Procedure Act1

(“CPA”) is inconsistent with the Constitution and invalid;
2.2 Directing the respondents to comply with their constitutional and
statutory obligations as declared by this Court; and
2.3 Awarding her costs

B. THE CONSTITUTIONAL AND STATUTORY FRAMEWORK

3. Article 115 of the Namibian Constitution2 provides that there shall be an

Act of Parliament enacted, to provide for the establishment of the Police Force,
for securing internal security and the maintenance of law and order. The Police

1
Criminal Procedure Act 51 of 1977.
2
Namibian Constitution Act 1 of 1990.
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Act was subsequently enacted in 1990,3 and provides for the functions, powers
and duties of the Police Force.

4. These functions are provided for under Section 13 of Act 19 of 1990,

which states that the functions of the force are:
“(a) the preservation of the internal security of Namibia;
(b) the maintenance of law and order;
(c) the investigation of any offence or alleged offence;
(d) the prevention of crime; and
(e) the protection of life and property”

5. The framework within which the above stated functions are to be

performed by police officers is provided for in section 49 of the Criminal
Procedure Act 1977, which states:

49. Use of force in effecting arrest

(1) If any person authorised under this Act to arrest or to assist in
arresting another, attempts to arrest such person and such
person-
(a) resists the attempt and cannot be arrested without the
use of force; or
(b) flees when it is clear that an attempt to arrest him is
being made, or resists such attempt and flees;
the person so authorised may, in order to effect the arrest, use
such force as may in the circumstances be reasonably necessary
to overcome the resistance or to prevent the person concerned
from fleeing.
(2) Where the person concerned is to be arrested for an offence
referred to in Schedule 1 or is to be arrested on the ground that
he is reasonably suspected of having committed such an offence,
and the person authorised under this Act to arrest or to assist in
arresting him cannot arrest him or prevent him from fleeing by
other means than by killing him, the killing shall be deemed
justifiable.

6. Subsection (1) above, deals with the use of force in general, and
subsection (2) specifically with the use of deadly force. The overarching issue
in this application will however only focus on the constitutionality of section
49(2), specifically in light of the provisions contained in Articles 6, 8 and 22 of
the Namibian Constitution.

3
Namibian Police Act 19 of 1990.
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7. In seeking this declarator, key principles of constitutional interpretation

should be observed. These amongst others include the supremacy of the
constitution, and the fact that statutory provisions remain in force by virtue of
Article 140(1) “until repealed or amended by Act of Parliament or until they are
declared unconstitutional by a competent Court”. This is what this court is called
upon to adjudicate on.

C. THE CONSTITUTIONALITY OF SECTION 49(2)

8. Ms Paul seeks a declaration that section 49(2) of the CPA is inconsistent

with the Constitution and invalid on the grounds that it infringes various
fundamental rights afforded to a suspect by the Constitution. The fundamental
rights referred to above are amongst others, the right to life, dignity and bodily
integrity.

9. The right to life is a human right which is immediately realizable and an

indispensable means of realizing other human rights. Article 6 of the Namibian
Constitution states:
“The right to life shall be respected and protected. No law may prescribe
death as a competent sentence. No Court or Tribunal shall have the
power to impose a sentence of death upon any person. No executions
shall take place in Namibia.”
10. The purpose of the repeated restatements of the word ‘no’ in article 6 is
made clear by reading the preamble to the Constitution which states that: “these
rights have for so long been denied to the people of Namibia by colonialism,
racism and apartheid”.4 On this basis, we accordingly submit that an
infringement of article 6 of the Constitution has been established.

11. Ms Paul also seeks to have section 49(2) declared invalid on the basis
of the right to dignity (article 8), and the presumption of innocence [article
12(1)(d)]. The right to human dignity is equivalent to the common law concept
of dignitas, which relates to an individual’s sense of self-worth, and constitutes
an affirmation of the worth of human beings in our society. 5 Human dignity
therefore informs the interpretation of other rights.

12. The Constitutional terms of article 8 are entrenched with the following
words:
“(1) The dignity of all persons shall be inviolable.
(2) (a) In any judicial proceedings or in other proceedings before any
organ of the State, and during the enforcement of a penalty,
respect for human dignity shall be guaranteed.
(b) No persons shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment.”

4
The preamble can be used in the interpretation of a substantive provision of the Constitution.
5
Khumalo & Others v Holomisa 2002(5) SA 401 (CC) [27].
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13. As a basis for a new political order and the fundamental nature of the
rights to life and human dignity, the founders of our Constitution saw it prudent
to have them entrenched under the bill of rights chapter. Courts have also
described these rights to be the most important rights of all human rights. 6

14. We now consider the right to be presumed innocent until proven

guilty in article 12(1)(d) of the Namibian Constitution. A presumption as defined
by Elliot and Phipson is a conclusion which may be or must be drawn in the
absence of contrary evidence.7 We submit that this presumption should be
interpreted in line with the purpose of effecting an arrest.

15. Author T Van der Walt opines that the purpose of effecting an arrest is
to bring persons suspected of having committed a(n) offence(s) to justice before
a court of law. 8 To this effect, article 12(1)(d) of the Namibian Constitution
states that:
(d) All persons charged with an offence shall be presumed innocent until
proven guilty according to law, after having had the opportunity of calling
witnesses and cross-examining those called against them.
16. We wish to state further that the above presumption has the effect on
the rules relating to the burden of proof which requires the accused’s guilt to be
proved beyond a reasonable doubt by the alleging party. Whilst the purpose of
effecting an arrest as discussed above is to bring a suspect before a court of
law for possible prosecution, this can never be the case if the suspect dies.

17. The justification enquiry. This court will also have to determine
whether the entrenched rights claimed above and alleged to be infringed,
constitute an unjustifiable limitation on the rights of an individual.

18. Article 22 of the Namibian Constitution states that:

“Whenever or wherever in terms of this Constitution the limitation of any
fundamental rights or freedoms contemplated by this Chapter is
authorised, any law providing for such limitation shall:
(a) be of general application, shall not negate the essential
content thereof, and shall not be aimed at a particular
individual;
(b) specify the ascertainable extent of such limitation and
identify the Article or Articles hereof on which authority to
enact such limitation is claimed to rest.”
19. It is our submission that in addition to the above provisions, limitations
should also be reasonable and justifiable.9 Further to this, if any party to these
proceedings seeks to uphold the statutory provision in question, the ‘onus’

6
S v Makwanyane & Another 1995(3) SA 391 (CC) [329].
7
Derek, WE & Phipson SL. 1987. Elliot and Phipson Manual of the Law of Evidence 12th Ed, p. 77.
8
Van der Walt, T. The use of force in effecting arrest in South Africa and the 2010 bill: a step in the
right direction? PER/ PELJ 2011(14)1. 150.
9
Govender v Minister of Safety and Security [2001] 4 SA 273 (SCA) 281 par 14.
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would be on it to prove that the provision is a justifiable limitation of fundamental

rights, and also set out the purpose of the limitation and the facts necessary to
assess the legitimacy of this purpose and the efficacy of its execution.10

20. In satisfaction of the burden, some argue that the protection of the safety
and security of all persons is the object of section 49.11 We however maintain
our legal argument that this should also be brought into balance with the
constitutional rights also enjoyed by the fleeing suspect.12

21. In order to properly interpret section 49(2) in the present constitutional

enquiry, it is also necessary to consider Schedule 1 to the CPA.13 The
schedule provides a list of the offences in terms of which an arresting officer
can use deadly force in order to prevent the suspect from fleeing.

22. Considering the purpose of effecting an arrest, it is our submission that

the use of deadly force on an individual resisting arrest can never be justified
as an effective mechanism of effecting arrest other than the high probability of
it resulting in the death of the individual in question.

D. THE DESIRE FOR LEGISLATIVE REFORM IN NAMIBIA

23. Courts are empowered and have the discretion to allow the relevant
authorities to correct any law within a specified period of time and subject same
to the conditions, instead of declaring a law invalid. Until such correction or the
expiry of the period set by the court, whichever may be shorter, the impugned
law shall by virtue of article 25(1)(a), be deemed valid.

24. In the S v Williams14 case, the court held without deciding that: section
49(2) of the Criminal Procedure Act 1977 may conflict with articles 5 and 6 of
the Namibian Constitution. In view of these terms, Hannah J recommended that
the Law Reform and Development Commission “(LRDC)” 15 considers whether
section 49(2) she amended or repealed. The LRDC is responsible for reviewing,
reforming and developing Namibia’s legal landscape. It is our submission that
the above is evidence in support of the desirability for legislative reform.

E. FOREIGN COMPARATIVE LAW

25. In what follows below, Namibia’s current legal position will be compared
with that of other jurisdictions such as: South Africa and the United Kingdom to
ensure that Namibia’s proposed law regarding the use of force in effecting
arrest is clear, simple, certain and ultimately the best possible.

10
Minister of Home Affairs v NICRO & Others 2005(3) SA 280 (CC) [34].
11
Botha, R and Visser J. 2012. Forceful arrests: an overview of section 49 of the Criminal Procedure
Act 51 of 1977 and its recent amendments. PER/ PELJ 2012(15)2. P. 349.
12
Govender v Minister of Safety and Security [2001] 4 SA 273 (SCA) 281 par 12-14.
13
The Schedule contains a list of offences, ranging from those that are serious and with an element of
violence, and other petty offences.
14
S v William 1992 NR 268 (HC).
15
Established by the Law Reform and Development Commission Act 29 of 1991.
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26. South Africa and the United Kingdom have specifically been selected
because of the English common law roots which form the basis of the Criminal
Procedure Act.16

27. South Africa. Although South Africa is listed as one of the countries with
the gravest crime statistics in the world, and had a similar legislative mechanism
as that of Namibia,17 the nature and extent of section 49 has always been
subject to criticism, even before the advent of democracy and the
Constitution.18

28. In 2001, the Supreme Court of Appeal in Govender v Minister of Safety

and Security19 was the first court to place section 49 under the microscopic lens
of the Constitution. Instead of declaring section 49 unconstitutional, the
Supreme Court of Appeal suggested a test or prerequisite requirements to the
use of force in order.20

29. This however did not save section 49 from further constitutional scrutiny
as the Constitutional Court of South Africa in 2002 confirmed the
unconstitutionality of this section in the Ex Parte Minister of Safety and Security:
In re S v Walters case, and declared it invalid.21

30. The court also reasoned that the list of offences contained in Schedule
1 did not distinguish between serious and less serious offences, and rendered
it inappropriate to “permit a constitutionally defensible line to drawn for the
permissible use of deadly force.”22 This invalidation declarator led to the reform
process to redefine section 49.

31. The South African legislature passed an amendment of section 49, and
currently reads:
(2) If any arrestor attempts to arrest a suspect and the suspect resists
the attempt, or flees, or resists the attempt and flees, when it is clear that
an attempt to arrest him or her is being made, and the suspect cannot
be arrested without the use of force, the arrestor may, in order to effect
the arrest, use such force as may be reasonably necessary and
proportional in the circumstances to overcome resistance or to prevent
the suspect from fleeing: Provided that the arrestor is justified in terms
of this section in using deadly force that is intended or is likely to cause
death or grievous bodily harm to a suspect, only if he or she believes on
reasonable grounds-

16
Du Toit et al. 1987-2010. Commentary on the Criminal Procedure Act 5-31.
17
Namibia adopted the CPA from South Africa by virtue of Proclamation 19 of 1921.
18
Botha, R and Visser J. 2012. Forceful arrests: an overview of section 49 of the Criminal Procedure
Act 51 of 1977 and its recent amendments. PER/ PELJ 2012(15)2. P. 349.
19
Govender v Minister of Safety and Security [2001] 4 SA 273 (SCA).
20
Van der Walt, T. The use of force in effecting arrest in South Africa and the 2010 bill: a step in the
right direction? PER/ PELJ 2011(14)1. 138.
21
T Van der Walt. The use of force in effecting arrest in South Africa and the 2010 bill: a step in the right
direction? PER/ PELJ 2011(14)1. 138.
22
Ex Parte Minister of Safety and Security: In re S v Walters [2002] 4 SA 613 (CC) 616.
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(a) that the force is immediately necessary for the purpose of

protecting the arrestor, any person lawfully assisting the arrestor
or any other person from imminent or future death or grievous
bodily harm;
(b) that there is a substantial risk that the suspect will cause
imminent or future death or grievous bodily harm if the arrest is
delayed; or
(c) that the offence for which the arrest is sought is in progress
and is of a forcible and serious nature and involves the use of life
threatening violence or a strong likelihood that it will cause
grievous bodily harm.23
32. South Africa’s legislative and policy amendment regarding the use of
force is therefore in compliance with the constitution and the legality principle,
in that the declaration of unconstitutionality was ruled to only apply
prospectively.24

33. The above is also in line with the factors determined by the constitutional
court that should be considered by police officials when performing arrests
namely that:
(a) The purpose of arrest is to bring before court for trial persons
suspected of having committed offences;
(b) Arrest is not the only means of achieving this purpose, nor always
the best;
(c) Arrest may never be used to punish a suspect;
(d) Where arrest is called for, force may be used only where it is
necessary in order to carry out the arrest;
(e) Where force is necessary, only the least degree of force reasonably
necessary to carry out the arrest may be used;
(f) In deciding what degree of force is both reasonable and necessary,
all the circumstances must be taken into account, including the threat of
violence the suspect poses to the arrestor or others, and the nature and
circumstances of the offence the suspect is suspected of having
committed, the force being proportional in all these circumstances;
(g) Shooting a suspect solely in order to carry out an arrest is permitted
in very limited circumstances only;
(h) Ordinarily, such shooting is not permitted unless the suspect poses
a threat of violence to the arrestor or others or is suspected on
reasonable grounds of having committed a crime involving the infliction
or threatened infliction of serious bodily harm and there are no other
reasonable means of carrying out the arrest, whether at that time or later;

23
Snyman, CR. 2008. Criminal Law 130.
24
Burchell, J. 2011. South African Criminal Law and Procedure Vol 1: General principles of criminal
law 4th Edition 203.
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(i) These limitations in no way detract the rights of an arrestor attempting

to carry out an arrest to kill a suspect in self-defence or in defence of any
other person.25
34. It is on this basis that we submit that forceful arrests in Namibia should
also be regulated.

35. The United Kingdom. Before the enactment of the Criminal Law Act in
1967, the United Kingdom applied English common law which permitted
forceful arrests, and this was the basis upon which the Criminal Procedure Act
1977 was premised.26 Section 3 of the Criminal Law Act of 1967 however
repealed the English common law rules which authorized the use of force.

F. CONCLUSION

36. As it was already held in the Government of the Republic of South Africa
v Basdeo27 and another which was authoritatively cited by the Namibian High
Court in the Ndamwoongela v the State: ‘Section 49(2) should not, and indeed
cannot, be regarded as a licence for the wanton killing of innocent people, nor
can any attempt to extend its operation to cases not falling within its ambit be
countenanced.’28

37. By way of a comparative with foreign jurisdictions and other authorities

referred to above, we submit that a proper case has been made out for the
declaratory orders sought, and have forceful arrests regulated.

38. To leave the status quo unchanged will amount to allowing the police to
perform a very dangerous constitutional breach.

G. CITATION OF FOREIGN AUTHORITIES- RULE 130

39. Counsel hereby certifies in terms of rule 130 of the Rules of the High
Court that:

39.1 Where reliance is placed in the heads of argument on foreign

authority in support of a proposition of law, counsel was unable,
after diligent search, to find Namibian authority on the proposition
of the law under consideration.

39.2 Counsel has satisfied himself that there is no Namibian law,

including the Namibian Constitution, that precludes the
acceptance by this Honourable Court of the proposition of law that
the foreign authority is said to establish.

25
Ex Parte Minister of Safety and Security: In re S v Walters [2002] 4 SA 613 (CC) 616.
26
Tennenbaum, AN. 1994 Journal of Criminal Law & Criminology 242.
27
Government of the Republic of South Africa v Basdeo and another 1996 (1) SA 355 (AD) at 368D - E.
28
Ndamwoongela v the State Ndamwoongela v the State (CA 43/2017) [2017] NAHCMD 282 (6 October
2017)
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DATED AT WINDHOEK ON THIS 31ST DAY OF MAY 2018

___________________________________
LOUIS BOTHA INCORPORATED
per: PIUS IIKWAMBI
LEGAL PRACTIONERS FOR
THE APPLICANT
UNIT 7, COMPETITION CENTRE,
ERF 8495 CHURCH STREET, WINDHOEK

LIST OF AUTHORITIES (CASE LAW, LITERATURE WORKS & STATUTES)

1. S v William 1992 NR 268 (HC)

2. Khumalo & Others v Holomisa 2002(5) SA 401 (CC)
3. S v Makwanyane & Another 1995(3) SA 391 (CC)
4. Minister of Home Affairs v NICRO & Others 2005(3) SA 280 (CC)
5. Govender v Minister of Safety and Security [2001] 4 SA 273 (SCA)
6. Government of the Republic of South Africa v Basdeo and another 1996
(1) SA 355 (AD) at 368D - E.
7. Ex Parte Minister of Safety and Security: In re S v Walters [2002] 4 SA
613 (CC)
8. Ndamwoongela v the State (CA 43/2017) [2017] NAHCMD 282 (6
October 2017)

9. Derek, WE and Phipson SL. Elliot and Phipson Manual of the Law of
Evidence 12th Ed. (Sweet and Maxwell 1987)
10. Van der Walt, T “The use of force in effecting arrest in South Africa and
the 2010 bill: a step in the right direction?” 2011 Potchefstroom Electronic
Journal (14) 1: 138-162
11. Botha, R and Visser J “Forceful arrests: an overview of section 49 of the
Criminal Procedure Act 51 of 1977 and its recent amendments” 2012
Potchefstroom Electronic Journal (15)2
12. Du Toit. E, De Jager FJ, Paizes A, Skeen A St Q, Van der Merwe S
Commentary on the Criminal Procedure Act (Juta Cape Town 1987-2010)
13. Snyman CR Criminal Law 5th Ed (Lexis Nexis Durban 2008)
14. Burchell J South African Criminal Law and Procedure Vol 1: General
principles of criminal law 4th Edition. (Juta Claremont 2011)
15. Tennenbaum AN “The Influence of the Garner decision on police use of
deadly force”1994 Journal of Criminal Law & Criminology 85(1):241-260

16. Criminal Procedure Act 51 of 1977 (Namibia)

17. Constitution of the Republic of Namibia Act 1 of 1990
18. Namibian Police Act 19 of 1990
19. The Law Reform and Development Commission Act 29 of 1991
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PARTY FILING

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