Constitutional law workshop 6

Citation of the case: Matengu v Minister of safety and security and others ( HC- MD- CIV-
MOT- GEN-2017/ 00101)[2017] NAHCMD 127 ( 27 April 2017)

2. Facts of the judgment

The facts of the case are stipulated in para 3 of the appeal judgment, hence for the sake of
restating the facts as the question asks. The applicant (Cletius Simataa Matengu) who stays from
the Zambezi Region was serving a 13 years imprisonment sentence , which was imposed on
him ,on 18 March 2015, he was, thus, convicted on a charge of rape. In that assumption he was
incarcerated at the Hardap Correctional Facility.
On the 24th of March, he approached the High Court on an urgent basis by way of a notice of
motion [ para 1 of the appeal judgment] . The applicant wanted the court to order the respondents
[ the Minister of safety and security, the Head of Prisons of Hardap Correctional Facility and the
Commissioner- General of Prisons] to transfer him to the Divundu Correctional Facility which is
located in the Zambezi Region, where he wanted to serve his remaining sentence. In his reasons
for the granting of order, he elucidated that he is suffering ill health and thus, he wants to be
closer to his family members and friends [ depicted from para 3 of the judgment].
However, the respondents opposed the application and they raised two points in limine. The first
point relates to the urgency of the application, the respondents contended that the affidavit in
support of the application does not go in accordance with requirements of rule 73(4) . The second
point raised was the relief sought by the applicant, the respondents argued that this relief was
incompetent.

3. One question of law relating to topic 6 which the court had to decide

The question of law in relation to topic 6 that had to be decided by the court is whether it is
appropriate for the court to, in the light of the doctrine of the separation of powers make any
order directing anyone of the respondents to transfer the applicant from one Correctional Facility
to another Correctional Facility.

4. Explain how the question of law in 3 above relate to Topic 6

As the doctrine of the separation of powers duly recognizes the existence of three main branches
of the government: The Legislature, the Executive and the Judiciary. The constitution provides a
broad definition of the scope of the Executive function, thus this includes the implementation of
law, policy and administration. With that being encapsulated, the question of law in 3 relates to
topic 6 on the grounds whether it’s possible for the court to order a member of cabinet to transfer
the applicant to another Correctional Facility within the hallmark of separation of powers.

5. The reasoning of the court and how the court decided the question of law relating to
topic 6

It was held that the point of departure in an understanding of the model of separation of powers
upon which our constitution is based, must be the text of our constitution. The court gave
reference in terms of Article 40 ,the members of the Cabinet have the constitutional power to
carry out functions conferred on them by the law. The role of the court is, however, limited to
them intervening in the performance of functions by the branches of government in order to
prevent the constitution from being transgressed [ see in the court’s holdings].

In para 8 of the judgment it was markedly stipulated that ‘ the principle of separation of powers,
recognises the functional independence of branches of government ‘ .Hence the principle of
checks and balances focuses mainly on the desirability of ensuring that the constitutional order
hamper the three main branches from usurping power from one another.

The court also used case law whereby the principle of separation of powers was taken into
consideration.[ para 9 and para 10] of the judgment.

Lastly in para 15 it is stated that the intervention of the court would only be appropriate if the
applicant vindicated that the Commissioner- General acted unlawfully in exercising of his
powers.