effect of Constitution on criminal procedure

UIVERSITY OF AMIBIA Table of contents

Table of cases ..................................................................................................................... iii
I. Introduction ............................................................................................................... 1

II. Constituting a liberal democratic society ............................................................ 1

A. Constitutional historical background ..................................................................... 1

B. Interpretation of constitutional criminal procedural provisions ............................ 3

III. The effect of the amibian Constitution on the development of criminal

procedure in amibia ....................................................................................................... 5

A. The authority of the judicial branch ....................................................................... 5

FACULTY OF LAW 1. The powers of South African courts ....................................................................... 5
2. The effect of Article 140 of the Constitution .......................................................... 7
3. The imprint of the Supreme Court of Namibia on the Namibian criminal
STUDET AME: Dunia Prince ZONGWE procedure ..................................................................................................................... 7
B. Presumption of innocence and legal subjectivity: The two lungs of the new
constitutional criminal procedural dispensation ............................................................ 8
STUDET UMBER: 200127780 1. Presumption of innocence ................................................................................... 9
2. Trial within a reasonable time ........................................................................... 10
3. Adequate facilities to prepare defence .............................................................. 11
COURSE: B. Juris 4. Legal representation .......................................................................................... 12
5. Theories of punishment ..................................................................................... 13
6. Arrest and detention .......................................................................................... 13
SUBJECT: Criminal Procedure C. The Prosecutor without the General ..................................................................... 14

IV. Conclusion: The Constitution as a new way of being, doing and…knowing . 16

SUBJECT CODE: LAW3310
V. List of References .................................................................................................... 17
LECTURER: Dr. J. N. Horn

TOPIC: The effect of the Namibian Constitution on the

development of criminal procedure in Namibia

DUE DATE: 7th May 2004

ii
 effect of Constitution on criminal procedure effect of Constitution on criminal procedure

S v. Acheson 1991 NR 1 (HC) ........................................................................................ 4, 9

S v. Amujekela 1991 NR 303 (HC) .................................................................................. 10
Table of cases
S v. Boois; S v. Thomas 1991 NR 455 (HC) .................................................................... 13
S v. Brand and Various Other Cases 1991 NR 356 (HC) ................................................. 13
Cases
S v. Bruwer 1993 NR 219 (HC) ........................................................................................ 12
De Roeck v. Campbell and Others (1) 1990 NR 28 (HC)................................................... 7
S v. Campbell and Others 1990 NR 310 (HC) .................................................................... 6
Ex Parte Attorney-General In Re: The Constitutional Relationship between the Attorney-
S v. Damaseb and Another 1991 NR 371 (HC) .................................................................. 9
General and the Prosecutor-General 1998 NR 282 (SC) ................................................ 5
S v. De Bruyn 1999 NR 1 (HC) ........................................................................................ 10
Ex Parte Attorney-General In Re: The Constitutional Relationship Between The
S v. De Wee 1999 NR 122 (HC) ....................................................................................... 14
Attorney-General And The Prosecutor-General 1998 NR 282 (SC) ...................... 14, 15
S v. Drayer and Another 1990 NR 237 (SC)....................................................................... 8
Ex Parte Attorney-General In Re: The Relationship Between The Attorney-General And
S v. Du Plessis and Another 1992 NR 74 (HC) .................................................................. 9
The Prosecutor-General 1998 NR 282 (SC) ................................................................. 15
S v. Haikele and Others 1992 NR 54 (HC) ......................................................................... 9
Ex Parte Attorney-General: In re Corporal Punishment by Organs of State 1991 NR 178
S v. Heidenreich 1995 NR 234 (HC) .......................................................................... 10, 11
(SC) ................................................................................................................................. 8
S v. Kamajame and Others 1993 NR 193 (HC) .................................................................. 9
Garces v. Fourche and Others 1997 NR 278 (HC) ........................................................... 14
S v. Kandovazu 1998 NR 1 (SC) ........................................................................................ 8
Government of the Republic of Namibia and Another v. Cultura 2000 and Another 1993
S v. Kapika and Others (1) 1997 NR 286 (HC) ................................................................ 14
NR 328 (SC) .................................................................................................................... 7
S v. Kau and Others 1995 1 (SC) ........................................................................................ 8
Julius v. Commanding Officer, Windhoek Prison and Others; Nel v. Commanding
S v. Khoeinmab 1991 NR 99 (HC) ..................................................................................... 9
Officer, Windhoek Prison and Others 1996 NR 390 (HC) ........................................... 13
S v. Kuzatjike 1992 NR 70 (HC) ...................................................................................... 13
Kauesa v. Minister of Home Affairs and Others 1994 NR 102 (HC) ................................. 2
S v. Likuwa 1999 NR 151 (HC)........................................................................................ 13
Kauesa v. Minister of Home Affairs and Others 1995 NR 175 (SC).................................. 5
S v. Lucas 1996 NR 323 (HC) .......................................................................................... 11
Koortzen and Others v. Prosecutor-General and Another 1997 NR 188 (HC) ................. 11
S v. Makwanyane 1995 (3) SA 391 (CC) ........................................................................... 5
Limbo v. President of the Republic of Namibia and Another 1992 NR 102 (HC) ............. 7
S v. Mbahapa 1991 NR 274 (HC) ..................................................................................... 13
Minister of Defence v. Mwandinghi 1993 NR 63 (SC) .................................................. 4, 7
S v. Minnies and Another 1990 NR 177 (HC) .................................................................. 10
Mwandingi v. Minister of Defence 1995 NR 91 (HC) ....................................................... 4
S v. Mwambazi 1990 NR 353 (HC) .................................................................................. 12
Namib Wood Industries (Pty) Ltd v. Mutiltha NO and Another 1991 NR 158 (HC)....... 12
S v. Nassar 1994 NR 233 (HC) ......................................................................................... 11
Olyvia Martha Ekandjo-Imalwa v. The Law Society of Namibia and the Namibian Law
S v. Ngunovandu 1996 NR 306 (HC) ............................................................................... 13
Association; The Law Society and The Namibian Law Association v. The Attorney-
S v. Pineiro 1991 NR 424 (HC) .......................................................................................... 9
General of the Republic of Namibia; The Prosecutor-General of the Republic of
S v. Rooyen and Another (HC) ......................................................................................... 13
Namibia; The Government of the Republic of Namibia and Olyvia Martha Ekandjo-
S v. Rooyen and Another 1992 NR 165 (HC)................................................................... 13
Imalwa Case No. (P) A55/03 (unreported) ................................................................... 15
S v. Sanders 1990 348 (HC) .............................................................................................. 12
R v. Steyn 1959 (1) SA 324 (A) ........................................................................................ 11

iii iv
 effect of Constitution on criminal procedure
S v. Scholtz 1998 NR 207 (SC) ........................................................................................ 11
S v. Shikunga and Another 1997 NR 156 (SC) .................................................................. 9
S v. Strauss 1990 NR 71 (HC) .......................................................................................... 13
S v. Strowitski 1994 NR 265 (HC) ................................................................................... 10
S v. T jiho 1991 NR 361 (HC) .......................................................................................... 13
S v. Tcoeib 1999 NR 24 (SC) ............................................................................................. 8
S v. Timotheus 1995 NR (HC) .......................................................................................... 14
S v. Titus 1991 NR 318 (HC)........................................................................................... 8,9
S v. Uahanga 1998 NR 160 (HC)...................................................................................... 10
S v. Van den Berg 1995 NR 23 (HC)............................................................................ 4, 10
S v. Van Wyk 1993 NR 426 (SC) ....................................................................................... 8
S v. Vries 1998 NR 244 (HC) ........................................................................................... 13
S v. Wasserfall 1992 NR 18 (HC) ....................................................................................... 9
S v. Wellington 1990 NR 20 (HC) .................................................................................... 12
S v. Willemse 1990 NR 344 (HC) .................................................................................... 12
S v. William 1992 NR 268 (HC) ....................................................................................... 14
S v.Soabeb and Others 1992 NR 280 (HC)....................................................................... 12
Swart v. Minister Affairs, Namibia 1997 NR 268 (HC) ..................................................... 4
The Government of the Republic of Namibia, the Director of Legal Aid, the Prosecutor-
General v. Geoffrey Kupuzo Mwilima and all other Accused In The Caprivi Treason
Case No.: SA 29/2001 (unreported) .............................................................................. 12
Van As and Another v. Prosecutor-General 2000 NR 271 (HC) ...................................... 10
Zigli v. Mcleod (1904) 21 SC 150 .................................................................................... 13
v 1
effect of Constitution on criminal procedure
I. Introduction
This paper discusses the effect of the Namibian Independence and the constitutional
impact on the national legal system, with the main aim of analysing its effect on the
development of criminal procedure in Namibia. Of special interest are the following
issues: the role and powers of the Prosecutor-General; the constitutional right to a fair
trial as set out in Article 12 of the Constitution, the effect of Article 140 of the Namibian
Constitution, the power of the South African courts before and after Independence; the
effect of democratisation in South Africa; and the influence of the Supreme Court of
Namibia.
II. Constituting a liberal democratic society
A. Constitutional historical background
A proper understanding of present-day Namibian law of criminal procedure is located in
Namibia’s past and a brief overview of Namibian legal history is well advised.
The dispute concerning Namibia which has frustrated the United Nations (“UN”) since its
establishment in 1945, has turned around South Africa’s illegal presence in Namibia and
Namibia’s struggle for self-determination1. On the one hand, the UN attempted to
influence the situation by exerting increased pressure from outside and, on the other
hand, South Africa strived for an ‘internal solution’ with a semblance of democracy and
which, it was hoped, would enjoy international ratification2. Under the C Mandate of the
League of Nations (“LoN”), South Africa (“SA”) was allowed to extend its judicial
system over the mandate territory, which it did until independence. This led to a rather
homogenous legal system in SA and Namibia3.
1
Naldi, G. 1995. Constitutional Rights in Namibia: A comparative analysis with international human
rights. Kenwyn: Juta & Co. Ltd. p.1.
2
Hinz, M.O. 1995. Constitutional and human rights. Course material. Windhoek, University of Namibia
(unpublished). p.8.
3
Schulz, S. 2000. Legal interpretation and the Namibian Constitution (a paradigm shift: Through reason
towards justice). In: Hinz, M.O.; Amoo, S.K. & Van Wyk, D. The constitution at work: 10 years of
Namibian nationhood. Proceedings of the Conference Ten Years of 'amibian 'ationhood . Windhoek,
September 11-13, 2000.p.192.
 effect of Constitution on criminal procedure
The period 1946-1970 covered an important number of developments of legal
significance, one of the most important being the introduction of apartheid and its
concomitant legislation in Namibia. In 1946, the LoN was dissolved and SA refused to
place the then South West Africa (“SWA”) under the UN Trusteeship System. In 1950,
the International Court of Justice (“ICJ”) stated that SA remained bound by its
obligations under the Mandate and that the UN assumed supervisory powers4. In 1966 the
UN General Assembly terminated SA’s Mandate and transferred control over SWA to the
UN. In that same year, the South West Africa People’s Organization (“SWAPO”)
initiated an armed struggle against the South African occupiers in Namibia. The
following year a UN Council for Namibia was established and entrusted with the task of
administering the territory and preparing it for independence. In 1971, the ICJ declared
that the principle of self-determination was applicable to Namibia and that SA’s presence
in Namibia was illegal5.
The next period 1975-1989 may be seen as the run-up to Namibian independence, with
the independence of Angola and Mozambique altering the regional strategic balance for
SA. In 1976 the UN Security Council passed Resolution 385 whereby SA was required to
withdraw from Namibia in favor of a UN administration which would oversee free and
fair elections. In 1977, the South African legislature passed the Criminal Procedure Act,
51 of 19776. In 1978, the Contact Group (Canada, France, United Kingdom, USA and
Germany), through Security Council Resolution 435 (“Resolution 435”) made proposals
for the purpose of independence in Namibia. The 1982 Constitutional Principles were
7
later incorporated in that Resolution . In 1988, after the defeat of South African forces in
the battle of Cuito Cuanavale in Southern Angola; SA, Angola and Cuba agreed to
implement Resolution 435, providing for Namibian independence. Eventually, the 72-
4
International Status of South West Africa 1950 ICJ Reports 128.
5
Namibia Case 1971 ICJ Reports 16.
6 8
This Act, together with some other security legislation provided the legal basis on which most human
rights violations occurred (O’Linn. B. 2003. Namibia: The sacred trust of civilization: Ideal and reality.
Windhoek: Gamsberg Macmillan (Pty) Ltd.p.197ff. See also Lobban, M. 1996. White man’s justice: South
African political trials in the black consciousness era. Oxford: Clarendon Press.p.249ff. (for an account of
security legislation in South Africa for the period 1960-1979)).
7
Wiechers, M. 1990. Namibia: The 1982 constitutional principles and their legal significance. SAYIL. Vol.
15 1989/90.p.21. The High Court of Namibia in Kauesa v. Minister of Home Affairs and Others 1994 NR
102 (HC) questioned whether the ‘1982 Constitutional Principles’ and the Universal Declaration of Human
Rights have become part of the law of Namibia.
2 3
effect of Constitution on criminal procedure
seat Constituent Assembly was elected and proceeded to draft the Constitution, which
was unanimously approved in February 1990.
On 21st March 1990, Namibia achieved independence and the Constitution was
promulgated.
B. Interpretation of constitutional criminal procedural
provisions
Criminal provisions are to be found in Article 6 (right to life), 7 (right to liberty), 8
(respect for human dignity), 10 (equality and freedom from discrimination), 11 (arrest
and detention), 12 (fair trial), 13 (privacy), 22 (limitation on rights and freedoms8), 24
(derogation) and 25 (enforcement of fundamental rights and freedoms).
The advent of a justiciable supreme Constitution carried with it a paradigm shift. In the
old dispensation, the courts were confined to a ‘his master’s voice’ role and had to
ascertain and apply the ‘intention of the legislature’, in keeping with the pervasive
sovereignty of parliament9.
With the supremacy of the Constitution10, all forms of conduct and acts, including Acts of
Parliament, are amenable to constitutional scrutiny. Albie Sachs, a judge of the
Constitutional Court of SA, stated that constitutional review was not simply about
‘conduct control’ but also about ‘norm control’ (i.e. control of the validity of normative
instruments such as legislation).
In terms of Article 22 any contemplated limitation on the rights of the accused: (1) must be of general
application, must not negate the essential content of the rights, and it must not be aimed at a particular
accused; and (2) the limitation must specify its ascertainable extent and must identify the article or articles
on which authority to enact the limitation is claimed to rest. Pendukeni, I. I. (1998. Victim’s rights in
Namibia. University of Namibia (unpublished LLB dissertation)) concluded that the constitutional
emphasis on Article 12, or the rights of the accused, are counterbalanced by such provisions as Article 25
of the Constitution.
9
Botha, C.1998. Statutory interpretation: An introduction for students. 3rd edition. Kenwyn: Juta & Co. Ltd.
10
Article 1(6) of the Constitution stipulates: “This Constitution shall be the Supreme Law of Namibia”.
 effect of Constitution on criminal procedure
Generally speaking of constitutions, ordinary rules of interpretation are not applicable.
Written in less precise language, the Constitution requires of constitutional interpreters a
11
greater amount of elaboration than is the case for other pieces of legislation .
The new judicial approach consisting in construing the Constitution purposively and
generously12 and in construing statutes constitutionally has been described as ‘value-
orientated’13.
On one of the earliest occasions to interpret the Constitution, Mohamed AJA, as he then
was, forcefully declared, in what has become a sort of constitutional anthem, that the
Constitution is a ‘mirror reflecting the national soul14’ and that15:
“The spirit and tenor of the Constitution must preside over and permeate the process of judicial
interpretation and discretion”.
The learned judge said that the spirit of the Constitution and its insistence upon protection
of personal liberty in Article 7, respect for human dignity in Article 8, the right to be
brought to trial within a reasonable time in Article 12(1)(b) and the presumption of
innocence in Article 12(1)(d) had to be had regard to when adjudicating upon the
adjournment of a criminal trial with the accused in custody.
In Mwandingi v. Minister of Defence16 the Court maintained that the Constitution is to be
interpreted generously, avoiding ‘the austerity of tabulated legalism’ to give to
individuals the full measure of the fundamental rights and freedoms referred to therein,
that is, an interpretation that is most beneficial to the widest possible amplitude of its
11
Swart v. Minister Affairs, 'amibia 1997 NR 268 (HC)(held¸that Constitutions are not to be interpreted
like any regulatory statute because: (1) they are more important, they form the foundation of all laws; and
(2) are intended to be much longer-lived, continuing to operate in conditions unimagined when first
formulated.)
12
S v. Van den Berg 1995 NR 23 (HC). See also Minister of Defence v. Mwandinghi 1993 NR 63 (SC)
(held, that the declaration of fundamental human rights in the Namibian Constitution had to be interpreted
by applying the international human right norms and had to be given a generous, broad and purposive
interpretation).
13
Botha, C.op.cit.p.1, and Horn, J. N. 2000. The unique constitutional position of the Prosecutor-General
of Namibia and the effect of the independence of the office on the functioning of the prosecuting authority
in relationship with the Minister of Justice and the Attorney-General. University of South Africa
(unpublished LLM dissertation).
14
This approach, however, reinforces the indeterminacy of constitutional adjudication in light of the
emerging view of searching history for national values as being a profoundly subjective account of selected
events in the past (De Vos, P. 2001. A bridge too far? History as context in the interpretation of the South
African Constitution. SAJHR. Vol. 17 Part 1 pp.1-33.)
15
S v. Acheson 1991 NR 1 (HC).
16
1995 NR 91 (HC).
4 5
effect of Constitution on criminal procedure
powers17. However, two caveats must be noted. Firstly, when construing the Constitution
words must convey their ordinary meaning and content. Reading into those words
extraneous meanings would result in a distortion of the Constitution18. Secondly, the
function of courts in interpreting the Constitution is not an exercise in ‘head counting’19.
This means that, even though the traditions and values of the Namibian people guide
constitutional interpretation, it is not the duty of courts to enforce the will of the
majority20.
III. The effect of the amibian Constitution on
the development of criminal procedure in
amibia
A. The authority of the judicial branch
1. The powers of South African courts
Before Independence, the administration of justice in Namibia was detained by the Union
of South Africa by virtue of relevant provisions of the Treaty of Versailles after the First
World War. The first Chief Justice of independent Namibia, H-J Berker, summarized the
pre-independence judicial position as follows21:
“[T]he whole administration of justice then existing in the Union of South Africa, including the
structure of the courts as well as the appointment of Judges, was introduced and applied to the then
South West Africa. The result was, that apart from the Lower Courts there was one Superior Court
established, which was part of the umbrella Supreme Court of South Africa and was therefore cited as
the South West African Division of the Supreme Court.”
17
Ex Parte Attorney-General In Re: The Constitutional Relationship between the Attorney-General and the
Prosecutor-General 1998 NR 282 (SC).
18
Kauesa v. Minister of Home Affairs and Others 1995 NR 175 (SC).
19
Du Plessis, M. 2002. Between apology and utopia – The Constitutional Court and public opinion.
SAJHR. Vol. 18 Part 11.pp.1-40.
20
Chaskalson P in S v. Makwanyane 1995 (3) SA 391 (CC). The counter-majoritarianist aspect of
constitutional interpretation seems to be very controversial and generally misunderstood.
21
Konrad-Adenauer-Stiftung/Namibia Institute for Democracy. 1994. Namibia: Views and perspectives
since Independence. Windhoek: Konrad-Adenauer-Stiftung/Namibia Institute for Democracy. p.46.
 effect of Constitution on criminal procedure
Together with the other South African divisions, the South West African Division had a
right of appeal to the highest appeal court, designated the Appellate Division of the
Supreme Court of SA, which was situated in Bloemfontein.
Proclamation 21 of 1919 (SWA)22 made the South African common law (i.e. Roman-
Dutch law) applicable to South West Africa. By virtue of the doctrine of stare decisis, the
decision of South African courts, especially the Appellate Division, had binding effect in
the South West African courts. This further signifies that the South African law of
criminal procedure, as developed by the common law and precedents (i.e. case law), was
uniformly observed in SWA.
st
However, after independence on 21 March 1990, Namibia officially and formally
severed the political and legal umbilical cord that connected it to SA and became an
independent State for all purposes. Article 78 gave the new judicial system the structure
that it currently has, to wit:
1. a Supreme Court of Namibia23 (the new highest court of appeal)
2. 24
a High Court (the erstwhile South West African Division of the Supreme Court of SA )
3. lower courts (including magistrates’ courts and community courts).
The High Court of Namibia has original jurisdiction to hear and adjudicate upon all
25
criminal prosecutions and all appeals from lower courts . The Namibian Courts do no
longer have to follow and apply decisions from South African Courts, including the
Appellate Division. In terms of Article of 81, which is a partial codification of the stare
decisis doctrine in the Namibian State jurisdiction, the decisions of the Supreme Court of
Namibia are binding on all other courts in Namibia.
A number of revealing matters deserve mentioning at this juncture. Firstly, the fact that
Article 66(1) confers constitutional status upon common law, insofar as it does not offend
the Constitution and its Bill of Rights, entails that South African criminal procedure, as
applied at common law and developed by South African pre-independence judicial
decisions, still applies in Namibia.
22
Hosten, W.J.; Edwards, A.B.; Bosman, F. & Church, J. 1997. Introduction to South African law and
legal theory. 2nd edition. Durban: Butterworth Publishers (Pty) Ltd.p.360.
23
The Supreme Court and the High Court of Namibia both have the ‘inherent jurisdiction which vested in
the Supreme Court of South-West Africa immediately prior to the date of Independence’ (Article 78(4))
and the duty to interpret, implement and uphold the Constitution (Article 79(2)).
24
In S v. Campbell and Others 1990 NR 310 (HC) the Court held that the High Court has the same
jurisdiction as the Supreme Court of SWA had before.
6 7
effect of Constitution on criminal procedure
Secondly, the influence of SA, even after democratisation in both SA and Namibia,
comes from the fact that, apart from historical common destiny, the two jurisdictions
have many things in common: They both gained Independence through a controlled
democratic process, they have similar constitutions, similar legislation and they both
utilize the Criminal Procedure Act, 51 of 1977, though they have amended the latter at
different places26. In particular, the liberation of the South African legal system from
apartheid and the legally innovative Constitutional Court have accumulated a
considerable jurisprudence in criminal procedure that the Namibian courts can use
persuasively to enlighten its determinations of law.
2. The effect of Article 140 of the Constitution
Article 140 of the Constitution has been interpreted in a few cases27, but its effect was
succinctly stated as thus:
“Namibia has not totally relinquished the South African legal legacy. Thus, the ordinary law of the
land, or common law, continues to be Roman-Dutch law28.
Stated differently, this means that apartheid legislation and its attendant racial, social and
political slant, went through the porous borders of the Constitution and some of these
legislation are still applicable in Namibia. This, as will become evident below, had far-
reaching consequences for the fairness of criminal proceedings.
3. The imprint of the Supreme Court of Namibia on the
Namibian criminal procedure
As the ‘final link in the legislative chain’29, the ultimate architect of the Namibian
constitutional criminal law, whether substantive or procedural, is the Supreme Court of
Namibia. Notwithstanding the fact that, at times court decisions constituted a piecemeal
25
Article 80(2).
26
To this can be added the fact that many members of the Namibian legal fraternity have been trained in
South Africa, which suggests a gradual, indirect and subtle South African legal influence.
27
Government of the Republic of 'amibia and Another v. Cultura 2000 and Another 1993 NR 328 (SC);
Limbo v. President of the Republic of 'amibia and Another 1992 NR 102 (HC); De Roeck v. Campbell and
Others (1) 1990 NR 28 (HC); and Minister of Defence v. Mwandinghi 1993 NR 63 (SC).
28
Naldi, G. N. op.cit.p.24.
29
Botha, C.op.cit.p.115.
 effect of Constitution on criminal procedure
dealing with legal issues and that, as a consequence, there exists poor conceptual
frameworks with regard to certain questions of law, the Supreme Court succeeded in
putting up a blueprint for action in the public domain30.
In the case S v. Shikunga and Another31 it was held that the presumption in s 217(1)(b)(ii)
permitting a court, in certain circumstances, to convict an accused whose guilt had not
been established beyond reasonable doubt is inconsistent with Article 12 (fair trial). That
decision reversed an earlier decision made by the High Court in S v.Titus32, where the
Court allowed a presumption of guilt to operate in certain circumstances. S v.
Kandovazu33 is an illustration of the effect of denying an accused access to statements of
State witnesses. Such denial is a breach of the fundamental right to a fair trial in terms of
art 12 of the Namibian Constitution and the consequence of such irregularity may be the
acquittal of the accused on appeal. Ex Parte Attorney-General: In re Corporal
Punishment by Organs of State34 declared corporal punishment to be cruel, degrading
and inhuman treatment in conflict with art 8 of the Constitution.
B. Presumption of innocence and legal subjectivity: The
two lungs of the new constitutional criminal
procedural dispensation
Article 11 (arrest and detention) and 12 (fair trial) are the criminal procedural provisions
of the Constitution par excellence. They represent the lungs of constitutional criminal
procedure and jointly they have brought to the higher courts the bulk of Chapter 3
litigation35. Effectively, all the provisions of fair trial can be traced to the presumption of
30
S v. Van Wyk 1993 NR 426 (SC) (held, that the Supreme Court, in sentencing the accused, was entitled to
consider its constitutional commitment to eradicate racism); S v. Drayer and Another 1990 NR 237 (SC); S
v. Kau and Others 1995 1 (SC) (held, that, even though the right to legal representation is embodied in the
Constitution, it was not absolute, but that a failure by a judicial officer to explain the accused this right will
result in a gross irregularity).
31
1997 NR 156 (SC).
32
S v. Titus 1991 NR 318 (HC).
33
1998 NR 1 (SC).
34
1991 NR 178 (SC).
35
Bukurura, S.H. 2002. Essays on constitutionalism and the administration of justice in Namibia 1990-
2002. Windhoek: Out of Africa Publishers. p.102.
8 9
effect of Constitution on criminal procedure
innocence (including the privilege against self-incrimination) and the status of accused as
legal subjects (coupled with the notion of legality36)37.
Most criminal procedural cases under the new dispensation dealt generally – but not
exclusively - with the following provisions: the presumption of innocence (Article
12(1)(d)), trial within a reasonable time (Article 12(1)(b)), adequate facilities to prepare a
defence (Article 12(1)(e)), right to legal representation (Article 12(1)(e)) and various
matters pertaining to punishment and arrest/detention. We shall now tackle these Articles
seriatim.
1. Presumption of innocence
All the cases involving the right to be presumed innocent implicated apartheid-era
legislation which reversed the onus on the accused to prove their innocence38. Judges
vigorously declared the offending provisions unconstitutional39.
The High Court of Namibia has built up a rich jurisprudence that upholds the
presumption of innocence. In S v. Pineiro40 the Court held that the presumption of guilt
as contained in the Sea Fisheries Act, 58 of 1973, is in direct conflict with art. 12(1)(d) of
the Constitution. In S v. Haikele and Others41 it held that, in the exercise of his privilege
against self-incrimination, a failure by the accused to testify cannot remedy the
36
I.e. the State is not all too powerful or absolute, but it is limited or constrained by the rule of law.
37
Bekker, P.M.; Geldenhuys, T.; Joubert, J.J.; Swanepoel, J.P.; Terblanche, S. S.; Van der Merwe, S.E. &
Van Rooyen, J. H. 2001. Criminal procedure handbook. 5th edition. Lansdowne: Juta Law.p.9.
38
Bukurura, S. H. Ibidem.
39
Read S v. Du Plessis and Another 1992 NR 74 (HC) (held, that the presumption of innocence loses much
of its force where the accused admits complicity in crime); S v. Acheson 1991 NR 1 (HC) (held, that, in the
exercise of discretion in bail applications in terms of s. 168 of the Criminal Procedure Act, personal liberty,
respect for human dignity, the right to be brought to trial within a reasonable time and the presumption of
innocence as protected by the Constitution must be considered); S v. Kamajame and Others 1993 NR 193
(HC) (held, that silence by the accused person where an innocent man would have spoken can amount to
admission); S v. Titus 1991 NR 318 (HC) (held, that the reversal of onus is not contrary to the Constitution)
reversed by S v. Shikunga and Another 1997 NR 156 (SC); S v. Khoeinmab 1991 NR 99 (HC) (held, that a
failure to allow the accused person to address the court amounts to a gross irregularity destroying the
fairness of the trial); S v. Wasserfall 1992 NR 18 (HC) (held, that it is the role of the presiding officer to see
that justice is done and he/she must act in such a way that it is fair to all parties); and S v. Damaseb and
Another 1991 NR 371 (HC) (held, that the cautionary rule could be contrary to art 10 (equality before the
law) of the Constitution as it suggests that more false charges are laid (usually by female complainants) in
sexual offences).
40
1991 NR 424 (HC).
41
1992 NR 54 (HC).
 effect of Constitution on criminal procedure
deficiencies in the State case. The Court assumed in S v. De Bruyn42 that the deliberate
police enticement of persons not otherwise predisposed to commit an offence is so unfair
that evidence so gathered should be excluded as being prejudicial to accused’s right to
fair trial, and in S v. Minnies and Another43 it held that the pointing out resulting from
interrogation conducted in conflict with art 8(2)(b)(respect for human dignity) falls to be
excluded under art 12(1)(f)(fair trial)). Finally, Judge O’Linn, in S v. Van den Berg44,
stated that it is the duty of the court to ensure that substantial justice is done, especially
important in a developing country such as Namibia, because of a lack of adequately
trained policemen, prosecutors and magistrates.
2. Trial within a reasonable time
The right to be tried within a reasonable trial has a twofold foundation. In the first
instance, anyone suspected of a crime has to be brought before a court of law to be
prosecuted and convicted if found guilty. On the other hand, any person prosecuted of a
crime and found not guilty has a right to be acquitted without unduly disrupting his or her
social life: Justice delayed is justice denied. The past fourteen years saw not less than five
cases involving this right before the High Court.
Namibian High Court judges are not of one mind as to the meaning of the word ‘release’
in Article 12(1)(b)45. At the one extreme, S v. Heidenreich46 held that the word ‘release’
means acquittal and not only release from custody. At the other extreme, Van As and
Another v. Prosecutor-General47 held that the word ‘release’ in Art 12(1)(b) of the
Constitution is not to be equated with permanent stay or acquittal. In between there is the
concern expressed in S v. Amujekela48 that allowing the accused to languish away in
custody at the whim of the Prosecutor-General (pending his authority to proceed with
trial) is contrary to Art 12(1)(b) of the Constitution.
42
1999 NR 1 (HC).
43
1990 NR 177 (HC).
44
1995 NR 23 (HC).
45
S v. Strowitski 1994 NR 265 (HC) (where the appellant appealed against the dismissal by the High Court
of an application for permanent stay of prosecution on the grounds that the accused appellant’s trial would
no be fair) and read also S v. Uahanga 1998 NR 160 (HC).
46
1995 NR 234 (HC).
47
2000 NR 271 (HC).
48
1991 NR 303 (HC).
10
effect of Constitution on criminal procedure
In deciding what was a ‘reasonable time’ the Court in S v. Heidenreich49 stated that
courts should look at the facts of each case and balance the fundamental rights of an
accused to be tried within a reasonable time against the public interest in achieving
justice. In so doing, courts might consider: (i) the length of the delay; (ii) the reason for
the delay; (iii) whether an accused asserts his or her rights to a trial within a reasonable
time; and (iv) the prejudice to an accused caused by the delay50.
3. Adequate facilities to prepare defence
This is virtually one of the most disputed aspects of fair trial standards, especially when
the courts ordered that the accused person was entitled to access the contents of a police
docket as part of constitutional disclosure51. Like the reverse onus, the history of this
heated debate has roots in apartheid legacy and legislation. Under South African
apartheid law, which was also the law applicable in Namibia, a police docket was a
privileged document.
With the enactment of the Constitution at least 8 cases – in which the docket has been
questioned – went to the High Courts, with 3 of them being referred to the Supreme
Court on appeal. In all these cases the prosecution refused to give access on the argument
that it was not bound to disclose contents of the police docket because the docket was
privileged as decided in R v. Steyn52.
It must be borne in mind, however, that these constitutional rights are by no means
absolute. They can be limited in appropriate circumstances by the Constitution itself or
by any other law that passes the constitutional muster.
It is evident from Namibian case law that disclosure is the rule and the non-disclosure is
the exception. The prosecution has the onus to prove on a preponderance of probabilities
that the statements in question are covered by State privilege. Yet, in lower courts,
49
1995 NR 234 (HC).
50
Read also Legal Assistance Centre. 2000. Namibia: A summary of selected human rights cases from
Independence to the year 2000. Windhoek: Out of Africa Publishers.p.11 and Naldi, G.J. op.cit.p.67.
51
S v. 'assar 1994 NR 233 (HC) (held, that the accused is entitled to access to police docket, but that the
State is still entitled to object to the production of certain information on the grounds of ‘classical or true’
prvilege); Koortzen and Others v. Prosecutor-General and Another 1997 NR 188 (HC) (held, that superior
courts must protect the accused against grave injustice by ordering discovery where appropriate); S v.
Lucas 1996 NR 323 (HC); read also the Supreme Court judgement in S v. Scholtz 1998 NR 207 (SC).
52
1959 (1) SA 324 (A).
11
 effect of Constitution on criminal procedure
disclosure or non-disclosure will depend on the nature of the case (minor, simple and
routine prosecutions versus complex cases where access to the police docket is necessary
to ensure a fair trial).
4. Legal representation
In a recent case concerning the right to legal representation, Strydom CJ said53:
“[A]s there is a duty on the [State] to uphold the provisions of the Constitution it follows that the
obligation to provide legal representation, or the means thereto, rests on the [State]. Whether it do
so by means of the machinery put in place by the Legal Aid Act, or by any other means, is not for
the Court to prescribe”.
The right to legal representation entrenched in Article 12 (1)(e)54 must be read
contemporaneously with Article 10(1)(equality before the law). Indeed, those two
provisions express the equality of arms, that is the principle that the prosecution and the
defence must be treated with even-handedness by the courts.
Research has revealed that undefended accused – and for that matter, poorly defended
accused – more often than not fail to fulfill their role as effective adversaries to the
Prosecutor due to a combination of a lack of forensic skills and shortcomings which
inhere in the adversarial model of criminal procedure . 55
53
The Government of the Republic of 'amibia, the Director of Legal Aid, the Prosecutor-General v.
Geoffrey Kupuzo Mwilima and all other Accused In The Caprivi Treason Case No.: SA 29/2001
(unreported).
54
'amib Wood Industries (Pty) Ltd v. Mutiltha 'O and Another 1991 NR 158 (HC) (held, that a presiding
officer is under not obligation to protect an accused company from the consequences of its own decision
not to avail itself of legal representation); S v. Wellington 1990 NR 20 (HC) (held, that a failure to explain
to an unrepresented accused the rights with regard to cross-examination is tantamount to a failure to allow
the accused to cross-examine, constituting a gross irregularity); S v. Sanders 1990 348 (HC) (held, that
where an accused is unrepresented the magistrate must explain the accused his/her rights, including his/her
rights to explain his/her plea and to remain silent); S v. Willemse 1990 NR 344 (HC) (held, that the basic
requirements of fair trial are, inter alia, the right to legal representation, to call witnesses, to give evidence
and to cross-examine State witnesses); S v. Bruwer 1993 NR 219 (HC) (held, that it cannot be said that a
trial will be less fair if a person who knows that it is his right to be legally represented is not informed); S v.
Mwambazi 1990 NR 353 (HC) (held, that more than one failure to inform the accused of his/her rights
(including his/her right to legal representation), be such failures ever so minor when considered
individually, could lead to the conclusion that the accused had not had a fair trial); S v.Soabeb and Others
1992 NR 280 (HC) (held, that the constitutional right to a fair trial is ensured by the judicial officer
explaining to the unrepresented accused his/her procedural rights).
55
South Africa. South African Law Commission. 1996. Discussion Paper 96 (Project 73). Chapter 2.
12
effect of Constitution on criminal procedure
The constitutional right of the accused to legal representation is not absolute56 and the
daunting challenge facing the Namibian legal system is to realize one of the founding
ideals of the Republic57 that legal representation be provided to everyone ‘whether the
individual occupies a palace or a hut58’.
5. Theories of punishment
The High Court in S v. Rooyen and Another59 fleshed out some guidelines to be taken
into account by Court when sentencing: (i) the accused’s personal circumstances and
prospects of rehabilitation; (ii) the deterrent effect of sentence; (iii) the interests of the
community; (iv) the protection of community against criminals; (v) equal treatment by
imposing similar sentences for similar crimes). In S v. Vries60 it was decided that, where
a section provides for an excessive sentence, the court must be able to read the section
down in such a way that it does not conflict with art 8 (respect for human dignity)61.
6. Arrest and detention
The consequences of arrest are the deprivation of liberty and invasion of privacy and
dignity, but that the object of arrest is to bring suspected persons to trial62. In S v.
Mbahapa63 the Court held that section 50 of the Criminal Procedure Act must be
56
Held in S v. Kuzatjike 1992 NR 70 (HC). That is actually the current legal position in Namibia. Read
Kavendjii, L.C.1999. Access to the criminal justice system through legal aid. University of Namibia
(unpublished LLB dissertation).p.38.
57
Article 1(1) stipulates that: “The Republic is hereby established as a…State founded upon the principles
of democracy, the rule of law and justice for all.” (our italicizing).
58
Per Lord De Villiers at page 152 in Zigli v. Mcleod (1904) 21 SC 150.
59
1992 NR 165 (HC).
60
1998 NR 244 (HC).
61
S v. 'gunovandu 1996 NR 306 (HC) (held, that the sentence should reflect the approach that it is
imperative that bribery be branded as evil and unacceptable, especially in a relatively newly independent
Namibia); S v. Strauss 1990 NR 71 (HC) (held, that the principle of individualisation of sentence must be
balanced against the uniformity of previous cases); S v. Likuwa 1999 NR 151 (HC) (held, that a section of
the Arms and Ammunition Act 7 of 1996 was unconstitutional because it covered too wide a range of
cases); S v. Brand and Various Other Cases 1991 NR 356 (HC) (held, that sentences serve several penal
purposes (deterrence, reformation, retribution, etc) and that sentences which are too low do not achieve
these purposes); a similar holding was made in S v. T jiho 1991 NR 361 (HC); Julius v. Commanding
Officer, Windhoek Prison and Others; 'el v. Commanding Officer, Windhoek Prison and Others 1996 NR
390 (HC) (held, that a section of the Magistrates’ Court Act 34 of 44 providing for the imprisonment of
judgement debtors in their absence was declared unconstitutional).
62
S v. Boois; S v. Thomas 1991 NR 455 (HC).
63
1991 NR 274 (HC).
13
 effect of Constitution on criminal procedure effect of Constitution on criminal procedure

construed as including a periodical court if there is one sitting at the appropriate time but officials73 authority to conduct criminal proceedings in any court may be included under
64 65
as excluding it when arrested person cannot be brought to court within 48 hours . the heading of the general powers of the PG (i.e. all the functions necessary to perform its
main power). An additional function of the PG was outlined in Ex Parte Attorney-
C. The Prosecutor without the General General In Re: The Constitutional Relationship Between The Attorney-General And The
In the past, the prosecuting authority, like many other criminal justice institutions, was Prosecutor-General74, namely to keep the Attorney-General informed in respect of all
tightly controlled and instrumentalized to uphold the apartheid political agenda and was prosecutions initiated or to be initiated which might arouse public interest or involve
divided between ‘role bond’ and ‘rule bond’66. Hence, on Namibia’s emergence from important aspects of legal or prosecutorial authority75.
colonialism and apartheid, the office of the Prosecutor-General (“PG”) was independent Ironically, the present position of the PG as being functionally independent and having
from the superintendence of the Attorney-General67 (“AG”) and political influence complete discretion amounts to the ‘exercise of power without responsibility’76. Although
68
generally . The Constitution of Namibia provides for the office of the PG as a quasi- this lack of clear demarcation of prosecutorial powers, role and duties prompted J.N.
judicial appointment69 as opposed to the AG who is a political appointee70. Horn77 to state that a legal framework for prosecutorial action was needed and L. Indongo
The independence of the office of the PG received subsequent judicial endorsement in Ex
that the absence of transparency, uniformity and accountability, was prejudicial to the
Parte Attorney-General In Re: The Constitutional Relationship Between The Attorney-
administration of justice; none of them went as far as explicitly and unambiguously
General And The Prosecutor-General71 .
declaring that unchecked and unaccountable prosecutorial discretion may – if it has not
In terms of Article 88 of the Constitution the main power of the Prosecutor-General is to done so already – violate the rights of the accused, the victims and potential victims of
prosecute and defend appeals in the name of the Republic of Namibia in criminal crime. Such occurrences have not yet been indicated, but the existing legal vacuum, or
proceedings in the High Court and the Supreme Court72. The power to delegate to other omission to regulate makes the eventuality of prosecutorial violation of human rights
more than likely.
64
Kaakunga, R.A. Constitutional development in Namibia from 1990 to 2000. In: Hinz, M.O; Amoo, S.K.
& Van Wyk, D..op.cit.p.p.36.
65
Read also S v. William 1992 NR 268 (HC) (recommended, that the Law Reform Commission be asked
whether section 49(2)(providing for justifiable homicide to effect a lawful arrest) should be amended or
repealed in view of the terms of Art 6 of the Constitution (right to life)); Garces v. Fourche and Others
1997 NR 278 (HC) (held, that arrested persons are entitled to apply for bail within 48 hours following
arrest); S v. Timotheus 1995 NR (HC) (held, that the accused is entitled to apply for bail but he/she does not
have an automatic right to bail); S v. De Wee 1999 NR 122 (HC) (held, that the failure to inform the
accused of his right to legal representation at a pre-trial stage will not automatically render his evidence
inadmissible); S v. Kapika and Others (1) 1997 NR 286 (HC) (held, that the Constitution requires the police
to inform the accused of his rights at pre-trial stage and that such information enables the accused to
exercise his rights).
66
Gready, P. & Kgalema, L. 2003. Magistrates under apartheid: A case study of the politicisation of justice
73
and complicity in human rights abuse. SAJHR. Vol. 19 part 2 pp.141-188. If ‘officials’ is taken to mean ‘public servants’, a controversial aspect of the independence of the PG vis-
67
Section 4 of the Criminal Procedure Act, 51 of 1977, empowers the AG to delegate and direct the à-vis the AG and the Ministry of Justice – and which has not been determined with finality by the Supreme
institution of criminal proceedings and to appoint any State officer as public prosecutor. It can be inferred Court in Ex Parte Attorney-General In Re: The Relationship Between The Attorney-General And The
(Horn, J.N.op.cit.p.40) that that section has been repealed, by necessary implication, by Article 88 of the Prosecutor-General 1998 NR 282 (SC) – may be raised (Horn, J. N. op.cit.p.45-48).
74
Constitution. 1998 NR 282 (SC).
68 75
Indongo. L. 2003. Prosecutorial independence. (Unpublished LLM dissertation). See also Olyvia Martha Ekandjo-Imalwa v. The Law Society of 'amibia and the 'amibian Law
69
Article 88(1) in Chapter 9 of the Constitution (administration of justice). The PG is appointed by the Association; The Law Society and The 'amibian Law Association v. The Attorney-General of the Republic
president on the recommendation of the Judicial Service Commission. of 'amibia; The Prosecutor-General of the Republic of 'amibia; The Government of the Republic of
70
Article 32(3)(I)(cc) in chapter 5 of the Constitution (The president). See also Horn, J.N. op.cit.p.10. 'amibia and Olyvia Martha Ekandjo-Imalwa Case No. (P) A55/03 (unreported)p.11ff.
71 76
1998 NR 282 (SC). Indongo. L. op.cit.p.37.
72 77
Article 88(2)(b). op.cit.p.48.

14 15
 effect of Constitution on criminal procedure
IV. Conclusion: The Constitution as a new way
of being, doing and…knowing
The effect of the Constitution of Namibia, Act 1 of 1990, on the Namibian legal system is
revolutionary both in breadth and depth. The influence of the Constitution on the
development of criminal procedure, more particularly, is as all embracing and as far-
reaching. It runs throughout the criminal justice system, considerably transforming on its
way law enforcement, the role of State prosecution, the authority and the function of the
courts, and the carceral system.
The overall change brought about by the Constitution is to transform the crime control
model – prevalent in the apartheid days – into a due process model. With the former, the
State was all too powerful, people are not regarded as human beings but rather as mere
objects of enquiry with no rights whatsoever and presumed to be guilty. With the latter
model, dispensed in present-day Namibia, the State is restrained by the Constitution,
people are regarded as human beings with human rights and an omnipresent presumption
of innocence.
The Constitution is a new way of being, doing and knowing, and an efficient and
effective compromise between competing human need and fear of the other. Thus, no less
than the legal revolution, the Constitution has wrought an ontological, ethical and
epistemological revolution. In one sentence, the Constitution has re-instated the lost
humanity in its rightful position as the fact of created at the image of God.
16
effect of Constitution on criminal procedure
V. List of References
1. Bekker, P.M.; Geldenhuys, T.; Joubert, J.J.; Swanepoel, J.P.; Terblanche, S. S.;
Van der Merwe, S.E. & Van Rooyen, J. H. 2001. Criminal procedure handbook. 5th
edition. Lansdowne: Juta Law.
2. Botha, C.1998. Statutory interpretation: An introduction for students. 3rd edition.
Kenwyn: Juta & Co. Ltd.
3. Bukurura, S. H. 2002. Essays on constitutionalism and the administration of justice
in Namibia 1990-2002. Windhoek: Out of Africa Publishers.
4. De Vos, P. 2001. A bridge too far? History as context in the interpretation of the
South African Constitution. SAJHR. Vol. 17 Part 1 pp.1-33.
5. Du Plessis, M. 2002. Between apology and utopia – The Constitutional Court and
public opinion. SAJHR. Vol. 18 Part 11.pp.1-40.
6. Gready, P. & Kgalema, L. 2003. Magistrates under apartheid: A case study of the
politicisation of justice and complicity in human rights abuse. SAJHR. Vol. 19 part 2
pp.141-188.
7. Hinz, M.O. 1995. Constitutional and human rights. Course material. Windhoek,
University of Namibia (unpublished)
8. Hinz, M.O.; Amoo, S.K. & Van Wyk, D. The constitution at work: 10 years of
Namibian nationhood. Proceedings of the Conference Ten Years of 'amibian
'ationhood. Windhoek, September 11-13, 2000.
9. Horn, J. . 2000. The unique constitutional position of the Prosecutor-General of
Namibia and the effect of the independence of the office on the functioning of the
prosecuting authority in relationship with the Minister of Justice and the Attorney-
General. University of South Africa (unpublished LLM dissertation).
10. Hosten, W.J.; Edwards, A.B.; Bosman, F. & Church, J. 1997. Introduction to
South African law and legal theory. 2nd edition. Durban: Butterworth Publishers (Pty)
Ltd.
11. Indongo. L. 2003. Prosecutorial independence. (Unpublished LLM dissertation).
17
 effect of Constitution on criminal procedure

12. Kavendjii, L.C.1999. Access to the criminal justice system through legal aid.
University of Namibia (unpublished LLB dissertation).
13. Konrad-Adenauer-Stiftung/amibia Institute for Democracy. 1994. Namibia:
Views and perspectives since Independence. Windhoek: Konrad-Adenauer-
Stiftung/Namibia Institute for Democracy.
14. Legal Assistance Centre. 2000. Namibia: A summary of selected human rights cases
from Independence to the year 2000. Windhoek: Out of Africa Publishers.
15. Lobban, M. 1996. White man’s justice: South African political trials in the black
consciousness era. Oxford: Clarendon Press.
16. aldi, G.J. 1995. Constitutional Rights in Namibia: A comparative analysis with
international human rights. Kenwyn: Juta & Co. Ltd.
17. O’Linn. B. 2003. Namibia: The sacred trust of civilization: Ideal and reality.
Windhoek: Gamsberg Macmillan (Pty) Ltd.
18. Pendukeni, I. I.1998. Victim’s rights in Namibia. University of Namibia
(unpublished LLB dissertation)
19. South Africa. South African Law Commission. 1996. Discussion Paper 96 (Project
73).
20. Wiechers, M. 1990. Namibia: The 1982 constitutional principles and their legal
significance. SAYIL. Vol. 15 1989/90.

18