S v TCOEIB 1993 (1) SACR 274 (NM) Case Information

NAMIBIA HIGH COURT Application for leave to appeal from the imposition of sentences of life imprisonment.
O'LINN J H Geier for the accused instructed by the Legal Aid Board.
1992 August 3, 11 D Small for the State.
B Cur adv vult.
Flynote : Sleutelwoorde H
Sentence - Life imprisonment - Whether a competent sentence in Namibia - Postea (11 August 1992).
Imprisonment for life not a sentence of death - Such sentence a competent sentence Judgment
and not in conflict with Constitution of Namibia. O'Linn J: The applicant was convicted by me on 26 April 1991 on two counts of
Headnote : Kopnota murder and one of theft. He was sentenced on 2 May 1991 as follows:
The accused had been convicted of two counts of murder and was sentenced C to 'Murder: Count 1: Life imprisonment I Count 2: Life imprisonment Count
two terms of life imprisonment. An application for leave to appeal against the 3: Two years' imprisonment. It is ordered that the sentence imposed on counts 2 and
sentences was brought on his behalf and as the application was out of time an 3 will run concurrently with the sentence imposed on count 1.'
application for condonation for the late filing of the appeal was sought. The main The applicant filed a substantive application for leave to appeal only on 2 April 1992
thrust of the appeal was directed at the question whether life imprisonment was a and his application is therefore hopelessly out of time, J necessitating condonation
competent and constitutional D sentence in Namibia. It was contended on behalf of by this Court.
the appellant that life imprisonment was a sentence of death and was therefore 1993 (1) SACR p275
unconstitutional as article 6 of the Constitution prohibited the imposition of the death O'LINN J
sentence. It was also argued that life imprisonment was unconstitutional as it was in A Mr Geier appeared in the trial for the accused and is again appearing for the
conflict with article 8 of the Constitution which prohibited the imposition of cruel, applicant in this application.
inhuman or degrading treatment or punishment. Mr Small appeared for the State in the trial and again in this application.
E Held, that life imprisonment was not a sentence of death as envisaged by article Both counsel filed written heads of argument in this application.
6 of the Constitution. In view of the fact that the question whether or not there are reasonable
Held, further, that in order to decide whether such sentence was unconstitutional as prospects of success on appeal is decisive of both the application for condonation
being in conflict with article 8 regard would have to be had to the contemporary and for leave to appeal, I will restrict B myself to a decision on the question whether
norms, aspirations, expectations, sensitivities, views, etc of the people of Namibia: in or not there are reasonable prospects that the Judges on appeal will take a different
the absence of such F an enquiry in the present case the Court could take judicial view. See: R v Ngubane and Others 1945 AD 185 at 187; S v Ackerman en 'n Ander
notice of the fact that the people of Namibia were in favour of imprisonment for life in 1973 (1) SA 765 (A) at 767G-H.
cases of extreme gravity in the absence of the availability of the death sentence. Several points were advanced by appellant in correspondence on which he
Held, accordingly, that the sentence of life imprisonment was not unconstitutional. relied for leave to appeal. Most of those points are either irrelevant or C without any
Leave to appeal refused. substance and it is not necessary to deal with it in any detail because Mr Geier has
G succinctly summed up the position in his written heads where he submits:

1 2
 'Applicant has given his grounds of appeal in para 2 of the notice of
motion filed of record herein from where it is apparent that the main thrust of
applicant's appeal will hinge on the question of whether or not life imprisonment is a
competent and constitutional sentence in Namibia or not.'
D and all desire he may have to continue living. Article 8 of our Constitution entrenches
It must immediately be noted that the question of constitutionality supra, was never
raised or argued during the trial of the applicant. Nevertheless, as trial Judge, I gave
an extensive judgment on sentence in the course of which I discussed the
implication of the abolition of the death sentence by article 6 of the Namibian
Constitution.
E Nevertheless, in my view, the applicant is entitled to take the aforesaid legal
point for the first time in this application, provided there is a reasonable prospect of
success on appeal.
In view of the fact that I did not express during the trial any view on the point now
taken, I must deal with the issue now raised.
Mr Geier almost exclusively relies on an obiter dictum expressed by my
Brother Levy J in the appeal judgment of this Court in the case of S v F Nehemia
Tjijo delivered on 4 September 1991, unreported.
The issue was not raised by the defence in the Tjijo case and no argument
was addressed by the defence or the State at all. The appellant in the Tjijo case
appealed against a sentence of 17 years' imprisonment for the crime of murder.
Levy J in his judgment explains why he raised the issue and gave his obiter
opinion and I can do no better than to quote the whole obiter dictum:
G knows with certainty what his penalty is.
'Mr Small has argued that this Court should take into account the fact
that the trial Court could have imposed a sentence of "life imprisonment". In my view,
the provision in article 6 of the Constitution of Namibia that "no Court or Tribunal
shall have the power to impose a sentence of death upon any person" categorically
prohibits a sentence of life imprisonment. "Life imprisonment" is a sentence of H
death.
Furthermore, life imprisonment, as a sentence, is in conflict with article
8(2)(b) of the Constitution in that it is a "cruel, inhuman and degrading punishment".
3 4
It removes from a prisoner all hope of his or her release. When a term of years is
imposed, the prisoner looks forward to the expiry of that term when he shall walk out
of gaol a free person; one who has paid his or her debt to society. Life imprisonment
robs the I prisoner of this hope. Take away his hope and you take away his dignity
the right of all people to dignity. This includes prisoners. The concept of life
imprisonment destroys human dignity reducing a prisoner to a number behind the
walls of a gaol waiting only for death to set him free.
The fact that he may be released on parole is no answer. In the first J place
for
1993 (1) SACR p276
O'LINN J
A a judicial officer to impose any sentence with parole in mind, is an abdication
by such officer of his function and duty and to transfer his duty to some administrator
probably not as well equipped as he may be to make judicial decisions. It also puts
into the hands of the Executive where the sentence is life imprisonment, the power to
detain a person for the remainder of his life irrespective of the fact that the person B
may well be reformed and fit to take his place in society. Furthermore, even though
he or she may be out of gaol on parole such person is conscious of his life sentence
and conscious of the fact that his or her debt to society can never be paid.
Life imprisonment makes a mockery of the reformative end of punishment.
I am satisfied that it is in the interests of justice and in keeping with the
spirit of the Constitution that all sentences should be quantified so that a prisoner
C I therefore dismiss any argument
suggesting that the appellant could in law have been sentenced to life imprisonment.'
At the time of the aforesaid judgment, Frank J found it necessary to express his
dissent in the following way:
'Life imprisonment as a sentence was not a bone of contention in this
D appeal. It was not imposed by the Court a quo nor was it even suggested as a
substitute on appeal. It was mentioned in passing. The constitutionality or otherwise
of such a sentence was not addressed at all in argument. I am not inclined to make a
finding on such a far-reaching issue where it will be obiter and without the benefit of
full argument relating thereto. Prima facie however, for what it is worth, I do not
agree that the imposition of a period of life imprisonment is unconstitutional.'
E Muller AJ apparently concurred in the remarks of Frank J.
Subsequently Frank J imposed life imprisonment in the following two cases:
S v Hilunaye Moses, High Court of Namibia (ref CC 2/92), 22 April 1992, unreported
and S v Immanuel Kaukungwa and Three Others, High Court of Namibia,
12 December 1991, unreported.
F Formerly, imprisonment for life had to be considered inter alia in those
Another Judge of this Court, Hannah J, imposed a sentence of life
imprisonment in the case of S v M Shikongo, High Court of Namibia, 23 October
1991.
I myself imposed a further sentence of life imprisonment in the case of S v
Paulus Alexander and Another, High Court of Namibia (ref CC 77/92), 29 May 1992,
unreported.
G All four of the latter sentences of life imprisonment were imposed subsequent
to the sentence in this case and subsequent to the aforesaid obiter dictum of Levy J.
This is an indication that none of the other Judges of the High Court mentioned
supra have followed the aforesaid obiter dictum of Levy J.
Mr Small strenuously opposed the granting of leave to appeal and deals in his
extensive written argument inter alia with the relevant provisions H of the Namibian
Constitution and those of the Prisons Act 8 of 1959 as amended, particularly these
provisions in the latter Act which deal with the prospect of an accused sentenced to
imprisonment for life to be let out on probation or parole.
The implication of the abolition of the death sentence was dealt with by me in
this case in the course of the judgment on sentence and it is useful for the discussion
of the present application to repeat that part of the I said judgment at this stage. I
quote:
'Since the abolition of the death sentence by article 6 of the Namibian
Constitution, the process of formally deciding in accordance with s 277 of the
Criminal Procedure and Evidence Act 51 of 1977, whether or not there is extenuating
circumstances, has fallen away. A Court considering sentence will therefore consider
mitigating factors, which will include what formerly resorted under the concept of
5 6
"extenuating circumstances" and on the other side of the coin, J aggravating
factors.
1993 (1) SACR p277
O'LINN J
A The abolition of the death penalty has also brought the penalty of
imprisonment for life into the foreground, particularly for those crimes which would
under the previous dispensation have incurred the death sentence.
cases of murder where extenuating circumstances had been found and where the
death sentence was therefore discretionary.
B
See for example S v Matthee 1971 (3) SA 769 (A) at 771A-D, where
Holmes JA said that one of the relevant factors would then be
"whether, in the particular circumstances of the case, the alternative of
imprisonment, if necessary for life, would not be regarded by society as an adequate
deterrent to others".
C S v Letsolo 1970 (3) SA 476 (A) is an example of a case where the Appellate
Division substituted the sentence of imprisonment for life for the death sentence
imposed by the Court a quo, where extenuating circumstances had been found. The
sentence of life imprisonment was regarded as an appropriate sentence in the
circumstances, the reasons being, and I quote:
"During the period of imprisonment society would be adequately
D protected, and it cannot be said that properly directed discipline and training in a
prison over a long period of time are not likely to result in the appellant's
reformation."
The mitigating factors in that case were inter alia that the accused was drunk
or intoxicated and that due weight had to be given to the effect E upon him, a
person 21 years of age, of such intoxication. It was held that his record and the
senseless brutality which characterised the murder, did not without more justify a
finding that "viciousness is part of his normal character". What the position would
have been if it could be said that viciousness was in fact part of his normal character,
was not discussed. (The emphasis is mine.)
 In S v Sibiya 1973 (2) SA 51 (A) Rumpff JA dealt with the alternative F
of very long periods of imprisonment and came to the conclusion that in practice, it
does not often happen that imprisonment for a period of 25 years or more is
imposed. Certain statistics were referred to in that judgment. This notwithstanding,
the sentence of the trial Court of 25 years' imprisonment was nevertheless confirmed
on appeal.
In S v Masala 1968 (3) SA 212 (A) referred to in S v Sibiya, the G
effect of a sentence of life imprisonment was discussed and it was pointed out that
such a sentence may literally amount to imprisonment for life, but need not have
such effect and that the period served before a release on parole or probation or
even before an unconditional pardon, depends on laws and regulations governing
the Executive and the prison authorities or the Prison Board and the discretion they
exercise in terms of such legislation. It means that in practice, although a H D
sentence of life imprisonment can amount to imprisonment for life, it may in some
cases amount to imprisonment for much less than a finite period of imprisonment of
20-25 years. Nevertheless, the Appellate Division in S v Tuhadeleni and Others 1969
(1) SA 153 (A) at 181A-C, dealt with the sentence of life imprisonment imposed on a
group of appellants by the trial Court. It found that in all the circumstances, an
appropriate sentence in the opinion of the Appellate Division would I be 20 years,
and then continued to say that "the disparity between such a finite sentence, with the
potential concomitant advantages under the Prisons Act, and a sentence of
imprisonment for life is such that it calls for interference".
It must therefore be accepted that a sentence for life imprisonment is
potentially more severe than a sentence of 20 years' imprisonment.
In South Africa, s 277 of Act 51 of 1977, relating to the mandatory J
imposition
1993 (1) SACR p278
O'LINN J
A of the death sentence and the rights of appeal of persons sentenced to death,
as well as the laws relating to the release by the Executive of a person sentenced to
death, has been amended by the Criminal Law Amendment Act 107 of 1990. Since
the aforesaid amendment, the Appellate Division of the Supreme Court of South
7 8
Africa had an opportunity to B consider the appropriateness of a sentence of life
imprisonment as an alternative to the death sentence in S v Mdau 1991 (1) SA 169
(A) and found that an appropriate sentence in the circumstances of that case was life
imprisonment and expressed itself as follows:
"Imprisonment for life is thus a form of punishment which must
be considered as an alternative for the death sentence where the protection of the
society is a compulsory or imperative C consideration." (My translation from the
Afrikaans to English.) See at 177B-C of the report of the judgment.
It is noteworthy that in Great Britain the statute abolishing the death penalty,
referred to as the Abolition of the Death Penalty Act of 1965, provided that it is
mandatory to sentence a person to life imprisonment if he is convicted of murder.
Section 1(2) of the Act furthermore provides:
"On sentencing any person convicted of murder to imprisonment
for life the Court may at the same time declare that period which it recommends to
the Secretary of State as the minimum period which in its view should elapse before
the Secretary of State orders the release of that person on licence under s 27 of the
Prisons Act 1952."
In Great Britain, no appeal lies against any such recommendation by the E
trial Court.
In the United States of America, the death sentence has not been
abolished in every state and the controversy of whether or not it is unconstitutional
and whether or not it is a cruel and inhumane punishment is still debated. Where
however imprisonment is imposed for F any serious crime or offence, imprisonment
for an effective period of 50-60 years (and it seems even 90 years), is imposed.
It seems that the imposition of life imprisonment in the United States of
America is acceptable to the American people and in accordance with their
Constitution and legal system.
It appears to me that statistics of cases where life imprisonment, or G
periods of imprisonment in excess of 20 years were imposed, before the abolition of
the death penalty in Namibia or before the abolition of the provisions for mandatory
imposition of the death penalty in South Africa, have lost most of their relevance in
the period subsequent to the aforesaid abolition or statutory amendments, for the
simple reason that the death sentence was imposed in the more extreme cases, and
in all the cases where a person was found guilty of the crime of murder H without
extenuating circumstances.
The provisions in our statute providing for life imprisonment have not
been abolished and it is not for the Courts to abolish it. If the statutory provisions
dealing with the function of the Executive to reprieve or to allow out on parole or
probation, lead to some anomalies, such laws should be urgently reviewed.
I Although the Namibian Constitution has abolished the death sentence,
it at the same time provided as the first fundamental human right the protection of
the life of all its citizens. (See article 6.) In article 5 it is provided that all fundamental
rights and freedoms, including the right to life, shall be respected and upheld by the
Executive, the Legislature and the Judiciary.
In these times when more and more people talk of "peoples' justice"
and taking the law into their own hands, the words of Schreiner JA in R J v Karg
1961 (1) SA 231 (A) at 235-6 should be borne in mind and I quote:
1993 (1) SACR p279
O'LINN J
A "The circumstances, or more properly, considerations, that were
claimed to have been irregularly taken into account are to be found in passages in
which Snyman AJ said (i) that the Courts should impose such sentences as will not
tempt aggrieved persons to seek private vengeance, and (ii) that a sentence should
be imposed that would do justice not only to the community but also to the parents of
the B child who had been killed."
Schreiner JA continued:
"I do not agree with the submission that these considerations
are irrelevant. While the deterrent effect of punishment has remained as important as
ever, it is, I think, correct to say that the retributive aspect has tended to yield ground
to the aspects of prevention and correction. That is no doubt a good thing. But the C
element of retribution, historically important, is by no means absent from the modern
approach. It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that Courts
impose, and it is relevant to bear in mind that if sentences for serious crimes are too
9 10
lenient, the administration of justice may fall into disrepute and injured persons may
incline to take the law into their D own hands. Naturally, righteous anger should not
becloud judgment. Snyman AJ was bringing home to the appellant and other
persons the seriousness of the offence and the need for a severe punishment, and I
can find nothing in his remarks to show that he gave undue weight to the retributive
aspect."
A similar sentiment was expressed by Stewart J in 1972 in the United E
States Supreme Court case of Furman v Georgia 408 US 238 (1972) 92 S Ct 2726,
33 L Ed 2d 346 (1972) where the death penalty was debated and the learned Judge
commented as follows on the retributive objective of punishment and I quote:
"On that score I would say only that I cannot agree that
retribution is a constitutionally impermissible ingredient in the imposition of
punishment. The instinct for retribution is part of the nature of man, and channelling
that instinct in the administration of F criminal justice serves an important purpose
in promoting the stability of a society governed by law. When people begin to believe
that organized society is unwilling or unable to impose upon criminal offenders the
punishment they 'deserve', then there are sown the seeds of anarchy - of self-help,
vigilante justice, and lynch law."
It seems to me therefore that it is imperative that life imprisonment G should
be seriously considered as a punishment for murder in appropriate circumstances.'
See S v Tcoeib 1991 (2) SACR 627 (Nm) at 630f-633c.
Since the aforesaid judgment, events in Namibia have strengthened me in my
aforestated views.
As a result of the unmistakable rise in the crime rate in general, and in
particular, crimes of violence such as murder, robbery and rape, there H has been
a public outcry for stiffer sentences by courts in general and for the re-introduction of
the death penalty in particular.
This outcry has not only manifested itself in public demonstrations, but in
debates in Parliament where leaders of the government party as well as of the main
opposition parties have insisted on the re-imposition of the death sentence. The
main arguments voiced by some of those in government as well as in opposition
against the re-introduction of the death penalty I are the following:
 1. It is legally impossible to re-introduce the death penalty because article
6 of the Namibian Constitution unconditionally forbids the imposition of the death
sentence and this article is irrevocable in terms of article 24 of the Namibian
Constitution.
2. There is an obvious alternative to the death sentence - namely
imprisonment for life.
1993 (1) SACR p280
O'LINN J
A It is also a notorious fact that some members of the public have in the recent past
not only threatened to take the law into their own hands, but have in fact done so in
some cases.
Where the law-abiding citizen is on the one hand told that the Constitution
makes it impossible to re-introduce the death penalty, whatever the circumstances,
and secondly, that even the alternative of B life imprisonment is held by the Courts
to be unconstitutional, vigilante justice may increase and in the end the Courts and
the very Constitution under which it functions may come under serious threat.
The demand for the re-imposition of the death penalty is apparently so widely
supported by Namibians that a referendum on the issue may very well show a
majority of Namibians and the institutions to be in favour of re-introducing the death
sentence.
C dignity shall be guaranteed.
I do not think that this phenomenon can be ascribed to lack of so-called
civilisation in Namibia. In the case of S v Matthee 1971 (3) SA 769 (A) at 771D, one
of the most compassionate and erudite Judges of the South African Appellate
Division stated in the case of S v Matthee (supra at 771D) that
'the death sentence was the only appropriate sentence in the particular D
case because the crime was so shocking, so clamant for extreme retribution, that
society would demand his destruction as the only expiation for his wrongdoing'.
This approach was followed in a recent case of the Appellate Division of the South
African Supreme Court where that Court considered, under the amended legislation
in South Africa, whether the death sentence was the only proper sentence. It held
that even a sentence of life imprisonment E would not 'be regarded by society as an
11
adequate deterrent to others' and that the accused's deed in the words of Holmes JA
was 'so shocking, so clamant for extreme retribution, that society would demand his
destruction as the only expiation for his wrongdoing'.
See the judgment of Milne JA which expressed the judgment of the Appellate
J Division in S v Mposula 1991 (1) SACR 52 (A) at 58h-59c.
That the death sentence is unconstitutional in Namibia is not in doubt. F
Whether or not the Constitution can be amended or not to reinstate the death
sentence is not an issue in this case. The issue is whether a sentence of life
imprisonment is unconstitutional in that it is contrary to either article 6 or 8 of the
Namibian Constitution.
The first point relied on by Mr Geier on the strength of my Brother Levy J's
aforesaid obiter dictum is that 'life imprisonment is a sentence of G death' and
therefore contrary to article 6 which expressly outlaws the death sentence, need not
detain the Court. Surely article 6 refers only to the death sentence understood in its
ordinary meaning.
The second point is that life imprisonment is unconstitutional and forbidden
because it is contrary to article 8 of the Constitution which reads as follows:
'8 (1) The dignity of all persons shall be inviolable.
H (2)(a) In any judicial proceedings or in other proceedings before any
organ of the State, and during the enforcement of any penalty, respect for human
(b) No persons shall be subject to torture or to cruel,
inhuman or degrading treatment or punishment.'
This section was interpreted by the Supreme Court of Namibia in Ex parte I
Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3)
SA 76 (NmS). Mahomed AJA, when considering whether or not corporal punishment
by or on the authority of any organ of the State contemplated in the legislation is
unconstitutional, referred to article 8(2)(b) of the Constitution and said (at 86B-C) that
article 8(2)(b) had to be read disjunctively and
'thus read, the section seeks to protect citizens from seven J different
conditions:
1993 (1) SACR p281
12
O'LINN J
A (a) torture;
(b) cruel treatment;
(c) cruel punishment;
(d) inhuman treatment;
(e) inhuman punishment;
B (f) degrading treatment;
(g) degrading punishment.'
The judgment continues as follows:
'Although the Namibian Constitution expressly directs itself to
permissible derogations from the fundamental rights and freedoms entrenched in
Chapter 3 of the Constitution, no derogation from the rights entrenched by article 8 is
permitted. This is clear from article C 24(3) of the Constitution. The State's
obligation is absolute and unqualified. All that is therefore required to establish a
violation of article 8 is a finding that the particular statute or practice authorised or
regulated by a state organ falls within one or other of the seven permutations of
article 8(2)(b) set out above; "no questions of justification can ever arise" (Sieghart
The International Law of Human Rights at 161 para 14.3.3.).
D It accordingly follows that even if the moderation counselled or
contemplated in some of the impugned legislation or practice succeeds in avoiding
"torture" or "cruel" treatment or punishment, it would still be unlawful if what it
authorises is "inhuman" treatment or punishment or "degrading" treatment or
punishment.
What is the meaning of the words "inhuman" and "degrading"?
According E to the Oxford English Dictionary "inhuman" means "destitute of natural
kindness or pity; brutal, unfeeling, cruel; savage, barbarous". "To degrade" means
"to lower in estimation, to bring into dishonour or contempt; to lower in character or
quality; to debase". (S v Ncube; S v Tshuma; S v Ndhlovu 1988 (2) SA 702 (ZS) at
717D-E.) See also S v Chabalala 1986 (3) SA 623 (BA) at 626I or 627B; Sieghart
(op cit at F 162-172); S v Petrus and Another (1985) LRC (Const) 699 at 714g.
The question as to whether a particular form of punishment authorised
by the law can properly be said to be inhuman or degrading involves the exercise of
13
a value judgment by the Court. (S v Ncube; S v Tshuma; S v Ndhlovu (supra at
717I).)
It is however a value judgment which requires objectively to be G
articulated and identified, regard being had to the contemporary norms, aspirations,
expectations and sensitivities of the Namibian people as expressed in its national
institutions and its Constitution and further having regard to the emerging consensus
of values in the civilised international community (of which Namibia is a part) which
Namibians share. This is not a static exercise. It is a continually evolving dynamic.
What may have been acceptable as a just form of punishment some H decades
ago, may appear to be manifestly inhuman or degrading today. Yesterday's
orthodoxy might appear to be today's heresy.'
Although the late Berker CJ concurred in the judgment of Mahomed AJA he noted
the following reservations:
'Whilst it is extremely instructive and useful to refer to, and analyse,
decisions by other Courts such as the International Court of I Human Rights, or the
Supreme Court of Zimbabwe or the United States of America on the question
whether corporal punishment is impairing the dignity of a person subjected to such
punishment, or whether such punishment amounts to cruel, inhuman or degrading
treatment, the one major and basic consideration in arriving at a decision involves an
enquiry into the generally held norms, approaches, moral standards, aspirations and
a host of other established beliefs of the people of J Namibia.
1993 (1) SACR p282
O'LINN J
A In other words, the decision which the Court will have to make in the
present case is based on a value judgment which cannot primarily be determined by
legal rules and precedents, as helpful as they may be, but must take full cognisance
of the social conditions, experiences and perceptions of the people of this country.'
B (At 95I-96C.) I want to emphasise the following aspects of the test and
procedures laid down in the aforesaid judgments:
1. It is obvious that in deciding the present issue, I and any Court faced with the
same issue, must follow the procedures and tests laid down in the aforesaid
judgments and attempt to identify those procedures and tests.
14
 The first difficulty I have is that on the face of it, the test C laid
down by Berker CJ is much more extensive than that of Mahomed AJA in which both
Berker CJ and Trengove AJA concurred. It is not clear to me whether it can be said
that Mahomed AJA and Trengove AJA also concurred in the judgment of Berker CJ.
Berker CJ explained that his observations are intended to assist
'in understanding the conclusions all the members of the Court have arrived at'.
Berker, for example, stated that the major and basic
consideration D involves an
'enquiry into the generally held norms, approaches, moral standards
and a host of other established beliefs of the people of Namibia . . . . The value
judgment cannot primarily be determined by legal rules and precedents . . . but must
take full cognizance of the social conditions, experiences and perceptions of the
people of this country.'
E O'LINN J
Berker CJ further emphasised that there is a controversy amongst the
Namibian people about the desirability of corporal punishment.
The learned Judge put it as follows:
'Whilst very often there is little or no disagreement as
regards the abolishment of corporal punishment by judicial or quasi-judicial bodies,
there is less agreement with regard to the
F desirability or otherwise of the corporal punishment, judicial or quasi-judicial
bodies ordered to be meted out to juveniles, ie on young persons under the age of
21 years. Even less agreement exists in respect of the desirability or otherwise of
corporal punishment in schools.'
All this indicated that there was the need for a proper
enquiry G to establish the norms, etc. But then the learned Berker CJ continued by
saying that corporal punishment is apparently per se an impairment of dignity, or per
se cruel, inhuman or degrading treatment, apparently jettisoning the above-quoted
test laid down by him as 'the major and basic consideration' and the procedure of an
enquiry into the 'norms, approaches, moral standards and a host of other established
beliefs of the people of Namibia'.
15
H Mahomed AJA said nothing of an 'enquiry', but merely that the
value judgment requires
'objectively to be articulated and identified, regard being
had to the contemporary norms, aspirations, expectations and sensitivities of the
Namibian people as expressed in its national institutions and its Constitution and
further having regard to the I emerging consensus of values in the civilized
international community (of which Namibia is a part) which Namibians share.'
What precisely was intended by Berker CJ when he used the
word 'enquiry' is not quite clear.
Prima facie it seems to me that when a court is required to
'enquire into' a dispute of fact and law, such enquiry contemplates at least the
application of certain fundamental principles and J requirements such as:
1993 (1) SACR p283
A (a) Audi alteram partem, ie hear all interested parties. This
requirement is made mandatory by s 15(5) of the Supreme Court Act 15 of 1990
which provides that if the Chief Justice, after receiving a petition from the
Attorney-General to decide a constitutional issue,
'is of the opinion that the application is of a nature which
justifies the exercise of the Court's jurisdiction in terms of this section, any party
affected, or likely to be affected by the B decision of the Chief Justice or such other
Judge, shall be informed of such decision by the Registrar, and the matter shall,
subject to the provisions of s 20, further be dealt with by the Supreme Court in
accordance with the procedures prescribed by the Rules of Court'.
C Subsection (6) provides that a party affected or likely to be
affected can institute proceedings for the setting aside of the said opinion/decision of
the Chief Justice 'in any other competent Court'.
Section 20 provides that when the Court is properly seized of
the matter as a Court of first instance, eg in accordance with article 87(c) read with
article 79(2) of the Namibian Constitution read with s 15 of the Supreme Court Act,
the Supreme Court "shall" have the D power, (a) 'to receive evidence either orally
or on affidavit or on deposition before a person appointed by the Court, or to direct
16
that the matter be heard by the High Court . . .'. Rule 6(5)(b) of the Rules of the
Supreme Court provides inter alia that the Chief Justice or such other Judge of the
Supreme Court, as the case may be, shall thereafter direct: (ie for example after
deciding that the Supreme Court will exercise jurisdiction to decide a constitutional
issue as E a Court of first instance)
(i) what pleadings or affidavits or documents are required to
be filed by the parties to the proceedings;
(ii) . . .;
(iii) whether or not any special dossiers are required to F be
compiled in terms of s 23 of the Act, and if so, the time within which such dossiers
are required to be lodged. Section 23 provides for the appointment of a referee who
must investigate the issue, obtain statistics and/or information and/or evidence which
may not otherwise be conveniently or expeditiously assembled by the Court.
The High Court Act and Rules have analogous provisions for
giving G notice to interested parties, obtaining relevant evidence, etc when deciding
similar constitutional issues. See s 17 of the High Court Act 16 of 1990 and Rule 33.
Non-compliance with the mandatory provisions of s 15(5) of the
Supreme Court Act in regard to notice and the other applicable procedures
prescribed by the Rules of Court, may lead to the resultant judgment or order being
either a nullity or at best to be not binding on 'parties affected or likely to be affected'.
Compare H the Declaration of Rights s 16(d) of the High Court Act and notes in
Uniform Rules of Court Nathan, Barnett and Brink 3rd ed 592 and the cases therein
referred to.
It must be kept in mind that the Supreme Court gave its
judgment in this matter not on an appeal to it by an accused person convicted or
sentenced by a lower court, but on petition by the I Attorney-General in terms of
article 87(c) of the Namibian Constitution, read with s 15 of the Namibian Supreme
Court Act which created a jurisdiction for the Supreme Court to sit as a Court of first
instance.
That being the case, the Supreme Court had to follow the
provisions of the aforesaid laws.
17
The procedures to be followed must therefore also be
distinguished from procedures of other courts on a similar constitutional issue but J
which came
1993 (1) SACR p284
O'LINN J
A before those courts on appeal or in accordance with different
prescribed procedures.
(b) When dealing with a dispute of fact, there must be evidence,
either viva voce or on affidavit or both, unless the facts are notorious facts, of which
the court can take judicial notice or facts which are placed before court by the
interested parties B as facts which are common cause or not in dispute, such as a
stated case provided for in the Rules of the High Court.
(c) The court's value judgment must be objectively articulated
and identified.
This latter requirement, reiterated by Mahomed AJA in his
aforesaid judgment, must be adhered to in order to prevent the personal subjective
views of the Court or Judge to be presented as the 'contemporary norms,
aspirations, expectations and sensitivities of the Namibian people'.
C It is also a reason why an enquiry of some sort must be held.
The dictionary meaning of the words 'enquire into' or 'inquire
into': the Shorter Oxford English Dictionary for example gives as one meaning 'to
search into, seek knowledge concerning, investigate and examine'. This meaning
supports my abovestated prima facie view.
D What precisely is included in the expression used by Mahomed
AJA, viz 'its national institutions', was not explained in the judgment itself.
The Shorter Oxford English Dictionary gives the following meanings:
'An established law, custom, usage, practice, organization or
other element in the political or social life of people; a well-established or familiar
practice or object; an establishment, E organization or association, instituted for the
promotion of some object, especially one of public utility, religions, charitable,
educational, etc.'
18
 It seems to me that the Namibian Parliament, courts, tribal
authorities, common law, statute law and tribal law, political parties, news media,
trade unions, relevant community-based organisations can be regarded as
'institutions of the Namibian people' for the purposes hereof.
F When considering the contemporary norms, aspirations,
expectations, sensitivities, approaches, moral standards, aspirations and a host of
other established beliefs of the people of Namibia in respect of, for example, corporal
punishment in schools, the administrators of education, the teachers and parents'
associations would probably qualify as relevant institutions.
When deciding on corporal punishment by judicial tribunals,
tribal G courts and or leaders, at least the Ministry and Department of Justice and
recognised tribal leaders should qualify as relevant institutions that can shed light on
the question.
In so far as life imprisonment is concerned, Parliament is
certainly one of the institutions whose debates on utterances on the issues would be
relevant.
The actual application and implementation of the aforesaid H
procedures and tests as contained in the abovequoted judgments by the learned
Judges of the Supreme Court in that case, does not throw any light on the question
of what precisely are the tests and procedures to be applied by me in this case or by
any Court or Judge in my position. I say so with all due respect to the learned
Judges of Appeal because it appears to me that no enquiry as contemplated by
Berker CJ was held in that case nor was it established what were the I in particular the 1982 International Agreement on inter alia, constitutional principles,
'contemporary norms, aspirations, expectations and sensitivities' expressed in the
'national institutions of the people of Namibia'.
What was before Court was only the submissions of counsel,
which included extensive references to the Namibian Constitution, existing
legislation, cases decided in Courts, international conventions and similar material.
There was no evidence, whether on affidavit or viva voce, no
stated case of facts which were common cause, no special dossier by a J referee,
no reference
1993 (1) SACR p285
19
O'LINN J
A to facts regarding norms, aspirations, expectations, sensitivities,
customs, beliefs, etc, of the people of Namibia and their institutions, which were
either presented to Court as facts which were common cause or which the Court
took notice of as 'notorious' facts.
The method actually used in the case by the learned Judges of
the Supreme Court, including Berker CJ, appears to be precisely what B Berker CJ
in his remarks said could not be done. The issue was in fact determined 'primarily . .
. by legal rules and precedents' and not by taking 'full cognisance of the social
conditions, experiences and perceptions of the people of this country'.
It may be that the learned Judges of Appeal took judicial notice
of what they regarded as notorious facts in regard to what were the C 'aspirations,
expectations, sensitivities, customs, beliefs, etc' of the people of Namibia.
Unfortunately that was not expressly stated in any of the
aforesaid judgments.
When using the Namibian Constitution itself to establish the
aspirations, expectations and sensitivities, customs, beliefs, etc, it must be kept in
mind that the Constitution itself is silent when D the issue is what the aspirations,
sensitivities, etc, of the Namibian people are in regard to issues such as corporal
punishment or life imprisonment.
It is also obvious that the Namibian Constitution should be
interpreted in the light of and in the context of its internationally validated framework,
endorsed in the Security E Council of the United Nations. See S v Heita en 'n
Ander, judgment on recusal, High Court of Namibia, 22 October 1991, unreported.*
2. It is also important to keep in mind that the evaluation, as Mahomed AJA
stated, is
'not a static exercise. It is a continually evolving dynamic.
What may have been acceptable as a just form of punishment some F decades
ago, may appear to be manifestly inhuman or degrading today. Yesterday's
orthodoxy might appear to be today's heresy'.
20
 It seems to me, with great respect to the learned Judges,
that in principle the contrary is also true, ie what may have been unacceptable as a
just form of punishment in the past, may become acceptable in the future, for
example, where circumstances change and norms, aspirations, expectations and
sensitivities change in G the light of a new reality such as rising crime, tyrannising
the community, undermining law and order and threatening the very survival of the
Namibian Constitution.
3. It is not clear from the aforesaid judgment whether in the making of the value
judgment of what the Namibian peoples' norms and sensitivities, etc, are, relating to
what is cruel, inhuman, degrading or insulting punishment of a criminal, it is
permissible to H make the evaluation in the context of and in relation to the
particular punishment of the particular criminal who has commited a particular crime.
To send any free person to gaol, for example, not only per se
infringes his freedom, it also per se humiliates him, 'violates his dignity', 'invades his
status as a human being' and 'degrades' him.
I The same applies to arrest and detention before and during trial,
authorised by article 11 of the Constitution and forced labour, authorised by article 9
of the Constitution. Can that ever mean that a murderer, who has terminated another
person's right to life in a cruel, brutal and inhuman manner and who has degraded
another person without justification, should not be sentenced, if
Footnotes
J * Reported at 1992 (2) SACR 285 and 1992 (3) SA 785-Ed.
1993 (1) SACR p286
O'LINN J
A convicted after a fair trial, to a lengthy period of imprisonment or even
to life imprisonment?
Can it ever be said by a Court that the 'norms, aspirations,
expectations and sensitivities of the Namibian people' would regard such a sentence
as cruel, inhuman or degrading and therefore not permissible? I think not.
B The following words of Stewart CJ in S v Chabalala (supra at
631-632B) are apposite:
21
'Sight must not be lost of the fact that the Constitution,
and particularly the Bill of Rights, is intended to protect the rights of all, not merely
those of the murderer. In this regard I can do no better than quote, as the
Attorney-General has done, from Mr C Van der Vyver's own lecture on this subject
on an occasion when he was not arguing the case for the criminal:
"The lesson to be learnt from the West German
Constitution is that a bill of rights does not and, if it were to be feasible, cannot imply
that the rights and freedoms it contains ought to confer unrestricted claims and
competencies. I have gained the impression that the generally entertained distrust in
South Africa of human rights ideas has to a large extent been D cultivated upon this
false notion - which may, incidentally, have been inspired by the sweeping
phraseology of the American Bill of Rights and certain international human rights
documents - that human rights are supposed to be absolute rights. The truth is that
all rights and freedoms claimed by an individual have their appropriate boundaries to
be determined, in general, by both the equal rights and freedoms of other persons
and E state or community interests - provided that state interests are restricted in
view of the true function of a state as an historical community destined to create and
preserve law and order.
Nor ought the scope and importance of one right or
freedom to be preferred over that of another. The entrenchment of certain rights and
freedoms in a bill of rights ought not to entitle F the subordinates of the state to
claim excessive or extensive privileges, arising from those rights and freedoms, at
the cost of any other right, freedom or interest, whether included in the bill of rights or
not.
In fact the principle 'use what is yours so as not to harm
others' ought in my opinion to be incorporated into a bill of rights, and the
circumstances under which state interest must G prevail in accordance with the
common law doctrine 'the interest of the state is the highest law' ought also to be
specified in the bill of rights.
In short, the only significance in a bill of rights would be
that the Government is constantly reminded that the rights and freedoms it contains
have been regarded as of special importance for the preservation of a free society,
22
that those rights and H freedoms can be abridged in the specified extent only, and
that restrictions about those rights and freedoms ought always to remain the
exception and not the rule. Inclusion of a particular right or freedom in a bill of rights
ought in no way to change its nature or ambit."
Van der Vyver Seven Lectures on Human Rights (Juta 1976) at 64-65.'
In my view, I must attempt to reconcile the judgment of Berker CJ and I the
judgment of Mahomed AJA except where it is irreconcilable. In the latter instance the
judgment of Mahomed AJA concurred in by Trengove AJA must be followed.
It seems to me that the ratio can be summed up as follows:
(a) When the Court must decide whether or not a law providing for a particular
punishment is cruel, inhuman or degrading and thus in conflict with article 8 of the
Namibian Constitution and whether such law and such punishment is therefore
unconstitutional and forbidden, J the Court must have regard to the
1993 (1) SACR p287
O'LINN J
A 'contemporary norms, aspirations, expectations, sensitivities, moral
standards, relevant established beliefs, social conditions, experiences and
perceptions of the Namibian people as expressed in their national institutions and
Constitution', as well as the consensus of values or 'emerging consensus of values'
in the 'civilised international community'.
B What is to be regarded as the 'civilised international community'
is, however, subject to further definition and identification.
(b) The resultant value judgment which the Court must make, must be objectively
articulated and identified, regard being had to the aforesaid norms, etc, of the
Namibian people and the aforesaid consensus of values in the international
community.
(c) Whilst it is extremely instructive and useful to refer to, and C analyse,
decisions by other Courts such as the International Court of Human Rights, or the
Supreme Court of Zimbabwe or the United States of America, the one major and
basic consideration in arriving at a decision involves an enquiry into the
contemporary norms, aspirations, expectations, sensitivities, moral standards,
23
relevant established beliefs, social conditions, experiences and perceptions of the
Namibian people.
D (d) In order to make an objective value judgment, an enquiry of some sort is
required, which must at least comply with the mandatory provisions of the Supreme
Court Act and the High Court Act as well as with the elementary requirements for a
judicial tribunal in deciding issues of fact and law in any proceeding.
When I apply the aforesaid ratio to the issue to be decided in this E
application, it follows clearly that it cannot be found on the available material that life
imprisonment is unconstitutional.
There is a further alternative basis for holding that life imprisonment is not
unconstitutional.
This basis also distinguishes the present case from the one decided in the
case of Ex parte Attorney-General, Namibia: In re Corporal Punishment F (supra) in
that there is no express or implied provision in the Constitution itself for the
imposition of corporal punishment, whereas there is at least provision for
imprisonment and impliedly, for life imprisonment.
Article 7 provides that 'no persons shall be deprived of personal liberty except
according to procedures established by law'.
Article 121 of the Constitution provides for the establishment of a G prison
service obviously to deal with prisoners sentenced to imprisonment and
'imprisonment' certainly includes imprisonment for life.
Section 276 read with s 283 of the Criminal Procedure Act 51 of 1977,
provides for the imposition of a sentence of life imprisonment.
The Prisons Act 8 of 1959 provides for the treatment and possible probation
or parole of a prisoner sentenced to imprisonment for life.
H Procedures are therefore established by law for imposing life imprisonment.
Article 8 does not deal with imprisonment expressly. It seems that article 8
was not intended to deal with deprivations of liberty specifically established by law.
Article 9 provides for forced labour 'in consequence of a sentence or order of
a court' and for 'labour required from persons lawfully detained, which . . . is
reasonably necessary in the interests of hygiene'.
I Article 11 provides for arrest and detention of persons.
24
 Illegal immigrants need not be brought before a magistrate within 48 hours.
Article 12 provides for a fair trial and the punishment of convicted persons and
that persons in detention should be released unless tried within a reasonable time.
If the founders of the Constitution ever intended to outlaw imprisonment for
life, one would have expected such a sentence to be prohibited J expressly in
article 6 as in the case of the death sentence.
1993 (1) SACR p288
O'LINN J
A In the case of the death sentence, article 6 provides inter alia: 'No law may
prescribe death as a competent sentence'. But article 7, in contrast, specifically
legitimises deprivation of liberty, such as imprisonment, 'established by law'.
Article 8 should be read in context with articles 6, 7, 9, 11 and 12 of the
Constitution. Article 8 should furthermore be read subject to articles 7, 9, 11 and 12
and not vice versa.
B If not, it will lead to an absurd result, namely that forced labour required in
consequences of a sentence or order of a court, or for purposes of hygiene, arrest
and detention before or during trial, as well as a sentence of imprisonment, and not
only a sentence of imprisonment for life, will be in conflict with article 8 and thus
unconstitutional and prohibited, because it would per se -
C (a) violate the dignity of the convicted person;
and/or
(b) would be cruel, inhuman or degrading.
The Legislature is, however, presumed by law not to intend 'absurd results'.
See Steyn Uitleg van Wette 5th ed 118.
Subarticle (1) of article 8 has a general prohibition to the effect that D 'The
dignity of all persons shall be inviolable'.
Subarticle (2)(a) however deals specifically with the case of 'judicial
proceedings' or proceedings before any organ of the state and the 'enforcement of
penalty' where the injunction is merely that 'respect for human dignity shall be
guaranteed'. There is no mention of an injunction that a sentence may not be
imposed which in itself violates the dignity of E the person or in respect of which
human dignity is not guaranteed.
25
Paragraph (b) of subarticle (2) again deals specifically inter alia with
punishment and in respect of punishment the injunction is that it may not be 'cruel,
inhuman or degrading' but there is no injunction that punishment may not violate the
dignity of the person convicted.
If subarticle (1) is intended as a general and absolute prohibition F covering
all cases and circumstances, including penalties imposed in judicial proceedings,
then it would not have been necessary to deal specifically with judicial and other
proceedings before an organ of the state and 'during the enforcement of a penalty'.
Furthermore, there would be no use for a much weaker injunction than in
subarticle (1) by using the words 'respect for human dignity shall be guaranteed',
whereas in subarticle (1) the words are 'the dignity of all G persons shall be
inviolable'.
To have 'respect for human dignity' and to 'guarantee respect for human
dignity' certainly does not mean that human dignity may not be violated at all by the
imposition of a sentence by a court.
Respect for human dignity is guaranteed by the manner in which the
proceedings are conducted and, as to 'the enforcement of a penalty', by H the
manner in which the sentence is enforced, eg in prison.
The injunction in subarticle (2)(a), does not apply at all to the sentence or
sentence imposed as such.
It seems that article 8 must be read as a whole, and that the general and
sweeping prohibition in subarticle (1) of article 8 must be read in I conjunction with
and subject to the specific provisions in subarticle (2). See also Steyn (op cit at 155)
where he deals with the presumption that 'different words and different expressions
presuppose a different meaning'.
An instructive decision in point - although it focuses mainly on the death
sentence provided for at the time in the Constitution of Bophuthatswana, but also
extend the principle to punishments of imprisonment and corporal punishment, is the
decision of the Appellate Division of Bophuthatswana in S v Chabalala (supra at
628D-629E) of which J the relevant part reads as follows: (kortgeknip op CD).
26
1993 (1) SACR p677

27