JTC Book Criminal procedure

June 8th, 2010 CRIMINAL PROCEDURE AND PRACTICE IN THE NAMIBIAN COURTS An authorised Namibian adaption of the Legal Education & Development Courses for Candidate Attorneys The syllabus is compiled by experts in practice. 2009 update by Dr IG Curlewis, Pretoria, adapted for Namibia by Prof. Nico Horn, Windhoek with the financial assistance of the French Embassy, Windhoek.

Published by the Law Society of South Africa and its educational arm, LEAD as ePLT 2009.

Used under serial no. PLT 2009 -8277.

AIM After completion of the course candidates should be able to apply the most important principles and provisions of criminal procedure in the pre-trial, trial and post-trial stages of criminal proceedings.

PLEASE NOTE THE FOLLOWING: The application of the contents of these notes may differ from place to place.

Where reference is made to the male gender, such reference also includes the female gender and vice versa.

SYLLABUS The purpose of the course is to provide a broad overview of the subject from a practical point of view.

During training, instructors will only cover those aspects which candidate attorneys will encounter most often in practice the remainder of the course is self study.

1. INTRODUCTION Criminal court practice is not confined to the proceedings that actually take place in court, but encompasses the entire process which starts the moment when the attorney is approached to assist a client who is suspected of having committed an offence or has become involved in a criminal process of any kind whatsoever, and ends once the attorney has rendered the service requested or when his/her mandate is terminated.

The assistance requested may range from a mere request for an opinion on whether or not specific conduct constitutes an offence, or a request to represent a person who allegedly has been wrongfully arrested or whose property has been seized wrongfully, to a request to represent a suspect or an accused, or to initiate appeal or review proceedings or to make representations on a client's behalf for a pardon or an early release from prison.

Although it would be impossible to cover all possible requests that may be put to an attorney and to explain what should be done in each and every instance, we will attempt to explain the general approach which an attorney should adopt in regard to the more general requests that he will have to deal with.

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2. SOURCES 2.1 CONSTITUTION On 21 March 1990 the Constitution of the Republic of Namibia, Act 1 of 1990 came into operation. Chapter 3 of this Act contains a Bill of Fundamental Rights which has had a dramatic effect on the Namibian Law of criminal procedure. The Constitution also deals with the judiciary and also creates the High and Supreme Courts of Namibia.

2.2 OTHER STATUTES The main source of the South African law of criminal procedure and of evidence is the Criminal Procedure Act 51 of 1977 (hereafter referred to as the "CPA"). By adopting the CPA, parliament brought about an almost complete codification of the then South African and South West African law of criminal procedure.

The CPA, however, is not the only Act which contains provisions which are applicable to practice in our criminal courts. There are several other relevant statutory provisions in this respect. The most important of these are contained in the Magistrates' Courts Act 32 of 1944 and the High Court Act, 16 of 1990.

In these notes we shall refer to the above-mentioned Acts and other statutory provisions where applicable. The wording of statutory provisions will, however, not be reproduced in the predocumentation, since it is presumed that you are at least in possession of a copy of the Criminal Procedure Act, as amended, and have access to all the other statutory provisions.

2.3 COMMON LAW Despite the fact that our law of criminal procedure is, to a large extent, regulated by statute, there are still certain areas of criminal procedure and evidence law which are still regulated by common law. In instances of this nature one is obliged to turn to the general principles of the law of criminal procedure or the law of evidence to find answers to one's questions.

Most of these issues have, at some stage or other, been considered by our courts, which have made rulings with regard thereto. In such cases, one would obviously consult the law reports to find answers to questions. Other issues have been discussed by some of our leading authors on criminal procedure or evidence, and one may therefore consult their work to find some guidance on how to deal with a particular problem. In those exceptional instances where one fails to find answers to problems in either the law reports or the works of leading authors, one is obliged to turn to the English law, which has to a very large extent influenced the development of our law of criminal procedure and of evidence. This will require some research into legal history. If such research also proves fruitless, one will, as a last resort, have to do 2

some comparative legal research in order to find out how similar problems have been dealt with in other countries. This may offer possible solutions to the problem concerned, but one will have to be extremely careful and wary of the fact that one is dealing with a foreign legal system and cannot simply take over such principles without taking into account the difference between the South African legal system and that of the foreign country concerned.

Section 140 of the Constitution provides in this respect that a court may have regard to international law The High and Supreme Courts have on several occasions took notice of comparative foreign case law in interpreting the provisions of the bill of rights. In those judgements that have to date been delivered on the influence of the bill of rights on criminal procedure, the courts made extensive references to foreign case law. It seems as if this will remain the tendency in future. In this regard it is important to note that the South African and Canadian Constitutions are very similar to ours.

Apart from this, our case law is of course extremely important as far as the interpretation of the relevant statutory provisions are concerned. In view of the stare decisis principle, lower courts are generally bound by a higher court's interpretation of a statutory provision. Our law reports therefore remain an important source of knowledge of the law of criminal procedure and of evidence. Failure to do a proper search of court decisions relevant to your client's case may result in you being confronted in court by a recent decision of which you were unaware and which may necessitate a completely different approach from the one for which you prepared yourself.

Because of our common history with South Africa, the pre-1990 judgments are still an important source of our law and the post-1994 judgments of the South African Courts, especially the Constitutional Court has strong persuasive value.

It is presumed that you have access to the Namibian Law Reports (for the latest judgment see the Namibian superior courts website) South African Law Reports as well as the South African Criminal Law Reports and the Butterworths Constitutional Law Reports (BCLR).

2.4 TEXT BOOKS Although text books can never serve as an original source of the law, they probably represent the starting point of any research which you may need to do on any legal problem. It goes without saying that the law constantly changes and one should therefore always endeavour to consult the newest editions of text books and should take note of every book's date of publication and the so- called "cut-off" date. Developments since this date will not be dealt with in the book and require further research.

Although you are not required to study specific textbooks for the purposes of the examination, we would like to mention some of the most important works by some of our leading authors on 3

this subject. We will refer to some of these works in the material that follows, and assume that you have access to them.

E du Toit et al Commentary on the Criminal Procedure Act (hereafter referred to as "Du Toit").

(This work is published in loose-leaf form and is regularly updated. It provides the wording of sections of the CPA, as amended, as well as of certain sections from other Acts where applicable).

Lansdown and Campbell South African Criminal Law and Procedure Vol V Criminal Procedure and Evidence (1982) (hereafter referred to as "Lansdown and Campbell").

V G Hiemstra Suid-Afrikaanse Strafproses (Fifth edition by J Kriegler) 1993 (hereafter referred to as "Hiemstra"). (A yearly supplement is published to keep the work up to date between the publication of new editions).

Geldenhuys & Joubert Handbook on Criminal Procedure 1994 (hereafter referred to as "Geldenhuys and Joubert").

Hoffmann and Zeffert Law of Evidence (Fourth ed) 1989 (hereafter referred to as "Hoffmann and Zeffert").

Schwikkard and Van der Merwe Law of Evidence Amoo, Introduction to Namibian Law, 2009.

Horn & Bösl (eds) Rule of Law in Namibia, 2008.

Horn & Bösl (eds)The Independence of the Judiciary in Namibia 2008.

Horn & Schwikkard Commentary on the Criminal Procedure Act of 2004 (out of print).

2.5 ARTICLES AND OTHER SOURCES Academics at law faculties across the country (and sometimes even practising advocates, attorneys and staff members of the Department of Justice) from time to time publish (sometimes extremely useful) articles or reviews of court cases dealing with a specific topic.

These articles appear in our legal periodicals. We assume that you have access to the major legal periodicals published in South Africa. Doctoral and Master's theses may also be helpful.

Compulsory: Namibia Law Journal, three editions have already been published: Vol 1, no’s 1 and 2 and Vol. 2 no. 1.

There are of course several other works which are excellent to consult regarding specific sections of the law of criminal procedure or of the law of evidence, which are not mentioned above. Where we refer to some of these in the course material, we will furnish you with full particulars thereof.

3. PARTICIPANTS The main participants in the criminal process are the police or other law enforcement agency, the prosecuting authority, witnesses, the court (which includes the presiding officer and other

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staff members involved in the administration of the court), correctional services, and last but not least, the suspect, accused or convict and/or his representative.

In the following paragraphs a few remarks will be made about the role each of these participants play. The role of the courts will be discussed in the section that follows.

Before embarking on this discussion, it is necessary to point out that the participants mentioned above are not the only participants that take part in the administration of justice. In certain instances, other persons may also play a role. In some cases a probation officer may be requested to investigate the personal circumstances of an accused and to advise the court on an appropriate sentence, while in other cases psychiatrists may be requested to advise the court on the mental condition of the accused, i.e. whether he is fit to stand trial, whether he was criminally responsible at the time of the commission of the offence and even to what extent the mental condition of the accused contributed to the commission of the offence. We will refer to the role of these participants in this documentation, but for the present we will confine ourselves to the other participants who will always be present and take part in each and every case.

3.1 THE POLICE OR OTHER LAW ENFORCEMENT AGENCIES It is inter alia the function of the police to maintain law and order, to prevent crime and to investigate crimes that were allegedly committed.

The police normally receive notice in one of the following ways that an offence has been committed: they may be present during the commission of the offence and witness the commission thereof; they may receive a complaint from the victim or his representative or a witness of an alleged offence; they may receive information from an informer or an interested party that an offence has allegedly been committed or that an offence may possibly be committed; or they may receive a request from the prosecuting authority to investigate an offence that was allegedly committed.

Once the alleged commission of an offence has been brought to their attention, it is the duty of the police to investigate the circumstances surrounding the alleged commission of the offence, to establish whether an offence was, in their view, committed and, if so, to identify the perpetrator. The police have wide-ranging powers to conduct investigations into alleged offences. These powers include powers to enter property, to interrogate people, to arrest persons, to search persons and premises and to seize objects. Once the alleged commission of 5

an offence is reported to the police, an investigating official is normally appointed to coordinate the investigation. After having completed the investigation, the police will normally furnish the National Director of Public Prosecutions or his representative with full particulars concerning the circumstances surrounding the commission of the offence usually contained in the police docket to enable him to decide whether or not to institute criminal proceedings against the perpetrator.

The Namibian Police is not the only law enforcement agency in South Africa. By virtue of regulations promulgated in terms of section 334 of the CPA, several other officials (such as traffic officers and game wardens) are also regarded as peace officers for the purposes of the CPA, which means that they may also exercise certain of the powers granted to police officials.

Furthermore, there are also statutes that empower other officials (such as custom officials, certain inspectors, etc.) to conduct preliminary investigations. They will then hand over the matter to the police, who will refer the results of all the investigations to the ProsecutorGeneral or her representative for her consideration.

3.2 THE PROSECUTING AUTHORITY

Important reading: Horn. The Independence of the Prosecutoria Authority in Horn and Bรถsl, Independence of the Judiciary in Namibia Ex Parte Attorney-General: In re the relationship between the Attorney-general and Prosecutor-General, 1998 NR 282 (SC) (1), A Prosecutor-General (PG) has the authority to prosecute on behalf of the State in the area for which he has been appointed, and he does so in the name of the Republic.

As far as prosecutions in the High Court are concerned, a PG must personally decide whether to institute a prosecution, although she may appoint a member of his personnel to conduct the actual prosecution on his behalf. A member of his personnel is known as a State Advocate, but are also referred to as High Court Prosecutors.

In the case of lower courts, the public prosecutor, as the representative of the PG and subject to the control of the Senior Public Prosecutor and the deputy PG, is responsible for deciding whether a prosecution should be instituted or not and to conduct the actual prosecution.

Once a case docket is received from the police, the PG (or senior public prosecutor in the case of a lower court) normally appoints a public prosecutor from his staff to peruse it and advise him on whether or not to institute a prosecution. It sometimes happens that the public prosecutor needs further clarification or information in order to advise the PG (senior public prosecutor). In such instances, the docket will be referred back to the police with instructions to 6

obtain clarification or to conduct further investigations. Once a decision has been made, the police are advised accordingly. If a prosecution is instituted, a date is set for the trial and the necessary indictment (summons in the case of a lower court) and subpoenas are issued and served by the police on the accused and witnesses respectively.

In cases where the accused has been arrested and is still in custody, a slightly different procedure is followed. Since an arrested person has to be brought before a lower court within the extended period of forty eight hours (provided for in section 50 of the CPA) or else be released, a public prosecutor is often confronted with a case in which the accused has to be released or be brought before a court, but in respect of which the police investigation has not yet been completed and he is accordingly unable to proceed with prosecution.

In instances of this nature, the public prosecutor will normally (in consultation with the police) peruse the available evidence, including the evidence upon which the police official concerned made the decision to arrest the suspect, and then decide whether there is a reasonable prospect that the police will be able to obtain sufficient evidence within a reasonable period of time which would enable him to proceed to prosecute the suspect and whether or not it is in the interest of justice that the accused remains in custody while the police conduct further investigations.

If he is satisfied that there is a reasonable prospect that the police will be able to obtain sufficient evidence within a reasonable period of time which would enable him to proceed to prosecute the suspect, the public prosecutor will formulate provisional charges, but will request that the case be remanded until a date in future (suggested by him or arranged with the suspect's legal representative) by which date he is of the opinion that he will have sufficient evidential material to proceed with a prosecution and to finalise the actual charges upon which to prosecute the accused. If he is not so satisfied, the suspect will be brought before Court and the prosecutor will withdraw the charges which will entitle the accused to his release.

If the PG decides not to prosecute in a particular case, section 7 of the CPA determines that she must, on the request of an interested party who wishes to institute a private prosecution, issue a certificate (nolle prosequi certificate) indicating that he has decided not to prosecute. Section 7 - 17 of the CPA provide for matters pertaining to the institution of a private prosecution.

There is a single national prosecuting authority established in terms of Article 78 of the Constitution.

Any reference in any Act to an Attorney-General must be taken to refer now to the PG.

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3.3 WITNESSES We distinguish between state and defence witnesses.

3.3.1 STATE WITNESSES A state witness is a person who has supplied the State (prosecutor/police) with information regarding the commission of the offence and who may potentially be used by the State as a witness against the accused at the trial. Previously where the need arised for the defence attorney to consult with a state witness before judgement, he could only do so after having obtained the permission of the public prosecutor or attorney-general concerned (Hassim 1972 (1) SA 200 (N) and 1972 SALJ 292).

In South Africa in Shabalala and Five Others v Attorney-General of the Transvaal and Another 1996 (1) SA 725 (CC) it was held that this rule must be qualified in the light of section 25(3) of their Constitution. section 25(3) of the Constitution provides that every accused has a right to a fair trial. According to the Constitutional Court this right requires that an accused be given the opportunity to prepare his or her defence. According to the court this implies that the accused must be allowed to consult with state witnesses after the accused has been charged and the indictment or charge sheet has been served upon him or her. The court held that the DPP or his representative must still be approached for permission to consult with state witnesses, he or she may only refuse such permission if there are reasonable grounds to believe that such a consultation might lead to the intimidation of the witness or a tampering with his or her evidence or that it might lead to the disclosure of state secrets or the identity of informers or that it might otherwise prejudice the proper ends of justice. The court stated that it is a precondition that the witness agrees to be interviewed. Furthermore, the DPP/Prosecutor is entitled to be present during the interview and may record what transpires during it. If the DPP or his or her representative refuses permission for the interview to take place, the court may exercise its discretion to order that the defence be allowed to interview the witness despite such refusal (see par 72 of the judgment). The issue has not been raised in Namibia yet.

It is obvious that an attorney or his client may never attempt to influence state witnesses not to testify against the accused, whether such consultation takes place with or without the permission of the DPP or the public prosecutor concerned or not. Although this aspect will be dealt with later on, it is necessary at this stage to refer to a similar situation with which attorneys are from time to time confronted. The situation we are referring to, is that where the client, and not the attorney, has spoken to a state witness and has in the process obtained highly relevant information which he then passes on to the attorney. If the client obtained this information in innocent circumstances (e.g. during the alleged commission of the offence), there is of course no reason why an attorney should not take note thereof and why he may not make use of the information.

It sometimes happens, however, that the client approaches the state witnesses after they have already become state witnesses. In such a case, the client's conduct may constitute an offence 8

and an attorney must consider carefully whether or not he should act on that information at all.

If a client for instance offers the attorney (as has happened in the past) a copy of the police docket on the offence, an attorney should in principle refuse to accept it. A police docket often contains privileged information to which an attorney or his client is not entitled. This fact has been recognised in all judgments dealing with the right of access to information contained in police dockets which have been delivered since the commencement date of the Constitution.

To accept it would be highly unethical and would amount to conduct unbecoming an attorney, apart from the fact that the circumstances in which it was obtained may indicate that an offence was committed by the client. Only in exceptional circumstances, for instance where the docket or other information obtained by the client supplies proof that he has been framed or of corruption during the investigation, may an attorney decide to act on it. In such a case, the correct procedure which an attorney should follow, would be to inform the public prosecutor or PG concerned of the contents of the information received or of the fact that such proof is contained in a docket handed to him, and to supply him with the information or a copy of the docket.

The serious light in which interference with state witnesses is considered, is borne out by the fact that bail applications are often refused because it is feared that an accused may interfere with state witnesses. Access to information in a docket is not allowed for purposes of a bail application unless the prosecutor consents thereto.

3.3.2 DEFENCE WITNESS A defence witness is a person who is not a state witness and who may potentially testify on behalf of the client and whose testimony would support the client's case.

It is the duty of the defence attorney to establish during consultation with the client whether there are any persons who could potentially testify in support of his client's case and, where necessary, to consult with such persons to ascertain whether they will in fact be able to testify on behalf of the client. Not only persons who will potentially be able to testify in support of the client's innocence, but also persons who are able to testify in mitigation of a possible sentence are potential defence witnesses and should also be consulted before they are approached to testify.

Any witness not called by the prosecutor is available as a witness for the defence.

3.4 THE CORRECTIONAL SERVICES The Correctional Services are responsible for detaining awaiting-trial persons as well as prisoners sentenced to imprisonment. Once a person is sentenced to imprisonment, the court issues a warrant in which the correctional services are ordered to take the person identified in the warrant into custody and to detain him for the specified period. Immediately after sentence is imposed, the person sentenced is removed from the court by the court orderly and taken to the police cells at the court. The convict and the warrant is then handed to an official of the 9

Correctional Services who then removes the convict from the police cells to prison. Under normal circumstances, the family and friends of the convict are allowed to see him before he is removed by the official of the Correctional Services. The police official in charge of the police cells is also normally able to inform the family and friends of the accused to which prison he will be taken. Once a convict arrives at the prison, his personal belongings are taken into custody by the officials of the prison, and he is issued with clothes and other necessities which he will need during his stay in prison. On his arrival at the prison, the convict is also classified according to the type of offence he was convicted of. This classification will play a role in determining where he will be held and the type of privileges which he will be entitled to. In prison, the convict is subject to strict discipline. During his stay in prison, the convict is monitored and his classification may change from time to time according to the manner in which he conducts himself. Reclassification may bring with it certain additional privileges, such as more regular visits by friends and family, etc.

After a specified part of the term of imprisonment has expired, a report on the convict's conduct in prison and readiness to be re-incorporated into society, is submitted to the parole board, who may decide to release him on parole before the expiry of his actual term of imprisonment. It is possible to make representations to the parole board and to bring facts to their attention which have a bearing on the readiness of the convict to be re-incorporated into society. Factors which will play an important role in influencing the parole board's decision, are whether the convict will have a place to stay after his release on parole and whether an employer is prepared to offer him employment after his release. Information in this regard may be obtained from the prison where the convict is an inmate at that stage.

The Correctional Services are also from time to time responsible for the detention of persons who have not yet been tried or convicted. Such persons are known as "awaiting-trial" persons.

Persons awaiting trial are detained separately from convicted prisoners and are not supposed to come into contact with convicted prisoners. They also enjoy certain privileges which convicted prisoners do not have. Their legal representatives are allowed to visit them during reasonable hours and to consult with them in private. They are allowed to retain their personal clothes and belongings that they will reasonably require.

3.5 THE CLIENT AND THE DEFENCE ATTORNEY It is necessary to point out that the South African law of criminal procedure is based mainly on an accusatorial system in which the presiding judicial officer is supposed to be absolutely impartial and to act in a certain sense as referee between the State and the defence who are presenting their cases before him. An accusatorial system can, however, only function effectively if the parties to the case are on an equal footing as far as their knowledge of the law and experience are concerned. Although some concessions are made to an accused who is unrepresented, the accusatorial system is not ideally suited to handle cases where there is an imbalance in the legal expertise available to the respective parties to the case.

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This means that if an accused is not represented by a legal representative, he might be prejudiced by his own lack of knowledge and expertise, despite the fact that concessions are made to accommodate him in the system. It is exactly for this reason that the system provides for legal representation of the accused and in fact jealously guards this right.

However, one has to be aware that the opposite also applies. This means that once an accused is in fact represented by a legal representative, it is presumed that the defence has the necessary legal expertise to look after the interests of the accused. If the legal representative is inexperienced, little if any allowance is made for such inexperience, and he is simply presumed to be on an equal footing with the representative of the State. This means that inexperienced legal representatives must take special care to prevent their inexperience from resulting in their client being prejudiced.

The client is, as far as the defence attorney is concerned, probably the most important role player of all. A client is normally a layperson as far as the law is concerned and normally approaches the attorney because he realizes that he has no (or insufficient) knowledge of law.

Once a person briefs a legal representative to act on his behalf, the legal representative is placed in a position in which he is afforded certain powers to perform certain acts on behalf of his client. The client will under normal circumstances trust the judgment of his representative (otherwise he wouldn't have approached him) and will do as his representative tells him to do.

This places a heavy burden on especially the inexperienced attorney to see to it that the client's interests are looked after in the best possible way and that his own inexperience does not prejudice his client. In this respect it is important to bear in mind that an accused is normally bound by what has been done by his legal representative on his behalf during the trial Muruven 1953 (2) SA 779 (N).

The right to legal representation which was conferred by section 73 of the CPA is now also entrenched in the Bill of Rights in Article 12 (e) and 95 (h) of the Constitution. The effect of the entrenchment of this right in the Bill of Rights may, as has happened in the United States, possibly be that a detained or accused person now has the right to EFFECTIVE or COMPETENT legal representation. Whether this right would be interpreted in a similar way in South Africa, is debatable. Should an attorney be approached by a person and it appears from the consultation that the person has been prejudiced as a result of being represented by an incompetent legal representative, one may perhaps consider the possibility of taking the matter on review and of arguing that our Constitution should be interpreted in a similar way as that of the United States.

In such a case it will be necessary to refer to cases in which this was held in the United States (see eg McMann v Richardson 397 US 759 (1970); Cuyler v Sullivan 446 US 335 (1980); and Strickland v Washington 466 US 668 (1984).)

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Annexure The Right to Legal Representation: The Relationship between the Human Rights Covenants and the Constitution Nico Horn The high treason case against the so-called Caprivi secessionists had two very important legal off shoots. The first, Government of the Republic of Namibia and Others versus Mwilima and All Other Accused in the Caprivi Treason Trial,1 dealt with the right to free legal representation, the second, State versus Mushwena and Others,2 dealt with the question of jurisdiction of the courts to trial accused who were informally handed over to the police by officials of a foreign country.

The respondents (applicants in the court a quo), 128 of them, in the first case were all accused of high treason after an uprising and eventually an attack on several targets in Katima Mulilo in the Caprivi. They were all refused legal aid and launched an application in the High Court (the Court a quo in this case). The Court a quo ordered the second appellant, the Director of Legal Aid to appoint legal counsel for the respondents. The government appealed against this decision.

The legal question focussed on the enforceability of Art 95(h) of the Constitution. Unlike first generation rights, second generation rights are not entrenched in the Bill of Rights (chapter 3). They are to be found in Art 95 under the Principles of State Policy.

The government and its subsidiaries argued that Article 95 (h), unlike the basic right to legal representation in Art. 12 (e), are limited to defined cases and resources of the State. 3 The respondent did not take up the issue of limited responsibility, but rather argued that in this particular case the facts and legal issues are such that the accused will not get a fair trial unless they are provided with counsel. Since the State refuses to or is unable to provide legal representation in terms of Art. 95 (h), the Court should make a ruling in terms of Article 12 (e) to ensure a fair trial.

An unfortunate amendment to the Legal Aid Act, 29 of 1990, was the subtext of this issue. Initially Section 8(2) gave a High Court bench the authority to issue a legal aid certificate to an unrepresented accused if there is sufficient reason why the accused should be granted legal aid. The certificate compelled the Director of Legal Aid to grant legal aid to the accused.

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2002 NR 235 (SC).

2004 NR 276 (SC).

3 Art. 95 (h) reads as follows: The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: ‌..(h) a legal system seeking to promote justice eon the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State.

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Typically of the period, the government wanted to limit the rights of the courts to make decisions that could place a financial burden on the State. Government felt that certificates were issued indiscriminately by the judges without due regard to available funds with the result that during successive years the funds allocated for legal aid were exceeded.4 Parliament amended the Act and scrapped the mention sections by Act 17 of 2000.

The applicants in the court a quo concentrated on the amendments and requested the High Court to declare them unconstitutional. The High Court found it unnecessary to entertain the constitutionality or not of the amendments, as did the Supreme Court. The effect was that the granting of legal aid in terms of the Act was taken from the High Court and placed solely in the hands the bureaucratic structures of the Ministry of Justice.

The government attorney, who represented the appellant, argued that since principles of state policy cannot legally be enforced by a Court in terms of Article 101, the courts have no jurisdiction whatsoever to determine if and under what circumstances legal aid should be awarded. Any instruction by the Court to the State to grant legal representative to an accused would be inappropriate and an intrusion on the exclusive domain of parliament to decide how and in what way funds should be allocated to its various ministries. 5 The majority judgment, written by Justice Strydom, agreed that that art 95(h) expresses only the intention of government to facilitate equality and justice by providing statutory legal aid to those who qualify. The implementing legislation that gives effect to Art 95(h) is the Legal Aid Act. With the amendment, the judges can no longer intervene where the Legal Aid Board or the Director have turned down an application for legal aid. The Court calls this form of legal aid statutory legal aid.6 However, this is not the end of the issue, as the government attorney argued. It may be that the Court is of the opinion that a accused will under certain circumstances not receive a fair trial in terms of Article 10 and 12 [especially subsection (1) (e)] of the Constitution if she is not represented. Then it is the duty of the Court to ensure that steps are taken to guarantee a fair trial. Article 12, being part of the enshrined Bill of Rights, is not part of the principles of state policy and not subjected to budget constraints or availability of resources.

But how can the court obtain the leverage to instruct the government to grant legal aid if it can no longer issue legal aid certificates? The Court begins its argument by pointing out that the categories of fair trial elements mentioned in Article 12 are not closed. This was demonstrated in State versus Scholtz7 where the Court looked at the principle of equality before the law in Article 10(1) of the Constitution and concluded that state disclosure is a principle of a fair trial.

Consequently, Article 10(1) is also a test to determine if a trial is fair in terms of Article 12. There can be instances where two people are equally placed, one may not get a fair trial 4

Commentary of the Chief Justice in Mwilima case, p. 250. ibid., p. 255.

6 ibid.

7 1998 NR 207 (SC).

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because she does not qualify for legal representation in terms of the provisions of the Legal Air Act or because of a lack of state resources. Yet, the limitations of Article 95 (h) and the Legal Aid Act still stand between a fair trial and the accused. The Chief Justice found the answer in Article 144 of the Constitution: Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.

Since Namibia ratified both International Covenant on Civil and Political Rights (ICCPR) and its optional protocols, it forms part of Namibian law. Although the Court does not go into the general rules of direct application, it found that ICCPR is indeed part of Namibian law and the courts must accede to it. Section 14(3) of ICCPR is a combination of Articles 12 (1) (e) and 95(h), without the limitations of Article 95, providing legal aid ….. in cases where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. Consequently, as a party to ICCPR, Namibia is bound to apply section 14(3) in its local jurisdiction.

The two judges who wrote separate judgment agreed with the principle that the State is bound under the specific situation to grand legal aid to the accused. It is necessary for this study to go into the separate judgment. Suffice to say that Judge O’ Linn suggest that the idea of two forms of legal aid is confusing. All legal aid, he holds, is grounded in the Legal Aid Act. But in terms of the provisions of ICCPR and taking Article 95 (h) in consideration as a principle of the State in effecting justice, the court can instruct the state to provide legal aid, irrespective of the fact that specific budget may be depleted.

The Court made it clear that legal aid will never be automatic. The Court will always have to satisfy itself that it is indeed in the interest of justice to grant legal aid in a specific case, and that the refusal of legal aid will make a fair trial impossible.

The judgment was a clear message to the legislator. The protection granted by the Constitution and especially the Bill of Rights (chapter 3) cannot be annulated by innovative legislation. Justice O’ Linn made the following comment: If the intention of the amendment was to exclude the function of the Court, it was an exercise in futility, because as shown in this decision, the Court retains the power in accordance with arts 5 and 25 of the H Namibian Constitution to decide whether or not legal aid must be supplied by the Government (the executive) and/or the Director of Legal Aid to ensure a fair trial as contemplated by arts 12 and 10 of the Namibian Constitution and s 14(3) (d) of the aforesaid convention on political and human rights which is I part of the law of Namibia.8 8

ibid., p.279.

14

The direct application of the Section 14 of the ICCPR was an innovative and exciting development in constitutional jurisprudence in Namibia, albeit somewhat naïve. The constant reference to The Covenant gives the reader the impression that the Court is not aware of the other Covenant – The Covenant on Social, Economic and Cultural Rights, (ICSECR) which was ratified by Namibia on 28 November 1994, the same day that it ratified ICCPR. Nevertheless, judgment open the door for litigation based on a violation of social and economic rights. If the constitutional mothers and fathers included Article 101 to make sure that government is not burdened with litigation laying claims on economic and social benefits envisaged in Article 95, the Mwilima case came as a wakeup call.

Nakuta reminds us that Namibian litigation has done little to improve the socioeconomic fate of the vast number of poor people and to narrow the gap between the rich and the poor. 9 He reminds his readers of the fact that the Vienna Convention has declared that all huma rights are universal, indivisible, interdependent and interrelated.10 However, in Namibia civil and political rights has a vast advantage over social and economic rights, mainly because of the exclusion of social and economic rights from the Bill of Rights and the limitation to litigate placed on the economic rights by Article 101. Nakuta argues correctly that the drafters of the Constitution bought into the idea that social and economic rights were not true rights.11 As a consolation prize, some social and economic rights were listed in Chapter 11 as principles of State Policy. Instead of second generation rights being human rights entitlements and tools of empowerment, the poor are still left at the mercy of government policies and programmes.12 Without referring to the use of the ICCPR in the Mwalima case, but with reference to two other Namibian cases,13 Nakuta concluded that economic and social rights can be brought to the Namibian legal agenda through an original application of Article 144 of the Constitution.

He also proposed an indirect application of civil and political rights to litigate for second generation rights.14 Several civil and political rights have social and economic consequences. If the right to dignity (Article 8 of the Constitution), is taken seriously, social and economic issues cannot be ignored. How can a person have dignity if she is forced by poverty to live on the streets, have no prospect to earn a decent living or the possibility to take care of her children?

9

Nakuta, J. 2008. The Justiciability of Social, Economic and Cultural Rights in Namibia and the Role of the Non-governmental Organisations, in Horn, N. and Bösl,A. 2008. Human Rights and the Rule of Law in Namibia. Windhoek: MacMillan Namibia, p. 89 ff.

10 Quoted on ibid., p. 91.

11 ibid., p. 95.

12 See ibid., p. 95, as well as the work quoted by Nakuta: Asbjørn, E & Allan, R. 2001. Economic and Social Rights and Cultural Rights: A universal Challenge. Dortrecht: Martinus Nijhoff, p. 3.

13 The first Kauesa case supra. See footnote xxx above. Muller and Engelhard versus Namibia, CCPR/c/74/D?919/2000.

14 Supra, p.98 ff.

15

Nakuta quotes an Indian case – India has the same limitation clause and inferior position of economic rights in its constitution – to prove his point:15 (t)he right to life includes the right to live with human dignity and with all that goes with it, namely the bare necessities of life such as adequate nutrition, clothing, shelter……16

The point is clear. The Mwilima case opened the door for more innovative jurisprudence. One question remains: Is it a valid interpretive model used by the judges or is it what the government attorney called inappropriate and an intrusion on the exclusive domain of parliament to decide how and in what way funds should be allocated to its various ministries, and to add Judge O’ Linn’s comment, a wrongful and unlawful intrusion?17 The old majoritarian argument also applies here. It was well articulated by the Government Attorney. If the Constitution makes the granting of legal aid dependent upon resources and the kind of cases, and the Constitution further stated that Chapter 11 rights (or Principles of State Policy) cannot be enforced by the Courts, then how is it possible that a Court can intrude on this exclusive domain of Parliament and force government to allocated money to a case that was denied funds by the State functionaries? Is the Court not making law here?

And how can the Court rely on a human rights instrument if Article 144 of the Constitution clearly states that Namibian statutory law and the Constitution take precedence over principles of international law?18 The Government Attorney gave more weight to her position by stating that the government believes in equality before the law. Therefore it cannot deplete its legal aid budget on just one case. This seems to be a fair point.

However, the decision of the Prosecutor-General to prosecute all 128 accused for all the crimes listed in the indictment and especially for high treason, does not make much legal sense.

Since high treason has to do with the attitude of the accused, his intention to overthrow the government, even the apartheid government seldom succeeded in convicting high numbers of accused in one case.

Taken into account that many of these accused are linked to the crime only indirectly by applying the so-called common purpose doctrine,19 the modus operandi of the Prosecutor15

Ibid., p.99.

Mullin versus The Administrator, 1981. 2SCR 516 at 529, quoted in ibid.

17 If the intrusion is not illegal and wrongful, the judge suggested, 18 Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia. (Underlining mine JNH).

19 The doctrine, valid and acknowledge by most common law jurisdictions, is applied primarily when a obvious conspirator cannot be linked directly to a crime. The school example is the driver of the runaway car in robbery cases. While he is not present when the pistol is pulled, or the money taken, his actions show that he has common purpose with the main perpetrators. In the apartheid era the doctrine was often 16

16

General can be questioned.20 While the Prosecutor-General cannot be blamed for using the traditional test of a prima facie case, the external pressure did not make things easier.21 However, while the Prosecutor-General could have made the process less complicated, it still does not solve the conflict between the government and the Supreme Court.

used against people who joined a looting mob or were part of a protest march where some protesters committed crimes.

20 There is no precedent in Namibia to take the Prosecutor-General on review for his decisions to prosecute or not, or how and whom to prosecute in a specific situation. See Uanivi, U. 2007.xxxxxx , Windhoek: University of Namibia. Unpublished LLM thesis.

21 This is not to say that the Prosecutor-General made a political decision. Since the Prosecutor-General is not compelled to give reasons for his decisions, the public will never know why he prosecuted as he did. The Prosecutor-General at the time, Adv. Heyman, was not known as one who tried to please politicians (see the Ex Parte Attorney-General/Prosecutor-General case.). It is nevertheless possible that all the pressure and emotional appeals made it easy for the Office of the Prosecutor-General not to consider arguments beyond prima facie evidence.

17

4.1 HIGH COURTS See Amoo chapter 4 The high courts in Namibia are divided into the Supreme Court, and the High Court.

The Supreme Court was established by Article 79 of the Constitution. There is only one Supreme Court and its seat is in Windhoek. The chief justice of Namibia is appointed to head this court. Judges of the Supreme Court are appointed by the President mostly from the ranks of judges of the High Court. The Supreme Court has never had more than two permanent judges. The Court relies on acting appointees to fulfil its mandate.

The High Court of Namibia was established by Article 80 of the Constitution. There is only one High Court, with two seats, one in Windhoek and one in Oshakati.

Judges of the High Court are appointed by the President acting upon the recommendation of the Judicial Service Commission. The judge president heads the court.

A clerk is appointed to every Judge. The Judge's clerk performs the duties of registrar of the court when the court is in session. This inter alia means that he is responsible to have witnesses sworn in. The Judge's clerk in practice also performs certain secretarial functions for the Judge.

If one wishes to approach a Judge in chambers (his office), one would for instance approach the Judge's clerk who will accompany you, announce you and introduce you to the Judge when he is available.

As soon as the Court is ready, the Judge is informed thereof by a police official (court orderly) who will also escort the Judge to the Court.

A registrar is appointed for the High and Supreme Courts. The registrar is responsible for performing certain administrative functions and has administrative staff under his control to perform the various tasks on his behalf.

4.2 LOWER COURTS The only lower courts with which we are concerned at this stage are the regional courts and magistrates' courts (district courts).

A magistrate's court is instituted for a particular district, while the regional court is appointed for all of Namibia, with seats in several regions.

Regional court magistrates act as the presiding officials in regional courts, while magistrates act as presiding officials in magistrate's courts.

18

A magistrate is appointed as head of the magistrate's office. His first responsibility is the administration of the courts at that office. Although the magistrates, regional court magistrates and public prosecutors at that office fall under the head of the office for administrative purposes, they are all bound by their oath of office to apply the law as it stands, and the head of the office may not interfere in their adjudication of cases. Public prosecutors are responsible to the National Director and DPP of the area for the manner in which they handle cases and not to the head of the office (who may also not interfere with the way in which they exercise their discretion).

The head of the office has administrative personnel under him to perform the administrative functions at the magistrate's office. These functions are similar to those performed by the administrative personnel of the registrar of the High Court. In magistrates' courts and regional courts there are of course no judges' clerks as in the High Court. The duties performed by the Judge's Clerk in the High Court are in the Lower courts mainly performed by the Clerk of the Court. Some of the functions are done by the Presiding Officer himself, eg. to sworn in witnesses.

19

ABSTRACT THE INDEPENDENCE OF THE MAGISTRACY The position of magistrates as part of the independent judiciary in terms of the Namibian Constitution has been discussed at several magistrates conferences since independence. However, the issue was only given serious attention when the magistrate of Gobabis took a decision of the permanent secretary of the Ministry of Justice to transfer to Gobabis him on review.

The Supreme Court ruled that in the light of the constitutional independence of the magistrates, the general practice to see magistrates as public servants, is unacceptable.22 Referring to the South African constitutional Court case Van Rooyen and Others versus The State23 the Court stated that it does not mean that they should be appoint in the same manner as judges. The Namibian Constitution makes a clear difference as well. Judges are appointed by the President upon recommendation of the Judicial Service Commission, their salaries may not be reduced and the and the circumstances in which they may be removed from office are prescribed.

The Constitution does not render the same protection to magistrates. There is not even an indication that they must be appointed by an independent commission.24 However, that does not mean that their independence should not be protected. Yet, the hierarchical differences between magistrates and prosecutors must be taken in consideration. Magistrates have a lesser jurisdiction,25 they do no not have constitutional review powers, i.e. they cannot strike down unconstitutional laws, they are courts of first instance,26 aggrieved persons can take all the judgments of the magistrates courts on appeal and longer sentences of district courts are automatically reviewed by the High Court.

The Court made it nevertheless clear that the independence of magistrates are part of the constitutional dispensation an so clear, that the judge in the court a quo was correct in

22

Mostert versus Minister of Justice, 2003 NR 11 (SC).

2002 (5) SA 246 (CC); 2002 (8) BCLR 810.

24 Art. 83, dealing with lower courts, reds as follows: (1) Lower Courts shall be established by Act of Parliament and shall have the jurisdiction and adopt the procedures prescribed by such Act and regulations made thereunder.

23

(2) Lower Courts shall be presided over by Magistrates or other judicial officers appointed in accordance with procedures prescribed by Act of Parliament.

25

The jurisdiction of regional court magistrates have increased tremendously after independence. A regional court magistrate can trial any crime except high treason, including murder and rape. She can bestow a sentence of twenty years per charge.

26 The Community Courts Act has given district courts appeal powers over the community court judgments. The Act, although promulgated in 2004, has not been enacted yet.

20

refusing to make a declaratory order to that effect. Article 78,27 dealing with judicial independence, the Supreme Court stated, dealt with all the courts in Namibia.28 Since the legislator did not comply with the expectation of Art. 78 of the Constitution to pass legislation regulating an independent magistracy, the Permanent Secretary of the Ministry of Justice just took over the pre-independent role of the South African directors and the laws regulating the Public Service. Consequently, magistrates in Namibia were seen as public servants and dealt with in terms of the Public Service Act 13 of 1995. The authority of the permanent secretary to transfer magistrates (the issue of the Mostert case), was derived from section 23 (2) of the Act. Before independence both South African and Namibian magistrates courts were regulated by Act 32 of 1944.The Act dealt with magistrates as part of the public service. The magistrate was not only to be the presiding officer in the magistrates court, she was also the head of the office and had to deal with leave of the clerks and prosecutors, the daily administration of all aspects of the office, such liquor licenses, tax and VAT collections, issuing of birth certificates, and all other functions assigned to the office.

The main bone of contention of the appellant , Magistrate Mostert, was the power of the Minister of Justice to appoint magistrates. The Act was amended by Act 1 of 1999, but the amendment was not aimed at bringing the magisterial profession in line with the Constitution.

On the contrary, the Minister not only remains as the appointing officer of magistrates, she also received the power to appoint any other competent staff member in the Public Service or a competent retired staff member to act in the place of an absent or incapacitated magistrate. 29 The main objective of the amendment was to deal with the legality of regional court magistrates. After independence the Appointments Advisory Board, a South African body dealing with the appointment of regional court magistrates, seized to deal with Namibian appointments. The Minister just took over the board’s functions. The amendment gave legality to this practice. In effect, the Minister gained total control over the appointment of magistrates.

27

Sections 2 and 3 reads as follows: (2) The Courts shall be independent and subject only to this Constitution and the law.

(3) No member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.

28

29

2003 NR p.31.

Subsection 3.

21

The Supreme Court concluded correctly that the amendment did not give effect to Art. 83 (1) of the Constitution.30 The Chief Justice then made the following comment regarding the two Acts: It seems to me futile to leave intact the provisions of Act 32 of 1944 which are in conflict with the Constitution. To do so would be to give legal impetus to provisions which are not constitutional. In my opinion it is necessary to finally cut the string whereby magistrates are regarded as civil servants, and that will only be possible once new legislation completely removes them from the provisions of the Public Service Act.31

Consequently, the Supreme Court declared sections 9 (as amended) and s 10 of the Magistrates' Courts Act 32 of 1944 unconstitutional. Government was given six months to correct the legislation (i.e. to give effect to Art 83 of the Constitution, by passing legislation that will make magistrates really independent).

Further the Court declared that section 23(2) (a) of Act 13 of 1995 is not applicable to magistrates and that consequently the order of the permanent secretary to transfer the appellant, was ultra vires.32 As a result, the Magistrates Court Act , 3 of 2003 was passed by Parliament . The long title of the Act reads as follows: To provide for the establishment, objects, functions and constitution of a Magistrates Commission; to provide for the establishment of a magistracy outside the Public Service; to further regulate the appointment, qualifications, remuneration and other conditions of service of, and retirement and vacation of office by, magistrates; to provide that certain conditions of service of magistrates may be prescribed by regulation; and to provide for matters in connection therewith.

The objectives of the Supreme Court are clear: It identified two problems in the status quo: the fact that Minister of Justice, a political appointee, has the exclusive power to appoint both district and regional magistrates, and the fact that magistrates are still seen as public servants despite the clear stipulations of the Constitution. The judgment nowhere refers to the fact that the Minister is a political appointee, the separation of power remains the most important aspect of judicial independence. The conflict between the Attorney-General and the Prosecutor-General was solved by the Supreme Court with a clear judgment that the

30

ibid., p. 33. ibid. p. 35.

32 Ibid., p. 39 31

22

Prosecutor-General as a quasi-judicial office must be totally independent of the AttorneyGeneral, a political appointee. 33 If the independence of the Prosecutor-General from the Attorney-General is crucial for the independent functioning of the prosecutorial authority, the cutting of the umbilical cord of the magistrates from the Minister of Justice must be even more crucial.

During the fourth government of Namibia under the new presidency of Hifikipunya Pohamba, the offices of Minster of Justice and the Attorney-General is held by the same person. It would be ironic if the Minister cum Attorney-General is kept at arm length from the Prosecutor-General, but allowed to play a major role in the execution of the magistracy in Namibia.

Yet, the objectives set by the Act in section 3 seem to still give the Minister the central stage: a) to ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, magistrates take place without favour or prejudice, and that the applicable laws and administrative directives in this regard are applied uniformly and correctly; b) to ensure that no influencing or victimization of magistrates takes place; c) to promote the continuous judicial education of magistrates and to make recommendations to the Minister in regard thereto; d) to ensure that properly qualified and competent persons are appointed as magistrates; and e) to advise the Minister regarding any matter which, in the opinion of the Commission, is of the interest for the independence of the magistracy and the efficiency of the administration of justice in the lower courts.

While sub articles (a) and (b) seem to emphasize the independence of the magistrates, the two issues dealt with in the Supreme Court, the role of the Minister in terms of the old Magistrates Court Act, and the role of the permanent secretary in terms of the Public Service Act, are not even mentioned. On the contrary, subsections (c) and (e) give the impression that the Minister is still te major role player. The only role in the objectives given to the Magistrates Commission is to advice the Minister of its opinion on among other things, matters which is of the interest for the independence of the magistracy.

If it was the intention of the legislator to radically acclaim the independence of the magistracy, one would have expected a central position for the Commission in the Act. While 33

See Ex Parte Attorney-General In Re: The Constitutional Relationship between the Attorney-General and the Prosecutor-General, 1998 NR 282 (SC) (1)

23

the judgment did not give specific guidelines as to how the legislator should meet the demands of Art. 83 of the Constitution, the reference to Van Rooyen and Others versus The State, possibly inspired the legislator or Cabinet to look south for guidelines. In South Africa the Minister was replaced by a Magistrates Commission.34 The Act describes the role of the Magistrates Commission in appointing magistrates as follows:35 The Commission must: f) make recommendations to the Minister with regard to – …i) the suitability of candidates for appointment as magistrates; The appointment of magistrates is still left in the hands of the Minister of Justice who may appoint magistrates at the recommendation of the Magistrates Commission. If it had not been for the permissible may in the text, the fact that the Minister acts on the recommendation of the Commission would have created an acceptable check on the power of the Minister. Recommendation is a much stronger word than consultation.

Consultation places a burden on the official to obtain an opinion from the consultative body. After consultation the official is free to make her own choice, provided that it does not contradict the common law, principles of natural law and the Constitution.

The Namibian practice has created a precedent which will make it difficult for an official not to follow the recommendation of a body prescribed by law to recommend. In terms of the Constitution the President appoints the Ombudsperson at the recommendation of the Judicial Service Commission. However, after the death of the first Ombudsman, the President 34

The South African Magistrates Commission, instituted by the Magistrates Act, is, like the Judicial Service Commission, loaded with politicians.

35 The full text of section 4(1) reads as follows: (1) The Commission must – a) prepare estimates of the expenditure of the Commission and the magistracy for inclusion in the annual or additional budget of the Ministry of Justice; b) compile, after consultation with the Judges’ and Magistrates’ Association of Namibia, a code of conduct to be compiled with by magistrates; c) receive and investigate, in the prescribed manner but subject to subsection (4), complaints from members of the public on alleged improper conduct of magistrates or alleged maladministration of justice in the lower courts; d) receive and investigate, in the prescribed manner, complaints and grievances of magistrates; e) carry out or cause to be carried out disciplinary investigations into alleged misconduct of magistrates; f) make recommendations to the Minister with regard to – i) the suitability of candidates for appointment as magistrates; ii) the minimum standard of qualification required for the purposes of section 14; iii) the conditions of service of magistrates, including their remuneration and retirement benefits; iv) the dismissal and retirement of magistrates; and v) any matter referred to in section 3(e); and g) perform any other function entrusted to the Commission by or under this Act or any other law.

24

appointed the Acting Ombudsperson, Adv. Kasutu without consulting or receiving a recommendation from the Judicial Service Commission. After an outcry, the President withdrew the initial appointment and requested the Judicial Service Commission to make a recommendation. Eventually Adv. Bience Gawannas was appointed as the second Ombudsperson of the Republic of Namibia.

It is not clear why the legislator used the permissible may rather than a clear instructive sentence: The Minister shall on the recommendation of the Commission…… appointment…. magistrates….on the permanent establishment.

The word may cannot mean that the Minister does not have to appoint magistrates to vacant posts if she does not feel like it. It clearly cannot mean that the Minister may leave the appointment to someone else, or to the Magistrates Commission, since those options are not provided for. Or does it mean that the Minister can also appoint without any recommendation, but he may also request the Commission to recommend? Such an interpretation would fly against the Supreme Court judgment.

Even if the wording cannot be interpreted to allow the Minister unrestricted powers to appoint, it remains suspicious that the legislator used the permissive sense without any specific objective. If nothing else, it points to yet another stubborn challenge to the Constitution and constitutionalism by government during this period.

The Act did not go unchallenged. Magistrate Mostert went back to the High Court. 36 Mostert challenged the independence of the Magistrates Commission and the role of the Minister in the new Act. The High Court concluded that although the Minister plays a role in the appointment of the Commission, it cannot be said that the members are therefore bound to follow the directives of the Minister. There are several checks built into the Act that will make the appointments credible and will make it extremely difficult for the Minister to manipulate any process.37 The Commission consists of one judge designated by the Judge-President, the chief lower courts, one person designated by the Attorney-General, one person designated by the Judicial Service Commission, one magistrate appointed by the Minister from a list of three magistrates nominated by the Judges’ and Magistrates’ Association of Namibia, a staff member of the Ministry of Justice designated by the Minister and one teacher of law appointed by the

36

Walter Mostert and Another versus Magistrates Commission and Another, unreported case of the High Court of Namibia, Case No.: (P) I 1857/2004.

37 See the elaborate answer of the Court to each of the criticisms against the members of the Commission. Supra, p.20ff.

25

Minister from a list of two teachers of law nominated by the Vice-Chancellor of the University of Namibia.38 Although the Minister appoints three persons, he is limited in his choices of the magistrate and the law teacher. The Public Service Commission is an independent constitutional organ and they have the power to designate a member. In the same way one cannot question the independence of a High Court judge. Consequently, at least four of the seven members can be seen to be independent. On these points I agree with the judgment.

The applicant is also wrong in stating that six of the seven members of the Commission are public servants. The Court pointed out that nothing stipulates that the Public Service Commission designated member must be a public servant39 and the UNAM law teacher is also not a public servant.40 It seems strange that the Minister should get three nominations from the Judges' and Magistrates' Association. The section looks suspicious. But it is still highly unlikely that the Association will nominate anyone to the Minister that will not represent the Association's own strong principled position on the independence of the judiciary.

The designated members of the Minister41 and the Attorney-General are public servants, as is the Chief Lower Courts.42 Since the Minister of Justice/Attorney-General is occupied by one person in the Pohamba cabinet, the Minister/Attorney-General directly oversees the employment of three of the seven Commission members.

The Court erred in stating that the appointment of a politician is of no significance to the independence of the office. This is the position of the South African Constitutional Court, but not the position of the Namibian Supreme Court. The Constitutional Court explicitly rejected the Ex Parte Attorney-General/Prosecutor-General case on this point. At the time of the Certification of the Final Constitution, the Court was requested to look at the independence of the National Director of Public Prosecutions (NDPP) in the light of the fact that the NDPP is appointed by the President, unlike the Namibian Constitution, demanding appointment by the President at the recommendation of the Judicial Service Commission. The Constitutional Court made the same point as the Namibian High Court: 43 The Ex Parte ProsecutorGeneral/Attorney-General saw important significance for the independence of the Office of the Prosecutor-General in the fact that she is, unlike the Attorney-General appointed at the recommendation of the Judicial Service Commission.

38

Section 5(1) Supra, p.24.

40 Both members of the Law Faculty who have been appointed by the Minister since the Act was promulgated, are also practicing legal practitioners, possibly an intentional decision by the ViceChancellor of the university to prevent the nominated staff members to be pressurized by the Minister.

41 The Court stated that the representative of the Ministry of Justice only needs to be a suitable person and not necessary a public servant. This assertion seems to be wrong if one considers the wording of the Act: one staff member of the Ministry of Justice designated by the Minister.

39

42

See Kobi Alexander versus the Minister of Justice and Others ????, 2008. Unreported case of the High Court delivered on 2 July?? 2008, Coram: Justice Parker. The Court ruled that the Chief Lower Courts cannot sit on this extradition case since he is a public servant and that in terms of the Extradition Act the appointment of a magistrate to hear the extradition application, must be done by the Minister and not the Magistrates Commission.

43 See the argument on p. xxxx above.

26

The conflict between the President of South Africa and the NDPP, Mr. Vusi Pikoli, underlined the problem relating to the difficulties encountered in a relationship where the President appoints.44 In this case, the President summarily suspended the NDPP, possibly because the NDPP issued a search warrant and a warrant of arrest for the Commissioner of Police, Jackie Selebe. Since he was not appointed at the recommendation of the Judicial Service Commission, Adv. Pikoli also had no protection from the Commission when he was suspended.

The fact that the Minister of Justice/Attorney-General appoints two public servants from her own fold of employees, does not reflect well on the independence of the Commission, especially if a third member is a staff member of the Ministry of Justice.

The Court stated that even if the Commission is not independent, it does not reflect negatively on the independence of magistrates.

I see nothing in the Constitution which suggests that magistrates should be appointed by an independent body. That would in any event be requiring standards more rigorous than those in place for the appointment of Judges and would go against the spirit of the Supreme Court judgment. I do not therefore see on what basis the fact that the Minister is the appointing authority for Magistrates can, without more, be objectionable if Judges are appointed by the President who wields ultimate executive power in the Republic.45 However, as has been stated above, the appointment of judges by the President at the recommendation of the Judicial Service Commission, is not comparable to the Minister who may appoint magistrates at the recommendation of the Judicial Service Commission and the Minister who, appoints two members of the Magistrates Commission and plays a role in the appointment of four others.

The Supreme Court obviously had a problem with the huge role the Minister and her senior public servant, the permanent secretary, played under the old dispensation in terms of the Public Service Act and the Magistrates Act 32 of 1944, as amend. Yet, the Magistrates Act did not limit the powers of the Minister. Neither did it bring real independence to the magistrate or gave substantive power to the Magistrates Commission.

The Act gives the magistrates in office at the time of the promulgation of the Act tenure of office.

Judge President Damaseb based his judgment on the Van Rooyen case and Canadian and USA cases, all stated that independence can be obtained through different structures.46 He approvingly quoted from the Valente case, also quoted in South African cases and the first Mostert case: 44

See Horn, N. 2008. A Comparison between the NDPP of South Africa and the Prosecutor-General of Namibia, in Horn, N and Bรถsl, A (eds). 2008. The Independence of the Judiciary in Namibia, Windhoek: Gamsberg Publishers.

45 Supra, note p. 23.

46

th

See Valente v The Queen. 1986 24 DLR (4 ) 161 (SCC). The Queen in Right of Canada v Beauregard. 1986 30 DLR th

(4 ) 481; De Lange v Smuts NO and Others 1998 (3) SA 785at 813-814 (CC).

27

Judicial independence can be achieved in a variety of ways; the most rigorous and elaborate conditions of judicial independence’ need not be applied to all courts, and it is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system.

One cannot argue with this position. The Constitution does not set the same requirements of appointment for the Superior Courts and the Magistrate Courts. However, both the Constitution and the Supreme Court in the first Mostert case and the Ex Parte Attorney-General/Prosecutor-General case laid down some benchmarks for independence. And these benchmarks were not met in the second Mostert case.

The applicants did not appeal to the Supreme Court. The magistrate resigned and his counsel, Adv. E. du Toit, SC, passed away. Despite the positive judgment of Justice Strydom, the Magistrates Act and subsequent High Court case are opportunities lost. The magistrates are still not fully independent and the authority of the Minister of Justice remained intact.

For many magistrates the new Act meant less power and more frustration. 47 And since so many aspects of the running of the magistrates courts are still in the hands of the Minister, magistrates look to the permanent secretary and the Minister to solve their problems rather than the Magistrates Commission.

4.3 GENERAL REMARKS The proceedings in all courts are mechanically recorded except in some rural areas where the presiding officer keeps a record by long hand. In high courts, as well as regional courts, a stenographer is responsible for the recording of the proceedings while the presiding magistrate is responsible to record the proceedings in district courts. Unless otherwise ordered by the court, the record of proceedings is a public document and copies thereof may be ordered from the company appointed to fulfil this function in the area in which the court is situated or from the clerk of the court. If such records are needed, for instance to lodge an appeal, the clerk of the court may be approached to find out which company is responsible for the typing of the recorded proceedings of that court. Arguments by both counsels for the State and for the defence will be recorded and do form part of the record, but will not be typed or transcribed because the only purpose thereof is to remind the presiding officer of certian facts or to persuade him to accept your point of view..

5.1 GENERAL You will find that we will refer to ethical aspects throughout the documentation. We do not intend to deal with all those aspects in this section, since we believe that their discussion will be more valuable when the topic to which they relate, is discussed. This section is therefore not intended to be an exhaustive discussion of all ethical aspects of criminal court practice. Several 47

Since the magistrate is no longer considered to be a public servant, she has no authority over the administrative staff. Since it is the duty of the clerk of the court to have records typed and sent appeals and reviews to the High Court, the best a magistrate can do if the clerk does not comply, is to report her to her superiors at the Ministry.

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general rules of ethics also apply to criminal court practice, such as the prohibition on certain ways of advertising, etc. These rules will be discussed in the documentation on ethics as a subject and will not be dealt with at all in this documentation.

5.2 CONFLICT OF INTERESTS If an attorney is approached by more than one accused in the same case and is requested by all of them to represent them, the attorney must first of all establish whether there are any conflicting interests between the various accused. If it should appear that there are indeed conflicting interests, the attorney may of course not act on behalf of all of them. In fact, once the attorney establishes that there are conflicting interests, he will have to consider carefully whether to act on behalf of any of the accused. Remember that if you become aware of information during consultation with one accused, such information will be privileged information and may not be divulged by you. If, however, you will need to disclose that information in order to defend another accused, you may find yourself in an untenable position, especially if you have to cross-examine the accused you are not defending. In Chisvo 1968 (3) SA 353 (RA) it was held that once a legal representative has accepted a brief from an accused and then withdraws from defending him, he may not cross-examine that accused on behalf of another accused.

If a legal representative establishes during the trial that there are conflicting interests between the respective accused he is defending, the attorney must immediately withdraw from the case (Moseli 1969 (1) SA 646 (O); Jacobs 1970 (3) SA 493 (E) Dintwe 1985 (4) SA 593 (BSC)).

It goes without saying of course that if an attorney accepts a brief to act on behalf of an accused; the attorney may not accept a brief from the victim to institute a civil action against the accused on account of the alleged commission of the offence. The converse also applies.

In A South African case Retha Meiring Attorneys v Walley 2008 (2) SA 513 (D) the court held that an agreement in terms whereof an attorney who acted for A against B and thereafter (4 years later) agreed to act for B against A where a conflict of interest might arise, and the possibility existed that the attorney might use information obtained from A to his prejudice, is against public policy and the agreement was void.

1.

TAKING INSTRUCTIONS

1.1 PRELIMINARY CONSULTATION The first consultation that an attorney has with a client is extremely important. During this consultation the attorney must first of all establish the reason why he is being approached by the client. As pointed out above, persons may approach attorneys for various reasons, ranging from merely seeking advice on whether certain proposed conduct constitutes an offence or not, to requests for assistance in laying charges against others or to represent the accused at the trial. In this documentation we will be dealing mainly with requests to represent a person 29

accused of having committed an offence. However, we will make certain remarks with regard to other aspects of criminal court practice where necessary and applicable.

A checklist is given below to assist you to determine the type of assistance that your client requires. This checklist is of course not exhaustive and you may find it necessary to extend it to cover other types of requests not referred to in it.

1.1.1 WHO APPROACHED YOU? If you are approached by the very person who seeks the legal assistance, this part may be skipped. However, if you are approached by a member of his family or by a friend, you first have to determine why the prospective client did not approach you him-/herself. Is he perhaps in custody, or is he hiding from the police?

If there are no obvious reasons why the client did not approach you, you should be extremely careful in your handling of the request. Remember that anything you say to the person that approaches you, will be conveyed to the prospective client. This is a highly unsatisfactory way of handling a consultation.

You have no control whatsoever over what the prospective client is told and you may find that this may differ quite substantially from what you told the person that visited you. You will therefore be well advised to try and convince whoever it is that is visiting you of the necessity of you seeing the prospective client as soon as possible so as to consult with him personally.

If the prospective client is in custody, your first duty will be to establish where he is being detained and more or less on what charges. You will quite often find that the prospective client is held on different charges than those which you are told of by his family or friends, and it might therefore be best to have this information checked before you proceed too far with the consultation so that you know exactly what you are up against. This will place you in a better position to give advice.

If the prospective client is hiding from the police, you must be extremely careful in what you tell the person visiting you. Remember that in terms of our law, a person who assists someone in evading liability for an offence, may qualify as an accessory after the fact and will therefore be guilty of an offence. Remember further that the professional privilege that exists between a client and his legal representative does not cover discussions where the client requests advice on how to commit an offence. It would therefore in the majority of instances be in the best interests of yourself as well as of your client to convince him to give him-/herself up and to face the charges. It would therefore once again be best to arrange for a consultation with the prospective client as soon as possible and to try and convince him of the sensibleness of this approach. If you succeed in convincing the client, this may be used to the client's advantage during the trial and at the sentencing stage. Once a client has agreed to hand him- /herself over, you will accompany him to the police or inform the police that they may question him in your presence and also where this may be done.

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1.1.2 WHAT TYPE OF ASSISTANCE IS REQUESTED? If your client simply wishes to get advice on how to commit an offence, you must immediately inform him that the consultation is not covered by professional privilege and that you may later be compelled by the court to testify on what was said during the discussion. You will also have to inform him of the fact that it would be unethical for you to advise him on how to commit an offence and that you may incur liability as an accomplice if you should do so. If it is possible for your client to achieve the same result without committing an offence, it will of course be your duty to inform him accordingly.

If your client informs you that he is not a suspect or accused, but that he requires advice on some procedural aspect, such as the legality of a seizure of his property by the police, you will naturally explain to him what the powers of the police in this regard are and to what extent this affects his rights. If it appears that the seizure was unlawful, you will inform him of the various options available to him. Any action that you may take on his behalf in this respect will of necessity be a civil or administrative action, which is not discussed here.

If your client is actually the client of another attorney and simply wishes to get a "second opinion" from you, you are fully entitled to give him your objective opinion on the matter. In doing so, you must of course be careful not to do or say something which could be construed as an attempt on your part to win him over as a client. If the client should afterwards request you to take over his case and end the mandate of the other attorney, you will have to be able to defend the ethical correctness of your conduct. Remember that you may, in principle, not act on his behalf before the other attorney's mandate has actually been terminated. It might, depending on the circumstances, be a good idea to ask the client to write a letter to the other attorney and to formally terminate his mandate and to supply you with a copy of the letter on which receipt of the letter is acknowledged, before you will be prepared to act on his behalf.

If your client has already been convicted of an offence and wants your advice on whether anything can be done about it, you must bear in mind that there are certain time limits with regard to the institution of appeal proceedings.

If you are approached by more than one accused who are charged together, the remarks made above with respect to conflicting interests must of course be borne in mind.

If the accused is in custody, it is of course important to establish whether your assistance is requested only to secure his release and whether you are also requested to represent him further. If the latter should be the case, this will of course have to be confirmed by the client once you have had an opportunity to consult with him personally.

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1.1.3 ARE YOU LEGALLY AND ETHICALLY ENTITLED TO RENDER THE SAID ASSISTANCE? It may not be possible for you to render assistance on account of a conflict of interests. Apart from this, there may also be other reasons why you would be unable to render the required service.

After having established what the nature of the assistance is that is requested, you will be in a position to determine the amount of time that will be necessary to render the service. It is of course true that it is impossible to determine with absolute certainty how much time will be needed, but it should nevertheless be possible to make a reasonable estimate of the time you will have to spend on it. Once you have made this estimate, you will be in a position to determine whether you have the time available to render the service. If you know beforehand that you do not have the necessary time available, it would be highly unethical to accept the brief and then to render a poor service because of a lack of time to render a proper service. In this respect it may be necessary to refer to a practice by some attorneys to accept a brief while they are aware that they will not be able to render the said service and then to pass the matter on to a partner, a professional assistant, or a candidate attorney without consulting with the client beforehand and without getting his approval in this regard. A client often briefs a specific attorney because of the attorney's reputation or because he trusts that particular attorney. By passing the matter on to another person without his approval, that client's trust is betrayed.

This practice is unprofessional and should be avoided.

Another practice to which reference needs to be made, is the practice by some attorneys to make "double bookings". If an attorney is aware that he has to appear in court on a particular day, it is highly unethical to accept another brief if that brief would require him to appear in another court on that same day. This then leads to the attorney "organising" that the case be remanded to another date or "arranging" with the public prosecutor not to call the case before a certain time, to allow him to appear in the other case as well. Once again, this practice is unprofessional and has often resulted in feelings of animosity on the part of the public prosecutor towards the attorney, which could easily detrimentally affect the client's case.

1.2 FEES AND ALTERNATIVES Once an attorney has determined what is expected of him and how much time will more or less have to be spent on the matter, the attorney should be in a position to give the client an indication of what it will cost to proceed with the matter on the client's behalf. It is important that the attorney inform the client what the cost implications, if any, would be if the case requires the attorney to spend more time on the matter than he had initially contemplated (for instance where the trial stretches over more days than you have contemplated it would).

Although it might be impossible for the attorney to say beforehand exactly what his total fee would be, the client should not be misled with regard to the costs that will or may be involved.

He will only be able to determine whether he would be able to pay it, once he knows more or less what the cost implications will or could be.

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If the client is satisfied with the fee and the manner in which he will be expected to pay and indicates that he still wishes the attorney to proceed on his behalf, the matter is settled.

However, if the client indicates that he is unable to pay the expected fee, the attorney will have to consider whether he is prepared to accept a lower fee or find out whether it would not be possible to make suitable arrangements for the payment of the fee.

If it appears from the discussion that an agreement cannot be reached between the client and the attorney, the client should not be sent away without some advice on how he could go about obtaining legal representation without having to pay the full fees of an attorney. An attorney will only be able to offer this type of advice if he is aware of legal aid services that are available to the client. It is accordingly imperative that an attorney should acquaint himself with the facilities that are available to the poor in this respect.

It is impossible and indeed unnecessary to give a list in this documentation of all the facilities that are available. It is the duty of the attorney to find out what services are available in the area in which he practices.

A few general remarks may, however, be made.

First of all, a statutory body, called the "Legal Aid Board", has been established since 1969 to assist the poor in obtaining legal representation at a nominal fee. The head office of the Legal Aid Board is situated in Pretoria, but an official has been appointed at each magistrate's court to process applications for legal aid on behalf of the Board at centres outside Pretoria. Once an application is received by the Board or by one of the officials referred to above, the merits of the application are considered and it is determined whether it complies with the prescribed requirements. A means test is inter alia applied to see whether the applicant is someone who falls within the category of people to whom legal aid may be granted. If it appears that he does fall in such a category, and the type of assistance that he needs is indeed assistance for which financial assistance may be given, the Legal Aid Board will approach an attorney and inform him that the Board will be prepared to pay the prescribed fee if the attorney acts on the applicant's behalf. The means test applied by the Board is amended from time to time and the local representative of the Board can be approached to establish what it is at a particular point in time.

Secondly, apart from the Legal Aid Board, there are other organisations that are also prepared to render services of this nature. At every university with a law faculty there is a legal aid centre where there are qualified attorneys, who, with the assistance of students doing practical training, also act on behalf of needy people. In some of our major centres there are also socalled Legal Resources Centres, who may be able to assist the poor. Certain other organisations, such as Lawyers for Human Rights, render similar services in certain types of cases.

Finally, if the accused is in custody, will possibly be detained by the police or has been charged with an offence, it is necessary to bring to his attention the provisions of Article 12 (e) and 95 (h) of the Constitution. Art. 95 (h) reads as follows: 33

95. The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: (h)

a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State;

In terms of those provisions every person who is detained or is charged with an offence, is entitled to be provided with legal representation at state expense with due regard to the resources of the State.

See the annexure above The Right to Legal Representation: The Relationship between the

Human Rights Covenants and the Constitution for an argument by the court as to when the Namibian Supreme Court consider legal aid as a necessity to prevent substantial injustice.

2.5 THE PRESENCE OF LEGAL REPRESENTATIVE AT PRE-TRIAL PROCEDURES 2.5.1 IDENTIFICATION PARADES In accordance with Section 37(1)(b) of the criminal procedure act, a suspect is obliged to attend an identification parade whether he is under arrest, on bail or on warning.

It is a rule of police practice that suspects who take part in an identification parade should be informed of their right to legal representation. Police officials are taught to inform suspects that they are entitled to legal representation in terms of an internal document entitled "Hints in connection with the investigation of crime" (rule 3 thereof). Note that this rule of practice also appears on the so-called identification parade form (SAP 329). The non-observance of these rules do not of course render the evidence regarding the identification parade per se inadmissible as, just like the judges' rules, they are not requirements for admissibility. The point of departure is however that where the suspect/accused honestly requests legal representation, he ought to be granted the opportunity to obtain same (cf Minister of Prisons v Cooper 1978 (3) SA 512 (C)). This applies from the time of his arrest and throughout the entire criminal proceedings.

Du Toit et al contains a useful discussion of the different identification parades and of the different rules applicable to identification parades. See also the South African case of S v Mhlakaza and Others 1996 (2) SACR 187 (C) where it was decided on the admissibility of an identification parade, it is preferable to do so by way of a trial within a trial.

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