Title: CASE NO
Author: DonnyB

17

CASE NO's: A 238/2009 
A 430/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

PROTASIUS DANIEL 								APPLICANT
WILLEM PETER  								APPLICANT

and

THE GOVERNMENT OF THE REPUBLIC

JUDGMENT:

Gibson J concurred, stated :

"In order to attempt to counter the prevalence of stock theft and the effects thereof especially in the rural areas where people barely eke out a living with the small number of livestock they possess Parliament thought it necessary to introduce a minimum sentence. This followed a public outcry especially from farmers and the rural community. This can easily be understood. To steal even one sheep or goat from a person trying to make a living out of say a herd of ten is catastrophic for such a person. Furthermore with transport and vast distances that can be covered in one night as well as the fact that extensive farming is mostly practised in this country it is not easy to counter stock theft. Parliament had every right to attempt to do everything within its powers to curb these pernicious activities".

at 255 B-C

[2] O'Linn J, in the said separate judgement, put it even more pertinently when he also took notice of certain notorious facts at the time:

" These are inter alia, that Parliament passed this law after an outcry from law-abiding farmers in Namibia clamouring for heavier sentences for stock theft on the ground that the crime has escalated considerably and that many of the owners of the stock are deprived of their livelihood or at least that considerable inroads are made on such livelihood by thieves. They demand protection from the State and the Courts for their fundamental rights to life and the security of their property. Some members of the High Court, including the writer of this judgment, had the opportunity to attend consultative conferences of representatives of society, particularly rural society, where the agony of farmers, communal and otherwise, were expressed about the accelerating crime rate and the deprivation of their livelihood by the thieves stealing the cattle or stock which they need to survive. They demand the protection of their rights by, inter alia, heavier sentences by Courts of law.

In my view, full weight should be given to the aforesaid current public opinion as evidence of current values in view of the fact that these views are well-founded and not transient. They are consistent and corroborative of the general trend in society of escalating crime and the general expectation of society, for heavier penalties, as one of the means to counteract the crime phenomenon.

However, the aforesaid public opinion goes no further than requiring heavier sentences to be prescribed by the Legislature and imposed by the Courts of law. It may also be accepted that the Namibian public opinion and norms would regard as permissible heavier sentences for offenders, who have in the past been convicted of similar offences. I however sincerely doubt whether public opinion expect a previous conviction in the distant past to be used as the basis for such a heavy mandatory sentence as a minimum of three years in the case of the second conviction. They will probably also expect a differentiation to be made between the theft of a goat and the theft of a more valuable head of cattle. Such an attitude would be consistent with the norms and values of reasonableness and fair play and the balancing of rights and responsibilities, which permeate and underpin the provisions of the Namibian Constitution.

The aforesaid assumption of public opinion, norms and values, is also consistent with the norms and values of the civilised community of nations of which Namibia is a part.

The Legislature, when acting in the public interest, and more specifically in the interests of the law-abiding citizens and purporting to protect their fundamental rights, must be presumed to do so bona fide and with due consideration to the public interest and the fundamental rights of all, enshrined in the Constitution.

[3] It is not surprising therefore that the penal clause of the Stock Theft Act 1990, subsequent to its initial promulgation, continued to be the focus of Parliament's attention on three occasions: Section 14 was initially amended by section 6 of Act 4 of 1991, and later substituted by section 3 of Act 19 of 1993, and again by section 2

of Act 19 of 2004.

[4] In spite of Parliament's singling out of this crime for more severe punishment the Prosecutor General, the second respondent in this application, still states in the year 2010 that 'stock theft has escalated to unacceptable levels and erodes economic development in Namibia'.

[5]     The scourge of stock theft thus continues to plague Namibia.

THE APPLICATION BEFORE THE COURT

[6] The applicant Daniel (hereinafter referred to as Mr Daniel) was convicted of the theft of nine goats worth N$4450. He was sentenced to 20 years' imprisonment.

[7] The applicant Peter (hereinafter referred to as Mr Peter) was a 38 year old man. He was convicted of participating in the theft of a single cow together with a number of other accused persons. He had a previous conviction for stock theft. The court sentenced him to 30 years' imprisonment.

[8] It is against this background that both these applicant's have now applied in terms of article 25 of the Constitution for orders declaring that the minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990, as amended, are unconstitutional and invalid. They contend that the minimum sentences violate the prohibition of cruel, inhuman or degrading punishment in article 8(2)(b) and the guarantee of equality in article 10(1) of the Constitution.

CHAPTER 3 Fundamental Human Rights and Freedoms

[9] Mr Trengove, on behalf of applicants, succinctly summed up the main issues before court in his heads of argument where he submitted that more particularly Mr Daniel's application:

The Prosecutor General however denies that the minimum sentence prescribed by s 14(1)(b) is unconstitutional. She asks that this application be dismissed with costs.

The issues between the parties may be summarised as follows:

Mr Daniel's attack on s 14(1)(a)(ii) is unopposed. The parties agree that the section is unconstitutional. They differ only on the question of remedy. This applicant however accepts that the more limited remedy proposed by the respondents will cure the constitutional defect. There is accordingly no material dispute between these parties.

Mr Peter's attack on s 14(1)(b) is not opposed by the Attorney-General and the Government. They concede that the section is unconstitutional. They merely propose a more limited remedy. This applicant accepts that it will cure the constitutional defect. There are accordingly no material disputes between the applicant, the Attorney-General (the first Respondent) and the Government (the third Respondent). The Prosecutor General (the second Respondent herein) however denies that the section is unconstitutional."

[10] Before however deciding these issues it becomes necessary to deal with the second respondent's objection that the constitutional challenge brought by applicants herein is inappropriate.

THE APPROPRIATENESS OF THE CONSTITUTIONAL CHALLENGE

[11]   In this regard it was essentially submitted on behalf of second respondent that

"... Each of these applicants (Peter with leave) was entitled to appeal their sentences. In fact, Daniel's appeal would have been heard on 10 July 2009. His appeal was removed from the roll at his instance (presumably on legal advice) and this application was launched on 14 July 2009.

In each of the cases the factual findings that there were no substantial and compelling circumstances led to the sentences applicants now wish to have set aside by way of constitutional challenge. It is submitted the challenge is inappropriate.
Daniel was sentenced by the regional court sitting in Ondangwa. He was unrepresented. It appears from the record that the magistrate simply mentioned to Daniel that he must put forward substantial and compelling circumstances without explaining what it is and without assisting him as he was obliged to. In Peter's case it can be argued that it was a misdirection to consider an eleven year old previous conviction - especially because it predates the minimum sentences.

Furthermore, a strong argument can be made in respect of both matters that the sentencing magistrate and judge applied "substantial and compelling" too restrictively.

As a result the applicants should have appealed their sentences. These constitutional challenges are inappropriate and should be struck from the roll with costs, alternatively, treated as appeals."

" I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed."
[13] While it may undoubtedly be correct that both Mr Peter and Mr Daniel may have the arguments contended for by Mr Coleman at their disposal during an appeal hearing, this argument essentially loses sight of the fact that this application is no appeal and that no relief akin to appeal relief is sought by the applicants herein in terms of the Criminal Procedure Act, Act No. 51 of 1977.

[16]   As far as the sought declaratory relief goes, it would appear that Mr
Coleman's argument did also lose sight of the requirements of section 16 of the High
Court Act which empowers the Court:
"... in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation,notwithstanding that such person cannot claim consequential upon the determination."

[19] Clearly both Mr Peter and Mr Daniel are such 'interested persons', who cannot be said, not to have any 'existing, future or contingent right' to the determination of the constitutionality or not of the sentences which they presently serve.

[21] As far as the Court's discretion is concerned it has been held that the Court will take into account whether:

" ...some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future or contingent right or obligation ... [appears] to flow from the grant of the declaratory order sought... "

[23] Secondly, and should the minimum sentence regime, as imposed by the Stock Theft Act, be found to be in conflict with art 8 and be declared unconstitutional as a result of the declaratory orders sought herein, surely some tangible and justifiable advantage, in relation to the applicants' position, with reference to their existing, future or contingent right not to be subject to cruel, inhuman or degrading punishment, also emerges for the applicants to take this aspect further, should they be so advised. In this respect the applications under consideration are also not purely academic.

[25] The grant of the sought declaratory orders, will so to speak also 'clear the decks' for the future proper application of sections 14(1)(a)(ii) and 14(1)(b) of the Stock Theft Act 12 of 1990, as amended - in the High Court and all Lower Courts.

[26] All these factors indicate therefore that this would be an appropriate instance to entertain the applications for the declaratory order sought and I exercise my discretion accordingly.
[27]   I therefore deem the constitutional challenge appropriate. 
THE IMPUGNED MINIMUM SENTENCE REGIME

[28] Section 14 of the Stock Theft Act No 12 of 1990, as amended provides as follows:

"14 Penalties for certain offences
(1) Any person who is convicted of an offence referred to in section 11(1) (a), (b), (c) or (d) that relates to stock other than poultry-

a) of which the value-

(ii) is N$500 or more, shall be liable in the case of a first conviction, to imprisonment for a period not less than twenty years without the option of a fine;

(b) shall be liable in the case of a second or subsequent conviction, to imprisonment for a period not less than thirty years without the option of a fine.
2)	If a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in subsection (1)(a) or (b), it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.
3)	A sentence of imprisonment imposed in respect of an offence referred to in section 11(1)(a), (b), (c) or (d), or an additional sentence of imprisonment imposed under section 17(1)(b) in respect of noncompliance with an order of compensation, shall, notwithstanding anything to the contrary in any law contained, not run concurrently with any other sentence of imprisonment imposed on the convicted person.

(4) The operation of a sentence, imposed in terms of this section in respect of a second or subsequent conviction of an offence referred to in section 11(1)(a), (b), (c) or(d), shall not be suspended as contemplated in section 297(4) of the Criminal Procedure Act, if such person was at the time of the commission of any such offence eighteen years of age or older.

[29] In the Heads of Argument filed on behalf of applicants it was submitted that the following main features appear upon analysis of section 14:

para's 8 -13

" In terms of section 14(1), minimum sentences must be imposed for all the offences in sections 11(1)(a), (b), (c) and (d) that relate to "stock other than poultry".

The offences in sections 11(1)(a), (b), (c) and (d) relate to "stock" and "produce". Insofar as they relate to stock, they include the following offences:
	theft or attempted theft of stock;
	receiving stock knowing it to have been stolen;
	inciting, instigating, commanding or conspiring with or procurinq another person to steal or receive stolen stock;
	knowingly disposing or assisting in the disposal of stolen stock.

These offences also extend to the lesser offences of the peripheral role-players involved in the theft and disposal of stock.

The regime imposed by s 14, prescribes minimum sentences for all these offences. All of them are caught in the net created by the section. It prescribes three minimum sentences for all of them. The applicable sentence depends in the first place on whether the accused is a first or repeat offender.

Section 14(1)(a) prescribes the minimum sentences for first offenders. It distinguishes between them on the basis of the value of the stock involved. If it is less than N$500, the minimum sentence is two years' imprisonment. If it is more than N$500, the minimum sentence is 20 years' imprisonment. The sentence may be wholly or partially suspended.

Section 14(1)(b) prescribes a minimum sentence of 30 years' imprisonment for any second or subsequent conviction of stock theft. It differs from the approach to first offenders in two fundamental respects:

i)      It makes no distinction between trivial and more serious offences as is done in the case of first offenders. The minimum sentence of 30 years is prescribed for all repeat offenders, however trivial their offences might be.

ii) The court may not ameliorate the minimum sentence by suspending it or any part of it. Section 14(4) provides that the minimum sentence may not be suspended at all as long as the offender is 18 years or older.

At para 15

[30]   It would appear that this analysis is correct.

THE ARGUMENTS IN SUPPORT OF THE CONSTITUTIONAL CHALLENGE

[31] Counsel for both applicants commenced argument on this score by emphasising the following cardinal features, which flow from the above analysis:

a) "that the prescribed minimum sentence regime in respect of first offenders proceeds from the premise :

b) that the prescribed minimum sentence regime in respect of second offenders proceeds from the premise that the previous conviction which makes the accused a repeat offender subject to the minimum sentence of 30 years' imprisonment, need not be one which would otherwise have qualified him for harsher treatment than a first offender. That is so for two reasons:

i) it makes no difference whether the previous conviction was for a serious or trivial offence. , It counts as a previous conviction and renders the accused subject to the prescribed minimum sentence of 30 years' Imprisonment, however trivial it might have been;

Heads of Argument at para 15.1

ii) the previous conviction need not have been recent. It is immaterial when it occurred, even if it is so long ago as to have lost its significance.

Heads of Argument at para 16.1

c) The implication of these features could be that a poor man who steals a piece of meat (that is a portion of the carcass of an animal) to feed his family, is subject to a minimum sentence of 30 years' imprisonment if he was convicted of doing the same thing in his youth, even if it happened decades earlier. "

Applicants' Heads of Argument para 17

CERTAIN FACTORS RELEVANT TO SENTENCING LEFT OUT OF ACCOUNT

[32] "The applicable sentence in any case, depends only on whether the accused is a first or repeat offender and, in the case of a first offender on the question whether the stock was worth more or less than N$500. No other factors relating to the seriousness of the crime, the personal circumstances of the accused or the interests of society are taken into account." 

Heads of Argument at para 18

[33] "According to the definition of 'stock' a wide range of animals and even the carcass or portion of the carcass of any of them fall within the ambit of the section. Their actual value, the socio-economic significance and the impact of their loss, will vary enormously from case to case. Section 14(1) however generalises about all of them without distinction."

Heads of Argument at para 19

[34] "The section also ignores the age of the accused. It applies to juveniles and adults alike. The only concession made to juveniles, is that s 14(4) allows the court to suspend the minimum sentence of 30 years' imprisonment if the repeat offender is under 18. This highlights the fact that the legislature applied its mind to the application of the minimum sentence regime to juveniles and intended it to apply to them, subject only to this concession." 

Heads of Argument at para 20

[35] It was accordingly submitted further that "the implication of this is that even a juvenile who steals an item of stock, has to be sentenced to imprisonment for at least two years if the stock is worth less than N$500, 20 years if the stock is worth more than that, and 30 years if the youth has a previous conviction, however trivial it might be. The youthful offender is subject to the same minimum sentence regime as members of a hardened gang of cattle rustlers who steal herds of cattle in an organised fashion for profit."

Heads of Argument at para 21

THE EFFECT OF THE PROHIBITION THAT SENTENCES MAY NOT RUN CONCURRENTLY

[36] "The prohibition that sentences may not run concurrently applies to every sentence imposed for stock theft. Accordingly an accused convicted on multiple charges of stock theft, is liable to the minimum sentence on each of them and those sentences must then run concurrently, whatever their cumulative effect. It means for instance that, if the court convicts an accused on five charges of stock theft, it must sentence him -
-   to 100 years' imprisonment if he is a first offender and the value of the stock exceeded N$500 in each case, and

- to 150 years' imprisonment if he has a previous conviction of stock theft, however trivial both the previous and the current offences might be. "

Applicants' Heads of Argument para 23

THE EFFECT OF THE 'BENCHMARK' SET BY MINIMUM SENTENCES ON THE COURT'S SENTENCING DISRECTION

[37] Section 14(2) is the only provision which ameliorates the sentencing regime created by section 14 of the Stock Theft Act. It provides that:

" If a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in subsection (1)(a) or(b), it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence".

[38] Mr Trengove submits that this provision does not vest the court with its ordinary sentencing discretion. The court has no discretion at all to depart from the minimum sentences in the absence of substantial and compelling circumstances which justify it. Only if there are such substantial and compelling circumstances, does a court exercise any discretion at all. But even then, counsel submits, its discretion isfettered because the sentence it imposes must have regard to the benchmark set by the minimum sentence regime.

Heads of Argument at para 25

"A. Section 51 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

C. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The Legislature has, however, deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.
I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the benchmark which the Legislature has provided."

[42] It was on this basis then submitted further that the SCA's summary endorsed by the Constitutional Court, makes it clear that the regime of minimum sentences plays a dual role. The first is that it prescribes the minimum sentences that must be imposed in the absence of substantial and compelling circumstances to depart from them. The second is that, even where substantial and compelling circumstances are present, the court must still have regard to the benchmark set by the minimum sentences, in its determination of the appropriate sentence. As appears from paragraph J of the SCA's summary above, it held that, when the court finds that there are substantial and compelling circumstances to impose a lesser sentence,

Heads of Argument at para 28

"account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the benchmark which the Legislature has provided."

"... having found substantial and compelling circumstances to be present, he considered himself to have a free and unfettered discretion to impose any sentence he considered appropriate" ...

NO PROPER GRADATION OF PUNISHMENT IN THE OVERALL SENTENCING SCHEME

that,
"There is no doubt that a sentencing regime must exhibit a proportionality to the seriousness of the offence, or to put it in another way, there must be a gradation of punishments according to the malignity of the offences." 

[45] The submission is that the minimum sentences are disproportionate in this regard in that they are wholly out of keeping with the sentences generally meted out to those convicted -.
	of theft, fraud and corruption which are at least as serious as stock theft, and
	assault to do grievous bodily harm, robbery, rape and murder which are immeasurably more serious than stock theft in that they threaten, injure and even destroy human lives.

Heads of Argument at para 47

[46] The effect of this latter discrepancy, so the submissions continue, is that the state responds more severely to threats to property than to immeasurably more serious threats to human life and safety. This is, so it is argued, a manifestation of a skewed perception of constitutional values. Although property is worthy of protection, it is quite inimical to the Constitution and the values that underpin it, to afford property greater and more aggressive protection than that afforded to human life.

Heads of Argument at para 48

THE ALLEGED VIOLATION OF ARTICLE 8(2)(b)
[47]   In this regard the argument ran thus:
"Article 8(2)(b) of the Constitution provides that:

"No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."

This prohibition forms part of the provisions of article 8 which are designed to protect the innate dignity of every human being. Article 8(1) provides that the dignity of all persons "shall be inviolable". Article 8(2)(a) goes on to say that, in any judicial proceedings or in other proceedings before any organ of the state and during the enforcement of a penalty, "respect for human dignity shall be guaranteed".

The Supreme Court held in the Corporal Punishment case, that "no derogation from the rights entrenched by art 8 is permitted", that the state's obligation under it "is absolute and unqualified" and that "no questions of justification can ever arise". 

A full bench of this court held in Vries, that a sentence violates article 8(2)(b) if it is grossly disproportionate to the severity of the offence for which it is imposed. It went on to consider when that would be the case and concluded that the gross proportionality test was not materially different from the "shocking" test conventionally applied by our courts in their evaluation of sentences on appeal. It adopted the "shocking" test, by which it meant that the court should ask whether the sentence is "so excessive that no reasonableman would have imposed it", for the determination of its constitutional validity.

At 250E

This court also recognised in Vries that, when it assesses the constitutional validity of a statutory sentence, it should obviously do so, not only on the basis of the facts of the particular case before it, but also "with respect to hypothetical cases which ... can be foreseen as likely to arise commonly". In the current applications, the constitutional validity of the two minimum sentences are the only Issue before the court. It is not called upon to determine the fate of the particular applicants. The constitutional validity of the minimum sentences under attack must accordingly be determined, not on the facts of the particular cases before the court, but on the basis of such hypothetical cases as can be foreseen as likely to arise commonly. "

At 253C

Heads of Argument at para 36 -41

Persons who fall foul of the minimum sentences are thus used as instruments of deterrence in violation of their right to recognition of and respect for their innate human dignity. They are used as a means to an end and not as an end in themselves as the Constitution requires. Accordingly it should be concluded that both sections 14(1)(a)(ii) and (b) are unconstitutional and invalid.

Heads of Argument at para 44 - 45

THE FIRST AND THIRD RESPONDENT'S STANCE

[50] Mr Markus, who appeared on behalf of the first and third respondent's, conceded on behalf of these respondents, as already mentioned above, that in their view both sections are unconstitutional as they are in conflict with Article 8(2)(b) of the Constitution.

At p 86

Government of the Republic of Namiba v Cultura 2000 1994 (1) SA 407 (NmSc) at 412 C-D

Heads of Argument at para 15

[53] The Attorney General identified the shortcomings of section 14(1)(a)(ii) as follows:

a) "The section fails to distinguish between different kinds of stock. It makes no difference whether cattle, sheep or goats are involved, yet it is common knowledge that the value of cattle is much higher than that of goats or sheep.
b) The same sentence is visited on all persons who are convicted of an offence referred to in section 11(1) (a), (b), (c) or (d) of stock, other than poultry, of more than N$ 500.00, irrespective of the actual value and quantity of the stock.

Heads of Argument at para 16

Heads of Argument at para 17

Heads of Argument at para 18

 

2001 (2) SA 1222 (SCA)

2001 (3) SA 382 (CC)

Heads of Argument at para 28

[57] Accordingly, so it was reasoned, both sections are in conflict with article 8(2) of the Constitution which proscribes cruel, inhuman or degrading treatment or punishment, as the infliction of excessive punishments is incongruent with the tenor and spirit of the Namibian Constitution referred to above.

THE SECOND RESPONDENT'S GROUNDS FOR OPPOSITION

[58] As already indicated above it was only the second respondent that opposed the applications.

Heads of Argument at para 36

 
 
"The executive and legislative branches of State have a very real interest in the severity of sentences. The Executive has a general obligation to ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent on breaking the law 

In order to discharge this obligation to protect its citizens the executive and legislative branches must have the power, through legislative means, of ensuring that sufficiently severe penalties are imposed on dangerous criminals in order to protect society. It is submitted this consideration is equally applicable to stock theft which second respondent asserts threatens the livelihood of many law abiding Namibians.

It is not for the courts to judge the wisdom of the legislature with respect to the gravity of various offences and the range of penalties which may be imposed. Parliament has a broad discretion in proscribing conduct as criminal and determining proper punishment.

On a proper construction of the concept "substantial and compelling circumstances" [as enunciated in S v Malgas 2001 (2) SA 1222 (SCA)] section 51(1) does not require the High Court to impose a sentence of life imprisonment in circumstances where it would be inconsistent with the offender's right guaranteed by section 12(1)(e) of the South African Constitution."

[60] It was submitted further that the abovementioned principles are applicable in Namibia and to these applications. "It takes care of any reliance on Article 8 of the Namibian Constitution. It was then submitted that neither section 14(1)(a)(ii) norsection 14(1)(b) of the Act requires a court in Namibia to impose a minimum sentence of either 20 years or 30 years where it would be inconsistent with the offender's rights guaranteed by Article 8(2)(b) of the Constitution - or any other right for that matter."

Heads of Argument at para 37

[61] If I understand Mr Coleman's argument correctly he seems to suggest that, on a proper construction of the concept "substantial and compelling circumstances", sections 14(1)(a)(ii) and 14(1)(b) do not require a Court to impose a minimum sentence of 20 or 30 years imprisonment in circumstances where this would be inconsistent with the offender's right guaranteed by Article 8(2)(b) of the Namibian Constitution and that the court would therefore be free, in such circumstances, to impose a lesser sentence.

[62] This argument was also mounted on the 'disproportionality test'. Here the argument ran thus:

"In the Vries matter the court expressed the view that the disproportionality test appears to be the same as the 'shocking' test and ultimately 'disturbingly inappropriate' test in sentencing. This aspect was addressed cogently in the Malgas case referred to supra. The court held that the legislature deliberately and advisedly left the concept 'substantial and compelling circumstances' undefined to leave it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence.

at 249H-J

The court in Malgas further held that the courts are a good deal freer to depart from the prescribed sentences than has been assumed in earlier cases. Itthen summarized the effect of section 51. The aspects of this summary that are relevant here are: the section imposing the minimum sentence limited but did not eliminate the courts' discretion in imposing sentence; If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing the sentence, it is entitled to impose a lesser sentence.'

Therefore the challenged sections do not fail the disproportionate test in any of its manifestations. "

Heads of Argument at para 38 - 41

"The very nature of minimum sentences is to diminish the courts' power of individuation by constraining their discretion in the sentencing process. The Supreme Court of Appeal in Vilakazi has recently emphasized that under Malgas and Dodo 'disproportionate sentences are not to be imposed and that courts are not vehicles for injustice'. Nevertheless, in its very essence the minimum sentencing regime makes for tougher and longer sentences. While the hands of the sentencing courts are not bound, they are at least loosely fettered. As this court noted in Dodo, the very object of the regime is to 'ensure that consistently heavier sentences are imposed'.

The minimum sentencing regime does this in three ways. First, it orientates the sentencing officer at the start of the sentencing process away from options other than incarceration. Second it de-inviduates sentencing by prescribing as a starting point the period for which incarceration is appropriate. Third, even when not imposed, the prescribed sentences conduce to longer and heavier sentences by weighing on the discretion. "

At paras 45 and 46

'If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence'

"It will no doubt be refined and particularised on a case by case basis, as the need arises. It steers an appropriate path, which the Legislature doubtless intended, respecting the Legislature's decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by s 51 and at the same time promoting 'the spirit, purport and objects of the Bill of Rights'."

[70] It becomes clear that any appropriate lesser sentence imposed in such circumstances can therefore never be divorced entirely from the minimum sentences ordained by the legislature. If this obligatory regard to- and mandatory linking of an appropriate lesser sentence to the benchmark set by the minimum sentencing regime nevertheless results in a 'shocking' or 'disproportionate' sentence', a violation of an accused's Article 8 right would have occurred. While it is accepted that all this is relative, as this ultimately depends on how high the benchmark has been set, it does not take much to imagine that a violation of the Article 8 rights of accused persons, with respect to 'hypothetical cases which can be foreseen as likely to arise commonly', will occur, if the benchmark in question, were set too high. Mr Coleman, fairly and correctly, in my view, conceded this possibility, when this was put to him by the Court.

ie. a sentence that is so excessive that no reasonable man would have imposed it ...

[71] This is however precisely also the situation that arises in the present case for the various reasons and examples advanced by Mr Trengove and as also the Daniel and Peter cases illustrate.

[73] Mr Peter's co-accused 3, 4 and 5 were young first offenders of 20, 21 and 25 years respectively. They were convicted of participation in the theft of a single cow. The court found that there were substantial and compelling circumstances not to impose the minimum sentence because of their relatively minor roles in the theft. It nonetheless sentenced each of them to 15 years imprisonment of which five years were conditionally suspended.
[74] Mr Peter was a 38 year old man. He was convicted of participating in the same theft of a single cow. He played a more active role than his co-accused. He was not the principal perpetrator. He had a previous conviction for stock theft committed 11 years earlier. The court held that there were no substantial and compelling circumstances and sentenced him to 30 years' imprisonment.

[75] Although the Peter and Daniel examples make the point I keep in mind that the constitutional validity of the two minimum sentences in question are the only issue before the court and that I am not called upon to determine the fate of theparticular applicants. The constitutional validity of the minimum sentences under attack is therefore not determined on the facts of the particular cases before the court, but on the basis of the hypothetical cases that can be foreseen as likely to arise commonly. It is in this respect that regard is had to the examples referred to in paragraphs 31, 35 and 36 above. All these hypothetical examples show that the resultant sentences, because of the height of the bench mark set in the Stock Theft Act, would in themselves be grossly disproportionate to the severity of the crimes for which they would be meted out, and that they would be irrationally severe if compared to the sentences for other equally and more serious offences. They would thus be rendered 'shocking' and 'disproportionate' in the constitutional sense because of the level to which the bench mark in the Stock Theft Act was raised by the amendment to section 14 brought about by Act 19 of 2004.

Such as Theft, fraud, corruption, assault to do grievous bodily harm, robbery, rape and murder for instance

[76] It is for these reasons alone that the minimum sentences set by section 14(1)(a)(ii) and 14(1)(b) of the Stock Theft Act do not pass muster.

" ... To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence... , the offender is being used essentially as a means to another end and the offender's dignity is assailed. "

At para 38

'Deterrence as a law enforcement objective is constrained by the principle that individuals may not be used in an instrumental manner as examples to others if the deterrence is set at levels beyond what is fair and just to those individuals. To do otherwise would be to breach the constitutional principle of dignity. 

At para 146

[80] It follows therefore that Mr Trengove's argument to the effect that "the minimum sentences under attack in these applications are unconstitutional as the legislature has resorted to minimum sentences which are grossly disproportionate in that they unfairly and unjustly punish those who are caught and convicted, not because their crimes deserve the sentences meted out to them, but to deter others from committing the same crime and that the people who fall foul of the minimum sentences are thus used as instruments of deterrence in violation of their right to recognition of and respect for their innate human dignity and that they are therefore used as a means to an end and not as an end in themselves as the Constitution requires, is correct and must be upheld.

[81] The conclusion is inescapable that the minimum sentencing regime created by section 14 of the Stock Theft Act has simply set the levels of deterrence beyond what is fair and just to those caught up in it.

[82] For the aforegoing reasons both sections 14(1 )(a)(ii) and (b) of the Stock Theft Act are found to be unconstitutional and invalid.

THE QUESTION OF RELIEF

[85] As the logical consequence of only striking out the periods of the minimum sentences referred to in sections 14(1)(a)(ii) and 14(1)(b), while leaving the cross reference to section 14(1)(a) and 14(1)(b) as contained in section 14(2) unqualified, would cause an obvious and irreconcileable discrepancy to the entire structure of section 14, it has become necessary to also effect, at the same time, a consequential

qualification of the affected provisions of section 14(2). This power is exercised in terms of Article 25(3) of the Constitution.

[86]   In the result the following order is made:
a)	
b)	
c)	the second respondent is ordered to pay both applicants costs of two instructed and one instructing counsel.

GEIER, AJ

I agree.

VAN NIEKERK, J

								Assisted by Mr N. Tjombe 
INSTRUCTED BY:						Legal Assistance Centre

								Government Attorneys