REINARD EUGEN AUGUST STROWITZKI VERSUS THE STATE

8/14/2019 REINARD EUGEN AUGUST STROWITZKI VERSUS THE STATE

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CASE NO.P3/ 1997

IN THE SUPREME COURT OF NAMIBIA

In the matte r be tween

REINHARD EUGEN AUGUST STROWITZKI APPLICANT

And

THE STATE RESPONDENT

CORAM: MTAMBANENGWE, ACJ, TEEK, AJA etCHOMBA, AJA

HEARD ON: 10/04/2003

DELIVERED ON: 16/ 09/ 2003

APPEAL JUDGMENT

CHOMBA, A.J.A.

INTRODUCTION

This ma tte r ca me befo re us as a result of a let ter written b y the Reg istrar of

this Co urt (hereina fte r the Reg istrar s letter) to Dr. Strow itzki, who , for

convenience only, has been cited as the applicant in the process leading


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to this hea ring. I sta te tha t Dr. Strowitzki has been cited as app lica nt for

c onvenienc e s sake only bec ause of the rea sons I sha ll delve into in the

c ourse of this judg me nt. The Reg istrars let ter has been pivota l to som e of

the a rguments which we re a b ly and forc efully subm itted by Mr. Geier, who

acted as amicus c uriaeon b eha lf of Dr. Strowitzki. I therefo re p roc ee d to

rep rod uc e the Reg istrars let ter.

It sta tes :

J H Viljoen

P.3/07 26 Ap ril 2002

Ad v. H. Ge ier

Soc iety of Advoc ate s

Namlex Building

WINDHOEK

Dear Sir

RE: ARGUMENT: DR. R.E.A. STROWITZKI

The Honourab le Chief Justic e req uested me to set the app lic a tion of

Dr. R.E.A. Strow itzki down for p roper argument on the fo llow ing,

namely:

1. Whether the High Court and Supreme Court have

jurisdiction to consider a further application for leave to

appeal and/or petition to grant leave to appeal afterrefusa l of a n app lica tion by the High and the d ismissa l of

the petition to the Chief Justice even if the new

ap plic ation and pe tition a re launched in respe c t of new

or purported new evide nce ; and

2. If the Court should find that under the circumstances ithas such jurisdiction whether the applicant has made

out a c ase for the granting of lea ve to app ea l .


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Kind ly take notice tha t the ma tter has been set d ow n for a rgum ent in

the Suprem e Court on Wed nesday 2 Oc tober 2002 a t 10h00.

The C ourt a lso req uested your assista nce to a rgue the m atte r amicuscuriae in view thereof tha t you we re the Counsel in the c riminal tria l

from the be g inning.

A copy of the record which includes all the necessary

doc umenta tion for purpo se of the a rgument is atta c hed .

Kindly file Heads of Argument in the same way as is required in an

ap pea l be fore the Supreme Court.

Yours faithfully

J.H. Joubert

REGISTRAR: SUPREME COURT

Prosecutor-General

High Court

WINDHOEK

Copy for your a ttention.

Attac hed please find a c opy o f the rec ord.

J.H. Joubert

REGISTRAR: SUPREME COURT

c c R.E.A. Strowitzki

C/ o Harda p PrisonPrivate Bag 2135

MARIENTAL

BRIEF HISTORY BEHIND DR. STROWITZKIS SO-C ALLED APPLICATION

For a better appreciation of the submissions which were made on Dr.

Strowitzki s beha lf, a b rief summa ry of the history which prop elled this


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ma tter to this court had b ette r be narra ted a t the outset. Way ba c k in 1993

in criminal case number 118 of tha t year, Dr. Strowitzki wa s c ha rged

tog ethe r with one Bernd Albert Bc k in an indic tme nt co nta ining 130

c ounts of fraud . The two stood tria l befo re O Linn, J, as he then wa s. For

rea sons we need not enter into, the trial went o n into 1996 when bo th of

them w ere c onvicte d on a ll c ounts. Before sentence could be imposed o n

them, Dr. Strowitzki instituted rec usa l proc eed ings a lleg ing b ias on the part

of the t ria l judge and c onseq uently seeking the judg e to rec use himself

from the c ase. O Linn, J hea rd the app lica tion and dismissed it in due

course.

During the said recusal proceedings an affidavit deposed to by the said

Bernd Albert Bck, who was the second accused in the criminal

proceedings aforementioned, constituted the base of the accusation

aga inst O Linn, J. At the instiga tion o f the tria l judge b oth Dr. Strowitzki and

the said Bck were prosecuted on four counts charging, as to the first

count that between 9th and 12th August 1996 the two accused persons

colluded with each other with intent to wrongfully and unlawfully defeat

the cause of justice, as to the second count that between the said same

dates the two accused persons did unlawfully and intentionally vitiate the

dignity, repute and authority of OLinn, J, as presiding judge in the

a forement ioned c riminal p roc eed ings, as to the third c ount, tha t on the

self same dates the two accused persons did unlawfully and intentionally


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depose and swear to an affidavit making false allegations against OLinn,

J, and as to the fourth count, that on those very dates the two did

wrongfully and unlawfully make false statements knowing the same to be

false.

In substance the alleged falsehoods were to the effect that while the

c riminal proc eed ings we re pend ing relating to the fraud c harges, O Linn,

J, had made promises to Bc ks mo ther, now d ec ea sed , and la ter to Bc k

himself, tha t O Linn, J, would no t send Bc k to p rison in c onseq uenc e o f the

sa id c rimina l p roc ee dings. The four counts were tried b y Kotz, J, who

subsequently convicted Bck on all four counts while acquitting Dr.

Strowitzki c om p letely. Afte r the sentenc es were imposed in respec t of 130

c ounts of fraud Dr. Strow itzki unsuc c essfully app lied befo re O Linn, J. for

lea ve to ap pe al aga inst both c onvic tion and sentenc e. Unda unted b y the

rejec tion o f his sa id app lica tion, Dr. Strowitzki submitted a pet ition to the

Chief Justice still seeking lea ve to appea l as sta ted .

On July 2, 1997, by o rder of three judges of the Suprem e C ourt, nam ely

Ma hom ed , C.J, Mtamb aneng we , A.J.A, and G ibson, A.J.A. , Dr. Strowitzki

wa s informe d tha t his petition for lea ve to a ppea l had been refused . It is

necessary at this stage to mention that by section 316(7) of the Criminal

Proc ed ure Ac t, No. 51 of 1977, (the Criminal Proc ed ure Ac t), a p et ition to

the Chief Justice is required to be considered in chambers by three


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appella te judge s designa ted by the Chief Justice. And b y subsec tion (9)

(a ) of the sa id sec tion 316, The d ec ision of the Appella te Division or of the

three judg es thereof c onsidering the p etition, as the c ase m ay be , to g rant

or refuse any app lica tion, sha ll be final.

Som ew hat a nom alously, despite the c lea r provision in sec tion 316(9)(a )

a forement ioned Silungwe, J, enterta ined an app lica tion by Dr. Strowitzki

submitted subseq uent to the refusa l of the pet ition to the Chief Justice .

The a pp lic a tion which Silungwe , J, enterta ined w as two-fold , viz, for leave

to a ppea l aga inst Dr. Strowitzki s c onvic tion on the 130 c ounts of fraud a nd

c onseq uential 11 yea r p rison sentence and sec ond ly lea ve to ad duce

new evidenc e. For rea sons which nee d no t deta in us it suffic es to sta te

tha t Silungwe, J, d ismissed both app lica tions. It is in c onseq uenc e o f tha t

d ismissa l that Dr. Strowitzki onc e aga in submitted a pet ition to the Chief

Justice and it was that petition which engendered the writing by the

Reg istrar of this c ourt of the letter I have rep rod uc ed hereinbe fore.

CONSIDERATION OF THE REGISTRARS LETTER

In answering the first question p osed in the Registrar s letter the sta rting

point ha s to be the t ime whe n Dr. Strowitzki first p et itione d the Chief Justice

for leave to appeal after refusal of a similar application which was

c onsidered b y O Linn, J. As we ha ve a lrea dy seen that petition wa s


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trea ted pursuant to sec tion 316 of the Crimina l Proc ed ure Ac t. Let me

straight away reproduce some pertinent provisions of that section.

The Crimina l Proc ed ure Ac t as amend ed by Ac t No. 10 of 2001 p rovides as

follow s in as fa r as sec tion 316 is c onc erned , quot ing o nly the p ertinent

parts of it : -

(1) An ac c used c onvic ted o f any offence b efore the HighCourt of Nam ib ia ma y, within a p eriod of fourteen d ays of

the passing of any sentence as a result of such conviction

or within such extended period as may on application

.on good cause be allowed, apply to the judge who

presided a t the tria l for lea ve to app ea l aga inst his or

her conviction or against sentence

(6) If an application under subsection (1) for condonation orleave to appeal is refused ..the accused may, within aperiod of twenty-one days of such refusal, or within such

extended period as may on good cause be allowed, by

petition addressed to the Chief Justice submit his

application for condonation or for leave to appeal or his

application to call further evidence .to the Appellate

Division, a t the same time g iving written not ic e tha t this

has been do ne to the Reg istra r of the p rovincial or loc a l

d ivisionwithin whose area of jurisd ict ion the trial took

place .and such Registrar shall forward to the

Appella te Division a c op y of the app lica tion...in q uestionand of the rea sons for refusing suc h app lica tion

(7) The p etition sha ll be c onsidered in Cha mb ers by three judg esof the Appella te Division designa ted by the Chief Justice.

(8) The judges c onsidering the p et ition may (a ) -


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(b ) (c ) whether they have acted under paragraph (a) or

(b) or not

(i) -(ii) in the case of an application for leave to

appeal or an application for leave to call

further evidence, grant or refuse the

application..

(d ) refer the matter to the Appellate Division forc onsideration, whethe r upo n a rgum ent or otherwise,and that Division may thereupo n dea l with the

ma tter in a ny manner referred to in parag raph (a).

(9)(a ) The dec ision of the Appella te Division or of the judg es

thereof considering the petition, as the case may

be, to g rant or refuse a ny ap p lica tion, sha ll be final.

The Crimina l Proc ed ure Ac t is by orig in a South Africa n sta tute the

app lic ation of which wa s extended to South West Afric a as a dep endenc y

of South Afric a . The indep end ent sta te of Namibia adop ted this Ac t as

one of its post-independence laws by virtue of Article No. 140 of the

Co nstitution of Namibia. Therefo re the refe renc e in tha t Act to terms suc h

as Ap pella te Division and judge s thereof a re referenc es in p resent d ay

Namib ia to the Supreme Court of Nam ib ia o r judge s of the latte r c ourt. In

the event in my further discussion of the Criminal Procedure Act I shall

simp ly refe r to the Suprem e Court or judges of tha t c ourt, in p lac e o f the

Appellate Division or judges of that Division.


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In casu it is c om mon ca use tha t Dr. Strow itzki unsuc c essfully app lied fo r

lea ve to appea l to the tria l judge , name ly O Linn, J., and late r petitioned

the C hief Justice in the same vein and tha t tha t p etition w as c onsidered in

chambers by the Chief Justice and two appellate judges, namely

Ma hom ed , C.J., Mta mb aneng we , A.J.A. and Gibson, A.J.A. Therefore the

provisions of section 316 subsections (1), (6), (7), (8)(c)(ii) and (d) and (9)(a)

were sa tisfied . Conseq uent ly the d ec ision of refusa l ma de by the three

appella te judges in c hamb ers was in terms of subsec tion (9)(a), fina l. In this

c onnec tion let m e stress the p eremp tory langua ge used in subsec tion 9(a):

it sta tes The d ec ision of .. the three judg es . conside ring the pet ition

. to g rant o r refuse a ny app lica tion, sha ll be fina l (e mp hasis mine).

The q uestion which springs from the c onseq uenc e o f sec tion 316 (9)(a) on

the p etition o f Dr. Strow itzki ma y be posed , name ly, wa s it c om petent for

Silungwe , J, to ente rta in the a pp lica tion ma de by Dr. Strowitzki for lea ve to

appeal and leave to adduce further evidence, considering the finality

which that section attached to the decision made by the appellate

judges. Fortuna te ly we do not have to see k far for an answe r to this

question.

This is in the light o f the heads of a rguments submitted by Mr. Ge ier in the

first o f the four vo lumes c onta ining his a rgum ents. This is wha t is to be fo und

at heading C. Conc lusion of Volume 1 :


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44. It wo uld seem therefore tha t:

39.1 The proc ee dings befo re Silungwe , J, constitute a nullityas Silung we, J, d id no t ha ve the necessary jurisd ict ion to

hear a further application for leave to appeal

subsequent to the appeal procedures having been

exhausted by (Dr. Strowitzki) w ith the refusa l of h is

pet ition to the Suprem e Court during 1997 ; and

39.2 The further app lica tion for condona tion a nd fo r a spec ia lentry in terms of section 317 to the High Court can

simila rly not be ente rta ined b y suc h court on those

grounds.

45. It has also become clear that no inherent jurisdiction of theHigh o r Sup reme Courts, to he ar suc h further app lic a tion, exists.

46. It is submitted therefore that the first question as posed by theHonourable Chief Justice in (the Registrars letter) must be

answe red in the negative.

47. It follows that in such circumstances question 2 (in theReg istrars let ter) d oes not req uire determinat ion.

In agreeing with the position taken by Mr. Geier regarding the status of the

proc ee d ings befo re Silung we, J., Mr. Small went a little further. His

contention was to the following effect, namely that after the refusal of Dr.

Strowitzki s pet ition by the three a ppella te judg es, the High Court, upon

being a pproa ched by Dr. Strow itzki on a purported subseq uent

application, ought to have reacted by informing him that it had no

jurisd ic tion in the ma tte r. As the High Court did no t so reac t but instead

accepted to entertain the matter, the proceedings following upon such

ac c ep tance were a nullity. Such nullity could not give rise to a va lid further


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petition to the Chief Justice which has now been referred by the Chief

Justice to this court as evidenc ed by the Reg istrars let ter.

On the b asis of the extended submission o f Mr. Small as in the p rec ed ing

pa ragraph, it c an sa fely be a sserted tha t the referra l by the Chief Justic e o f

Dr. Strowitzki s matte r to us could not have b een done under sec tion

316(8)(d), which, as we have seen, em pow ers appella te judges who have

been designated by the Chief Justice to consider a petition in chambers,

to refer suc h pe tition to the Sup rem e Court sitting in op en c ourt. In othe r

words the referral can only be validly made on a valid petition emanating

from valid High Court proceedings, unlike the proceedings before

Silung we, J. By inverse rea soning, if the p urpo rted found ing High Court

p roc eed ings a re a nullity, no p etition c an be founde d on a nullity. As Lord

Denning stated in the cause celebr on this point, name ly MACFOY v

UNITED AFRICA CO. LTD (1961) 3 A ll E.R. 1169 a t page 1172:

If an ac t is void , then it is in law a nullity. It is not only ba d , but

inc urab ly ba d . There is no need for an o rder of the c ourt to set it

aside. It is autom atica lly null and vo id without a do, though it issometimes convenient to have the court declare it to be so.

And every proceeding which is founded on it is also bad and

incurably ba d . You ca nnot put something on nothing and

expe c t it to sta y there. It will c ollapse.


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Lord Dennings dictum portrays graphically the emptiness of judge

Silungwe s purpo rted d ismissa l of Dr. Strow itzki s purpo rted ap p lica tion.

Therefore no petition c ould b e p rem ised on it.

In the result, on the c om mon view taken b y both Mr. Ge ier and Mr. Sma ll

relat ing to the p resent referra l of Dr. Strow itzki s c ase to this c ourt, the se

proceed ings would falter at this stag e a nd c ould not b e taken a ny further

but for the alternative arguments forcefully adduced by Mr. Geier into

which I sha ll now delve.

MR. GEIERS SUBMISSIONS

One of the arguments advanced by Mr. Geier touched on the status of

judges of the Suprem e Co urt sitting in c hambers. Are they to be reg arded

as being a t par with the Supreme Court sitting in open c ourt? If not, wha t

authority does a dec ision ma de in c hamb ers by such judge s c arry? Do

judges sitting in chamb ers c onstitute a c ourt of rec ord?

In advancing his arguments touching the foregoing questions Mr. Geier

referred to sta tutory as well as c onstitutiona l provisions. In this ve in he

refe rred to Artic le 79(1) which d efines the c om position of the Suprem e

Court. By this article and sub-article


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The Sup reme Court sha ll c onsist o f a Chief Justice a nd suc h

additional judges as the President, acting on the

rec om mendation of the jud ic ia l servic e c om mission, ma y

determine.

He linked this a rtic le with sec tion 6 of the Sup rem e Co urt Ac t, No. 15 of 1990

(herea fter the Supreme Court Ac t) which p rovides tha t

Save a s otherwise p rov ided in Art. 12(1)(a ) and (b) of the

Nam ibian Constitution, a ll p roc eed ings in the Suprem e Courtshall be c arried out in op en c ourt.

Crowning the argument on the question of the status of judges sitting in

c hamb ers, Mr. Ge ier also refe rred us to sec tion 16(1) of the Sup rem e Court

Ac t, which g ives the Supreme C ourt the additiona l pow er of review. For a

bet ter apprec iation it is nee dful to quote th is p rovision in full thus

16.(1) In ad d ition to a ny jurisd iction c onfe rred upon it by this

Ac t the Suprem e Co urt sha ll, sub jec t to the provisions of this

sec tion and sec tion 20, have the jurisd ict ion to review

proceedings of the High Court or any lower court, or any

administrative tribuna l or authority estab lished or c onstituted by

or under any law.

Submitting o n the foregoing leg a l provisions, Mr. Geier argue d tha t since

the Supreme Court is ma ndatorily req uired to sit in op en c ourt, appella te

judges sitting in chambers could not be considered to constitute the

Suprem e Court as p rov ided in Artic le 79(1) of the Co nstitution. Therefo re,


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he concluded that the appellate judges sitting in chambers constitute a

low er court falling within the contemp la tion of sec tion 16(1) of the Suprem e

Court. In the event he contend ed tha t a de c ision of judg es sitting in

c hamb ers wa s reviewa b le b y the Supreme Court sitting as we d id in op en

c ourt in the p resent he aring . It was his further c ontent ion tha t a sitting in

c hamb ers is not a c ourt of rec ord. In ma king this submission he w as

focusing his attention on the decision of Chief Justice Mohamed sitting in

c ham be rs with ac ting ap pe llate Justic es Mtamb aneng we and Gibson

when they refused the p et ition by Dr. Strowitzki for lea ve to a ppea l.

These submissions beg a number o f q uestions som e of which a re first,

what is a lower court within the purview of subsection (1) of section 16 of

the Supreme Court Ac t; sec ond ly, a re p roc eed ings taken in cha mb ers by

three appellate judges any less in the authority they carry than those

proc ee d ings held in open c ourt; third ly, in the light of sec tion 6, what is the

va lid ity of proc eed ings held in cha mb ers by appella te judg es?

One answer to the question regarding the authority of a decision made in

chambers by appellate judges is to be found in section 316(9)(a) of the

Crimina l Proc ed ure Ac t. As we have seen tha t sec tion plac es suc h a

dec ision a t p ar with a d ec ision m ade b y the Suprem e Court sitting in op en

c ourt. Both dec isions a re fina l. By nec essary imp lica tion sec tion 316(9)(a)

belies the argument that judges sitting in chambers constitute a lower


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c ourt. Ad d itiona lly the p osition is made mo re explic it by Artic le 83 of the

c onstitut ion. This is wha t tha t a rtic le sta tes

83. Low er Co urts

(1) Low er courts sha ll be esta b lished b y Ac t of

Parliame nt a nd sha ll have the jurisd ic tion and adop t

the procedures prescribed by such Act and

reg ula tions ma de there und er;

(2) Low er c ourts sha ll be p resided over by Ma g istrates

or other judicial officers appointed in accordancewith p roc ed ures p resc ribed by Ac t o f Parliament.

Co nsistent w ith Artic le 83 the Crimina l Proc ed ure Ac t, in sec tion 1(1) defines

low er court as me aning any c ourt estab lished unde r the p rovisions of the

Ma gistrates C ourts Ac t No. 32 of 1944.

Mo re light is throw n on to this issue b y sub -artic le (4) of Article 79. This

provides tha t the jurisd ic tion o f the Supreme Court w ith reg a rd to appea ls

sha ll be de termined by Ac t of Parliament . In this c ount ry there are two

suc h Ac ts which p resc ribe the jurisd ic tion o f the Suprem e Court, these

being the Suprem e Court Ac t and the Criminal Proc ed ure Ac t. The former

dea ls mo re elab orate ly with c ivil ap pella te jurisd ic tion while the la tter dea ls

more elaborately with crimina l appella te jurisd iction. In this sense we c an

sta te tha t both these sta tutes derive their authority from the c onstitution.


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Furthermore, section 315 of the Criminal Procedure Act carrying the rubric

Ap pea ls in ca ses of c rimina l appea ls in superior courts p rovides as

hereunder:

(1) In respec t of ap pea ls and questions of law reserved in

c onnec tion with c riminal ca ses hea rd by the High C ourt of

Namibia, the c ourt of ap pea l sha ll be the Suprem e Co urt

of Namibia.

(2) An appeal referred to in subsection (1) shall lie to theSuprem e C ourt o f Nam ibia o nly as p rovided in sec tions 316to 319 inc lusive, and not a s of right.

We have already seen that section 316(7) of the Criminal Procedure Act

makes provision for criminal petitions addressed to the Chief Justice to be

considered in chambers by three appellate judges designated by the

Chief Justice. Quite c lea rly this p rovision plac es the three judges sitting in

c hamb ers on a higher ped esta l than tha t o f jud ic ia l offic ers who p reside in

lowe r c ourts. The three judg es a re involved in the sc hem e of appea ls to

the Suprem e Court. In the event to argue tha t suc h judges sitting in

chambers constitute a lower court flies in the face of an express statutory

provision.

When appellate judges in chambers consider issues pertaining to criminal

appea ls do they c onstitute a c ourt of rec ord or not? Mr. Ge iers answer is,

the y do not . This answer is, in my view, p rem ised o n fa lse ground . Let us

c onsider a rea l situat ion w hic h happens reg ula rly in this court. Dec isions


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ma de b y judge s in chamb ers when considering p etitions a re in ac tua l fac t

rec orded whe ther they be in the neg ative or in the affirma tive. Where the

decision is one of granting the petition, the record of such grant goes

forward to the Suprem e Court sitting in op en c ourt when the latte r hea rs

the substantive a pp ea l. This c ourt wo uld then note , as we have a lwa ys

done, that the appeal comes to it after the appellant was granted leave

to ap pea l. In so sta ting we refer to the rec ord ema nating from c ham bers.

Moreove r this c ourt d id in the c ase of AFSHANI and ANOTHER v. KATRIN

VAATZ, CASE NO. SA 9/ 2002 (unrep orted ) rec og nize tha t when a judg e is

sitting in c hambers he is by nec essary imp lica tion req uired to keep a rec ord

of the p roc eed ings. Delivering the judg ment of the c ourt, O Linn. A.J.A.

had this to say at page 13 :-

Althoug h the re is no express p rovision in a ny law or rule o f c ourt

for a judge in chambers to keep a record, it is clearly a

necessary implication from the provision that a judge is the

func tiona ry and from rule 48 itself, tha t a rec ord m ust b e kep t o f

the p roc eed ings in c ham bers.

I must, however, hasten to point out tha t the d ic tum o f O Linn wa s ma de in

reference to a High Court judge dealing with a civil matter in chambers

and the question in Afshani wa s whe ther a dec ision o f suc h a judge wa s a

judgment or order which, in terms of section 18 of the High Court Act, No.

16 of 1990, provides in subsection (1) that an appeal from a judgment or

order of the High Court in any civil proceedings shall be heard by the


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Suprem e Court. In c ont rad istinct ion from the p resent case, which is

criminal, I must stress that Afshani was a civil case which turned on

c onside ra tions a lien to the p resent one . The c onside ra tions ra ised in limin

in Afshani were : whe ther the de c ision o f a judg e in cha mb ers on a review

wa s fina l and without a right of a ppea l, or, in the a lternative, even if there

was a right of appeal, whether leave to appeal was required but not

ac tua lly ob ta ined . In Afshani, therefo re, the p rovision in sec tion 316(9)(1) of

the Criminal Proc ed ure Ac t d id not fall for co nsideration.

The third issue I must now address is as reg ards the sta tus of p roc ee d ings

before appellate judges in chambers in the light of the requirement of

sec tion 6 of the Supreme Court Ac t. As a lrea dy noted , that sec tion requires

tha t save a s p rovided in a rticle 12(a) a nd (b) p roc eedings in the Supreme

Co urt must be he ld in op en c ourt. If the p rovisions in this sec tion a re to be

construed in their literal or ordinary sense, then no valid business can be

c ond uc ted in the Supreme Court othe rwise tha n in op en c ourt. Is such a

situa tion tena b le? Ac c ording to Mr. Ge ier it is tenab le bec ause in relying

on section 6 he has impugned the validity of the decision made by the

three judg es who rejec ted Dr. Strowitzki s pet ition in c hamb ers and lab eled

it a de c ision ma de b y a lower court.

Unhap p ily the word p roc eed ings is not d efined in the Supreme Court Ac t

and I am presently not aware of any other statute or constitutional


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provision w hic h offers suc h a d efinition. In the event, I am o f the view tha t

since the meaning of sec tion 6 afo resa id has been b roug ht und er sc rutiny

in the current case, it is incumbent on this court to find a purposive

me aning of that wo rd . In attemp ting to do this I have to c onsider the

range of b usiness c ond uc ted in the Supreme Court.

Artic le 79(4) of the c onstitut ion simp ly provides The jurisd ict ion of the

Supreme Court with reg ard to a ppea ls sha ll be d ete rmined by Ac t of

Parliament. When the Suprem e Court Ac t was ena c ted in 1990, Parliament

provided not o nly for ap pella te jurisd ic tion of the Suprem e Court, but a lso

p rovided for jurisd ic tion to hea r and d etermine other matte rs. Thus by

sec tion 2 of the Suprem e Court Ac t it is ena c ted as follow s :

The Sup rem e Court sha ll have jurisd iction to hea r and

determine appeals and any such other matters which may be

conferred or imposed upon it by this Act or the Namibian

Co nstitution o r any othe r law . (underlining supp lied).

This p rov ision puts one o n inquiry as to wha t o the r matters fa ll within the

jurisd ic tion of the Suprem e Co urt and how such ma tters a re to b e d ea lt

with or in othe r wo rds, wha t proc ed ure is to b e employed in dea ling w ith

the othe r mat ters.


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By Artic le 79(2) (T)he Sup rem e Co urt sha ll be p resided ove r by the Chief

Justice and shall hear and determine appeals emanating from the High

Co urt .. The Sup reme Court sha ll a lso d ea l with ma tters referred to it for

decision by the Attorney-General under this constitution, and with such

othe r ma tters as ma y be a uthorized by Act o f Parliame nt. Looking fa r

a field , this time a t the Sup rem e Court Ac t itself, there a re three othe r

provisions which vest in the Sup reme Court jurisd ict ion in respec t of other

matte rs. Sec tion 14(6)(a ) imposes on the Sup rem e Court jurisd iction to hea r

pet itions for lea ve to a ppea l. Sec tion 15(1) of the same Ac t rea ffirms the

jurisd ic tion of the Sup rem e Court to enterta in matte rs refe rred to it by the

Attorney-Genera l and sec tion 16(1) vests in the Sup rem e Court the

jurisdiction of review of proceedings of the High Court, any lower court, or

any administrative tribunal or authority established by or under any law.

The jurisd ic tion to rec eive and dete rmine p etitions for lea ve to app ea l is

a lso p resc ribed by the Crimina l Proc ed ure Ac t as a lrea dy show n.

In as far as the procedural requirements of entertaining appeals, referrals

by the A ttorney-General and p etitions for lea ve to ap pe al are conc erned,

these too a re p resc ribed by sta tute . So fa r as the hea ring and d etermining

of substantive appeals is concerned the position does not lend itself to

doub t. These a re hea rd in ope n court with a norma l complement o f three

judges one of whom must be the Chief Justice a s p residing officer. (Art.

79(2).)


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Reg ard ing petitions for lea ve to appea l to the Supreme Court in criminal

c ases, these a re required to be a ddressed to the Chief Justice who is g iven

power to designate three appellate judges to consider the same in

c hamb ers. As reg ards pet itions for lea ve to a ppea l in c ivil c ases, by sec tion

14(3)(b) of the Supreme Court Ac t, they are to be c onsidered by the Chief

Justice or any o ther judg e d esigna ted for the p urpose b y the Chief Justic e.

To this end the Chief Justice or the designa ted judge may ente rta in

arguments from the parties or their counsel before determining a petition

one wa y or the other. By nec essary imp lica tion suc h co nsidera tion of a

petition, including the hearing of arguments, is to be conducted in

c hamb ers bec ause there is no sta tutory provision for one judg e only to hear

and d etermine a ny ma tters in op en c ourt.

Coming to the procedure of dealing with referrals from the Attorney-

Ge neral to the Sup rem e Court an unc lea r situa tion exists. Ac c ording to

Artic le 79(3) (T)hree judg es sha ll co nstitute a quorum of the Suprem e Court

whe n it hea rs appea ls or de a ls with matters referred to it b y the Atto rney-

Genera l unde r this c onstitution: p rovided tha t provision ma y be ma de by

Act of Parliament for a lesser quorum in circumstances in which a judge

seized of an appeal dies or becomes unable to act at any time prior to

judgment. The imp ression c onveyed by this c lause is tha t referra ls, like

appeals, are to be heard in open court with a normal complement of 3


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judge s. On the o ther hand the c ombined effec t of sub-rules (1) and (4) of

rule 6 of the Suprem e Court Rules is tha t when the Atto rney-General refe rs

a ma tter to the Supreme Court a s p rovided unde r the c onstitution he / she

has to do so by application addressed to the Chief Justice and the

app lica tion has to b e in the na ture of a petition. The petition fa lls to b e

c onsidered either by the Chief Justice o r by a judg e o f the Supreme Court

(sub -rule 4). In terms of rule 6, the refore, the referra l by the Attorney-

Ge neral has to be considered b y one judg e in c hamb ers. Thus there

ap pe ars to be a c onflic t betw een the constitutiona l provision and that

found in the rules.

We were not a ddressed on this apparent c onflic t and the refore it would b e

imp rudent to a ttem pt any de finitive conc lusion on the ma tter. In any ca se

the provisions cited earlier have amply demonstrated that the procedure

of hearing c ertain ma tters in c hamb ers is entrenched by sta tute, name ly by

the Supreme C ourt Ac t and the Criminal Proc ed ure Ac t. Both sta tutes

derive their efficac y from the c onstitution as we ha ve seen. This lea ds me

to the c ontention ra ised by Mr. Geier in reg ard to sec tion 6 of the Suprem e

Court Act. He argued tha t all p roc eed ings of the Supreme Court oug ht

unfailingly to be held in ope n court.

As we have seen the section provides in apparent mandatory terms, that

a ll p roc eed ings in the Supreme Court sha ll be c ond uc ted in op en c ourt. If


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the section is to be understood in the ordinary grammatical or literal sense

then it means that hearing proceedings in chambers is not legally

permissible. In othe r words p roc eed ings in c hamb ers a re null and void in

law. But is tha t the true leg a l position?

The following d ictum b y Park B. in BECK v SMITH (1836) 2M and W 191 a t

page 195 is now held as the loc us c lassicusand is hallowed as the Golden

Rule of c onstruct ion of de ed s and sta tutes. He sa id -

The rule (i.e. the golden Rule) is a very useful rule in the

construction of a statute, to adhere to the ordinary meaning of

words used, and to the grammatical construction, unless that is

at variance with the intention of the legislature, to be collected

from the statute itself, or leads to any manifest absurdity or

repugnance in which case the language may be varied or

mo d ified , so a s to a void such inc onvenienc e, but no further.

Against the backdrop of the golden rule what construction should we put

on the p rovisions of sec tion 6 of the Suprem e Court Ac t? Does it indeed

me an that a ll p roc eedings in the Supreme C ourt, inc luding a ll p roc eed ings

of a n interloc utory nature, should b e transac ted in op en c ourt?

We have a lrea dy noted tha t the supreme Court Ac t itself has p rovided tha t

petitions for leave to appeal from High Court judgments or orders, both in

criminal and civil matters, may be dealt with by an appellate judge or

judges in chambers though procedural law allows the judges in certain


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c irc umstanc es to refer pe titions and/ or ap p lic a tions to the Supreme Court

sitting in open court. It has a lso, though in ap parent c onflic t with the

Constitution, provided that petitions from the Attorney-General may

equally be considered in chambers by the Chief Justice or an appellate

jud ge. The Crimina l Proc ed ure Ac t, which I must em pha size, a lso d erives its

authority from the Constitution, similarly makes provision for petitions for

leave to appeal to be considered in chambers by three judges of the

Suprem e Court.

It is thus c lea r that the intention o f the legislature is not to b ind the Sup rem e

Court to c onsider in op en c ourt all and sundry matters c om ing b efore it. It

would be not only ab surd and inco nvenient to cond uct all proceed ings in

op en c ourt, it w ould a lso be extrem ely co stly to parties for suc h p roc ed ure

to b e a dop ted . Wherea s in cham be rs some ma tters c an b e c onside red in

the absenc e o f the parties or their c ounsel, this c annot b e so whe re o pen

c ourt hearings have to b e held . Op en court proce ed ings more often than

not enta il costs, espec ially in c ivil matters.

Consequently I venture to hold, and do in fact so hold, that the word

proceedings as used on section 6 has a special and restricted meaning.

It means p roc eed ings perta ining to substa ntive ap pea ls. To ho ld o therwise

wo uld be unrea listic and absurd , and indeed, as I ob served in respond ing

to Mr. Geier s sub missions on th is matter, I ha ve yet to lea rn of any


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appella te c ourt in any c ountry which hea rs in the op en court p rac tica lly a ll

ma tters com ing before it. I wo uld , therefo re, and with due respec t d ismiss

as untenab le Mr. Geiers vehement submissions on this issue.

Concom itant with the argum ent tha t all p roc eed ings in the Suprem e Court

should be held in open court was a further submission by Mr. Geier that

there wa s an irrec onc ilab le c onflict b etw een sec tion 6 of the Supreme

Court Ac t and sec tion 316(7) of the Criminal Proc ed ure Ac t. He a rgued

that in such an event the law implies that the later law has repealed the

ea rlier law. As the Suprem e Co urt Ac t wa s ena c ted in 1990 wherea s the

Criminal Procedure Act was enacted in 1977, section 316(7) is presumed,

acc ord ing to Mr. Geier, to have be en repea led by imp lication by sec tion 6.

That a rgument is untenab le in the light o f the result I have c om e to in

app lying the g olden rule o f c onstruc tion to sec tion 6 of the Supreme Court

Act.

Yet another forceful a rgument put forward by Mr. Ge ier is tha t this court

should a c t und er sec tion 16(1) of the Suprem e C ourt Ac t, that is by wa y of

review . He urged tha t sec tion 16(1) vests in the Sup rem e Co urt ad d itiona l

jurisd ic tion over and above its appella te jurisd ic tion. To this end therefo re,

notw ithstand ing the fac t that in ac c orda nc e with sec tion 316(9)(a) of the

Criminal Procedure Act the refusal by the three judges in chambers was a

final decision, the court thus has additional jurisdiction to enable it to


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reopen the High Court case and review it because of irregularities

c om mitted by the tria l judg e in the course of the tria l p roc eed ings. He wa s

a t p a ins in c iting a numb er of c ases which define what kind of irreg ula rities

would justify a review and in which it wa s held tha t the irreg ula rities a re a c ts

which oc c ur during a tria l and not in conseq uence thereof.

The review jurisd ict ion is to be invo ked by this court mero m otu. This lega l

requirement did not escape the attention of Mr. Geier and he therefore

rep ea ted ly reminded us tha t there wa s no a pp lic a tion for review b efore us.

He contended that the reviewable irregularities would come to our

a ttention by rea d ing the rec ords of the p resent ca se. In order to invoke

the review jurisdiction a prescribed procedure has to be complied with.

This proc ed ure is to be fo und in rule 7 of the Sup rem e Co urt Rules. The rule

provide s : -

Wherever it comes to the notice of the Chief Justice or any

othe r judg e o f the Supreme Court tha t a n irreg ula rity has

occurred in any case contemplated in section 16 of the Act,

and he or she decides to invoke the review jurisdiction of the

Suprem e Court in te rms of tha t sec tion

(a) the pa rties affec ted and the c ourt or tribuna l or

authority referred to in the said section shall be

informed of tha t dec ision by the reg istrar; and

(b ) the provisions of rule 6(5)(b) and (6) shall mutatismutandisapply.


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The sa id p rovisions of rule 6 sta te as hereunder :-

(5) If the Chief Justice o r any suc h judge of theSuprem e Court, as the ca se may be, dec ides tha t

an app lic a tion is, by virtue of its urgenc y or

othe rwise of a na ture suffic ient to justify the exerc ise

of the courts jurisdiction as contemplated by

sec tion 15 of the Ac t

(a) the petitioner or his or her a ttorney and the

respondent, if any, or his or her attorney, shall be so

informed by the reg istrar.

(b ) the Chief Justice or suc h other judge, as the

c ase may be, shall thereafte r d irec t

(i) what pleadings or affidavits or documents arerequired to be filed by the parties to the

proceedings;

(ii) the period within which such pleadings ora ffidavits or doc uments sha ll be lodge d;

(iii) whether or not any special dossiers are requiredto be compiled in terms of section 23 of the Act

and if so, the time within which such dossiers are

required to b e lodge d;

(iv) the d a te o n which the Supreme Court sha ll hea rthe matter or any interlocutory proceedings

pertaining thereto.

(6) The Chief Justice or suc h other judg e, as the casema y be, shall be entitled to ca ll for or to hea r

argument from affected parties with regard to

matters referred to in sub-rule (5), and such a

hearing or such argument may be considered by

the Chief Justice o r suc h other judge o f the Sup rem e

Co urt as he o r she may designa te fo r tha t purpose.

As can be seen there is quite an elaborate procedure to be followed if a

matte r is to be review ed under sec tion 16(1). Tha t proc ed ure wa s not


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complied with and in particular the affected parties have not been given

the opportunity to make representations pursuant to rule 6(5)(b) and (6).

Moreover much as Mr. Geier tried to persuade us to invoke the review

jurisd iction mero mo tuwe d id not share his c ontention tha t the tria l before

O Linn, J., should b e reviewed . It is to b e no ted tha t Mr. Ge ier did c onc ed e

that if the court did not find it fitting to invoke its review jurisdiction mero

motuthen that w ould be the end o f the matter.

As the review argument d id not find favour with the c ourt, I find it otiose to

delve into the m any c ited authorities which Mr. Ge ier referred us to on the

point.

Another contention Mr. Geier submitted was in relation to inherent

jurisd iction. In this c onne c tion he c ited the c ase of SEFATSA and OTHERS v.

ATTORNEY-GENERAL, TRANSVAAL and ANOTHER 1989 (1) SA 821. Tha t was

a c ase in which the Appella te Division o f the Suprem e Court of South Africa

was urged to exercise its inherent jurisd ic tion to reg ula te its p roc eed ings by

wa y of c a rrying o ut a rea ppra isa l of the c onvictions of the appellants in the

light o f further evidenc e which tended to show tha t the trial court wa s the

vic tim o f fraud . Rabb ie, Act ing Chief Justice , who d elivered the judg me nt

of the c ourt sta ted a t p age 334, lette r E. the follow ing :

The c ases referred to imm ed ia tely ab ove wo uld seem to show ,in my opinion that it is the settled view of this court that its


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jurisdiction in criminal matters is determined by statute, i.e. the

Criminal Procedure Act and such other relevant statutory

provisions as the re m ay be.

Later at pages 838 letter J and 839, letters A-C the learned Acting Chief

Justice had the fo llow ing to say

Rec ords of this c ourt relating to the ma tter revea l the follow ing.

The C hief Justice referred the petition fo r lea ve to appea l to a

mem ber of this Division (see sec tion 316(7) of the CriminalProc ed ure Ac t 51 of 1977, as wo rded a t that time ) who , a fter

c onsidering it, refused lea ve to ap pea l. Sikweyiya wa s so

notified . Ab out ten days la ter the same judge c ancelled his

refusa l of lea ve and g ranted leave. Sikweyiya wa s then not ified

that lea ve had be en granted. There wa s no judg ment by this

c ourt on the ma tter. The dec ision of the judg e when he refused

leave was, in terms of section 316(9) of the Criminal Procedure

Ac t 51 of 1977, fina l , and the granting of lea ve thereafte r

appears to have been contrary to the provisions of section 316

(9). It hard ly need s saying tha t a c ourt ca nnot have a n inherent jurisdiction which would entitle it to act contrary to an express

provision of an Ac t of Parliament . Sikwe yiya s c ase c annot,

therefore, be regarded as authority for the petitioners

submission (underlining mine).

Mr. Ge ier urge d tha t the forego ing d ic ta b y Rabbie, A.C.J., we re now non

sequiturbec ause o f the c om ing into fo rc e in South Afric a of Artic le 173 of

the Final Rep ub lic o f South Afric a C onstitution Ac t No. 108 of 1996. By tha t

a rtic le the superior courts in South Africa have b een vested with inherent

jurisd iction. The Artic le provid es -


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The Constitutiona l Court, Sup rem e Court of Ap pea l and High

Courts have the inherent power to protect and regulate their

own process, and to develop the common law, taking into

ac c ount the interests of justice .

Back here a t ho me Artic le 78(4) of the c onstitution has p rovisions which a re

virtua lly in pari materia with Artic le 173, sup ra . The a rtic le is c ouched in the

follow ing terms

The Sup rem e Court and the High Co urt sha ll have inherent

jurisd ict ion which vested in the Sup rem e Court of South West

Afric a immed iate ly prior to the d ate of indepe ndence, including

the p ower to regulate their own proced ures and to make c ourt

rules for tha t p urpose.

In distancing himself from the dicta of Rabbie A.C.J., see supra, Mr. Geier

submitted tha t the fa ir hea ring p rovisions in Art. 12 of the Constitution

reinforce the nee d for the Suprem e Court to e xercise inherent jurisd iction in

order to do justice. The p ertinent provisions of Art. 12 a re the fo llowing : -

(1)(a ) In the dete rmina tion of the ir c ivil rights and

obligations or any criminal charges against them, allpersons shall be entitled to a fair and public hearing

by a n indep endent, imp artial and c omp etent c ourt

or tribuna l esta b lished b y law: p rovided tha t suc h

c ourt or tribunal may exclude the p ress and / or the

public from all or any part of the trial for reasons of

mo ra ls, the p ub lic order or na tiona l sec urity, as is

nec essary in a dem oc ra tic soc iety;

(b ) A trial referred to in Sub -Artic le (a ) hereo f sha ll ta keplace within a reasonable time, failing which theaccused shall be released.


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As reg a rds the need for invoking the inherent jurisd ic tion granted by the

c onstitution, I would c onc ur with lea rned Ac ting Chief Justic e Rabb ie tha t a

c ourt c annot have inherent jurisdic tion which wo uld entitle it to ac t

c ont ra ry to a n express p rovision o f an Ac t of Parliament. In other words the

exerc ise of inherent jurisd iction is justified where there is a lacuna in the law.

In this country there no lacunaon the issue und er rev iew : in fac t there is an

express provision, namely section 316(9)(a), which dictates that the refusal

dec ision b y three appella te judges sitting in chamb ers sha ll be final.

Article 140(1) of the constitution provides that all laws which were in force

imm ed ia tely before indep end enc e shall rem a in in forc e until rep ea led o r

amended by Act of Parliament or until they are declared unconstitutional

by a c ompetent court. Neither of these two c ontingenc ies has oc c urred in

respec t o f sec tion 316(9)(a) of the Crimina l Proc ed ure Ac t. Therefore it still

stands as pa rt of the law of indep end ent Nam ibia . In the event this c ourt

has no o p tion b ut to app ly it in the p resent c irc umstances.

Reverting to the fair hearing issue, I am by no means persuaded that Dr.

Strowitzki was denied a fa ir hea ring w hen he was jointly tried with Bc k

befo re O Linn, J. I am reinforc ed in this view having reg ard to the fac t tha t

the records pertaining to this case show that the matters which were

a lleg ed to ha ve c onstituted b ias on the p art of O Linn, J, we re exposed to


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be false in a subsequent trial conducted by Kotz, J. Bck was convicted

of having told fa lsehood s. In any event Bc k wa s not only c onvicte d by

OLinn, J, on all the 130 fraud counts, but he was also sent to prison for 11

yea rs, c ont ra ry to the c om pla int by Dr. Strowitzki tha t Bc k wa s p rom ised

by OLinn, J, tha t he wo uld no t be sent to p rison. In my view therefo re any

mo tion of bias on OLinn, J s part wa s no more than fa nc iful ra ther than

one b orne in rea sona b lene ss.

In the final ana lysis, I am o f the firm view tha t muc h as I com mend Mr. Ge ier

for his industry, resourcefulness and thoroug h resea rc h w hich ena b led him

to a rgue his c ase w ith grea t verve, Dr. Strowitzki wa s not p rop erly be fore

this c ourt in these p roc eed ings. I must stress tha t he c ame by way of

petition addressed to the Chief Justice after the purported dismissal of his

app lica tions c onsidered by Silungwe , J. The Chief Justice then instructed

the Reg istrar to refer the m atte r to us via the Reg istrars let ter quoted a t the

very beg inning of this judg me nt. I reiterate tha t the first of the two

questions posed in the letter was seeking our answer to the question

whether this court had jurisdiction to consider a further application for

lea ve to a pp ea l and / or pe tition to g rant lea ve to a pp ea l after refusal of an

application by the High Court and dismissal of the petition to the Chief

Justic e even if the new a pp lica tion a nd p etition a re launc hed in respe c t of

new o r purported new evidenc e.


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I have exhaustively, I believe, pondered over this question and the

overwhelming conclusion I have arrived at is that this court does not, in the

c irc umsta nc es of this c ase, have jurisd iction to ente rta in the m atte r. In the

event , the sec ond question posed by the let ter is irreleva nt. In pa ssing ,

however, I would, onc e a ga in, rem ind Dr. Strow itzki tha t if he still feels

strongly that he has been paid short shrift in his search for justice, he may

avail himself of the provisions of section 327 of the Criminal Procedure Act

the effec t o f which is to seek the exercise o f the p residential prerog a tive o f

mercy in his favour.

As for the present case it is struck off the role on the ground that this court

lac ks jurisd ic tion to enterta in it. I orde r ac cording ly.

________________________

CHOMBA, A.J.A.


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I agree

________________________

MTAMBANENGWE, A.C.J.

I agree

________________________TEEK, A.J.A.


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COUNSEL FOR THE APPLICANT : ADVOCATE H. GEIER

(AMICUS CURIAE)

COUNSEL FOR THE STATE : ADVOCATE D.F. SMALL

(PROSECUTOR-GENERALS OFFICE)

Documents

REINARD EUGEN AUGUST STROWITZKI VERSUS THE STATE