SA 02/2001

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

THE STATE APPELLANT

AND

DAVID AMBROSE DELIE RESPONDENT

CORAM: Strydom, C.J., O’Linn, A.J.A. et Chomba, A.J.A.

HEARD ON: 5 July 2001

DELIVERED ON: 7 December 2001

APPEAL JUDGMENT

Fly notes of the Judgment:

Criminal procedure – Maintenance order – Charge of failure to pay

maintenance order in terms of Court order in contravention of section 11 of
Act 23 of 1963.
Plea of guilty in terms of section 112 ( 1 ) (b ) of the Criminal Procedure Act 51
of 1977
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Review of sentence in terms of section 302 of the Criminal; Procedure Act 51 of

1977
Respondent’s answers given to the trial magistrate raises a defence set out in
section 11 (3) of Act 23 of 1963, which provides that any failure to pay
maintenance due to lack of means not attributable to misconduct shall be a
good defence to a charge contrary to section 11 of Act 23 of 1963
Failure of Judge of the High Court to refer the matter back to the Magistrate
with instructions to record a plea of not guilty in terms of section 312 of the
Criminal Procedure Act 51 of 1977
Prosecution’s right of appeal extended by virtue of section 311 ( 2 ) as amended
by Act 26 of 1993
There is no provision allowing for an appeal from a two Judge Bench, sitting
on appeal or review in a criminal matter to a Full Bench of the High Court-
Procedure applicable

STRYDOM, C.J.: Argument in this matter was heard during the July session of this Court.

As there were various issues on which the Court required further argument Counsel for the

appellant, Ms. Verhoef, and Counsel for the respondent, Mr. Potgieter, were requested to

provide additional Heads of Argument in which these matters were addressed. The appeal

was postponed to 8 October for further oral argument, if necessary. After having read the

additional written submissions, filed by both Counsel, it was decided that it was not necessary

to hear oral argument.

This is a matter which started in the magistrate’s court where the respondent was charged

with contravening section 11 of Act 23 of 1963, namely failing to pay maintenance in terms

of a court order. The respondent pleaded guilty to the charge and was questioned by the

magistrate according to section 112 (1)(b) of Act 51 of 1977. After questioning, the

magistrate recorded that he was satisfied that the accused admitted all the allegations in the

charge and he was convicted. The respondent was thereupon sentenced to 12 months

imprisonment of which 6 months were suspended on the usual conditions. Because of the
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sentence imposed the matter went on review in terms of the provisions of section 302 of Act

51 of 1977, and was placed before a Judge of the High Court.

The learned Judge, before whom the matter was placed, was not satisfied that the conviction

was in order and, correctly in my view, pointed out that one of the answers given by the

respondent, when he was questioned by the magistrate in terms of section 112 (1)(b), raised

the defence set out in section 11 (3) of Act No 23 of 1963. Subsection (3) provides that

proof that any failure to pay maintenance was due to lack of means not attributable to

misconduct shall be a good defence to such charge. The matter was then dealt with in terms

of section 304 of Act 51 of 1977 and two Judges of the High Court came to the conclusion

that the magistrate should have entered a plea of “not guilty” and should have ordered the

prosecutor to proceed with the leading of evidence. The Court thereupon set aside the

conviction and sentence.

It was at this stage that the Prosecutor-General entered the picture. Although the Court on

review was correct to set aside the conviction and sentence, for the reasons set out in their

judgment, the Court however overlooked the provisions of section 312 of Act 51 of 1977

and failed to refer the matter back to the magistrate with instructions to record a plea of

“not guilty” and to proceed with the leading of evidence. The appellant thereupon launched

an application for leave to appeal to the Supreme Court. At the hearing of the application

the Court was satisfied that it was obliged, in terms of the provisions of section 312, to have

referred the matter back to the magistrate. It consequently granted leave to appeal, not to

the Supreme Court, but to the Full Bench of the High Court.
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When the matter came before the Full Bench that Court, not surprisingly, came to the

conclusion that it had no jurisdiction to hear the appeal and struck the matter from the roll.

This decision is no doubt correct, as there is no provision allowing for an appeal from a two

Judge Bench, sitting on appeal or review in a criminal matter, to the Full Bench of the High

Court.

That was not the end of the problem because the appellant then noted an appeal directly to

this Court and did not again apply or petition for leave to appeal. As a result of this, this

Court then raised the question whether it was not necessary for the appellant to first obtain

leave in order to be able to prosecute this appeal. If it was necessary to obtain leave to

appeal and if such leave had not been granted by the Court a quo, then it seems to me that

this Court is the only Court left who could grant leave. The Court who sat on the review

and granted leave to appeal, albeit incorrectly, is now functus officio. (See in this regard

Baxter: Administrative Law, p.375ff, and Sefatsa and Others v Attorney-General and

Another, 1989 (1) SA 821(AD) at 831I – 832A). The Full Bench of the High Court

dealt with a nullity and struck the matter from the roll. That Court, so it seems to me, had

no case before them in respect of which they could grant leave to appeal. That leaves only a

petition to this Court for leave to appeal.

As previously pointed out, Counsel were requested to file additional heads of argument in

which they were to deal with issues such as section 16 of the Supreme Court Act, Act 15 of

1990, whereby this Court can mero motu deal with irregularities which occur in proceedings;
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whether this Court has an inherent jurisdiction to grant leave to appeal, and whether the leave

that was granted by the Court a quo was effectively granted to this Court. Because of the

conclusion to which I have come it is not necessary to deal with all these issues.

Whether leave to appeal was necessary in this instance must in my opinion be determined

according to the provisions of the Supreme and High Court Acts and the Criminal Procedure

Act. The section in the Criminal Procedure Act, Act 51 of 1977, (the Act), dealing with

appeals from the High Court sitting on appeal, is section 311. This section was amended by

Act 26 of 1993 where the Prosecutor-General was given extensive powers of appeal. This

section, so far as is relevant, now reads as follows:

“311(1) Where the High Court on appeal, whether brought by the

Prosecutor-General or other prosecutor or the accused, gives a

decision in favour of (the Prosecutor-General or other prosecutor

or the accused) the Prosecutor-General or other prosecutor or

the accused against whom the decision is given, as the case may

be, may appeal to the Supreme Court which shall, if it decides

the matter in issue in favour of the appellant, set aside or vary

the decision appealed from, and if the matter was brought

before the High Court in terms of –

(a) Section 309(1), reinstate the conviction, sentence or

order of the lower court appealed from either in its

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original form or in such modified form as the Supreme

Court may consider desirable; or

(b) Section 310(1), give such decision or take such action as

the High Court ought, in the opinion of the Supreme

Court, to have taken, including any action under section

309(3).

(2) The provisions of section 316 in respect of any application or

appeal by an accused referred to in that section, shall apply

mutatis mutandis with reference to an appeal in terms of

subsection (1)

(3) ……………………….”

(The words appearing in brackets and which are italicized, in subsection(1), were left

out from the amended section, clearly as a result of a typographical error. As

pointed out by Counsel this did not change the meaning of the section.)

The application of the provisions of section 316 mutatis mutandis to section 311 mean, inter

alia, that when the Prosecutor-General, other prosecutor or accused are dissatisfied with a

decision or order given by the High Court on appeal, they would first need to obtain leave to

appeal if they want to take the matter further on appeal to the Supreme Court.
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Ms Verhoef submitted that the wording of section 311 is wide enough to also include the

appeal in this particular instance which was initially dealt with by the Judges of the High Court

according to the provisions of section 304(2)(a). However Counsel said that there was a

conflict between the provisions of section 311 of the Act and section 18 of the High Court

Act, Act 16 of 1990, in so far as section 18 granted a direct right of appeal to the Supreme

Court and section 311, as amended, now purports to require of the Prosecutor-General to

first obtain leave to appeal. As the right to appeal in terms of section 18 was not expressly

repealed Counsel submitted that the appellant did not need leave to appeal.

Mr. Potgieter, on the other hand, submitted that the provisions of section 311 of the Act

were not applicable to the present appeal as this was not a matter, which was brought on

appeal to the High Court by the Prosecutor-General, the other prosecutor or the accused.

Counsel was further of the opinion that subsection (2), by referring to “an accused” only

applied the provisions of section 316 to when an accused wanted to appeal. That,

according to Counsel, also raised problems in regard to the interpretation of subsection (3) of

section 311. I agree with Ms. Verhoef that Mr. Potgieter has misread the reference to “an

accused” in subsection (2) as these words, where used, refer to an application for leave to

appeal by an accused in terms of section 316 and applies those provisions to section 311(1)

so that every one who appeals in terms of section 311 must obtain leave to appeal.

Section 311(1), as amended by Act No. 26 of 1993, gave wide powers of appeal to the

Prosecutor-General almost tantamount to that, which previously were only accorded to

accused persons. Prior to this amendment the Prosecutor-General could only appeal if a
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decision was given in favour of a person convicted on a question of law. In S v Absalom

1989 (3) SA 154 (AD) at l65 I-J - 166 A the South African Appeal Court pointed out

that for the prosecution to obtain a general right of appeal would require an express provision

to establish such right. No doubt such provision would have to be a statutory one. The

Prosecutor-General will therefore only be able to appeal in those instances where such a right

is expressly granted by the Act.

It is therefore first of all necessary to determine whether the present appeal, as far as the

Prosecutor-General is concerned, is covered by section 311. Ms. Verhoef submitted that

the wording of section 311 is wide enough to include the appeal in this instance. I agree

with Counsel. I can see no reason why the words “on appeal” as they appear in the first

sentence of section 311, namely “Where the High Court on appeal…..”, should not be given

the wide meaning ascribed to more or less similar wording used in section 21(2)(a) of Act

59 of 1959 (the Supreme Court Act of South Africa, since amended). When interpreting

this latter section the South African Appeal Court in Sita v Olivier NO, 1967 (2) SA

442(AD) concluded that the words “on appeal to it”, contained in the section, were of

wide application and would also include proceedings in the nature of a review (see p. 447 to

448).

Although the present matter came before the High Court as an automatic review in terms of

section 302 of the Act, and not at the instance of either the Prosecutor-General or the

accused, section 304(2)(a) provides that if the reviewing Judge is not satisfied that the

proceedings are in accordance with justice he shall obtain reasons from the presiding officer
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and shall then “lay the record of the proceedings and the said statement before the court of

the provincial division having jurisdiction for consideration by that court as a court of

appeal.” (my emphasis.) This being the case there can in my opinion not be any doubt

that the present proceedings are covered by the words “on appeal” where they appear in

section 311.

However, Mr. Potgieter submitted that the words “on appeal” in the section were qualified

by the words which follow immediately thereon namely, “whether brought by the Prosecutor-

General or other prosecutor or the accused…..” In other words Counsel submitted that if

the matter did not come on appeal before the High Court at the instance of one of the three

parties, section 311 would have no application. If Counsel were correct it would lead in my

opinion to various anomalies. It would firstly deprive the Prosecutor-General and/or other

prosecutor of a right of appeal in the present situation. This is so because section 311 is the

only possible section that could establish for the Prosecutor-General and other prosecutor a

right of appeal in this instance. I can think of no reason why this should be so, given the fact

that most decisions of the High Court on review go against the Prosecutor-General and in

favour of the accused. Furthermore it is clear that it was the intention of the Legislator to

grant to the prosecution wide powers of appeal. That is demonstrated by the amendments

introduced by Act 26 of 1993. Lastly it would mean that an accused would, in this

instance, have the right to appeal directly to the Supreme Court without first obtaining leave

to appeal when it is clear that it was not the intention of the Legislator to grant a right to

appeal directly to the Supreme Court. As was stated by Innes CJ in R v Keeves, 1926 A.D.
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410 that that would be a remarkable position if in the one instance special leave to appeal is

required and in the other instance it could be taken as of right (p412).

In addition to what is set out above I am satisfied that interpreting the section in context the

meaning ascribed to it by Mr. Potgieter cannot hold water. Looking at the purpose of

section 311 it is clear that it was the intention of the Legislator to grant to the Prosecutor-

general, the other prosecutor and the accused a right of appeal, subject to leave being first

obtained, to the Supreme Court from decisions of the High Court given on appeal to it.

The intention of the Legislator in enacting section 311 was not to grant thereby a right of

appeal to these parties from a lower court. That was achieved by sections 304(2)(a), 309

and 310. It therefore seems to me that nothing turns upon the words “whether brought by

the Prosecutor-General or other prosecutor or the accused”, where they appear for the first

time in section 311. Even if these words are regarded as pro non scripto section 311 will

still achieve its purpose. This is so because the section spells out who may appeal to the

Supreme Court, namely the Prosecutor-General, other prosecutor and accused, and further

provides that such an appeal lies where the High Court on appeal gives a decision or order

against one or other of these parties.

In the present instance the order of the Court-a-quo, whereby the conviction and sentence of

the accused were set aside, is a judgment or order in favour of the accused which, in terms of

the provisions of section 311(1), would entitle the Prosecutor-General to take the matter on

appeal to the Supreme Court.

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Under the circumstances I therefore agree with Counsel for the appellant that section 311 of

the Act covers the present appeal and that the Prosecutor-General has the necessary

authority, in terms of the section, to take the matter on appeal to this Court.

The next question, which must then be answered, is whether the Prosecutor-General requires

leave to appeal to bring this matter before the Supreme Court. In terms of sec. 316 of the

Act leave to appeal must be obtained from the Court a quo and if leave is refused then the

appellant must petition the Chief Justice. It is common cause that such leave was not

petitioned prior to the hearing of this appeal. Counsel for the appellant based her

submissions that in this instance the appellant had a right of appeal directly to this Court on

the wording of section 18(1) of the High Court Act, Act 16 of 1990. This section

provides as follows:

“18(1) An appeal from a judgment or order of the High Court in any civil

proceedings or against any judgment or order of the High Court given on

appeal shall, except in so far as this section otherwise provides, be heard by the

Supreme Court.”

The Full Bench of the High Court interpreted this section when the matter came before them

on appeal. The Court firstly found that the words “…. any judgment or order of the High

Court given on appeal….” refer to civil as well as criminal matters. The second finding was

that, concerning further appeals to the Supreme Court, section 18 did not contain any other

provisions regarding judgments given by the High Court in criminal matters on appeal to it.
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The Full Bench consequently found that, in terms of the section, the appeal forum was the

Supreme Court and not the Full Bench and the Court consequently struck the matter from

the roll. Counsel, in this Court, accepted these findings and in my opinion correctly so.

Against this background Ms. Verhoef developed her argument. She submitted that section

18 did not prescribe any procedures for appeals against a judgment or order of the High

Court given on appeal. Counsel pointed out that the predecessor of Act 16 of 1990,

namely Proclamation 222 of 1981, contained a provision in section 14(4)(b) in terms of

which leave was required to appeal against any judgment or order of the High Court given on

appeal in the then South West Africa. Counsel therefore submitted that the fact that the

Legislator specifically excluded the phrase “or against any judgment or order of the High

Court given on appeal to it” when it enacted section 18(2), it now vested an appellant with a

right to appeal to the Supreme Court against a judgment or order of the High Court given on

appeal where such right existed before the promulgation of Act 26 of 1993. Counsel

therefore submitted that section 311(2), as amended by Act 26 of 1993 and in terms of

which leave to appeal is now required, did not affect an appellant’s right of appeal which was

granted him by section 18 of Act 16 of 1990 and which right existed prior to Act 26 of

1993.

If I understand Ms. Verhoef correctly she argued that the right of the Prosecutor-General to

appeal directly from a decision of the High Court given on appeal, to the Supreme Court,

existed, by virtue of section 18 of Act 16 of 1990, prior to the amendment effected by Act

26 of 1993 and as that right was not specifically repealed the Prosecutor-General has a
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vested right which was not affected by the amendment. Counsel therefore submitted that the

conflict existing between section 18 of Act 16 of 1990 and section 311(2) of Act 51 of

1977, can only be resolved by the Legislator.

I do not agree with Counsel. It seems to me that she has overlooked the fact that prior to

the amendment of section 311 by Act 26 of 1993 the right of the Prosecutor-General to

appeal was extremely limited and was confined to decisions of the High Court given on

appeal in favour of the person convicted, and then only on a question of law. The

amendment brought about a new scheme whereby the limited right of the Prosecutor-General

to appeal was extended to almost the same as that of an accused person. It is in this regard

that the Prosecutor-General is required to first obtain leave to appeal to the Supreme Court.

Under the circumstances, and bearing in mind the limited right of the Prosecutor-General to

appeal before the amendment, there can be no question of a vested right. Furthermore if, as

was submitted by Ms. Verhoef, the provisions of sec 311, as amended, are in conflict with

section 18 of Act 16 of 1990 then this is an instance where the later legislation would by

implication amend the provisions of the earlier legislation to the extent that they are

inconsistent with the later Act. (See Government of the Republic of South Africa and

Another v Government of Kwazulu and Another, 1983 (1) SA 164(AD) at p 200ff and

Minister of Police v Haunawa, 1991 NR 28(SC) at p 32 to 33). However, for the reasons

set out before, I am of the opinion that there is no such conflict as contended for by Counsel.

Section 14 of the Supreme Court Act, Act 15 of 1990, is also important. Subsection (1)

grants a right of appeal to the Court from any judgment or order of the High Court subject
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to the provisions of the Supreme Court Act or any other law. Subsection 2(b) provides that

such appeals shall be subject to the provisions of any law which specifically limits it or

specifically grants, limits or excludes such right or which prescribes the procedures that have

to be followed in the exercise of that right. In the present instance section 311(2) provides

that the Prosecutor-General must obtain leave in order to prosecute an appeal before this

Court against a judgment or order of the High Court given on appeal.

In the alternative, and if this Court should find that leave to appeal was necessary, then Ms.

Verhoef submitted that such leave was in fact granted by the Court a quo. Mr. Potgieter, on

behalf of the respondent, supported this submission.

It seems to me that there is substance in the submission made by Counsel. Both Counsel

pointed out that the Court a quo was satisfied that leave to appeal should be granted. It in

fact granted leave to appeal but added, erroneously, that the appeal be heard by the Full

Bench of the High Court. It is clear that the Court a quo could not in law, or on any other

basis, grant leave to appeal to the Full Bench. (See the unreported judgment of Hannah, J.,

in David Ambrose Delie, delivered on 2001/03/19 in which Maritz and Mainga, J.J.,

concurred). Consequently this part of the order is a nullity and can be regarded as pro non

scripto. (See S. v Absalom, supra, at p. 164E – G.) Under the circumstances it seems to

me that Counsel are correct and that the order whereby leave was granted should be read

together with section 18 of Act No. 16 of 1990 and that in terms thereof the leave granted

could only be to this Court.

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I further wish to point out that the order which was made against the respondent by the

magistrate was set aside by the High Court and there may be uncertainty as to whether the

respondent must, in the meantime, continue to pay maintenance and, if so, in what amount.

It is therefore necessary that there not be any unnecessary delay in bringing this matter to

finalisation. In this regard I am pleased to say that both Counsel were agreed that the appeal

must succeed to the extent that the matter should be referred back to the magistrate to deal

with it in terms of the provisions of section 113 of the Act, i.e. to record a plea of not guilty

and to require the prosecutor to proceed with the prosecution. In the light of the

mandatory provisions of section 312 (1) of the Act I agree with Counsel.

In the result the following order is made:

The appeal succeeds and the following order is substituted for the order made

by the Court a quo:

The conviction and sentence of the magistrate are set aside and the

matter is referred back to the magistrate to comply with the provisions

of section 113 of Act 51 of 1977, namely to record a plea of not

guilty and to allow the prosecutor to proceed with the prosecution.

(signed) STRYDOM, C.J.

I agree.
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(signed) O’LINN, A.J.A.

I agree.

(signed) CHOMBA, A.J.A.

COUNSEL ON BEHALF OF THE APPELLANT: Adv. A. Verhoef

(Prosecutor-General)

COUNSEL ON BEHALF OF THE RESPONDENT: Adv. J.D. Potgieter

(Amicus Curiae)