Visser v Minister of Finance and Others (2) (SA 89 of 2014) [2017] NASC 10 (6 April 2017)

Visser v Minister of Finance and Others (2) (SA 89 of 2014) [2017] NASC 10 (6 April 2017)

The Supreme Court of Namibia has the constitutional and inherent jurisdiction under Article 81 to reverse its own prior decision in exceptional circumstances to prevent manifest injustice. Mr Likanyi was denied equality before the law as his case was factually identical to that of Mr Mubuyaeta, who received a permanent stay of prosecution due to unlawful removal from Botswana by Namibian authorities. The prior decision in S v Mushwena and Others misapplied the legal principles to Mr Likanyi’s facts, resulting in an indefensible injustice. The State failed to prove the High Court had jurisdiction to try Mr Likanyi. Accordingly, the prior Supreme Court decision is reversed, Mr Likanyi’s...

Citation
[2017] NASC 10
Parties
Applicant: Osbert Mwenyi Likanyi; Respondent: The State
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
6 April 2017 7 August 2017 6 April 2017
Case Number
SA 89 of 2014
Procedural Posture
Criminal / Application to Supreme Court to Reverse Its Prior Decision Under Article 81 of the Namibian Constitution
Outcome
Application granted; prior Supreme Court decision reversed; conviction and sentence set aside; permanent stay of prosecution ordered.
Legal Topics
Res Judicata, Jurisdiction, Equality Before the Law, Inherent Jurisdiction of Apex Court, International Delinquency, Extradition and Deportation, Permanent Stay of Prosecution
Source Language
English
Constitutional Law Criminal Law International Law Res Judicata Jurisdiction Equality Before the Law Inherent Jurisdiction of Apex Court International Delinquency +2 more

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Parties

Osbert Mwenyi Likanyi

Applicant

The State

Respondent

Procedural Posture

Criminal / Application to Supreme Court to Reverse Its Prior Decision Under Article 81 of the Namibian Constitution

Legal Issues

  1. 1 Whether the Supreme Court of Namibia can reverse its own prior decision under Article 81 of the Constitution in exceptional circumstances
  2. 2 Whether the applicant, Mr Likanyi, was denied equality before the law compared to a similarly situated accused (Mr Mubuyaeta)
  3. 3 Whether the Namibian courts had jurisdiction to try Mr Likanyi given his removal from Botswana by Namibian authorities in violation of international law

Ratio Decidendi

The Supreme Court of Namibia has the constitutional and inherent jurisdiction under Article 81 to reverse its own prior decision in exceptional circumstances to prevent manifest injustice. Mr Likanyi was denied equality before the law as his case was factually identical to that of Mr Mubuyaeta, who received a permanent stay of prosecution due to unlawful removal from Botswana by Namibian authorities. The prior decision in S v Mushwena and Others misapplied the legal principles to Mr Likanyi’s facts, resulting in an indefensible injustice. The State failed to prove the High Court had jurisdiction to try Mr Likanyi. Accordingly, the prior Supreme Court decision is reversed, Mr Likanyi’s...

Court Disposition

Application granted; prior Supreme Court decision reversed; conviction and sentence set aside; permanent stay of prosecution ordered.

Orders

  • The judgment and order of the Supreme Court in S v Mushwena and Others (Case No. SA 6/2004) allowing the State’s appeal against the High Court’s order upholding a special plea of lack of jurisdiction in respect of Mr Likanyi is reversed and set aside.
  • Mr Likanyi’s conviction and sentence on the charges preferred against him under indictment in Case No CC 32/2001 in the High Court of Namibia are set aside and his immediate release ordered.