Prosecutor General v Daniel and Others (15 of 2011) [2017] NASC 31 (28 July 2017)

Prosecutor General v Daniel and Others (15 of 2011) [2017] NASC 31 (28 July 2017)

The minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 are unconstitutional as they are grossly disproportionate, violate the right to dignity and protection against cruel, inhuman or degrading punishment under Article 8(2)(b) of the Namibian Constitution, and the discretion to depart from the minimum does not cure the constitutional defect. The High Court was correct to entertain the constitutional challenge, and the impugned provisions are struck down without referral to Parliament.

Citation
[2017] NASC 31
Parties
Appellant: Prosecutor General; First Respondent: Protasius Daniel; Second Respondent: Willem Pieter; Third Respondent: Attorney General; Fourth Respondent: Government Attorney
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
28 July 2017
Case Number
15 of 2011
Procedural Posture
Constitutional Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Minimum Sentencing, Cruel and Inhuman Punishment, Equality Before the Law, Separation of Powers, Declaratory Relief
Source Language
English
Constitutional Law Criminal Law Minimum Sentencing Cruel and Inhuman Punishment Equality Before the Law Separation of Powers Declaratory Relief

Case Brief

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Parties

Prosecutor General

Appellant

Protasius Daniel

First Respondent

Willem Pieter

Second Respondent

Attorney General

Third Respondent

Government Attorney

Fourth Respondent

Procedural Posture

Constitutional Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 are unconstitutional for violating Articles 8(2)(b) and 10(1) of the Namibian Constitution
  2. 2 Whether it was appropriate for the High Court to entertain the constitutional challenge instead of requiring the respondents to appeal their sentences
  3. 3 Whether the courts may interfere with sentencing benchmarks set by the legislature

Ratio Decidendi

The minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 are unconstitutional as they are grossly disproportionate, violate the right to dignity and protection against cruel, inhuman or degrading punishment under Article 8(2)(b) of the Namibian Constitution, and the discretion to depart from the minimum does not cure the constitutional defect. The High Court was correct to entertain the constitutional challenge, and the impugned provisions are struck down without referral to Parliament.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed and the order of the High Court is confirmed.
  • The appellant is ordered to pay the costs of the appeal and of the proceedings in the High Court, including the costs of one instructed counsel (where one was employed) and one instructing counsel.