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SA 02/2001IN THE SUPREME COURT OF NAMIBIAIn the matter between:THE STATEAPPELLANTANDDAVID AMBROSE DELIERESPONDENTCORAM:Strydom, C.J., O’Linn, A.J.A. et Chomba, A.J.A.HEARD ON: 5 July 2001DELIVERED ON: 7 December 2001APPEAL JUDGMENTFly notes of the Judgment:‣ Criminal procedure – Maintenance order – Charge of failure to paymaintenance order in terms of Court order in contravention of section 11 ofAct 23 of 1963.‣ Plea of guilty in terms of section 112 ( 1 ) (b ) of the Criminal Procedure Act 51of 1977

2‣ Review of sentence in terms of section 302 of the Criminal; Procedure Act 51 of1977‣ Respondent’s answers given to the trial magistrate raises a defence set out insection 11 (3) of Act 23 of 1963, which provides that any failure to paymaintenance due to lack of means not attributable to misconduct shall be agood 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 Magistratewith instructions to record a plea of not guilty in terms of section 312 of theCriminal Procedure Act 51 of 1977‣ Prosecution’s right of appeal extended by virtue of section 311 ( 2 ) as amendedby Act 26 of 1993‣ There is no provision allowing for an appeal from a two Judge Bench, sittingon appeal or review in a criminal matter to a Full Bench of the High Court-Procedure applicableSTRYDOM, C.J.: Argument in this matter was heard during the July session of thisCourt. As there were various issues on which the Court required further argumentCounsel for the appellant, Ms. Verhoef, and Counsel for the respondent, Mr.Potgieter, were requested to provide additional Heads of Argument in which thesematters were addressed. The appeal was postponed to 8 October for further oralargument, if necessary.After having read the additional written submissions, filedby 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 wascharged with contravening section 11 of Act 23 of 1963, namely failing to paymaintenance in terms of a court order.The respondent pleaded guilty to thecharge and was questioned by the magistrate according to section 112 (1)(b) ofAct 51 of 1977. After questioning, the magistrate recorded that he was satisfiedthat the accused admitted all the allegations in the charge and he wasconvicted. The respondent was thereupon sentenced to 12 months imprisonment

6aside or vary the decision appealed from, and if thematter was brought before the High Court in terms of –(a)Section 309(1), reinstate the conviction, sentenceor order of the lower court appealed from either inits original form or in such modified form as theSupreme Court may consider desirable; or(b)Section 310(1), give such decision or take suchaction as the High Court ought, in the opinion ofthe Supreme Court, to have taken, including anyaction under section 309(3).(2) The provisions of section 316 in respect of any applicationor appeal by an accused referred to in that section, shallapply mutatis mutandis with reference to an appeal interms 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 atypographical error. As pointed out by Counsel this did not change themeaning of the section.)

7The application of the provisions of section 316 mutatis mutandis to section 311mean, inter alia, that when the Prosecutor-General, other prosecutor or accusedare dissatisfied with a decision or order given by the High Court on appeal, theywould first need to obtain leave to appeal if they want to take the matter furtheron appeal to the Supreme Court.Ms Verhoef submitted that the wording of section 311 is wide enough to alsoinclude the appeal in this particular instance which was initially dealt with by theJudges 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 section311 of the Act and section 18 of the High Court Act, Act 16 of 1990, in so far assection 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 obtainleave to appeal. As the right to appeal in terms of section 18 was not expresslyrepealed 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 theAct were not applicable to the present appeal as this was not a matter, which wasbrought on appeal to the High Court by the Prosecutor-General, the otherprosecutor 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 anaccused wanted to appeal. That, according to Counsel, also raised problems inregard 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

8subsection (2) as these words, where used, refer to an application for leave toappeal by an accused in terms of section 316 and applies those provisions tosection 311(1) so that every one who appeals in terms of section 311 must obtainleave to appeal.Section 311(1), as amended by Act No. 26 of 1993, gave wide powers of appeal tothe Prosecutor-General almost tantamount to that, which previously were onlyaccorded to accused persons. Prior to this amendment the Prosecutor-Generalcould only appeal if a decision was given in favour of a person convicted on aquestion of law. In S v Absalom 1989 (3) SA 154 (AD) at l65 I-J - 166 A the SouthAfrican Appeal Court pointed out that for the prosecution to obtain a generalright of appeal would require an express provision to establish such right.Nodoubt such provision would have to be a statutory one. The Prosecutor-Generalwill therefore only be able to appeal in those instances where such a right isexpressly granted by the Act.It is therefore first of all necessary to determine whether the present appeal, as faras the Prosecutor-General is concerned, is covered by section 311.Ms. Verhoefsubmitted that the wording of section 311 is wide enough to include the appeal inthis instance. I agree with Counsel. I can see no reason why the words “onappeal” as they appear in the first sentence of section 311, namely “Where theHigh Court on appeal…..”, should not be given the wide meaning ascribed tomore or less similar wording used in section 21(2)(a) of Act 59 of 1959 (the SupremeCourt Act of South Africa, since amended).When interpreting this latter section

9the South African Appeal Court in Sita v Olivier NO, 1967 (2) SA 442(AD) concludedthat the words “on appeal to it”, contained in the section, were of wideapplication 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 reviewin 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 isnot satisfied that the proceedings are in accordance with justice he shall obtainreasons from the presiding officer and shall then “lay the record of theproceedings and the said statement before the court of the provincial divisionhaving jurisdiction for consideration by that court as a court of appeal.”(myemphasis.) This being the case there can in my opinion not be any doubt that thepresent proceedings are covered by the words “on appeal” where they appear insection 311.However, Mr. Potgieter submitted that the words “on appeal” in the section werequalified by the words which follow immediately thereon namely, “whetherbrought by the Prosecutor-General or other prosecutor or the accused…..”Inother words Counsel submitted that if the matter did not come on appeal beforethe High Court at the instance of one of the three parties, section 311 would haveno application.If Counsel were correct it would lead in my opinion to variousanomalies. It would firstly deprive the Prosecutor-General and/or other prosecutorof a right of appeal in the present situation. This is so because section 311 is the

10only possible section that could establish for the Prosecutor-General and otherprosecutor a right of appeal in this instance.I can think of no reason why thisshould be so, given the fact that most decisions of the High Court on review goagainst the Prosecutor-General and in favour of the accused. Furthermore it isclear that it was the intention of the Legislator to grant to the prosecution widepowers of appeal.That is demonstrated by the amendments introduced by Act26 of 1993. Lastly it would mean that an accused would, in this instance, have theright to appeal directly to the Supreme Court without first obtaining leave toappeal when it is clear that it was not the intention of the Legislator to grant a rightto appeal directly to the Supreme Court. As was stated by Innes CJ in R v Keeves,1926 A.D. 410 that that would be a remarkable position if in the one instancespecial leave to appeal is required and in the other instance it could be taken asof right (p412).In addition to what is set out above I am satisfied that interpreting the section incontext the meaning ascribed to it by Mr. Potgieter cannot hold water. Lookingat the purpose of section 311 it is clear that it was the intention of the Legislator togrant to the Prosecutor-general, the other prosecutor and the accused a right ofappeal, subject to leave being first obtained, to the Supreme Court from decisionsof the High Court given on appeal to it.The intention of the Legislator in enactingsection 311 was not to grant thereby a right of appeal to these parties from alower court. That was achieved by sections 304(2)(a), 309 and 310. It thereforeseems to me that nothing turns upon the words “whether brought by theProsecutor-General or other prosecutor or the accused”, where they appear for

11the first time in section 311. Even if these words are regarded as pro non scriptosection 311 will still achieve its purpose. This is so because the section spells outwho may appeal to the Supreme Court, namely the Prosecutor-General, otherprosecutor and accused, and further provides that such an appeal lies where theHigh Court on appeal gives a decision or order against one or other of theseparties.In the present instance the order of the Court-a-quo, whereby the conviction andsentence of the accused were set aside, is a judgment or order in favour of theaccused which, in terms of the provisions of section 311(1), would entitle theProsecutor-General to take the matter on appeal to the Supreme Court.Under the circumstances I therefore agree with Counsel for the appellant thatsection 311 of the Act covers the present appeal and that the Prosecutor-Generalhas the necessary authority, in terms of the section, to take the matter on appealto 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 aquo and if leave is refused then the appellant must petition the Chief Justice. It iscommon cause that such leave was not petitioned prior to the hearing of thisappeal. Counsel for the appellant based her submissions that in this instance the

12appellant had a right of appeal directly to this Court on the wording of section18(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 anycivil proceedings or against any judgment or order of the High Courtgiven on appeal shall, except in so far as this section otherwiseprovides, be heard by the Supreme Court.”The Full Bench of the High Court interpreted this section when the matter camebefore them on appeal. The Court firstly found that the words “…. any judgmentor order of the High Court given on appeal….” refer to civil as well as criminalmatters. The second finding was that, concerning further appeals to the SupremeCourt, section 18 did not contain any other provisions regarding judgments givenby the High Court in criminal matters on appeal to it. The Full Bench consequentlyfound that, in terms of the section, the appeal forum was the Supreme Court andnot 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 submittedthat section 18 did not prescribe any procedures for appeals against a judgmentor order of the High Court given on appeal. Counsel pointed out that thepredecessor of Act 16 of 1990, namely Proclamation 222 of 1981, contained aprovision in section 14(4)(b) in terms of which leave was required to appeal againstany judgment or order of the High Court given on appeal in the then South West

14scheme whereby the limited right of the Prosecutor-General to appeal wasextended to almost the same as that of an accused person. It is in this regard thatthe Prosecutor-General is required to first obtain leave to appeal to the SupremeCourt.Under the circumstances, and bearing in mind the limited right of theProsecutor-General to appeal before the amendment, there can be no questionof a vested right. Furthermore if, as was submitted by Ms. Verhoef, the provisionsof sec 311, as amended, are in conflict with section 18 of Act 16 of 1990 then this isan instance where the later legislation would by implication amend the provisionsof 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 ofKwazulu and Another, 1983 (1) SA 164(AD) at p 200ff and Minister of Police vHaunawa, 1991 NR 28(SC) at p 32 to 33). However, for the reasons set out before, Iam 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 HighCourt subject 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 anylaw which specifically limits it or specifically grants, limits or excludes such right orwhich prescribes the procedures that have to be followed in the exercise of thatright. In the present instance section 311(2) provides that the Prosecutor-Generalmust obtain leave in order to prosecute an appeal before this Court against ajudgment or order of the High Court given on appeal.

15In 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 aquo. Mr. Potgieter, on behalf of the respondent, supported this submission.It seems to me that there is substance in the submission made by Counsel. BothCounsel pointed out that the Court a quo was satisfied that leave to appealshould 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 theCourt a quo could not in law, or on any other basis, grant leave to appeal to theFull 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 nonscripto. (See S. v Absalom, supra, at p. 164E – G.) Under the circumstances itseems to me that Counsel are correct and that the order whereby leave wasgranted should be read together with section 18 of Act No. 16 of 1990 and that interms thereof the leave granted could only be to this Court.I further wish to point out that the order which was made against the respondentby the magistrate was set aside by the High Court and there may be uncertaintyas to whether the respondent must, in the meantime, continue to paymaintenance and, if so, in what amount. It is therefore necessary that there notbe any unnecessary delay in bringing this matter to finalisation. In this regard I ampleased to say that both Counsel were agreed that the appeal must succeed tothe extent that the matter should be referred back to the magistrate to deal with it

16in terms of the provisions of section 113 of the Act, i.e. to record a plea of not guiltyand to require the prosecutor to proceed with the prosecution.In the light of themandatory 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 theorder made by the Court a quo:The conviction and sentence of the magistrate are set asideand the matter is referred back to the magistrate to complywith the provisions of section 113 of Act 51 of 1977, namely torecord a plea of not guilty and to allow the prosecutor toproceed with the prosecution.(signed) STRYDOM, C.J.I agree.(signed) O’LINN, A.J.A.I agree.(signed) CHOMBA, A.J.A.

17COUNSEL ON BEHALF OF THE APPELLANT: Adv. A. Verhoef(Prosecutor-General)COUNSEL ON BEHALF OF THE RESPONDENT: Adv. J.D. Potgieter(Amicus Curiae)