Syndicate targets Namwandi cattle
While stock theft continues unabated in Namibia, the Supreme Court has ruled the minimum sentences of 20 and 30 years as not only disproportionate but also unconstitutional.
STAFF REPORTER
The Otjozondjupa police have confirmed that 20 cattle were stolen at Farm Oliewenhof owned by former education minister David Namwandi.
The farm is situated less than 40 kilometres east of Grootfontein.
The police spokesperson, Warrant Officer Maureen Mbeha, urged farmers in the region to monitor and count their stock on a regular basis.
Namwandi’s cattle were recovered last Monday at the Grootfontein auction pens.
The cattle were allegedly stolen by a syndicate headed by his farm foreman.
Mbeha said the foreman, Edward Hwara, was arrested at the auction pens on 24 July, where he had transported the cattle for sale.
He appeared before the Grootfontein Magistrate’s Court on Monday on a charge of stock theft and was denied bail. He is expected to return to court on 27 September 2017.
It is alleged that Hwara planned to steal 40 head of cattle from his employer with the assistance of two accomplices, who are still on the run.
He allegedly first identified the 20 recovered cattle, changed the animals’ ear tags and transported them to the auction pens together with his accomplices, said Mbeha.
The police were monitoring him until his arrest at the auction pens. Mbeha said the estimated value of the 20 recovered cattle was N$160 000.
Stock-theft sentences unconstitutional
Meanwhile, the Supreme Court has ruled that the minimum sentences prescribed by sections 14(1) (a)(ii) and (b) of the Stock Theft Act 12 of 1990 are unconstitutional and invalid.
The court upheld an earlier High Court ruling in this regard, which was brought on appeal to the Supreme Court by the prosecutor-general.
Protasius Daniel and Willem Pieter, in separate applications, had approached the High Court seeking orders declaring the minimum sentences unconstitutional. In their papers before the court, they said that the minimum sentences prescribed by the two sections of the Stock Theft Act were contrary to the provisions of articles 8(2)(b) and 10(1) of the constitution.
The sentences prescribed in terms of the two sections are a minimum of 20 and a minimum of 30 years, respectively.
The prosecutor-general had opposed both applications and argued that the impugned provisions were not unconstitutional. She further argued that the constitutional challenge brought by Daniel and Pieter was inappropriate.
The attorney-general and the government had conceded that the provisions indeed violated article 8(2)(b) but denied that both subsections violated article 10(1) of the constitution.
The High Court, in its ruling, had instructed the removal of the words "for a period not less than 30 years" and "for a period not less than 30 years" from the two sections of the Act.
On appeal to the Supreme Court, the prosecutor-general as appellant argued that it was not necessary or appropriate for the court to decide the constitutional issue as the first and second respondents (Daniel and Pieter) had the right to appeal against their sentences. She also argued that the sections under attack did not violate the said articles of the constitution.
The prosecutor-general further argued that the order by the High Court failed to take into account the doctrine of separation of powers.
Daniel and Pieter, on the other hand, contended that they were entitled to approach the High Court with their applications.
On the second issue, they maintained that the sentencing benchmark was inconsistent with the provisions of the constitution. They further contended that as both sections of the Act are unconstitutional and invalid, the order of the High Court ought to be confirmed by the Supreme Court.
Chief Justice Peter Shivute and judges Sylvester Mainga and Johan Strydom upheld the High Court’s ruling, saying it was entirely correct in entertaining the constitutional challenge by the first and second respondents despite the fact that they also had the right to appeal against their sentences.
The full bench of the Supreme Court further held that “the minimum sentences under attack are unconstitutional because of their disproportionality”.
The court further held that in view of the findings relating to the unconstitutionality of the impugned provisions, there is no need to refer back the impugned provisions to the legislature for possible correction. Instead, parliament in its discretion may craft a solution.
The attorney-general and government attorney were listed as third and fourth respondents in the matter.
The appeal was dismissed with costs.
Norman Tjombe appeared for Daniel and Pieter while GB Coleman appeared for the prosecutor-general. - Additional reporting by Nampa
The Otjozondjupa police have confirmed that 20 cattle were stolen at Farm Oliewenhof owned by former education minister David Namwandi.
The farm is situated less than 40 kilometres east of Grootfontein.
The police spokesperson, Warrant Officer Maureen Mbeha, urged farmers in the region to monitor and count their stock on a regular basis.
Namwandi’s cattle were recovered last Monday at the Grootfontein auction pens.
The cattle were allegedly stolen by a syndicate headed by his farm foreman.
Mbeha said the foreman, Edward Hwara, was arrested at the auction pens on 24 July, where he had transported the cattle for sale.
He appeared before the Grootfontein Magistrate’s Court on Monday on a charge of stock theft and was denied bail. He is expected to return to court on 27 September 2017.
It is alleged that Hwara planned to steal 40 head of cattle from his employer with the assistance of two accomplices, who are still on the run.
He allegedly first identified the 20 recovered cattle, changed the animals’ ear tags and transported them to the auction pens together with his accomplices, said Mbeha.
The police were monitoring him until his arrest at the auction pens. Mbeha said the estimated value of the 20 recovered cattle was N$160 000.
Stock-theft sentences unconstitutional
Meanwhile, the Supreme Court has ruled that the minimum sentences prescribed by sections 14(1) (a)(ii) and (b) of the Stock Theft Act 12 of 1990 are unconstitutional and invalid.
The court upheld an earlier High Court ruling in this regard, which was brought on appeal to the Supreme Court by the prosecutor-general.
Protasius Daniel and Willem Pieter, in separate applications, had approached the High Court seeking orders declaring the minimum sentences unconstitutional. In their papers before the court, they said that the minimum sentences prescribed by the two sections of the Stock Theft Act were contrary to the provisions of articles 8(2)(b) and 10(1) of the constitution.
The sentences prescribed in terms of the two sections are a minimum of 20 and a minimum of 30 years, respectively.
The prosecutor-general had opposed both applications and argued that the impugned provisions were not unconstitutional. She further argued that the constitutional challenge brought by Daniel and Pieter was inappropriate.
The attorney-general and the government had conceded that the provisions indeed violated article 8(2)(b) but denied that both subsections violated article 10(1) of the constitution.
The High Court, in its ruling, had instructed the removal of the words "for a period not less than 30 years" and "for a period not less than 30 years" from the two sections of the Act.
On appeal to the Supreme Court, the prosecutor-general as appellant argued that it was not necessary or appropriate for the court to decide the constitutional issue as the first and second respondents (Daniel and Pieter) had the right to appeal against their sentences. She also argued that the sections under attack did not violate the said articles of the constitution.
The prosecutor-general further argued that the order by the High Court failed to take into account the doctrine of separation of powers.
Daniel and Pieter, on the other hand, contended that they were entitled to approach the High Court with their applications.
On the second issue, they maintained that the sentencing benchmark was inconsistent with the provisions of the constitution. They further contended that as both sections of the Act are unconstitutional and invalid, the order of the High Court ought to be confirmed by the Supreme Court.
Chief Justice Peter Shivute and judges Sylvester Mainga and Johan Strydom upheld the High Court’s ruling, saying it was entirely correct in entertaining the constitutional challenge by the first and second respondents despite the fact that they also had the right to appeal against their sentences.
The full bench of the Supreme Court further held that “the minimum sentences under attack are unconstitutional because of their disproportionality”.
The court further held that in view of the findings relating to the unconstitutionality of the impugned provisions, there is no need to refer back the impugned provisions to the legislature for possible correction. Instead, parliament in its discretion may craft a solution.
The attorney-general and government attorney were listed as third and fourth respondents in the matter.
The appeal was dismissed with costs.
Norman Tjombe appeared for Daniel and Pieter while GB Coleman appeared for the prosecutor-general. - Additional reporting by Nampa
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