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S v Tcoeib (SA 4/93) [1996] NASC 1; 1996 (1) SACR 390 (NmS) (6 February 1996)
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Case No: SA 4/93 IN THE SUPREME COURT OF NAMIBIA
WINDHOEK,
BEFORE THE HONOURABLE MR. JUSTICE MAHOMED, C.J.
THE HONOURABLE MR. JUSTICE DUMBUTSHENA, A.J.A. THE HONOURABLE MR. JUSTICE LEON, A.J.A.
In the matter between:
LUKAS TCOEIB
and
THE STATE
Coram:
C.J.; Dimibutshena A.J.A.; et Leon A.J.A.
Heard on:
/10/04
Delivered on:
/02/06
APPEAL JUDGMENT
MAHOMED. C.J.: The appellant was indicted in the Coun a quo, on two counts of murder and one count of theft. He was convicted on all tliree counts. On each of the counts of murder he was sentenced to life imprisonment and on the count of theft he was sentenced to two years imprisonment. The Court a quo directed that the latter two sentences were to run concurrently
1
with the life sentence imposed on the first count of murder. The Court a quo further recommended that the appellant ought not to be "released on parole or probation before the lapse of at least 18 years imprisonment calculated from the date of sentence."1
An application for leave to appeal was made to, and refused by, the trial judge who was O'Linn J.2 The "main thrust" of the application was that a sentence of life imprisonment was unconstitutional in Namibia. That contention had not previously been advanced during the trial.
Following the dismissal of the application for leave to appeal by the Court a quo, the appellant petitioned the Chief Justice for leave to appeal to the Supreme Court of Namibia in terms of section 316(6) of Act 51 of 1977, as amended. Substantially because of certain conflicting dicta on the constitutionality of a sentence of life imprisonment emanating from the High Court, leave to appeal was granted on this petition in the following terms -
"Leave is granted to Lukas Tcoeib to appeal to the Supreme Court against sentence only and in particular whether a sentence to life imprisonment is competent in terms of the Constitution of
Namibia."
Although it was not analysed in that way by counsel for the appellant, the attack on the sentence imposed on the appellant involves a consideration of three issues:
1.
Is the imposition of a sentence of life imprisonment per se unconstitutional in Namibia?
2.
If it is not per se unconstitutional, is such a sentence nevertheless unconstitutional in the circumstances of the present case?
1
S v Tcoeib 1991 (2) SACR 627 (Nm).
2
reported in 1993 (1) SACR 274 (Nm).
3. Apart from the issue of the constitutionality of the sentence, is it a sentence of such harshness in the present case as to justify an interference therewith by the Supreme Court pursuant to its ordinary appeal jurisdiction?
The basic fncts
The appellant perpetrated two vicious murders. He had planned to kill five members of the Otner family, who were his employers. He went to the farm of the Otners to execute that plan. He killed the adopted son and the wife of his employer in cold blood with a .308 rifle which he found at the residence of the Otners. He thereafter took some monies from the residence, the keys of a motor vehicle and some wine. He then waited for his employer, Mr Max Otner and two other members of the Otner family, including a child, to return to the homestead. His intention was to shoot and kill them as well. When they did not return after some time, the appellant decided to flee in the motor vehicle, but before that he cut the telephone wires and placed near the body of one of the deceased he had killed,
another .308 rifle which he had found in the Otner residence.
The appellant's only excuse for these acts of viciousness was that his employer, Mr Max Otner, had wTongly accused him of stealing four bottles of wine either on the previous day or a few days prior to the murders. The trial judge assumed the correctness of that explanation but rightly pointed out that none of the persons whom the accused had killed had anything to do with that incident, that the murders were committed "on unsuspecting and helpless people" and that they were carefully planned. The trial judge was alive to all the relevant factors in favour of the accused, including the fact that he was a first offender; that he was between 23 and 25 years old and still relatively young; that
he was unsophisticated; that he was angry when he committed the
?^
crimes; that he co-operated with the police and the prosecution upon his arrest and that he was a "good worker". The Court concluded nevertheless that -
"The accused has shown himself as a dangerous person who murdered for the flimsiest of reasons and can do so again because this type of reason can recur in his life at any stage."1
In the result, the Court decided that "the aggravating factors greatly overshadow the mitigating factors" and that in this kind of case the factors of deterrence, prevention and retribution deserved "more emphasis and weight."4 This caused the learned judge to impose the sentences of life imprisonment which counsel now seeks to attack on the appellant's behalf.
Ts a sentence of life-imprisonment fgrsg unconstitutional?
In order to determine whether a sentence of life imprisonment is per se unconstitutional in Namibia, it is necessary to analyse the relevant provisions of the Constitution, to consider the applicable statutory mechanisms pertaining to such punishment and then to enquire whether such statutory provisions are consistent with the Constitution.
The relevant Constitutional provisions.
The Constitution of Namibia, in its preamble, expresses that" recognition of the inlierent dignity and the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace"; that
"the right of the individual to life, liberty and the pursuit of happiness" is afforded to all "regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status"; and that the Namibian people, by their adoption of a Constitution founded on these values and principles,
have articulated their "desire to promote amongst all of
5 v Tcoeib, supra 1, at 635 i-j. S v Tcoeib, supra n. I, al 636 a-b.
4
us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world".
Chapter 3 of the Constitution defines a number of "fundamental rights and freedoms" to be respected and upheld. Included in these rights and freedoms are those enshrined in articles 6,7, Sand 18.
Article 6 of the Constitution states that:
"The right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia."
Article 7 provides that:
"No person shall be deprived of personal liberty except according to procedures established by law."
Article 8 stipulates that:
"(1) The dignity of all persons shall be inviolable.
(2) (a)
any judicial proceedings or in other proceedings before any organ of the State,
and during the enforcement of a penalty, respect for human dignity shall be
guaranteed, (b) No person shall be subject to torture or to cruel, inhuman or degrading treatment
or punishment."
Article IS prescribes that:
"Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal."
Article 25 of the Namibian Constitution provides that the Legislature shall make no laws and the Executive shall take no action which abolishes or abridges the fundamental rights and freedoms conferred in Chapter 3 and any law or action in contravention thereof shall be invalid to the extent
5
of such contravention, provided that a competent Court may direct the appropriate authority to correct the defect in the law or action within a specified period during which time the impugned law or action shall remain valid. These provisions apply mutatis mutandis to laws enacted prior to Independence.
The relevnnt statutory mechanisms.
Section 276(1) of the Criminal Procedure Act 51 of 1977 ("the Criminal Procedure Act"), which provides that it is competent for a Court of law to impose a sentence of imprisonment upon a person convicted of an offence, does not place any limit on the period of imprisonment which can be imposed. This section must be
read together with section 283(1) of the Criminal Procedure Act which provides that:
"(1) A person liable to a sentence of imprisonment for life or for any period, may be sentenced to imprisonment for any shorter period..."
There is no provision in the Criminal Procedure Act or any other law in Namibia which obliges a Court to impose a mandatory sentence of life imprisonment in respect of any particular offence. The sentence of life imprisonment is thus a discretionary sentence in Namibia, available for a Court to impose should such Court believe that the particular circumstances of a particular case warrant the imposition of such a sentence.
However, the fact that an accused may be sentenced to imprisonment for life in Namibia does not mean that such an accused is thereby never able to regain his or her freedom. Life imprisonment may mean imprisonment for the rest of the natural life of the accused, but this is not always the
6
position.3 The sections of the Criminal Procedure Act relating to the discretionary imposition of the sentence of life imprisonment must be
read together with those provisions of the Prisons Act 8 of 1959 ("the Prisons Act"), as amended by Act 13 of 1981 (SWA), relating to the treatment of prisoners, the system of
release on parole and the granting of Executive pardons.
Section 2(b) of the Prisons Act, as amended by section 2 of Act 13 of 1981 (SWA), states that:
"(2) The functions of the Prisons Service shall be:
(a)
(b)
far as practicable, to apply such treatment to convicted prisoners as may lead
to their reformation and rehabilitation and to train them in habits of industry and
labour.
Section 61 of the Prisons Act, as amended by section 34 of Act 13 of 1981 (SWA), provides that:
"An institutional committee shall, with due regard to any remarks made by the court in question at the time of the imposition
of the sentence and at such times and intervals (which intervals shall not be longer than six months) as may be determined by the Commissioner or when otherwise required by the Commissioner or release board -
a)
make recommendations as to the training and treatment to be applied to any prisoner referred to in paragraph (b);
b)
submit reports ... to the Commissioner and the release board on, inter alia, the conduct, adaptation, training, aptitude, industry, physical and mental state of health and the possibility of relapse into crime of every prisoner who is detained in the prison in respect of which it has been established and-
(i)
(ii)
(iii)
(iv) upon whom a life sentence has been imposed;
(v)
(vi)
Section 6\bis of the Prisons Act, as inserted by section 35 of Act 13 of 19S1 (SWA), provides
that:
"A release board shall at such times and intervals as may be determined by the Commissioner or when otherwise required by the Commissioner -
JSee Du Toil et al. Commentary on the Criminal Procedure Act (Juta & Co Ltd) at 2S-20A; R vMzwakala 1957 (4) SA 273 (A). 5v Tuhadeleni & Others 1969 (1) SA 153 (A); S v Whitehead 1970 (4) SA 424 (A); 5 v Sibiya 1973 (2) SA 51 (A).
7
(a)
due regard to any remarks made by the court in question at the time of the imposition
of the sentence on the prisoner concerned and of any report on that prisoner furnished to it
in terms of section 61(b) by the institutional committee concerned, make recommendations
to -
release of that prisoner cither on probation or on parole at the expiration of his
sentence;
(ii)
period for and the conditions on which that prisoner may be released on
probation; (iii) the period for supervision under and conditions on which that prisoner may be
released on parole; (iv)
Section 64 of the Prisons Act, as amended by sections 5(2), 36 and 53(a) of Act 13 of 1981 (SWA) and as further read with Article 140(5) of the Namibian Constitution, provides that:
"(I) Upon receipt of a report from the release board regarding a prisoner upon whom a life sentence has been imposed and containing a recommendation for the release of such prisoner, the Commissioner shall submit such report to the President of Namibia;
