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174 Luboya and Another v State (2007) AHRLR 165 (NaSC 2007) automatically void (or ‘abort’) the proceedings is unsound and the Khanyile and Davids requirements should be rejected. [33.] The reference in the preceding quotation to ‘the Khanyile and Davids requirements’ is a reference to the case of Khanyile & Another 1988 (3) SA 795 (N), a case decided in the Natal Provincial Division in which it was held that in an instance where a trial without legal representation for an accused would be grossly unfair, the court should refuse to proceed with the trial until representation has been obtained through some agency (at 816 C – D). That ratio is now referred to as the ‘Khanyile rule’ and it was followed in S v Davids, S v Dladla 1989 (4) SA 172(N). I shall deal with the Khanyile case presently but for the moment let me round off Ms Jacobs’ submissions. [34.] Having espoused the ratio in Nakani, supra, and Rudman, also supra, Ms Jacobs then, but oddly, also cited in support of her argument this Court’s judgment in The Government of the Republic of Namibia and two others v Mwilima and all other accused in the Caprivi Treason Trial 2002 NR 235, (hereinafter Mwilima). [35.] On a proper reading Mwilima cannot possibly advance the state’s contention in the present case. That was a case in which Mwilima and his co-accused were arraigned on an indictment charging many serious offences including treason, murder, sedition, public violence and attempted murder. During the pre-trial period the accused collectively applied for legal aid but the state vehemently opposed the application. The matter was brought to the High Court by way of an urgent notice of motion. Three Judges ex banc heard the application and at the end of the day allowed the application. In doing so they, inter alia, made an order directing the Legal Aid Directorate to provide legal aid to the accused. The state, being aggrieved with the Court’s order, appealed to this Court. In this Court the appeal was heard by a bench constituted by five Judges. In a land-mark leading judgment handed down by Strydom, CJ, a distinction was drawn between legal aid grantable under the Legal Aid Act 29 of 1990 as read with article 95(h) of the Constitution on one hand, and on the other, that which can be granted on a constitutional basis. The Chief Justice elaborated that legal aid of the former category can, in keeping with the directory principles of state policy enunciated by article 95(h), be granted only when the limitations of state financial resources so permitted, which presupposes that when such resources are not adequate or not available it cannot be granted. For the sake of clarity, I may mention that article 95(h) of the Constitution of Namibia, falling under Chapter eleven (11) relating to the Principles of State Policy, provides that: The state shall actively promote and maintain the welfare of the people by adopting, inter alia, the following: African Human Rights Law Reports
Luboya and Another v State (2007) AHRLR 165 (NaSC 2007) 175 A legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the state. [36.] Article 101 which falls under the same chapter, provides to the effect that the principles of state policy shall not be justiciable. In short, therefore, this kind of legal aid which he termed as ‘statutory legal aid’, was discretionary. [37.] The Chief Justice then proceeded to consider the combined effect of articles 5, 12(1) and 25(2), (3) and (4) of the Constitution insofar as they have a bearing on the issue of legal aid and in the context of legal representation. His erudite reasoning went as follows, starting from page 255 at letter D: The Constitution is, in my opinion, clear as to whom must uphold the rights and freedoms set out in Chapter 3. Article 5, which is part of Chapter 3 of the Constitution, provides as follows: Protection of Fundamental Rights and Freedoms The fundamental rights and freedoms enshrined in this chapter shall be respected and upheld by the executive, legislature and judiciary and all organs of government and its agencies and, where applicable to them, by all natural and legal persons in Namibia and shall be enforceable by the courts in the manner hereinafter prescribed. [38.] He went on: Further elaboration of the powers of the court to enforce and protect the rights and freedoms (are) to be found in article 25. Sub-article (1) deals with the court’s power in regard to legislative acts infringing upon such rights and freedoms whereas sub-articles (2), (3) and (4) are relevant to the present instance. They provide as follows: ‘Article 25, Enforcement of Fundamental Rights and Freedoms. (1) ... (2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened, shall be entitled to approach a competent court to enforce or protect such right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal assistance as he or she may consider expedient. (3) Subject to the provisions of this Constitution, the court referred to in sub-article (2) hereof shall have powers to make all such orders as shall be necessary and appropriate to secure such applicants the enjoyment of such rights and freedoms conferred on them under the provisions of this Constitution should the court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or hat grounds exist for the protection of such rights or freedoms by interdict. (4) The power of the court shall include the power to award monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of particular cases.’ Article 5 clearly requires from the first respondent (sic) and all its agencies as well as from the judiciary to uphold the rights and freedoms set out in Chapter 3. Whereas the judiciary must uphold them in the enforcement thereof in their judgments, the first respondent (sic) and its agencies have the duty to ensure that they do not over-zealously infringe upon these rights and freedoms in their multifarious Supreme Court, Namibia
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AFRICAN HUMAN RIGHTS LAW REPORTS 20
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CONTENTS Editorial User guide Abbre
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USER GUIDE The cases and findings i
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Nigeria Internet Law Reports www.ni
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x Table of cases Nigeria Inspector-
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SUBJECT INDEX This index is divided
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xiv Subject index Presumption that
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xvi Subject index Environment Inter
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xviii Subject index No legal remedi
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xx International instruments referr
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xxii International instruments refe
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xxiv International instruments refe
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xxvi International instruments refe
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INTERNATIONAL CASE LAW CONSIDERED U
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xxx International case law consider
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xxxii International case law consid
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UNITED NATIONS HUMAN RIGHTS TREATY
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4 Abbassi v Algeria (2007) AHRLR 3
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30 Titiahonjo v Cameroon (2007) AHR
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36 El Dernawi v Libya (2007) AHRLR
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38 El Dernawi v Libya (2007) AHRLR
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Prince v South Africa (2007) AHRLR
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42 Prince v South Africa (2007) AHR
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AFRICAN COMMISSION ON HUMAN AND PEO
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74 Article 19 v Eritrea (2007) AHRL
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Chinhamo v Zimbabwe ZIMBABWE (2007)
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98 Chinhamo v Zimbabwe (2007) AHRLR
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100 Chinhamo v Zimbabwe (2007) AHRL
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SUB-REGIONAL COURTS 117
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120 Katabazi and Others v Secretary
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122 Katabazi and Others v Secretary
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