S v SHEEHAMA 2001 R 281 (HC) religion.

This would also A have given other interested parties the opportunity to
2001 R p281 intervene in the proceedings.

Citation 2001 NR 281 (HC) The Court held further that art 25(2), which provided that per sons who alleged that their
fundamental rights have been infringed could approach a competent court, did not
Court High Court contemplate a two-tier approach for relief. It did not contemplate an approach where the
evidential foundation for the relief sought was laid in an incompetent court and the matter
Judge Hannah Jand Gibson J was then adjudicated upon by a competent court. B

Heard October 26, 2001 The appeal was accordingly dismissed.

Judgment November 8, 2001
Counsel L Conradie for the appellant, the heads of argument having been prepared by
C Light.
E Harmse for the State.
Annotations Link to Case Annotations
F
[zFNz]Flynote
Constitutional law - Enforcement of fundamental rights - Freedom of religion - Appellant
Rastafarian convicted of possession of dagga - Appellant contending that this was
interference with right to religious freedom guaranteed by Namibian Constitution G -
Appellant appealing against conviction - On appeal Court holding that appellant had
followed wrong procedure - More appropriate if appellant had applied for stay of
criminal proceedings in magistrate's court - Appellant could then approach High H Court
on motion - Would also allow other interested parties to intervene - Appeal accordingly
dismissed.
[zHNz]Headnote
The appellant had been convicted of possession of dagga in contravention of s 2(b) of Act
41 of 1971. In the court a quo he had raised the defence that consuming dagga was part of
his religious practice of Rastafarianism I and that the deprivation of dagga infringed his
right to religious freedom guaranteed by art 21(1)(b) and (c) of the Namibian
Constitution. In the present case he appealed against the conviction.
It was common cause that the magistrate's court did not havejurisdiction to adjudicate
upon constitutional matters.
The Court held that the appellant had followed the incorrect procedure. It would have
been more appropriate if the appellant had applied for a stay of proceedings in the court a
J arrest and the defence called the appellant to testify. He said that he was a Rastafarian
2001 NR p282
[zCIz]Case Information
Appeal from a decision in a magistrate's court. The facts appear from the judgment of
Hannah J.
L Conradie for the appellant, the heads of argument having been prepared by C Light . C
E Harmse for the State.
Cur adv vult.
Postea (November 8). D
[zJDz]Judgment
Hannah J: The appellant appeared before the Windhoek magistrate's court charged with
the unlawful possession of a small quantity of dagga in contravention of s 2(b) of the
Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971.
He pleaded not guilty but after a trial was convicted and E sentenced to a fine of N$300.
He now appeals against the conviction.
The appellant was represented in the magistrate's court by a legal practitioner and at the
outset of the trial a statement was handed in pursuant to s 115(1) of the Criminal
Procedure Act 51 of 1977. In that statement the F appellant admitted that on 28 April
1998 he was in possession of a very small quantity of dagga but denied that his
possession was unlawful. He stated that he was an adherent of the Rastafarian faith or
religion and that it was part of the practices, rituals, methods of observance or
manifestations of Rastafarianism to smoke and G consume dagga. He contended that his
arrest and prosecution for possession of a small quantity of dagga violated his right to
freedom of religion as guaranteed to him by arts 19 and 21(1)(c) of the Constitution and
therefore pleaded not guilty to the charge. In addition to the s 115(1) statement the
appellant made formal admissions to the same effect. H
The prosecution called one witness who outlined the circumstances of the appellant's
and explained Rastafarianism at some length I and produced some literature on the

quo and approached the High Court on motion in order to enforce his right to freedom of
subject of Rastafarianism. The magistrate was of the opinion that no defence to the
charge had been made out and convicted the appellant.
The basis of the appeal is that the magistrate erred in not finding that to convict the
appellant would abridge, infringe or threaten the appellant's rights or freedoms - J
2001 NR p283
HANNAH J
(a) under art 21(1)(b) of the Constitution to freedom of conscience and belief as a
Rastafarian; A
(b) under art 21(1)(c) of the Constitution to practise Rastafarianism and to manifest
its practice by possessing and using dagga;
(c) under art 19 of the Constitution to enjoy, practise, profess, maintain or promote
Rastafarianism. B
It is further averred that the appellant's conviction abridged, infringed or threatened those
rights or freedoms. However, what exercised our minds at the outset of the appeal was
the procedure adopted by the defence and whether it would be proper to allow the
appellant to take these constitutional points before us.
Article 25(2) of the Constitution provides: C
'Aggrieved per sons 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...' D
In S v Heidenreich 1995 NR 234 (HC) this Court held that the jurisdiction of a
magistrate's court does not extend to a claim brought in terms of art 25(2) and therefore
the magistrate in the instant case was not competent to deal with the defence raised by the
appellant. In fact the magistrate pointed this out in his reasons. E
However, Ms Conradie , who appeared on behalf of the appellant before us, submitted
that it by no means follows from the fact that a magistrate's court is not competent to deal
with constitutional matters such as those raised by the appellant that an accused in a
criminal case or a defendant in a civil case cannot raise them. In support of F this
submission counsel referred us to Walker v Stadsraad van Pretoria 1997 (4) SA 189 (T).
The judgment in that case was delivered in Afrikaans but an agreed translation of the
passage relied on by Ms Conradie has been placed before us. The passage in question
appears at 203C-H and the translation reads: G
'We were requested to sit as a court of first instance, by consent, in terms of s 102(6), if
we came to this conclusion (that the magistrate did not have jurisdiction to make a
finding in respect of an alleged violation of a fundamental right).It is not necessary to
consider that request.
This is not a case where a plaintiff/applicant under s 7(4) of the Constitution requests
relief in respect of an infringement of such a H right. Then the requirement that this
should happen in a ''competent court'' would exclude a magistrate's court. Here the
defendant however relies on a fundamental right and not the plaintiff. The plaintiff
enforces its common law (and statutory) rights as supplier of municipal services. It has
the right to approach a magistrate's court and the magistrate's court has jurisdiction. The
mere fact that the defendant has raised a defence of a constitutional nature does not
deprive the magistrate of his jurisdiction to I adjudicate upon the claim. He can only not
adjudicate upon this defence. If the constitutional defence is one of a number of defences
then he must decide the others and leave aside the constitutional defence. If the
constitutional defence is the only defence, then there is no justiciable defence upon which
he can adjudicate and he must give judgment if the claim is otherwise proved. This J
2001 NR p284
HANNAH J
approach does not lead to injustice in respect of a defendant who is compelled to
litigate in a court where his defence is not A justiciable. The answer is simple. He pleads
his defence. Both parties lead their evidence on the defence. (The evidence is admissible
because it is relevant to the plea). The magistrate makes his credibility findings in respect
of the witnesses. After judgment is given in favour of the plaintiff (in the absence of a
justiciable defence) the case is decided on appeal on all the issues, B including the
constitutional issue upon which the magistrate has not expressed himself. The question
on appeal is always if the judgment of the magistrate's court in the light of all defences
that are justiciable in the Court of appeal, can stand. This Court does however have
jurisdiction to adjudicate upon constitutional questions of this nature (s 101(3)(b) ) and
not only as a court of first instance (s 101(4) read with s 98(7)).' C
The case went on appeal to the Constitutional Court and the judgment was reversed:
Pretoria City Council v Walker 1998 (2) SA 363 (CC). However, there was no appeal on
the jurisdiction point and Langa DP had this to say at para [16] at 374A-C:
'It may well be that in the light of the amendment of s 103(1) of the interim
Constitution by the Constitution of the Republic of South D Africa Third Amendment
Act 13 of 1994, the magistrate had incidental jurisdiction to adjudicate upon the defence.
However, in the absence of an appeal against the findings made by the High Court in
regard to jurisdiction, I do not consider it appropriate to express any opinion thereon. It is
sufficient to say that, if the magistrate had no jurisdiction to deal with the constitutional
issues E raised by the plea, there is nothing in the practice laid down by the High Court
that is inconsistent with the interim Constitution.'
Ms Conradie also relied on this obiter dictum .
The Walker case supra is distinguishable from the present one in that it was a civil case
whereas we are dealing F with a criminal case in the magistrate's court. Ms Conradie
submitted that this is immaterial but, in my view, the distinction cannot be dismissed with
such ease. As was pointed out in the passage cited, the defendant in a civil case pleads his
defence and both parties lead their evidence on the defence. That is not the case in
criminal proceedings. At a criminal trial an accused may make a statement indicating the
basis of his defence and he G may be questioned by the court in order to establish which
allegations in the charge are in dispute but in either case an accused has a right to remain
silent. In other words, in criminal proceedings the trial can commence without the issues
being defined and that is indeed often the case. An accused is therefore in a position to H
ambush the prosecution whereas a defendant in civil proceedings is not. Although this did
not happen in the instant case an accused in the position of the appellant could advance
his defence based on Rastafarianism without prior notice to the prosecution and thereby
gain an unfair advantage. I
It is true that the court has a discretion as to whether to allow evidence in rebuttal but if it
were to exercise such discretion in favour of doing so a postponement would almost
inevitably follow. Another probable consequence would be an application to recall the
accused and his witnesses for further cross-examination.There would therefore J
2001 NR p285
the determination of an application for declarations on certain constitutional matters. That
is the procedure which the appellant in the instant case should have adopted. H
As the appellant adopted the incorrect procedure the magistrate quite properly convicted
him. He had no other choice. And for the reasons I have given it would be wrong for this
Court, sitting on appeal from the magistrate's decision, to consider the constitutional
questions which have been raised. I
Accordingly, the appeal is dismissed.
Gibson J concurred.

HANNAH J Appellant's Legal Practitioners: Legal Assistance Centre. J

be a substantial and undesirable departure from the prescribed and well recognized order A
in which evidence is A presented at criminal trials. I therefore conclude that whatever the
position may be in civil proceedings in the magistrate's court where a constitutional
defence is raised there is reason not to follow the procedure approved in Walker 's case
supra when the proceedings are criminal. B

Another difficulty arising from that procedure is that it excludes interested parties from
participating in the proceedings. When constitutional rights are raised it often happens
that parties other than the Prosecutor-General and an accused have an interest in the
outcome.

The present case is a prime example. I should have thought that the Attorney-General
acting on behalf of the C Minister of Health would have a strong interest in the outcome.
But under the procedure approved in Walker 's case supra the Attorney-General would
have no means by which to intervene.

With considerations such as those just mentioned in mind I return to the words of art
25(2). In my opinion, the D sub-article does not contemplate a two-tier approach for
relief. It does not contemplate an approach where the evidential foundation for the relief
sought is laid in an incompetent court and the matter is then adjudicated upon by a
competent court. In my opinion, the Sub-Article contemplates a direct approach to a
competent court. Such E approach will normally be by way of application and there will
then be present all the practical advantages which accompany such a procedure. The
aggrieved per son who, of course, will bear the burden of establishing his claim that a
fundamental right or freedom has been infringed or threatened sets out his evidence in his
founding affidavit. No question of ambush arises. The respondent, who in the
circumstances of the present case F would be the Prosecutor-General, is then afforded the
opportunity to answer and any interested party afforded the opportunity to intervene.

That was the procedure followed in asilowski and Others v Minister of Justice and
Others 1998 NR 96 (HC) . G The applicants sought and obtained an order suspending
criminal proceedings instituted against them in the Walvis Bay magistrate's court pending