Three Judges of Appeal in the Supreme Court yesterday declared Section 7 (1) of the General Law Amendment Ordinance of 1956, which deals with the acquisition of stolen goods, as constitutional. Their reasoning is that it does not infringe on the right to a fair trial as entrenched in the constitution.
‘The value of discouraging people from acquiring goods other than at a public sale unless satisfied they are not stolen,’ was the main argument of Supreme Court Judge of Appeal Dave Smuts, when he upheld an appeal the prosecutor general lodged about the constitutionality of a phrase in the General Law Amendment Ordinance, Ordinance 12 of 1956, which states “proof of which shall be on such first-mentioned person”.
The phrase was declared unconstitutional and struck down by two judges of the High Court in 2013.
Judges Nate Ndauendapo and Naomi Shivute made the ruling after a first accused in a theft case in the Swakopmund Regional Court, Joao Gomes, then aged 61, had lodged an application in the High Court to declare that particular section as unconstitutional.
The PG then lodged an appeal to the Supreme Court to have the order reversed.
The PG argued the High Court erred when it did not substitute the phrase with words to establish an evidential burden and argued that common law should have been developed so that the impugned words create an evidential burden to be satisfied by evidence creating a reasonable doubt.
Judge Smuts with Judges Sylvester Mainga and Kate O’Regan concurring agreed with this argument and found that the removal of the offending phrase “created a vacuum”.
According to Judge Smuts, if an accused is not obliged to provide a plausible explanation for being in possession of suspected stolen goods, it would put an impossible duty on the State to prove he was aware that the items were indeed the proceeds of a crime.
He went on to say that the provision has the salutary effect of affirming the importance of law-abiding citizens taking steps to discourage criminal conduct and refraining from implicating themselves in its ambit.
He said that Section 7 will oblige the public to be vigilant and enquire as to the ownership of articles for sale, which in turn could help diminish traffic in stolen goods.
“The importance of S7 in combating crime, including violent crime in the form of robberies, is beyond dispute,” the judge stressed and continued that the courts in Namibia have repeatedly stressed the prevalence and scourge of robbery and its deleterious impact upon society.
He said that in his view the means chosen by the legislature – to require an accused person found in possession of stolen property to provide a reasonable basis for believing the goods were not stolen – are compatible with the constitution.
According to Judge Smuts, Section 7’s purpose of requiring members of the public to be vigilant to avoid traffic in stolen goods is an “eminently legitimate state objective which, in this instance, is pursued by reasonable means”.
He further stated that given the wide prevalence of robbery and theft emphasised by the courts, it is in his view justifiable to require of citizens found in possession of stolen goods to establish reasonable grounds for believing they were not stolen when acquiring them.