A man who was convicted on two counts of motor-vehicle theft, is appealing the convictions and sentence.
Vilho Hamutenya Nambase has filed a notice of appeal at the Windhoek High Court against his convictions and subsequent 20-year sentence.
He is at the same time challenging the constitutionality of the Motor-Vehicle Theft Act of 1999. The inmate issued a collateral challenge against the provisions of the Act through his lawyer, Appolos Shimakeleni.
Nambase is seeking through a collateral constitutional challenge to have the sections in the Act dealing with prescribed sentences declared unconstitutional and invalid on the basis that it violates the prohibition of cruel, inhuman and degrading punishment in Article 8, and the guarantee of equality in Article 10 of the Constitution.
Shimakeleni also claims that regional court magistrate Vanessa Stanley erred in fact and law when she found his client guilty.
According to the lawyer, the court failed to acknowledge that the vehicles were in fact delivered to his client, and that he was supposed to pay for them in monthly instalments.
As such, his failure to make the instalments made it a civil case, and not a criminal matter.
He said the magistrate failed to take into account that Nambase was in fact in control of the vehicles from the day they were delivered to him by the complainant.
With regards to the sentence imposed, he said it was harsh, cruel and inhumane, as there was corroborated evidence that the applicant did not steal the vehicles, but that it was delivered to him, which constitutes substantial and compelling circumstances, allowing her to deviate from the prescribed sentences.
In fact, Shimakeleni said the prescribed sentences in the Act are archaic, as they are totally outdated.
When the Act was passed 24 years ago, the lawyer said, a motor-vehicle was a novelty, and harsh sentences were prescribed to curb motor-vehicle theft.
However, today, motor-vehicles are a common mobile property with varying values, depending on the make and model of such vehicle.
The lawyer submitted that the sections in the Act prescribing minimum sentences are directly in conflict with Article 8 of the Constitution, which proscribes cruel, inhuman or degrading treatment or punishment, as the infliction of excessive punishments is incongruent with the tenor and spirit of the Namibian Constitution.
“The sections do not distinguish between isolated cases of theft of a trailer or motorcycle on the one hand, and the theft of a fleet of five passenger (or higher) motor-vehicles (or even a fleet of trucks) by an organised gang of motor-vehicle rustlers, on the other. It prescribes a minimum sentence for all of them,” Shimakeleni argued.
According to him, the sections are grossly disproportionate as they fail to distinguish between different kinds of motor-vehicles, the actual value of the motor-vehicle, or the quantity of the motor-vehicles.
In addition, he said, an old, dilapidated and non-functional motor-vehicle or trailer, or scrap motor-vehicle which is not roadworthy would fall within the definition of “motor-vehicle” in the Act.
As a result, there is thus no correlation between the crime and the sentence, particularly on the value of the motor- vehicle.
“The minimum sentence regime created by the sections is unconstitutional, as it has set the levels of deterrence beyond what is fair and just for those convicted and sentenced under it. The minimum sentences are grossly disproportionate in that they unfairly and unjustly punish those who are convicted as instruments of deterrence in violation of their rights and dignity,” he stressed.
– rrouth@nepc.com.na