LEGISLATION – NAMIBIAN CORRECTIONAL SERVICE REGULATIONS, ACT 9 OF 2013 – INTRODUCTION OF THE REQUIREMENT OF ‘IMMINENT DEATH’ IN THE REGULATIONS ULTRA VIRES PROVISIONS OF THE ACT

LEGISLATION – NAMIBIAN CORRECTIONAL SERVICE REGULATIONS, ACT 9 OF 2013 – INTRODUCTION OF THE REQUIREMENT OF ‘IMMINENT DEATH’ IN THE REGULATIONS ULTRA VIRES PROVISIONS OF THE ACT

The applicant has been serving lengthy imprisonment at the Windhoek Correctional Facility, having been convicted and sentenced on charges of inter alia high treason.   He is 67 years old. He applied for an order declaring regulation 274 of the Namibian Correctional Service Regulations published in Government Notice 331 of 2013 (GG5365), ultra vires section 109 read with section 132 of the Correctional Services Act 9 of 2012 (“the Act”).  The main basis for the relief sought was that the introduction of the requirement of ‘imminent death’ into the regulations is ultra vires the provisions of s 109, and further that the regulations create additional legislative provisions that do not belong in the regulations. The respondents opposed the application. The first respondent (Minister of Home Affairs, Immigration and Safety and Security) argued in response that in terms of s 132(1)(o) and s 132(1)(a) of the Correctional Services Act, he possessed wide powers to make any regulation in furtherance of the objects of the Act.

The main issue for determination by the court was whether or not regulation 274 in its entirety, is ultra vires s 109 and/or s 132 of the Act. In the event that it was found in the negative, the applicant sought an order setting aside the regulation as unconstitutional on the grounds that it is inconsistent with Articles 6, 8, and 44 of the Namibian Constitution. In any event, the applicant in the event of success on either prayer for relief sought specific orders as set out in his prayers 3 – 5 of the notice of motion.

SCHIMMING-CHASE J considered the application and held that:

The introduction of the requirement of ‘imminent death’ (amongst others) in regulation 274 is ultra vires section 109 read with section 132 of the Correctional Services Act 9 of 2012. Accordingly, regulation 274 of the Namibian Correctional Services Regulations is set aside in its entirety.

As a result, it was ordered that:

The fifth respondent is ordered, within 15 days from the date of this order, to make a determination as to whether or not the disease(s) affecting the applicant is a dangerous disease, or whether or not the applicant’s continued incarceration is detrimental to the applicant’s health on the grounds of his physical condition in terms of s 109 of the Correctional Service Act 9 of 2012. In the event that the fifth respondent determines that one or more of the disease(s) afflicting the applicant is a dangerous disease, or that the applicant’s continued incarceration is detrimental to his health on the grounds of his physical condition as contemplated in s 109 of the Correctional Service Act 9 of 2012, he is ordered to make a recommendation to the first respondent in terms of s 109 within 20 days of this order. In the event that the fifth respondent declines to make such a recommendation, he or she must inform the applicant and provide reasons therefor within 15 days of the date referred to in order [4] above.

Mwilima v Minister of HAISS NAHCMD 14 November 2022