The heavy prison terms that the Combating of Rape Act prescribes for repeat rapists remain part of the law in Namibia until declared unconstitutional, High Court judge president Petrus Damaseb has said in a judgement on a prison inmate's attempt to appeal against a 45-year jail term that he received in 2006.
"Unless and until a competent court declares as unconstitutional and sets aside the mandatory minimum sentence regime under the Combating of Rape Act, no other court can impose a different sentence to the one I imposed," Damaseb said in a judgement in which he on Thursday dismissed an application by a prison inmate, Gerhardus Bezuidenhout, to be allowed to appeal against the 45-year jail term that he received on a charge of rape in March 2006, at the end of a trial in the High Court.
Bezuidenhout - then 31 years old - was the first person to be sentenced in the High Court to the mandatory minimum prison term of 45 years that the Combating of Rape Act of 2000 prescribes for someone who has a previous conviction for rape, and who had committed at least one of the rapes under certain "coercive circumstances" defined in the act.
He was found guilty of abducting and raping a 14-year-old girl at Khorixas in July 2003.
Bezuidenhout had previously also been convicted of rape, for which he was sentenced in 1995 to an eight-year prison term.
Damaseb noted in his judgement that Bezuidenhout's application for leave to appeal was based on a Supreme Court decision in which the country's top court ruled in February 2018 that prison terms effectively exceeding a sentence of imprisonment for life, which is the most severe sentence that can be imposed under Namibian law, are unconstitutional.
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Under Namibia's Correctional Service Act, an offender sentenced to a life term of imprisonment can become eligible to considered for release on parole after serving a period of 25 years in prison.
The Supreme Court calculated that, given that an offender sentenced to a determinate prison term would be eligible to be considered for release on parole after serving two thirds of their sentence, sentences exceeding 37 and a half years' imprisonment would amount to a longer sentence than life imprisonment, and thus would be unconstitutional.
Damaseb said Bezuidenhout misunderstood the reasoning in the judgement in which the Supreme Court ruled on the constitutionality of extra-long prison terms.
That judgement, he stated, does not apply to mandatory minimum sentences prescribed by law.
Such mandatory minimum sentences would still have to be addressed by the Supreme Court in due course, and in the meantime remain part of the law, Damaseb said.
He concluded that Bezuidenhout, as a repeat offender, was sentenced as prescribed by the Combating of Rape Act, and no other court can impose a different sentence than the one Bezuidenhout received.
Damaseb dismissed the application for leave to appeal.
