The constitutionality of the penal provisions imposed by section 430(4) of the Companies Act 28 of 2004 in light of judicial sentencing discretione

Abstract

Abstract provided by author

One of the most distinguishing features of the law since independence in 1990 is that of constitutional supremacy, which warrants for a separation of powers between the three organs of state as well as the independence of the judiciary. Along with such judicial independence, judges are said to enjoy a "free" discretionary power in sentencing

The presumption is thus often held that legislative provisions, dictating sentencing, is an interference with the discretionary powers of judges and the independence of courts as guaranteed by the constitution. In this regard attention is paid to section 340(4) of the Companies act no 28 of 2004 which imposes a penal provision of either N$8 000 or two years imprisonment or both in relation to persons who was knowingly a party to the carrying on the business recklessly or with intent to defraud

Therefore the issue raised relates to the relationship between the legislative powers in drafting such penal provisions and the discretionary powers of judges in sentencing. The importance of the sentencing discretion will be explored in relation to legislative provisions limiting such discretionary powers of the courts and hence the constitutionality of section 430(4) will be dealt with in relation to the importance of the sentencing discretion of the courts

It will be seen that penal provisions, although constitutional in terms of procedure may still be unconstitutional when weighed against the importance of the sentencing discretion of the courts.