Case Title:

The State v Paulus Joseph

Case No: High Court Ref No. 1067/2020

CR 53/2020

Division of Court: High Court

Main Division

Heard before: 

Honourable Justice Liebenberg

et

Honourable Justice Shivute

Delivered on: 

12 August 2020

Neutral citation: S v Joseph (CR 53/2020) [2020] NAHCMD 347 (12 August 2020)

The order:

1. The conviction and sentence in respect of count 1 are set aside.
2. The fine in respect of count one, if paid, should be refunded to the depositor.
3. The convictions and sentences in respect of count 2 and 3 are confirmed.

Reasons for order:

[1]       This matter comes before me on special review.

[2]        The accused appeared in the Magistrate’s Court held at Otjiwarongo on one count of contravening  section 138(1) of the Road Traffic Ordinance, 1967 ( Ordinance 30 of 1967), as amended, read with Sections 1,60,138(2),(4),145,146,148(5) ,150,151,155 and 180 of the  Ordinance. He was further charged with two counts of contravening the Road Traffic and Transportation Act, Act 22 of 1999 as amended.

[3]       The conviction and sentence on count 2 and 3 are in order and are confirmed. The issue lies with count 1 , in which the accused was charged as follows:

In that upon or about the 19^th day of January 2019 and on a public road to wit unnamed public road near Business Area Otjiwarongo in the district of Otjiwarongo the said accused did unlawfully drive a vehicle with registration number N 5257 T recklessly contravening section 138 (1) of the Road and Traffic Ordinance, 1967 (Ordinance 30 of 1967), as amended.

[4]       The accused pleaded not guilty to the charge and the matter proceeded on trial. On 22 July 2020 he was found guilty as charged and sentenced to a fine of N$ 4000 of 12 months’ imprisonment.

[5]      After the sentence was handed down, the learned magistrate sent the matter for special review whereby he raised the following issue :

           ‘ 1.   The accused was convicted of three counts and I find issue with the conviction on count

             1, I am mindful that when the accused was asked to plead, the State had indicated that

              the charge was under the Act and made the correction that it is not the Ordinance but

              an Act. As we have proceeded, I lost sight of the fact that they did not also amend the

              section under which the accused should be charged. I have reasoned that during

                   judgement that there can be an amendment on the section.

2. I have thought hard about the issue after reading the matter of S v Poppas, a review matter that appeared in Otjiwarongo which deals with the repealed Ordinance. I am minded to think that since the section is not correct and was not corrected, that the conviction is likely to be flawed and I am asking for guidance on this issue. I am minded to think as such, as on the Namcis system, the offence is still under the Ordinance.’

[6]      The Road Traffic Ordinance of 1967 was repealed by the Road Traffic and Transport Act 22 of 1999, which came into operation on 06 April 2001.

The Ordinance in terms of which the accused was charged lost its force and effect when it was repealed. The applicable legislation and provision for the offence of reckless driving, would be section 80 of the Road Traffic and Transport Act (Act 22 of 1999).

[7]    It follows that the magistrate’s concession on convicting the accused under a repealed legislation was properly made. A repealed legislation is invalid and it is of no force. Therefore, no charge preferred under such legislation can be revived. In light of the above, the sentence and conviction on count one cannot be allowed to stand.

[8]        In the result, it is ordered that:  

(a)   The conviction and sentence in respect of count 1 are set aside.
(b)   The fine in respect of count one, if paid, should be refunded to the depositor. 
(c)    The convictions and sentences in respect of count 2 and 3 are confirmed.

                       NN SHIVUTE     

                         JUDGE                         

                         JC LIEBENBERG                      

                                JUDGE