Court name
High Court Main Division
Case number
CR 22 of 2023
Title

S v Kakomba and Another (CR 22 of 2023) [2023] NAHCMD 69 (23 February 2023);

Media neutral citation
[2023] NAHCMD 69
Coram
Liebenberg J
Claasen J

REPUBLIC OF NAMIBIA

 

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

REVIEW JUDGMENT

 

PRACTICE DIRECTIVE 61

 

Case Title:

The State

v

Kuvare Kakomba                                 Accused 1

Julias Katjikuru                                  Accused 2

Case No: CR 22/2023

High Court MD Review No:

195/2023

 

Division of Court:

High Court, Main Division

Coram: Liebenberg J et Claasen J

Delivered:

23 February 2023

Neutral citation: S v Kakomba (CR 22/2023) [2023] NAHCMD 69 (23 February 2023)

ORDER:

The conviction and sentence in respect of both accused are confirmed.

 

REASONS FOR ORDERS:

 

LIEBENBERG J (CLAASEN J concurring):

 

[1]      The unrepresented accused persons appeared in the magistrate’s court for the district of Windhoek on one count of removal of game found dead – contravening s 50(1) read with sections 1, 50(2), 50(4), 81 A, 82, 85, 87 and 89 A of Ordinance 4 of 1975 and further read with sections 90 and 250 of the Criminal Procedure Act 51 of 1977 (the CPA). Both accused persons pleaded guilty and were convicted on their pleas of guilty. Each was sentenced to a fine of N$ 1500 or to 3 (three) months’ imprisonment. Whereas accused no. 1 paid the fine, accused no. 2 is currently serving the alternative sentence.

 

[2]      After perusal of the proceedings on review, I have come to the conclusion that the procedure adopted by the magistrate when questioning the accused persons is irregular and in view thereof, I decline to invoke the provisions of s 304(2)(a) of the CPA to first obtain a statement from the magistrate.

 

[3]      The learned magistrate, when questioning the accused persons, did not question each accused individually but posed one question simultaneously to both accused. The procedure adopted by the court a quo is clearly irregular and not in accordance with justice.

 

[4]      In the matter of The State v Valede and others,[1] where the magistrate followed the same approach of questioning the accused persons as in the present matter, the court held that:

          ‘Furthermore, and in any event, his questioning of all the accused was grossly irregular. Where there are co-accused the magistrate is required to question each accused independently even if this involves laboriously repeating the same questions.’ (Emphasis added)

 

[5]       It is settled law that not every irregularity vitiates the proceedings.  In my view this is such an instance. Despite the court a quo having adopted the wrong procedure in its application of s 112(1)(b) of the CPA, the end result is that both accused admitted to the offence charged. The conviction is consistent with the admissions made by the accused

 

 

respectively and, to this end, justice will be served to confirm their convictions. The same applies to the sentences imposed.

 

[6]      In the result it is ordered:

 

The conviction and sentence in respect of both accused are confirmed.

 

 

J C LIEBENBERG

JUDGE

C CLAASEN

JUDGE

     

 

 

[1] State v Valede and Others 1990 NR 81.