S v Mathlata and Another (CRIMINAL 38 of 2008) [2008] NAHC 40 (28 April 2008);
and TJIPO TJIVIKUA & ANOTHER CASE NO.: CR 39/2008 In the matter between: THE STATE JOHANNES MATLATHA ___________________________________________________________________________ [1] The Prosecutor-General is at liberty to prosecute the accused persons de novo, if she so wishes.
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Magistrate’s duty to keep proper record of proceedings – Failure to do so an irregularity.
IN THE HIGH COURT OF NAMIBIA
vs
TJIPO TJIVIKUA & ANOTHER
PARKER, J et SILUNGWE, AJ
2008.04.28
Both cases have been referred to this Court by the Regional Magistrate, sitting at Windhoek, for review in terms of section 116(3)(a) of the Criminal Procedure Act, Act 51 of 1977.
In these matters, the accused persons were convicted in the Gobabis District Magistrate’s Court of stock theft in contravention of the Stock Theft Act, Act 12 of 1990, as amended by Act 19 of 2004. As the presiding magistrate had no jurisdiction to pass the mandatory minimum sentences in terms of the Stock Theft Act, she committed the accused for sentence by the regional court. The trial magistrate relied upon the mechanical recording which, sadly, turned out to be defective and thereby rendered the two case records incomplete.
It is conceded by the trial magistrate that reconstruction of the records of proceedings is impossible. Evidently, the impossibility to reconstruct the records stems from the fact that the said magistrate failed to keep a proper record of the proceedings. In the light of the poor state of the records under consideration, the regional magistrate has been constrained to make the following remarks in respect of The State v Tjipo Tjivikua and Another.
The cases under review serve to illustrate that, despite previous warnings by this Court, some magistrates continue to overlook the important duty to keep a proper record of the proceedings before them. See S v Sageus and Two Others 2004(5) NCLP 102 (HC) at 103-104; and S v Alvet 2005(2) NCLP 1 at 5. As Damaseb, JP aptly said (and I concurred with him) in S v Alvet, supra, at 5:
In the circumstances of these cases, the interests of justice will be served by the setting aside of the convictions.
The following order is made:
The convictions are set aside;