Court name
High Court
Case number
CRIMINAL 38 of 2008
Title

S v Mathlata and Another (CRIMINAL 38 of 2008) [2008] NAHC 40 (28 April 2008);

Media neutral citation
[2008] NAHC 40



CASE NO












SUMMARY



CASE NO.: CR 38/2008

CASE NO.: CR 39/2008






THE STATE



and




JOHANNES MATLATHA






THE STATE




and



TJIPO TJIVIKUA & ANOTHER







PARKER, J et SILUNGWE, AJ






CRIMINAL PROCEDURE      
-
       
Magistrate’s duty to keep proper record of proceedings – Failure to do so an irregularity.













CASE NO.: CR 38/2008

CASE NO.: CR 39/2008






IN THE HIGH COURT OF NAMIBIA




In the matter between:




THE STATE




vs



JOHANNES MATLATHA




(HIGH COURT REVIEW CASE NO.: 609/2008)



THE STATE



vs



TJIPO TJIVIKUA & ANOTHER




(HIGH COURT REVIEW CASE NO.: 608/2008)



CORAM:  
        
PARKER, J
et SILUNGWE, AJ



Delivered on:   
2008.04.28

___________________________________________________________________________





REVIEW JUDGMENT



SILUNGWE, AJ    


[1]     
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.





[2]     
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.




[3]     
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.



It is impossible for me to determine whether the proceedings are in accordance with justice to enable me to sentence the accused as the case record is incomplete.”



[4]     
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:



It is an irregularity for a trial court not to properly record all the material events that take place during the trial of an accused person.”



[5]     
In the circumstances of these cases, the interests of justice will be served by the setting aside of the convictions.




[6]     
The following order is made:




1.      
The convictions are set aside;





2.      

The Prosecutor-General is at liberty to prosecute the accused persons de novo, if she so wishes.






____________________

SILUNGWE, AJ



I agree






____________________

PARKER, J