Court name
High Court
Case number
CRIMINAL 71 of 2008
Title
S v Murotwa (CRIMINAL 71 of 2008) [2008] NAHC 60 (23 June 2008);
Media neutral citation
[2008] NAHC 60
CASE NO.: CR 71/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
vs
RAUL NARCISO ENVANGERISTA MUROTWA
CORAM:
MULLER, J et SILUNGWE, AJ
MULLER, J et SILUNGWE, AJ
Delivered on:
2008.06.23
2008.06.23
_________________________________________________________________________
REVIEW JUDGMENT
SILUNGWE, AJ
[1]
The accused, who appeared in Ohangwena Magistrate’s Court on a charge of theft, was convicted as charged and sentenced to 24 months’ imprisonment.
[2]
When the matter came to this Court on automatic review, the following query was directed at the presiding magistrate:
When the matter came to this Court on automatic review, the following query was directed at the presiding magistrate:
“How could the learned magistrate have been satisfied that the accused has admitted all the elements of the offence in the light of the following question and answer put in terms of section 112(1)(b) of act 51 of 1977 as same appears from the record:
Q: Did you know that what you were doing was unlawful?
A: No.”
[3]
In response, the presiding magistrate conceded thus:
In response, the presiding magistrate conceded thus:
“I have read the learned judge’s remarks and I concede that the record affirms the answer “NO” in response to the question as stated.
While of course the record shows this, I am confident that this was an error on my part as the answer solicited was in the affirmative. If it had been in the negative I would not have proceeded to enter a verdict of guilty as mere fully appear on the record. I, however, concede that as it stands the record is irregular and with that in mind, I would suggest that it be returned and the plea heard de novo.”
[4]
The explanation that the accused’s answer “was in the affirmative” sounds incredible. The question is: how on earth can a presiding magistrate make such a grave mistake? I find the Magistrate’s explanation mind-boggling. As the record clearly shows, a plea of not guilty should have been entered. It follows that both conviction and sentence cannot be allowed to stand.
The explanation that the accused’s answer “was in the affirmative” sounds incredible. The question is: how on earth can a presiding magistrate make such a grave mistake? I find the Magistrate’s explanation mind-boggling. As the record clearly shows, a plea of not guilty should have been entered. It follows that both conviction and sentence cannot be allowed to stand.
[5]
It is, therefore, ordered:
It is, therefore, ordered:
1.
The conviction and sentence are set aside.
The conviction and sentence are set aside.
2.
The matter is remitted to the presiding magistrate for him to proceed in terms of section 112(1)(b) of the Criminal Procedure Act, Ac 51 of 1977.
The matter is remitted to the presiding magistrate for him to proceed in terms of section 112(1)(b) of the Criminal Procedure Act, Ac 51 of 1977.
______________________
SILUNGWE, AJ
I agree
_______________________
MULLER, J