IN THE HIGH COURT OF NAMIBIA
CR 74/08
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
Versus
FRIENDA HAIMANN MUHEKENI
Accused
HIGH COURT SPECIAL REVIEW CASE NO. 592/08
CORAM: MAINGA , J et ANGULA, A.J.
Delivered on: 2008.06.25
REVIEW JUDGMENT
ANGULA, A.J.:
[1]
This matter came before me for special review.
[2]
The letter by the Magistrate under cover of which the records of the proceedings were sent reads as follows:
“Due to the continuous misunderstandings between the presiding officer a`nd Mr Hennie Barnard (the Magistrate) I did recuse myself from trying this case.
There was a request from the state prosecutor to send the matter on special review.
The provisions of Section 304(4) Act 51/77 have been considered.
I thus humbly request the Honourable Judge of the High Court to set the proceedings aside and order the case to start de novo before another magistrate.”
[3]
The accused was charged with forgery and uttering a forged instrument, fraud and a four counts of theft of various amounts of money. She pleaded not guilty to all charges.
[4]
At the commencement of the trial the accused was represented by Mr Venter, however he withdrew whereafter the accused was represented by Mr Barnard. The matter was postponed on 22 March 2007 to 12 September 2007 for continuation of trial. At that juncture the defence was busy with the cross-examination of the second state witness. When the proceedings resumed on 12 September 2007, the following appears from the record:
“ON RESUMPTION ON 2007.09.12
MS HISHIKUSHITYA: PUTS PARTICULARS ON RECORD
As it pleases the Court. Your Worship the matter as postponed today, until today for continuation of trial. I believe one Officer Vermeulen is still under cross-examination. Warrant Officer Vermeulen if you may please go to the witness dock. That is the stance of the case. As it pleases the Court.
COURT: Yes Mr Barnard?
MR BARNARD: Thank you Your Worship. Mr Vermeulen (intervention)
COURT: No you are not going to take degrade the witness. I wanted you to possibly confirm your appearance. I expected you to confirm your appearance on behalf of the accused.
MR BARNARD: Yes I do confirm my appearance.
COURT: Good. Thank you, so this is a partly heard case before myself. Originally the case was taken by Mr Venter and the case ran yes during Mr Venter’s time until he withdraws and thereafter the accused person appointed Mr Hennie Barnard to represent her. That is in order because the accused person is entitled to be represented by a lawyer of his or her own choice, in this case her own choice. When Mr Barnard came in we proceeded half way of the trial and the case was remanded for cross-examination, for Warrant Officer Vermeulen. And on the, recently it appears that Mr Barnard learnt the fact that I was taking my annual leave during the month of September. He then wrote a letter to my supervisor in particular Mr Unengu. He uttered some words in his letter and this is not the first time that Mr Barnard is writing letters complaining against myself and threatening to take some legal action against me or the appointing authority or urging that I must be charged with disciplinary hearing. As judicial officers or professionals we need to work in a conducive environment. We need to carry out our duties without fear or favour. Professionally normally we differ in opinions. We may have differences here and there, but they should, they should not affect the interests of those whom we represent or affect the performances of our duties. When we differ in one case such difference must end with such case. With our case with Mr Barnard it started around 2005 or earlier than that when Mr Barnard wrote letters in the cases of either Joshua Katjingisiua or Jefta Katjitae the case which I was dealing with and represented by myself. During those cases I exercised at least a high degree of patience. Even when I was belittled and ridiculed I kept my patience under control up to the end of the cases. I recall that at the end when they were convicted I even granted a deferred fine to be paid by his clients. It appears that Mr Barnard’s battles cannot come to an end. It appears he is fighting possibly against me as a person and such battles would not stop as long as I preside over the cases that he is representing. I first stated earlier on when the case was represented by Mr Venter there was no problem expressed or experienced. I have no problem with the accused person. It is my vision that she receives a just and fair trial, but since Mr Barnard came in with his letter I feel that I will no longer be objective in trying the case of the accused person. It was stated in one case by the Honourable Judge Mainga Unengu Acting Judge in the case of the State v Erastus Itope delivered on the 16th July,2 002 unreported High Court case: “While it is permissible that a judicial officer may recuse himself or herself from a case at any stage of the proceedings he may only do so, only where the following points are existing: (1) The Magistrate has a feeling of partiality or enmity or anything indicating a motive which might astute him/her in dealing with a case against the accused person especially if accused is one against whom he/she entertains strong feelings. (2) Bias or real likelihood of bias. (3) The Magistrate previously dealt with the case, the matter as a public prosecutor. (4) The Magistrate is a relative of one of the parties. (5) The Magistrate is a friend of the legal representative involved. (6) The judicial officer is himself a necessary witness in the case. They cited about three cases. See Cloete v The Pretoria Land Board 1943 TPD 246 at 251 – 4. Another case is The State v Beriya and Others 1962 Volumte 4 SA page 514 EPDH 517 F – H and another one R v T 1953 Volume 2 SA 479. So the contents of Mr Barnard’s letters. Those are the issues. The first issue is when the Magistrate feels impartiality or enmity or anything indicating a motive which might astute him in dealing with a case. The contents of Mr Barnard have placed me in a difficult situation which leaves me with no option than probably recuse myself from this case. I am not only recusing myself from the case, I mean this case which is before Court today but any other possible cases represented by Mr Barnard or in which Mr Barnard has an interest. It appears that Section 304 sub 4 of Act 51/77 does not provide for the review of a case of a conviction which is not followed by a sentence. In this case no conviction, no sentence which came into play, but it will be up to the State to see how to proceed with this case de novo before another Magistrate. I have recused myself for justice to prevail.”
[5]
Unfortunately the letters being complained of by the magistrate written by Mr Barnard to her supervisor do not form part of the record. I therefore do not know what words were “uttered” in those letters. Neither does it appear from the record what “misunderstandings” existed between the Magistrate and Mr Barnard.
[6]
The Magistrate was aware of the judgment of this court in the matter of The State v Erastus Itope, review case number 947/2002, delivered on 16 July 2002. None of the grounds enumerated in that case existed in the present case. In her own words, the Magistrate had no issue or problem with the accused. The letters complained of written by Mr Barnard concerned the Magistrate and not the accused. Her reasons for believing that she would not be objective do not, in my view, constitute adequate grounds for her to recuse herself from hearing the matter. I cannot see the reason why the Magistrate would transpond the enmity she might harbour towards Mr Barnard to the accused. Her apprehension is appreciated but she should remind herself that as a judicial officer she must exercise restraint so that her feelings towards the legal representative of the accused should not influence her judgment in the accused’s matter.
[7]
It was held in the matter of Itope that section 304(4) of the Criminal Procedure Act does not make provision for unterminated proceedings to be reviewed, especially in a case where no grave injustice might otherwise result. On the record of the present matter no grave injustice is apparent.
See also:
State v Hans Werner Newaka, review case number 2087/2001, delivered on 11 September 2001
[8]
In the result the following order is made:
1.
The matter is not reviewable.
2.
The matter is remitted to the Magistrate to proceed with the hearing and finalise it.
_________________
ANGULA, A.J.
I concur.
_________________
MAINGA, J.