CASE NO.: CA 16/08

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

ANDREAS IIPUMBU APPELLANT

and

THE STATE RESPONDENT

Coram: LIEBENBERG, AJ et SHIVUTE, AJ

Heard on: 06 March 2009

Delivered on: 06 March 2009

Reasons: 16 March 2009

APPEAL JUDGMENT

LIEBENBERG, AJ: [1] Appellant appeared in the Oshakati Magistrate’s Court on several charges in contravention of different sections of the Abuse of Dependence- Producing Substances and Rehabilitation Centres Act, 1971 (Act 41 of 1971)(the Act). It is not clear from the two annexures in which the main and alternative charges were drawn, which of these charges were put to the accused when he was asked to plead as the accused pleaded to only one count i.e. the “main count.” He pleaded not guilty and after evidence was led, appellant was convicted on 18 October 2007 of “both main charge and alternative count” and sentenced to 5 years imprisonment on the main count and 4 years imprisonment on the alternative count. The court ordered the sentences to run concurrently.

Appellant in the court a quo conducted his own defence. Subsequent to the proceedings of 18 October 2007, appellant was admitted to bail in that court on 7 November 2007.

[2] A Notice of Appeal was filed on 6 November 2007 setting out the grounds of appeal. These are:

1.”Ad Conviction

1. The learned Magistrate grossly misdirected himself by convicting the Appellant of both the main and the alternative charge.

2. The learned Magistrate misdirected himself on the law when he concluded that the evidence of the two state witnesses was corroborative of each other.

3. The learned Magistrate failed to appreciate that the substances produced before the court were not proved to be cannabis and/or mandrax.

4. The learned Magistrate erred in law by accepting in evidence the testimony of Constable Paulus Johannes Co(e)tzee that Appellant was selling drugs to school children when such evidence amounted to hearsay.

5. The learned Magistrate grossly misdirected himself in concluding on the fact that the state had proved its case beyond reasonable doubt.

2. Ad Sentence

f.……………….”

For purposes of this judgment it is not necessary to deal with the grounds of appeal relating to sentence.

[3] The appeal was argued before us on 6 March 2009 with Miss Kishi appearing for the appellant and Mr Lisulo for the respondent. At the conclusion of oral arguments by counsel, the Court upheld the appeal and set aside both the convictions and sentences imposed by the court a quo. What follows are the reasons for the Court’s judgment:

[4] Two annexures containing the charges preferred against appellant form part of the record of proceedings of the trial court. In the first annexure the appellant was charged with dealing in dagga (contravening section 2(a) Act 41 of 1971) alternatively, for possession or use of dagga (contravening section 2(b) Act 41 of 1971). These charges involve 594 grams of dagga.

In the second annexure appellant was charged with dealing in a potentially dangerous dependence-producing drug (contravening section 3(a) Act 41 of 1971) alternatively, for possession or use of a potentially dangerous dependence-producing drug (contravening section 3(b) Act 41 of 1971). The drugs referred to in these charges are “two and a half pieces of mandrax tablets and 594 grams of pure cannabis.”

[5] Mr Lisulo drew the Court’s attention to the fact that appellant was wrongly charged under section 3 which deals with potentially dangerous dependence-producing drugs as set out in the Schedule under Part III (Potentially Dangerous Dependence-Producing Drugs) in the Act. Neither cannabis nor mandrax are listed under Part III. He submitted that appellant should have been charged under section 2 of the Act.

[6] The submissions are correctly made, for section 2 prohibits any dealing in, use or possession of prohibited or dangerous dependence-producing drugs. Cannabis (dagga) is listed under Part I (Prohibited Dependence-Producing Drugs) while Methaqualone is listed under Part II (Dangerous Dependence-Producing Drugs). The word “Mandrax” does not appear under Part II and prosecutors should refrain from referring thereto as if it is a dangerous dependence-producing drug. What is prohibited is the drug called Mathaqualone and where an accused is charged with dealing in, use or being in possession of mandrax, the onus is on the State to prove that what the accused was dealing in, used or had in his possession, contained Methaqualone. Ordinarily, this will require scientific evidence.

[7] In the present case such evidence is lacking and if the magistrate intended convicting the accused for being in possession of the prohibited drug Methaqualone, then there was no basis to come to such a finding. Because the magistrate did not give reasons for convicting the accused on either of the two charges, it seems impossible for this Court to follow the reasoning behind the court a quo’s decision to convict. With respect, from the record it appears that the magistrate himself was uncertain of the charge(s) on which the appellant pleaded and on which he eventually convicted the appellant. This is evident from the following:

Despite having convicted the appellant on two charges, the record reflects that only one charge was put to him to which he pleaded ‘not guilty’. Although the handwritten record reflects the words “Alternative Count”, no plea was recorded in respect thereof. The charge put to the appellant and to which he pleaded is unknown, as it could either have been from the annexure containing charges under section 2 or the annexure containing charges under section 3 of the Act, the latter being defective.

In a letter dated 18 October 2007 (the day the matter was finalised) the magistrate addressed a letter to the Registrar which reads as follows:

“OFFENCE: 1. DEALING IN MANDRAX CONTRAVENTION SECTION

2(C) OF ACT 4/1971

2. DEALING OR POSSESSION OF CANNABIS

Accused pleaded not guilty to both the main charge as well as alternative charge.

Two (2) witnesses were called. Both witnesses testified that accd sold 4x cannabis to the value of N$ 20-00. Each cannabis cost N$ 5-00. Accd in his defence denied having sell or possess dagga/cannabis neither deal or possess mandrax.

At the end of the day accused was convicted of both main count and the alternative. Accused was sentence on main count 5 years imprisonment and 4 years on alternative. The court then realised shortly after adjournment that it is impossible to convict accused on both main charge and at the same time alternative.

It is therefore an appeal that the alternative charge be set aside and that the main count on both conviction and sentence stand.”(sic)

Despite the date appearing on the letter being 18 October 2007, a date stamp of the Office of the Criminal Court Oshakati, dated 21 November 2007 appears at the bottom thereof. A duplicate of this letter bearing the same date also forms part of the appeal record, except that the second letter now bears a different signature of the magistrate and a date stamp dated 9 June 2008 of the Magistrate Oshakati. There is nothing in the record that explains why the letter was re-issued and neither is there any proof that it was indeed sent to the Registrar.

What is clear from both these letters written by the trial magistrate is that the offences referred to in both, for which the appellant was convicted, are incorrect. In count 1 it refers to a contravention of section 2(C) of Act 41 of 1971 (Dealing in Mandrax), for which appellant was never charged and in count 2 it refers to ‘dealing or possession of cannabis’. It became even more confusing when the magistrate in a letter dated 17 April 2008, addressed to the Registrar in response to a query directed to him by Mainga J, referred to the offences on which appellant was convicted as follows:

“OFFENCE: ACCD IS CHARGED WITH TWO (2) COUNTS OF TWO (2)

MAIN CHARGED i.e.

COUNT 1 DEALING IN DAGGA AND ALTERNATIVE POSSESSION

OR USE OF DAGGA

COUNT 2 DEALING IN MANDRAX ALTERNTIVE POSSESSION OF

MANDRAX”

The magistrate explained the convictions in the following terms:

“Accused pleaded not guilty to both main counts as well as their alternatives.

The main charges are different from each other as well as their alternatives. The 6 grams were no included in 594 and that is why accused was found guilty of dealing of 6 grams. Dagga are sold to school children.

The convictions are not put together of both main charges and alternative.”(sic)

Not only do I find the magistrate’s explanation incomprehensible, but also contradictory with the record as well as the explanation he had earlier given in his letter dated 18 October 2007. It is evident that the magistrate has neither any idea on which charge(s) the appellant pleaded, nor on which of these was he convicted.

[8] Whereas the appellant was undefended at the trial he undoubtedly must have been prejudiced by the confusion that existed during the trial and which even continued thereafter. No judgment was delivered in which reasons were given for convicting the appellant and on which offences. How could the appellant have defended himself properly if he could not have known what the actual charges against him were or mitigate if he did not know what he was convicted of? This is a serious misdirection on the part of the magistrate, constituting an irregularity which amounts to a failure of justice and therefore vitiates the proceedings. Whatever the charges were on which the magistrate convicted the appellant and the sentences that followed, it cannot be allowed to stand and has to be set aside for the reasons given.

[9] Having come to the conclusion as we did, there is no need for considering the merits of the appeal, however in the light of the submissions made before us, it seems necessary to refer to some of the misdirections committed by the magistrate during the trial. These were succinctly dealt with by Mr Lisulo and the Court wishes to express its appreciation towards him for the valuable submissions he has made and thereby underscoring the need to uphold the appeal in the interest of justice.

There is no evidence that the appellant was either found in possession or dealing in the prohibited dependence-producing drug called Methaqualone; during cross-examination of the appellant he was asked by the State prosecutor whether he had ever before been convicted in Namibia to which he applied in the affirmative. The magistrate, without interfering, allowed the question plus three more, all dealing with the appellant’s previous conviction. Inadmissible hearsay evidence was admitted and relied upon by the magistrate in his reasons for sentencing i.e. that dagga was sold to school children by the appellant; serious incriminating evidence against the appellant was received without a proper basis having been laid to do so.

The impact of the misdirections committed by the magistrate, especially when deciding a case involving an unrepresented accused, is serious and given the elementary nature thereof, amounts to a travesty of justice.

[10] A matter of grave concern to this Court is that after the case record was sent on review to the High Court on 20 November 2007 Mainga, J returned it to the Magistrate’s Court Oshakati on 12 December 2007 directing a query to the magistrate regarding the confusing charges preferred against the accused/appellant and to explain on which charge(s) he was convicted. From a letter addressed to the magistrate by the clerk of court dated 16 April 2008 the following appears:

“RE: REVIEW CASE OF ANDREAS IIPUMBU

Magistrate refuses to take the case of Andreas Iipumbu to respond on the queries from the High Court because the case was given late to him by the clerk of the criminal court. The reasons why it was given late to him are as follows:

• When the case was received back from the High Court, Mr Kanime was still on leave.

• It was accidentally filed with the cases which is still waiting for the transcriptions from Compuneeds and therefore couldn’t be found for a while.

When the case was found the clerk of the court took it to the Magistrate, Mr Kanime, but he refused to take it and requested a letter to be written why the case was late.

I therefore hope the reasons given why the review case of Andreas Iipumbu was late is acceptable.” (My underlining)

It is not clear for how long after the magistrate had returned from leave did the query remain misfiled or the time lapse between the magistrate being given the query but refusing to take it, and the 16^th of April 2007 when the clerk submitted the explanation to the magistrate as requested. Although the magistrate cannot be faulted for requesting an explanation for the unnecessary delay in submitting the query to him, I view the magistrate’s refusal to deal with the query unless an explanation for the delay was provided, not only to be a dereliction of duty on the part of the magistrate, but also a deliberate obstruction of justice namely, the review process.

[11] From what has been said in this judgment concerning the manner in which the magistrate conducted himself as an official of the court, it begs the question whether he is at all fit to hold that position? We shall fail in our duty if this judgment is not brought to the attention of the Magistrates’ Commission.

[12] For the reasons set out above, the Court upheld the appeal against conviction and sentence and gave effect thereto in the order made on the 6^th of March 2009.

[13] The Registrar is directed to forward a copy of the judgment to the Chairperson of the Magistrates’ Commission.

________________________

LIEBENBERG, AJ

I concur.

_________________________

SHIVUTE, AJ

ON BEHALF OF THE STATE Adv. D. Lisulo

Instructed by: Office of the Prosecutor-General

ON BEHALF OF DEFENCE Ms. F.Kishi

Instructed by: Kishi Legal Practitioners