Court name
High Court
Case number
CA 41 of 2009
Title

S v Useb (3) (CA 41 of 2009) [2010] NAHC 188 (12 November 2010);

Media neutral citation
[2010] NAHC 188



 

CASE NO. CA41/2009

NOT REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

 

GIDEON USEB …......................................................................................................................APPELLANT

 

and

 

THE STATE …........................................................................................................................RESPONDENT

 

CORAM: HOFF, J et NDAUENDAPO, J

 

Heard on : 12 November 2010

Delivered on: 12 November 2010 (Ex tempore)

 

 

 

APPEAL JUDGMENT

 

 

HOFF, J: [1] The appellant in this matter was convicted in the Regional Court on a charge of rape and he was sentenced to 15 years imprisonment. It is common cause that the charge sheet and the cassette on which the proceedings were recorded in the Court a quo went missing. Furthermore, the presiding officer as well as the prosecutor in the Court a quo, have left the services of the State and the record can not be reconstructed.

 

 

[2] It is trite law that in these circumstances, the conviction as well as the sentence cannot stand.

 

 

 

[3] In the result, this Court makes the following Orders:

1. The conviction and the sentence are set aside.

2. The Prosecutor General has the prerogative to institute criminal proceedings against the appellant afresh if she so wishes.

 

 

 

 

HOFF, J:

 

 

 

 

I agree

 

 

 

 

 

NDAUENDAPO, J

 

ON BEHALF OF THE APPELLANT: MR VAN VUUREN

 

 

 

Instructed by: KRUGER, VAN VUUREN & CO.

 

 

 

ON BEHALF OF THE RESPONDENT: ADV. NYONI

 

 

Instructed by: OFFICE OF THE PROSECUTOR GENERAL