CASE
NO.: CR 34/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

JUSTIN
TJIVELA

(HIGH
COURT REVIEW CASE NO.: 725/2011)

LAZARUS
GAROEB

(HIGH
COURT REVIEW CASE NO.: 726/2011)

MAGDALENA
GERTZE

(HIGH
COURT REVIEW CASE NO.: 727/2011)

TITUS
KANTETU

(HIGH
COURT REVIEW CASE NO.: 728/2011)

CORAM: MULLER,
J et SWANEPOEL, J

Delivered
on: 13 April 2011

REVIEW
JUDGMENT

MULLER,
J.: [1] All four of the
abovementioned matters submitted for review were dealt with by the
same presiding magistrate and the same reviewable issues pertain to
all of them. They are consequently dealt with together in this
judgment.

[2] In
the light of the decision as set out hereunder and not to waste
anytime, I did not consider it necessary to first obtain the response
of the presiding magistrate before reviewing these matters.

[3] In
all four matters the offences that the respective accused were
charged with are offences that should not have been dealt with in
terms of S 112(1)(a) of the Criminal Procedure Act, no. 51 of 1977
(CPA). In three of the matters the particular offences are theft and
in the fourth the offence is possession of suspected stolen property.

[4] It is apparent from these and
several other matters submitted for review since the increase of the
penalties after promulgation of the Criminal Procedure Amendment Act,
no. 13 of 2010, that magistrates regard that increase as an easy way
to conduct trials on pleas of guilty according to the provisions of S
112(1)(a) of the CPA and to avoid the sometimes cumbersome process of
questioning in terms of S 112(1)(b) of the CPA.

[5] In S v Shakale Onesmus and
Others, an unreported judgment by Liebenberg J and Damaseb JP,
case no. CR 08/2011, delivered on 30 March 2011 the High Court has
thoroughly discussed this practice and provided clear guidance to
prosecutors and magistrates of how and when to apply the applicable
provisions of the CPA, as amended. Magistrates should take cognisance
of that judgment and follow it. A copy of that judgment is attached
hereto for the convenience of the magistrate.

[6] In the light of the abovementioned
decision, it is evident that the procedures followed by the
magistrate in all four of the abovementioned cases were not conducted
in accordance with justice and the convictions and sentences must be
set aside. The matters will be referred back to the magistrate to
deal with each of these cases after the plea of guilty. In the light
of the abovementioned judgment on S v Shikale Onesmus and Others
none of these matters ought to have been dealt with in terms of S
112(1)(a) of the CPA.

[7] In the result the following orders
are made:

1. 
   The convictions and sentences in all
   four of the above mentioned matters are set aside, and

   
   

2. 
   All four of the abovementioned
   matters are referred back to the magistrate in order to properly
   conduct the hearings in terms of the CPA and the provisions set out
   in S v Shikale Onesmus and Others.

   
   

____________

MULLER, J

I agree

______________

SWANEPOEL, J