CASE NO.: CR
34/2011

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

(1) AGILES EFRAIM ASINO

(2) SHILONGO MAGHADHI

(HIGH COURT REVIEW CASE NO.:
281/2011)

CORAM: LIEBENBERG,
J. et TOMMASI, J.

Delivered on: 18 November 2011

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] This review came before me in terms of s 304 (4) of the
Criminal Procedure Act, 1977¹
and was sent by the magistrate of Outapi on review when realising
after the trial had commenced and the evidence of the first witness
was already led by the State, that accused no 2 never pleaded to the
charge.

[2] Proceedings
were stopped and, despite the magistrate’s direction already
given on 19 May 2010 that the matter had to be sent on review, the
magistrate, in a letter dated 30 August 2011 (more than a year
later!), explains that the Clerk of the Court failed to forward the
record to this Court. The magistrate explains that she was under the
impression that the case had been sent as directed; but, had that
been the case, then she must have realised that her reasons had to
accompany the record and that it could not have been sent without
reasons explaining the need to have the proceedings reviewed –
more so, when the matter again came before the same magistrate four
months later.

[3] I pause here
to observe that accused no 1 already pleaded to a charge of
housebreaking with intent to steal and theft on 20 April 2007,
whereafter the case was postponed at the instance of the prosecution
twenty
times over a period of more than three
years
before the first witness testified! I have no doubt that the
irregularity which arose in this case came as a direct consequence of
numerous postponements over a long period of time and that both the
public prosecutor and the magistrate, in the process simply lost
track of the proceedings as a result thereof. This underscores the
need and importance for magistrates to see to it that cases are not
unnecessarily and without good reason postponed – particularly
not over such a long period of time. Under the Namibian Constitution
an accused is guaranteed a fair trial and which must take place
within a reasonable time; failing which the accused must be
released.²
The courts are obliged to uphold the Constitution and when dealing
with unrepresented and apparently unsophisticated accused, the duty
to protect such accused becomes even more compelling. It seems to me
that, irrespective of the outcome of subsequent proceedings, and
whether or not the accused persons were released on warning, that it
cannot be said that they up to now were given a fair trial as
envisaged in the Constitution. In the light thereof, the prosecuting
authority should give serious consideration in bringing an end to the
case against the accused persons, without pursuing a trial.

[4] From the
record of the last proceedings held on 13 September 2010, it would
appear that the accused persons were released on their own
cognisance, pending the outcome of the review. Whether that is still
their position, is unknown.

[5] Section 304
(4) of the Criminal Procedure Act provides for review proceedings in
circumstances where it has come to the attention of the Court or a
judge thereof, that the proceedings in which sentence
was imposed,
were not in accordance with justice; in which instance the Court or
judge shall have the same powers in respect thereof as if the record
had been laid before such Court or judge in terms of s. 303 of the
Act. Because sections 302, 303 and 304 (4) only provide for cases to
be sent on review after
sentence
has been imposed, this created a problem in cases where a magistrate,
who was of the view that the proceedings or a conviction was not in
accordance with justice or not justified, was nevertheless obliged to
impose sentence before the case could be sent on review in terms of
the sections referred to above. The present review is a case on
point. Unlike South Africa, the Criminal Procedure Act has not been
amended in this jurisdiction by the insertion of s. 304A³,
which provides for the review of proceedings before
sentence.

[6] This Court in
S
v Immanuel⁴
on
the reviewing powers of the Court in terms of s. 304 (4) said the
following at 328B-D:

“Firstly,
the proceedings in this case are not reviewable in terms of s 304(4)
of the Criminal Procedure Act 51 of 1977 (the Act) on the ground
that the accused has not been convicted. In other words, where a
conviction has not been entered (or where a conviction had been
entered but is not followed by sentence), the provisions of s 304(4)
of the Act are not available. Secondly, although this court has
inherent power to curb irregularities in magistrates' courts by
interfering (through review) with unterminated proceedings emanating
therefrom, such as the present proceedings, it
will only exercise that
power in rare instances of material irregularities where grave
injustice might
otherwise result, or where justice might not be attained by other
means. See
S v Burns and Another 1988 (3) SA 366 (C) at 367H; Ismail and Others
v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) at 5G
- 6A.”

(emphasis provided)

See also S
v Handukene⁵
where
the accused was tried and convicted on a charge of rape in the
Magistrate’s Court without that court having the required
jurisdiction under the Magistrates’ Courts Act 32 of 1944, to
hear the case. When the matter was remitted for sentence to the
Regional Court for sentence, the magistrate noticed the irregularity
and without sentencing, sent the matter on special review. On review
it was found that the proceedings were conducted without any
jurisdictional basis and that the entire proceedings were irregular
and null and void. Appreciative that the proceedings could not be
reviewed in terms of s. 304 (4) of the Act, as sentence was not
passed, the Court said the following at p. 607I-608A:

“[5]
This cannot be done by review in terms of s 304(4) of the Act, as
this section requires that there must have been a sentence imposed
in the magistrate's court. However, it would be untenable to refer
the matter back to the regional magistrate to first sentence the
accused while knowing that the original proceedings upon which the
sentence is based, are a nullity. In terms of s 20(1)(a) of the High
Court Act 16 of 1990, this court may review the proceedings of a
lower court on the grounds that that court had no jurisdiction to
conduct those proceedings, as is the case here. Although the correct
procedure has not been followed in terms of the Rules of the High
Court, this court may regulate its own procedure. There can be no
good purpose served by referring the matter back merely for the
rules to be followed. This will only prejudice the accused in whose
interests it is that this matter be dealt with as expeditiously as
possible.”

[7] Although the
trial court in the present instance has the required jurisdiction to
try the matter, it committed an irregularity by commencing with trial
proceedings against accused no 2 without him having pleaded to the
charge. Section 105 of the Act⁶
in peremptory terms states that the charge shall
be put to the accused by the prosecutor before
the trial is commenced, which was not done in respect of the second
accused. A gross irregularity was committed by the trial court in
this regard, which, undoubtedly, vitiates the entire proceedings –
even if the case were run its full course up to the stage of
sentence. This Court in terms of s. 20 (1)(c) of the High Court Act
16 of 1990 may review the proceedings on the grounds that a gross
irregularity was committed in the proceedings held in the
Magistrate’s Court and, in my view, this case falls in the
category of cases where grave injustice would result if the trial
were to proceed; and where justice cannot be attained by any other
means. Even though the requirements of s. 304 (4) have not been
satisfied in that the proceedings are not terminated, it would be in
the interest of justice to have this matter be dealt with as
expeditiously as possible.

[8] The
non-availability of magistrate Iyambo, who originally presided over
the case and who, in the mean time, has been appointed as the
magistrate of Opuwo, would adversely impact on the continued
proceedings hereafter. In the light thereof, proceedings should
continue before the magistrate(s) sitting at Outapi in terms of s.
118 of the Act. Admissions made by accused no 1 during the s. 112
(1)(b) questioning does not constitute “evidence”⁷;
accordingly, it is not improper for one magistrate to take down the
plea and conduct questioning in terms of s. 112 and record a plea of
not guilty in terms of s. 113, and thereafter, due to the
unavailability of that magistrate, for a second magistrate to oversee
the trial. What is required in such instance is for the record to
reflect that the magistrate, originally seized with the matter, is
not available.

[9] In the
result, it is ordered:

1. 
   The proceedings of 19 May 2010, held
   in the Magistrate’s Court Outapi, are hereby set aside.

   
   

2. 
   The plea of accused no 1 remains
   standing and the matter is remitted to the Magistrate’s Court
   Outapi for continuation.

   
   

3. 
   In the absence of the magistrate
   originally seized with the matter, the provisions of s. 118 of Act
   51 of 1977 must be invoked.
   

   
   

__________________________

LIEBENBERG, J

I concur.

__________________________

TOMMASI, J