S v Mapwaya (CRIMINAL 19 of 2011) [2011] NAHC 63 (04 March 2011);
CASE
NO.: CR 19/2011
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
and
MAPWAYA
ALSON
(HIGH
COURT REVIEW CASE NO.: 54/2011)
CORAM: HOFF,
J et
MULLER,
J
Delivered
on: 4
March 2011
REVIEW
JUDGMENT
MULLER,
J.:
[1]
Although the accused pleaded guilty to the statutory offence of
contravening S 56(d) of the Immigration Control Act, no 7 of 1995 the
Magistrate failed to establish the citizenship of the accused.
Despite that failure he was convicted and sentenced.
[2]
I addressed the following query to the Magistrate:
"Is
S 56(d) applicable in respect of Namibian citizens? No question was
asked, or admission made by the accused, to the effect that he is a
citizen of another country. Has all the elements of the charge been
proved?
[3]
In reply the Magistrate responded as follows:
"I
concede, I erred by failing to canvass the element as to the
citizenship of the accused. This is an oversight on my part which is
sincerely regretted. This means that an important essential element
was not proved. I therefore place the record before the learned
judge for the necessary remedial action be taken."
[4]
An essential element of the offence had neither been proved nor
admitted by the accused. A similar failure occurred in S v
Julius Mbele, case
no. 4/2011 delivered on 1 February 2011.
[5]
The conviction has to be set aside. However, because it is not
practical to refer the matter back tot he Magistrate to properly
question the accused in terms of S 112(1)(b) of the Criminal
Procedure Act no. 51 of 1977, the same order is made as in that
case.
[6]
In the result the following order is made:
The
conviction and sentence of the accused is set aside.
If
the accused paid the fine imposed, it should be refunded to him.
MULLER,
J
I
agree
HOFF,
J