CASE
NO.: CR 27/2011

NOT
REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

KALOLA
ILENI

HIGH
COURT REVIEW CASE NO.: 597/2010

CORAM:
HOFF, J et
UNENGU, AJ

Delivered
on: 1 April 2011

REVIEW
JUDGMENT

UENGU,
AJ: [1] The accused was charged with theft, convicted
and sentenced as follows:

“The accused
is sentenced to N$1000.00 (one thousand dollars) or in default of
payment to (10) ten months imprisonment. In addition 12 (twelve)
months imprisonment wholly suspended for 5 years on the following
conditions: (i) that accused is not convicted of theft committed
within the period of suspension; (ii) Accused restitutes, Ehafo
Stores, Omuthiya c/o Laban Shetunyenga in the sum of N$1 481.40
through the Clerk of the Court Ondangwa on or before 31.08.2011.”

[2]
When the matter was submitted before me on automatic review pursuant
to section 302 of the Criminal Procedure Act, 1977 (Act 51 of 1977),
I directed the following query to the presiding magistrate:

“1. Did the
learned magistrate ever explain the right to legal representation to
her ? If the answer is in the affirmative, where is that explanation
recorded on the record of proceedings ?

2. The request for
restitution by the prosecutor ex facie the record of
proceedings, was it made on the instructions of the complainant or
was it done from the mere submission for sentence ?”

[3]
The learned magistrate has duly complied and replied as follows:

“From the
record, in particular the annexure on legal representation, I concede
that it does not reflect the accused’s choice with respect to
legal representation. This is an error on my part and it is sincerely
regretted. As such I am of the view that the record of proceedings as
it appears is irregular. As for the learned Judge’s second
query, I ordered compensation from the mere fact that the prosecutor
submitted thus. I also relied on section 297 (1) (a) (i) which I
believe gives the sentencing Court discretion in this regard.”

[4]
The following proceedings were recorded by the presiding magistrate
before he questioned the accused in accordance with the provisions of
section 112 (1) (b) of the Act. I quote verbatim.

“On:
09.02.2011

Before:
………………..

PP: ………………..

Int: ………………..

Accused: In
Person

[Charge read]

Q. Do you
understand the charge ?

A. Yes.

Q. How do you
plead ?

A. Guilty”

[5]
(Names of court officials omitted).

After
questionings, the learned magistrate indicated that “Court
satisfied accd pleads guilty” and returned a verdict of “Guilty
as charged”.

[6]
From the record, nothing indicating that the accused was informed of
her right to legal representation and the entitlement to legal aid at
the Legal Aid Directorate in the Ministry of Justice. Similarly, the
accused also did not indicate to the court that she wished to conduct
her own defence.

[7]
In Namibia the duty of judicial officers to inform an unrepresented
accused is placed upon them by the Constitution in article 12 (1)
(e). It is an irregularity for a presiding officer not to inform an
unrepresented accused of his right to legal representation.

See
S v Kau and Others 1995 NR 1.

[8]
Further, it was stated in S v Kasanga 2006 (1) NR 348 that in order
for an accused to be given a fair trial as envisaged by article 12 of
the Namibian Constitution, an accused must be informed at the outset
of his right to legal representation and that he can approach the
Legal Aid Board for assistance.

(Emphasis
added).

[9]
I must mention that, in Namibia there is no Legal Aid Board but a
Legal Aid Directorate in the Ministry of Justice which is tasked with
a duty of providing legal assistance to indigent people who are not
in a position to afford legal practitioners of their own.

[10]
The learned magistrate conceded that the record does not reflect the
accused’s choice with regard to legal representation. This is
obvious because he never informed the accused of her right to legal
representation at the beginning of the trial.

The
failure to inform the unrepresented accused of her right to legal
representation was an irregularity which led to a failure of justice
in the matter. That being the case, the irregularity committed by the
magistrate vitiated the proceedings resulting in the accused not
having a fair trial. Therefore, the conviction in the matter, in my
view, cannot be allowed to stand.

[11]
There is still an issue of restitution awarded to complainant as a
condition of a suspended sentence, in terms of section 297 (1) (a)
(i) of the Criminal Procedure Act above

[12]
It is not wrong for a magistrate to order compensation to complainant
as a condition of a suspended sentence in terms of section 297 (1)
(a) of the Act. However, if the court considers the imposition of
such a condition as part of the punishment for a crime committed
against another’s property, it must, at the very least, conduct
an enquiry into the quantum of the loss suffered by the
injured party.

See
S v Petrus 2006 (1) NR 118 at 120 C – D

Maritz,
J (as he then was) continued and said the following in the S v
Petrus case supra:

“The
presiding officer must therefore inform the accused that the court
intends to enquire into the quantum of the loss and advise him or her
of the purpose of such enquiry. Any evidence adduced in that regard
must, in the absence of a
considered admission
by the accused of the quantum,
be subject to cross-examination by the accused and the accused should
also be afforded an opportunity to present evidence in that regard.”

(Emphasis
added).

[13]
In casu, such an enquiry was not done. A statement in the
following context was put to the accused to comment on:

“Q. The
complainant values all the property at N$1 480.00, what is your
comment to this ?

A. He is correct,
correct. I cannot dispute it.”

[14]
Can this comment by the accused qualify as “a considered
admission” as stated in S v Petrus supra ?

[15]
In my view, not. Even if the comment by the accused, under the
circumstances, is regarded as good enough to go through as a
considered admission of the loss suffered by complainant, still the
magistrate was wrong in awarding restitution in an amount higher then
the amount the accused conceded to be the correct value of the items
of complainant. The amount conceded by the accused is recorded as N$1
481.00 whereas the restitution order is for the amount of N$1 481.40.

[16]
Be that as it may. The issue is that the quantum of the loss
suffered by a complainant through the commission of a crime/offence
against him or her by another must be properly proved before
compensation is made in terms of section 300, or as a condition of a
suspended sentence in terms of section 297 (1) (a) of the Criminal
Procedure Act.

[17]
In this matter, due to the failure of the magistrate to explain the
accused his right to legal representation and to apply for legal aid,
the proceedings, in my view, do not appear to be in accordance with
justice.

[18]
Consequently, the conviction and sentence are set aside.

It
is further ordered, that if the accused has paid the whole N$1 481.40
or part thereof to the complainant, in compliance of the suspended
sentence, that the amount paid, be refunded to the accused on or
before 31.08.2011 through the Clerk of the Court of the Ondangwa
Magistrate’s Court.

_____________

UNENGU,
AJ

I
concur

_________

HOFF,
J