CASE
NO.: CR 15/2012
IN
THE HIGH COURT OF NAMIBIA
NORTHERN
LOCAL DIVISION
HELD
AT OSHAKATI
In
the matter between:
THE
STATE
versus
GORDON
MUVANGUA
PAULUS
TJIRUNGU
(HIGH
COURT REVIEW CASE NO.:152/2010 )
CORAM: Liebenberg
J et Tommasi, J
DELIVERED
ON: 18 April 2012
REVIEW
JUDGMENT
TOMMASI J [1]
This matter was sent for review from the district court of Opuwo.
The two accused were charged with having contravened section 26(1)
of Ordinance 4 of 1975 (hunting of specially protected game).
[2] The particulars of the
charge were that the two accused had wrongfully and unlawfully hunted
protected game (which is an offence in terms of section 27
of Ordinance 4 of 1975), to wit an oryx (which falls under the
category of huntable game), without a permit on 17 February
2010 at or near Palmfontein.
[3] Both accused pleaded guilty
but pleas of not guilty were entered in respect of both accused who
denied that they had hunted the oryx. During questioning by the
magistrate in terms of section 112(1)(b) accused 1 admitted that they
were found skinning an oryx. Accused 2 admitted that he was found in
possession of oryx meat. Both accused denied having killed the oryx.
The accused thus disputed that they hunted the oryx and the State
bore the burden of proving same.
[4] The State called Ferdinand
Tourob, an employee of the Ministry of Environment and Tourism. He
testified that he received a report that two persons had hunted an
oryx. He found the accused in a vehicle with other persons. He took
the accused and the carcass to the police station. He testified that
he asked the accused why they had killed the oryx and they informed
him that they were hungry. He further testified that the accused
pointed out where the oryx was killed and told him that they had used
a dog to hunt. He found a dog killed by an oryx at the scene. He
estimated the value of the oryx to be N$1500.00. He asked the two
accused if they had “a permit allowing them to hunt without
a permit (sic).” He did not say how the accused responded
to this question.
[5] All indications are that
this witness was employed as a nature conservator appointed in terms
of section 79 of the Nature Conservation Ordinance, 4 of 1975
although it was not expressly stated by the witness. Nature
conservators are given wide powers
to inter alia,
investigate, search and seize game without a warrant and have all the
powers of a peace officer to arrest any person without warrant.
They are peace officers
albeit limited in respect of the area of jurisdiction, offences and
powers. There is no reason why these officers should not as a rule
show their appointment certificates when arresting a suspect, warn
the suspect in accordance with the Judge’s Rules and inform
him/her of his/her constitutional right not to incriminate
him/herself and of his/her right to legal representation.
[6] In this instance it however
appears that the accused was questioned by Sgt Shigweda who
interpreted what the accused were saying. When cross-examined by
accused 2 he testified as follow:
“When we were talking
with you I have Sgt Shigwedha who was talking Otjiherero and
Oshiwambo and he is the one who accompanied as he knows the two
languages.”
Accused 2 pertinently put it to
this witness that they never spoke to him. These admissions, if made
to this witness, would be inadmissible for the same reasons set out
hereunder.
[7] Sgt Shighweda testified
that the employees of the Ministry of Environment and Tourism brought
two suspects who were found with a carcass. He asked them their
names which they gave. He then asked them if they had knowledge of
the carcass and the accused admitted that they were found in
possession of the carcass and that they killed “it”.
The accused informed them that a dog was killed and they were asked
to direct the police to the place where the dog was killed. The next
day Sgt Shigweda, the two accused and the employees from the Ministry
of Environment and Tourism drove to the place where they found a
head, skin, intestines and a dog which was killed by an Oryx. He
asked the accused who the dog belonged to and the accused informed
him that it belonged to a person who resides with accused 2.
[8] The accused did not testify
and were convicted as charged i.e. of having contravened section
26(1) and sentenced to pay a fine of “N$1600.00
of which N$1000.00 or 10 months were suspended for a period of three
years on condition that the accused is not convicted of contravening
section 26(1) of Ordinance 4 of 1976 as amended committed during the
period of suspension”.
[9] This matter would not have
been reviewable in the ordinary cause in terms of section 302
as no imprisonment was imposed by the magistrate due to an oversight.
The magistrate submitted the matter for review with a letter
attached thereto pointing out errors made in the charge, the
conviction and sentence.
[10] She pointed out that the
accused were erroneously charged and consequently convicted of having
contravened section 26(1) (hunting of specially protected game) of
Ordinance 4 of 1975 whereas they should have been charged and
convicted of having contravened section 30(1)(hunting of huntable
game) of the same ordinance. An oryx, as correctly pointed out by
the magistrate, is defined in Ordinance 4 of 1975 as huntable game
and not specially protected game. This however is not the only error
as the particulars reflect that the accused had hunted protected
game.
[11] In S v KARENGA 2007 (1)
NR 135 (HC) Parker J at page 136 para [6] concluded that Courts
of appeal and review are competent to amend charge-sheets if the
accused person could not possibly be prejudiced by it. It was not
disputed by the accused that they were found with the carcass of an
oryx and they would not have conducted their defense any differently
had they been charged with having contravened section 30(1). However
a further vitiating irregularity occurred which is dealt with
hereunder.
[12] The magistrate further
indicated that she intended imposing an alternative sentence of 16
months imprisonment which she omitted to record and requested this
Court to correct the sentence of the accused. I assume that she
intended for this matter to be reviewed in terms of the provisions of
section 304(4).
[13] The evidence against the
accused consists of admissions made to the employee of the Ministry
of Environment and Tourism, Ferdinand Tourob and/or to Sgt Shigweda,
the pointing out of the place and the admissions they made when
questioned in terms of section 112(1)(b). The magistrate accepted
evidence of Ferdinand Tourob and Sgt Shigweda to prove that the
accused had hunted the oryx.
[14 At the time the accused was
brought to Sgt Shigwheda, they were considered suspects. He failed
to warn the accused in terms of the Judge’s Rules before
questioning the accused. The accused furthermore were not informed of
their constitutional rights i.e. not to incriminate themselves and
their right to legal representation. The accused were hereafter held
in custody and requested to do a pointing out without being informed
of their rights enshrined in the Constitution. The admissions and
the evidence of pointing out were therefore inadmissible and the
magistrate erred by admitting same into evidence.
[15] Non compliance per se
does not vitiate the proceedings and the Court will only set aside a
conviction if a failure of justice has occurred. In S V SHIKUNGA
1997 NR 156 (SC) (1997 (2) SACR 470) at 171B - D (NR) and 484 d -
f) (SACR) the following was stated:
“Essentially
the question that one is asking in respect of constitutional and
non-constitutional irregularities is whether the verdict has been
tainted by such irregularity. Where this question is answered in the
negative the verdict should stand. What one is doing is attempting to
balance two equally compelling claims - the claim that society has
that a guilty person should be convicted, and the claim that the
integrity of the judicial process should be upheld. Where the
irregularity is of a fundamental nature and where the irregularity,
though less fundamental, taints the conviction the latter interest
prevails. Where however the irregularity is such that it is not of a
fundamental nature and it does not taint the verdict the former
interest prevails. This does not detract from the caution which a
court of appeal would ordinarily adopt in accepting the submission
that a clearly established constitutional irregularity did not
prejudice the accused in any way or taint the conviction which
followed thereupon.”
[16] The accused were
unrepresented and from the record it is apparent that they lacked the
necessary knowledge to challenge the admissibility of the admissions
and pointing out. The magistrate failed in this regard to assist the
accused.
[17] The evidence aliunde
the inadmissible admissions and pointing out does not support a
conviction on the charge of which hunting is an element. It would
however support a conviction of having contravened section 50(1) of
Ordinance 4 of 1975 which reads as follow:
“Subject
to the provisions of subsection (2) no person other than the owner or
lessee of land on which any game is found dead shall remove such game
or any part thereof from the place where it is found dead, unless it
was killed in accordance with the provisions of this Ordinance by the
person removing it.”
[18] In terms of section
304(2)(iv) the Court is authorized to generally give such judgment as
the magistrate's court ought to have given. The two accused were not
charged with this offence as an alternative and the only option is to
consider whether the magistrate would ought to have convicted the
accused of having contravened s50(1)
by invoking the provisions of section 270.
The latter section authorises the conviction of an accused of an
offence which by reason of the essential elements thereof is included
in the offence with which he is charged if the evidence adduced in
support of such charge does not prove the commission of the offence
so charged.
The elements of these two offences differ materially and this Court
therefore cannot convict the accused of the offence which has been
proven herein.
[19] Given the above, the
conviction herein cannot be allowed to stand
[20] In the result the
following order is made:
1. The conviction and sentence
are set aside.
______________________
Tommasi J
I concur
_____________________________
Liebenberg J
S v Muvangua (CR 15/2012 ) [2012] NAHC 109 (18 April 2012);