CASE NO.: CR 63/2012

REPORTABLE

IN THE HIGH COURT OF NAMIBIA

MAIN DIVISION, HELD AT
WINDHOEK

In the matter between:

THE STATE

and

CHRIS BENHARDUS HOABEB

HIGH
COURT REVIEW CASE NO.: 1305/2012

CORAM: HOFF, J et
MILLER, AJ

Delivered on: 18 July 2012

SPECIAL
REVIEW JUDGMENT

HOFF,
J: [1] This unterminated matter was sent on special
review in terms of the provisions of section 304(4) of the Criminal
Procedure Act, 51 of 1977 by the control magistrate, Windhoek.

[2] The accused first appeared
in the magistrate’s court for the district of Windhoek on 16
July 2003. The matter was postponed no less than ten times when the
accused appeared in court represented by his legal representative, Mr
Von Wielligh, his third legal representative. On 5 June 2006 the
accused pleaded guilty to a contravention of the provisions of
section 21(1)(c) of the Legal Practitioners Act, 15 of 1995. This
section stipulates that a person who is not enrolled as a legal
practitioner shall not issue out any summons or process or commence,
carry on, or defend any action, suit or other proceedings in any
court of law in the name of or on behalf of any other person except
in so far as it is authorised by any other law. The accused admitted
that he had wrongfully and unlawfully issued out process and carried
on with an action in the High Court of Namibia on behalf of another
person by drafting and signing an application for rescission of
judgment and the accompanying affidavit and thereafter served the
documentation on the Registrar of the High Court and on opposing
counsel. The accused acknowledged knowledge of the wrongfulness of
his actions at the relevant times. The accused was hereafter
convicted of contravening section 21(1)(c) of Act 15 of 1995. After
the court had heard arguments in mitigation of sentence the matter
was postponed to 30 June 2006 by the magistrate in order to consider
an appropriate sentence.

[3] On 30 June 2006 the accused
appeared in person due to the fact that Mr Von Wielligh had filed a
notice of withdrawal. The accused informed the court that he had
obtained the services of another legal practitioner Mr A Louw. The
case was remanded until 24 August 2006 for purpose of sentencing. On
24 August 2006 the accused was absent. The presiding magistrate was
Mr Kanime. The case was remanded to 13 October 2006 in the presence
of Mr A Louw. On 13 October 2006 both the accused and Mr Louw were
absent. A warrant of arrest was issued for the accused to be held
over until 15 November 2006. On 15 November 2006 both the accused and
Mr Louw were present. The presiding magistrate was Mr Jacobs.

The matter was remanded until 16
February 2007. On 16 February 2007 the accused appeared before
magistrate Ms C Claasen. The matter was postponed to 10 April 2007.
The accused appeared in person. On 10 April 2007 Mr Louw was present
and the case was postponed to 8 May 2007. The record reflects that
the presiding magistrate was Mr Jacobs. On 8 May 2007 magistrate
Jacobs presided. The matter was postponed to 28 May 2007. On 28 May
2007 magistrate Mahalie presided. The record reflects that Mr Louw
was busy in A-court. The case was postponed to 30 May 2007 for
purpose of sentencing. On 30 May 2007 Mr Louw informed the court that
he received instructions to ask that the conviction of the accused be
set aside in terms of the provisions of section 113 of Act 51 of
1977. Mr Louw informed the magistrate that he had read the record of
the proceedings when Mr Von Wielligh appeared on behalf of the
accused person. Mr Louw stated that on that date Mr Von Wielligh
requested a postponement “for a second opinion” which
postponement was refused by the court. Mr Louw stated further that
the only inference to be drawn from the fact that the accused asked
for a postponement and a second opinion was that there was in fact at
that stage a difference of opinion between the accused and his legal
representative. Mr Louw submitted that the magistrate “ought to
have granted a postponement so as to enable the accused to make sure
that he is satisfied with the advice of his lawyer”. Mr Louw
informed the magistrate that she may set aside “the plea of
guilty” and order that the case start de novo.

[4] I have perused the record of
the proceedings on 5 June 2006 but was unable to detect any portion
in which Mr Von Wielligh had requested a postponement in order to
obtain a second opinion.

[5] It appears from the record
that on that particular day the prosecutor informed the court that
there were four charges against the accused and that the State was
withdrawing three of those charges. The record further reflects that
a statement in terms of section 112(2) of Act 51 of 1977 which was
signed by the accused person was read into the record. The accused
confirmed the correctness of the contents of the statement and that
he signed it. In the second paragraph of the statement the accused
stated the following:

“I make the statement out of my own free will
without being forced or persuaded by any person to do so.”

[6] The following finding of the
magistrate appears from the record:

“I am satisfied that accused person admitted all
the elements of contravening section 21(1)(c) read with section 21(2)
of the Legal Practitioner’s act (Act 15 of 1995). That is that
he wrongfully and unlawfully issued out processes and carried on with
actions in the High Court of Namibia on behalf of another person and
find him guilty and convict him accordingly.”

[7] Having regard to the record
of the proceedings I must confess that I am at a loss on what basis
Mr Louw could have submitted that the only inference to be drawn was
in fact that there was a difference of opinion between the accused
and his lawyer.

[8] Nevertheless, the magistrate
agreed that she had refused a postponement on the basis that a second
opinion had been sought by the accused person. The magistrate stated
that the request for a postponement had at that stage been refused
because there had been several requests for postponement by the
accused person. The record reflects that the magistrate stated the
following:

“I can see that there was a problem between the
accused person and his previous legal representative. I, therefore in
the interest of justice change the plea and acceptance of this plea
and enter a plea of not guilty in terms of section 113 of Act 51 of
1997, the Criminal Procedure Act.”

[9] Section 113 of the Criminal
Procedure Act, 51 of 1977 reads as follows:

“If the court at any stage of the proceedings
under section 112 and before sentence is passed is in doubt whether
the accused is in law
guilty of the offence to which he has pleaded guilty or is satisfied
that the accused does not admit an allegation in the charge or that
the accused has a valid defence to the charge, the court shall record
a plea of not guilty and require the prosecutor to proceed with the
prosecution: Provided that any allegation, other than an allegation
referred to above, admitted by the accused up to the stage at which
the court records a plea of not guilty, shall stand as proof in any
court of such allegation.”

(Emphasis provided).

[10] In my view the unspecified
“problem between the accused and his previous legal
representative” could certainly not, in the light of the
provisions of section 113, have been a ground for entering a plea of
not guilty by the presiding officer. The presiding officer could not
have been satisfied, at any time, that the accused did not
admit to an allegation in the charge; could not have been satisfied
that the accused has incorrectly admitted any allegation in the
charge; and could not have been satisfied that the accused has
a valid defence to the charge.

[11] In my view the magistrate
has correctly refused a further postponement in order to obtain a
“second opinion”. The accused at that stage had the
benefit of the legal opinion of at least three experienced legal
practitioners. The court was also not informed why a “second
opinion” was necessary in those circumstances. The magistrate
herself also did not elaborate on the nature and extent of the
“problem” observed by her. It is apparent from the record
that in spite of the perceived “problem” the accused
person unequivocally pleaded guilty to the charge put to him.

[12] Section 113(1) refers to
the situations which may form the basis upon which a court may enter
a plea of not guilty. Common law grounds (i.e. duress, undue
influence, fear or fraud) for setting aside a plea of guilty are not
excluded by the provisions of section 113(1). These common law
grounds may or may not be apparent from the questioning of the court
in terms of the provisions of section 112(1)(b) would normally be
present or in existence prior to questioning by the court in terms of
section 112(1)(b) or prior to the making of a statement by the
accused in terms of section 112(2).

(See Attorney-General,
Transvaal v Botha 1993 (2) SACR 587 (A) ).

[13] Smallberger JA in Botha
(supra) stated (at 592 g – h) that the words “in
doubt” in section 113(1)” presuppose a reasonable doubt
in relation, e.g. to whether an accused falls within the terms of a
particular statutory prohibition or his conduct constitutes the
offence charged. Such doubt can either arise in response to
questioning by the court in terms of s. 112(1)(b), or from
information volunteered by the accused or because the court mero
motu entertains doubt on the law”.

and continues at 593 g as
follows:

“The correction of a plea in terms of s. 113(1)
will in many instances involve the retraction of an admission. Such
correction should normally follow when the accused indicates that he
no longer admits the charge or an allegation in the charge. At that
stage of the proceedings the question whether the retraction of the
admission may later be proved to be false is irrelevant. The court is
still involved in pre-trial procedure. All that is needed is a
reasonable explanation from the accused why he seeks to withdraw the
admission or change his plea.”

[14] The reason, advanced by Mr
Louw why the court ought to enter a plea of not guilty in terms of
section 113(1) falls far short of a retraction of an admission or an
allegation in the charge sheet, amounts to no reasonable explanation
why the accused sought to change his plea, and did not allude to any
common law ground which could have been present at that stage upon
which the magistrate could have entered a plea of not guilty.

[15] Insofar as the magistrate
has entered a plea of not guilty, I have indicated (supra)
that for the reason reflected on the record, she misdirected herself
and erred in law by entering a plea of not guilty in terms of section
113(1).

[16] It is necessary to refer to
the course of the proceedings after the magistrate had entered a plea
of not guilty.

[17] Mr Louw informed the court
that he was withdrawing as the legal representative of the accused
person. The matter was postponed until 18 July 2007 for plea and
trial and to enable the accused to obtain the services of another
legal representative.

[18] It is not apparent from the
record what occurred on 18 July 2007. Ms H J Horn the control
magistrate for Windhoek Division who had sent this matter on special
review, mentioned in her letter that this case had over the years
been accorded different case numbers. It was originally marked as
case number A 1532/2003,, then renumbered to case number C 227/2005.
The matter was later converted into the Namcis case number WHK-CRM
1070/2006. This case was struck from the roll on 20 June 2008 and the
same criminal matter was restarted under case number WHK-CRM
17353/2008. Nevertheless the record is silent as to what occurred
between 17July 2007 and 20 June 2008.

[19] On 20 June 2008 magistrate
C Claasen was presiding. The accused was represented by Mr Liswaniso.
The matter was postponed to 24 October 2008 for plea and trial.

[20] On 24 October 2005
magistrate Claasen presided. The name of the legal representative
does not appear from the record. The prosecutor informed the court
that due to a misunderstanding disclosure of witness statements were
only made that morning. The case was postponed to 13, 14 April 2009
on request of the defence. The state witnesses Mr Jacob Steyn and Mrs
Margaretha Steinmann (Director of the Namibian Law Society) were
warned to appear in court.

[21] On 14 April 2009 magistrate
Shilemba presided. The matter was postponed as agreed with the legal
practitioner, Mr Ueitele, for plea and trial, until 17 August 2009.

[22] On 17 August 2009
magistrate Muchali presided. Mr Ueitele was absent and the matter was
remanded as agreed between the State and the defence until 13 January
2010 for plea and trial.

[23] On 13 January 2010 the
accused arrived late after a warrant for his arrest had already been
issued. After an enquiry for failure to appear to court the bail of
the accused person was reinstated. The case was then postponed to 27
January 2010 for the fixing of a trial date.

[24] On 27January 2010
magistrate Asino presided. Mr Liswaniso appeared on behalf of the
accused person. The case was postponed to 16 August 2010 for plea and
trial.

[25] On 16 August 2010
magistrate Asino presided. The prosecutor informed the court that the
State was ready to proceed with the trial. Mr Liswaniso informed the
court that he was withdrawing as legal representative. The accused
informed the court that Mr Ueitele was his legal representative but
was an acting judge at that stage. He stated that Mr Ueitele had
informed him that Mr Liswaniso would be appearing on his behalf. The
accused stated that he had insufficient time to consult with Mr
Liswaniso but that he would obtain the services of another legal
representative. Mr Liswaniso stated that the reason for his
withdrawal was that he received conflicting instructions from the
accused person. The matter was postponed to 10 September 2010 to
enable the accused person to obtain the services of another legal
representative.

[26] On 10 September 2010
magistrate Asino presided. The accused informed the court that the
Department of Legal Aid was suppose to provide him with the services
of a legal representative and that he was informed that he would be
provided with legal representation witihn three weeks. The court
postponed the matter until 21 October 2010 and ordered the accused to
provide proof in writing from Legal Aid to support his allegations.

[27] On 21 October 2010
magistrate V Stanley presided. The accused was absent. A warrant of
arrest was issued. The accused arrived later that day, explaining
that his son was hospitalized and that he had only observed in his
diary when he had returned home that he had to appear in court. When
questioned by the presiding magistrate regarding the proof from Legal
Aid the accused stated that he was informed by Legal Aid that the
file had disappeared. The matter was remanded until 6 December 2010
to enable the accused to obtain the services of a legal
representative.

[28] On 6 December 2010
magistrate Stanley presided. The accused informed the court that his
application for Legal Aid had been approved and that one Mr Uanivi
had been appointed. The accused informed the court that Legal Aid had
informed him that he would receive confirmation of this appointment
by post. The matter was postponed to 27 January 2011, the prosecutor
complaining about the accused deliberately delaying the case.

[29] On 27 January 2011
magistrate Stanley presided. Mr Uanivi confirmed that he had been
appointed by the Directorate of Legal Aid to represent the accused
person and the case was postponed to 19 April 2011 for plea and
trial.

[30] On 19 April 2011 magistrate
Muchali presided. The State was ready to proceed with the trial. Mr
Uanivi informed the court that he was withdrawing as legal
representative due to a conflict of interest. The State prosecutor
strongly objected to a further postponement. The accused citing his
constitutional rights and right to a fair trial, demanded a further
postponement in order to obtain the services of a legal
representative of his choice. The accused also contended that the
magistrate’s court had no jurisdiction to hear the case and
asked that the case be referred to the High Court of Namibia. The
court granted a further postponement until 30 May 2011 stating that
it would be a final remand.

[31] On 30 May 2011 magistrate
Stanley presided. Mr Mbaeva appeared for the accused. He informed the
court that he was standing in for Mr Murorua and that it was a Legal
Aid instruction. The case was postponed to 5 and 6 September 2011 for
plea and trial.

[32] On 5 September 2011
magistrate Stanley presided. The State was ready to proceed with the
trial. The accused informed the court that Mr Murorua had given him a
letter to say that he was not available for that day. The accused
informed the court that he had not been able to consult with Mr
Murorua due to Mr Murorua’s other High Court engagements and
requested a final postponement stating that if Mr Murorua is not
available on the trial date the matter may proceed nonetheless. The
matter then stood down until 12h00 to enable the accused person to
consult with his legal representative. When the case resumed at 12h40
the prosecutor informed the court that the accused was able to get
into touch with his legal representative, who had indicated that he
would be available the next day. Unfortunately the two State
witnesses would not be available the next day but only on 7
September, the day thereafter. The case was postponed to 7 September
2011 for plea and trial. The record indicating this to be a final
remand.

[33] On 7 September 2011
magistrate Stanley presided. Mr Murorua stating that he was present
out of “courtesy to the court”, and informed the
magistrate that he had been appointed by the Directorate of Legal Aid
but was unable to represent the accused person since he had not
consulted with the accused due to other commitments. He informed the
court that he had “only learnt about the case the day before
yesterday” and that he was withdrawing as legal representative
of the accused. The accused person requested the court to grant him a
further two weeks in order to approach the Department of Legal Aid
for the appointment of another legal representative. The prosecutor
remarked that the State witnesses being “professional people”
were “fed up with the delays in the case”. The magistrate
postponed the case until 23 September 2011.

[34] On 23 September 2011
magistrate Stanley presided. The prosecutor informed the court that a
certain lady had approached him seeking another remand since Mr
Murorua was out of the country. The prosecutor expressed his surprise
given the previous withdrawal of Mr Murorua. The accused informed the
court that Mr Murorua would be back “after 2 weeks”. The
case was postponed to 20 October 201 for the purposes of fixing a
trial date.

[35] On 20 October 2011
magistrate Shilemba presided. The prosecutor informed the court that
he had received a letter from Mr Murorua stating that he was
attending a meeting. The case was postponed to 25 October 2011 for
the purpose of fixing a trial date.

[36] On 25 October 2011
magistrate Shilemba presided. The matter was postponed to 1 February
2012 for plea and trial. Mr Muroroa who was present in court
confirmed that the date was “in order”.

[37] On 25 October 2011
magistrate Shilemba presided. Mr Mbaeva appeared on behalf of the
accused. The prosecutor informed the court that the State was ready
to proceed but due to “two other matters before the same
magistrate” the parties had agreed that the matter be postponed
to 10 February 2012. Mr Mbaeva informed the court that Mr Murorua
will no longer take up that criminal matter but that the defence
would consult with the accused prior to the trial date and confirmed
that the trial date was in order.

[38] On 10 February 2012
magistrate Shilemba presided. The State was ready to put the charge
to the accused person. Defence counsel was absent. The matter stood
down. At 11h00 defence counsel Mr Mbaeva appeared. He informed the
court that due to a conflict between himself and the accused he was
going to withdraw as legal representative of the accused person. The
accused remarked that due to the fact that Mr Mbaeva is a member of
the Law Society he would not “get a fair trial”. He
repeated his previous request that the case should be referred to the
High Court and that a legal representative from outside Namibia be
appointed. The accused also requested that the prosecutor Mr Tholiso
“recuse himself from the case”. Mr Tholiso then postponed
the matter to 28 February 2012 in order for the accused to provide
proof that a legal representative from outside Namibia could be
appointed.

[39] On 28 February 2012
magistrate Stanley presided. The accused informed the court that he
was unable to consult with the Director of Legal Aid due to the fact
that the Director was sick and that the Director would be able to see
him on that day i.e. 28 February 2012. The case was postponed to 29
February 2012.

[40] On 29 February 2012
magistrate Stanley presided. The accused informed the court that he
visited the offices of the Directorate of Legal Aid and to his
disappointment he was informed that a local lawyer, Mr Chris Brandt,
had been appointed as his legal representative. The accused informed
the court that he had approached Mr Brandt who had given a letter and
wished to hand up the letter. The content of the letter was not
disclosed. The accused then requested the case be postponed in order
for him to see the Prosecutor-General or to see the Minister to
assist him and to instruct the Director of Legal Aid to appoint a
legal practitioner from outside Namibia. The matter was postponed to
5 March 2012.

[41] On 5 March 2012 magistrate
Stanley presided. Advocate Hinda informed the court that he has
received instructions from the Directorate of Legal Aid to represent
the accused in this case. He informed the court that he had only
received disclosure “on Friday” and requested the matter
to be postponed for plea and trial. The matter was postponed to 29
March 2012, a date confirmed by Advocate Hinda. The accused informed
the court that he did not have any objection to Advocate Hinda being
appointed as his legal representative, indicating that Advocate Hinda
had been appointed on his request.

[42] On 29 May 2012 magistrate
Stanley presided. Advocate Hinda informed the court that after he had
consulted with the accused, the accused had terminated his mandate to
act on his behalf, the previous day. He therefore had no option but
to withdraw as the legal representative of the accused. The accused
then informed the magistrate of a High Court case number A 108/2012
in which he challenged “the constitutionality” of the
case against him. The accused requested a final postponement in order
for him to approach the Directorate of Legal Aid with the aim of
appointing another legal practitioner to appear on his behalf in this
matter. The State strongly objected to a further postponement. The
matter stood down. When the court resumed at 12h00 Mr Karuaihe
informed the court that he had received instructions that very
morning to represent the accused. The record does not reflect from
whom he had received such instructions. He informed the court that
the accused has “challenged the constitutionality of the
provisions under which he has been charged”. He requested a
further remand since it would be premature “to remand this
matter for plea and trial at this stage as the very provisions under
which the accused is charged are challenged”. He suggested the
matter be remanded to a date after the High Court hearing. The
prosecutor did not object to this application for postponement. The
case was hereafter postponed to 20 September 2012 for plea and trial.

[43] Mrs Horn, the control
magistrate who forwarded this matter on special review inter alia
stated that the magistrate could not have entered a plea of not
guilty on the basis of the reason provided by the magistrate and
requested that such an entry by the magistrate be set aside by this
court as being “wrong and irregular”.

[44] I have already expressed my
views in respect of the legality of the decision by the magistrate to
enter a plea of not guilty (supra).

[45] What should be considered
is whether this Court may at this stage intervene in the unterminated
proceedings in the court a quo by setting aside the decision
of the magistrate, to enter a plea of not guilty.

[46] It is trite law that the
provisions of section 304(4) of Act 51 of 1977 presently make
provision for review proceedings only after sentence. (See S v
Immanuel 2007 (1) NR 327 HC).

[47] Although the High Court has
an inherent power to curb irregularities in magistrate’s
courts, 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 any other means. (See
Immanuel (supra); S v Cornelius Isak Swartbooi, unreported
judgment in case no. CR 09/2012 delivered on 15 February 2012).

[48] In S v Lubisi 1980
(1) SA 187 (TPD) the Court held that the Supreme Court has an
inherent power to correct the proceedings of an inferior court at any
stage if it appears to be in the interest of justice. In this case
the acquittal of an accused was set aside and it was ordered
that the part heard case should continue where it was interrupted.

[49] In S v Makriel 1986
(3) SA 932 CPD, due to an administrative error the magistrate
acquitted the accused persons in pursuance of a decision by the
Attorney-General not to prosecute them. The Supreme Court held that
that acquittal had occurred per incuriam and declined to set
aside the acquittals, holding that the invocation and exercise of the
Court’s inherent powers of review without any notice whatsoever
to vitally interested parties such as the accused would be
fundamentally irregular and a breach of the rules of natural justice.
The decision in Lubisi was not followed.

[50] In S v Makopu 1989
(2) SA 577 (ECD) the accused pleaded not guilty on a charge of
housebreaking with intent to commit an offence unknown to the State.
Another magistrate, not realising the matter was part-heard refused a
postponement and acquitted the accused as the State witnesses were
not available. The magistrate submitted the matter on review as he
considered that the acquittal was a gross irregularity. The Court
held as follows on p. 578 A – C:

“While it is correct that the interests of justice
include justice to the prosecutor as well as the accused, there are a
number of policy considerations which underlie our criminal law which
may be raised to support an argument that, even if the Court has
inherent power to make this sort of order, it should not do so. I
refer, for example, to the policy considerations which require
certainty and finality in criminal cases, or which limit the State’s
right to appeal, or which preclude a second prosecution where fresh
evidence is found. Be that as it may, I am quite satisfied that I
should not exercise an inherent jurisdiction to set aside an
acquittal without first hearing the accused. He is not presently
before me. If the Attorney-General so wishes he is at liberty to
institute review proceedings against the accused in order to have the
irregularity corrected.”

(S v Lubisi was not
approved and not followed).

[51] In S v Bushebi 1996
(2) SACR 448 NmS, the Supreme Court of Namibia (Highest Court of
Appeal) referred with approval to the passage in Makopu (supra)
and refused to set aside an acquittal in the magistrate’s court
where there was no irregularity but a mistake of law introduced by
the Prosecutor-General who claimed to have a right to have the
decision set aside because a guilty man had been acquitted.

[52] The Supreme Court referred
to Lubisi, stating that it was an “unusual case”
and even “if it is assumed that Lubisi’s case was
correctly decided, the facts there were very special and bear no
resemblance to what occurred in this case”.

[53] The facts of this case are
distinguishable from those in Makriel, Makopu and Bushebi. In
this matter there was no acquittal of the accused and this Court is
not required to set aside any “acquittal”.

[54] I have set out the
background of this case and the subsequent course it took over a
period of nine years without reaching any conclusion. This is an
unusual case having regard to the numerous postponements, the large
number of legal practitioners who at different stages appeared for
the accused persons and the reasons why this matter has not yet been
finalised.

[55] It may be so that this case
has on occasions been postponed due to the fact that the accused did
not consult with his legal representatives, but the impression I
gained from perusing the record was that the accused person embarked
upon an exercises of delaying tactics in the light of the
protestations of the accused and his insistence that he would not
receive a fair trial if he is not represented by a legal practitioner
of his choice. The constant turnover of legal practitioners
instructed by the Directorate of Legal Aid, resulted in various
defence counsel not being ready to proceed when the State was ready,
with the result that the State witnesses who had on numerous
occasions attended the court proceedings, had been greatly
inconvenienced and had to return to court without any prospect that
their testimonies would be heard.

[56] I am further of the view
that the conduct of the accused person over the years unmistakably
amounted to an abuse of process and is still an abuse of process.

[57] The interest of justice, so
aptly stated in Makopu (supra), include justice not only to an
accused person but to the prosecution was well. Is this not a prime
example that due to policy considerations which require certainty and
finality in criminal cases that this case should be concluded
immediately ? I am convinced this to be the case having regard to the
specific circumstances of this case. What other remedy is there
available ?

[58] I am further of the view
that the accused person is not prejudiced (in view of the fact that
he had pleaded guilty) if the recorded plea of not guilty, is set
aside.

[59] This case is in my view one
of those rare instances of material irregularities where grave
injustice not only might otherwise result, but has resulted or where
justice might not be attained by other means and warrants the
intervention by this Court at this stage.

[60] I was informed that the
magistrate who had entered a plea of not guilty in terms of section
113 is no longer employed by the Ministry of Justice.

[61] In the result the following
order is made:

1. 
   The entry of a plea of not
   guilty in terms of section 113 of Act 51 of 1977 entered by
   Magistrate Muchali on 30 June 2007 is hereby set aside.

   
   

2. 
   The record of the proceedings
   is returned to the clerk of the court, Windhoek for the finalisation
   of the case before another magistrate in terms of the provisions of
   section 275 Act 51 of 1977.

   
   

_______

HOFF, J

I agree

___________

MILLER, AJ