Court name
High Court
Case number
CRIMINAL 1 of 2012
Title

S v Ferdinand (CRIMINAL 1 of 2012) [2012] NAHC 2 (20 January 2012);

Media neutral citation
[2012] NAHC 2
Coram
Liebenberg J
Tommasi J



















CASE NO.: CR
01/2012







IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:







THE STATE







and







PIUS FERDINAND







(HIGH COURT REVIEW CASE NO.:
91/2010)







CORAM: LIEBENBERG,
J. et TOMMASI, J.







Delivered on: 20 January 2012











REVIEW JUDGMENT















LIEBENBERG, J.: [1]
In this matter the accused appeared in the Magistrate’s Court
Tsumeb on a charge of contravening section 35 (2) (a) of Act 19 of
1990. In the charge it is alleged that the accused assaulted
the complainant, being a police officer, by “grabbing him on
the neck and shoulder and wrestling with the said Cst. Andian”
.
Subsection (2) (a) of the section, however, does not refer to an
assault perpetrated on a member of the force, but rather to a
somewhat different offence i.e.





“(2)
Any person who-



(a)
resists or
wilfully hinders or obstructs

a member in the execution of his or her duty or functions, or a
person assisting a member in the execution of his or her duty or
functions; or …

shall be guilty of an
offence.”



(emphasis provided)







[2] Whereas the accused, when
pleading guilty to the charge, admitted having grabbed the
complainant on his neck and shoulder and wrestled with him, his
actions constituted an assault under the Act and the charge
preferred against the accused should have read in contravention of
section 35 (1)(a) of Act 19 of 1990 (Police Act) and not section 35
(2)(a). In view of the accused having pleaded guilty to, and
admitted having assaulted the complainant, the accused was not
prejudiced by the conviction, despite the wrong section being cited
in the charge.







[3] Upon conviction the accused was
sentenced to eight months imprisonment, subsequently whereto the
matter was sent on review. On April 13, 2010 a query was directed to
the magistrate pertaining to the conviction and from the magistrate’s
date stamp appearing on the covering letter dated 01.07.2011, it
would appear that the matter received no attention for a period of
one year and three months. Despite the magistrate being requested to
furnish reasons explaining the conviction in view of the accused not
being questioned as to whether or not the assault against the
complainant was committed whilst exercising his powers or performing
official duty, the following brief response was received five
months
later:







“1.
Your Receiving Judge, this element was not covered during the
Section 112 (1)(b) questioning based on or caused by human
error.




2. Should it causes a gross regularity, the conviction and sentence
may be quashed.”
(sic)







Not only is the magistrate’s
response most unhelpful, but also comes at a time when the accused
has already served the sentence in full – a year and eight
months after the matter was finalised – which clearly defeats
the purpose of review; meant to protect the accused against
proceedings which are not in accordance with justice. Hence, the
outcome of the review under consideration is accordingly purely
academic.







[4] In order to sustain a conviction
on a charge of contravening section 35 (1) of Act 19 of 1990 it must
be shown that the assault on the member took place in the
execution of his/her duty or functions
. This is an element of
the offence and whereas the magistrate in this instance during his
questioning in terms of section 112 (1)(b) of Act 51 of 1977 failed
to ascertain this fact, the accused could not have been convicted of
assault under section 35 of the said Act. Accordingly, the
conviction cannot be permitted to remain standing.







[5] In these circumstances the Court
is obliged to remit the matter to the trial court in terms of section
312 of the Criminal Procedure Act 51 of 1977 with the direction to
comply with the provisions of section 112 or to act in terms of
section 113. In this instance it would again cause the accused to be
brought before the court for questioning or to be subjected to a
trial - depending on the outcome of the questioning. In the event of
a conviction, the accused is due to be punished (again) in
circumstances where he has already served his sentence and in my
view, any sentence that may be imposed subsequently – even if
it were to be a totally suspended sentence – would be unjust
and a failure of justice. I consider the circumstances of this case
to be exceptional and such, that it, despite the peremptory terms in
which section 312 is couched, would not be in accordance with justice
to give compliance thereto. I accordingly decline to remit the
matter to the trial court in terms of section 312 of Act 51 of 1977.







[6] In the premises, the conviction
and sentence are hereby set aside.















_________________________



LIEBENBERG, J











I concur.











__________________________



TOMMASI, J