CASE
NO.: CR 20/2012

IN THE HIGH
COURT OF NAMIBIA:

NORTHERN LOCAL DIVISION

HELD AT
OSHAKATI

In the matter between:

THE STATE

and

SIMEON NGHISHINAWA

(HIGH
COURT REVIEW CASE NO.: 57/2012)

CORAM:
LIEBENBERG,
J. et
TOMMASI, J.

Delivered on: 21
September 2012

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] The accused appeared in the magistrate’s court Eenhana
on charges of (i) culpable homicide, and (ii) driving a motor vehicle
without a driver’s licence in contravention of s 31 (1)(a)
of Act 22 of 1999. He pleaded guilty and was subsequently convicted
and sentenced to fines of N$1 500 or 15 months’ imprisonment
and N$2 000 or 6 months’ imprisonment, respectively.

[2] On review a
query was directed to the magistrate enquiring from her as to the
admission(s) made by the accused during the s 112 (1)(b)
questioning in terms of Act 51 of 1977 that showed that the accused
had driven the said vehicle in a negligent manner, thereby causing
the vehicle to overturn, consequentially killing the deceased. It is
neither clear from the charge nor the questioning done by the court
whether the deceased was a passenger on the vehicle or a pedestrian
at the roadside.

[3] The
magistrate’s reply to this part of the query is cryptic and
appears in the following terms (verbatim):

‘1.
The accused acted negligently while driving motor vehicle because
if he was driving at the normal speed the vehicle getting
off the main road to the roadside could have not lost
balance to such extent to causing the death of the
deceased.

2. By driving without a driver’s licence the accused acted
with intention where as culpable homicides resulted
from his negligent.’

[4] It seems to
me the magistrate in her reply reasons, firstly, that the accused
exceeded the ‘normal’ speed limit and as a result thereof
the vehicle veered off the road and overturned; secondly, whereas the
accused was not the holder of a valid driver’s licence, this
was either the cause or a contributing factor to his negligent
driving. Whereas these conclusions are not borne out by the record
of proceedings, it seems necessary to quote same in
extenso (as
far as it concerns the questioning conducted by the court):

‘SECTION
112 (1)(B) ACT 51/1977 APPLY

Count
1

Q:
06.04.2009 on Eenhana – Okongo main road did you drive any
motor vehicle?

A:
Yes.

Q:
Was that vehicle involved in an accident on that date?

A:
Yes.

Q:
What was the accident all about?

A:
The vehicle lost balance while I was driving to the road side and
it nearly hit the tree and it overturned.

Q:
Did any person died in the course of that accident?

A:
Yes.

Q:
Who is that person?

A:
I do not know her.

Q:
Do you dispute that the deceased is Fransina Shangelao Nangango?

A:
No.

Q:
Do you dispute that you cause the death of the deceased?

A:
No.

Q:
Did you force (foresee) that by driving a motor vehicle you may
cause an accident, if you do not drive carefully?

A:
Yes.

Q:
Did you know that it is a crime to cause the death of a person and
that you could be punished for that?

A:
Yes.

Count
2

………

Q:
Did you have a Driver’s Licence or any document deemed to be
a licence, or a temporally (sic) authorization
reiteration (sic) section 31 (2) Act 22/99?

A:
Yes.

Q:
What document did you have?

A:
I had a temporally (sic) licence learner’s licence but I was
not accompanied by a qualified driver.

Q:
Did you know that the law does not allow you to drive without a
driver’s licence?

A:
Yes. …..’

[5] It
must be clear from the excerpt that the court did not question the
accused on the speed he was driving at the time; neither did he
disclose it himself or can this be inferred from the answers provided
by the accused when questioned by the court. It seems to me that
this is a conclusion the court had reached by drawing inferences from
the answers provided by the accused – something the court was
not entitled to do. (See S
v Thomas¹)

[6] It is trite
law that s 112 (1)(b)
of Act 51 of 1977 requires of the presiding officer in peremptory
terms to question the accused with reference to those facts alleged
in the charge in order to ascertain whether the accused admits the
allegations in the charge to which he or she pleaded guilty.
Further, the answers the accused person gives when questioned by the
court do not constitute ‘evidence’ given on oath from
which the court may draw inferences; thus, regard must be had to what
the accused says and not what the court thinks of it (see S
v Mkhize²).

[7] When applying
the aforesaid principles to the present facts it is obvious that the
learned magistrate could not have come to the conclusion from what
the accused had said that the motor vehicle he was driving, travelled
at an excessive speed, causing the driver to lose control over it and
the motor vehicle overturning. The accused was not at all questioned
on the speed the motor vehicle was travelling and the magistrate’s
reasoning that it exceeded the ‘normal’ speed is
unsubstantiated. It is clear from the record that the reason given
by the accused for the accident to have happened was that ‘the
vehicle lost balance while I was driving to the road side and it
nearly hit the tree and it overturned’. This answer
necessitated further questioning by the magistrate in order to
establish what the accused meant by saying the motor vehicle ‘lost
balance’ and what, in his view, was the cause of that. It
could reasonably be that it was because of a tyre blowout that he
lost control over the motor vehicle; and that the cause of the
accident was not necessarily dependent on the manner in which the
accused drove the vehicle. The accused’s acceptance that he
was the cause of the deceased person’s death followed on a
leading question by the court and should never have been put to the
accused. In the present circumstances the magistrate for this reason
alone could not have been satisfied that the accused admitted
negligence on his part and should have noted a plea of not guilty in
terms of s 113 of the Criminal Procedure Act. There is also another.

[8] Although it
is not entirely clear from the magistrate’s reply what she
meant by saying ‘By driving without a driver’s licence
the accused acted with intention where as culpable homicides resulted
from his negligent’ (sic) it suggests that the accused, having
driven the motor vehicle without a driver’s licence (count 2),
was wilful and through his negligence caused the death of another.
It seems to me that this conclusion was reached solely because the
accused had already pleaded guilty to the second charge (driving
without a driver’s licence), a fact the court relied on when
still questioning the accused on count 1and even before establishing
the accused’s guilt through questioning him on count 2. Once
again, the magistrate was not entitled to draw such inference and by
so doing committed a serious misdirection as there is nothing on
record suggesting that the fact that the accused was not a licensed
driver, in any way, impacting on his driving skills or the manner in
which he handled the vehicle at the relevant time.

[9] From the
answers given by the accused when questioned on count 2 it is evident
that he was the holder of a learner’s licence but that he, at
the time of the accident, did not have another person seated next to
him to supervise his driving as required by law (Regulation 110
(3)(a)).
He was therefore wrongly charged and instead should have been
charged in contravention of Regulation 369 (b) of the Road Traffic
and Transport Regulations³.
The conviction on count 2 therefore is also not in order and has to
be set aside.

[10] For reasons
apparent from the judgment I have decided against remitting the
matter in terms of s 312 of Act 51 of 1977 to the same magistrate.
In my view justice will best be served if proceedings start afresh
before another magistrate.

[11] In the light
of the conclusions reached herein, there is no need to deal with the
remaining issues pertaining to sentence raised in the query except
for saying that whereas the accused has paid a part fine in respect
of the fines imposed by the court, he should be refunded.

[12] In the result, the Court makes
the following order:

1. 
   The conviction and sentence in
   respect of both counts are set aside.

   
   

2. 
   The accused to
   be summoned to appear in the magistrate’s court Eenhana and
   tried by a magistrate other than magistrate Hanhele.

   
   

3. 
   The accused to be refunded for any
   court or part fines paid by him as a consequence of his conviction
   and sentence in this case.

   
   

_____________________________

LIEBENBERG, J

I concur.

_____________________________

TOMMASI, J