NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 77/2012

In the matter between:

THE STATE
.................................................................................................APPLICANT

and

TEELE EDGAR LEPHEAN
.....................................................................RESPONDENT

(HIGH COURT REVIEW
CASE NO.: 1714/2012)

Neutral citation:
State v Lephean (CR 77/2012) [2012] NAHCMD 8 (3 October 2012)

Coram: NDAUENDAPO
J et PARKER AJ

Delivered: 3
October 2012

Flynote: Criminal
law – Offence under the Road Traffic and Transport Act 22 of
1999 – Trial magistrates’ court failing to apply s 51 of
the Act – Record of proceedings of the case submitted for
special review.

Summary: Criminal
law – Accused convicted of contravening s 85(a) of the Act –
Trial magistrates’ court failing to apply mandatory provision
of the Act – Upon special review, court confirming conviction
and sentence and returning file to trial court with an order that
accused be summoned to court to enable the learned magistrate to
apply s 51 of the Act.

ORDER

1. 
   The conviction and
   sentence respecting count 2 are confirmed.

   
   

2. 
   The conviction and
   sentence respecting count 1 are confirmed.

   
   

3. 
   The learned magistrate
   must summon the accused in court for the purpose of applying s 51 of
   the Road Traffic and Transport Act No. 22 of 1999.

   
   

JUDGMENT

PARKER AJ (NDAUENDAPO J
concurring):

[1] The accused was
charged before the magistrates’ court, Karibib, with two
counts, namely, driving with an excessive breath alcohol level in
contravention of s 82(5)(a), read with ss 1, 82(6), 82(7), 86, 89(1)
and 89(4), of the Road Traffic and Transportation Act 22 of 1999
(count 1); (and reckless or negligent driving – in
contravention of s 80(1), read with ss 1, 49, 50, 51, 83(3),
86,89,106,107 and 108, of the Road Traffic and Transportation Act 22
of 1999 (count 2). The accused was convicted on both counts and
sentenced accordingly. The record of proceedings in the case has been
submitted to me for special review, and in this regard, the learned
magistrate writes in a covering note that the ‘accused was
convicted upon questioning on one count and evidence led on another.
During inspection, it was pointed out to me that I had, as prescribed
by the Road Traffic and Transportation Act, Act 22 of 1999, failed to
suspend the Driver’s Licence’.

[2] Since the accused was
convicted on count 1, it was mandatory for the learned magistrate to
have applied s 51 of the Road Traffic and Transport Act 22 of 1999
(‘the Act’). The learned magistrate has no discretion in
the matter under s 51(1) of the Act. The discretion he has is only
under s 51(2) which concerns only the determination of the period of
suspension. In that behalf, to enable the learned magistrate to
exercise his discretion under s 51(2) judicially, he must hear the
accused before determining the period of suspension of the accused’s
drivers licence.

[3] If follows that the
learned magistrate failed to apply the mandatory provisions of the
Act. Consequently, I make the following order:

1. 
   The conviction and
   sentence respecting count 2 are confirmed.

   
   

2. 
   The conviction and
   sentence respecting count 1 are confirmed.

   
   

3. 
   The learned magistrate
   must summon the accused in court for the purpose of applying s 51 of
   the Road Traffic and Transport Act No. 22 of 1999.

   
   

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C Parker

Acting Judge

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N Ndauendapo

Judge