CASE NO.: CR 18/2012

NOT
REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

ARTHUR
LIBANDA LIBANDA

HIGH
COURT REVIEW CASE NO.: 540/2011

CORAM: HOFF,
J et SIBOLEKA, J

Delivered
on: 12 March 2012

SPECIAL
REVIEW JUDGMENT

HOFF,
J: [1] The accused person appeared in the Windhoek
magistrate’s court ostensibly on a charge of failing to pay
maintenance. The relevant record of the proceedings reads as follows
which is quoted verbatim:

“PP: Matter is on roll for maintenance.

CRT: Enquiries from accused if he had paid the arrears
yet and whether he is employed.

ACC: Yes I am employed but the arrears are not paid off
yet.

CRT: Seeing that you are gainfully employed, the court
is satisfied that is no factor preventing you from defraying or
paying such arrears. In the light the court finds you guilty of
failure to pay maintenance and sentenced you to a fine of N$2 300.00
or fine to be converted into maintenance money or 6 months
imprisonment.

POSTEA

Coram as before

CRT: Informs accused that he is now recalled and informs
accused of provision 298 51/1977 CPA. Do you understand /

ACC: Yes understand.

CRT: Sentence corrected and to read as follows

accused is sentenced to a fine of N$2 300.00 or six
months imprisonment.”

[2] The
Head of Station, Magistrate Shuuveni sent this matter on special
review and highlighted a number of irregularities with which I fully
agree with.

[3] The
accused person appeared on a warrant of arrest for failing to attend
an earlier court hearing.

The
first irregularity was that the magistrate failed to hold an inquiry
in terms of the provisions of s. 170(1) and (2) regarding his failure
to appear in court.

In
this matter the magistrate should have held a summary enquiry into
the reasons for the absence of the accused on the previous court
date. The accused bears the onus to satisfy the court that his
failure to appear was not due to any fault on his part. This onus
must be explained to the accused by the magistrate. In order to
discharge this onus an accused person must be informed by the
magistrate that he or she may testify under oath himself or herself
and may in addition call witnesses in support of such explanation.
This onus may be discharged on a preponderance of
probabilities. A failure to inform an accused person of such onus
may lead to the reversal of the conviction.

[4] In
S v Bkenlele 1983 (1) SA 515 (O) the Court referred with
approval what was held in S v Du Plessis 1970 (2) SA 562 (ECD)
at 564 H – 565 A:

“In accordance with the well-known principle this
onus may be discharged on a balance of probabilities. I do
not think that at this stage the court is required to be satisfied
afresh of the accused’s default before he is required to meet
the case against him. What justice and common sense require is that
the presiding officer should explain to the accused the position in
which he finds himself, namely that prima facie he is in
default, service having been effected properly, and that the onus is
upon him to rebut the prima facie fact that he is in default
or to prove to the court that he has some other reasonable excuse for
his failure or evasion as the case may be.”

[5] In
S Baloyi 2000 (1) SACR 81 (CC) this burden of proof was
confirmed. This case dealt with the violation of an interdict
granted under s. 2(1) of the Prevention of Family Violence Act 133 of
1993 (South African) where Sachs J expressed himself as follows
regarding the issue of fairness (at par. 31):

“Fairness to the complainant in the special
circumstances of the case necessitates that the proceedings be
summary, that is, that they be speedy and dispense with the normal
process of charge and plea. It also requires that they be
inquisitorial, that is, that they place the judicial officer in an
active role to get at the truth, which usually will be done through
questioning the accused. Fairness to the accused, on the other hand
dictates that within this format the general protection granted by
the CPA should apply in measure similar to that available to a person
charged under s. 170. Such a balancing of constitutional concerns
leaves the presumption of innocence undisturbed. At most it may
affect the right to silence.”

[6] The
accused in this matter was neither informed of the provisions of
section 170 nor of his burden of proof. The conviction and sentence
stand to be struck down for this reason alone.

[7] Secondly
the first sentence imposed namely a fine of N$2300.00 converted
into maintenance arrears or 6 months imprisonment is highly
irregular.

A
Court would under normal procedural practice first enquire into the
failure of an accused person to comply with the maintenance order
previously imposed by the Court. If there is no lawful excuse by the
accused person such an accused person will be convicted of the
criminal offence of contravening a statutory provision (failure to
pay maintenance) and will thereafter be sentenced. This conviction
and sentence has no connection with the question of how the arrears
maintenance will be settled. A magistrate thus cannot impose a fine,
as was done in this instance, an then appropriate such fine to
extinguish the arrear maintenance.

[8] It
appears that the magistrate subsequently realised this irregularity
and tried to rectify it. It is not clear from the record how much
later this sentence was purportedly rectified. Section 298 of Act 51
of 1977 makes provision that a sentence may be corrected when by
mistake a wrong sentence is passed. A court may before or
immediately after it is recorded amend the sentence. A court is
after it has passed a sentence functus officio unless it
unintentionally pronounced an incorrect sentence and corrects it
immediately.

(See
S v Swartz 1991 (2) SACR 502 (NC).

[9] In
any event the attempt by the magistrate to rectify the sentence was
an exercise in futility for the reason mentioned in paragraphs 3 to
6. The sentence cannot stand because the conviction was irregular
and unlawful.

[10] I
shall now highlight another reason why the conviction was unlawful.
It is clear from the record of the proceedings that no charge was put
to the accused that he was in arrears of paying maintenance.

[11] Section
39(1) and (2) of the Maintenance Act 9 of 2003 provide as follows:

“Subject to subsection (2) any person who disobeys
a court order by failing to make a particular payment in accordance
with a maintenance order commits an offence and is liable to a fine
which does not exceed N$4 000.00, to be imprisoned for a period which
does not exceeds 12 months or to periodical imprisonment in
accordance with section 285 of the Criminal Procedure Act, 1977 (Act
51 o f1977).

(2) If the defence is raised in any prosecution for an
offence under this section that any failure to pay maintenance in
accordance with a maintenance order was due to lack of means on the
part of the person charged, he or she is not, merely on the grounds
of such defence entitled to an acquittal if it is proved that the
failure was due to his or her unwillingness to work or to his or her
misconduct.”

[12] Section
105 of Act 51 of 1977 provides that the charge shall be put to an
accused by the prosecutor before the trial and the accused shall be
required to plead thereto forthwith in accordance with s. 106.

In
this matter under review the prosecutor never put any charges to the
accused person.

The
provisions of s. 105 are peremptory.

(See
S v Mamose and Others 2010 (1) SACR 121 (SCA) at par. 7).

Certain
legal consequences flow from the fact whether the accused pleaded to
a charge and a different legal consequence flow from the fact where
an accused failed to plead to a charge.

[13] It
is trite law that where an accused person pleads to a charge such
accused person is entitled to a judgment.

[14] Where
an accused has not pleaded to any charge no lis arises between
the State and the accused and the accused cannot be convicted.

(See
S v Mbokazi 1998 (1) SACR 4428 NPD at 442 h – i).

[15] In
S v Sithole and Others 1999 (1) SACR 227 (TPD) at 230 c –
d the Court held as follows:

“To convict an accused on a charge he was not
requested to plead to is in my view such a departure from the rules
and principles governing the conduct of criminal proceedings that it
cannot be countenanced. It is further a fundamental right in terms
of s. 35(3)(a) of our Constitution Act 108 of 1996, that an accused
has a right to a fair trial which includes the right to be informed
of the charge with sufficient detail to answer it.”

[16] Article
12 (1)(a) of the Namibian Constitution provides inter alia
that all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent court .

It
should therefore be apparent that the failure by the prosecutor to
put a charge to the accused person and the failure by the magistrate
to demand that a charge be put to the accused violated the
fundamental right of the accused to a fair trial.

[17] Magistrate
Shuuveni referred to two further irregularities which I need to
mention. However in the light of what was said (supra) I do
not deem it necessary to analise and comment on those irregularities
in much detail.

[18] It
is apparent from the record that the magistrate did not explain to
the undefended accused person the defence contained in the provisions
of section 39(2) of Act 9 of 2003.

This
may not be surprising at all since the accused was never asked to
plead to any charge. Nevertheless, a magistrate is obliged to
explain the existence and meaning of this defence to an undefended
accused. Failure to do so could prejudice an accused person
resulting in the proceedings being set aside on review or on appeal.

(See
S v Moeti 1989 (4) SA 1053 (OPD).

The
other irregularity referred to was the fact that the magistrate
failed to inform the accused person his right to mitigation prior to
passing sentence. The failure by the magistrate to inform the
accused person that he may address the court as to the appropriate
sentence to be passed is not only a denial of an opportunity to do so
but also amounts to a gross violation of the accused’s
fundamental right to a fair trial.

[19] In
the circumstances the conviction and sentence cannot stand and must
be set aside.

[20] I
was informed by Mr Shuuveni that the accused has paid the fine (most
probably a part fine) and has been released from prison. The amount
of such part fine is however unknown.

[21] In
the result the following orders are made:

1. The
   conviction and sentence are set aside.

   
   

2. The
   clerk of the court is instructed to bring this judgment to the
   attention of the accused and to assist him in claiming the amount
   paid by him in respect of such fine, from the Ministry of Justice.

   
   

3. This
   judgment together with a copy of the proceedings must also be
   brought to the attention of the Acting Chief Magistrate for the
   purpose of taking appropriate remedial action.

   
   

4. In
   the event that the Prosecutor-General decides to prosecute the
   accused person afresh for the offence of contravening section 39(1)
   of Act 9 of 2003, the matter should be heard by a different
   magistrate.

   
   

_______

HOFF,
J

I
agree

___________

SIBOLEKA,
J