Case Title:

 The State v Taakondjo Micasiu

Case No.: CR 06/2023

Outapi: B112/2018

Division of Court:

Northern Local Division

 Heard before:

 Honourable Mr Justice Munsu AJ et

 Honourable Mr Justice Kesslau AJ

Delivered on:

23 February 2023

Neutral citation: S v Micasiu (CR 06/2023) [2023] NAHCNLD 14 (23 February 2023)

It is hereby ordered that:

1. The conviction and sentence are set aside.

Reasons for the order:

 KESSLAU AJ  (MUNSU AJ concurring):

[1]        The matter comes before this court on automatic review in terms of Section 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).

[2]        The accused made his first appearance on 10 April 2018 in the Magistrates Court of Outapi on a charge of attempted murder. He was remanded in custody and remained so until the matter was finalized.  On 14 January 2020 he pleaded not guilty before Magistrate Amutenya and claimed private defence. The matter was then remanded multiple times for trial until the 3^rd of March 2021 when the trial proceeded before Magistrate Matali. The accused, after evidence was led, was sentenced to 36 months imprisonment on 31 May 2022.

[3]      The following query was directed to the magistrate:

‘1. The reason for the unavailability of the Magistrate who noted the plea of not guilty needs to be addressed in terms of Section 118 before proceeding with the matter. Where on the record was it noted?

2. The rights at the close of the State’s case were explained to the accused on 8 December 2021 after which his evidence under oath was recorded. The same was repeated on 1 February 2022. What was the reason for recording the evidence of the accused twice?’

[4]        The magistrate in his reply conceded that he did not comply with s 118 of the CPA to note the unavailability of the initial Magistrate who took the plea and the reason for such.

[5]        Regarding the second part of the query, the magistrate explained that the typist made the mistake and failed to correct it on his request.  The evidence of the accused was recorded twice on the original record and thus I fail to understand how the typist is to be blamed. A magistrate, when certifying the record, takes final responsibility for preparation of the record and should fulfil this task with utmost care.[1]  The record of proceedings indicate that the accused testified twice under oath and was then once cross-examined by the State. Although the evidence of the accused recorded on both occasions were similar with a few minor differences, the proceedings amounted to an irregularity and presented potential prejudice to the accused.

[6]        I will now return to the first part of the query. Section 118 of the CPA deals with the non-availability of the judicial officer after a plea of not guilty was noted and states:

‘If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court.’ A failure to comply with the said provision renders the continuation of the trial before another magistrate irregular.[2] In this regard it was stated in S v Mwalyombu^[3] that the circumstances in each particular cases will determine if such irregularity vitiates the entire proceedings

[7]        The correct application of section 118 can ensure a speedy trial, as guaranteed in Article 12 of the Constitution, when the initial magistrate is unavailable. In determining whether the accused suffered severe prejudice the circumstances in this case needs to be examined. The accused had spent close to two years in custody before a plea was taken. Thereafter the accused made thirty-one appearances in court after which the matter was finalized another two years later. On thirteen of these instances State witnesses were present and warned for the next appearance.

[8]        It is also necessary to mention that only the State addressed the court when requesting the remands and, except for once, when another magistrate was presiding, was the accused invited to reply to the application for a remand. On this occasion the accused indicated that he is opposing the remand and wish the matter to be finalised. None of the applications for remand from the State were properly motivated as the record merely reflects the prosecutor giving a reason why the matter cannot proceed where after an order of remand follows.

[9]        The accused was not given the opportunity to address the court before another magistrate took charge of the matter.  The matter thereafter dragged on for years with all the remands on request of the State. The court thus failed to achieve the purpose of s 118, to wit a speedy trial. The accused was prejudiced by the application of s 118 and the failure of the court to apply the audi alterum partem rule during proceedings.  I cannot find that the accused received a fair trial.[4]

[10]      Turning to the evidence presented. The medical report was wrongly received in terms of s 212(7) of the CPA which deals with a ‘deceased person or of any dead body’. The correct section dealing with ‘any document purporting to be a medical record prepared by a medical practitioner’ is s 212 (7A). The injuries noted on the report convinced the court that the accused did not act in self-defense. On closer inspection of the document it appears that the doctor initially indicated that he examined the complainant on the 4^th of April 2018, thus three days prior to the attack. The date was hereafter altered to read the 7^th of April without any signature next to the alteration. No evidence was presented to explain the alteration.

[11]      Lastly, the magistrate in his judgment determined that there were three versions of the evidence before court being the evidence of the complainant, a different version from an eye-witness and the evidence of the accused that he acted in private defense. While the complainant testified that he was stabbed at his house, the eye-witness said it happened at a certain bar. The magistrate none the less found that the witness corroborated the evidence of the complainant and a conviction subsequently followed. Considering the material differences in the evidence, the evidence of the eye-witness was rather a contradiction and by failing to take this into account the magistrate committed a misdirection.

[12]      In conclusion, when considering the multitude of irregularities[5], the conviction cannot be confirmed to be in accordance with justice. It follows that the sentence cannot stand.

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

1. The conviction and sentence are set aside.

Judge(s) signature

Comments: 

KESSLAU AJ:

None

MUNSU AJ:

None