REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
Case no: CR 74/2013
IN THE HIGH COURT OF
In the matter between:
(HIGH COURT MAIN DIVISION
REVIEW REF NO.: 1593/2013)
Neutral citation: S v
Uxam (CR 74/2013)NAHCMD 326 (8 November 2013)
CORAM: SMUTS, J et
Delivered on: 8 November
1. The conviction and
sentence in respect of accused1 are set aside.
2. The convictions and
sentences in respect of accused 2 and 3 are however confirmed.
SMUTS, J.: 
This matter has come before me by way of a special review. When
preparing the record of proceedings for purpose of review under the
Criminal Procedure Act, 51 of 1977, (the Act) the presiding
magistrate picked up an irregularity with regard to the proceedings
relating to accused 1. The presiding magistrate accordingly referred
the matter for a special review and set out the circumstances which
he regarded to constitute an irregularity concerning accused 1.
 The proceedings
concerned a criminal trial in the magistrate’s court for the
district of Outjo in which three accused were charged with the
statutory offence of stock theft. They were charged with the theft of
a donkey valued at N$900 which allegedly occurred on 5 June 2013.
 When the accused
appeared for the purpose of plea on 17 July 2013, accused 1 indicated
that he was not ready to proceed and that he wished to apply for
legal aid. The presiding magistrate correctly did not require him to
plead. The other two accused, namely accused 2 and 3, indicated that
they would conduct their own defences and both proceeded to plead
guilty after the State put the charge to them.
 After appropriate
questions in terms of s112(1)(b) of the Act were put to accused 2 and
3, pleas of not guilty were entered in terms of s113, given the fact
that both accused had not admitted who the owner of the donkey was.
The matter was then remanded to 17 October 2013 for trial in respect
of accused 2 and 3 and for the purpose of accused 1 to apply for
legal aid (and a possible separation).
 On 17 October 2013
the matter however proceeded to trial in respect of all three accused
without the presiding magistrate addressing the position of accused
1, by enquiring about legal aid and, if need be, separating his trial
or requiring him to plead, if he did not persist with his application
for legal aid.
 After hearing the
evidence of the complainant, and affording all three accused the
opportunity to cross-examine the complainant and to give evidence
(with each of the accused declining to do so), the court convicted
all three accused. After according all three accused their rights
with regard to mitigation, the court sentenced all three accused to
three years imprisonment with one year suspended.
 The presiding
magistrate in preparing the record realised that accused 1 had not
pleaded to the charge as he had indicated that he wished to apply for
legal aid. Yet the trial proceeded against him and he was convicted
 The presiding
magistrate correctly acknowledged that an irregularity occurred in
respect of accused 1 and thus referred the proceedings by way of a
special review. Accused 1 had not pleaded to the charge because he
had expressed an intention to apply for legal aid. Upon resumption,
this issue was not addressed. Nor was he required to plead. To have
proceeded with the trial in respect of him in those circumstances
clearly constitutes an irregularity.
 It follows that the
conviction and sentence in respect of accused 1 are set aside. The
convictions and sentences in respect of accused 2 and 3 are however
EP Unengu, AJ