CASE NO.: CA
16/08
IN THE HIGH COURT OF NAMIBIA
HELD AT OSHAKATI
In the matter between:
ANDREAS IIPUMBU
APPELLANT
and
THE STATE
RESPONDENT
Coram:
LIEBENBERG, AJ et
SHIVUTE, AJ
Heard on: 06 March 2009
Delivered on: 06 March 2009
Reasons: 16 March 2009
APPEAL JUDGMENT
LIEBENBERG, AJ:
[1] Appellant appeared in the
Oshakati Magistrate’s Court on several charges in contravention of
different sections of the Abuse of Dependence- Producing Substances
and Rehabilitation Centres Act, 1971 (Act 41 of 1971)(the Act). It
is not clear from the two annexures in which the main and alternative
charges were drawn, which of these charges were put to the accused
when he was asked to plead as the accused pleaded to only one count
i.e. the “main count.” He pleaded not guilty and after evidence
was led, appellant was convicted on 18 October 2007 of “both main
charge and alternative count” and sentenced to 5 years imprisonment
on the main count and 4 years imprisonment on the alternative count.
The court ordered the sentences to run concurrently.
Appellant in the court a
quo conducted his own defence.
Subsequent to the proceedings of 18 October 2007, appellant was
admitted to bail in that court on 7 November 2007.
[2] A Notice of Appeal was filed on 6 November 2007 setting out the
grounds of appeal. These are:
1.”Ad
Conviction
The
learned Magistrate grossly misdirected himself by convicting the
Appellant of
both the main and the alternative charge.
The learned Magistrate
misdirected himself on the law when he concluded that the evidence
of the two state witnesses was corroborative of each other.
The learned Magistrate
failed to appreciate that the substances produced before the court
were not proved to be cannabis and/or mandrax.
The learned Magistrate erred
in law by accepting in evidence the testimony of Constable Paulus
Johannes Co(e)tzee that Appellant was selling drugs to school
children when such evidence amounted to hearsay.
The learned Magistrate
grossly misdirected himself in concluding on the fact that the state
had proved its case beyond reasonable doubt.
Ad Sentence
f.……………….”
For purposes of this
judgment it is not necessary to deal with the grounds of appeal
relating to sentence.
[3] The appeal was argued before us on 6 March
2009 with Miss Kishi appearing for the appellant and Mr Lisulo for
the respondent. At the conclusion of oral arguments by counsel, the
Court upheld the appeal and set aside both the convictions and
sentences imposed by the court a quo.
What follows are the reasons for the Court’s judgment:
[4] Two annexures containing the charges preferred against
appellant form part of the record of proceedings of the trial court.
In the first annexure the appellant was charged with dealing in dagga
(contravening section 2(a) Act 41 of 1971) alternatively, for
possession or use of dagga (contravening section 2(b) Act 41 of
1971). These charges involve 594 grams of dagga.
In the second annexure appellant was charged with
dealing in a potentially dangerous
dependence-producing drug (contravening section 3(a) Act 41 of 1971)
alternatively, for possession or use of a potentially dangerous
dependence-producing drug (contravening section 3(b) Act 41 of 1971).
The drugs referred to in these charges are “two and a half pieces
of mandrax tablets and 594 grams of pure cannabis.”
[5] Mr Lisulo drew the Court’s attention to the fact that
appellant was wrongly charged under section 3 which deals with
potentially dangerous dependence-producing drugs as set out in the
Schedule under Part III (Potentially Dangerous Dependence-Producing
Drugs) in the Act. Neither cannabis nor mandrax are listed under
Part III. He submitted that appellant should have been charged under
section 2 of the Act.
[6] The submissions are correctly made, for
section 2 prohibits any dealing in, use or possession of prohibited
or
dangerous dependence-producing drugs.
Cannabis (dagga) is listed under Part I (Prohibited
Dependence-Producing Drugs) while Methaqualone is listed under Part
II (Dangerous Dependence-Producing Drugs). The word “Mandrax”
does not appear under Part II and prosecutors should refrain from
referring thereto as if it is a dangerous dependence-producing drug.
What is prohibited is the drug called Mathaqualone and where an
accused is charged with dealing in, use or being in possession of
mandrax, the onus is on the State to prove that what the accused was
dealing in, used or had in his possession, contained Methaqualone.
Ordinarily, this will require scientific evidence.
[7] In the present case such evidence is lacking
and if the magistrate intended convicting the accused for being in
possession of the prohibited drug Methaqualone, then there was no
basis to come to such a finding. Because the magistrate did not give
reasons for convicting the accused on either of the two charges, it
seems impossible for this Court to follow the reasoning behind the
court a quo’s
decision to convict. With respect, from the record it appears that
the magistrate himself was uncertain of the charge(s) on which the
appellant pleaded and on which he eventually convicted the appellant.
This is evident from the following:
Despite having convicted
the appellant on two charges, the record reflects that only one
charge was put to him to which he pleaded ‘not guilty’. Although
the handwritten record reflects the words “Alternative Count”, no
plea was recorded in respect thereof. The charge put to the
appellant and to which he pleaded is unknown, as it could either have
been from the annexure containing charges under section 2 or the
annexure containing charges under section 3 of the Act, the latter
being defective.
In a letter dated 18 October 2007 (the day the matter was finalised)
the magistrate addressed a letter to the Registrar which reads as
follows:
“OFFENCE:
1. DEALING IN MANDRAX CONTRAVENTION SECTION
2(C) OF ACT 4/1971
2. DEALING OR
POSSESSION OF CANNABIS
Accused
pleaded not guilty to both the main charge as well as alternative
charge.
Two (2) witnesses were
called. Both witnesses testified that accd sold 4x cannabis to the
value of N$ 20-00. Each cannabis cost N$ 5-00. Accd in his defence
denied having sell or possess dagga/cannabis neither deal or possess
mandrax.
At the end of the day accused
was convicted of both main count and the alternative. Accused was
sentence on main count 5 years imprisonment and 4 years on
alternative. The court then realised shortly after adjournment that
it is impossible to convict accused on both main charge and at the
same time alternative.
It is therefore an appeal
that the alternative charge be set aside and that the main count on
both conviction and sentence stand.”(sic)
Despite the date appearing
on the letter being 18 October 2007, a date stamp of the Office of
the Criminal Court Oshakati, dated 21 November 2007 appears at the
bottom thereof. A duplicate of this letter bearing the same date
also forms part of the appeal record, except that the second letter
now bears a different signature of the magistrate and a date stamp
dated 9 June 2008 of the Magistrate Oshakati. There is nothing in
the record that explains why the letter was re-issued and neither is
there any proof that it was indeed sent to the Registrar.
What is clear from both these letters written by
the trial magistrate is that the offences referred to in both, for
which the appellant was convicted, are incorrect. In count 1 it
refers to a contravention of section
2(C) of Act 41 of 1971 (Dealing in
Mandrax), for which appellant was never charged and in count 2 it
refers to ‘dealing or
possession of cannabis’. It became
even more confusing when the magistrate in a letter dated 17 April
2008, addressed to the Registrar in response to a query directed to
him by Mainga J, referred to the offences on which appellant was
convicted as follows:
“OFFENCE:
ACCD IS CHARGED WITH TWO (2) COUNTS OF TWO (2)
MAIN CHARGED i.e.
COUNT 1 DEALING IN DAGGA AND ALTERNATIVE POSSESSION
OR USE OF
DAGGA
COUNT 2 DEALING
IN MANDRAX ALTERNTIVE POSSESSION OF
MANDRAX”
The magistrate explained the convictions in the following terms:
“Accused
pleaded not guilty to both
main counts as well as their alternatives.
The main charges are
different from each other as well as their alternatives. The 6 grams
were no included in 594 and that is why accused was found guilty of
dealing of 6 grams. Dagga are sold to school children.
The convictions are not put
together of both main charges and alternative.”(sic)
Not only do I find the magistrate’s explanation incomprehensible,
but also contradictory with the record as well as the explanation he
had earlier given in his letter dated 18 October 2007. It is evident
that the magistrate has neither any idea on which charge(s) the
appellant pleaded, nor on which of these was he convicted.
[8] Whereas the appellant was undefended at the trial he
undoubtedly must have been prejudiced by the confusion that existed
during the trial and which even continued thereafter. No judgment
was delivered in which reasons were given for convicting the
appellant and on which offences. How could the appellant have
defended himself properly if he could not have known what the actual
charges against him were or mitigate if he did not know what he was
convicted of? This is a serious misdirection on the part of the
magistrate, constituting an irregularity which amounts to a failure
of justice and therefore vitiates the proceedings. Whatever the
charges were on which the magistrate convicted the appellant and the
sentences that followed, it cannot be allowed to stand and has to be
set aside for the reasons given.
[9] Having come to the conclusion as we did, there is no need for
considering the merits of the appeal, however in the light of the
submissions made before us, it seems necessary to refer to some of
the misdirections committed by the magistrate during the trial.
These were succinctly dealt with by Mr Lisulo and the Court wishes to
express its appreciation towards him for the valuable submissions he
has made and thereby underscoring the need to uphold the appeal in
the interest of justice.
There is no evidence that the appellant was either
found in possession or dealing in the
prohibited dependence-producing drug called Methaqualone; during
cross-examination of the appellant he was asked by the State
prosecutor whether he had ever before been convicted in Namibia to
which he applied in the affirmative. The magistrate, without
interfering, allowed the question plus three more, all dealing with
the appellant’s previous conviction. Inadmissible hearsay evidence
was admitted and relied upon by the magistrate in his reasons for
sentencing i.e. that dagga was sold to school children by the
appellant; serious incriminating evidence against the appellant was
received without a proper basis having been laid to do so.
The impact of the
misdirections committed by the magistrate, especially when deciding a
case involving an unrepresented accused, is serious and given the
elementary nature thereof, amounts to a travesty of justice.
[10] A matter of grave concern to this Court is that after the case
record was sent on review to the High Court on 20 November 2007
Mainga, J returned it to the Magistrate’s Court Oshakati on 12
December 2007 directing a query to the magistrate regarding the
confusing charges preferred against the accused/appellant and to
explain on which charge(s) he was convicted. From a letter addressed
to the magistrate by the clerk of court dated 16 April 2008 the
following appears:
“RE:
REVIEW CASE OF ANDREAS IIPUMBU
Magistrate
refuses
to take the case
of Andreas Iipumbu to respond on the queries from the High Court
because the case was given late to him by the clerk of the criminal
court. The reasons why it was given late to him are as follows:
When the case was received
back from the High Court, Mr Kanime was still on leave.
It was accidentally filed
with the cases which is still waiting for the transcriptions from
Compuneeds and therefore couldn’t be found for a while.
When the case was found the
clerk of the court took it to the Magistrate, Mr Kanime, but he
refused to take it and requested a letter to be written why the case
was late.
I
therefore hope the reasons given why the review case of Andreas
Iipumbu was late is acceptable.”
(My underlining)
It is not clear for how long after the magistrate
had returned from leave did the query remain misfiled
or the time lapse between the magistrate being given the query but
refusing to take it, and the 16th
of April 2007 when the clerk submitted the explanation to the
magistrate as requested. Although the magistrate cannot be faulted
for requesting an explanation for the unnecessary delay in submitting
the query to him, I view the magistrate’s refusal to deal with the
query unless an explanation for the delay was provided, not only to
be a dereliction of duty on the part of the magistrate, but also a
deliberate obstruction of justice namely, the review process.
[11] From what has been said in this judgment concerning the manner
in which the magistrate conducted himself as an official of the
court, it begs the question whether he is at all fit to hold that
position? We shall fail in our duty if this judgment is not brought
to the attention of the Magistrates’ Commission.
[12] For the reasons set out above, the Court
upheld the appeal against conviction and sentence and gave effect
thereto in the order made on the 6th
of March 2009.
[13] The Registrar is directed to forward a copy of the judgment
to the Chairperson of the Magistrates’ Commission.
________________________
LIEBENBERG, AJ
I concur.
_________________________
SHIVUTE, AJ
ON BEHALF OF THE STATE
Adv. D. Lisulo
Instructed by: Office
of the Prosecutor-General
ON BEHALF OF DEFENCE Ms.
F.Kishi
Instructed by:
Kishi
Legal Practitioners
S v Iipumbu (CA 16/08) [2009] NAHC 27 (06 March 2009);