Reportable
CASE
NO.: 24/09
SUMMARY
Antonio
Jose Lucas Applicant
and
The
State
RESPONDENT
LIEBENGERG,
A.J et
SHIVUTE, A.J
11/03/2009
CRIMINAL
PROCEDURE-Special review in terms of section 304 (4) act 51 of
1977 accused dissatisfied with custodial sentence imposed –
Proceedings in which sentence was imposed are in accordance with
justice – Section 304 (4) does not substitute appeal process –
Constitutes abuse of criminal procedure.
CASE NO.: CR 04/2009
IN THE HIGH COURT OF
NAMIBIA HELD
IN
OSHAKATI
In the matter between:
ANTONIO
JOSE LUCAS
and
THE
STATE
(Magistrate
Review no 24/09)
CORAM: LIEBENBERG,
AJ et
SHIVUTE, AJ
Delivered on: 11 March
2009
SPECIAL REVIEW:
SECTION 304(4) ACT 51 OF 1977
LIEBENBERG,
AJ:
[1]
This
is an application for special review made in terms of section 304(4)
of the Criminal Procedure Act, Act No 51 of 1977 (the Act) which was
filed with the Registrar on 5 March 2009.
[2]
This application relates to
the accused’s conviction following his plea of guilty on a charge
of contravening section 29(1) of the Immigration Control Act, Act No
7 of 1993 for which he was sentenced to direct imprisonment of 6
months in the magistrate’s court, Ohangwena.
[3]
The accused is an Angolan national, 19 years of age and from the
record, a second year student at an “institution” in Windhoek.
There are prospects of him being enrolled with the University of
Namibia this year and he has already applied for a study permit for
that purpose.
[4] The application is
based on several “points of law and/or facts” which can be
summarised as follows:
Applicant appreciates
the seriousness of the crime committed;
Applicant
is in Namibia for a good cause i.e. to further his studies;
Applicant
considers himself partly Namibian having completed his primary and
secondary education in Windhoek;
Applicant admits having
committed the offence for which he was charged;
Applicant was
unrepresented at the hearing and might have failed to properly
enlighten the court on his personal circumstances before sentence;
Applicant was advised by
fellow inmates, the prosecutor and other court officials to plead
guilty as only a fine would be imposed;
That
the presiding officer
“recommends” to the Reviewing Judge to, upon reconsideration of
sentence, “release (applicant) on warning, alternatively that the
sentence be altered to that of a fine”;
That
in the light of the cases cited, the matter is reviewable under
section 304 of the Act;
That
a grave injustice might result “because
there are no other means where justice might be attained in this
matter. The only option the accused has is to appeal but it is
common cause that by the time his appeal might be heard, the accused
will have served 80% of his time in custody render the appeal
ineffective.”
(sic)
[5]
The magistrate’s response to the application served on him was in
the following terms:
“1.
Section 304(4) of the Criminal Procedure Act 51/77 is only applicable
if an erroneous or defective sentence is imposed, i.e. its about
the correction of an error or defect in a sentence that has been
imposed.
2.
The
sentence at hand is neither erroneous nor defective and needs not to
be corrected, i.e. the sentence imposed is proper, correct and
competent.
3.
Thus
the only option open to the applicant is to challenge this sentence
by way of appeal if they are not satisfied with it and not by
resorting to Section 304(4) of the Criminal Procedure Act.”
[6]
I was referred to three
judgments as authority for this Court to interfere with the sentence
imposed, but these cases have no relevance to the application at hand
as they deal with undetermined
proceedings.
In S
v Immanuel 2007(1)
NR 327 (HC) the following appears in the head note:
“Where
a conviction has not been entered (or where a conviction had been
entered but is not followed by sentence) the provisions of s. 304(4)
of the CPA 51 of 1977 (dealing with special reviews) are not
applicable. Although this Court has inherent power to curb
irregularities in magistrates’ courts by referring (through review)
with undetermined
proceedings
emanating there from, such as the present proceedings, it will only
exercise that power in rare instances of material irregularities
where grave injustice might otherwise result, or where justice might
not be attained by
other means.”
(emphasis added)
The
two other cases
cited, although from a different jurisdiction, also deal with
undetermined proceedings and what approach the court should follow.
(S
v Burns and Another 1988(3)
SA 366 (C); Ismail
and Others v Additional Magistrate, Wynberg and Another 1963
(1) SA (A). What has been made clear in these cases is that the
court would only interfere with undetermined proceedings in a
magistrate’s court in rare instances where grave injustice might
otherwise result or where justice might not be attained by other
means.
[7]
In the present application the proceedings in the magistrate’s
court has been finalised and are not subject to automatic review
because the magistrate has held that rank for a period of seven years
and longer. (Section 302 of the Act). Applicant now seeks to have
the sentence imposed by the magistrate reviewed and therefore relies
on the provisions of section 304(4) which states:
“(4) If in any
criminal case in which a magistrate’s court has imposed a sentence
which is not subject to review in the ordinary course in terms of
section 302 or in which a regional court has imposed any sentence, it
is brought to the notice of the provincial or local division having
jurisdiction or any judge thereof that the proceedings in which the
sentence was imposed were not in accordance with justice, such court
or judge shall have the same powers in respect of such proceedings as
if the court thereof had been laid before such court or judge in
terms of section 303 or this section.”
The
provisions of section 304(4) are clear and can only be relied upon
“where
the proceedings in which the sentence was imposed were not in
accordance with justice.”
[8]
Applicant does not aver in his application that the proceedings
relating to the sentence imposed are not in accordance with justice,
and neither is there anything on record suggestive thereof. On the
contrary, in par 1.4 of his application he states:
“1.4 The Applicant
certainly overstayed his stay in Namibia which in an offence.”
Applicant
pleaded guilty and after admitting the elements of the offence, he
was convicted accordingly. The sole purpose of this application is
an attempt to have the sentence imposed by the magistrate overturned
and substituted with a sentence other than a custodial sentence. The
learned magistrate in his reasons, correctly points out that the
sentence imposed is neither erroneous nor defective and need not be
corrected and should the sentence be challenged, then that should be
done by way of appeal and not section 304 of the Act.
[9]
The reason advanced by the applicant why he relies on section 304 for
relief, is that by the time an appeal is heard, he almost would have
served the sentence in full. I respectfully find applicant’s view
disturbing and there is no justification for bringing an application
on such basis. It remains an essential element that the court’s
interference is justified (only) because of the interest of justice,
which clearly is not the position with the present application. The
Court cannot allow that section 304(4) be used for so-called “cheap
appeals” as this would be nothing other than an abuse of criminal
procedure.
Whereas applicant is
dissatisfied with the sentence imposed, he should appeal the matter
and has the right to approach the magistrate’s court with an
application to consider bail pending finalisation of the appeal.
[10]
In the result, the application is dismissed.
_____________________
LIEBENBERG, AJ
I Concur
___________________
SHIVUTE,
AJ
S v Lucas (CR 04/2009) [2009] NAHC 29 (11 March 2009);