CASE NO.: CR 09/09
IN THE HIGH COURT OF NAMIBIA HELD
In the matter between:
(HIGH COURT REVIEW CASE NO.:
Delivered on: 31 March 2009
 The accused in this
matter was charged with the offence of theft in Ondangwa magistrate’s
court. He pleaded guilty to the charge and was convicted as charged
 A query was directed to the
magistrate as follows:
Why was the date when the incident took place, the name of the
Shebeen and the district where the incident took place not covered by
the Magistrate when he questioned the accused in terms of section 112
(b) Act 51 of 1977?
Within which time frame was the accused informed to appeal given the
fact that such time frame is not indicated on the annexure attached
which was used to inform the accused of his rights of appeal?”
The learned magistrate replied to the query as follows:
concede I over looked to canvas the date, the name of the Shebeen and
the district the incident took place when I questioned the accused in
terms of section 112 (b) of Act 51 of 1977. I have also noted that
the annexure on appeal rights does not specify the time frame within
which an accused is to appeal. This omission is due to an oversight.
It should reflect that the accused has 14 days to note such an
appeal. I undertake in this regard to take the necessary corrective
measures and amend the annexure accordingly.
stand guided by the learned Judge as to the corrective measures to be
adopted in this case”.
 1. The questioning was clearly
inadequate. Important questions such as the
date, month, year when the
offence took place; and
The place and the district where the
offence took place were not canvassed at all.
 Section 112 (1) (b) of the
Criminal Procedure Act, Act 51 of 1977 states that the magistrate
shall question the accused with reference to the alleged facts of the
case in order to ascertain whether he admits the allegations in the
charge to which he has pleaded guilty, and may, if satisfied that the
accused is guilty of the offence to which he has pleaded guilty, on
his plea of guilty of that offence impose a competent sentence.
 The learned magistrate concedes
that he overlooked to canvass the date, the name of the shebeen and
the district where the incident took place. The oversight on the
part of the magistrate amounts to an irregularity and which
irregularity justifies the setting aside of the conviction.
 This is not all though. In
informing the accused his rights of appeal, the learned magistrate
used an annexure which does not disclose the time frame within which
the accused has to note an appeal, should he wishes to do so.
 Before the court uses an annexure
it should satisfy itself that such annexure meets the requirements
i.e. it should contain all the relevant information needed to be used
for that particular purpose.
 In the result, the conviction and
sentence are set aside and the matter is remitted to the magistrate
in terms of section 312 to proceed in terms of section 112 (1) (b) of
Act 51 of 1977.