NO.: CR 13 /2011
THE HIGH COURT OF NAMIBIA
the matter between:
J and Smuts, J
This matter has been submitted by a magistrate in Walvis Bay for a
The two accused were arrested in January 2008, each charged with
possession of cocaine - a contravention of section 2 (d) of Act 41 of
1971. The matter eventually proceeded for plea and trial on 2
February 2011. Each accused entered a plea (of not guilty) and the
evidence of the first witness was led - a police officer who had
acted upon a search warrant. It would appear that the arrest of the
accused was a consequence of the search warrant.
In the course of cross-examination, it became clear that the defence
attorney for both accused, Mr. H Barnard, called into question the
regularity of the warrant, putting it to the witness that it was
based upon false information. Mr. Barnard further pointed out that
the warrant had been issued by the presiding Magistrate who may need
to give evidence concerning it.
The prosecutor was inexplicably not in possession of the warrant.
But, upon seeing the warrant, asked the Magistrate to recuse himself.
This request was supported by Mr. Barnard on behalf of the accused.
Although the warrant had not as yet been received in evidence, the
presiding Magistrate has indicated that he has every reason to
believe that he may have issued the warrant and does not doubt the
prosecutor's belief that he had signed it. The Magistrate has further
indicated that he would be prepared to recuse himself in the
interests of justice and had requested that the matter be considered
as a special review. He was supported in this by both the defence and
the prosecution. The Magistrate then proceeded to remand the matter
to 11 March 2011, pending the decision of a special review.
Section 304 (4) of the Criminal Procedure Act, 51 of 1977 deals with
special reviews. It provides:
"If 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
record thereof had been laid before such court or judge in terms of
section 303 or this section."
The section however contemplates a completed trial. These proceedings
are unterminated. A special review under s 304 (4) would thus not be
As was stressed in S v.
Court has the inherent power to curb irregularities in proceedings in
magistrate's courts. But it will only exercise that power where grave
injustice might otherwise result or where justice might not be
attained by other means.
Although this Court would thus be slow to intervene in unterminated
proceedings, this would seem to me to be an instance where such
intervention is required. It would plainly be untenable for the
proceedings to carry on any further if the presiding Magistrate were
to have issued the warrant and where its legality is placed in issue.
It would follow that the proceedings should be set aside. What is
however in explicable is why the accused's attorney did not raise
this issue before the proceedings on 2 February 2011 commenced. That
is clearly the proper course follow. Regrettably, this did not occur
and the current referral and consequential order are the result, with
the attendant yet further unnecessary delays in the criminal justice
system which could have been avoided.
The consequence of these events in the following order:
The proceedings in the district Court where the charges were put and
where they pleaded on 2 February 2011 and the ensuing evidence are
The matter is remitted to the Court for a referral for plea and trial
before another magistrate.