CASE NO.: CR 11/2011
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
FLOYD KAHEVITA

REVIEW JUDGMENT - SECTION 116 (3) ACT 51 OF 1977

[3] On his first appearance in court on 10 September 2007 the magistrate explained to the accused his right to legal representation; whereafter he informed the court that he would instruct a legal representative of his choice. The accused was admitted to bail in the amount of N$2 500, and after it was paid, he was released. The case was thereafter postponed several times; mostly for 'plea' and 'further investigation'. On two occasions the accused failed to attend court, which eventually resulted in him forfeiting his bail monies and he was thereafter ordered in custody. I pause here to observe that the procedure adopted by the magistrate during an enquiry held into the absence of the accused from court, falls far short from the provisions of s 67 of the Act. Suffice it to say that the manner in which the enquiry was conducted represents a most unsatisfactory and disturbing state of affairs; which is not in the interest of the administration of justice.

[4] When the case was postponed on 16 September to 16 December 2009 for plea and trial, the accused was remanded in custody and admitted to bail in the amount of N$3 500. He was not in the position to raise the bail money. The court did not at this stage enquire from the accused whether his legal representation was in place and ready, as it was clear that the case would then go on trial.

[10] In terms of s 168 of the Act the court may adjourn proceedings to any date. The section reads:

"A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which the court may seem proper and which are not inconsistent with any provision of this Act."

[11] The right of an accused person to be legally represented at his/her trial has long been recognised in our law and that right was given statutory force by s 73 (2) of the Act, which provides that:

"An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question."

"[8] It can be stated that the exercise of a right to legal representation is of critical importance in any trial as it is the only source through which the other rights can be

The courts have always displayed a higher degree of tolerance when it comes to accused persons' right to legal representation; more so after the enactment of the Constitution, as Article 12 (1)(e) provides:

[11]).

[13] Stock theft, in this jurisdiction, has always been considered to be a serious crime and one which would normally attract severe punishment - more so, since the enactment of the Stock Theft Amendment Act, 2004 (Act 19 of 2004), which, depending on the value of the stolen stock, prescribes minimum sentences of not less than two and twenty years imprisonment, respectively. In this case, the accused was charged with theft of stock valued at N$35 000, and upon conviction, would undoubtedly have fallen in the latter category. Dealing with cases of stock theft, the identity of the stock alleged to have been stolen is usually in dispute, as it determines ownership. In this case the accused, from the outset, claimed ownership of the alleged stolen cattle; and it was obvious that the identification of the cattle would be a crucial issue during the trial. In the field of evidence, experience has shown that proof of identity is more often than not, found to be a complex issue; and one which the courts normally approach with the necessary caution, when relying on such evidence in order to convict. The present case turned out to be an excellent example where the court convicted on contradicting and unreliable evidence, as regards the identification of the cattle alleged to have been stolen. Thus, when the court considered the application, it ought to have realised that an unrepresented accused would most probable find it difficult during the trial to meet the challenges he was facing.

I fully endorse the sentiments expressed by the learned judge and find it equally applicable to the present facts.

[16] The inference drawn by the trial court, that the accused was solely to blame for being before court unrepresented, was clearly not justified in the absence of further clarification; and the court, in exercising its discretion to proceed with the trial, had clearly misdirected itself in this respect. And, were it not for this, the court would no doubt have felt that the accused's right to legal representation and the requirements of a fair trial, outweigh the obvious inconvenience and delay caused by a postponement of the case. In the light of the seriousness of the charge and the consequences of a possible conviction and the prescribed minimum sentences, this undoubtedly would be disastrous for the accused. The accused's request, asking time in order to enable him to contact his legal representative, in the circumstances, was reasonable and should never have been refused. The magistrate clearly misdirected herself, which materially influenced her in exercising her discretion, resulting in an irregularity.

[18] Whether or not prejudice has resulted from the lack of legal representation, is really a question that can be determined only by having regard to the whole trial - the way in which it was conducted; the ability (as shown during the course of the trial) of the accused to represent himself adequately; and whether the evidence adduced has led justifiably to the conviction and sentence.

[20] For the conclusion reached herein, I do not deem it necessary to deal with the second complaint raised by the Regional Court magistrate ie that the facts do not sustain a conviction. Suffice it to say, that the evidence adduced pertaining to the identification of the cattle on their brand- and earmarks, is unreliable to the extent that it should cast doubt in the mind of the trier of fact.

[21] In the result, the conviction is set aside.

LIEBENBERG, J

I concur

DAMASEB, JP