CASE NO.: CR 02/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:
THE STATE
and

JOHANNES AMUKWAYA STEPHANUS SAKARIA

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

Tsumeb on a charge of theft, read with the provisions of the Stock Theft Act 12 of 1990 (as amended). Despite both accused pleading not guilty on a charge of theft of two head of cattle, they, at the end of the trial, were convicted as charged and committed for sentence by the Regional Court.

[2] The Regional Court magistrate, acting in terms of s 116 (3) of the Criminal Procedure Act, 1977 (Act 51 of 1977), was not satisfied that the convictions of both the accused were in accordance with justice and sent the matter for review, pursuant to the provisions of the Act. I pause here to observe that the record of the proceedings is incomplete, as it would appear that page 54 of the record is missing. This part of the record is crucial as it partly covers the testimony and cross-examination of the first accused and without it this Court would be unable to consider the evidence presented in the trial court.

[3] However, as pointed out by the learned Regional Court magistrate, the trial court committed a procedural irregularity, vitiating the proceedings subsequent thereto. Although the Regional Court was also not satisfied that the trial court's assessment of the evidence is correct and justifies the convictions, it would be improper for this Court, at this stage, to evaluate the evidence where the accused are likely to call witnesses to give evidence on the merits. Hence, I decline to consider the matter before me on the merits.

[4] At the close of the State Case the court acquitted accused no. 3 and put the two other accused (accused no's 1 and 2) on their defence. The court then explained to them the right they had to give evidence and call witnesses whereafter both accused informed the court that they wanted to give evidence. After an altercation between the magistrate and accused no.1 about the calling of witnesses - which, in my view, was quite unnecessary - the said accused intimated to the court that he had witnesses to call, but that it would be difficult for him to secure their presence at court as he was in custody. The second accused elected not to call any witnesses. Accused no.1 then gave the names and residential addresses of three witnesses he intended calling.

[5] Before the matter was postponed for three months the court conveyed the following to the accused:

"Accused no.l, the State will summon your Witnesses on your behalf as you are in custody."

[7] It therefore seems necessary to quote the relevant section of s 151 of Act 51 of 1977 which reads:
"(1)(a) If an accused is not under section 174 discharged at the close of the case for the prosecution, the court shall ask him whether he intends adducing any evidence on behalf of the defence, and if he answers in the affirmative, he may address the court for the purpose of indicating to the court, without comment, what evidence he intends adducing on behalf of the defence. 
(b) The court shall also ask the accused whether he himself intends giving evidence on behalf of the defence, and-

(ii)	if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused's conduct as may be reasonable in the circumstances.
(2)(a) 	"
(Emphasis provided)

[9] The defence case commenced with accused no.1 testifying and was immediately followed by accused no.2 giving evidence. At the end of the latter's testimony the record reflects the following:

(Indistinct) Your Worship (inaudible).

From the excerpt it is clear that the court did not enquire from accused no.1 whether he still intended calling any witnesses to testify on his behalf - in fact, there is nothing on record showing that the three witnesses the accused intended calling; and for whom subpoenas were to be issued as directed by the court, were present and thus available to give evidence.

[11] This omission on the part of the magistrate is a serious irregularity prejudicial to the accused and inevitably would lead to the setting aside of the conviction and sentences imposed. Although only accused no. 1 intended calling witnesses, it does not mean that only he would have suffered prejudice. Because of the close relation between the respective acts allegedly committed by the accused in the commission of the crime; and not knowing what any of the witnesses would come and say when testifying, the possibility, in my view, cannot be excluded that their testimony might strengthen the case of accused no.2 as well. To that end he would also have suffered prejudice.

Hence, on that basis the conviction of both accused stand to be set aside.

"It is quite clear that a failure or refusal to permit the right to address is an
irregularity which will generally lead to the setting aside of a conviction	
The accused has the right to address the Court, regardless of his prospects of success. Such an irregularity destroys the fairness of the trial and must be regarded as a gross irregularity."

[15] Whereas the accused persons have already been committed to the Regional Court for sentence and the Criminal Procedure Act not providing for a remittal of the case to the Magistrate's Court by the Regional Court, it would require an order from this Court to have the accused persons again be brought before the trial court to continue with the trial in compliance with guidelines set out herein.

[17] In the result, the Court makes the following order:
1. The conviction and sentence in respect of both accused are set aside.
2. The matter is remitted to the Magistrate's Court Tsumeb with the direction that the trial magistrate must proceed with the trial in accordance with the guidelines set out in this judgment.
3. The accused, upon their next appearance in the Regional Court, should be informed accordingly.

LIEBENBERG, J

I concur.

TOMMASI, J