CASE NO.: CR 67/2011

“Not Reportable”

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

KAUMBIRI UAMBURU

(HIGH COURT REVIEW CASE NO.:  918/2011)

CORAM:		PARKER, J et, SIBOLEKA, J

Delivered on:		2011 September 21
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REVIEW JUDGMENT
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PARKER, J	[1]	This matter has been referred to me by way of special review in terms of s 304 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (‘CPA’).  The accused was arraigned in the magistrates’ court, Okakarara, on housebreaking with intent to steal and theft.  The trial commenced and proceeded before Magistrate Ngwanga whose fixed-term contract of employment was not extended on its expiration, and so she returned to her home country, Zimbabwe.

[2]	In such a situation, it has been said (see S v Scheepers 2009 (2) SACR 58 at 61g-h per Willis J) that the failure of a lower court to apply for the setting aside of proceedings and the commencement of a trial de novo, as a result of the unavailability of the magistrate who began hearing evidence in the matter, will not necessarily result in a finding that an accused was subsequently wrongly convicted, if a trial de novo does, in fact, take place without the prior sanction of the High Court.  Nevertheless, it would certainly be desirable and good practice for an application to be made to the High Court, by way of special review, for the setting aside of previous proceedings and the commencement of a trial de novo.  Rather than take the risk of injustice and unnecessary expense and inconvenience for the State and the accused, it is, by far, preferable to approach the High Court for a special review: the commencement of a trial de novo is not merely an administrative matter.

[3]	I respectfully accept the point made by Willis J as a correct statement of law and so I adopt it.  Having done so I make the following order:

(1)	The trial proceedings before the magistrate, Ms Ngwanga, in this matter are set aside.

(2)	The trial may commence de novo before another magistrate at the discretion of the Prosecutor General.

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PARKER, J

I agree.

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SIBOLEKA, J