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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Moses Johannes | Case No: CR 31 /2021 | |
High Court MD Review No: 602 / 2021 |
Division of Court: Main Division | |
Heard before: Mr Justice Liebenberg et Lady Justice Claasen | Delivered on: 10 May 2021 | |
Neutral citation: S v Johannes (CR 31 /2021) [2021] NAHCMD 214 (10 May 2021) | ||
It is hereby ordered that: The conviction and sentence are set aside. | ||
Reasons for the order: | ||
appellant applied for legal aid and a legal representative was appointed. Counsel however failed to turn up at court and withdrew from the matter shortly before it was enrolled for trial. The accused thereafter applied for a postponement to obtain another legal practitioner. The State prosecutor erroneously informed the court that another legal practitioner was appointed. This practitioner was however appointed to represent the appellant in another matter. The court a quo incorrectly put it to the appellant that he had opted to represent himself whereas, in fact, he did not waive his right to legal representation. The court proceeded with trial without inquiring whether the appellant was able to obtain the services of another legal practitioner. On appeal it was held that the appellant’s right to be represented by a legal practitioner was infringed and that the appellant was prejudiced to the extent where the irregularity vitiated the entire proceedings. The conviction and sentence were set aside.
have been reflected in the record without ambiguity. The court’s failure to do so undoubtedly infringed on the rights of the accused as guaranteed by Article 12 of the Namibian Constitution which, in imperative terms, states that all persons shall be entitled to be defended by a legal practitioner of their choice. A failure to afford an accused such opportunity amounts to an irregularity which has the effect of vitiating the proceedings. Consequently, the conviction and sentence fall to be set aside on that basis alone. There are however other issues deserving comment.
‘The prosecution may, after an accused has been convicted but before sentence has been imposed upon him, produce to the court for admission or denial by the accused a record of previous convictions alleged against the accused. (2) The court shall ask the accused whether he admits or denies any previous conviction referred to in subsection (1). (3) If the accused denies such previous conviction, the prosecution may tender evidence that the accused was so previously convicted. (4) If the accused admits such previous conviction or such previous conviction is proved against the accused, the court shall take such conviction into account when imposing any sentence in respect of the offence of which the accused has been convicted.’
evidence should be led by the state to prove the previous conviction in question. In the present matter, the court misdirected itself when the accused disputed the previous convictions but the court, nevertheless, proceeded to overrule the objection on the basis that it is a bare denial. Instead, the court should have called upon the state to lead evidence which could prove the previous convictions, as required by section 271 of the CPA. Only thereafter would the court have been in a position to decide whether or not the previous convictions have been duly proved. If the previous convictions have indeed been proved, the court should then take those into consideration in the process of determining the appropriate sentence.3 [11] In the present matter it did not happen that way and the procedure adopted by the court constitutes a material irregularity upon which the sentence may be set aside. It is apparent from the sentencing judgment that the magistrate relied upon the previous convictions to a greater extent in determining the sentence imposed upon the accused. [12] In the result, it is ordered that the conviction and sentence are set aside. | ||
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J C LIEBENBERG JUDGE | C CLAASEN JUDGE |
1 Haipinge v The State (CA 03/2016) [2017] NAHCNLD 94 (28 September 2017).
2 S v Wendeinge (CR 7/2017) [2017] NAHCNLD 68 (24 July 2017)
3 See State v Noabeb (CC 09/2014) [2016] NAHCMD 147 (18 May 2016)
Cited documents 4
Judgment 2
- S v Haipinge (3) (3 of 2016) [2017] NAHCNLD 94 (28 September 2017)
- S v Wendeinge (7 of 2017) [2017] NAHCNLD 68 (24 July 2017)