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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Ronaldino Oubiteb | Case No: CR 36 /2021 | |
High Court MD Review No: 603 / 2021 |
Division of Court: Main Division | |
Heard before: Mr Justice Liebenberg et Lady Justice Claasen | Delivered on: 10 May 2021 | |
Neutral citation: S v Oubiteb (CR 36 /2021) [2021] NAHCMD 219 (10 May 2021) | ||
It is hereby ordered that: The conviction and sentence are set aside. | ||
Reasons for the order: | ||
section 303 of the Criminal Procedure Act 51 of 1977.
‘[4] It by no means follows that where there is a failure to afford legal representation there must necessarily be a failure of justice resulting in the proceedings being vitiated. In the case of S v Mwambazi 1990 NR 353 at 356B, Levy J went on to refer with approval to the following passage from the judgment of Hoexter JA in S v Mabaso and Another 1990 (3) SA 185 (A) at 204C: “Where a general duty rests upon a judicial officer to inform an unrepresented accused that he has a right to be legally represented, the failure to discharge that duty does not inevitably involve the commission of an irregularity in the judicial proceedings involved. Whether or not an irregularity has been committed will
always hinge upon the peculiar facts of the case; and it need hardly be said that much depends upon the extent of the accused's own knowledge of his rights.”’
persons shall be entitled to be represented by a legal practitioner of their choice, and when they wish to conduct such proceedings in person, it must be indicated expressly and recorded accordingly. Failure to explain the rights of an accused to legal representation, or failure to record such rights, taints the conviction. Consequently, the proceedings in this case cannot be found to be in accordance with justice. [8] In light of the conclusion reached herein, it has become superfluous to address the other issues raised in the query directed to the magistrate. [9] In the result, the conviction and sentence are set aside. | ||
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J C LIEBENBERG JUDGE | C CLAASEN JUDGE |
1 S v Wendeinge (CR 7/2017) [2017] NAHCNLD 68 (24 July 2017).
2 Akim v S (HC-NLD-CRI-APP-CAL-2019/00017) [2019] NAHCNLD 79 (8 August 2019).
3 Coetzee v S (CA 52/2009) [2011] NAHC 72 (11 March 2011).
4 See also S v Kamenye (CR 9/2019) [2019] NAHCNLD 31 (26 March 2019).
Cited documents 4
Judgment 3
- Akim v S (HC-NLD-CRIMINALI-APP-CAL 17 of 2019) [2019] NAHCNLD 79 (8 August 2019)
- S v Coetzee (6) (CA 52 of 2009) [2011] NAHC 72 (11 March 2011)
- S v Kamenye (CRIMINAL 9 of 2019) [2019] NAHCNLD 31 (26 March 2019)