S v Abusman and Others (CR 2 /2024) [2025] NAHCMD 10 (23 January 2025)

Case Title:

The State

v

Bertus Abusman Accused 1

Hendrick Gariseb Accused 2

Andries Rooinasie Accused 3

Case No: CR 2 /2024

High Court Review No: 1778/2024

Division of Court:

High Court, Main Division

Heard before:

Lady Justice Claasen J et Mr Justice January J

Delivered on:

23 January 2025

Neutral citation: S v Abusman (CR 2/2024) [2025] NAHCMD 10 (23 January 2025)

The order:

1. The conviction and sentence are set aside.

2. The accused person must be released from custody, unless lawfully detained on another matter.

REASONS FOR ORDER:

CLAASEN J (JANUARY J Concurring):

[1] This is a review placed before me in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended, (hereinafter referred to as “the CPA”) from the Magistrates Court of Okahandja.

[2] Three accused persons were charged with one count of stock theft. On 31 September 2024, the charge was withdrawn against accused 1 and 2 and accused 3 pleaded guilty to the charge. He was convicted in terms of section 112 (1) (b) of the CPA and sentenced accordingly.

[3] Upon going through the review record, I have noticed that the record does not have an explanation in respect of the right to legal representation. A different Magistrate presided at the first appearance and has merely recorded that: ‘Charges explained, legal rights read’. On that basis the review court queried the trial Magistrate as whether the conviction is in accordance with justice if the court record bears no documentation of the explanation in respect of the right to legal representation.

[4] The Magistrate promptly replied and conceded that the court record does not reflect that accused 3 was properly warned about his rights to legal representation and that it amounts to a serious irregularity.

[5] A similar situation arose in S v Petrus¹ as the Magistrate stated that the right to legal representation was explained although the record did not reflect that. In S v Oubiteb,² the court explained the principle in the following terms:

‘[7] The absence of an explanation to the unrepresented accused about his rights to legal representation and his choice thereof taints the conviction and puts the reviewing court in a difficult position to find the conviction to be in accordance with justice. The explanation of an unrepresented accused’s rights to legal representation is of paramount importance at the start of criminal proceedings to ensure compliance with Article 12 of the constitution which states that all 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.’

[6] Since the court was differently constituted, the trial Magistrate should have verified that indeed a proper explanation of procedural rights had been given by the previous Magistrate before proceeding to take the plea. In the absence of typing the full explanation on NAMCIS in the court record, the first Magistrate could have attached an annexure with the full explanation to the case record. That was not done nor has the trial Magistrate subsequently verified that a proper explanation is on the record. The omission by the court a quo to have done resulted in a conviction without proof of a substantial explanation of the accused’s fundamental right to legal representation.

[7] Failure to explain the right to legal representation or failure to record the explanation of that right taints the conviction. Accordingly the proceedings in this case cannot be found to be in accordance with justice.

[8] In the result, the following orders are made:

1. The conviction and sentence are set aside.

2. The accused person must be released from custody, unless lawfully detained on another matter.

CLAASEN J

JUDGE

JANUARY J

JUDGE