S v Tjapuha (CR 28/2025) [2025] NAHCMD 47 (15 April 2025)

Case Title:

The State v Tjirondero Titus Tjapuha

CR: 28/2025

High Court Ref No:

226/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

15 April 2025

Neutral citation: S v Tjapuha (CR 28/2025) [2025] NAHCNLD 47 (15 April 2025)

It is hereby ordered that:

1. The conviction and sentence, in respect of the charge of assault with the intent to do grievous bodily harm (read with the provisions of the Domestic Violence Act 4 of 2003), are confirmed.

2. The conviction and sentence in respect of the contempt of court are set aside.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter from the Magistrate’s court of Opuwo, is before this court for review in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).

[2] The accused stood charged of assault with the intent to do grievous bodily harm (read with the provisions of the Domestic Violence Act 4 of 2003). He pleaded not guilty, however, at the end of the trial, was convicted and sentenced.

[3] The conviction and sentence on the said charge appears to be in accordance with justice and will be confirmed. The same cannot be said in respect of proceedings surrounding a conviction and sentence on contempt of court in facie curiae that occurred earlier during the trial.

[4] The magistrate, when preparing the matter for review, realised she made an error in this regard and pre-emptively explained that, in hindsight, the proceedings were not in order, thus there is no need for a review query.

[5] The event that led to the conviction of contempt of court was recorded as follows:

‘PP: Case for address before judgment, we are ready to proceed.

Crt: Are you ready accused?

Acc: Yes.

Crt: Are up perhaps intoxicated or under the influence of a any drug with narcotic effect? (sic)

Acc: I did not take anything.

Crt: Stand on one leg?

Acc: accused unable to stand on any of the legs.

Court orderly: I am standing next to the accused and he smell alcohol and red eyes. (sic)

Crt: Accused you have dilated pupil; you aren’t speaking properly and you are unable to stand on one leg. The court orderly further confirmed that you are drinking alcohol, the court conclude that you are under the influence of intoxicating liquor or a drug with a narcotic eccer.t (sic) such is not allowed in your and that amounts to contempt of court. (sic) You are sentenced to 4 days imprisonment.’

[6] Notably, the matter was not referred for review after the conviction on contempt of court even though s 108(2) of the Magistrates Court’s Act 32 of 1944 in peremptory terms provides as such.

[7] It is clear from the record that the accused was given no or little opportunity to explain. The conviction and sentence came without any warning and no opportunity was given to the accused to mitigate.

[8] The following from S v Akwenye¹ equally finds application in this matter:

‘It is a basic principle of our law that the accused should be able to understand the proceedings against him as well as to make a proper defence. If the accused appears before the presiding magistrate drunk, it stands to reason that such person would not be in a position to comprehend the proceedings against him or her. It is thus a gross irregularity to simply convict such accused, to ask him to mitigate and simply sentenced him whilst he was under the influence of alcohol.’

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

1. The conviction and sentence, in respect of the charge of assault with the intent to do grievous bodily harm (read with the provisions of the Domestic Violence Act 4 of 2003), are confirmed.

2. The conviction and sentence in respect of the contempt of court are set aside.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None