S v Ukanana (CR 53/2024) [2024] NAHCNLD 127 (1 November 2024)

NOT REPORTABLE

 

 

REPUBLIC OF NAMIBIA

 

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

 

REVIEW JUDGMENT

Case no: CR 53/2024

 

In the matters of:

 

THE STATE

 

v

 

RAFAEL UKANANA ACCUSED

 

 

 

Neutral citation: S v Ukanana (CR 53/2024) [2024] NAHCNLD 127 (1 November 2024)

 

Coram: SALIONGA J et KESSLAU J

 

Delivered: 1 November 2024

 

Flynote: Criminal Procedure – Assault with intent to do grievous bodily harm – Magistrate misdirected himself by failing to ask accused questions pertaining to the intention at the time of assaulting the complainant – Procedure followed riddled with irregularities and the accused has already served his sentence – No need to remit the matter – The conviction and sentence set aside.

 

 

ORDER

 

(a) The conviction and sentence are set aside.

REVIEW JUDGMENT

SALIONGA J (KESSLAU J Concurring)

 

[1] The matter was submitted for automatic review in terms of s 302 of the Criminal Procedure Act 51 of 1977 as amended, (the CPA).

 

[2] The 35 year old unrepresented accused appeared in the Magistrate’s Court of Opuwo charged with assault with intent to cause grievous bodily harm. The accused pleaded not guilty on 8 November 2016 before magistrate Iyambo and disclosed his basis of defence that: ‘I was not having issues with the one person Sara, as she just come and she was injured by accident. I injured her with a crate of beer as I threw it to her.’(sic) The matter was remanded to the 11^th July 2017 for trial.

 

[3] After several postponements, the matter came before magistrate Amutenya on 12 February 2024. Surprisingly, on that date, accused again pleaded not guilty to the charge. He explained that he was fighting with another person and this Sara being mentioned is not the person he was fighting with and there was a witness who was together with him. Thereafter the matter was postponed to 6 March 2024 for trial.

 

[4] On the date for trial, the accused indicated that he wished to make admissions. Accused indicated that on the 31^st of October 2015 he was at Onungurura, he assaulted Sara Nghituku by throwing a crate on her and she got injured after he threw her with a crate. He was sorry to the court for his actions as/and he was wrong. He admitted that he was wrong when he assaulted her with a crate. Thereafter the aforesaid were recorded as admissions in terms of s 220 of the CPA. Following these admissions the State closed its case and accused closed its case. He was subsequently convicted and sentenced to N$ 1000 (one thousand) or 6 (six) months’ imprisonment.

 

[5] On review, I raised the following query with the magistrate:

‘(a) Why did the magistrate not explain the effect of the formal admissions, to the accused and that he is not compelled to assist the state in proving its case?

(b) Whether the CPA permits accused to plead twice in a single charge.

(c) On what basis was accused convicted on the admissions made if he did not admit intention to nor did admit to have foreseen the possibility of causing grievous bodily harm to the complainant.’

 

[6] The learned Magistrate, in her reply, conceded that indeed the accused were entitled to the verdict on the first plea of not guilty and the second plea by the second magistrate was a procedural error. The magistrate also conceded to the second query that the accused person was not asked what his intention was at the time of the incident. She therefore requested the proceedings to be set aside and the matter be remitted to be brought to its final conclusion.

 

[7] As far as the recording of admissions are concerned, I find it appropriate to reiterate what the Court in S v Mavundla 1976 (4) SA 713 (N.P.D) stated:

 

‘When an accused person proposes to admit of fact under section 284 (1) of Act 56 of 1955, (which is equivalent of s 220 of the current Criminal Procedure Act 51 of 1977) but he lacks legal representation, the judicial officer trying him must satisfy himself before accepting the admission in evidence, that the accused’s decision to make it has been taken with full understanding of its meaning and effect, and under no misapprehension that he is obliged or expected to supply the state or the court with it. It must also appear to be truly voluntary in all other respects.’

 

[8] Applying the law to the fact, the proper approach for recording admissions is that immediately when it became apparent that the unrepresented accused wanted to make formal admissions, the Court a quo was supposed to explain to the accused that the effect of making a formal admission will relieve the state of the burden of proving the admitted facts by evidence; and that the accused is not compelled to assist the prosecution in proving its case. This notwithstanding, what should have been done after the admissions were made, was for the state to be afforded an opportunity to close its case and for the accused to be put on his defence considering that he admitted sufficient allegations in the charge establishing a prima facie case against him.¹ However, this did not happen in casu. The magistrate rightly makes a concession that the correct procedure was not followed.

 

[9] Coming to the second query, it is trite that the CPA does not sanction an accused to plea twice on a single charge. By pleading not guilty to a charge of assault on the 8^th November 2016, the accused was entitled to a verdict. The record is silent on why the magistrate who initially took the plea and recorded some of the admissions, could not proceed to finalise the case. There is no indication that the original magistrate was no longer in the employment of the state.

 

[10] Section 118 of the CPA only sanctions this procedure where the original magistrate or presiding officer ‘is not available’ and does not entitle the prosecution to proceed before another presiding officer for any other reason. To continue with a trial in front of another magistrate where the original magistrate is still available constitutes an irregularity. See S v Wellington, 1991 (1) SACR 144 (Nm). It must be emphasised that s 118 of the CPA must only be invoked in cases where a plea of not guilty is taken and no evidence adduced as yet. In this regard, I find the magistrate’s concession properly made.

 

[11] With regard to the last point of the query which is, on what basis the accused was convicted as charged if he did not admit intention to cause grievous bodily harm. The learned magistrate correctly conceded that accused was not questioned what his intention was when he assaulted the complainant and he did not admit the same and requested the matter to be remitted back.

 

12] The proceedings do not appear to be in accordance with justice in that: accused erroneously pleaded twice to a single charge, the Court a quo did not explain the effect of the formal admissions and did not also apply the precautionary measures as to the proper recording of formal admissions and lastly convicted the accused on the admissions whereby intention to cause grievous bodily harm or foreseeability of that possibility was not admitted.

 

[13] In the meantime, for the reason that the procedure followed in this case were riddled with irregularities and the accused has already finished serving his sentence, there is no need to remit the matter to the magistrate. Instead, the conviction and sentence have to be set aside.

 

[14] In the result, the following order is made:

 

1. The conviction and sentence are set aside.

 

 

 

 

 

 

 

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J T SALIONGA

Judge

 

 

et

 

 

 

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E E KESSLAU

Judge