S v Abeliu (CR 29/2025) [2025] NAHCNLD 49 (25 April 2025)

Case Title:

The State v Jork Antonio Abeliu

CR: 29/2025

High Court Ref No:

86/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

25 April 2025

Neutral citation: S v Abeliu (CR 29/2025) [2025] NAHCNLD 49 (25 April 2025)

It is hereby ordered that:

1. The conviction and sentence are set aside.

2. The matter is remitted to the Magistrates’ Court Outapi in terms of s 313 of the Criminal Procedure Act 51 of 1977, as amended, to start de novo.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter from the Magistrates’ court of Outapi, 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 was charged with Assault with the intent to do grievous bodily harm (read with the provisions of the Combating of Domestic Violence Act 4 of 2003). He pleaded not guilty. After various postponements, the accused indicated that he wished to make admissions. The magistrate properly warned the accused of the consequences of making formal admissions in terms of s 220 of the CPA. During these admissions, the accused admitted to all the elements of the offense. The State then close its case where after the accused was convicted and sentenced without giving him the opportunity to present his case.

[3] The following query was sent to the magistrate:

‘After the State indicated they will no longer call witnesses, the accused was convicted and sentenced. The record is silent on whether his rights at the close of the State’s case was explained to him. Kindly explain.’

[4] The magistrate replied that he erred for not explaining the right of the accused at the close of the State’s case.

[5] The right of an accused, to present evidence after the close of the State’s case, is one of the basic procedural rights to ensure a fair trial. The failure to explain such to an undefended accused amounts to a technical irregularity that vitiate the proceedings.

[6] In S v Urikhob¹ the following was said that equally finds application in this matter:

‘I reiterate that magistrates ought to take extra care to ensure that evidence is recorded accurately and the accused’s rights are explained properly, to avoid a situation where guilty persons may be acquitted for the failure to ensure a fair trial.

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

1. The conviction and sentence are set aside.

2. The matter is remitted to the Magistrates’ Court Outapi in terms of s 313 of the Criminal Procedure Act 51 of 1977, as amended, to start de novo.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None