S v Kavenambunga (CR: 40/2025) [2025] NAHCNLD 64 (22 May 2025)

Case Title:

The State v Efraem Kavenambunga

CR: 40/2025

High Court Ref No:

300/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

22 May 2025

Neutral citation: S v Kavenambunga (CR 40/2025) [2025] NAHCNLD 64 (22 May 2025)

It is hereby ordered that:

1. The conviction and sentence are confirmed.

2. The proceedings dated 24 November 2023, reinstating the bail of the accused, 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 automatic 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. He pleaded guilty and, after questioning by the magistrate in terms of s 112(1)(b) of the CPA, was convicted as charged. The accused was sentenced to a fine of N$3 000 or nine month’s’ imprisonment suspended in total on the usual condition.

[3] The above proceedings appear to be in accordance with justice and both the conviction and sentence will be confirmed.

[4] The review record was accompanied by a letter from the magistrate indicating that she made an error of re-instating bail of the accused after such was previously finally forfeited to the State. The magistrate explained that she made this error prior to becoming aware of the correct procedure as per a review judgment that addressed the same issue.¹ It is unclear from the review record submitted, if the bail was eventually erroneously refunded to the depositor.

[5] The forfeiture of bail is provided for in s 67 of the CPA with s 67(2)(c) stating that:

‘If the accused does not appear before court within fourteen days of the issue under subsection (1) of the warrant of arrest or within such extended period as the court may on good cause determine, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall become final.’

[6] It is trite law that s 67 of the CPA makes no provision for the summary inquiry as adopted by the magistrate.² Once bail is finally forfeited, the practise is to informally enquire and note the reason for the absence of an accused on record and thereafter inform the accused that bail had finally been forfeited. The magistrate does not have the power to re-instate such forfeited bail or to refund it to the depositor. An accused who feels aggrieved by the forfeiture, has the redress to take that up with the Minister of Justice in the form of a claim upon finalization of the case. In this matter, the re-instating of the forfeited bail amounts to an irregularity and will be set aside.

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

1. The conviction and sentence are confirmed.

2. The proceedings dated 24 November 2023, reinstating the bail of the accused, are set aside.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None