S v Heita (CR 26/2013) [2013] NAHCMD 101 (16 April 2013);

Group

Full judgment

NOT REPORTABLE


REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT

Case no: CR 26/2013


In the matter between:


THE STATE


and


RICHARD H HEITA


HIGH COURT REVIEW CASE NO.: 395/2013


Neutral citation: State v Heita (CR 26/2013) [2013] NAHCMD 101 (16 April 2013)


Coram: HOFF J and SHIVUTE J


Delivered: 16 April 2013


Summary: Accused convicted of two statutory contraventions under the Road Traffic Act 22 of 1999 after pleas of guilty — The questioning by the magistrate in respect of a charge of contravening s 82(1) of Act 22 of 1999 (driving under the influence of liquor) was incomplete and was as such conceded by the presiding magistrate — The matter is referred back to magistrate to complete his questioning.



ORDER

(a) The conviction in respect of the first count (driving under the influence of liquor) is set aside.


(b) The conviction in respect of the second count is confirmed.



(c) The sentence is set aside.



(d) The matter is referred back to the presiding magistrate in order to complete his questioning in respect of the first count.



(e) Should the magistrate be satisfied that the accused admitted all the allegations in the charge sheet he should sentence the accused in respect of this first count and thereafter impose a separate sentence in respect of the second count.



(f) If the presiding magistrate is not so satisfied he should enter a plea of not guilty and order the public prosecutor to lead the testimony of witnesses.


JUDGMENT


HOFF J (SHIVUTE J concurring):


[1] The accused was charged with the offences of contravening section 82(1) of the Road Traffic and Transport Act 22 of 1999 (driving a motor vehicle under the influence of liquor) and contravening section 31(1)(a) of Act 22 of 1999 (driving a motor vehicle without a driver’s licence).


[2] The counts were taken together for purpose of sentence and the accused was sentenced to a fine of N$2000 or 6 months imprisonment in default.

[3] This court has in the past in various review judgments impressed it upon magistrates the undesirability of taking, especially statutory contraventions, together for purpose of sentence, which I need not repeat at this stage.


[4] I directed the following query to the presiding officer:


‘Please provide me with your reasons for convicting the accused on the charge of driving a motor vehicle under the influence of liquor’.


[5] It is apparent from the record that the accused pleaded guilty to both counts and was subsequently questioned in terms of the provisions of section 112(1)(b) of Act 51 of 1977.


[6] The aforementioned query was the result of inadequate questioning by the magistrate.


[7] The presiding officer inter alia replied as follows;


‘The limited questions by the court do not embrace all the elements of the offence to warrant a conviction. The questions should have been asked as per attached pro-forma. In the event all questions are answered in the affirmative that could have covered all elements of the offence.’

This concession was made wisely.


[8] I am satisfied that the conviction in respect of the second count (driving without a driver’s licence) is in order.


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


  1. The conviction in respect of the first count (driving under the influence of liquor) is set aside.


  1. The conviction in respect of the second count is confirmed.



  1. The sentence is set aside.



  1. The matter is referred back to the presiding magistrate in order to complete his questioning in respect of the first count.



  1. Should the magistrate be satisfied that the accused admitted all the allegations in the charge sheet he should sentence the accused in respect of this first count and thereafter impose a separate sentence in respect of the second count.



  1. If the presiding magistrate is not so satisfied he should enter a plea of not guilty and order the public prosecutor to lead the testimony of witnesses.







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E P B HOFF

Judge






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N N SHIVUTE

Judge



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