Court name
High Court Main Division
Case number
28 of 2013
Title

S v Sobuso (28 of 2013) [2013] NAHCMD 104 (17 April 2013);

Media neutral citation
[2013] NAHCMD 104
Coram
Shivute J
Unengu AJ












REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
No: CR 28/2013


In
the matter between:





THE
STATE





and





MICHAEL
SOBUSO





(HIGH
COURT MAIN DIVISION REVIEW REF NO. 365/2013)






Neutral
citation:
S v Sobuso (CR 28-2013) [2013] NAHCMD 104 [17
April 2013]





Coram:
SHIVUTE, J and UNENGU, AJ


Delivered:
17 April 2013






Flynote:
Criminal Procedure – conviction of driving with an excessive
blood alcohol level – set aside – Criminal Procedure –
magistrate relying on the affidavit in terms of section
212(4)(a)(8)(a) of the Criminal Procedure Act 51 of 1977 –
Affidavit not signed by the deponent – nor signed by the
Commissioner of Oaths.






Summary: The
magistrate convicted the accused person of driving with an excessive
blood alcohol level whilst relying on an unsigned affidavit by both
the deponent thereof and the Commissioner of Oaths – Conviction
and sentence set aside – Affidavit relied on by the magistrate
does not comply with the requirements of an affidavit.


___________________________________________________________________



ORDER







In the result, I make the
following order:







(i) The conviction and
sentence are hereby set aside.



(ii) The accused be
refunded any money paid in the matter, as a fine or as a part fine.



(ii) The order by the
learned magistrate to suspend the driver’s licence for a period
of three (3) months is set aside and is of no force and effect from
the date it was made.



___________________________________________________________________REVIEW
JUDGMENT





UNENGU,
AJ (SHIVUTE, J concurring):







[1] This
is a review matter in terms of section 302 of the Criminal Procedure
Act
1
(The CPA). The accused was convicted of contravening section 82(1)
read with sections 1, 86, 89(1) and 89(4) of the Road traffic and
Transport Act
2
(The Act), namely driving with an excessive blood alcohol level, and
sentenced to pay a fine of five thousand Namibia dollars (N$5000.00)
or twelve months imprisonment. In addition, his driver’s
licence was suspended for 3 months.







[2] I
directed the following query to the learned magistrate:







1. Did
the learned magistrate rely on the affidavit in terms of section 212
(4)(a) and (8)(a) of the Criminal Procedure Act, No 51 of 1977
deposed to by Christine Simbara Kamukwanyama to convict the accused
on the alternative count of driving with an excessive blood alcohol
level?







2. If
the answer is yes, give reasons why the learned magistrate accepted
and admitted such an affidavit into record as evidence.



3. Your
urgent rely is appreciated.’







[3] In his reply, the
learned magistrate discussed the requirements set out in section
212(4) of the CPA and concluded as follows:







- ‘The
affidavit in terms of section 212(4)(1) and (8)(a) is admissible
and it’s a public document
.



- Accused
received the blood results prior to the plea being taken, therefore
the affidavit could be produced as probative material
to court by the prosecutor.



- The
mere production of the affidavit to court constituted prima
facie proof
of the facts established.



- Accused
did not object to the affidavit being accepted by court
and it was marked EXHIBIT “A”. Since accused did not
object to the affidavit being submitted into court, it was admitted
as evidence in the proceedings.



- The
conviction and sentence are in order and should not be set
aside
.’







[4] However,
what the learned magistrate did not know is, that exhibit “A”
does not comply with the requirements of an affidavit and is not the
original of the document purporting to be an affidavit. Exhibit “A”
is not signed by the deponent not is it signed by the Commissioner of
Oaths. An affidavit not signed by a Commissioner of Oaths is not an
affidavit; it has to comply with the requirements of the Amendment
Act
3,
brought into operation by Proclamation
4
on 21 July 1972.







[5] That
being so and also the fact that exhibit “A” is the only
document upon which the learned magistrate relied to convict the
accused of an offence of driving with an excessive blood alcohol
level, the conviction and sentence cannot be allowed to stand.







[6] In
the result, I make the following order:







(i) The conviction and
sentence are hereby set aside.



(ii) The accused be
refunded any money paid in the matter, as a fine or as a part fine.



(ii) The order by the
learned magistrate to suspend the driver’s licence for a period
of three (3) months is set aside and is of no force and effect from
the date it was made.















______________________



E
P Unengu



Acting
Judge















______________________



N
N Shivute



Judge



1
Act 51 of 1977




2
Act 22 of 1999




3
Act 55 of 1970




4
No 168 of 1972