Court name
High Court Main Division
Case number
CRIMINAL 46 of 2013
Title

S v Gawanab (CRIMINAL 46 of 2013) [2013] NAHCMD 219 (29 July 2013);

Media neutral citation
[2013] NAHCMD 219
Coram
Miller AJ
Damaseb JP













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CR
46/2013



In the matter between:








THE STATE



and



SHAUN LEROY GAWANAB
..........................................................................ACCUSED



(HIGH COURT MAIN DIVISION
REVIEW REF NO.: 81/2013)








Neutral citation: The
State v Gawanab
(CR 46/2013) [2013] NAHCMD 219 (29 July 2013)








Coram: MILLER
AJ et DAMASEB JUDGE-PRESIDENT








Delivered on: 29
July 2013










ORDER










The order made by the
magistrate is set aside and the matter is returned to the magistrate
to deal therewith in accordance with this judgment.

























JUDGMENT










MILLER AJ :[1] The
accused was arraigned before the magistrate at Omaruru on a charge of
attempted murder.








[2] The learned
Magistrate ordered that the accused be referred to a mental
institution for observation in terms of Section 77 of the Criminal
Procedure Act, Act 51 of 1977.








[3] In due course, a
physchiatrist, Dr. Alibusa Seddie Wilfred, after observing the
accused for a period of a month, filed a report which was placed
before the magistrate.








[4] It is apparent from
the report that in the opinion of Dr. Wilfred the accused was
mentally ill to the extent that he was unable to appreciate the
wrongfulness of his actions.








[5] The learned
Magistrate thereupon ordered that the accused be detained in terms of
Section 9(6) of the Mental Health Act of 1973.








[6] The learned
Magistrate correctly conceded that the order was not competent.








[7] Bearing in mind the
finding that the accused was unable to appreciate the wrongfulness of
his act, the Magistrate should have proceeded, instead in accordance
with the provisions of Section 78 of Act 51 of 1977.








[8] The order made by the
Magistrate is set aside and the matter is returned to the Magistrate
to deal therewith in accordance with this judgment.











































----------------------------------



P J MILLER



Judge


















I agree


















___________________



P J DAMASEB



Judge-President