Court name
High Court Main Division
Case number
CRIMINAL 37 of 2013
Title

Muruko v Mieze (CRIMINAL 37 of 2013) [2013] NAHCMD 228 (31 July 2013);

Media neutral citation
[2013] NAHCMD 228
Coram
Hoff J
Van Niekerk J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 37/2013







In the matter between:











DAMOLINE MURUKO



and



ELLIS MIEZE







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 516/2013)











Neutral citation:
Muruko v Mieze
(CR 37/2013) [2013] NAHCMD 228 (31 July 2013)







Coram: HOFF J and
VAN NIEKERK J







Delivered: 31
July 2013











Summary: Maintenance
orders made in terms of the Maintenance Act 9 of 2003 are not subject
to review in terms of section 304 of the Criminal Procedure Act 51 of
1977.













ORDER





The maintenance order of
the magistrate is not reviewable in terms of the provisions of s
304(4) of Act 51 of 1977 and the record of the proceedings is
accordingly returned to the clerk of the court.









JUDGMENT









HOFF J (VAN NIEKERK J
concurring):







[1] This matter was sent
on special review in terms of the provisions of s 304(4) of Act 51 of
1977 by magistrate Mr Endjala, who is the Head of Office of the
Mungunda Street, Magistrate’s Court in Windhoek.







[2] In a covering letter
magistrate Endjala drew my attention to the fact that the presiding
magistrate had antedated a maintenance order and he stated that the
magistrates court, unlike the High Court, has no jurisdiction to do
so, that such order is irregular and illegal, and asks for the
rectification of such order.







[3] The order given by
the presiding magistrate on 26 February 2013 reads as follows:







1. The
defendant is ordered to pay monthly an amount of N$2000 towards
maintenance of the beneficiary.



2. Payments must be made to the
complainant by depositing into her bank account, on or before the 3rd
day of each month with effect from 03 July 2012.



3. This order substitutes all previous
maintenance agreements and orders.’







[4] It is apparent from
the record of the maintenance enquiry in the magistrate’s
court, that the reason why paragraph 2 was ordered, appears from the
reasons for judgment by the magistrate, which reads as follows:



Ms Kagnetta
applied that the maintenance order be backdated to 03 July 2012. Her
reason was that the defendant is the one who delayed the case for so
long because he wanted a legal representative. This application was
not opposed. Also the court is of the view that the defendant didn’t
contribute much during the past year, and that the complainant is
entitled to a backdated order.’







[5] Section 25(1) of the
Maintenance Act 9 of 2003 provides as follows:







Save as
otherwise provided in this Act, any order or direction made by a
maintenance court under this Act has the effect of an order or
direction of the said court made in a civil action.’







and s 13(4) reads as
follows:







Subject to
subsec (5), the Civil Proceedings Evidence Act 25 of 1965 in so far
as it relates to the admissibility and sufficiency of evidence, the
competency, compellability and privileges of witnesses, subject to
necessary changes, applies to an enquiry conducted under this Act and
any matter related to the conduct of proceedings at an enquiry which
is not provided for in that Act or this Act must be dealt with in
accordance with the practice and procedure followed in civil
proceedings in a magistrate’s court.’







[6] The question is
whether the magistrate could have, with due regard to sections 13(4)
and 25(1), sent this matter on special review in terms of the
provisions of s 304(4) of the Criminal Procedure Act 51 of 1977 ? In
my view it does not seem so since s 304(4) of Act 51 of 1977 deals
with criminal cases where sentences had been imposed whereas s 25(1)
in particular provides that an order made by the maintenance court
has the effect of an order made in a civil action.







[7] A party therefore who
is not satisfied with the order made by a magistrate in a maintenance
enquiry may seek the necessary relief either by way of civil appeal
or by way of review in terms of the provisions of s 20 of the High
Court Act 16 of 1990. (See
Maguma v Ntengento
1979 (4) SA 155 (CPA) at 157).







[8] The maintenance order
of the magistrate is not reviewable in terms of the provisions of s
304(4) of Act 51 of 1977 and the record of the proceedings is
accordingly returned to the clerk of the court.



























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



E P B HOFF



Judge



























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



K Van Niekerk



Judge