Court name
High Court Main Division
Case number
CRIMINAL 40 of 2013
Title

S v Linus (CRIMINAL 40 of 2013) [2013] NAHCMD 229 (31 July 2013);

Media neutral citation
[2013] NAHCMD 229
Coram
Hoff J
Shivute J













NOT REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 40/2013



In the matter between:







THE STATE



and



MALENGI LINUS
............................................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 725/2013







Neutral citation:
State v Linus
(CR 40/2013) [2013] NAHCMD 229 (31 July 2013)







Coram: HOFF J and
SHIVUTE J



Delivered: 31
July 2013











Summary: A
magistrate has the final say whether a case should be finalised in
terms of s 112(1)(a) – Where a magistrate is in doubt
regarding the seriousness of the offence an enquiry in terms of s
112(1)(b) is advisable.







Magistrate’s Court
is a court of record and it is the duty of a magistrate to record
proceedings in a clear and intelligible manner – failure to do
so will leave the record incomplete.







Accused person has the
right to address the court on an appropriate sentence and must be
allowed to exercise this right.







Where prosecutor suggests
a particular sentence (after the address by the accused) the accused
person must be given the opportunity to respond to such suggestion
and this must be apparent from the record – This is in line
with the principle of fair trial.









ORDER





(a) The conviction and
sentence are set aside.







(b) The proceedings are
returned to the presiding magistrate who is ordered to apply the
provisions of section 112(1)(b) of Act 51 of 1977.







(c) Should the accused
after questioning by the magistrate be convicted, the magistrate
should continue to sentence the accused person afresh.









JUDGMENT









HOFF J (SHIVUTE J
concurring):







[1] The accused was
charged with theft of electrical equipment valued at N$4000. The
accused pleaded guilty and the prosecutor requested that the case be
finalised in terms of the provisions of s 112(1)
(a)
of Act 51 of 1977. The accused was thereafter convicted
on his plea of guilty.







[2] The accused was
sentenced to a fine of N$4000 or 12 months imprisonment which was
suspended on condition that the accused does 400 hours of community
service at the Ministry of Labour in Rundu.







[3] I addressed a query
to the magistrate to explain why the accused was not provided the
opportunity to address the court on the issue of community service.







[4] The magistrate
replied that the accused was provided with such opportunity but that
there was an oversight on his part to put it on record.







[5] Before I deal with
the query and the reply of the magistrate I first need to deal with
the fact that the accused was convicted on his mere plea of guilty in
terms of the provisions of s 112(1)
(a)
of Act 51 of 1977.







[6] Section 112(1)(a)
was meant to be utilised in those instances
where accused persons are charged with relatively minor offences
where the presiding magistrate is of the opinion that the offence
does not merit punishment of imprisonment or any other form of
detention without the option of a fine.







[7] The magistrate in
order to decide whether to finalise the matter in terms of s
112(1)
(a) is often
guided by the prosecutor’s attitude who has more
information than the court regarding the circumstances under which
the offence had been committed, however it is the presiding officer
who takes the final decision.







[8] The presiding
magistrate, given the lack of information, and in the absence of any
address by the prosecutor regarding the State’s case, is often
left to decide the issue on the particulars in the charge and the
nature of the offence.







[9] In my view theft of
goods valued at N$4000 can hardly be considered to be of a minor
nature.







[10] One should also not
lose sight of the fact that in terms of s 112(1)
(a)
the accused is convicted without any evidence
but on the
opinion of
the accused that he or she is guilty. This may become problematic
especially where the court is faced with an illiterate accused person
who lacks sufficient understanding of the consequences of the plea of
guilty.







[11] Where the magistrate
has any doubt regarding the seriousness of the offence the magistrate
has the power in terms of the provisions of s 112(1)
(b)
to conduct an enquiry in spite of the
prosecutor’s request that the case be finalised in terms of s
112(1)
(a).







[12] What is ironic in
this particular case is that the prosecutor having requested the
matter to be finalised in terms of s 112(1)
(a),
before sentence maintained that the offence
is a of a serious nature.







[13] I am of the view
that given the particulars of the charge sheet and the nature of the
offence this case is an example where the magistrate should have
applied the provisions of s 112(1)
(b).







[14] Returning to the
magistrate’s reply that it was an oversight on his part to put
on record that the accused was afforded the opportunity to address
the court before imposing sentence, it should be emphasised that the
magistrate’s court is a court of record in terms of the
provisions of s 4(1) of the Magistrate’s Court Act 32 of 1944
as amended.







[15] Section 76(3) (a)
of Act 51 of 1977 reads as follows:







The court
shall keep a record of the proceedings, whether in writing or
mechanical, or shall cause such record be kept and the charge sheet,
summons or indictment shall form part thereof.’







[16] Section 76(3)(b)
reads as follows:







Such record
may be proved in a court by the mere production thereof or a copy
thereof in terms of s 235.’







[17] In S
v Heibeb
1994 (1) SACR 657 (Nm) at 663i-j
Muller AJ stated as follows:







It is the
duty of the presiding officer to keep a proper record and record the
proceedings in a clear and intelligible manner in the first person
and also to record the explanation of the rights of the accused fully
and clearly.’







[18] In the absence of
recording what has been explained to the accused person, one is left
in the dark (figuratively speaking) as to what was conveyed to the
accused by the magistrate.







[19] Section 274(2) of
Act 51 of 1977 reads as follows:







The accused
may address the court on any evidence received under subsec (1) as
well as on the matter of sentence, and thereafter the prosecution may
likewise address the court.’







[20] In S
v Mokela
2012 (1) SACR 431 SCA at 437 par. 14
Bosielo JA (Snyders JA and Wallis JA concurring) stated the following
regarding the right to address the court prior to sentencing:







It is
generally accepted that both the accused and the State have a right
to address the court regarding the appropriate sentence. Although s
274 of the Criminal Procedure Act uses the word ‘may’,
which may suggest that a sentencing court has a discretion whether to
afford the parties the opportunity to address it on an appropriate
sentence, a salutary judicial practice has developed over many years,
in terms whereof courts have accepted this to be a right which an
accused can insist on and must be allowed to exercise. This is in
keeping with the hallowed principle that, in order to arrive at a
fair and balanced sentence, it is essential that all facts relevant
to the sentence be put before the sentencing court. The duty extends
to a point where a sentencing court may be obliged, in the interests
of justice, to enquire into circumstances, whether aggravating or
mitigating, which may influence the sentence which the court may
impose. This is in line with the principle of a fair trial. It is
therefore irregular for a sentencing officer to continue to sentence
an accused person, without having offered the accused an opportunity
to address the court; or as in this case, to vary conditions attached
to the sentence, without having invited the accused to address him on
the critical question of whether such conditions ought to be varied
or not.’



(See also S
v Namseb
1991 (1) SACR 223 (Nm) per O’Linn
J).







[21] I must state that
the magistrate did explain the rights of the accused prior to
sentencing. However it is clear from the record that what prompted
the magistrate to impose community service was the prosecutor’s
suggestion that
‘if the accused is willing to do
community service we suggest that the accused does 200 hours of
community service’.







[22] The accused was not
given the opportunity to respond to this suggestion by the prosecutor
and the magistrate immediately thereafter sentenced the accused to a
fine of N$4000 or 12 months imprisonment which were wholly suspended
on condition that the accused does 400 hours community service at the
Ministry of Labour in Rundu.







[23] This in my view is
an irregularity and not in line with the principle of a fair trial.







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







(a) The conviction and
sentence are set aside.







(b) The proceedings are
returned to the presiding magistrate who is ordered to apply the
provisions of section 112(1)(b) of Act 51 of 1977.







(c) Should the accused
after questioning by the magistrate be convicted, the magistrate
should continue to sentence the accused person afresh.



























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



E P B HOFF



Judge























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N N SHIVUTE



Judge