Court name
High Court Main Division
Case number
CRIMINAL 51 of 2013
Title

S v Muranda (CRIMINAL 51 of 2013) [2013] NAHCMD 237 (07 August 2013);

Media neutral citation
[2013] NAHCMD 237
Coram
Shivute J
Parker AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CR 51/2013








In the matter between:








THE STATE
..................................................................................................APPLICANT








and








TUVONE
MURANDA

......................................................................................RESPONDENT








(SPECIAL REVIEW)








Neutral citation:
State v Muranda (CR 51/2013) [2013] NAHCMD 237 (7 August 2013)








Coram: SHIVUTE J
et PARKER AJ



Delivered: 7
August 2013








Flynote: Special
review – Accused pleaded guilty to one count of assault with
intent to do grievous bodily harm and was convicted accordingly –
Before sentencing, the trial magistrate ordered the accused to
undergo psychiatric evaluation – Upon the psychiatric report
the trial magistrate applied s 9 of the Mental Health Act 18 of 1973
and declared the accused to be a civil patient – The court
found that the trial magistrate applied the wrong law and so the
court set aside the order or sentence.








Summary: Review –
Special review – Accused pleaded guilty to one count of assault
with intent to do grievous bodily harm and was convicted accordingly
– Before sentence the learned magistrate court ordered the
accused to undergo psychiatric evaluation – The psychiatric
report indicates that at the time of the commission of the offence
the accused was suffering from a mental illness and as a result was
unable to appreciation the wrongfulness of his action and to act in
accordance with such appreciation – Acting upon the report the
trial court applied s 9 of the Mental Health Act 18 of 1973 and
declared accused to be a civil patient – Court found that the
trial court applied the wrong law – The court held that the
trial court should have applied s 78(6) of the Criminal Procedure Act
51 of 1977 – Accordingly, the court remitted the case to the
learned magistrate for her to apply s 78(6) of Act 51 of 1977.










ORDER










(a) The sentence or order
of the trial magistrate is set aside.








(b) The matter is
remitted to the trial magistrate for her to apply s 78(6) of Act 51
of 1977 in respect of the accused person.










JUDGMENT










PARKER AJ (SHIVUTE J
concurring):








[1] This matter comes to
the court for special review. The accused appeared before the
magistrate’s court, Rundu, charged with one count of assault
with intent to do grievous bodily harm. He pleaded guilty to the
charge, and was convicted upon his plea of guilty. Thereafter, the
accused made statements on mitigation of sentence; whereupon the
learned magistrate stated:








It
seems that he is mental retardant (retarded). The best is for him to
be referred to the immigration board for him to be deported.
Referring him to the mental observation is not a solution at all.
Sentencing him will be a serious rush.’








[2] Following upon that
statement, the learned magistrate halted the proceedings and remanded
the accused in custody. Upon resumption of proceedings the public
prosecutor made an application for the matter to be ‘remanded
to 14/06/2012 for mental observation’. The learned magistrate
ordered: ‘Adjourned 14/06/2012 for mental observation. Accused
remanded in custody’. Proceedings were adjourned on several
occasions and on each occasion the learned magistrate with unbroken
regularity ruled: ‘Adjourned to (date) for mental observation.
Accused remanded in custody’. Then on 17 may 2013 the learned
magistrate made the following order: ‘Remanded to 20/05/2013
for accused (to) be brought. Warrant of removal issued’.








[3] On resumption of
proceedings on 20 May 2013 the public prosecutor stated: ‘The
accused has been observed and (I) hand in the psychiatrist report.
May it be handed in (admitted) and marked as exhibit ‘A’.’
The learned magistrate then ruled: ‘Psychiatrist report is
admitted as exhibit ‘A’.’ The findings of the
psychiatrist are as follows:








At
the time of writing the report, the accused was unfit to plead and
stand trial. At the commission of the crime he was suffering from
mental illness and as a result was not able to appreciate the
wrongfulness of the alleged offence and act according (in accordance)
with such appreciation.’








[4] After admitting the
psychiatrist report the learned magistrate made the following order:








In
terms of section 9 of Act 18/73 accused is declared a civil patient.’








The learned magistrate
further ‘recommends that the accused be referred to the
immigration board for him to be deported to his country of origin
Botswana’.








[5] The submission for
special review was made by the Control Magistrate, Rundu Division;
and he encloses his comments, which in relevant parts, read:








5.
It is my humble view that the accused should not have been declared a
civil patient. The accused was appearing before the court because he
was alleged to have committed a criminal offence. He was not
appearing before court following any civil application made by
someone for him to be detained in a mental institution in terms of
chapter 3 of the Mental Health Act.








6.
In my opinion the accused ought to have been declared a state
president’s patient once the court had made a finding in terms
of Section 78(6) of the Criminal Procedure Act.’








[6] I accept the comments
by the learned Control Magistrate. The trial magistrate should have
applied s 78(6) of the Criminal Procedure Act 51 of 1977 which
provides:








If
the court finds that the accused committed the act in question and
that he at the time of such commission was by reason of mental
illness or mental defect not criminally responsible for such act, the
court shall find the accused not guilty by reason of mental illness
or mental defect, as the case may be, and direct that the accused be
detained in a mental hospital or a prison pending the signification
of the decision of the State President.’








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








(a) The sentence or order
of the trial magistrate is set aside.








(b) The matter is
remitted to the trial magistrate for her to apply s 78(6) of Act 51
of 1977 in respect of the accused person.























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



C Parker



Acting Judge























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



N N Shivute



Judge