Court name
High Court Main Division
Case number
CRIMINAL 66 of 2013
Title

S v Mungunda (CRIMINAL 66 of 2013) [2013] NAHCMD 307 (31 October 2013);

Media neutral citation
[2013] NAHCMD 307
Coram
Hoff J
Shivute J













NOT REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 66/2013











In the matter between:







THE STATE



and



IVAN MUNGUNDA
..........................................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 1370/2013











Neutral citation:
State v Mungunda
(CR 66/2013) [2013] NAHCMD 307 (31 October 2013)











Coram: HOFF J and
SHIVUTE J







Delivered: 31
October 2013





























ORDER





(a) The record of the
proceedings is returned to the clerk of the court.







(b) The presiding
magistrate is ordered to attach the charge sheet to these proceedings
and to remit the proceedings to the Registrar of the High Court.









JUDGMENT









HOFF J (SHIVUTE J
concurring):







[1] The accused was
convicted at Aranos periodical court of the crime of assault by
threat (read with the provisions of the Domestic Violence Act 4 of
2003) and sentenced to a fine of N$500 or 2 months imprisonment. The
fine was deferred on 13.06.2013 until 28.06.2013.







[2] On perusing the
record of the proceedings I could find no charge sheet and directed a
query to the magistrate in this regard.







[3] The magistrate
replied as follows:







The accused
was already charge (sic) on the charge sheet dated 13/6/2013. Namcis
system does not allow printing the charge sheet twice, thus I made
the sentence effective on the Court Order of 27/08/2013. I also
confirm with Mariental Magistrate’s office and that has been
done the same way.’







[4] It appears to me that
the presiding magistrate did not comprehend my query. Section 76(1)
of Act 51 of 1977 provides that unless ‘an accused has been
summoned to appear before the court, the proceedings at a summary
trial in a lower court
shall be
commenced by lodging a charge sheet with the clerk of the court . .
.’ Section 80 provides that an accused may examine the charge
at any stage of the relevant criminal proceedings.







[5] The primary purpose
of a charge sheet is that it informs the accused of the case the
State intends to advance against him or her and it requires
sufficient information of the offence with which the accused is
charged. (
S v Hugo 1976
(4) SA 536 (A);
S v Campbell and Others
1991 (1) SACR 435 Nm).







[6] In terms of s
76(3)
(a) the charge
sheet shall form part of the record of the proceedings in lower
courts.







[7] It is duty of the
presiding officer to keep a proper record of the proceedings (
S
v Haibeb
1994 (1) SACR 657 (Nm) at 663i-j).







[8] Where there is no
charge sheet, the Reviewing Judge will not know what the charge
against the accused was and would not be in a position to certify
whether the proceedings appear to be in accordance with justice.







[9] In the result the
following order is made:







(a) The record of the
proceedings is returned to the clerk of the court.







(b) The presiding
magistrate is ordered to attach the charge sheet to these proceedings
and to remit the proceedings to the Registrar of the High Court.



































































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



E P B HOFF



Judge



























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



N N SHIVUTE



Judge