Court name
High Court Main Division
Case number
CRIMINAL 15 of 2013
Case name
S v Jakop
Media neutral citation
[2013] NAHCMD 52
Judge
Shivute J
Parker AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








Case no: CR 15/2013








THE STATE



Versus








JOSEP JAKOP



(HIGH COURT MAIN
DIVISION REF. NO 915/2012)



(MAGISTRATE SERIAL NO.
:11/2011)



Neutral citation: The
State v Jakop
(CR 15/2013) [2013] NAHCMD 52 (28 February 2013)



Coram: SHIVUTE, J
et PARKER, AJ



Delivered: 28
February 2013










ORDER















The convictions and
sentence are set aside.















REVIEW JUDGMENT










SHIVUTE J (PARKER, A J
concurring):








[1] The accused appeared
in Luderitz Magistrate’s Court charged with two counts namely:








Count 1: Reckless or
negligent driving – contravening s 80 (1), read with ss 1, 49,
50, 51, 80 (3) 86 and 106, of the Road Traffic and Transportation Act
22 of 1999, as amended.








Count 2: Driving under
the influence of intoxicating liquor – contravening s 82 (1) of
the same Act.








[2] The accused was
convicted after the court applied s 112 (1) (a) of Act 51 of 1977.
However, it is not clear from the record of proceedings whether the
accused had pleaded to one count only or to both counts. The record
reads as follows:



Charge read to the
accused.



Accused understands
charge



Plea – guilty”








He was sentenced as
follows: ‘(N$2500.00) Two thousand five hundred or in default
12 (twelve) months’ imprisonment. Accused’s learner’s
licence is hereby suspended for 3 months from today’s date
and/or accused is hereby disqualified from obtaining or applying for
a drivers licence within 3 months from today’s date 16/3/2011.
Further in term of section 300 of Act 51/77 accused is hereby ordered
to pay the sum of N$3841.00 to the Namibia Police/State on or before
31/8/2011’.








[3] I directed a query to
the magistrate in the following terms:









  1. According to the review
    sheet the accused was convicted of Count 1. Road Traffic Act –
    Reckless or negligent driving – contravening s 80 (1) read
    with ss 1, 49, 50, 51, 80 (3) 86, 89, 106 of the Road Traffic and
    Transportation Act, Act 22 of 1999 as amended.









Count 2. Road Traffic Act
– Driving under the influence of intoxicating liquor –
contravening s 82 (1) (a) read with ss 1, 86, 89 (1) and 89 (4) of
the Road Traffic and Transportation Act, Act 22 of 1999.



No annexure containing
the particulars of the above offences is attached to the record,
instead an annexure containing the particulars of the offence of
Driving with an excessive breath alcohol level is attached.




  1. Did the accused plead to
    all three counts, if so why are the particulars of offences not
    attached? If he did not plead to all, which one of the three counts
    did he plead to?










  1. Despite the fact that
    the J4 indicates that he was convicted of two counts the sentence
    read as follows:




(N$2500.00) Two
thousand five hundred or in default 12 (twelve) months imprisonment.”
In respect of which count is the sentence imposed?








[4] The matter was
returned to me without any response from the magistrate because he
had left the service of the State.








[5] As pointed out
earlier, it is not apparent from the record as to which charges the
accused pleaded and which counts he was convicted of. There are also
no annexures containing the particulars of offences indicated on the
charge sheet J 15. I am therefore left in the dark as to what exactly
transpired during the proceedings.








[6] What bothers me most
is that the charges which the accused was said to have been convicted
of are serious and they were dealt with in terms of s 112 (1) (a). S
112 (1) (a) is meant for the swift and expeditious disposal of minor
cases where the accused pleads guilty. The trial court is not obliged
to satisfy itself that an offence was actually committed by the
accused but accepts his plea at face value. The accused thus loses
the protection afforded by the procedure provided in s 112 (1) (b)
but he is not exposed to any really serious form of punishment. (S
v Aniseb and Another
1991 (2) SACR 413 (Nm) at 415 g – I
(1991 NR 203 (HC)








[7] I do not understand
how the court could have satisfied itself at face value that the
accused committed, among others, the offences of negligent or
reckless driving without eliciting information from the accused to
determine whether he was really tendering an unequivocal plea of
guilty.








[8] For the application
of s 112 (1) (a) I wish to draw the attention of all magistrates to
the guidelines as set out in S v Shikale Onesmus Case
no. CR 08/2011 (HC) delivered on 30 March 2011 (unreported) by
Liebenberg J to which JP Damaseb concurred. If all magistrates read
this case I believe there will be no confusion as to which case the
provision of s 112 (1) (a) should be invoked.








[9] Coming back to the
subject matter the record is incomplete and I am not satisfied that
the accused was properly convicted. Therefore the convictions cannot
be allowed to stand, and this goes for the sentence.








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








The convictions and
sentence are set aside.


















_________________________



N N Shivute



Judge























_________________________



C PARKER



Acting Judge