Court name
High Court Main Division
Case number
CR 51/2020
Case name
S v Damaseb
Media neutral citation
[2020] NAHCMD 306

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

 

PRACTICE DIRECTIVE 61

“ANNEXURE 11”

 

Case Title:

The State v Otto Damaseb

 

Case No:

CR 51/2020

High Court MD Review No:

 

804/2020

Division of Court:

Main Division

Heard before:

 

Judge Claasen et

Acting Judge Sibeya

Delivered on:

 

22 July 2020

 

 

Neutral citation: S v Damaseb (CR 51/2020) [2020] NAHCMD 306 (22 July 2020)

 

 

The order:

 

  1. The conviction and sentence is set aside.
  2. In terms of section 312 of the CPA the accused should be brought before the trial court and the magistrate is directed to conduct proceedings along the guidelines set out in this judgement and to bring the matter to its natural conclusion.
  3. In the event of a conviction, the magistrate in considering an appropriate sentence, should have regard to the time the accused has spent in custody.

 

 

Reasons for order:

 

Claasen J ( concurring Sibeya AJ)

 

1. This is a review in terms of section 302(1) of the Criminal Procedure Act 51 of 1977 as amended, (hereinafter referred to as the CPA).

 

2. The accused appeared in the District Court of Otavi where he was charged with the offense of escaping from lawful custody. He was convicted and sentenced to 6 months imprisonment.

 

3. I addressed a query to the magistrate, because this matter case no. OTV-CRM-600/2020 had the same CR number and charge particulars as another criminal review, case no. OTV-CRM-401/2020. On that basis an observation was made that it appeared that case no. OTV-CRM-600-2020 constituted the case that was opened after a separation of trial was granted. The magistrate was requested to clarify the position because the relevant proceedings on the date of plea were identical to the plea proceedings in  case no. OTV-CRM-401/2020 and made reference to two accused persons instead of one accused person.

 

4. The magistrate promptly replied and confirmed that case no OTV-CRM-600/2020 was the new case after a separation of trial was granted.  It is the next part of the explanation that the review court has a qualm with and I quote the relevant part.

‘ I then proceeded to include the recordings prior to the separation of trial onto the newly created charge sheet with the exact proceedings of Otto Damaseb on the newly created charge case of OTV-CRM-600/2020...’  He furthermore stated that ‘The proceedings of 19 May 2020 are displayed after separation in an attempt to reflect what transpired before the separation.’

 

5. No issue arise in respect of the magistrate’s decision to grant a separation of trial once it became clear that different pleas were recorded in case no OTV-CRM-401/2020. That matter was finalized in respect of one accused and a section 113 plea was recorded in respect of the other accused Mr Otto Damaseb.     

 

6. The problem lies in the procedure that was followed in the new case no. OTV-CRM-600/2020 as it appears that the court was not alive to the principle that it constitutes a new case for all practical intent and purposes.

 

7. The charge sheet contains the name of one accused and the charge is levelled against one accused person, Otto Damaseb. That is the correct position.  The record however refers to court proceedings against two accused persons. 

 

8. Furthermore, the proceedings of the new case commenced as follows:

‘POSTEA: CASE SEPARATED FROM OTV-CRM-401/2020.

 

                 PP: May Acc2  23 July 2020 for Trial (sic). The State still objects to bail at this point.

 Acc1: I did not speak properly before when I pleaded. I want to plead again and finish my case today.    

Court: What are you saying sir, are you asking to plea again on the same charge?

Acc1: yes

Court: I will record whatever you say as admissions rather and if you satisfy the charge against you then I can find you guilty on your own accord but you must remember that you must not do this out of fear or pressure for another postponement,

Acc1: Okay I understand.

Court: To the charge that was put to you earlier today, how do you plead to that?

Acc1: Guilty.’ ( sic)

Thereafter the accused was questioned purportedly in terms of section 112(1)(b) of the CPA. The court found him guilty based on the answers provided and proceeded to the sentencing phase.

 

9. In the new case, instead of following the standard procedure that applies to a first appearance, which is to inform the accused of the charge allegations, to explain the accused’s rights in respect of legal representation, and to deal with the issue of being remanded in custody or granted bail if the matter will be remanded, the court adopted the short-cut approach as set out in the previous paragraph.

 

10. The court ventured into the recording of admissions, though it is silent as to which provision of the CPA was utilised. At that stage the accused had not pleaded to the charge thus it is not clear on what basis the magistrate recorded admissions. There was further no explanation advanced as to the consequences of formal admissions and whether the accused give consent for that.

 

11. At the outset it was not proper for the court to conflate the proceedings of the two cases into the new case. The failure to inform the accused of his right to legal representation amounts to an irregularity.[1] It was further not appropriate for the court to resort to admissions before a plea was taken down. Therefore the conviction and sentence cannot stand and is set aside.

 

12. In the result the following order is made:

 

  1.  The conviction and sentence is set aside.
  2. In terms of section 312 of the CPA the accused should be brought before the trial court and the magistrate is directed to conduct proceedings along the guidelines set out in this judgement and to bring the matter to its natural conclusion.
  3. In the event of a conviction, the magistrate in considering an appropriate sentence, should have regard to the time the accused has spent in custody.

 

 

C CLAASEN

JUDGE

O S SIBEYA

ACTING JUDGE

 

 

 


[1] See S v Kau and others 1995 NR 1 (SC).