Court name
High Court Main Division
Title

S v Tjiveze (3) (Review Judgment) () [2020] NAHCMD 348 (12 August 2020);

Media neutral citation
[2020] NAHCMD 348

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

“ANNEXURE 11”

 

Case Title:

The State v Gift Tjiveze

Case No: High Court Ref No. 890/2020

CR 54/2020

 

Division of Court: High Court

Main Division

Heard before: 

Honourable Justice Liebenberg

et

Honourable Justice Shivute

Delivered on: 

12 August 2020

 

Neutral citation: S v Tjiveze (CR 54/2020) [2020] NAHCMD 348 (12 August 2020)

 

The order:

 

(a) The conviction and sentence in respect of count 1 are set aside.

(b) The fine in respect of count 1, if paid, should be refunded to the depositor.

(c) The conviction and sentence in respect of count 2 are confirmed.

(d) The matter is referred to the magistrate to apply the provisions of section 50 (1) (b) of Act 22 of 1999.

 

 

Reasons for order:

 

[1]    This matter was brought to the High Court on special review.

 

[2]    The accused was arraigned in the Magistrate’s Court held at Okakarara charged with two counts. Count 1,  being a contravention of  section 140(2)(a) read with section 1, 60, 140(4), 145, 147,148(5), 150, 151,155 and 180 of the Road Traffic Ordinance 30 of 1967 (the Ordinance). Count 2 is a contravention of section 31(1) (a) read with section 31(2) of the Road Traffic and Transport Act 22 of 1999. This court finds no issue with count 2 and the conviction and sentence in respect thereof are confirmed.

 

[3]    The issue in this matter lies with count 1 , which reads as follows :

 

        In that upon or about the 14th February 2019 and on a public road, namely Okakarara Shoprite road, John Tjikuua street at or near U-Save Shoprite in the district of Okakarara the said accused did wrongfully and unlawfully drive a vehicle with registration number N 7180 T while the concentration of alcohol in his blood was not less than 0,079 gram per 100 millilitres, to wit 0.26 milligrams per 100 millilitres. Contravening section 140(2)(a) read with sections 1, 60, 140(4), 145, 147,148(5), 150, 151,155 and 180 of the Road Traffic Ordinance 30 of 1967.

 

[4]    The accused pleaded guilty to the charge and was questioned in terms of section 112(1) (b) of the Criminal Procedure Act, 51of 1977. On 18 June 2020, he was convicted as charged and sentenced to a fine of N$4 000 or in default of such payment 10 months’ imprisonment.  

 

[5]   When this matter was submitted for special review, the learned magistrate raised the following issue :

 

         ‘(i) The above mentioned  accused person was charged on two counts, namely driving with an excessive blood alcohol level as count 1 under Ordinance 30 of 1967 and driving a motor vehicle without a driver’s license as count 2 in contravention of the Road Traffic Act, No. 22 of 1999.

      

ii. On 18 June 2020, this court found him guilty and convicted him on both counts applying sections 112(1) (a) & (1) (b) of the CPA.

 

iii. The court is of the view that the conviction and sentence on count 2 are valid and in accordance.           

 

iv. However, it came to court’s mind after the conviction and sentence that the charge on count 1 is not valid, as charge depicts the Road Traffic Ordinance 30 of 1967 instead of the Road Traffic and Transportation Act, Act No 22 of 1999. There was an oversight that the charge in question as so prepared or drafted by the State Prosecutor was not properly scrutinized or inspected by court at the commencement of the proceedings.

 

v. It is with this background considering the charge on count 1 is wrong and cannot be allowed to stand that, I request the Honourable Judge to set aside the conviction and sentence on count 1, and/or that the Judge may advise as is deemed appropriate in the circumstance. Furthermore, that accused be refunded his money if he paid the court fine in respect of count 1.’

 

[6]    Ordinance 30 of 1967 has long been repealed. In S v Mafudza,[1] the accused faced a similar charge under the repealed ordinance and the court held that:  

 

         ‘The Road Traffic Ordinance was repealed by the Road Traffic and Transport Act 22 of 1999 which came into operation on 06 April 2001. Eighteen years after the repeal, it is discouraging to realise that the Road Traffic Ordinance refuses to be scrapped from Court proceedings with the assistance of public prosecutors and magistrates.’

 

[7]     In casu, the Ordinance in terms of which the accused was charged is repealed and is of no force and effect. The accused person should therefore not have been charged under such Ordinance. The applicable legislation and provision for the offence of driving under an excessive breath alcohol level, would be section 82 of the Road Traffic and Transport Act, (Act 22 of 1999).

 

[8]     In light of the above, the concession by the magistrate that the accused was charged and convicted under repealed legislation was properly made. It therefore follows that, the conviction and sentence stands to be set aside.

 

[9]        Apart from the above problem, the magistrate failed to invoke the provisions of section 50 (1) (b) of the Road Traffic Act which makes it compulsory for the accused to be disqualified from obtaining a driver’s licence. The failure by the learned magistrate to advise the accused of the above provision amounts to an irregularity.

 

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

 

  1. The conviction and sentence in respect of count 1 are set aside.
  2. The fine in respect of count 1, if paid, should be refunded to the depositor.
  3. The conviction and sentence in respect of count 2 are confirmed.
  4. The matter is referred to the magistrate for the magistrate to apply the provisions of section 50 (1) (b) of Act 22 of 1999.

                       NN SHIVUTE    

                         JUDGE                         

                           JC LIEBENBERG                      

                                JUDGE                               

 

 

 


[1] (CR63/2019) [2019] NAHCMD 323 (05 September 2019).