Court name
High Court
Case name
S v Mathee
Media neutral citation
[2007] NAHC 200















CASE
NO.: CR 174/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE



versus






ANDRIES MATHEE






(HIGH
COURT REVIEW CASE NO.: 149/07)


CORAM:
MAINGA, J
et
VAN
NIEKERK, J



Delivered on:
2007-12-13



_______________________________________________________________________REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1]
The accused was tried and convicted of housebreaking with intent to
steal and theft by the Magistrate, Opuwo. He was sentenced to N$600
or 6 months imprisonment.






[2] The
record does not make sense in several instances. After the State
case was closed, the accused is recorded to say:






"I
do not wish to say anything in my defence what the witness has said
is true. That is my defence. I will speak in English and I am 50
years old."









[3] The last
sentence seems to have been inserted at some later stage with a
different pen. (The magistrate denies this). Then the prosecutor
proceeds to cross-examine the accused, although the latter did not
elect to testify and was apparently not sworn in. The magistrate
concedes that this was an irregularity.






[4] After
the accused's address in mitigation of sentence the following is
recorded:


"PP
- we do not have objections to the State proceeding to take
mitigation.
I
am guilty as charged

today. There are no PCs.
Court
finds accd:- Guilty as charged
.





Court
explains mitigation." (my underlining)













[5] Although it
seems that the underlined words were inserted at a different stage in
the handwritten record, the magistrate denies this. The magistrate
states that "PCs" stands for "previous convictions"
and concedes that the prosecutor should not have been allowed to deal
with the accused's previous convictions or lack thereof before the
verdict on the merits of the case.





[6] The
magistrate further concedes that the accused's rights to
cross-examination were not explained. This is a further
irregularity.



[7] Although it
would appear from what the accused said that his rights after the
closure of the State case were explained, this fact nor the contents
of the explanation was recorded.





[8] As
the magistrate in his response to my query states, "the record
of proceedings is in a shambles".





[9] I
think there is no alternative but to order that the proceedings are
set aside.











______________________________



VAN NIEKERK, J






I agree










_______________________________



MAINGA, J