S v Awa-Eiseb (Case No.: CR 55/2008) [2008] NAHC 64 (02 July 2008);

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Full judgment

Case No.: CR 55/2008

IN THE HIGH COURT OF NAMIBIA
In the matter between

THE STATE
versus
SALMON AWA-EISEB

[HIGH COURT REVIEW CASE NO.:432/2008]

CORAM:            PARKER, J et MANYARARA, AJ
Delivered on:             2008 June 2
__________________________________________________________________
REVIEW JUDGMENT:
PARKER, J.:
[1]      The accused was charged before the Windhoek Magistrate’s Court on one count of attempted murder. He pleaded not guilty; he was tried and found guilty and sentenced accordingly.

[2]      I asked the learned Magistrate to respond to my remarks:
I am unable to review this case as the record stands. It is not clear at what point the State closed its case, and what happened after that – not even the learned Magistrate’s handwritten record goes any further than his s. 174 decision.

[3]      The learned Magistrate responded that he was unable to reconstruct the case record. He therefore “humbly requests for the proceedings to be quashed due to inability to reconstruct the records.” I respectfully agree with the learned Magistrate. The absence of a record of proceedings of a trial of an accused is an irregularity. (See S v Sageus and others 2004 (5) NCLP 102 (HC); S v Alvert 2005 (2) NCLP 1; The State v Johannes Matlatha, The State v Tjipo Tjivikua & another Case No.: CR 38/2008, Case No.: CR 39/2008 (Unreported).)

[3]      It follows that in the circumstances, the interests of the administration of justice will be served by the setting aside of the conviction.

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

(1)     
The conviction and sentence are set aside.

(2)     
The Prosecutor-General is at liberty to prosecute the accused de novo, if she so desires.


________________________
PARKER, J

I agree.

________________________
MANYARARA, AJ
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