Court name
High Court
Case number
CRIMINAL 32 of 2011
Case name
S v Kamulilo
Media neutral citation
[2011] NAHC 118























CASE NO.: CR 32/2011






IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE








versus








OTINIEL
TANGENI KAMULILO





[HIGH
COURT REVIEW CASE NO.: 74/2010]








CORAM:
SIBOLEKA, J et UNENGU, AJ






Delivered
on: 2011 APRIL 13


________________________________________________________________________


REVIEW
JUDGMENT





UNENGU,
AJ.:





[1] This
is a review matter emanating from the Ondangwa Magistrate’s
Court. The accused was charged with Reckless or Negligent driving in
contravention of Section 80(1) of the Road Traffic and Transportation
Act 22 of 1999, read with Section 1, 80(3), 86, 89, 106(1) and 106(6)
of the same Act.


[2] He
pleaded guilty to the charge, was questioned in terms of Section
112(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977),
convicted “as pleaded - negligent driving” and sentenced
to pay a fine of N$1,000.00 (One Thousand Namibian Dollars) in
default of payment, six (6) months imprisonment wholly suspended on
the usual condition.





[3] Because,
the learned Magistrate returned a verdict of guilty as pleaded –
negligent driving, I queried her to clarify why she convicted the
accused as pleaded – negligent driving seeing that the charge
put to the accused and to which he had pleaded is one of Reckless or
Negligent driving. I wanted also to know as to what happened to the
allegation of Reckless driving.





The
learned Magistrate was further requested to state why she did not ask
the Public Prosecutor as to whether or not the State would accept a
guilty plea on negligent driving. The Magistrate duly complied and
replied as follows: I quote verbatim.






THE
STATE vs OTINIEL TANGENI KAMULILO



REVIEW
CASE NO: B175/10



HIGH
COURT REF NO: 74/2011







AD
PARAGRAPH 1.1



The
matter was a finalized in terms of Section 112(b) Act 51/77, and the
court upon being satisfied that the accused admitted the elements of
the offence of Negligent driving convicted the accused as such; and
not of Reckless driving. The offence is Reckless or Negligent
driving, and the court upon questioning was satisfied that the
offence and allegations admitted was within the perimeters of
Negligent driving, and as such convicted the accused.







AD
PARAGRAPH 1.2



The
offence of Reckless driving automatically falls away, upon conviction
of Negligent driving. The charge in itself has optional or
discretion in it, either person gets convicted of Reckless or of
Negligent driving.







AD
PARAGRAPH 2



Not
enquiring or asking the prosecutor whether they accept the charge or
not is but a mere oversight on my part, however, the court has
convicted the accused on the offence the court felt the accused has
admitted guilt to, which was Negligent driving.







Due
to this oversight on my part, I pray that the sentence will not be
set aside.”






[4] The
learned Magistrate has indicated in her reply as quoted above that
“the court upon being satisfied that the accused admitted the
elements of the offence of negligent driving convicted the accused as
such … The record of proceedings does not say so. What was
recorded, however, is the following:



CRT:
Prosecutor, is (sic) the facts correct?



SP:
Yes.



CRT:
Satisfied, accused admitted all the elements of the offence as



pleaded
– Negligent Driving







Verdict:
Guilty as pleaded – Negligent Driving”





[5] As
previously indicated, the accused pleaded to the charge of Reckless
or Negligent driving, which are two separate offences although
provided for in one section, namely section 80(1) of Act 22 of 1999.





See
S v Joseph 1997
NR. 108 where it was stated that Judicial
Officers must convict accused of either the one or other offence. In
the S v Joseph case supra, the accused was also charged
with reckless or negligent driving, in terms of the provisions of the
repealed Road Traffic Ordinance 30 of 1967.





Therefore,
it is wrong for a Magistrate to convict the accused “as
pleaded” or “as charged” on a charge of reckless or
negligent driving. The correct verdict should be either “guilty
- reckless driving or guilty - negligent driving”.





[6] Further,
magistrates should take care when dealing with the charge of reckless
or negligent driving and not to forget to enquire from the Public
Prosecutor who is prosecuting, if she or he will accept a conviction
on negligent driving or not, before returning a verdict of guilty on
negligent driving. That is necessary, because the State (Public
Prosecutor) might want to lead evidence to prove reckless driving
against the accused. That being the case, the verdict of guilty as
pleaded in this matter is, in my opinion, incompetent and needs
correction.





In
the result, the following order is made:






  1. The
    verdict of guilty as pleaded – Negligent driving is set aside,
    and substituted for Guilty – Negligent driving.


  2. The
    sentence is in order and is confirmed.





















___________________


UNENGU,
AJ

















I
agree.

















______________________


SIBOLEKA,
J