Court name
High Court
Case number
CRIMINAL 2 of 2011

S v Amukwaya and Another (CRIMINAL 2 of 2011) [2011] NAHC 27 (31 January 2011);

Media neutral citation
[2011] NAHC 27

NO.: CR 02/2011



the matter between:




J. Delivered on: 31.01.2011

JUDGMENT - SECTION 116 (3) ACT 51 OF 1977

The accused persons appeared in the Magistrate's Court,

on a charge of theft, read with the provisions of the Stock Theft Act
12 of 1990 (as amended). Despite both accused pleading not guilty on
a charge of theft of two head of cattle, they, at the end of the
trial, were convicted as charged and committed for sentence by the
Regional Court.

The Regional Court magistrate, acting in terms of s 116 (3) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), was not satisfied that
the convictions of both the accused were in accordance with justice
and sent the matter for review, pursuant to the provisions of the
Act. I pause here to observe that the record of the proceedings is
incomplete, as it would appear that page 54 of the record is missing.
This part of the record is crucial as it partly covers the testimony
and cross-examination of the first accused and without it this Court
would be unable to consider the evidence presented in the trial

However, as pointed out by the learned Regional Court magistrate, the
trial court committed a procedural irregularity, vitiating the
proceedings subsequent thereto. Although the Regional Court was also
not satisfied that the trial court's assessment of the evidence is
correct and justifies the convictions, it would be improper for this
Court, at this stage, to evaluate the evidence where the accused are
likely to call witnesses to give evidence on the merits. Hence, I
decline to consider the matter before me on the merits.

At the close of the State Case the court acquitted accused no. 3 and
put the two other accused (accused no's 1 and 2) on their defence.
The court then explained to them the right they had to give evidence
and call witnesses whereafter both accused informed the court that
they wanted to give evidence. After an altercation between the
magistrate and accused no.1 about the calling of witnesses - which,
in my view, was quite unnecessary - the said accused intimated to the
court that he had witnesses to call, but that it would be difficult
for him to secure their presence at court as he was in custody. The
second accused elected not to call any witnesses. Accused no.1 then
gave the names and residential addresses of three witnesses he
intended calling.

Before the matter was postponed for three months the court conveyed
the following to the accused:

no.l, the State will summon your Witnesses on your behalf as you are
in custody."

On resumption of proceedings on 29 April 2010 the magistrate enquired
from the accused persons who had a witness by the name of "Johannes
Kayoko"; and from the record it would appear that it was accused
no. 1's witness as the court wanted to know from him whether he
wanted to testify first or call his witness first. Despite the
proceedings being mechanically recorded, there is nothing on record
showing from where the court got the name of the witness referred to;
or that application was made to lead the evidence of accused no.1 's
witness first. It would therefore appear that the magistrate was of
the view that an accused person (the defence) has a
to the sequence in which evidence will be presented ie whether the
accused will be testifying first and then the witnesses, or the other
way round. That however, is wrong, as the Criminal Procedure Act is
clear on what procedure should be followed when an accused wants to
adduce evidence in his/her defence.

It therefore seems necessary to quote the relevant section of s 151
of Act 51 of 1977 which reads:

"(1)(a) If
an accused is not under section 174 discharged at the close of the
case for the prosecution, the court shall ask him whether he intends
adducing any evidence on behalf of the defence, and if he answers in
the affirmative, he may address the court for the purpose of
indicating to the court, without comment, what evidence he intends
adducing on behalf of the defence.

(b) The court
shall also ask the accused whether he himself intends giving evidence
on behalf of the defence, and-

if the accused answers in the affirmative, he shall,
where the court on good cause shown allows otherwise, be called as a
other witness_for the defence; or

(ii) if the
accused answers in the negative but decides, after other evidence has
been given on behalf of the defence, to give evidence himself, the
court may draw such inference from the accused's conduct as may be
reasonable in the circumstances.

(2)(a) "


Therefore, an accused - on application and during which the State is
entitled to oppose the application - must show
to why his/her witness(es) need to testify first before the accused
takes the stand. The reasons for this procedure seems obvious, as the
accused would have an unfair advantage when, before testifying
himself, has the opportunity of first hearing the evidence of his
witnesses. That would enable him to adapt his evidence according to
their version. Courts should therefore not readily accede to a
request from the defence to lead the evidence of other witnesses
before calling the accused without good cause shown justifying such

The defence case commenced with accused no.1 testifying and was
immediately followed by accused no.2 giving evidence. At the end of
the latter's testimony the record reflects the following:

Go back where you were standing before. (sic) yes Ms State
prosecutor, submissions. Two Accused closed their case.

Thank you Your Worship.

(Indistinct) Your
Worship (inaudible).


the excerpt it is clear that the court did not enquire from accused
no.1 whether he still intended calling any witnesses to testify on
his behalf - in fact, there is nothing on record showing that the
three witnesses the accused intended calling; and for whom subpoenas
were to be issued as directed by the court, were present and thus
available to give evidence.

Had they not been present, the court should have determined whether
they were subpoenaed as directed; and once satisfied that the legal
requirements pertaining to the serving thereof were met, the court
was entitled to issue warrants for their arrest. Not only did the
court fail to enquire about the witnesses earlier mentioned by
accused no.1, whom he intended calling; it also failed to enquire as
to whether the person by the name Johannes Kayoko - who was
was indeed his witness and whether he wanted to call him to testify.

This omission on the part of the magistrate is a serious irregularity
prejudicial to the accused and inevitably would lead to the setting
aside of the conviction and sentences imposed. Although only accused
no. 1 intended calling witnesses, it does not mean that only he would
have suffered prejudice. Because of the close relation between the
respective acts allegedly committed by the accused in the commission
of the crime; and not knowing what any of the witnesses would come
and say when testifying, the possibility, in my view, cannot be
excluded that their testimony might strengthen the case of accused
no.2 as well. To that end he would also have suffered prejudice.

v Kazonganga
NR 275 (HC) the Court said that a presiding officer at a trial always
has the power to prevent an abuse of the procedure of the Court, but
that it must be very clear to the Court that it was indeed the
position before refusing the calling of a defence witness. Although
the magistrate in the present case did not
allow the accused to call his witnesses but
him that opportunity, the consequences are exactly the same. Dealing
with the right of an accused to call witnesses this Court endorsed
what was
v Billy
(1) SA 42 (SR);
v Tembani
(4) SA 395 (E); and
v Gwala
(4) SA 937 (N) where Didcott J at 938F-G, whilst referring to the
function of the magistrate, said:

had no function in those circumstances but to hear what the witness
might say, which was apparently most material.
accused had an absolute right to call the witness
And he lacked the power to deny her that right. His denial of it
amounted to a gross and indefensible irregularity. And the
irregularity was the sort so prejudicial to the defence that it
vitiated the whole trial."

on that basis the conviction of both accused stand to be set aside.

Matters became worse when, after having closed the defence's case,
the court did not afford the accused persons the opportunity to
address the court on the merits. In this regard, endorsing what was
said in
v Mabote
(1) SA 745 (O), O'Linn J in
v Khoeinmab
NR 99 at 101C-F said the following:

"It is quite
clear that a failure or refusal to permit the right to address is an

which will generally lead to the setting aside of a conviction

The accused has
the right to address the Court, regardless of his prospects of
success. Such an irregularity destroys the fairness of the trial and
must be regarded as a gross irregularity."

v Kamati
NR 116 (HC)

From the above it is clear that the trial court's failure to afford
the unrepresented accused the opportunity of addressing the court on
the merits amounts to an irregularity. Although the Court in the
had set aside the entire proceedings, that was because of the
specific circumstances of the case and the fact that the accused had
almost completed serving his sentence. That is not the position in
this case and there is no need to make a similar order as the
procedural irregularities committed can be cured by a proper order.
The proceedings up to the end of the testimony of the accused no.2
are procedurally in accordance with justice; and there is no reason
why the evidence adduced up to that stage, cannot remain standing.
The trial should therefore continue from where the accused persons
are afforded the opportunity of calling witnesses and after the close
of the defence's case, the accused must be invited to make
submissions on the merits.

Whereas the accused persons have already been committed to the
Regional Court for sentence and the Criminal Procedure Act not
providing for a remittal of the case to the Magistrate's Court by the
Regional Court, it would require an order from this Court to have the
accused persons again be brought before the trial court to continue
with the trial in compliance with guidelines set out herein.

Prior to their conviction accused no.2 was admitted to bail, whilst
accused no.1 remained in custody throughout the trial. The bail of
accused no.2 was cancelled upon conviction and whereas the conviction
now stands to be overturned, I see no reason why he should remain in
custody pending the finalisation of the trial. Under s 116 (3)(a) of
the Criminal Procedure Act 51 of 1977, read with ss 303 - 304 of the
Act dealing with review procedure, this Court has the power to make
any order
regard to any matter or thing connected with such person (the
convicted person) or the proceedings in regard to such person as the
court seems likely to promote the ends of justice"
304 (2)(vi)). If the bail money paid by accused no.1, in the mean
time (after accused no.l's bail was cancelled), had been refunded, he
should again be admitted to bail in the same amount; and should the
bail monies have not been refunded to the depositor, then accused
no.2's bail should simply be extended until the court, on good cause
shown, orders otherwise.

In the result, the Court makes the following order:

The conviction and sentence in respect of both accused are set aside.

The matter is remitted to the Magistrate's Court Tsumeb with the
direction that the trial magistrate must proceed with the trial in
accordance with the guidelines set out in this judgment.

The accused, upon their next appearance in the Regional Court, should
be informed accordingly.