CASE NO.: CR 67/2011
IN THE HIGH COURT OF NAMIBIA
In the matter between:
(HIGH COURT REVIEW CASE NO.:
CORAM: PARKER, J et,
Delivered on: 2011 September 21
PARKER, J  This
matter has been referred to me by way of special review in terms of s
304 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (‘CPA’).
The accused was arraigned in the magistrates’ court, Okakarara,
on housebreaking with intent to steal and theft. The trial commenced
and proceeded before Magistrate Ngwanga whose fixed-term contract of
employment was not extended on its expiration, and so she returned to
her home country, Zimbabwe.
 In such a situation, it has been
said (see S v Scheepers 2009 (2) SACR 58 at 61g-h per Willis
J) that the failure of a lower court to apply for the setting aside
of proceedings and the commencement of a trial de novo, as a
result of the unavailability of the magistrate who began hearing
evidence in the matter, will not necessarily result in a finding that
an accused was subsequently wrongly convicted, if a trial de novo
does, in fact, take place without the prior sanction of the High
Court. Nevertheless, it would certainly be desirable and good
practice for an application to be made to the High Court, by way of
special review, for the setting aside of previous proceedings and the
commencement of a trial de novo. Rather than take the risk of
injustice and unnecessary expense and inconvenience for the State and
the accused, it is, by far, preferable to approach the High Court for
a special review: the commencement of a trial de novo is not
merely an administrative matter.
 I respectfully accept the point
made by Willis J as a correct statement of law and so I adopt it.
Having done so I make the following order:
The trial proceedings before the
magistrate, Ms Ngwanga, in this matter are set aside.
The trial may commence de novo
before another magistrate at the discretion of the Prosecutor