Court name
High Court
Case number
55 of 2012
Title

S v Nanghama (55 of 2012) [2012] NAHC 158 (25 June 2012);

Media neutral citation
[2012] NAHC 158
Coram
Hoff J
Miller AJ
















CASE NO.: CR 55/2012


NOT
REPORTABLE








IN
THE HIGH COURT OF NAMIBIA








MAIN
DIVISION, HELD AT WINDHOEK








In
the matter between:








THE
STATE








and








JOEL
NANGHAMA












HIGH
COURT REVIEW CASE NO.: 438/2012











CORAM: HOFF,
J et MILLER, AJ








Delivered
on: 25 June 2012













SPECIAL
REVIEW JUDGMENT












HOFF,
J
: [1] This matter is sent on special review by the
presiding magistrate. The accused had pleaded to a charge of murder
on 20 September 2011. The proceedings were stopped pending the
decision of the Prosecutor-General and the matter was postponed to
18 November 2011. The bail of the accused was extended. On 18
November 2011 the decision of the Prosecutor-General was not
available and the matter was postponed to 27 January 2012.
It appears from the record that this was a final postponement. On
27 January 2012 the decision of the Prosecutor-General was
still outstanding. The prosecutor applied for a postponement. This
application was refused. The following then appears on the record:






“… matter deemed withdrawn pending PGD.
Bail cancelled refund money to dep.”





[2] I
interpreted this quotation that the magistrate meant the bail money
should be refunded to the person who advanced the bail money on
behalf of the accused person.





[3] In
a cover letter attached to the court proceedings the presiding
magistrate remarked as follows:






1. The matter is send for special review, as a
result of an oversight of the Magistrate in this matter, the matter
was erroneously withdrawn however accused has already pleaded to the
charge in terms of section 119 of the Criminal procedure 51 of 1977,
therefore the matter cannot be withdrawn, but can only be struck from
the roll pending the prosecutor-general decision..







2. May the order be set aside and or amended
accordingly.”





[4] I
directed a query to the magistrate requesting the magistrate firstly
to provide me with his reasons why was the matter “deemed
withdrawn” pending the decision of the Prosecutor-General, and
secondly, on what basis the matter had been sent on special review.





[5] The
magistrate in reply referred me to this afore-mentioned letter
accompanying the case record. This was not very helpful. I also
elicited the views of the Prosecutor-General on the issues raised in
my query to the magistrate.





[6] The
Prosecutor-General agreed that this is not a matter that could have
been sent to this Court on special review in terms of the provisions
of section 304(4) of Act 51 of 1977 since the proceedings have not
been finalised in the Magistrate’s Court.





[7] The
circumstances when a matter may be sent on special review in terms of
section 304(4) were set out by Silungwe AJ in S v Immanuel 2007 (1)
NR 327 (HC). Firstly, where the proceedings had been concluded in
the magistrate’s court i.e. after an accused had been
sentenced, and secondly although the High Court “has inherent
power to curb irregularities in magistrate’s courts by
interfering (through review) with unterminated proceedings emanating
therefrom, … it will only exercise that power in rare
instances of material irregularities where grave injustice might
otherwise result, or where justice might not be attained by other
means”.


(See
also S v Cornelius Isak Swartbooi Case No. CR 09/2012 an
unreported judgment, delivered on 15 February 2012).





[8] The
Prosecutor-General opined that no grave injustice has occurred as a
result of the ruling by the magistrate since the accused can always
be brought back to court once she has decided to prosecute him. She
however lamented the fact that the presiding magistrate did not act
fairly since the State has not been forewarned that the magistrate
considered releasing the accused person and her office was not given
the opportunity to provide reasons why her decision was not
available.





[9] I
was unable to find any authority that a magistrate may strike a
criminal case from the roll pending a decision of the
Prosecutor-General, as requested by the presiding magistrate. The
provisions of Criminal Procedure Act also do not make provision for
the “deemed withdrawal” of a criminal case by a
magistrate pending a decision of the Prosecutor-General. The
magistrate in doing so, acted ultra vires and no legal
consequence can flow from such an order.





[10] Nevertheless
since this matter is not reviewable the case record is hereby
returned to the clerk of the court. The Prosecutor-General may
arraign the accused in whichever court she chooses for whichever
crime (if any) committed by the accused person.














_______


HOFF,
J











I
agree











___________


MILLER, AJ