Court name
High Court
Case number
58 of 2012
Title

S v Orlam (58 of 2012) [2012] NAHC 166 (27 June 2012);

Media neutral citation
[2012] NAHC 166
Coram
Miller AJ
Parker J

















CASE NO. CR 58/2012


Not
Reportable





IN
THE HIGH COURT OF NAMIBIA





In the matter between:





THE
STATE





vs





BRUNO
RICARD ORLAM ACCUSED





(HIGH COURT REF. NO.: 1234/2012)








CORAM: MILLER,
AJ et PARKER, J






DELIVERED: 27JUNE 2012





SPECIAL
REVIEW JUDGMENT





MILLER,
AJ:
[1] This matter was submitted for review
purposes in terms of Section 304 (4) of Act 51 of 1977.

















[2]
The accused was charged in the magistrate’s court sitting at
Dordabis with the crimes of Culpable Homicide and secondly with the
offence of the reckless or negligent driving of a motor vehicle upon
a public road in contravention of the relevant road traffic
legislation.





[3]
Upon being arraigned the accused pleaded not guilty to both counts.
The state thereupon called three witnesses in support of its case.





[4]
The prosecutor thereafter informed the presiding magistrate that he
wished to lead the evidence of further witnesses whose presence he
could not secure timeously. The prosecutor applied for and was
granted a postponement to 22 February 2012.





[5]
On that date a further postponement was granted to 10 April 2012 and
again to 22 May 2012.





[6]
On 22 May 2012 the state was once more not ready to proceed. The
prosecutor once more applied for a postponement. Mr. van Vuuren who
represented the accused opposed that application. The learned
presiding magistrate thereupon gave the following ruling:





“RULING
ON APPLICATION FOR REMAND:






Having
heard the state and defence regarding request for remand and having
request and to the record of proceedings in this matter, the court
finds in favour of the accused and thus the state’s application
for remand is refused and the matter is accordingly struck from the
roll. Once the state is ready the accused may be re-summoned to
appear and have matter finalized. Accused is excused, his warning is
cancelled.







T.
MAYUMBELO



MAGISTRATE



22/05/2012.”









[7]
I agree with Ms. Horn, the Control Magistrate, who submitted the
matter for review that the ruling of the magistrate is not in law
sustainable.





[8]
The headnote in S v Magoda 1984 (4) SA 462 (C) in my
view correctly summarizes the state of our law on this issue. It
reads as follows:






A
presiding officer in a criminal case does not have the authority to
close the state case if the state prosecutor is not willing to do so,
but if the prosecutor, after an application by him for the
postponement of the trial, has been refused, refuses to adduce
evidence or to close the state case, it is presumed that the state
case is closed, and the judicial officer should continue with the
proceedings as if the state prosecutor had indeed closed the case.”





[9]
Had the learned magistrate adopted that course, he would have had to
return a verdict of not guilty and discharged the accused by virtue
of the provisions of Section 174 of Act 51 of 1977. That is so
because the evidence adduced did not in any way establish a case that
the accused had to meet.





[10]
For these reasons the magistrate’s ruling is set and
substituted with the following order:





[11]
The accused is found not guilty and he is discharged.











__________


MILLER,
AJ








I
agree








__________


PARKER,
J