Court name
High Court
Case number
28 of 2012

S v Uixab and Another (28 of 2012) [2012] NAHC 328 (05 December 2012);

Media neutral citation
[2012] NAHC 328
Liebenberg J
Miller AJ





no: CR28 /2012

In the matter between:





High Court NLD Review Case Ref No.:

The State v Uixab (CR 28/2012) [2012] NAHCNLD 12
(05 December 2012)


Delivered: 05 December 2012


Criminal procedure
Review in terms of s 116(3) of Act 51 of 1977 – Trial –
Accused has right to call witnesses – Such right to be
considered in the circumstances of the case.

Summary: The two accused
persons were convicted on a charge of stock theft in the magistrate’s
court and committed for sentence by the regional court. The regional
court was of the opinion that the proceedings were not in accordance
with justice in that one of the accused was refused a remand of the
proceedings in order to call a witness. For that reason the
conviction was set aside on review and the case remitted to the trial
court for continuation of the trial. Accused was thereafter afforded
more than two months to secure the presence of his witness at court,
but without success. He informed the court that the witness
disappeared without the accused knowing his whereabouts. There
appears to be no prospects of tracing the witness within a reasonable
time. The rights of co-accused are one of the factors to be taken
into consideration when court considers an application for further
postponement. In the circumstances of the case the accused’s
rights were not infringed.


The matter is remitted to the regional
court with the direction to proceed with sentence.



[1] This matter came before me by way
of review in terms of s 116(3) of the Criminal Procedure Act 51 of
1997 for the second time and on each occasion the regional court
magistrate, sitting at Tsumeb, recorded the reasons for his opinion
that the proceedings are not in accordance with justice. This evolved
around the trial court’s refusal to grant the second accused’s
request for a postponement of the trial in order to afford him the
opportunity to secure the presence of a witness, whom he intended
calling, to give evidence on his behalf.

[2] This court on review found that in
the circumstances of the case (at that stage), the second accused
should be allowed to call the witness he intended calling, and after
setting aside the conviction of both the accused, the appropriate
order was made.

[3] Upon their subsequent appearance
before the trial court on a date not apparent from the record of
proceedings, the accused were duly informed of the outcome of the
review proceedings. The court correctly made enquiries into the
whereabouts of the witness the accused intended calling, and was
informed that the person was at Arandis. He further explained that he
only had a contact number of this person and up until then, he was
unable to establish contact with him. It was pointed out to the
second accused that he was on bail and that he was under a duty to
secure the presence of his witness at court. He was further advised
to travel to Arandis in order to try and find this witness,
whereafter proceedings were postponed to 24 November 2011.

[4] On that day the second accused
told the court that he managed to speak to his witness but that the
person was in ill health and therefore could not attend court
proceedings. Once again the matter was postponed and this time, to
the 31st of January 2012, allowing more than two months
for the witness to be called. However, when proceedings continued on
that day, the accused informed the court that he could not get hold
of this person and that he did not know where this person was
. The court, upon receiving this information refused any
further remand of the case and after both accused were again
convicted as charged, they were remitted for sentence by the regional

[5] It must be pointed out that the
circumstances that prevailed at the time when the court refused a
further remand on the last occasion, are completely different from
what it was when the court refused the initial application. Not only
was the second accused afforded two more occasions over a period of
more than two months to secure the presence of this witness, but it
turned out that he had lost track of the person, not knowing where to
find him. Thus, on his own version, the chances of establishing
contact with this person within a reasonable time period, are not

[6] However, another compelling factor
was that, due to the difficulties the second accused experienced and
the delay caused in attempting to bring the witness to court, all
this had a detrimental impact on the right of the first accused to
have the trial heard within a reasonable time. It is therefore not
strange that, with their subsequent appearance before court and after
the matter was remitted, the first accused objected to a further
postponement stating that he was remanded in custody throughout. It
is now more than two years later and the accused persons still have
not been sentenced.

[7] Though mindful of the right of an
accused person to call witnesses at his or her trial, this right
cannot be considered in a vacuum; regard must equally be had to the
circumstances of the case where the court is required to determine
whether an accused person’s right had been infringed when the
court refuses any further postponement of the matter. The magistrate
in the present instance, when considering a further remand, was
entitled to take into account the period of more than two months
already afforded to the accused to trace his witness and to bring him
to court; furthermore, that it turned out that this person thereafter
disappears without the accused knowing where to even start looking
for him and the prospects of finding him within a reasonable period
of time, seemingly, not being good. Add thereto the circumstances of
the first accused who was in custody throughout, opposed to the
second accused who was committed to bail.

[8] After due consideration of all the
facts, I am satisfied that justice was done to the second accused and
that he was not entitled to a further remand of the case.
Accordingly, the matter is remitted to the regional court with the
direction to proceed to sentence.