Court name
High Court
Case name
S v Tashiya
Media neutral citation
[2012] NAHC 329
Judge
Liebenberg J
Miller AJ













REPORTABLE







REPUBLIC OF NAMIBIA






HIGH COURT OF NAMIBIA NORTHERN
LOCAL DIVISION, OSHAKATI







JUDGMENT


Case
no: CR 29/2012







In the matter between:







THE STATE







and







TEOFILIA MARKUS TASHIYA







High Court NLD Review Case Ref No.:
116/2012







Neutral
citation:
The State v Tashiya (CR 29/2012) [2012] NAHCNLD
13 (05 December 2012)











Coram: LIEBENBERG J and MILLER
AJ







Delivered: 05 December 2012















Flynote:



Criminal procedure
Trial – Mental state of accused – South African amendment
to s 77(6) of Criminal Procedure Act 51 of 1977 not applicable to
Namibia.



Criminal procedure
Review – Powers of court discussed and considered –
Direction under s 78(6) of CPA not reviewable under ss 302 and 304 –
High Court has review powers at common law – Direction
accordingly reviewable under common law.



Criminal prosedure
Section 118 of the CPA – Non-availability of judicial officer
after plea of not guilty – Section equally applies to case
where plea of not guilty entered in terms of s 113 – Evidence
adduced at the trial about accused person’s mental condition –
Trial cannot continue before different presiding officer.



Criminal procedure – The
accused — Report on mental state of accused in terms of s 79 of
Act 51 of 1977 — Court should follow guidelines and
requirements set out in s 78.



Criminal procedure — The
accused — Report in terms of s 79 of Act 51 of 1977 —
Where accused unrepresented, not sufficient simply to furnish accused
with copy of report — Court should make every effort to explain
report to accused, especially where report needs to be interpreted
into his own language. S v Mika, 2010(2) NR 611 (HC) applied.







Summary: After the accused
pleaded guilty to the charge, a plea of not guilty was entered
subsequent whereto evidence was heard regarding her mental condition.
The court directed that the matter be enquired into and be reported
on in accordance with the provisions of s 79 of Act 51 of 1977. When
the report came to hand proceedings continued before a different
magistrate who, acting on the conclusions stated in the report,
discharged the accused [but directed in terms of s 78(6) that the
accused be detained in a mental hospital or a prison pending the
signification of the decision of the State President]. Whereas
evidence had been adduced at the trial it was irregular to continue
proceedings before a different magistrate, vitiating such
proceedings. The conclusion as stated in the psychiatric report, and
on which the court relied when giving the direction, is contradicting
and the court should not have relied thereon without hearing
evidence, explaining the correctness of the findings noted in the
report. A court required to give a direction under s 77 and 78 must
give strict compliance to the provisions set out in the sections and
follow the guidelines discussed in S v Mika (supra).











ORDER












  1. The proceedings of court conducted on
    14 October 2011, inclusive of the direction under s 78(6) of Act 51
    of 1977, are set aside.



  2. The matter is remitted to the trial
    court with the direction that the accused must be brought before
    magistrate Haihambo, who is to continue with the trial according to
    the guidelines set out herein.












JUDGMENT











LIEBENBERG J (MILLER AJ concurring):







[1] On the 20th of July
2011 the accused appeared before magistrate Haihambo in the Oshakati
magistrate’s court on a charge of housebreaking with intent to
steal and theft to which she pleaded guilty. The court questioned the
accused pursuant to the provisions of s 112 (1)(b) of the
Criminal Procedure Act 51 of 1977 (hereinafter ‘the Act’),
but subsequently entered a plea of not guilty.







[2] The reason for the court a quo
to follow this course is evident from the accused’s answers
when questioned by the court, in that she explained that she ‘was
pushed by the devil; did not know what she was doing; that she
suffers from an illness and that she did not appreciate the
wrongfulness of the act’.







[3] The matter was postponed until
such time when an enquiry in terms of s 78 of the Act was held during
which evidence was heard. The accused was subsequently referred for
psychiatric evaluation. The case was thereafter postponed pending the
finalisation of the report.







[4] When the psychiatric report came
to hand the accused was again brought before the court on 14 October
2011, but this time before magistrate Mikiti. The record of the
proceedings that followed reads as follows:







Matter
was remanded to mental observation. Report before court. According to
the psychiatric report, accused person was suffering from residual
symptoms at this illness and was incapable of appreciating the
wrongfulness of her action.



State
closes it(s) case against accused person. Does not dispute report
from the doctor.



Accused
person does not dispute the doctor’s report.



Court:
Accused discharged, but declared a state prison’s (sic) patient
in terms of Section 78 (3) Criminal Procedure Act 51/77.’







[5] The matter came before me by way
of ‘Special Review’, though there is nothing on record
explaining why this course was taken. It would appear that the
magistrate when sending the proceedings on review, erroneously acted
in terms of the amended version of s 78(6) of the Act as it currently
reads in South Africa; which amendment was not enacted in this
jurisdiction. In terms of the amended section (s 78(6)(b)(i)(aa))
in the South African context, the accused must ‘be detained in
a psychiatric hospital or a prison pending the decision of a judge
in chambers
. . . .’. The magistrate erred when sending the
proceedings for review.







[6] As mentioned, the amendment of s
78(6) in the South African context does not apply to this
jurisdiction where no provision is made in the Act for review
procedure where a lower court, acting in terms of either ss 77(6) or
78(6) of the Criminal Procedure Act, directs that the accused must be
detained in a mental hospital or a prison, pending the signification
of the decision of the (State) President.







[7] The magistrate, when acting in
terms of the Act – citing s 78(3) instead of s78(6) –
relied on the findings of Dr. Alibusa, the consultant psychiatrist
who compiled the evaluation report in terms of s 79 of the Act. The
concluding paragraph of the report reads as follows:







Conclusions:



1.
THEOFILIA MARKUS TASHIYA suffers from epilepsy since childhood. This
could be responsible for unpredictable changes in her behaviour.



2.
At time of commission of the offence, she was suffering from residual
symptoms of this illness and was in
capable
of appreciating the wrongfulness of his actions
(sic),
in accordance of which appreciation [she] could have acted.



3.
[She] is
fit to stand
trial and has diminished criminal responsibility
.’



(My
underlining)







[8] The conclusion reached and as set
out in paras 2 and 3 of the report are clearly contradicting in that
the accused was (simultaneously) found to have been incapable of
appreciating the wrongfulness of her actions
when committing the
offence charged (par 2); opposed to her being fit to stand trial
as she had only diminished criminal responsibility when she so
acted (par 3).







[9] In view of the contradicting
findings noted in the report and the manner in which proceedings were
conducted, I on 19 July 2012 requested an opinion from the
Prosecutor-General on the following legal issues arising from the
review at hand:



1.
Is the matter reviewable?



2.
If the matter to the afore-mentioned question is in the negative and
notwithstanding, it appears from the record of proceedings that a
gross irregularity was committed during the trial, does the High
Court have the power to review proceedings? See
S
v Gawanab,
1997 NR 61
(HC).



3.
Whereas an irregularity committed has already come to the Reviewing
Judge’s attention, is a formal application as provided for by
Rule 53 of the Rules of the High Court still required?



4.
In the absence of an application brought under Rule 53 or an appeal
lodged by either party, does the High Court have the power to review
proceedings notwithstanding?



5.
In the present case Magistrate Mikiti commenced proceedings after
Magistrate Haihambo recorded the plea and heard evidence which
culminated in an order to the effect that the accused was referred
for psychiatric observation as provided for in the Criminal Procedure
Act. In the absence of the record reflecting as to the availability
of Magistrate Haihambo and in view of what is stated in
S
v Wellington,
1990 NR
20 (HC) at 24E-H, was an irregularity committed which, in the
circumstances of the case, vitiate the entire proceedings?’







[10] A memorandum dated 23 November
2012 was received from the Prosecutor-General and I am indebted to Ms
Verhoef for the assistance provided herein.







[11] As regards par
1 of my letter set out above, this court already decided that an
order made in terms of the provisions of s 77(6) of Act 51 of 1977 is
not a conviction, neither an acquittal and thus not subject to review
in terms of the provisions of s 304 of the Act (
S
v Narib; S v Nyambali
and
The
State v Daniel Christoffel Grunschloss
1).
This principle equally applies to s 78(6) of the Act (
S
v Wills
2
at 108). That
settles the first question.







[12] Although the
Legislature has not by statutory enactment conferred upon the High
Court any review powers in criminal cases except where provided for
by s 304 of Act 51 of 1977, the court, in appropriate cases, does
have the power at common law to exercise review powers over the
decisions of the lower courts. See
R
v Marais
3;
Wahlhaus
v Additional Magistrate, Johannesburg
4.







[13] In The
State v Daniel Christoffel Grunschloss
(supra)
the court
a
quo
wrongly
declared the accused a President’s patient whereafter the
matter was sent on review to have the order set aside. The court
found that the proceedings were not subject to automatic review in
terms of s 302(1)(a) of Act 51 of 1977 (or special review under s
304(4)), and stated that, although proceedings of any lower court may
be brought under review before the High Court in terms of s 20 of the
High Court Act 16 of 1990 on the basis of one or more of the four
grounds listed therein, the order of the magistrate does not fit in
under any one of the grounds listed. Furthermore, referring with
approval to
S
v Payachee
5
and Ex
Parte Millsite Investment Co. (Pty) Ltd
6
the court concluded
that in the circumstances of that case, it was entitled to exercise
its inherent powers of review, and consequently ordered the
substitution of the order made by the magistrate under s 77(6) of Act
51 of 1977 with another.







[14] In The
State v Kenny Misika Nasikambo
7
proceedings in
which the accused was wrongly declared a President’s patient,
were sent on special review. The court of review set aside the order
without stating in its reasons whether it derived jurisdiction to
review the matter under common law on any statutory provisions, for
example s 304 of Act 51 of 1977 or s 20 of the High Court Act 16 of
1990. In the absence of any reference made in the judgment to
statutory provisions, it would appear that the court derived its
reviewing powers at common law.







[15] I am in
respectful agreement with the
dictum
enunciated in the
Grunschloss
matter
(
supra)
and equally find that the matter at hand requires the interference by
this court by invoking its inherent powers of review at common law to
set aside the court
a
quo’s
direction
to have the accused detained pending the signification of the
decision of the President. As a result of the order of detention a
grave injustice resulted to the accused in that she was to be
detained for an indefinite period; and the need to prevent any
further injustice and prejudice suffered by the accused, is
compelling. The circumstances of the case require immediate action to
be taken by this court.







[16] In view of the conclusion reached
above it has, for purposes of this judgment, become unnecessary to
consider whether the correct procedure would have been to approach
the court in terms of Rule 53 of the High Court Rules. Suffice it to
say that no such application was considered by either of the parties
and it can only be in the interest of justice to deal with this
matter as one of urgency.







[17] I now turn to consider whether an
irregularity was committed when a different magistrate commenced
proceedings after the accused had pleaded before another magistrate,
who, by then, had heard evidence pertaining to the accused’s
mental condition and subsequent referral in terms of s 78(2) of the
Act. The record of the proceedings conducted on the 14th
of October 2011by magistrate Mikiti does not reflect why the matter
was not brought before magistrate Haihambo on the said date, and on
what authority magistrate Mikiti acted when continuing with the
trial. Section 118 of the Act makes plain that where a judicial
officer is not available to continue with the trial after the
accused has pleaded and no evidence has been adduced yet,
the
trial may be continued before another presiding officer. Although the
accused in casu pleaded guilty to the charge, a plea of not
guilty was entered. The legal position of the accused is as if he
pleaded guilty from the beginning and the provisions of s 118 would
only find application, provided that (a) no formal admissions
constituting evidence were made up to that stage of the proceedings;
and (b) no evidence has been adduced. Once formal admissions have
been made or evidence had been adduced, the trial cannot continue
before a different presiding officer.







[18] In this case magistrate Haihambo
has heard evidence from the accused’s mother pertaining to her
mental condition. This was done in order to lay a basis from which
the court would be entitled to direct an enquiry into the accused’s
state of mind when committing the offence, as provided for in s 79 of
the Act. This in my view constituted evidence adduced at the trail
and therefore proceedings could not be continued before magistrate
Mikiti. This constituted an irregularity which vitiates the
proceedings of 14 October 2011, inclusive of the direction given in
terms of s 78 of the Act, which falls to be set aside.







[19] The matter
must be remitted to magistrate Haihambo for continuation of the trial
and in view thereof, her and the State’s attention is drawn to
the last paragraph of the psychiatric report which is clearly
contradicting as the accused cannot at the same time be
incapable
of appreciating the wrongfulness of her actions
and
be fit to stand
trial as she has
diminished
criminal responsibility.
This
is a flagrant mistake made by the psychiatrist on which an
unobservant court acted by invoking the provisions of s 78(6),
resulting in the detention of the accused for an indefinite period
pending the signification of the decision of the President.







[20] In view of the contradicting
conclusions reached in the psychiatric report prepared by Dr.
Alibusa, the trial court cannot rely on the findings made therein and
in the circumstances the doctor ought to be subpoenaed as a witness
in order to give evidence on his findings. This would afford the
unrepresented accused to be properly informed of the findings made
during the observation period and give her the opportunity to dispute
same where necessary.







[21] In S
v Mika
8
it was said that
when dealing with a report on the mental state of an accused in terms
of s 79 of Act 51 of 1977 the court should give strict compliance
with the requirements set out in s 78 where it involves unrepresented
accused and the following appears at 615 para 10:







Where
the accused is unrepresented (as in this case), then the court should
assist the accused by explaining to him as clearly as possible the
meaning and effect of legal terminology used in the report to afford
him or her the opportunity to make an informed decision
;
whereafter the court must determine whether the accused disputes the
finding or not and to provide reasonable assistance in the calling of
witnesses. The accused in casu was unrepresented and in her reply the
magistrate stated that the accused was provided with a copy of the
report in court.
It
does not appear from the record of proceedings that the content of
the report was interpreted to the accused at the time when it was
handed in and even if it was done, it seems inconceivable that the
accused would have understood the purview thereof
;
neither what options were open to him, ie that he could dispute the
finding reached by the psychiatrist who compiled the report. The
magistrate's omission to act accordingly, in my view, would amount to
an irregularity vitiating the proceedings.’ (My emphasis)







[22] Had the
magistrate in the present case followed the guidelines set out in the
Mika
case,
then he, in all probability, would have realised that the conclusions
reached in the psychiatric report are contradicting and cannot be
relied upon; and therefore, it has become necessary to hear the
evidence of the psychiatrist and require from him to explain the
findings reached in his report.







[23] Resultantly, the following order
is made:








  1. The proceedings of court conducted on
    14 October 2011, inclusive of the direction under s 78(6) of Act 51
    of 1977, are set aside.



  2. The matter is remitted to the trial
    court with the direction that the accused must be brought before
    magistrate Haihambo, who is to continue with the trial according to
    the guidelines set out herein.































________________


JC
LIEBENBERG


JUDGE








________________


PJ
MILLER


ACTING
JUDGE




1S
v Narib; S v Nyambali
2010
(1) NR 273 (HC);
The
State v Daniel Christoffel Grunschloss
(unreported)
Case No CR 120/1999 delivered on 19.09.1999.





2S
v Wills,
1996(2)
SACR 105 (T).





3R
v Marais
,
1959 (1) SA 98 (T).





4Wahlhaus
v Additional Magistrate, Johannesburg,
1959
(3) SA 113 (A) at 120A.





5S
v Payachee,
1973(4)
SA 534 (NC) at 536E-G.





6Ex
Parte Millsite Investment Co. (Pty) Ltd,
1965(2)
SA 582 TPD at 585F-H.





7The
State v Kenny Misika Nasikambo,
(unreported)
Case No CR 205/1995 delivered on 02.11.1995.





8S
v Mika
2010(2)
NR 611 (HC).