REPUBLIC OF NAMIBIA
NOT REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CR 13/2015
In the matter between:
THE STATE
and
NATANIEL NENDONGOACCUSED
High Court MD Review Case Ref No.: 1428/2014
Neutral citation: S v Nendongo(CR 13/2015) [2015] NAHCMD 65 (18 March 2015)
Coram: HOFF J and LIEBENBERG J
Delivered:18 March 2015
Flynote:Criminal procedure – Review in terms of s 304 (4) of Act 51 of 1977 – Judgmentambiguous – Accused charged with five counts and alternatives – Court judgment and order conflicting – Accused convicted of offences not charged – Court failing to give judgment on some charges – Constitutes irregularity – Judgment set aside – Matter remitted to same court to reassess evidence and pass judgment.
Summary:The accused was charged with several offences set out in five counts, plus alternatives, to which he pleaded. At the end of the trial the court convicted him ofone offence not charged whilst omitting to pronounce itself on some of the counts the accused has pleaded. The judgment in itself is ambiguous and conflicting as regards convictions and acquittals in respect of all the charges, from which it is evident that the magistrate failed to apply her mind to the matter and delivered judgment haphazardly. The judgment set aside on review.
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ORDER
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- The entire judgment delivered on 5 October 2012 is set aside.
- The matter is remitted to the same court with the direction to reassess the evidence presented and to give judgment on each count the accused has pleaded, thereafter, to continue with the trial in the normal course.
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JUDGMENT
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LIEBENBERG J (HOFF J concurring):
[1]This matter was sent on special review by the magistrate for Otjiwarongo in terms of s 304 (4) of the Criminal Procedure Act, 51 of 1977.
[2] The reasons advanced by the magistrate why proceedings had to be reviewed after convicting the accused and before sentence, were not entirely clear and a queryin that regard was directed to her. I then expressed dissatisfaction in which the record, comprising almost 500 pages, were simply forwarded for review expecting from the reviewing judge to unravel the purpose for having the matter sent on special review. What could however be gleaned from the record is that it appeared that the Namcis order pertaining to conviction differed from charges the accused had to meet. It was pointed out in the query that, irrespective of what the Namcis record reflects, what was of importanceis the court’s verdict delivered in respect of each of the five counts, plus the alternatives thereto. During a subsequent meeting with the magistrate she conceded that from the record she was unable to figure out on which of the counts she convicted, or was able to recall the extent of her earlier judgment; unfortunately, neither can I.
[3] The magistrate is certain that the accused pleaded to the following charges as set out in the annexures to wit: Count 1 (Main count): Driving whilst under the influence (c/s 82 (1)(a) of Act 22 of 1999 (the Act)), Alternatively, Reckless or negligent driving (c/s 80 (1) of the Act; Count 2: Failing to stop after an accident (c/s 78 (1) of the Act; Count 3: Failing to ascertain damage sustained after an accident (c/s 78 (1)(b) of the Act; Count 4 (Main count): Defeating or obstructing the course of justice, Alternatively, Attempting to defeat of obstruct the course of justice; Count 5: Consuming intoxicating liquor after having been informed not to consume any prior to the taking of a breath and/or blood specimen (c/s 78 (2)(a) or (b)). Having pleaded to these charges the accused was entitled to receive judgment on each.
[4] The last paragraph of the judgment delivered in court reads as follows (verbatim): ‘The duty to prove the accused person rest on the state and prove required is that of reasonable doubt in case before court the state failed to prove the guilty of the on the following count 1 count 2, count and count 4 however state prove the guilty of the accused person beyond reasonable doubt he is found guilty and convicted accordingly. On other counts accused found not guilty and acquitted.’ (Emphasis provided)
[5] It appears from the above excerpt of the judgment that the court was satisfied that the State failed to prove the accused’s guilt on counts 1, 2 and 4 whilst simultaneously,convicting on the same counts. Whereas reference was made to another unnumbered count, it probably referred to count 3. It is neither clear whether the court convicted on the main or alternative charges as set out in counts 1 and 4. The court further did not pronounce itself on count 5, except if this count has been included in the ‘other counts’ referred to on which the accused was acquitted.
[6] The Namsis order pertaining to judgment reflects the following: On count 1 the accused was convicted of Driving with an excessive breath alcohol level in contravention of s 82 (5) of the Act. I pause to observe that the accused was never charged with such offence, neither is it a competent verdict to the charges contained in count 1. On count 2 he was convicted of Reckless or negligent driving in contravention of s 80 (1) of the Act. However, on count 2 the accused was charged for having failed to stop his vehicle after an accident and could thus not have been convicted of either reckless or negligent driving. This was the alternative charge to count 1 as reflected in the charge sheet. On count 3 he was acquitted on a charge of ‘Defeating or Obstruct the course of justice – attempting’, whilst the charge contained in this count (as per the charge sheet) is a contravention of s 78 (1)(b) of the Act (Failure to ascertain damage after an accident). Count 4 in the main and alternative counts contain charges of obstructing the course of justice, not count 3. Accepting that this was merely a numerical error made during delivery of the judgment, then the court still failed to give judgment on counts 3 and 5.
[7] When considering the disorganised manner in which the magistrate went about when delivering judgment, it is evident that she did not at all apply her mind to the matter before her and haphazardly went about when deciding the charges preferred against the accused. Not only did the magistrate fail to pronounce judgment on a number of the charges, she went so far as to convict the accused of offences for which he was never charged! This constituted a serious misdirection. I find the magistrate’s incompetence as demonstrated in these proceedings most disturbing as she is no new comer on the block and,in view of her position in the magistracy,ought to be well acquainted with the law and trial procedure applicable to criminal cases.
[8] In the circumstances as well as the interest of the administration of justice, the ambiguous and, with respect, nonsensical judgment delivered on 5 October 2012, cannot be permitted to stand and must be set aside.
[9] In the result, it is ordered:
- The entire judgment delivered on 5 October 2012 is set aside.
- The matter is remitted to the same court with the direction to reassess the evidence presented and to give judgment on each count the accused has pleaded, thereafter, to continue with the trial in the normal course.
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J C LIEBENBERG
JUDGE
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E P B HOFF
JUDGE