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REPUBLIC OF NAMIBIA

HIGH COURT OF MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 25/2018

In the matter between:

THE STATE

v

DAWID GAWESEB ACCUSED

(HIGH COURT MAIN DIVISION REF. NO. 67/2018)

(MAGISTRATE SERIAL NO. REV139/2017)

Neutral citation:S v Gaweseb (CR 25/2018) [2018] NAHCMD83 (06April2018)

Coram:SHIVUTE, J et SALIONGA, AJ

Delivered:6 April 2018

Summary:A magistrate has the final say whether a case should be finalized in terms of section 112(1)(a) – Where a magistrate is in doubt regarding the seriousness of the offence and sentence to be imposed, an enquiry in terms of section 112(1)(b) is advisable.

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ORDER

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1.The conviction and sentence are set aside.

2.The proceedings are returned to the presiding magistrate who is ordered to apply the provisions of section 112(1)(b) of Act 51 of 1977.

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REVIEW JUDGMENT

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SALIONGA, AJ (SHIVUTE, J concurring):

[1]The accused was charged with failure to pay maintenance in contravening section 11(1) of the Maintenance Act, Act of 2003.

[2]He pleaded guilty to the charge and the prosecutor requested the matter be finalized in terms of the provisions of section 112(1)(a) of Act 51 of 1977 and was convicted on his own plea of guilty.

[3]The accused was sentenced to N$2000 (two thousand Namibian dollars) or 3 (three) months imprisonment.

[4]When the matter came on review I directed a query to the magistrate that ‘failure to pay maintenance in contravening section 11(1) of the Maintenance Act of 2003 is a serious offence, why was section 112(1)(b) not applied?’

[5]The learned magistrate in her reply concurred with the reviewing judge that failure to pay maintenance is a serious offence but as the presiding officer of the court is not privy to the contents of the docket and after taking the plea she was guided by the provision proposed by the state.In this case s 112(1)(a) of the Criminal Procedure Act, 1977 (Act no. 51 of 1977). That s 112(1)(a) as amended by s 7 of the Criminal Procedure Amendment Act 2010, Act 13 of 2010 provides that:

‘if the presiding officer is of the opinion that the offence does not merit imprisonment or any form of detention without the option of a fine exceeding N$6000-00, convict the accused in terms of s 112(1)(a).’

[6]I do agree with the learned magistrate’s sentiment that s 112(1)(a) was meant to be used in those instances where accused persons are charged with relatively minor offences and where the presiding magistrate is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine.

[7]The magistrate in order to decide whether to finalize the matter in terms of s 112(1)(a) is often guided by the prosecutor’s attitude who has more information than the court regarding the circumstances under which the offence had been committed, however it is the presiding officer who takes the final decision.

[8]In instances where the magistrate has any doubt regarding the seriousness of the offence the magistrate has the power in terms of the provisions of s 112(1)(b) to conduct an enquiry in spite of the prosecutor’s request that the case be finalized in terms of s112(1)(b).

[9]Liebenberg, J in making reference to S v Onesmus; S v Amukoto; S v Mweshipanyereiterated that this court discussed the untenable situation brought about when the presiding officer wrongly invoked the provisions of s 112(1)(a).[1]

[10]Section 39(2) makes plain that the accused is entitled to an acquittal if failure to pay maintenance was due to lack of means on the part of the accused and if it has been proved that such failure was not due to the accused’s unwillingness to work or as a result of misconduct. In casu the accused in mitigation of sentence clearly raised the defence of lack of means due to unemployment where upon the court ought to have recorded a pleading of not guilty in terms of section 113 of the Criminal Procedure Act and ordered the matter to proceed with the trial.

[11]The offence of failure to pay maintenance on which the accused was convicted could hardly be seen as minor or petty and for the court to have finalized the case by accepting the accused’s plea at face value without satisfying itself that an offence was actually committed in my view constitute a misdirection in that the distinction between the two subsections 112(1)(a) and (b) and the ambit of each, were not fully appreciated when the court exercised its discretion, in the present circumstances it will be in the interest of the administration of justice to refer the matter back to the trial court.

[12]In view of the penalty provision applicable to an offence under s 39 and the substantial amount the accused has fallen in arrears. The court’s decision to dispose the matter in terms of s 112(1)(a) fell significantly short of having exercised its discretion judiciously. The trial court in my view did not exercise its discretion judiciously when disposing of the matter as it did and should have questioned the accused in terms of s 112(1)(b) of the Criminal Procedure Act.

[13]In the present matter, the accused was wrongly charged with a consideration of section 11(1) of the Maintenance Act, Act 9 of 2003 in that this section provides for the examination of person by the maintenance officer and it does not create an offence relating to maintenance or orders as set out in s 39 of the Act. The relevant section 39 (1) reads as follows:‘Subject to subsection (2) any person who disobeys a court order by failing to make a particular payment in accordance with a maintenance order commits an offence and is liable to a fine which does not exceed N$4000-00, to be imprisoned for a period which does not exceed 12 months or to periodical imprisonment in accordance with section 285 of the Criminal Procedure Act, 1977 (Act 51 1977).’

[14]In the result, it is ordered that:

1.The conviction and sentence are set aside.

2.The matter is remitted to the trial court in terms of s 312(1) of Act 51 of 1977 with the direction to enter a plea of not guilty in terms of s 113 and to bring proceedings to its conclusion.

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J T SALIONGA

Acting Judge

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N N SHIVUTE

Judge

[1]S v Onesmus (CR 08/2011) (HC) delivered on 30 March 2011.