1
REPUBLIC OF NAMIBIA
REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CR 04/2015
In the matter between:
THE STATE
and
ANGELA MUTANDWA
High CourtMD Review CaseRef No.: 1345/2014
Neutral citation: S v Mutandwa(CR 04/2015) [2015] NAHCMD 13 (05 February 2015)
Coram:LIEBENBERG J and SHIVUTE J
Delivered:05 February 2015
Flynote:Trial – Jurisdiction – Objection to – Failure to object – Applicability of deeming provision in s 110(1) of Criminal Procedure Act 51 of 1977 – Deeming provision not applicable where unrepresented accused failing to appreciate the court's lack of jurisdiction – Duty of magistrate to explain the accused’s rights and to ensure that unrepresented persons have a fair trial.
Criminal law – The offence of entering Namibia at a place other than a port of entry (c/s 6 (1) of the Immigration Control Act 7 of 1993 is not a continuing crime – Offence completed upon entry.
Summary: The accused entered Namibia at Oshikango but did not pass through the border post. When she tried to leave Namibia through the Trans Kalahari Border post she was apprehended and charged in the Gobabis magistrate’s court for illegal entry at a place other than a border post (Oshikango). Accused was convicted on her own plea of guilty. The court acted in terms of s 110 (1) of Act 51 of 1977 was deemed to have jurisdiction but failed to explain to the unrepresented accused her rights pertaining to object thereto. The court’s omission to do so constitutes an irregularity vitiating the entire proceedings.
ORDER
The conviction and sentence are set aside.
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JUDGMENT
LIEBENBERGJ(SHIVUTEJ concurring):
[1] The accused was charged in the magistrate’s court Gobabis on a charge of contravening s 6 (1) read with sections 1, 2 and 10 (3) of the Immigration Control Act, 1993 (Act 7 of 1993). She was convicted on her plea of guilty and sentenced to a fine of N$4 000 or 8 months’ imprisonment.
[2] The charge is framed in the following terms:
‘Contravening section 6 (1) read with sections 1, 2 and 10 (3) of the Immigration Control Act, Act 7 of 1993.
In that upon or about the 26th day of May 2014 at or near Trans Kalahari Border Post in the district of Gobabis the accused did wrongfully and unlawfully enter Namibia at Oshikango being a place other than a port of entry, without
(a)His/her/them (sic) passport bearing an endorsement by the Minister;
(b)Him/her/them being in possession of a document issued to him/her/them by an immigration officer;
Granting him/her/them permission to enter Namibia at that place and to be in Namibia for such purposes and during such period and subject to such conditions as may be stated in that endorsement or such document.’
[3] From a reading of the charge it is clear that the charge is ambiguous in that it alleges that the accused entered into Namibia at Oshikango ‘at or near the Trans Kalahari Border Post in the district of Gobabis’.
[4] In view thereof, I directed a query to the magistrate when the matter came on automatic review enquiring whether the Gobabis magistrate’s court had jurisdiction over the matter; furthermore, whereas Oshikango is a designated border post, whether the accused committed the offence charged when entering Namibia at Oshikango.
[5] In his reply the magistrate held the view that a contravention of s 6 (1) is a ‘trans-district’ immigration offence and it would be cumbersome and expensive if the accused were to be transferred to the district having jurisdiction over the place where the accused actually entered into Namibia. In respect of the accused having entered at Oshikango it was submitted that the accused, though having entered at Oshikango, did so undetected and without having reported herself to an immigration officer stationed at the border post. The latter explanation lays to rest any uncertainty that may exist as to the unlawful conduct by the accused whenentering Namibia.
[6] As regards jurisdiction it was further contended that s 110 (1) of the Criminal Procedure Act, 1977 (Act 51 of 1977) (‘the Act’) specifically provides for cases of this kind and that the court by virtue of this section had jurisdiction over the matter. Section 110 reads as follows:
‘Accused brought before court which has no jurisdiction
(1) Where an accused does not plead that the court has no jurisdiction and it at any stage-
(a)after the accused has pleaded a plea of guilty or of not guilty; or
(b)where the accused has pleaded any other plea and the court has determined such plea against the accused,
appears that the court in question does not have jurisdiction, the court shall for the purposes of this Act be deemed to have jurisdiction in respect of the offence in question.
(2) Where an accused pleads that the court in question has no jurisdiction and the plea is upheld, the court shall adjourn the case to the court having jurisdiction.’
[7] The magistrate’s assertion that a contravention of s 6 (1) is a continuing offence and that the accused’s unlawful conduct did not seize the minute she left Oshikango, is incorrect. Unlike the offence of theft, the unlawful entering of Namibia at a place other than a port of entry is not a continuing offence, as the offence had been completedupon the accused’s unlawful entry. The offence was clearly not committed within the territorial jurisdiction of the Gobabis magistrate’s court, even if the accused was later apprehended in that district.
[8] It then begs the question whether the trial court without having the necessary jurisdiction, could hear the matter? It would appear that the magistrate realised that the offence for which the accused was charged fell outside the court’s territorial jurisdiction but, notwithstanding, proceeded with the matter in view of the provisions set out in s 110 (1) of the Act. This section gives jurisdiction to a court which otherwise would not have jurisdiction and is based on the accused tacitly accepting the court’s jurisdiction and without raising it during his/her first appearance. Subsection (2) makes plain that where the court does not have jurisdiction and the accused pleads this, then the case must be transferred to the court which possesses jurisdiction.
[9] In the present matter the accused, a foreign national from Zimbabwe, did not plead that the court lacked jurisdiction, however, could the magistrate assume that the accused was aware of the right to object to jurisdiction? It is clear from the record of proceedings that no explanation pertaining to the court not having jurisdiction was given to the undefended accused; hence, in the absence of proof showing otherwise, it must be accepted that she was unaware of such right. In this instance the magistrate had the duty to explain to the accused her right to object to the court’s jurisdiction over the matter and in this respect the court in S v W and Another 1994 (2) SACR 777 (N) at 779A-C said:
‘In my judgment the magistrate had a clear duty to explain to the accused and their guardians that the court did not have jurisdiction. Section 110 of the Act is based upon the principle that if an accused with knowledge of his rights chooses not to take the point of jurisdiction which would otherwise be open to him there would be no injustice or irregularity in his being tried in the court whose jurisdiction he has elected not to challenge. But one can only waive one's rights if one knows what those rights are (Laws v Rutherford 1924 AD 261 at 263). A presiding magistrate accordingly owes a duty to inform an unrepresented accused of his rights so that he may with that knowledge elect either to object or not to object to the jurisdiction. In this instance the magistrate did not so inform the accused.’
I respectfully endorse these sentiments.
[10] The magistrate’s explanation that it would be too costly to have the accused transferred to the court having territorial jurisdiction over the matter is no excuse for failing to carry out his duty to explain to the accused that the court did not have jurisdiction and that she could object thereto. His failure to do so constituted a material irregularity and the conviction cannot be permitted to stand.
[11] In the result, the conviction and sentence are set aside.
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JC LIEBENBERG
JUDGE
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NN SHIVUTE
JUDGE