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REPUBLIC OF NAMIBIA

HIGH COURT OF MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 27/2018

In the matter between:

THE STATE

v

KENNETH VRIES ACCUSED

(HIGH COURT MAIN DIVISION REF. NO. 173/2018)

(MAGISTRATE SERIAL NO. 11/2018)

Neutral citation:S v Vries(CR 27/2018) [2018] NAHCMD85 (06April2018)

Coram:SHIVUTE, Jet SALIONGA, AJ

Delivered:6 April 2018

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ORDER

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1.The conviction and sentence are set aside.

2.The matter is not remitted to the trial court.

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REVIEW JUDGMENT

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SALIONGA, AJ (SHIVUTE, J concurring):

[1]The accused appeared before the magistrate in Karasburg on a charge of assault by threat read with the provisions of the domestic violence Act, Act 4 of 2003.

[2]The accused pleaded guilty but a plea of not guilty was noted whereupon the prosecutor indicated to the court that ‘it looks like we have to proceed with a trial’ and requested the matter to stand down. The court ordered the matter to stand down.

[3]When the matter was called again the prosecutor informed the court that after consultation with the accused, the accused wishes to make admissions in terms of section 220 of the Criminal Procedure Act. It is recorded that accused admitted that he indeed stated that he would kill the complainant and her child and he knew what he was doing was wrong even though he was drinking. The court thereafter formally recorded the admissions made by the accused in terms of section 220 of the Criminal Procedure Act, finds accused guilty on his own plea of guilty. Accused was then sentenced to N$1000 (one thousand Namibian dollars) or 6 (six) months imprisonment of which N$500 (fine hundred Namibian dollars) and 3 (three) months is suspended for a period of 3 (three) years on condition that the accused is not convicted of assault by threat, assault common and assault with intent to do grievous bodily harm committed during the period of suspension.

[4]When the matter came before me on automatic review. I requested the magistrate to explain whether the admissions recorded covers all the elements of the offence of assault.

[5]In her reply, the magistrate conceded that the admissions recorded do not satisfy all the elements of the offence of assault and requested the matter to be remitted back to her for the accused to make complete admissions or for a plea of not guilty to be entered and for the matter to proceed with a trial.

[6]Despite the fact that the accused was sentenced on 15 January 2018, the record was only received on review on 22 March 2018. It is for this reason that this review proceeding is just for academic purposes as the accused has served or is about to serve his or her sentence of three months. Remitting the matter back to the magistrate will not serve justice to the accused person.

[7]Whereas the review court is compelled to remit proceedings to the trial court in terms of s 312 of Act 51 of 1977 with the directions, it is my respective view that it will not be in the best interest of justice to do so in the present instance as the accused has already or is about to serve the sentence imposed and declined to make such order.

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

  1. The conviction and sentence are set aside.
  2. The matter is not remitted to the trial court.

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J T SALIONGA

Acting Judge

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N N SHIVUTE

Judge