- September 9, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL LAW – MAGISTRATE OTHER THAN THE MAGISTRATE WHO CONVICTED MAY PASS SENTENCE – ONE MAGISTRATE CAN COMMENCE TRIAL WHERE ACCUSED PLEADED BEFORE ANOTHER MAGISTRATE
The accused was charged with count 1 – Theft of stock in terms of section section 1(1) (a), 1,14 and 17 of the Stock Theft Act 12 of 1990 as amended. In the alternative to Count 1: possession of suspected stolen stock contravening section 2 read with section 1, 11(1) (a), 15 and 17 of Act 12 of 1990 as amended.
Count 2: Theft-general deficiency.
The accused appeared before the initial magistrate and pleaded not guilty to Count 1 and 2, and pleaded guilty to the alternative to Count 1 of being in possession of suspected stolen stock. The court proceeded in terms of section 112 (1) (b) of the CPA in respect of the first alternative count. Subsequently, the accused was acquitted in respect of Count 1 and found guilty in respect of the first alternative count of possession of suspected stolen stock. The court then applied section 115 of the CPA, which is a not guilty plea, in respect of Count 2. Thereafter, the matter was postponed several times for trial in respect of Count 2 due to unavailability of the magistrate.
On 11 May 2022, the case appeared before another magistrate who decided to proceed with the trial and acquitted the accused in respect of Count 2. He sentenced the accused in respect of the first alternative count to a fine of N$2000.oo or in default of payment, eight months imprisonment of which N$500.oo or two months were suspended for a period of three years on condition that accused is not convicted for the offence of possession of suspected stolen stock committed during the period of suspension.
The review court directed a query to the second magistrate who presided over the matter to inquire what happened to the first magistrate and why he took over a partly matter. The magistrate respondent that he failed to indicate on the record what happened to the initial magistrate, but she was transferred to Windhoek, and that the matter was not a partly heard as no evidence was led before the initial magistrate. He then relied on section 118 of the CPA which deals with the non-availability of a judicial officer after a plea of guilty.
SHIVUTE J ( LIEBENBERG J concurring) considered the applicable law and stated that:
In respect of the alternative to Count 1, a conviction was entered by the initial magistrate, section 275 which provides for a sentence by a judicial officer other than the judicial officer who convicted, became applicable when the new magistrate took over the matter and sentenced the accused.
In respect of Count 2, it was held in S v Immanuel CR 23/2010 (unreported) delivered on 29 September 2010 that it is not irregular for one magistrate to commence with the trial where the accused had pleaded before another magistrate as long as the record reflects that the magistrate before whom the accused had pleaded, is not available and no evidence has been adduced yet. Section 118 of the CPA deals with such scenario thus:
‘If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court.’
S v Immanuel referred to S v Wellington 1991 (1) SACR 144 (Nm) where it was stated that the section 118 procedure can only be used where the original presiding officer is not available and does not entitle the prosecution to proceed before another presiding officer for any other reason, as such would constitute an irregularity. In S v Mwalyombu (CR 58/2017) [2017] NAHCMD 271 (25 September 2017) the court had to consider the fatality of such an irregularity, and found that the irregularity did not vitiate the proceedings as the trial proceedings were in accordance with justice and the accused suffered no prejudice.
In casu, there was no indication on the record of proceedings of 11 May 2022 that the initial magistrate was not available to continue with the trial which results in an irregularity, however, considering the trial proceedings and whether the accused was prejudiced, I am of the opinion that the irregularity is not fatal to make the proceedings defective, thus the conviction and sentence is confirmed on review.
In the result, the conviction and sentence were confirmed.
S v Gaoe NAHCMD 9 September 2022