CRIMINAL LAW – TRIAL PROCEEDING BEFORE MAGISTRATE OTHER THAN THE MAGISTRATE WHO NOTED THE PLEA (SECTION 118 OF CPA) – CAUTION IN RE SINGLE WITNESS – APPROACH WHERE THERE IS MUTUALLY DESTRUCTIVE EVIDENCE

CRIMINAL LAW – TRIAL PROCEEDING BEFORE MAGISTRATE OTHER THAN THE MAGISTRATE WHO NOTED THE PLEA (SECTION 118 OF CPA) – CAUTION IN RE SINGLE WITNESS – APPROACH WHERE THERE IS MUTUALLY DESTRUCTIVE EVIDENCE

The accused pleaded not guilty in the Magistrates Court of Okahao to a charge of common assault (read with the provisions of the Combating of Domestic Violence Act 4 of 2003). The trial proceeded before a different magistrate than the one who noted the plea and, after the evidence of the complainant, was convicted as charged. The sentence imposed reads as follows: ‘A fine in the amount of N$ 4 000 or 4 months imprisonment which is wholly suspended for a period of 3 years on condition that accused does not commit the crime of assault common read with the provisions of the Domestic Violence Act 4 of 2003 during the period of suspension’.

The reviewing court sent a query to the learned magistrate regarding why there was no entry made in terms of section 118 of the CPA regarding the unavailability of the magistrate who had taken the plea before the trial before a different Magistrate; how the magistrate satisfied that the State proved the allegations beyond reasonable doubt in light of contradictions in the testimony of the complainant and the medical report; the vagueness of the sentence; and in which terms the rights to review and appeal explained to the accused?

The magistrate conceded to the first query as an oversight. The review court sated that section 118 allows for a different magistrate to proceed with trial after a plea of not guilty only if the initial magistrate is unavailable. It is the duty of the State to place the reason for such unavailability on record and failure to do so renders the continuation of the trial before magistrate irregular. However, as per S v Mwalyombu (CR 58/2017) [2017] NAHCMD 271 (25 September 2017), the circumstances of each case will determine if such irregularity vitiates the entire proceedings.

In respect of the second query, the court found that complainant was a single witness who testified that she was beaten by the accused with sticks and first all over her body and that she received treatment the next day for ‘swollen areas’. However, the medical report made no mention of any such ‘swollen areas’ or any injuries. The State submitted that they did not prove the allegations beyond reasonable doubt and requested the court to exercise caution when weighing the evidence of the single witness. The accused further denied assaulting the complainant and repeated his version under oath – the court a quo was confronted by mutually destructive evidence (see approach in S v Britz CC 02/2017 (2017) NAHCMD 326 (16 November 2017).  Having considered the matter the review court found that the trial court’s assessment of the evidence was not properly done and not in accordance with justice.

In the result, the conviction and sentence were set aside.

S v Keukeni NAHCNLD 08 September 2022