CRIMINAL PROCEDURE – REVIEW – FAILURE TO INVOKE SECTION 51(1)(c) OF ACT 22 OF 1999 CONSTITUTES AN IRREGULARITY

CRIMINAL PROCEDURE – REVIEW – FAILURE TO INVOKE SECTION 51(1)(c) OF ACT 22 OF 1999 CONSTITUTES AN IRREGULARITY

 

The accused was charged in the Magistrate Court in the district of Katima Mulilo with contravening section 82(1)(a) of the Road Traffic and Transport Act 1999 (the Act) read with sections 1, 49, 50, 51, 82(8), 86, 89 and 106 of the said Act- Driving under the influence of Intoxicating liquor. The accused pleaded guilty, and the court applied section 112(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA). During questioning, the accused disputed some allegations, and the magistrate entered a plea of not guilty in terms of section 113 of the CPA. The matter proceeded to trial and the accused was then convicted after evidence was presented. He was subsequently sentenced to a fine of N$3000 or three months’ imprisonment.

 

On review, a query was directed to the magistrate to enquire why the court failed to invoke the provisions of section 51(1)(c) of the Act. The magistrate in his response conceded that he should have invoked the provisions of section 51(1)(c) of the Act.

 

SHIVUTE J (LIEBENBERG J concurring) stated that the magistrate failing to apply section 51(1)(c) of the Act is an irregularity as the Act makes the application of the provision mandatory. State v Tjipeuja (CR 2/2017) [2017] NAHCMD 4 (20 January 2017) stated the following: ‘The provisions of section 51(1) of Act 22 of 1999 are peremptory and must be complied with.’

 

The conviction and sentence were in accordance with justice and were confirmed, however the matter was remitted to the Magistrate Court, to re-summon the accused and for the court to invoke the provisions of section 51(1) of the Road Traffic and Transport Act 22 of 1999.

 

S v Maibwe (CR 129-2022) [2022] NAHCMD 644 (28 November 2022)