REVIEW JUDGMENT LIEBENBERG J (DAMASEB JP concurring): [1] The accused was arraigned, convicted and sentenced in the magistrate’s court, Windhoek, on a charge of theft by false pretense, the particulars whereof are of no moment. On 07 June 2017, the accused person appeared before magistrate Shapumba for plea and trial, whereupon he pleaded not guilty. Thereafter, the matter was postponed for continuation of trial to 03 August 2017. When the matter was called on the aforesaid date, magistrate Savage presided over the trial, applied section 115 of the Criminal Procedure Act 51 of 1977 (“Act”) in respect of the accused person’s plea, found the accused person guilty and convicted and sentenced him. [2] When the matter came on review I enquired from magistrate Savage as follows: On what authority did magistrate Savage act to commence trial proceedings if ‘… there is nothing on record explaining the unavailability of the magistrate before whom the accused pleaded?’ [3] The magistrate responded as follows: plea taken by Magistrate Shapumba was a plea in accordance with Section ‘The 115 of the Criminal Procedure Act. When the matter appeared on 3/08/17 Magistrate Shapumba was and still is on vacation leave. The accused wanted his trial to proceed and I acted within the ambit of section 118 of the Criminal Procedure Act. No evidence was adduced before Mr Shapumba and the accused was not prejudiced. That magistrate Shapumba’s absence was not reflected on record is an oversight on my part.’
REVIEW JUDGMENT LIEBENBERG J (DAMASEB JP concurring): [1] The accused was arraigned, convicted and sentenced in the magistrate’s court, Windhoek, on a charge of theft by false pretense, the particulars whereof are of no moment. On 07 June 2017, the accused person appeared before magistrate Shapumba for plea and trial, whereupon he pleaded not guilty. Thereafter, the matter was postponed for continuation of trial to 03 August 2017. When the matter was called on the aforesaid date, magistrate Savage presided over the trial, applied section 115 of the Criminal Procedure Act 51 of 1977 (“Act”) in respect of the accused person’s plea, found the accused person guilty and convicted and sentenced him. [2] When the matter came on review I enquired from magistrate Savage as follows: ‘… On what authority did magistrate Savage act to commence trial proceedings if there is nothing on record explaining the unavailability of the magistrate before whom the accused pleaded?’ [3] The magistrate responded as follows: ‘The plea taken by Magistrate Shapumba was a plea in accordance with Section 115 of the Criminal Procedure Act. When the matter appeared on 3/08/17 Magistrate Shapumba was and still is on vacation leave. The accused wanted his trial to proceed and I acted within the ambit of section 118 of the Criminal Procedure Act. No evidence was adduced before Mr Shapumba and the accused was not prejudiced. That magistrate Shapumba’s absence was not reflected on record is an oversight on my part.’
S%20v%20Mwalyombu%20(CR%2058-2017)%20[2017]%20NAHCMD%20271%20(25%20September%202017).docx