S v Uamburu (CRIMINAL 67 of 2011) [2011] NAHC 271 (21 September 2011)
The trial proceedings before the original magistrate are set aside due to her unavailability, and a trial de novo may commence before another magistrate at the discretion of the Prosecutor General.
Source-derived case information.
- Citation
- [2011] NAHC 271
- Parties
- Prosecutor: The State; Accused: Kaumbiri Uamburu
- Court
- High Court
- Jurisdiction
- Namibia
- Case Number
- CRIMINAL 67 of 2011
- Procedural Posture
- Criminal / Special Review
- Outcome
- trial proceedings set aside; trial de novo permitted
- Legal Topics
- Housebreaking With Intent to Steal and Theft, Trial De Novo, Magistrate Unavailability, Special Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Prosecutor
Kaumbiri Uamburu
Accused
Procedural Posture
Criminal / Special Review
Legal Issues
- 1 Whether the proceedings before the original magistrate should be set aside due to her unavailability
- 2 Whether a trial de novo should be ordered
Ratio Decidendi
The trial proceedings before the original magistrate are set aside due to her unavailability, and a trial de novo may commence before another magistrate at the discretion of the Prosecutor General.
Court Disposition
trial proceedings set aside; trial de novo permitted
Orders
- The trial proceedings before Magistrate Ngwanga are set aside.
- The trial may commence de novo before another magistrate at the discretion of the Prosecutor General.
Full Case Text
Judgment text and source record
1 paragraphs
CASE NO.: CR 67/2011 “Not Reportable” IN THE HIGH COURT OF NAMIBIA In the matter between: THE STATE vs KAUMBIRI UAMBURU (HIGH COURT REVIEW CASE NO.: 918/2011) CORAM: PARKER, J et, SIBOLEKA, J Delivered on: 2011 September 21 _________________________________________________________________ REVIEW JUDGMENT _________________________________________________________________ PARKER, J [1] This matter has been referred to me by way of special review in terms of s 304 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (‘CPA’). The accused was arraigned in the magistrates’ court, Okakarara, on housebreaking with intent to steal and theft. The trial commenced and proceeded - 2 - before Magistrate Ngwanga whose fixed-term contract of employment was not extended on its expiration, and so she returned to her home country, Zimbabwe. [2] In such a situation, it has been said (see S v Scheepers 2009 (2) SACR 58 at 61g-h per Willis J) that the failure of a lower court to apply for the setting aside of proceedings and the commencement of a trial de novo, as a result of the unavailability of the magistrate who began hearing evidence in the matter, will not necessarily result in a finding that an accused was subsequently wrongly convicted, if a trial de novo does, in fact, take place without the prior sanction of the High Court. Nevertheless, it would certainly be desirable and good practice for an application to be made to the High Court, by way of special review, for the setting aside of previous proceedings and the commencement of a trial de novo. Rather than take the risk of injustice and unnecessary expense and inconvenience for the State and the accused, it is, by far, preferable to approach the High Court for a special review: the commencement of a trial de novo is not merely an administrative matter. [3] I respectfully accept the point made by Willis J as a correct statement of law and so I adopt it. Having done so I make the following order: (1) The trial proceedings before the magistrate, Ms Ngwanga, in this matter are set aside. (2) The trial may commence de novo before another magistrate at the discretion of the Prosecutor General. - 3 - ___________________ PARKER, J I agree. ___________________ SIBOLEKA, J