WINDHOEK – The trial of a man accused of robbing someone of a cellphone was ordered to start afresh before a different magistrate after the previous magistrate called the accused twice to testify in his own defence.
During his testimony the first time, Cavin Munyele denied any knowledge of the allegations, but the second time while denying the robbery admitted to stealing the phone.
After this the trial was postponed for judgment, but when the trial magistrate prepared for judgment and after perusing the court record it was discovered that Munyela testified twice in his own defence.
The magistrate then submitted the record to Judge Elton Hoff who in concurrence with Judge Alfred Siboleka agreed that the magistrate committed a material irregularity.
He said while the review of inconclusive criminal proceedings in a magistrate’s court will only be considered in rare cases, in the present matter grave injustice might result or justice might not be attained by any other means.
He said the accused contradicted himself by first denying any knowledge of the crime and subsequently by admitting theft.
This would not have happened if the presiding magistrate did not put him in the position to testify for a second time.
He said this knowledge of the magistrate would certainly give rise to prejudice on the part of the accused in relation to a fair trial.
According to the judge this is one of those rare occasions where the high court ought to use its inherent powers to curb an irregularity even where no judgment was pronounced.
In the result, the judge ordered the proceedings in the magistrate’s court be set aside, the trial to start afresh before a different magistrate and that the clerk of the court again subpoena the accused.
It was further ordered that the presiding officer in the new trial explain to the accused the reason why the trial is to start afresh before he is asked to plead.