A man that was convicted of stock theft in the Karasburg Magistrate’s Court scored a victory in the Windhoek High Court after his conviction was overturned into an acquittal. Charlie Booysen was convicted and sentenced to seven years imprisonment, of which two years was suspended for three years, by a magistrate at Karasburg. Dissatisfied with the conviction and sentence, Booysen lodged an appeal through his lawyer Mbanga Siyomunji against his conviction and sentence.

He claimed that the magistrate misdirected himself by failing to consider the fact that Booysen was not given an opportunity to apply for legal representation, alternatively that he was not advised adequately about his right to apply for legal representation after his erstwhile legal practitioner withdrew. 

Secondly, he claimed that the magistrate was wrong by forcing Booysen, who was sick and under medication, to proceed with the trial which he was not prepared for, due to the unexpected withdrawal of his former legal representative.

According to court records, the legal representative of Booysen withdrew midway through the trial as he was not comfortable with leading evidence after being informed that Booysen was not medically fit to do so. 

The magistrate further refused a request by Booysen for a postponement to allow his newly appointed legal representative to come on board and instead forced him to continue with the trial unrepresented.

According to Judge Christie Liebenberg, who wrote the judgment in agreement with Judge Naomi Shivute, an accused person has the right to prepare thoroughly for his defence and has the right to legal representation, either of his own choice or legal aid, as guaranteed by Article 12 of the Namibian constitution.

In this instance, the judge said, this right was taken away from the accused by a magistrate whose only interest was to finish the trial. 

“It appears that the magistrate was more concerned with his or her imminent departure from the district and did not want to return to Karasburg for the same case,” the judge said. 

He added that by reasoning that way, the magistrate ignored the notions of justice and basic fairness. 

“There cannot be a fair trial if the appellant is forced to proceed with the trial when he was not adequately prepared,” the judge said and continued: “The least he could have done was to afford the appellant a postponement and to allow his newly appointed counsel to come on record.

He went on to say that although the court is in agreement with the proposition that the right to choose a legal representative is fundamental, albeit not absolute right, the limitations that could be applied to such right should only be applied in exceptional circumstances. 

In this instance, however, the judge said, no such exceptional circumstances existed to justify refusing the appellant his right to legal representation.

As a result, Judge Liebenberg stated, there is no doubt that there has been a miscarriage of justice that negates the core notion of a fair trial. 

The nature of the irregularity vitiates the proceedings and as a result, the appeal succeeds and the conviction and sentence is set aside, the judges ordered.

- rrouth@nepc.com.na