Two judges of the Windhoek High Court have condemned a sentence that was handed to a man, convicted of contravening the Road Traffic and Transportation Act.
Samuel Kamwi Musweu was charged with the offence after he made a right turn, where it was prohibited by a road sign.
After refusing to pay the fine and opting to go to court, he was convicted and sentenced to a fine of N$2 000 or four months in prison.
Aggrieved by the conviction and sentence, he approached lawyer Jermaine Muchali to appeal the conviction and sentence in the High Court.
While judges Christie Liebenberg and Naomi Shivute upheld the appeal against conviction, it was the sentence with which they had a problem.
According to them, an accused who was given an admission of guilt fine and opts not to pay it because he chose to go to trial, once he appeared before court, such court is not bound by the amount of the admission of guilt given.
In any event, the judges said, the offence for which Musweu was convicted makes provision for a fine not exceeding N$2 000 or six months imprisonment on failure to pay the fine – but in this instance, the magistrate imposed a sentence of four months in case of default, which do not correspond with the provision.
The judge also upheld the appeal against conviction – because, according to them, the magistrate failed to adequately inform the accused of his rights at the close of the State’s case, particularly his right to call witnesses and to remain silent and not testify.
“Moving on to the analysis of the proceedings in the court a quo (the magistrate court), after the State closed its case, the court asked the appellant whether he wanted to testify under oath or would like to remain silent. At no stage did the court explain to the appellant what those rights entailed and what the implications for remaining silent were. Furthermore, the court did not explain to the unrepresented appellant that he had the right to call witnesses,” the judges stated.
They further said that with regard to the appeal against sentence that since the appeal against conviction was upheld, it effectively disposed of the appeal against sentence.
However, they said, it must be mentioned that a court is not bound by an admission of guilt amount.