Two judges of the Windhoek High Court have seriously reprimanded a former magistrate of the Karibib Magistrate’s Court for using the wrong procedure in sentencing four men who admitted being in possession of stolen donkey meat.

The four were convicted of stock theft under section 112(1)(a) of the Criminal Procedure Act, which makes provision for “trivial offences”, and sentenced to fines of N$1 500 each or six months in jail. The section does not make provision for custodial sentences. 

Instead, they should have been questioned and convicted under section 112(1)(b), which deals with more serious offences. Judge Herman January, who wrote the judgment in concurrence with Judge Naomi Shivute, said presiding judicial officers should not lose sight of the objectives of section 112(1)(a), which is to dispose of trivial offences, and only if the offence does not merit punishment of imprisonment or any form of detention. This provision confers discretionary power on the presiding judicial officer that must be exercised judiciously, he stressed.

“It is reiterated that although a public prosecutor is dominus litus (the dominating litigant) in the prosecution of a case, once the case is before court and the accused has pleaded, invoking section 112(1)(a) after a guilty plea falls within the discretion of the court. The prosecutor may be invited to address the court as regards to the charge(s), but the court must exercise its discretion judiciously on the way forward. The court is guided by the nature and seriousness of the offence to form an opinion if the offence does not merit a fine in excess of N$6 000, or punishment of imprisonment or any form of detention without the option of a fine,” he stated.

He added that questioning in terms of section 112(1)(b) has a dual purpose, namely to establish the factual basis of the guilty plea, and to establish the basis of such plea. 

“The court must conclude whether the legal requirements for the commissioning of the offence have been met from the accused’s admissions. In addition, the magistrate needs to satisfy him or herself that the accused does not have a valid defence. In this instance, the magistrate, in the absence of questioning the accused persons, could not have been satisfied that they do not have a valid explanation for the possession of the suspected donkey meat”. 

According to January, the magistrate misdirected herself in applying section 112(1)(a) because the offence of possession of suspected stolen stock cannot be regarded as a minor offence, and as such, the convictions and sentence were set aside. -rrouth@nepc.com.na     

Photo: Judges

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