Two judges of the Windhoek High Court had some choice words for a magistrate they say completely bungled a trial in which four men were accused of dealing in cannabis.
Judge Claudia Claasen and acting Judge Kobus Miller described the judgement delivered by relief magistrate Davy Kambinda at Noordoewer Periodical Court on 16 August 2019 as a “miscarriage of justice”.
Immanuel Kativa, a Namibian citizen, was apprehended together with three South African citizens with 1.5kg of cannabis valued at N$15 000.
He was then sentenced to four years imprisonment. He lodged an appeal in 2021 after having served close to two years in prison and the appeal was conducted by lawyer Jermaine Muchali on instructions of Legal Aid. According to Muchali, the trial was marred with irregularities such as that the magistrate failed to explain the court process to the undefended accused, descended into the arena and started to cross-examine Kativa and his co-accused after the testimony of the first State witness and failed to properly explain the rights of the accused at the end of the State’s case, in particular the right to remain silent.
“An accused’s rights to a fair trial are entrenched in Article 12 of the Namibian Constitution and in general, a judicial officer has a duty to inform an undefended accused of his or her procedural rights in order to ensure a fair criminal trial,” Judge Claasen who wrote the judgment stated.
In the current matter, she said, it turns out that these basic precepts were not followed to a large extent and the proceedings were mismanaged from the beginning until the end. She further said that while not every irregularity is fatal, in this case, the numerous irregularities during the course of the proceedings proved to be a total miscarriage of justice.
“Throughout the proceedings, there were too many deviations from established formalities, rules and principles of criminal procedure,” she said.
“The cumulative effect of these gross irregularities is that justice was not done and as such, the conviction cannot stand.”
The judges also found that the appellant was not the only one who suffered the prejudice of the gross irregularities. His co-accused were also convicted and given a fine of N$7 500 or 24 months imprisonment, plus another 12 months fully suspended for three years.
In addition, the judges said, the fourth accused was also convicted of entering Namibia through an undesignated point and fined N$5 000 or 12 months. In the circumstances, the judges said, they should use their inherent powers to review proceedings in the lower courts and set aside the whole proceedings as it constituted a complete injustice.
According to the judges, they noticed that the magistrate had been on the bench for only five months and while it is not an excuse, it underscores the need for induction training for new magistrates.
“If such training is not offered to such presiding officers, they will not be able to properly fulfil their roles as guardians of the constitution, protectors of the fundamental human rights of the citizenry and guarantors of a fair trial to those accused before the court,” the judges said.
The prosecution was represented by Timo Itula.