• December 15th, 2019

Missing magistrate causes trial to start afresh


WINDHOEK–A magistrate that went absent without leave (AWOL) caused a nearly completed trial to start afresh before another magistrate, as was ordered by Acting High Court Judge Petrus Unengu.

The magistrate, Kamahene, of the Mariental Magistrate’s Court, apparently absconded from duty which prompted the prosecutor in the matter to approach the High Court to review and set aside the proceedings as the record cannot be located to establish the status of the matter.

Judge Unengu with Judge Nate Ndauendapo concurring ordered that he matter of the State vs Dawid Links and Japie Markus be finalised as soon as possible to ensure their right to a fair and speedy trial is not violated.

According to the ruling, the case record of the matter does not have a record of proceedings in the form of evidence adduced or the questioning in terms of section 112 (1) (b) of the Criminal Procedure Act.
The judges further stated that Article 12 of the Namibian Constitution provides for a fair and speedy trial and states that a trial shall take place within a reasonable time, failing which the accused must be released.
“In the present matter, not only has the record of proceedings in the matter gone missing, but the presiding officer as well,” Judge Unengu stated.

He went on to say that the magistrate’s superiors has no knowledge of his whereabouts and therefore to delay the matter any further in an attempt to either locate the missing magistrate or the record will cause a further unnecessary delay in finalising the case, and thereby violate the right of the accused to a speedy and fair trial as contemplated in Article 12.

He went on to say that the fact that such record is nowhere to found, it has disappeared, is sufficient grounds to review and set aside any proceedings which might have been conducted by magistrate Kamahene in the case and order the trial to start afresh before a different magistrate.

In the result, Judge Unengu said, the matter is remitted back to the Mariental Magistrate’s Court to start afresh before another magistrate.
The court papers did not indicate what the charges are against the two accused.       


Roland Routh
2019-07-18 09:55:03 | 4 months ago

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