WINDHOEK – A charge under an ordinance that was repealed 20 years ago came as an early Christmas gift for a man convicted of driving under the influence of alcohol and sentenced to a fine of N$4 500 or 12 months in prison.
High Court Judge President Petrus Damaseb and Windhoek High Court Acting Judge Orben Sibeya ordered the conviction and sentence of Isaac Mafudza be set aside as well as the endorsement of his driving licence for six months be set aside.
Mafudza was charged in the Rundu Magistrate’s Court for driving under the influence of intoxicating liquor under Road Traffic Ordinance 30 of 1967, which was repealed by the Road Traffic and Transport Act 22 of 1999 that came into effect on April 06, 2001.
According to Judge Damaseb, when he directed an inquiry to the presiding magistrate as to why the accused was charged under a repealed ordinance and whether the conviction is competent in law, the magistrate replied that the issue was taken up with the control public prosecutor who blamed NAMCIS (Namibian Courts Information System).
“Eighteen years after the repeal, it is discouraging to realise that the Road Traffic Ordinance refuses to be scrapped from court proceedings with the assistance of public prosecutors and magistrates,” Judges Damaseb and Sibeya noted.
They said that it is apparent that the ordinance in terms of which the accused was charged lost its force and effect when it was repealed and could therefore no longer be utilised as the premise for the statutory offence provided in it.
“It thus follows that at the time the accused was charged and convicted, the ordinance no longer provided for an offence, due to its repeal and consequentially invalid nature,” the judges stated.
They said that the magistrate appears to have simply followed the charge as presented by the prosecutor.
However, the judges added, it should be understood that prosecutors are essential to the attainment of justice in the criminal system and they should draft charges with professionalism, precision, and where the offence is statutory the charge should reflect the wording preferred in the statutory provision with the correct and valid legislation establishing the offence.
“Magistrates should also carefully examine charges to ensure that such charges are valid and objectionable in terms of the Criminal Procedure Act,” the judges said and continued: “Failure to examine the correctness of the charge may result in incurably defective proceedings.”
In the circumstance, the judges said, the conviction and sentence were not in accordance with justice and cannot be allowed to stand.
They further ordered that their ruling be brought to the attention of the prosecutor-general and the chief magistrate.