Get your court paperwork in order, Namibian judges warn magistrates

3 April 2019 · Carmel Rickard

What should the high court do when faced with trial records from the magistrate’s court that reflect the names of three different people in a case involving just one accused: one name at the typed start of the trial, a different name and age in the hand-written section of the record and a third name and age in the part of the trial dealing with mitigation? These and other problems have been taxing the high court in Namibia. Now, in a new decision responding to the records of 13 matters before them on automatic review, two judges have listed the most common mistakes they find in magistrate’s court records, and have asked that the magistrate’s commission take note.

Read judgment

Magistrates in Namibia have been rebuked by the high court over their failure to follow proper procedures for automatic review: for example, within a week of delivering sentence, magistrates are supposed to send copies of their matters to the high court for judges to certify the proceedings were in accordance with justice. Many do not, and delay in forwarding their records.

Even more troubling for the high court is this: the length of service of a magistrate is related to the punishment that he or she may impose in a case yet many magistrates fail to state how long they have been on the bench. So how is the high court to know whether a magistrate has overstepped his or her powers?

Judge Herman January, with the agreement of Judge Johanna Solionga, has written a new high court decision pointing out these and other problems, and explaining the right way to do things.

They based their criticisms on 13 current cases they had received for automatic review, as well as earlier decisions. While most of the judgments by the magistrates concerned “appear to be in accordance with justice”, the judges were worried about “the manner in which the records were submitted”. Case records were incomplete. The magistrates did not seem to proofread the records sent to the high court. Certain documents not relevant to a case are included. The magistrate’s date of appointment was not given. Some were well out of the stipulated time limit for sending to the high court.

As the 13 cases before them reflected “common mistakes and errors”, the judges decided to deal with the problems all in one decision.

Because there was a difference in reviewable matters depending on the experience of the magistrate, the period of imprisonment or the amount of the fine imposed, it was essential that a reviewing judge be told the period that magistrates have held their rank. The relevant charge sheet even has a space for magistrates to state their date of appointment. But, says Judge January, “(i)n the 13 cases that I received for review, only one of them reflects a date of appointment. And even in that case, the typed record reflected a different magistrate from the one that heard the matter.

“Magistrates must ensure that the records are correct and their dates of appointment are correctly reflecting on review case records.”

Many mistakes have crept into the records of matters sent for review because the magistrate concerned did not proofread the final typed record. As a result, incomplete or even completely incorrect records were sent on review.

Another mistake that Judge January picked up was that magistrates routinely attached a condition to the sentence imposed on a convicted person along the lines that part of the sentence would be suspended on condition that the accused was “not convicted of a similar offence” within a certain period, but not specifying what “offence” the accused should not commit. This phrase was vague and should not be used, he said. “The condition should be clear, stating the specific offence that an accused should not be committed of.”

The judge also points out a case in which the name of the accused and sentenced person was different from the name on an annexure.

In a further case, he said that the proceedings did not appear to be in accordance with justice, and he thus refused to approve it. He had written to the magistrate who presided pointing out that the “case record is incomplete and in a shambles”. Moreover, the typed case record and the handwritten section of the record reflect two different accused people. One was 36 and the other 18. On mitigation the record reflects the accused as yet a third person, this time aged 42.

Some cases are just as confusing on the subject of the magistrate who heard the matter, with more than one magistrate’s name appearing.

The judges also refused to certify a case in which the date of the trial was set in the future. The pages were not numbered nor in sequence. The handwritten record was stapled between typed parts and the stapling made it almost impossible to follow the record in sequence.

Records of several cases were sent back to the relevant magistrate to be sorted out and resubmitted.

The court quoted judgments from Namibia and elsewhere that stressed magistrates had the “ultimate responsibility” to ensure the records of their cases were in good order.

Then they spotted another alarming problem: the codified magistrate’s court office instructions made a number of basic mistakes, including stating that magistrates had to forward cases for automatic review “within 30 days”, when in fact that law lays down that it has to be done within a week.

In conclusion the court directed magistrates and clerks of the court to ensure that records were complete and complied with the guidelines; that their date of appointment was included in the record; that irrelevant documents were not included and that they met the prescribed time limit for submission.

For safety’s sake, the office of the register was also directed to bring the judgment to the attention of the magistrate’s commission.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.