S v Shaanika (1) (CRIMINAL 89 of 2011) [2011] NAHC 290 (30 September 2011)

IN THE HIGH COURT OF NAMIBIA CASE NO.: CR 89/2011 In the matter between: THE STATE versus SHIYABONGA SHAANIKA [HIGH COURT REVIEW CASE NO.: 1555/2011] CORAM: PARKER, J et SIBOLEKA, J Delivered on: 2011 SEPTEMBER 30 ________________________________________________________________________ REVIEW JUDGMENT SIBOLEKA, J.: [1] This matter has been referred to me for Special Review in terms of section 304 of the Criminal Procedure Act, Act 51/77. The accused was arraigned in the Magistrate’s Court, Luderitz, on assault with intent to do grievous bodily harm. [2] The covering letter from the learned Magistrate regarding what had transpired in Court reads: “RE: SPECIAL REVIEW: STATE VERSUS SHIYABONGA SHAANIKA CASE NO. LUD-CRM 33/2010. The above matter appeared in my Court. After the complainant testified, accused did not cross-examine him. The case was postponed a couple of times then the state closed its case without the accused cross-examining the witness. Accused then testified under oath and during his testimony it then came to light that he had not cross-examined complainant. That is a major irregularity which amounts to an in justice. I therefore kindly request that the proceedings be quashed. I promise to be more careful in future proceedings.” [3] In such a situation, it has been said (see S v Mcolweni 1973(3) SA 106 at 107 per Munnik, J) that a failure to allow cross-examination is a serious irregularity. [4] In the result I make the following order: (1) Since the Court was still seized with the matter and had not yet finalized it up to sentence it is remitted back to the trial Magistrate to recall the complainant to be cross-examined by the accused. ___________________ SIBOLEKA, J I agree. ______________________ PARKER, J