S v Mafudza (CR 63/2019) [2019] NAHCMD 323 (05 September 2019)

Judge President Damaseb and Acting Judge Sibeya

The two judges were considering a magistrate’s conviction and sentence and were astonished to find that the accused had been charged and fined for a non-existent offence. The accused was charged with contravening a section of the law that had been repealed more than 20 years earlier. When they asked the magistrate for an explanation, they were told that the public prosecutor blamed the Namibian Courts Information System (NAMCIS).

Launched in 2008, the NAMCIS project automates some of the courts’ administrative functions. The magistrate who presided in the case said the conviction and sentence were not competent in law and could not be allowed to stand.

The judges commented:

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. … The magistrate appears to have simply followed the charge as presented by the prosecutor. It should be understood that prosecutors are essential to the attainment of justice in the criminal justice system. They should thus draft charges with professionalism, precision and, where the offence is statutory, the charge should reflect the wording … in the statutory provision with the correct and valid legislation establishing the offence. Magistrates should also carefully examine charges to ensure (they) are valid.’

Read judgment

*Newsletter, Judicial Institute for Africa (Jifa), 6 September 2019