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.
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, without 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 convicted 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.