S v Mutero

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: DF Small AJ
• Judgment Date: 27 October 2021
• Court: Northern Local Division, Oshakati
• Hearing Date: 18 October 2021
• Docket Number: CC 4/2020

Small AJ:

Introduction:

[1]

The accused is arraigned before this Court on two charges of Murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003.

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[2]

The State alleges that the accused, on 25 September 2015 at or near Ndiyona in the district of Rundu, intentionally shot and killed his wife Rosalia Shirenega Shitshoni and his son Alexius Vipanda Mutero.

[3]

The State is represented by Ms Khama while Mr Shipila of the Directorate of Legal Aid represents the accused.

[4]

When the State put the two charges to the accused, he pleaded that he had already been convicted of the two charges. Mr Shipila indicated that the pleas were in accordance with his instructions and explained that the accused raised the pleas mentioned above because the Gcirilku Community Count convicted and sentenced him on 2 November 2015 for these offences.

[5]

Mr Shipila tendered a document to Court, which prima facie purports to be a certified copy of a letter by the Clerk of Court of the Gciriku Community Court, Kavango East Region dated 22 July 2020. Ms Khama, although not prepared to admit the unauthenticated letter, did not object to it being placed before Court to ensure that the Court fully comprehends the plea as raised.

[6]

The contents of the letter reads as follows:

'Hereby the community court of Gciriku would like to inform you that case number gcc67/2015 for Mutero Mbangu Wencislaus for Damage in relatives was held in the Gcirilku Community Court on 02 November 2015.The court order was to compensate 41 cattle which is 39 cattle to bereaved family, one cattle to court and one cattle to Hompa. All this cattle was fully paid that's all I leave to witness.

Any information about this case contacts the office on the number that I provide on top.'

[7]

Although Ms Khama suggested that the accused and defence did not give the notice required in Section 106(3) [1] of the Criminal Procedure Act 51 of 1977,

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as amended, she, like Mr Shipila, was ready and prepared to address the Court on the plea tendered.

[8]

Section 106 of the Criminal Procedure Act, 1977, allows an accused pleading to charges in any criminal court in Namibia to assert that he has already been convicted of the offences he is charged with before such court. [2] This is also known as the plea of autrefois convict.

Submissions by Counsel:

[9]

No evidence was lead. Both State and Defence counsel only addressed the Court.

[10]

In developing his argument, Mr Shipila submitted that Article 66 [3] of the Namibian Constitution recognizes both the customary and common law in force on the date of Independence. He further referred the Court to the Community Courts Act [4] . He submitted that as the accused was already dealt with by the Gciril?u Community Court and sentenced as set out in the letter submitted to Court. He submitted that the State is prosecuting the accused before this Court for offences he was previously convicted of and that his plea of autrefois convict should be upheld.

[11]

Ms Khama opposed the submissions by defence counsel and essentially submitted that the award by the Gciril?u Community Court was at most an award

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in terms of the customary law. She further submitted that this was not a conviction by a competent court and only amounted to compensation like what is done under civil law. She also submitted that the accused carried the burden of proving his previous convictions of the same crimes and failed to do so.

Evaluation of the legal principles and submissions by counsel.

[12]

It is trite that a Court should deal with a plea of autrefois acquit before evidence on the merits is led. [5] However, even if the Court rejects the plea, it may at a later stage take the matter into reconsideration if it appears from the evidence led at the trial that its earlier rejection of the plea was not justified. [6]

[13]

I agree with the Court in R v Matengeni [7] that the onus is on the accused to prove such plea. It falls in the accused's knowledge, and the State cannot be required to disprove it before the accused presents evidence raising the issue properly. For that reason, I'm afraid I must disagree with the decision of this Court in S v Shaduva [8] where the Court stated: 'It is for the State to prove and not the accused to disproof autrefois convict.' It is my considered view that part of the judgement constituted obiter dicta as the accused on the facts of that matter proved his previous conviction by handing in a receipt he received after paying an...