MORE than nine years after his arrest for allegedly driving a Police vehicle while under the influence of liquor, and four and a half years after he was found guilty and sent to prison for a year, a Namibian Police Sergeant’s conviction was last week quashed by the High Court.
Luckily for him, Namibian Police Sergeant Seth Gawanab had been free on bail since July 1999 – some three weeks after he had been sent to prison for a year – while the often-delayed hearing of his High Court appeal remained pending. Last week the long wait proved worthwhile for Gawanab.Judge Mavis Gibson ruled that irregularities “of an exceptional nature” led her to conclude that the proceedings in Gawanab’s trial “were fundamentally flawed and resulted in a total negation of justice”.As a result his conviction had to be declared invalid.Judge Sylvester Mainga supported Judge Gibson’s conclusion.In the judgement, the court did not stray from its usual practice of not naming the Magistrate involved in a case dealt with by the High Court on appeal.While Magistrates are usually only mentioned by name in High Court judgements if they are found to have committed exceptionally gross errors, the judicial officer who presided at Gawanab’s trial attracted a fair share of critical comments from Judge Gibson.The judge repeated what the accepted extent of the role of a presiding officer was, and set out example upon example to illustrate her conclusion that Gawanab had not received a fair trial because of the over-active participation of the Magistrate.Gawanab was arrested on January 1 1995 and charged with driving a Police vehicle while under the influence of liquor, with the unlawful use of property [the Police vehicle], with having pointed a pistol at someone on the same day, and with having assaulted the same person with his fists.His trial was eventually finalised in the Windhoek Magistrate’s Court on June 25 1999, when he was found guilty on all charges.On the drunken driving charge he was given a 12-month prison term; on the other three counts he received jail terms totalling a year and 10 months or the option of paying fines of N$2 000.With last week’s High Court judgement, all of these fell by the wayside.What prompted the two Judges to come to their decision was the Magistrate’s active role in questioning witnesses and also Gawanab.Judge Gibson commented: “It is important that a judicial officer who perceives it his duty in the interests of justice to question a witness reminds himself of the fundamental expectations from the accused that he, the presiding officer, will not forsake his first task of independence and impartiality that his office behoves of him.This must be so even though the attitude of the witness may tempt the judicial officer to react with a lack of restraint”.She noted that the Magistrate in Gawanab’s case had, at times, taken turns with the Public Prosecutor to question witnesses “creating the impression that the Court has become assistant to the prosecutor” and showing a lack of detachment by the Magistrate.”It is essential for a judicial officer to remember that the main purpose of questioning by the Court is to clear up points which are obscure,” the Judge stated.In Gawanab’s case, though, the Magistrate’s questioning went much further.In Judge Gibson’s words, in the later stages of the trial “the excessive and partisan judicial questioning gave way to open hostility and sarcasm from the Bench”.As a result it could not be concluded that Gawanab had received a trial that was fair and in the hands of an impartial court as ordained by the Constitution.Gawanab’s appeal was brought by Johan van Vuuren.Deputy Prosecutor General Jackson Kuutondokwa represented the State.Last week the long wait proved worthwhile for Gawanab. Judge Mavis Gibson ruled that irregularities “of an exceptional nature” led her to conclude that the proceedings in Gawanab’s trial “were fundamentally flawed and resulted in a total negation of justice”. As a result his conviction had to be declared invalid. Judge Sylvester Mainga supported Judge Gibson’s conclusion. In the judgement, the court did not stray from its usual practice of not naming the Magistrate involved in a case dealt with by the High Court on appeal. While Magistrates are usually only mentioned by name in High Court judgements if they are found to have committed exceptionally gross errors, the judicial officer who presided at Gawanab’s trial attracted a fair share of critical comments from Judge Gibson. The judge repeated what the accepted extent of the role of a presiding officer was, and set out example upon example to illustrate her conclusion that Gawanab had not received a fair trial because of the over-active participation of the Magistrate. Gawanab was arrested on January 1 1995 and charged with driving a Police vehicle while under the influence of liquor, with the unlawful use of property [the Police vehicle], with having pointed a pistol at someone on the same day, and with having assaulted the same person with his fists. His trial was eventually finalised in the Windhoek Magistrate’s Court on June 25 1999, when he was found guilty on all charges. On the drunken driving charge he was given a 12-month prison term; on the other three counts he received jail terms totalling a year and 10 months or the option of paying fines of N$2 000. With last week’s High Court judgement, all of these fell by the wayside. What prompted the two Judges to come to their decision was the Magistrate’s active role in questioning witnesses and also Gawanab. Judge Gibson commented: “It is important that a judicial officer who perceives it his duty in the interests of justice to question a witness reminds himself of the fundamental expectations from the accused that he, the presiding officer, will not forsake his first task of independence and impartiality that his office behoves of him. This must be so even though the attitude of the witness may tempt the judicial officer to react with a lack of restraint”. She noted that the Magistrate in Gawanab’s case had, at times, taken turns with the Public Prosecutor to question witnesses “creating the impression that the Court has become assistant to the prosecutor” and showing a lack of detachment by the Magistrate. “It is essential for a judicial officer to remember that the main purpose of questioning by the Court is to clear up points which are obscure,” the Judge stated. In Gawanab’s case, though, the Magistrate’s questioning went much further. In Judge Gibson’s words, in the later stages of the trial “the excessive and partisan judicial questioning gave way to open hostility and sarcasm from the Bench”. As a result it could not be concluded that Gawanab had received a trial that was fair and in the hands of an impartial court as ordained by the Constitution. Gawanab’s appeal was brought by Johan van Vuuren. Deputy Prosecutor General Jackson Kuutondokwa represented the State.
