14 September 2017

Namibia: Courts to Give Motorists Leeway Before Suspending Licenses

Windhoek — Two High Court judges this week issued an order that magistrates who preside over road traffic cases must explain the effect of suspending driving licenses and give motorists a chance to defend themselves on why they feel their licences should not be suspended, in line with Section 51 of the Road Traffic and Transportation Act of 1999.

Judge President Petrus Damaseb and Judge Christi Liebenberg said in a review judgment of three magistrate cases, where the accused persons were convicted for contravening the Road Traffic Act and had sentences in varying amount of fines imposed upon them, in default of which imprisonment of varying periods would follow.

The judges also found that the magistrates applied the provisions of Section 51 of the Road Traffic Act that provides for the suspension of licenses or the prevention of obtaining a learner's or driving license for varying periods

Section 51 makes provision for the suspension of licenses on conviction of an offence in the case of an accident, which resulted in the death or injury of a person, of driving recklessly or driving under the influence of alcohol.

"In each matter, a perusal of the record of the proceedings demonstrate that the provisions of the Road Traffic Act were applied without the effect and import thereof being explained to the accused persons with the consequence that the accused persons were not invited to make representations whether or not the court should exercise the discretion to disqualify the accused from obtaining a learner's licence or driving licence," Damaseb, who wrote the judgment, stated.

He said the doctrine of natural justice dictates that persons likely to be affected by a decision of a court or tribunal be afforded an opportunity to make representations before such a decision is made.

In an earlier judgement by Judge Liebenberg he had observed the provisions of the Road Transportation Act must first be explained to an accused, after which they should be afforded the opportunity to lead evidence and/or address the court as to the period for which his licence should be suspended.

Judge President Damaseb said he fully agreed with that judgement and accordingly, when a trial court is compelled to invoke the provisions of the Act upon the conviction of an accused person in terms of the applicable offences in terms of the Road Transportation Act, it must after conviction, but before mitigation of sentence, read and explain the import of the provisions of the Act to the accused person and invite their comment or representation thereon.

In the matters under review - which involved Fhillen Haufiku Willem, James Haufiku and Elifa Ghilifavali Krisjan - this was not done, the judge president said, adding that the implicated orders are thus liable to be set aside. He confirmed the convictions and sentences, but ordered that the suspensions of the licences be set aside and that the matters be remitted to the respective magistrates to be dealt with afresh, as directed.

Judge President Damaseb also directed the Registrar of the High Court to bring this judgment to the attention of the Chief Magistrate.

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