The High Court had to decide on whether the magistrate failed to elicit from the accused whether or not he had in fact been served with an order under s 20(1) of the Act during their questioning of him.
It was apparent from the questioning from the magistrates to the accused that the magistrate failed in casu to elicit from the accused whether or not he had in fact been served with an order under s 20(1) of the Act.
The High Court explained that the law enforcement authorities and the magistrates should be given guidelines on how to approach the offence created under s 21 of the Act, especially where accused persons are unrepresented and offer a plea of guilty when charged with such an offence. The High Court proceeded to provide sample questions.
Refugee law, designated refugee area, refugees leaving or attempting to leave designated area
The accused was held guilty of contravening s 21(a) and (b) read with ss 20(1)(a), (b), (c); s 20(2) and s 20(3) of the Namibian Refugee (Recognition and Control) Act of 1999. The accused was authorised to reside in the reception area or refugee settlement, Osire Refugee Camp, and in November 2003 wrongfully and unlawfully left or attempted to leave after being served with an order under s 20(1). When the charge was put to him, the accused indicated that he would plead guilty. The record shows that the High Court was satisfied that the accused understands and admits all the elements of the charge and a guilty verdict was entered and, after mitigation, the accused was sentenced to three months' imprisonment suspended on conditions.
The conviction and sentence were set aside.
The magistrate failed to elicit from the accused whether or not he had in fact been served with an order under s 20(1) of the Act when they were questioning him.