REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Beukes Davinio | Case No: CR 17/2023 | |
High Court MD Review No: 1620/2022 | Division of Court: Main Division | |
Heard before: Judge January et Judge Claasen | Delivered on: 04 April 2023 | |
Neutral citation: S v Davinio (CR 17/2023) [2023] NAHCMD 113 (04 April 2023) | ||
The order:
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Reasons for order: | ||
January J (concurring Claasen J): [1] The case was submitted from the Katutura Magistrate’s Court for automatic review pursuant to s 302(1) of the Criminal Procedure Act No. 51 of 1977 (the CPA). [2] The accused was charged with possession of a dependence producing substance in contravention of s 2(b) read with ss 1, 2(i) and 2(iv), 7, 8, 10, 14 and Part I of the schedule of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act No. 41 of 1971 (the Act) to wit: 10 grams of cannabis valued at N$500. [3] The accused pleaded guilty, was questioned in terms of s 112(1)(b) of the CPA, convicted and sentenced to N$4000 or 36 months’ imprisonment of which N$2000 or 18 months are suspended for three years on condition that the accused is not convicted of possession of dependence-producing substances committed during the period of suspension. [4] We find it necessary to quote the proceedings to emphasise the issue in the proceedings. The record of proceedings reflects as follows: ‘Court: Were you forced or influenced by anybody to plead guilty? Accused: No one forced me to plead guilty Court: Why do you plead guilty? What did you do wrong? Accused: I had the drugs in my possession cannabis, it was found in my pocket, my rights (sic) trouser in front Court: On which day did this incident take place? Accused: Yesterday the 2 Sept 2020. Court: where did this incident take place? Accused: At Windhoek Correctional Facility in the district of Windhoek. Court: The State alleges that you wrongfully, unlawfully have in your possession or use a prohibited dependence-producing drug or plant from which such a drug can be manufactured, to wit 10g Dagga weighing at N$500. Do you admit or deny this? Accused: I admit this Court: Why were you in possession of these dependence producing substances? Accused: I just had them on me to smoke Court: Are you aware that should you be convicted, your actions are punishable by a competent court of law? Accused: Yes Court: Why were you in possession of these dependence producing substances? Accused: I just had them on me to smoke PP: State accepts the plea Court: is satisfied that the accused has admitted all the allegations in the charge and is therefore guilty as charged ……………’ [5] It is evident from the proceedings that no question was directed by the Magistrate that the substance was indeed cannabis, in other words how the accused knew that it was indeed cannabis. In the circumstances, the Magistrate could not have been satisfied that the substance is indeed cannabis, a dependence producing substance. [6] Consequently, I directed a query to the Magistrate to explain how he was satisfied. that the substance was indeed a dependence producing substance without a certificate to that effect or having an answer from accused to the effect. The Magistrate replied that he was satisfied because the accused admitted these facts. It is incumbent on the Magistrate when questioning in terms of s 112(1)(b) of the CPA, that the court must be satisfied about the guilt of the accused before convicting him or her. In State v Benjamin Maniping1 and the State v Khanyse Thwala2 the court held that: ‘The court is enjoined by section 112(1)(b) to satisfy itself of the guilty of the accused before convicting and I fail to see how any court can properly be so satisfied on the basis of a bare admission of a fact which the court know must be outside the personal knowledge of the accused. It must, in my view, have material before it from which it can properly determine the dependability of the admission.’ The court further stated: ‘And it follows from this that in such cases the state should be in a position to produce an analyst’s certificate or adduce other acceptable evidence of the nature of the substance. For example, where possession of dagga is alleged the state should be in a position to call a police officer to testify that he is familiar with dagga and that the substance found in possession of that accused is indeed dagga.’ (my underlining) “To summarise, where an accused who pleads guilty makes an admission when questioned pursuant to section 112(1)(b) of a fact which is palpably outside his personal knowledge –
[7] In the result, the following order is made:
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H C JANUARY JUDGE | C M CLAASEN JUDGE |
1 State v Benjamin Maniping (review case 282/94).
2 State v Khanyse Thwala (Review case 333/94).
3 Coetzee v State (CC 2019/00016) [2019] NAHCMD 275 (2 August 2019).
Cited documents 3
Act 2
1. | Criminal Procedure Act, 1977 | 1966 citations |
2. | Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, 1971 | 192 citations |
Judgment 1
1. | S v Coetzee (8) (HC-MD-CRIMINALI-APP-CALL 16 of 2019) [2019] NAHCMD 275 (2 August 2019) | 5 citations |