S v Amwalwa (CR 6/2025) [2025] NAHCMD 17 (28 January 2025)

Case Title:

The State

Verus

Magano Amwalwa Accused

Case No:

CR 6/2025

High Court MD Review No:

2110/2023

Division of Court:

High Court, Main Division

Heard before:

Christiaan J et Shivute

Delivered on:

28 January 2025

Neutral citation: S v Amwalwa (CR 6/2025) [2025] NAHCMD 17 (28 January 2025)

The order:

The conviction and sentence are set aside.

REASONS FOR ORDER:

CHRISTIAAN J (SHIVUTE J concurring):

[1] This matter came before me on review in term of s 302(1) and s 303 of the Criminal Procedure Act 51 of 1977 (CPA).

[2] The accused was charged with malicious damage to property, read with the provisions of the Combating of Domestic Violence Act 4 of 2003 (Combating of Domestic Violence Act). The charge alleged that the accused had maliciously damaged a kitchen window, valued at N$500.

[3] The accused pleaded guilty to the charge and was questioned in terms of s. 112(1)(a) of the CPA. The case was then finalized under section 112(1)(a) of the CPA, with the accused being sentenced to a fine of N$1500 or, in default, three months' imprisonment.

[4] Upon review, I posed the following question to the learned magistrate:

‘The accused pleaded guilty and was convicted in terms of section 112(1)(a) of the CPA. Considering the principle laid in the matters of S v Onesmus, S v Amukoto, S v Shipange, learned magistrate is invited to explain whether the discretion apply section 112(1)(a) of the CPA was exercised judiciously in the conviction how the magistrate satisfied herself that all essential elements of the offence of malicious damage to property was admitted?.’

[5] The magistrate acknowledged that she had relied solely on the monetary value of the property (N$500) in deciding to proceed under section 112(1)(a) of the CPA, without adequately considering the nature and seriousness of the offence. Therefore, no questioning was made to determine whether the accused understood and admitted all the essential elements of malicious damage to property, particularly the intention to unlawfully and maliciously damage the property in question. This omission is a material irregularity and undermines the fairness of the proceedings.

[6] The magistrate further conceded that the provisions of section 112(1)(a) of the CPA allows for disposal of minor offences where the accused pleads guilty and this provision is only applicable when the offence is indeed minor in nature and falls within the limits of penalties prescribed by law.

[7] In this case, the offence of malicious damage to property read with the provision Combating of Domestic Violence Act cannot be considered minor and therefore require more thorough consideration. It is important to highlight that the magistrate was supposed to exercise caution before proceeding with section 112(1)(a) of CPA, simply applying section 112(1)(a) without proper consideration led to misapplications of the law.

[8] This caution is supported by previous judgments such as S v Onesmus, S v Amukoto, and S v Shipange¹, where it was emphasized that if a magistrate lacks sufficient information to determine whether to apply section 112(1)(a) or 112(1)(b) of the CPA, the prudent course of action would be to request a brief summary of the State's case. This approach ensures that the presiding officer can make a more informed decision regarding the proper application of the section, and I consider it to be the appropriate procedure in this case.

[9] Given the serious nature of the charges, specifically malicious damage to property under the Combating of Domestic Violence Act, it is clear that these cannot be considered minor offences. Additionally, the presiding magistrate did not determine whether the accused had the intention to maliciously damage the property, which is a crucial element of the offence. The lack of inquiry under section 112(1)(b) of the CPA makes the conviction and sentence problematic.

[10] The magistrate wrongly applied section 112(1)(a) of the CPA at the prosecutor’s request and did not exercise her discretion judiciously.

[11] In the result, the following order is made:

The conviction and sentence are set aside.

P CHRISTIAAN

JUDGE

N N SHIVUTE

JUDGE