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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
SPECIAL REVIEW JUDGMENT
PRACTICE DIRECTION 61
Case Title: The State versus Mwira Amos Likuwa Accused | Case No: CR 32/2025 | |
High Court MD Review No: 410/2025 | Division of Court: High Court, Main Division | |
Coram: D Usiku J et Christiaan J | Delivered: 15 May 2025 | |
Neutral citation: S v Likuwa (CR 32/2025) [2025] NAHCMD 249 (15 May 2025) | ||
ORDER:
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REASONS FOR ORDER: | ||
CHRISTIAAN J (D USIKU J concurring): [1] This matter came before me on special review following a request from the Divisional Magistrate for the district of Rundu, on request of the magistrate who presided over the case. The magistrate has raised an issue regarding the duplication of convictions in respect of the charges brought against the accused. [2] The accused was charged with two counts: Count 1: Housebreaking with intent to commit an offence, specifically attempted murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003. Count 2: Attempted murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003. [3] The allegations were that on or about 8 August 2024, the accused unlawfully and intentionally broke into the residence of the complainant, Matema Ngonde, his former intimate partner with whom he shares three children. Upon entering, he assaulted her by striking her on the arm with a tompher and hitting her on the head multiple times with an iron, intending to kill her. [4] On 13 March 2025, the accused pleaded guilty to both counts and was convicted pursuant to questioning under s 112(1)(b) of the Criminal Procedure Act 51 of 1977, as amended (the CPA). Sentencing had not yet been imposed at the time of the special review referral. [5] Upon reflection, the presiding magistrate acknowledged that a duplication of convictions occurred. The offences charged were based on a single intent and formed part of a continuous course of conduct. The housebreaking was not an independent criminal act but rather the means by, which the accused executed his primary intention, namely, to attempt to murder the complainant. [6] In light of the above, the magistrate hereby requests that this court set aside the conviction on count 2, and that the matter proceed for appropriate sentencing based on the single intent underlying the accused's actions. The accused's actions formed part of a continuous course of conduct directed at achieving one outcome, namely, the murder of the complainant. The act of housebreaking was inextricably linked to the attempted murder, and as such, convicting the accused with both counts is inappropriate. [7] I agree with Muller J (as he then was) in the matter of S v Makwele1 ‘Headnote: It is not always easy to conclude that there may be a duplication of convictions. The underlying reason for guarding against such a duplication of convictions is to prevent a person from being convicted and sentenced twice for the same culpable fact. It has been acknowledged by the South African and our Courts that there does not exist an infallible formula to determine accurately whether or not a duplication of convictions has occurred, but the Courts have developed certain guidelines during the course of time which have been applied with success. Two of these guidelines are the test of single intention and the evidence test. The first test would of course only apply to offences with intention as an element. The question to be asked is whether a single intent is required in respect of both offences. On the other hand when applying the evidence test the following question is usually asked, namely: does the evidence which is necessary to establish one of the charges at the same time confirm the other offence? If the answer is positive it should be only one offence and then the danger of a duplication of convictions does exist. These tests may be applied conjunctively or separately, depending on the circumstances of the particular case. It has also been recognised that in matters where neither of the said two tests produces satisfactory results the Court's decision usually rests on basic common sense.’ (my own underlining) [8] From the above it is clear that the single intent test and the same evidence test are often applied in determining whether a duplication of convictions has occurred. In S v Scholtz,2 the court held that where two or more offences are committed in the execution of a single intent and constitute an indivisible transaction, multiple convictions may amount to an improper duplication. [7] Although the magistrate requested that the conviction on count 2 be set aside, I am of the opinion that, in circumstances where a preparatory offence forms part of a continuous and inseparable course of conduct directed at achieving a singular criminal objective, and where such conduct merges with the execution of the substantive offence, it is the preparatory offence—that is, the lesser conviction—that ought to be set aside in order to prevent a duplication of convictions. [8] Applying these principles, the conviction on count 1 (housebreaking with intent to commit attempted murder) must be set aside, as the unlawful entry was merely a facilitating step toward executing the more serious offence of attempted murder, which stands as the appropriate conviction. [9] In the result, the following order is made:
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P CHRISTIAAN JUDGE | D USIKU JUDGE | |
1 S v Makwele 1994 NR 53 (HC) at 53 E-G.
2 S v Scholtz 1996 NR 207 (HC).