S v Mekondjo (CR 1/2025) [2025] NAHCNLD 1 (16 January 2025)

S v Mekondjo (CR 1/2025) [2025] NAHCNLD 1 (16 January 2025)

REPUBLIC OF NAMIBIA

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IN THE HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

REVIEW JUDGMENT

PRACTICE DIRECTIVE 61

Case Title:

The State v Johannes Jonas Mekondjo


Case No:

CR 1/2025


High Court NLD Review No.:

279/2024

Division of Court:

Northern Local Division

Heard before:

Honourable Lady Justice Salionga J et

Honourable Mr Justice Kesslau J

Delivered on:

16 January 2025

Neutral citation: S v Mekondjo (CR 1/2025) [2025] NAHCNLD 1 (16 January 2025)


It is hereby ordered that:

  1. The conviction is set aside and substituted with a conviction on ‘housebreaking with the intent to steal’.

  2. The sentence is set aside and substituted by the following sentence: ‘The accused is sentenced to 24 (twenty-four) months’ imprisonment of which 12 (twelve) months is suspended for a period of 5 (five) years on the condition that the accused is not convicted of housebreaking with the intent to steal, committed during the period of suspension’.

  3. The sentence is antedated to 25 March 2024.

  4. A copy of this order to be served on the Oluno Correctional Facility.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)


[1] The matter from the Magistrate’s court of Eenhana is before this court for review in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).


[2] The accused was charged with housebreaking with the intent to commit a crime unknown to the state. He pleaded guilty and was questioned in terms of s 112(1)(b) of the CPA. The accused admitted to breaking into the property with the intention to steal. He did not managed to steal anything as he was caught whilst inside. The Magistrate however convicted him of housebreaking with the intent to steal and theft and sentenced him to 24 months ’imprisonment (Emphasis added).


[3] A query was forwarded to the Magistrate firstly, in respect of the conviction and secondly, on the severity of the sentence considering that the accused pleaded guilty and compensated the complainant.

[4] The Magistrate in her late reply explained that she was on maternity leave which resulted in the delayed response. She further conceded that the conviction including theft was an error on her part stating that she dealt with a multitude of housebreaking cases on the specific day. The magistrate submitted that the sentence is in order and that she considered the interest of society, the crime and personal circumstances of the accused.


[5] The accused was well aware of the charge that he was facing as the correct charge was put to him. S 262(2) of the CPA allows for a conviction of housebreaking with the specific intent should it become known to the court during proceedings. The conviction will be amended to delete the theft part as nothing was stolen.


[6] From the error with the conviction and the reply from the Magistrate, it is clear that she did not properly apply her mind when sentencing the accused. He was sentenced as if he committed housebreaking including theft. Her reply is also silent on the fact that the accused pleaded guilty and compensated the complainant. It appears that the sentence is too harsh when considering the above and needs to be adjusted.


[7] In the result the following orders are made.

  1. The conviction is set aside and substituted with a conviction on ‘housebreaking with the intent to steal’.

  2. The sentence is set aside and substituted by the following sentence: ‘The accused is sentenced to 24 (twenty-four) months’ imprisonment of which 12 (twelve) months is suspended for a period of 5 (five) years on the condition that the accused is not convicted of housebreaking with the intent to steal, committed during the period of suspension’.

  3. The sentence is antedated to 25 March 2024.

  4. A copy of this order to be served on the Oluno Correctional Facility.


Judge(s) signature

Comments:

KESSLAU J:


None


SALIONGA J:


None


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