S v Haipinge and Another (CR 3/2025) [2025] NAHCNLD 3 (20 January 2025)

Case Title:

The State v Toivo Haipinge and Elias Kapiye

Case No:

CR 3/2025

High Court NLD Review No.:

830/2024

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

20 January 2025

Neutral citation: S v Haipinge and another (CR 3/2025) [2025] NAHCNLD 3 (20 January 2025)

It is hereby ordered that:

1. The conviction and sentence in respect of both accused persons are set aside.

2. In terms of s 312 of the Criminal Procedure Act 51 of 1977, as amended, the accused persons should be brought before the court and the matter to start de novo.

3. In the event of a conviction, the magistrate is to consider the period of imprisonment that the accused have already served.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter, from the Magistrate’s court of Ondangwa, was submitted for review in terms of ss 302-304 of the Criminal Procedure Act 51 of 1977 (the CPA), as amended.

[2] Both accused persons pleaded guilty to a charge of housebreaking with the intent to steal and theft. After questioning by the magistrate in terms of s 112(1)(b) of the CPA, the accused were convicted and sentenced.

[3] The record reflected a multitude of omissions and errors and the following queries were forwarded to the magistrate:

‘1. The answers in respect of both accused to the magistrate’s question ‘why are you pleading guilty today?’ are recorded as answers to a different question.

2. The accused were not asked in respect of intention to break into the property.

3. The accused were not asked any question to cover the element of contrectatio.

4. Both accused referred to ‘touching’ of the items but not theft.

5. Two different values of the stolen items were put to the respective accused persons.

6. Accused 2 disputed the value put to him.

7. Accused 2 disputed breaking into the property.

8. Considering the above, how was the magistrate satisfied of the guilt of the accused?’

[4] The magistrate conceded that he failed to properly question the accused persons and requested that the convictions and sentences be set aside and be remitted for proper questioning. He provided no reason for the multitude of errors committed.

[5] Considering the above, the magistrate failed to apply his mind and could not have been satisfied that the accused admitted to all of the elements of the offense. In the result, the following orders are made:

1. The conviction and sentence in respect of both accused persons are set aside.

2. In terms of s 312 of the Criminal Procedure Act 51 of 1977, as amended, the accused persons should be brought before the court and the matter to start de novo.

3. In the event of a conviction, the magistrate is to consider the period of imprisonment that the accused have already served.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None