S v Ndemuponele (CR 26/2025) [2025] NAHCNLD 45 (14 April 2025)

Case Title:

The State v Estevao Manuel Ndemuponele

CR: 26/2025

High Court Ref No:

227/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

14 April 2025

Neutral citation: S v Ndemuponele (CR 26/2025) [2025] NAHCNLD 45 (14 April 2025)

It is hereby ordered that:

1. The conviction and sentence are set aside.

2. In terms of s 313 of the Criminal Procedure Act 51 of 1977, as amended, the matter is remitted to the Oshakati Magistrate’s Court to start de novo.

3. Should the accused be convicted on this charge, the period already served by the accused is to be considered by the sentencing court.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter from the Magistrate’s court of Oshakati, 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 steal and theft. The accused pleaded guilty and, after the Magistrate’s questioning in terms of s 112(1)(b) of the CPA, was convicted and sentenced.

[3] The following query was sent to the Magistrate:

‘1. The accused elected to apply for Legal Aid, however, the magistrate proceeded without the accused waiving this right on record. Kindly explain.

2. Which question asked by the magistrate, covered the intention of the accused to break into the house to steal?’

[4] The Magistrate, in reply, conceded that the record does not reflect that the accused at any stage waived his right to be represented by Legal Aid instructed counsel. On the second query the Magistrate conceded that no question was asked to determine the intention of the accused when breaking into the property and that the intention to steal was inferred from subsequent answers provided by the accused.

[5] In respect of the failure to record the waiving of Legal Aid, there is no indication on record that the accused was an educated person or that he had prior altercations with the law as he was a first offender. It can therefore not be argued that the accused was aware of his legal rights. The failure of the Magistrate, to enquire about the position of the application for Legal Aid from the accused and whether he wished to waive such fundamental right, tainted the conviction to such an extent that it cannot stand.

[6] Turning to the second query, the intention at the time of breaking into the house was not covered during the Magistrate’s questioning. The accused was questioned on how he broke into the property but was never asked why he decided to break into the property in the first place. Thus, lacking an essential element, the crime of housebreaking with the intent to steal was not admitted to by the accused.¹

[7] In the result, the following orders are made:

1. The conviction and sentence are set aside.

2. In terms of s 313 of the Criminal Procedure Act 51 of 1977, as amended, the matter is remitted to the Oshakati Magistrate’s Court to start de novo.

3. Should the accused be convicted on this charge, the period already served by the accused is to be considered by the sentencing court.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None