S v Petrus (CR 5/2025) [2025] NAHCNLD 5 (20 January 2025)

S v Petrus (CR 5/2025) [2025] NAHCNLD 5 (20 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 Shikongo Petrus


Case No.:

CR: 5/2025


High Court NLD Review No.:

889/2024

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

20 January 2025

Neutral citation: S v Petrus (CR 5/2025) [2025] NAHCNLD 5 (20 January 2025)


It is hereby ordered that:

  1. The conviction and sentence are set aside.

  2. 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 Ondangwa, 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 theft by false pretences. The allegations were inter alia that the accused, with the intent to defraud, misrepresented to the complainant that he is selling to her two cows for an amount of N$7 000, whilst he knew that he will not deliver the cows as per their agreement.


[3] The accused pleaded not guilty and explained that the agreement was for him to deliver the two cows if he finds transport, alternatively, for the complainant to collect the animals herself. He denied that he told the complainant that he does not have the cows. The accused admitted from the onset that he received the N$7 000 from the complainant. After evidence was led, the accused was convicted and sentenced to 24 months’ imprisonment.


[4] The following queries were sent to the magistrate:


‘1. The right to legal representation was explained to the accused in the following terms: “Own defence, legal aid or private lawyer?” Was that explanation sufficient?

2. The magistrate by way of inferential reasoning determined that, based on the actions of the accused, he had the intention to defraud the complainant. The accused indicated that there was a problem with transporting the cows and that they can be collected by the complainant. Which evidence was presented that indicated that his version was false?

3. Why was the interest of the complainant not addressed during sentencing e.g. by applying s 300 of the CPA or suspending the sentence on the condition of repayment to the complainant?’


[5] In respect of the first query the magistrate concede that the rights to legal representation was inadequately explained to the accused. However, the magistrate further submitted that she confirmed afterwards if he was still conducting his own defence. This confirmation would serve no purpose if the accused was not aware of his full rights in the first place. The magistrate also replied that, at one stage during the trial, she fully explained the rights to the accused. From the record it is clear that this happened in the middle of the trial when the plea was already taken and two state witnesses, including the complainant, had already testified.


[6] There is no indication on the record that the accused was an educated person, on the contrary, he did not attend school. He was a first offender. It can therefore not be argued that the accused was aware of his legal rights. Therefore, the failure to explain a fundamental right to the accused tainted the conviction to such an extent that it cannot stand.


[7] In respect of the second query, the magistrate restated the evidence presented by the witnesses. From these she inferred that, due to the fact that the accused took over two years in which he did not deliver as agreed, he had the intention from the start to defraud the complainant and thus that he committed the offense of theft by false pretences.


[8] In Snyman’s Criminal law1 the offence of theft by false pretences is defines as follows:


‘A person commits theft by false pretences if she unlawfully and intentionally obtains movable, corporeal property belonging to another with the consent of the person from whom she obtains it, such consent being given as a result of a misrepresentation by the person committing the crime, and appropriates it.’


[9] The elements of the crime are listed by the learned writer as: (a) a misrepresentation

(b) actual prejudice (c) a causal link between the misrepresentation and the prejudice (d) an appropriation of the property (e) unlawfulness and (f) intention.


[10] From the outset, the explanation of the accused was that he could not deliver the animals due to transport problems. He put his version to the various witnesses including the complainant. The complainant indicated she is no longer interested in receiving the animals and just wants her money returned. There was no evidence presented that the accused lied about owning or possessing the two cows that he sold to the complainant. Without such evidence the element of misrepresentation was not proved. It appears from the evidence that there was an oral agreement that was not honoured and therefor redress had to be by way of a civil and not criminal case.


[11] In respect of the third query, the magistrate replied that the accused indicated that he had no funds to compensate the complainant and that the prosecutor did not request such an order.


[12] In retrospect, the amount involved in this matter exceeded the jurisdiction for a compensation order. Section 300(1)(a) of the CPA allows for such order only up to an amount of N$5 000 in the district court.2 Be that as it may, the option to suspend the sentence on condition of compensation was still available. The fact that the accused indicated he had no funds available does not mean that such an option should not be given to him. There are other ways of raising funds to pay compensation. Often times relatives may assist or, in this case, by selling the said cattle to another buyer. After all, that was primarily the reason why the complainant went through all the effort to report the matter and testify in court.


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

  1. The conviction and sentence are set aside.

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


Judge(s) signature

Comments:

KESSLAU J:


None


SALIONGA J:


None






1 Snyman’s Criminal Law, 7th edition, (2020) p 471.

2 N$20 000 in case of a Regional Court.

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