REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CR
In the matter between:
(HIGH COURT MAIN DIVISION
REVIEW REF NO.: 341/2013)
Neutral citation: The
State v Ganeb (CR 47/2013)  NAHCMD 220 (29 July 2013)
AJ et DAMASEB JUDGE-PRESIDENT
Delivered on: 29
The conviction is set
aside and replaced with the conviction of the offence of
Housebreaking with intent to steal. There is no reason to interfere
with the sentence, which is confirmed.
MILLER AJ : The
accused was charged with the crime of Housebreaking with the intent
to commit a crime unknown to the State.
 The charge sheet
alleges that on 29 December 2010 and at Vendeta farm in the district
of Gobabis the accused broke and entered the house of one Alfred by
forcing open a window and entering the house with the intent to
commit a crime unknown to the State.
 Upon being arraigned
the accused pleaded not guilty. His defence as disclosed in terms of
Section 115 of Act 51 of 1977 was a complete denial that he was in
any way involved.
 The matter was then
postponed to a later date for the trial to proceed.
 When the proceedings
were resumed the following occurred:
Matter is on the roll for trial, state is ready to proceed. Before we
proceed accused has indicated to the state that there are some
admissions he would like to make.
Accused what admission would you like to make?
I am guilty in this case.
Why are you saying that you are guilty what did you do wrong?
I am guilty I am the one who broke into the house. It was the month
of December 2010, I went to Vendeta farm, and then I open the window
with a garden fork. I pushed away the mosquito net on the window.
After I pushed away the net I entered the house and the alarm went
off. I ran away. I wanted to take money. I could not take it because
of the alarm that went off. I just ran.
Is that all you would like to admit?
I also knew that I was doing wrong thing and it was against the law.
I do not know the name of the house owner, but I know the farm and he
was not there. I just wanted to take the money and I did not have any
right to do what I did.
Accused, would you like what you told the court to be recorded as
formal admissions in terms of section 220 of Act 51/1977?
Accused, do you understand that if what you told me is recorded
as formal admissions in terms of section 220, the state would not
need to prove the elements of the offence that you have admitted or
so recorded as admissions in terms of that section?
Read to the accused what he told the court.
Accused version as above recorded as formal admission in terms of
section 220 of CPA 51/1977.
Accused has admitted the elements of the offence he is charge with
the state will not lead evidence.
Satisfied that accused admitted the essential elements of the offence
of housebreaking and his intention was to steal money.
Guilty of Housebreaking with intent to steal and theft.”
 It is immediately
apparent that the verdict of guilty to housebreaking with the intent
to steal and theft is not correct. This is conceded by the Magistrate
in response to a request by me, when the case was reviewed by me, to
provide reasons for the conviction.
 The facts plainly do
not establish that any theft took place. It is clear, however, that
when the accused broke into the house, his intention was to steal
money from the house.
 Section 262 (2) of
Act 51 of 1977 provides as follows:
the evidence on a charge of housebreaking with intent to commit an
offence to the prosecutor unknown, whether the charge is brought
under a statute or the common law, does not prove the offence of
housebreaking with intent to commit an offence to the prosecutor
unknown but the offence of housebreaking with intent to commit a
specific offence the accused may be found guilty of the offence so
also S v Dixon 1995 NR
v The State (CA 27/2010  NHCNLD 40.
 It follows that the
conviction is set aside and replaced with the conviction of the
offence of Housebreaking with intent to steal.
 There is no reason
to interfere with the sentence, which is confirmed.
P J MILLER
P J DAMASEB