Court name
High Court Main Division
Case number
CRIMINAL 73 of 2013
Title

S v Ekandjo (CRIMINAL 73 of 2013) [2013] NAHCMD 314 (01 November 2013);

Media neutral citation
[2013] NAHCMD 314
Coram
Hoff J
Unengu AJ













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CR 73/2013








In the matter between:








THE STATE



and



FREDERICK EKANDJO
.................................................................................ACCUSED








(HIGH COURT MAIN DIVISION
REVIEW REF NO.: 702/2013)








Neutral citation: S
v Ekandjo
(CR73-2013)[2013]NAHCMD314(1 November 2013)








Coram: HOFF J and
UNENGU AJ



Delivered: 1
November 2013








Flynote: Criminal
Procedure – Review questioning in terms of section 112(1)(b) of
the Criminal Procedure Act, 51 of 1977 – Accused not admitting
all allegations of the offence charged with – Conviction and
sentence set aside.








Summary: The
accused who conducted own defence pleaded guilty to an offence of
Housebreaking with the intent to commit an offence unknown to the
State – Convicted as charged and sentenced. On review, both the
conviction and sentence set aside and the matter remitted to the
magistrate to enter a plea of not guilty in terms of section 113 of
the Criminal Procedure Act 51 of 1977 as the accused did not admit
all allegations of the offence he was charged with.





ORDER










(1) The conviction and
sentence are set aside.



(2) The matter is
remitted to the magistrate with a direction that a plea of not guilty
be entered on behalf of the accused and for a trial to follow if the
State so wish.



(3) In the event that the
accused is convicted after evidence has been led, the magistrate must
take into account, the fine or a part fine paid, if any, by the
accused or the sentence or part thereof served by the accused, when
passing sentence.










JUDGMENT










UNENGU AJ (HOFF J
concurring):








[1]
This matter comes before me on automatic review
1.
The accused who conducted his own defence, was charged with an
offence of Housebreaking with the intent to commit a crime unknown to
the State, of which the annexure to the charge sheet reads as
follows: “The accused is/are guilty of the crime of
Housebreaking with intent to commit an offence unknown to the State.
In that upon or about the 28
th
day of May 2013 at or
near Farm Singberg in the district of Karibib the accused did
unlawfully and intentionally break and enter the house of Anita
Potgieter with the intent to commit a crime unknown (sic) the State’.








[2]
The accused pleaded guilty and after questioning in terms of the
provisions of the CPA
2,
the magistrate expressed the view that the court was satisfied that
the accused person admitted to (sic) all allegations contained in the
charge annexure and elements of the offence, found the accused guilty
as charged, and sentenced the accused to pay a fine of N$2000.00 or
in default of payment 6 (six) months imprisonment. The accused did
not pay the fine, hence the automatic review.








[3] Upon reading the
record of proceedings, I was not satisfied that the proceedings in
the case appeared to be in accordance with justice and sent the
following query to the magistrate:








REVIEW
CASE NO.: KRB-CRM-742/2013



HIGH
COURT REF. NO.: 1406/2013



MAGISTRATE
SERIAL NO.: 23/2013








THE
STATE vs FREDERICK EKANDJO








The
Honourable Reviewing Judge remarked as follows:








1.
During questioning in terms of section 112(1)b of the Criminal
Procedure Act, 51 of 1997, as amended, when asked by the Court “What
was your intention when entering the house through the windows”,
the accused answered “I wanted to see what was inside as I did
not know”








2.
Further, on a follow up question namely, “so you had no
intention to steal anything from the house? The accused replied:
“No”.








3.
In view of the aforesaid answers by the accused, why was a plea of
not guilty in terms of section 113 of the Criminal Procedure Act 51
of 1977 not entered?”








Your
urgent response is appreciated.’








[4] The magistrate
responded to my query as follows:








REVIEW
CASE NO.: KRB-CRM-742/2013



HIGH
COURT REF. NO.: 1406/2013



MAGISTRATE
SERIAL NO.: 23/2013



Re:
THE STATE vs FREDERICK EKANDJO








In
response to the Honourable Reviewing Judge’s remarks:








1.
The accused person was charged with housebreaking with the intent to
commit an offence unknown to the state. The court subsequently
questioned the accused person based on the said charge.








2.
From the questioning, it can be noted that the accused person entered
the house by opening the window wider and gaining access to the
house, thus, the accused person broke into the house, as he has to
move something that was in his way.








3.
The court attempted to establish the intention of the accused person
for breaking into the house, but his response, after a number of
attempts was that ‘he wanted to see what was inside the house’.








4.
Having considered the above and the offence that the accused person
was charged with, the court was satisfied that even though the
accused person’s responses did not establish the offence of
housebreaking with the intent to steal, the responses however did
satisfy the elements of housebreaking with the intent to commit an
offence unknown to the state.








On
that basis the court entered a guilty plea, and the accused person
was convicted for housebreaking with the intent to commit an office
unknown to the state, as his intention was not established.








I
sincerely do hope the response is in order and seek the guidance of
the Honourable Reviewing Judge.’








[5] The magistrate in his
reply to the query has attempted to justify and vindicate his glaring
blunder. The fact of the matter is that the accused did not admit the
intention to commit the offence unknown to the State or any specific
offence.








[6] On a pertinent
question asked by the magistrate ‘what was your intention when
entering the house through the window?’ The accused answered:
‘I wanted to see what was inside as I did not know’. This
answer was followed up with this question: ‘Why did you not
look through the window?’ The accused replied: ‘ I could
not see properly, there were curtains’. The magistrate still
not satisfied and asked another question, this time a leading
question.








Q:
So you had no intention to steal anything from the house?



A:
No’








[7]
Nevertheless, the magistrate proceeded and convicted the accused as
charged and punished him as pointed out above even though an
important element (allegation) of the offence the accused was charged
with was not admitted. The magistrate, in this case, should have
entered a plea of not guilty in terms of the provisions of the CPA
3
for the State to prove
the intention to commit the unknown offence he was charged with. The
failure to enter a plea of not guilty on behalf of the accused is a
misdirection which resulted in a miscarriage of justice. Therefore,
both the conviction and sentence cannot be allowed to stand.








[8] In the result, the
following order is made:








(1) The conviction and
sentence are set aside.



(2) The matter is
remitted to the magistrate with a direction that a plea of not guilty
be entered on behalf of the accused and for a trial to follow if the
State so wish.



(3) In the event that the
accused is convicted after evidence has been led, the magistrate must
take into account, the fine or a part fine paid, if any, by the
accused or the sentence or part thereof served by the accused, when
passing sentence.























----------------------------------



PE Unengu



Acting























----------------------------------



E Hoff



Judge









1Section
302 of the Criminal Procedure Act 51/1977 (CPA)





2Section
112(1)(b)





3Section
113 of the CPA