Court name
High Court Main Division
Case number
CRIMINAL 76 of 2013
Title

S v Shamwange (CRIMINAL 76 of 2013) [2013] NAHCMD 339 (15 November 2013);

Media neutral citation
[2013] NAHCMD 339
Coram
Hoff J
Miller AJ












NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION



WINDHOEK







JUDGMENT



Case no: CR: 76/2013







In the matter between:











THE STATE



and



RUBEN
SHAMWANGE..............................................................................ACCUSED







(HIGH COURT MAIN
DIVISION REVIEW REF NO. 1460/2013











Neutral citation: S
v Shamwange
(CR 76/2013) [2013] NAHCMD339(15 November 2013)











Coram: HOFF J and
MILLER AJ







Delivered: 15
November 2013





























ORDER





(a) The conviction and
sentence are set aside.







(b) The magistrate is
ordered to enter a plea of not guilty in respect of the main count.







(c) The magistrate must
thereafter question the accused in respect of the alternative count.







(d) Should the accused
admit all the allegations in respect of the alternative count and the
State accepts that plea the accused may be convicted on the
alternative charge.







(e) Should the State not
accept the plea on the alternative charge the magistrate must then
order the State to lead evidence in order to prove the main charge.









JUDGMENT









HOFF J (MILLER AJ
concurring):







[1] The accused was
charged with dealing in cannabis in contravention of the provisions
of s 2(a) of Act 41 of 1971, alternatively being in possession
of cannabis in contravention of s 2(b) of Act 41 of 1971 in
the Otjiwarongo Magistrate’s Court. The accused pleaded guilty
to both the main and alternative counts and was thereafter questioned
by the presiding officer in terms of the provisions of
s 112(1)(b) of Act 51 of 1977.







[2] The accused admitted
being found in possession of 157,9 grams of cannabis but denied
dealing in cannabis. The accused explained that he possessed the
cannabis for his own use (to smoke it).



[3] At the end of the
questioning the magistrate strangely asked the State prosecutor
whether the State accepted the plea ‘on dealing in dependence
producing substance’ to which the prosecutor replied in the
affirmative. The accused was thereafter convicted in respect of the
main count, namely dealing in cannabis.







[4] I requested the
magistrate to provide me her reasons for convicting the accused of
dealing in cannabis.







[5] The presiding officer
replied that the accused was convicted on the presumption that where
an accused was found in possession of more than 115 grams
of cannabis such accused is presumed to have dealt in cannabis. The
magistrate requested that the conviction and sentence be set aside
and the matter be returned to her in order for the ‘accused to
adduce evidence either himself testifying or witnesses to prove the
contrary under oath, thereby the State will be given the opportunity
to cross-examine the witnesses’.







[6] It is not quite clear
to me what the learned magistrate meant by this quoted passage. It is
trite law that there is no duty on an accused person to prove his or
her innocence.







[7] The purpose of the
questioning in terms of s 112(1)(b) is clear namely for the
presiding officer to ascertain whether or not an accused person
admits all the allegations in the charge sheet.







[8] The accused in this
particular case categorically denied that he was dealing in cannabis.
The magistrate by ignoring this denial committed a grave
irregularity. A magistrate when questioning an accused person is not
entitled to draw inferences from the answers provided neither, as in
this instance, may the magistrate rely on a presumption where the
accused was found in possession of more than 115 grams of cannabis
and convict him of dealing in cannabis. This is also a grave
irregularity.







[9] The onus is on the
State to prove the commission of any crime beyond reasonable doubt,
but where an accused pleaded guilty, as in the present instance, is
then questioned by the presiding magistrate, denied an allegation in
the charge sheet, then in terms of the provisions of s 113 of Act 51
of 1977 the court must enter a plea of not guilty and ask the State
to lead evidence in order to prove the commission of the crime.







[10] In the present
instance the magistrate should in respect of the main count have
entered a plea of not guilty and then continued to question the
accused in respect of the alternative count of possession of
cannabis. If the accused had admitted all the allegations in respect
of the alternative charge, the magistrate should then have asked the
State whether it accepts the plea on the alternative charge or
whether the State intended to prove the main count by leading
evidence.







[11] At this stage I need
to comment on the sentence imposed by the magistrate. The following
sentence was imposed:







‘N$5 000.00
or 18 months imprisonment of which N$2 500.00 or 9 months
imprisonment are suspended on usual conditions for 3 years.’







[12] This sentence in my
view is irregular and incomplete. It is trite law that where a
suspended sentence is imposed it must be clear to an accused person
what the conditions of the suspended sentence are in order to avoid
the suspended sentence be put into operation.







[13] Where a condition
reads ‘on usual conditions’ would an accused person know
what are the usual conditions? Certainly not. The accused person has
the right to know what those conditions are and the conditions must
be apparent from the record.







[14] In the result the
following orders are made:







(a) The conviction and
sentence are set aside.







(b) The magistrate is
ordered to enter a plea of not guilty in respect of the main count.







(c) The magistrate must
thereafter question the accused in respect of the alternative count.



(d) Should the accused
admit all the allegations in respect of the alternative count and the
State accepts that plea the accused may be convicted on the
alternative charge.







(e) Should the State not
accept the plea on the alternative charge the magistrate must then
order the State to lead evidence in order to prove the main charge.



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



E P B HOFF



Judge







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



P J MILLER



Acting Judge