Court name
High Court Main Division
Case number
CRIMINAL 23 of 2013
Title

S v Tjivikua (CRIMINAL 23 of 2013) [2013] NAHCMD 83 (28 March 2013);

Media neutral citation
[2013] NAHCMD 83
Coram
Ndauendapo J
Ueitele J












NOT
REPORTABLE


REPUBLIC
OF NAMIBIA


HIGH
COURT OF MAIN DIVISION, WINDHOEK





REVIEW
JUDGMENT





Case
no: CR 23/2013


In
the matter between:





THE
STATE


And


KENDANDEI
GHAD TJIVIKUA
..........................................................................
ACCUSED





(HIGH
COURT MAIN DIVISION CASE NO 549/2012)





Neutral
citation: The State v Tjivikua(CR 23/2013) [2013] NAHCNLD 83 (28
March 2013)





Coram:
NDAUENDAPO J et UEITELE J


Delivered:
28 March 2013





______________________________________________________________________


ORDER


____________________________________________________________________


1.
A plea of not guilty in terms of s 113 of the Criminal Procedure Act
51 of 197 is entered and the prosecution is required to proceed with
the trial.


2.
The matter is hereby remitted back to the Katutura magistrate court
to comply with s.113 of Act 51 of 1977.





__________________________________________________________________
JUDGMENT


___________________________________________________________________





NDAUENDAPO
J (UEITELE J concurring):





[1]
Before me is a review case. The accused appeared in the magistrate’s
court Katutura on a charge of failing to safeguard a firearm in
contravention of section 38 (1) (j) read with section 1, 3 (8), (2)
and 39 of Act 7 of 1996 as amended. The allegations being that ‘upon
or about the 10th day of December 2010 at or near Windhoek
in the district of Windhoek the accused did wrongfully and unlawfully
fail to safeguard an arm in his lawful possession, to wit 1 X BRNO
Pistol calibro 32/7.655 serial No J62000 when such was not carried on
his person or was not under his direct control’.





[2]
The accused who was not represented pleaded guilty and was questioned
by the magistrate in terms of section 112 (1) (b) of Act 51 of 1977.
The magistrate was satisfied with the answers given and convicted the
accused. He was sentenced to pay a fine of N$3000 or six months
imprisonment.





[3]
When the matter came before me, I directed the following query to the
magistrate: ‘on what basis was the magistrate satisfied that
the accused admitted guilt on all the elements of the offence having
regard to the following exchanges between the magistrate and accused:


Question
would
you say, based on your actions on 10 December 2010, that you employed
proper measures to safeguard the pistol?


Answer:
yes ‘





The
magistrate replied to my query as follows: “with respect to the
query I must concede that the answer of the accused also had me in a
bit of doubt. However, I went back to the preceding questions and
answers, particularly the circumstance under which the accused lost
the firearm. Allow me to quote, “I placed it on top of the
vehicle with other luggage. I do not know if it fell off……….I
had it on my body and then put it on top of the vehicle
I
think
. I then drove without removing it from the top of
the vehicle. It may have fallen off.
I do not know for
sure
Despite admitting not doing what is expected
of him by law in the event that the firearm is not carried on his
person or under his direct control in conjunction with his conduct
the time of losing the arm the
accused still opined that he
employed proper measures
to safeguard the arm. In the
opinion of the court the
view held by the accused is
subjective.
However, for the offence that the accused was
charged with fault in the form of negligence will surface (sic). The
conduct of the accused is to
be viewed objectively.
Would the reasonable man, if he found himself in the same
circumstances as the accused, have acted in any other manner? After
having applied the reasonable main (sic) test the court found that
the accused acted in a negligent manner at the time that he lost the
arm, considering his reason of events on the premise the court was
satisfied of the accused person’s guilt and convicted him
accordingly’.
(My underlining)





[4]
The legal position





In
S v Ntlakoe 1995 (1) SACR 629 (0) the court held that:





Head
note:





when
an accused pleads guilty to an offence and the court is in doubt as
to whether the accused is in law guilty of the offence to which he
has pleaded guilty, or is satisfied that the accused does not admit
an allegation in the charge or that the accused has incorrectly
admitted any such allegation, or that he has a valid defence to the
charge, the court is obliged in terms of S 113 of the criminal
Procedure Act 51 of 1977 to record a plea of not guilty and to
require the prosecutor to proceed with the prosecution.





In
S v Nyanga 2004 (1) SA CR 198 C 201 b-e Moosa
J
observed as follows:


Section
112 (1) (b) questioning has a twofold purpose: firstly, to establish
the factual basis for the plea of guilty and secondly, to establish
the legal basis for such a plea. In the first phase of the enquiry,
the admissions made may not be added to by other means such as a
process of inferential reasoning (
s
v Nkosi 1986 (2) SA 261 (T) of 263 H-I, S v Mathe 1981 (3) SA 664
(NC) at 669 E_G .’





The
second phase of the enquiry amounts essentially to a conclusion of
law based on admissions,
from the admissions the
court must conclude whether the legal requirements for the commission
of the offence have been met. They are the questions of unlawfulness,
actus reus and mens
rea
. These are conclusions of law. If the
court is satisfied that the admissions adequately cover all these
elements of the offence, the court is entitled to convict the accused
on the charge to which he pleaded guilty’.





In
S v Mkhize 1978 (1) SA 264 (N) 268 A-B Didcott
J
concluded that it is not the function of
the court to evaluate the answers as if it were weighing evidence or
to judge the truthfulness or plausibility of the answer.
The
‘test ‘is what the accused person has said, not what the
court thinks of it’
. (my underlining)


[5]
The accused told the court that ‘I placed it on top of the
vehicle with other luggage.
I do not know
if it fell off. I had it on my body and then put it on
top of the vehicle
I think.
(Underlining)


The
accused also told the magistrate that he employed proper measures on
the day the pistol got lost, to safeguard the pistol. That is clearly
not an admission of an essential element of the offence. For the
magistrate to say ‘the accused still opined that he employed
proper measure to safeguard the arm’ and that in the opinion of
the court the view held by the accused is subjective’ and that
the conduct of the accused is to be viewed objectively’ is
clearly wrong. The court must determine whether the accused
consciously (subjectively),
intended to plead
guilty. It is what the accused said –therefore it is subjective
and not objective as the magistrate opined. Fault in the form of
negligence is an essential element of the offence and I am not
satisfied that the accused admitted that element.





[6]
In the result, the conviction and sentence are set aside and
substituted with the following order:





1.
A plea of not guilty in terms of s 113 of the Criminal Procedure Act
51 of 197 is


entered
and the prosecution is required to proceed with the trial.


2.
The matter is hereby remitted back to the Katutura magistrate court
to comply with s.113 of Act 51 of 1977.


























___________________


GN
NDAUENDAPO


JUDGE











____________________


SF
I UEITELE


JUDGE