REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA,
MAIN DIVISION
JUDGMENT
CR No: 23/2015
DATE: 06 AUGUST 2015
NOT REPORTABLE
In the matter between
THE STATE
And
JOSEPH UIRAB
HIGH COURT MD REVIEW CASE NO
190/2010
Neutral citation: S v Uirab (CR
23-2015) [2015] NAHCMD 183 (06 August 2015)
CORAM: LIEBENBERG J et SHIVUTE J
DELIVERED: 06 August 2015
Flynote: — Plea — Guilty —
Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of
1977 — Leading questions not to be put to accused –
Elements of offence covered by one leading question – Accused’s
answer not recorded – Improper questioning.
Criminal procedure —
Housebreaking with intent to steal and theft – Plea —
Guilty — Questioning in terms of s 112(1)(b) of Criminal
Procedure Act 51 of 1977 — Intent of accused when entering not
established — Elements of offence not admitted.
ORDER
The conviction and sentence are set
aside.
JUDGMENT
LIEBENBERG J:
(Concurring SHIVUTE J)
[1] This is a review matter in which
the accused was convicted on a plea of guilty of housebreaking with
intent to steal and theft, and sentenced to one year imprisonment.
When laid before Mainga J (as he then was) on 12 February 2010, he
directed a query in which the magistrate was required to respond to
the issues raised therein. The magistrate’s reply was only
received after more than five and a half years, accompanied by an
explanation that the matter was inadvertently misfiled and which was
only discovered in June 2015. The magistrate expressed his doubts as
to whether his reply would still be material. In view of the delay in
responding to the query in time and the accused already having served
his sentence, the outcome of this judgement is purely academic.
[2] Although the query inter alia
called for reasons to show why the record did not reflect the extent
of the explanation given to the unrepresented accused about his right
to legal representation and the explanation of his right to appeal,
it essentially relates to the court’s questioning in terms of s
112 (1)(b) of the Criminal Procedure Act, 51 of 1977. Firstly, the
record of proceedings does not reflect any answer on a question by
the court, essentially capturing all the elements of the offence in
that one question. Secondly, the accused was not asked as to what was
his intention when he entered the house.
[3] In his reply the magistrate
correctly concedes that the questioning in terms of s 112 (1)(b), as
reflected in the record of the proceedings, was inadequate and the
conviction therefore cannot stand. After the accused admitted having
broken into the house, the following all-embracing question was put
to him: ‘Did u (sic) on the 6th day of January 2010 at or near
Kapsfarm in the district of Windhoek wrongfully and unlawfully break
and enter the house of Alpheus Neshuku with intent to steal and did
(you) unlawfully steal clothes as read to you on the two lists valued
at N$5 700, the property of or in the lawful possession of Alpheus
Neshuku (?)’. The record does not reflect the accused’s
answer on the question.
[4] It is trite that in questioning the
accused, the court should do more than simply restate the charge and
ask the accused whether he or she admits the allegations in the
charge. In this instance the court by way of a single leading
question covered all the elements of the offence, including the
unlawfulness of the accused’s actions, which at all times
should be avoided (S v Gwenya 1995 (2) SACR 522 (EC)). The purpose of
questioning is to safeguard the unrepresented accused against the
result of an unjustified plea of guilty, something the magistrate in
this case would not have realised from the way he had formulated his
questions. By asking the accused whether his actions were ‘wrongful
and unlawful’ presupposes that he had legal knowledge which,
bearing in mind that the accused was a layperson, was probably
lacking. From the afore-going it is evident that questioning of the
accused must be applied with care and circumspection (S v Naidoo 1989
(2) SA 114 (A) at 121E).
[5] This court in S v Pieters 2014 (3)
NR 825 (HC) considered the objectives when questioning the accused in
terms of s 112 (1)(b) and stated the following at 828B – H:
‘[10] In S v Baron 1978 (2) SA
510 (C) at 512G it was held (per Van Winsen J) that the questioning
under s 112(1)(b) is an important part of the legal process and was
introduced to protect an accused — especially the unrepresented
or illiterate accused — against an ill-considered plea of
guilty and that in the application of s 112(1)(b) there is much room
for misunderstanding which can result in prejudice to an accused
person.
[11] In S v Nyanga 2004 (1) SACR 198
(C) at 201b – e Moosa J stated the purpose of s 112(1)(b) 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 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) at 263H – I; S v Mathe
1981 (3) SA 664 (NC) at 669E – G; S v Jacobs (supra at 1117B)).
The second phase of the enquiry amounts essentially to a conclusion
of law based on the 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 the elements of
the offence, the court is entitled to convict the accused on the
charge to which he pleaded guilty. (See S v Lebokeng en 'n Ander 1978
(2) SA 674 (O) at 675G – H; S v Hendricks (supra at 187b –
e; S v De Klerk 1992 (1) SACR 181 (W) at 183a – b; S v Diniso
1999 (1) SACR 532 (C) at 533g – h.)” ‘
[6] When applying the aforesaid
principles to the present matter it is evident that the questioning
of the accused lacked substance, neither has the accused’s
answer to the all-embracing question been recorded. There is yet
another short-coming in the court’s questioning, relating to
the accused’s intent when he entered the house.
[7] It is settled law that
housebreaking in itself is not an offence unless accompanied by the
intention to commit some other offence and in S v Maseko and Another
2004 (1) SACR 22 (TPD) it was said that there exists no offence
either at common law or in statute which consists of mere
‘housebreaking’ without some concomitant intent (22h-i).
Although admitting that he had broken the lock on the door of the
complainant’s home before entering, he was not questioned on
his intent at the time. Without the accused admitting that he entered
the house with intent to steal, he could not have been convicted of
the said offence. Accordingly, the conviction cannot be permitted to
stand.
[8] Section 312 (1) of the Criminal
Procedure Act 51 of 1977 is imperative that where a conviction and
sentence under s 112 are set aside on review or appeal on the ground
that any provision of that section was not complied with, the court
shall remit the case to the court by which the sentence was imposed.
In circumstances as the present where the accused had already
completed serving his sentence in full more than five years ago, it
would not be in the interest of justice to recall him in order to be
dealt with as provided for in s 312 (2) of the Act. I accordingly
decline to make such order.
[9] In the result, it is ordered:
The conviction and sentence are set
aside.
J C LIEBENBERG
JUDGE
NN SHIVUTE
JUDGE