Court name
High Court Main Division
Case number
CRIMINAL 14 of 2015
Title

S v Isak (CRIMINAL 14 of 2015) [2015] NAHCMD 84 (10 April 2015);

Media neutral citation
[2015] NAHCMD 84
Coram
Shivute J
Masuku AJ










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: CR 14/2015





DATE:
10 APRIL 2015





NOT
REPORTABLE





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:





THE
STATE





And





ROBETH
ISAK......................................................................................................................ACCUSED





(HIGH
COURT MAIN DIVISION REVIEW REF NO. 251/2015)





Neutral
citation: S v Isak (CR 14/2015) [2015] NAHCMD 84 (10 April 2015)




CORAM:
SHIVUTE J et MASUKU, AJ





Delivered
on: 10 April 2015





Flynote:
The accused was, after pleading guilty in terms of section 112 (1)
(b) of the Criminal Procedure Act, convicted and sentenced by the
Swakopmund Magistrate’s Court for assault with intent to do
grievous bodily harm. The matter came up on automatic review before
the High Court and the High Court raised issues regarding the
propriety of the conviction on account of the answers returned by the
accused during questioning, which revealed potential defences. A
query addressed to the trial magistrate evoked an admission that the
conviction should not stand. The High Court, five years after the
conviction and sentence, set aside the conviction and that held that
it is unconscionable in the circumstances to order a fresh trial in
view of the fact that the accused would have by now completed serving
his sentence.


JUDGMENT


MASUKU
A.J.





[1]
The accused person was arraigned before the Magistrate’s Court
in Swakopmund, charged with a single count of assault with intent to
do grievous bodily harm. It was alleged in the charge sheet that on 3
November 2009, and at Swakopmund in the District of Swakopmund, the
accused wrongfully, unlawfully and intentionally assaulted Lukas
Kaulinge by stabbing him with a knife on his hand and hitting him
with a glass, with intent to cause him grievous bodily harm.





[2]
On 5 November 2009, the accused pleaded guilty to the said offence
and the magistrate applied the provisions of section 112 (1) (b) of
the Criminal Procedure Act[1].
The learned magistrate put questions to him in order to ascertain the
unequivocal nature of the plea of guilty he had tendered and to also
satisfy the court that all the elements of the offence had been
ineluctably proved. The learned magistrate, after posing questions,
listening to and recording the answers returned by the accused in
response, was satisfied that the accused’s plea was unequivocal
and that the elements of the offence had been indubitably proved. He
was accordingly found guilty as charged and sentenced to N$2000 or 10
months imprisonment.


[3]
The matter was then referred to this court on automatic review. It
served before Tommasi J. By letter dated 31 January 2011, the learned
Judge remarked to the trial magistrate as follows in a query
addressed to the trial magistrate:


It
appears that the accused is denying that he had the intention to do
the complainant grievous bodily harm and he further raised a defense
of self-defense although he stated he does not care what happened to
the complainant did. The fact that the accused feel (sic) that
he did something wrong does not necessarily mean that he acted
unlawfully if grounds exist that justify his actions. Please indicate
why the court was satisfied that the accused admitted all the
elements of the crime.’





[4]
By letter dated 15 April 2011, the magistrate responded to the
learned Judge’s query and in particular stated the following at
paragraphs 4 and 5 of the letter in reply:


4.
I therefore acknowledge that in the instant matter accused person
admitted assaulting the complainant and that he did wrong but left a
doubt whether he admitted all the elements of the offence he was
charged with.


5.
I therefore request that the conviction be set aside. Remitting the
case back to me will not yield justice as intended accused was
convicted and sentenced on 05/11/2009. The matter was sent on review
on 21/01/2010. It was received by the Registrar on 08/02/2010. The
Honourable Judge (sic) remarks are dated 31/01/2011. If the
accused did not pay a fine he has already served his sentence.


6.
Thus, the only benefit the accused may have is for criminal record to
be scrapped on his name.’


The
file was brought to me on 4 March 2015 to make an appropriate order
in the circumstances.





[5]
A reading of the record shows that the misgivings Tommasi J had
regarding the question whether the offence wherewith he was charged
had been proved were fully justified. In order to demonstrate this,
it is necessary to quote verbatim relevant excerpts from the record
of proceedings. In the course of the questioning, the following
exchange took place between the trial court and the accused:


Q:
Who did you assault?


A:
Lukas Kaulinge


Q:
How did you assault him?


A:
I slightly cut him on the left hand.


Q:
it is alleged that you also cut him with a glass on his head, Is that
so?


A:
Correct.


Q
Did you know by doing so you were committing an offence of which you
could be punished for it?


A:
Correct. I know it but I did not do it intentional (sic).


Q:
Why did you do it?


A:
I did it because I was angry as he said I slept with his girlfriend.


Q:
Did anyone force (sic) to assault him?


A:
He forced me because he beat me first with a brick and I have a wound
on my shoulder.


Q:
If he assaulted you why did you plead guilty?


A:
Because what I did is wrong and do not care what he did.


Q:
Did he provoke you that you were defending yourself?


A:
No. I did wrong.’





[6]
What is plain is that from the answers returned by the accused in
response to the questions by the court in the quest to establish the
unequivocal nature of the plea of guilty, at least two potential
defences were raised by the accused, namely provocation and
self-defence. The question then becomes whether the learned
magistrate was properly satisfied that a plea of guilty should have
followed? It is unnecessary to dwell on this question in the light of
the magistrate’s mature and measured response to the query
raised by the reviewing Judge.





[7]
Section 112 (1) (b) (
supra)
was described in
S
v Nyanga
[2]
as serving twin purposes, 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. . . 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 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.’





[8]
As indicated above, the questioning yielded answers that cast a doubt
regarding whether the accused’s actions were unlawful, namely
the raising of the two potential defences mentioned above. It was
accordingly not proper for the learned magistrate to have convicted
after the answers to questions posed suggested that the accused,
unrepresented as he was, had possible defences available to him. The
concession by the magistrate that the verdict was accordingly not in
order is thus comely. In this regard, in
S
v Naidoo
[3]
it
was held that:


It
is well settled that the section was designed to protect an accused
from the consequences of an unjustified plea of guilty, and that in
conformity with the object of the Legislature our courts have
correctly applied the section with care and circumspection, and on
the basis that where an accused’s responses to the questioning
suggest a possible defence or leave room for a reasonable explanation
other than the accused’s guilt, a plea of not guilty should not
be entered and the matter clarified by evidence.’





[9]
In view of the foregoing, it is clear that the court a quo did
not properly apply the provisions of the said section in this matter.
It should have been clear, after the answers from the accused that
some of the elements of the offence had not been indubitably accepted
by the accused, thus consigning the matter to be properly dealt with
at trial and where the viability of the accused’s potential
defences would be properly examined. The only proper order to issue
in the premises, is one setting the conviction aside.





[10]
One other question arises immediately from the decision to set aside
the conviction and it is this: is this a proper case in which the
matter should be remitted to the court a quo to have the
matter start afresh on the basis of a plea of not guilty? There are a
few factors that in my view militate against the propriety of such an
order. First, the case was finalized a long time ago. This was in
November 2009, in so far as the accused is concerned. To now rake
dead embers and ignite a flame of a criminal trial some five or so
years after the accused has paid his price to the community would be
unconscionable.





[11]
Second, and most importantly, as properly pointed out by the
magistrate, the accused was convicted of the offence and either paid
a fine or has already served his sentence. It would amount to him
being subjected to double jeopardy to order a re-trial. The
provisions of article 14 (2) of the Namibian Constitution are
poignant and they guard against such eventualities. The said
provision states the following:


No
persons shall be liable to be tried or punished again for any
criminal offence for which they have already been convicted or
acquitted according to law: provided that nothing in this Sub-Article
shall be construed as changing the provisions of the common law
defences of “previous acquittal” and “previous
conviction.’





[12]
It is accordingly clear that the court would be visiting manifold
injustice to the accused were it to remit the matter for trial as the
accused was in this case convicted and has clearly finished serving
the sentence. There is no practicable way of ordering him to
‘unserve’ a sentence that he already has and this is
where the concept of double jeopardy comes in, to avoid injustice.





[13]
What may be of value to the accused, as the learned magistrate
pointed out in her aforesaid letter, in response to the query by the
reviewing judge is that an order setting aside the conviction, as
should be the case, for the reasons stated above, would benefit the
accused in so far as the conviction on his records would have to be
expunged. That is reason enough, in my view, to deal with this matter
even years after the accused has finished serving his sentence.





[14]
I accordingly issue the following order:


14.1
The conviction of the accused returned by the Swakopmund Magistrate’s
Court on 5 November, 2009 is hereby set aside.





TS
Masuku, AJ


I
agree


N.N.
Shivute, J



[1]
Act 51 of 1977




[2]
2004 (1) SACR 198 (C) 201
b-e




[3]
1989 (2) SA 114 (A) 121