Gases v State (CA 112/2015) [2016] NAHCMD 239 (31 August 2018);


Full judgment




CASE NO: CA 112/2015

DATE: 19 AUGUST 2016


In the matter between:

BONSWITHA MEMORY GASES...................................................................................APPELLANT


THE STATE....................................................................................................................RESPONDENT

Neutral citation: Gases v State (CA 112-2016) [2016] NAHCMD 239 (19 August 2016)


Heard: 25 July 2016

Delivered: 19 August 2016

Flynote: Section 113 of the Criminal Procedure Act 51 of 1977 – peremptory at any time before sentence during section 112 proceedings once a valid defence has been raised. Failure to endorse it whether the suspect is legally represented or not constitutes a serious material misdirection invalidating the plea of guilty.

Summary: The deceased overpowered his mother who was pushing him away from forcibly entering another room wherein the appellant had ran into fearing an attack from the deceased. The deceased pushed the room door open after overpowering the appellant who was firmly holding it closed from the inside. He grabbed her, broke a bottle against the wall saying he will kill her that day. During the struggle she got hold of a knife and stabbed him.

Held: The failure to endorse a plea of not guilty in view of a crystal clear valid defence is a misdirection of such a magnitude that it invalidates the plea of guilty, as well as the sentence.


In the result I make the following order:

The appeal succeeds, the conviction and sentence are set aside.


SIBOLEKA J, (USIKU J concurring):

[1] The appellant was convicted of murder on the 3rd of July 2014 and 15 July 2014 she was sentenced to fifteen years imprisonment of which two years imprisonment was suspended for a period of 5 years on condition that she is not convicted of murder or any offence, of which assault or violence towards the body of another person which causes serious injury is an element, committed during the period of suspension.

[2] She now appeals against the conviction and sentence.

[2.1] The appellant’s notice of appeal was filed on 21 August 2015, one year and one month out of time. Counsel for the appellant conceded the none compliance with rule 67(1) of the Magistrate’s Court rules raised by counsel of the respondent as provided in S v Kashire[1]. The delay in filing the notice of appeal timeously was caused by the fact that the mandate of the appellant’s counsel in the Court a quo terminated at the end of the trial. This state of affairs coupled with the silence of the record of proceedings as regards the explanation of rights including the period within which the appeal must be filed; the circumstances of the matter See S v Wasserfall[2]; the appellant’s bad health as per copies of her hospital passport. The court found the explanation reasonable and condoned the late filing of the notice of appeal. The matter was then argued on the merits.

[3] The grounds of appeal are as follows:


1. That the Learned Magistrate misdirected herself, alternatively, erred in law or in fact:

1.1  When she convicted the Appellant on the admissions of bare elements of the offence without further information or sufficient facts surrounding the commission of the offence.

Alternatively: when she failed to establish the facts from the Appellant in

detail in order to appreciate her actions and her bare admissions;

1.2  When she ignored or failed to or neglected to adequately consider the defence of private defence raised by the Appellant during her mitigation under oath;

First alternative: When she failed or neglected to enter a plea of not guilty in terms of section 113 of the Criminal Procedure Act, 1977 (Act 51 of 1977) after the Appellant testified in mitigation and revealed a defence of private defence to the Court;

Second alternative: When despite being doubtful of whether she was correct in convicting the Appellant as charged on murder she failed or ignored to enter a plea of not guilty;

1.3  When she failed or neglected to adequately consider that the Appellant was not ably represented as there were disputes between the Appellant and her legal representative’s version of events which ignorance of that fact led to the Appellant not receiving a fair trial;

Alternatively, when despite the Appellant’s legal representative placing on record the difference between her version and that of the Appellant on whether there was a struggle or not, the Learned Magistrate still proceeded to convict the Appellant thus believing the legal representative who should act on the Appellant’s instructions instead of confirming the facts with the Appellant and therefore resulting in serious injustice to the Appellant and unfair trial.


1. That the Learned Magistrate misdirected herself, alternatively, erred in law and or in fact:

1.1 When she did not properly attach sufficient weight to the personal circumstances of the Appellant in particular her age and her remorse;

1.2 When she imposed a sentenced that is too severe in the circumstances that it is shockingly inappropriate.”

[4] The crux of the appeal is that the appellant was wrongly convicted because the plea explanation tendered by her counsel in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 did not appropriately admit all the elements of the crime of murder, to wit, unlawfulness and mens rea. The trial Court, so argues the appellant, should instead have endorsed a plea of not guilty in terms of section 113 to avail the prosecution an opportunity to clear the matter through evidence.

[5] The charge that was preferred against the appellant in the Court a quo reads:

Murder read with the provisions of the Domestic Violence Act, Act 4 of 2003 Count 1 (in respect of accused 1), That the accused is guilty of the crime of murder. In that upon or about 00h30 and on the 13th day of January 2013 and at or near House No. 282, Uis in the district of Omaruru the accused did unlawfully and intentionally kill Gaseb Terenst Panduleni.”

[6] The guilty plea explanation filed in terms of section 112(2) of Act 51 of 1977 reads:

I the undersigned Bonswitha Memory Gases state under oath as follows, I plead guilty to the charge of murder. I admit that I was not forced, threatened to plead guilty and that I am sober. I further admit that on the 13th of January, 2013 at or near Uis in the District of Omaruru I did unlawfully and intentionally kill Mr Gerald Gaseb by stabbing him with a knife on the left side of his chest. I admit that the Deceased broke a bottle and throw it towards me but the bottle did not hurt me and in that process I took a knife and stabbed him on the left side of his chest. I knew that my action is wrong and if arrested I might be punished for it by the court of law and that I am sorry for what I have done. I also understand the contents of this statement which was freely and voluntarily submitted by me. May the Court just confirm the contents of this statement as well as the signatures of the Accused person?

COURT: Confirm the contents with the ACCUSED AS PER HIS SIGNATURE.

ACCUSED: Yes understand the contents and confirm the signature.

COURT: The statement is handed up as Exhibit A.



The Court is satisfied that the Accused admits and understands each and every element as it is named in the charge before Court. The Court do convict the Accused accordingly as charged with the charge of murder, ...”

[7] After the Court had accepted the above guilty plea, counsel for the appellant proceeded to lead her client in mitigation of sentence under oath. It is at this stage of the proceedings where a revelation that flies straight in the face of the tendered guilty plea cropped up. It would therefore in my view be appropriate to briefly sketch the background of what happened:

[7.1] The scene of crime is the house belonging to the deceased’s mother, who is the appellant’s grandmother. On the day of the incident at around 02h00 the appellant was already asleep covered in blankets when the deceased arrived drunk. It is not clear from the record who switched the lights on between the deceased and the elderly lady. Like any other sleeping person would normally do – the appellant said the lights were disturbing her sleep. This remark did not go well with the deceased, who told her that he can switch the lights on at any time he felt like, because it was his mother’s house. The appellant told the deceased she was talking to her grandmother and not to him. An object that hurts, but which the appellant did not see was thrown at her by the deceased. He started talking a lot of things and eventually stormed at her. The elderly lady was unsuccessfully stopping and pushing the deceased away. The appellant got out of bed and closed the door from inside to protect herself.

[7.2] What now follows constitutes the core issue of this appeal. It would therefore in my view be appropriate to quote verbatim the paragraphs at pages 7 line 20 and 8 line 30 of the record of proceedings in the trial Court on this matter:

My grandmother was stopping him and was even pushing him away when he stormed me up to the door. I was pushing the door from the other side and he was pushing from the front side. Because he was stronger than my grandmother he overpowered her. He entered the room where I was. When he entered the room he throw a bottle. I think he was having two bottles. He throw the first bottle but it did not hit me. The second bottle he grabbed me and broke the bottle against the wall while he was grabbing me. From there he was saying that today you will die I will kill you. While we were struggling like that I got hold of a knife and from there I stabbed him.”

[8] Any trial Court acting carefully ought in my view to have seen the existence of a huge/substantial ground of justification namely ‘defence’ at the time the deceased was fatally stabbed.

[8.1] In our law the above paragraph credibly displaces the section 112(2) written plea of guilty that was handed in as exhibit ‘A’. The only safe route that was open to the Court a quo and to any trial Court that finds itself in this state of affairs is succinctly provided for in section 113 of the Criminal Procedure Act 51 of 1977 as amended. This section states the following:

113 Correction of plea of guilty –

If the Court at any stage of the proceedings under section 112 and before sentence is passed is in doubt 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 a valid defence to the charge, the Court shall record the plea of not guilty and require the prosecutor to proceed with the prosecution: Provided that any allegation, other than the allegation referred to above, admitted by the accused up to the stage at which the Court records a plea of not guilty, shall stand as proof in any Court of such allegations.” My own underlining.

[9] The failure of the trial Court to endorse the provisions of section 113 of Act 51 of 1977 in this case is a material misdirection that invalidates the plea of guilty on this matter.

[10] In the light of the above the conviction and sentence cannot be allowed to stand.

[11] In the result I make the following order:

The appeal succeeds, the conviction and sentence are set aside.






APPELLANT : Oben Sibeya

Sibeya & Partners Legal Practitioners

RESPONDENT : Ms Shikerete

Office of the Prosecutor-General, Windhoek

[1] State v Kashire 1978(4) SA 166 at 167 H-I.

[2] S v Wassserfall 1992 NR. 18(HC) at 191-J.