REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case no: CR 28/2020
In the matter between:
(HIGH COURT MAIN DIVISION REF NO. 2563/2019)
(MAGISTRATE COURT REF NO: 102/2019)
Neutral citation: S v Khaebeb (CR 28/2020)  NAHCMD 150 (7 May 2020)
Coram: LIEBENBERG J and CLAASEN, J
Delivered: 7 May 2020
Flynote: Criminal law – Competent verdict – Section 262(2) of CPA - Accused charged with the offense of housebreaking with intent to commit a crime unknown to the State – Accused’s intent when entering, disclosed during the trial, or admitted - Accused convicted of housebreaking with the intent proven or admitted.
Suspended sentence - Condition of suspended sentence too wide. - Requirement that suspended sentence must be clear and unambiguous - Accused must know precisely what prohibited act will attract the risk of the suspended sentence being put into operation.
1. The conviction is set aside and substituted with a conviction of housebreaking with intent to steal.
2. The sentence is confirmed but amended to read as follows:
Two years’ imprisonment of which one year imprisonment is suspended for five years on condition that the accused is not convicted of housebreaking with intent to steal, committed during the period of suspension.
CLAASEN J (LIEBENBERG J concurring):
 This is a review matter in terms of section 302 (1) of the Criminal Procedure Act 51 of 1977, as amended, (the CPA).
 The accused was charged with the offense of housebreaking with the intent to commit a crime unknown to the State. The particulars of the charge are that, on or about 31 October 2019 the accused unlawfully and intentionally at or near Telecom location, in the district of Otjiwarongo, unlawfully and intentionally broke into and entered the house of Christofine Namases with the intent to commit a crime unknown to the State.
 The accused pleaded guilty and the court proceeded to question him in terms of section 112(1)(b) of the CPA. In respect of the element of intention, the record indicates the following questions and answers:
'Q: When you entered the house what was you intention to do inside?
A: my intention was to enter the house and get something to steal.
Q: Did you have any right or permission from the complainant to break and enter into her house?
A: No, it’s the stealing intention that brought me there.
Q: Did you know that by breaking and entering into someone else’s property is wrong and unlawful and that you could be punished for it by a court of law?
A: yes I knew this.’
 Upon completion of the questioning, the court was satisfied that the accused admitted all the allegations in the charge and convicted him as charged. After mitigation and aggravation the court imposed a sentence of two years’ direct imprisonment of which one year is suspended for five years on condition that the accused is not convicted of any housebreaking offense, or any offense with an element of dishonesty committed during the period of suspension.
 The reviewing judge addressed a query that comprised two issues. The first question was whether section 262(2) of the CPA does not find application? The second question revolved around the condition of the suspended sentence and in particular whether the portion of the condition ‘or any offense with an element of dishonesty’ does not amount to a vague condition?
 In reply the magistrate conceded that the conviction was an oversight and on the second question the magistrate merely referred to cases wherein such a condition was imposed.
 Section 262(2) of the CPA stipulates that:
‘If the evidence on a charge of housebreaking with the intent to commit an offense to the prosecutor unknown, whether the charge is brought under a statute or the common law, does not prove the offense of housebreaking with the intent to commit an offense to the prosecutor unknown, but the offense of housebreaking with the intent to commit a specific offense, the accused may be found guilty of the offense so proved.’
 In the matter of Thomas v State at para 16 this principle was eloquently expressed as follows:
‘Thus section 262(2) provides for a competent verdict that may be imposed on a charge of housebreaking with intent to commit an offense unknown to the state, where the accused’s intent when entering, becomes known during the trial, or is admitted by the accused. He or she may then only be convicted of housebreaking with the intent proven.’
 The recent review judgment of S v Araeb turns on the same issue and therein it is stated at para 7 that:
‘A case in point is S v Kharuxab. The facts of Kharuxab are similar to the present facts. That court relied on S v Andrews, where it was held that ‘admissions made by the accused during the questioning in terms of section 112(1)(b) … is part of the evidential material upon which a court could rely when applying section 262(2)’ The resultant effect was that the conviction was set aside and substituted with one of housebreaking with intent to steal.’
 In view of the above authorities, and the admission by the accused in this matter that his intention at the time of breaking into the house was to steal, the conviction herein will be altered accordingly.
 Turning to the second question raised in the query, it is a requirement of a condition that a suspended sentence must be clear and unambiguous so that an accused can know precisely what prohibited act will attract the risk of the suspended sentence being put into operation. This requirement as summarised in S v Cele  still has a ring of truth to it:
‘What one looks for in a condition suspending a sentence is certainty and it is both desirable and necessary that sentences should not be suspended on conditions which are vague or ambiguous … it should not be left to the accused and to the court which may be asked to put such suspended sentence into operation, to speculate as to the intention of the court which imposed the sentence.’
 In the matter of State vs Petrus a condition that the accused should not reoffend by committing ‘any drug related offense’ was held to be too wide.
 Regarding this type of condition used in the review matter at hand, the author Joubert in Criminal Procedure Handbook opined that:
‘It is undoubtedly more clear to specify the crimes which an accused should not repeat rather than to use phrases such as ‘crimes of which force is an element’ or ‘crimes of which dishonesty is an element’- cf Mjware 1990(1) SACR 388 (N) and Goeieman 1992(1) SACR 296 (NC).‘
 This court is in agreement with the approach that it is better to specify the offense. The phrase ‘crimes of which dishonesty is an element’ opens the door for a wide catalogue of offenses which poses problems for an accused who may not be privy to legal concepts such as elements and or all the offenses that incorporates that element.
 Though the court that imposes such a phrase as part of the suspended sentence will know what offenses are contemplated, the task of putting a suspended sentence into operation may be inherited by another court, who is then faced with speculating as to which offense may or may not be included.
 For these reasons the conviction is substituted with one of housebreaking with intent to steal. The sentence is confirmed, but the condition of suspension is amended as set out in the order below:
 It is ordered that:
(a) The conviction is set aside and substituted with a conviction of housebreaking with intent to steal.
(b) The sentence is confirmed but amended to read: Two years’ imprisonment of which one year is suspended for five years on the condition that the accused is not convicted of housebreaking with intent to steal, committed during the period of suspension.
 (CA 36/2016)  NAHCMD 31 (10 February 2017).
 (CR 101/2019)  NAHCMD 553 (12 December 2019).
 2008 (1) NR 345 (HC) st 546I-J.
 Cele 1964 (1) SA 640 (N).
 S v Petrus (CR 35/2015)  NAHCMD 266 (13 November 2015).
 Joubert Criminal Procedure Handbook 8th ed Juta 2007 p 305.