Court name
High Court Main Division
Title

S v Pieters (4) () [2020] NAHCMD 386 (25 August 2020);

Media neutral citation
[2020] NAHCMD 386

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

 

Case Title:

The State v Melvin Fritz Pieters & Elton Riet

Case No:         CR  63/2020

Division of Court:

Main Division

Heard before:

Honourable  Mr. Justice Ndauendapo, J et

Honourable  Mr. Justice Unengu, AJ

Delivered on:

25 August 2020

 

(HIGH COURT MAIN DIVISION REVIEW REF NO.   (1036/2020)

 

 

Neutral citation:      S v Pieters (CR 63/2020) [2020] NAHCMD 386 (25 August 2020)

 

The order:

(i)         The conviction and sentence of accused 1 are set aside.

(ii)        The matter is remitted to the magistrate’s court Windhoek to be placed before the same magistrate to enter a plea of not guilty and require the prosecutor to proceed with the prosecution.

(Iii)       The conviction and sentence of accused 2 are confirmed.

 

Reasons for order:

UNENGU, AJ (NDAUENDAPO, J concurring):

[1]        This matter was submitted for automatic review following the provisions of s 112(1) (b) of the Criminal Procedure Act, 51 of 1977.[1] Accused 1 and 2 were charged with the crime of theft of an electrical box valued at N$ 5000. They pleaded guilty to the charge, questioned in terms of s 112(1) (b) of the Criminal Procedure Act, 51 of 1977 and after the questioning, accused 1 was found guilty and convicted of receiving stolen property, a competent verdict of theft and accused 2 was found guilty and convicted as charged.

[2]        Accused 1 was sentenced to pay a fine of N$ 2000 or 8 months imprisonment and accused 2, a fine of N$ 5000 or 24 months imprisonment of which half thereof suspended for a period of three years on the usual conditions.

[3]        On review, I found the conviction of accused 1 not to be in accordance with justice and thus sent a query to the learned magistrate to explain why accused 1 was not found guilty of theft of the electrical box in view of the fact that theft is a continuous crime.

[4]        Similarly, I wanted the magistrate also to explain whether an accused person could be found guilty of a competent verdict after the questioning in terms of s 112(1)(b).

[5]        In his response to the query, the learned magistrate conceded that it was an oversight on his part for having convicted accused 1 on the competent verdict of receiving stolen property and requested this court to substitute the conviction of receiving stolen property with that of theft, the crime to which he had pleaded.

[6]        It is trite that after the questioning in terms of s 112(1)(b), the magistrate if not satisfied that the accused in law is guilty of the offence to which the accused 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 the accused has a valid defence to the charge, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution.

[7]        In casu, the learned magistrate failed to record a plea of not guilty when accused 1 answered that he received the electrical box from accused 2 well knowing that it was stolen and as such the magistrate has committed an irregularity. However, his request to substitute the conviction on receiving stolen property with theft by this court, cannot be granted. The right thing to do in the circumstances of the matter is to sent the matter back to the same  magistrate with a direction to enter a plea of not guilty in terms s 113 to require the prosecutor to proceed with the prosecution.

[8]        In the result, the following order is made:

(i)         The conviction and sentence of accused 1 are set aside.

(ii)        The matter is remitted to the magistrate’s court Windhoek to be placed before the same magistrate to enter a plea of not guilty and require the prosecutor to proceed with the prosecution.

(Iii)       The conviction and sentence of accused 2 are confirmed.

E P  UNENGU

ACTING JUDGE

N  NDAUENDAPO

JUDGE

 

 

 


[1] Act 51, of 1977.