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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: S v ALWYN WILLEMSE | CR NO: 15/2021 | |
Division of Court: Main Division | ||
Heard before: Honourable Mrs Justice Shivute J et Honourable Mr Justice Miller AJ | Delivered on: 8 March 2021 | |
Neutral citation: S v Willemse (CR 15/2021) [2021 ] NAHCMD 98 (8 March 2021) | ||
IT IS ORDERED THAT:
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Reasons for the above order: | ||
SHIVUTE J (MILLER AJ concurring): [1] The accused was convicted on the strength of his guilty plea on one count of housebreaking with intent to steal and theft. He was thereafter sentenced to 36 months’ imprisonment of which 12 months are suspended for 5 years on condition that accused is not convicted of housebreaking with intent to steal and theft, committed during the period of suspension. On review, the following query was sent to the magistrate: ‘1. The accused was charged with housebreaking with intent to steal and theft. He pleaded guilty to the charge and was convicted as charged.
[2] In response to the query, the learned magistrate responded as follows : ‘2.1 During questioning in terms of section 112(1)(b) of Act 51 of 1977,as amended accused person informed the court on his own accord without being prompted that he is pleading guilty because he went to steal things without permission and as such when he went into detail explaining how he went about to steal the said things, the court was satisfied that his intention was indeed to steal.
intention since he indicated to the court that, that is what he did.
proceedings.
[3] There are several judgments in this jurisdiction that give guidance on the proper questioning in terms of s 112(1)(b) of the CPA and echo that magistrates should bear in mind the nature and purpose of the questioning to minimise the risk of an erroneous conviction on a plea of guilty by an unsophisticated accused. In S v Sindimba 1 the court at para 9 stated that: ‘The primary purpose of questioning the accused in terms of s 112 (1) (b) of the CPA following a plea of guilty, is to safeguard the accused against the result of an unjustified plea of guilty.2 Moreover, when the court questions the accused it must ensure that s/he admits all elements of the offence in such way that it enables the court to conclude for itself whether the accused is guilty of the offence charged. The accused’s answers must establish an unequivocal plea of guilty. If there is any doubt, a plea of not guilty should be entered.3 The function of the court is not to evaluate the answers as if it were weighing evidence, neither does it have to decide the truthfulness of the answers or draw inferences therefrom.4 [4] In applying the above principles to the present facts, although the accused took the goods when he entered the premises, it was not established through questioning by the court that at the time he was entering the premises, his intention was to steal. Since the accused was charged with housebreaking with intent to steal and theft, the intention of the accused at the time he was breaking into the premises must be established for the court to satisfy itself that the accused admitted all the elements of the offence. [5] Failure to establish the accused’s intention at the time he was entering the premises amounts to a misdirection .It follows that the conviction and sentence cannot be allowed to stand. [6] In the result, the following order is made :
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NN SHIVUTE JUDGE | PJ MILLER ACTING JUDGE |
1 S v Sindimba (CR 86/2020) [2020] NAHCMD 492 (2 November 2020.
2 The State v Kandjimi Hiskia Mangundu (CR 67/2016) [2016] NAHCMD 316 (17 October 2016).
3 S v Combo and Another 2007 (2) NR 619 (HC).
4 S v Kaevarua 2004 NR 144 (HC).