Court name
High Court
Case number
CRIMINAL 137 of 2007
Case name
S v Jackson
Media neutral citation
[2007] NAHC 183











CASE
NO. CR 137/07



IN
THE HIGH COURT OF NAMIBIA







In
the matter between:





THE
STATE






versus






FRANS
DANIEL JACKSON







(HIGH
COURT REVIEW CASE NO.: 957/2007)







CORAM: MULLER,
J.
et
SILUNGWE, A.J.






Delivered
on: 2007.09.11


_______________________________________________________________



REVIEW
JUDGMENT






MULLER,
J.:





[1] The
accused was charged in terms of Section 4 (1) of Ordinance 12 of
1956, namely possession of a dangerous weapon, to wit a knife. He
pleaded guilty and was questioned by the magistrate in terms of
Section 112 (1)(b) of the Criminal Procedure Act, no. 51 of 1977
(CPA). He was convicted and sentenced on 26 April 2007 to 6 months
imprisonment after no previous conviction was proved.






[2] The
questions in terms of Section 112 (1)(b) of the Criminal Procedure
Act and the answers thereto are the following:






“Q: Why
do you plea guilty to the charge?


A: Because
I was found in possession of a knife.


Q: And
it was at Ondangwa police cells on 11/04/2007?


A: Yes.


Q: Why
did you possess a knife?


A: I
was just using to cut my things.


Q: What
type of a knife?


A: And
it was silver.



Q: You
were aware that you are not suppose to possess a



knife
while?



A: Yes.


Q: How
did you get hold of the knife?


A: I
came with it in from outside and at Ondangwa.”






[3] I
directed the following question to the presiding magistrate on 6 July
2007:






On
what basis was the court satisfied that all the elements of the
offence were admitted?”






[4] My
clerk established from the magistrates office, Ondangwa, that the
accused was in custody until his release on 24 August 2007.





[5] In
the light of this situation justice demands review although the
accused had already served a sentence which was not in accordance
with justice, as will more clearly appear from the rest of this
judgment.





[6] It
is certainly not an offence to possess a knife. The offence created
by Section 4 (1) of the said Ordinance contains certain elements
which should be proved. One of these is that he must have had the
intent to use it for an unlawful purpose. This element was never
admitted by the accused during the Section 112 (1)(b) questioning.
The reason that he provided was that he used it to “cut my things”.
The fact that he had the knife at the Ondangwa police cells does not
assist, but could have been used in a follow-up question, but was not
done.





[7] It
is consequently clear that the accused could not have been convicted
on this charge on the basis of his answers in response to the Section
112 (1)(b) questioning. The conviction has to be set aside and so
has the sentence. It is unfortunate that the accused already served
a custodial sentence for a wrong conviction, but in the circumstances
this Court cannot do anything else than setting it aside so that this
conviction and sentence are deleted from his record.





[8] The
following orders are made:






(a) The
conviction on the charge of unlawful possession of a dangerous weapon
in contravention of Section 4 (1) of Proclamation 12 of 1956 is set
aside.





(b) The
sentence imposed by the Magistrates Court Ondangwa on 26 April 2007
of 6 months imprisonment is set aside; and





(c) No
conviction or sentence as imposed by the Magistrate Ondangwa, on 26
April 2007 should appear on any criminal record of the accused.















MULLER,
J.






I
agree








SILUNGWE,
A.J.