Court name
High Court
Case name
S v Kharuxab
Media neutral citation
[2007] NAHC 189











CASE NO.: CR 120/07



IN THE HIGH COURT OF NAMIBIA






In the
matter between:






THE STATE



versus



MANFRED KHARUXAB ACCUSED



(HIGH COURT REVIEW CASE NO.: 616/2007)







CORAM: MAINGA, J et VAN NIEKERK, J


Delivered
on: 2007/08/10



___



REVIEW JUDGMENT



VAN NIEKERK, J:





[1] The
accused in this matter was charged with the offence of housebreaking
with intent to commit a crime unknown to the State. The particulars
of the offence are that the accused broke into the shop of Piet
Muller at or near Leonardville in the district of Gobabis on or about
29 April 2007. The accused pleaded guilty and was questioned in
terms of section 112(1)(b) of the Criminal Procedure Act, 51 of 1977
(“the Act”), as follows: -






Q: Do
you understand the charge against you?



A: Yes.


Q: Are
you forced to plead guilty?



A: No.



Q: Did you on 29/4/07 enter the
complainant’s shop?


A: Yes.


Q: How
did you enter?






A: I entered through the ceiling
of the toilet which I cut open.



Q: Were you given permission to
enter?


A: No.


Q: Why
did you enter?


A: I
wanted to steal.



Q: Did you manage to steal
anything?



A: No.


Q: Did
you realize that what you were doing was wrong and can be punished?


A: Yes.


Q: It
is alleged that Mr. Piet Muller is the complainant. Do you agree or
dispute?


A: I
agree.





Court
satisfied that accused admits to all the elements of the offence.”






[2] When I
received the matter on review I asked the trial magistrate whether
the accused should not have been convicted of housebreaking with
intent to steal and theft. The learned magistrate concedes that he
should have done so. In my view the concession is correctly made.





[3] Section
262(2) of the Act provides: -







If the evidence on a charge
of housebreaking with intent to commit an offence to the prosecutor
unknown, whether the charge is brought under a statute or the common
law, does not prove the offence of housebreaking with intent to
commit an offence to the prosecutor unknown but the offence of
housebreaking with intent to commit a specific offence, the accused
may be found guilty of the offence so proved.”







[4] In S v Andrews 1984 (3) SA 306 (E), a case which presented
the same facts as the one before me, KANNEMEYER,
J (with SMALBERGER, J, as he then was) in effect
held that the admission by the accused during the questioning in
terms of section 112(1)(b) namely, that he broke in with the
intention to steal, is part of the evidential material upon which a
court could rely when applying section 262(2). The Andrews
case was followed and applied in S v Kesolofetse and another
2004 (2) SACR 166 (SCA), a similar case where the answers of the two
accused during the











questioning
showed quite clearly that they broke into the premises with the
intent to steal. In that case the following was said (at p168): -






[6] In my view, the
magistrate was therefore wrong to convict the accused in this case of
the crime of housebreaking with intent to commit a crime to the
prosecutor unknown, for the simple reason that the 'evidence' did not
prove that offence.





[7]
Quite apart from this it would obviously be senseless, and in fact
misleading for record purposes, to convict an accused on the basis of
his or her having had the intention to commit a crime to the
prosecutor unknown, where, at the end of the day, it is known to not
only the prosecutor but indeed also to the court what the intended
crime was (compare
S v
Wilson
1968 (4) SA
477 (A) at 481F and the remarks in Milton
South
African Criminal Law and Procedure

vol II 3rd ed at 806 - 7 and fn 146 at 807).







[8] It is obviously with this in
mind, and to do away with the necessity of first amending the charge,
that s 262(2) of the Criminal Procedure Act was enacted and I am in
respectful agreement with the authors of Kriegler and Kruger
Hiemstra
Suid-Afrikaanse Strafproses

6th ed, where, at 666 and with reference to the provisions of s
262(2) of the Criminal Procedure Act, it is remarked:




'Die
artikel sê ''kan die beskuldigde aan die aldus bewese misdryf
skuldig bevind word'', maar dit is een van die gevalle waar
kan
gelees sal moet word as
moet.
Dit sou sinloos wees om, as 'n bepaalde opset bewys word, dit nie in
die bevinding te vermeld nie.'




(See
also
South African
Criminal Law and Procedure

(
op cit
fn 235 at 814).)




[9]
It is so that the unrepresented accused were not informed of the
possibility of such a competent verdict by the magistrate (see
S
v Kester
1996 (1)
SACR 461 (B) at 469h - 470c), but I am satisfied that this failure
did not lead to any prejudice in this case.”






[5] I
respectfully agree with the approach taken in these cases. In my view
there is also in this case no prejudice to the accused by convicting
him for the offence which he admitted during the questioning process.


[6] The
accused was sentenced to a fine of N$600 or to six months
imprisonment. I shall not change the sentence.








[7] In the
result I make the following order: -






1. The conviction is set aside and substituted with a conviction of
housebreaking with intent to steal.





2. The
sentence is confirmed.















___________________________


VAN
NIEKERK, J



















I agree.

















_____________________________


MAINGA,
J