Court name
High Court
Case name
S v Nicanor and Others
Media neutral citation
[2007] NAHC 201















CASE
NO.: CR 172/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE



versus






1. AMUTENYA
MEKONDJO NICANOR


2. ONESMUS
THOMAS


3. MWATILE
NIITEMBU


4. MATHEUS
NIITEMBU






(HIGH
COURT REVIEW CASE NO.: 1785/05)


CORAM:
MAINGA, J et
VAN
NIEKERK, J



Delivered on:
2007-12-13



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1]
The four accused were convicted in the Ondangwa magistrate's court on
four counts of housebreaking with intent to steal and theft and one
count of housebreaking with intent to commit an offence unknown to
the State. The counts were taken together for sentence and the
accused were sentenced to five years imprisonment of which two years
are conditionally suspended.






[2] The
accused pleaded guilty to all the charges. During the questioning in
terms of section 112(1)(b) of the Criminal Procedure Act, the accused
all denied that they entered the premises. They admitted that they
broke an outer door, but failed to break the inner door. The
magistrate did not ask any questions to determine whether there was
an entering of the premises between the outer and inner door. The
magistrate concedes that the element of "entering" was not
admitted and suggests that the conviction be altered to one of an
attempt to commit the offence in question. I agree that this is the
proper course to take.





[3] The
result is the following:






1. The convictions
of all four accused on counts 1, 2, 3 and 4 are confirmed.





2. The
convictions of all four accused on count 5 are set aside and
substituted with convictions of Attempted housebreaking with intent
to commit an offence unknown to the State.







3. The sentences
of all the accused are confirmed.













______________________________



VAN NIEKERK, J






I agree










_______________________________



MAINGA, J