S v BONIFATIUS KONSTANTINOS
NO. CR /2011
THE HIGH COURT OF NAMIBIA
the matter between:
COURT REVIEW CASE NO. 43/2011
on: 25 February 2011
This matter was submitted on review pursuant to the provisions of
section 302 of the Criminal Procedure Act 51 of 1977. The accused was
charged with theft of which the annexure to the charge sheet thereof
reads as follows:
1 (in respect of accused 1)
the accused is guilty of the crime of theft. In that upon or about
of April 2010 and at or near Woermann Brock in the district of
Rehoboth the said accused did wrongfully unlawfully and intentionally
steal a bottle of Klipdrift with a value of N$87-99 the property or
in the lawful possession of Woermann Brock and or Martin Kaatangwa."
When the charge was put to the accused, he pleaded guilty and the
learned magistrate similarly convicted him on his plea of guilty,
disposed of the matter in terms of section 112(1)(a) of the said
Criminal Procedure Act and imposed a direct custodial sentence of
three (3) months imprisonment.
I directed the following query to the learned magistrate:
Why did the learned magistrate impose a direct imprisonment sentence
if the matter was disposed of in terms of Section 112(1)(a) of the
Criminal Procedure Act, 51 of 1977?
Did the learned magistrate enquire from the public prosecutor as to
whether or not he could proceed in terms of Section 112(1)(a) of the
said Criminal Procedure Act?"
The learned magistrate replied to the query as follows: (I quote
am responding to the Honourable Mr Justice Review remark letter dated
20 January 2011 regarding the above mentioned matter.
was charged and convicted of a S112(1)(a) Criminal Procedure Act
offence, My Lord. Upon conviction the Prosecutor informed the Court
that accused has many records of which one is similar to the one of
which accused is convicted.
did not inquire because I didn't know whether accused has records or
I only ask the prosecutor after conviction or judgment and he read
them to the Court.
hope my humble explanation will be understood by the Honourable Mr.
It is thus apparent from the answers of the learned magistrate that
he did not acquaint himself with the provisions of section 112(1)(a)
prior to and after the query. Had the learned magistrate acquainted
himself with the provisions of that section, he would have known what
the section provides and I believe, he would have answered the query
On query no 2, the magistrate replied that he did not enquire because
he did not know whether the accused had records or not. He continued
ask (sic) the prosecutor after conviction or judgment and he read
them to the Court." Further,
he said "I
hope my humble explanation will be understood by the Honourable Mr
answers tell again that the learned magistrate, never bothered to
read the section to apprise himself of the contents thereof.
Section 112(1)(a) together with sections 112(1)(b) and 115 are the
frequent used sections by the Courts. Even newly appointed
magistrates and public prosecutors are expected to know what these
sections provide. That being the case, I think it is appropriate to
quote the provisions of section 112(1)(a) for the benefit of the
and those other magistrates who are ignorant about the contents of
It provides as follows:
Where an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted on the
the prosecutor accepts that plea-
the presiding judge may, if he is of the opinion that the offence
does not merit the sentence of..........or the presiding judge,
regional magistrate or magistrate may, if he is of the opinion that
offence does not merit punishment of imprisonment or any other form
the option of a fine
a fine exceeding R300,
the accused in respect of the offence of which he has pleaded guilty
on his plea of guilty only and-
any competent sentence, other than thsentence of imprisonment or any
other form of detention without the option of a fine or a fine
with the accused otherwise in accordance with law;" (Emphasis
Meanwhile, the Criminal Procedure Amendment Act, 2010 (Act No 13 of
2010) which came into effect on 30 August 2010, amongst others, has
amended section 112 of the principal Act, in particular the
provisions of subsection (1)(a) by substituting the fine of not
exceeding N$300 for a fine not exceeding N$6000. Therefore, I urge
all magistrates to study the whole Criminal Procedure Amendment Act,
2010 to acquaint themselves with the changes to the principal Act,
brought about by the aforesaid Amendment Act.
No sentence of imprisonment or any other form of detention without
the option of a fine or a fine exceeding N$6000 is allowed if section
112(1)(a) is applied. The High Court has delivered many review
judgments on section 112(1)(a) and (b). Some have been reported in
the Namibian Law Reports while others still unreported. I am also
aware that a Training Officer has been appointed by the Magistrates'
Commission whose duty and functions are to train magistrates. The
Criminal Procedure Act 51 of 1977 is one of the aspects he is
concentrating on during Training Workshops. Similarly, I am again
aware that the same Training Officer went around to all Magistrates'
Courts and trained magistrates face to face in their offices after he
had identified the shortcomings of the particular magistrate.
Therefore, it is difficult to understand why some magistrates are
still making simple mistakes like the one in this Review case.
Hannah, AJ (as he then was) in S v
Aniseb and Another 1991
NR 203 at 205 I-J
this to say regarding Section 112(1)(a):
policy behind s 112(1)(a) is clear. The legislature has provided
machinery for the swift and expeditions disposal of minor criminal
cases where an accused pleads guilty. The trial court is not obliged
to satisfy itself that an offence was actually committed by the
accused but accepts his plea at face value. The accused thus loses
the protection afforded by the procedure envisaged in s 112(1)(b) but
is not exposed to only really
serious form of punishment:
page 206 A - B he proceeded on to say:
Court may not pass a sentence of imprisonment or any form
detention without the option of a fine
The message is crystal clear that if the Court applies section
112(1)(a) then that Court may not pass a sentence of imprisonment or
any other form of detention without
option of a fine and the fine imposed must not exceed N$300.00. That
a magistrate will act ultra
he or she imposes a direct imprisonment when section 112(1)(a) is
applied which is the situation in
incompetent sentence was passed by the learned magistrate in this
case because of the failure by the magistrate to engage the
prosecutor before he decided to dispose of the case in terms of
section 112(1)(a). If he had asked the prosecutor whether he
(prosecutor) was prepared to accept the plea, I believe the
prosecutor would have alerted the magistrate to the record of
previous convictions because the prosecutor was aware of the previous
convictions of the accused. Upon application of section 112(1)(a),
the magistrate was supposed to pretend as if the accused was a first
offender who did not have previous convictions when sentencing him.
Be that as it may, the accused has suffered injustice in that he has
to sit in jail for three (3) months to serve an incompetent sentence.
He was convicted and sentenced on 19 April 2010. Why the matter was
only submitted for review in February 2011 is not explained. Further,
it is also not clear whether the matter was transmitted for Special
Review in terms of section 304, because, under normal circumstances
the sentence imposed in the matter is not subject to automatic review
in terms of section 302.
I have previously indicated that the sentence is incompetent and as
such cannot be allowed to stand. However, due to the fact that the
accused served the sentence already, it will serve no purpose to
refer the matter back for sentencing afresh by the magistrate. In
terms of section 304(2)(c)(iv) of Act 51 of 1977, this Court has the
power to impose a sentence the magistrate's court ought to have
imposed in this matter at the
In the result, I make the following order:
conviction is in order and is confirmed.
sentence of three (3) months imposed by the learned magistrate is
set aside and the following sentence is substituted for:
Three Hundred Namibia dollars (N$300.00) or three (3) months
imprisonment wholly suspended for a period of three (3) years on
condition that accused is not convicted of theft committed during the
period of suspension.