THE HIGH COURT OF NAMIBIA
NO.: CR 41/2012
the matter between:
COURT REVIEW CASE NO.: 101/2010)
SERIAL NO.: 167/2009)
J et SHIVUTE, J
J:  The
accused appeared in the Mariental district magistrates’ court
on a charge of ‘becoming intoxicated upon any road, street,
avenue, park through fare or public place’. He was convicted
of becoming intoxicated upon a public place and sentenced to twelve
months’ imprisonment. The court invoked section 112 (1) (b)
Act 52 of 1977. When the trial magistrate questioned the accused in
terms of section 112 1 (b) of the Act, he asked the accused whether
he knew that it was wrong to become intoxicated in a public place and
the accused responded that he did not know. He never knew.
directed a query to the magistrate how the court satisfied itself
that the accused admitted all the elements of the offence, if the
accused responded that he did not know it was wrong to become
intoxicated at a public place.
magistrate replied in the following terms:
“After perusing the
record and a research on the subject, and more specifically, studying
the case of State v De Blom (1977 (3) SA.513 (A)), the Magistrate
concedes that the ignorance of the legal provision pleaded by the
accused should have been upheld and section 113 entered for the state
to prove that the accused was not ignorant as such”.
 The learned
magistrate rightly conceded that he ought to have entered a plea of
not guilty in terms of section 113 of the Criminal Procedure Act, Act
51 of 1977. Section 113 of the Act, provides for the correction of
plea of guilty and states as follows:
“If the court at any
stage of the proceedings under section 112 and before sentence is
passed is in doubt whether the accused is in law guilty of the
offence to which he has pleaded guilty or is satisfied that the
accused does not admit an allegation in the charge or that the
accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge, the court shall record a
plea of not guilty and require the prosecutor to proceed with the
prosecution: Provided that any allegation, other than an allegation
referred to above, admitted by the accused up to the stage at which
the court records a plea of not guilty, shall stand as proof in any
court of such allegation”.
 In the subject
matter the accused raised a valid defence to the charge which
required the court to apply section 113. However, the court
overlooked the provision and proceeded to question the accused and
 The court
erred by not entering a plea of not guilty for the prosecution to
proceed with the prosecution to prove the charge against the accused.
 For the
foregoing reasons, the charge was not proved against the accused. It
follows that the conviction and sentence cannot be allowed to stand.
 In the result
the following order is made:
(1) The conviction
and sentence of (12) twelve months’ imprisonment is set aside.
(2) In terms of
section 312 (1) of the Criminal Procedure Act, the matter is remitted
to the magistrate to apply section 113 of the Criminal Procedure Act.
sentencing the accused the court is directed to take into account the
term of imprisonment served by the accused.