Court name
High Court
Case number
54 of 2012
Title

S v Mukuzi (54 of 2012) [2012] NAHC 180 (21 June 2012);

Media neutral citation
[2012] NAHC 180
Coram
Parker J
Shivute J












IN
THE HIGH COURT OF NAMIBIA


HELD
IN WINDHOEK


CASE
NO.: CR 54/2012






In
the matter between:


THE
STATE


and


LIYEMISA
BEAUTY MUKUZI






(HIGH
COURT REVIEW CASE NO.: 1477/2010)


(MAGISTRATE’S
SERIAL NO.: 77/2010)






CORAM: PARKER,
J
et SHIVUTE, J



Delivered on: 2012
June 21











REVIEW
JUDGMENT



SHIVUTE,
J:
[1] The
accused person appeared before Katima Mulilo Magistrate’s Court
and pleaded guilty to a charge of malicious damage to property
,
read with sections 1 and 21 of the Combaing of Domestic Violence Act,
(Act 4 of 2003) and he was convicted as such. He was sentenced to a
fine of N$1500.00 (one thousand five hundred Namibia dollars) or in
default of payment 6 (six) months imprisonment.



[2] The following
query was directed to the learned magistrate.



1. On which
grounds was the accused convicted of malicious damage to property
,
read with sections 1 and 21 of the Combating of Domestic Violence
Act, if no questions were asked pertaining to whether there was a
domestic relationship between the accused and the complainant?



2. How did the
court satisfy itself that the accused had an intention to injure the
complainant in his property?



[3] The learned
magistrate responded as follows:



I agree that accused
should not have been convicted of malicious damage to property read
with sections 1 and 21 of the Combating of Domestic Violence Act
because I omitted to establish as to whether there was a domestic
relationship or not. I further concede that the accused’s
intention to injure the complainant in her property was not
established as that question was not put to the accused”.



[4] Section 112
(1) (b) of the Criminal Proceedure Act was designed to protect an
accused especially an uneducated and undefended accused from the
adverse consequences of an ill-considered plea of guilty (S v
Basson
1978 (2) SA 51D (C) 512 G). It has also been rightly
pointed out that questioning in terms of section 112 (1) (b) can also
operate in favour of the accused. The questions and answers must at
least cover all the essential elements of the offence which the State
in the absence of a plea of guilty would have been required to prove
(S v Mkhize 1978 (1) SA 264 (N) 267).



[5] In
this matter there is no single evidence which indicates that the
accused person was in a domestic relationship with the complainant.
Therefore the accused could not be said that he violated the
Combating of Domestic Violence Act. Furthermore
,
the intention to injure the complainant in his property is an
essential element of the charge and it was not covered during the
application of section 112 (1) (b). I am not satisfied that the
charge of malicious damage to property was proved against the
accused. I am therefore of the view that the accused was improperly
convicted and the conviction cannot be allowed to stand.



[6] In
the premises the following order is made:



(1) The
conviction and sentence are set aside.



(2) It is not
necessary to remit the matter to the learned magistrate to enter a
plea of not guilty in terms of section 113 of the Act because the
accused has already served his sentence.





__________________



SHIVUTE, J

















I
agree.






















___________________


PARKER,
J