Court name
High Court
Case number
64 of 2012
Title

S v John Paul (64 of 2012) [2012] NAHC 193 (16 July 2012);

Media neutral citation
[2012] NAHC 193
Coram
Parker J
Shivute J












CASE
NO.: CR 64/2012


IN
THE HIGH COURT OF NAMIBIA






HELD
IN WINDHOEK


In
the matter between:


THE
STATE


and


SAMARIA
JOHN PAUL






(HIGH
COURT REVIEW CASE NO.:698/2011)


(MAGISTRATE’S
SERIAL NO.: 61/2010)






CORAM: PARKER,
J
et SHIVUTE, J



Delivered on: 2012
July 16











REVIEW
JUDGMENT



SHIVUTE,
J:
[1] The accused was charged with the offence of
housebreaking with intent to steal and theft in the district Court,
Rundu and convicted as such.



[2] I directed the
following query to the learned magistrate:



How did the
Court satisfy itself that the accused broke itno the house? How did
he gain entry?”



[3] The learned
magistrate replied as follows:



From my
perspective I convicted the accused due to the fact that the accused
had admitted in terms of section 115(2)(b) of Criminal Procedure Act
51 of 1977 that he broke and entered into the house of the
complainant but only stole item (face scrub) from the list of
goods that were alleged to have been stolen. The complainant
testified that he left his house to go to work and later discovered
that his house was broken into. Accused in his cross examination of
the complainant raised the issue of the cell phone which he said was
not in its packaging box as only its box was inside the house in the
corner, whilst the complainant testified that he left the cell phone
in its packaging box on the table together with his toiletries.



Furthermore the
accused himself in his testimony admitted to have broken into and
entered the complainant’s house but that he only took the face
scrub
. Now looking at that evidence it is very clear that the
accused did indeed break into the house as he himself never denied
that the item that was found with him was among the goods that were
reported as having been stolen by the accused. Therefore the
circumstantial evidence together with the fact that when one invokes
the doctrine of recent possession the evidence points to the accused
as being the culprit.



Moreover in S
v Mjodi 1981 (3) SA 1233 (A)
it is stated that the
legislature intended a formal admission to be proof in the sense that
no further or better proof is required. In S v Hendricks 1995
(2) SACR 177 (A)
it was pointed out that the consent of the
accused is a prerequisite for admissions made in terms of section 115
(2) of the Criminal Procedure Act 51 of 1977. In this particular
case, before I recorded any admissions I ascertained from the accused
on whether if certain allegations that he was not disputing could be
recorded as formal admissions after the consequences of such
admissions was explained to him. The accused consciously stated that
he had no objections some of the allegations being recorded as formal
admissions.



However I also see
your point My Lord that the breaking element of the offence was not
outlined in detail as to how it was done. May be I over emphasized
or attached too much weight to the accused’s own admissions and
overlooked that aspect.”



[4] The accused
might have admitted that he broke and entered into the house but this
is not sufficient to warrant a conviction for housebreaking with
intent to steal. Breaking and entering are technical words. For
breaking to take place there must be a removal or displacement of any
obstacle which bars entry to the stracture and which forms part of
the structure itself or premises. (The State v Meyeza and Another
1962 (3) SALR at 386)



There is no
breaking if one merely walks through an open door or climbs through
an open window or stretches one’s arm through an open hole.
Again a mere breaking without entering is not sufficient to
constitute the crime. The entry is complete the moment the accused
has inserted any part of his body, or any instrument he is using for
that purpose, into the opening with the intention of exercising
control over some content of the building or structure.



(See Snyman,
Criminal Law 4th edition at 543 and 544.)



[5] In this case,
there is no single evidence indicating how the complainant’s
premises was broken into. Although the complainant was called to
testify he could not tell the court how his premises was broken into,
because he was told to confine himself to the items which were taken
from the house. The State as well as the Court were of the opinion
that the essential element of breaking was established by the
accused’s admission that he broke into the house.



[6] There is no
evidence as to how the accused gained entry into the house and it
follows that the State did not prove that the house was broken into.
A theft of the goods in question, was however, proved. The result of
this is that the verdict of housebreaking with intent to steal and
theft has to be set aside and replaced with the verdict of guilty of
theft. The sentence of N$2000.00 (two thousand) Namibia dollars fine
in default of payment 8 (eight) month’s imprisonment is to be
altered.



[7] In the result
the following order is made:



(1) A conviction
of housebreaking with intent to steal and theft is set aside and
substibuted to a verdict of “guilty of theft”.



(2) The sentence
of N$2000.00 (two thousand) Namibia dollars fine or in default of
payment 8 (eight) months’ imprisonment is substituted to a fine
of N$1200.00 or 6 months’ imprisonment.


















The sentence is
backdated to the date of sentence by the court a quo.


















__________________



SHIVUTE, J















I
agree.






















___________________


PARKER,
J