Court name
High Court
Case number
82 of 2012
Title

S v Verimanga (82 of 2012) [2012] NAHC 256 (08 October 2012);

Media neutral citation
[2012] NAHC 256
Coram
Geier J
Parker AJ













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CR 82/2012








In the matter between:








THE STATE



and



TJILOMBO VERIMANGA
..............................................................................ACCUSED








Neutral citation: The
State v Verimanga
(CR 82/2012) [2012] NAHCMD 14 (08 October 2012)








Coram: GEIER J et
PARKER AJ



Delivered: 08
October 2012








Flynote: Criminal
law – mens rea – State failing to prove mens rea in court
a quo – Sentence and conviction set aside on review.








Summary: Accused
has been charged, convicted and sentenced of the offence of forgery
and uttering related to the admitted alteration/correction of the
accused’s birth date on a Grade 10 certificate – Accused
maintaining that he did not know that such conduct was unlawful –
Prosecution not challenging such evidence.








Held: that the accused’s
version indicating a lack of criminal intent had to be accepted as
being reasonably possibly true.








Held: that the State has
failed to prove the element of mens rea beyond reasonable doubt.








Held: that it followed
that the conviction and sentence imposed by the court a quo on 4 June
2010 had to be set aside and that the accused be acquitted.















ORDER















The conviction and
sentence imposed by the court a quo on 4 June 2010 is set aside.















JUDGMENT















GEIER J (PARKER AJ
concurring):








[1] The
accused in this matter was charged with the crime of forgery and/or
uttering forged documents knowing it to be forged in that it was
alleged that on an unknown date in 2006,
at
or near Rundu charge office,
in the
district of Rundu,
the accused unlawfully,
falsely and with the intent to defraud and to the prejudice of
Shiluwe Elizabeth forged an instrument in writing namely a Junior
Secondary Certificate.








[2] When the charge was
put to the accused he pleaded guilty. When questioned by the court he
explained that he had tried to correct an error on the certificate as
it did not reflect his date of birth correctly. He admitted having
changed the date of birth with a pen. He explained further that he
had gone to the police station to have his papers certified and that
is when the police officer pulled him aside whereafter he was then
arrested and charged.








[3] The accused explained
further that ‘I just changed because the things was wrong and I
thought I could correct it’








[4] As the court thus was
not satisfied that the accused had admitted all the elements of the
charge the plea of guilty was altered to one of not guilty in terms
of section 113 of the Criminal Procedure Act 51 of 1977.








[5] The State called one
witness only, namely, Siluwe Elizabeth Sinti a police officer who
worked at the charge office on the day when the accused came to have
his documentation certified. In evidence she stated that:








‘ … on
the day in question the accused before came to certify his documents
and I realised that the document was tampered with, it was scratched
and on one of the names and the age. And therefore I told him that he
was under arrest and I explained his rights to him.



Question
– what explanation did he give you?



Answer
– he told me that he did it himself and I must forgive.’








[6] The junior
certificate in question was then handed in as evidence.








[7] Although the accused
person, when cross-examining the police officer, put it to him that
he had just come with 2 certificates, one of which was the handed in
grade 10 certificate, nothing further of significance emerged from
such cross-examination.








[8] The State then closed
its case and the accused testified as follows:








upon
finding myself guilty of forgering my grade 10 certificate I did it
myself and I did not know of the consequences and I did that to
correct where it was mistaken because as I said, I never knew that if
I did that it was unlawful and until last year when I took my
documents to the police station to be certified and at the same time
it is whereby I was arrested by the police officer. And even the time
I was arrested I never knew it was wrong and when I was arrested it
is when it was explained to me. I am guilty because what I did was
wrong and I accept that it was a mistake and also that was not told
before that.’








[9] During
cross-examination the prosecution did not attack the accused’s
denial that he did not know what he did was wrong.








[10] It was against this
background that the court then nevertheless proceeded to find the
accused guilty as charged.








[11] When the matter came
up for automatic review the learned reviewing judge, inter alia, also
questioned the basis on which the accused person was found to have
‘had the criminal intent and was aware that his conduct was
unlawful when he corrected the document’.








[12] In response to such
query the learned magistrate stated:








‘… Furthermore
the Grade 10 certificate can be categorized as being both a private
document and at the same time state document, therefore accused had
no right vested in him to alter the certificate as it still remained
the property of the National Examination and Assessment Directorate.
Moreover it is clearly endorsed on the Certificate that it was issued
without any erasures or alterations and as such any alterations by an
unauthorised body or individual rendered the Certificate invalid. In
addition accused was literate and surely must have read the
conditions of award of the Certificate. It is also general knowledge
that national or state documents can only be corrected by the issuing
institutions and not the individual holders of such documents
themselves.



Therefore
accused knew that the grade 10 Certificate was not his and altered it
to make it look as if it was his and such had the necessary intention
and his conduct was unlawful.’








[13]
With the greatest respect to the learned magistrate it does not
emerge from the record that it was ever put to the accused person
that he must have been aware of the conditions endorsed on the
certificate to the effect that any
such
alterations by an unauthorised body or individual would render the
certificate invalid and that the accused therefore must have known
that he had no right to effect changes to the document.








[14] Also in regard to
the imputed public knowledge relating to the conditions endorsed on
the certificate the record reflects that no cross-examination by the
State or questions by the court ever focused on this issue on which
the conclusion – that the accused knew that his conduct was
unlawful – was also based. It is in any event doubtful whether
or not a court can take judicial notice of ‘general knowledge’
to the effect that ‘national or state documents can only be
corrected by the issuing institutions and not the individual holders
of such documents’?








[15] What was clearly
placed in issue through the numerous contentions on the part of the
accused was that he did not know that it was wrong to correct his
incorrectly reflected date of birth on the Grade 10 certificate in
question and that he did not know what he did was unlawful. This
evidence, in my view, squarely placed an onus on the State to prove
the criminal intent of the accused beyond a reasonable doubt.








[16] This evidence was
however never challenged by the State nor questioned by the court.








[17] In such
circumstances it emerges that the accused’s denials in respect
of having had the requisite criminal intent, at the relevant time,
must be accepted as being reasonably possibly true.








[18] This, by the same
token means that the State has failed to prove this element of the
charge beyond reasonable doubt.








[19] It follows that the
conviction and sentence imposed by the court a quo on 4 June 2010 is
set aside.























----------------------------------



H GEIER



Judge


















----------------------------------



C PARKER



Judge (Acting)