Court name
High Court
Case number
22 of 2012
Title

S v Wahengo (22 of 2012) [2012] NAHC 278 (26 October 2012);

Media neutral citation
[2012] NAHC 278
Coram
Liebenberg J
Tommasi J













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
NORTHERN LOCAL DIVISION, OSHAKATI








REVIEW JUDGMENT



Case no: CR
22/2012








In the matter between:








THE STATE



and



WAHENGO JOSEPH
......................................................................................ACCUSED



High
Court NLD review case ref no:
225/2011








Neutral citation: The
State v Wahengo
(CR 22/2012) [2012] NAHCNLD 1 (26 October 2012)



Coram: LIEBENBERG
J and TOMMASI J



Delivered: 26
October 2012








Flynote: Criminal
Procedure – Plea of guilty — Questioning in terms of s
112(1)(b) of Criminal Procedure Act, 1977 (Act 51 of 1977) —
When questioning an accused in terms of this section, court must be
satisfied that accused admits all elements of offence before finding
an accused guilty.– Review – the court has a discretion
to order remittal in terms of section 312 of the Act where same would
result in an injustice








Summary: The
accused pleaded guilty in terms of section 112(1)(b) of the
Act but did not admit that he assaulted the complainant with the
intention to do her grievous bodily harm. The magistrate, after
having been requested to provide reasons for conviction, replied
after almost a year and conceded that he had erred to convict the
accused. The court held that the magistrate could only convict if he
was satisfied that the accused was indeed guilty of the offence to
which he pleaded guilty and that a remittal would result in an
injustice.










ORDER





The conviction and
sentence are set aside.















REVIEW JUDGMENT










TOMMASI J (LIEBENBERG J
concurring):



[1] This
matter came before me on automatic review from the district court of
Oshakati. The accused was convicted of assault with the intent to do
grievous bodily harm and sentenced to pay a fine of N$700 or in
default of such payment to two months imprisonment.



[2]
The magistrate was requested to give reasons why he was satisfied
that the accused had admitted during questioning in terms of section
112(1)(
b)
of the Criminal Procedure Act, 1977 (Act 51 of 1977) that he had the
requisite intention to do the victim grievous bodily harm. The
accused admitted the following: he assaulted the complainant by
hitting her once with his fist below her left eye; the blow caused
swelling to the area around the eye; he hit her because she refused
to go home; he had no right to hit her; and that he knew that it was
unlawful to assault the complainant but stated that he was under the
influence of alcohol. Not only did the accused not admit that he had
the intention to do the complainant grievous bodily harm but appeared
to have raised a possible defence that he lacked the capacity to
appreciate the wrongfulness of his conduct due to the consumption of
alcohol. The magistrate should have noted a plea of not guilty in
terms of section 113 of the Act.



[3]
The magistrate, correctly, conceded that he had erred. In terms of
section 112(1)(
b)
the magistrate may only convict if he or she is satisfied that the
accused is guilty of the offence to which he or she has pleaded
guilty. The magistrate could not have been so satisfied where the
accused did not admit all the allegations contained in the charge,



[4] The conviction of the
accused of assault with the intent to do grievous bodily harm is
therefore not in accordance with justice and stands to be set aside.



[5]
Section 312 of the Act provides that where a conviction and sentence
under section 112 are set aside on review on the ground that any
provision of subsection (1)(
b)
or subsection (2) of that section was not complied with, or on the
ground that the provisions of section 113 should have been applied,
the review court shall remit the case to the court by which the
sentence was imposed and direct that court to comply with the
provision in question or to act in terms of section 113, as the case
may be.



[6] The accused was
sentenced on 6 September 2011 and the matter was received by this
Court for review on 19 September 2011. This court requested reasons
for the conviction which reasons were furnished to this court almost
one year later on 23 August 2012. There is no indication on the
record that the accused had paid the fine and it must then be assumed
that the accused had already served the two months imprisonment.



[7]
To remit the matter to the magistrate’s court at this late
stage would result in an injustice. The review procedure is
essentially designed to safeguard an accused against an unjust
conviction and sentence. To this end section 303 of the Act provides
that the clerk of the court should, within one week remit the record
and remarks, if any, of the magistrate to the registrar who should
lay it before a judge in chambers as
soon
as possible
.
It defeats the entire purpose of the review process if this court is
not placed in a position to ensure that the unrepresented accused has
been convicted and sentenced in accordance with justice. This court
has already indicated
1
that
it retains the discretion not to order a remittal if the
circumstances of the case are such that the remittal would result in
an injustice.



[8] I am of the view that
it would be inappropriate under these circumstances to remit this
matter to the magistrate’s court. The conviction and sentence
are therefore set aside.


















. . . .



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



MA TOMMASI



Judge




























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



JC LIEBENBERG



Judge




1The
State v Thomas Sheelekeni Patric (unreported) case no CR11/2012
delivered on 16 March 2012; The State v Muyambu Kativa (unreported)
case no CR 14/2012 delivered on 22 March 2012; Also
see
S v Mshengu
2009 (2) SACR 316 (SCA)