Court name
High Court
Case name
Kondo v S
Media neutral citation
[2012] NAHC 91
Judge
Liebenberg J
Tommasi J













CASE NO.: CA 79/2010



Reportable







IN THE HIGH COURT OF NAMIBIA:



NORTHERN LOCAL DIVISION



HELD AT OSHAKATI







In the matter between:











JOHNY JOROMIN NDETAPO KONDO
…...........................................APPELLANT







and







THE STATE
…...................................................................................RESPONDENT











CORAM: LIEBENBERG, J et
TOMMASI, J.







Heard on: 23 March 2012



Delivered on: 30 March 2012











APPEAL JUDGMENT















LIEBENBERG,
J.:
[1]
The appellant was legally represented when he appeared in the
Regional Court sitting at Tsumeb on a charge of rape in contravention
of s 2 (1)(a) of the Combating of Rape Act.
1
He was convicted on
his plea of guilty and sentenced to ten years’ imprisonment. He
now appeals against his sentence.







[2] Ms Horn
represents the
appellant
amicus
curiae
and
the Court is indebted for her assistance. Mr
Shileka
appears
for the respondent.







[3] Appellant has
withdrawn his original notice of appeal and has substituted it with a
new notice filed on 16 March 2012, together with an application for
condonation of the non-compliance with the rules.
2
The application is
supported by an affidavit in which appellant sets out reasons as to
why the appeal was filed out of time and the prospects of success on
appeal. The gist of appellant’s deposition is that he was
unfamiliar with the procedure as to how an appeal must be launched
and it was only when his present legal representative came to his
assistance, that a proper notice of appeal was drawn in which valid
grounds of appeal are set out. Respondent concedes that in the
absence of proof on record showing that any explanation was given to
the appellant at the end of the trial, either by the court or by his
legal representative at the time, he should be given the benefit of
doubt. We are in agreement and in the circumstances condonation will
be granted.







[4] The magistrate’s statement
in terms of Rule 67 (5) addresses the grounds of appeal raised in the
amended notice but for reasons, which will soon become clear, there
is no need to deal with the statement or additional reasons advanced
in this judgment.







[5] The appeal is based on the
following three grounds:








  • The magistrate erred in not taking
    the appellant’s personal circumstances and mitigating factors
    into account; alternatively, giving insufficient weight thereto;



  • The magistrate over-emphasised the
    seriousness of the offence and the interests of society (at the
    expense of the appellant); and



  • The sentence induces a sense of shock
    and is unreasonable.








[6] The Court during the appeal
hearing mero motu raised with counsel the question whether, in
the light of the admissions made by the appellant in the s 112 (2)
statement, the conviction was proper; and invited oral submissions
from counsel on that point. In addition, counsel were invited to file
supplementary heads of argument and which were most helpful.
Counsels’ assistance in this regard is appreciated.







[7] Appellant, in
terms of s 112 (2) of the Criminal Procedure Act
3
(herein referred to
as ‘the Act’), gave a plea explanation in which he
admitted having had sexual intercourse with M, who was 7 years old,
whilst he was 21 years of age, by inserting his penis into her
vagina. Besides admitting the bare elements of the charge, no further
information pertaining to the circumstances under which the offence
was committed, was placed before the court. This notwithstanding, the
trial court proceeded in hearing oral submissions made in mitigation
on behalf of the appellant by his legal representative; as well as
the prosecutor’s submissions in aggravation. During his
submissions counsel for the defence stated that the appellant at the
time of committing the offence was under the influence of liquor and
therefore
he
was not thinking proper or there was no premeditation or planning on
the part of the accused person to commit the offence
.
It
happened spontaneously …”.
The
only other information disclosed to the court (during submissions)
about the surrounding circumstances is that the appellant apparently
came to the house in the evening where the victim resided, looking
for “accommodation”. On this scanty information the court
pronounced itself on sentence after finding substantial and
compelling circumstances to be present.







[8] In principle a
written statement under s 112 (2) has to satisfy the court that the
accused admits the
facts
which
underlie the charge and therefore, should not be a simple
regurgitation of what appears in the charge-sheet, for that would be
insufficient.
4
In such an instance
the presiding officer is then required to obtain the necessary
elucidation by means of questions put to the accused. In this regard
s 112 (2) specifically provides
“…,
the court may,
in
lieu of questioning the accused under subsection (1)(b)
,
convict the accused on the strength of such statement …
Provided
that the court may in its discretion put any question to the accused
in order to clarify any matter raised in the statement
.
(emphasis
added)







[9] The Court in S
v B
(supra)
at 406b-c (per Hugo, J) said:







Section
112(2) provides that where an accused or his legal adviser hands in a
written statement by the accused in which the accused sets out the
facts which he admits and upon which he has pleaded guilty the Court
may, instead of questioning the accused, convict and sentence him. It
is clear that this section also required not only a series of
admissions but the facts upon which those admissions are based. In my
view the magistrate was incorrect in allowing this statement to pass
without further questioning and in my view the conviction of the
accused upon this statement and this statement alone is improper.”







[10] S
v B
was
adopted in this jurisdiction with approval in
Elridge
Christo Brussel v The State
5
by Mainga, J (as he
then was) and at p.3 the learned judge says:







The
appeal is against sentence only but the convictions cannot be allowed
to stand in their present form. Section 112 (2) does not only require
a series of admissions but the facts upon which the admissions are
based.”







[11] I fully
endorse the sentiments expressed by the learned judge and equally,
deem same applicable to the present facts. I am furthermore in
agreement with the remarks made in
S
v Moya
6
regarding the duty
of legal practitioners when required to draw up statements under s
112 (2), and at 261b-c the following is said:







Attorneys
and counsel who prepare statements such as these should acquaint
themselves fully with the law on this score and not leave it to
others to find the deficiencies, if there are any. In particular, it
should not be left to a busy magistrate to have to do so and, later
on, to the High Court.”







And further at 261c-e:







That
the trial court should be fully appraised of the facts of the case
has been iterated and reiterated time and time again. I intend to
mention but a few of the host of cases on the subject: S v Ngobe 1978
(1) SA 309 (NC), especially at 310D - F; S v Nyambe 1978 (1) SA 311
(NC) at 312G et seq; S v Sikhindi 1978 (1) SA 1072 (N); S v Doud 1978
(2) SA 403 (O) at 404D - F; S v Lebokeng en 'n Ander 1978 (2) SA 674
(O); S v Witbooi and Others 1978 (3) SA 590 (T) at 594H - 595A; S v
Balepile 1979 (1) SA 702 (NC) at 708H; Mkhize v The State and
Another; Nene and Others v The State and Another 1981 (3) SA 585 (N)
at 586E - 587B; S v Mokoena 1982 (3) SA 967 (T); S v Swarts 1983 (3)
SA 261 (C); S v Sethole 1984 (3) SA 620 (O); S v Magabi en 'n Ander
1985 (3) SA 818 (T) at 822B - 823A.”







It seems settled that a written
statement under s 112 (2) has to satisfy the court that the accused
admits the facts which underlie the charge and the court must be
fully informed of the facts.



[12] In view of
what has been stated above, it must be emphasised that the principle
remains the same whether the accused is questioned by the court in
terms of s 112 (1)(b) or whether a written statement is handed in to
the court under s 112 (2), namely, that
the
trial court must be satisfied that the accused admits the facts of
the case which underlie the criminal charge
.
The presiding officer is not merely required to ascertain from the
accused whether he admits the allegations in the charge but,
whether
or not the accused is guilty of the offence
.
In my view, the approach to s 112 (2) should not be any different
simply because the accused is legally represented. Where the accused
is unrepresented and pleads guilty to the charge, the court is
required to question the accused in terms of s 112 (1)(b) with the
view of being satisfied not only that an offence was committed,
but
that it was the accused who committed it
.7
It would neither be
sufficient to ask the accused step by step to admit every allegation
contained in the charge.
8







[13] If the presiding officer under
this subsection (112 (1)(b)) is required to do more than
merely ask the unrepresented accused whether he or she admits the
allegations in the charge, why then would it be any different simply
because the accused is represented, or because such admission is
contained in a written statement? Sight must not be lost of the
purpose of s 112 where the court, through questioning, or when
presented with a written statement, acts as a safety measure against
unjustified convictions by satisfying itself that the offence
contained in the charge was indeed committed by the accused. Section
112 (2) provides that the presiding officer has a discretion (and a
duty) to clarify any ambiguity in the statement by questioning the
accused person on the same basis as it would be done under subsection
(1)(b).







[14] In the present case the accused
was facing a charge of rape, which is considered to be a very serious
charge for which the Legislature, in these circumstances, enacted a
mandatory sentence of not less than fifteen years’
imprisonment, unless there are substantial and compelling
circumstances present. The only facts placed before the court a
quo
and on which the guilty plea is based are, that the victim is
a girl, 7 years of age; and that the appellant, who is 21 years old,
had sexual intercourse with her. The circumstances under which this
happened are unknown. Facts, for instance, regarding the manner in
which the appellant went about when committing the act and the degree
of force applied; whether injuries were sustained by the victim and
the nature thereof if any; whether or not there was a trust
relationship between the appellant and the victim; what were the
sleeping arrangements in the house that night when the victim was
raped; and whether the appellant was intoxicated during the
commission of the offence (as he alleges), are all crucial, yet
absent. It would have been important to get these facts on record,
not only for the determination of the appellant’s guilt, but
also for the court in sentencing, who had to decide whether or not
there are substantial and compelling circumstances present,
justifying the imposition of a lesser sentence. It would also have
clarified or shed more light on defence counsel’s contention in
mitigation that the appellant “was not thinking properly”
because he was under the influence of liquor, the extent of which
was important to determine even before conviction;
furthermore, to know based on which facts was the submission made
that the rape “happened spontaneously’. Courts
should at all times avoid situations where they are required to
convict and sentence in vacua and play a more active role to
see to it that justice is done – not only to the accused
person, but also to the State. Prosecutors on the other hand, should
not readily accept a plea of guilty if the facts and basis on which
the plea is tendered, are not clearly set out in the accused’s
section 112 (2) statement.







[15] In this regard the following is
stated in Moya (supra) at 261i – 262a:







A
court cannot possibly even begin to determine whether any
[substantial and compelling reasons] are present, without having the
complete picture before it. Again I refer to
S
v B

(supra at 406i), where Thirion J said:



'Before
the principles relating to sentence can be properly applied, one must
have the facts relevant to sentence, and where one is dealing with a
crime of rape it is not only the facts personal to the criminal but
also the facts personal to the complainant that are of relevance. . .
.'”







[16] I am respectful of the view that,
given the seriousness of the offence the appellant was facing and the
carelessness of his legal representative when preparing the
statement, the magistrate should not have allowed the s 112 (2)
statement to have passed without further questioning the appellant in
order to illicit from him those facts on which his plea of guilty is
founded. Consequently, the conviction of the appellant on the
statement as it stands is improper.







[17] I am mindful
that the appeal is only against sentence, but in view of the defects
in the plea referred to
supra,
the
conviction, based solely on the insufficient admissions made in the s
112 (2) statement, cannot be permitted to stand
9.



[] Consequently, the following order
is made:








  1. Condonation is granted for
    appellant’s non-compliance with the Rules.



  2. The conviction and sentence are set
    aside.



  3. The matter is remitted in terms of s
    312 of Act 51 of 1977 to the Regional Court who convicted and
    sentenced the appellant with the directive to comply with the
    provisions of s 112 of Act 51 of 1977.



  4. In the event of a conviction, the
    court in sentencing, must take into account the sentence already
    served by the appellant.



  5. Pending such appearance in the
    Regional Court, the appellant is to remain in custody.
























_________________________



LIEBENBERG, J











I concur.











_________________________



TOMMASI, J



























































































ON BEHALF OF THE APPELLANT Ms W
Horn



Amicus curiae



LorentzAngula Inc







ON BEHALF OF THE RESPONDENT Mr R
Shileka







Instructed by: Office of the
Prosecutor-General







1Act
No 8 of 2000




2Rule
67 (1) of the Magistrates’ Court Rules




3Act
No 51 of 1977




4S
v B,
1991 SACR 405 (NPD) at 406b-c




5Unreported
Case No CA 18/2004 delivered on 15.07.2004




62004
(2) SACR 257 (WLD)




7S
v Combo and Another,
2007 (2) NR 619 at 621G; S v Nyambe,
1978 (1) SA 311 (NCD) at 312H; S v Philander, 1977 (2) PH
H214 (NC)




8Hiemstra’s
Criminal Procedure
– Commentary under s 112 at 17-5;
Mkhize v The State and Another, 1981 (3) SA 585 (NPD)




9Elridge
Christo Brussel
(supra) at p.3