HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE
NO.: CA 56/2013
In
the matter between:
MWEEMBA
BRENDAN
FIRST APPELLANT
SAMWELE
SILILO
RODRICK
SECOND APPELLANT
LUBASI
ELVIS LUBASI
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Mweemba v State
(CA 56/2013) [2013] NAHCMD 344 (20 November 2013)
Coram:
UEITELE J et
UNENGU AJ
Heard
on:
11 NOVEMBER 2013
Delivered
on: 20
NOVEMBER 2013
Flynote:
Criminal
procedure - Trial - Plea - Plea of guilty - Questioning in terms of s
112(1)(b) of Criminal Procedure Act 51 of 1977 - Object of s
112(1)(b) is to protect accused from consequences of an unjustified
plea of guilty - Where accused's responses to questioning suggest a
possible defence or leave room for a reasonable explanation other
than guilt, a plea of not guilty should be entered in terms of s 113
and the matter clarified by evidence.
Summary:
The appellants
appeared before the District Magistrates’ Court for the
district of Katima Mulilo on two
charges of contravening the Nature Conservation Ordinance, 1975[1].
The first count was that the appellants contravened section 26(1)
read with Sections 1, 26(2), 26(3), 85 87, 89 and 89A of Ordinance 4
of 1975 further read with sections 90 and 250 of the Criminal
Procedure Act 1977[2] in that
they hunted specially protected game, (namely: three elephants)
without a permit. The second count which the appellants faced was
that they contravened section
2(1)(a) read
with Sections 1, 3, 4 and 5 of
Proclamation AG 42 of 1980 as amended by Act 31 of 1990 in that they
were in possession of six elephant tusks weighing 43, 75 kg and
valued at N$ 31 283, 88.
The
appellants who were unrepresented, each, tendered a plea of guilty to
the charges. Pursuant to questioning by the learned magistrate in
terms of s 112(1)(b) of the Criminal Procedure Act 1977 the
appellants were, on 31 January 2013, convicted on both counts and on
11 February 2013 the appellants were, each, sentenced to four years
imprisonment in respect of the first count and one year imprisonment
in respect of the second count. They appeal against both the
conviction and sentence.
Held
that
where there are co-accused the magistrate is required to question
each accused independently even if this involves laboriously
repeating the same questions.
Held
further
that
the primary purpose of s 112(1)(b) of the Act is to protect an
undefended accused, such as the accused in casu,
against the consequences of an incorrect plea of guilty.
Held
further
that the answers given in an enquiry in terms of s 112(1)(b) of the
Criminal Procedure Act 51 of 1977 do not constitute 'evidence' under
oath from which the court can draw inferences regarding the guilt of
the accused. Section 112(1)(b) requires of a court in peremptory
language to question the accused with reference to the alleged facts
of the crime in order to ascertain whether he or she admits the
allegations in the charge to which he or she has pleaded guilty. It
may only convict the accused on account of such a plea if it is
satisfied on the basis of such answers that the accused is indeed
guilty. Unless the accused has admitted to all the elements of the
offence, he or she may not be convicted merely on account of his or
her plea.
ORDER
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
Magistrates’ Court for the District of Katima Mulilo who
convicted and sentenced the appellants and be tried by a magistrate
other than magistrate Sibanda 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 appellants.
5.
Pending such appearance in the Magistrates’ Court for the
District of Katima Mulilo, the appellants are to remain in custody.
JUDGMENT
UEITELE J (UNENGU AJ
concurring):
[1]
The appellants appeared before the District Magistrates’ Court
for the district of Katima Mulilo on two
charges of contravening the Nature Conservation Ordinance 1975[3].
The first count was that the appellants contravened section 26(1)
read with Sections 1, 26(2), 26(3), 85 87, 89 and 89A of Ordinance 4
of 1975 further read with sections 90 and 250 of the Criminal
Procedure Act 1977[4] in that
they hunted specially protected game, (namely: three elephants)
without a permit. The second count which the appellants faced was
that they contravened section
2(1)(a) read
with Sections 1, 3, 4 and 5 of
Proclamation AG 42 of 1980 as amended by Act 31 of 1990 in that they
were in possession of six elephant tusks weighing 43, 75 kg and
valued at N$ 31 283, 88.
[2]
The appellants who were unrepresented, each, tendered a plea of
guilty to the charges. Pursuant to questioning by the learned
magistrate in terms of s 112(1)(b) of the Criminal Procedure Act 1977
(I will for the sake of convenience, in this judgment refer to this
Act simply as the Act), the appellants were, on 31 January 2013,
convicted on both counts and on 11 February 2013 the appellants were,
each, sentenced to four years imprisonment in respect of the first
count and one year imprisonment in respect of the second count.
[3]
On 12 February 2013 each of the three accused authored a document
titled ‘Notice of Appeal’. Except for the second
appellant whose appeal is directed at both the conviction and
sentence the first and third appellants appear to have appealed
against their sentences only. Subsequent to their conviction and
sentencing the first and third appellants engaged their current legal
practitioner of record to pursue their appeal. The
second appellant also at a later stage engaged the same legal
practitioner. We agreed to hear the condonation application also in
respect of the second appellant.
[4]
The legal practitioner filed an amended Notice of Appeal accompanied
by an application for condonation for the late filling of the amended
Notice of Appeal. The application for condonation is supported by an
affidavit in which appellants set out reasons as to why the amended
Notice of Appeal was filed out of time and the prospects of success
on appeal. We are satisfied that the appellants’ explanation
for the delay in filing the Amended Notice of Appeal, is reasonable
and acceptable. Mr Nyambe who appeared for the respondent also agrees
that the explanation is reasonable and acceptable. We therefore
condone the late filing of the Amended Notice of Appeal in respect of
all the three appellants. We now turn to consider the merits of the
appeal.
[5]
The main ground of appeal against conviction on both count 1 and 2 is
that the Magistrate misdirected herself when she convicted the
appellants on admissions of bare elements of the offences without
further information relating to the circumstances surrounding the
commission of the offence. In order to evaluate whether the ground of
appeal is indeed sustainable or not we find it appropriate to, in
full, quote the questioning of the appellants in terms of section
112(1)(b) in the court a quo, but we will defer a quotation of
the relevant part of the record until a little later.
[6]
Mr Sibeya who appeared for the appellants argued that section
112(1)(b) of the Act was meant to protect an accused particularly an
undefended accused from consequences which may follow an
ill-considered plea of guilty. He further argued that it is a well
settled principle of our law that for a Court to be satisfied that
indeed an accused intends to plead guilty to offences where section
112(1)(b) applies factual information or circumstances surrounding
the commission of the offences should be elicited from an accused in
addition to the bare admission of the allegations contained in the
charges. The Court should be satisfied that an accused admits the
facts which underlie the charge and should not merely be bare
admissions of the allegations appearing in the charge sheet.
[7]
We agree with the submission by Mr Sibeya. This Court has in a number
of cases[5] drawn
the attention of Magistrates to the provisions of that section and to
the correct method of questioning in terms of section 112(1)(b) of
the Act which must be applied when that section is invoked. See the
remarks of Silungwe, AJ with Muller, J concurring in S
v Combo and Another
[6] that:
‘It
is necessary to appreciate that the primary purpose of s 112(1)(b) of
the Act is to protect an undefended accused, such as the accused in
casu,
against the consequences of an incorrect plea of guilty. Such
questioning entails two aspects about which the presiding magistrate
must be convinced, to wit: firstly, that the accused admits all the
elements of the charge and, secondly, that he is guilty thereof.
Hence, the court should be satisfied, not only that the accused
committed the crime, but also that he committed it unlawfully and
with the necessary mens rea’
[8]
In
the matter of Johny
Jorom Ndetapo Kondo v The State[7]
Liebenberg,
J with Tommasi J concurring said:
‘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.’
[9]
In the matter of S
v Mkhize[8]
Didcott, J had the
following to say:
‘Sec.
112 (1) (b), one thus notices, allows an accused person who has
pleaded guilty to an offence to be convicted of it without evidence,
provided, however, that the court is satisfied that he is indeed
guilty of it. The question which presents itself is what comprises
the material that must satisfy the court on this score. That it need
not consist of evidence is obvious in a situation which is governed
by a sub-section dispensing by and large with the occasion for any.
Nor, on the other hand, can it ever be found in the plea of guilty
itself. If that had been intended, the court would hardly have been
commanded in peremptory language to go behind the plea by asking the
prescribed questions. There would have been no point in that
procedure, especially when it was compared with the provisions of
sec. 112 (1) (a) authorizing convictions in special circumstances on
pleas of guilty neither amplified nor investigated, but standing
entirely on their own. The answers to the questions remain. They were
plainly envisaged as the crucial information, and that is why they
have to be sought. Before,
however, they are capable of satisfying the court that the accused is
actually guilty of the offence to which he has pleaded guilty, they
must at least cover all the essential elements of the offence which
the State would otherwise have been required to prove.
{My Emphasis}
[10]
In the case of S
v Valede and Others[9]
Levy, J stated the
following:
‘Where
there are co-accused the magistrate is required to question each
accused independently even if this involves laboriously repeating the
same questions…The reason for this is to be found in the
wording of s 112(1)(b) itself, which requires that the relevant
questions be directed at the accused…It
is important to appreciate that a plea of guilty is nothing more than
the legal opinion formulated by the accused himself. He draws a
conclusion from certain facts that he is guilty.
The magistrate's questioning must be directed at ascertaining those
facts for him, the magistrate, to decide whether the conclusion of
law or opinion of the accused is justified. The magistrate is
fully aware of the elements of the crime with which the accused is
charged and these elements must be pertinently put to an accused.
{My Emphasis}
[11]
The appellants were facing charges of hunting specially protected
game and possessing protected game products, which are considered to
be very serious for which the Legislature, enacted sentence of not
more than twenty years’ imprisonment or a fine of N$ 200
000. We have indicated above that in order to evaluate whether the
ground of appeal is indeed sustainable or not, it is appropriate to,
in full, quote that part of the record reflecting the questioning in
the court a quo. We turn now to that part of the record
which reflects the course of the proceedings before the Magistrate on
30 January 2013 after the appellants pleaded guilty to the two main
counts. It reads as follows:
‘COUNT
1
Q:
Has anyone
influenced or threatened you to plead guilty to the charge?
A1:
No
A2:
No
A3
No
Q:
Why do you plead
guilty?
A1:
I hunted elephants.
A2:
We hunted elephants unlawfully.
A3
We hunted elephants
which are protected.
Q:
Where and when did you hunt these elephants?
A1:
At Kalimbeza area in the district of Katima Mulilo on 22/10/12
A2:
At Kalimbeza area
in the district of Katima Mulilo on 22/10/12
A3:
At
Kalimbeza area in the district of Katima Mulilo on 22/10/12
Q:
How many elephants did you kill?
A1:
3
A2:
3
A3
3
Q:
Were you authorised to kill these elephants?
A1:
No
A2:
No
A3
No
Q:
Did you have a permit to hunt these elephants?
A1:
No
A2:
No
A3
No
Q:
Did you know that you were required to have permits before you could
hunt an elephants?
A1:
Yes
A2:
Yes
A3
Yes
Q:
Did you also know that an elephant is a specially
protected game
A1:
Yes
A2:
Yes
A3
Yes
Q:
Did you know that it was wrong and unlawful for you to hunt and kill
these three elephants without a permit?
A1:
Yes
A2:
Yes
A3
Yes
COUNT
2
Q:
Has anyone forced,
influenced or threatened you to plead guilty to the charge?
A1:
No
A2:
No
A3
No
Q:
Why do you plead
guilty?
A1:
I was found in
possession of elephant tasks
A2:
I was found
in possession of elephant tusks
A3:
I was found in possession of elephant tusks
Q:
When and where was this when you were found in possession of elephant
tusks?
A1:
At Kalimbeza area in the district of Katima on 22/10/12
A2:
At Kalimbeza
area in the district of Katima on 22/10/12
A3:
At
Kalimbeza area in the district of Katima Mulilo on 22/10/12
Q:
How
many elephant tusks did you possess?
A1:
6
A2:
6
A3:
6
Q:
The State alleges that the 6 elephant tusks weighed 43.75 kg valued
at N$31 283,88 what do you say to that?
A1:
I agree with that.
A2:
I agree with that.
A3:
I
agree with that.
Q:
Were
you authorised to possess elephant tusks
A1:
No
A2:
No
A3:
No
Q:
Did you have a
permit to possess such elephant tusks?
A1:
No
A2:
No
A3:
No
Q:
Do you know that you were required to have a permit possess such?
A1:
Yes
A2:
Yes
A3:
Yes
Q:
Did you know that elephant tusks are controlled game products?
A1:
Yes
A2:
Yes
A3:
Yes
Q:
Did you know that it was wrong and unlawful for you to possess such
controlled game products without a permit?
A1:
Yes
A2:
Yes
A3:
Yes’
[12]
From the above it is clear that the appellants were not independently
and individually questioned. We reiterate Levy, J’s
pronouncements in the matter of S
v Valede and Another[10]
namely that it is
highly undesirable to question co-accused at the same time. In this
matter the undesirability of that procedure is demonstrated by the
fact that wholly unexplored areas of uncertainty relating to the
precise nature of the offence, which cry out for further enquiry and
which are facts are crucial remain unattended. The following
are examples of the crucial facts: what
was the role played by each appellant in the process of hunting the
elephants, if they acted together what was the factual basis for such
acting, who killed how many elephants, the charge alleges that all
four accused did hunt three (3) elephants how did this happen?
[13]
This matter is furthermore a classic example of appellants having
formulated legal opinions about their guilt. The circumstances and
the facts on which the conclusions were drawn are unknown. We say so
for the following reasons; the Ordinance defines hunting to, amongst
others, mean by any means whatsoever kill or attempt to kill, or
shoot or attempt to shoot at, or pursue, search for, lie in wait for
or drive with intent to kill or to shoot at, or wilfully to disturb.
So what is it that they did when they say they hunted elephants? Did
they willfully disturb, search for, shoot or kill the elephants?
Those facts must emerge from answers that the appellants gave but
they are absent. On what, objectively bases could the magistrate
then, have been 'satisfied' as required by the section 112 of the
Act? In our view the answers by the appellants that they hunted
elephants are meaningless because the magistrate is in no better
position to ascertain whether the accused admitted the elements of
the crime.
[14]
Another disturbing aspect are the inferences drawn by the magistrate.
In the above quotation the Magistrate asked the appellants what they
did wrong, the appellants’ reply was that they hunted
elephants. To that reply she asked the appellants how they killed the
elephants. In the answer given by the appellants there is no
statement that they killed elephants this is an inference drawn by
the magistrate. In the matter of State
v Simeon Nghishinawa[11],
Liebenberg, J with Tommasi, J concurring said the following:
‘It
is trite law that s 112(1)(b) of Act 51 of 1977 requires the
presiding officer in peremptory terms to question the accused with
reference to those facts alleged in the charge in order to ascertain
whether the accused admits the allegations in the charge to which he
or she pleaded guilty. Further, the answers the accused person gives
when questioned by the Court do not constitute evidence given on oath
from which the Court may draw inferences; thus, regard must be had to
what the accused says and not what the Court thinks of it.’
[15]
In the matter of S
v Thomas[12]
this Court held that:
‘…the
answers given by an accused in the course of a s 112(1)(b) inquiry do
not constitute 'evidence' on oath from which such inferences may be
drawn. (See S
v Naidoo
1989 (2) SA 114 (A); and S
v Nagel
1998 (1) SACR 218 (O).) As Didcott, J said in S
v Mkhize
1978 (1) SA 264 (N) at 268B: 'The test, in short, is what the accused
person has said, not what the court thinks of it.'
[16]
If we apply the
principles stated in the preceding paragraphs 14 and 15 to the
present facts, it is obvious that the magistrate could not have come
to the conclusion from what the appellants answered, that they killed
the elephants. The appellants were not at all questioned on how the
elephants were hunted. The answer that ‘We hunted elephants
necessitated further questioning by the magistrate in order to
establish what the appellants meant by stating that they hunted
elephants. In the present circumstances the magistrate, for this
reason alone, could not have been satisfied that the accused admitted
all the elements of the offence.
[17]
In
respect of Count 2, the charge which the appellants faced was that
‘on or about 22nd
October 2012 at or near Kalimbeza area in the district of Katima
Mulilo the accused did wrongfully and unlawfully possess controlled
game products to wit six elephant tusks weighing 43.75kg valued at N$
31 283-88.’ The undesirability of questioning co accused
together is again demonstrated by the second count. The appellants
were asked ‘how many elephant tusks did you possess? Each
accused answered six. If each appellant was found in possession of
six elephant tusks simple arithmetic tells us that there must then
have been eighteen elephant tusks. Again the magistrate failed to ask
questions which are crucial to the revelation of the elements of the
offence which the appellants faced. Crucial facts such as to who had
the control over, how many elephant tusks on 22 October 2012, how the
appellants knew that elephant tusks are controlled game products are
absent. We are therefore of the view that in this case, the
appellants’ answers, correctly construed, fell noticeably short
of an admission of guilt and were consequently insufficient to
satisfy the court that they really were guilty.
[18]
The conviction on both counts one and two are therefore set aside. We
are of the opinion that justice will best be served if proceedings
start afresh before another magistrate. We have therefore
decided against remitting the matter in terms of s 312 of Act 51 of
1977 to the same magistrate. In the light of the conclusions
reached herein, there is no need to deal with the appeal against
sentence
[19]
In the result, the Court makes the following order:
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
Magistrates’ Court for the District of Katima Mulilo who
convicted and sentenced the appellants and be tried by a magistrate
other than magistrate Sibanda 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 appellants.
5.
Pending such appearance in the Magistrates’ Court for the
District of Katima Mulilo, the appellants are to remain in custody.
-----------------------------
SFI
Ueitele
------------------------------
EP
Unengu
APPEARANCES
FIRST,
SECOND and THIRD APPELLANTS: O
SIBEYA
Of
Sibeya & Partners
RESPONDENT: S
R NYAMBE
Instructed
by the Prosecutor-General
[5]
See
the case of Johny
Jorom Ndetapo Kondo v The State, an unreported judgment of this
Court, Case No. CA 79/2010, delivered on 30 March 2012 by
Liebenberg, J; and the case of Elridge
Christo Brussel v The State an Unreported judgment of this Court
No CA 18/2004 delivered on 15.07.2004 by Mainga, J (as he then was).
[6]
2007
(2) NR 619 (HC).
[8]
1978
(1) SA 264 (N) at 267B-E.
[11]
An
Unreported judgment of this Court, Case No. CR 20/2012, delivered on
21 September 2012.
Mweemba and Others v S (CA56/2013) [2013] NAHCMD 344 (20 October 2013);