IN THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between:
COURT CASE NO.:
01 June 2009
 The accused was charged with the offence of Housebreaking with
intent to steal and theft and convicted as such.
 He was
sentenced to 18 (eighteen) months imprisonment of which 6 (six)
months imprisonment is suspended for 5 years on condition accused is
not convicted of an offence of which theft is an element committed
within the period of suspension.
 I directed the following query to
the trial magistrate.
accused person was charged with the offence of Housebreaking with
intent to steal and theft. There is a list of stolen property as per
apart from the clothes which were stolen, the list indicates that 10
x radio cassettes worth N$200.00 and a suit case worth N$150.00 were
also stolen. Why was the accused not asked pertaining to the radio
cassettes and a suitcase?
the prosecutor accepted the plea minus 10 x radio cassettes and
the “accused is sentenced to eighteen (18) months imprisonment of
which six (6) months imprisonment is suspended for 5 years on
condition accused is not convicted of an offence of which theft is
an element committed during the period of suspension. Under which
law is theft an element of an offence?”
 Although all the elements of the
offence of theft were covered by the magistrate when questioning the
accused in terms of section 112 (1) (b) Act 51 of 1977 the accused
never admitted all the allegations contained in the charge sheet.
magistrate’s questioning was clearly inadequate as he did not ask
questions pertaining to 10 x radio cassettes and a suitcase. There is
also no indication from the state prosecutor that he accepts the
accused’s plea minus 10 x radio cassettes and a suitcase. Therefore
the accused should not have been convicted as charged.
 Section 112
(1) (b) of the Criminal Procedure Act, Act 51 of 1977 states that the
magistrate shall question the accused with reference to the alleged
facts of the case in order to ascertain whether he admits the
allegation in the charge to which he had pleaded guilty and may if
satisfied that the accused is guilty of the offence to which he has
pleaded guilty on his plea of guilty, of that offence impose a
 As far as the
sentence is concerned the condition of the suspended sentence which
states… “on condition accused is not convicted of an offence of
is an element”
is not a competent one.
There is no
provision in our law which creates theft as an element of an offence.
Theft is an offence on its own.
 In the result
the proceedings cannot wholly be allowed to stand. The proceedings
are therefore set aside in respect of conviction and sentence.
the result the following order is made:
The record be
remitted back to the magistrate in terms of section 312 of the
Criminal Procedure Act, Act 51 of 1977, for the magistrate to
question the accused afresh pertaining to 10 x radio cassettes and a
When the Court sentences the accused
afresh he should consider the time the accused spent in prison.
Should the Court
wish to impose a suspended sentence the condition of sentence should
be framed in such a way that it is readily understood for example,
on condition that accused is not convicted of housebreaking with
intent to steal or theft committed within the period of suspension.