CASE NO.: CR 20/2009

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

AMUPANDA STEFANUS

(HIGH COURT CASE NO.: 61/2009)

CORAM: SHIVUTE, A.J et LIEBENBERG, A.J

Delivered on: 01 June 2009

REVIEW JUDGMENT:

SHIVUTE, A.J.: [1] The accused was charged with the offence of Housebreaking with intent to steal and theft and convicted as such.

[2] 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.

[3] I directed the following query to the trial magistrate.

1. “The accused person was charged with the offence of Housebreaking with intent to steal and theft. There is a list of stolen property as per annexure.

2. However, 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?

3. Has the prosecutor accepted the plea minus 10 x radio cassettes and a suitcase?

4. Furthermore 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?”

[4] 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.

[5] The 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.

[6] 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 competent sentence.

[7] 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 which Theft 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.

[8] In the result the proceedings cannot wholly be allowed to stand. The proceedings are therefore set aside in respect of conviction and sentence.

[9] In the result the following order is made:

1. 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 suitcase.

2. When the Court sentences the accused afresh he should consider the time the accused spent in prison.

3. 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.

____________________________(Signed)

SHIVUTE, A.J

I concur

____________________________(Signed)

LIEBENBERG, A.J