REPUBLIC OF NAMIBIA

CASE NO.: CR 14/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

STATE

versus

JOHANNES ENGELBRECHT

(HIGH COURT REVIEW CASE NO.: 1813/09)

CORAM: HOFF, J et VAN NIEKERK, J

Delivered on: 12 February 2010

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REVIEW JUDGMENT

VAN NIEKERK, J [1] The accused in this matter pleaded guilty in the magistrate’s court sitting at Karasburg to a charge of housebreaking with intent to commit a crime unknown to the State. In the charge sheet it was alleged that on or about 11 May 2009 at or near Bush Camp, Aussenkehr, the accused unlawfully and intentionally broke and entered the caravan of the complainant with intent to commit a crime unknown to the prosecutor.

[2] When the accused was questioned in terms of section 112(1)(b) of the Criminal Procedure Act, 51 of 1977, he was asked to explain what he did wrong. To this he replied:

“I was with Dawid Jaahrs. We were dancing together at a shebeen. We then agreed to go and steal food. We walked to the complainants caravan at Bush camp. When we got there Jaahrs opened the door. I held the window as he climbed in, as soon as he put his leg inside the caravan the people inside screamed then I let go of the window and we ran away.”

[3] In spite of the clear indications that the accused in concert with a co-perpetrator committed housebreaking with intent to steal, the learned magistrate convicted the accused of housebreaking with intent to commit an offence unknown to the State. On review I raised the issue with the learned magistrate, who concedes that he should have convicted the accused of housebreaking with intent to steal. This concession is correctly made in view of the provisions of section 262 (2) of Act 51 of 1977, which read as follows:

“If the evidence on a charge of housebreaking with intent to commit an offence to the prosecutor unknown, whether the charge is brought under a statute or the common law, does not prove the offence of housebreaking with intent to commit an offence to the prosecutor unknown but the offence of housebreaking with intent to commit a specific offence, the accused may be found guilty of the offence so proved.”

[4] In the case of the The State v Manfred Kharuxab (High Court Case No CR 120/07 delivered on 10 August 2007) this Court set out the approach to be followed in this way:

“[4] In S v Andrews 1984 (3) SA 306 (E), a case which presented the same facts as the one before me, KANNEMEYER, J (with SMALBERGER, J, as he then was) in effect held that the admission by the accused during the questioning in terms of section 112(1)(b) namely, that he broke in with the intention to steal, is part of the evidential material upon which a court could rely when applying section 262(2). The Andrews case followed and applied in S v Kesolofetse and another 2004 (2) SACR 166 (SCA), a similar case where the answers of the two accused during the questioning showed quite clearly that they broke into the premises with the intent to steal. In that case the following was said (at p168): -

‘[6] In my view, the magistrate was therefore wrong to convict the accused in this case of the crime of housebreaking with intent to commit a crime to the prosecutor unknown, for the simple reason that the 'evidence' did not prove that offence.

[7] Quite apart from this it would obviously be senseless, and in fact misleading for record purposes, to convict an accused on the basis of his or her having had the intention to commit a crime to the prosecutor unknown, where, at the end of the day, it is known to not only the prosecutor but indeed also to the court what the intended crime was (compare S v Wilson 1968 (4) SA 477 (A) at 481F and the remarks in Milton South African Criminal Law and Procedure vol II 3rd ed at 806 - 7 and fn 146 at 807).

[8] It is obviously with this in mind, and to do away with the necessity of first amending the charge, that s 262(2) of the Criminal Procedure Act was enacted and I am in respectful agreement with the authors of Kriegler and Kruger Hiemstra Suid-Afrikaanse Strafproses 6th ed, where, at 666 and with reference to the provisions of s 262(2) of the Criminal Procedure Act, it is remarked:

'Die artikel sê ''kan die beskuldigde aan die aldus bewese misdryf skuldig bevind word'', maar dit is een van die gevalle waar kan gelees sal moet word as moet. Dit sou sinloos wees om, as 'n bepaalde opset bewys word, dit nie in die bevinding te vermeld nie.'

(See also South African Criminal Law and Procedure (op cit fn 235 at 814).)

[9] It is so that the unrepresented accused were not informed of the possibility of such a competent verdict by the magistrate (see S v Kester 1996 (1) SACR 461 (B) at 469h - 470c), but I am satisfied that this failure did not lead to any prejudice in this case.’

[5] I respectfully agree with the approach taken in these cases.”

[5] In this case there is no prejudice to the accused should he be convicted of the offence which he admitted that he committed. The effect of this conclusion is that it would also be appropriate to change the description of the offence in the suspected sentence which was imposed.

[6] The result is as follows:

1. The conviction is set aside and substituted with a conviction of

housebreaking with intent to steal.

2. The sentence is confirmed, subject thereto that the words

“housebreaking with intent to committing an offence unknown to the State” are substituted with the words “housebreaking with intent to steal”.

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VAN NIEKERK, J

I concur.

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HOFF, J