CASE
NO.: CR 77 /2010

IN
THE HIGH COURT OF NAMBIA

In
the matter between:

THE
STATE

versus

FILLIMON
HITILAVALI MBWALE & HEROLD GEINGOB

(HIGH
COURT REVIEW CASE NO.: 1025/2010)

CORAM:
LIEBENBERG
J et
UEITELE,
AJ

DELIVERED
ON: 27
October 2010

REVIEW
JUDGMENT

UEITELE,
A J

[1]
The two accused persons were arraigned in the Karibib Magistrate's
Court; Accused No. 1, (Fillimon Hitilavali Mbwale) was charged with
contravening Section 6 of the General Law Amendment Ordinance, 1956
(Ordinance 12 of 1956) and Accused No. 2 (Herold Geingob) was charged
with housebreaking with intent to steal and theft. Both accused
persons were unrepresented.

[2]
The record indicates that on 16 February 2010 the accused persons
appeared before the learned magistrate for purposes of pleading.
Accused No. 1 pleaded guilty to the charge of contravening Section 6
of the General Law Amendment Ordinance, 1956 and Accused No 2 pleaded
not guilty to the charge of housebreaking with intent to steal and
theft.

[3]
The court a
quo proceeded
and asked Accused No 2 whether he was prepared to disclose the basis
of his defence as contemplated in section 115(1) of the Criminal
Procedure Act, 1977 (Act 51 of 1977) (I will in this judgment refer
to it as "the Act"). Accused No. 2 disclosed the basis of
his defence which was a denial of breaking into the school (i.e. the
Karibib Junior Secondary School).

[4]
The record of proceedings furthermore shows that after Accused No. 2
disclosed the basis of his defence the court proceeded to deal with
Accused No. 1 and applied Section 112(1)(b) of the Act. Accused No. 1
was convicted on the basis of his plea of guilty. That part of the
record reads as follows: "Crt:
Why do you plead guilty?

Acc:
I unlawfully had in my possession the calculators. Crt: When was it?
Acc: 05/10/2009

Crt:
Where were you found in possession of this calculators? Acc: At my
home in Karibib, Usab Crt: What is it that you were found in
possession with? Acc: Five (5) Casio calculators

Crt:
The state is alleging that the value of the calculators was N$500-00
do you admit or dispute that?

Acc:
I admit that.

Crt:
What makes you say that you had unlawfully in your possession the
said calculators?

Acc:
Because the owner or the person who gave them to me had no ownership
papers.

Crt:
Did you then knew that been found in possession with suspected stolen
property was

unlawful
wrongful and punishable by law? Acc: Yes I knew.

Court
is satisfied that you admit guilty to all the allegations on the
charge sheet."

[5]
Accused No.1 was consequently sentenced as follows:

"To
a fine of N$ 2000-00 or ten months imprisonment wholly suspended for
a period of 5 years on condition that accused is not convicted of
contravening Section 6 of Ordinance, 12 of 1956 committed during the
period of suspension".

[6]
When this matter came up for review I directed the following query to
the magistrate. "How
does the court convict if no questions were asked to establish
whether the accused knew or believed the goods to be stolen?"
The
learned magistrate conceded that she "failed
to question the accused person specifically as to his suspicion at
the time he had been found in possession of the calculators, and
requested to be guided, 'on this one.'"

[7]
I am of the view that the concession is correctly made in view of the
provisions of Section 6 of the General Law Amendment Ordinance, 1956
(Ordinance 12 of 1956) which reads as follows:

"Any
person who is found in possession of any goods, other than stock or
produce as defined in section one of the Stock Theft Law Amendment
Ordinance, 1935 (Ordinance 11 of 1935), in regard to where there is a
reasonable suspicion that they may have been stolen and is unable to
give a satisfactory account of such possession, shall be guilty of an
offence and liable on conviction to the penalties which may be
imposed on a conviction of theft."

[8]
Snyman CR "Criminal
Law" 2^nd
Edition
at page 498 opines that, "The requirements for a conviction of
contravening the section (i.e. Section 6 of Ordinance 12 of 1956)
are:

"(a)
The 'goods';

(b)
X must be found in possession;

(c)
There must be reasonable suspicion that the goods have been stolen;
and

(d)
X must be unable to give a satisfactory explanation of the
possession."

[9]
Snyman further argues at page 499, that the reasonable suspicion must
arise at virtually the same moment that the goods are found in X's
possession. See: S
v
Mokoesa 1957
(1) SA 398; S
v
Reddy 1962
(2) SA 343 and S
v
Ismail 1958
(1) SA 206.

[10]
The learned magistrate in her reply to my query asked to be guided
'on this one'. I will attempt in what follows. Tommasi J with
Liebenberg J concurring said the following in the unreported Review
Judgment of State
v Albius Mweti CR
68 /2010;

"Common
sense dictates that the accused can admit that he was found in
possession of items as this falls within his own knowledge. Whether
his explanation was satisfactory or not and whether there was a
reasonable suspicion that the goods were stolen falls outside his
knowledge."

[11]
In the present case the learned magistrate apart from failing to ask
questions to ascertain whether the accused admitted "having
been found in possession' of
"suspected
stolen property" the
learned magistrate also elicited admissions in respect of facts that
fell outside of the accused person's knowledge.

[12]
Tommasi J (supra)
quoting
with approval from Hiemstra's:
Criminal Procedure

said:

"There
are incriminating facts which cannot be within the accused's
knowledge, such as the suspicion of the finder of stolen property.
The accused cannot know what "reasonable suspicion" there
was in the mind of the finder, as contemplated in section 36 of the
General Law Amendment Act 62 of 1955 (the
provisions hereof are similar to the s6 of Ordinance 12 of 1956). In
the result the court in S
v Shabala 1982 (2) SA 123 (T) held
that the accused cannot
admit
it. This is only the case however, when the accused is
unrepresented..."

and
after surveying the decisions in S
v
Naidoo 1985
(2) SA
32 (N); S
v
Mahlasela

2005
(1) SACR 269 (N) and S
v Thomas 1990
NR 352 (HC) remarked
that

"...
appropriate questioning relating to the surrounding circumstances
can, even in a charge such as the one under discussion (i.e.
contravening Section 6 of the General Law Amendment Ordinance, 1956
(Ordinance 12 of 1956)), cover all of the elements of the offence
concerning both the accused's conscious admission and the existence
of the factum
probandum. This
would depend on the facts of every individual case.

The
above manner in which the accused was questioned in the court a
quo hardly
qualifies as appropriate. No questions were posed to the accused in
respect of the circumstances under which the goods were found and
what explanation the accused gave."

[13]
In the light of the learned magistrate's concession that she failed
to question the accused person as to his suspicion at the time that
he had been found in possession of the calculators, I am of the
opinion that the learned magistrate could not have been satisfied
that the accused is guilty of the offence he was charged with.

[14]
The learned magistrate should have further questioned Accused No. 1
in respect of the circumstances he was found in possession of the
calculators and also on the explanation that he gave. In view of
this, I find that the proceedings were not in accordance with
justice.

Accused
No.2

[15]
I now turn to deal with the purported separation of the trial of
Accused No. 1 and Accused No. 2. The record of proceedings further
indicates that after Accused No.1 was convicted on his plea of guilty
the State Prosecutor applied for the separation of Accused No. 1's
trial from that of Accused No 2. The court ruled in favour of the
separation and returned to Accused No.1 and proceeded to hear
evidence in mitigation. After Accused No. 1 was convicted and
sentenced the learned magistrate proceeded with Accused No.2's trial
during which proceedings. Accused No. 1 became a State witness.
Accused No. 2 was then convicted as charged and sentenced as follows:

"To
12 months imprisonment wholly suspended for a period of 5 years on
condition that accused is not convicted of housebreaking with intends
(sic)
to
steal and theft committed during the period of suspension"

[16]
I am of the view that after the learned magistrate ruled that the
trial of Accused No.2 must be separated from the trial of Accused No.
2 she committed an error by not actually separating the trials and
that error amounts to an irregularity. I hold that view in the light
of the provisions of section 157 of the Act.

[17]
Section 157 (2) of the Act reads as follows:-

"(2)
Where two or more persons are charged jointly, whether with the same
offence or with different offences, the court may at any time during
the trial, upon the application of the prosecutor or of any of the
accused, direct that the trial of any one or more of the accused
shall be held separately from the trial of the other accused, and the
court may abstain from giving judgment in respect of any of such
accused."

[18]
The procedure which must be followed after the Court has ruled in
favour of separation of trials is that those who pleaded not guilty
stand down and the ones who pleaded guilty are first taken through
the section 112 procedure. See Hiemstra's
Criminal Procedure page
22-36 paragraph 9.

[19]
The process in respect of those who pleaded guilty must then start de
novo and
the accused has to plead again, even if the charge remains unchanged.
The accused also has to go through the process of plea explanation.
Hiemstra's
Criminal Procedure. (Supra)

[20]
It means that a new charge sheet (even if the charge remains
unchanged) has to be drawn up and a new case number allocated to the
matter. But it does not necessarily mean that different judicial
officers have to sit in the separated matters. The same judicial
officer may sit in both trials. See R
v T 1953
(2) SA 479. The determining factor as to whether a presiding officer
may or may not sit in both the separated trials is the prejudice that
the accused person may suffer. See S
v Somciza 1990
(1) SA 361 (A).

[21]
In the present case the learned magistrate did not follow the
procedures that I have outlined above in paragraphs 18 and 19 meaning
that an irregularity which renders the proceedings to be not in
accordance with justice occurred. Both the conviction and sentence
need to be set aside. The only question which remains to be
considered is whether the matter must be remitted for rehearing
before the same Magistrate.

[22]
The learned magistrate, in delivering judgment, rejected the
accused's (i.e. accused No. 2) version of events. It is highly
undesirable that an accused who has been found guilty by a particular
magistrate and whose conviction and sentence have been set aside
should be retried, before the same magistrate, where, as occurred in
this case, that magistrate has made findings in which she has
accepted the evidence tendered by the prosecution. See R
v Nqubuka 1950(2)
SA 363(T) at 365; S
v
Siphambo 1963(1)
SA 174(N) at 175.

[23]
In the result, the following orders are made:

IN
RESPECT OF ACCUSED NO.1

1.
The conviction and sentence are set aside.

2.
In terms of section 312(1) of the Criminal Procedure Act, 51 of 1977,
the matter is remitted to the trial court with the direction that it
complies with the provisions of section 112(1)(b) of that Act and
further to deal with the accused according to law.

IN
RESPECT OF ACCUSED NO.2

3. 
   The
   conviction and sentence are set aside.

   
   

4. 
   Accused
   No 2 must be dealt with in terms of section 324 read with section
   313 of the Criminal Procedure Act, 1977 (51 of 1977).

   
   

UEITELE,
AJ

I
agree

LIEBENBERG,
J