CASE NO.: CA96/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

ELIZABETH IILEKA APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG J & TOMMASI J

Heard on: 25 June 2010

Delivered on: 30 July 2010

APPEAL JUDGEMENT

TOMMASI J: [1] The appellant a 51 year old
female, appeared in the Magistrate’s Court on a charge of stock
theft in that she stole two donkeys to the value of N$1400.00. The
appellant pleaded guilty and previous convictions were not proven
against her. The Magistrate stopped the proceedings and referred the
matter to the Regional court in terms of section 116 (sic) of
the Criminal Procedure Act, 1977 (Act 51 of 1977).

[2] The Regional Court Magistrate, on 20 May 2009, imposed a
sentence of 20 years imprisonment of which 15 years were suspended
for five (5) years on condition that the accused is not convicted of
stock theft, read with Act 12/1990, as amended, committed during the
period of suspension.

[3] In a letter dated 22 May 2009 titled “Application of
Appeal (Fine)”, the appellant requested that she be given a
fine. She indicated in this letter that she is 60 years old; she was
the primary caregiver of her 12 children; her husband was blind; and
that they were pensioners and largely dependent on the crops she
cultivated.

[4] The Regional Court Magistrate gave his reasons for sentence
wherein he stated that: the appellant raised new facts in mitigation
that were not put before the court a quo; he found no
compelling and substantial circumstance; the penalty clause in the
Stock Theft Act 1990 (Act 12 of 1990) does not make provision for a
fine to be imposed; in terms of section 297 (4) of the Criminal
Procedure Act 1977 (Act 51 or 1977), only a portion of the sentence
may be suspended where a minimum sentence is prescribed; and he
deemed it fit to suspend a large portion of the sentence as this was
reasonable and just under the circumstances.

[5] The appellant, represented by Ms Mainga who appeared amicus
curiae, filed Amended Grounds of Appeal on 11 May 2010.

[6] Counsel for Respondent argued that the matter be struck from the
roll due to the fact that there was no application for condonation
for the late filing of the Amended Grounds of Appeal . Ms Mainga
subsequently filed a Notice of Motion applying for Condonation for
the late filing of the Amended Grounds of Appeal. The Respondent,
although it did not file a Notice to Oppose, persisted with its
objection to condonation.

[7] It is apparent from the application that an oversight of the
Legal Practitioner was the cause of delay. This Court however took
into consideration the fact that counsel for the Appellant was
assisting the court as amicus curiae; the importance of some
of the issues raised in the Amended Grounds of Appeal; and the fact
that no real prejudice has been suffered by the Respondent and the
Regional Court Magistrate, who filed his additional reasons in
response to the Amended Grounds of Appeal. In addition hereto this
Court found irregularities in the application of section 114 of the
Criminal Procedure Act, 1977 (Act 51 of 1977) and that a failure of
justice has in fact resulted from such irregularity. It would thus
be in the interest of justice for the matter to be considered on the
merits. Under these circumstances the Application for condonation
is granted.

[8] The typed record of proceedings in the Magistrate’s Court
consists of an Annexure in terms whereof the Appellant was charged of
common law theft of two donkeys. The written record of the
proceedings in the Magistrate Court includes an Annexure containing a
charge sheet in terms whereof the Appellant was charged with Stock
theft in terms of the provisions of the Stock Theft Act, 1990 (Act 12
of 1990) as amended by Act 19 of 2004; and the penalty clause in
terms of section 14, 15 and a reference to S V VRIES NMHC CR32/96
included at the bottom of the page.

[9] The written record reflects “charge read”. It does
not appear ex facie the record that the penalty clause was
read to the Appellant in the Magistrate’s Court. The Appellant
pleaded guilty and was questioned in terms of section 112 (1) (b).
In particular, the following question was posed by the presiding
Magistrate: “The (c) (complainant?) has valued her stock at
N1400.00 do you disp (dispute?) “ to which the Appellant
answered “No”. The Appellant was convicted on her
plea of guilty. The State prosecutor proved no previous convictions.
The proceedings were stopped and the matter transferred, to the
Regional Court for sentence in terms of section 116. This was
obviously not correct as the Magistrate was supposed to have done so
in terms of section 114 of the Criminal Procedure Act 1977 (Act 51 of
1977) since the Appellant pleaded guilty.

[10] The record of the proceedings in the Regional Court consists of
the following:

1. A roneoed form titled “Annexure” incorporating blank
spaces to be completed by the presiding judicial officer.

This document reflects the following:

(i) Date and the parties to the proceedings

(ii). The following sentence:

“Accused, this is a matter for sentencing in the Regional
Court”

(iii). Penalty clause (Section 14 as amended by act 19 of
2004)....

Section 14 (1) (a) (i), (ii) and (b) of the Stock theft Act,1990 (Act
12 of 1990) as amended by Act 19 of 2004 is typed fully and section
14 (2) is paraphrased to read:

‘If there are compelling and substantial circumstances
present, the court may impose a lesser sentence. You must bear this
in mind during mitigation.”

(iv). The following question:

“Do you understand?

Accused:

No answer is written in the space provided for the Appellant’s
response.

(v) An explanation to the accused of her rights to legal
representation. The Regional Court Magistrate indicated with a right
tick that the Appellant opted to conduct her own defence. The
Regional Court Magistrate thereafter noted the submission by the
Prosecutor that the accused is a first offender.

2. A typed document appears paraphrasing the provisions of section 14
(1) and (2) of the Stock Theft Act 12 of 1990 as amended. It is
unclear why this document forms part of the record as there was no
indication that the contents thereof was read and understood by the
Appellant.

3. A roneoed Annexure titled “Rights to Mitigation”
explaining the penalty provision in terms of section 14 (1) (a) (i)
i.e. where the value of the stock is less than N500.00 forms part of
the record.

Ex facie this document it can safely be inferred that, if it
was read to the Appellant, the Appellant was not informed that she
faces a sentence of not less than 20 years as the value of the cattle
was N$1400.00. The written indication on this document was that the
Appellant confirmed that she understands her rights; she did not have
witnesses to call; and opted not to testify under oath.

[11] Some confusion arose when the record of the proceedings in the
Magistrate’s Court was perused as it contained two charge
sheets. In S v KAMUDULUNGE 2007 (2) NR 608 (HC) it was held that the
Magistrate and the Clerk of Court should take proper care when
preparing the record and that the charge sheet and annexures to the
charge-sheet should correspond. I can only re-iterate the sentiments
expressed therein. The first charge sheet clearly was not the one
used and it should not have been incorporated in the record.

[12] From the record it is clear that the Magistrate and the Regional
Court Magistrate’s failed to apply the correct procedure as is
required in terms of section 114 of the Criminal Procedure Act, 1977
(Act 51 of 1977). Section 114 provides as follow:

“Committal by
magistrate's court of accused for sentence by regional court after
plea of guilty

(1) If a magistrate's court,
after conviction following on a plea
of guilty but
before sentence, is
of the opinion-

(a) that the offence in
respect of which the accused has been convicted is of such a nature
or magnitude that it merits punishment in excess of the jurisdiction
of a magistrate's court; or

(b) that ....

the court shall stop the
proceedings and commit the accused for sentence by a regional court
having jurisdiction.

(2) Where and accused is
committed under subsection (1) for sentence by a regional court, the
record of the proceedings in the magistrate's court shall upon proof
thereof in the regional court be received by the regional court and
form part of the record of that court, and the plea of guilty and any
admission by the accused shall stand unless
the accused satisfies the court that such plea or such admission was
incorrectly recorded.

(3) (a) Unless the regional
court concerned-

(i) is satisfied that a plea
of guilty or an admission by the accused which is material to his
guilt was incorrectly recorded; or

(ii) is not satisfied that
the accused is guilty of the offence of which he has been convicted
and in respect of which he has been committed for sentence,

the court shall make a
formal finding of guilty
and sentence the accused.

(b) If the court is satisfied
that a plea of guilty or any admission by the accused which is
material to his guilt was incorrectly recorded, or if the court is
not satisfied that the accused is guilty of the offence of which he
has been convicted and in respect of which he has been committed for
sentence or that he has no valid defence to the charge, the court
shall enter a plea of not guilty and proceed with the trial as a
summary trial in that court: Provided that any admission by the
accused the recording of which is not disputed by the accused, shall
stand as proof of the fact thus admitted. (my emphasis)

[13] The Magistrate correctly convicted the Appellant but in
transferring the matter to the Regional Court must form an opinion
that the offence in respect of which the accused has been convicted
is of such a nature or magnitude that it merits punishment in excess
of the jurisdiction of a magistrate's court. In this instance
it was essential for the presiding magistrate to have been satisfied
that the value of the stock was proven to have been more than
N$500.00 in order to form the required opinion.

[14] It is not enough that the Appellant was not disputing the value
of the stock involved to satisfy the presiding magistrate that the
value of the stock was proven. In S v KAULEEFELWA 2006 (1) NR 102
(HC) where the accused did not dispute the value when questioned in
terms of section 112(1)(b), the Review Court remarked that the
accused's response to the District Magistrate's question regarding
the value of the stolen cattle, did not constitute an unequivocal
admission and that his answer falls significantly short of an
admission of the assessed value. (See also S v GUIM AND ANOTHER 2008
(1) NR 305 (HC))

[15] Although it is not essential to prove the value of the stock in
order to convict it is still required of the Magistrate to form the
opinion that the value of the stock exceeds N$500.00 before stopping
the proceedings. This however does not vitiate the proceedings in
the Magistrate’s Court as the Regional Court is empowered by
section 114 (4) to deal with the matter in terms of the provisions of
section 112(3) of the Criminal Procedure Act, 1977 (Act 51 of 1977).

[16] There is however no indication on the record of proceedings in
the Regional Court that the Regional Court Magistrate applied the
provisions of section 114 (2) and (3) in that it does not reflect
whether the provisions of section 114(2) and (3) were explained to
the unrepresented Appellant; neither did he afford the unrepresented
Appellant the opportunity to satisfy the court that such plea or such
admission was incorrectly recorded. Section 114 (2) affords an
accused the opportunity to dispute the correctness of the plea and
admissions, and failure to allow an accused to do so is not only
contrary to the spirit of the governing section, but also
intrinsically unfair to the accused.

[17] Ex facie the record no formal finding of guilty was
recorded. A formal conviction in the Regional Court is mandatory and
an omission to do so constitutes an irregularity. It is not enough
for the Regional Court Magistrate to inform an accused that “this
matter is for sentence in the Regional Court. The entire
proceedings in the Regional Court may for the above reasons alone be
set aside and remitted to the Regional Court in order to comply with
the provisions of section 114 (2) and (3).

[18] A further reason is to be found in the Appellant’s first
ground of Appeal which essentially complains that the Regional Court
Magistrate did not inform the Appellant, who was unrepresented at the
time, of the prescribed minimum sentence and that she could adduce
evidence of substantial and compelling circumstances.

[19] In this matter the roneoed forms were inserted into the record
with no indication of its relevance; blank spaces left for the
response of the accused were not completed; and forms were used not
relevant to the charge the Appellant was convicted of in the
Magistrate’s Court. The only reasonable inference to be drawn
from the aforementioned chaos is that the importance and the impact
of the penalty clause in respect of stock, valued at more than
N$500.00, was not properly explained to the unrepresented Appellant.

[20] I have to agree with my brother HEATHCOTE AJ when he said the
following in S v ZINGOLO 2005 NR 349 (HC) on page 368:

“it is not sufficient merely to use roneoed forms by
paraphrasing the sections of the Criminal Procedure Act. Roneoed
forms have their purpose, but it should never be allowed to
become a substitute for the application of the mind to the relevant
circumstances of the case. More was needed to ensure a
fair trial in the appellant's case. By far the majority of accused
persons are unrepresented. It is in this sense that I agree with Van
Dijkhorst J that: 'Considerations of effectiveness lose their
persuasion when the serious repercussions for the accused of high
fines, moral turpitude and even imprisonment are borne in mind.'’

[21] In S v KAULEEFELWA supra Maritz J, as he then was, ruled
that it was the duty of the magistrate to explain the provisions and
implications of s 14 of the Stock Theft Act, 1990 (Act 12 of 1990) as
amended to the unrepresented accused.

[22] In S v GURIRAB 2005 NR 510 (HC) Heathcote J on page 517 makes
the following remarks:

In casu, the magistrate should have, at the latest, after the
accused was convicted, informed him that it was the duty of the court
to imprison the accused for a minimum specified period unless
substantial and compelling reasons exist. That in itself would not
have sufficed. Lawyers grapple with the concept 'substantial and
compelling reasons'. What would the position of an unrepresented
accused be, who has just been found guilty, but does not really
understand or appreciate the fact that he might be going to prison
for 15 years 'unless substantial and compelling reasons' are advanced
and found to be in existence.

[23] Under the circumstances it cannot be said that the unrepresented
Appellant, having been convicted of a more serious offence than the
one that has been explained, had a fair trial. This constitutes a
further reason for the setting aside of the sentence.

[24] A further ground of Appeal that needs to be addressed is the
allegation that the Regional Court Magistrate failed to assist the
unrepresented Appellant during the sentencing procedure.

[25] In response to the Amended Notice of Appeal the Regional Court
Magistrate insisted that the sentence imposed was just but stated the
following:

“On the record, it is clear that the mitigating factors are
not very clear”

[26] The main reason for the fact that the mitigation factors were
not clear can be found in the lack of assistance provided when the
Appellant placed the following personal circumstances before the
court:

“I am 51 years old. I am married with 12 children. I am
unemployed. I only working (sic) in the field with cultivation. I
am asking for leniency and mercy from the court. We survive on
porridge from the mahangu. That is all”.

[27] Simple questions following on information supplied by the
Appellant would have given the Regional Court Magistrate a better
understanding of the personal circumstances of the Appellant eg. when
she stated she was married, the court could have elicited more
details of the spouse by asking exploratory questions. It is simply
not enough, when an unrepresented Appellant faces an imprisonment
sentence of twenty (20) years to do nothing more than note down the
meagre information given by the unrepresented accused. (See S v
Gurirab supra)

[28] The remaining grounds become purely academic in view of the
order that is made hereunder.

[29] The sentencing proceedings cannot be allowed to stand and the
Appeal against sentence is upheld and the following order is made:

[30] It is ordered that:

1. The Appellant's application for condonation for the late filing of
her appeal against sentence is granted.

2. The Appellant's sentence is set aside.

3. The matter is referred back to the Regional Court for the district
of Ondangwa for sentencing afresh and to comply with the provisions
of section 114 (2) & (3) of the Criminal Procedure Act, 1977 (Act
51 of 1977).

4. The magistrate is furthermore directed to take into consideration,
in whatever sentence is to be imposed, that the appellant has already
served a sentence as from the date the original sentence was imposed.

_____________________

TOMMASI J

I concur

____________________

LIEBENBERG J