CASE NO.: CR 08/2011

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

1. SHIKALE ONESMUS

(HIGH COURT REVIEW CASE NO.: 27/2011)

2. PIRATUS AMUKOTO

(HIGH COURT REVIEW CASE NO.: 28/2011)

3. JUNIAS MWESHIPANGE

(HIGH COURT REVIEW CASE NO.: 68/2011)

CORAM: DAMASEB, JP et LIEBENBERG,
J.

Delivered on: 30.03.2011

REVIEW JUDGMENT

LIEBENBERG, J.: [1] The above-captured cases are
review cases emanating from the same court, and have all been
finalised by the same presiding officer in terms of s 112 (1) (a) of
the Criminal Procedure Act, 1977 (Act 51 of 1977), hereinafter
referred to as ‘the Act’. In respect of the first two
mentioned cases, queries were directed to the magistrate inquiring
from him whether he, when exercising his judicial discretion to
finalise both cases involving crimes of housebreaking with intent to
steal and theft of goods (valued at N$286.50); and theft of N$1 500
in cash, respectively, considered the crimes committed to be ‘minor
crimes’, justifying its expeditious disposal in terms of s 112
(1) (a) of the Act. The third case came on review subsequent
thereto, and raises the same concern. In the latter, the accused was
convicted of theft of a cell phone (valued at N$1 049) on his bare
plea of guilty.

[2] In respect of all three cases fines were imposed ranging
between N$800 or 8 months imprisonment; and N$1 000 or 8 months
imprisonment. In each case the accused persons were unable to pay
the fines, failing which they now have to serve the alternative
imprisonment of eight months. The sentences became reviewable in
terms of s 302 (1), despite same having been imposed under s 112 (1)
(a) of the Act – something I find anomalous and, in my view,
inconsistent with the aims of s 112 (1) (a).

[3] This untenable situation was brought about by the amendment of
s 112 of the Act through s 7 of the Criminal Procedure Amendment Act,
2010, (Act 13 of 2010), which came into operation on 30 August 2010;
whereby the amount of N$300 specified in s 112 (1)(a), has now been
increased to N$6 000 without, at the same time, increasing the
reviewable fines specified in s 302 (1)(a)(ii) of the Act. Thus,
depending on the period for which a judicial officer has held the
substantive rank of magistrate (less or more than seven years), fines
exceeding N$500 or N$1 000 respectively, are still subject to review
under s 302 (1) of the Act. This unfortunate situation has largely
rendered the review procedure meaningless; as a review judge is now
required to endorse a certificate that the proceedings are in
accordance with justice, in circumstances where the proceedings would
merely reflect the conviction and sentence subsequent to the plea of
guilty, dealt with in terms of s 112 (1)(a) of the Act. Thus,
in criminal cases finalised in terms of s 112 (1) (a) where
reviewable fines are imposed (exceeding the respective amounts stated
in the Act), the function of the review judge pertaining to the
conviction – in my view, thé crucial part of the review
– has almost become obsolete; and the function of a review
judge, in these circumstances, nothing more than rubberstamping. It
can hardly be said that the judge is in a position to decide whether
the proceedings – as far as it concerns the conviction –
is in accordance with justice as he/she is required to do when
reviewing proceedings in terms of s 302 of the Act.

[4] Section 112 (1) of the Act was amended to read as follows:

“(a) the presiding
judge, regional magistrate or magistrate may, if he or she is of

the opinion that the offence
does nor merit punishment of imprisonment or any other form of
detention without the option of a fine or of a fine exceeding N$6
000, convict the accused in respect of the offence to which he or she
has pleaded guilty on his or her plea of guilty only and –

1. 
   Impose any competent
   sentence, other than imprisonment or any other form of detention
   without the option of a fine or a fine exceeding N$6 000; or

   
   

2. 
   Deal with the accused
   otherwise in accordance with law;

   
   

(b) the presiding judge,
regional magistrate or magistrate shall, if he or she is of the
opinion that the offence merits punishment of imprisonment or any
other form of detention without the option of a fine exceeding N$6
000, or if requested thereto by the prosecution, question the accused
with reference to the alleged facts of the case in order to ascertain
whether the accused admits the allegations in the charge to which he
or she has pleaded guilty, and may, if satisfied that the accused is
guilty of the offence to which he or she has pleaded guilty, convict
the accused on his plea of her plea of guilty of that offence and
impose any competent sentence.”

[5] From the wording of ss (1) of s 112 it is
clear that the presiding officer is authorised to convict an accused
on his bare plea of guilty where he or she is of the opinion that the
offence in question does not merit certain kinds of punishment; or a
fine exceeding N$6 000. The presiding officer therefore has a
discretion which must be exercised judiciously. This discretion will
mainly be influenced and determined by the circumstances of any
particular case and the information available to the presiding
officer, allowing him or her to form an opinion. It seems to me that
in order to make a judicial discretion at all possible, there has to
be sufficient
information
before the court to rely on, which would enable it to reach a
decision as to the procedure to be followed. Whereas the court in
most instances would have very little information to decide on,
besides what is alleged in the charge, it would be useful for the
presiding officer to request the prosecutor to give a short summary
of the State’s case if the court is uncertain whether or not it
should question the accused in terms of s 112 (1) (b). At the plea
stage the prosecutor has more information of the offence allegedly
committed and the circumstances surrounding the commission of the
crime, than what the court would have; therefore the court is obliged
to question the accused about the alleged facts, if the prosecutor
directs such request to the court in terms of s 112 (1)(b). This
would normally occur when the case involves a serious offence or when
the accused has previous convictions, obviously, unknown to the
court. Although the courts often would be guided by the prosecutor’s
attitude to the appropriateness of summary disposal of a case, it
must be borne in mind that it ultimately remains the court’s
decision, a discretion that must be
exercised judiciously.
This decision should not be made lightly – more so, where a
heavy fine of up to N$6 000 can now be imposed upon an accused’s
bare plea of guilty. Therefore, when the court is in doubt about the
seriousness of the transgression, questioning about the alleged facts
in the charge should be done.

[6] In deciding the course, the presiding
officer will be guided by (i) the nature and the seriousness of the
offence (S v Phundula¹);
(ii) the possibility of compulsory sentences; and (iii) the
particulars in the charge. When considering the particulars with the
view of disposing of the case expeditiously, the judicial officer is
required to look for indications that the offence is not of a serious
nature. Only relatively minor offences should be dealt with under s
112 (1) (a) and in S v Aniseb and
Another²,
Hannah AJ (as he then was), remarked as follows:

“The policy behind s
112 (1) (a) is clear. The Legislature has provided machinery for the
swift and expeditious disposal of minor
criminal cases
where the accused pleads guilty. The trial court is not obliged to
satisfy itself that an offence was actually committed by the accused
but accepts his plea at face value. The accused thus loses the
protection afforded by the procedure envisaged in s 112 (1) (b), but
he is not exposed to any really serious form of punishment.
The court may not pass a sentence of imprisonment or any other form
of detention without the option of a fine or whipping and any fine
imposed must not exceed [N$300]” (Emphasis provided)

[7] The words of the subsection are similar to
those of its predecessor³
and it seems clear that the Legislature’s intention from the
onset has been that an accused could be convicted on his bare plea of
guilty, but this procedure should be reserved for cases considered to
be ‘minor’, ‘trivial’ or ‘not serious’.
Should an accused in the past erroneously pleaded guilty on a charge
considered not to be serious, and the case was finalised under s 112
(1) (a), then he was not at risk of any severe punishment; because
the maximum fine that the court could impose at the time, was only
N$300; excluding a sentence of imprisonment or any other form of
detention.

[8] At present, because of the amendment of s
112 of the Act, this is no longer the case, for the maximum fine has
been increased to N$6 000. This ultimately brought about an
increased risk that an accused could now be fined far beyond his
means, resulting in him having to serve the alternative imprisonment;
which often are lengthy terms. The reason for this is because of the
legal principle that there should be a relation
between the fine imposed and the alternative imprisonment. In other
words, an increase in fines would impact on the alternative
imprisonment as there should be a relation between the two. See: S
v Smith⁴;
S v Bokbaard⁵;
The State v Benjamin Mbwale⁶.
In Smith
it was said:

“Imprisonment
as an alternative to a fine serves a twofold purpose. It should be
aimed at inducing the offender rather to pay the fine than to serve
the imprisonment so imposed and, on default of payment of the fine,
to serve as the punishment. As far as the determination of the term
of the alternative imprisonment is concerned, it is difficult to
make that determination as if the imprisonment was the only
punishment which was being imposed. Where a fine is imposed,
imprisonment is ex
hypothesi
inappropriate and would not have to be imposed at all if payment of
the fine was ensured or could be readily enforced by execution (s
288 (1)(a) of the Act). Alternative
imprisonment is therefore primarily a mechanism for collecting the
fine, but the
officer imposing sentence should naturally bear properly in mind the
possibility that the fine will not be paid and that the imprisonment
will have to serve as an (inappropriate) punishment. The
imprisonment should therefore be just severe enough
to make failure to pay the fine problematical.”
(Emphasis provided)

[9] The
three cases at hand are good examples where none of the accused
persons were financially in the position to pay the fine, or able to
do so with the assistance of family and friends; therefore each
having to serve the alternative term of eight months imprisonment.
Piratus Amukoto informed the court that he was unable to pay a fine –
that notwithstanding, he was sentenced to N$1 000 or 8 months
imprisonment.

Shikale Onesmus is seventeen years of age and a
scholar and said he would be able to raise N$300 – he was
sentenced to N$800 or 8 months imprisonment.

Junias Mweshipange earns N$300 per month and was sentenced to N$1 000
or 8 months imprisonment.

In another case finalised in terms of s 112 (1)(a)
and which came before this Court on review, an alternative sentence
of two years imprisonment was imposed in default of payment of a fine
of N$4 000 (an instance where the accused was wrongly convicted of
arson). In effect, all the above mentioned accused were sentenced to
lengthy custodial sentences on their
mere pleas of guilty.

[10] I have no doubt in my mind that the
Legislature never intended changing the ambit of s 112 (1) (a) when
increasing the maximum fine whereby accused persons, on their mere
pleas of guilty, are given excessive fines and expected to raise
money far beyond their means; failing which, in the majority of
cases, resulting in lengthy custodial sentences being served. This
untenable situation is brought about when presiding officers wrongly
invoke the provisions of s 112 (1) (a) in order to swiftly dispose of
cases without having proper regard to the nature
of the offence and the particulars of
the charge.

[11] It seems to me that since the amendment
became operative, the particulars of the offences allegedly
committed, are now largely ignored; or given insufficient
consideration by presiding officers when exercising their discretion
whether or not to invoke the provisions of s 112 (1) (a); and that
the emphasis is only
on the fine that could be imposed to a maximum of N$6 000. In other
words, the reasoning seems to be that, irrespective of the nature and
particulars of the alleged offence, a severe fine, would be
justified, even though the accused would be unable to pay the fine
and therefore has to serve a custodial sentence. It is because of
this approach that cases involving crimes such as housebreaking with
intent to steal; theft; assault with intent to cause grievous bodily
harm; and, even arson, are lately finalised in terms of s 112(1)(a)
of the Act. As earlier stated, the provisions of s 112(1) (a) apply
only to
those cases involving offences considered to be minor; where the
accused can be taken on his word to have committed the crime -
without the court having to satisfy itself by questioning the accused
in terms of s 112(1) (b) that an offence was committed and that it
was the accused who committed it.⁷
Specific provision is made in the Act to deal with guilty pleas
involving serious offences in terms of s 112 (1) (b) and presiding
officers should fully understand the distinction between the two
subsections and the ambit of each, when exercising their judicial
discretion during a plea of guilty.

[12] The presiding magistrate in the three
review cases under consideration invited the Court to give guidelines
on the applicability of s 112 (1)(a) as, in his view, a sentence of a
fine of N$6 000 can hardly be seen to be applicable in cases
involving ‘minor offences’; that the section permits
penalties suitable to ‘serious offences’; that there is
no clear distinction to which offences or circumstances the section
applies; and presiding officers may differ in opinion on which
offences are deemed to be minor offences for which fines are
considered suitable punishment in terms of the Act.

[13] The guidance sought by the magistrate was
to a large extent provided in S v
Aniseb (supra) where the Court
considered two South African decided cases which deal with the
interpretation of s 112 (1)(a), namely, S
v Mia⁸
; S v
Cook⁹
and quoted with approval, a passage from Mia,
where Miller J at 719C-E said :

“It is true that s
258(1) (b) [s 112 (1) (a)] ought not to be invoked, as a general
rule, in a case of theft or in any common-law offence which is not
trivial, but there is no justification for holding that it is never
to be invoked in a case of theft. Section 258(1)(b) [s 112(1)(a)]
does not in terms limit its applicability to minor statutory
contraventions nor do any of the decisions, so far as I am aware, lay
it down as a rigid rule of practice that that section is never to be
invoked in a case of a common-law offence. In enacting s 258(1)(b) [s
112 (1)(a)] the Legislature clearly had in mind trivial and petty
offences and was concerned to enable such offences, whatever they
might be, to be dealt with swiftly and expeditiously. (R v Vabaza
1948 (2) SA 451 (E).)”

Hannah AJ in Aniseb at 416d-e, whilst referring to the Cook
case (supra) stated:

“…reference was
also made to an offence of a trivial nature, the Court holding that
the presiding
magistrate had a duty to decide whether the offence was of such a
trivial nature that it met the requirement of the proviso in s 258(1)
(b).”
(Emphasis provided)

And further at 416e-g:

“I respectfully agree
with Miller J that s 258(1)(b), and its successor, s 112(1)(a), can
be invoked not only in the case of a minor statutory contravention,
but also in the case of a common-law offence such as theft or common
assault. In R v Vabaza (supra) Gardiner J gave as examples of such
cases theft of apples by a schoolboy and an assault consisting of a
light box on the ear. However, it can seldom be said that a crime
such as housebreaking with intent to steal and theft is a minor
offence. There may be exceptional circumstances which would render it
so, but in the general classification of crime it ranks quite high in
degree of seriousness.”

[14] From the above cited cases it is clear that certain offences
should not – and in my view cannot – be identified or
listed for disposal in terms of s 112 (1) (a) of the Act, as the
basis for deciding to do so is not only determined by the
sentence that can be imposed, but more specifically, by the
particulars in the charge. For example: In one case it may be
appropriate to summarily dispose of a case involving the offence of
theft, justifying a small fine; compared to another, where theft was
also committed, but in circumstances where a sentence in excess of
the maximum of N$6 000 is called for. In the latter instance the
presiding officer has to appreciate the different circumstances
between the two cases, and exercise his or her judicial discretion
accordingly. Here the required procedure is not determined by the
sentence that could be imposed, but by the particulars of
the charge.

[15] Despite the maximum fine being increased substantially,
presiding officers should guard against indiscretionate summary
disposal of cases – whilst rightly acting within the law in
terms of section 112 (1)(a), but at the same time, compromising an
accused person’s Constitutional right to a fair trial. In my
view, the presiding officer, when exercising his or her judicial
discretion, must decide whether or not the nature of the offence and
the particularity thereof are such that the accused can be convicted
on his mere plea of guilty without further elucidation; disposing of
the safety measure against injustice flowing from an unjustified plea
of guilty. I find the remarks made in Hiemstra’s Criminal
Procedure on point and apposite, where the learned author states
the following at 17-3:

“In S v Addabba; S v
Ngeme; S v Van Wyk 1992 (2) SACR 325 (T) it was pointed out, with
respect, correctly, that, especially where accused are unrepresented
or unsophisticated and the envisaged sentence is not trifling, it is
not only desirable but necessary for the fair administration of
justice that the magistrate conduct an inquiry as if it were a case
under section 112 (1) (b). The presiding officer must assess
judicially which procedure should be followed. As the court stressed
in Addabba, the current procedure is still aimed at petty
cases. It must also be remembered that a conviction without any
evidence or other objective information about the accused’s
guilt means that the accused’s opinion on the matter is
accepted by the judicial officer, and that many accused are helpless
illiterates who may lack sufficient understanding of the
consequences.”

These remarks underscore the need for presiding officers to approach
a plea of guilty by an unrepresented accused with the view and aim of
dispensing fair justice; and not to dispose of the case expeditiously
simply because the Act allows such procedure.

[16] Returning to the three cases at hand, I am unable to see how
crimes such as housebreaking with intent to steal and theft; and
theft of goods valued at more than N$1 000, can be considered to be
‘minor offences’. In Aniseb it was made clear
that even where the amount allegedly stolen was relatively small,
this does not detract from the seriousness of the crime itself. In
all three cases, there is nothing apparent from the particulars of
the respective charges indicating that these were minor offences,
justifying its summary disposal in terms of s 112 (1)(a). It seems
that the magistrate was guided by the prosecutor’s opinion that
these matters should be disposed of in summary fashion; without the
court exercising its judicial discretion independently from the
prosecutor’s view.

[17] What I find most surprising and conflicting is that although
the prosecutor held the view that these cases could be finalised in
terms of s 112 (1)(a) – thereby implying that they were minor
offences – he, when addressing the court on sentence, submitted
that the offences were of serious nature. What boggles the
mind is, how can the same offence at the stage of pleading be
considered to fall in the category of crimes classified as ‘minor
offences’, but when it comes to sentence, the same offence (on
the very same facts), is elevated to a ‘serious crime’?
Prosecutors are reminded that they are officers of the court; and as
such under a duty to serve the interests of justice. Had the
prosecutor representing the State in these cases been serious, then
he would not have intimated to the court to invoke the provisions of
s 112 (1) (a); but instead, would have insisted that s 112 (1) (b) be
applied, where the court was obliged to do so in terms of the Act.
However, as stated hereinbefore, the final decision lies with the
presiding officer who must exercise a judicial discretion, not the
prosecutor.

[18] In my judgment the magistrate, presiding over the three cases
dealt with herein, failed to exercise his discretion judiciously, in
that he failed to properly apply his mind to the provisions of the
subsection. In these circumstances the convictions and sentences
cannot be permitted to stand.

[19] In the result, the Court makes the following order:

1. 
   The judgment and sentences in the following cases are set aside: The
   State v Shikale Onesmus; S v Piratus Amukoto; S v Junias
   Mweshipange.

   
   

2. 
   These cases are remitted to the magistrate with a direction that it
   be dealt with afresh from the stage of plea.

   
   

3. 
   In the event of a conviction the sentencing court must have regard
   to the sentence already served.

   
   

_________________________________

LIEBENBERG, J

I concur.

_________________________________

DAMASEB, JP