CASE NO.: CR 12/2011

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

DANIEL NDAMANGULUKA

(HIGH COURT REVIEW CASE NO.: 48/2011)

CORAM: LIEBENBERG, J. et TOMMASI, J.

Delivered on: 27 May 2011.

REVIEW JUDGMENT

LIEBENBERG, J.: [1]
The accused appeared in the Magistrate’s Court, Oshakati on a
charge of theft of cash in the amount of N$6 300, to which he pleaded
not guilty. In his plea explanation he admitted having taken N$4 600
“because I was separated from my
friends and I was never given food” and
that the money was used to buy food. The matter was then postponed
for further investigation and trial.

[2] During a subsequent appearance the prosecutor informed the court
that the accused intended pleading guilty to theft of cash in the
amount of N$4 600 only, and that the State would accept the plea.
After confirming this with the accused the court convicted the
accused on his mere plea of guilty in terms of s 112 (1)(a) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), hereinafter referred
to as ‘the Act’. He was sentenced to a fine of N$600 or 3
months imprisonment. Whereas the fine was not paid, the matter became
reviewable in terms of s 302 (1)(a)(i) of the Act.

[3] On review a query was directed to the
magistrate inquiring from her whether, in the light of the accused
having initially raised a defence, the court should not first have
explored this defence before it proceeded invoking the provisions of
s 112 (1)(a) of the Act; whether in the circumstances of the accused
being unrepresented, s 112 (1)(b) should not instead have been
applied to ensure that the accused did not erroneously plead guilty
to the charge, albeit on a lesser amount; and lastly, in view of S
v Aniseb,¹
the magistrate was of the view that a charge of
theft of N$4 600 was considered to be a minor
offence which
could be dealt with in terms of s 112 (1)(a) of the Act.

[4] The magistrate’s reply came almost two months later by
which time the accused had almost fully served his sentence. The
delay was explained by saying that the record was misplaced. I find
the explanation disturbing in the sense that the inattentive handling
of a case record could have grave consequences for a convicted person
who might be serving a sentence in circumstances where the conviction
ought to be set aside on review; and had there been a quicker
response from the magistrate, then the prejudice suffered by the
accused would have been substantially less. The accused in this case
by now would have served his sentence in full, making this judgment
purely academic.

[5] It seems necessary to remind those officers responsible for the
preparation and handling of review cases, as well as magistrates, to
strictly comply with the provisions of the Act and to deal with those
cases as a matter of urgency. Justice can only be delivered through
proper administration by its officials.

[6] The magistrate responded to the query in the following terms:

“1.
(i) The Court was of the opinion that the matter may be finalized in
terms of Section 112 (1)(a) as
the Complainant indicated that he had recovered all of the stolen
money and accused indicated that he had no defense and just wanted to
finalise the matter.

(ii) Yes the Court agrees
with the learned judge’s opinion to question the accused in
terms of Section 112 (1)(b) however, in this instance the Court is of
the opinion that the accused in the first instance just
raised the defence to prolong
the Court proceedings as is normally done by all accused.
It should
also be noted that the
case was finalized upon the request of the accused.

2. With the new amendments to
the fines imposed in terms of Section 112 (1)(a)(b) (sic) I was of
the opinion that the charge of theft of N$4 600, which was wholly
recovered by the Complainant is not such a serious offence, nor is it
a minor offence as stated by the learned judge. Sentence must be
individualized depending upon the circumstances of each case, under
no circumstances should sentence(s) be standardized. Each case must
be treated on its own merits and in light of circumstances. The
admission of guilty (sic) is a yardstick in determining the
seriousness of the offence committed. In sentencing the Court also
had regarded (sic) to time already spent by accused in custody prior
to accused being able to pay bail.”

(emphasis provided)

[7] The record of the proceedings held on 15 February 2011 certainly
does not support the contention that the complainant had recovered
all the stolen money; or that the accused was desirous to have the
matter finalised as suggested by the magistrate in her reasons. Court
proceedings as per the record were as follows:

“SP:
Changing of plea from not guilty to guilty as complainant (sic) is
pleading guilty to the amount of N$4 600 instead of the N$6 300 and
the state accepts the plea.

CRT: Accused are you in
agreement with the changing of the plea from not guilty to guilty?

A: Yes.

CRT: Plea changed to that of
guilty.

SP: May court apply prove of
Section 112 (1)(a).

CRT: Accused the court finds
you guilty based on your own admissions and you are convicted as such
in terms of Section 112 (1)(a).

SP: No previous convictions.

CRT: Accused rights to
mitigation explained …….”

[8] It was only during the prosecutor’s submissions before
sentence that it was brought to the court’s attention that “all
the money was recovered” and not at the stage when the
magistrate was required to exercise her discretion whether to invoke
the provisions of s 112 (1)(a) or not. Hence, it could not have been
a factor taken into consideration at the stage of pleading. It is
furthermore evident that not all the stolen money had been
recovered as stated by the prosecutor and accepted by the magistrate,
because only N$4 600 of the N$6 300 for which the accused stood
charged, was recovered. This could neither have been a reason to
invoke the provisions of s 112 (1)(a).

[9] In the matter of The
State v Shikale Onesmus; The State v Piratus Amukoto; The State v
Junias Mweshipange²
this Court comprehensively dealt with the approach
to be followed by a judicial officer when required to exercise his or
her discretion whether or not to invoke the provisions of s 112
(1)(a); and there is no need to repeat what has been stated therein.
In the present instance it will suffice to say that it would appear
that the magistrate only focussed on the sentence that were to be
imposed and completely disregarded the nature and seriousness of the
offence and its particulars. In this regard the following was said in
the Shikale Onesmus case
at p. 5 of the record:

“[6]
In deciding the course, the presiding officer will be guided by (i)
the nature and the seriousness of the offence (S v Phundula³);
(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 Another⁴,
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 predecessor⁵
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’.”

[10] A charge of theft of N$4 600 cannot be seen
to fall in the category of cases considered to be minor or not
serious; hence, had the magistrate exercised her discretion
judiciously, she instead would have questioned the accused in terms
of s 112 (1)(b) of the Act in order to determine whether he was
guilty of the offence for which he stood charged – especially
against the background where the accused had already raised a
defence. I find the magistrate’s remark that the accused merely
“raised the defence to prolong the
Court proceedings as is normally done by all accused”,
respectfully, misplaced.

[11] Every accused has the right to plead not guilty on any charge
preferred against him or her, as the State bears the onus to prove an
accused’s guilt beyond reasonable doubt. And, it is not a
matter of the accused wilfully frustrating court proceedings by
pleading not guilty, as the magistrate appears to suggest; for it is
an accused’s Constitutional right to do so. There is nothing in
the record of the proceedings showing that the accused acted wilful
and the magistrate’s remark in that regard is accordingly
without merit.

[12] At the time the magistrate had to decide
whether or not to summarily finalise the matter in terms of s 112
(1)(a) after the accused decided to change his plea to guilty, regard
should have been had to the following: The accused was unrepresented
and at first pleaded not guilty, raising a defence of necessity and
admitted having taken the amount of N$4 600. The fact that the
accused thereafter informed the court that he wanted to change his
plea to one of guilty per se
could not have changed the circumstances under
which the alleged crime was committed and the magistrate ought to
have investigated these circumstances through s 112 (1)(b)
questioning, in order to satisfy herself that an offence was actually
committed by the accused – particularly because of the defence
earlier raised. By questioning the accused the magistrate could have
determined whether or not there was any merit in the defence
initially raised, and without doing so, she could not have reached
the conclusion she did.

[13] Given the present circumstances the magistrate’s failure
to question the accused in terms of s 112 (1)(b) of Act 51 of 1977
constituted an irregularity vitiating the entire proceedings; hence,
the conviction and sentence must be set aside

[14] Resultantly, the conviction and sentence are hereby set aside.

_____________________________

LIEBENBERG, J

I agree.

_____________________________

TOMMASI, J