IN THE HIGH COURT OF NAMIBIA

CASE NO.: CR 02/2011

In the matter between:

THE
STATE
….............................................................................................................PLAINTIFF

and

MAGDALENA
NAMISES
….....................................................................................DEFENDANT

HIGH COURT REVIEW CASE NO
511/2010

CORAM:
DAMASEB JP
et
UEITELE,
AJ

Delivered on:
14^th
February 2011

REVIEW JUDGMENT

UEITELE,
A J: [1]
This is a review judgement.

[2] The accused in this case was
charged and convicted of the offence of arson in that on 20 September
2010 and at or near Tsintsabis in the District of Tsumeb the accused
wrongfully and intentionally set on fire 1x bed and various items and
clothing the property of Edward Amutenya valued at N$5 000-000. She
was sentenced to a fine of N$2000-00 or seven months imprisonment.

[3] Upon receiving the matter
for review on 07 October 2010 I sent the following query to the
presiding officer.

"On what basis is the
accused guilty as charged if arson is defined as follows:

'Arson is committed if a person
unlawfully and intentionally

(a) sets fire to immovable
property belonging to another; or

(b) sets fire to his own
immovable insured property with the intention of claiming its value
from the insurer. V.

See Snyman
C.R
Criminal Law 2^nd
e d p.523 "
Also see: S
v
Dawid 1993
Nr 316.

[4] The
learned magistrate replied as follows: "The
Courts a agreed (sic) with the definition by Snyman. The conviction
and sentence can be quashed and the accused's liberty to restored
(sic)."

[5] The concession by the
learned magistrate is correctly made because the crime of arson can
only be committed in regard to immovable property. A bed and various
clothing items are not immovable property.

[6] I take
cognisance of the fact that malicious damage to property is a
competent verdict to the charge of arson S
v
C Motau en n Ander 1963
(2) SA 521 (T)). Apart from the fact that the crime of arson can only
be committed in regard to immovable property, the record does not
disclose the circumstance under which the bed and the clothing were
set on fire. The intention of the accused person cannot be assumed.
It must be established and proven; nor can it be assumed that the
accused person acted negligently.

[7] In the circumstances,
neither can the matter be remitted to the magistrate to consider a
conviction on the basis of malicious damage to property nor can this
Court substitute such a verdict. In the result the conviction and
sentence are set aside.

[8] It may be appropriate to, in
passing, advice magistrates that although the Criminal Procedure Act,
1977 has been amended so as to increase the maximum fines that may be
imposed by magistrates, the provisions of section 112(a) of that Act
(as amended by Act 10 of 2010) must only be resorted to where the
offence or crime involved does not contain technical elements which
require questioning of the accused in order to establish the
accused's guilt.

UEITELE,
AJ

I agree.

DAMASEB,
JP