CASE NO.: CR 72/2011

IN
THE HIGH COURT OF NAMIBIA

In the matter between:

THE
STATE

and

JOHN
KADIMBA
…......................................................................................ACCUSED
1

SIMION
MBENGELA
…...............................................................................ACCUSED
2

(HIGH COURT REVIEW CASE NO.:
1217/2011)

CORAM:
MULLER, J et
SWANEPOEL, J

Delivered on: 12 August 2011

REVIEW
JUDGMENT

MULLER, J.: [1]
The accused was convicted on his plea of guilty of the theft of one
goat valued at N$250.00. He was sentenced to two years imprisonment
on 18 February 2010, a year and 6 months ago.

[2] I addressed the following queries
to the magistrate:

“1.
Was the provisions of s 14(2) of the Stock Theft Act no. 12 of 1990,
as amended, in respect of substantial and compelling circumstances
explained to the undefended accused? Did the accused understand it
and did he provide any such circumstances? Was the said provision
considered?

2. Why did the magistrate not
consider suspension of part of the compulsory sentence in the
circumstances?

[3] On 9 August 2011 I received the
following reply:

“1.
Kindly be informed that the Magistrate Ms Sakala who presided over
this matter is no longer in the employed (sic) by the Ministry of
Justice // State, as he (sic) contract terminated December 2010.

2. As a result it is highly
impossible to reply to such queries, as I am not in a position to
answer with regard to the omissions of Ms. Sakala.

3. The record of proceedings is
herewith returned for your attention.”

[4] In the light hereof I have to
determine from the record without any assistance by the presiding
magistrate whether the proceedings were in accordance with justice.

[5] From a perusal of the record it is
obvious that the presiding magistrate committed an irregularity by
not informing the unrepresented accused of the provisions of S 14(2)
of the Stock Theft Act, no. 12 of 1990 (the Act) as amended, in
respect of substantial and compelling circumstances. A presiding
magistrate is compelled to explain this to an unrepresented accused
and to ascertain that the accused understands it. (See S v Victor
Mbishe Mbishe, case no: CR 101/2006, delivered on 14 November
2006; S v George Kambonde, case no: 109/2006, delivered on 22
November 2006; S v Franciscus Cloete, case no: CR 109/2009,
delivered on 23 October 2009; and Erastus Munongo v The State,
case no: CA 104/2010, an appeal judgment delivered on 9 December
2010).

Thereafter the magistrate has to be
satisfied that no such substantial and compelling circumstances exist
which may entitle the magistrate to impose a lesser sentence than the
prescribed sentence.

[6] Nothing had been done in this
regard and the magistrate approached the issue of sentencing as if it
was just another conviction and not one in terms of the Act. This is
also apparent from the magistrate’s very brief judgment on
sentencing.

[7] The conviction of the accused will
be confirmed. However, in respect of sentence, I consider the facts
that the accused is young, a first offender, pleaded guilty, as well
as that only one goat with had been stolen with a value of N$250.00
as factors that should have satisfied the court a quo to
deviate from the prescribed minimum sentence of two years. That per
se constitutes substantial and compelling circumstances to impose
a lesser sentence than the prescribed sentence. (See Erastus
Munongo v The State, supra, at 9-10 [23-24].)

[8] Taking the mitigating factors into
account, I believe an appropriate sentence would have been one year
imprisonment for this accused and that imposing the prescribed
minimum sentence would be an injustice. Because the accused had
already been sentenced in February 2010 and in the light of my above
decision, I gave instructions to the Registrar to arrange for the
immediate release of the accused and will follow that up with this
judgment substituting the sentence imposed by the presiding
magistrate with one of one year imprisonment. The sentence will be
backdated to 18 February 2010.

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

1. 
   The conviction of the accused is
   confirmed;

   
   

2. 
   The sentence imposed by the presiding
   magistrate on 18 February 2010 is set aside and is substituted with
   the following sentence:

   
   

“1 year
imprisonment”.

3. 
   The sentence is back dated to 18
   February 2010.

   
   

____________

MULLER, J

I agree

_______________

SWANEPOEL, J