S v Korner (CRIMINAL 80 of 2011) [2011] NAHC 255 (24 August 2011);
CASE
NO.: CR 80/2011
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
and
RICARDO
KORNER
GERT
KOCK
(HIGH
COURT REVIEW CASE NO.: 537/2011)
(MAGISTRATE’S
SERIAL NO.: 22/2011)
CORAM: PARKER,
J et SHIVUTE, J
Delivered on: 2011
August 24
REVIEW
JUDGMENT
SHIVUTE,
J: [1] The
accused persons appeared before the Magistrate, Windhoek on a charge
of stock theft. It is alleged that on the 12 December 2009 at Farm
Gaub West in the district of Windhoek the said accused persons did
unlawfully and intentionally steal stock to wit seven sheep the
property of or in the lawful possession of John Abraham Ockhuizen
valued at N$5760.00.
[2] Both accused
persons pleaded guilty and the court applied section 112 1(b) of Act
51 of 1977. They both admitted all the allegations and elements of
the offence and they were convicted accordingly. The district court
magistrate then referred the matter for sentencing to the Regional
Court. At the time the accused persons appeared before the District
Court they were not legally represented.
[3] When the
matter came before the Regional Court both accused persons were
represented. The prosecutor informed the court that the accused
persons want to change their plea from theft of seven sheep to theft
of one sheep. The State Prosecutor further informed the Court that
he had consulted with the complainant and that he would accept the
plea.
[4] The
Court instead of entering a plea of not guilty in terms of Section
113 of the Criminal Procedure Act,
allowed counsel for the defence to call the two accused persons to
testify in mitigation of sentence. After both accused persons
testified in mitigation, the Regional Magistrate realized that he
made an error. As a result of this,
he then forwarded the matter for Special Review.
[5] In his
covering letter accompanying the record of proceedings he stated the
following:
“I realized that I
misdirected myself for allowing that procedure to take place. The
proper procedure, I now realised, was to enter or note a plea of not
guilty in terms of Section 113 Act 51 of 1977 and have the State
evidence on the quantity and value of the stolen stock.
Alternatively both accused persons through their lawyer could have
made formal admissions setting out the quantity and the value of what
they stole. Where after the State may either accept the admissions
made or decide to call more witnesses. In the result, I request the
Honourable Reviewing Judge to set aside the proceedings of this court
for the 28 January 2011 and remit the matter back to this court with
any guidance the Honourable Reviewing Judge may recommend.”
[6] I fully agree
with the proposition made by the learned magistrate. The magistrate
ought to have noted a plea of not guilty in terms of Section 113 of
Act 51 of 1977. The procedure he followed was an irregular one.
[7] In the result
the proceedings which took place on 28 January 2011 is set aside.
The matter is remitted back to the Regional Magistrate to enter a
plea of not guilty in terms of Section 113 of the Criminal Procedure
Act.
__________________
SHIVUTE, J
I
agree
___________________
PARKER,
J