Court name
High Court
Case number
CA 13 of 2009

Kopper v S (CA 13 of 2009) [2011] NAHC 58 (28 February 2011);

Media neutral citation
[2011] NAHC 58

NO. CA 13/2009


the matter between:






J and Smuts, J




The appellant was convicted on 24 February 2005 in the Magistrate's
Court, Leonardville, on a charge of stock theft The presiding
magistrate convicted him after he had pleaded guilty and was
questioned under s 112 of the Criminal Procedure Act, no 31 of 1977
(CPA). The district magistrate was correctly satisfied that the
appellant had admitted all the elements of the charge. When the
matter came up for sentencing on 30 March 2005, four previous
convictions were proved and the case was transferred to the Regional
Court for sentencing in terms of s 114 of the CPA because of the
provision of the Stock Theft Amendment Act which provides for a
mandatory 30 year sentence where an accused has prior convictions and
the value of the stock stolen exceeds N$500. In this case the
appellant was with theft theft of 3 goats valued at N$900.

The proceedings in the Regional Court, Gobabis, commenced on 9 June
2005 with the state prosecutor putting the prior proceedings in the
Magistrate's Court, Leonardville on record. The state prosecutor
informed the Regional Court that the appellant had pleaded guilty to
the charge of the theft of 3 goats, valued at N$900.00, was convicted
on the charge and that previous convictions were proved and admitted.
Because the sentence to be imposed was beyond the jurisdiction of the
Magistrate Court, the matter was transferred to the Regional Court
for sentencing.

After that introduction, the Regional Magistrate enquired from the
interpreter if the appellant followed what was said. The appellant
then denied his guilt and proceeded to deny that he had pleaded
guilty in the Magistrate Court. The Regional Court Magistrate without
further ado recoded a plea of not guilty and postponed the matter for
trial. When the matter resumed in the

Court, a trial commenced and evidence was led. At the end of the
trial, the accused was convicted as charged and sentenced to 30 years

The record of the Regional Court proceedings indicates that a
procedural irregularity had been committed by the Regional
Magistrate. Although she had the record of the magistrate's court
proceedings, she obviously did not base her decision on those
proceedings in order to satisfy herself as required by the provisions
of s 114(2) of the CPA. This she was required to do. All that
occurred according to the record, is that, after the introduction of
the state prosecutor on 9 June 2005, the Regional Magistrate merely
accepted what the appellant said, namely that he did not plead guilty
in the Magistrate's Court to the charges against him. On his mere say
so, she entered a plea of not guilty and proceeded with a trial after
the postponement.

Had she properly had regard to the record in the Magistrate Court at
the outset when she ought to have done so, she would have seen that
the accused had in fact pleaded guilty and admitted all the essential
elements of the charge and was then correctly convicted. It was only
at the end of the trial (after the accused had been erroneously tried
again) that she then referred in her judgment to the record of the
proceedings in the Magistrates Court.

In the event of such a referral, s 114 (3) makes it clear that a
regional court must make a formal finding of guilty and sentence an
accused unless one or two circumstances exist. These are firstly that
the regional court is satisfied that a plea of guilty or an admission
by an accused material to his or her guilt was incorrectly recorded.
That clearly did not occur. The second instance is where the Regional
Court is not satisfied that the accused is guilty of the offence for
which he or she has been convicted and in respect of which the
accused has been committed for sentence.

It is evident that the Regional Magistrate did not consider or even
have regard to the record in the District Court to satisfy herself as
to whether the accused's guilt accorded with his plea of guilty. The
belated reference to that record in her judgment would seem to amount
an attempt to justify her erroneous decision to proceed with a full
scale trial.

The mere statement by the appellant that he was not guilty and had
not pleaded guilty would by no means meet requirement of not being
satisfied that the appellant was guilty of the offence for which he
had been convicted. Indeed a quick perusal of the record would have
demonstrated that the appellant's claim to have pleaded not guilty
was false. There could also be no question that his plea of guilty
was incorrectly recorded. He had after all admitted all of the
elements of the offence and had done so unequivocally and
extensively. There was thus no proper basis for the Regional
Magistrate to have not been satisfied that the appellant had
committed the offence in the circumstances. He had thus been
correctly convicted by the district Court. As neither of the
requisites of s 114 (3) had been met, it follows that the entire
further proceedings before the Regional Court were irregular and have
to be set aside.

In view of the conclusion we reach, namely that the further
proceedings were vitiated by the irregularity, it would not be
necessary to consider the issues of the ineptly prepared notice of
appeal or condonation raised by Ms Husselmann on behalf of the State.

The result is that the accused's conviction in the Magistrate Court,
Leonardville still stands. The referral (committal) to the Regional
Court would also stand. All that must now occur is for the matter to
be referred back to the Regional Court to comply with the provisions
of s 114 (2) of the CPA. The Regional Court Magistrate must
accordingly proceed to attend to the sentencing of the accused. Until
that process is finalised, the accused remains in custody.

With regard to sentencing and without usurping the function of the
Regional Court in that regard, the Regional Court Magistrate may wish
to consider whether the return of 2 of the 3 goats to the owner and
lengthy of time spent in custody already may possibly constitute the
presence of substantial and compelling circumstances for the purpose
of the Stock Theft Amendment