REPUBLIC
OF NAMIBIA

CASE
NO.: CR 21/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between: STATE

versus

MARTHA
SHASHANGWA

(HIGH
COURT REVIEW CASE NO.: 205/11)

CORAM: VAN
NIEKERK, J et
SIMPSON,
AJ

Delivered
on: 15 March 2011

REVIEW
JUDGMENT

VAN
NIEKERK, J
[1]
The accused pleaded guilty to a charge of assault with intent
to do grievous bodily harm. The trial magistrate questioned the
accused as follows in terms of section 112(1)(b) of the Criminal
Procedure Act, 51 of 1977:

"Q:
Were you forced; threatened and intimidated by any person to plead
guilty to the charge? A: No.

Q:
Why do you plead guilty; what did you do?

A:
I stabbed Teopolina Malakia once on her arm with a broken bottle.

Q:
Did this incident happened on 7 February 2010 at Ekonda location;

Oshigambo,
Ondangwa District?

A:
Yes

Q:
Why did you stab the complainant with a broken bottle?

A:
I was speaking to someone called Martha and complainant interfered in
our

conversation
and I got angry and stabbed the complainant.

Q:
Did the complainant sustain any injuries as a result of this Assault?

A:
Yes; an open wound on her arm and she was bleeding.

Q:
Could you forsee the possibility that if you stab someone with a
broken bottle you can injure that person?

A:
Yes

Q:
What was your intent the time you stabbed the complainant with a
broken

bottle?

A:
To injure her.

Q:
Did you know that what you did was wrong and that you could be
punished

for
that? A: Yes

Q:
Did you have the right to stab the complainant in the manner that you
did? CRT: Prosecutor is the facts admitted correct. SP: Yes

CRT:
Satisfied accused admitted all elements of the offence. Verdict:
Guilty; As pleaded."

[2]
When the matter was submitted on automatic review the magistrate was
asked whether the accused admitted that she intended to injure the
complainant grievously. The magistrate responded by referring to the
questions posed and the section 112(1)(b) questioning and continued:

"
The court has perused through CR
Snyman - Criminal Law, 5^th
Edition, pg 462;
where it is stated that whether X in fact had intent to do grievous
bodily harm is a factual question. And it further goes on and states
that various factors could indicate that X had such intent, e.g. the
nature of the weapon/instrument used, the way in which it was used,
the degree of violence, the part of the body aimed at, the
persistence of the attack and the nature of the injuries inflicted,
if any. It is also stated further that, X may be found guilty of
assault with intent to do grievous bodily harm even though she did
not use any instrument such as a knife, but used hands and fists
only.

The
court after viewing the various comments and/or definitions, combined
with the questions the court has put the accused, I am of the opinion
that the accused had intended on injuring the complainant, as the
accused during his questioning, said that she had foresee the
possibility of injuring the accused, and that her intent was to
injure the accused. The accused also mentioned that she used a bottle
to stab the accused. These are the factors that the court has taken
into consideration, and satisfied itself that the accused has
intended to grievously injure the Accused, however, if I have omitted
to overlooked any important factor, I stand to be corrected by the
Honourable Judge on this point.

[3]
The learned magistrate's reasoning is sound, provided that it is used
as a way to infer from
evidence led
that an accused had the intention to commit grievous bodily harm. At
the section 112(1)(b) questioning stage the court is not permitted to
rely on inferences to conclude that the accused had the requisite
intention. The court is enjoined by section 112(1)(b) to "question
the accused with reference to the alleged facts of the case in order
to ascertain whether he admits
the allegations in the charge" (my emphasis).

[4]
The accused in this case was never asked whether she admits that she
intended to grievously injure the complainant, nor did she of her own
accord make such an admission. The magistrate could therefore not
have been satisfied that she is guilty of the offence to which she
had pleaded guilty. In fact a plea of not guilty should have been
entered.

[5]
Accordingly, the following order is made:

1.
The conviction and sentence are set side.

2.
The matter is remitted to the magistrate in terms of section 312 of
the Criminal Procedure Act, (Act 51 of 1977), and the magistrate is
directed to act in terms of section 113 of the Act.

VAN
NIEKERK, J

I
concur.

SIMPSON,
AJ