CASE NO.: CR 17/2012
NOT REPORTABLE
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
APOLLUS JAHRS
HIGH
COURT REVIEW CASE NO.: 1706/2009
CORAM: HOFF, J et
SIBOLEKA, J
Delivered on: 29 February 2012
REVIEW
JUDGMENT
HOFF,
J: [1]
The accused was convicted of the crime of housebreaking with intent
to steal and theft and sentenced to four years imprisonment of which
one year imprisonment was suspended for a period of 2 years on
condition that the accused is not convicted of the crime of
housebreaking with intent to steal and theft committed during the
period of suspension.
[2] The accused had plead guilty
and was questioned by the magistrate in terms of section 112 (1)(b)
of Act 51 of 1977.
[3] One of the questions
directed to the magistrate was as follows:
“Why was the element of mens
rea (intention) not covered by the s. 112
(1)(b) questioning ?”
[4] The magistrate replied as
follows:
“Upon reflection I concede that the question did
not include the word ‘unlawful’ to establish mens
rea. And more importantly the question, “why
he did it ?” should have been asked. I therefore concede that
mens rea was not
covered and pray that the honourable reviewing judge set aside both
conviction and sentence and remit the case back to establish mens
rea.”
[5] This concession was
correctly made by the magistrate.
[6] In the result the conviction
and sentence are set aside and the matter is remitted to the
presiding magistrate who is instructed to have the accused person
brought before court for questioning in respect of the element of
mens rea only and depending on the answer given by the accused
person either to enter a plea of not guilty in terms of section 113
of Act 51 of 1977 and proceed with the trial or to convict the
accused person and sentence him afresh with due regard to the term of
imprisonment the accused had already served.
_________
HOFF, J
I agree
_____________
SIBOLEKA, J
S v Jahrs (CR 17/2012) [2012] NAHC 45 (29 February 2012);