CASE NO.: CR
05/2012

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

NDJOMBO MBENGE KAMANGOTI

(HIGH COURT REVIEW CASE NO.:
314/2011)

CORAM: LIEBENBERG,
J. et TOMMASI, J.

Delivered on: 02 March 2012

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] The accused appeared in the Magistrate’s Court, Outapi
on a charge of housebreaking with intent to steal and theft and after
evidence was heard he was convicted as charged and sentenced to seven
months’ imprisonment.

[2] When the
matter came on review a query was directed to the trial magistrate
enquiring whether the mere moving of a curtain hanging in front of
the entrance of the room, would constitute an act of “breaking”,
an element of the offence of housebreaking with intent to steal and
theft. The learned magistrate in his reply was of the view that the
moving of a curtain in front of a doorway (or window) would indeed
constitute a “breaking” and relied on the authoritative
work of the author C R Snyman: Criminal
Law¹
where
the following is said at p 552 para 6:

“The
“breaking” consists of the removal or displacement of any
obstacle that bars entry to the structure and which forms part of
the structure itself. … The obstacle which is removed in
order to break in need not be a permanent attachment to the
building. However,
it must form part of the structure.
Therefore, the mere shifting of blinds in front of an open window
in order to gain access to the house will qualify as a “breaking
in”, but not the mere shifting of a pot plant on a
window-sill.” (emphasis provided)

Had the learned
magistrate gone further and included the next sentence in the passage
quoted, he would have had a different proposition, for it reads:

“Neither
will the mere moving of a curtain amount to ‘entering’,
since a curtain cannot be regarded as an ‘obstruction’.”

[3] In this case
the accused gained entry into the complainant’s room by pushing
aside a curtain hanging in front of the doorway. It is clear that
the curtain does not form part of the structure (the room) and by
pushing it to one side upon entry, cannot be construed as a “breaking
in”, as there was no removal or displacement of an
“obstruction”. In S
v Hlongwane²
the
Court decided the question as to what constitutes “housebreaking”,
in circumstances similar to the present case, where the accused had
moved the curtain hanging in front of an open window, and at 486g-i
it is stated:

“In
order to constitute a breaking the conduct complained of must have
created a way into the complainant's premises 'by displacing some
obstruction which forms part of those premises' (Hunt (op cit at
707)). But simply to move a curtain in these circumstances does not,
in my opinion, amount to the displacement of an obstruction because
a curtain hung inside the burglar-proofing of a modern Western house
cannot possibly be regarded as an obstruction. And, even if it were
to be so regarded, it is certainly not part of the premises.

In my view, therefore, the fact that the accused may have moved the
curtain did not constitute a breaking of the premises on his part.”

Also see: S
v Small³
at
302-303; S
v Markus and Others.⁴

[4] It seems to
me well-settled that where an accused as in this case merely pushes a
curtain aside, this does not constitute a “breaking in”
in terms of the offence of housebreaking with intent to commit an
offence; hence, the accused’s conviction in the present case
cannot be permitted to stand. The accused ought to have been
convicted on the competent verdict of theft.

[5] Whereas the
accused is now convicted of theft, generally considered for purposes
of sentence, to be less serious than the offence of housebreaking
with intent to commit a crime, the question arises whether or not the
sentence of seven months imprisonment imposed, is appropriate. I
think it is and there is no need to interfere with sentence. In any
event, the accused by now would have served his sentence and the
outcome of these proceedings is purely academic.

[6] In the result, the Court makes
the following order:

1. 
   The conviction is set aside and
   substituted with a conviction of theft.

   
   

2. 
   The sentence is confirmed.

   
   

___________________________

LIEBENBERG, J

I concur.

_________________________

TOMMASI, J