CASE NO.: CR
11/2012

IN THE HIGH COURT OF NAMIBIA:

NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

In the matter between:

THE STATE

and

THOMAS SHEELEKENI PATRIC

(HIGH COURT REVIEW CASE NO.:
364/2010)

CORAM: LIEBENBERG,
J. et TOMMASI, J.

Delivered on: 16 March 2012

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] The accused appeared in the Magistrate’s Court Okahao
on a charge of theft of a firearm; a magazine; a ‘head cover’
and a cell phone charger, together valued at N$2 659.95. He was
convicted on his plea of guilty and sentenced to a fine of N$1 000 or
10 months’ imprisonment. The review cover sheet reflects that
the fine was not paid.

[2] The reviewing
judge directed a query to the trial magistrate enquiring from him
whether it was appropriate for this matter to have been dealt with in
terms of s 112 (1)(a) of the Criminal Procedure Act, 1977.¹
The magistrate correctly conceded that in the light of judgments
recently delivered by this Court, he was of the view that it was
inappropriate to have finalised the matter in terms of this section.

[3] This Court to
date delivered several judgments in which the appropriateness of the
application of s 112 (1)(a) in cases involving serious crimes was
discussed; and where it was decided that the subsection should not be
invoked in cases where the accused faces serious charges, but should
be reserved for cases considered to be ‘minor’, ‘trivial’
or ‘not serious’.²
The presiding officer has a discretion to convict an accused on his
mere plea of guilty, but this discretion must be exercised
judiciously, having full regard to the nature and seriousness of the
offence; the possibility of compulsory sentences; and the particulars
of the charge.

[4] The
concession made by the magistrate is proper and given the
circumstances of this case where the accused is eighteen years of age
and is charged with theft inter
alia of
a firearm, the court should have questioned the accused in terms of s
112 (1)(b) in order to satisfy itself that an offence was committed,
and that the accused was indeed guilty thereof. Failure to do so
constituted a misdirection, justifying interference by this Court.

[5] The accused
was unable to pay the fine and by now would have served the
alternative imprisonment of ten months. Whereas compliance was not
given to the provisions of s 112 (1)(b), the Court must
remit the case to the trial court under s 312 and direct that court
to comply with the provision. In essence this means that the court,
after questioning the accused
and
having been satisfied that he admits all the elements of the offence,
may convict and sentence afresh. Alternatively, to enter a plea of
not guilty in terms of s 113 and to hear evidence. In the event of a
conviction, sentence must be imposed in circumstances where the
accused has already served his sentence on the same charge. In the
circumstances of this case and if the Court were to give effect to
the provisions of s 312 and remit the case to the trial court, it
seems to me that the accused would be unduly punished (twice) upon
conviction – even if a totally suspended sentence would be
imposed – which I do not consider to be in the interest of
justice.

[6] In S
v Arendse and Another³
the
Court refused to comply with the mandatory provision relating to
remittal in terms of s 312 since the remittal would have amounted to
a fatuity and Rose-Innes, J said the following at 108E-F:

“It
seems to me that, notwithstanding the provisions of s 312 (1), that
section does not compel this Court to commit a fatuity. The Act
cannot intend that this Court must remit, in a case where all are ad
idem, ie the State is ad idem and the Court agrees with the State
and that is also the attitude of the appellants' representative that
no conviction can accrue in this case. It seems to me that in those
circumstances no Court is even compelled to follow a course and give
an order that certain proceedings must now take place which are
pointless, can have no purpose and can have no outcome, other than
the acquittal of the accused.”

Although the
circumstances of that case is different from the case under review in
that a remittal in this instance would not amount to a fatuity, but
an injustice, it seems to me that, on the same basis it can be argued
that this Court is not compelled to remit the case to the trial court
when it would result in an injustice being committed against the
accused who has already served a sentence imposed on him for the same
offence. I accordingly refuse to do so.

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

1. 
   The conviction and sentence are set
   aside.

   
   

2. 
   The matter is not remitted to the
   trial court.

   
   

_____________________________

LIEBENBERG, J

I concur.

_____________________________

TOMMASI, J