THE STATE
CASE NO.: CR 19/2009
IN THE HIGH COURT OF NAMIBIA HELD
IN OSHAKATI
In the matter between:
THE STATE
and
PETRUS VALOMBOLA
(HIGH COURT REVIEW CASE NO.:
72/2009)
CORAM: LIEBENBERG,
AJ et
SHIVUTE, AJ
Delivered on: 01 June 2009
REVIEW JUDGMENT
LIEBENBERG,
A.J.:
[1] Accused appeared before the Oshakati Magistrates’ court on
charges of assault with intent to do grievous bodily harm and
malicious damage to property. He pleaded guilty on both charges and
subsequent to his conviction the following sentences were imposed:
“Count 1 – N$ 600-00 or 6 months imprisonment; Count 2 – N$
600-00 or 6 months imprisonment. Sentence run concurrently.”
[2] On review the following query
was directed to the magistrate:
“1.
On count 1 the accused is charged with the offence of assault with
the intent
to do grievous bodily harm. The magistrate only questioned the
accused on assault
but convicted him “as charged”. Please explain.
On
count 2 the accused is charged with malicious damage to property
i.e. a hut; a bed; two bed sheets and a birth certificate. Accused
stated that he removed the bed and bed sheets before setting the hut
alight. Please explain how the accused then could have been
convicted “as charged”.
The
accused admitted having set on fire complainant’s hut. Was the
hut not an immovable structure in which case the accused should have
been charged with arson? Should the magistrate not have questioned
in that regard instead of accepting that it only amounted to
malicious damage of property?
If
arson was committed, would the sentence imposed still be appropriate?
Despite
the accused informing the court before sentence that he cannot
pay a fine, fines were imposed on both charges. Please provide
reasons why this was done.
On
what authority was it ordered that fines or imprisonment as
alternative to the fines should run concurrently?”
[3]
The
magistrate responded as follows:
“The
accused pleaded guilty to both charges i.e. Assault with intent to do
grievous bodily harm and malicious damage to property.
Accused
was convicted of assault with intent to do grievous bodily harm and
that was the charge the accused stand in and as such he is guilty as
charged.
On
count 2 the record is very clear that accused is charge with
malicious damage to property and as such he was convicted
accordingly. The properties were destroyed.
On
the issue of whether the hut is immovable or not, the hut can be
change any time. A hut can be transfer from one place to another.
Accused
can not be convicted of arson because a hut is not immovable
property. Even if accused informed the court that he can not afford
to pay (a) fine, the court should consider (a) fine in case a friend
or relative comes t (o) pay, can still have the chance to do so.
I
hope my finds and sentence
is in order, and be confirmed.”(sic)
[4] It has to be
said that from the manner in which the magistrate responded to the
query, it is evident that he is clearly incapable of understanding
the query directed to him and the issues he was expected to deal
with, despite all his years of experience as magistrate. Furthermore,
he simply ignored par 5 of the query.
In the
circumstances it
seems necessary to remind the magistrate that he has a legal duty to
comply with the provisions set out in section 304 (2) (a) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), namely:
“(2)(a)
If, upon considering the said proceedings, it appears to the judge
that the proceedings are not in accordance with justice or that
doubt exists whether the proceedings are in accordance with justice,
he shall obtain from the judicial officer who presided at the trial a
statement setting forth his reasons for convicting the accused and
for the sentence imposed, and shall thereupon lay the record of the
proceedings and the said statement before the court
of the provincial division having jurisdiction for consideration by
that court as a court of appeal.” (emphasis
added)
Despite the short
comings in the magistrate’s reply I have decided not to refer the
matter back to the magistrate for further reasons and will therefore
consider the proceedings as it is.
[5] In count 1
the accused was charged with assault with the intent to do grievous
bodily harm and the charge was drawn that “the accused did
wrongfully, unlawfully and intentionally assault Hilja Valombola by
beating her with fists and by kicking her with
intent
to do Hilja
Valombola
grievous bodily harm.”
In order to convict the accused as charged, the magistrate through
his section 112(1)(b) questioning, had to be satisfied that the
accused not only pleaded guilty, but also that he admitted having had
the intention, not only to assault, but to assault
with the intent to do grievous bodily harm to the complainant. Not
a single question was put to the accused regarding the intent he had
when assaulting the complainant. The following questions were instead
asked:
“Q
– It alleged that on 20/3/05 and at or near Onawa in the district
of Oshakati you did wrongfully and unlawfully and intention assault
complainant Hilya Valombola is that correct?
A
- Yes
Q
- You beat her with fists and kicking?
A
- Yes” (sic)
The accused’s
answer on the first question merely confirms the magistrate’s
question about what is alleged
in
the charge and he therefore did not admit having committed the
offence as such. The accused’s admission that he had beaten the
complainant with fists and kicked her also does not imply that he had
acted with the intent to do grievous bodily harm. Because intent to
do grievous bodily harm is an element of the offence for which the
accused was charged, the magistrate had to cover it through his
questioning of the accused and could not simply have assumed that the
accused acted with the required intent.
[6] From the
aforementioned it is clear that although not all the elements of the
offence had been admitted by the accused, the magistrate wrongly
convicted the accused. The conviction on count 1 thus, cannot be
permitted to stand.
[7] Regarding count 2 the accused
was charged with malicious damage to property for having “wrongfully,
unlawfully and in (sic) maliciously damage(d) a sleeping hut, a bed,
two bed sheets, one birth certificate…”
The magistrate’s section 112(1)(b)
questioning was in the following terms:
“Q
– It is alleged that on 20/3/08 and at or near Onawa in the
district of Oshakati you did wrongfully, unlawfully and maliciously
damage 2x
bed sheets one birth certificate to the value N$ 1 000-00 is that
correct?
A
– No.
I remove the bed, 2 x bed sheet.
Q
– What happen with sleeping huts?
A
– I
remove the goods and set the hut on fire.”
Notwithstanding the
answers given by the accused that the goods were first removed from
the hut before he had set it alight, the magistrate convicted the
accused “as charged”; in other words, that he had also damaged
those goods mentioned in the charge which clearly,
was not the case. This is a misdirection on the part of the
magistrate as the accused did not admit all the allegations
contained in the charge, necessitating interference by this Court.
[8] In response
to the Court’s question whether the hut was not an immovable
structure and
whether the accused should not have been charged with arson, the
magistrate replied that “the
hut can be change any time. A hut can be transfer from one place to
another. Accused can not be convicted of arson because a hut is not
immovable property.”
In the light of the magistrate not putting a single question to the
accused about the structure itself, I find it surprising that the
magistrate is now in the position to make such statement. Although
there are indeed huts that can be dismantled, there are also, on the
contrary, huts that are permanent and which cannot
be
dismantled and shifted elsewhere. That explains the need why the
magistrate had to question the accused in that regard and to
establish whether the offence of arson had not been committed,
instead of simply assuming
that it was not a permanent structure.
[9] The accused
in mitigation before sentence informed the court that he was
unemployed; single without children; and that he could not afford to
pay a fine as there was no one to turn to for assistance. This
notwithstanding, the magistrate decided to impose substantial fines
on the accused which he obviously, was unable to pay. The reason
advanced by the magistrate for having imposed fines is that “even
if accused informed the court that he can not afford to pay fine, the
court should consider fine in case a friend or relative comes t(o)
pay, can still have the chance to do so.”
(sic)
Other than what the
accused had stated in mitigation (above) no
enquiry was made into the accused’s ability to pay a fine or that
he would receive any financial assistance from friends and family.
It would therefore be wrong to simply assume that someone will come
to his rescue and on that basis, impose a fine. Once the sentencer
has come to the conclusion that a fine will be appropriate, the
quantum
thereof has to be determined with regard to the seriousness of the
offence committed; the statutory penalty clause (if applicable); and
the ability of the accused to pay the intended fine. Although it is
not necessary, as the magistrate correctly stated, that the fine
should fall within the accused’s declared means, the court however,
has to investigate
the accused’s means and
has to take into consideration whether family and friends are willing
in helping the accused pay the fine. This, the magistrate clearly
failed to do and misdirected himself by simply assuming that to be
the case.
[10] Fines of N$
600 or 6 months imprisonment were imposed on both counts where after
it was ordered that “sentence
run concurrently”.
Because the magistrate failed to respond to this aspect of the query
directed to him, the magistrate’s intention by making such order is
unknown.
[11] The wording
of the provision which is at present contained in section 280(2) of
the Criminal Procedure Act,1977 (Act 51 of 1977) has not been
altered since it was enacted as section 342(2) of the Criminal
Procedure Act 31 of 1917 and thereafter as section 333(2) of the
Criminal Procedure Act 56 of 1955. Decisions on the interpretation of
sections 342 (2) and 333 (2) would therefore also be relevant to the
interpretation of section 280 (2) of the present Criminal Procedure
Act 51 of 1977.
[12] Imprisonment
as alternative to a fine in the past was found to be excluded from
the provisions of section 280(2) (R
v Rahme 1933
TPD 5; R
v Kubheka
1944 NPD 57; S
v Bouwer
1977 (2) SA 444 (O)).
The following
passage from the Kubheka
case
(supra)
clearly sets out the reasoning which led that court to come to the
conclusion it did:
“Section
342(2) of Act 31 of 1917 authorises a Court to direct that punishment
‘when consisting of imprisonment’ shall run concurrently. There
is no authority to direct punishment consisting of fines to run
concurrently, or to direct a punishment of a fine to run concurrently
with a punishment consisting of imprisonment, or vice
versa.
My own opinion is that the section was intended to cover two or more
sentences consisting solely of imprisonment and that it has no
application when one or more of the sentences consists of
imprisonment as an alternative to a fine. I hold this opinion
notwithstanding a certain dictum,
apparently to the contrary, in R
v Sitebe 1934
AD 56 at 58. And I hold it for the, to me, very strong reason that
in the case, for instance, of two punishments each consisting of £1
fine or 14 days’ imprisonment, a direction that the alternative
periods of imprisonment should run concurrently would have the
curious effect of placing the accused, if he paid one of the fines,
in the same position as if he had paid neither, for he would still
have to serve the 14 days’ imprisonment as an alternative to the
unpaid fine. Yet he could escape liability for both the fines by
serving the one period of 14 days’ imprisonment”
The learned judge
held the view that the result would be absurd and that the
Legislature could hardly have intended this;
furthermore, that it did not appear to follow necessarily from the
wording of the subsection.
[13]
After the Kubheka
case there is a line of cases which hold that, in terms of section
280(2), a court may only direct that two or more sentences shall run
concurrently if those sentences are sentences of imprisonment only,
thereby excluding imprisonment as an alternative to a fine.
[14] However,
since then it has been held that imprisonment as alternative to a
fine is also included under section 280(2) (S
v Lalsing
1990 (1) SACR 443 (N); S
v Mngadi
1991 (1) SA 313 (T)).
In the Lalsing
case the Court (Full Bench) held that ‘the section does not say
that imprisonment has to be the only form of punishment in the
sentence. It is therefore competent for a Court to direct, in terms
of s 280(2) that sentences of a fine with an alternative of
imprisonment run concurrently or that such a sentence run
concurrently with a sentence of imprisonment without the option of a
fine. Such direction would have effect only on the imprisonment
portion of the sentences, inasmuch as the words “such punishments”
refer back to “punishments when consisting of imprisonment”,
leaving the fines cumulative. In order to avoid possible imbalances
between the total fines and the (concurrently running) periods of
imprisonment, the Courts could alleviate the situation by reducing
the fine to be imposed in respect of each of the convictions’
(Headnote)
[15] I
respectfully find the Court’s reasoning in the Lalsing
case artificial and the interpretation given to the provisions of the
subsection too wide. To read ‘imprisonment as alternative to a
fine’ into the subsection, does not in my view, correctly give
effect to the meaning of the subsection, as the subsection only
refers to imprisonment
as punishment
and not to
fines or
imprisonment
as alternative to a fine.
Had that been the Legislature’s intention then one would have
expected the section to be worded differently in order to provide for
such possibility.
The correctness of
the Lalsing case is not beyond doubt (see Terblanche “Saamloop
van strawwe”
1990 25 TM 66 AT 73).
[16] I find the
view taken in the Kubheka
case
convincing and in accordance with the wording of subsection (2) of
section 280 of Act 51 of 1977 namely, that a court can only direct
two or more sentences of imprisonment
to run concurrently and not fines or imprisonment as alternative to a
fine.
[17]
Therefore, in the present case the fines could not have been
directed to run concurrently and the direction stands to be struck.
[18]
In the result, the following order is made:
The conviction and sentence imposed
on count 1 are set aside.
The conviction and sentence imposed
on count 2 are set aside.
The court’s direction that the
sentences run concurrently is struck.
The matter is remitted to the
magistrate in terms of section 312 of the Criminal Procedure Act,
1977 with the direction to comply with the provision in question or
to act in terms of section 113, as the case may be.
In sentencing
afresh, the court must have regard to that portion of the sentence
the accused had already served.
_______________________________(Signed)
LIEBENBERG, A.J.
I concur.
_______________________________(Signed)
SHIVUTE, A.J.
Valombola v S (CR 19/2009) [2009] NAHC 63 (01 June 2009);