CASE
NO.: CR 1/2011
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
versus
FRANCIS
STRAUSS
[HIGH
COURT REVIEW CASE NO.: 1743/2010] CORAM:
SIBOLEKA,
J et
NDAUENDAPO,
J
Delivered
on: 2011 JANUARY 21
REVIEW
JUDGMENT SIBOLEKA, J.:
[1]
The accused appeared in the Rehoboth Magistrate's Court on a charge
of maliciously damaging the glass doors of a certain Sofia van Wyk
alleged to be valued at N$1,500.00. He was questioned in terms of
section 112 (1)(b) of Act 51 of 1977, where after he was convicted
and sentenced accordingly. The sentence is in order and will not be
tempered with. However, there is a slight problem with the wording of
the conviction by the Magistrate, and I directed a query to him which
reads:
"The accused
denied the value of the damaged property to be N$1,500.00 and instead
estimated it at N$560,00, but the Court was still satisfied that he
admitted all the elements."
[2]
The Magistrate's response has been received and it reads:
"I am
responding to the Honorable Mr. Justice Review remark letter dated 9
November 2010 regarding the above mentioned matter. My Lord, I am or
was satisfied that accused admitted all the elements of the offence
of Malicious Damage to Property. The offence which I convicted him
for and I did not mean the value. This is why I sentenced him to
N$500.00 or five (5) months imprisonment. If the Honorable Mr.
Justice is not happy/satisfied with the manner in which I framed my
sentence, your advice is always welcome. I hope my Lord, will
understand my humble explanation."
[3]
It is my considered view that after the accused had denied and
disputed one of the elements of the charge leveled against him, the
Court should not have pronounced itself as it did:
"Court:
Is satisfy accused admits
all the allegations in charge of malicious
damage to property."
[4]
It should have recorded a dissatisfaction and enter a plea of not
guilty in terms of section 113 of Act 51/77. This would enable the
prosecution to lead evidence to prove the disputed element beyond
reasonable doubt. This dispute of the value of the damaged doors is
apparent from the following paragraph:
"Q: Do you
agree that the value is N$1,500.00? A: No, the value is N$560.00"
[5]
In my view and looking at the matter as a whole, what has been put in
dispute here is not very serious that it could cause prejudice to
either side. The Court must have invited the prosecution to react to
it, and if accepted as such by the prosecution, the conviction would
then have been phrased likewise. On the other hand if after being
given an opportunity to react to the dispute, the prosecution opted
to lead evidence and thereby succeed to prove that element beyond
reasonable doubt, only then would the Court be satisfied that all the
elements of the offence have been established.
[6]
In the result I make the following order:
1.
The
conviction is altered to read:
"Guilt
of malicious damage to property whose value is unknown".
2.
The
sentence is confirmed.
SIBOLEKA,
J
I
agree.
NDAUENDAPO,
J
S v Strauss (CR 1/2011) [2011] NAHC 4 (21 January 2011);