REPUBLIC
OF NAMIBIA
CASE
NO.: CR 26/2011
IN
THE HIGH COURT OF NAMIBIA
In
the matter between: STATE
versus
JUANITA
KIDO
(HIGH
COURT REVIEW CASE NO.: 473/10)
CORAM: VAN
NIEKERK, J et
SIMPSON,
AJ
Delivered
on: 22 March 2011
REVIEW
JUDGMENT
VAN
NIEKERK, J
[1]
The accused was convicted in the magistrate's court of Okahandja
after a plea of guilty to a charge of theft of N$2000 from her
employer, Pick n Pay. She was sentenced to 8 months imprisonment of
which half was suspended for 5 years on condition of good behaviour
and on the further condition that the accused compensates the
complainant by a certain date.
[2]
The questioning in terms of section 112(1)(b) of the Criminal
Procedure
Act,
1977 (Act 51 of 1977) went as follows:
"Crt:
where you on the 05/09/09 at or near pick and Pay Okahandja in the
district of okahadja?
Acc:
yes
Crt:
What led to this charge of theft and how were you arrested?
Acc:
On Sunday 06/09/2009 i went to pick and pay Okahandja, with intention
of
borrowing N$400 from the safe, in that I was going to bring it back
on the
Monday
Crt:
did you have the right to borrow the money? Acc: No
Crt:
did you have access to the safe?
Acc:
not on that said date. Somebody was on duty i wrote a letter saying
that if anything happens I will take sole responsibility. Crt:
Explain, what did u mean?
Acc:
the money was in the safe, it, the safe was open, the door was open
in the cash office of pick n pay
Crt:
is the safe normally left in this manner?
Acc:
the person on duty was busy making float, the money that the cashier
is given in the morning for their till. I took out a float bag that
was used the previous day, and i took N$4000-00, and i left some
money the amount I do not know. I then counted the money and i asked
two other person to count the money, the person on duty and another
cashier Crt: did they know what your intentions were? Acc: they knew
what I was doing
Crt:
did they give you any right or permission to remove the money? Acc:
they did not give me right or permission. Crt: proceed
Acc:
I sealed the float bag and went to Windhoek Court house to bail out
my boyfriend with that money. On Monday, I sent back N$2000-00, with
taxis from Windhoek to take to Pick n Pay. On the Tuesday morning I
brought the remaining N$2000-00 to work and gave the money to my
manager, he declined to receive the money, gave me a letter of
suspension and took me to the police station where I was then
arrested.
Crt:
What happened to the other N$2000-00 that you sent on the previous
day?
Acc:
they received it that is why they only laid a charge of N$2000-00
that was missing that Tuesday morning.
Crt:
the person who counted the money with you pick and pay, what was
there
in
what capacity
Acc:
Acting supervisor
Crt:
State alleges that your the intention was to the deprive the owner of
this money?
Acc:
I disagree it was not my intention, I gave back some money on Monday
and the rest on Tuesday
Crt:
do you know that money is a consumable and if used and not the same
is replaced amounts to theft. Acc: no I did not know
Crt:
in that light the state alleges that you had the intention to deprive
Prick n pay and/or George Swartz do you agree or disagree Acc: I
agree
Crt:
The amount per charge sheet N$2000-00
Acc:
yes
Crt:
did you know that what you were doing was wrong and punishable by
law?
Acc:
yes
Crt:
did you have any legal right over the money? Acc: No
Crt:
Do you agree that the money was in the control of George Swartz
and/or pick n pay Acc: Yes
Crt:
Are the facts in accordance to the facts available to the state? SP:
Yes
Crt:
I am satisfied that you intended on pleading guilty to the charge.
[3]
On review I posed, inter
alia, the
following question to the trial magistrate:
"Did
the accused admit to having mens
rea in
respect of the offence of theft?"
The
learned magistrate responded as follows:
"The
court informed the accused that money is a consumable and if used its
replacement with other money would amount to theft. She then
responded by saying she would agree with the states allegation that
her intention was to deprive Pick 'n Pay and/or George Swartz of the
said amount of N$2000.00. The court felt that her not disputing the
allegation amounted to her admitting mens rea. It was also confirmed
when the accused confirmed that she knew what she was doing was wrong
and punishable by law."
[4]
In my view the exchanges between the magistrate and the accused show
that the accused did not admit that she had the necessary animus
furandi. When
the magistrate explained "Do you know that money is a consumable
and is used and not the same is replaced [it] amounts to theft?",
the accused responded that she did not know. The wording of the
follow-up question which commences with the words "In that light
the state alleges that you had the intention to deprive Pick 'n Pay
and/or George Swartz do you agree or disagree?" appears to be,
or can be interpreted to be, a continuation of the explanation, in
respect of which the accused is asked whether she agrees or disagrees
with the explanation. In the context the answer "I agree"
does not amount to an admission. It is necessary to establish whether
the accused "admits", not whether the accused "agrees".
In the light of the preceding answers and explanations by the accused
it is clear that the accused did not admit that she is guilty to the
crime of theft. For example, she disagreed that it was her intention
to deprive the owner of its money because she gave back the money.
The
questions and answers establish, rather, that she is guilty of a
contravention of section 8 of the General Law Amendment Ordinance,
1956 (Ord 12 of 1956), which provides as follows:
"8
Any
person who, without a bona
fide claim
of right and without the consent of the owner or the person having
the control thereof, removes any property from the control of the
owner of such person with intent to use it for his own purposes
without the consent of the owner or any other person competent to
give such consent, whether or not he intends throughout to return
the property to the owner or person from whose control he removes
it, shall, unless it is proved that such person, at the time of the
removal, had reasonable grounds for believing that the owner or such
other person would have consented to such use if he had known about
it, be guilty of an offence and on conviction liable to the
penalties which may lawfully be imposed for theft.
Any
person charged with theft may be found guilty of a contravention of
subsection (1) if such be the facts proved."
[5]
Although I find the sentence on the harsh side bearing in mind all
the mitigating factors, I cannot say that the magistrate exercised
her discretion wrongly in imposing a direct period of imprisonment.
[6]
The result is that the following order is made:
1.
The conviction of theft is set aside and substituted with a
conviction of c/section 8 of the General Law Amendment Ordinance,
1956 (Ord. 12 of 1956) (Unauthorised borrowing).
2
The sentence is confirmed, subject thereto that the words "attempted
theft or theft" are substituted with the words "c/section 8
of the General Law Amendment Ordinance, 1956 (Ord. 12 of 1956)
(Unauthorised borrowing)".
VAN
NIEKERK, J
I
concur.
SIMPSON,
AJ
S v Kido (CR 26/2011) [2011] NAHC 87 (22 March 2011);