S V Nendongo (CR 5-2015) 2015 NAHCMD 23 (13 February 2015)

2

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: CR 5/2015

In the matter between:

THE STATE

and

NATANGWE KEVIN NENDONGO ACCUSED

High Court Main Division review ref no: 1446/2014

Neutral citation: S v Nendongo (CR 5/2015) [2015] NAHCMD 23 (13 February 2015)

Coram: HOFF, J and KAUTA, AJ

Delivered: 13 February 2015

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ORDER

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1.  The conviction of housebreaking with intent to steal and theft is set aside and substituted with a conviction of the crime of theft.

2.  The sentence of N$ 4000 or 2 years imprisonment is set aside and substituted with the following sentence:

‘12 months imprisonment of which a period of 6 months imprisonment is suspended for a period of 3 years on condition that the accused is not convicted of the crime of theft committed during the period of suspension’.

3.  The sentence is ante-dated to 1 October 2014 in terms of s 282 of the Criminal Procedure Act, 51 of 1977.

JUDGMENT

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Hoff, J (Kauta, AJ concurring): [1] The accused was convicted in the Rundu Magistrate’s Court of the crime of housebreaking with intent to steal and theft and sentenced to a fine of N$ 4 000 or 2 years imprisonment.

[2] I directed the following query to the presiding magistrate:

‘Could you please provide me with your reasons why the accused had been convicted of housebreaking in view of the fact that he resides in the house?’

[3] The magistrate in her reply conceded that the accused was wrongly convicted of housebreaking with intent to steal and theft and should only have been convicted of the crime of theft. I agree with this concession.

[4] It is clear from the record that the accused initially pleaded guilty to the charge of housebreaking with intent to steal and theft. He was subsequently questioned by the magistrate in terms of s 112(1)(b) of the Criminal Procedure Act, 1977 (Act No 51 of 1977). During the questioning the accused disputed that he had broken into the house stating that he lives in that house and that he had entered the house by unlocking the door with a key. This key he found at a place where it is usually hidden.

[5] The magistrate correctly thereafter entered a plea of not guilty and the state called as a witness the grandmother of the accused who testified that the said house belongs to the mother of the accused and that she also resides there. She further testified that at the time of the incident the mother of the accused was enrolled at the University of Namibia in Windhoek.

[6] No evidence was led to the effect that the accused was not living in the house at that stage or that he had unlawfully obtained the key to the house.

[7] The magistrate in her reply, with reference to relevant authority, correctly stated that it appears from the evidence that the accused had entered the house for a lawful purpose since he had a legitimate reason for being inside the house. I agree with this observation.

[8] The accused (during the questioning in terms of s 113) admitted all the allegations relating to the charge of theft (of a TV) and informed magistrate that he had sold the TV for the amount of N$ 600.00.

[9] It is common cause that the accused is a first time offender and was 22 years of age at the time of his conviction. During mitigation of sentence he indicated that he is unemployed and the father of five minor children (with different mothers) and that he is on medication. It also appears from the record that the accused used part of the money he had received from the sale of the TV to buy a small amount of food for the house as well as electricity. It is also common cause that the television was not recovered. The magistrate in her reply stated inter alia, that the value of the television was N$ 2000 and that the sentence imposed by her should be allowed to stand.

[10] It appears from the record that the magistrate had prior to imposing the sentence enquired from the accused what amount he would be able to afford to pay as a fine to which the accused stated that a fine of N$ 2000.00 ‘would be reasonable’. In view of the fact that the accused is unemployed the magistrate should have made enquiries as to how the accused would be able to raise such an amount of money. This was not done.

[11] In spite of the fact that the accused had indicated that the amount of N$ 2000.00 would be ‘reasonable’ we now know that the accused is serving a term of imprisonment due to his failure to pay the fine imposed by the magistrate.

[12] In the result the following orders are made:

1.  The conviction of housebreaking with intent to steal and theft is set aside and substituted with a conviction of the crime of theft.

2.  The sentence of N$ 4000 or 2 years imprisonment is set aside and substituted with the following sentence

‘12 months imprisonment of which a period of 6 months imprisonment is suspended for a period of 3 years on condition that the accused is not convicted of the crime of theft committed during the period of suspension’.

3.  The sentence is ante-dated to 1 October 2014 in terms of s 282 of the Criminal Procedure Act, 51 of 1977.

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EPB Hoff

Judge

I agree

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P Kauta

Acting