CRIMINAL LAW – REVIEW – QUESTIONING IN TEMRS OF SECTION 112 OF CPA MUST ESTABLISH ELEMENTS OF THE OFFENCE

CRIMINAL LAW – REVIEW – QUESTIONING IN TEMRS OF SECTION 112 OF CPA MUST ESTABLISH ELEMENTS OF THE OFFENCE

The accused pleaded guilty in the Magistrates Court of Oshakati to a charge of robbery and, after questioning in terms of Section 112(1) (b) of the CPA, was convicted as charged. The accused was sentenced to a fine of N$ 2 000 or twelve months imprisonment. The review court queried the magistrate that

1. The essential elements of Robbery are (1) theft, (2) violence/threats, (3) submission and (4) intention. Which questions by the learned Magistrate covered the elements of violence and submission to establish the causal link between the violence/threats of violence and the theft?
2. Why was the alleged place of the crime, name of the complainant and value of the property not covered by questions from the Magistrate?’

The magistrate respondent that in respect of the first question, the accused admitted that he grabbed the cell phone from the complainant, which suggest that force was used. This was done while the complainant saw the accused doing that, so this was a case of taking the item by using violence (grab) to overcome any resistance in case the complainant would offer any since the complainant could see what the intention and the conduct of the accused was. In respect of the second question, the magistrate conceded that this was not done.

The review court examined the purposes of questioning in terms of section 122(1)(b) as stated in S v Augustu (CR 24/2021) [2021] NAHCMD 158 (15 April 2021); S v Thomas 2006(1) NR 83, and found that no question was posed to the accused if the complainant resisted his action – to grab the phone from her pocket as she saw him do so. The element of force, intimidation or threats used could not be assumed from the information before court.  As is, the questions only satisfied the offense of theft, which is distinguishable from the offence of robbery as discussed in S v Tjivikua 2005 NR 252 (HC), suffice to state that the question is whether the actions of the accused, even to the slightest degree, forced the complainant into submission. Unfortunately, this aspect was not covered by the magistrates questions.

After the questioning by the magistrate the accused was convicted without the prosecutor being asked if the plea, as tendered, was accepted. Had that been complied with, the State would have had the opportunity to indicate that all the elements and or allegations were not covered during the magistrate’s questioning. Furthermore, if a plea of not guilty was entered, would have the opportunity to present evidence on the disputed details of the charge.

In conclusion if all the allegations are not covered by questions from the magistrate how could he be certain that the accused admitted to the charge before court? In the result, the conviction and sentence were set aside, and the matter was remitted to the Magistrates Court in terms of section 312 to comply with the provisions of section 112 and finalise the matter.

S v Tjikumisa NAHCNLD 7 September 2022