Author: HighCourtJudge3

8

"REPORTABLE"

			
REPUBLIC OF NAMIBIA
CASE NO.: CR 85/2010
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
versus
PAUL TASEB & 7 OTHERS

(HIGH COURT REVIEW CASE NO.: 595/10)

Delivered on:       9 November 2010

REVIEW JUDGMENT

exchanges were noted down:

"SECTION 112(1)(B) IN RESPECT OF ACCUSED 5

"Court: Did anyone threaten you to plea guilty? 
Accused: No.

Court: Did anyone promise you anything to plead guilty? 
Accused: No.

Court: Do you plea guilty out of your free will? 
Accused: Yes.

Court: On 16/01/10, the day you are accused of have committed the offence, where were you?
Accused: At the Police cells in Mariental.

Court: What did you do wrong on that day? Accused: I admit that I assault the complainant.

Court: Where did you assault the complainant? Accused: In the cells.

Court: Why did you do that?
Accused: When the complainant come in, I asked him why he was detained. He gave me the name of the deceased he killed and I asked him if he know that the person is my relative, I then beat him.
	Court: How did you beat him?
	Accused: I beat him with a broom on his buttocks.

	Court: Did you know that a broomstick can injure a person seriously? 
	Accused: 	Yes.

	Court: Still you used the broomstick to beat the complainant? 	
	Accused: Yes.

	Court: Was that your intention to cause serious injury to complainant? 	
	Accused: No.

	Court: Did the complainant sustain any serious injuries? 	
	Accused: Yes.

	Court: Did you know it was wrong by law to beat someone with a broomstick? 	
	Accused: Yes.

	Court: Were you at you sound and sober senses when you beat him? 
	Accused: 	Yes.

	Court: Any defence to offer? 	
	Accused: No.

	Court is satisfied that you admitted to all allegations of the offence and finds you accordingly guilty as charged.

	SECTION 112(1)(B) IN RESPECT OF ACCUSED 7

	Court: Do you wish to answer the questions? 	
	Accused: Yes.
	Court: Did anyone threaten you to plea guilty? 	
	Accused: No.

	Court: Did anyone promise you anything to plea guilty? 	
	Accused: No.
	Court:   Do you plea guilty out of your free will? 	
	Accused: Yes.

	Court: On 16/01/10, the day you are accused of have committed this offence, 	where were you?
	Accused: At the police cells in Mariental.

	Court:   Can you tell the court what happened on that day which you pleaded 	guilty for?
	Accused: I plead guilty on an assault charge.

	Court:   When did the assault take place? 	
	Accused: In the cells.

	Court:   You assaulted who? 	
	Accused: The complainant.

	Court:   How did you assault the complainant? 	
	Accused: With my fists and a broom.

	Court:   Where did you beat him?
	Accused: On the buttocks with a broom and then with fists in his stomach.

	Court:   Did he sustain injuries? 	
	Accused: Yes.

	Court:   Was that you intention to cause serious injuries to the complainant? 	
	Accused: No, just to keep quite. [quiet?]
Court:   You know that a broomstick can injure a person seriously? Accused: Yes.

Court:   Still you proceed to beat him with a broomstick? Accused: Yes.

Court:   Why did you do that?
Accused: I felt bad. He killed my school friend.

Court:   Did you know that it was wrong and punishable by law to do that? 
Accused: Yes.

Court:   Were you at your sound and sober senses when you beat the
complainant?
Accused: Yes."

[5] Returning to the section 112(1)(b) questioning, accused no. 5 clearly stated that he did not intend to cause the complainant serious injuries. The magistrate should have entered a plea of not guilty at that stage of the process. The fact that the accused admitted that the complainant did in fact sustain serious injuries is neither here nor there, especially taking into consideration that there were seven accused who allegedly assaulted him.

[9] Unfortunately the review was submitted to the High Court late and my query also reached the magistrate late as he has been transferred. By now the accused have served their sentences. I shall therefore not act in terms of section 312 of the Criminal Procedure Act by remitting the matter to the magistrate to comply with section 112(1)(b). I accordingly merely set aside the convictions and sentences of accused no. 5 and 7.

VAN NIEKERK, J

I agree.

BOTES, AJ