1

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 87/2014

In the matter between:

DONALD GEINGOB APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Geingob v The State (CA 87/2014) [2014] NAHCMD 19 (06February 2015)

Coram:NDAUENDAPO J and LIEBENBERG J

Heard:16 January 2015

Delivered:06February 2015

Flynote:Criminal procedure - Trial - Plea - Plea of guilty - Questioning of accused by magistrate in terms of sec. 112 (1) (b) of Act 51 of 1977 - Material upon which court must satisfy itself as to accused's guilt is his answers to such questions - Such answers must cover all the essential elements of the offence charged - Effect, if any element not covered - Court's duty is to note a plea of not guilty

Criminal law - Theft - What constitutes – Accused claimed to have kept complainant’s property as security pending the return of his property (cellphone) by complainant’s mother –Accused has right against mother of complainant – Such right not imputed to complainant– Accused however sold the property soon thereafter – Accused had no right to keep complainant’s property – No valid defence – Court not obliged to note plea of not guilty.

Criminal law – Robbery – Element of violence – Violence need not be serious – Sufficient violence if object snatched from the victim’s hand.

Summary:The accused was convicted of robbery pursuant to his plea of guilty. During the court’s questioning in terms of s112 (1)(b) he explained that after snatching the complainant’s cellphone from his hand he intended keeping it (available) until complainant’s mother returned his property (also a cellphone). Accused however then sold the phone. On appeal contended that accused raised a defence and the court should have noted a plea of not guilty. There is no legal basis from which a right derived entitling the accused to hold the property of a third person as security.

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ORDER

  1. The application for condonation of the late noting of the appeal is refused.
  2. The matter is struck from the roll.

JUDGMENT

LIEBENBERG J (NDAUENDAPO J concurring):

[1] The appellant was convicted by the magistrate’s court, Swakopmund, pursuant to his plea of guiltyon a charge of robbery and sentenced to 24 months’ imprisonment. He now appeals against both his conviction and sentence by the court a quo.

[2] Whereas the appellant filed his notice of appeal outside the prescribed time limit provided for in the Magistrates’ Court Rules, he further applied for condonation and advanced reasons on oath explaining the delay in filing the appeal. The respondent opposes the application only as far as it concerns the prospects of success on appeal. In view thereof, we heard the appeal on the merits.

[3] With regard to conviction the appellant essentially relies on a single ground i.e. that the magistrate should not have convicted on the admissions made by the appellant at the end of the court’s questioning in terms of s 112 (1)(b) of Act 51 of 1977 (‘the Act’) but instead, should have realised that the appellant had raised a defence and ought to have entered a plea of not guilty.

[4] When the appellant appeared in the magistrate’s court he was unrepresented and pleaded guilty to a charge of robbery in that he grabbed the complainant’s cellphone from him with intent to steal (permanently depriving him of his property).The appellant, when he pleaded, was thus fully apprised of the particulars of the offence he was facing.

[5] Appellant during the court’s questioning admitted having gone to the complainant’s home where he forcibly grabbed the complainant’s cellphone from his hands. When asked by the court the reason for having acted in this manner he explained ‘I grabbed complainant’s cellphone, because his mother had my phone that I have been requesting from her for a month’. With regard to what his intentions were at the time he took the phone, he said that he intended keeping it until the complainant’s mother returned his phone but that he unfortunately sold it as he needed money. Appellant also admitted that he cognizant of the wrongfulness of his actions and that he had no right in law to take the phone.

[6] The primary purpose of the court’s questioning is to safeguard the unrepresented accused against an unjustified plea of guilty and to protect him from the adverse consequence of an ill-considered plea (S v Baron 1978 (2) SA 510 (C) at 512G).Not only must the questions and answers cover all the essential elements of the offence, but should also be formulated in such a way that the court, from the answers provided by the accused, firstly, is satisfied that the elements of the offence are admitted, secondly, that it is the accused who committed the offence charged. When the accused’s answers do not satisfy these requirements and essentially raises a defence, or his answers are open for a reasonable explanation other than guilt, the court should record a plea of not guilty in terms of s 113 of the Act. Counsel argued that the appellant’s answer that he took the complainant’s cellphone as pledge until such time his own phone is returned to him by the complainant’s mother,raised a defence on legal grounds and that the trial court,at that stage,should have noted a plea of not guilty.

[7] In circumstances as the present, the magistrate, in my view, was under no duty to immediately note a plea of not guilty the moment the appellant said he had the intention of keeping the phone. The complainant is not the person who had possession of the appellant’s cellphone and the fact that he is related to that other person does not per se impute any legal duty to him to return the appellant’s property. The magistrate was clearly alive thereto and continued questioning the appellant as regards his intention when taking the phone in order to ventilate his defence properly. Any defence on legal grounds the appellant might have raised at that stage, in any event, was negated by his answer that he sold the complainant’s cellphone because he needed the money. Clearly this is not a case of the taking of a pledge as the appellant, firstly, did not inform the other person (the victim’s mother) of his intentions to do so and secondly, it is evident that by selling the phone (after three days) he had no intention of keeping it available for return to the owner (S v Van Coller 1970 (1) SA 417 (A).

[8] Counsel further contended on the appellant’s behalf that the appellant lacked intention to rob the complainant of his phone; hence the court should not have convicted of robbery.

[9] I already alluded to the appellant having fully been apprised of the particulars of the charge he had to meet. He was charged with the offence of robbery in which it is alleged that he assaulted or threatened to assault the complainant by ‘grabbing him and unlawfully and with intent to steal take from him …’ the complainant’s cellphone. During the court’s questioning the appellant, though not admitting having ‘grabbed’ the complainant i.e. physically, he admitted having grabbed (snatched) the phone from him. Appellant’s answer seems to suggest that he snatched the phone from the complainant’s hand(s).

[10] The common law offence of robbery can be defined as ‘theft of property by unlawfully and intentionally using (a) violence to take the property from somebody else or (b) threats of violence to induce the possessor of the property to submit to the taking of the property’ (Snyman: Criminal Law (Fourth Edition)). In the absence of any threats made by the appellant to the complainant, (b) clearly finds no application.

[11] It is settled law that the violence required to constitute robbery need not be of serious nature and even the slightest force used against the person of another would satisfy the requirement. It seems to me that the facts of the present matter compare well with those cases in which the victim’s handbag is suddenly and unexpectedly snatched from her hands. Logic dictates that the appellant beforehand intended snatching the phone from the complainant’s hands and could only have achieved this by applying some force on the hand(s) of the complainant in order to overcome his hold on the phone. Violence was thus used to take control of the complainant’s property. Even if the circumstances were such that the appellant merely grabbed the phone without touching the person of the complainant, it notwithstanding constitutes robbery. In such instance the court applies the concept of ‘anticipated resistance’ (S v Alexander and Another 1992 NR 88 (HC); S v Mohamed 1999 (1) SACR 287 (O)).

[12] In the Alexander case the glasses of the victims had been snatched from his face and the court (as per O’Linn) stated thus (96G-97E):

‘Traditionally, the snatching of an item from a person has been regarded by our courts not as robbery but as theft. That is on the basis that the snatching itself was held not to involve violence to subdue the victim in order to obtain the handing over of his property. However, in several cases in recent times, courts in South Africa have found that the actual snatching of a handbag from somebody in the street amounts to robbery and not merely theft, because it is violence directed to overcome his potential resistance to the taking. …I have no doubt that the Namibian Court should follow the approach applied in the aforesaid cases, namely that where an article is snatched from a person, such as a handbag or glasses or whatever it is, the element of violence required for the crime of robbery is already present and it is not required that there must be violence in any other form at the time of the taking.,

[13] For the foregoing reasons there is no legal basisfor counsel’s contention that the offence of robbery was not committed and that the presiding magistrate was under a duty to note a plea of not guilty from the answers given by the appellant. Accordingly, appellant’s appeal against conviction iswithout any legal foundation and must fail on this ground.

[14] I turn next to consider the appeal against sentence.

[15] The grounds of appeal articulated against sentence are twofold: That the magistrate misdirected herself by not finding that no violence was used when the appellant took the phone. The other ground is that the court overemphasised the seriousness of the offence and the value of the cellphone at the expense of mitigating factors favourable to the appellant.

[16] It is trite that sentencing falls pre-eminently within the discretion of the trial court and a court sitting as court of appeal will only interfere with sentence if satisfied that a material misdirection was committed, or where the sentence imposed is startlingly inappropriate, or induces a sense of shock (S v Tjiho 1991 NR 361 (HC) at 361A-B; S v Van Wyk 1993 NR 426 (HC)). The sentencing court is required to exercise its discretion judicially, properly and reasonably and may, whilst guided by the circumstances of the case, emphasise some of the factors at the expense of others –provided due consideration was given to all the factors relevant to sentencing (S v Van Wyk (supra). It is in this respect that appellant contends that the trial court overemphasised the seriousness of the offence and the value of the phone at the expense of mitigating factors weighing in his favour.

[17] The first ground of appealrelates to the use or otherwise of violence during the commission of the offence,a point already been dealt with herein and which need not be rehashed. Suffice it to say that the appellant, through violent means, took possession of the complainant’s phone – albeit not of serious nature and without any physical harm done to the complainant. However, I do not consider this fact, in itself, to constitute a mitigating factor as the absence of (serious) injury to the victim should not per se count in favour of the offender. By so doing the seriousness of the offence would be watered down to something insignificant, whilst robbery is normally considered by the courts as serious. To hold otherwise wouldsimply send out the wrong message. The courts in the past have always viewed robbery in a serious light, and deemed one of the crimes likely to attract a custodial sentence, even for first offenders. The facts of the particular case and the circumstances under which the crime was committed would obviously impact on theseverity of the sentence.

[18] In the magistrate’s judgment on sentence she wasguided by the well-established factors generally referred to as the ‘triad’. The magistrate was cognizantof the value of the cellphone being N$4 600 (should be N$5 600) and that the complainant had suffered the loss of his phone as the appellant had sold it. In this respect the magistrate made the following remarks:

‘- (T)he value is quite a substantial amount and cannot be ignored, in most cases the value of the items is normally the barometer in determining sentence, but in cases of robbery the offence itself is what the court considers when imposing a sentence.’

[19] The view expressed by the learned magistrate is founded on legal principles and is sound in law; hence I am unable to fault the court’s reasoning. Also clear from the judgement is that due regard was had to the appellant’s personal circumstance and the interests of society. The court was mindful of appellant being a first offender and that imprisonment should be imposed as last resort. Though the cases cited by the court might not be on all fours with the present case, it still remains relevant concerning the offence of robbery and the view held in those cases that it is a serious offence and that deterrent sentences are called for. The court also gave consideration to the imposition of a fine or a wholly suspended sentence but deemed it in the circumstances of the case inappropriate. I respectfully agree and in my view a fine or a wholly suspended sentence for robbery should be imposedonly in exceptional cases. The present case, in my opinion, does not fall under this category of cases.

[20] Though defence counsel initially submitted that a partly suspended sentence would have been appropriate in the circumstances he, subsequently, made a turnabout and proposed that the sentence be substituted with one of one year’ imprisonment. He is thus in agreement that a custodial sentence is called for.

[21] In conclusion, I am not persuaded that in sentencing, the magistrate committed any misdirection or that there is a striking disparity between the sentence imposed by the court a quo and what this court would have imposed, had it sat as court of first instance.

[22] In the result, the court makes the following order:

  1. The application for condonationof the late noting of the appeal is refused.
  2. The matter is struck from the roll.

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JC LIEBENBERG

JUDGE

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GN NDAUENDAPO

JUDGE

APPEARANCES

APPELLANT C Mayumbelo

C/o Tjituri Law Chambers

Windhoek.

RESPONDENTE Moyo

Of the Office of the Prosecutor-General, Windhoek.