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S v Heita (Case No.: CR 72/2008) [2008] NAHC 59 (23 June 2008)

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CASE NO.: CR 72/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:


THE STATE

vs

LEONARD KAKOLA HEITA

(HIGH COURT REVIEW CASE NO.: 42/2008)


CORAM:            PARKER, J et SILUNGWE, AJ

Delivered on:    2008.06.23
_________________________________________________________________________

REVIEW JUDGMENT

SILUNGWE, AJ    
[1]      The accused appeared in Eenhana Magistrate’s Court, sitting at Ohangwena, on a charge of housebreaking with intent to steal and theft of property valued at N$16 665-00. Upon being questioned in terms of section 112(1)(b) of the Criminal Procedure Act, Act No. 15 of 1977, he was purportedly convicted and sentenced to 18 months’ imprisonment, 6 months of which were conditionally suspended.

[2]      When the presiding Magistrate was queried, on review, as to whether there was proof of a break in, he conceded that the elements of the crime charged had not been proved, adding that the accused’s plea revealed that he was guilty of theft only.

[3]      In the circumstances, the following order is made:

1.       The conviction and sentence are set aside.

2.      
The case is remitted to the presiding Magistrate for him to proceed in terms of section 112(1)(b) of the Criminal Procedure Act, Act 51 of 1977.

3.      
The accused will, in the meantime remain in custody.


______________________
SILUNGWE, AJ


I agree



_______________________
PARKER, J