Justicia Shipena
The High Court at Oshakati on Monday overturned the conviction and 32-month prison sentence of a man who stole 32 dining plates in March this year.
This followed the Ondangwa Magistrate’s Court’s decision to convict Malonga Nghilukwa of housebreaking with intent to steal and theft after he admitted to stealing the plates.
Nghilukwa, a first-time offender, pleaded guilty in the Ondangwa Magistrate’s Court after he was charged with stealing plates valued at N$3,965.
However, High Court Judges Duard Kesslau and Johanna Salionga ruled that the magistrate failed to properly establish Nghilukwa’s intent at the time of the break-in, adding that it is an essential element of the offence.
The judges found that the questioning under section 112(1)(b) of the Criminal Procedure Act was inadequate and did not meet legal requirements.
“The magistrate is not permitted to draw inferences during questioning under section 112(1)(b) of the Criminal Procedure Act. The questioning must elicit direct, unequivocal admissions from the accused,” they said.
During his appearance in the Magistrate’s Court, Nghilukwa admitted to breaking into the house and taking the plates but said he “did nothing with the plates”.
The High Court found this response too vague to prove criminal intent.
The magistrate had concluded that Nghilukwa’s admission of fleeing the scene after taking the items showed premeditated intent.
However, the High Court disagreed, stating that the admission alone was insufficient to confirm that the accused had formed intent before breaking in.
“It is not entirely clear from the record if the plates were recovered. However, when asked, the accused answered that he ‘did nothing with the plates’,” the judgment read.
The judges stressed that the questioning should have included open-ended enquiries to establish intent clearly.
“Asking non-leading questions, such as ‘Why did you break into the property?’, would have clarified the accused’s state of mind,” they said.
The court also found the sentence to be harsh for a first-time offender who admitted guilt at the earliest opportunity.
They noted that uniformity in sentencing is important and urged courts to compare penalties with similar cases.
The matter has been referred back to the Ondangwa Magistrate’s Court for fresh questioning focused on Nghilukwa’s intent.
Should he be convicted again, the judges said the court must consider the time already served in custody.
