REPUBLIC
OF NAMIBIA

HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case
No: CR 29/2016

DATE:
08 APRIL 2016

THE
STATE

Versus

THOMAS
NAKASOLE

(HIGH COURT MAIN
DIVISION REVIEW REF NO. 1131/2015)

(MAGISTRATE’S
REVIEW NO.: 18/2015)

Neutral
citation: S v Nakasole (CR
29/2016) [2016] NAHCMD 101 (8 April 2016)

Coram:
SHIVUTE, J et
PARKER, AJ

Delivered:
8 April 2016

ORDER

(a)
The conviction is confirmed.

(b)
The sentence imposed is set aside and replaced with the following
sentence:

Four
hundred Namibia dollars fine or two months’ imprisonment
suspended as a whole for two years on condition that accused is not
convicted of possession of dependence-producing substance,
contravening s 2(b) of Act 41 of 1971 committed during the period of
suspension.

(c)
The sentence is antedated to 8 August 2015.

REVIEW
JUDGMENT

SHIVUTE
J (PARKER, AJ concurring):

[1]
The accused pleaded guilty to one count of possession of
dependence-producing substance, namely cannabis valued at N$9
contravening s 2(b) of Act 41 of 1971.  The Court invoked the
provisions of s 112(1)(a) of Act 51 of 1977.  He was sentenced
to two (2) months direct imprisonment wholly suspended for a period
of (2) years.

[2]
I queried the magistrate whether the sentence imposed was competent. 
Unfortunately the trial magistrate was not available.  Another
magistrate who was at the station responded to the query that the
sentence imposed was incompetent, which is the correct position in
law. 

[3]
In terms of s 112(1)(a) of the Act the sentence should be one with an
option of a fine, which is not the case in this matter.  Any
term of imprisonment or any form of detention which is not coupled
with a fine is not a competent sentence.

[4]
Apart from the term of imprisonment imposed without the option of a
fine, the sentence was suspended as a whole.  However, there is
no condition attached to the suspended sentence.  The
implication is that if accused is convicted again of contravening s
2(b) of the Act it will not be possible to put the suspended sentence
into operation.  There should be clear conditions attached to
the suspension of sentence.  The accused should be convicted of
a related offence committed during the period of suspension.

[5]
The sentence imposed by the magistrate is not permissible and cannot
be allowed to stand.

[6]
In the result the following orders are made:

(a)
The conviction is confirmed.

(b)
The sentence imposed is set aside and replaced with the following
sentence:

Four
hundred Namibia dollars fine or two months’ imprisonment
suspended as a whole for two years on condition that accused is not
convicted of possession of dependence-producing substance,
contravening s 2(b) of Act 41 of 1971 committed during the period of
suspension.

(c)
The sentence is antedated to 8 August 2015.

N N Shivute

Judge

C
Parker

Acting
Judge