REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

Case No: CR 24/2016

In the matter between:

THE STATE

And

GARAB REINHARD

(HIGH COURT MAIN DIVISION REVIEW REF
NO. 1122/2015)

(MAGISTRATE’S REVIEW NO.:
29/2015)

Neutral citation: S v Garab (CR
24/2016) [2016] NAHCMD 89 (4 April 2016)

Coram: SHIVUTE, J et PARKER, AJ

Delivered: 4 April 2016

ORDER

(i) The sentence on the count of
assault with intent to do grievous bodily harm is confirmed.

(ii) The sentence on the count of
assault by threat is set aside and substituted with the following:
N$900 (nine hundred) fine or three months’ imprisonment
suspended in toto for three years on condition that accused is not
convicted of assault or assault by threat committed during the period
of suspension.

(iii) The sentence is antedated to 18
June 2015.

REVIEW JUDGMENT

SHIVUTE J (PARKER, AJ concurring):

[1] The accused was properly convicted
of one count of assault with intent to do grievous bodily harm and
one count of assault by threat. On the count of assault with intent
to do grievous bodily harm he was properly sentenced to 8 (eight)
months imprisonment. On the count of assault by threat he was
improperly sentenced to 3 (three) months’ imprisonment even
though he was convicted in terms of s 112(1)(a) of the Criminal
Procedure Act, 51 of 1977.

[2] When queried whether the sentence
of three months’ imprisonment in the circumstances in which an
accused was convicted pursuant to s 112(1)(a) of the Act was
competent, the learned magistrate answered in the affirmative. This
answer, of course does not represent the correct position of the law.

[3] In terms of s 112(1)(a) of the Act
an accused may not be sentenced to a term of imprisonment or any
other form of detention without the option of a fine. As the learned
magistrate has not imposed a fine with imprisonment being an
alternative, the sentence is clearly incompetent. It should
therefore be set aside.

[4] In the result the following order
is made:

(i) The sentence on the count of
assault with intent to do grievous bodily harm is confirmed.

(ii) The sentence on the count of
assault by threat is set aside and substituted with the following:
N$900 (nine hundred) fine or three months’ imprisonment
suspended in toto for three years on condition that accused is not
convicted of assault or assault by threat committed during the period
of suspension.

(iii) The sentence is antedated to 18
June 2015.

N N Shivute

Judge

C Parker

Acting Judge