REPUBLIC
OF NAMIBIA

HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case
No: CR 25/2016

REPORTABLE

In
the matter between:

THE
STATE

And

NGATHA
DUNCAN

(HIGH COURT MAIN
DIVISION REVIEW REF NO. 1382/2015)

(MAGISTRATE’S
REVIEW NO.: 55/2015)

Neutral
citation: S v Ngatha (CR
25/2016) [2016] NAHCMD 90 (4 April 2016)

Coram:
SHIVUTE, J et
PARKER, AJ

Delivered:
4 April 2016

ORDER

(a)
The sentence imposed by the learned magistrate is set aside and
substituted by the following:

(b)
N$1200 (one thousand two hundred) fine or 4 months’
imprisonment wholly suspended for five years on condition that the
accused is not convicted of entering Namibia without unexpired
passport bearing a valid visa or authority – Contravening s
12(1), read with ss 1, 2 and 12(4), of the Immigration Control Act 7
of 1977 committed within the suspension period.

(c)
The sentence is antedated to 19 June 2015.

REVIEW
JUDGMENT

SHIVUTE
J (PARKER, AJ concurring):

[1]
The accused person was convicted of entering Namibia without an
unexpired passport bearing a valid visa or authority –
Contravening s 12(1), read with ss 1, 2 and 12(4), of the Immigration
Control Act 7 of 1993 after the court invoked the provisions of
s112(1)(a) of the Criminal Procedure Act 51 of 1977.

[2]
He was sentenced to four months’ imprisonment wholly suspended
for five years on condition that accused is not convicted of
contravening ss 1, 2(1) of Act 7 of 1993 committed within the period
of suspension.

[3]
The learned magistrate realised that she made an error and sent the
matter for special review with a covering letter that she was not
supposed to impose a custodial sentence without the option of a fine
as it is not a competent sentence.

[4]
What the learned magistrate submitted is indeed correct. 
Section 112(1) as amended reads a follows:

‘(a)
the presiding judge, regional magistrate or magistrate may, if he or
she is of the opinion that the offence does not merit punishment of
imprisonment or any other form of detention without the option of a
fine or a fine exceeding N$6000, convict the accused in respect of
the offence to which he or she has pleaded guilty on his or her plea
of guilty only and –

(i)
impose any competent sentence, other than
imprisonment or any other form of detention without the option of a
fine or a fine exceeding N$6000; or

(ii)
deal with the accused otherwise in
accordance with the law.’

[5]
From the reading of the section a Court cannot impose a term of
imprisonment or any other form of detention without the option of a
fine. Therefore, the above sentence imposed is not a competent one.
Furthermore, it is undesirable for a magistrate to deal with cases of
a serious nature in terms of s 112(1)(a). This section should be
restricted to minor offences only.

[6]
In the result:

(a)
The sentence imposed by the learned magistrate is set aside and
substituted by the following:

(b)
N$1200 (one thousand two hundred) fine or 4 months’
imprisonment wholly suspended for 5 years on condition that the
accused is not convicted of entering Namibia without an unexpired
passport bearing a valid visa or authority – Contravening s
12(1), read with ss 1, 2 and 12(4), of the Immigration Control Act 7
of 1993 committed within the suspension period.

(c)
The sentence is antedated to 19 June 2015.

N N Shivute

Judge

C
Parker

Acting
Judge