Case Title:

The State v Lourens Richter and Rudian Christof

Case No:         CR 56/2020

Division of Court:

Main Division

Heard before:

Honourable Mr. Justice  Unengu AJ et

Honourable Mr. Justice  Miller AJ

Delivered on:

14 August 2020

(HIGH COURT MAIN DIVISION REVIEW REF NO.  914/2020)

Neutral citation:      S  v  Richter (CR 56/2020) [2020] NAHCMD 356 (14 August 2020)

The order:

(1)       The conviction on both counts are confirmed.

(2)       The sentences imposed by the learned magistrate in respect of both counts are set aside and substituted with the following sentences:

Count 1:         Crimen injuria read with Act 4/2003.

              A fine of N$ 1000 (one thousand) or 1 (one) month imprisonment.

Count 2:         Malicious damage to property read with Act 4/2003.

A fine of N$ 2000 (two thousand) or 2 (two) months imprisonment.

(3)       The sentences are antedated to 22 June 2020.

(HIGH COURT MAIN DIVISION REVIEW REF NO.  915/2020)

Neutral citation:      S  v  Christof (CR 56/2020) [2020] NAHCMD 356 (14 August 2020)

The order:

(1)       The conviction is in order and is confirmed.

(2)       The sentence imposed by the magistrate is set aside and is substituted with the following sentence.

(3)       A fine of N$ 1000 (one thousand) or 1 (one) month imprisonment.

(4)       The sentence is antedated to 19 June 2020.

Reasons for order:

UNENGU, AJ (MILLER, AJ concurring):

[1]        These two matters were submitted for automatic review in terms of s 302 of the Criminal Procedure Act, 51 of 1977[1] by the same magistrate sitting at the Keetmanshoop district court. The reason why the cases are dealt with together in one judgment is because both cases were disposed of in terms in terms of s 112(1) (a) of the Criminal Procedure Act after the accused persons pleaded guilty to the charges preferred against them.

[2]        Lourens Richter was charged with crimen injuria read with the provisions of the Domestic Act, 4 of 2003 as count 1 and malicious damage to property also read with the Domestic Act, as count 2.

[3]        Both Counts were perpetrated against the same complainant namely, his sister. As pointed out above, s 112(1) (a) was applied in respect of both counts and he was punished on count 1 with a fine of N$ 1000 (one thousand) or in default of payment 9 (nine) months imprisonment. On count 2 a fine of N$ 2000 (two thousand) or in default of payment 12 (twelve) months imprisonment of which N$ 1000 or 6 months were suspended for a period of 5 years on condition that accused is not convicted of damage to property, committed during the period of suspension and that accused keeps a distance of 2000 meters at all times from the complainant resident at 2460, mass housing, new extension in Keetmanshoop.

[4]        With regard to the matter of accused Rudian Christof, he was convicted of theft of 21 wooden poles valued at N$ 1262 08 the property or which were in the possession of Wessel Le Roux. The accused was sentenced to pay a fine of N$ 1000 (one thousand) or in default of payment 10 (ten) months imprisonment.

[5]        On review, I sent a query to the learned magistrate to explain if she had any special reason why she imposed harsh imprisonment periods as options to fines imposed on accused Lourens Richter and accused Rudian Christof. Whether the periods of ten (10) and twelve (12) months imprisonment in default of payment of a fine not shockingly and evokes a sense of shock in particular when the matter was disposed of in terms of s 112(1) (a) of the Criminal Procedure Act, 51 of 1977.

[6]        In her response to the query, the learned magistrate stated that as s112 (1) (a) does not dictate a limit to the custodial part of the sentence but only to the monetary part of the sentence, the custodial part of the sentence should be reasonable and fair considering the crime committed, the personal circumstances of the accused and the interest of the community jointly (sic) whilst blending it with a measure of mercy.

[7]        Section 112 (1) (a) may only be applied in situations where an accused had pleaded guilty to the offence charged, or to an offence which he may be convicted on the charge and the prosecutor accepts the plea. 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 of a fine exceeding N$ 6000.

[8]        The emphasis is on the particular offence charged with and to which the accused has pleaded guilty which would dictate whether or not s 112(1)(a) be applied and in the event that s 112(1) (a) is applied , the sentence to be imposed must meet  the requirements of the section.

[9]        In casu, the learned magistrate in both cases overemphasized the serious nature of the offences the accused were charged with and convicted of. This is clear from the record of proceedings and from her reasons for sentencing. The periods of imprisonment in both cases are disproportionate to the fines imposed and are too severe if regard is had to the fines imposed. Periods of nine (9), ten (10) and (12) months imprisonments, in my opinion, are inappropriate in these instances.

[10]      It is an abuse of process to apply s 112(1)(a) if the magistrate has a severe custodial punishment in mind as an option to a fine. In these matters, it is possible that the learned magistrate was either in a hurry to finalize the cases or she was lazy to question the accused in terms of s 112(1) (b). In fact, this is not the first time the learned magistrate is imposing harsh custodial sentences as options to a fine after applying s 112(1)(a). She has done so in matters submitted for review previously.

[11]      It has been stated in several judgments of this jurisdiction and other jurisdictions which I find not necessary to quote here, that the provisions of s 112(1) (a) should be applied or reserved for petty offences only. If the court is of the opinion that the offence the accused charged with and to which he or she has pleaded guilty justifies a severe punishment in the form a fine or custodial sentence, the correct thing to do, is to apply s 112(1) (b) or for the prosecutor not to accept the plea but to call for evidence to be led.

[12]      In my view, the learned magistrate exercised her sentencing discretion inappropriately and unreasonably in these matters, therefore committed an irregularity justifying this court to set aside the sentences imposed and to substitute them with appropriate sentences.

[13]      In the result the sentences imposed are set aside and substituted with the following sentences:

In the matter of S v Richter:

            Count 1:         A fine of N$ 1000 (one thousand) or 1 (one) month imprisonment.

            Count 2:         A fine of N$ 2000 (two thousand) or 2 (two) months imprisonment.

In the matter of S v Christof:

            A fine of N$ 1000 (one thousand) or 1 (one) month imprisonment.

[14]      The sentences are antedated to 22 June 2020 and 19 June 2020 respectively.

E P UNENGU

ACTING JUDGE

K MILLER

ACTING JUDGE