Court name
High Court
Case number
CRIMINAL 51 of 2006
Title

S v Kamu-Gaib and Another (CRIMINAL 51 of 2006) [2006] NAHC 21 (17 May 2006);

Media neutral citation
[2006] NAHC 21





CASE NO






CASE
NO.: CR 51/06





IN THE
HIGH COURT OF NAMIBIA





In the
matter between:








THE
STATE








and








1. FREDDIE
KAMU-GAIB











2. GERHARD
KAMU-GAIB








(HIGH
COURT REVIEW CASE NO. 593/06)








CORAM: HOFF
et VAN NIEKERK, JJ






Delivered: 2006-05-17





REVIEW
JUDGMENT





VAN
NIEKERK, J:







The Regional Court Magistrate at Tsumeb referred this matter for
special review. In his accompanying letter the learned magistrate
explains that the case of the two accused was referred to him for
sentence in terms of section 114(1)(a) of the Criminal Procedure Act,
1977 (Act 51 of 1977). They were convicted after a plea of guilty to
a charge of theft of stock, namely one ox to the value of N$2800-00,
under the Stock Theft Act, 1990 (Act 12 of 1990), as amended and
sentenced to twenty years imprisonment. The learned regional
magistrate points out that he omitted to explain the provisions of
section 14 of Act 12 of 1990, as amended, to the accused. More
particularly, he says he did not explain the fact that the accused
were facing a minimum sentence of twenty years without the option of
a fine and that if substantial and compelling circumstances exist
which justify the imposition of a lesser sentence, the court may
impose a lesser sentence. In his view the accused did not have a fair
trial as far as sentence is concerned and he requests this Court to
set aside the sentence he imposed in order for him to explain the
relevant provisions properly to the accused so that they might avail
themselves of the opportunity to place such circumstances before him.







I agree that this should be done. (See Levi Gurirab versus The
State
(High Court Appeal Judgment - Case No. CA 190/2004,
delivered on 12/7/2005).







I also wish to point out to the learned magistrate that, as the two
accused are first offenders, it would also be open to him in the
exercise of his discretion to suspend part of the twenty years
imprisonment even if there are no substantial and compelling
circumstances justifying the imposition of a lesser sentence (see
section 14(4) of Act 12 of 1990, as amended, read with section 297(4)
of Act 51 of 1977). (The State versus Kavii Gawie Katjirora (2)



(High Court Review Judgment - Case No. CR 98/05, delivered on
25/8/2005) at p4; The State versus Itembu Ngauyile (High Court
Review Judgment - Case No. CR119/2005 delivered on 8/12/2005) at
p3-4).



­­­­



In the result the following order is made:







1. The convictions are confirmed.







2. The sentences in respect of both accused are set aside.







3. The matter is remitted to the regional magistrate to sentence the
accused afresh.















_______________________



VAN NIEKERK, J







I agree,











____________________



HOFF, J