CASE
NO.: CR 19/06

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

versus

SIMBARASHE
MARISA

(HIGH
COURT REVIEW CASE NO.: 151/06)

CORAM:
MAINGA, J et VAN NIEKERK, J

Delivered:
2006 - 02 - 22

________________________________________________________________________

REVIEW
JUDGMENT:

VAN
NIEKERK, J: In this matter the accused was convicted by the
Magistrate, Gobabis on three charges. They are (1) forgery; (2)
uttering; and (3) c/sec 29(5) of the Immigration Control Act, 1993
(Act 7 of 1993).

He
was sentenced as follows:

"Count
1: N$1000 - 00 or 12 months imprisonment.

Count 2: N$1000 - 00 or 12 months imprisonment

Count 3: N$4000 - 00 or 18 months imprisonment.

Count 1 and 2: sentences are ordered to run concurrently with
sentence imposed on count 3".

The
magistrate referred to the matter of S v Lalsing 1990 (1) SACR
443 (N) as authority for the order that the sentences on count 1 and
2 may run concurrently with the sentence imposed on count 3. Having
read this judgment, as well as the judgment of S v Mngadi 1991
(1) SACR 313 (T) I am satisfied that it is competent to make such an
order. However, I incline to the view of Melunsky, J in S v
Hutton 1998 (2) SACR 474 (E) at 477 that in order to avoid
confusion, it is desirable (as opposed to necessary), that a court
should order that the sentence will run concurrently only if the fine
is not paid.

The
order made is the following:

The
convictions and sentences on count 1, 2 and 3 are confirmed. Should
any of the fines on count 1 and 2 not be paid the alternative
sentence of imprisonment shall run concurrently with any alternative
period of imprisonment served in respect of count 3.

_________________________

VAN
NIEKERK, J

I
agree

____________________________

MAINGA,
J