HOFF, J:   

[1]      The accused was convicted in the Oshakati Magistrate’s Court of contravening section 38 (1) (o) of Act 7 of 1996 and was sentenced to a period of ten years imprisonment of which 5 years imprisonment were suspended for a period of 5 years on condition that the accused is not convicted of discharging a fire-arm committed during the period of suspension.

[2]      The proceedings were forwarded for review by the Divisional Magistrate who submitted that a “gross injustice has occurred”.

[3]      I agree with this submission.  The sentence is clearly not in accordance with justice.  It is ultra vires since the penalty clause prescribed for contravening section 38 (1) (o) of Act 7 of 1996, is “a fine not exceeding          N$4 000.00 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”  (See section 38 (2) (d) ).

The magistrate Mr T K Kanime imposed the sentence (supra) in spite of the fact that the record reflects that the prosecutor in addressing the court before sentence stated, inter alia, “N$4 000.00 or 1 year imprisonment”.  Whether the prosecutor informed the magistrate that this was the prescribed maximum penalty prescribed by Act 7 of 1996 or whether this was the sentence suggested by the prosecutor to be imposed is not clear.

[4]      Nevertheless, it was the duty of the magistrate as an administrator of justice to determine the appropriate penalty clause prescribed by the legislature and not to arbitrarily and blindly, impose such a shockingly inappropriate sentence.

[5]      It appears from the record that the accused person who was employed by a security company used his service revolver to threaten some individuals and

a shot went off in the process.  Nobody was injured.  The accused was a first offender.

[6]      I was informed by the Divisional Magistrate that the accused person is presently in custody at the Oshakati Police Cells in the absence of a warrant for committal since the magistrate who imposed the sentence “disappeared” before the warrant was brought to him for his signature and the other magistrates refused to sign the warrant for committal because the sentence imposed was “unlawful”.

[7]      In these circumstances I deem it expedient not to request from the magistrate to provide reasons for the sentence imposed, since the accused person’s right to a speedy trial and his right to a fair trial would be prejudiced by further delays. 

[8]      In the result the following orders are made:

1.       The conviction is confirmed but the sentence imposed is set aside.

2.       It is further ordered that sentence is considered afresh by another magistrate.

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HOFF, J

I  agree

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DAMASEB, JP