Court name
High Court
Case number
CRIMINAL 99 of 2008
Title

S v Gotosa (CRIMINAL 99 of 2008) [2008] NAHC 95 (22 August 2008);

Media neutral citation
[2008] NAHC 95





CASE NO







REPUBLIC OF
NAMIBIA



CASE
NO.: CR 99/08


IN
THE HIGH COURT OF NAMIBIA


In
the matter between:


THE
STATE


versus


1. NICO
GOTOSA


2. LAST
MAPFUMA


3. GIFT
MUZA


(HIGH
COURT REVIEW CASE NO.: 10/08)


CORAM: VAN
NIEKERK,
et
MULLER,
JJ


Delivered on: 2008-08-22

____________________________________________________________________


REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:


[1] The
three accused were convicted of various contraventions of the
Immigration Act, 7 of 1993. Accused no. 3 was charged with a
contravention of section 12(4) of Act 7 of 1993 (count 3). The
conviction and sentence are in order. This judgment concerns the
convictions of accused no. 1 and 2. They were both charged on count
1 as follows:








"CONDUCTING
BUSINESS OR CARRYING ON A PROFESSION OR OCCUPATION








That
the accused is/are guilty of contravening section (1)(d) Act 7 of
1993 read with section 30(1)(iv), 30(2)(b), 30(3)(e), 30(4) Act 7 of
1993, Immigration Act.





In
that upon or about 31 October 2007 and at or near Keetmanshoop in the
district Keetmanshoop, the accused to whom has been issued a permit
under this Act, as the case may be is prohibited by reason of any
purpose of which such permit was issued or any condition stated in
such permit, did wrongfully and unlawfully conduct a business in
contravention of the permit issued to him or without a valid permit
to conduct business in Namibia to wit selling hats, handbags, socks
and shoes."








[2] Although
the charge, quoted here as it appears on the annexure to the charge
sheet, alleges that the accused are guilty of a contravention of
“section (1)(d)”, it is clear when read in context that
it should have read “section 30(1)(d)”. This much is
confirmed when one has regard to the charge sheet itself, which
expressly refers to section 30 of Act 7 of 1993.








[3] Accused
no. 2 was also charged and convicted on count 2, which reads as
follows:







"OVERSTAYING
IN NAMIBIA






That
the accused is guilty of Contravening Section 29(5) of the Imigration
Act 7 of 1993.





In
that upon or about the 31 day of October 2007 and at or near
Keetmanshoop and in the district of Keetmanshoop the accused a
Zimbabwean citizen was issued with a visitor's entry permit on the 25
September 2007 that expired on the 10 October 2007. And the accused
continue to say in Namibia after the expiration of the visitors entry
Permit and thus the accused overstayed in Namibia for 21 days."














[4] On
review I posed the following questions to the learned magistrate:


"1. Does
section 30 of Act 7 of 1993 create the offence contended for by the
charge as framed in count 1? Should accused no. 1 and 2 not have
been charged with a contravention of section 29(5) of Act 7 of 1993
instead?





2. If
the answer to the second question posed in paragraph 1 is "Yes"
should all the allegations against accused no. 2 not have been
contained in a single charge of contravening section 29(5) of Act 7
of 1993? In other words, was there not, in effect a multiplication
of convictions in respect of accused no. 2?"





[5] I
also referred the same questions to the Prosecutor-General for an
opinion in order to assist the Court in the matter. I thank Ms
Jacobs of that Office for the opinion provided. The opinion and the
response of the magistrate are to the same effect. In regard to the
two questions posed in paragraph 1 of the query, they are of the view
that section 30 does create the offence contended for by the charge
as framed in count 1 and that accused 1 and 2 should not have been
charged with a contravention of section 29(5) of the Act instead.

For reasons to
follow I do not agree with the views expressed in the opinion or the
magistrate's reply.





[6] It
is necessary to set out the relevant sections in detail. Sections
29(1), (5) and (6) and section 30 of the Act read as follows:





29 Application
for visitors

entry permits


(1)
An immigration officer may, on the application of any person who has
complied with all the relevant requirements of this Act, issue to
such person a visitor's entry permit -



(a)
to enter Namibia or any particular part of Namibia and to sojourn
temporarily therein;



(b) if
he or she is already in Namibia to sojourn temporarily in Namibia or
any particular part of Namibia,


for
such purposes and during such period, not exceeding 12 months, as may
be determined by the immigration officer and subject to such
conditions as the immigration officer may impose, and stated in the
said permit.





(2),
(3), (4)…………………………………………………………………..


(5)
Any person to whom a visitor's entry permit was issued under
subsection (1) and who remains in Namibia after the expiration of the
period or extended period for which, or acts in conflict with the
purpose for which, that permit was issued, or contravenes or fails to
comply with any condition subject to which it was issued, shall be
guilty of an offence and on conviction be liable to a fine not
exceeding R12 000 or to imprisonment for a period not exceeding three
years or to both such fine and such imprisonment, and may be dealt
with under Part VI as a prohibited immigrant.


(6)
The provisions of this section shall not be construed as authorizing
any person to whom a visitor's entry permit has been issued (whether
or not as a purpose for which or a condition subject to which such
permit has been issued), to enter into or to be in any employment or
to conduct any business or to carry on any profession or occupation
or to receive any training, instruction or education in any training
or educational institution, in Namibia.





30
Prohibitions in respect of certain persons to enter into, or to be
in, employment or to conduct a business, profession or occupation, or
to receive any training, instruction or education in any training or
educational institution or to harbour such persons in Namibia.





(1)
If any person to whom has been issued any permit under this Act,
as the case may be, is prohibited by reason of any purpose for
which such permit was issued under this Act or any condition stated
in such permit from -



(a) entering
into or being in the employment of any other person;



(b) entering
into or being in the employment of any other person, except a person
specified in such permit;



(c) entering
into or being in the employment of any other person in any capacity
except a capacity specified in such permit or for a period longer
than the period so specified;



(d) conducting
a business or carrying on a profession or
occupation;



(e) receiving
any training, instruction or education at any institution;



(f) receiving
any training, instruction or education at any institution, except an
institution specified in such permit,


no
person shall
-



(i) in
the case of a prohibition referred to in paragraph (a), employ or
continue to employ such person;



(ii) in
the case of a prohibition referred to in paragraph (b), employ or
continue to employ such person, unless he or she is the person
specified in the permit;



(iii) in
the case of a prohibition referred to in paragraph (c), employ or
continue to employ such person in any capacity except the capacity
specified in the permit or for a period longer than the period so
specified;



(iv) in
the case of a prohibition referred to in paragraph (d), enter into an
agreement with such person for the conduct of a business or the
carrying on of a profession or occupation or conduct a business or
carry on a profession or occupation in co-operation with such person
;



(v) in
the case of a prohibition referred to in paragraph (e), provide
training, instruction or education to such person or permit him or
her to receive training, instruction or education;



(vi) in
the case of a prohibition referred to in paragraph (f), provide
training, instruction or education to such person or permit him or
her to receive training, instruction or education at an institution,
unless it is at the institution specified in the permit.



(2) If
any permit has been issued under this Act
, as the case may be, to
a person permitting him or her to reside or sojourn in any particular
part of Namibia, no person shall -



(a) employ
or continue to employ such person in any part of Namibia except that
particular part;



(b) enter
into an agreement with such person for the conduct of a business or
the carrying on of a profession or occupation in any part of Namibia
except that particular part;



(c) conduct
any business or carry on any profession or occupation in co-operation
with such person in any part of Namibia except that particular part;



(d) assist,
enable or in any manner help such person to conduct a business or
carry on a profession or occupation in any part of Namibia except
that particular part;



(e) do
anything for or on behalf of such person in connection with a
business or carry on a profession or occupation in any part of
Namibia except that particular part;



(f) harbour
such person in any part of Namibia except that particular part;



(g) let
or sell or in any manner make available to such person immovable
property in any part of Namibia except that particular part; or



(h) provide
training, instruction or education to such person or permitting him
or her to receive training, instruction or education in any part of
Namibia except that particular part.



(3) No
person shall -



(a) employ
or continue to employ any person who is in Namibia in contravention
of the provisions of this Act or any condition imposed by or under
this Act;



(b) provide
training, instruction or education to such person or allow him or her
to receive training, instruction or education;



(c) issue
to such person a licence or other authorization to conduct any
business or to carry on any profession or occupation;



(d) enter
into an agreement with such person for the conduct of any business or
the carrying on of any profession or occupation;



(e) conduct
any business or carry on any profession or occupation in co-operation
with such person;



(f) assist
or in any manner enable such person to conduct any business or to
carry on any profession or occupation;



(g) obtain
a licence or other authority for or on behalf of such person to
conduct any business or to carry on any profession or occupation;



(h) do
anything for or on behalf of such person in connection with his or
her business or profession or occupation;



(i) harbour
any such person; or



(j) let
or sell or in any manner make available any immovable property in
Namibia to any such person.



(4) Any
person who contravenes the provisions of subsection (1), (2) or (3)
shall be guilty of an offence and on conviction be liable to a fine
not exceeding R 12 000 or to imprisonment for a period not exceeding
three years or to both such fine and such imprisonment.


(5)
If a person is charged with a contravention of subsection (1)(i)
or (v), (2)(a) or (h) or (3)(a) or (b), such person may -



(a) in
the case of a charge of a contravention of subsection (1)(i) or (v),
be found guilty of a contravention of subsection (1)(iv), if such be
the facts proved;



(b) in
the case of a charge of a contravention of subsection (2)(a) or (h),
be found guilty of a contravention of subsection (2)(b), (c), (d),
(e), (f) or (g), if such be the facts proved;



(c) in
the case of a charge of a contravention of subsection (3)(a) or (b),
be found guilty of a contravention of subsection (3)(c), (d), (e),
(f) or (h), if such be the facts proved.



(6) (a) A
person referred to in paragraph (a) of subsection (3) may not obtain
a licence or other authority to conduct a business or carry on a
profession or occupation.



(b) A
licence or other authority obtained in contravention of the
provisions of paragraph (a) shall be null and void.”





(The
underlining is mine)


[7] In
the learned Prosecutor-General’s opinion the following is
stated in regard to section 30:



Section
30(1) of Act 7 of 1993 reads as follows: ‘
(1)
If any person to whom has been issued any permit under this Act, as
the case may be, is prohibited by reason of any purpose for which
such permit was issued under this Act or any condition stated in such
permit from -



(a) ………………………………



(b) ………………………………



(c) ………………………………



(d) conducting
a business or carrying on a profession or

occupation;



(e) ………………………………





(f) ………………………………





Section
30(4) states: ‘Any person who contravenes the provisions of
subsection (1), (2) or (3) shall be guilty of an offence and on
conviction be liable to a fine not exceeding R 12 000 or to
imprisonment for a period not exceeding three years or to both such
fine and such imprisonment.





It
is my respectful opinion that Section 30 does create the offence
contended for by the charge as framed in count 1. Section 30
contains prohibitions in respect of certain persons to enter into, or
to be in employment or to conduct a business, profession or
occupation, or to receive any training, instruction or education in
any training or educational institution, or to harbour such persons
in Namibia.”








[8] The
learned magistrate states:





“………Section
30(1)(d) read with Section 30(4) of Act 7 of 1993 does create the
offence contended for by the charge in Count one. If one look at the
heading of ……Section 30 of Act 7 of 1993 it is clear
that the intention of that Section is to prohibit certain people like
the accused to Conduct a business in Namibia Contrary to their
visitor permit. Therefore accused 1 and 2 whom a visitor’s
entry permit was issued fir the purpose of visiting acted in conflict
with the purpose for which, that permit was issued by engaging
themselves in business of selling, bags, hats etc.”








[9] In
my respectful view the Prosecutor-General and the magistrate err in
their reading of section 30. Their reading overlooks the first word
of section 30(1) namely “if”, the words “no person
shall” occurring between subsections (1)(a) – (f) and
subsections (1)(i) – (vi), and the words “with such
person” in subsection (1)(iv). Section 30(1) does not
criminalize the conduct of the permit holder. It criminalizes the
conduct of a person who engages in certain activities with the permit
holder if the permit, or the purpose for which it was issued,
prohibits the permit holder from engaging in those activities.
Although section 30(1) refers to the prohibitions placed elsewhere on
the permit holder, section 30 itself does not create a prohibition in
relation to the permit holder. This is clear from the introductory
words of section 30(1) which commence with the word “if”.
For example, if a permit holder is prohibited by the permit, or the
purpose for which it was issued, to conduct a business, section
30(1)(iv), read with sections 30(1)(d) and (4), makes it an offence
for
another
person to enter into an agreement with the permit holder for the
conduct of business. The section does not make it an offence for the
permit holder to do so.





[10] If
the permit holder acts contrary to any of the prohibitions mentioned
in the introductory part of section 30(1), (s)he may be charged with
a contravention of that particular section in the Act which covers
the kind of permit with which (s)he was issued. This may be
illustrated by yet another example: if the permit holder was issued
with a visitor's entry permit in terms of section 29, but instead
conducts a business in conflict with the purpose for which the permit
was issued, (s)he may be charged with a contravention of section
29(5), read with section 29(6). In my view this is how accused nos. 1
and 2 should have been charged.





[11] The
charge in relation to count 1 also contain references to sections
30(2)(b) and 30(3)(e). This does not take the matter any further,
because they also do not create offences with which the permit holder
may be charged.





[12]
The question arises whether the conviction on count 1 of a
contravention of section 30 should be substituted with a conviction
under section 29(5), read with section 29(6), as it is clear that
accused no. 1 and 2 did commit an offence by conducting a business,
as they indeed admitted during the section 112(1)(b) questioning.
Although the charge in count 1 as framed is clumsily worded, it can
be made out that the accused were issued with permits under the Act;
that they were prohibited by reason of the purpose of the permits or
a condition in the permits to conduct a business in Namibia and that
they contravened this prohibition by unlawfully selling hats,
handbags, etc. Although there is not an express reference to the
fact that the permits were visitor’s permits, both accused
admitted that they presented themselves to immigration officers to
obtain permits to enter Namibia and that their purpose was to visit.
They admitted that they did not obtain permits allowing them to
conduct business in Namibia.





[13] Section
84 of the Criminal Procedure Act, 51 of 1977, which deals with the
essentials of a charge, states in subsection (1) that
“a
charge shall set forth the relevant offence in such manner…………as
may be reasonably sufficient to inform the accused of the nature of
the charge.”

Subsection (3) states that in
“criminal
proceedings the description of any statutory offence in the words of
the law creating the offence, or similar words, shall be sufficient.”
The
charge should also include the number of the statutory provision and
the particular section in which the offence is created (Du Toit and
others,
Commentary
on the Criminal Procedure Act
14-15
[Service 35, 2006]). However, where there is a mistake or omission
in the charge, e.g. a reference to the wrong section of a statute, or
no reference at all, this may be overlooked provided that the
particulars of the contravention remain clear or the nature of the
charge is set out with sufficient clarity. (
R
v Kharibe

1958 (1) SA 191 (T) 193A). However, it must be noted that it is
required of prosecutors to take care to draw proper charge sheets.





[14] In
my view there would be no prejudice for accused no. 1 if the
conviction on count 1 of a contravention of section 30(1)(d) is
substituted with a conviction on a contravention of section 29(5),
read with section 29(6) of the Act.

However,
the same cannot be said in relation to accused no. 2, as he was also
charged and convicted on count 2 with a contravention of section
29(5). The particulars of the charge are that on the same day he
remained in Namibia after the expiration of his visitor’s entry
permit. Section 29(5) may be contravened in several ways namely by
staying on after the expiration of the permit, by acting in conflict
to the purpose for which the permit was issued and by contravening or
failing to comply with any condition subject to which it was issued.
Where a person is charged that he acted contrary to the permit in
more than one way on the same day he should be charged with one count
setting out all the ways in which he acted contrary to the permit.
In this manner a duplication of convictions is avoided.





[15] In
conclusion, therefore, the following order is made:







  1. In
    respect of accused no. 1, the conviction on count 1 of a
    contravention of section 30 of Act 7 of 1993 is substituted with a
    conviction of a contravention of section 29(5), read with section
    29(6) of act 7 of 1993. The sentence on count 1 is confirmed.








  1. In
    respect of accused no. 2, the conviction and the sentence on count 1
    are set aside.







  1. In
    respect of accused no. 2, the conviction and the sentence on count 2
    are confirmed.







  1. In
    respect of accused no. 3, the conviction and the sentence on count 3
    are confirmed.












_____________________________


VAN
NIEKERK, J











I
agree.














________________


MULLER,
J