CASE NO.: CR 23/2009

IN
THE HIGH COURT OF NAMIBIA

In the matter between:

THE
STATE

and

SIMBARASHE
CHIWUDO ACCUSED NO 1

TIRIVAVURU
VENGAI ACCUSED NO 2

LENON
WESLEY SHERENI ACCUSED NO 3

FARAI
SHAMBARE ACCUSED NO 4

CHRISPEN
MAZANHI ACCUSED NO 5

JAMES
CHANAMGA ACCUSED NO 6

SIMBARASHE
CHUMUCHU ACCUSED NO 7

(HIGH
COURT REVIEW CASE NO.: 187/2009)

CORAM: VAN
NIEKERK, J et
MULLER, J

Delivered
on: 24 March 2009

REVIEW
JUDGMENT

VAN NIEKERK et
MULLER, J.:
[1]
Seven accused were convicted in the Magistrate’s Court for the
district of Rehoboth on charges of contraventions of the Immigration
Control Act, No 7 of 1993 (the Act). Accused no 1 and 5 were charged
of contravening “s 29(1) and (5)” of the Act (it should have been
“s 29(5) read with s 29(1)”), in that they remained in Namibia
after their visitor’s entry permits had expired. We are satisfied
that they were correctly convicted, except that the magistrate
incorrectly recorded the convictions as being a contravention in each
case of “s 29(1)(5)” of Act 7/1993. There is no such section in
the Act. It should have been “s 29(5) read with s 29(1)”.

[2] When this matter was
initially read by the Reviewing Judge, it was not noticed that a
typing error had occurred on the typewritten charge sheet with regard
to accused no’s 2, 3, 4, 6 and 7. According to the typed charge
they were also charged with a contravention of s 29(1) of the Act.
Yet the particulars of the charge sheet related to the offence of
entering Namibia without a valid passport, which is a different
offence under s 12 of the Act. What is more, although the magistrate
questioned them on their pleas of guilty to a contravention of s
12(1) of the Act in terms of section 112(1)(b) of the Criminal
Procedure Act, 51 of 1977 (“the CPA”), he in fact found them
guilty of a contravention of “section 29(1)5)”. In the case of
accused nos. 2 and 3 he made the further mistake by recording that
the Act contravened is Act 7 of 1973, instead of Act 7 of 1993.

[3] In
respect of accused no’s 2, 3, 4, 6 and 7, the Reviewing Judge
addressed the following query to the magistrate:

“a) They
were charged of contravening s 29(1) of the Immigration Control Act
No 7 of 1993.

b) That
section deals with visitor’s entry permits, while these accused
apparently entered Namibia without valid passports or documents to
permit such entries.

c) These
accused were found
“GUILTY AS CHARGED”.

d) The
charge was never amended. Please explain.”

[4] The magistrate replied as
follows:

“I
am responding to the Honourable Mr Justice Muller query dated 16
February 2009 regarding the above mentioned matter.

I
agree that accused 2,3,4,6 and 7 were charged with contravening
section 29(1) of the Immigration Control Act, No 7 of 1993 and this
section deals with visitor’s entry permits while these accused
entered Namibia without valid passports or documents authorising them
entry in Namibia.

I
admit it was wrong to found them guilty as charged. I should have
found them guilty of entry into Namibia without an unexpired
passport bearing a valid visa of authority.

I
also admit that a charge should have been amended.

I
thank the Honourable Mr Justice for his wise advice and guidance. I
humbly plea for the forgiveness for the error occur.

I
hope my explanation will be understood by the Honourable Mr Justice.”

[5] However,
on further perusal of the record subsequent to receipt of the
magistrate’s reasons, it appears that the original handwritten
charge in respect of accused nos. 2, 3, 4, 6 and 7 did correctly
state that they were charged of contravening s 12 of the Act by
entering Namibia without valid passports and visas. That was the
charge to which the five accused pleaded guilty. Unfortunately the
query to the magistrate referred to the typed charge, which referred
to a contravention of s 29 of the Act. It is now clear that although
the charges in respect of accused nos. 2, 3, 4, 6 and 7 were correct,
namely of contravening s 12(1) of the Act, these accused were
erroneously convicted of contravening s 29(1) of the Act, the same as
accused nos. 1 and 5.

[6] However,
for the reasons to follow we cannot merely correct the error by
substituting the convictions under s 29 with convictions under s 12.
The problem is that the magistrate failed to address a question in
respect of an essential element of a charge in terms of s 12(1) and
(4) to these five accused. This occurred because the charge was not
correctly drawn to cover all the elements of the offence. It has
been stated by this Court on several occasions that an accused
charged of contravening the provisions of that section must be asked
whether an authorised immigration officer refused him or her entry
into Namibia. In S
v Alfred Ngono 2005
NR 34 (HC) Maritz J (as he then was) stated this requirement as
follows at p35B-36D of his judgment:

“One
would have expected the charge to follow the words of s 12(4) of the
Act which creates the offences or words to that effect (see: Section
84(3) of the Criminal Procedure Act, 1977). At the very least though,
the formulated charge should have contained the provisions of the
subsection relating to the essentials of the offence [created]
thereby. A comparison between the charge and the provisions of the
subsection shows that it does not…

This
section creates two offences:

1. 
   Entering
   Namibia in contravention of the provisions of subsection (1) of
   Section 12 of the Act and;

   
   

2. 
   Being
   found in Namibia after having been refused to enter Namibia in terms
   of that subsection.

   
   

The
accused was not charged of the offence in paragraph (a). At best the
formulation of the charge suggests that he has committed the offence
referred to in paragraph (b). It is, however, an essential element of
the latter offence that, prior to him being found in Namibia, he
should have been refused entry into the country under the provisions
of s 12(1) of the Act. In the absence of such an allegation, the
charge did not comply with the provisions of s. 12(4) relating to the
essentials of the charge and was such objectionable within the
meaning of s.85(1)(a) of the Criminal Procedure Act, 1977.

Moreover,
the requirement that there should have been a preceding refusal to
allow the person “to enter Namibia in terms of” Section 12(1) of
the Act constitutes an important element of the chare. A person found
in Namibia after having been refused earlier permission to enter the
country, may still have a defence if the earlier refusal had not been
“in terms of” subsection (1). So, for instance, may an
Immigration Officer not refuse a person permission to enter the
country under subsection (1) if that person has proved that he or she
is a Namibia citizen or leally domiciled in Namibia. If an
Immigration Offer would refuse entry notwithstanding his statutory
duty to the contrary, the refusal would not be one “in terms of”
subsection (1) and the person concerned would not commit the offence
created by subsection (4) even if he or she is found in Namibia at a
later stage.

The
magistrate’s inquiry under Section 112(1)(b) of the Criminal
Procedure Act, 1977, followed the allegations made in the charge.
Because the charge did not contain averments necessary to sustain the
offence, no questions were directed to the accused on whether or not
he had previously been refused entry in Namibia by an Immigration
Officer under Section 12(1) of the Act. No admission was made by him
to that effect and, on a proper construction of subsection (4), the
magistrate could therefore not have been satisfied that the accused
had intended to plead guilty.”

[7] This
decision was followed with approval in S
v Wellem
(Case No.: CR 138/2008) and S
v Nkomo
(Case No.: CR 139/2008), both unreported judgments delivered on 31
December 2008. It therefore follows that the convictions of accused
nos. 2, 3, 4, 6 and 7 cannot be confirmed.

[8] We
now turn to the sentence imposed in respect of accused nos. 1 and 5,
which reads as follows:

“6
months imprisonment each wholly suspended on condition all accuseds
are not convicted for an offence of entry into Namibia without an
unexpired passport bearing a valid visa of authority and or
overstaying or remaining in Namibia after the expiration of visitors
entry permit or temporary residence permit for a period of 5 years
committed during the period of suspension.”

[9] Apart
from the word order, there are several problems with this sentence.
Firstly, the sentence is suspended on condition that “all” the
accused should not be convicted of the mentioned offences. Literally
interpreted this means that the suspended sentence can be put into
operation in respect of either accused no 1 or 5 or both if any one
of all the accused in the case is convicted. This would be absurd
and could lead to an injustice.

[10] Secondly,
Act 7 of 1993 does not provide for a temporary residence permit. The
condition of suspension should therefore not make reference to such a
permit.

[11] Thirdly,
it has been repeatedly stated that the offence which forms the
subject matter of the condition of suspension must be related to the
offence committed. Accused nos. 1 and 5 were convicted of remaining
in Namibia after their visitor’s entry permits have expired (c/s
29(5)). The offence of a contravention of s 12(4) is not related to
the offence of which they were convicted. This offence should
therefore not be part of the condition of suspension.

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

1. 
   the
   convictions of accused no. 1 and 5 are corrected to read that they
   are convicted of contravening s 29(5) read with s 29(1) of Act 7 of
   1993;

   
   

2. 
   the sentences of accused nos.
   1 and 5 are substituted with the following sentence in respect of
   each accused:

   
   

“Six (6) months imprisonment
wholly suspended for five (5) years on condition the accused is not
convicted of a contravention of s 29(5) of the Immigration Control
Act, 7 of 1993, (Remaining in Namibia after expiration of a visitor’s
entry permit), committed within the period of suspension.”

3. 
   the
   convictions and sentences of accused nos. 2, 3, 4, 6 and 7 are set
   aside.

   
   

_____________________

VAN NIEKERK, J

__________________­­

MULLER, J