CASE NO.: CR 10/09

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

SIMBARACHE CHIRIGWATI

(HIGH COURT REVIEW NO: 2017/08)

CORAM:
LIEBENBERG, AJ et
SHIVUTE, AJ

Delivered on: 01 April 2009

REVIEW JUDMENT

LIEBENBERG, AJ.: [1]
The accused appeared before the
Ohangwena magistrate’s court and was convicted of contravening
section 30 (1) (iv) (2) (B) (C) of the Immigration Control Act, Act 7
of 1993. Subsequent thereto he was sentenced to N$ 3000 or 30 months
imprisonment.

[2] When the matter came before the
Reviewing Judge a query was directed to the magistrate in the
following terms:

“On
what basis was the accused convicted of contravening section 30 (1)
(iv) (2) (B) (C) of the Immigration Control Act, Act 7 of 1993?

1. 
   I
   could not find such provisions in the aforesaid Act. If
   contravention of section 30 (1) (iv) and 2 (b) of the said act was
   intended to (sic) would appear that –

   
   

1. 
   such
   a person, in casu the accused, must have been the holder of a
   permit issued under the said act in which he was prohibited by
   reasons of any purpose for which such permit was issued or any
   condition stated in such permit from conducting a business…..

   
   

2. 
   he
   could not have contravened section 30 (1) of the act if he had not
   been the holder of a permit.

   
   

2. 
   No
   where in the charge sheet is it in any event alleged that the
   accused was (illegal) an immigrant”.

   
   

[3]
The magistrate’s reply was brief, conceding that the accused was
wrongly charged and requested the conviction and sentence to be set
aside.

[4]
This case is identical to many others sent on review from the same
court where the accused persons were wrongly charged under the
Immigration Control Act, Act 7 of 1993 and which resulted in the
convictions and sentences being set aside on review.

[5]
The provisions of section 30 of the Immigration Control Act, 1993
was discussed by this Court in The
State vs. Cloud Shoniwa
Case No. CR 02/2009 (unreported) delivered on
11 March 2009 and need not be repeated except for confirming that
section 30 prohibits the conduct of a person other than the accused,
who acts contrary to the provisions and conditions of a permit issued
to the accused. In other words, under section 30 it is not the
conduct of the accused that is punishable, but that of another person
who does business with him or enters into a business agreement with
him thereby offending the provisions or the conditions of a permit
issued to the accused under the Immigration Control Act.

See also S
v Nico Gotosa and 2 others Case
No. CR 99/008 delivered on 22 August 2008.

[6] The accused in the present case
was wrongly charged and the conviction and sentence cannot be allowed
to stand.

[7] In the result:

1. 
   The conviction and sentence of the
   accused are set aside

   
   

2. 
   The Registrar is directed to
   forthwith issue a warrant of Liberation from prison for the accused
   in respect of this conviction and sentence.

   
   

_____________________

LIEBENBERG, AJ

I Concur

_____________________

SHIVUTE, AJ