CASE NO.: CR 33/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

EDWIN JONKERS

(HIGH COURT REVIEW CASE NO.: 535/2009)

CORAM: VAN NIEKERK, J et SILUNGWE, AJ

Delivered on: 2009 April 17

REVIEW JUDGMENT

SILUNGWE, AJ [1] The accused appeared before the Rehoboth Magistrate’s Court charged with theft of one sheep (valued at N$450-00) in contravention of sections 11(i)(a), 1, 14 and 17 of the Stock Theft Act, Act 12 of 1990 as amended by Act 19 of 2004 (the Act). After pleading guilty to the charge, he was convicted accordingly and sentenced to two years’ imprisonment eighteen months of which were suspended on the usual conditions.

[2] The presiding Magistrate has now sent this matter for review on the basis that he inadvertently omitted to explain to the offender, prior to the imposition of the sentence, the provisions of section 14(2) of the Act, namely, whether substantial and compelling circumstances were present to justify the passing of a lesser sentence than the prescribed minimum sentence. The trial court has acted properly by sending this matter for review as the observance of section 14(2) of the Act is peremptory.

[3] Accordingly, the following order is made:

1. the conviction is confirmed.

2. the sentence is, however, set aside for the reasons already given, and the matter is remitted to the court a quo with a directive to comply with the provisions of section 14(2) of the Act and to sentence the offender a fresh.

3. the sentencer may exercise his discretion by suspending part of the sentence imposed.

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SILUNGWE, AJ

I agree.

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VAN NIEKERK, J