CASE NO.: CR 01/2009

IN THE HIGH COURT OF NAMIBIA
HELD

IN OSHAKATI

In the matter between:

THE STATE

and

NANGOLO NDILIMONDJILA

(HIGH COURT REVIEW CASE NO.:
19/2009)

CORAM: LIEBENBERG,
AJ et SHIVUTE,
AJ

Delivered on:

REVIEW JUDGMENT

LIEBENBERG, AJ [1] The
Accused in this matter pleaded guilty in the magistrate’s court,
Ondangwa and was subsequently convicted of the following offences:
Count 1- culpable homicide;

Count 2 – contravening
section 78 (1) (b) Act 22 of 1999 (Failing to ascertain the nature
and extent of any injuries sustained);

Count 3- Contravening sec 78
(1) (c) Act 22 of 1999 (Failing to render assistance to an injured
person);

Count 4- Contravening sec 78
(1) (d) Act 22 of 1999 (Failing to ascertain damages sustained).

[2] The convictions are in
order and will be confirmed.

[3] The sentence imposed on
count 1 will also be confirmed. Regarding counts 2-4, these were
taken together for purpose of sentence and the sentence is framed as
follows:

“Accused is sentenced to
N$ 4000.00 (four thousand dollars) or in default of payment 12
(twelve) months of which N$ 2000.00 (two thousand dollars) or in
default of payment 6 (six) months imprisonment is wholly suspended
for 5 years on condition accused is not convicted of contravening sec
s. 78 (1) (b); sec s. (1) (c) and / or sec 78 (d) committed within
period of suspension.”

[4] The use of the word
“wholly” in the sentence is unfortunate and may be interpreted to
mean that the sentence is suspended /in
toto/
while that is not what was intended. The magistrate imposed a fine
and in default of payment, imprisonment of which half was suspended.
In such instance the use of the word “wholly” should rather be
avoided and only be used where a totally suspended sentence is
intended.

[5] Whereas counts 2-4 were
taken together for sentence, the magistrate in his formulation of the
conditions of suspension, tried to cover each of the three crimes for
which the accused stand convicted, but only referred to the sections
applicable, omitting to state to which act it applied i.e. Act 22 of
1999. Furthermore, the use of the words “and/or” as a condition
of suspension in a sentence should rather be avoided as it creates
ambiguity whether the accused is at risk of having the suspended
portion of the sentence put into operation upon conviction for having
contravened only one of the sections or is it required that he must
be convicted of both before that can happen? A second conviction of
any one of the sections stipulated in the sentence should suffice to
have the suspended portion of the sentence be put into operation.

[6] Thus the sentence imposed
on counts 2-4 is improper and needs to be amended.

[7] In the result the
following order is made:

1. 
   The convictions of counts1-4
   are confirmed

   
   

2. 
   The sentence imposed on count
   1 is confirmed

   
   

3. 
   The sentence imposed in
   respect of counts 2-4 is set aside and substituted with the
   following:

   
   

Count 2-4 (taken together for
sentence):

“Accused is sentenced to
N$4000.00 (four thousand dollars) or in default of payment 12
(twelve) months imprisonment of which N$2000.00 (two thousand
dollars) or in default of payment 6 (six) months imprisonment is
suspended for 5 years on condition that the accused is not convicted
of contravening sec. 78(1) (b) or sec. 78 (1) (b) or sec. 78 (1) ( c)
of Act 22 of 1999, committed during the period of suspension”.

______________________

LIEBENBERG, AJ

I concur

_______________________

SHIVUTE, AJ