VAN NIEKERK, J:

[1] The two accused pleaded guilty to a charge that they contravened section 70(g) of the Liquor Act, 1998 (Act 6 of 1998). They were questioned in terms of section 112(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977), and then convicted. The sentence imposed is a fine of N$1000.00 or 6 months imprisonment wholly suspended for 5 years on condition of good behaviour.

[2] The provisions of section 70(g) read as follows:

“A licensee or manager, or any person employed by or acting for or on behalf of a licensee or of a manager, who allows liquor to be consumed on the licensed premises at a time or on a day when, or at a place where, the consumption of such liquor is prohibited by this Act or not authorized in terms of the conditions of the licence in respect of such premises, shall be guilty of an offence.”

[3] The annexure to the charge sheet to which the accused pleaded reads as follows:

“ALLOWING LIQUOR TO BE CONSUMED ON THE LICENCED PREMISES AT A TIME OR IN DAY OR AT A PLACE WHERE THE CONSUMPTION OF SUCH LIQUOR IS NOT AUTHORISED BY THE ACT OR THE CONDITIONS OF THE LIQUOR LICENCE.

That the accused is/are guilty of contravening Section 70 (g) read with Sections 1, 72(1)(a)(b) and 73 of Act 6 of 1998.

In that upon or about the 18 day of August 2008 and at or near Oshamale Bar in the district of Oshakati the accused being a licencee or of a manager or any person employed in licenced premises did wrongfully and unlawfully allow liquor to wit beers to be consumed on a licenced premises, operating under Oshamale Bar issued by the Regional Liquor Licensing Committee on 17 March ’08 with conditions, privileges and restrictions applicable in respect of the licence to wit Monday to Saturday 10h00 – 2h00 Sundays 10h00 – 24hrs at 3hrs30 contrary to the conditions of the said licence.”

[4] Although the charge contains certain defects, to which I shall return, the gist of it is clear – the accused are alleged to have allowed persons to consume liquor on licensed premises at a time not authorized in terms of the licence.

[5] During the section 112(1)(b) questioning the trial magistrate did not ask questions to cover all the elements of the offence. Most importantly, he asked no questions relating to the allowing of liquor to be consumed on the premises. Instead, he asked the accused whether they sold liquor at the time not authorized by the licence, which is an offence created by section 70(f) of the Liquor Act and with which the accused were not charged. The accused admitted selling the liquor and not that they allowed its consumption. The prosecutor also did not alert the magistrate to the mistake he made. As a result, the accused were wrongly convicted, because the magistrate did not comply with section 112(1)(b) by failing to “question the accused with reference to the alleged facts of the case in order to ascertain whether ……[they admit] the allegations in the charge to which ……[they have] pleaded guilty.”

[6] The defects in the charge are partly the result of poor drafting and the fact that the prosecutor did not take the obvious route of following the wording of the Liquor Act as closely as possible. Consequently an important element of the offence in not properly alleged. While the section provides that the offence is established if the prohibited conduct is committed by a licensee or manager, “or any person employed by or acting for or on behalf of a licensee or of a manager”, the charge sheet alleges that the offence was committed by “a licensee or of a manager or any person employed in licensed premises”. Clearly the word “of” does not make sense where it is placed and must be deleted. What is more crucial however, is that the words “in licensed premises” do not form part of the words in the section and, by including them in the charge, a very different meaning to the words contained in section 70(g) is conveyed. A person may be employed in licensed premises, but not necessarily by the licensee or manager as section 70(g) requires. It is clear that the words “any person employed by or acting for or on behalf of a licensee or a manager” constitute an essential element of the offence contained in section 70(g) in circumstances where the offence is not committed by the licensee or manager. As such this element should be alleged in the charge where the intention is not to confine the charge to the licensee or manager, as it would appear was the case in this matter.

[7] The charge further alleges the licensed premises were “operating under Oshamale Bar issued by Regional Liquor Licensing Committee on 17 March 2002.” This does not make sense. Clearly the charge should have alleged that the premises operated under a licence issued by the said Committee. The rest of the charge is also not set out properly. One has to rely on inference that the intention was to allege that the conditions of the licence are such that liquor may not be allowed to be consumed on the premises at a time which falls outside the periods 10h00-2h00 on Mondays to Saturdays and 10h00-24h00 on Sundays.

[8] In my view the charge sheet should have been drawn along the following lines:

“In that on or about the 18th day of August 2008 and at or near ………(town/village) in the district of Oshakati the accused, being a licensee or manager of licensed premises, or a person employed by or acting for or on behalf of the licensee or manager of licensed premises, to wit Oshamafa Bar, operating under licence no. …………issued by the Regional Liquor Licensing Committee on 17 March 2008, did wrongfully and unlawfully allow liquor to wit, beer, to be consumed on the said premises at a time to wit, 3h00, being a time not authorized in terms of the conditions of the licence in respect of such premises, which conditions provide that liquor may not allowed to be consumed at a time falling outside the following periods, to wit, 10h00-2h00 on Mondays to Saturdays and 10h00-24h00 on Sundays.”

[9] Section 86(1) of the Criminal Procedure Act provides that a court may in certain circumstances before judgment order that the charge be amended. As I intend setting aside the conviction and sentence and remitting the matter to the trial court, I shall invoke the provisions of section 86(1), read with section 304(2)(c)(v) of the Criminal Procedure Act, which provides that this Court may remit the matter to the magistrate’s court with instructions to deal with any matter in such manner as this Court may think fit.

[10] The result is as follows:

1. The conviction and sentence in respect of each accused are set aside.

2. The matter is remitted to the magistrate’s court with the instruction that the charge sheet should be amended to read as set out in paragraph [8] of this judgment, where after the provisions of section 112(1)(b) should be complied with.

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VAN NIEKERK, J

I agree.

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MULLER, J