CASE
NO.: CR 79, 80, 81, 82/2010

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE versus MUTINDA BRIAN

[HIGH
COURT REVIEW CASE NO.: 769/2010] - [CR 79/2010]

THE
STATE versus MANDUKU GERALD

[HIGH
COURT REVIEW CASE NO.: 739/2010] - [CR 80/2010]

THE
STATE versus CHIPODZE TOM

[HIGH
COURT REVIEW CASE NO.: 1000/2010] - [CR 81/2010]

THE
STATE versus DAVID NDATANUFA & 1 OTHER

[HIGH
COURT REVIEW CASE NO.: 737/2010] - [CR 82/2010] CORAM:
PARKER,
J et
SIBOLEKA,
J

Delivered
on: 2010 OCTOBER 26

REVIEW
JUDGMENTS SIBOLEKA, J.:

[1]
The above accused persons in the four cases were charged in
contravention of sections 12(1) and 12(4) of the Immigration Control
Act, Act no. 7 of 1993.

Section
12(1) reads:

"12 Passports
and Visas

1. Any person
seeking to enter Namibia who
fails on demand by an immigration officer to produce to such an
immigration officer an unexpired passport which bears a valid visa or
an endorsement by a person authorized thereto by the Government of
Namibia to the effect that authority to proceed to Namibia for
purposes of being examined under this Act
has been granted by the Minister or an officer authorized
thereto
by the Minister or such person is accompanied by a document
containing a statement to that effect together with particulars of
such passport, shall be refused to enter and to be in Namibia unless
such a person is proved to be a Namibian citizen or a person
domiciled in Namibia, my own underlining.

2....

3...."

[2]
In the Mutinda Brian matter the accused was charged as follows:

"Entry into
Namibia without an unexpired passport bearing a valid visa or
authority. That the accused is/are guilty of contravening section
12(1) read with sections 1, 2 and 12(4) of the Immigration Control
Act, Act 7 of 1993. In that upon or about the 31^st
day of January 2010 at or near Windhoek in the district of Windhoek
the accused, not being a Namibian citizen or a person domiciled in
Namibia, failed to produce to an immigration officer an unexpired
passport;

(a) Bearing a
valid visa, or

(b) An endorsement
by a person authorized thereto by the Government of Namibia
indicating that the Minister or authorized officer granted authority
to such person to proceed to Namibia, or without a document
containing

(c) A statement to
the effect that the Minister or authorized officer granted authority
to such person to proceed to Namibia, and

(d) The
particulars of such passport.

After being
requested to do so and therefore did wrongfully and unlawfully
enter/remain in Namibia, without valid permit."

[3]
In this matter the allegation contained in section 12(1) of Act 7 of
1993 namely, that the accused failed, on demand by an Immigration
officer, to produce an unexpired passport bearing a valid visa or
endorsement is correctly reflected in the charge sheet. However, the
learned Magistrate did not ask the accused to explain whether it was
demanded of him by the Immigration officer to produce an unexpired
passport bearing a valid visa or endorsement. The answer that would
have been elicited by this question would have determined accurately
whether the accused was guilty or not. The failure to ask a question
on this important allegation of the charge sheet affects the
conviction of the accused. It is therefore my considered view that
the conviction of the accused on this matter cannot be allowed to
stand.

[4]
In the Manduku Gerald matter the accused was charged as follows:

"Remaining in
Namibia without a valid document

The accused is
guilty of Contravening Section 12(1) of Act 7 of

1993 (Immigration
Act).

In that upon or
about 31^st
January 2010 at or near Soweto in Katutura in the district of
Windhoek, the accused did wrongfully and unlawfully remaining in
Namibia without a valid document."

In
this matter the charge sheet is defective because it omitted the
integral part creating the offence contained in section 12(1) namely,
the failure by an accused on demand by an Immigration officer, to
produce an unexpired passport bearing a valid visa or endorsement. It
could be the reason why the learned Magistrate did not cover this
aspect in his questioning in terms of section 12(1)(b) of Act 51/77.

[5]
In the Chipodze Tom matter the accused was charged as follows:

"Remaining or
entry into Namibia without an unexpired passport bearing a valid visa
or authority. "

That
the accused is/are guilty of contravening section 12(1) read with

sections
1, 2 and 12(4) of the Immigration Control Act 7 of 1993.

In
that upon or about the 31^st
day of January 2010 at or near Windhoek in the district of Windhoek
the accuse, not being a Namibian citizen or a person domiciled in
Namibia, failed to produce to an immigration officer an unexpired
passport;

(a)
Bearing a valid visa, or

(b)
An endorsement by a person authorized thereto by the Government of
Namibia indicating that the Minister or authorized officer granted
authority to such person to proceed to Namibia, or without a document
containing

(a)
A statement to the effect that the Minister or authorized officer
granted authority to such person to proceed to Namibia, and

(b)
The particulars of such passport.

After
being requested to do so and therefore did wrongfully and unlawfully
enter/remain in Namibia."

[6]
In this matter, the charge sheet correctly reflects the integral
allegation that creates an offence in section 12(1) of Act 7 of 1993,
namely a failure by the accused on demand by an Immigration officer,
to produce an unexpired passport bearing a valid visa or endorsement.
However, the learned Magistrate did not ask the accused whether there
was a demand made to him by the Immigration officer to produce an
unexpired passport bearing a valid visa or endorsement. This failure
is fatal and it goes to the core of the conviction. In the light
thereof the conviction in this matter cannot be allowed to stand.

[7]
In the David Ndatanufa matter the two accused were charged as
follows:

"Charge:
Being in Namibia without a valid passport or permit. That the accused
is guilty of C/S 12(4) of the Immigration Control Act 7/1993.

In that upon or
about the 21^st
day of June 2009 at or near Noordoewer Border Post in the district of
Karasburg the said accused did wrongfully and intentionally remained
or being in Namibia without a valid passport or permit."

In
this matter the charge is defective because it does not allege that
the accused was refused entry into Namibia prior to his arrest for
being found in Namibia. Section 12(4) of Act 7/1993 reads:

"12(4) If any
such person enters or has entered Namibia in contravention of the
provisions of subsection (1) or after
having been refused to enter Namibia in terms of that subsection,
is found in Namibia he or she shall be guilty of an offence and on
conviction be liable to a fine not exceeding N$20.000,00 or to
imprisonment for a period not exceeding five years or to both such
five and such imprisonment, and may be dealt with under Part VI as a
prohibited immigrant," my
own underlining.

The
omission in the charge lead to the accused persons not being asked
whether they were refused entry in this country before their arrest.

[8]
If an accused is charged for contravening a statutory provision like
it is in these four cases, it is advisable that when formulating a
charge the actual wording of the provision creating the offence
should be used, and sections 12(1) and 12(4) are not an exception.
(See S v
Antonio Wellen Case
No. CR 138/2008, and S v
Levy Nkomo Case
No. CR

139/2008
both unreported).

[9]
In the result the convictions and sentences in all four cases are set
aside.

SIBOLEKA,
J

I
agree.

PARKER,
J