REPUBLIC
OF NAMIBIA

CASE
NO.: CR 72/2010

IN
THE HIGH COURT OF NAMIBIA

In
the matter between: STATE

versus

MASIRBA
ISRAEL GOCHERA CHRISTOPHER KUFARUWENGA

(HIGH
COURT REVIEW CASE NO.: 12/08)

CORAM: VAN
NIEKERK, J et
MULLER,
J

Delivered
on: 29 October 2010

REVIEW
JUDGMENT

VAN
NIEKERK, J
[1]
Both accused in this matter were convicted on a count of contravening
section 30(1) of the Immigration Act, 7 of 1993. Accused no 2 was
also convicted and sentenced on a second count of contravening
section 29(5) of Act 7 of 1993. On review I directed the following
query to the trial magistrate:

"1. Does
section 30 of Act 7 of 1993 create the offence contended for by the
charge as framed in count 1? Should the accused not have been charged
with a contravention of section 29(5) of Act 7 of 1993 instead?

2. If the answer
to the second question posed in paragraph 1 is "Yes" should
all the allegations against accused no 2 not have been contained in a
single charge of contravening section 29(5) of Act 7 of 1993? In
other words, was there not, in effect a multiplication of convictions
in respect of accused no. 2?"

With
respect to the first question the magistrate concedes in her reasons
that the accused should have been charged with section 29(5) of Act 7
of 1993, as section 30 of the Act does not create the offence
contended for by the charge as drawn in count 1. In respect of the
second question she also agrees that all the allegations against
accused no 2 should have been contained in a single charge of
contravening section 29(5) of Act 7 of 1993.

[2]
This case is on all fours with the case of the State
versus Nico Gotosa and Two Others (Case
No CR 99/08 - unreported judgment of this Court delivered on 22
August 2008). A copy of that judgment is attached hereto for the
magistrate's convenience. It will serve no purpose to repeat what was
stated in that judgment. By way of explanation I merely wish to state
that section 30 of Act 7 of 1993 criminalizes the conduct of persons
who engage in certain activities with the holders of permits issued
under the Act, e.g. a visitors permit permitting a foreigner to, say,
enter Namibia and to remain here for a certain number of days on
holiday. Section 30 does not criminalize the conduct of the permit
holder if he/she does not act in accordance with the permit's
conditions. In this case the accused, who held visitor's permits,
were alleged to have conducted business while they were on holiday.
This does not constitute a contravention of section 30 of the Act
(see the Gotosa
judgment
at paras [9] and [10]).

[3]
Applying the reasoning as set out in paras [12] - [14] of the Gotosa
judgment,
it seems to me that the conviction on count 1 in respect of accused
no 1 may be substituted with a conviction on a contravention of
section 29(5), read with section 29(6) of the Act. However, if this
should be done with respect to accused no 2, there would be a
multiplication of convictions for the same offence of contravening
section 29(5) read with section 29(6) in different ways, namely (i)
by staying in Namibia for longer than the visitor's permit allows;
and (ii) by conducting himself in a way not allowed by the permit,
namely by conducting a business. The allegations in (i) and (ii)
should be combined in a single charge.

[4]
In the premises the following order is made:

[1] In
respect of accused no 1, the conviction on count 1 of a contravention
of section 30 of Act 7 of 1993 is substituted with a conviction of a
contravention of section 29(5), read with section 29(6), of Act 7 of
1993.

[2]
The sentence of accused no 1 on count 1 is confirmed.

3. 
   In
   respect of accused no 2 the conviction and sentence on count 1 are
   set aside.

   
   

4. In
   respect of accused no 2 the conviction and sentence on count 2 are
   confirmed.

   
   

VAN
NIEKERK, J

I
concur.

MULLER,
J