CASE
NO.: CR 47/2010

IN
THE HIGH COURT OF NAMIBIA

In the matter
between:

THE STATE

versus

BENNY NEKONGO
AND BERENDT OWOSEB

[HIGH
COURT REVIEW CASE NO.: 662/2010]

CORAM:
NDAUENDAPO,
J et
SIBOLEKA,
J

Delivered on:
2010 AUGUST 24

REVIEW
JUDGMENT SIBOLEKA, J.:

[1] The two 18
year old accused persons appeared in the District

Magistrate
Court at Mariental on the following charges:

Count 1: In that
upon or about the 30^th
day of May 2009 and at or near Aimablaagte in the district of
Mariental the accused did

unlawfully and
with the intention of inducing submission by force use violence or
threats of violence against Jacobus Frey by stabbing him with a knife
and did unlawfully and with intent to steal, take certain goods, to
wit cash of N$ 150,00 socks (one pair) handkerchief valued (N$20,00)
the property or in the lawful possession of the said Jacobus Frey.

Count 2: Attempted
Murder

In that upon or
about the 30^th
day of May 2009 and at or near Mariental in the district of Mariental
the accused did unlawfully and intentionally attempt to kill Jacobus
Frey by repeatedly stabbing him with a knife in his chest and in his
back.

[2] They pleaded
not guilty and at the close of the State's case accused no. 1 was
discharged in terms of section 174 of Act 51/77. Accused no. 2 was
convicted on both counts. This Court finds the conviction to be in
accordance with justice and will not be tempered with.

[3] Accused
no. 2 was sentenced as follows: "Sentence:

The Court
sentences you to three (3) years imprisonment, of which one (1) year
is suspended for five (5) years on condition that you are not
convicted of robbery, committed during the period of suspension. This
is for count one only."

"Sentence for
count 2 will be suspended, pending review."

[4] In my view,
this Court has inherent jurisdiction to review a conviction that is
not followed by a sentence.

In Rex
v Ngcongo 1943
NPD 158, at 159, Selke, J quoted with approval a passage from
Johannesburg Consolidated Investment Co. v Johannesburg Town Council
1903 T.S., III, at p.l
17, wherein Innes C.J., said the following about the wideness of the
Court's powers of review:

"So employed
the expression 'review' seems to mean 'examine' or 'take into
consideration'. And when the Court of law is charged with a duty of
examining or considering a matter already dealt with, by an inferior
court and no restrictions are placed upon its so doing, it would
appear to me that the powers intended to be conferred upon it are
unlimited. In other words it may enter upon and decide the matter de
novo.
It possesses not only the powers of a Court of review in the legal
sense, but it has the functions of a Court of appeal with the
additional privileges of being able, after setting aside the decision
arrived at by the lower tribunal, to deal with the whole matter upon
fresh evidence as a Court of first instance."

The Court went
further and stated that:

"Now if these
be the powers possessed by this Court ... then it seems to me that
they are ample to permit of the Court now correcting or setting aside
the proceeding before the Magistrates Court although no sentence has
been passed upon the accused by that Court."

In a covering
letter explaining the reason for not sentencing the accused on the
second count as well, the Magistrate stated:

"Review case
no: 23/ 10 The
State u Benny Nekongo and 1 other The
Magistrate realized only during sentencing that the accused got
convicted on duplicated charges: I am of an opinion that the
conviction for count one will stand, and count two will be a
duplication. The accused is therefore sentenced for count one only
and sentencing for count two is suspended pending the outcome of the
Review (Sec 304A of the CPA) of this case."

The facts of this
matter are briefly as follows: The incident took place at Takarania
location in Mariental. On the day in question the complainant was on
his way home from Ry en Kryshop at night. With the help of some light
shining from the other side, he noticed accused no. 2 and another
unknown person coming running towards him from behind. He was tackled
and his legs were kicked underneath out as a result of which he fell
down. While lying on the ground his socks and forty four dollars was
taken away from him. During the encounter the complainant was kicked
in the stomach, stabbed with a knife on the head, eye, mouth, twice
on the chest, on the right and back of the neck, legs, and also twice
on the buttocks.

In S v
Grobler and Another 1966(1)
SA 507(A), two robbers went to rob a cafe. The one armed with a
pistol entered the premises where he shot and killed the owner of the
cafe and wounded his son on the thigh and the back of the head. This
robber then took the money from the cash box and jumped into a get
away car driven by his co-robber and they drove away. They were
charged and convicted on murder and robbery. The one who shot and
killed the owner of the cafe was sentenced to death on both counts
while the driver of the get away car received ten years for robbery
and life imprisonment for murder.

[5] On the
question whether there has been an improper splitting of charges, the
Court found that the robbers had not been convicted or sentenced
twice for the same offence.

[6] It is my
considered view that it would have been appropriate for the
Magistrate to sentence the accused on all counts he has been
convicted and then send the matter for review.

[7] In the Courts'
view it is a misdirection for the Court below to state that 'sentence
on count no. 2, will be suspended pending review' because that
sentence is also subject to review. The accused ought to have been
sentenced on all counts on which he has been convicted before the
matter is sent for review.

[8]

In
the result the Court makes the following order:

1. 
   The conviction of
   accused no. 2 on both counts is confirmed.

   
   

2. 
   The matter is
   remitted to the Magistrate for completion, that is, to sentence the
   accused on the second count as well.

   
   

SIBOLEKA,
J

I agree

NDAUENDAPO,
J