Court name
High Court
Case number
CRIMINAL 51 of 2010
Title

S v Gamgaeseb (CRIMINAL 51 of 2010) [2010] NAHC 99 (24 September 2010);

Media neutral citation
[2010] NAHC 99















CASE
NO.: CR 51/2010






IN THE HIGH
COURT OF NAMIBIA


In
the matter between:



THE STATE
versus


GIVEN
GAMGAESEB



[HIGH COURT
REVIEW CASE NO.: 916/2010]


CORAM:
NDAUENDAPO,
J
et
SIBOLEKA,
J



Delivered on:
2010 SEPTEMBER 24



REVIEW
JUDGMENT



SIBOLEKA,
J.:






[1] A 21 year old
accused was convicted in the District Magistrate Court at Otavi for
hunting a kudu valued at N$600,00 without a permit or authorization
and was sentenced to: N$ 1200,00 or 6 months imprisonment.



[2] When the
matter came before my brother Hinda, AJ, the following query was
directed to the Magistrate:



"The
Reviewing Judge remarks as follows:



The learned
magistrate is requested to give his reasons for sentencing the
accused to a fine of N$1200 in default of payment 6 months
imprisonment.



Taking into
consideration the Nature Conservation Ordinance 4 of 1975 "Section
87 General penalty



Any person who is
convicted of an offence in terms of this Ordinance
for
which no penalty is expressly provided shall be liable on conviction
-
(My emphasis)




  1. To a fine not
    exceeding two hundred and fifty rand or to imprisonment for a period
    not exceeding three months or to both such fine and such
    imprisonment if such person has not previously been convicted of
    such offence or, in the opinion of the court, a similar offence in
    terms of the provisions of a repealed ordinance or the law of any
    province of the Republic of South Africa;



  2. To a fine
    exceeding fine hundred rand or to imprisonment for a period not
    exceeding six months or to both such fine and such imprisonment. If
    such person has previously been convicted of an offence referred to
    in paragraph (a)."










[3] The
Magistrate's reply has been received and it reads:



Re: Reply by
Magistrate on query by reviewing Judge in S v Given Gamgaeseb 07/2010



Primarily would I
like to indicate that the reason for sentence in the abovementioned
case is outlined in the original and typed record (see page 2 of the
typed record). However, in amplification of the said reasons did I
also took into cognizance the fact that the value of the said kudu
being hunted and killed by the accused was N$600,00. Furthermore was
the accused also employed at the very same farm where he killed the
said kudu.



Secondly, the
honourable reviewing judge made reference to the penalty provision
under section 87 of The Nature Conservation Ordinance 4 of 1975.
However, I would like to point out that I took into account the fact
that this is a hunting of huntable game without the permission of the
lawful owner of the farm (Section 30(1) of the Ordinance) for which
the accused was convicted of. I as such relied upon the
express
penalty provision under section 30 (l)(c) Ordinance 4/1975 as amended
by section 11(c) Nature Conservation Amendment Act 27/ 1986
.







Section 11 (c)
reads as follows:
"any
person who contravenes or fails to comply with any provision of this
subsection or any condition, requirement or restriction of any
written authority granted in terms of this subsection, shall be
guilty of an offence and liable on conviction to
[not
less than five hundred rand and]
nor
exceeding
[seven
hundred and fifty rand]
R2000
or to imprisonment for a period
[not
less than five hundred rand and]
two
uears,

or to both such fine and such imprisonment".







As such am I as
the concerned magistrate of the view that the said sentence of N$
1200,00 in default of payment 6 months imprisonment fall within the
boundaries of the express penalty provision applicable to the offence
for which the accused had been convicted of.







However, if the
honourable reviewing judge views the said sentence as incorrect and
inappropriate in view of the circumstances would I as the concerned
Magistrate, with all respect stand to be guided and advised
accordingly in this regard."






[4] After
carefully looking at the Magistrate's reply, this Court is of the
view that the imposed sentence is in accordance with justice as it
falls within the ambit of section 11(c) of the Nature Conservation
Amendment Act, Act no. 27 of 1986.







[5] In the
result:







(a) The conviction
and sentence are confirmed.







SIBOLEKA,
J







I agree







NDAUENDAPO,
J