CASE NO. CR 38/2011

IN THE HIGH
COURT OF NAMIBIA

In the matter between:

THE STATE

versus

JEREMIA
SHINDUME
…...............................................................ACCUSED

HIGH COURT REVIEW CASE NO.
523/2011

CORAM: MULLER, J et
SWANEPOEL, J

Delivered on: 20 April 2011

___________________________________________________________________________

REVIEW JUDGMENT

SWANEPOEL, J.:
[1] The accused was arraigned in the Magistrate’s Court for the
district of Ondangwa on the following charges (unedited):

“1. Count 1

That the accused is guilty of
the crime of Assault:

In that upon or about the 15
day of November 2010 and at or near Onankulo Uukwiyu Uushona
in the district of Ondangwa the said accused did wrongfully
and unlawfully assault Ruusa

Ndilimeke by kicking her
on her legs thereby causes her some wounds, injuries or hurt, pains.

2. Count 2 Assault (Threat)

That the accused is guilty of
the crime of Assault: (Threat)

In that upon or about the 15
day of November 2010 and at or near Onankulo Uukwiyu Uushona
in the district of Ondangwa the said accused did wrongfully
and unlawfully assault Ruusa Ndilimeke by threatening then
and there to kill her thereby causes the said Ruusa Ndilimeke
to believe that the said accused intended and had the means forthwith
to carry out his threat.”

[2] On count 1 the accused was
sentenced to payment of the amount of N$500.00 or in default, five
(5) months imprisonment. On count 2 a direct term of imprisonment of
twelve (12) months was imposed.

[3] I directed the following
query to the learned magistrate:

“The learned
magistrate’s reasons for imposing direct imprisonment without
an option of a fine on count 2 particularly after having imposed a
fine with an alternative term of imprisonment for actual assault on
count 1, are awaited per return of mail.”

[4] The learned magistrate
replied as follows:

“The complainant in
the case of Assault (Threat) is not related to the accused, and
during the
prosecutor’s submission it was stated that the complainant was
almost raped by the said accused,
and as such did the court feel that an option of a fine would not be
appropriate, but rather direct imprisonment; and as such I imposed a
custodial sentence in respect of count 2.
(emphasis supplied).

In respect of the 1^st
count the court imposed an option of a fine, because the injuries
are not backed-up with J88, and I was left with the impression that
the injuries incurred would warrant for a fine as sentenced”

[5] Upon receipt of the
aforesaid reasons I directed that the accused be released forthwith
on count 2 and these are the reasons therefore.

[6] The learned magistrate has
in my view clearly misdirected himself when he took the submission by
the public prosecutor before sentence into consideration that the
complainant was almost raped by the said accused. The accused was not
charged with attempted rape nor was he in any event afforded the
opportunity to address the court on this fact (which was not
evidence) before sentence.

[7] In the result the sentence
of twelve (12) months imprisonment cannot stand and it is substituted
with the following.

Six (6) months imprisonment
wholly suspended for a period of three (3) years on condition that
the accused is not convicted of assault during the period of
suspension.

__________________

SWANEPOEL, J

I
agree

__________________

MULLER,
J