CASE NO. CR 47/2011

IN THE HIGH
COURT OF NAMIBIA

In the matter between:

THE STATE

versus

WILLEM
NEHEMIA KANDONGA
…................................................ACCUSED

HIGH COURT REVIEW CASE NO.
695/2011

CORAM: MULLER, J et
SWANEPOEL, J

Delivered on: 27 May 2011

___________________________________________________________________________

REVIEW JUDGMENT

SWANEPOEL, J.:
[1] The accused was convicted of contravening section 82(5)(a) and
section 82(1)(b) of the Road Traffic and Transportation Act, Act 22
of 1999 – driving a motor vehicle on a public road whilst the
concentration of alcohol in a specimen of breath taken from him
exceeded 0.037 grams per 1000ml and sentenced to a fine of N$4000.00
or 8 months imprisonment. (The charge sheet incorrectly alleged a
contravention of section 82(2)(b) of Act 22/1999).

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

“What is the effect of
the fact that there was no evidence that the breathelyser test on the
accused was taken within 2 hours of the driving of the vehicle by the
accused?”

The learned magistrate
confirmed that there was no such evidence produced (and/or admitted
by the accused during the questioning in terms of section 112(1)(b)
of Act 51/1977) and concluded in his reply that the proceedings “were
indeed not in accordance with justice” and requested that
the proceedings be set aside.

[3] I am in agreement with the
above request and in the circumstances the conviction and sentence
are hereby set aside. The accused is entitled to a refund of
N$4000.00 if he had paid the fine.

Compare: S v Jansen
2006(1) NR 337 at 341 D-F.

__________________

SWANEPOEL, J

I
agree

__________________

MULLER,
J