CASE NO.: CR 4/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE
STATE

and

JULIUS
MBELE

(HIGH COURT REVIEW CASE NO.:
1985/2010)
CORAM:
HOFF, J et
MULLER, J

Delivered on: 1
February 2011

REVIEW JUDGMENT

MULLER, J.:
[1] The accused was charged on two
offences of which only the second charge is relevant to this review.
He was discharged at the end of the States case in terms of S 174 of
the Criminal Procedure Act, no. 51 of 1977 (CPA) in respect of the
first charge.

[2] The second charge of which he was convicted as
charged, is one of contravening S 29(1)(a) of the Immigration and
Control Act, no. 7 of 1993(the Act). This subsection provides as
follows:

"An immigration officer may, on the application
of any person who has complied with all the relevant requirements of
this Act, issue to such person a visitor's entry permit.

(a) To enter Namibia or any particular part of
Namibia and to sojourn temporarily therein."

[3] I addressed the following query to the Magistrate:

"The accused was charged
and convicted for contravening S 29(1)(a) of the Immigration and
Control Act, no. 7 of 1993. That Act only applies to a person who is
not a Namibian citizen and such categories as set out in S 2(1) of
the Act. It is consequently necessary for the State to prove or for
the accused to admit that he is not a person described in S 2(1) of
the Act. No such proof were provided and the accused did not admit
that he is not a person described in S 2(1) of the Act when
questioned in terms of S 112(1)(b) of Act 51 of 1977, yet he was
convicted."

[4] In reply to my query the
Magistrate responded as follows:

"I concede I erred by
convicting accused without establishing whether or not accused is
lawfully in Namibia as envisaged by Section 2(1) of Act of 1993. This
is an oversight on my part and is sincerely regretted. It follows
therefore that the conviction in terms of S 112(1)(b) of Act 51 of
1977 is not proper. May the proper remedial measures be taken in the
instant case."

[5] It is evident that the Act
pertains to non-Namibians or persons not lawfully in Namibia. In fact
S 2(1) of the Act excludes Namibian citizens in particular, as well
as other categories of persons lawfully in Namibia. It follows that
only non-Namibians, or other persons not lawfully in Namibia or other
persons not lawfully in Namibia, can contravene Section 29(1)(a) of
the Act. Therefore, in order to convict a person charged with
contravening that section, it must either be proved or admitted by
the accused that he is not a Namibian citizen or not lawfully in
Namibia.

[6] In this matter the
Magistrate questioned the accused in terms of S 112(1)(b) of the CPA
after he pleaded guilty. The Magistrate could only convict him if he
admitted all the elements of the charge. It is inherent in a charge
in terms of a contravention of S 29(1)(a) of the Act that the accused
was a foreigner and not a Namibian citizen or falling within the
other categories listed in S 2(1) of the Act. Without an admission in
that regard he could not have been convicted. That pertinent question
was simply not asked.

[7] The Magistrate correctly
conceded that he made a mistake in this regard and in the
circumstances the conviction cannot stand.

[8] The correct procedure ought
to be to set the conviction and sentence aside to refer that the
matter back to the Magistrate to obtain the required admission or to
refer the matter to trial in terms of S 113 of the CPA. That is,
however, not so easy with this type of matter and in particular
because I am not aware whether the accused paid the fine and perhaps
left the country or whether he served his sentence in gaol. If the
latter is true, he may already be out of prison.

[9] In all the circumstances,
which I have duly considered, the only plausible solution is that
this court has to set the conviction and sentence aside. If the
accused did pay the fine of N$1 000, he is entitled to have it
refunded (if he can be found). If he did not pay the fine and served
the prison sentence, the former is irrelevant and he should be
released immediately, if he is still in prison.

[10] In the result the following
order is made:

1. 
   The conviction and sentence of
   the accused is set aside.

   
   

2. 
   If the accused paid the fine
   imposed, it should be refunded to him.

   
   

MULLER, J

I agree

HOFF, J