CASE
NO.: CR 24/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

SIMON
MBOTI

(HIGH
COURT REVIEW CASE NO.: 23/2009 OSHAKATI)

(MAGISTRATE’S
SERIAL NO.: 428/2009)

CORAM: PARKER,
J et SHIVUTE, J

Delivered on: 2011
September 22

REVIEW
JUDGMENT

SHIVUTE,
J: [1] The
accused person appeared in Eenhana Magistrate’s Court. He was
convicted on a charge of possession of cannabis contravening section
2 (b) of Act 41 of 1977. The cannabis was weighing 0,002g valued at
N$6.00.

[2] The accused
was sentenced to a fine of N$2000.00 or 18 months imprisonment.

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

1. “The accused was
convicted of contravening section 2 (b) of Act 41 of 1971 (possession
of cannabis), weighing 0,002 valued at N$6.00. He was sentenced to
N$2000.00 or 18 (eighteen) months imprisonment.

2. How did the court satisfy
itself that the accused was in a position to pay a fine.

3. Considering the value of
the cannabis being N$6.00 and given the fact that the accused is a
first offender does the sentence not induce a sense of shock?”

[4] The learned
magistrate responded as follows:

“I gave an option of a
fine because the state or condition in which the accused was
indicated that he was able to pay a fine. I take cognisance that the
value of the cannabis is very low, yet the sentence appears to be
harsh. I agree with the honourable that I was harsh on the accused
person this was so because of the prevalence of the offence within
the district.

I therefore submit that the
sentence of N$2000.00 or 18 months imprisonment be set aside and
substituted with the appropriate one.”

[5] Although the
learned magistrate stated that he gave an option of a fine because of
the condition or state in which the accused was indicated that he was
able to pay a fine, there is nothing on record to that effect. The
accused never indicated that he was able to pay a fine. The accused
in mitigation of sentence asked for a suspended sentence as he was
allegedly suffering from Asthma. The magistrate never established
whether the accused was employed or how he earns his living. He was
also never asked whether he was able to pay a fine. Therefore the
court never satisfied itself that the accused was able to pay a fine.

[6] As for the
sentence I found it to be shockingly inappropriate and it cannot be
allowed to stand.

[7] In the result,
the following order is made:

(1) The conviction
is confirmed.

(2) The sentence
of N$2000.00 fine or 18 months imprisonment is set aside and
substituted by the sentence of 6 months imprisonment suspended in
toto for 5 years on condition that the accused is not convicted
of possession of prohibited dependence–producing drugs
contravening section 2 (b) or dealing in dependence-producing
substance, contravening section 1 (a) of Act 41 of 1971 committed
during the period of suspension.

(3) It is ordered
that the sentence is back dated to the date when the accused was
sentenced by the magistrate.

__________________

SHIVUTE, J

I
agree

___________________

PARKER,
J