CASE
NO.: CR 04/2011

IN
THE HIGH COURT OF NAMIBIA

HELD
AT OSHAKATI

In
the matter between:

THE
STATE

and

NDESHIPANDA
ALUVILU TJAMBIRU

(HIGH
COURT REVIEW CASE NO.: 388/2010) CORAM:
LIEBENBERG,
J. el
TOMMASI,
J.

Delivered
on: 15.02.2011

REVIEW
JUDGMENT

LIEBENBERG,
J.: [1]
The accused and co-accused (accused no. 1) appeared in the
Magistrate's Court, Opuwo on a charge of housebreaking with intent to
steal and theft. Accused no. 1 pleaded not guilty to the charge; and
whereas the accused pleaded guilty, he was questioned pursuant to the
provisions of s 112 (1) (b) of the

Criminal
Procedure Act, 1977 (Act 51 of 1977) and convicted. The prosecution
thereafter asked for a separation of trials; which was granted, and
accused no. 1 stood down.

[2]
This notwithstanding, the record of proceedings on sentence reflects
the following:

"Court:
Accused
1 - 2
sentence
to a fine of N$1 800.00 - each
one
thousand eight hundred N$ dollars or (18) eighteen months
imprisonment suspended for a period of (3) three years on condition
that each
accused is
not convicted of housebreaking with intent to steal and theft
committed during the period of suspension." (Emphasis
provided)

[3]
The magistrate, in a reply on a query directed to her enquiring as to
why reference was made to the co-accused (accused no. 1) in the
sentence if a separation of trials was ordered and the proceedings on
sentence proceded against accused no.2 only, stated that there was
indeed a separation of trials and that she erred by including accused
no. 1 in the sentence. She therefore requested that the sentence be
corrected accordingly.

[4]
Accused no.1 had already stood down after a separation of trials was
ordered and was no longer before the court at the stage of
sentencing. Therefore, his inclusion in the formulation of the
sentence was clearly unintentional. The sentence needs to be
corrected to reflect the correct position and to avoid any ambiguity
as regards the suspended sentence imposed on accused no. 2.

[5]
In the result, the Court orders:

1.
The conviction is confirmed.

2.
The sentence is amended to read: "Accused No.2 is sentenced to a
fine of N$1 800 or 18 months imprisonment, wholly suspended for a
period of 3 years on condition that the accused is not convicted of
housebreaking with intent to steal and theft, committed during the
period of suspension."

LIEBENBERG,
J

I
concur.

TOMMASI,
J