CASE
NO.: CR 12/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

versus

ISSA
AWONGA KASONIKA

[HIGH
COURT REVIEW CASE NO.: 216/2011] CORAM:
NDAUENDAPO,
J et
SIBOLEKA,
J

Delivered
on: 2011 FEBRUARY 16

REVIEW
JUDGMENT SIBOLEKA, J.:

[1]
The 26 year old accused appeared before the Magistrate at Noordoewer
on a charge of contravening section 12(1) of the Immigration Control
Act, Act no. 7 of 1993, was questioned in terms of section 112(1)(b)
of Act 51/77 convicted, and sentenced accordingly.

[2]
The relevant section reads:

"12.
(1) Any
person seeking to enter Namibia who fails on demand by immigration
officer to produce to such immigration officer an unexpired passport
which bears a valid visa or an endorsement by a person authorized
thereto by the Government of Namibia
to
the effect that authority to proceed to Namibia for the purpose of
being examined under this Act has been granted by the Minister or an
officer authorized thereto by the Minister, or such person is
accompanied by a document containing a statement to that effect
together with particulars of such passport, shall
be refused to enter and to be in Namibia, unless such person is
proved to be a Namibian citizen or a person domiciled in Namibia."

my
own underlining.

[3]
The charge sheet reads:

"S
v ISSA AWANGA KASONIKA
N
176/10

ANNEXURE
"A"

CHARGE:
BEING IN NAMIBIA WITHOUT A VALID PASSPORT OR PERMIT.

That
the accused is guilty of C/s 12(1) of the Immigration Control Act,
7/1993.

In
that upon or about the 25 September 2010 at or near NOORDOEWER

BORDER
POST, KARASBURG in the district of KARASBURG the said

accused
did wrongfully and unlawfully remained or being in Namibia without a
valid passport of permit."

From
the above it is very clear that the charge sheet is defective because
it omitted to include the central element of this offence being that
of:

"Any
person seeking to enter Namibia who fails on demand by an Immigration
officer to produce to such Immigration officer an unexpired passport
which bears a valid visa ..."

[4]
This cardinal omission in the charge resulted in the section 112
(1)(b) questioning by the learned Magistrate not covering that
important aspect as well. As a result of these shortcomings the
conviction and sentence on this matter cannot be allowed to stand.

[5]
I must mention that numerous Review judgments have already been
written on this topic directing Magistrates countrywide to see to it
that the Prosecutors adjust the wording of their charge sheets in
order to cover this aspect.

[6]
Magistrates are directed once more to take note of this defect in
matters brought before them.

[7]
In the result both conviction and sentence are set aside.

SIBOLEKA,
J

I
agree.

NDAUENDAPO,
J