[4]
The Control Magistrate Windhoek, is troubled by the sentences
imposed and the formulation of the charge upon which the convictions
rested. She states:

"I
am of the humble opinion that the learned presiding magistrate erred
in sentencing the accused persons as reflected on the case record,
because the maximum sentence for contravening Section 34(3) of the
Immigration Control Act, Act 7 of 1993, is: N$4
000-00 (Four Thousand Namibian Dollar) or 12 (Twelve) months
imprisonment or both such fine and such imprisonment.

I am also of the humble
opinion the charge against the accused persons is being wrongly
formulated and should have read: Contravening Section 34(3) read
with Sections 34(1) and 34(2) of the Immigration Control Act, Act 7
of 1993."

[5]
It is clear from the record that the two accused were legally
represented. Under s. 302 of the CPA, a proceeding in the
Magistrate's Court is not reviewable if the accused was legally
represented. With this circumstance in mind, I caused the record to
be forwarded to the Prosecutor-General for comment. The
Prosecutor-General's Office has now furnished the Court with its
comments. It readily accepts that this Court has jurisdiction under
s. 304(4) to entertain the review as presented by the Control
magistrate, although the accused were legally represented. The
concession is properly made.¹
Mr
Small of the PG's Office has provided very helpful comments on the
matter. He argues that the two accused admitted all the elements of
the offence and were properly convicted and asks this Court to
confirm the
convictions.
He correctly submits that the Court, prosecutor and counsel acting
for the accused all wrongly assumed that the applicable penalty
provision in the ICA was s. 56(g)²
which,
Mr Small correctly submits, is applicable only to contraventions of
s. 56(a), 56(b), 56(c), 56(d) and 56(e). Mr Small states that the
sentences are not in accordance with justice and must be set aside
and substituted with 'appropriate and competent sentences'. As I
understand his submissions, should this Court impose a sentence of a
fine, the difference between that fine and what the court a
quo imposed
should be paid back to the accused. Mr Small also accepts in so many
words that the Control Magistrate is correct in her view that the
charges were wrongly formulated and should have been made under s.
34(3) read with s. 34(1) of

the
ICA.

[6]
Section 34(3) of the ICA states:

"(1) Any person who
at any time entered Namibia and, irrespective of the circumstances
of his or her entry, is not or is not deemed to be in possession of
a permanent residence permit issued to him or her under section 26
or an employment permit issued to him or her under section 27 or a
student's permit issued to him or her under section 28 or a
visitor's entry permit issued to him or her under section 29, or has
not under section 35 been exempted from the provisions of section
24, as the case may be, shall present himself or herself to an
immigration officer or to an officer of the Ministry.

(2) Any person who has
under section 35 been exempted from the provisions of section 24(b)
for a specific period, shall before the date on which such period
expires present himself or herself to an immigration officer or to
an officer of the Ministry.

(3) Any person referred
to in subsection (1) who fails to comply with the provisions of that
subsection or any person referred to in subsection (2) who fails to
comply with the provisions of the last-mentioned subsection or any
person, so referred to, who fails, on being called upon to do so by
an immigration officer, then and there to furnish to such
immigration officer the particulars determined by the Chief
Immigration to enable the board, the Chief of Immigration or such
immigration officer, as the case may be, to consider the issuing to
the said person of a permit concerned, shall be guilty of an offence
and on conviction be liable to a fine not exceeding R4000 or to
imprisonment for a period not exceeding 12 months or to both such
fine and such imprisonment, and may be dealt with under Part VI as a
prohibited immigrant."

[7]
It is clear on the face of the record that the trial Magistrate
misdirected herself. She had no competence to impose a sentence in
excess of the statutory maximum prescribed by the ICA; as the
penalty provision of 56(g) of the ICA which prescribes the sentence
of N$20 000 or 5 years imprisonment is not applicable to an offence
created by s. 34(3) read with s. 34(1). The sentence imposed was
therefore a nullity.

[8]
The two accused admitted that they had entered Namibia and failed to
present themselves to an immigration official or to an official of
the Ministry. That conduct constitutes a criminal offence under s.
34(3) of the ICA: The section under which they were convicted was
the wrong one and considering that their admitted conduct is a crime
under the ICA, this Court has the power
to
amend the charge and to confirm the conviction as there would be no
prejudice to the accused.³
Considering
that the sentence imposed is a nullity, this Court is at large as to
sentence.

[9]
The two accused did not testify in mitigation of sentence and failed
to take the Court in their confidence and to more fully explain when
and how they entered Namibia. Their counsel made submissions from
the Bar in mitigation that they were both first offenders who
pleaded guilty and expressed regret for what they did. They had, as
their counsel submitted from the Bar in mitigation, entered Namibia
in a vehicle. Exactly how they achieved that without being noticed
is not apparent from the record but it demonstrates how daring and
audacious their conduct was. It certain calls for the maximum fine
permissible under s. 34(3) of the ICA, as a deterrent to those who
might be minded to take a similar risk. It is appropriate to also
impose a wholly suspended term of imprisonment as a disincentive for
the accused to engage in the kind of criminal conduct they made
themselves guilty of.

[10]
Accordingly the following order is made:

1. 
   The
   conviction of each accused for contravention of 'section 34 read
   with sections 1, 2 and 56(g) of the Immigration Control Act, No. 7
   of 1993' is set aside.

   
   

2. 
   The
   resulting sentence against each accused of a fine of N$15 000 or in
   default 4 years imprisonment, partly suspended on conditions, are
   set aside.

   
   

3.
The
above convictions are substituted as follows:

'3.1
Each accused is convicted of contravening s. 34(3) read with s.
34(1) of the Immigration Control Act, Act No. 7 of 1993.

3.2
Each accused is sentenced to a fine of N$4 000 or in default 6
months imprisonment. In addition, each accused is sentenced to 6
months imprisonment wholly suspended for a period of 3 years on
condition the accused person is not convicted of contravening the
provisions of s. 34(3) (read with s.34(1)) of the Immigration
Control Act, Act No. 7 of 1993 committed during the period of
suspension. Each accused person is ordered to depart from Namibia
with immediate effect.'

4.
Each
accused is entitled to a refund of moneys paid, representing
the
difference between the fine of N$4 000 and the amount of N$10
000
paid in compliance with the fine imposed by the court a
quo.

DAMASEB,
JP

I
agree.

HOFF,
J

1S
v Eli 1978
(1) SA 451

2Which
in respect of other offences provides for a penalty of N$20,000 or 5
years imprisonment or both such fine and imprisonment.

3See
S
v Babiep 1999
NR 1970 at 172H-I

5