CASE NO.: CR
3/2011

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

THE
STATE

and

ANTONIO
AGOSTINHO

(HIGH
COURT REVIEW CASE NO.: 91/2011)
CORAM:
MULLER,
J et
SIMPSON,
AJ

Delivered
on: 26
January 2011

REVIEW
JUDGMENT

SIMPSON,
AJ.: [1]
The accused appeared in the Ondangwa District Court on one count of
assault by threat and one count on assault read with S 21 of Act
4/03, and pleaded guilty to both counts.

[2]
On count 1 the Magistrate applied S 112 (1)(b) of the CPA and on
count 2, S 112 (1)(a) was applied. On count 1 the accused was
sentenced to four (4) months imprisonment, whereby on count 2, the
accused was sentenced to two (2) months imprisonment in
toto suspended
on the usual conditions.

[3]
The issue that arises here concerns the jurisdiction of a court where
S 112 (1)(a) of the CPA apply. When this section is applied, the
court must impose sentence with an option of a fine. A sentence of
imprisonment without an option of a fine and in
toto suspended,
cannot be imposed where the court applied S 112 (1)(a) of the CPA.

[4] The conviction
by the Magistrate of Ondangwa, is therefore confirmed but the
sentence on count 2 is set aside and replaced with the following:

Two hundred
Namibian Dollars (N$200.00) or two (2) months imprisonment in toto
suspended for three (3) years on condition that accused is not
convicted of assault, read with S 21 of Act 4/03 committed during the
period of suspension.

SIMPSON,
AJ

I
agree

MULLER,
J