CASE
NO.: CR 12/2011

IN
THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI

In
the matter between:

THE
STATE

and

FERNANDO
KATITI

(HIGH
COURT REVIEW CASE NO.: 29/2011) CORAM:
LIEBENBERG,
J. el
TOMMASI,
J. Delivered on: 24.03.2011

REVIEW
JUDGMENT

LIEBENBERG,
J.: [1]
The accused appeared in the Magistrate's Court, Outapi on a charge of
contravening section 12 (4) of the Immigration Control Act, 1993 (Act
7 of 1993), hereinafter referred to as 'the Act'. The accused was
convicted on his mere plea of guilty in terms of s 112 (1)(a) of Act
51 of 1977 and sentenced to a fine of N$4 000 or 12 months
imprisonment, wholly suspended on condition of good behaviour. The
sentence imposed is subject to review under s 302 of the Criminal
Procedure Act 51 of 1977.

[2]
The charge on which the accused was convicted reads as follows:
"FOUND
IN NAMIBIA WITHOUT VALID DOCUMENTS

That the accused
is guilty of contravening section 12 (4) read with section 1 and 12
(1) of the Immigration Act (Act 7 of1993).

In
that upon or about the 3^rd
day
of December 2010 the said accused was found in Namibia to wit Ruacana
which is in the district of Outapi while he was not in possession of
valid passport or any valid documents issued to him." (sic)

[3]
The charge formulated against the accused in this case is identical
to
that preferred against the accused in S
v Ngongo¹
and
I find it disconcerting that no heed was given to the judgment
delivered in the Ngongo
case
by the prosecution when formulating the charge against the present
accused. In this instance the charge equally does not follow the
wording of s 12 (4) of the Act as one would have expected it to do,
and completely ignores a crucial element of the section i.e. that it
does not apply to a person proved to be a Namibian citizen or a
person domiciled in Namibia. The relevant portions of section 12 read
as follows:

'12
Passports
and visas

1. 
   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 or an endorsement by a
   person authorised 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 authorised 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.

   
   

2. 
   . . .

   
   

(4)
If any person enters or has entered Namibia in contravention of the
provisions of ss (1) or, after having been refused to enter Namibia
in terms of that subsection, is found in Namibia, he or she shall be
guilty of an offence and on conviction be liable to a fine not
exceeding N$20 000 or to imprisonment for a period not exceeding five
(5) years or to both such fine and such imprisonment, and may be
dealt with under Part VI as a prohibited immigrant.' (Emphasis
provided)

[4]
I can do no better than echo what has already been stated in Ngono
and
S
v Wellem; S v Nkomo ,
which judgments are on point.

[5]
It was said that the section creates two offences: (a) entering
Namibia in contravention of the provisions of subsection (1) of s 12
of the Act; and (b) being found in Namibia after having been refused
to enter Namibia in terms of that subsection (see Ngono
at
p 35). In order to be convicted under s 12 (4), the charge must
allege that the accused was found in Namibia after
having been refused entry

2009
(1) NR 352 (HC).

into
Namibia under the provisions of s 12 (1),
an
essential element of subsection (4). In the absence thereof, the
charge formulated against the accused in this instance, did not meet
the requirement set out in s 84 (1) of the Criminal Procedure Act,
which states:

"Essentials
of charge

(1)
Subject to the provisions of this Act and of any other law relating
to any
particular offence, a
charge shall set forth the relevant offence in such
manner
and
with such particulars as to the time and place at which the
offence
is alleged to have been committed and the person, if any,
against
whom and the property, if any, in respect of which the
offence is alleged to
have been committed, as
may be reasonably sufficient to inform the accused
of the nature
of the charge.
(2)

(3)
In
criminal proceedings the description of any statutory offence in the
words of the law creating the offence, or in similar words, shall be
sufficient"
(Emphasis
provided)

[6]
Besides the requirement that there should have been a preceding
refusal by an immigration officer to allow the person 'to enter
Namibia in terms of s 12 (1) of the Act, it should also be borne in
mind that a person who has proved that he or she is a Namibian
citizen or legally domiciled in Namibia, cannot legally be refused
entry under s 12 (1). Where these allegations - essentials of the
offence created by s 12 (4) - were not contained in the charge
preferred against the accused, the charge did not disclose an offence
at all.

[7]
Unlike the situation in the aforementioned cases where the accused
persons were questioned in terms of s 112 (1)(b) on their pleas of
guilty, in this instance, the case was finalised in terms of s 112
(1)(a). This, in my view, underscores the importance for judicial
officers to exercise their judicial discretion when they decide to
finalise cases in terms of s 112 (1)(a); instead of invoking the
provisions of s 112 (1)(b) which requires the process of questioning,
thereby protecting the accused from the adverse consequences of an
ill-considered plea of guilty.

[8]
In the result, the conviction and sentence are set aside.

LIEBENBERG,
J

I
concur.

TOMMASI,
J