IN
THE HIGH COURT OF NAMIBIA

HELD
IN WINDHOEK

CASE
NO.: CR 57/2012

In
the matter between:

THE
STATE

and

KENNETH
MUNGUNDA

ANDREAS
MUKYATA

(HIGH
COURT REVIEW CASE NO.:1073/2012)

(MAGISTRATE’S
SERIAL NO.: 59/2011)

CORAM: PARKER,
J et SHIVUTE, J

Delivered on: 2012 July 04

REVIEW
JUDGMENT

SHIVUTE,
J: [1] The two accused persons were convicted of
theft upon their own plea of guilty and sentenced to N$5000.00 (five)
thousand Namibia dollars or 12 (twelve) months’ imprisonment.

[2] I directed a query to the
learnd magistrate as follows:

“The two accused
persons were convicted of theft. They were sentenced to N$5000.00
(five) thousand Namibia dollars or 12 (twelve) months’
imprisonment. Does this mean that each accused’s paying a fine
of N$5000.00 in default of payment 12 months’ imprisonment or
does it mean that each accused will pay a fine of N$2500.00 in
default 6 months’ imprisonment? The sentence appears to be
vague.”

[3] The magistrate replied in
the following terms:

“The accused persons
must each pay a fine of N$5000.00 (five) thousand Namibia dollars or
in default of payment 12 (twelve) months’ imprisonment.”

[4] The conviction is in
order. However, I have a problem with the way the sentence has been
formulated. The sentence must be clear and precise. It should not
be left to the accused to guess what is expected of him. Ambiguity
should be avoided when formulating sentence.

[5] The sentence imposed by the
learned magistrate is ambiguous and it cannot be allowed to stand.

[6] In the result the following
order is made:

(1) The conviction is
confirmed.

(2) The sentence of N$5000.00
(five) thousand Namibia dollars or 12 (twelve) months imprisonment is
altered to read: Each accused is sentenced to a fine of N$5000.00
(five) thousand Namibia dollars or in default of payment 12 (twelve)
months’ imprisonment.

__________________

SHIVUTE, J

I
agree.

___________________

PARKER,
J