NO.: CR 71/2012
THE HIGH COURT OF NAMIBIA
DIVISION, HELD AT WINDHOEK
the matter between:
COURT REVIEW CASE NO.: 1532/2010)
SERIAL NO.: 20/2010)
J et PARKER, AJ
Delivered on: 2012
J:  The
accused was charged in the Mukwe periodical court of the statutory
offence of hunting of specially protected game in contravention of
section 26 (1), read with sections 1, 26 (3), 85, 87, and 89, of
Ordinance 4 of 1975 (as amended) and further read with sections 90
and 250 of Act 51 of 1977.
 Particulars of
offence are that on 7th
day of September 2009 at or near Mahango Game Park in the district of
Rundu the said accused did wrongfully and unlawfully hunt specially
protected game to wit: 3x kudus without a permit. He was sentenced
to N$3000.00 (three) thousand Namibia dollars fine or in default of
payment 20 (twenty) months’ imprisonment.
 A query was
directed to the learned magistrate as follows:
is convicted of the offence of hunting specially protected game
namely 3x kudus in contravention of section 27 (1) of Ordinance 4 of
Is the learned magistrate
sure that section 27 (1) of Ordinance 4 of 1975 is dealing with
hunting of specially protected game?
In tems of Schedule 3 of
Ordinance 4 of 1975 a kudu is not listed as a specially protected
game. When did it become a specially protected game? Kindly if
there is an amendment to the Ordinance in this regard bring it to
the attention of the reviewing judge.”
 The learned
magistrate replied in the following terms:
1. “The section 27 (1)
of Ordinance 4 of 1975 deals with: when an accused is an accessory
after the fact to the commission of the relevant section, thus the
section used is definitely wrong and should be hunting of huntable
game secion 20 (1) (b) of Ordinance 4 of 1975.
2. Further a kudu is not
listed in terms of schedule 3 of Ordinance 4 of 1975 as a specially
protected game, so there is no amendment to the Act and again I agree
a kudu is not specially protected game. Thus the accused should have
been charged under section 20 (1) (b) of Ordinance 4 of 1975 hunting
huntable game. I therefore apply to the honourable justice to amend
such conviction to be one of section 20 (1) (b) of Ordinance 4 of
1975 as questioning done shows that the hunting occur in a game Park
which is an extra requirement for the above section and that the
accused had no permit or authority to hunt such kudus.”
 The accused
was charged with hunting of specially protected game, namely kudus in
contravention of section 26 (1) of Ordinance 4 of 1975. He was
convicted of contravening section 27 (1) of the same Ordinance of
hunting specially protected game. Section 27 (1) deals with hunting
of protected game. A kudu is neither
specially protected game nor
a protected game. Therefore the sections under which he was charged
and convicted were clearly wrong.
 The accused
was supposed to be charged with prohibition of hunting in game park
in contravention of section 20 (1) read with section 20 (2) (b) as
the accused hunted kudus which are huntable game.
 Since the
accused was charged with and convicted of contravening wrong sections
of the applicable statute, the conviction cannot be allowed to stand.
It also follows that the sentence imposed is not competent.
 In the result
the following order is made:
(1) The conviction
of contravening section 27 (1) is set aside and substituted with the
conviction of prohibition of hunting in a Game Park in contravention
of section 20 (1) and 20 (2) (b) of Ordinance 4 of 1975. The accused
admitted all the elements of the offence under section 20 (1) and no
prejudice is to be suffered by him.
(2) The sentence
of N$3,000.00 (three) thousand Namibia dollars fine or 20 (twenty)
months’ imprisonment is set aside and replaced with a sentence
of N$1,500.00 (One shousand and five hundred) Namibia dollars fine or
12 (twelve) months imprisonment. The sentence is backdated to the
date the court a quo sentenced the accused.