NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 76/2012

In the matter between:

THE STATE

and

FAUSTINUS KASESA
SILEHA

Neutral citation: The
State v Sileha (CR
76/2012) [2012] NAHCMD 1 (21 September 2012)

Coram:
VAN NIEKERK J and UEITELE
J

Flynote: Criminal
procedure – Plea – Plea of guilty – Conviction in
terms of section 112(1)(a) of Criminal Procedure Act – Accused
sentenced to N$2 000 or 3 month imprisonment – Maximum fine at
the time was N$300 – Sentence not competent – Sentence
reduced to N$300 or 1 month imprisonment

Summary: The
accused was charged inter alia with a contravention of section 31 of
the Road Traffic and Transport Act, 1999 (Act 22 of 1999) (Driving a
motor vehicle without a driver’s licence). The magistrate
applied section 112(1)(a) of the Criminal Procdeure Act, 1977 (Act 51
of 1977) and summarily convicted the accused. The sentence passed was
one of N$2 000 or 3 months imprisonment. At the time the maximum
sentence provided for by section 112(1)(a) was a fine of N$300. The
sentence imposed was therefore not competent. On automatic review the
sentence was reduced to one of N$300 or 1 month imprisonment.

ORDER

In the result the
following order is made:

1. 
   The conviction and
   sentence on count 1 are confirmed.

   
   

2. 
   The conviction on count
   2 is confirmed.

   
   

3. 
   The sentence on count 2
   is reduced to a fine of $300 (Three hundred Namibia Dollar) or 1
   (one) month imprisonment.

   
   

REVIEW JUDGMENT

VAN NIEKERK, J (UEITELE,
J concurring):

[1] The accused was
convicted by the magistrate at Grootfontein on a charge of culpable
homicide arising from the negligent driving of a motor vehicle and on
a count of c/sec 31 of the Road Traffic and Transport Act, 1999 (Act
22 of 1999)(Driving a motor vehicle without a driver’s
licence). On the first count he was sentenced to N$15 000 or 3 years
imprisonment. On the second count he was sentenced to N$2 000 or 3
months imprisonment.

[2] The conviction and
sentence in respect of count 1 is in order. On count 2 the magistrate
acted in terms of section 112(1)(a) of the Criminal Procedure Act,
1977 (Act 51 of 1977) (“the CPA”). The sentence imposed
is not competent as section 112(1)(a) at the time that sentence was
passed made provision for a maximum fine of N$300.

[3] Unfortunately this
review record was mislaid after being attended to by the original
Reviewing Judge to whom it was assigned. As he has since retired the
matter was re-assigned for review. In the meantime the trial
magistrate has left service as a judicial officer. It would therefore
serve no purpose to require him to respond to any query from me. I
therefore intend finalizing the matter.

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

1. 
   The conviction and
   sentence on count 1 are confirmed.

   
   

2. 
   The conviction on count
   2 is confirmed.

   
   

3. 
   The sentence on count 2
   is reduced to a fine of $300 (Three hundred Namibia Dollar) or 1
   (one) month imprisonment.

   
   

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K van Niekerk

Judge

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S Ueitele

Judge