CASE NO.: CR 10/2012

NOT REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

MEKONDJA HELAO

HIGH
COURT REVIEW CASE NO: 618/2010

CORAM: HOFF, J et
MILLER, AJ

Delivered on: 15 February 2012

REVIEW
JUDGMENT

HOFF,
J: [1] The accused was convicted in the Walvis Bay
magistrate’s court inter alia of reckless or negligent driving
in contravention of the provisions of section 80(1) of the Road
Traffic and Transport Act, Act 22 of 1999, and of driving a motor
vehicle with no driver’s licence in contravention of section 31
(1)(a) of Act 22 of 1999.

[2] The sentence as it appears
on the last page of the record reads as follows:

“Charge(s) Count 1, 4 taken together for
sentencing – Road Traffic Act – Reckless or negligent
driving.

Road Traffic Act – No driver’s licence.

Sentence: Fine

Fine amount: N$2 000.00 (Two Thousand Namibian Dollars)
of which N$1 000.00 (One Thousand Namibian Dollars) is suspended for
a period of 5(five) years on the following conditions:

1. On the condition that the accused is not convicted of
RECKLESS OR NEGLIGENT DRIVING, committed during the period of
suspension

Or

Sentence: Imprisonment

Term: 12(Twelve) Months Imprisonment of which 6(six)
months is suspended for a period of 5(five) years on the following
conditions:

1. On the condition that the accused is not convicted of
RECKLESS OR NEGLIGENT DRIVING, committed during the period of
suspension.”

[3] Some of the queries which I
directed to the magistrate were the following:

“1. On what authority was the accused given a
choice which sentence to serve since he was given a fine OR a term of
imprisonment ?

2. Why were counts 1 and 4 (two distinct statutory
offences) taken together for purpose of sentence.

3. Why was the accused not sentenced in respect of count
4.”

[4] Count 4 was the conviction
for driving a motor vehicle without a driver’s licence.

[5] The presiding magistrate in
respect of the first question replied that it was a NAMCIS generated
“Court Order” which suggests that the Court imposed an
alternative sentence and that it was a peculiarity of NAMCIS
regarding the manner in which it records (or translates) a sentence
into an electronic friendly medium. The magistrate referred me to his
handwritten record where the sentence imposed reads as follows:

“In respect of counts one and four both counts are
taken as one for purpose of sentence and accused is sentenced to a
fine of two thousand dollar or twelve months imprisonment of which
one thousand dollars or six months imprisonment is suspended for a
period of five years on condition that the accused person is not
found guilty of an offence involving reckless or negligent driving
committed during the period of suspension.”

[6] Even though the magistrate
gave an explanation regarding what appears to be the imposition of an
alternative sentence it, is in my view, a disturbing explanation. It
appears to me the NAMCIS system, as explained by the magistrate, in
respect of the formulation of at least this particular sentence, is
impervious to the input and effort by a magistrate in the formulation
of such a sentence.

[7] A magistrate’s court
is in terms of section 4(1) of the Magistrate’s Court Act 32 of
1944 as amended, a court of record. The magistrate has certified the
record of the proceedings as correct.

[8] The two sentences referred
to namely the NAMCIS generated one and the handwritten one are
ambivalent. It must be clear from the record which sentence was
imposed and it is not for the reviewing judge to second guess which
sentence a magistrate had intended to impose.

If the method of recording a
sentence by the NAMCIS system cannot accurately record the intended
sentence of the magistrate then in my view the use of such a system,
for purposes of formulating sentences, should be reconsidered.

[9] Regarding the query why two
distinct statutory offences had been taken together for purpose of
sentence the magistrate replied that the two offences were closely
connected to each other in terms of time, place and circumstance and
in support of his explanation referred this Court to the matter of S
v Akanda 2009 (1) NR 17 (HC) (in which Silungwe AJ referred with
approval to S v Young 1977 (1) SA 602 (A) ) and where the following
appears on 17 I – J in the Akonda judgment:

“Although that procedure is neither authorized nor
forbidden by the Criminal Procedure Act 51 of 1977, it has emerged as
a matter of practice. In principle, however, the practice should be
resorted to in exceptional circumstances only, such as where various
counts are part of a single transaction or are closely connected or
similar in point time, place or circumstances.”

[10] I agree with this
exposition of the practice. It is however the correct implementation
thereof which may be problematic.

[11] In my view the emphasis
should not be that such a practice is not forbidden but that it is an
undesirable practice as Silungwe AJ clearly explained in Akonda
(supra) on p. 18 A – B:

“This means that in other cases, magistrate should
refrain from having recourse to such practice because, not only is it
desirable that each separate crime should be punished separately (S v
Swartz 2000 (2) SACR 566 (SCA) at 568 f), for example, where crimes
of disparate gravity are involved, but also because a global sentence
might present difficulties if some of the convictions are, for one
reason or another, set aside, as it would then be difficult to
ascertain on what basis the sentence reached the global sentence. It
is thus undesirable to take divergent counts together for the purpose
of sentence.”

[12] It was stated in Young
(supra) by Trollip JA that it induces to clearer thinking in
determining the appropriate sentences to treat each offence
separatetly.

[13] In my view the two counts
the accused had been convicted of are of disparate gravity if one has
regard to their respective penalty clauses.

In respect of a conviction for
reckless driving the maximum sentence which may be imposed is a fine
of N$8 000.00 or imprisonment of 2 years or to both such fine and
imprisonment and the maximum sentence which may be imposed for
driving without a driver’s licence is a fine of N$2 000.00 or
imprisonment of six months or to both such fine and imprisonment. I
am of the view that for this reason alone the magistrate acted
irregularly by taking the counts together for purpose of sentence.

[14] It is further noteworthy
that the magistrate imposed the maximum fine in respect of the
conviction for driving without driver’s licence in respect of a
first offender which may be considered a harsh sentence.

[15] The difficulty one is
confronted with in a situation where two statutory offences are taken
together for purpose of sentence, which sentence is then in part
suspended, is to formulate the conditions of suspension.

[16] In this case the magistrate
took the counts together for purpose of sentence but in his
conditions of sentence referred only to the prohibition of committing
the offence of reckless or negligent driving but is silent about the
conviction in respect of driving a motor vehicle without a driver’s
licence. The sentence is incomplete.

[17] The sentence imposed is
also irregular and de jure a nullity.

In S v Hayman 1988 (1) SA
831 (NC) it was held that although a magistrate or a judge can, for
the purposes of sentence, take charges together her or she is not
authorised to impose a sentence which is competent in respect of one
offence, and incompetent in respect of another offence, for the two
together. Where it is done the sentence is a nullity and should be
corrected.

See also S v S 1981 (3)
SA 377 (A).

[18] It has been stated that
when one comprehensive sentence is imposed in respect of two or more
charges, it essentially means that the single sentence is to be
regarded as the punishment for each of the separate offences and for
that reason it is not competent to impose such a sentence when its
severity exceeds the jurisdiction of the court in regard to one or
more of the charges. (Hiemstra’s Criminal Procedure 4^th
Issue par. 28 – 41).

[19] In this regard the Court in
S v Van Zyl 1974 (1) SA 113 (TPD) held (with reference to the
circumstances of that case) that although offences are created by one
and the same Ordinance and, broadly speaking, belong to the same
genus, it is preferable to impose separate sentences.

It was further held that even if
it would be permissible to take counts together for purpose of
sentence, no court is competent to impose a sentence which is higher
than the sentence prescribed for a single offence.

[20] If this principle is
applied to the matter under review then it should be apparent that a
sentence of N$2 000.00 or 12 months imprisonment was imposed
in respect of the charge of driving without a driver’s licence
which carries a maximum sentence of N$2 000.00 or six months
imprisonment.

(Emphasis added).

This sentence is a nullity.

[21] This Court held in S v
Visagie 2010 NR 271 at 272 G in the case where separate sentences
are imposed in respect of two or more convictions, that the
cumulative effect of sentences may be ameliorated by ordering the
running together of sentences or part of sentences.

[22] In my view, for the reasons
mentioned, the comprehensive sentence imposed cannot stand and needs
to be set aside.

[23] In the result the following
orders are made:

1. 
   The convictions in respect of
   both counts are confirmed.

   
   

2. 
   The sentence imposed is set
   aside.

   
   

3. 
   The matter is referred back to
   the magistrate who is ordered to sentence the accused afresh along
   the guidelines expressed in this judgment.

   
   

_________

HOFF, J

I agree

___________

MILLER, AJ