CASE NO.: CR
04/2012

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

SHIDOLO WALDE

(HIGH COURT REVIEW CASE NO.:
26/2012)

CORAM: LIEBENBERG,
J. et TOMMASI, J.

Delivered on: 21 February 2012

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] The accused appeared before the Magistrate’s Court,
Oshakati and pleaded guilty on a charge of contravening s 72 (1)(n)
of the Liquor Act¹
in that he unlawfully sold beer. Although it is not alleged in the
charge that the accused acted without being the lawful holder of a
liquor licence issued to him in terms of the Act or in contravention
with such licence – thereby omitting an essential ingredient
from the charge, making it as such defective – the magistrate,
when questioning the accused in terms of s 112 (1)(b) of the Criminal
Procedure Act²,
did elicit answers from the accused according to which he admitted
that when selling the liquor, he was not the holder of a valid
licence; thus, curing the defect in the charge. The conviction is in
order and must be confirmed.

[2] However,
there is a need for the prosecution to meticulously formulate charges
against accused persons, especially where the trial court during
questioning in terms of s 112 (1)(b) would be guided by the elements
of the charge and the allegations contained therein. Slovenly or
ill-considered charges could lead to a miscarriage of justice and
should be avoided at all times.

[3] The wording
of the sentence imposed by the court is not only clumsy, but the word
“committed” was also omitted as a condition of
suspension. Hence, the sentence is amended to read as follows:

‘N$2 000 or
12 months’ imprisonment of which N$1 000 or 6 months’
imprisonment is suspended for 2 years on condition that the accused
is not convicted of the offence of selling liquor without a licence
(c/s 72 (1)(n) of Act 6 of 1998), committed during the period of
suspension.’

The sentence date remains the same.

_________________________

LIEBENBERG, J

I concur.

_________________________

TOMMASI, J