REPUBLIC OF
NAMIBIA

IN THE HIGH
COURT OF NAMIBIA, MAIN DIVISION

HELD AT
WINDHOEK

CASE NO. CR
23/2012

In the matter
between:

THE STATE

and

ABEL AMBAMBI

(HIGH COURT
REVIEW REF NO. 397/2012)

CORAM: VAN
NIEKERK, J et SHIVUTE, J

Delivered: 3 April
2012

________________________________________________________________________

REVIEW

VAN
NIEKERK, J: [1]
In this matter the accused was convicted in the magistrate’s
court at Windhoek on a charge of contravening section 82(2)(a) of the
Road Traffic and Transport Act, 1999 (Act 22 of 1999), and sentenced
to a fine of N$3 000 or 12 months imprisonment of which half was
suspended for three years on two conditions. The first relates to the
accused not repeating the same offence. This is in order. The second
condition reads as follows: “that i.t.o. s 51(2) of Act 22 of
1999 his licence is hereby suspended for a period of 3 (three) months
and accused is warned not to drive a motor vehicle within the period
of suspension.”

[2]
Although the order is relevant to sentence, the order itself is not
part of the sentence. See section 51(1) of Act 22 of 1999 which
provides that “the court shall, apart from imposing a sentence
.............. issue
an order whereby every driving licence held by such person is
suspended”. The order for suspension of the licence should
therefore be made separately from the sentence.

[3]
However, what is
of greater concern here is that the order as framed is ambiguous and
causes confusion. Firstly, the order may be interpreted that the
accused is warned not to drive a motor vehicle within the three month
period, but it may also be interpreted that he should not drive a
motor vehicle within the three year period. I assume the intention is
to limit the warning to the three month period. Secondly and more
importantly, there is uncertainty about the effect should the accused
drive a motor vehicle within the three month period. One is not sure
if the order must be interpreted that the suspended sentence may then
be brought into operation or not. It is trite that a suspended
sentence should be clear so that an accused understands exactly what
is expected of him or her. In my view the sentence should be
re-formulated in a clear manner.

[4]
The result is that the sentence is set aside and replaced with the
following orders:

1. The
   accused is sentenced to a fine of N$3 000 (Three thousand Namibian
   Dollars) or 12 (twelve) months imprisonment of which N$1500 (One
   thousand five hundred Namibian Dollars) or 6 (six) months
   imprisonment are suspended for a period of 3 (three) years on
   condition that the accused is not convicted of a contravention of
   section 82(2)(a) of the Road Traffic and Transport Act, 1999 (Act 22
   of 1999) (Driving with excessive alcohol concentration in breath),
   committed within the period of suspension.

   
   

2. The
   accused’s licence is suspended for a period of 3 (three)
   months in terms of section 51 of the Road Traffic and Transport Act,
   1999 (Act 22 of 1999).

   
   

________________________

VAN NIEKERK, J

I agree.

­­­­­_________________________

SHIVUTE, J
agree.RK_____________ cohol concentration in breath) s on condition
that hte accused is not convicted isonment of which N$15