S v Ditchabue (CR 07/2019) [2019] NAHCMD 9 (24 January 2019);

ORDER

(i)        The conviction of negligent driving in count 1 and the sentence of a fine of N$2000.00 or 6 months imprisonment in default of payment are confirmed.

(ii)       The conviction and sentence of count 2 are set aside.

REVIEW JUDGMENT

UNENGU, AJ (USIKU, J concurring):

[1]        This matter came before me on automatic review as provided for by s 302 of the Criminal Procedure Act[1] (the CPA).

[2]        The accused in the matter was charged with and convicted of the offence of reckless or negligent driving which is a contravention of s 80(1) read with sections 1, 49, 50, 51, 80(3), 86, 89, 106, 107 and 108 of the Road Traffic Transportation Act[2] (the Act); and driving under the influence of intoxicating liquor, i.e. contravening s 82(1)(a) read with sections 1, 86, 89(1) and 89(4) of the Act.

[3]        Seemingly, these offences were committed simultaneously through one act or conduct on one occasion by the accused.

[4]        In the query addressed to the learned magistrate, I asked as to whether it was not a duplication of charges and whether the offences were committed during one action with a single intent? In her short response, the magistrate conceded and stated:

‘The offences were committed during one action with a single intention at the same occasion. It is indeed a splitting of charges’. I agree. It is rather a duplication of convictions.

[5]        I must caution, however, in this jurisdiction the courts are more concerned with duplication of convictions, which must be guarded against.[3]

[6]        It is clear from the answer to questions asked by the magistrate during the questioning in terms of s 112(1)(b) that the accused admitted the elements of negligent driving which could be the cause of the intoxicating liquor, namely the Whisky he consumed prior to him driving the motor-vehicle on the public road.

[7]        In the result, the following order is made:

(i)        The conviction of negligent driving in count 1 and the sentence of a fine of N$2000.00 or 6 months imprisonment in default of payment are confirmed.

(ii)       The conviction and sentence of count 2 are set aside.

----------------------------------

E P UNENGU

Acting Judge