COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
NO.: CA 87/2015
14 MARCH 2016
the matter between:
citation: Benald v State (CA 87/2015)  NAHCMD 75 (14
SIBOLEKA J AND USIKU J
on: 01 February 2016
on: 14 March 2016
Criminal Procedure – Chapter 29 – Compensation and
restitution. The Court convicting the suspect may upon the
application of the injured person or of the Prosecutor acting on the
instructions of the injured person forthwith award compensation for
such damage or loss – taking into account the jurisdictional
sentencing requirement for that particular Court. My own
The appellants worked for Kariyamasan Association at the time
they stole N$59 000. The funds were from the Ministry of Environment
and Tourism intended to mitigate wild animals related crop losses
suffered by members.
The complainant did not make an application to the Public Prosecutor
for compensation, and neither did the appellants have the means to do
Section 300 does not allow the presiding Magistrate, Regional Court
Magistrate or Judge to mero motu grant an order for
No misdirection could be found on the part of the sentencing Court.
The appeal cannot be allowed to stand.
appeal against sentence is dismissed.
J, (USIKU J concurring):
At the hearing of the appeal Mr Ngara appeared for the two appellants
and Ms Shikerete for the respondent. The court appreciates both
counsel’s valuable arguments in this regard.
The appellants were convicted of theft in the amount of N$59 000 by
the Magistrate, Katima Mulilo on 28 July 2015 and sentenced each to:
Three (3) years imprisonment of which eighteen (18) months was
suspended for five years on condition that the accused is not
convicted of theft, committed during the period of suspension.
The appeal is only against sentence and the grounds are as follows:
The learned magistrate erred in that a sentence of 3 years
imprisonment of which 18 months is suspended is in respect of theft
shockingly inappropriate and startlingly heavier given the
circumstances of the case in particular but not limited to the age of
the appellant, that the appellant is a first offender, that he
pleaded guilty, that he is gainfully employed, that three years have
passed from the date the offence was committed, that he has to an
extent rehabilitated and is the sole bread winner that has expressed
remorse and that he offered to restitute the complainant.
The learned magistrate erred in that he attached undue weight to the
prevalence of the offence and to the deterrence of the offender and
potential offenders at the expense of reformative sentencing
considerations and other factors in favour of the appellant.
The learned magistrate erred in that he failed to attach weight to
and ignored the fact that the appellant offered to restitute the
complainant for his losses and not withstanding this offer failed to
apply his discretion judiciously in considering that he could still
order restitution in terms of section 297(a)(i) (aa) of the Criminal
Procedure Act, (Act 51 of 1977).
The sentence imposed is wholly unfair, heavier and completely
unwarranted in the circumstances AND is not consistent with sentences
passed for similar offences.”
The appellants’ contention is that section 297(i)(aa) of the
Criminal Procedure Act 51 of 1977 empowers the trial Court after
convicting an accused to forthwith mero motu grant a
compensation order. It is this failure by that Court, the appellant
finds to be a misdirection that entitles an interference with
sentence. The section reads:
Conditional or unconditional postponement or suspension of sentence,
and caution or remand.
Where a Court convicts a person of any offence other than an offence
in respect of which any law prescribes a minimum punishment, the
Court may in its discretion –
postpone for a period not exceeding five years the passing of
sentence and release the person concerned –
on one or more conditions, whether as to –
The above section is only used in instances where the trial Court
orders a postponement of the passing of sentence for a period of not
exceeding five years. Such a Court is then enjoined to evoke any of
the options provided therein of which compensation is one. This
section has therefore nothing to do with the granting of an order of
compensation to a convicted accused where the trial Court proceeds in
the normal flow of events to consider sentence there and then or
allows itself a short postponement for that purpose as its own
schedule may dictate.
Mr Ngara, counsel for the appellants contends that appellants offered
to compensate the complainant but the trial Court ignored that. Here
is how he explains the said offer in his address before sentence:
persons have indicated that given ample time they could be able to
make concerted efforts to compensate. That is not all your worship,
the law provides that if these accused person were to fail to
compensate then there are remedies still open to this Court to ensure
that the said compensation is fulfilled … whether they
have shown that they have got the means or not the words that they
are able to try and composate are coming from the accused
themselves.” My own underlining.
the above it is very clear that at the time of sentencing, the
appellants had no means and were not able to compensate the
complainant. The Public Prosecutor correctly stated that in his view
an order for compensation will not serve much purpose.
Compensation is covered in chapter 29 section 300 of the Criminal
Procedure Act 51 of 1977 as amended which states the following:
Court may award compensation where offence causes damage to or loss
of property. –
Where a person is convicted by a superior court, a regional court or
a magistrate’s court of an offence which has caused damage to
or loss of property (including money) belonging to some other person;
The Court in question may upon the application of the injured
person or of the prosecutor acting on the instructions of the injured
person, forthwith award the injured person compensation for such
damage or loss: provided that –
a regional Court or a Magistrate’s Court shall not make any
such award if the compensation applied for exceeds …
It is my considered view that the trial Court properly applied its
mind during the sentencing process. It took the appellants’
personal circumstances, the interests of society and the crime itself
in arriving at that sentence. The appellants argument that the
sentence is shockingly inappropriate and startlingly severe is not
The appeal can therefore not be allowed to stand.
In the result the appeal is dismissed.
AND 2ND APPELLANTS : Mr. H Ngara
by Directorate of Legal Aid
: Ms. F Shikerete
of the Prosecutor-General, Windhoek