S v Gotosa (Case No.: CR 99/08 ) [2008] NAHC 95 (22 August 2008);

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Full judgment
CASE NO

REPUBLIC OF NAMIBIA

CASE NO.: CR 99/08

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

versus

1. NICO GOTOSA

2. LAST MAPFUMA

3. GIFT MUZA

(HIGH COURT REVIEW CASE NO.: 10/08)

CORAM: VAN NIEKERK, et MULLER, JJ

Delivered on: 2008-08-22

____________________________________________________________________

REVIEW JUDGMENT:

VAN NIEKERK, J:

[1] The three accused were convicted of various contraventions of the Immigration Act, 7 of 1993. Accused no. 3 was charged with a contravention of section 12(4) of Act 7 of 1993 (count 3). The conviction and sentence are in order. This judgment concerns the convictions of accused no. 1 and 2. They were both charged on count 1 as follows:



"CONDUCTING BUSINESS OR CARRYING ON A PROFESSION OR OCCUPATION



That the accused is/are guilty of contravening section (1)(d) Act 7 of 1993 read with section 30(1)(iv), 30(2)(b), 30(3)(e), 30(4) Act 7 of 1993, Immigration Act.


In that upon or about 31 October 2007 and at or near Keetmanshoop in the district Keetmanshoop, the accused to whom has been issued a permit under this Act, as the case may be is prohibited by reason of any purpose of which such permit was issued or any condition stated in such permit, did wrongfully and unlawfully conduct a business in contravention of the permit issued to him or without a valid permit to conduct business in Namibia to wit selling hats, handbags, socks and shoes."



[2] Although the charge, quoted here as it appears on the annexure to the charge sheet, alleges that the accused are guilty of a contravention of “section (1)(d)”, it is clear when read in context that it should have read “section 30(1)(d)”. This much is confirmed when one has regard to the charge sheet itself, which expressly refers to section 30 of Act 7 of 1993.



[3] Accused no. 2 was also charged and convicted on count 2, which reads as follows:


"OVERSTAYING IN NAMIBIA


That the accused is guilty of Contravening Section 29(5) of the Imigration Act 7 of 1993.


In that upon or about the 31 day of October 2007 and at or near Keetmanshoop and in the district of Keetmanshoop the accused a Zimbabwean citizen was issued with a visitor's entry permit on the 25 September 2007 that expired on the 10 October 2007. And the accused continue to say in Namibia after the expiration of the visitors entry Permit and thus the accused overstayed in Namibia for 21 days."




[4] On review I posed the following questions to the learned magistrate:

"1. Does section 30 of Act 7 of 1993 create the offence contended for by the charge as framed in count 1? Should accused no. 1 and 2 not have been charged with a contravention of section 29(5) of Act 7 of 1993 instead?


2. If the answer to the second question posed in paragraph 1 is "Yes" should all the allegations against accused no. 2 not have been contained in a single charge of contravening section 29(5) of Act 7 of 1993? In other words, was there not, in effect a multiplication of convictions in respect of accused no. 2?"


[5] I also referred the same questions to the Prosecutor-General for an opinion in order to assist the Court in the matter. I thank Ms Jacobs of that Office for the opinion provided. The opinion and the response of the magistrate are to the same effect. In regard to the two questions posed in paragraph 1 of the query, they are of the view that section 30 does create the offence contended for by the charge as framed in count 1 and that accused 1 and 2 should not have been charged with a contravention of section 29(5) of the Act instead. For reasons to follow I do not agree with the views expressed in the opinion or the magistrate's reply.


[6] It is necessary to set out the relevant sections in detail. Sections 29(1), (5) and (6) and section 30 of the Act read as follows:


29 Application for visitors entry permits

(1) An immigration officer may, on the application of any person who has complied with all the relevant requirements of this Act, issue to such person a visitor's entry permit -

(a) to enter Namibia or any particular part of Namibia and to sojourn temporarily therein;

(b) if he or she is already in Namibia to sojourn temporarily in Namibia or any particular part of Namibia,

for such purposes and during such period, not exceeding 12 months, as may be determined by the immigration officer and subject to such conditions as the immigration officer may impose, and stated in the said permit.


(2), (3), (4)…………………………………………………………………..

(5) Any person to whom a visitor's entry permit was issued under subsection (1) and who remains in Namibia after the expiration of the period or extended period for which, or acts in conflict with the purpose for which, that permit was issued, or contravenes or fails to comply with any condition subject to which it was issued, shall be guilty of an offence and on conviction be liable to a fine not exceeding R12 000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, and may be dealt with under Part VI as a prohibited immigrant.

(6) The provisions of this section shall not be construed as authorizing any person to whom a visitor's entry permit has been issued (whether or not as a purpose for which or a condition subject to which such permit has been issued), to enter into or to be in any employment or to conduct any business or to carry on any profession or occupation or to receive any training, instruction or education in any training or educational institution, in Namibia.


30 Prohibitions in respect of certain persons to enter into, or to be in, employment or to conduct a business, profession or occupation, or to receive any training, instruction or education in any training or educational institution or to harbour such persons in Namibia.


(1) If any person to whom has been issued any permit under this Act, as the case may be, is prohibited by reason of any purpose for which such permit was issued under this Act or any condition stated in such permit from -

(a) entering into or being in the employment of any other person;

(b) entering into or being in the employment of any other person, except a person specified in such permit;

(c) entering into or being in the employment of any other person in any capacity except a capacity specified in such permit or for a period longer than the period so specified;

(d) conducting a business or carrying on a profession or occupation;

(e) receiving any training, instruction or education at any institution;

(f) receiving any training, instruction or education at any institution, except an institution specified in such permit,

no person shall -

(i) in the case of a prohibition referred to in paragraph (a), employ or continue to employ such person;

(ii) in the case of a prohibition referred to in paragraph (b), employ or continue to employ such person, unless he or she is the person specified in the permit;

(iii) in the case of a prohibition referred to in paragraph (c), employ or continue to employ such person in any capacity except the capacity specified in the permit or for a period longer than the period so specified;

(iv) in the case of a prohibition referred to in paragraph (d), enter into an agreement with such person for the conduct of a business or the carrying on of a profession or occupation or conduct a business or carry on a profession or occupation in co-operation with such person;

(v) in the case of a prohibition referred to in paragraph (e), provide training, instruction or education to such person or permit him or her to receive training, instruction or education;

(vi) in the case of a prohibition referred to in paragraph (f), provide training, instruction or education to such person or permit him or her to receive training, instruction or education at an institution, unless it is at the institution specified in the permit.

(2) If any permit has been issued under this Act, as the case may be, to a person permitting him or her to reside or sojourn in any particular part of Namibia, no person shall -

(a) employ or continue to employ such person in any part of Namibia except that particular part;

(b) enter into an agreement with such person for the conduct of a business or the carrying on of a profession or occupation in any part of Namibia except that particular part;

(c) conduct any business or carry on any profession or occupation in co-operation with such person in any part of Namibia except that particular part;

(d) assist, enable or in any manner help such person to conduct a business or carry on a profession or occupation in any part of Namibia except that particular part;

(e) do anything for or on behalf of such person in connection with a business or carry on a profession or occupation in any part of Namibia except that particular part;

(f) harbour such person in any part of Namibia except that particular part;

(g) let or sell or in any manner make available to such person immovable property in any part of Namibia except that particular part; or

(h) provide training, instruction or education to such person or permitting him or her to receive training, instruction or education in any part of Namibia except that particular part.

(3) No person shall -

(a) employ or continue to employ any person who is in Namibia in contravention of the provisions of this Act or any condition imposed by or under this Act;

(b) provide training, instruction or education to such person or allow him or her to receive training, instruction or education;

(c) issue to such person a licence or other authorization to conduct any business or to carry on any profession or occupation;

(d) enter into an agreement with such person for the conduct of any business or the carrying on of any profession or occupation;

(e) conduct any business or carry on any profession or occupation in co-operation with such person;

(f) assist or in any manner enable such person to conduct any business or to carry on any profession or occupation;

(g) obtain a licence or other authority for or on behalf of such person to conduct any business or to carry on any profession or occupation;

(h) do anything for or on behalf of such person in connection with his or her business or profession or occupation;

(i) harbour any such person; or

(j) let or sell or in any manner make available any immovable property in Namibia to any such person.

(4) Any person who contravenes the provisions of subsection (1), (2) or (3) shall be guilty of an offence and on conviction be liable to a fine not exceeding R 12 000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

(5) If a person is charged with a contravention of subsection (1)(i) or (v), (2)(a) or (h) or (3)(a) or (b), such person may -

(a) in the case of a charge of a contravention of subsection (1)(i) or (v), be found guilty of a contravention of subsection (1)(iv), if such be the facts proved;

(b) in the case of a charge of a contravention of subsection (2)(a) or (h), be found guilty of a contravention of subsection (2)(b), (c), (d), (e), (f) or (g), if such be the facts proved;

(c) in the case of a charge of a contravention of subsection (3)(a) or (b), be found guilty of a contravention of subsection (3)(c), (d), (e), (f) or (h), if such be the facts proved.

(6) (a) A person referred to in paragraph (a) of subsection (3) may not obtain a licence or other authority to conduct a business or carry on a profession or occupation.

(b) A licence or other authority obtained in contravention of the provisions of paragraph (a) shall be null and void.”


(The underlining is mine)

[7] In the learned Prosecutor-General’s opinion the following is stated in regard to section 30:

Section 30(1) of Act 7 of 1993 reads as follows: ‘(1) If any person to whom has been issued any permit under this Act, as the case may be, is prohibited by reason of any purpose for which such permit was issued under this Act or any condition stated in such permit from -

(a) ………………………………

(b) ………………………………

(c) ………………………………

(d) conducting a business or carrying on a profession or occupation;

(e) ………………………………


(f) ………………………………


Section 30(4) states: ‘Any person who contravenes the provisions of subsection (1), (2) or (3) shall be guilty of an offence and on conviction be liable to a fine not exceeding R 12 000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.


It is my respectful opinion that Section 30 does create the offence contended for by the charge as framed in count 1. Section 30 contains prohibitions in respect of certain persons to enter into, or to be in employment or to conduct a business, profession or occupation, or to receive any training, instruction or education in any training or educational institution, or to harbour such persons in Namibia.”



[8] The learned magistrate states:


“………Section 30(1)(d) read with Section 30(4) of Act 7 of 1993 does create the offence contended for by the charge in Count one. If one look at the heading of ……Section 30 of Act 7 of 1993 it is clear that the intention of that Section is to prohibit certain people like the accused to Conduct a business in Namibia Contrary to their visitor permit. Therefore accused 1 and 2 whom a visitor’s entry permit was issued fir the purpose of visiting acted in conflict with the purpose for which, that permit was issued by engaging themselves in business of selling, bags, hats etc.”



[9] In my respectful view the Prosecutor-General and the magistrate err in their reading of section 30. Their reading overlooks the first word of section 30(1) namely “if”, the words “no person shall” occurring between subsections (1)(a) – (f) and subsections (1)(i) – (vi), and the words “with such person” in subsection (1)(iv). Section 30(1) does not criminalize the conduct of the permit holder. It criminalizes the conduct of a person who engages in certain activities with the permit holder if the permit, or the purpose for which it was issued, prohibits the permit holder from engaging in those activities. Although section 30(1) refers to the prohibitions placed elsewhere on the permit holder, section 30 itself does not create a prohibition in relation to the permit holder. This is clear from the introductory words of section 30(1) which commence with the word “if”. For example, if a permit holder is prohibited by the permit, or the purpose for which it was issued, to conduct a business, section 30(1)(iv), read with sections 30(1)(d) and (4), makes it an offence for another person to enter into an agreement with the permit holder for the conduct of business. The section does not make it an offence for the permit holder to do so.


[10] If the permit holder acts contrary to any of the prohibitions mentioned in the introductory part of section 30(1), (s)he may be charged with a contravention of that particular section in the Act which covers the kind of permit with which (s)he was issued. This may be illustrated by yet another example: if the permit holder was issued with a visitor's entry permit in terms of section 29, but instead conducts a business in conflict with the purpose for which the permit was issued, (s)he may be charged with a contravention of section 29(5), read with section 29(6). In my view this is how accused nos. 1 and 2 should have been charged.


[11] The charge in relation to count 1 also contain references to sections 30(2)(b) and 30(3)(e). This does not take the matter any further, because they also do not create offences with which the permit holder may be charged.


[12] The question arises whether the conviction on count 1 of a contravention of section 30 should be substituted with a conviction under section 29(5), read with section 29(6), as it is clear that accused no. 1 and 2 did commit an offence by conducting a business, as they indeed admitted during the section 112(1)(b) questioning. Although the charge in count 1 as framed is clumsily worded, it can be made out that the accused were issued with permits under the Act; that they were prohibited by reason of the purpose of the permits or a condition in the permits to conduct a business in Namibia and that they contravened this prohibition by unlawfully selling hats, handbags, etc. Although there is not an express reference to the fact that the permits were visitor’s permits, both accused admitted that they presented themselves to immigration officers to obtain permits to enter Namibia and that their purpose was to visit. They admitted that they did not obtain permits allowing them to conduct business in Namibia.


[13] Section 84 of the Criminal Procedure Act, 51 of 1977, which deals with the essentials of a charge, states in subsection (1) that “a charge shall set forth the relevant offence in such manner…………as may be reasonably sufficient to inform the accused of the nature of the charge.” Subsection (3) states that in “criminal proceedings the description of any statutory offence in the words of the law creating the offence, or similar words, shall be sufficient.” The charge should also include the number of the statutory provision and the particular section in which the offence is created (Du Toit and others, Commentary on the Criminal Procedure Act 14-15 [Service 35, 2006]). However, where there is a mistake or omission in the charge, e.g. a reference to the wrong section of a statute, or no reference at all, this may be overlooked provided that the particulars of the contravention remain clear or the nature of the charge is set out with sufficient clarity. (R v Kharibe 1958 (1) SA 191 (T) 193A). However, it must be noted that it is required of prosecutors to take care to draw proper charge sheets.


[14] In my view there would be no prejudice for accused no. 1 if the conviction on count 1 of a contravention of section 30(1)(d) is substituted with a conviction on a contravention of section 29(5), read with section 29(6) of the Act. However, the same cannot be said in relation to accused no. 2, as he was also charged and convicted on count 2 with a contravention of section 29(5). The particulars of the charge are that on the same day he remained in Namibia after the expiration of his visitor’s entry permit. Section 29(5) may be contravened in several ways namely by staying on after the expiration of the permit, by acting in conflict to the purpose for which the permit was issued and by contravening or failing to comply with any condition subject to which it was issued. Where a person is charged that he acted contrary to the permit in more than one way on the same day he should be charged with one count setting out all the ways in which he acted contrary to the permit. In this manner a duplication of convictions is avoided.


[15] In conclusion, therefore, the following order is made:


  1. In respect of accused no. 1, the conviction on count 1 of a contravention of section 30 of Act 7 of 1993 is substituted with a conviction of a contravention of section 29(5), read with section 29(6) of act 7 of 1993. The sentence on count 1 is confirmed.


  1. In respect of accused no. 2, the conviction and the sentence on count 1 are set aside.


  1. In respect of accused no. 2, the conviction and the sentence on count 2 are confirmed.


  1. In respect of accused no. 3, the conviction and the sentence on count 3 are confirmed.



_____________________________

VAN NIEKERK, J




I agree.





________________

MULLER, J

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