REVIEW: S v CLOUD SHONIVA
CASE NO.: CR 02/2009
IN THE HIGH COURT OF NAMIBIA HELD
IN OSHAKATI
In the matter between:
THE STATE
and
CLOUD SHONIWA
(High court Review no 2016/2008)
CORAM: LIEBENBERT,AJ
et SHIVUTE,
AJ
Delivered on: 11 March 2009
REVIEW JUDGMENT
LIEBENBERG,
AJ:
[1] The accused appeared in the Ohangwena Magistrate’s Court
on a charge of conducting business in Namibia without a permit in
contravention of section 30 (1)(IV)(2)(B)(C) of the Immigration
Control Act, Act No. 7 of 1993 (the Act). The charge was drawn in
the following terms:
“In
that upon or about the 26th
day of September 2008 at or near Oshikango in the district of Eenhana
the accused did wrongfully and unlawfully conduct business in Namibia
without permit (sic) or authorisation to wit selling compact discs
(CD) at China Town, Oshikango contrary to the provisions of Act 7 of
1993.”
[2] After
I have read section 30 of the Act the following query was directed to
the magistrate in order to clarify the charge preferred against the
accused:
“The
accused
was charged under section 30(1)(iv)(2)(b)(c) of the Immigration
Control Act, 7 of 1993 for conducting business in Namibia without a
permit. Section 30(1) and (2) only refer to (1)’any
person to whom has been issued any permit under this Act’ and (2)
‘(i)f any permit has been issued under this Act’.
The accused was charged for conducting business without
a permit.
1.
Was
the accused in view of the abovementioned correctly charged?
If
answered in the affirmative, should the charge then not have read
that the accused contravened the provisions of the permit issued to
him, which element the magistrate should have dealt with during the
s112(1)(b) Act 51 of 1977 questioning?”
[3] In her reply the magistrate
conceded that the accused was not correctly charged and requested for
the conviction and sentence to be set aside.
[4] Before
dealing with provisions set out in section 30(1) it seems necessary
to comment on the sections referred to in the pre-amble which is
completely unrelated to the charge preferred against the accused i.e.
section 30 (1)(iv) prohibits
the entering into an agreement
with a person, who under section 30 (1)(d), is prohibited from
conducting a business under the permit issued to him; section 2 (b)
prohibits
the entering into an agreement
with a person to whom a permit was issued to reside or sojourn in a
particular part of Namibia outside that part for which the permit was
granted; and section (2)(c) prohibits
one to conduct any business with such a person whose
business is restricted to a particular part of Namibia.
Having regard to
the charge levelled against the accused i.e. conducting business in
Namibia without
a permit, it is clear that none of the sections referred to in the
pre-amble relate to the “charge” put to the accused and
therefore, should not have been referred to at all.
[5] This brings
me to the charge itself. From the manner in which the charge was
drawn it is clear that the State intended charging the accused for
“conducting business in Namibia without a permit” and for that
purpose relies on the prohibitions set out in section 30 (1) of the
Act.
[6]
Section 30(1) state the following:
“30.
(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……employment..;
(b)
………….;
(c)
………….;
(d)
conducting a business…;
(e)
receiving any training…;
(f)
………….,no
person shall -
…employ
or continue to employ such person;
………;
………;
…enter
into an agreement with such person for the conduct of a business…;
………;
… provide
training…to such person.”
[7]
Section 30(1) clearly does not refer to the conducting of business
in Namibia without
a permit or authorisation
for which the accused was charged. On the contrary, it refers to a
person to
whom a permit has been issued under this Act
subject to the conditions in that permit, and who, inter
alia
may not be employed; entered into an agreement with for the purpose
of conducting business, or receive training. The section does not
provide for the issuing of a permit or authorisation to conduct
business, but merely prohibits someone
else
to employ, enter into a contract with (in order to conduct business)
or to train the permit holder, as the permit was specifically issued
with these limitations therein. Thus, although the accused was
charged under section 30(1) it does not regulate the conducting of
business without a permit, and the “offence” for which the
accused was charged, does not constitute a crime under section 30 of
the Act. (See: S
v Nico Gotosa and 2 Others,
Case No CR 99/2008 delivered 22-08-2008)
The
accused therefore, was erroneously convicted. Had the prosecutor
followed the wording of section 30(1) when drawing the charge, he or
she would have realised that it was the wrong section to charge the
accused under and had the magistrate familiarised herself with the
provisions of the Act before the charge was put to the accused, an
injustice like the present would not have been committed against the
accused.
[8]
For these reasons we order as follows:
The conviction and
sentence of the accused are set aside.
The Registrar is directed to
forthwith issue a Warrant for the accused’s liberation from prison
in respect of that conviction and sentence.
______________________
LIEBENBERG, AJ
I concur.
______________________
SHIVUTE, AJ
S v Shoniwa (CR 02/2009) [2009] NAHC 31 (11 March 2009);