REPUBLIC OF NAMIBIA
CASE NO. CR 5/2009
THE STATE
VERSUS
1. SECILIA PETRUS
2. HILDE ABED
VAN NIEKERK J
et
MULLER J
29 May 2009
SUMMARY
CRIMINAL PROCEDURE
Charge sheet – accused
charged under section 70(g) of Liquor Act, 6 of 1998 in that they
allowed persons to consume liquor on licensed premises at time not
authorised by liquor licence – magistrate made mistake by
questioning accused in terms of section 112(1)(b) of Criminal
Procedure Act, 51 of 1977 on offence under section 70(f) of Liquor
Act – accused wrongly convicted of offence with which they were not
charged – convictions and sentences set aside and matter remitted
to magistrate
LIQUOR ACT, 6 OF 1998
Section 70(g) – words ‘any
person employed by or acting for or on behalf of a licensee or
manager’ constitute essential element of offence and should be
alleged in charge where intention is not to confine charge to
licensee or manager
REPUBLIC OF NAMIBIA
CASE NO. CR 5/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
1. SECILIA PETRUS
2. HILDE ABED
(HIGH COURT REVIEW REF. NO.
1865/08)
CORAM: VAN
NIEKERK, J et
MULLER, J
Delivered: 29 May 2009
REVIEW JUDGMENT
VAN NIEKERK, J: [1] The
two accused pleaded guilty to a charge that they contravened section
70(g) of the Liquor Act, 1998 (Act 6 of 1998). They were questioned
in terms of section 112(1)(b) of the Criminal Procedure Act, 1977
(Act 51 of 1977), and then convicted. The sentence imposed is a fine
of N$1000.00 or 6 months imprisonment wholly suspended for 5 years on
condition of good behaviour.
[2] The provisions of section
70(g) read as follows:
“A
licensee or manager, or any person employed by or acting for or on
behalf of a licensee or of a manager, who allows liquor to be
consumed on the licensed premises at a time or on a day when, or at a
place where, the consumption of such liquor is prohibited by this Act
or not authorized in terms of the conditions of the licence in
respect of such premises, shall be guilty of an offence.”
[3] The annexure to the charge
sheet to which the accused pleaded reads as follows:
“ALLOWING
LIQUOR TO BE CONSUMED ON THE LICENCED PREMISES AT A TIME OR IN DAY OR
AT A PLACE WHERE THE CONSUMPTION OF SUCH LIQUOR IS NOT AUTHORISED BY
THE ACT OR THE CONDITIONS OF THE LIQUOR LICENCE.
That
the accused is/are guilty of contravening Section 70 (g) read with
Sections 1, 72(1)(a)(b) and 73 of Act 6 of 1998.
In
that upon or about the 18 day of August 2008 and at or near Oshamale
Bar in the district of Oshakati the accused being a licencee or of a
manager or any person employed in licenced premises did wrongfully
and unlawfully allow liquor to wit beers to be consumed on a licenced
premises, operating under Oshamale Bar issued by the Regional Liquor
Licensing Committee on 17 March ’08 with conditions, privileges
and restrictions applicable in respect of the licence to wit Monday
to Saturday 10h00 – 2h00 Sundays 10h00 – 24hrs at 3hrs30 contrary
to the conditions of the said licence.”
[4] Although the charge
contains certain defects, to which I shall return, the gist of it is
clear – the accused are alleged to have allowed persons to consume
liquor on licensed premises at a time not authorized in terms of the
licence.
[5] During the section
112(1)(b) questioning the trial magistrate did not ask questions to
cover all the elements of the offence. Most importantly, he asked no
questions relating to the allowing of liquor to be consumed on the
premises. Instead, he asked the accused whether they sold liquor at
the time not authorized by the licence, which is an offence created
by section 70(f) of the Liquor Act and with which the accused were
not charged. The accused admitted selling the liquor and not that
they allowed its consumption. The prosecutor also did not alert the
magistrate to the mistake he made. As a result, the accused were
wrongly convicted, because the magistrate did not comply with section
112(1)(b) by failing to “question the accused with reference to the
alleged facts of the case in order to ascertain whether ……[they
admit] the allegations in the charge to which ……[they have]
pleaded guilty.”
[6] The defects in the charge
are partly the result of poor drafting and the fact that the
prosecutor did not take the obvious route of following the wording of
the Liquor Act as closely as possible. Consequently an important
element of the offence in not properly alleged. While the section
provides that the offence is established if the prohibited conduct is
committed by a licensee or manager, “or any person employed by or
acting for or on behalf of a licensee or of a manager”, the charge
sheet alleges that the offence was committed by “a licensee or of a
manager or any person employed in licensed premises”. Clearly the
word “of” does not make sense where it is placed and must be
deleted. What is more crucial however, is that the words “in
licensed premises” do not form part of the words in the section
and, by including them in the charge, a very different meaning to the
words contained in section 70(g) is conveyed. A person may be
employed in licensed premises, but not necessarily by the licensee or
manager as section 70(g) requires. It is clear that the words “any
person employed by or acting for or on behalf of a licensee or a
manager” constitute an essential element of the offence contained
in section 70(g) in circumstances where the offence is not committed
by the licensee or manager. As such this element should be alleged
in the charge where the intention is not to confine the charge to the
licensee or manager, as it would appear was the case in this matter.
[7] The charge further alleges
the licensed premises were “operating under Oshamale Bar issued by
Regional Liquor Licensing Committee on 17 March 2002.” This does
not make sense. Clearly the charge should have alleged that the
premises operated under a licence issued by the said Committee. The
rest of the charge is also not set out properly. One has to rely on
inference that the intention was to allege that the conditions of the
licence are such that liquor may not be allowed to be consumed on the
premises at a time which falls outside the periods 10h00-2h00 on
Mondays to Saturdays and 10h00-24h00 on Sundays.
[8] In my view the charge sheet
should have been drawn along the following lines:
“In
that on or about the 18th
day of August 2008 and at or near ………(town/village) in the
district of Oshakati the accused, being a licensee or manager of
licensed premises, or a person employed by or acting for or on behalf
of the licensee or manager of licensed premises, to wit Oshamafa Bar,
operating under licence no. …………issued by the Regional Liquor
Licensing Committee on 17 March 2008, did wrongfully and unlawfully
allow liquor to wit, beer, to be consumed on the said premises at a
time to wit, 3h00, being a time not authorized in terms of the
conditions of the licence in respect of such premises, which
conditions provide that liquor may not allowed to be consumed at a
time falling outside the following periods, to wit, 10h00-2h00 on
Mondays to Saturdays and 10h00-24h00 on Sundays.”
[9] Section 86(1) of the
Criminal Procedure Act provides that a court may in certain
circumstances before judgment order that the charge be amended. As I
intend setting aside the conviction and sentence and remitting the
matter to the trial court, I shall invoke the provisions of section
86(1), read with section 304(2)(c)(v) of the Criminal Procedure Act,
which provides that this Court may remit the matter to the
magistrate’s court with instructions to deal with any matter in
such manner as this Court may think fit.
[10] The result is as follows:
The conviction and sentence in
respect of each accused are set aside.
The matter is remitted to the
magistrate’s court with the instruction that the charge sheet
should be amended to read as set out in paragraph [8] of this
judgment, where after the provisions of section 112(1)(b) should be
complied with.
_______________________
VAN
NIEKERK, J
I agree.
_____________________
MULLER, J
S v Petrus and Another (CR 5/2009) [2009] NAHC 58 (29 May 2009);