CASE NO.: CR: 18/2009
IN
THE HIGH COURT OF NAMIBIA HELD
IN OSHAKATI
In the matter between:
THE STATE
and
SIMON MWANDINGI SHITUKU
(HIGH
COURT CASE NO.:91/2009)
CORAM:
SHIVUTE, A.J et
LIEBENBERG, A.J
Delivered on: 01 June 2009
REVIEW
JUDGMENT:
SHIVUTE, A.J.:
[1] The accused was charged in the Magistrate’s court Ondangwa
with two counts namely: first count Assault and a second count of
Assault with intent to do grievous bodily harm. He was convicted on
both charges and sentenced to N$3000.00 (three thousand N$) or in
default of payment 3 (three months) imprisonment for the assault and
to a fine of N$1000.00 (one thousand N$) or in default of payment of
6 (six) months imprisonment of which N$500.00 (five hundred N$) or 2
(two) months are suspended for a period of five (5) years on
condition accused is not convicted of any offence of which violence
is an element committed within the period of suspension.
Both convictions are in order.
[2] A query was directed to the
magistrate as follows:
Does section 112 (1) (a) of Act 51 of
1977 permit the Court to impose a fine of N$3000.00?
The magistrate responded to the query
as follows:
“My
answer to the above mentioned is No. It must have been a typing error
on the typist side and I apologize for that. Page 4 of the original
case record reflects in my handwriting that the fine imposed in
relation to count, which is now in question, reflects N$300.00 (three
hundred N$) or in default of payment 3(three) months imprisonment.
Thus according to page 4 of the record, was the accused never
sentenced to N$3000.00 but N$300.00 (three hundred N$).
[3] This Court is in agreement with
the trial magistrate that section 112 (1) (a) of Act 51 of 1977 does
not permit the Court to impose a fine of N$3000.00.
[4] Section 112 (1) (a) Act 51 of
1977 authorizes a presiding officer to convict an accused on his bare
plea of guilty in circumstances where such presiding officer is of
the opinion that the offence in question does not merit certain kinds
of punishment or a fine not exceeding N$300.00. Therefore the
imposition of N$3000.00 fine is not permitted by the above mentioned
section.
[5] The trial magistrate indicated
that N$3000.00 fine was reflected as a result of a “typing error by
the typist, as the original case record in her handwriting reflects
that the fine imposed is N$300.00”.
[6] What the magistrate said is true,
but it is unfortunate that the J4 which is the review covering sheet
reflects a different position which was signed by the magistrate. The
magistrate by signing the review covering sheet certifies that all
the particulars including the conviction and sentence are correct.
[7] I must point out that the
magistrate by just signing without having proper attention to what
she is affixing her signature has acted negligently. Therefore it is
very important for the magistrate to pay particular attention to what
she is signing for.
[8] In the result the following order
is made:
1. Both convictions are confirmed
2. The sentence in respect of count 1
is amended to read:
N$300.00 fine (three hundred N$) or in
default of payment 3 (three) months imprisonment.
The sentence on the second count is
confirmed.
_________________________
(Signed)
SHIVUTE, A.J.
I agree
_________________________
(Signed)
LIEBENBERG, A.J
Shikutu v S (CR 18/2009) [2009] NAHC 61 (01 June 2009);