REPUBLIC
OF NAMIBIA
CASE
NO.: CR 25/2011
IN
THE HIGH COURT OF NAMIBIA
In
the matter between: STATE
versus
MICHAEL
GAWASEB BEN AUSEB
(HIGH
COURT REVIEW CASE NO.: 1329/10)
CORAM: VAN
NIEKERK, J et
SIMPSON,
AJ
Delivered
on: 22 March 2011
REVIEW
JUDGMENT
VAN
NIEKERK, J
[1]
The two accused were convicted in the Gobabis magistrate's court
on a charge of contravening section 51 of the Nature Conservation
Ordinance, 1975 (Ord. 4of 1975), as amended, in that they were
unlawfully in possession of game meat.
[2]
Accused no. 1, who has three previous convictions dated 19 July 2006
for various offences under Ord. 4 of 1975, was sentenced to 3 months
imprisonment. In addition he was sentenced to a fine of N$250 or 3
months imprisonment which was wholly suspended for 5 years on the
usual condition of good behaviour. The second accused, who is a first
offender, was sentenced to 3 months imprisonment wholly suspended for
5 years on the abovementioned condition. In addition thereto he was
sentenced to N$250 or 3 months imprisonment.
[3]
The head of the magistrate's office Gobabis sent this matter on
review as
she
was of the view that the sentencing magistrate acted beyond his
jurisdiction
where he sentenced the accused. The Reviewing Judge requested
the
sentencing magistrate to respond to the following query:
"Does
the sentence of both accused not fall foul of the provisions of
section 278(1) of the Criminal Procedure Act, 51 of 1977?"
[4]
Section 287(1) reads as follows:
"(1)
Whenever a court convicts a person of any offence punishable by a
fine (whether with or without any other direct or alternative
punishment), it may, in imposing a fine upon such person, impose, as
a punishment alternative to such fine, a sentence of imprisonment of
any period within the limits of its jurisdiction: Provided that,
subject to the provisions of subsection (3), the period of such
alternative sentence of imprisonment shall not, either alone or
together with any period of imprisonment imposed as a direct
punishment, exceed the longest period of imprisonment prescribed by
any law as a punishment (whether direct or alternative) for such
offence".
[5]
The maximum sentence which may be imposed for a contravention of
Section 51 of Ord. 4 of 1975 is determined by the general penalty
provision in Section 87(a) of the Ordinance, which states that a
first offender in respect of the particular offence is liable to a
fine not exceeding N$250 or imprisonment for a period not exceeding
three months or to both such fine and such imprisonment.
[6]
The clear implication of Section 287(1) of Act 51 of 1977, read with
Section 87(a) of Ord. 4 of 1975, is that the total period of
imprisonment in this case may not exceed 3 months. The magistrate
concedes that he passed incompetent sentences in this case, as the
total period of imprisonment imposed on each accused is 6 months. His
proposal regarding the new sentences to be imposed is sensible and
shall be followed.
[7]
The result is as follows:
1.
The convictions are confirmed.
2.
The sentences are set aside and substituted with the following
sentences:
2..1.
Accused
no 1:
65 (sixty-five) days imprisonment. In addition thereto the accused is
sentenced to a fine of N$250 (two hundred and fifty Namibia Dollars)
or 25 (twenty-five) days imprisonment which is wholly suspended for 5
(five) years on condition that the accused not convicted of a
contravention of Section 51 of the Nature Conservation Ordinance,
1975 (Ordinance 4 of 1975), committed within the period of
suspension.
2.2.
Accused
no 2:
N$250 (two hundred and fifty Namibia Dollars) or 25 (twenty five days
imprisonment. In addition thereto 65 (sixty-five) days imprisonment
which is wholly suspended for 5 (five) years on condition the accused
is not convicted of a contravention of section 51 of the Nature
Conservation Ordinance, 1975 (Ordinance 4 of 1975), committed within
the period of suspension.
2.3.
The sentences are backdated to 14 July 2010.
VAN
NIEKERK, J
I
concur.
SIMPSON,
AJ
S v Gawaseb and Another (CR 25/2011) [2011] NAHC 86 (22 March 2011);