CASE  NO.: CR  41/2010

IN  THE  HIGH  COURT  OF  NAMIBIA

In the matter between:

THE  STATE

versus

NICANOR  FILLIPUS

[HIGH  COURT  REVIEW  CASE  NO.:  696/2010]

CORAM:    NDAUENDAPO, J  et  SIBOLEKA, J

Delivered on:  2010  SEPTEMBER  24
________________________________________________________________________

REVIEW  JUDGMENT

SIBOLEKA, J.:

[1]	The 27 year old accused appeared in the District Magistrate Court at Swakopmund on a charge of assault with intent to do grievous bodily harm.  He pleaded guilt and after questioning in terms of section 112(1)(b) of Act 51/77, he was sentenced as follows:
“Sentence:  Fine
Fine Amount:  N$3,000,00 (Three Thousand Namibian Dollars) of which N$1,500,00 (One Thousand Five Hundred Namibian Dollars) is suspended for a period of 5 (Five) years on the following conditions:
1.	 On the condition that the accused is not convicted of assault with the intent to do grievous bodily harm, committed during the period of suspension
Or
Sentence:  Imprisonment
Term:  12 (Twelve) Months imprisonment of which 6 (Six) Months is suspended for a period of 5 (Five) Years on the following conditions:
1.	On the condition that the accused is not convicted of assault with the intent to do grievous bodily harm, committed during the period of suspension.”

[2]	It is this Court’s considered view that the conviction is in accordance with justice and will be confirmed.  However, the way the sentence has been formulated, is not according to law and cannot be allowed to stand.  Because of the delay that may result, I did not find it appropriate to request reasons from the Magistrate.

[3]	In the result the Court makes the following order:
	The conviction is confirmed.
The sentence is altered to read as follows:
N$3.000,00 (three thousand Namibian Dollars) or 12 (twelve) months imprisonment of which N$1.500,00 (one thousand five hundred Namibian Dollars) or 6 (six) months are suspended for 5 (five) years on condition that the accused is not found guilty of assault or assault with intent to do grievous bodily harm, committed during the period of suspension.

[4]	The sentence is antedated to 05 March 2010.

___________________
SIBOLEKA, J

I agree.

______________________
NDAUENDAPO, J