CASE NO.: CR 47/2010
IN THE HIGH COURT OF NAMIBIA
In the matter between: 
THE STATE 
versus
BENNY NEKONGO AND BERENDT OWOSEB

[HIGH COURT REVIEW CASE NO.: 662/2010]

Delivered on: 2010 AUGUST 24

REVIEW JUDGMENT SIBOLEKA, J.:
[1]     The two 18 year old accused persons appeared in the District
Magistrate Court at Mariental on the following charges:

unlawfully and with the intention of inducing submission by force use violence or threats of violence against Jacobus Frey by stabbing him with a knife and did unlawfully and with intent to steal, take certain goods, to wit cash of N$ 150,00 socks (one pair) handkerchief valued (N$20,00) the property or in the lawful possession of the said Jacobus Frey.

Count 2: Attempted Murder

[2] They pleaded not guilty and at the close of the State's case accused no. 1 was discharged in terms of section 174 of Act 51/77. Accused no. 2 was convicted on both counts. This Court finds the conviction to be in accordance with justice and will not be tempered with.

[3]     Accused no. 2 was sentenced as follows: "Sentence:
The Court sentences you to three (3) years imprisonment, of which one (1) year is suspended for five (5) years on condition that you are not convicted of robbery, committed during the period of suspension. This is for count one only."

"Sentence for count 2 will be suspended, pending review."

[4] In my view, this Court has inherent jurisdiction to review a conviction that is not followed by a sentence.

The Court went further and stated that:

"Now if these be the powers possessed by this Court ... then it seems to me that they are ample to permit of the Court now correcting or setting aside the proceeding before the Magistrates Court although no sentence has been passed upon the accused by that Court."

In a covering letter explaining the reason for not sentencing the accused on the second count as well, the Magistrate stated:

The facts of this matter are briefly as follows: The incident took place at Takarania location in Mariental. On the day in question the complainant was on his way home from Ry en Kryshop at night. With the help of some light shining from the other side, he noticed accused no. 2 and another unknown person coming running towards him from behind. He was tackled and his legs were kicked underneath out as a result of which he fell down. While lying on the ground his socks and forty four dollars was taken away from him. During the encounter the complainant was kicked in the stomach, stabbed with a knife on the head, eye, mouth, twice on the chest, on the right and back of the neck, legs, and also twice on the buttocks.

[5] On the question whether there has been an improper splitting of charges, the Court found that the robbers had not been convicted or sentenced twice for the same offence.

[6] It is my considered view that it would have been appropriate for the Magistrate to sentence the accused on all counts he has been convicted and then send the matter for review.

[7] In the Courts' view it is a misdirection for the Court below to state that 'sentence on count no. 2, will be suspended pending review' because that sentence is also subject to review. The accused ought to have been sentenced on all counts on which he has been convicted before the matter is sent for review.

(a)	The conviction of accused no. 2 on both counts is confirmed.
(b)	The matter is remitted to the Magistrate for completion, that is, to sentence the accused on the second count as well.

SIBOLEKA, J

I agree

NDAUENDAPO, J