CASE NO.: CR 51/2010

IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE versus
GIVEN GAMGAESEB
[HIGH COURT REVIEW CASE NO.: 916/2010]

Delivered on: 2010 SEPTEMBER 24 
REVIEW JUDGMENT 
SIBOLEKA, J.:

[1] A 21 year old accused was convicted in the District Magistrate Court at Otavi for hunting a kudu valued at N$600,00 without a permit or authorization and was sentenced to: N$ 1200,00 or 6 months imprisonment.

[2] When the matter came before my brother Hinda, AJ, the following query was directed to the Magistrate:
"The Reviewing Judge remarks as follows:
The learned magistrate is requested to give his reasons for sentencing the accused to a fine of N$1200 in default of payment 6 months imprisonment.
Taking into consideration the Nature Conservation Ordinance 4 of 1975 "Section 87 General penalty

(a)	To a fine not exceeding two hundred and fifty rand or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment if such person has not previously been convicted of such offence or, in the opinion of the court, a similar offence in terms of the provisions of a repealed ordinance or the law of any province of the Republic of South Africa;
(b)	To a fine exceeding fine hundred rand or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. If such person has previously been convicted of an offence referred to in paragraph (a)."

[3]     The Magistrate's reply has been received and it reads:
Re: Reply by Magistrate on query by reviewing Judge in S v Given Gamgaeseb 07/2010
Primarily would I like to indicate that the reason for sentence in the abovementioned case is outlined in the original and typed record (see page 2 of the typed record). However, in amplification of the said reasons did I also took into cognizance the fact that the value of the said kudu being hunted and killed by the accused was N$600,00. Furthermore was the accused also employed at the very same farm where he killed the said kudu.

As such am I as the concerned magistrate of the view that the said sentence of N$ 1200,00 in default of payment 6 months imprisonment fall within the boundaries of the express penalty provision applicable to the offence for which the accused had been convicted of.

However, if the honourable reviewing judge views the said sentence as incorrect and inappropriate in view of the circumstances would I as the concerned Magistrate, with all respect stand to be guided and advised accordingly in this regard."

[4] After carefully looking at the Magistrate's reply, this Court is of the view that the imposed sentence is in accordance with justice as it falls within the ambit of section 11(c) of the Nature Conservation Amendment Act, Act no. 27 of 1986.

[5]     In the result:

(a) The conviction and sentence are confirmed.

	I agree