CASE NO.: CR 12/2011

IN THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI
In the matter between:
THE STATE
and
FERNANDO KATITI

REVIEW JUDGMENT

That the accused is guilty of contravening section 12 (4) read with section 1 and 12 (1) of the Immigration Act (Act 7 of1993).

1)	
2)	. . .

2009 (1) NR 352 (HC).

"Essentials of charge

[6] Besides the requirement that there should have been a preceding refusal by an immigration officer to allow the person 'to enter Namibia in terms of s 12 (1) of the Act, it should also be borne in mind that a person who has proved that he or she is a Namibian citizen or legally domiciled in Namibia, cannot legally be refused entry under s 12 (1). Where these allegations - essentials of the offence created by s 12 (4) - were not contained in the charge preferred against the accused, the charge did not disclose an offence at all.
[7] Unlike the situation in the aforementioned cases where the accused persons were questioned in terms of s 112 (1)(b) on their pleas of guilty, in this instance, the case was finalised in terms of s 112 (1)(a). This, in my view, underscores the importance for judicial officers to exercise their judicial discretion when they decide to finalise cases in terms of s 112 (1)(a); instead of invoking the provisions of s 112 (1)(b) which requires the process of questioning, thereby protecting the accused from the adverse consequences of an ill-considered plea of guilty.

[8] In the result, the conviction and sentence are set aside.

LIEBENBERG, J

I concur.

TOMMASI, J