CASE NO.: CR 04/2012
IN THE HIGH COURT OF NAMIBIA
HELD AT OSHAKATI
In the matter between:
THE STATE
and
SHIDOLO WALDE
(HIGH COURT REVIEW CASE NO.: 26/2012)
CORAM: LIEBENBERG, J. et TOMMASI, J.
Delivered on: 21 February 2012
REVIEW JUDGMENT
LIEBENBERG, J.: [1] The accused appeared before the Magistrate’s Court, Oshakati and pleaded guilty on a charge of contravening s 72 (1)(n) of the Liquor Act1 in that he unlawfully sold beer. Although it is not alleged in the charge that the accused acted without being the lawful holder of a liquor licence issued to him in terms of the Act or in contravention with such licence – thereby omitting an essential ingredient from the charge, making it as such defective – the magistrate, when questioning the accused in terms of s 112 (1)(b) of the Criminal Procedure Act2, did elicit answers from the accused according to which he admitted that when selling the liquor, he was not the holder of a valid licence; thus, curing the defect in the charge. The conviction is in order and must be confirmed.
[2] However, there is a need for the prosecution to meticulously formulate charges against accused persons, especially where the trial court during questioning in terms of s 112 (1)(b) would be guided by the elements of the charge and the allegations contained therein. Slovenly or ill-considered charges could lead to a miscarriage of justice and should be avoided at all times.
[3] The wording of the sentence imposed by the court is not only clumsy, but the word “committed” was also omitted as a condition of suspension. Hence, the sentence is amended to read as follows:
‘N$2 000 or 12 months’ imprisonment of which N$1 000 or 6 months’ imprisonment is suspended for 2 years on condition that the accused is not convicted of the offence of selling liquor without a licence (c/s 72 (1)(n) of Act 6 of 1998), committed during the period of suspension.’
The sentence date remains the same.
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LIEBENBERG, J
I concur.
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TOMMASI, J