REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Lukas Cornelius Eiseb | High Court Ref Case No: CR 105/2019 | |
Division of Court: Main Division | ||
Heard before: Honourable Justice Shivute et Honourable Justice Sibeya Acting | Delivered on: 12 December 2019 | |
Neutral citation: S v Eiseb (CR 105/2019) [2019] NAHCMD 547 (12 December 2019) | ||
The order:
A fine of N$3000 (Three Thousand Namibia Dollars) or 12 (Twelve) months’ imprisonment wholly suspended for a period of five (5) years on condition that the accused is not convicted of contravening section 27(1) of Ordinance 4 of 1975 as amended committed during the period of suspension. | ||
SIBEYA, AJ and SHIVUTE, J (concurring)
[1] This matter was submitted to this court for review in terms of section 302 of the Criminal Procedure Act 51 of 1977 (the CPA).
[2] The accused was charged and convicted of hunting of specially protected game, namely, a duiker in contravention of section 26(1) read with sections 1, 26(2), 26(3), 85, 87, 89 and 89(A) of Ordinance 4 of 1975 (the Ordinance)1. [3] A query was forwarded to the magistrate whether a duiker is a specially protected game and to provide the basis for her response. [4] The magistrate responded as follows: ‘A duiker is a protected game. Accused should have been charged for contravening section 29 of the Nature Conservation Ordinance 4 of 1975. The Honourable reviewing (sic) may set aside the conviction and sentence as the accused was convicted on the wrong charge.’ [5] The Ordinance2 defines a specially protected game as every species of game mentioned in Schedule 3 of the Ordinance. A protected game is defined as every species of game mentioned in schedule 43. A duiker is not amongst the animals listed in Schedule 3 but to the contrary Schedule 4 lists several animals, amongst which, is a duiker. [6] It follows that a duiker is a protected game and not a specially protected game in terms of the Ordinance. The accused was therefore wrongly charged as he should have been charged for contravening section 27(1)4. The magistrate therefore committed a misdirection when she convicted the accused on a wrong charge and the conviction can therefore not be allowed to stand. The magistrate correctly conceded to such misdirection. [7] This court on review has the authority to amend a charge sheet if the accused person will not be prejudiced thereby, as stated in S v Karenga5. In casu, the accused admitted all the elements of the offence of hunting a duiker as provided for in section 27(1) of the Ordinance and no prejudice is envisaged to be suffered by the accused if the charge sheet is amended. [8] In the result, the following order is made:
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O S SIBEYA ACTING JUDGE | N N SHIVUTE JUDGE |
1 The Nature Conservation Ordinance 4 of 1975.
2 Section 1 of the Ordinance.
3 Section 1 of the Ordinance.
4 The Ordinance.
5 2007 (1) NR 135 (HC) para 6.