S v Tsuseb (CR 132/2023) [2023] NAHCMD 756 (21 November 2023)

Case Title:

The State v Kain Tsuseb

Case No:

CR 132/2023

High Court MD Special Review No:1904/2023

Division of Court:

High Court, Main Division

Coram: Liebenberg J et Shivute J

Delivered:

21 November 2023

Neutral citation: S v Tsuseb (CR 132/2023) [2023] NAHCMD 756 (21 November 2023)

ORDER:

1. The conviction and sentence on count 1 are confirmed.

2. The conviction on count 2 is confirmed.

3. The sentence on count 2 is set aside and substituted with the following: N$3000 or 3 months’ imprisonment.

REASONS:

LIEBENBERG J (SHIVUTE J concurring):

[1] This matter comes on special review from the magistrate’s court for the district of Otjiwarongo where the accused was arraigned on count 1: Hunting huntable game –Contravening s 30(1)(a) read with sections 1, 30(1)(b), 30(1)(c), 85, 89, 89A of the Nature Conservation Ordinance 4 of 1975 (the Ordinance), as amended – count 2: Capturing game by snare, trap – Contravening s 40(1)(a)(ii) read with sections 1, 40, 85,86,87, 89 and 89A of the Ordinance. The accused pleaded guilty and following conviction, was sentenced to N$16000 (Sixteen Thousand Namibia Dollars or two years’ imprisonment on count 1 and to N$3000 (Three Thousand Namibia Dollars) or ten months’ imprisonment on count 2. The review turns only on the sentence in respect of count 2.

[2] The magistrate, upon inspection of the court order and following the sentence proceedings, realised that the imprisonment term in respect of count 2 was not in line with the penalty clause of the Ordinance in as far as the maximum term of imprisonment that may be imposed for a first conviction was concerned. On account of it having been too late for the court a quo to correct its sentence in terms of s 298 of the Criminal Procedure Act 51 of 1977, the only recourse was to send the matter on special review for the sentence to be corrected.

[3] The provisions of s 87 of the Ordinance are clear and stipulate that on conviction of a contravention of s 40(1)(a)(ii), an accused shall be liable to a fine not exceeding N$6000 or to a period not exceeding six months’ imprisonment, or to both such fine and imprisonment. The alternative sentence imposed by the court a quo of 10 months’ imprisonment exceeds the maximum period of imprisonment that may be imposed and falls to be set aside.

[4] In the result, the following order is made:

1. The conviction and sentence on count 1 are confirmed.

2. The conviction on count 2 is confirmed.

3. The sentence on count 2 is set aside and substituted with the following: N$3000 or 3 months’ imprisonment.

J C LIEBENBERG

JUDGE

N N SHIVUTE

JUDGE