State v Festus (CRIMINAL 7 of 2020) [2020] NAHCNLD 14 (30 January 2020)

Case Title:

The State v Fillipus Natangwe Festus

CR No.: 07/2020

Case No.: 803/2019

Division of Court:

Northern Local Division

Heard before:

Honourable Mr. Justice January J et

Honourable Ms. Justice Salionga J

Delivered on:

30 January 2020

Neutral citation: S v Festus (CR 07/2020) [2020] NAHCNLD 14 (30 January 2020)

The order:

1. The conviction of contravening section 82(1) (a) read with sections 1, 86, 89(1) and 89(4) of the Road Traffic and Transportation Act, Act 22 of 1999 – Driving with an excessive blood-alcohol level is set aside and substituted with a conviction of section 82(5) read with sections 1, 86, 89(1) and 89(4) of the Road Traffic and Transportation Act, Act 22 of 1999.

2. The sentence is confirmed but amended to read: N$6000 or ten months imprisonment plus a further six months imprisonment which is wholly suspended for a period of five years on condition that the accused is not convicted of a contravention of sections 82(1), 82(2) or 82(5) of Act 22 of 1999; 82(1)-Driving under the influence of intoxicating liquor or a drug having a narcotic effect, 82(2)-Driving with an excessive blood/alcohol level or 82(5)-Driving with an excessive blood/breathalyser level committed during the period of suspension.

Reasons for the order:

JANUARY J (SALIONGA J concurring):

[1] The accused was charged with the wrong section of the Road Traffic and Transportation Act, Act 22 of 1999. Section 82(1) (b) relates to driving under the influence of intoxicating liquor or a drug having a narcotic effect and not driving with an excessive blood-alcohol level.

[2] As a general rule, an accused should not be allowed to escape conviction only as a result of the prosecution's attachment of an incorrect 'label' to a statutory offence or an erroneous reference to the applicable statutory provision which has allegedly been contravened.

'(The) principle is that, if the body of the charge is clear and unambiguous in its description of the act alleged against the accused, e.g., where the offence is a statutory and not a common-law offence and the offence is correctly described in the actual terms of the statute, the attaching of a wrong label to the offence or an error made in quoting in the charge the statute or statutory regulation alleged to have been contravened, may be regarded as an error not fatal to the charge. Hence, in circumstances such as those, an error of that nature may be corrected on review, if the Court is satisfied that the conviction is in accordance with justice, or, on appeal, if it is satisfied that no failure of justice has, in fact, resulted therefrom. (Per Henochsberg J in R v Ngcobo; R v Sibega 1957 (1) SA 377 (N) at 381B - D.).’¹

[3] The condition of suspension is incomplete in the condition; The words ‘committed during the period of suspension’ was omitted. ²

H C JANUARY

JUDGE

J T SALIONGA

JUDGE