S v Garub (CR 27/2025) [2025] NAHCNLD 46 (15 April 2025)

Case Title:

The State v Ernest Garub

CR: 27/2025

High Court Ref No:

168/2025

Division of Court:

Northern Local Division

Heard before:

Honourable Lady Justice Salionga J et

Honourable Mr Justice Kesslau J

Delivered on:

15 April 2025

Neutral citation: S v Garub (CR 27/2025) [2025] NAHCNLD 46 (15 April 2025)

It is hereby ordered that:

1. The conviction and sentence are set aside.

2. The matter is remitted to the Tsumeb Magistrate’s Court to enter a plea of not guilty in terms of s 113 of the Criminal Procedure Act 51 of 1977 as amended, and bring this matter to its natural conclusion.

3. In the event of a subsequent conviction, the period already spent in custody by the accused, should be considered during sentencing.

Reasons for the order:

KESSLAU J ( concurring SALIONGA J )

[1] This review was received from the Tsumeb Magistrate’s Court in terms of section 302(1) of the Criminal Procedure Act 51 of 1977 as amended, (hereinafter referred to as the CPA).

[2] The accused pleaded guilty to a contravention of s 2(b) of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971: Possession of cannabis. The State alleged inter alia that the accused had 296 grams of cannabis and 2 grams of ‘fresh leaves’ of cannabis in his possession. The accused was convicted and sentenced to a fine of N$3 000 or in default of payment 9 month’s imprisonment.

[3] An affidavit in terms of s 212(4)(a) of the CPA was admitted into evidence indicating that after a scientific analyses, it was established that the substance was indeed cannabis. The certificate indicates that the total weight of the substance received by the laboratory was a little over 10 grams.

[4] The glaring disparity between the weight of cannabis allegedly found with the accused and those received by the laboratory for testing, raised an alarm in respect of the chain of custody of the substance. The magistrate was queried on the said inconsistency in weight.

[5] The magistrate in reply, explained that he overlooked the disparity in the weight and conceded that the conviction and sentence cannot stand.

[6] There might be a reason for the said difference in weight, however, that should be addressed with further evidence. The weight and value are integral parts of a charge of this nature and normally has a direct influence on the sentence imposed.

[7] In the result the following orders are made:

1. The conviction and sentence are set aside.

2. The matter is remitted to the Tsumeb Magistrate’s Court to enter a plea of not guilty in terms of s 113 of the Criminal Procedure Act 51 of 1977 as amended, and bring this matter to its natural conclusion.

3. In the event of a subsequent conviction, the period already spent in custody by the accused, should be considered during sentencing.

Judge(s) signature

Comments:

KESSLAU J

SALIONGA J