S v Macula (CR 6/2025) [2025] NAHCNLD 6 (20 January 2025)

Case Title:

The State v Victorino Canda Macula

Case No:

CR 6/2025

High Court NLD Review No.:

829/2024

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

20 January 2025

Neutral citation: S v Macula (CR 6/2025) [2025] NAHCNLD 6 (20 January 2025)

It is hereby ordered that:

1. The conviction is set aside and substituted with a conviction of contravening s 10(3), read with s 7 of the Immigration Control Act 7 of 1993: Failure to present oneself to an Immigration Officer upon entry into Namibia.

2. The sentence is amended to read: ‘A fine of N$1000, alternatively, five months’ imprisonment and a further 24 months’ imprisonment suspended in total for a period of five years on the condition, that the accused is not convicted of contravening s 10(3) read with s 7 of the Immigration Control Act 7 of 1993- Failure to present oneself to an Immigration Officer upon entry into Namibia, committed during the period of suspension.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter, from the Magistrate’s court of Ohangwena, was submitted for review in terms of ss 302-304 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).

[2] The accused pleaded guilty to a charge of Contravening s 7 of the Immigration Control Act 7 of 1993 (the Act) - Failing to present himself to an immigration officer upon entering Namibia. After questioning the accused in terms of s 112(1)(b) of the CPA, he was convicted and sentenced to a fine of N$ 1000 alternatively five months’ imprisonment and a further 24 months’ imprisonment suspended in total for a period of five years on the condition, that the accused is not convicted of contravening s 7 of the Immigration Control Act 7 of 1993- Failing to present himself to an Immigration officer upon entry Namibia, committed during the period of suspension.

[3] The following query was send to the Magistrate:

‘1. Section 7 of the Immigration Control Act 7 of 1993 creates a duty on persons seeking to enter Namibia, to present themselves to an immigration officer before entering. Does the magistrate concede that the offence however, is created in s 10(3) of the said Act?

2. What would be the purpose of the added suspended sentence, where the accused is a foreigner who supposedly returns to their country? How many of these suspended sentences where put into operation in your court during the last year?’

[4] The magistrate, in her reply, rightly conceded that the offense is created in s 10(3) of the Act.¹ The accused was fully aware of the charge he was facing and will suffer no prejudice if such substitution is made to reflect the correct section in both the conviction and the condition of the suspended sentence. The Magistrate in her reply further noted that the suspended sentences seems to be effective as a deterrent to the offense.

[5] In the result, the following orders are made:

1. The conviction is set aside and substituted with a conviction of contravening s 10(3), read with s 7 of the Immigration Control Act 7 of 1993: Failure to present oneself to an Immigration Officer upon entry into Namibia.

2. The sentence is amended to read: ‘A fine of N$1000, alternatively, five months’ imprisonment and a further 24 months’ imprisonment suspended in total for a period of five years on the condition, that the accused is not convicted of contravening s 10(3) read with s 7 of the Immigration Control Act 7 of 1993- Failure to present oneself to an Immigration Officer upon entry into Namibia, committed during the period of suspension.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None