NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 42/2013

In the matter between:

THE STATE

and

ELINA MBIMBI
................................................................................................ACCUSED

(HIGH COURT MAIN DIVISION
REVIEW REF NO.: 671/2013)

Neutral citation:
State v Mbimbi (CR 42/2013) [2013] NAHCMD 209 (24 July
2013)

Coram: HOFF J and
UNENGU AJ

Delivered: 24 July
2013

Flynote: Criminal
Procedure – sentence – Case disposed of in terms of
section 112(1)a of the Criminal Procedure Act 51 of 1977 as amended –
sentence of six months imprisonment without an option of a fine –
incompetent – set aside.

Summary: The
accused pleaded guilty to a charge of common assault, convicted on
own plea of guilty following the provisions of section 112(1)a of the
Criminal Procedure Act 51 of 1977 as amended. The sentence of six
months direct imprisonment imposed by the magistrate is incompetent
and is set aside.

ORDER

1. 
   The conviction is in
   order and confirmed;

   
   

2. 
   The sentence of ‘six
   (6) months direct imprisonment wholly suspended for 3 years on
   condition that accused is not convicted of the offence of common
   assault within the period of suspension’, imposed by the
   magistrate, is set aside and substituted with the following
   sentence: The accused is sentenced to pay a fine of five hundred
   Namibian Dollars (N$500) or five (5) months imprisonment wholly
   suspended for a period of 3 years on the condition that accused is
   not found guilty of common assault committed during the period of
   suspension.

   
   

JUDGMENT

UNENGU AJ (HOFF J
concurring):

[1]
The accused was charged with and convicted of the offence of common
assault on her own plea of guilty following the provisions of section
112(1)(a) of the Criminal Procedure Act, 1977 (The CPA)¹,
and thereafter sentenced to six (6) months imprisonment wholly
suspended for 3 years on condition that the accused is not convicted
of the offence of common assault within (sic) the period of
suspension.

[2] The sentence is
incompetent, therefore, I requested the learned magistrate to give
reasons for the sentence imposed. The magistrate replied and
indicated that as the matter was disposed of in terms of section
112(1)(a) of the CPA, the sentence was supposed to be of a fine
coupled with a term of imprisonment for less than 3 months.

[3] The magistrate
conceded the omission on her part and requested that the sentence be
set aside. She is correct and I agree. However, the mistake made by
the learned magistrate is one of the many elementary mistakes
regularly made by magistrates, which, in my view, are attributable to
remissness on their part.

[4] Magistrates and
public prosecutors are supposed to know the provisions of section 112
of the CPA as amended, by heart to know in what circumstances to
apply section 112(1)(a) or section 112(1)(b).

[5] Hereunder, is a
reproduction of section 112(1) of the CPA:

‘112(1)
where an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted on the
charge and the prosecutor accepts that plea –

1. 
   The
   presiding judge, regional magistrate or magistrate may, if he or she
   is of the opinion that the offence does not merit punishment of
   imprisonment or any other form of detention without the option of a
   fine or of a fine exceeding N$6000, convict the accused in respect
   of the offence to which he or she has plead guilty on his or her
   plea of guilty only and –

   
   

1. 
   Impose
   any competent sentence, other than imprisonment or any other form
   of detention without the option of a fine or a fine exceeding N$6000
   or

   
   

2. 
   ……………
   

   
   

(emphasis
added)

2. 
   The
   section does not speak of a sentence of a fine coupled with a term
   of imprisonment for less than 3 months as stated by the magistrate
   in her response to the query. Where the magistrate got the term of
   imprisonment for less than 3 months, is only known to her. Section
   112(1)(a) of the Criminal Procedure Amendment Act, 2010²,
   does not provide for a term of imprisonment.

   
   

[6] I urge magistrates
who are not aware of the Criminal Procedure Amendment Act of 2010, to
obtain copies from those who have and study the amendments to the Act
by heart.

[7] As already pointed
out, the sentence imposed by the magistrate is incompetent, as it is
not in accordance with the provisions of section 112(1)(a) of the
CPA, as amended, so it cannot be allowed to stand.

[8] Section 304(1)(c)(iv)
of the CPA empowers this court to impose such a sentence as the
magistrate’s court ought to have imposed which, in my view, is
the course to follow in the present matter.

[9] In the result I make
the following order:

3. 
   The conviction is in
   order and confirmed;

   
   

4. 
   The sentence of ‘six
   (6) months direct imprisonment wholly suspended for 3 years on
   condition that accused is not convicted of the offence of common
   assault within the period of suspension’, imposed by the
   magistrate, is set aside and substituted with the following
   sentence: The accused is sentenced to pay a fine of five hundred
   Namibian Dollars (N$500) or five (5) months imprisonment wholly
   suspended for a period of 3 years on the condition that accused is
   not found guilty of common assault committed during the period of
   suspension.

   
   

----------------------------------

PE Unengu

Acting

----------------------------------

E Hoff

Judge