Court name
High Court Main Division
Case number
CRIMINAL 43 of 2013
Title

S v Marungu (CRIMINAL 43 of 2013) [2013] NAHCMD 230 (31 July 2013);

Media neutral citation
[2013] NAHCMD 230
Coram
Hoff J
Unengu AJ













NO REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 43/2013







In the matter between:







THE STATE



and



MUKUVE MICHAEL MARUNGU
....................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 760/2013











Neutral citation:
State v Marungu
(CR 43/2013) [2013] NAHCMD 230 (31 July 2013)







Coram: HOFF J and
UNENGU AJ







Delivered: 31
July 2013











Summary: In terms
of section 297(1)(b) of Act 51 of 1977 a sentence or part of a
sentence may be suspended for a period not exceeding 5 years –
This period of suspension must be recorded as it forms an integral
part of any suspended sentence.













ORDER





12 months imprisonment
wholly suspended for a period of 3 years on condition that the
accused pays the complainant, Irma Haingura the amount of N$2600 on
or before 31 May 2013. Payments to be made to the clerk of the court.









JUDGMENT









HOFF J (UNENGU AJ
concurring):







[1] The accused was
convicted on a charge of theft and sentenced as follows:







12 months
imprisonment wholly suspended on condition that accused pays
N$2600.00 to the clerk of the court on behalf of Irma Haingura on or
before 31 May 2013.’







[2] I directed a query to
the magistrate requesting an explanation regarding the period of
suspension.







[3] The magistrate
replied that the operation of the sentence was suspended until 31 May
2013 in order for the accused to compensate the complainant. This
however was not the aim of my query.







[4] Section 297(1) of the
Criminal Procedure Act 51 of 1977 reads as follows:







Where a
court convicts a person of any offence, other than offence in respect
of which any law prescribes a minimum sentence, the court may in its
discretion –




  1. postpone for a period not exceeding
    five years the passing of sentence and release the person concerned





  1. no one or more conditions, whether as
    to (aa) – (hh)





  1. pass sentence but order the operation
    of the whole or any part thereof be suspended for a period not
    exceeding five years on any condition referred to in paragraph
    (a)(i) which the court may specify in the order.’




[5] The period of
suspension is in the court’s discretion but may not be longer
than 5 years.







[6] This was the aim of
my query since there is no period of suspension in the sentence
imposed by the magistrate and the sentence imposed is defective to
the extent that it does not comply with the provisions of s
297(1)(b).







[7] The sentence was
further suspended on condition that the accused pays the amount
mentioned to the clerk of the court. This is strictly speaking
incorrect since the clerk of the court is not the complainant and
suffered no loss. The accused should have been ordered to pay the
amount to the complainant but the clerk of the court may be directed
to receive the monies.







[8] In the result the
sentence is amended to read as follows:







12 months imprisonment
wholly suspended for a period of 3 years on condition that the
accused pays the complainant, Irma Haingura the amount of N$2600 on
or before 31 May 2013. Payments to be made to the clerk of the court.



















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E P B HOFF



Judge























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E P UNENGU



Acting Judge