Court name
High Court Main Division
Case number
CRIMINAL 62 of 2013
Title

S v Katema (CRIMINAL 62 of 2013) [2013] NAHCMD 293 (18 October 2013);

Media neutral citation
[2013] NAHCMD 293
Coram
Hoff J
Miller AJ













REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 62/2013







In the matter between:







THE STATE



and



MUYENGA GOTFRIED
KATEMA
..................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 815/2013)







Neutral citation:
State v Katema
(CR 62/2013) [2013] NAHCMD 293 (18 October 2013)







Coram: HOFF J and
MILLER AJ



Delivered: 18
October 2013







Summary: A
sentence of ten years imprisonment was imposed in respect of an
accused who had been convicted of the unlawful possession of a
machine gun in contravention of the provisions of s 29(1)(a)
of the Arms and Ammunition Act 7 of 1996.







This court had in the
case of S v Likuwa 1999 NR held that the minimum sentence of
ten years imprisonment prescribed by the unlawful possession of a
machine gun was an inhuman or cruel punishment and in conflict with
Article 8(2)(b) of the Namibian Constitution and this minimum
sentence was struck out.



The minimum sentence of
ten years imprisonment appears on the charge sheet used by the
prosecutor more than 14 years after it had been struck out –
The Prosecutor-General should take remedial measures in this regard.







Sentence of ten years
imprisonment set aside and substituted with appropriate sentence.









ORDER





(a) The conviction is
confirmed.







(b) The sentence of ten
years imprisonment is set aside and substituted with the following
sentence:







three years imprisonment
of which one year imprisonment is suspended for a period of five
years on condition the accused is not convicted of contravening s
29(1)(a) of Act 7 of 1996, committed during the period of
suspension.







(c) The
Prosecutor-General is requested to ascertain whether the charge sheet
referred to in this case was used only in this case or whether charge
sheets of this format are being used generally by prosecutors and if
necessary, to take remedial measures.









JUDGMENT









HOFF J (MILLER AJ
concurring):







[1] The accused was
convicted in the Rundu magistrate’s court for the possession of
a machine gun (AK 47) in contravention of the provisions of s
29(1)(a) of the Arms and Ammunition Act 7 of 1996 as amended,
and sentenced to ten years imprisonment.



[2] I directed a query to
the magistrate regarding the sentence imposed and whether suspending
part of the sentence had not been considered in view of the fact that
the accused was a first offender.







[3] The magistrate in her
reply inter alia stated that the accused cannot be permitted
to escape the minimum sentence since the accused ‘could not
prove extenuating circumstances arising out of the commission of the
offence’. I was further referred to the judgment of this court
in S v Likuwa 1999 NR 151 where this court held that a minimum
sentence of ten years imprisonment is grossly disproportionate in
view of the very wide net cast by s 29(1)(a) of Act 7 of 1996.







[4] The magistrate
further admitted that the sentence she had imposed was ‘inhuman
or cruel punishment’ and suggested that a period of seven years
imprisonment be suspended in which event the accused would be
required to serve three years imprisonment.







[5] I must at stage state
that the following appears at the bottom of the charge sheet:







Penalty
clause

(see sec. 38(2)(a): . . . to imprisonment for a period not less than
10, but not exceeding 25 years.’







[6] Hannah J in dealing
with a similar case in
Likuwa found
that the minimum sentence prescribed by s 38(2)
(a)
of the Arms and Ammunition Act 7 of 1996 for the
possession of a machine gun in contravention of s 29(1)
(a)
was (for the reasons mentioned) an inhuman or cruel
punishment in conflict with Article 8(2)
(b)
of the Namibian Constitution resulting in striking the
words ‘of not less than 10 years, but’ from s 38(2)
(a).







[7] The AK 47 found in
possession of the accused person in the present matter was wrapped in
plastic and hidden in pillowcase in his bedroom. The explanation
given to the police by the accused person was that he had received
the weapon from his brother who lived in Tsumeb. The accused was
however unable to provide the name or contact details of his brother
to the police. Eleven rounds of ammunition were also found in the
pillowcase. When he was questioned by the magistrate what he was
doing with the fire-arm the accused replied: ‘Nothing’.







[8] The accused in
mitigation of sentence stated that he is uneducated and unemployed,
unmarried and that he is eking out an existence by repairing
‘phones’. The accused is a first offender.







[9] I cannot accede to
the request of the magistrate to suspend part of the sentence that
she had imposed because that minimum sentence had been struck down in
Likuwa during March
1999.







[10] It must be stated
that it is quite disturbing to see that the prosecutor in this case
used a charge sheet in which the minimum sentence of ten years
imprisonment appears on the charge sheet in spite of the fact that
this minimum sentence had been struck down by this court more than 14
years ago. I cannot exclude the possibility that charge sheets of
similar format are in existence and are being used by other
prosecutors across the width and breadth of Namibia. If this is the
case the correct penalty clause needs to be inserted on these charge
sheets. The magistrate in all likelihood relied on the penalty clause
which appears on the charge sheet which was misleading.







[11] In terms of the
provisions of s 304(2)
(c)(iv) of
Act 51 of 1977 this court may generally give such judgment or impose
such sentence as the magistrate’s court ought to have given.







[12] The accused had been
convicted of a serious offence. He was not frank with the magistrate
on how he came into possession of the fire-arm and for what purpose
he was in possession thereof. The accused was sentenced on 17 April
2013 and I shall take this fact into account.







[13] The AK 47 was
discovered by police officers during the course of their
investigation of a case of housebreaking allegedly committed by the
accused person.







[14] It must also be
stated for reasons unknown to this court that the accused had not
been charged of being in unlawful possession of ammunition in
contravention of the provisions of s 33 of Act 7 of 1996.







[15] In view of the
reasons afore-mentioned the sentence of ten years imprisonment
imposed by the magistrate needs to be set aside.







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







(a) The conviction is
confirmed.







(b) The sentence of ten
years imprisonment is set aside and substituted with the following
sentence:







three years imprisonment
of which one year imprisonment is suspended for a period of five
years on condition the accused is not convicted of contravening s
29(1)(a) of Act 7 of 1996, committed during the period of
suspension.







(c) The
Prosecutor-General is requested to ascertain whether the charge sheet
referred to in this case was used only in this case or whether charge
sheets of this format are being used generally by prosecutors and if
necessary, to take remedial measures.















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



E P B Hoff



Judge















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



P J Miller



Acting Judge