Court name
High Court Main Division
Case number
CRIMINAL 70 of 2013
Title

S v Hairwa (CRIMINAL 70 of 2013) [2013] NAHCMD 309 (31 October 2013);

Media neutral citation
[2013] NAHCMD 309
Coram
Siboleka J
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CR 70/2013








In the matter between:








THE STATE



and








KAMUKWANYAMA DAMIAN
HAIRWA
.........................................................ACCUSED








Neutral citation: S
v Hairwa
(CR 70/2013) [2013] NAHCMD 309 (31 October 2013)








Coram: SIBOLEKA J
and PARKER AJ



Delivered: 31
October 2013








Fly note: Criminal
Law - The use of a breathalyzer to test the level of alcohol in the
blood of a motor vehicle driver has been declared invalid by this
court.








Summary: The
accused was arrested while driving along the Rundu – Nkurenkuru
road. A breathalyzer test results showed the level of blood to be
0.47 ml in excess of the legal limit 0.37 milligrams per 1000
millitres of breath. He was charged, convicted, and sentenced to N$2
000 or 8 months imprisonment.








Held: The conviction
hinges solely on the results of the breathalyzer reading and can
therefore not be allowed to stand.



___________________________________________________________________



ORDER



___________________________________________________________________








The conviction and
sentence are set aside.





REVIEW JUDGMENT










SIBOLEKA J (PARKER AJ
concurring):








[1] On 9 June 2013 the
accused was stopped by traffic officials along the Rundu - Nkurenkuru
road. He was asked to breath into the breathalyzer resulting in a
reading of 0.43 mg exceeding the legal limit of 0.37 milligrams per
1000 millitres of breath. He was charged for driving with an
excessive alcohol level, convicted and sentenced to N$2 000 or eight
months imprisonment.








[2] The conviction hinges
entirely on the use of the breathalyzer in terms of s 82(5) of the
Road Traffic and Transportation Act 22 of 1999 which provisions were
declared invalid by this court (see The State v Raymond Heathcote
Case No. CA 24/2013 delivered on 12 July 2013). The conviction and
the resultant sentence can therefore not be allowed to stand.








[3] In the result both
conviction and sentence are set aside.








[4] The Magistrate is
ordered to see to it that the accused is refunded immediately all
monies paid by the accused as court fine, if any, in this matter.



[4.1] If the accused is
in goal due to non-payment of the court fine, he should be released
from such detention immediately.


















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



A M SIBOLEKA



Judge




























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



C PARKER



Acting Judge