REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CR 70/2013
In the matter between:
Neutral citation: S
v Hairwa (CR 70/2013)  NAHCMD 309 (31 October 2013)
Coram: SIBOLEKA J
and PARKER AJ
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
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.
The conviction and
sentence are set aside.
SIBOLEKA J (PARKER AJ
 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
 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.
 In the result both
conviction and sentence are set aside.
 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