Court name
High Court Main Division
Case number
CRIMINAL 7 of 2013
Title

S v Okuani (CRIMINAL 7 of 2013) [2013] NAHCMD 32 (05 February 2013);

Media neutral citation
[2013] NAHCMD 32
Coram
Ndauendapo J
Siboleka J













REPORTABLE



REPUBLIC
OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CR 07/2013








In the matter between:








THE STATE



vs








CELESTINE EMEKA OKUANI








Neutral citation: The
State v Okuani
(CR 07/2013) [2013] NAHCMD 32 (05 February 2013)








Coram: NDAUENDAPO
J and SIBOLEKA J



Delivered : 05
February 2013








Flynote: Criminal
law: Contravention of sections 12(1) and 12(4) of the Immigration
Control Act 7 of 1993.








Criminal law: A
charge in terms of statute must cite the actual elements of the
offence contravened as contained in the enabling section. A failure
to do so renders the charge defective.








Summary: Accused
charged and convicted of entry into Namibia without an unexpired
passport bearing a valid visa or authority.








Held: The charge
does not allege that the accused failed to produce an unexpired
passport which bears a valid visa or an endorsement by a person
authorized thereto by the government of Namibia when ordered to do so
by an Immigration officer. This allegation is central for a
contravention of section 12(1) of Act 7 of 1993 to arise.








Held: The charge
does not also allege that the accused was found in Namibia after
having been refused entry. This is a crucial element for contravening
section 12(4).








Held: That the
exclusion of these pertinent elements enjoined in sections 12(1) and
12(4) renders the charge defective.








Held: In the
result the conviction and sentence cannot be allowed to stand.








___________________________________________________________________



ORDER



___________________________________________________________________



The conviction and
sentence are set aside.



___________________________________________________________________



JUDGMENT








SIBOLEKA J (NDAUENDAPO J
concurring):








[1] The accused appeared
in the Karasburg Magistrate’s Court on the following charge:



Immigration
Control Act –Entry into Namibia without an unexpired passport
bearing a valid visa or authority



Count
1 (in respect of accused 1)



Contravening
section 12(1) read with sections 1, 2 and 12(4) of the Immigration
Control Act, Act 7 of 1993



In
that upon or about the 13 July 2012 at or near Noordoewer in the
district of Karasburg the accused, not being a Namibian citizen or a
person domiciled in Namibia, did wrongfully and unlawfully enter
Namibia without an unexpired passport




  1. Bearing
    a valid visa, or



  2. An
    endorsement by a person authorized thereto by the Government of
    Namibia indicating that the Minister or authorized officer granted
    authority to such person to proceed to Namibia,




or
without a document containing




  1. a
    statement to the effect that the Minister or authorized officer
    granted authority to such person to proceed to Namibia, and



  2. the
    particulars of such passport.




Penalty
clause (see Sec. 12(4)): “… to a fine not exceeding N$20
000,00 or to imprisonment for a period not exceeding five years or to
both such fine and such imprisonment, and may be dealt with under
Part VI as a prohibited immigrant.”








[2] Section 12(1) of the
Immigration Control Act, Act No. 7 of 1993 reads:



12.
(1) Any person seeking to enter Namibia
who
fails on demand by an immigration officer to produce to such
immigration officer an unexpired passport which bears a valid visa or
an endorsement by a person authorized thereto by the Government of
Namibia

to the effect that authority to proceed to Namibia for the purpose of
being examined under this Act has been granted by the Minister or an
officer authorized thereto by the Minister, or such person is
accompanied by a document containing a statement to that effect
together with particulars of such passport, shall be refused to enter
and to be in Namibia, unless such person is proved to be a Namibian
citizen or a person domiciled in Namibia.”
My
own underlining.








[3] The allegation that
an Immigration Officer demanded an unexpired passport bearing a valid
visa or endorsement from the accused and that he had failed to
produce it, should be contained in the charge sheet. The accused’s
answer thereto would decisively influence the determination of his
guilt.













[4] Section 12(4) reads:



(4)
If any person enters or has entered Namibia in
contravention of the provisions of subsection (1) or, after having
been refused to enter Namibia in terms of that subsection, is found
in Namibia, he or she shall be guilty of an offence
and on
conviction be liable to a fine not exceeding R20 000 or to
imprisonment for a period not exceeding five years or to both such
fine and such imprisonment, and may be dealt with under Part VI as a
prohibited immigrant.” My own underlining. The
charge is also silent on the above element.



[4.1] The provisions of
section 12(1) and 12(4) of the Immigration Control Act, 1993 (Act No.
7 of 1993) must have been cited in the charge in order to create a
transgression (an offence). Magistrates and Prosecutors are therefore
directed to make sure that the pro forma charge sheets are corrected
to have regard to the contents of these two sections.








[5] For the above reasons
the conviction and sentence cannot be allowed to stand.








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


















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



A M SIBOLEKA



Judge


















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



N G NDAUENDAPO



Judge