COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: CR 81/2013
22 NOVEMBER 2013
the matter between:
citation: S v Owaseb (CR81/2013)NAHCMD351(22 November 2013)
J et PARKER AJ
22 November 2013
It was noted during the consideration of the proceedings which had
been submitted for automatic review that the accused persons had been
sentenced in respect of count 2, the alternative charge, in respect
of which they were never convicted – it was held that a valid
sentence could in such circumstances not be imposed - sentence on
alternative charge accordingly set aside
sentence imposed in respect of count 2 on the accused persons is set
J (PARKER AJ concurring):
This matter came before the court by way of automatic review.
After consideration of the record it was noted:
that the accused persons had been charged with “House breaking
with intent to steal and theft” (count 1) and in the
alternative with “possession of suspected stolen property”
that, after questioning, the court was satisfied that the accused
persons had admitted all the elements of the main count (count 1) and
where convicted as charged on count 1;
that the accused persons thus were never convicted of the alternative
charge – (count 2);
that the accused persons were, nevertheless, sentenced in respect of
both charges, (counts 1 and 2).
A request for an explanation was forwarded to the magistrate’
court Windhoek, on 14 October 2013 in terms of section 304(2)(a) of
the Criminal Procedure Act 1977.
The magistrate responded as follows:
above subject matter and your letter dated 23/09/13 refers.
be informed that the presiding magistrate in this matter is no longer
attached to the magistracy and that she is abroad for further
having perused the record on page 10, 17 and 18 of the typed record,
I am entirely in agreement with the sentiments of the Honourable the
Reviewing Judge that the accused persons were not convicted of the
alternative charge and they cannot be legally sentenced on that
am of the view therefore that the sentence on the alternative charge
be set aside accordingly as the accused would not suffer any
prejudice at all in the absence of presiding officer’s reply to
pleases the Honourable the Reviewing Judge.’
We agree – the error is obvious and the correction of that
error through the setting aside of the sentence imposed in respect of
count 2 will not cause any prejudice to the accused persons.
The sentence imposed in respect of count 2 on the accused persons is
accordingly set aside.