Court name
High Court Main Division
Case number
CRIMINAL 81 of 2013
Title

S v Owaseb and Another (CRIMINAL 81 of 2013) [2013] NAHCMD 351 (22 November 2013);

Media neutral citation
[2013] NAHCMD 351
Coram
Geier J
Parker AJ










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





REVIEW
JUDGMENT


Case
no: CR 81/2013





DATE:
22 NOVEMBER 2013








In
the matter between:





THE
STATE



And





BLOMDEN
MERVIN
OWASEB......................................................1ST
ACCUSED





GIDEON
KAMEETA..........................................................................2ND
ACCUSED











Neutral
citation: S v Owaseb (CR81/2013)[2013]NAHCMD351(22 November 2013)





Coram: GEIER
J et PARKER AJ





Delivered:
22 November 2013








Flynote:
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





Summary:
See judgment








ORDER











The
sentence imposed in respect of count 2 on the accused persons is set
aside











JUDGMENT











GEIER
J (PARKER AJ concurring):





[1]
This matter came before the court by way of automatic review.





[2]
After consideration of the record it was noted:



a)
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”
(count 2);





b)
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;





c)
that the accused persons thus were never convicted of the alternative
charge – (count 2);





d)
that the accused persons were, nevertheless, sentenced in respect of
both charges, (counts 1 and 2).





[3]
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.








[4]
The magistrate responded as follows:





The
above subject matter and your letter dated 23/09/13 refers.





Kindly
be informed that the presiding magistrate in this matter is no longer
attached to the magistracy and that she is abroad for further
studies.


Indeed,
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
charge.


I
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
the query.





As
pleases the Honourable the Reviewing Judge.’





[5]
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.





[6]
The sentence imposed in respect of count 2 on the accused persons is
accordingly set aside.









H
GEIER


Judge








C
Parker


Judge
(Acting)