Court name
High Court Main Division
Case number
CRIMINAL 16 of 2013
Title

S v Mawawa (CRIMINAL 16 of 2013) [2013] NAHCMD 61 (07 March 2013);

Media neutral citation
[2013] NAHCMD 61
Coram
Van Niekerk J
Ueitele J


















REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case No: CR 16/2013



In the matter between:



THE STATE



and



RIGEN MAWAWA



(HIGH COURT MAIN
DIVISION REVIEW REF NO 1624/2010)



Neutral citation: S
v Mawawa
(CR 16-2013) [2013] NAHCMD 61 (7 March 2013)



Coram: VAN
NIEKERK, J and UEITELE, J



Delivered: 7 March
2013



Flynote: Criminal
procedure
–Review – Accused charged with c/sec 6 of
Immigration Control Act, 7 of 1993 – Answers given during
questioning in terms of section 112(1)(b) of Criminal Procedure Act,
51 of 1977, revealed that accused did not commit this offence –
Accused may have committed offence of c/sec 7 of Act 7 of 1993 –
Conviction and sentence set aside





ORDER








The
conviction and sentence are set aside.





REVIEW JUDGMENT




VAN
NIEKERK, J (UEITELE, J concurring):



[1] In this matter the
accused was convicted after a plea of guilty to a charge of
contravening section 6(1) of the Immigration Control Act, 1993 (Act 7
of 1993), in that he allegedly wrongfully and unlawfully entered
Namibia at a place other than a port of entry without a passport
bearing an endorsement by the Minister of Home Affairs to the effect
that permission has been granted to him by the Minister to enter
Namibia at that place and to be in Namibia for such purposes and
during such period and subject to such conditions as may be stated in
that endorsement. The accused was sentenced to a wholly suspended
sentence of 8 months imprisonment.



[2] During the
questioning in terms of section 112(1)(b) of the Criminal Procedure
Act, 1977 (Act 51 of 1977), the accused’s answers revealed that
he is a Congolese citizen, that his passport was stolen in South
Africa and that he entered Namibia at Ariamsvlei without a passport
while hiding on a truck.



[3] From these answers it
is clear, and the trial magistrate agrees, that, as Ariamsvlei is a
port of entry, the accused did not commit the offence charged, but
should rather have been charged with the offence of contravening
section 7 of the Immigration Control Act, which provides as follows:



7.
Persons
to present themselves to immigration officer before entering Namibia



A person seeking to enter Namibia
shall before entering Namibia present himself or herself to an
immigration officer at a port of entry and satisfy such officer that
he or she is not a prohibited immigrant in respect of Namibia and is
entitled to enter and to be in Namibia.’



[4] As this case concerns
the offence with which the accused was charged, I requested the
Prosecutor-General to provide me with her views on the matter. I am
informed that this request was mislaid for a considerable period, but
Mr Small, Deputy Prosecutor-General, has furnished an opinion, for
which the Court expresses its gratitude.



[5] Mr Small points out
that the offence under section 6 is committed if a person enters
Namibia at a place other than a port of entry. In this case the
accused did enter at a port of entry, but it seems that he did not
present himself to an immigration officer. Mr Small agrees that the
accused should have been charged with a contravention of section 7 of
the Immigration Control Act. He suggests that the conviction and
sentence be set aside. I agree.



[6] The result is that
the conviction and sentence are set aside.























_________________



K van Niekerk



Judge













I agree.


















_________________



S F I Ueitele



Judge