Court name
High Court Main Division
Case number
CRIMINAL 25 of 2013
Title

S v Solomon (CRIMINAL 25 of 2013) [2013] NAHCMD 94 (09 April 2013);

Media neutral citation
[2013] NAHCMD 94
Coram
Parker AJ
Unengu AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CR 25/2013








In the matter between:








THE STATE
.................................................................................................APPLICANT



and



MAZIYEZI TETUKA
SOLOMON
.............................................................RESPONDENT








(HIGH COURT REVIEW
CASE NO.: 429/2013)








Neutral citation:
State v Solomon (CR 25/2013) [2013] NAHCMD 94 (9 April 2013)








Coram: PARKER AJ
et UNENGU AJ



Delivered: 9
April 2013








Flynote: Criminal
procedure – Sentence – Formulation of sentence not only
unclear but also bad in law – Court setting aside the sentence
and replacing it with another sentence.








Summary: Criminal
procedure – Sentence – Formulation of sentence not only
unclear but also bad in law – Trial court suspending part of
the period of imprisonment for two years ‘on condition that the
accused is not convicted during period of suspension’ and the
other part also for two years ‘on condition accused completes
400 hrs of community service …’ – Court set aside
the sentence and put another sentence in its place.










ORDER










Six months’
imprisonment; wholly suspended for four years on condition that –








(a) the accused performs
400 hours of community service at Ngonga Primary School under the
supervision of Mrs E N Peleko. The community service starts on 28
January 2013 and it is performed every day (except a public holiday)
from 08h00 to 13h00; and








(b) the accused is not
convicted of the offence of theft, committed during the period of
suspension.










JUDGMENT










PARKER AJ (UNENGU AJ
concurring):








[1] The accused (accused
1) and three co-accused were charged with theft at the District
Magistrates’ Court, Katima Mulilo. At the commencement of
proceedings the charge was withdrawn against the second, third and
fourth accused persons. Accused 1 pleaded guilty and after being
questioned in terms of s 112(1)(b) of the Criminal Procedure
Act 51 of 1977 he was convicted and sentenced.








[2] I am satisfied that
the conviction and sentence are in accordance with justice. However,
the formulation of the sentence is not only unclear but it is also
bad in law. The formulation of a sentence must be clear for all to
see so that its terms can be carried out without any difficulty.








[3] In the result, the
conviction is confirmed but the sentence is set aside and the
following is put in its place:








Six months’
imprisonment; wholly suspended for four years on condition that –








(a) the accused performs
400 hours of community service at Ngonga Primary School under the
supervision of Mrs E N Peleko. The community service starts on 28
January 2013 and it is performed every day (except a public holiday)
from 08h00 to 13h00; and








(b) the accused is not
convicted of theft, committed during the period of suspension.























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



C Parker



Acting Judge























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



E P Unengu



Acting Judge