REPUBLIC OF
NAMIBIA

HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case
no: CA 63/2013

DATE:
14 MARCH 2014

NOT
REPORTABLE

In the matter
between:

NANDE
MOSHANA...............................APPELLANT

And

THE
STATE..........................................RESPONDENT

Neutral citation:
Moshana v State (CA 63/2013) [2014] NAHCMD 87 (14 March 2014)

Coram: HOFF J and
SIBOLEKA J

Heard: 31 January
2014

Delivered: 14
March 2014

ORDER

(a) The point in
limine is upheld.

(b) The conviction
and sentence in respect of count 1 are confirmed.

(c) The convictions
in respect of count 2 and 3 are confirmed.

(d) The sentence
imposed in respect of count 2 and 3 are set aside and substituted
with the following sentences:

In respect of count
2: three years imprisonment.

In respect of count
3: one year imprisonment.

(e) It is ordered
that the sentences imposed in respect of count 2 and 3 should run
concurrently with the sentence imposed in respect of count 1.

JUDGMENT

HOFF J (SIBOLEKA
J concurring):

[1] The appellant
was convicted at Eenhana Regional Court on 22 May 2007 on three
counts namely: count 1 – robbery with aggravating
circumstances, (liquor and cigarettes valued at N$591) count 2 –
unlawful possession of a fire-arm (an PM rifle) in contravention of
the provisions of s 2 of Act 7 of 1996, and count 3 – the
unlawful possession of ammunition (2 cartridges for PM rifle) in
contravention of the provisions of s 33 of Act 7 of 1996

[2] In respect of
count 1 the appellant was sentenced to 12 years imprisonment. Count 2
and 3 were taken together for sentence and a sentence or five years
imprisonment was imposed.

[3] This appeal lies
against both the conviction and the sentence.

to the effect that
the appellant did not set out his grounds of appeal clearly and
specifically as required by Rule 67(1) of the Magistrate’s
Court Rules. This Court was referred to relevant case law relating to
the purpose grounds of appeal serve in an appeal hearing. I do not
deem it necessary at this stage to revisit those authorities since it
is trite law.

[5] A perusal of the
record confirms that the appellant filed no grounds of appeal in
respect of both the convictions and sentences imposed, but instead
filed an application to lead further evidence.

[6] Mr Ipumbu, who
appeared amicus curiae, conceded that the appellant had correctly
been convicted, but attacked the sentences imposed on the basis that
the cumulative effect of the sentences imposed was not taken into
account by the magistrate and that the magistrate should have ordered
the sentence imposed in respect of count 2 and 3 to run concurrently
with the sentence imposed in respect of count 1.

[7] In view of the
fact that there are no grounds of appeal in respect of the sentences
imposed together with the fact that the appellant has acknowledged
previous convictions of which one involved the crime of robbery with
aggravating circumstances, this court cannot interfere with the
sentence imposed by the magistrate.

[8] In respect of
the single sentence imposed in respect of counts 2 and 3, a maximum
penalty of a fine not exceeding N$12 000 or imprisonment for a period
not exceeding three years is applicable for a contravention described
in count 3. The magistrate by taking the counts together for purpose
of sentence and by imposing a five years imprisonment term exceeded
the maximum prescribed penalty in respect of count 3. The sentence
imposed by the magistrate is thus an incompetent sentence and a
nullity which may be set aside by this court in spite of the fact
that there are no grounds of appeal against sentence.

[9] This court has
in the past on more than one occasion emphasised the undesirability
of taking convictions in respect of statutory offences together for
purpose of sentence and the sentence imposed by the magistrate once
again demonstrates the undesirability of such a practice.

[10] This court on
appeal may in terms of the provisions of s 309(3) read with
s 304(2)(c) of Act 51 of 1977 impose any competent sentence which the
magistrate ought to have given.

[11] In the result
the following orders are made:

(a) The point in
limine is upheld

(b) The conviction
and sentence in respect of count 1 are confirmed.

(c) The convictions
in respect of count 2 and 3 are confirmed.

(d) The sentence
imposed in respect of count 2 and 3 are set aside and substituted
with the following sentences:

In respect of count
2: three years imprisonment.

In respect of count
3: one year imprisonment.

(e) It is ordered
that the sentences imposed in respect of count 2 and 3 should run
concurrently with the sentence imposed in respect of count 1.

E P B HOFF

Judge

A M SIBOLEKA

Judge

APPEARANCES

APPELLANT :

T Ipumbu

Amicus curiae, Titus Ipumbu Legal Practitioners, Windhoek

RESPONDENT: S R
Nyambe

Office of the Prosecutor-General, Windhoek