S v Kambundji (CR NO: 62/2018 ) NAHCMD 243 (14 August 2018);

Group

Headnote and flynote
Flynote: 

Accused charged and convicted with wrong section – No prejudice to accused if court alters conviction to read – Guilty of possession of prohibited dependence producing substance – Contravening s 2(b) Act 41 of 1971 - Sentence imposed by magistrate subsequently altered.

Full judgment

ORDER

a)   The conviction is altered to read, guilty of possession of prohibited dependence producing substance, contravening s 2 (b) of Act 41 of 1971.

b)   The accused is sentenced to N$ 1000 (one thousand Namibia dollar) fine or 6 months imprisonment. The sentence is antedated to 11 May 2018.

 

REVIEW JUDGMENT

SHIVUTE J, (LIEBENBERG J concurring)

[1]        The accused was convicted upon his own admission of guilt of contravening s  3 (b) read with sections 1, 3 (ii), 7, 8, 10, 14 and part III of the schedule of Act 41 of 1971, as amended – possession of potentially dangerous dependence producing drugs.

[2]        He was sentenced to pay a fine of N$ 2000 (two thousand Namibian dollars) or to 12 months’ imprisonment of which N$ 1000 (one thousand Namibia dollars) or 6 months is suspended for 3 years on condition that the accused is not convicted of possession of dangerous dependence producing drugs committed during the period of suspension.

[3]        I raised a query with the learned magistrate as to whether cannabis is a potentially dangerous dependence producing drug? The learned magistrate replied as follows:

‘1. I wish to state to the Honourable Reviewing judge that the charge was defective from the onset and thus subsequently the conviction as well.

2.Possession of cannabis is a prohibited dependence-producing substance, Contravening s 2(b) read with Sections 1,2 (i) and/or 2 (iv)., 8, 10,14 and Part 1 of the schedule of Act 41 of 1971, as amended.

3. I regret the oversight and should the Honourable Reviewing Judge find that the accused was prejudiced in any manner, I stand to be guided by the Honourable Reviewing Judge.’

[4]        The schedule to part 1 of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971 lists cannabis as a prohibited dependence-producing substance and not a potentially dangerous dependence producing drug. However, the accused was charged with the wrong section and convicted as such.

[5]        The accused admitted that he was found in possession of cannabis. In view of this, I do not see any prejudice to be caused to the accused if the conviction is altered to read guilty of possession of prohibited dependence producing substance, contravening s 2 (b) of Act 41 of 1971. It also follows that the sentence imposed cannot be allowed to stand. This court is at liberty to sentence the accused afresh.

[6]        In the result, I make the following order:

a)         The conviction is altered to read, guilty of possession of prohibited dependence producing substance, contravening s 2 (b) of Act 41 of 1971.

b)         The accused is sentenced to N$ 1000 (one thousand Namibia dollar) fine or 6 months’ imprisonment. The sentence is antedated to 11 May 2018.

 

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NN SHIVUTE

JUDGE

 

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JC LIEBENBERG

JUDGE

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