3
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION
JUDGMENT
CR No: 01/2018
In the matter between
THE STATE
v
JACOBUS VAN NIEKERK ACCUSED
HIGH COURT MD REVIEW CASE NO 1434/2017
Neutral citation: S v Van Niekerk (CR 01/2018) [2018] NAHCMD 7 (26 January 2018)
CORAM: NDAUENDAPO J et LIEBENBERG J
DELIVERED: 26 January 2018
ORDER
The conviction is confirmed.
The sentence is set aside and substituted with the following sentence:
N$1 000 or three (3) months’ imprisonment.
The sentence is antedated to 15 August 2017.
JUDGMENT
LIEBENBERG J: (Concurring NDAUENDAPO J)
[1] The accused was convicted of assault1 in terms of s 112 (1)(a) of the Criminal Procedure Act, 1977 and sentenced to a fine of N$ 1 000 or 3 months’ imprisonment, plus a further 6 months’ imprisonment, wholly suspended on condition of good behaviour.
[2] When the matter came on review a query was directed to the presiding magistrate to explain whether the additional term of six months’ imprisonment, imposed as a suspended sentence, was proper, in view of the court having convicted in terms of s 112 (1)(a).
[3] From the reasons provided it is evident that the magistrate is not acquainted with the provisions of s 112 (1)(a) of the Criminal Procedure Act, which provides that where the accused pleads guilty and the presiding magistrate is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine exceeding N$6 000, the court may convict on the mere plea of guilty and in terms of subsection (a)(i) impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine.
[4] In the present instance the court, in addition to the fine imposed, sentenced the accused to a further period of six months’ imprisonment without the option of a fine, the latter thus rendering the sentence incompetent. In view thereof, the sentence cannot be permitted to stand.
[5] In the result, it is ordered that:
The conviction is confirmed.
The sentence is set aside and substituted with the following sentence:
N$1 000 or three (3) months’ imprisonment.
The sentence is antedated to 15 August 2017.
___________________
J C LIEBENBERG
JUDGE
___________________
G N NDAUENDAPO
JUDGE
1 Read with the provisions of the Combating of Domestic Violence Act 4 of 2003.