Court name
High Court Main Division
Case number
55/2020
Case name
S v Katonda
Media neutral citation
[2020] NAHCMD 349

S v Katonda (55/2020) [2020] NAHCMD 349 (12 August 2020);

 

IN THE HIGH COURT OF NAMIBIA

“ANNEXURE 11”

 

Case Title: The State v Katonda Joseph Katonda

 

Case No: 55/2020

High Court Ref.No: 401/2020

 

Division of Court: High Court

 

Heard before:

Honourable Mr. Justice Liebenberg J et

Honourable Ms Justice Shivute J

 

Delivered on: 12 August 2020

 

Neutral citation:  S v Katonda (CR55/2020) [2020] NAHCMD 349 (12 August 2020)

The order:

  1. The conviction is confirmed.
  2. The sentence of N$300 in default, 3 months’ imprisonment, is set aside and replaced with the following sentence: N$ 50 or three months’ imprisonment. The sentence is antedated to 23 January 2020.

 

Reasons for order:

SHIVUTE J (concurring) LIEBENBERG J

 

1. The accused was convicted of having been found in possession of housebreaking implements, contravening section 9(1) of Proclamation 27 of 1920.

 

2. He was sentenced to N$300 fine or 3 months’ imprisonment.

 

3. The magistrate sent the matter on special review and stated that Proclamation 27 of 1920 provides for a penalty of £20 fine or imprisonment for a period not exceeding six months or without hard labour or to either such a fine or imprisonment.

 

4. In his judgment on sentencing he referred to S v Kamati (Cr 12/2019) [2019] NAHCNLD 25 (28 February 2019). In this matter the accused was convicted of possession of housebreaking implements contravening section 9(1) of Proclamation 27 of 1920 and sentenced to N$2500 fine or six months’ imprisonment in the magistrate’s court. When the matter came on review the sentence was found to be incompetent. It was set aside and replaced with N$50 fine or six month’s imprisonment.

 

5. Again the magistrate referred to S v Edward (Cr 82/2013) [2013] NAHCM 368 (3 December 2013). In this matter the accused was convicted for being found in possession of housebreaking instruments contravening provisions of Proclamation 27 of 1920, as above. The magistrate sentenced him to N$1500 fine or 7 months’ imprisonment wholly suspended on the usual conditions, plus a further community service of 700 hours. The sentence was set aside on review and it was substituted with N$300 fine or three months’ imprisonment.

 

6. It was the magistrate’s opinion that the penalty clause is to be equalled with the current exchange rate between the pound and the Namibia dollar which at the time of sentencing was £20 = N$376.95.

 

7. Section 281 of the Criminal Procedure Act provides that:

In construing any provision of any law not being an Act of Parliament passed on or after the first day of September, 1959, or anything enacted by virtue or powers conferred by such an Act, in so far as it prescribes or confers the powers to prescribe a punishment for any offence, any reference in that law-

 

  1. To imprisonment with or without any form of labour, shall be construed as a reference to imprisonment only;
  2. To any period of imprisonment of less than three months which may not be exceeded in imposing or prescribing a sentence of imprisonment, shall be construed as a reference to a period of imprisonment of three months;
  3. To any fine of less than fifty rand which may not be exceeded in imposing or prescribing a fine, shall be construed as a reference to a fine of fifty rand.’

 

8. By virtue of s 281 a penalty of £20 (ie) N$40 must be construed as N$50. Therefore, the maximum penalty to be imposed is a fine of N$50 or six months’ imprisonment. Section 281 only makes provision for imprisonment and no hard labour should be attached.

 

9. It follows that the N$300 fine imposed by the learned magistrate is not a competent sentence in the circumstance. Therefore, it falls to be set aside.

 

10. In the result the following order is made:

  1. The conviction is confirmed.
  2. The sentence of N$300 in default, 3 months’ imprisonment, is set aside and replaced with the following sentence: N$ 50 or three months’ imprisonment. The sentence is antedated to 23 January 2020.

 

N N SHIVUTE

JUDGE

 

J C LIEBENBERG

JUDGE