Case Title:

The State v Simbarashe Christopher Joe

The State v Rolene Rietz

Case No:

CR 57/2020

High Court MD Review No:

927/2020

805/2020

Division of Court:

Main Division

Heard before:

Judge Claasen et

Judge Usiku

Delivered on:

17 August 2020

Neutral citation: S v Joe (CR 57/2020) [2020] NAHCMD 360 (17 August 2020)

The order:

             In The State v Simbarashe Christopher Joe.

            The conviction is substituted with a conviction in contravention of section 29(5) of Act 7 of 1993.

             The State v Rolene Rietz.

             The conviction is substituted with a conviction in contravention of section  82(2)(a) of Act 22 of 1999.

Reasons for order:

Claasen J ( concurring Usiku J )

1. Both the matters were brought before the High Court on automatic review in terms of section 302(1) of the Criminal Procedure Act 51 of 1977 (the CPA). They revolve around the same issue and will be dealt with together.  

2. In The State v Simbarashe Christoper Joe the accused was convicted and sentenced on 3 charges in the District Court of Rundu. The only qualm that the review court has relates to an erroneous reference in respect of  the charge of count 1 as that of contravening section 29(1) of Act 7 of 1993, which provision does not constitute an offense.

3. In perusal of the charge particulars in the annexure, it spell out the details that the accused is a foreign national who allegedly remained in Namibia long after the expiration of his visitor’s visa.

4.  A query was directed to the magistrate to address this point and she conceded that it ought to be a conviction in contravention of section 29(5) of Act 7 of 1993.

5. In The State v Rolene Rietz Joe the accused appeared in the District Court of Luderitz for a charge of having contravened section 82(1)(b) of Act 22 of 1999. She was convicted and sentenced accordingly.

6. This citation refers to the offense of occupying the driver seat of a motor vehicle of which the engine is running whilst under the influence of intoxicating liquor or a drug having a narcotic effect. The charge label and charge particulars however were formulated in the terms of the offense of driving with an excessive breath alcohol. The questioning were phrased along similar lines.

7. The magistrate when queried, conceded that a wrong statutory reference was used.

8. I echo the sentiments expressed by the court in S v Egumbu[1] that magistrates must verify that the statutory references are consistent to the charge label and particulars.

9. Furthermore in S v Gaoseb[2]  it was held that ‘. . .if the body of the charge is clear and unambiguous in its description of the act alleged against the accused. . .the attaching of a wrong label to the offence or an error made in quoting the charge, the statute or statutory regulation alleged to have been contravened, may be corrected on review if the court is satisfied that the conviction is in accordance with justice, or, on appeal, if it is satisfied that no failure of justice has, in fact, resulted therefrom.’

10. For these reasons the statutory references in the respective matters stand to be set aside. No prejudice will be caused if the contraventions are corrected.

11. Therefore the order is as follows:  

            In The State v Simbarashe Christoper Joe:

            The conviction is substituted with a conviction  contravening section 29(5) of Act 7 of 1993, and   

            In The State v Rolene Rietz:    

            The conviction is substituted with a conviction of contravening section 82(2)(a) of Act 22 of 1999.

C  M CLAASEN

JUDGE

D N USIKU

JUDGE