Court name
High Court
Case name
S v Fonseca
Media neutral citation
[1994] NAHC 7
















CASE
NO. 76/94












THE
STATE VERSUS VALENTINE FONSECA
1994/06/01



LEVY,
J
et
HANNAH,
J












CRIMINAL
PROCEDURE



Plea,
charge -

Such



Section
is

one
offence



112
(l)(a)
procedure
should
not
be
used
where
of

driving
under
the
influence
of
liquor,
is

not
a
minor
one.




Circulate







CASE
NO. . .
~J!?l9lj?.
.
.









IN
THE HIGH COURT OF NAMIBIA















In
the matter between









THE
STATE


versus


VALENTINE
FONSECA



(HIGH
COURT REVIEW CASE NO. 1550/94
)
CORAM:
LEVY
et
HANNAH,
JJ.


Delivered
on: 1994/06/01









REVIEW
JUDGMENT



HANNAH,
J.
:
The accused appeared before the Windhoek Magistrate's court and
pleaded guilty to a charge of driving under the influence of
intoxicating liquor in contravention of section 140(1)(a) of the Road
Traffic Ordinance, 1967. He was then dealt with in terms of section
112(1)(a) of the Criminal Procedure Act, 51 of 1977, and was
sentenced to a fine of N$600 or three months imprisonment in default
of payment.






The
procedure under section 112(1) (a) should only be applied in the case
of minor offenses and in my view the offence created by section
140(1)(a) does not fall into that category. The magistrate's
reason for taking such an exceptional course was that on the
day the matter was dealt with he had more than one hundred cases on
his roll and had no time to follow the procedure set out in section
112(1) (b) . Although he has my sympathy that, of course, is no
proper excuse for taking improper short cuts. Some other solution
should be looked for.











Having
decided, albeit erroneously, to deal with the matter in terms of
section 112(1)(a) the magistrate also erred in imposing a fine of
N$600. When an accused is dealt with in terms of that section the
maximum permissible fine is N$300.











In
all the circumstances I will vary the sentence to a fine of N$300.



I
agree













It
is ordered that the conviction is confirmed but the sentence is
varied to a fine of N$3 00 or three months imprisonment in default of
payment.