Court name
High Court
Case number
CRIMINAL 41 of 2007
Case name
S v Ortman
Media neutral citation
[2007] NAHC 152













CASE NO.: CR 41/07


IN
THE HIGH COURT OF NAMIBIA


In
the matter between:





THE
STATE





versus





AMBROSIUS
ORTMAN






(HIGH COURT REVIEW CASE NO.: 276/07)





CORAM:
PARKER, J.
et SILUNGWE, AJ.






Delivered on: 2007 March 01





REVIEW
JUDGMENT:


PARKER,
J:






[1] The accused pleaded not guilty to the offences of assault with
intent to do grievous bodily harm (Count 1) and assault through
threatening (Count 2). The accused was tried and found guilty on
both counts as charged. I have perused the record and I am satisfied
that the proceedings are in accordance with justice.





[2]
I am, however, not satisfied with the wording of the learned
magistrate’s sentence. The learned magistrate sentenced the accused
person to 12 months’ imprisonment, six months of which were
suspended for five years on condition “accused does not within that
period be convicted of assault or violence on the person of another.”





[3] The sentence is in order, but
the formulation of the condition is wrong because the suspension is
subjected to the condition that both the commission of the offence
and the accused’s conviction should be within the suspended period
of five years. A condition of suspension should not be formulated in
such a way as to include both the commission of the offence and the
conviction of the accused in the period of suspension because, for
all manner of reasons, it can happen that the conviction only follows
after the period of suspension has expired. If that happens, the
suspended fine or imprisonment cannot be put into operation because
the accused has not been convicted within the period of suspension.





[4]
In the result, the following orders are made:




  1. The conviction and sentence are confirmed.



  2. The condition of suspension is deleted and the following condition
    is put in its place:



Twelve months’
imprisonment, six months of which are suspended


for five years on
condition that the accused is not found guilty of


assault or any other
form of violent act against another person,


committed during the
period of suspension.


















______________



PARKER, J.










I agree








_________________



SILUNGWE, AJ.