Court name
High Court
Case number
CRIMINAL 56 of 2007
Case name
S v Kapakalwa
Media neutral citation
[2007] NAHC 159




















CASE
NO.: CR 56/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE






versus






LUKAS VEIKO
KAPAKALWA






(HIGH
COURT REVIEW CASE NO.: 1071/05)







CORAM: VAN
NIEKERK, J
et
SILUNGWE, AJ



Delivered on:
2007-03-29



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1] In
this matter the accused was convicted of reckless driving under
section 80 (1) of the Road Traffic and Transportation Act, 22 of
1999. On this count he was sentenced to a fine of N$2000 or eight
months imprisonment. Although the sentence is too light, in my view,
I do not propose to take any further steps regarding this aspect.










[2] The
accused was also convicted of a charge of failing to report an
accident. Curiously, although the prosecutor correctly charged the
accused on the first count under the applicable statute, namely Act
22 of 1999, he decided in respect of the second count to charge the
accused under section 135(1)(f) of the repealed predecessor of Act 22
of 1999, namely the Road Traffic Ordinance, 30 of 1967. I have
compared the wording of section 135(1)(f) with the equivalent
provision, namely section 78(1)(f) of Act 22 of 1999. The wording is
just about the same. In my view there is sufficient evidence to
sustain the conviction on count 2. The accused would not be
prejudiced by an amendment of the charge sheet and a conviction under
the applicable legislation. The sentence is in order.





[3] The
learned magistrate failed to apply the peremptory provisions of
section 51(1) of Act 22 of 1999 which provide that the accused's
driver's licence shall be suspended. It will therefore be necessary
to secure the accused's attendance to apply these provisions.





[4] In
the result the following order is made:






1. The conviction
and sentence on the first count, c/section 80(1) of Act 22 of 1999
(Reckless driving), are confirmed.





2. The
charge sheet in respect of the second count is amended to indicate
that the accused was charged with a contravention of section 78(1)(f)
of Act 22 of 1999.





3. The
conviction on count 2 is altered to a conviction of a contravention
of section 78(1)(f) of Act 22 of 1999 (Failure to report accident).





4. The
sentence imposed on count 2 is confirmed.





5. The
matter is remitted to the magistrate to apply the provisions of
section 51(1) of Act 22 of 1999.










______________________________



VAN NIEKERK, J













I agree










_______________________________



SILUNGWE, AJ