Court name
High Court
Case name
S v Kandume
Media neutral citation
[2007] NAHC 162











CASE
NO.: CR 63/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE






versus






NESTOR KANDUME






(HIGH
COURT REVIEW CASE NO.: 298/07)


CORAM:
MAINGA, et
VAN NIEKERK, JJ



Delivered on:
2007-04-13



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1] In
this matter the accused was convicted of assault with intent to do
grievous bodily harm. The conviction is in order.






[2] The
accused was sentenced as follows:







"Sixteen
(16) months imprisonment of which six (6) months is wholly suspended
for 5 years on condition accused does not within that period of
suspension be found guilty of Assault with intent to do grievous
bodily harm."













[3] On review I
directed the following query to the learned magistrate:






"1. The
formulation of the sentence imposed appears unsatisfactory. As it
stands now the condition of suspension is that the accused is not
found guilty of the same offence within the period of suspension.
There is no requirement that the offence must have been
committed
within
the period of suspension. This means that, even if the accused had
committed assault with intent to cause grievous bodily harm
before
the sentence was passed and in respect of which the accused is
convicted within the period of suspension, the condition would be
violated. Does this not amount, in effect, to imposing a sentence
retrospectively? Was this the intention of the learned magistrate?







2. Furthermore,
even if the accused
commits
the same offence in the future within the period of suspension, but
is
convicted
outside the period of suspension, the suspended sentence may not be
brought into operation. Was this the intention of the learned
magistrate?






3. Does
it serve any useful purpose to state that the six months is "wholly"
suspended - surely the six months cannot be partly suspended?"








[4] In
his reply the magistrate agrees that the sentence must be
reformulated to address the concerns raised by the query. He refers
to the cases of
S v
Kakulu
1990 NR 282
(HC);
S v Skrywer
1990 NR 343 (HC);
S
v Heita
Bonifatius
(unreported) (High Court Case No. CR 123/2006);
S
v Josef Jossop and Ivan Jossop

(unreported) (High Court Case No. CR 125/2006); and
S
v Nikiwe Msimanga

(unreported)(High Court Case No. 126/2006).






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






1. The conviction and sentence
are confirmed.





2. The
conditions of suspension are deleted and the following conditions are
substituted therefor:





"Sixteen
(16) months imprisonment of which six (6) months is suspended for
five (5) years on condition that the accused is not convicted of
assault with intent to do grievous bodily harm committed within the
period of suspension."











______________________________



VAN NIEKERK, J






I
agree








_______________________________



MAINGA, J