Court name
High Court
Case name
S v Imene
Media neutral citation
[2007] NAHC 191















CASE NO.: CR 152/2007





IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE








and








SAMUEL
HOMATENI IMENE









(HIGH COURT REVIEW CASE NO.:
1565/2007)








CORAM: VAN
NIEKERK, J
et
MULLER, J








Delivered
on: 26 October 2007









SPECIAL
REVIEW JUDGMENT






MULLER, J:
[1] The accused was convicted of being in possession of suspected
stolen goods and sentenced to N$800 or in default to 4 months
imprisonment. It was further ordered that this sentence should run
concurrently with a prison sentence that he is already serving.







[2] The prison authorities
informed the magistrate that the last part of the sentence was not in
order. The magistrate discovered that it was indeed so and submitted
the matter for special review. The magistrate requests that this last
part of the sentence be set aside, namely by deleting the words:
“to
run concurrently with the one accused is serving.







[3] If the sentence should
remain, it would mean that there would be no incentive for the
accused to pay the fine. He would not pay it and then his sentence is
one of 4 months imprisonment, which runs concurrently with the
sentence that he is serving. Effectively he would not be penalised
for his conviction at all.







[4] In an unreported judgement
of
S v Simbarashe
Marisa,
Case No. CR
19/2006, this Court on review considered other cases where these
types of sentence were imposed. The view of Melunsky, J in
S
v Hutton
1998 (2)
SACR 474 (E) at 477 was preferred, namely that it was desirable that
a court should order that a sentence will run concurrently
only
if the fine is not paid
.
In this case the magistrate did not make such an order.







[5] When reading the record it
is evident that this portion was only included as a result of the
accused asking for a sentence that will run concurrently with the one
he is already serving when he made submissions in mitigation of
sentence. From the magistrate’s judgment on sentence it is evident
that he intended the accused to be punished for this offence, but
added to his sentence that it should run concurrently with the one
the accused is serving. The magistrate clearly did not consider the
effect of this addition to the sentence, as I have indicated above.
It is further desirable that the magistrate should have indicated
that the sentence shall run concurrently only if the fine is not
paid. This he did not do. I agree with the magistrate’s suggestion
that the last portion of the sentence should be deleted.







[6] In the result, the
conviction and sentence of the accused are confirmed, except for the
words:
“to run
concurrently with the one the accused is serving,”

which words are deleted from the sentence.












____________



MULLER, J









I
concur








_______________________



VAN NIEKERK, J