Court name
High Court
Case number
CRIMINAL 0 of 2008
Title

S v Kasamia (CRIMINAL 0 of 2008) [2008] NAHC 101 (06 October 2008);

Media neutral citation
[2008] NAHC 101















CASE NO. CR. 108/2008


IN THE
HIGH COURT OF NAMIBIA








In
the matter between:








THE STATE








and








SHIMBWALE
KASAMIA








HIGH COURT
REVIEW CASE NO.: 1666/2002








CORAM: HOFF,
J et SILUNGWE, AJ








Delivered
on: 2008.10.06










REVIEW
JUDGMENT
:








HOFF,
J
:


[1] The
accused person, Shimbwale Kasamia, was convicted of the crime of
theft and sentenced to a direct term of imprisonment of 5 years.
Prior to sentence the accused admitted ten previous convictions of
which some included housebreaking with intent to steal and theft as
well as theft. The conviction and sentence of the accused was
confirmed on review on 2 November 2002.





[2] This
matter was again sent to the Registrar of the High Court by the
divisional magistrate at Oshakati during June 2008. He made the
following observations:



1. the
sentence which appears on the review covering sheet is a completely
different sentence as is apparent from the court record of the court
proceedings;



2. the
sentence in respect of this case has just been implemented but the
convict is “resisting it for the reason that the sentence on
the review covering sheet and in the typed J15 is suspended
in
toto
”.





[3] The
sentence which appears on the review cover sheet reads as follows:
“Five thousand
Namibian Dollars or 5 years imprisonment wholly suspended for 5 years
on condition that accused is not convicted of possession of fire-arm
without a licence”.





[4] The
sentence which appears on the record of the court proceedings is a
direct term of 5 years imprisonment.





[5] It
is that the sentence reflected on the review cover sheet was entered
in error since the accused was never charged nor convicted of the
unlawful possession of a fire-arm.





[6] It
is furthermore my experience that it often occurs that the sentence
on the review cover sheet does not correctly reflect the sentence
imposed as reflected in the record of the proceedings.





[7] The
reason for this unacceptable situation, in my view, is the fact that
some magistrates do not read the record and compare such record with
the information appearing on the review cover sheet but they simply
sign the review documents with their eyes closed, figuratively
speaking.


What
other explanation could there be for such discrepancy
in
casu
between the
sentence imposed and the sentence which appears on the review cover
sheet ?





[8] I
am further of the view that some magistrates prepare review matters
in a lackluster manner which result in unnecessary delays in
finalizing those review matters





[9] Unquestionably,
the sentence which the accused should serve is the sentence which
appears in the record of the court proceedings and not the one which
appears on the review cover sheet.





[10] Since the sentence of 5 years imposed by the
magistrate was not a wrong sentence passed (see the provisions of
section 298 of the Criminal Procedure Act 51 of 1977), I do not deem
it necessary to make any order in this regard other than to confirm
it. Accordingly, the sentence is confirmed.








____________


HOFF,
J








I
agree








________________


SILUNGWE,
AJ