Court name
High Court
Case number
81 of 2012
Title

S v Ntita and Others (81 of 2012) [2012] NAHC 254 (04 October 2012);

Media neutral citation
[2012] NAHC 254
Coram
Geier J
Miller AJ













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CR 81/2012








In the matter between:








THE STATE



and



KABAMBA NTITA
..............................................................................
FIRST
ACCUSED



PEDRO KIBANDA
.........................................................................SECOND
ACCUSED








Neutral citation: The
State v Ntita
(HC 1543/2012) [2012] NAHCMD 13 (04 October 2012)








Coram: GEIER J et
MILLER AJ



Delivered: 04
October 2012








Flynote:
The accused persons were charged in the main with
contravening Section 3(a) of the Abuse of Dependence Producing
Substances and Rehabilitations Centres Act 41 of 1971 – the
state accepted a plea of guilty in terms of section 3(b) of that Act.
- the penal provisions of the Act in the case of a conviction
of any provision of paragraph (b) only providing for a fine not
exceeding R10 000.00 or to imprisonment for a period not exceeding 5
years…..” – the court however imposed a fine of N$
12000.00 in excess thereof – on review magistrate conceding
error – court setting aside sentence and sentencing
each accused to a fine of N$10 000.00 or in default of payment to 12
months imprisonment













Summary:
The accused persons were charged in the main with
contravening Section 3(a) of the Abuse of Dependence Producing
Substances and RehabilitationsCentres Act 41 of 1971 – the
state accepted a plea of guilty in terms of section 3(b) of that Act.
- the penal provisions of the Act in the case of a conviction
of any provision of paragraph (b) only providing for a fine not
exceeding R10 000.00 or to imprisonment for a period not exceeding 5
years…..” – the court however imposed a fine of N$
12000.00 in excess thereof – on review magistrate conceding
error – court setting aside sentence and sentencing
each accused to a fine of N$10 000.00 or in default of payment to 12
months imprisonment










ORDER
















  1. The sentence of the
    court a quo is hereby set aside










  1. The accused persons are
    sentenced each to a fine of N$10 000.00 or in default of payment to
    12 months imprisonment.











JUDGMENT










GEIER J (MILLER AJ
concurring):








[1] This
matter comes to court by way of automatic review.








[2] Having considered the
record the reviewing judge remarked as follows:



The
accused persons were charged in the main with contravening Section
3(a) of the Abuse of Dependence Producing Substances and
Rehabilitations Centres Act 41 of 1971.








The
alternative count preferred was one of contravening section 3(b) of
that Act-








After
questioning by the court the State indicated that it would not pursue
the main charge and that it would accept a plea of guilty on the
alternative charge.



The
court was satisfied that all the elements of the alternative charge
had been proved and thus convicted both the accused persons on the
alternative charge and acquitted them on the main count.



The
court then proceeded to sentence both to a fine of N$12000 or in
default of payment to 15 months imprisonment.



Section
3(b)(ii) of Act 41 of 1971 however provides that:



(ii)
in the case of a
conviction
of
any provision of paragraph (b), to a fine not exceeding R10 000.00 or
to imprisonment for a period not exceeding 5 years…..”



The
learned magistrate is requested to explain why he imposed a fine of
N$12000 in this instance.’








[3] To this query the
following response was received:








I
do concede my lord it is evident that I acted ultra vires with regard
to the fine that I imposed, the oversight is regretted. I would
however like to point out that I was mislead by annexure B containing
the penalty clause for contravention of section 2 of Act 41 of 1971.



It
is therefore my humble request that my lord invokes section
304(2)(c)(ii) of Act 51 of 1977 and quash the fine of
N$12000.00 and substitute it with a fine of N$10000.00 which falls
within the penal confines of section 3 of Act 41 of 1971’








[4] It appears from the
above exchange that the underlying legal position pertaining to this
review is clear and that the concession made by the learned
magistrate was correctly made.








[5] In addition I can see
no reason not to substitute the sentence as suggested -which
reduction - in any event - would be to the benefit of the accused
persons.








[6] In the result the
sentence of the court a quo cannot stand and it is hereby set aside
and substituted with the following sentence:








The
accused persons are sentenced each to a fine of N$10 000.00 or in
default of payment to 12 months imprisonment.’




























----------------------------------



H GEIER



Judge























----------------------------------



PJ MILLER



Judge (Acting)