Court name
High Court
Case number
86 of 2012
Title

S v Tjikotoke (86 of 2012) [2012] NAHC 280 (29 October 2012);

Media neutral citation
[2012] NAHC 280
Coram
Damaseb JP
Hoff J













REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 86/2012







In the matter between:







THE STATE



and



ERASTUS TJIKOTOKE
..................................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 1380/2012)







Neutral citation:
The State v Tjikotoke
(CR 86/2012) [2012] NAHCMD 41 (29October
2012)







Coram: DAMASEB JP
and HOFF J







Delivered: 29
October 2012











Flynote: Sentence
– practice of taking counts together for purpose of sentence -
undesirable







Summary: The
accused was convicted of two counts of contravening the provisions of
the Road Traffic and Transportation Act 22 of 1999 and one count of
contravening a regulation of the Regulations published in terms of
the Act.







The three counts were
taken together for purpose of sentence and one comprehensive sentence
was imposed - Although the practice of taking counts together for
purpose of sentence is not prohibited by the Criminal Procedure Act
51 of 1977 such practice is undesirable for two reasons - Firstly,
the imposition of a comprehensive sentence in respect of dissimilar
offences of disparate gravity may create the difficulty on appeal or
review if the convictions on some but not all counts are set aside -
The problem that may confront the court of appeal or of review is to
determine how the trial court assessed the seriousness of each
offence and what moved it to impose the sentence which it did.







Secondly, why it is
undesirable to take detergent counts (especially divergent statutory
provisions) together for purpose of sentence, is the tendency of
losing sight of the legal principle that the imposition of a
comprehensive sentence should be a competent sentence in respect of
each of the individual counts so taken together - A comprehensive
sentence imposed in respect of two or more charges essentially means
that the single sentence is regarded as the punishment for each of
the separate offences and for that reason it is not competent to
impose such a sentence when its severity exceeds the jurisdiction of
the court in regard to one or more of the charges - Where the single
sentence imposed exceeds the maximum prescribed sentence in respect
of one of the charges such sentence is irregular and de jure a
nullity









ORDER





(a) The convictions in
respect of counts 1, 2 and 3 are confirmed.







(b) The sentence imposed
is set aside.








(c) The matter is
referred back to the presiding magistrate who is ordered to sentence
the accused afresh in respect of each of the three counts.







(d) The Chief Magistrate
is instructed to see to it that each and every magistrate in Namibia
is provided with a hard copy of this judgment.









JUDGMENT









HOFF J (DAMASEB JP
concurring):







[1] This matter came
before me by way of an automatic review. The accused person was
correctly convicted subsequent to pleas of guilty in respect of the
following statutory offences:



Count 1: Driving a
motorvehicle with no driver’s licence in contravention of the
provisions of section 31(1)(a) of the Road Traffic and Transport Act,
22 of 1999;



Count 2: Furnishing false
information (a false name) to an officer in contravention of the
provisions of section 84(b) of the Road Traffic and Transportation
Act, 22 of 1999; and



Count 3: Failing to wear
a safety belt in contravention of Regulation 232(4) of the Road
Traffic and Transport Regulations published in Government Gazette no.
2503 of 30 March 2001 and read with sections 1, 86 and 89 of Act 22
of 1999.







[2] The three counts were
taken together for purpose of sentence and a fine of N$3000 or 12
months imprisonment was imposed.







[3] I directed the
following query to the presiding magistrate:







Could you
please provide me with your reasons why the convictions in respect of
three distinct statutory contraventions had been taken together for
purpose of sentence ? Why was a separate sentence not imposed in
respect of each of the convictions ?’







[4] The presiding
magistrate replied inter alia as follows:







I am further
of the opinion that even though the accused pleaded to three distinct
statutory contraventions, that it came about through a single action
of the accused person. Thus I deemed it fit to take all three counts
together for the purpose of sentencing.’







[5] The magistrate did
not explain which single action she had in mind. It is nevertheless
debatable, having regard to the particular circumstances of this
case, whether the three statutory contraventions came about through a
single action of the accused person. In my view the furnishing of
false information to an officer and the failure to wear a seatbelt
are two distinct ways of conduct by the accused person.







[6] This court on a
number of occasions in the past held that although it is permissible
for a presiding magistrate to take counts together for the purpose of
sentence this must be done with circumspection and in line with the
guidelines of this court as well as judgments of other jurisdictions,

and that special care should be taken when dealing with
statutory offences. (See
S v Bisengeto
Kitungano
(unreported Namibian High Court
review judgment delivered on 27.4.2001),
S v
Eric Mbala
(unreported Namibian High Court
review judgment delivered on 5.11.2001),
S v
Mostert
1995 NR 131, S
v Haingura Alexander
(unreported Namibian
High Court review judgment delivered on 8.2.2002),
S
v Saltiel Shikongo
, (unreported Namibian High
Court review judgment, case number CR 144/2003 delivered on
3.10.2003),
S v Ananias Katjire
(unreported Namibian High Court review judgment case
number CR 84/2005 delivered on 20.07.2005
), S
v Mekondja Helao
(unreported Namibian High
Court review judgment CR 10/2012 delivered on 15.02.2012),
S
v Visagie
2010 (1) NR 271. See also S
v Hayman
1988 (1) SA 831 (NC), S
v Viljoen
1989 (3) SA 965 (T), S
v Young
1977 (1) SA 602 (A), S
v Setnoboko
1981 (3) SA 553 (O), S
v Mofokeng
1977 (2) SA 447 (O), S
v Swart
2000 (2) SACR 566 (SCA).







[7] The principle
guideline discernable from afore-mentioned judgments is that although
the procedure is neither sanctioned nor prohibited by the Criminal
Procedure Act 51 of 1977, the practise is undesirable and should only
be adopted by lower courts in exceptional circumstances.







[8] ‘Exceptional
circumstances’, may for instance be present where the charges
are closely connected eg. in a case where unlawful possession of a
fire-arm and unlawful possession of matching ammunition was obtained
at the same time or where the charges flow from one and the same act,
(Ananias Katjire (supra) ), or where the charges are closely
connected or similar in point of time, place or circumstance, (See S
v Akanda
2009 (1) NR 17 (HC) ).



[9] The first reason for
frowning upon the practice is the difficulty it might create on
appeal or review especially if the convictions on some but not all
counts are set aside. (S v Young (supra) ).







[10] In S v Immelman
1978 (3) SA 726 (AD) at 728 H – 729 A. Corbett JA explained the
‘difficulty’ of taking counts together for the purposes
of sentence in the following way:







In my view,
the difficulty can also be caused on appeal by the imposition of a
globular sentence in respect of dissimilar offences of disparate
gravity. The problem that may then confront the court of appeal is to
determine how the trial court assessed the seriousness of each
offence and what moved it to impose the sentence which it did. The
globular sentence tends to obscure this.’







[11] In the same vein
Trollip JA in
Young supra
stated that it induces to clearer thinking in determining the
appropriate sentences to treat each offence separately.







[12] The second reason
why it is undesirable to take divergent counts (especially divergent
statutory provisions) together for the purpose of sentence is the
tendency of losing sight of the legal principle that the imposition
of a comprehensive sentence should be a competent sentence in respect
of each of the individual counts so taken together. Where the
comprehensive sentence imposed is an incompetent sentence in respect
of any one of the individual counts which had been taken together for
the purpose of sentence, such a comprehensive sentence is irregular
and de jure a nullity and should be corrected. (
S
v Hayman
1988 (1) SA 831 (NC), S
v S
1981 (3) SA 3771).







[13] It has been stated
on this score that when one comprehensive sentence is imposed in
respect of two or more charges, it essentially means that the single
sentence is to be regarded as the punishment for each of the separate
offences and for that reason it is not competent to impose such a
sentence when its severity exceeds the jurisdiction of the court in
regard to one or more of the charges (
Hiemstra’s
Criminal Procedure
4th
Issue par 28 – 41).







[14] In S v Van Zyl
1974 (1) SA 113 (TPD) it was held (with reference to the
circumstances of that case) that although offences are created by one
and the same Ordinance and, broadly speaking, belong to the same
genus, it is preferable to impose separate sentences. It was further
held that even if it would be permissible to take counts together for
the purpose of sentence, no court is competent to impose a sentence
which is higher than the sentence prescribed for a single offence.







[15] This practice of
taking counts together for purpose of sentence has been described by
Chetty J in S v Ngabase 2011 (1) SACR 456 (ECG) at 467 (d), as
a lamentable practice, and correctly so.







[16] I shall now turn to
the prescribed penalties in respect of each of the convictions in
this review case and shall consider whether the magistrate was
justified in imposing the comprehensive sentence of N$3000 or 12
months imprisonment having regard to the afore-mentioned guidelines.







[17] The penalty
prescribed by section 106(7) of Act 22 of 1999 in respect of count 1
is a fine not exceeding N$2000 or to imprisonment not exceeding 6
months or to both such fine and imprisonment. The prescribed penalty
in respect of count 2 is the same, and in respect of count 3 it is a
fine not exceeding N$4000 or imprisonment not exceeding 12 months.







[18] It should now be
apparent that the comprehensive sentence imposed exceeds the maximum
prescribed penalties in respect of counts 1 and 2. The comprehensive
sentence imposed not only exceeds the maximum fine which may be
imposed but also exceeds the prescribed maximum term of imprisonment
in respect of each of these two counts. The comprehensive sentence
imposed is therefore an incompetent sentence and a nullity.







[19] The facts of this
case is an excellent example why the emphasis should not be that the
practice of taking counts together for purpose of sentence, is not
prohibited, but the emphasis should be that such a practice is
undesirable and magistrates should (save in exceptional
circumstances) as a general point of departure refrain from taking
counts together for purpose of sentence but in particular to refrain
from doing so in respect of statutory contraventions.



[20] This court has
fairly comprehensively dealt with the undesirability of
afore-mentioned practice in S v Mekondja Helao (supra)
delivered on 15 February 2012. I am aware of the fact that review
judgments of this court are being distributed to magistrates by way
of email. I was also informed that not all the magistrates are in a
position to access email due to the unavailability of computers
especially in rural areas.







[21] It cannot, in my
view, be over-emphasised that it is essential that all the
magistrates in this jurisdiction should read review judgments as well
as appeal judgments of this court in order to avoid the pitfalls
which are exposed in these judgments.







[22] In the result the
following orders are made:








  1. The convictions in
    respect of counts 1, 2 and 3 are confirmed.









  1. The sentence imposed is
    set aside.










  1. The matter is referred
    back to the presiding magistrate who is ordered to sentence the
    accused afresh in respect of each of the three counts.









  1. The Chief Magistrate is
    instructed to see to it that each and every magistrate in Namibia is
    provided with a hard copy of this judgment.
















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



E P B Hoff



Judge















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



P T Damaseb



Judge President