CASE NO.: CR 19/2012

“Not Reportable”

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

TAWANA DERICUS

(HIGH COURT REVIEW CASE NO.:
304/2012)

CORAM: PARKER J et,
SHIVUTE J

Delivered on: 2012 February 29

_________________________________________________________________

REVIEW
JUDGMENT

_________________________________________________________________

PARKER, J [1] Before the
Katima Mulilo Magistrates Court, the accused pleaded not guilty to
the main charge of attempted murder and guilty to the alternative
charge of negligent discharge of a firearm in contravention of s.
(1)(o), read with s. 1, s. 37(1), s. 38(2) and s. 39 of Act 7 of
1996. He was found not guilty of the main charge but convicted on
his own plea of guilty on the alternative charge and sentenced
accordingly.

[2] The formulation of the condition
is wrong because the suspension is subjected to the condition that
both the commission of the offence and the accused’s conviction
should be within the suspended period of three years. A condition of
suspension should not be formulated in such a way as to include both
the commission of the offence and the conviction of the accused in
the period of suspension because, for all manner of reasons, it can
happen that the conviction only follows after the period of
suspension has expired. If that happens, the suspended imprisonment
cannot be put into operation because the accused would not been
convicted within the period of suspension. Additionally, a sentence
of a fine that merely says ‘One thousand Namibia dollars
(N$1,000-00)’ is, with respect, meaningless. The phrase ‘A
fine of’ should proceed what is in reality a fine.

[3] In the result, I make the
following order:

1. 
   The conviction and sentence are
   confirmed.

   
   

2. 
   The condition of suspension is
   deleted and the following condition is substituted therefor:

   
   

A fine of one thousand Namibian
dollars (N$1 000-00) or in default of payment six (6) months’
imprisonment, wholly suspended for a period of five (5) years on
condition that the accused is not convicted of contravening the
provisions of Act 7 of 1996, committed during the period of
suspension.

3. 
   In terms of section 10 (of Act 7 of
   1996) enquiry the accused is declared unfit to possess a firearm for
   twenty four (24) months.

   
   

4. 
   The Bickel 4.5 mm short gun is
   forfeited to the State in terms of section 35 of Act 51 of 1977.

   
   

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PARKER, J

I agree.

____________________

SHIVUTE, J