Court name
High Court
Case number
8 of 2012
Title

S v Shitana (8 of 2012) [2012] NAHC 73 (16 March 2012);

Media neutral citation
[2012] NAHC 73
Coram
Liebenberg J
Tommasi J















CASE NO.: CR
08/2012







IN THE HIGH COURT OF NAMIBIA:



NORTHERN LOCAL DIVISION



HELD AT OSHAKATI







In the matter between:







THE STATE







and







(1) SAM SHITANA



(2) SHAMBWANGALA MONIKA







(HIGH COURT REVIEW CASE NO.:
194/2010)







CORAM: LIEBENBERG,
J. et TOMMASI, J.







Delivered on: 16 March 2012











REVIEW JUDGMENT















LIEBENBERG,
J.:

[1] Accused persons appeared in the Magistrate’s Court
Outapi on a charge in contravention of s 71 (1)(n) of the Liquor Act,
1998
1
and after evidence was led, both were convicted and sentenced to a
fine, wholly suspended on the usual conditions.







[2] The charge is
one of selling liquor without a licence according to which
“Tassenbergs;
Windhoek lagers; Tafel Lagers and Richeliu”
(sic)
were sold without a licence. In evidence, a police officer (rank
unknown) by the name Shanyenganga Onesmus, testified that he found
second accused inside a bar where
“she
was selling, busy supplying beers and other drinks to the customers.”

No evidence was led as to whether the liquor allegedly sold by
second accused satisfies the definition of “liquor” as
prescribed in s 1 of the Liquor Act which, as far as it concerns
spirituous liquor, wine, or beer,
must
contain three percent or more by volume of alcohol.

In order to secure a conviction under this charge, it must be proved
by the State that the liquor sold by the accused satisfies the
definition set out in the Act. The court would neither have been
entitled to take judicial notice that the liquor listed in the charge
satisfy that requirement.







[3] This Court in
The
State v Elizabeth Mbinga; The State v Naemi Mwatile
2
at
para [7] said:







“From
the definition it is clear that the Legislature did not proscribe the
selling without a liquor licence of
all
spirituous liquor, wines and (traditional) beers, but only those
which
contain three percent or more by volume of alcohol
.
In my opinion, given the fact that liquor is defined in the Act,
the percentage by volume of alcohol forms an
element
of the offence under consideration which therefore, must be
contained in the charge; and one that should be admitted by the
accused pleading guilty on a charge under section 71 (1)(n) of the
Act.”







Where there is no
plea of guilty to the charge or an admission made to that effect and
the matter goes on trial, obviously, the onus is on the State to
prove that the liquor alleged to have been sold by the accused,
contain three percent or more by volume of alcohol; and by failing to
do so, the charge has not been proved against the accused.







[4] In the
present case an essential ingredient of the charge had been omitted
making it defective and which was not cured by evidence at the trial
proving the matter which should have been averred.
3







[5] In the result, the conviction
and sentence in respect of both the accused are hereby set aside.











_________________________



LIEBENBERG,J







I concur.







_________________________



TOMMASI, J



1
Act No 72 of 1998




2
Unreported Case No CR 29/2011 delivered on 28.09.2011




3
S 88 of the Criminal Procedure Act, 1977