Court name
High Court
Case number
22 of 2012
Title

S v Christo (22 of 2012) [2012] NAHC 81 (19 March 2012);

Media neutral citation
[2012] NAHC 81
Coram
Hoff J
Miller AJ













CASE NO.: CR 22/2012













IN THE HIGH COURT OF
NAMBIA













In the matter between:













THE STATE








versus








ZOMBO MUSOKI CHRISTO
…..............................................................
ACCUSED
1



GARCIA MANKENENE
…......................................................................ACCUSED
2



(HIGH COURT REVIEW
CASE NO.: 406/2012)













CORAM: MILLER, AJ
et HOFF, J








DELIVERED ON: 19
March 2012













REVIEW JUDGMENT













MILLER, A J
[1] In this matter the two accused were arrested at the Noordoewer
border post on 18 March 2011 and charged with contravening Section 29
(5) of the Immigration Control Act, Act 7 of 1993.













[2] The gravamen of the
charge was that each of them, being foreigners, had remained in
Namibia, after the time period to be in Namibia stipulated in an
entry permit had expired.








[3] The facts relating to
each of the accused are not related and it is apparent that each had
committed a separate offence.








[4] Despite this they
were charged jointly on the same charge sheet. Each pleaded guilty
and were convicted following the answers they gave pursuant to
questions put to them in terms of Section 112 (1) (b) of Act 51 of
1977.








[5] Accused 1 was
sentenced to a fine of N$1 500-00 or 7 months imprisonment. Accused 2
was sentenced to a fine of N$1 000-00 or 5 months imprisonment.








[6] When the case was
submitted to me for purposes of review I addressed the following
remarks to the magistrate:



The
Reviewing Judge remarks as follows:




  1. The
    learned magistrate is requested to provide reasons why the two
    accused, who committed different offences, albeit on the same
    day were charged jointly.




Your
urgent reply will be appreciated.”













[7] To this the
magistrate responded as follows:



After
perusing the remarks of the Honourable Reviewing Judge my response is
as follows:














  1. In
    the present matter both accused persons were arrested on the same
    day and at the same place on the 18th March 2011 and at
    Noordoewer border post.



  2. The
    court relied on Section 156 of the Criminal Procedure Act, Act 51 of
    1977 which reads as follows:




Any
number of persons charged in respect of separate offences committed
at the same place and at the same time, may be charged and tried
together in respect of such offences if the prosecutor informs the
court that evidence admissible at the trial of one of such persons
will in his (her) opinion, also be admissible as evidence at the
trial of any other such person or persons.”








In
the present case the accused persons were arrested by the same
Immigration officer upon their exit. If evidence were to be led it
ought to have been similar evidence from the same officer.








I
perused the cases of S v Chawe en Ander 1970 (2) 414
(only the head note which is in English) and that of S v Marimo
and others 1973 (2) 442
. I found those cases to be
distinguishable from the present in the sense that in the Chawe case
one accused was used to implicate the other yet in the Marimo case a
“mass trial” was held on accuseds facing completely
unrelated charges. In the present case the accused persons are
charged with violation Section 29 (5) of Act 7 of 1993, after they
had both entered Namibia on the 12th January 2011, but
granted entry permits of differing lengths. They then over-stayed by
a different number of days yet they were arrested on the same day at
the same place.























At
their trial separate charge sheets were put to them and they pleaded
to them separately. Upon their pleas of guilty they were questioned
in terms of Section 112 (1) (b) resulting in their convictions. In
the event that the court a quo committed a misjoinder, there
is no apparent substantial miscarriage of justice ex-facie the
case record. Nonetheless if this court misdirected itself on the
application or interpretation of the law I humbly seek learned
guidance from his Lordship.








As
it pleases his Lordship, the Honourable Reviewing Judge.








M.
Dube



District
Magistrate



KARASBURG








[8] In my view the
magistrate’s reliance on Section 156 of Act 51 of 1977 is
misplaced.








[9] Firstly the
prosecutor did not inform the court that in his opinion evidence
admissible against one accused was also, in his opinion admissible
against the other. Quite clearly the prosecutor could not have formed
such an opinion.








[10] Evidence that
accused no. 1, for instance, had overstayed the period within which
he was allowed to be in Namibia, was not admissible against accused
no. 2, such evidence being entirely irrelevant. Nor can it be said,
in my view that the offences were committed at the same time and at
the same place. The only common denominator is the fact that they
were arrested at the border post by the same person.








[11] I accordingly find
that the accused were improperly joined, which constitutes on
irregularity.








[12] The fact of the
irregularity did not, however cause either of the accused to suffer
any prejudice in the instant case.








[13] I will therefore
confirm the convictions and the sentences imposed.























_________



MILLER AJ


















I agree


















___________



HOFF, J