Court name
High Court
Case number
21 of 2012
Title

S v Sitali (21 of 2012) [2012] NAHC 82 (20 March 2012);

Media neutral citation
[2012] NAHC 82
Coram
Parker J
Siboleka J





CASE NO











CASE NO.: CR 21/2012







Not
Reportable”











IN THE HIGH COURT OF NAMIBIA







In the matter between:











THE STATE







vs







SITALI SISEHO SITALI







(HIGH COURT REVIEW CASE NO.:
309/2012)











CORAM: PARKER J et,
SIBOLEKA J







Delivered on: 2012 March 20



_________________________________________________________________







REVIEW
JUDGMENT



_________________________________________________________________



PARKER, J [1] Before the
Katima Mulilo Magistrates Court, the accused pleaded guilty to the
common law charge of escaping from lawful custody. He was found
guilty on his own plea 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 take place within the suspended period of 12 months. 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)’, for example, 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.









  1. 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, of which two hundred dollars (N$200-00) or two months
are suspended for a period of three (3) years on condition that the
accused is not convicted of the common law offence of escaping from
lawful custody, committed during the period of suspension.











__________________



PARKER, J







I agree.



















__________________



SIBOLEKA, J