S v Petrus (CR 91-2022) [2022] NAHCMD 452 (01 September 2022) – Criminal law – Review - Terms of imprisonment disproportionate to fines

The accused was convicted of two counts in the district court of Swakopmund. In respect of count 1, he was convicted of negligent driving in contravention of section 80 of the Road Traffic and Transportation Act 22 of 1999 as amended and sentenced to pay a fine of N$2 000, or 12 months imprisonment. In respect of count 2, he was convicted of failure to ascertain damages in contravention of section 49(1) of Act 22 of 1999 and sentenced to pay a fine of N$1 000, or six months’ imprisonment. The matter came before the High Court on automatic review. The convictions on both charges were in order but the sentences were not. 

The review court took issue with the sentence in that in both counts, the terms of imprisonment were disproportionate to the fine amounts. In S v Michael Dickson unreported case 848/2000 delivered on 2002.08.09, Hoff J (as he was then) set aside a sentence of N$300 or 18 months imprisonment because of the disproportionate ratio between the fine and the imprisonment based on the principle that when a judicial officer intends to sentence an accused to a fine with an alternative of imprisonment he or she should arrange the sentence in such a way that the alternative of imprisonment is proportional to the fine and the gravity of the offence. 

As far as the sentence in count 1 is concerned, 12 months imprisonment is too harsh in relation to a fine of N$2 000 and so is six months imprisonment in relation to a fine of N$1 000 in respect of count 2. In the result, the following order was made:

The convictions in count 1 and count 2 was confirmed. 

The sentences in both counts were set aside and substituted as follows:

Count 1: The accused is sentenced to pay a fine of N$2 000 or six months imprisonment.

Count 2: The accused is sentenced to pay a fine of N$1 000 or three months imprisonment.

The sentences were backdated to 10 August 2022.

S v  Bashala (CC 30-2018) [2022] NAHCMD 465  ( 8 September 2022) – Criminal law – Sentence – Smuggling of immigrants in contravention of POCA

The accused pleaded not guilty to all the charges preferred against her in terms of the Prevention of Organised Crime Act (POCA). The allegations were that during December 2017 to April 2018, she aided in the smuggling of Congolese nationals into Namibia for purposes of obtaining financial or other material benefit. After a full-fledged trial, the accused was acquitted on some of the charges. She was, however, found guilty in respects of counts 13, 14 and 15 respectively and convicted as charged. The sentencing court had to consider the appropriate sentence on those three charges. 

In aggravation, the state led evidence of two witnesses, and the accused testified in mitigation. The court had the duty to weigh up the accused’s personal circumstances, the crime committed and the interests of society. It is against that background that the United Nations Convention against Transnational Organised Crime and the Protocol was established with the main purpose to prevent and combat the smuggling of migrants as well as to promote cooperation among State parties to that end, while protecting the rights of smuggled migrants.   

Namibia is a party to that Protocol. The victims were vulnerable persons exploited for money under pretext they will be relocated to other countries for better living conditions, and, they were running away from war in their country. It was accepted that the accused suffers from ill health, but ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. Society expects that a person who has committed a crime be punished, and as such, it would not be in the interest of society when persons like the accused trample on the values and rights of others to go unpunished.

Whereas it is trite that a sentencing court must strive to balance an accused person’s personal circumstances, the crime committed and the interest of society, it does not necessarily mean that equal weight must be given to those competing interest. Though a suspended sentence has a deterrent effect on the offender, it cannot be an appropriate sentence under the circumstances of this particular case. It is desirable that justice must be seen to be done through sentences imposed on perpetrators of serious crimes such as the present one. 

As a result, the accused was sentenced as follows:

Count 13: three years imprisonment.

Count 14: three years imprisonment.

Count 15: three years imprisonment.

It was ordered that the sentences in respect of counts 13 and 14 run concurrently with the sentence in count 15.

Shivute v President of the Republic of Namibia(HC-MD-CIV-MOT-GEN-2021-00288) [2022] NAHCMD 464 (8 September 2022) – Security Certificate

Having found that the applicant was unfairly dismissed and should be reinstated, the court had to deal with the issue of the applicant’s security certificate, which is required in terms of s 8(2) of the Namibia Central Intelligence Service Act of 1997. Counsel for respondents contended that applicant cannot be reinstated because his security certificate lapsed due to his dismissal and there was no security vetting done as was mandatory. 

The court disagreed with that argument and reasoned that the applicant was employed at NCIS until 7 June 2021. There was no evidence that applicant’s security profile changed since then. There was also no allegation that the security certificate that must have been issued in order to enable his employment with NCIS in the first place had been withdrawn in terms of section 8(3) of the Act.

In terms of section 8(3) of the Act, the director may withdraw such certificate only on the basis of a reasonable opinion that a staff member may be a security risk, but this was not the case in casu. Therefore, the Director was obliged to issue the required security certificate in order to enable the applicant’s reinstatement.

Guriras v S(HC-MD-CRI-APP-CAL-2022-00087) [2022] NAHCMD 472 ( 9 September 2022) – Criminal law – Appeal against sentence – Theft by employee from employer 

The appellant appeared in the Outjo Magistrate’s Court on a single charge of theft involving an amount of money. She pleaded guilty and was convicted and subsequently sentenced to four years imprisonment. The appellant appealed to the High Court against the sentence on several grounds, among others that, the four years imprisonment was so severe that it induced a sense of shock in comparison to sentences imposed in similar cases and that the magistrate failed to show mercy in light of her personal circumstances. 

The High Court considered the appeal and held that: 

The court a quo correctly considered the seriousness of the crime, its prevalence and the duty of the court to impose competent sentences taking into account all relevant factors.

The fact that the appellant stole from her employer thereby abusing the position of trust between an employee and employer relationship, was equally important or more important.

In the result, the appeal against sentence was dismissed. 

S v Gaoe (CR96-2022) [2022] NAHCMD 470 (9 September 2022) – Criminal law – Magistrate other than the magistrate who convicted may pass sentence; one magistrate can commence trial where accused pleaded before another magistrate 

The accused was charged with count 1 – Theft of stock in terms of section section 1(1) (a), 1,14 and 17 of the Stock Theft Act 12 of 1990 as amended. In the alternative to count 1: possession of suspected stolen stock contravening section 2 read with section 1, 11(1) (a), 15 and 17 of Act 12 of 1990 as amended.

Count 2: Theft-general deficiency.

The accused appeared before the initial magistrate and pleaded not guilty to count 1 and 2, and pleaded guilty to the alternative to count 1 of being in possession of suspected stolen stock. The court proceeded in terms of section 112 (1) (b) of the CPA in respect of the first alternative count. Subsequently, the accused was acquitted in respect of count 1 and found guilty in respect of the first alternative count of possession of suspected stolen stock. The court then applied section 115 of the CPA, which is a not guilty plea, in respect of count 2. Thereafter, the matter was postponed several times for trial in respect of count 2 due to unavailability of the magistrate.

On 11 May 2022, the case appeared before another magistrate who decided to proceed with the trial and acquitted the accused in respect of count 2. He sentenced the accused in respect of the first alternative count to a fine of N$2 000.oo or in default of payment, eight months imprisonment of which N$500.oo or two months were suspended for a period of three years on condition that accused is not convicted for the offence of possession of suspected stolen stock committed during the period of suspension.

The review court directed a query to the second magistrate who presided over the matter to inquire what happened to the first magistrate and why he took over a partly heard matter. The magistrate respondent that he failed to indicate on the record what happened to the initial magistrate, but she was transferred to Windhoek, and that the matter was not a partly heard as no evidence was led before the initial magistrate. He then relied on section 118 of the CPA which deals with the non-availability of a judicial officer after a plea of guilty.

The High Court considered the applicable law and stated that: In respect of the alternative to count 1, a conviction was entered by the initial magistrate, section 275 which provides for a sentence by a judicial officer other than the judicial officer who convicted, became applicable when the new magistrate took over the matter and sentenced the accused. 

In respect of count 2, it was held in S v Immanuel CR 23/2010 (unreported) delivered on 29 September 2010 that it is not irregular for one magistrate to commence with the trial where the accused had pleaded before another magistrate as long as the record reflects that the magistrate before whom the accused had pleaded, is not available and no evidence has been adduced yet. Section 118 of the CPA deals with such scenario thus:

“If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court.”

S v Immanuel referred to S v Wellington 1991 (1) SACR 144 (Nm) where it was stated that the section 118 procedure can only be used where the original presiding officer is not available and does not entitle the prosecution to proceed before another presiding officer for any other reason, as such would constitute an irregularity. In S v Mwalyombu (CR 58/2017) [2017] NAHCMD 271 (25 September 2017) the court had to consider the fatality of such an irregularity, and found that the irregularity did not vitiate the proceedings as the trial proceedings were in accordance with justice and the accused suffered no prejudice.

In casu, there was no indication on the record of proceedings of 11 May 2022 that the initial magistrate was not available to continue with the trial which results in an irregularity, however, considering the trial proceedings and whether the accused was prejudiced, I am of the opinion that the irregularity is not fatal to make the proceedings defective, thus the conviction and sentence is confirmed on review. 

In the result, the conviction and sentence were confirmed. 

Fedden Mainga Mukwata is an admitted Legal Practitioner writing in his personal capacity as part of The Promotion of Law and Justice Project. He may be reached at fedden@consultfasz.com.