Namibia: Northern Local Division

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

REVIEW JUDGMENT

CR No.: 7/2016

DATE: 8 AUGUST 2016

In the matter between:

THE STATE

And

PENDUKENI SHIFULA........................................................................................................ACCUSED

HIGH COURT NLD REVIEW CASE REF NO: 105/2015

Neutral citation: S v Shifula (CR 7-2016) [2016] NAHCNLD 69 (8 August 2016)

Coram: JANUARY J and TOMMASI J

Delivered: 8 August 2016

Flynote: Review ─ Criminal procedure ─ Section 112(1)(a) ─ Possession of cannabis ─ Considering prescribed sentences and purpose of section 112(1)(a) as amended ─ not “minor offence ─ Misdirection ─ Conviction and sentence set aside.

Summary: The accused in this case was charged with dealing in cannabis and alternatively possession of cannabis in contravention of sections 2(a) and 2(b) respectively read with relevant sections of the Abuse of Dependence Producing Substances and Rehabilitation Centres Act, Act 41 of 1971. The magistrate applied section 112 (1) (a) of the Criminal Procedure Act (the Act) and convicted the accused person. Considering the purpose of section 112(1)(a), and the sentences in the Abuse of Dependence Producing Substances and Rehabilitation Centres Act, Act 41 of 1971, the offences cannot be regarded as minor. The magistrate misdirected herself. The conviction and sentence are set aside and the matter is referred back to the magistrate to apply section 112(1)(b) of the Act.

ORDER

1. The conviction and sentence are set aside:

2. These case is remitted to the magistrate with a direction that it is dealt with afresh from the stage of plea.

3. In the event of a conviction the sentencing court must have regard to the sentence already served.

JUDGMENT

JANUARY J and TOMMASI J (concurring)

[1] The accused in this case was charged with dealing in cannabis and alternatively possession of cannabis in contravention of sections 2(a) and 2(b) respectively read with relevant sections of the Abuse of Dependence Producing Substances and Rehabilitation Centres Act, Act 41 of 1971. The accused pleaded not guilty on the main charge but guilty on the alternative charge. The prosecutor accepted the plea on the alternative charge. The magistrate mero motu applied section 112(1)(a) of the Criminal Procedure Act 51 of 1977 and convicted the accused. Accused was sentenced to N$1000.00 or six months imprisonment.

[2] The wording of s 112(1)(a) of the Criminal Procedure Act 51 of 1977 makes it clear that the purpose of this provision should only be applied for minor offences.[1]

[3] Considering the prescribed fine of “in the case of a first conviction for a contravention of any provision referred to in section 2(b) or (d) of Act 41 of 1971, to a fine not exceeding R20 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment;  and the purpose of section 112(1) (a) to dispose of minor offenses expeditiously, I am convinced the offence cannot be regarded as a minor offence.

'Where the statutory provision contravened permits a sentence exceeding the limits provided for in s 112(1) (a) the accused cannot be convicted in the absence of questioning or the proof of guilt by evidence.'[2]

[4] The offence is a serious offence and the sentences provided for in the Act does exceed the limit of s 112(1)(a). It can never be dealt with under the provisions of section 112(1)(a) of the Criminal Procedure Act. What the magistrate did amounts to a misdirection.

[5] In the result;

1. The conviction and sentence are set aside:

2. The case is remitted to the magistrate with a direction that it is dealt with afresh from the stage of plea.

3. In the event of a conviction the sentencing court must have regard to the sentence already served.

HC JANUARY J

MA TOMMASI J