REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Mashura Dambudzo | Case No: CR 40/2021 |
High Court MD Review No: 407/2021 | Division of Court: Main Division |
Heard before: Judge January et Judge Claasen | Delivered on: 18 May 2021 |
Neutral citation: S v Dambudzo (CR 40/2021) [2021] NAHCMD 240 (18 May 2021) | |
The order:
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Reasons for order: |
Claasen J (concurring January J)
‘Immigration Control Act– Remaining into Namibia without documentation be it an unexpired passport bearing a valid visa or authority Count 1 ( in respect of accused 1) That the accused is/are guilty of contravening section 56(g) read with sections 1, 2 and 12(4) of the Immigration Control Act, Act 7 of 1993 Accused In that upon or about the 21st day of November 2020 at or near Total Service Station in the district of Okahandja the accused, not being a Namibian citizen or a person domiciled in Namibia, did wrongfully and unlawfully remained in Namibia without any documentation to wit an unexpired passport
or without a document containing
‘contravenes or fails to comply with any provision of this Act, if such contravention or failure is not elsewhere in this Act declared an offence, …’ My emphasis. It is thus apparent that a contravention of s 56(g) of the Act cannot be correct as the charge particulars contain fragments from s 12(1) of the Act.
The charge herein does not refer to entry into Namibia and failing to produce to an immigration officer a valid passport with a visa or any other authorisation. It is safe to conclude that s 12(1) of the Act is not applicable.
‘It is, however, an essential element of the latter offense that, prior to him being found in Namibia, he should have been refused entry into the country under the provisions of s 12(1) of the Act. In the absence of such an allegation, the charge did not comply with the provisions of s 12(4) relating to the essentials of the charge and was as such objectionable within the meaning of s 85(1)(a) of the Criminal Procedure Act 1977.’
‘While it is advisable for the magistrate to have checked, especially in the case of an undefended accused, the wording of the charge sheet, particularly in the case of more obscure statutory offences, the prosecutor is primarily to blame for framing the charge sheet in this way. Although it is not compulsory and not always necessary, it is, generally speaking, advisable to follow the wording of the statutory provision when framing a charge. This will usually lead to a proper and accurate charge being drawn.’ Had the court officials followed this advice, there would have been no need for the matter to be set aside and for the court a quo to redo the same case, should the Office of the Prosecutor General decide to charge the accused afresh. The matter illustrates that one cannot assume that because this particular district does not have border posts, immigration offences are off limits. It is better to remain vigilant especially when it is an unfamiliar offence.
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C M CLAASEN JUDGE | H C JANUARY JUDGE |
1 S v Ngono 2005 NR 34 (HC)
2 S v Wellem; S v Nkomo 2009 (1) 352 (HC)
3 S v Aukumeb 2009 (1) NR 21 Para 6 E-F
Documents citing this one 1
Judgment 1
1. | S v Kanseb (CR 59 of 2022) [2022] NAHCNLD 115 (19 October 2022) |