CASE NO.: CR 79, 80, 81, 82/2010 
IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE versus MUTINDA BRIAN
[HIGH COURT REVIEW CASE NO.: 769/2010] - [CR 79/2010]

THE STATE versus MANDUKU GERALD
[HIGH COURT REVIEW CASE NO.: 739/2010] - [CR 80/2010]

THE STATE versus CHIPODZE TOM
[HIGH COURT REVIEW CASE NO.: 1000/2010] - [CR 81/2010]

THE STATE versus DAVID NDATANUFA & 1 OTHER

Delivered on: 2010 OCTOBER 26

REVIEW JUDGMENTS SIBOLEKA, J.:
[1] The above accused persons in the four cases were charged in contravention of sections 12(1) and 12(4) of the Immigration Control Act, Act no. 7 of 1993.
Section 12(1) reads:
"12 Passports and Visas

[2]     In the Mutinda Brian matter the accused was charged as follows:

(a) Bearing a valid visa, or
(b) An endorsement by a person authorized thereto by the Government of Namibia indicating that the Minister or authorized officer granted authority to such person to proceed to Namibia, or without a document containing
(c) A statement to the effect that the Minister or authorized officer granted authority to such person to proceed to Namibia, and
(d) The particulars of such passport.
After being requested to do so and therefore did wrongfully and unlawfully enter/remain in Namibia, without valid permit."

[3] In this matter the allegation contained in section 12(1) of Act 7 of 1993 namely, that the accused failed, on demand by an Immigration officer, to produce an unexpired passport bearing a valid visa or endorsement is correctly reflected in the charge sheet. However, the learned Magistrate did not ask the accused to explain whether it was demanded of him by the Immigration officer to produce an unexpired passport bearing a valid visa or endorsement. The answer that would have been elicited by this question would have determined accurately whether the accused was guilty or not. The failure to ask a question on this important allegation of the charge sheet affects the conviction of the accused. It is therefore my considered view that the conviction of the accused on this matter cannot be allowed to stand.

[4] In the Manduku Gerald matter the accused was charged as follows:

"Remaining in Namibia without a valid document
The accused is guilty of Contravening Section 12(1) of Act 7 of
1993 (Immigration Act).

In this matter the charge sheet is defective because it omitted the integral part creating the offence contained in section 12(1) namely, the failure by an accused on demand by an Immigration officer, to produce an unexpired passport bearing a valid visa or endorsement. It could be the reason why the learned Magistrate did not cover this aspect in his questioning in terms of section 12(1)(b) of Act 51/77.

[5]     In the Chipodze Tom matter the accused was charged as follows:

"Remaining or entry into Namibia without an unexpired passport bearing a valid visa or authority. "

That the accused is/are guilty of contravening section 12(1) read with

sections 1, 2 and 12(4) of the Immigration Control Act 7 of 1993.

(a) Bearing a valid visa, or
(b) An endorsement by a person authorized thereto by the Government of Namibia indicating that the Minister or authorized officer granted authority to such person to proceed to Namibia, or without a document containing
(a) A statement to the effect that the Minister or authorized officer granted authority to such person to proceed to Namibia, and 
(b) The particulars of such passport.

After being requested to do so and therefore did wrongfully and unlawfully enter/remain in Namibia."

[6] In this matter, the charge sheet correctly reflects the integral allegation that creates an offence in section 12(1) of Act 7 of 1993, namely a failure by the accused on demand by an Immigration officer, to produce an unexpired passport bearing a valid visa or endorsement. However, the learned Magistrate did not ask the accused whether there was a demand made to him by the Immigration officer to produce an unexpired passport bearing a valid visa or endorsement. This failure is fatal and it goes to the core of the conviction. In the light thereof the conviction in this matter cannot be allowed to stand.

[7] In the David Ndatanufa matter the two accused were charged as follows:

"Charge: Being in Namibia without a valid passport or permit. That the accused is guilty of C/S 12(4) of the Immigration Control Act 7/1993.

In this matter the charge is defective because it does not allege that the accused was refused entry into Namibia prior to his arrest for being found in Namibia. Section 12(4) of Act 7/1993 reads:

The omission in the charge lead to the accused persons not being asked whether they were refused entry in this country before their arrest.

139/2008 both unreported).

[9] In the result the convictions and sentences in all four cases are set aside.
SIBOLEKA, J

I agree.

PARKER, J