CASE NO.: CR 04/2012

IN THE HIGH COURT OF NAMIBIA
HELD AT OSHAKATI

In the matter between:

THE STATE

and

SHIDOLO WALDE

(HIGH COURT REVIEW CASE NO.: 26/2012)

CORAM: 	LIEBENBERG, J. et  TOMMASI, J.

Delivered on:  21 February 2012 

REVIEW JUDGMENT

LIEBENBERG, J.:    [1]   The accused appeared before the Magistrate’s Court, Oshakati and pleaded guilty on a charge of contravening s 72 (1)(n) of the Liquor Act in that he unlawfully sold beer.  Although it is not alleged in the charge that the accused acted without being the lawful holder of a liquor licence issued to him in terms of the Act or in contravention with such licence – thereby omitting an essential ingredient from the charge, making it as such defective – the magistrate, when questioning the accused in terms of s 112 (1)(b) of the Criminal Procedure Act, did elicit answers from the accused according to which he admitted that when selling the liquor, he was not the holder of a valid licence; thus, curing the defect in the charge.  The conviction is in order and must be confirmed.

[2]   However, there is a need for the prosecution to meticulously formulate charges against accused persons, especially where the trial court during questioning in terms of s 112 (1)(b) would be guided by the elements of the charge and the allegations contained therein.  Slovenly or ill-considered charges could lead to a miscarriage of justice and should be avoided at all times.

[3]   The wording of the sentence imposed by the court is not only clumsy, but the word “committed” was also omitted as a condition of suspension.  Hence, the sentence is amended to read as follows:
	‘N$2 000 or 12 months’ imprisonment of which N$1 000 or 6 months’ 	imprisonment is suspended for 2 years on condition that the accused is 	not convicted of the offence of selling liquor without a licence (c/s 72 	(1)(n) of Act 6 of 1998), committed during the period of suspension.’
	The sentence date remains the same.

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LIEBENBERG, J

I concur.

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TOMMASI, J