2

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 19/2016

In the matter between:

THE STATE

and

LAURENTIUS VISSER ACCUSED

Neutral citation: St v Visser (CR 19/2016) [2016] NAHCMD 70 (11 March 2016)

Coram: SIBOLEKA J and USIKU J

Delivered: 11 March 2016

Flynote: Criminal law: The condition of suspension must be clearly stipulated so that the accused knows exactly what he should not do during the period of suspension.

Summary: Accused was convicted for possession of dangerous dependence-producing drug to wit 1.1266g of mandrax containing methaqualone of an unknown value.

Held: The condition of suspension is confusing and the sentence is accordingly set aside.

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ORDER

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The conviction is confirmed.

The sentence is set aside and substituted with the following: Fined N$2 000 (two thousand Namibia dollars) or in default of payment (12) months imprisonment of which N$1 000 or (6) six months are suspended for five years on condition that the accused is not convicted of dealing/Possession of Dependence producing substances in contravention of section 2(a) or 2(b) of Act 41 of 1971 as amended. The sentence is antedated 16 July 2015.

REVIEW JUDGMENT

SIBOLEKA J (USIKU J concurring):

[1] This is a review matter.

[2] The accused appeared in the Magistrate’s Court at Gibeon, Mariental district on a charge of possession of 1.1266g mandrax containing methaqualone of an unknown value. He pleaded guilty and the matter was disposed off in terms of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 as amended. He was sentenced as follows:

“Sentence: Fined N$ 2 000 (two thousand Namibian Dollars) of which N$1 000 (one thousand Namibian Dollars) is suspended for a period of 5 (five) years on the following conditions: 1. On the condition that the accused is not convicted of contravening section 2(c) of the abuse of dependence producing substances and rehabilitation centres act 41 of 1971 as amended – possession of a dangerous dependence producing drug committed during the period of suspension.

And 12 (twelve) months imprisonment of which 6 (six) months is suspended for a period of 5 (five) years on the following conditions: 1. On the condition that the accused is not convicted of contravening section 2(c) of the abuse of dependence producing substances and rehabilitation centres act 41 of 1971 as amended – possession of a dangerous dependence producing drug committed during the period of suspension date of sentence: 16/07/2015

[3] The above condition of suspension is confusing and difficult to understand. It is for this reason that it should not be allowed to stand.

[4] In the result I make the following order:

The conviction is confirmed.

The sentence is set aside and replaced with the following: Fined N$2 000 (two thousand Namibian Dollars) or in default of payment (12) twelve months imprisonment of which N$1 000 or six months are suspended for five years on condition that the accused is not convicted of dealing/possession of dependence producing substances in contravention of section 2(a) or 2(b) of Act 41 of 1971 as amended, committed during the period of suspension. The sentence is antedated 16 July 2015.

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A M SIBOLEKA

Judge

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D N USIKU

Judge