CASE NO.

: CA 50/2010 IN THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI In the matter between: KAMBAMBI MUSUTA versus THE STATE RESPONDENT APPLICANT

CORAM: Heard on: Delivered on: APPEAL JUDGMENT TOMMASI J [1]

LIEBENBERG J & TOMMASI J 18 March 2011 24 June 2011

The appellant was convicted of theft read with the

provisions of the Stock Theft Act, 12 of 1990 (as amended) in the district court on his plea of guilty. regional court. The The accused was committed to be sentenced in the regional court imposed a sentence of 20 years
1

imprisonment of which 10 years were suspended for five years on condition that the appellant is not convicted of stock theft read with the provisions of the Stock Theft Act, 12 of 1990 (as amended) committed during the period of suspension.

[2]

The appellant lodged an appeal against the sentence imposed by the

regional court in person and was represented amicus curiae at the appeal hearing by Ms Ndalulilwa.

[3]

Counsel for the respondent, Mr Lisulu took issue with the manner in

which the notice of appeal was drafted indicating that it does not comply with rule 67 of the Magistrates Court Rules. He submitted that the grounds

contained therein do not have the requisite particularity and requested that the matter be struck off the roll. The Court however asked both counsel to address the Court on whether there was compliance with the procedure set out in section 114 of the Criminal Procedure Act by the regional court magistrate.

[4]

Both counsel agreed that the procedure adopted by the court a quo was

irregular. It appears from the record that when the matter appeared in the regional court, the magistrate merely informed the accused that This was a matter for sentencing in the regional court. There is no record that the
2

magistrate applied his mind to exercise his limited powers to review the proceedings in the district court; and that he thereafter made a formal finding of guilty, which is a mandatory requirement in terms of section 114 (2) of the Criminal Procedure Act, 51 of 1977. (See NAURASANA UNDARI v THE STATE an unreported Case No. CA113/2009 delivered on 12 August 2010) and ELIZABETH IILEKA v THE STATE an unreported, Case No CA 96/2009 delivered on 30 July 2010)

[5]

Given the irregularity that occurred during the sentencing proceedings,

vitiating the entire sentencing proceedings in the regional court, the sentence imposed cannot stand.

[6]

In the premises the appeal is upheld and the following order is made: 1. 2. The sentence is set aside; The matter is remitted to the regional court magistrate to comply with the provisions of section 114 (2) & (3) of the Criminal Procedure Act, 1977 (Act 51 of 1977) and to impose sentence afresh; and 3. the magistrate is directed to take into consideration the period of imprisonment already served.

___________________ Tommasi J

I concur

______________________ Liebenberg J