CRIMINAL LAW – REVIEW – SENTENCING THE ACCUSED WITHOUT A CHARGE BEING PUT TO HIM TO PLEAD THERETO A SERIOUS IRREGULARITY

CRIMINAL LAW – REVIEW – SENTENCING THE ACCUSED WITHOUT A CHARGE BEING PUT TO HIM TO PLEAD THERETO A SERIOUS IRREGULARITY

The accused was charged in the Magistrate’s Court for Outapi district with a contravention of section 34(1) read with sections 34 (3) of the Immigration Control Act 7 of 1993 (ICA) – Failure to present himself to an immigration officer upon entry into Namibia. Yet, the particulars of the annexure related to the offence of entering the country without a permit. In addition, although the record did not show that the accused pleaded to the charge, the review cover sheets recorded a conviction of contravening section 7 of the Immigration control Act 7 of 1993.

In his judgment on sentence the magistrate remarked that accused came to Namibia as a visitor after his days expired and that the correct charge would have been that of overstaying but the state preferred the charge of failure to present himself to the immigration officer. Despite the aforesaid the accused was sentenced to ‘N$3000 or twelve (12) months imprisonment, wholly suspended for a period of 5 years, on condition that the accused is not convicted of failure to present himself during the period of suspension.’

The review court queried the presiding officer to explain why the accused who was charged with contravening section 34(1) was convicted of contravening section 7 of the ICA and whether section 7 and 34(1) create offences. The review court similarly requested an explanation whether the record was complete in the absence of a plea and verdict recorded, and demanded an explanation for submitting the record for review six months late.

The  magistrate respondent that the accused was charged with contravening section 7 of the Act and not section 34 (1) of the same Act – of failure to present oneself to an immigration officer as indicated on the J15. He explained that although the charge annexure indicated section 34 (1) it was an oversight on the side of the court and such omission was supposed to be detected during the plea. The magistrate explained the incomplete record that the charge was indeed put to the accused in order to arrive to the sentencing stage, but he only learnt that the record was incomplete when he received it back from the clerk of court to attend to the queries. He concluded that the missing proceedings could have been misplaced by the typist.

The review court considered the record and stated that it is trite that a magistrate’s court is a court of record. There was nothing on record showing that the charge was put to the accused and that he pleaded guilty. No verdict was recorded. The record rather indicated several postponements without indicating why, and on two occasions for mitigating and sentencing. Thereafter, the accused was sentenced.

The state alleged that the accused person failed to present himself to the immigration officer or officer of the Ministry, but no such allegations were indicated in the charge annexure and no plea proceedings were attached to the record. It did not follow that that because the accused was sentenced, the charge was put to him, without the record reflecting such.

Section 34(1) of the ICA creates a duty to any person entering Namibia, irrespective of the circumstance of his/her entry to present themselves. Section 7 of the Act deals with persons before entering Namibia to present themselves to immigration officers. It is sections 34(3) and 10, and other distinct sections of the ICA which prescribe offences. In the present matter, the description of the offence did not correspond with the words as they appear in section 10 read with section 7. In the absence of plea proceedings, the court was satisfied that the accused did not plead to the charge.  In respect of the late delivery of the record, the court found that a substantial delay defeats the whole purpose of review and fair trial.

The Magistrate in sentencing the accused without a charge being put to him to plead thereto committed a serious irregularity resulting in setting it aside. This irregularity was further conflated by the confusion with regard to what was the relevant charge preferred against the accused.

In the result, the conviction and sentence imposed are set aside.

S v Takatadza NAHCNLD 7 September 2022