S v Rooi (3) (Review Judgment) (CRIMINAL 46 of 2011) [2011] NAHC 168 (31 May 2011)

CASE NO.: CR 46/2011 IN THE HIGH COURT OF NAMIBIA In the matter between: THE STATE and JIM VAN ROOI (HIGH COURT REVIEW CASE NO.: 847/2011) CORAM: MULLER, J et MILLER, AJ Delivered on: 31 May 2011 REVIEW JUDGMENT MULLER, J.: [1] The accused was charged with committing two offences. The first charge was assault with intent to do grievous bodily harm with an alternative of assault on a member of the police in terms of S 35(1) of the Police Act, no. 19 of 1990. The second charge is interference with a member of the police force in terms of S 35(2)(a) of the same Act. The circumstances on which all these charges were based were that the accused stabbed a police officer with a (broken) bottle when his brother was arrested by the police officer. [2] The accused pleaded guilty to the two charges, as well as the alternative to count 1. The Magistrate then invoked S 112(1)(a) of Criminal Procedure Act, no. 51 of 1977, as amended (CPA) in respect of count 2 and S 112(1)(b) of the CPA in respect of count 1. [3] I addressed the following queries to the Magistrate: “1. Does the conviction in respect of count 2 not constitute a duplication of the convictions in respect of assault on the same person on the same day at the same place in order to prevent the complainant, a police office, to arrest the brother of the accused? See in particular the alternative to charge 1. 2. On what grounds has the fine of 5 months imprisonment in default to the fine been imposed? Although the amount of the fine has recently been increased, the fine of imprisonment it still limited to three months.” [4] The Magistrate responded as follows: “1. After an extensive perusal and study of S v Grobler 1996 (1) SA (A). I concede with Honourable Reviewing Judge that conviction of count 2 does constitute a duplication of charges. Count 2 should have rather been used as evidence in aggravation in respect of coun1. This oversight and error is humbly regretted. 2. The educative minute by Honourable Reviewing Judge Muller clarifying the recent amendment is appreciated. I concede with learned Judge that the period of imprisonment does exceed the Magistrate’s jurisdiction in respect of sentencing according to Section 112 (1) (a) as amended. I pray that the Honourable Reviewing Judge amend the sentence to read, one (N$1000.00) thousand dollars or there (03) months imprisonment.” [5] In the light of the Magistrates cocession that the conviction in respect of count 2 in respect of a duplication of convictions and that the accused should not have been convicted on count 2, the issue of the probable errorous application of S 112 (1)(a) of the CPA effectively falls away. I agree with the Magistrate in this respect and the conviction and sentence on charge 2 will be set aside. [6] In respect of count 1 an enquiry in terms of S 112 (1) (b) of the CPA had been conducted whereafter the accused was convicted on the main count. He was sentenced to 8 months imprisonment in respect of that count. I am satisfied that the proceeding was in accordance with justice and the conviction and sentence on count 1 are confirmed. [7] In the result: 1. The conviction and sentence in respect of count 1 are confirmed; and 2. The conviction and sentence in respect of count 2 are set aside ____________ MULLER, J I agree ___________ MILLER, AJ