S v Gochera and Another (CRIMINAL 72 of 2010) [2010] NAHC 174 (29 October 2010)

S v Gochera and Another (CRIMINAL 72 of 2010) [2010] NAHC 174 (29 October 2010)

Section 30 does not criminalize the conduct of permit holders who breach permit conditions; the accused should have been charged under section 29(5), and multiple convictions for the same offence are improper.

Citation
[2010] NAHC 174
Parties
Prosecutor: State; Accused: Masirba Israel Gochera; Accused: Christopher Kufaruwenga
Court
High Court
Jurisdiction
Namibia
Judgment Date
29 October 2010
Case Number
CRIMINAL 72 of 2010
Procedural Posture
Criminal Review / Judgment on Review
Outcome
conviction substituted and partially set aside
Legal Topics
Improper Charge Framing, Multiplicity of Convictions, Immigration Offences
Source Language
English
Criminal Law Immigration Law Improper Charge Framing Multiplicity of Convictions Immigration Offences

Case Brief

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Parties

State

Prosecutor

Masirba Israel Gochera

Accused

Christopher Kufaruwenga

Accused

Procedural Posture

Criminal Review / Judgment on Review

Legal Issues

  1. 1 Whether section 30(1) of the Immigration Act, 7 of 1993 creates the offence as charged
  2. 2 Whether accused should have been charged under section 29(5) of Act 7 of 1993
  3. 3 Whether there was a multiplication of convictions for accused no 2

Ratio Decidendi

Section 30 does not criminalize the conduct of permit holders who breach permit conditions; the accused should have been charged under section 29(5), and multiple convictions for the same offence are improper.

Court Disposition

conviction substituted and partially set aside

Orders

  • Conviction of accused no 1 on count 1 under section 30 substituted with conviction under section 29(5) read with section 29(6) of Act 7 of 1993
  • Sentence of accused no 1 on count 1 confirmed