Emvula v S (CA 126 of 2013) [2014] NAHCMD 77 (28 February 2014)

REPUBLIC OF NAMIBIA NOT REPORTABLE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case no: CA 126/2013 In the matter between: PETER EMVULA and THE STATE APPELLANT RESPONDENT Neutral citation: Emvula v State (CA 126/2013) [2014] NAHCMD 77 (28 February 2014) Coram: HOFF J and SIBOLEKA J Heard: Delivered: 28 February 2014 28 February 2014 (Ex tempore) Judg. made available: 11 March 2014 ORDER The conviction and sentence are set aside. JUDGMENT HOFF J (SIBOLEKA J concurring): [1] The appellant in this matter was convicted in the magistrate court of the offence of contravening s 51 of the Criminal Procedure Act 51 of 1977 namely, escaping from lawful custody and sentenced to seven months imprisonment. [2] The submission by Ms Blaauw, counsel appearing on behalf of the appellant, amicus curiae is to the effect that there was no evidence placed before the court a quo to prove that the detention of the appellant was lawful. [3] Counsel appearing on behalf of the respondent in this matter Mr Nyambe, is in agreement. The court having perused the documents filed agrees that such evidence is absent. [4] In the result the following order is made: The conviction and sentence are set aside. ---------------------------------- E P B HOFF Judge ---------------------------------- A M SIBOLEKA Judge APPEARANCES APPELLANT : S L Blaauw Amicus curiae, Sharon Blaauw Attorneys RESPONDENT: S R Nyambe Office of the Prosecutor-General, Windhoek