S v Marisa (CRIMINAL 19 of 2006) [2006] NAHC 4 (22 February 2006)

CASE NO.: CR 19/06 IN THE HIGH COURT OF NAMIBIA In the matter between: THE STATE versus SIMBARASHE MARISA (HIGH COURT REVIEW CASE NO.: 151/06) CORAM: MAINGA, J et VAN NIEKERK, J Delivered: 2006 - 02 - 22 ________________________________________________________________________ : REVIEW JUDGMENT VAN NIEKERK, J: In this matter the accused was convicted by the Magistrate, Gobabis on three charges. They are (1) forgery; (2) uttering; and (3) c/sec 29(5) of the Immigration Control Act, 1993 (Act 7 of 1993). He was sentenced as follows: "Count 1: N$1000 - 00 or 12 months imprisonment. Count 2: N$1000 - 00 or 12 months imprisonment Count 3: N$4000 - 00 or 18 months imprisonment. Count 1 and 2: sentences are ordered to run concurrently with sentence imposed on count 3". The magistrate referred to the matter of S v Lalsing 1990 (1) SACR 443 (N) as authority for the order that the sentences on count 1 and 2 may run concurrently with the sentence imposed on count 3. Having read this judgment, as well as the judgment of S v Mngadi 1991 (1) SACR 313 (T) I am satisfied that it is competent to make such an order. However, I incline to the view of Melunsky, J in S v Hutton 1998 (2) SACR 474 (E) at 477 that in order to avoid confusion, it is desirable (as opposed to necessary), that a court should order that the sentence will run concurrently only if the fine is not paid. The order made is the following: The convictions and sentences on count 1, 2 and 3 are confirmed. Should any of the fines on count 1 and 2 not be paid the alternative sentence of imprisonment shall run concurrently with any alternative period of imprisonment served in respect of count 3. _________________________ VAN NIEKERK, J I agree ____________________________ MAINGA, J