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S v Hafunda (Case No.: CR 22/2008) [2008] NAHC 34 (8 April 2008)

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SUMMARY

CASE NO.: CR 14/2008
CASE NO.: CR 22/2008


THE STATE

vs

LUKAS TUINDELENI HAFUNDA


THE STATE

vs

GEIDANNA GEINAMSEB

SILUNGWE, AJ et VAN NIEKERK, J


CRIMINAL PROCEDURE       -        Sentence – Fines of N$2000-00 – Alternative imprisonment of two years – Ratio between fine and imprisonment – Alternative imprisonment reduced to six months.



CASE NO.: CR 14/2008
CASE NO.: CR 22/2008


IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

LUKAS TUINDELENI HAFUNDA

(HIGH COURT REVIEW CASE NO.: 188/2008)

THE STATE

vs

GEIDANNA GEINAMSEB

(HIGH COURT REVIEW CASE NO.: 472/2008)


CORAM:            SILUNGWE, AJ et VAN NIEKERK, J

Delivered on:             2008.04.08
__________________________________________________________________________________

REVIEW JUDGMENT



SILUNGWE, AJ    
[1]      Both cases above are automatic review matters which will, for the sake of convenience, be considered together as the legal issue arising therefrom is the same. In the first and second cases, the accused were convicted by Magistrates sitting at Outjo and Witvlei (in the District of Gobabis), respectively, of a contravention of section 83(2), read with sections 1, 86 and 106, of The Road Traffic and Transportation Act, Act No. 22 of 1999 (that is, use of a motor vehicle without the owner’s consent). Each accused was thereupon sentenced to a fine of N$2000-00 or in default of payment to two years’ imprisonment.

[2]      When the case of Hafunda was sent for review, a query was directed at the presiding Magistrate regarding the ratio between the fine and the alternative term of imprisonment. In response, the Magistrate concedes that “there is a huge disparity” and suggests a reduction of the alternative prison term to six months.

[3]      As a general practice, a fine is normally imposed with imprisonment as the alternative in the event of non-payment of the fine (section 287(1) of the Criminal Procedure Act, Act No. 51 of 1977). Admittedly, it is not simple to convert a fine into imprisonment. Although it is not necessary to impose the alternative imprisonment in strict relationship to the amount of the fine, the sentencer should keep the amount of the fine in mind when determining the alternative imprisonment. Evidently, however, any term of imprisonment imposed as an alternative to payment of a fine should not be unreasonably out of proportion to the fine itself. The rationale here is that imprisonment is a qualitatively more severe sanction than a fine.

[4]      In S v Juta 1988 (4) SA 926 (TkH), Van Reenen, CJ, declared at 928D-E:

“Ideally, the sentence, both the primary fine, and the secondary alternative prison sentence, must satisfy the requirements of justice, in all that that term connotes.”

In my view, the phraseology “the secondary alternative prison sentence … must satisfy the requirements of justice”, may be construed to mean that such alternative term must be reasonable, in the sense that it should, ideally, not punish the convict much more severely than the fine would. (cf. S v Seoela 1996 (2) SACR 616 at 618d).


[5]      Where the Legislature determines, in a statute, the maximum fine and the maximum term of imprisonment, however, the presiding judicial officer is not obliged to calculate the ratio between the maximum fine and the maximum term of imprisonment and to then apply such ratio for the purpose of determining the length of imprisonment to be imposed as a sanction, in the event of failure to pay such fine. See S v Wana 1990 (2) SA 877 at 879 F-I.

[6]      For the reasons given above, it is self-evident that, in both cases under consideration, the alternative terms of imprisonment are unreasonably too severe and must thus be interfered with.

[7]      In the result, the following order is made:

1.       the convictions in both cases under review are in accordance with justice and are accordingly confirmed;

2.      
the alternative terms of imprisonment are reduced to six months in both cases.

3.      
In the event that the offenders failed to pay their respective fines, and were consequently incarcerated, as is apparent, the alternative terms of imprisonment take effect from the date(s) of their individual incarceration.



___________________
SILUNGWE, AJ

I agree



_______________________
VAN NIEKERK, J