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REPUBLIC OF NAMIBIA

CASE NO.: CR 100/08

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

versus

ERIK WITBOOI

(HIGH COURT REVIEW CASE NO.: 1446/08)

CORAM: VAN NIEKERK, J et NDAUENDAPO, J

Delivered on: 2008-09-15

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REVIEW JUDGMENT:

VAN NIEKERK, J:

[1] The accused was convicted on a charge of contravening section 2(b) of the Abuse of Dependence - producing Substances and Rehabilitation Centres Act, 1971 (Act 41 of 1971) in that he had in his possession 460 grammes of cannabis to the value of N$1 380-00. He was sentenced as follows:

"12 months imprisonment of which 4 months are suspended for 3 years on condition that you are not convicted of (1) contravening section 2(1)(a) of Act 41 of 1971 - dealing in a prohibited dependence producing drug and (2) convicted of contravening section 2(b) of Act 41 of 1977 committed during the period of suspension."

[2] The conviction is in order, but the sentence is not. The reference to section "2(1)(a)" must read "2(a)". The word "and" must be substituted with the word "or", as it could not have been the magistrate's intention that the suspended sentence is only to be put into operation in the highly unlikely event that the accused is convicted in the future of both a contravention of section 2(a) and a contravention of section 2(b) during the period of suspension.

[3] In the result I make the following order:

1. The conviction is confirmed.

2. The sentence is substituted with the following sentence:

12 (Twelve) months imprisonment of which 4 (four) months are suspended for 3 (three) years on condition that the accused is not convicted of contravening section 2(a) or section 2(b) of Act 41 of 1971 (Dealing in or possession of a prohibited dependence - producing drug) committed during the period of suspension.

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VAN NIEKERK, J

I agree

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NDAUENDAPO, J

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