Prepared by Adv R Heathcote for the Law Society of Namibia

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE SUPREME COURT OF NAMIBIA		SA 07/2001
In the matter between: FIRST NATIONAL BANK OF NAMIBIA LTD		APPELLANT
and ALOYSIUS ABRAHAMS		RESPONDENT
Heard on: Delivered on:	10 October 2001 28 March 2002

The appellant appealed to the Supreme Court of Namibia, after the court a quo (Levy A J) granted judgement in favour of the respondent for an amount of N$198,905.32 in damages.
The judgement sets out the facts in detail. For purposes of this, it can be summarised as follows. The plaintiff in the court a quo alleged that the defendant (the bank) in the court a quo breached a suspensive sale agreement that the parties entered into. According to the plaintiff the bank double financed the purchase of a certain trailer, as a result of which the bank was unable to secure transfer to the plaintiff on payment of the last instalment to the bank. The plaintiff himself testified, and he also called one Bindeman as a witness. The latter was, admittedly, a fraudster who endeavoured to defraud the bank through a fake financial transaction (the second suspensive sale agreement). He testified in detail how easy it was to alter chassis and registration numbers on trailers. Nevertheless, Levy A J found that (Bindeman) certainly impressed the court with a sound knowledge relating to trailers. Levy A J also found that this knowledge was tested in cross-examination but not dented, and that Bindeman was an objective witness who had no interest in the matter.
The Supreme Court (Chomba A J A with whom Strydom C J and O'Linn A J A concurred) confirmed that it was a well established and recognised truism that a trial judge has an advantage over an Appeal Court in relation to the factual findings in that the trial judge has seen and heard the witnesses and therefore is in a better position to assess the witnesses' credibility. However, such an approach was subject to the following exceptions (with reference to certain English cases which the court apparently adopted):
(a)	where the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, an Appeal Court may be satisfied that the trial judge has not taken proper advantage of having seen and heard the witnesses. In such an event the Appeal Court can reconsider the issues;
(b)	furthermore, in evaluating and applying the above-mentioned principles, a distinction must be made between the perception of facts and the evaluation of facts. Where there is no question of credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, an Appeal Court is in as a good position to evaluate the evidence as a trial judge, and should form its own independent opinion, while taking into consideration the opinion of the trial judge.
In applying the aforementioned principles the Supreme Court found that:
(a)	the court a quo seemed to be have been oblivious of the fact that a plaintiff's case must be self-sustaining. It cannot be propped up by the weakness of the case of the defendant;
(b)	in casu, the trial judge disregarded crucial evidence, which negatively reflected on the credibility of the plaintiff and his witness;
(c)	accordingly, the trial judge misdirected himself by failing to consider relevant evidence;
(d)	furthermore, the allegations contained in the plaintiff's particulars of claim, were not backed up by the evidence presented by the plaintiff.
Accordingly, the appeal succeeded and the court a quo's judgement was set aside.

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE HIGH COURT OF NAMIBIA		CA 31/2001
In the matter between: DORIS GROOTBOOM		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	10 September 2001 16 November 2001

The appellant was found guilty in the Magistrate's Court for the district of Tsumeb on a charge of dealing in cannabis. She was sentenced to ten years imprisonment.
The High Court (Unengu A J with whom Mainga J concurred) pointed out that the only dagga that could be the subject of the charge on which the appellant was found guilty, was the dagga that was found in possession of a certain Botha. He (Botha) testified that he bought the dagga from the appellant for R20. According to him, he bought four balies of dagga.
The High Court confirmed that an Appeal Court should be guided by the principle that punishment is pre-eminently a matter for the discretion of a trial court, and that an Appeal Court should be careful not to erode such discretion and should therefore only interfere with a sentence if the discretion has not been judicially and properly exercised, or where the sentence has been vitiated by irregularity or misdirections or is disturbingly inappropriate. The court also referred to the Zinn-triad and the fact that punishment should fit the criminal as well as the crime, be fair to society and to the accused, and the fact that sentence should be blended with a measure of mercy. The High Court then allowed the appeal and substituted the ten year sentence with one of "six years imprisonment".
NOTE :	Although the judges referred to S v Mlambo 1997 NR 220 (HC) where the accused was found guilty in dealing in dagga of 36,102kg in which appeal the High Court of Namibia sentenced the accused to six years imprisonment of which two years imprisonment was suspended for five years on certain conditions, the court in casu still held that the appellant should be imprisoned for a period of six years (without any suspension or conditions). Although the appellant in casu, apparently had previous convictions, no previously suspended sentences became applicable. It remains difficult to reconcile the two sentences (the Mlambo case and the in case in casu) particularly if regard is had to the fact that in the Mlambo case cannabis of 36,102kg was involved, where in casu, four balies (4 matchboxes) were involved, valued at R20.

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE HIGH COURT OF NAMIBIA		(P) A 336/2001
In the matter between: KUAIMA RIRUAKO AND 46 OTHERS		APPLICANT
and THE MINISTER OF REGIONAL, LOCAL GOVERNMENT AND HOUSING THE PRESIDENT OF THE REPUBLIC OF NAMIBIA		FIRST RESPONDENT SECOND RESPONDENT
Heard on: Delivered on:	1 March 2001 13 December 2001

The applicants approached the High Court to review and set aside the decision of the Minister of Regional, Local Government and Housing, which decision was (purportedly) taken in terms of the Traditional Authorities Act, 17 of 1995 (the Act). The Act prescribes certain procedure that have to be followed in order for traditional leaders, chiefs, etc. to be given statutory recognition.
A dispute arose between the parties as to whether some of the applicants were traditional Herero leaders. Amongst others the respondents stated that some of the applicants were not traditional leaders, but were appointed by the South African Government as political appointees.
In arguing that the dispute was not a bona fide one, the respondents relied on a dictum of Bethune J in Kaputuaza v Executive Administration of Hereros 1984 (4) SA 295 SWA at 301 F-G where it was held that:
	"in so far as Herero customary law might be applicable such law is part of the law of South West Africa of which the court can take judicial notice; consequently it need not be proved in the same manner as foreign law. In the process of taking such judicial cognisance this court may inform itself from history books."
The court (Hoff J with whom Shivute J and Manyarara A J agreed) drew a distinction between customary law on the one hand, and tradition or custom on the other hand.
The court concluded that the dispute between the parties related to custom and tradition, and not to customary law. Therefore, the dictum of Bethune in the Kaputuaza-case was not applicable. As the applicants were relying on historical facts and custom (which is not the same as customary law) the custom had to be proven in the manner as set forth in Van Breda and Others v Jacobs and Others 1921 AD 330 at 333. Accordingly, the applicants could not rely on information contained in history books.
The applicants further relied on various review grounds such as:
(a)	that the first respondent failed to apply his mind. The court held that such allegation was not proved by the applicants;
(b)	the respondents had an ulterior motive in that they recognised some traditional leaders and did not recognise others in order "… to protect their cronies …". In rejecting this allegation, the court confirmed that there is no onus on the body whose conduct is the subject matter of review to justify its conduct. On the contrary, the onus rests upon the applicant to satisfy the court that good grounds exist to review the conduct complained of;
(c)	the first respondent abdicated and/or delegated his powers. The applicant succeeded on this ground in that the first respondent forwarded a memorandum to cabinet in which he stated the purpose of the memorandum to be "to obtain approval in terms of section 6(2) of the Traditional Authorities Act …". The court held that it was clear that the first respondent abdicated its function of decision-maker in asking approval from cabinet to take certain decisions. The legislation clearly stated that the first respondent should take the decision himself. The court confirmed, however, that there was nothing wrong in obtaining advice. Nevertheless, in this particular instance the respondent abdicated his decision-making function. The court referred to Leach v Secretary for Justice, Transkeian Government 1965 (3) SA 1 ECD, and confirmed that the first respondent could not have adopted the following way of reasoning:
		"A factor which I take into account in deciding whether or not you should have a licence is not the fact that I think it undesirable that you should have it but that the Cabinet regards it undesirable that you should have it although personally I have no objection."
The respondent first sought cabinet's approval. He has in fact not exercised his discretion at all. He has been guided by the views of somebody else. The court could not imagine a clearer case of a failure to exercise one's discretion.
Accordingly, the court set aside the decision of the first respondent in respect of those applicants who were effected by the fact that the first respondent abdicated his decision-making powers.

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IN THE HIGH COURT OF NAMIBIA		(P) A 260/2001
In the matter between: KUMWE TRADING CC		APPLICANT
and COASTAL FISH TRADERS		RESPONDENT
Heard on: Delivered on:	18 February 2002 25 February 2002

The applicant applied for a rescission of judgement in terms of Rule 31(2)(b). The default judgement was granted by the High Court after the applicant's attorney committed a number of irregularities. The court found that a series of irregularities were perpetrated by the legal practitioner of the applicant, which eventually resulted in the default judgement being granted against the applicant. The court in fact referred to the applicant's "bad choice of a legal practitioner", and also expressed the opinion that the court would have considered a de bonis propriis order against the legal practitioner, if he was still appearing for the applicant. Nevertheless, after having referred to De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 AD, where Trengrove A J A stated that the grounds for rescission under the common law, extends beyond, and was not limited to, the grounds for rescission as provided for in Rule 31 and 44 (the then South African Rule 42). Hoff J held that in many situations, both logic and common sense would dictate that the defaulting party should be afforded relief. The court (Hoff J) found that the applicant had given reasonable explanation for his default, that he was not wilful or grossly negligent, and that he has not shown that he had a bona fide defence to the respondent's claim. The court then granted the rescission application, but ordered the applicant to pay the costs of the application on a party and party scale.

NOTE :

The court ordered the applicant to pay the costs. That should in fact be the normal costs order in a rescission application. All too often an unnecessary debate arises as to who should pay the costs of a rescission application. The respondent should only be ordered to pay the costs of a rescission application in circumstances where the opposition to the rescission is unreasonable.

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE HIGH COURT OF NAMIBIA		CA 11/2002
In the matter between: BALACIUS FERNANDO		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	6 May 2002 6 May 2002

The appellant was convicted after he pleaded guilty to a charge of assault with intent to do grievous bodily harm. He was sentenced to 18 months imprisonment, six of which was suspended on the usual terms. The appellant then obtained a judge's certificate to appeal against his sentence.

The court pointed out that the magistrate misdirected herself in relation to the facts. She stated in her judgement that the assault lasted from 21h00 to 05h00 the following morning, while it was clear that the complainant ran away, and thereafter returned to the house, where she was assaulted again. Furthermore the court found that the magistrate was so occupied with the seriousness of the offence that she virtually failed to consider the appellant's personal circumstances. Amongst others, she failed to take properly into consideration that he pleaded guilty, that he was a first offender, self-employed, the only breadwinner for the family (including the complainant) and that the complainant had forgiven him.

As a result of the aforementioned misdirection, the court concluded that the magistrate did not exercise her discretion properly. The appeal succeeded and a new sentence, a fine of N$1,500.00 or nine months imprisonment, was imposed.

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE LABOUR COURT OF NAMIBIA		LCA 08/2001
In the matter between: NAFAU B J KONTEB AND 37 OTHERS		1ST APPELLANT 2ND TO 37TH APPELLANTS
and UNITED FISHING ENTERPRISES		RESPONDENT
Heard on: Delivered on:	29 October 2001 5 April 2002

The appellants lodged a complaint in the District Labour Court for Walvis Bay. It was alleged that the respondent had unfairly terminated the contracts of employment of the individual complainants/appellants "ostensibly for economic reasons" in terms of Section 50 of the Labour Act, 6 of 1992 (the Act). It was alleged that the termination was carried out in bad faith, and that despite the fact that the appellants received notice that negotiations would take place as envisaged in Section 50(1)(b), no such negotiations ever took place.
The District Labour Court struck the matter from the roll mero moto, stating that the District Labour Court did not have jurisdiction to deal with the matter as Section 50(2) provides that:
		"Any employer who contravenes or fails to comply with the provisions of subsection (1) shall be guilty of an offence and on conviction be liable to a fine not exceeding R4 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment."
In dealing with the issue of the District Labour Court's jurisdiction the court (Silungwe P) specifically referred to Section 46(4)(a)(iv) of the Labour Act which provides that:
		"46	(4)	In considering –
				(a)	whether an employee has been dismissed unfairly …, the district labour court shall have regard –
					(iv)	to the extent to which the employer concerned has complied with the relevant provisions of this Act."
Furthermore, Section 45(1)(a) of the Act provides that an employee can approach the District Labour Court "whether or not notice has been given in accordance with the provision of this Act". The court was of the view that non-compliance with, for instance, Section 50(1) of the Act, amounts to a constructive dismissal and thereby brings Section 45 and 46 of the Act into play. The District Labour Court will therefore have jurisdiction to deal with the kind of complaint that was lodged in the District Labour Court. The fact that Section 50(2) provides for criminal sanctions does not deprive the District Labour Court of its jurisdiction. Accordingly, Sections 50(2) and 45 operate conjunctively. The one does not exclude the other.
NOTE :		This judgement has now laid to rest this "point in limine" which has arisen too often in the past. Obviously, where an employer has not negotiated in a bona fide manner (as is required by Section 50 of the Act) that would amount to a dismissal as envisaged in Section 45. The real question is not one of jurisdiction, and certainly cannot be determined in limine as was done by the District Labour Court. It is, however, also important to realise that not every single non-compliance with Section 50 would amount to a dismissal as envisaged in Section 45 of the Act. Take for example the case where an employer has to reduce his workforce for economical reasons. He enters into bona fide negotiations and endeavours to follow all the procedures as set out in Section 50. Nevertheless, through some oversight, the employer does not notify the commissioner in writing of his or her intention to terminate the services of some of his employees (Section 50(1)(c)). Such failure, should not in itself change the Section 50 termination in to a dismissal which is unfair. The real question that the court should decide will be to which extent the employer concerned "has complied with the relevant provisions of the Act". Certainly, the fact that the employer has not complied with some or other technical provision in Section 50 of the Labour Act, would not make the termination in terms of Section 50, and unfair dismissal per se. However, even in such circumstances where the dismissal was not unfair, the provisions of Section 50(2) (i.e. criminal sanctions) will still be applicable.

Prepared by Adv R Heathcote for the Law Society of Namibia

IN THE LABOUR COURT OF NAMIBIA		LCA 18/2001
In the matter between: NAMIBIA BEVERAGES		APPELLANT
and EMILY HOAËS		RESPONDENT
Heard on: Delivered on:	18 February 2002 19 April 2002

The appellant appealed from the District Labour Court to the Labour Court against an order which was granted by the District Labour Court in the following terms:
	"… the Respondent (appellant in this appeal) is ordered to re-instate the Complainant in the same work or comparable work to which she was engaged before she was dismissed. And I further order that the Respondent pays the Complainant an amount equal to any loss suffered by the Complainant in the consequences of such dismissal or an amount which would have been paid to her had she not been so dismissed." (I have inserted the "or" as it seems to have been omitted through oversight)
The respondent was dismissed for poor work performance as a merchandiser. The court (Manyarara A J) held that:
(a)	in order to dismiss an employee for poor work performance, an important aspect to be considered is whether the employee was afforded a reasonable opportunity to improve his or her performance. An employer should be very slow to dismiss upon the ground of unsatisfactory work performance, without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibilities or likelihood of dismissal on this ground, and giving him an opportunity of improving his performance; and
(b)	where the dismissal was unfair and the employee seeks reinstatement, the court should only refuse reinstatement, in circumstances where the relationship has been broken down irreparably;
(c)	in respect of both the aforementioned respects, the onus will rest on the employer.
After having dealt with the facts the Labour Court dismissed the appeal.
A further issue that was raised by the appellant was the lack of clarity of the order made by the District Labour Court, as quoted above. The court held that the criticism of the lack of clarity is groundless as Section 46(1)(a) gives the court the discretion to order the employer to pay an employee either "an amount equal to any losses suffered by such employee in consequence of such dismissal or an amount which would have been paid to him or her had he or she not been dismissed".
The Labour Court then made the following order:
	"The appellant shall forthwith –
	(a)	re-instate respondent in her position or a comparable position retrospectively to the date of her dismissal; and
	(b)	pay to the respondent an amount equal to any loss she has suffered in consequence of such dismissal, or an amount which would have been paid to her had she not been dismissed, whichever is the greater amount."
NOTE :		With due respect to the honourable president of the Labour Court. The purpose of a court order should be to resolve disputes. It should not create further disputes. All too often presiding officers in the District Labour Court make similar orders as set out in paragraph (b) supra. The following questions immediately arise:
		(a)	Who is to determine the amount of the loss if a dispute arises between the parties?
		(b)	Can the Clerk of the Court issue a warrant of execution on such an order?
		(c)	Should the Clerk of the Court determine the loss?
		(d)	Who should determine "whichever is the greater amount"?
		(e)	Who is to determine whether or not the loss also includes, for example, a funeral policy that has lapsed as a result of the fact that the employee could not pay the monthly premiums. There is no Labour Court decision on this aspect.
		(f)	If the dispute cannot be resolved as to what the losses are, and what the "greater amount" is, what should the employer/employee do.
		(g)	Which court should now be approached to resolve which amount is the "greater amount"? Is it the District Labour Court, or is it the Labour Court who made the order on appeal?
		(h)	Even worse, does the Labour Court and District Labour Court still have jurisdiction to hear such dispute. Certainly, such a dispute is not envisaged in Section 19 (dealing with the jurisdiction of the District Labour Court). It is also not a dispute over which the Labour Court will have exclusive jurisdiction (as envisaged in Section 18).

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IN THE HIGH COURT OF NAMIBIA		CA 28/2001
In the matter between: WOLFGANG HANS H		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	15 October 2001 12 November 2001

The appellant was convicted the Magistrate's Court for the district of Windhoek, on charges of contravening Section 140(2)(a) of Ordinance 30 of 1967 in that he drove a motor vehicle on a public road with an excessive alcohol level in his blood and of contravening Section 138(1) of Ordinance 30 of 1967 in that he drove a vehicle negligently on the said public road. In an appeal to the High Court of Namibia before Levy A J and Manyarara A J various issues were raised by the appellant. The most important one can be summarised as follows:
(a)	the issue was raised that the presumption contained in Section 140(3) of the Road Traffic Ordinance, on which the magistrate relied to convict the appellant was in conflict with Article 12(1)(d) of the Constitution of Namibia, in that the presumption placed an onus on the appellant to prove his innocence and therefore it had be struck down as unconstitutional.
Section 140(3) of the Road Traffic Ordinance provides that:
	"If in any prosecution for a contravention of the provisions of subsection (2), it is proved that the concentration of alcohol, in any quantity of blood, taken from any part of the body of the person concerned, was not less than 0.08 gram per 100 millilitre at any time within two hours after the alleged offence it shall be presumed unless the contrary is proved that such concentration was not less than 0.08 gram per 100 millilitre at the time of the alleged offence."
The court rejected the constitutional attack, and held that the presumption is merely evidence to assist the State to prove that the accused is guilty beyond reasonable doubt. The presumption did not create a reverse onus (see S v Pineiro 1991 (NR) 424). The presumption was therefore not in conflict with Article 12(1)(d) of the Constitution. Accordingly the appeal was dismissed.

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IN THE HIGH COURT OF NAMIBIA		CR 34/2002
In the matter between: THE STATE
and JOHANNES ONESMUS
Delivered on:	5 March 2002

The appellant was found guilty on a charge of assault with intent to do grievous bodily harm. He pleaded guilty to the charge and answered that he foresaw that a slap that he gave the complainant could cause pain.

On review, the court (Hannah J and Gibson J) pointed out that common sense dictates that there should be a distinction between an intention to cause pain, and intention to cause grievous bodily harm. In casu, the appellant only intended to cause pain. That was a far cry from an intention to do grievous bodily harm. Accordingly, the conviction was set aside and the matter was remitted to the Magistrate's Court with the direction that the plea of not guilty be recorded in terms of Section 113 of the CPA.

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IN THE HIGH COURT OF NAMIBIA		I 2107/2001
In the matter between: JOMO AIBU WAMUWI		PLAINTIFF
and THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA		DEFENDANT
Heard on: Delivered on:	4 to 7 September 2001 and 30 October 2001 15 November 2001

The plaintiff sued the defendant for damages in a sum of N$2,687,867.00. At the commencement of the trial the issues were separated. The court only had to determine whether or not the respondent was liable for damages as a result of breach of contract. After having dealt in detail with the evidence presented, the court found that the plaintiff did prove his case on a balance of probabilities. The plaintiff alleged that he entered into a contract with the defendant in terms of which he had to do performances for schools in Namibia in order to create HIV/AIDS awareness. That contract was breached by the defendant.

The court accordingly ordered that the plaintiff proved the agreement as alleged and that the agreement was breached. The damages are to be assessed at a future hearing.

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IN THE HIGH COURT OF NAMIBIA		CA 122/99
In the matter between: JACOB AMIA RUDOLF HAMASEB JOSEPH HANGULA HEKONIA PETRUS		FIRST APPLICANT SECOND APPLICANT THIRD APPLICANT FOURTH APPLICANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	6 November 2000 25 January 2002

The appellants appealed from the Magistrate's Court.

The appellants were found guilty of fraud in the Regional Court, Oshakati in that on 2 July 1996 and at Tsumeb, they pretended to sell stones in their possession to one Heydenrych. They pretended that the stone was valued at N$320,000.00, whereas it was a worthless stone.

For purposes of this summary, the only issue of importance is that the court confirmed that the existence of the offence of attempted fraud has now been authoritatively decided (see Rex v Heyne 1956 (3) SA 604 (A) and S v Chaitezvi 1992 (2) SACR 456 (z)). The facts in the instant case established fraud beyond reasonable doubt. The appeal was dismissed.

The court did interfere with the sentence in changing a custodial sentence to one of a fine of N$1,000.00 or six months imprisonment in respect of appellants one to four and a sentence of one year imprisonment suspended in toto for a period of five years, on appropriate conditions, as well as a fine of N$2,000.00 or one year imprisonment in default of payment in respect of the other appellants.

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IN THE HIGH COURT OF NAMIBIA		CA 84/2001
In the matter between: CORNELIUS PETRUS NANGOLO		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	25 February 2002 25 February 2002

The appellant pleaded guilty in the Regional Court, Keetmanshoop to culpable homicide and was convicted on that plea. He was then sentenced to ten years imprisonment, two of which were suspended. On appeal to the High Court (Mtambanengwe A J and Gibson J) after having discussed the personal circumstances and the appeal grounds dismissed the appeal against sentence. The court confirmed:
(a)	if a convicted person does not put adequate information before the Magistrate's Court, he/she cannot be heard to complain that certain facts were not taken into consideration;
(b)	the fact that the appellant paid traditional or cultural reparation or offered to pay such to the deceased's family "is merely a personal circumstances like any other, and no more". It does not conclusively prove that the convicted person has shown remorse. Although the sentence imposed on the appellant was severe, there was no good ground to interfere with the sentence as it was not disturbing, severe or inappropriate.
Accordingly the appeal was dismissed.

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IN THE HIGH COURT OF NAMIBIA		CA 90/2001
In the matter between: ANDREAS VAN TAAK		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	11 March 2002 11 March 2002

The appellant was convicted in the Karasburg Magistrate's Court on a charge of defeating the cause of justice in that he falsely made a statement that 37 sheep was stolen from his farm. The State led evidence, that on the same date that the 37 sheep was allegedly stolen, the appellant also sold 38 head of sheep to Agra.

The court, Hannah J and Mtambanengwe A J, stated that without the evidence of the stock register which was kept by the appellant, the State's case was doomed to failure. The appeal succeeded and the conviction and sentence was set aside.

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IN THE HIGH COURT OF NAMIBIA		CA 114/2000
In the matter between: ANDREAS MUKIZI MOSES MUKIZI		APPELLANT
and THE STATE		RESPONDENT
Heard on: Delivered on:	10 September 2001 10 September 2001

The appellants were convicted on a charge of Section 29(1)(a) read with Section 38(2) and 39 of Act 70 of 1996, namely possession of a machine gun and possession of ammunition without a licence. The appellants were convicted (after having pleaded guilty) and sentenced on the first count to two years imprisonment and on the second count to a fine of N$600.00 or three months imprisonment. Although the appeal succeeded for reasons that the accused were not properly questioned in terms of Section 112(1)(b), the judgement is quoted in as far as it is relevant to sentencing.