Windhoek-A woman was fined to pay a fine of N$400 after her conviction on four counts of ill-treatment and neglecting her biological children.
The amount of the fine had the High Court judges Christi Liebenberg and Naomi Shivute remarking that the legislation under which the woman was initially convicted is too outdated and urgently needs to be updated to be realistic and on par with the present dictates of justice.
The woman, a Namibian who cannot be named to protect the identities of the children, received the new sentence upon a High Court review of her previous conviction and sentence.
A magistrate’s court had on May 24 this year sentenced the woman to a fine of N$2,000 or 12 months’ imprisonment, wholly suspended on condition of good conduct and that the woman perform 1,500 hours of community service at a designated clinic.
The woman was found guilty and convicted of abandoning her four biological children of whom she had sole custody, from December 2015 to October 2016. She was convicted under Section 18(1) of the Children’s Act 33 of 1960.
The section makes it an offence to abandon one’s biological children when you are liable and in a position to support them.
The magistrate convicted the woman on four identical counts of ill-treatment or neglect of her children, with the only difference being the names and respective ages of the children, on May 24 this year.
On review judges Liebenberg and Shivute however converted the four convictions into one.
According to the judges, the four convictions constitute a duplication of convictions as the intent of the woman when she abandoned her children was with single intent.
With regard to the sentence the woman received, Judge Liebenberg said this is one instance where the legislation should step in expeditiously to set in motion the process of having the penalty provisions provided for in the Act adjusted to be more realistic and in step with the present dictates of justice.
Judge Liebenberg remarked that the sentence imposed, which is the fine of N$2,000, exceeded the maximum penalty provided for in the old, but still active Act.
The Act states that any person convicted under Section 18 (1) shall be liable to a fine not exceeding two hundred pounds or in default imprisonment for a period not exceeding two years.
Since this Act dates back to 1960 and was promulgated in the Union of South Africa under British reign before 1961, it is guided by the Decimal Coinage Act, which states that the South African rand would be valued at two rands to one pound.
This now meant that the woman could only be fined an amount of N$400 under the old Act.
According to Judge Liebenberg, for a period of 57 years there has been no amendment made to the penalty provisions set out in Section 18 (5) of the Act which prescribes the penalties to be imposed and this creates the “untenable situation” where presiding officers, when sentencing offenders under the Act, are compelled to impose fines which are shockingly inadequate and inconsistent with principles of fair justice.
“It is not in the interest of the administration of justice where a court’s sentencing jurisdiction is inhibited by outdated legislation,” he lamented.
The judge further said the frustration of magistrates regarding the inadequate maximum sentence applicable to crimes committed in contravention of Section 18 is quite understandable because the prescribed maximum fine is disproportionate to the maximum alternative sentence, which is two years’ imprisonment.
But, he said, this will be the case until such time as it is rectified by legislation.
In the end the judge substituted the sentence with a N$400 fine or six months’ imprisonment wholly suspended for five years on condition that she is not convicted of contravening Section 18 (1) during the period of suspension and she performs 1,500 hours of community service at Sambyu Clinic. The sentence is backdated to May 24, 2017.