COMPILED BY: MS. LOTTA AMBUNDA
JUDICIAL RESEARCH ASSISTANT
DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
THE HIGH COURT JUDGMENT INDEX 2015
THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL
AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH
COURT OF NAMIBIA DURING THE YEAR 2015. THE INDEX IS COMPILED TO
ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY
REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT
AUTHORITIES.
THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGEPRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.
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Table of Contents
SUBJECT INDEX ................................................................................................................................ 6
CRIMINAL APPEAL ............................................................................................................................ 6
APPLICATION FOR CONDONATION ........................................................................................... 10
APPLICATION FOR LEAVE TO APPEAL ..................................................................................... 11
CRIMINAL LAW ................................................................................................................................. 13
CRIMINAL PROCEDURE ................................................................................................................ 17
EXTRADITION ................................................................................................................................... 28
INQUEST ............................................................................................................................................ 28
LAW OF EVIDENCE ......................................................................................................................... 28
POSTPONEMENT ............................................................................................................................ 31
SENTENCE ........................................................................................................................................ 31
SECTION 174 APPLICATION ......................................................................................................... 34
CASE SUMMARIES .......................................................................................................................... 36
Alugodhi v State (CA 19-2014) [2015] NAHCNLD 3 (23 January 2015) .................... 36
Amunyela v The State (CA 46-2014) [2015] NAHCNLD 26 (30 June 2015). .............. 36
Amupolo v State (CA 51/2014) [2014] NAHCMD 31 (20 February 2015) ................... 36
Booysen v State (CA 107/2014) [2015] NAHCMD 44 (06 March 2015) ..................... 36
Boois v State (CA 76-2014) [2015] NAHCMD 131 (8 June 2015) .............................. 37
Dam v State (CA 97/2014) [2015] NAHCMD 47 (27 February 2015). ........................ 37
Dias vs The State (CC 14-2011) [2015] NAHCMD 142 (17 June 2015). .................... 37
Ditshabue v State (CA 31/2010) [2015] NAHCMD 80 (30 March 2015) ..................... 37
Geingob v The State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015) ............ 38
Doeseb v The State (CA 25-2015) [2015] NAHCMD 199 (25 August 2015)............... 38
Hifikepunye v State (CA 102/2014) [2015] NAHCMD 39 (03 March 2015). ................ 38
Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015) ................ 39
Ilukena v The State (CC 06/2014) NAHCND 1 (16 JANUARY 2015) ......................... 39
Iita v State (CA 37/2014) [2015] NAHCMD 76 (16 March 2015)................................. 39
Inquest The late Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015). ... 40
Kaanjuka v State (CA 132/2004) [2015] NAHCMD 2 (20 January 2015). ................... 40
Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10 February 2015). ............... 41
Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15 June 2015). .................... 41
Kashawa vs The State (CC 9-2013)[2015] NAHCMD 202 (27 August 2015). ............ 41
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015). ................. 42
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Lameck v State (CC 15/2015) [2014] NAHCMD 85 (10 April 2015). .......................... 42
Lubembo v State (CA 111/2014) [2015] NAHCMD 16 (22 January 2015). ................ 42
Lifumbela v State (CA 80-2014) [2015] NAHCMD 132 (8 June 2015) ........................ 43
Lukas v State (CA 16/2013) [2015] NAHCMD 35 (26 February 2015) ....................... 43
Lungameni v The State (CA1-2012) [2015] NAHCNLD 9 (06 March 2015) ................ 43
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015). ............. 44
Moussa v State (CA 105/2014) [2015] NAHCMD 21 (11 February 2015). ................. 44
Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March 2015). ............... 44
Nghipondoka v The State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015) ....... 45
Nkandi v The State (CA2-2013) [2015] NAHCNLD 16 (17 April 2015) ....................... 45
S v Awa-Eiseb (CR 03/2015) [2015] NAHCMD 12 (30 January 2015). ...................... 45
S v Barmann (CC 05-2014) [2015] NAHCMD 210 (11 September 2015). .................. 45
S v Doeseb (CC 17/2012) [2015] NAHCMD 102 (29 April 2015)................................ 46
S v Franklin Savage (CC 12-2014) [2015] NAHCMD 150 (8 June 2015). .................. 46
S v Frederick (CC19-2012) [2015] NAHCMD 194 (21 August 2015). ........................ 47
S v Gomeb (CC 18/2013) [2015] NAHCMD 164 (22 July 2015). ................................ 47
S v Hange (CC12-2012) [2015] NAHCMD 90 16 April 2015). .................................... 48
S v Haufiku ( CC 02/2013) [2015] NAHCNLD 11 (9 March 2015). ............................. 48
S v Haufiku ( CC2/2013) [2015] NAHCNLD 10 (11 February 2015). .......................... 48
S v Hausiku (CC 10/2013) [2015] NAHCMD 50 (10 March 2015). ............................. 49
S v Kambidu (CR 9/2015) [2015] NAHCMD 52 (12 March 2015). ........................... 49
S v Katjizumo (CR 08/2015) [2015] NAHCMD 49 (09 March 2015) ........................... 49
S v Katuuo (CR 12/2015) [2015] NAHCMD 64 (18 March 2015). ............................... 50
S v Katjatako (CR 24-2015) [2015] NAHCMD 189 (11 August 2015) ......................... 50
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 28 (19 February 2015). ........................ 51
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 51 (10 March 2015). ............................ 51
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 55 (13 March 2015) ............................. 51
S v Lameka (CC11/2012) [2015] NAHCNLD 7 (24 February 2015). .......................... 51
S v Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)................................... 52
S v Maasdorp (CR 10/2015) [2015] NAHCMD 56 (13 March 2015). .......................... 53
S v Mayumbelo (CR 15/2015) [2015] NAHCMD 107 (5 May 2015). ........................... 53
S v Mutandwa (CR 04/2015) [2015] NAHCMD 13 (05 February 2015) ...................... 53
S v Nakaleke (CC13/2013) [2015] NAHCMD 21 (13 May 2015). ............................... 54
S v Nendongo (CR 13/2015) [2015] NAHCMD 65 (18 March 2015)........................... 55
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015). ............................ 55
S v Oxurub (CC 30/2010) [2015] NAHCMD 108 (5 May 2015)................................... 55
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S v Oxurub (CC 30-2010) [2015] NAHCMD 171 (28 July 2015). ................................ 56
S v Pieters (CC 48/2009) [2015]NAHCMD 38 (3 March 2015) ................................... 56
S v Pieters (CC 48/2009) [2015] NAHCMD 118 (27 May 2015). ................................ 57
S v Rooinasie (CR 26-2015) [2015] NAHCMD 207 (4 September 2015). .................. 57
S v Seibeb (CR 18-2015) [2015] NAHCMD 147 (19 June 2015). ............................... 57
S v Shikudule (CR 17/2015) [2015] NAHCMD 126 (5 June 2015).............................. 58
S v Thaniseb (CR 22-2015) [2015] NAHCMD 179 (31 July 2015). ............................. 58
S v Tjikuvira (CR 06/2015) [2015] NAHCMD 34 (24 February 2015). ........................ 58
S v Tjiposa (CR 16/2015) [2015] NAHCMD 123 (2 June 2015) .................................. 59
S v Thomas (CC 13 - 2011) [2015] NAHCMD 133 (9 June 2015). ............................. 59
S v Thomas (CC 19-2013) [2015] NAHCMD 177 (3 August 2015). ............................ 59
S v Unengu (CC 14/2013) [2015] NAHCMD 33 (24 February 2015) .......................... 60
S v Unengu (CC 14/2013) [2015] NAHCMD 43 (05 March 2015)............................... 60
Shaalukeni v The State (CA 60/2009) [2015] NAHCNLD 6 (05 February 2015)........ 61
Shaulwa vs The State (CA 100/2014) [2015] NAHCMD 37 (5 February 2015). ......... 61
Sheefeni and Another v The State (CA 25/2011) [2015] NAHCNLD 32 (24 July 2015).
................................................................................................................................... 62
Shikongo v The State (CA 02/2013) [2015] NAHCNLD 08 (6 March 2015). ............... 62
State v Jossop (CC 01/2011) [2015] NAHCMD 82 (9 April 2015)............................... 62
State v Kasita (CC 05/2014) [2015] NAHCNLD 13 (17 March 2015). ......................... 62
The State v Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015). ..................... 63
Unengu v The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015). ................... 63
Venter v State (CA 35-2015) [2015] NAHCMD 182 (24 July 2015). ........................... 63
Visagie v State (CA 67-2013) [2015] NAHCMD 216 (11 September 2015). ............... 64
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SUBJECT INDEX
CRIMINAL APPEAL
Bail - This is an appeal against the Regional Court Magistrate’s refusal to release the
appellant on bail. The same facts placed before the court below were repeated during
the appeal hearing. Lubembo v State (CA 111/2014) [2015] NAHCMD 16 (22 January
2015).
Appeal – Sentence – Prescribed minimum sentence of 20 years’ imprisonment struck
as being unconstitutional – Court is justified to interfere — Sentence of 20 years’
imprisonment of which 10 years imprisonment suspended shockingly inappropriate –
Sentence set aside and substituted with sentence of 10 years’ imprisonment of which 3
years are suspended. Shikongo v The State (CA 02/2013) [2015] NAHCNLD 08 (6
March 2015).
Appeal - When a court of appeal is entitled to interfere with a sentence, namely when
the trial court misdirected itself on the facts or on the law; when an irregularity which
was material occurred during the sentence proceedings; when the trial court failed to
take into account material facts or over-emphasised the importance of other facts; or
when the sentence imposed is startlingly inappropriate, induces a sense of shock or
there is a striking disparity between the sentence imposed by the trial court and that
which would have been imposed by the court of appeal. Nuugonya v The State (CA
109/2014) [2015] NAHCMD 46 (06 March 2015); Keletse v State (CA 09/2014) [2015]
NAHCMD 48 (09 March 2015); Binga v State (CA 96-2014) [2015] NAHCMD 180 (5
August 2015);
Appeal – Appeal against sentence – Appellate court entitled to interfere with sentence
imposed if sentence vitiated by an irregularity or misdirection or sentence so manifestly
excessive that it induces a sense of shock in the mind of appellate court – Court found
that sentence imposed not vitiated by an irregularity or misdirection and not so
manifestly excessive that it induces a sense of shock in the mind of the court –
Consequently court not entitled to interfere with sentence – Appeal accordingly
dismissed. Dam v State (CA 97/2014) [2015] NAHCMD 47 (27 February 2015); S v
Nendongo (CR 5/2015) [2015] NAHCMD 23 (13 February 2015).
Appeal – Appeal against sentence and conviction – Trial of unrepresented accused
(appellant) in the trial court - Court found that learned magistrate’s instruction to
accused on his right to legal representation was adequate and the appellant informed
trial court he understood the instructions – Court found further that the learned
magistrate’s instructions to the appellant (accused) on the scope and purpose of crossexamination was adequate and appellant replied he understood them – Court held that
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the duty of the learned magistrate towards an unrepresented accused did not include
holding brief for such accused – Court found that the totality of the evidence accounted
for the guilt of the appellant and accordingly confirmed the conviction – On sentence –
Court found that no irregularities or misdirections existed in the proceedings on
sentencing and the sentence was not so excessive as to induce a sense of shock in the
mind of the court – Court concluded it was therefore not entitled to interfere with the
sentence imposed. Shaulwa vs The State (CA 100/2014) [2015] NAHCMD 37 (5
February 2015).
Appeal - This is an appeal against a conviction and sentence for rape in contravention
of certain provisions of the Combating of Rape Act. The appellant was sentenced to 12
years imprisonment. He filed a letter applying for condonation for the late filing of the
appeal two years after the conviction and sentence. He subsequently filed his notice of
appeal about two years after the letter applying for condonation. Held that in
applications for condonation the applicant should good cause; explain the delay and
also show that they have reasonable prospects of success on appeal. Held that the
delay in this case was inordinate and had not been satisfactorily explained. Held further
that the appellant had no prospects of success on appeal. Application for condonation
was therefore dismissed. Swartbooi v The State (CA 3/2015) [2015] NAHCMD 74 (27
March 2015).
Appeal -– Notice of appeal – Such notice should set out clearly and specifically grounds
on which appeal is brought – Court found that appellant has not set our clearly and
specifically grounds on which the appeal is brought – Relying on Mbarandongo v The
State Case No. CA 127/2009 (Unreported), court concluded that there is no valid notice
of appeal before the court for the court to consider. Boois v State (CA 76-2014) [2015]
NAHCMD 131 (8 June 2015).
Appeal - Criminal procedure – Appeal – Appeal against conviction and sentence –
Noting of appeal out of statutory time limit – Applicant must apply to court to condone
late filing of notice of appeal – In supporting affidavit appellant must give satisfactory
explanation for the delay – In determining condonation application court should consider
reasons for the delay and prospects of success – But court should consider prospects
of success only where satisfactory explanation for delay in noting appeal has been
given except in cases where there has been a failure of justice in the proceedings in the
lower court or the decision of the lower court is so repugnant and perverse that the
appellate court should not allow it to stand – Principle in S v Ruhumba applied.
Lifumbela v State (CA 80-2014) [2015] NAHCMD 132 (8 June 2015).
Appeal - Grounds of Appeal not set out in the Notice of Appeal – An improper Notice of
Appeal is no ground of Appeal at all and as such a nullity – Once a Nullity it remains a
Nullity. Hoaeb v State (CA 17-2015) [2015] NAHCMD 120 (08 May 2015).
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Appeal – Application for condonation – No prospects of success – Application
accordingly dismissed. Sentence — Appeal against — Duty of appeal court — Should only
interfere if discretion not exercised in in accordance with judicial principles – Appellant
failed to persuade court that there are reasonable grounds upon which he would
successfully argue that the magistrate failed to apply his mind. The appellant noted his
appeal out of time and applied for condonation. He advanced a reasonable explanation
and the period of delay short. He however could not persuade the court that he would
succeed with this appeal against sentence and the court held the view that the
magistrate applied his discretion judiciously when he imposed a sentence of 2 years’
imprisonment for having contravened s 35 (1) (a) of the Anti-Corruption Act, 2003 (Act 9
of 2003). Ananias v The State (CA43-2013) [2015] NAHCNLD 22 (15 May 2015).
Appeal – Conviction and Sentence – Escaping from lawful custody — No misdirection-4
(Four) years imprisonment — Previous convictions for escaping from custody —
Conviction and sentence confirmed. The appellants appealed against his conviction of
escaping from lawful custody and the sentence of 4 years imprisonment. He had 2 (two)
previous convictions for escaping from lawful custody and a previous conviction for
assaulting a police officer. He pleaded guilty but a plea of not guilty in terms of section
113 of the CPA was entered. There was no misdirection by the magistrate. The
conviction is confirmed. The previous convictions are relevant for purposes of sentence.
No misdirection in relation to sentence. The sentence is confirmed. Petrus v The State
(CA62-2013) [2015] NAHCNLD 15 (17 April 2015).
Appeal – Sentence – Prescribed minimum sentence of 20 years’ imprisonment struck
as being unconstitutional – Court is justified to interfere — Sentence of 20 years’
imprisonment of which 15 years’ imprisonment suspended shockingly inappropriate –
Sentence set aside and substituted with sentence of 5 years’. Nkandi v The State (CA22013) [2015] NAHCNLD 16 (17 April 2015).
Appeal – Application for leave to adduce evidence – Court have the power to grant
leave in terms of s19 of the High Court Act, (Act 16 of 1990) and s304(2)(b) read with s
309(3) of the Criminal Procedure Act, 1977 (Act 51 or 1977) - Power of court to be used
sparingly – The applicant gave an acceptable explanation; showed that the evidence
was essential for the case on hand; and that it would have the effect of influencing the
result of the case – Evidence led showed that the money was not stolen or used but
simply misplaced – The conviction and sentence set aside. Lungameni v The State
(CA1-2012) [2015] NAHCNLD 9 (06 March 2015).
Appeal – Conviction – Duplication of convictions − Convictions set aside-substituted
with one count of 2 heads of cattle – Partly inadmissible evidence admitted and relied
upon − Rest of evidence no misdirection-conviction confirmed – Sentence – Prescribed
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minimum sentence of 20 years’ imprisonment struck out as being unconstitutional –
Court is justified to interfere — Sentence of 20 years’ imprisonment of which 12 years’
imprisonment suspended shockingly inappropriate – Sentence set aside and substituted
with sentence of 10 years’ imprisonment of which 2 years are suspended on conditions.
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015).
Appeal – Criminal Procedure – Calculation of dies for noting of criminal appeal in terms
of rule 67 of the Magistrate’s Court Rules. Taapopi v The State (CA 296/2013) [2015]
NAHCNLD 34 (27 July 2015).
Appeal – Notice of appeal – Grounds of appeal – Grounds stating that magistrate
misdirected himself on the facts of law that there were material irregularities during the
proceedings and overemphasized the importance of other facts – Such not grounds but
conclusions drawn by drafter of the notice of appeal – Principle on grounds in S v Gey
van Pittius and Another 1990 NR 35 (HC) followed. Criminal procedure – Appeal –
Generally – Findings on credibility – Appeal court will not readily interfere with credibility
findings and factual findings of trial court – Such interference necessary only where
irregularity or misdirection by trial court occurring. Venter v State (CA 35-2015) [2015]
NAHCMD 182 (24 July 2015).
Appeal against – Sentence – Appellant jointly charged with two others – Appellant’s coaccused persons in position of trust – Not apparent from record that appellant in similar
position – All accused persons sentenced to same sentence – Magistrate misdirecting
himself by not drawing a distinction between a person in position of trust and the one
who was not – Misdirection also not to reflect youthfulness of appellant in the sentence Sentence vitiated by misdirection and set aside – Appellant’s appeal upheld and fresh
sentence imposed. Mayumbelo v State (CA 24-2015) [2015] NAHCMD 188 (11 August
2015)
Appeal against –Conviction- Appellant convicted in Regional court on two counts of
Rape - Appellant listed 24 grounds of appeal in notice to appeal- introduced two new
grounds of appeal at hearing- Appellant has failed to lay a basis for introducing the two
new grounds of appeal- Despite fact that Appellant did not amend or applied to amend
his notice of appeal, grounds sought to be introduced without merit- Appeal dismissedCourt wants to alert the Registrar and clerks of the Magistrates Courts (and their
supervisors) – the dereliction of their duties with regard to court records may cause
potential injustice and disrepute to the administration of justice. Visagie v State (CA 672013) [2015] NAHCMD 216 (11 September 2015).
Appeal – Accused persons not brought to court – No excuse from the relevant
authorities as to why the accused where not brought to court – This is a hindrance of
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the administration of justice. Liboleni v The State (CA 12-2015 ) NAHCNLD 43 (02
September 2015).
APPLICATION FOR CONDONATION
Appeal—Application for condonation—not opposed—Misdirection-no sufficient reasonsAppeal set aside. Alugodhi v State (CA 19-2014) [2015] NAHCNLD 3 (23 January
2015); Kauapirura v State (CA101/2014) [2015] NAHCMD 26 (30 January 2015);
Appeal - Application for condonation of late filing of notice of appeal against sentence –
Requirements restated – Applicant must give a reasonable explanation for the delay
and explanation must be bona fide – Court will not sympathize with untruthful applicant
– Applicant must make a full and detailed disclosure of the circumstances which caused
the delay in filing the notice of intention to appeal – Applicant must in addition establish
the existence of good prospects of success on appeal in respect of the merits of the
case. Nawa v The State (CA 144/2013) [2015] NAHCMD 4 (22 January 2015).
Appeal – Appeal against sentence – Noting of appeal out of statutory time limit –
Applicant should apply to court for condonation of late noting of appeal – Appellant must
give satisfactory explanation for delay – In determining the condonation application
court should take into account the explanation in the supporting affidavit for the delay
and prospects of success on appeal – In instant case appellant has failed to give
satisfactory explanation for the delay and there are no prospects of success on appeal –
Court finding that appellant has not shown that the proceedings on sentence was
vitiated by an irregularity or misdirection on the part of learned magistrate – Court also
found that the sentence is not so manifestly excessive that it induces a sense of shock
in the mind of the court – Consequently, court concluded that upon the authorities the
court was not entitled to interfere with the sentence imposed – Consequently, the court
dismissed the appeal. Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10
February 2015); Simataa v The State (CA 138/2013) [2015] NAHCMD 11 (2 February
2015).
Appeal – late filing of notice of appeal – Appellant’s failure to give reasons for the delay
to file notice of appeal within 14 days from date of sentencing – Appeal – Late filing of
notice of appeal – Appellant omits to address the issue of prospects of success on
appeal in an affidavit supporting the application for condonation of the late filing of
notice of appeal – Legal representative for the appellant’s failure to augment gaps in the
condonation application by the appellant – Court found that as there is no proper
application for condonation filed by the appellant, that there was no appeal before court
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– The appeal is struck from the roll as a result therefore. Booysen v State (CA
107/2014) [2015] NAHCMD 44 (06 March 2015).
Criminal Procedure ─ Appeal ─ Application for condonation ─ Late noting of appeal ─
Not opposed ─ Condonation granted ─ Misdirection ─ Not sufficient reasons ─ Appeal
set aside. Ndakongele v The State (CA 11-2013) [2015] NAHCNLD 31 (10 July 2015).
Criminal Procedure – Appeal against conviction – Noting appeal out of statutory time
limits; the form the application for condonation should assume and what it should allege.
Grounds of appeal – they should clearly and fully set out the bases upon which the
appeal is brought. Failure to appeal on sentence – the court cannot deal with sentence
if no appeal against sentence and no grounds are alleged on which the trial court may
have erred. Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015).
Appeal – Application for Condonation – Late noting of appeal – Court to consider
cumulative circumstances – The delay, the explanation for such delay and the
reasonable prospects of success. The appellant appealed against his sentence but
lodged his notice of appeal out of time. The court considered the period of delay, the
reason advanced for the delay and the prospects of success. The court held that the
explanation tendered was inadequate and determined that the appellant has not shown
that he is likely to succeed on the grounds raised. The court thus declined to extend the
period prescribed in terms of Rule 67(1) of the Magistrate’s Court Rules. Zola v The
State (CA56-2013) [2015] NAHCNLD 24 (22 June 2015).
Criminal Procedure ─ Appeal ─ Application for condonation ─ No proper grounds of
appeal before court ─ Late noting of appeal ─ No prospects of success ─ Application for
condonation dismissed ─ Appeal removed from the roll. Sheefeni and Another v The
State (CA 25/2011) [2015] NAHCNLD 32 (24 July 2015).
Rules of Court – Application for condonation for late filing of heads argument – Two
elements to be proved i.e. reasonable explanation for delay and prospects of success.
CRIMINAL PROCEDURE - Appeal against refusal of bail – Section 65 (2) of the
Criminal Procedure Act – Meaning of ‘new facts’ in bail applications – Duties of
appellant for bail based on new facts. Doeseb v The State (CA 25-2015) [2015]
NAHCMD 199 (25 August 2015).
APPLICATION FOR LEAVE TO APPEAL
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Appeal – Application for leave to appeal – Court held that in order to succeed the
applicant must satisfy the court that he or she has a reasonable prospect of success –
In instant case, court found that the court sitting as an appellate court had considered
fully and adequately the main grounds of appeal – Having done that the appeal court
had dismissed the appeal – Court found in the instant application that applicant has
failed to show that he has a reasonable prospect of success on a further appeal –
Consequently, court dismissed the application. Kaanjuka v State (CA 132/2004) [2015]
NAHCMD 2 (20 January 2015).
Leave to appeal – should not be granted on the basis of a mere possibility of the
success on appeal but only where there are prospects of success on appeal. Leave
must not be granted where absolutely no chance of a successful appeal exists or where
the court is certain beyond reasonable doubt that the appeal will fail. Lameck v State
(CC 15/2015) [2014] NAHCMD 85 (10 April 2015).
Leave to appeal in terms of s 316 of the Criminal Procedure Act 51 of 1977 –
Applicants seeking leave from court to appeal the judgment dismissing their special plea
in terms of s 106(1)(f) of the Criminal Procedure Act 51 of 1977 – Court finding no
special circumstances – Judgment not appealable before conviction and sentence –
alternatively no prospects of success on appeal, leave to appeal applied for by the
applicants declined. Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March
2015).
Application for leave to appeal – Court held that in order to succeed the applicant
must satisfy the court that he or she has a reasonable prospect of success – In instant
case, court found that the court sitting as an appellate court had considered fully and
adequately the grounds of appeal – Having done that the appeal court had dismissed
the appeal – Court found in the instant application that applicants have failed to show
that they have a reasonable prospect of success on a further appeal – Consequently,
court dismissed the application. Ditshabue v State (CA 31/2010) [2015] NAHCMD 80
(30 March 2015)
Application for leave to appeal - Criminal Procedure – Appeal and cross-appeal –
Applications for leave to appeal in terms of s 316A (1) of Act 51 of 1977 – Test –
Applicant must clearly indicate reasonable prospects of success on appeal. Unengu v
The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015).
Criminal procedure – Application for leave to appeal against the sentence in terms of s
316(1) of the Criminal Procedure Act 51 of 1977 – no prospects of success on appeal,
the application dismissed. Criminal procedure – Application for leave to appeal against
the acquittal in terms of s 316A of the Criminal Procedure Act 51 of 1977 – no prospects
of success on appeal and application dismissed. Dias vs The State (CC 14-2011) [2015]
NAHCMD 142 (17 June 2015).
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CRIMINAL LAW
Criminal law – Traffic offences – Contravention of s 82(1) of Road Traffic and
Transport Act 22 of 1999 – Driving motor vehicle on public road under influence of
intoxicating liquor – Not sufficient to prove that accused consumed liquor. S v AwaEiseb (CR 03/2015) [2015] NAHCMD 12 (30 January 2015).
Criminal law - Appeal – Criminal Law — Magistrate correctly concluded that state
proved the elements of housebreaking with intent to steal and theft. Criminal Procedure
– Legal representation — Record reflect that magistrate rendered the necessary
assistance to the appellant — Evidence – Caution applied to evidence of single witness
although not mentioned in judgment – Evidence correctly evaluated — Sentence – No
proof of how loss was calculated and appellant not afforded the opportunity to address
court a quo before making compensation order – Ordering that 11 months spent in
custody whilst awaiting trial be deducted from net sentence was not proper – The
sentence in its entirety set aside and substituted. Shaalukeni v The State (CA 60/2009)
[2015] NAHCNLD 6 (05 February 2015).
Criminal law - Theft - What constitutes – Accused claimed to have kept complainant’s
property as security pending the return of his property (cellphone) by complainant’s
mother – Accused has right against mother of complainant – Such right not imputed to
complainant – Accused however sold the property soon thereafter – Accused had no
right to keep complainant’s property – No valid defence – Court not obliged to note plea
of not guilty. Criminal law – Robbery – Element of violence – Violence need not be
serious – Sufficient violence if object snatched from the victim’s hand. Geingob v The
State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015).
Criminal Law – Trial-within-a-trial – Admissions of a confession – Warning statement –
Objection thereto – Rights not explained – Assault – Forced. The State vs Noabeb (CC
09/2014) [2015] NAHCMD 151 (30 June 2015).
Criminal Law – Accused charged with rape in contravention of s 2 (1) (a) of the
Combating of rape Act – State alleging that accused inserted his penis into the minor
complainant’s vagina and or anus – Medical evidence finding no signs of penetrations –
Evidence revealing accused placed his penis between complainant’s buttocks – Making
up and down movements – Accused not guilty of rape – But guilty of indecent assault.
Criminal Law – Accused charged with rape committed on diverse occasions read with s
94 of the Criminal Procedure Act – State alleging that during 2011 accused having a
sexual act with complainant by inserting his penis into complainant’s anus or vagina on
diverse occasions – Complainant alleging that accused placed his penis between her
buttocks or on top of her vagina – No evidence as to which year – Where − And in what
circumstances the offence was committed – No sufficient particularities or clear details
were given – No sufficient evidence proving the charge beyond reasonable doubt –
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Accused not guilty and acquitted. S v Gariseb (CC 02/2013) [2015] NAHCMD 114 (19
May 2015).
Criminal law – Trial - An accused has the right to remain silent during a trial. The
reason being that there is no duty of any kind placed on him. It is, always the
prosecution that carries the burden (onus) to prove the allegations it has brought
against him beyond reasonable doubt. However, if at the close of the prosecution case
a prima facie case requiring an answer from him has been established, a choice to
remain silent will leave the prosecution case unchallenged. An adverse inference could
be drawn against him, and he runs the material risk of being convicted. Hifikepunye v
State (CA 102/2014) [2015] NAHCMD 39 (03 March 2015).
Criminal Law – Trial within a trial – Admission of warning statement, plea in terms of
s119 of Act 51 of 1977 and confession – Objection thereto – Rights not explained –
Assaulted – Forced – No basis for objection – Admissible. S v Hausiku (CC 10/2013)
[2015] NAHCMD 50 (10 March 2015).
Criminal law – Accused convicted of murder – Accused stabbed his girlfriend several
times with knife – Accused’s defence one of private defence – Evidence of State
witnesses contradicting on minor aspects – Credibility of witnesses not affected –
Evidence of accused self-contradicting – Irreconcilable with previous statements of
accused – Defence of private defence not proved – Intent – Circumstantial evidence –
Inference that accused acted with direct intent to kill. S v Khoikhoi (CC 01/2014) [2015]
NAHCMD 51 (10 March 2015).
Criminal law: The questioning of an accused in terms of section 112(1)(b) of the
Criminal Procedure Act 51 of 1977 following a plea of guilty must be halted once a
reason is raised why the offence was committed. It is an irregularity for the trial Court to
ignore the defence raised by an accused, continue questioning and eventually convict,
leaving the raised defence unchallenged (intact). S v Kambidu (CR 9/2015) [2015]
NAHCMD 52 (12 March 2015).
Criminal law - the concept of ‘possession’, when used in a penal statute, comprises
two elements, a physical element (corpus) and a mental element (mens rea).
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015).
Criminal law – The accused was charged with robbery it being alleged that he used
violence to induce the complainant to part with his items. After reviewing the evidence,
the trial court held that the offence of robbery had not been proved and found the
accused guilty of assault with intent to cause grievous bodily harm and theft. On
automatic review, the High Court found that the Magistrate erred because the violence
and the theft constituted a single transaction. The court considered the propriety of
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convicting the accused on two competent verdicts and held that it would have been
competent to do so if the offence of robbery had not been borne out. The court also
reiterated the need by trial courts to explain competent verdicts to unrepresented
accused at the stage of tendering their pleas. The court found the accused guilty of
robbery and remitted the matter to the Magistrate’s court for sentencing in line with the
proper verdict. S v Kakoma (CR 11/2015) [2015] NAHCMD 58 (13 March 2015).
Criminal law – Convicted of Murder – Elements must be proved by the State beyond
reasonable doubt. S v Frederick (CC 19/2012) [2015] NAHCMD 78 (31 March 2015);
S v Kock (CC 07-2012) [2015] NAHCMD 154 (30 June 2015).
Criminal law - For an application of leave to appeal to be granted it should have
reasonable prospects of success on appeal. Held: Corruption is a very serious offence
as could be noticed in its penalty provisions. A custodial sentence or a heavy fine would
have been appropriate. Held: The application is granted. S v Awene (CA 13/2015)
[2015] NAHCMD 70 (25 March 2015).
Criminal law – Traffic offences – Contravention of s 82(1) of Road Traffic and
Transport Act 22 of 1999 – Driving motor vehicle on public road under influence of
intoxicating liquor – Not sufficient to prove that accused consumed liquor. S v Katuuo
(CR 12/2015) [2015] NAHCMD 64 (18 March 2015).
Criminal law — Murder read with the provisions of Combating of Domestic Violence Act
4 of 2003 — Contraventions of section 16(1) of the Combating of Domestic Violence Act
4 of 2003 —Breaching a protection order — Attempted Murder. S v Haufiku ( CC 2/2013)
[2015] NAHCNLD 10 (11 February 2015).
Criminal law – State bears onus to prove that accused did not act in self-defence –
State failed to prove element of unlawfulness – Criminal Procedure – Evidence – Single
evidence – Caution applied and found that it was not safe to rely on the uncorroborated
testimony of a single witness – Whilst accused’s version not entirely satisfactory it was
found reasonably possibly true. Adverse inference drawn by failure of state to call
witnesses who could corroborate single witness. S v Lameka (CC11/2012) [2015]
NAHCNLD 7 (24 February 2015).
Criminal law – Combating of Rape Act – Minors under the age of 18 years at the time
of the commission of the crime - Prevention of Organised Crime Act, ‘Trafficking of
persons for sexual exploitation’ read with the United Nations Convention Against
Transnational Organised Crime – Minor children sexually exploited for money on
recruitment of accused – Additionally charged in terms of Combating of Rape Act, 2000
– No duplication of convictions - The counts relate to conduct committed on different
dates and required the accused on each separate occasion to make arrangements with
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Pretorius and D for the sexual exploitation of D – Position of power used over minor
children from less privileged backgrounds – Such conduct punishable as trafficking for
sexual exploitation – Accused equally guilty of rape under coercive circumstances –
Accused accordingly convicted. State v Lukas (CC 15/2013) [2015] NAHCMD 124 (2
June 2015).
Criminal Law – Trial within a trial – Admissions – Objections to – Rights not explained
– Assaulted. S v Franklin Savage (CC 12-2014) [2015] NAHCMD 150 (8 June 2015).
Criminal law – Murder, Rape, Robbery with aggravating circumstances, Kidnapping
and Indecent assault – Private defence – Bare denial – No basis for private defence –
Limits of private defence exceeded – Rape – Positively identified as the perpetrator. S v
Thomas (CC 13 - 2011) [2015] NAHCMD 133 (9 June 2015).
Criminal law – Culpable homicide – Negligent driving – Accused being the driver of
motor vehicle approaching pedal cyclist from behind on correct side of the road –
Accused as warning sounded horn of his vehicle – Cyclist moves more to the left side –
Cyclist suddenly and unexpectedly changes direction to cross over on to the side of
oncoming traffic – Accused steers vehicle to the same side of road to avoid a collision –
Collision on side of road for oncoming traffic – Situation of sudden emergency –
Whether negligent – Court a quo finds failure of accused to wait and see how cyclist
responds to sounding of the horn constituting negligence – Steps taken by accused
such as reasonably careful driver would fairly be expected to take in same
circumstances – No negligence by accused proved – Conviction on charge of culpable
homicide set aside. State v Nako (CR 20/2015) [2015] NAHCMD 158 (03 July 2015).
Criminal law - Criminal Procedure: Evidence ─ Trite that State bears onus to prove
beyond reasonable doubt ─ Mere fact that evidence of accused false does not
necessarily lead to conviction. S v Nakaleke (CC13/2013) [2015] NAHCMD 21 (13 May
2015).
Criminal law- Murder — Criminal procedure — Evidence — Circumstantial evidence —
Inferences to be drawn from circumstantial evidence — Inference must be consistent
with proved facts — Inference must exclude any other inference — Law not requiring
court to act upon absolute certainty — When dealing with circumstantial evidence, court
must consider cumulative effect of all the evidence. State v Lebeus (CC 9/2013) [2015]
NAHCNLD 18 (22 April 2015).
Criminal law: Sentence is an inevitable conclusion that follows conviction in a criminal
trial. S v Frederick (CC19-2012) [2015] NAHCMD 194 (21 August 2015).
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Criminal law – Attempted murder by firing – defence asserting that victim not suffered
injuries and therefore charge of attempted murder not proved – Court holding that
injuries not part of the element of the crime – Essential element intention to kill – offence
committed even where victim did not suffer injuries – Here victim in any event suffering
minor injuries. S v Komeya (CC 10-2012) [2015] NAHCMD 200 (25 August 2015).
Criminal Law: Housebreaking with intent to rape and rape – Rape in terms of common
law – Defence of sexual intercourse with consent of the complainant – Consensual
sexual intercourse with a girl under 16 not common law rape but contravention of s 14
of the Combating Of Immoral Practices Act 21 of 1980 is an offence – Such is a
competent verdict on a count of common law rape - section 16 of same act creates a
rebuttable presumption of unlawfulness– Absence of evidence to dissuade court from
drawing an adverse inference that he knew his actions were unlawful State proved
contraventions of s14 of the Combatting of Immoral Practices Act – competent verdict.
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015).
CRIMINAL PROCEDURE
Criminal procedure - Plea – Plea of guilty – Questioning in terms of s 112(1)(b) of
Criminal Procedure Act 51 of 1977 – Magistrate putting leading questions to accused –
Questioning which consists of merely repeating, in form of leading questions,
allegations contained in charge sheet, irregular – Leading questions also to be avoided
in respect of issues of fault and grounds of defence. Plea – Section 112 (1)(b) – Charge
of driving under the influence – Not sufficient when accused admits he was drunk when
driving vehicle – Court from its questioning must be satisfied that faculties of accused
were impaired and driving skills affected. S v Awa-Eiseb (CR 03/2015) [2015] NAHCMD
12 (30 January 2015).
Criminal procedure – Sentence – Ambiguous formulation of fine and suspended
sentence – Corrected. S v Nakare (CR 02/2015) [2015] NAHCMD 7 (30 January 2015)
Criminal procedure — Bail—Trial at advanced stage — Accused HIV positive — Bail
refused. Ilukena v The State (CC 06/2014) NAHCND 1 (16 JANUARY 2015).
Criminal procedure – Bail – Appeal against learned magistrate’s refusal to grant bail –
High Court hearing appeal can only set aside learned magistrate’s decision only if
decision was wrong – Magistrate finding that no new fact existed when appellant
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detained in custody for about two years and nine months between time third bail
application failed and time of hearing of fourth and final bail application – Court held that
the term ‘new fact’ is not esoteric – Court held that the term ‘new fact’ bears its ordinary
grammatical meaning – ‘Fact’ means ‘a thing that is indisputably the case’ and ‘new’
means ‘not existing before’ – Consequently, court concluded that the decision of
learned magistrate that the two years and nine months’ detention awaiting trial coming
into existence after third bail application was not a new fact was wrong – Court found
that the learned magistrate misdirected herself on the law and/or fact and it is such
serious misdirection that leads inexorably to the conclusion that there has been a failure
of justice regard being had also to the fact that appellant has been detained in custody
awaiting trial for some seven years and his trial is not in sight – Court held that pre-trial
incarceration should not be used as a substitute for post-trial incarceration – It becomes
even more repulsive and greatly prejudicial to the accused where the pre-trial
incarceration is prolonged endlessly because the accused’s trial is nowhere in sight –
Such pre-trial incarceration violates the accused’s rights guaranteed to him or her by art
12(1) of the Namibian Constitution – Consequently, court set aside lower court’s
decision not to admit appellant to bail and court granted him bail with conditions.
Moussa v State (CA 105/2014) [2015] NAHCMD 21 (11 February 2015).
Criminal procedure - Bail – Accused indicted to stand trial in high Court on several
charges arising from two incidents of rape – Accused alleged to have committed second
rape six months after the first and while free on bail – Section 61 of Criminal Procedure
Act, 1977 (Act 51 of 1977) applied – Bail refused as not being in the interests of the
public or the administration of justice. Kamoruao v The State (CC 12-2009) [2015]
NAHCMD 32 (25 February 2015).
Bail – Appellant appealing against the decision of the magistrate refusing to release her
on bail – Appeal being removed from the roll due to non appearance of appellant and
her legal representative – Appellant lodging application for bail in this court before
another Judge based on new facts – Matter pending before this court for trial – Bail
declined by the learned Judge hearing the application – Evidence on which bail was
refused by magistrate considered by the judge hearing the application based on new
facts - Appellant reviving appeal against decision of magistrate in this court – Court
holding that appeal deemed to have been abandoned and hearing thereof amounting to
reviewing decision of this Court – Thus court declining to hear the appeal – Options
available – Appellant to appeal against the refusal of bail by this court to the supreme
court or to lodge fresh application based on new facts before this court. Lukas v State
(CA 16/2013) [2015] NAHCMD 35 (26 February 2015)
Criminal reviews – It is the duty of a magistrate to establish that the information on the
review coversheet correctly reflect the convictions (and not the offences the accused
had been charged with) in the record of the proceedings before sending the case on
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review. Where person charged with housebreaking with intent to steal and theft but the
evidence did not prove that perpetrator had the intention to steal but had the intention to
commit the crime of assault with intent to do grievous bodily harm an accused may in
terms of the provisions of s 262(1) of Act 51 of 1977 be convicted of the crime of
housebreaking with intent to assault. Taking counts together for purpose of sentence
must be done with circumspection – When a single or one comprehensive sentence is
imposed in respect of two or more charges, it essentially means that the single
sentence is to be regarded as the punishment for each of the separate convictions and
must therefore be a competent and appropriate sentence in respect of each of the
convictions. S v Iita (CR 47/2014) [2015] NAHCMD 18 (09 February 2015).
Criminal Procedure - Where an accused is arraigned on a charge of murder or
culpable homicide the State has the onus to prove as a matter of course the identity of
the deceased. This must be done by way of a chain of evidence from the time the fatal
wound had been inflicted on the deceased until the post mortem examination by the
pathologist or the district surgeon. The need to establish this chain of evidence may
only be dispensed with where an admission in terms of s. 220 of Act 51 of 1977 has
been recorded as a formal admission regarding the identity of the deceased. The fact
that the identity of a deceased has not specifically been placed in issue, does not
relieve the State from proving the identity of the deceased person. Private defence onus of proof and requirements re-stated. Goagoseb v The State (CA 63/2014)
NAHCMD 9 (09 February 2015).
Criminal procedure - Trial - Plea - Plea of guilty - Questioning of accused by
magistrate in terms of sec. 112 (1) (b) of Act 51 of 1977 - Material upon which court
must satisfy itself as to accused's guilt is his answers to such questions - Such answers
must cover all the essential elements of the offence charged - Effect, if any element not
covered - Court's duty is to note a plea of not guilty. Geingob v The State (CA 87/2014)
[2014] NAHCMD 19 (06 February 2015); Muneno v The State (CA 1-2015) [2015)
NAHCMD 91 (27 March 2015); see further S v Hambeka (CR69-2015)[2015] NACHMD
205 (31 August 2015);
Criminal procedure — Plea — Guilty — Questioning in terms of s 112(1)(b) of Criminal
Procedure Act 51 of 1977 — Leading questions not to be put to accused – Elements of
offence covered by one leading question – Accused’s answer not recorded – Improper
questioning – Criminal procedure — Housebreaking with intent to steal and theft – Plea
— Guilty — Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 —
Intent of accused when entering not established — Elements of offence not admitted. S
v Uirab (CR 23-2015) [2015] NAHCMD 183 (06 August 2015).
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Criminal procedure - Trial – Jurisdiction – Objection to – Failure to object –
Applicability of deeming provision in s 110(1) of Criminal Procedure Act 51 of 1977 –
Deeming provision not applicable where unrepresented accused failing to appreciate
the court's lack of jurisdiction – Duty of magistrate to explain the accused’s rights and to
ensure that unrepresented persons have a fair trial. Criminal law – The offence of
entering Namibia at a place other than a port of entry (c/s 6 (1) of the Immigration
Control Act 7 of 1993 is not a continuing crime – Offence completed upon entry. S v
Mutandwa (CR 04/2015) [2015] NAHCMD 13 (05 February 2015).
Criminal procedure – Trial – Addressing court before sentencing by the State and
accused in terms of s 274(2) of the Criminal Procedure Act 51 of 1977 – Depriving
accused of the opportunity to address court before sentence amounting to gross
irregularity – Accused severely prejudiced because he was denied the opportunity to
address the court before sentence – Consequently, sentence set aside. S v Tjiposa (CR
16/2015) [2015] NAHCMD 123 (2 June 2015)
Criminal procedure – Trial – The prosecution – Stopping of prosecution –Unauthorised
stopping of prosecution by prosecutor amounts to nullity – Prosecutor’s failure to lead
evidence against accused pleading not guilty and subsequent acquittal in terms of s 174
of Act 51 of 1977 set aside – Matter remitted to magistrate with direction to order a
separation of trials and proceed with the matter along the guidelines set out in the
judgment. State v Haoseb; Kinda (CR 19/2015) [2015] NAHCMD 155
(01 July 2015).
Criminal procedure – Accused put on his defence – The learned magistrate instructed
accused to indicate to the court as to why he should be found not guilty – Court held
that the instruction was wrong as an accused bears no onus to prove his or her
innocence – Court nevertheless held that the totality of the evidence accounts for the
guilt of the accused – Court found that the proceedings were in accordance with justice
– Consequently court confirmed the conviction and the sentence. S v Mayumbelo (CR
15/2015) [2015] NAHCMD 107 (5 May 2015).
Criminal procedure – Identification parade – Requirements – Witness (identifier)
should not be unduly influenced – Court held that parade to be conducted in a manner
that is fair. Criminal procedure – Identification in the dock – Court held that there is no
rule of law that a dock identification must be discounted altogether, especially where it
does not stand alone – Court to decide what weight, if any, should be accorded to the
dock identification – Court held further that accused was not entitled to legal
representation at identification parade. S v Oxurub (CC 30/2010) [2015] NAHCMD 108
(5 May 2015).
Criminal procedure - Plea – Plea of guilty – Questioning in terms of s 112(1)(b) of
Criminal Procedure Act 51 of 1977 – The accused was, after pleading guilty in terms of
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section 112 (1) (b) of the Criminal Procedure Act, convicted and sentenced by the
Swakopmund Magistrate’s Court for assault with intent to do grievous bodily harm. The
matter came up on automatic review before the High Court and the High Court raised
issues regarding the propriety of the conviction on account of the answers returned by
the accused during questioning, which revealed potential defences. A query addressed
to the trial magistrate evoked an admission that the conviction should not stand. The
High Court, five years after the conviction and sentence, set aside the conviction and
that held that it is unconscionable in the circumstances to order a fresh trial in view of
the fact that the accused would have by now completed serving his sentence. S v Isak
(CR 14/2015) [2015] NAHCMD 84 (10 April 2015).
Criminal Procedure: Dock identification – Witness identifying the accused in Court –
No identification parade held – Accused refusing to take part in identification parade –
Although there are dangers on dock identification – Dock identification forms part of the
evidential material to be tested – Evidence dock identification – Admissible depending
on the circumstances of each case – Court to decide what weight to be attached. S v
Pieters (CC 48/2009) [2015] NAHCMD 38 (3 March 2015).
Criminal procedure — Sentence — Rape – Minimum sentences — 'Substantial and
compelling circumstances' — What constitutes — Gravity of offence and circumstances
– Sentence in excess of mandatory minimum justified — Intoxication of accused
mitigating factor — Evidence must show accused’s faculties impaired before regarded
as diminishing his blameworthiness– Effect of imprisonment on family of accused –
Inevitable consequence of committing crime – Court not to be deterred from imposing
sentence dictated by interests of justice and society. S v Unengu (CC 14/2013) [2015]
NAHCMD 43 (05 March 2015).
Criminal procedure – The accused appeared before the magistrate’s court charged
with malicious damage to property read with the Domestic Violence Act. He was not
asked to plead but was referred for mental observation as he was suspected of
suffering from mental illness or a mental defect. A medical report was produced which
stated that he was capable of following the proceedings and mounting his defence but
as not capable of appreciating the wrongfulness of his action at the time. The court a
quo ordered him to be detained as a president’s patient in turns of Section 77(6) of the
CPA. The High Court on automatic review held that the charge sheet did not full
particularise the offence and that on account of his suspected mental illness or defect,
the court should have advised the accused to obtain services of a legal representative
or assisted him in obtaining one at the government expense. The court held further that
the trial court was not competent to deport without a basis from the findings of the redial
personnel as to the accused’s mental state and the effect thereof on the trial. The
proceedings were set aside. S v Vekooka (CR 7/2015) [2015] NAHCMD 41 (4 March
2015).
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Criminal Procedure – Plea – Guilty – Questioning in terms of 112(1)(b) of the Criminal
Procedure Act 51 of 1977 – Accused alleging he entered house of complainant to see if
wife is not there with someone – Plea of not guilty in terms of s 113 of Act 51 of 1977 –
Such response suggested a possible defence or left room for reasonable defence –
Matter remitted to the magistrate to enter a plea of not guilty. S v Katjizumo (CR
08/2015) [2015] NAHCMD 49 (09 March 2015).
Criminal procedure – Sentence – Accused convicted on two charges pursuant to pleas
of guilty – Court entering plea of not guilty on further charge – Accused sentenced in
respect of charges pleaded guilty on before trial commences – Such procedure not
provided for in Act 51 of 1977 and to be discouraged being irregular – Provisions of s
113 only applicable before sentence – Evidence during trial may compel court to enter
plea of not guilty on other charges – Not possible after sentence – Sentence should not
be done in piece meal – Sentence to be left to the end of trial. S v Maasdorp (CR
10/2015) [2015] NAHCMD 56 (13 March 2015).
Criminal Procedure – Sentence – Accused first offenders – Theft committed against
employer – Accused in trust position – Imprisonment sentence is appropriate in the
present matter – Court imposed a sentence without an option of a fine of which part
thereof is suspended on certain conditions. The two accused persons have been
convicted of goods, the property of their employer – The accused in a trust position –
However, the court was of the view that imprisonment sentence was appropriate due to
the facts and circumstances of the matter – Therefore, a sentence of an option of a fine
of which part thereof is suspended on certain conditions. S v Dias (CC 14/2011) [2015]
NAHCMD 61 (16 March 2015).
Criminal procedure – Fine – Accused unable to pay – Alternative imprisonment to fine
not imposed – Section 287 (2) of Act 51 of 1977 providing for imposition of
imprisonment alternative to fine – Meaning of ‘court’ – Refers to court and not judicial
officer. Fine – Accused clearly without means to pay fine – Sentencing court failing to
hold enquiry into accused’s ability to pay fine – Effect thereof is imprisonment. Criminal
procedure – Section 290 – Accused under the age of 18 years – In addition to fine –
Court may order accused under supervision of probation officer. S v Tjikuvira (CR
06/2015) [2015] NAHCMD 34 (24 February 2015).
Criminal Procedure – Deviation from statement made to the police – Effect thereof –
Impact on credibility of witness only where there are material differences – Court should
be slow to discredit a witness – Witness must be afforded opportunity to explain the
discrepancies in the evidence – Contradictions in evidence not to be considered in
isolation – Contradicting evidence must be considered against totality of evidence.
Criminal Procedure – Failure by the State to call witness – Failure per se does not
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justify adverse inference – Whether justified must be considered in circumstances of
case. S v Unengu (CC 14/2013) [2015] NAHCMD 33 (24 February 2015)
Criminal procedure – Appeal – Conviction – Appellant (Accused) charged with
attempted murder – Accused raised defence of private defence – Lower court accepted
as possibly true the appellant’s defence that he acted to defend his person and property
– Lower court did not find that the defence and means used to avert the danger were
necessary – Consequently, appellant convicted of assault with intent to do grievous
bodily harm on the basis of competent verdict – Court held that conviction on assault
with intent to do grievous bodily harm is competent verdict where dolus, which was an
element of the offence, is not excluded – Consequently, court confirmed the conviction.
Iita v State (CA 37/2014) [2015] NAHCMD 76 (16 March 2015).
Criminal procedure – Review in terms of s 304 (4) of Act 51 of 1977 – Judgment
ambiguous – Accused charged with five counts and alternatives – Court judgment and
order conflicting – Accused convicted of offences not charged – Court failing to give
judgment on some charges – Constitutes irregularity – Judgment set aside – Matter
remitted to same court to reassess evidence and pass judgment. S v Nendongo (CR
13/2015) [2015] NAHCMD 65 (18 March 2015).
Criminal procedure - Plea – Section 112 (1)(b) – Charge of driving under the influence
– Not sufficient when accused admits he was drunk when driving vehicle – Court from
its questioning must be satisfied that faculties of accused were impaired and driving
skills affected. S v Katuuo (CR 12/2015) [2015] NAHCMD 64 (18 March 2015).
Criminal procedure – Trial – The prosecution – Stopping of prosecution –
Unauthorised stopping of prosecution by prosecutor amounts to nullity – It doesn't follow
from fact that unauthorised stopping of prosecution and subsequent acquittal amount to
nullities that entire proceedings thereby vitiated – Closing of the State case on two
counts and subsequent acquittal set aside and matter remitted to magistrate to continue
with trial if the required consent not obtained. S v Katuuo (CR 12/2015) [2015]
NAHCMD 64 (18 March 2015).
Criminal Procedure – Sentencing – Previous convictions – Accused convicted of rape
– Whether or not charged previously under the common law – No substantial and
compelling circumstances exist – Mandatory sentence. S v Pieters (CC 48/2009) [2015]
NAHCMD 118 (27 May 2015).
Criminal procedure – Appeal against conviction – Appellant convicted of contravening
s 33 of Act 8 of 2003 (Anti-corruption Act) – Grounds of appeal – Appellant not properly
identified – Elements of the offence not proven – Court found that appellant was
properly identified and that appellant transported people with police vehicle for reward –
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Appeal dismissed. Amupolo v State (CA 51/2014) [2014] NAHCMD 31 (20 February
2015)
Criminal Procedure – Evidence – Witnesses – Cross-examination by accused –
Accused not afforded opportunity to finish cross-examination – Constituted gross
irregularity. S v Shikudule (CR 17/2015) [2015] NAHCMD 126 (5 June 2015).
Criminal procedure – Questioning in terms of s 112(1)(b) of the Criminal Procedure
Act 51 of 1977 – Magistrate failing to ask questions on all allegations in the charge but
convicting the accused as charged – Accused charged with assault with intent to do
grievous bodily harm – verdict of guilty as charged substituted with verdict of common
assault – sentence confirmed. S v Seibeb (CR 18-2015) [2015] NAHCMD 147 (19 June
2015).
Fundamental rights – Right to a fair trial – Rights of suspect – Admissibility of
statement taken from accused without informing them of their constitutional rights at
time when they were required to make statements –Accused not considered witnesses
or suspects at the relevant time – Notwithstanding accused advised to contact a lawyer
prior to making statements – Accused elected not to give evidence but claim to have
regarded themselves witnesses at relevant time – No obligation to explain constitutional
rights to a witness – Accused were not suspects treated like witnesses in order to obtain
information under false pretence – Accused informed of the nature of the statements to
be made – Statements were made freely and voluntarily. Kapia v The State (CC 092008) [2015] NAHCMD 140 (15 June 2015).
Criminal procedure – Trial – The accused – Legal representation of – Accused
persons’ right to be informed that sworn statements made by them were to be used in
criminal proceedings against them – Legal position in Namibia – Although concept of a
‘fair trial' in Namibian law differs from that in South African law in that in the case of the
former the right derives from the Bill of Rights, it cannot be said that a trial will be less
fair if a person who knows that it is his right to be legally represented is not informed of
that fact – Whether failure of justice results is a question of fact – Accused no 4 is an
admitted legal practitioner and accused no 5 her husband and an educated person –
Failing to heed advice to consult a lawyer to their own peril – In absence of evidence to
the contrary, court satisfied they were aware of their rights at the relevant time –
Statements ruled admissible. Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15
June 2015).
Criminal procedure – Postponements in terms of the Criminal Procedure Act. S v
Rothen (CC 27-2006) [2015] NAHCMD 143 (17 June 2015).
Criminal procedure — Charge — Statutory offence — Charge should be formulated in
such way that wording of statute is followed closely. The accused were convicted of
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having contravened s 38(1)(o) of the Arms and Ammunition Act, 1996 (Act 7 of 1996).
The description of the charge however is that of s 38(1)(k). The accused were therefore
not properly informed of the charge against them and the conviction, sentence and
additional orders were accordingly set aside. S v Razarus (CR2-2015) [2015]
NAHCNLD 17 (17 April 2015).
Criminal Procedure — s 78 of the Criminal Procedure Act 1977 (Act 51 of 1977) (CPA)
— Accused found not guilty because of mental illness and detained in terms of the
provisions of s 78 — Orders the accused be detained in a psychiatric hospital or prison
pending the signification of the President. State v Kasita (CC 05/2014) [2015]
NAHCNLD 13 (17 March 2015).
Criminal procedure — Evidence — Assessment of — Witnesses — The accused —
Untruthfulness of accused — False evidence by accused not meaning that accused is
guilty — Circumstances of each case must be considered in the light of other evidence
— General principles for dealing with false statements by accused, set out. State v
Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)
Criminal procedure – Trial – The prosecution – Stopping of prosecution –
Unauthorised stopping of prosecution by prosecutor amounts to nullity – Prosecutor’s
failure to lead evidence against accused pleading not guilty and subsequent acquittal in
terms of s 174 of Act 51 of 1977 set aside – Matter remitted to magistrate with direction
to proceed to trial in respect of count 1 if the Prosecutor-General declines to stop the
prosecution in terms of s 6 (b) of Act 51 of 1977. State v Uawanga (CR 21/2015) [2015]
NAHCMD 166 (28 July 2015).
Criminal procedure – Sentence – Minimum sentence regime under s 3(1) of Act 8 of
2000 applied – Court did not find any ‘substantial and compelling circumstances’, within
the meaning of s 3(2) of Act 8 of 2000, to exist – Consequently, court not entitled to
depart from the minimum sentence – ‘Substantial and compelling circumstances’
explained – Principles enunciated in S v Lopez 2003 NR 162 (HC) and in S v Malgas
2001 (2) SA 1222 (SCA) adopted. S v Oxurub (CC 30-2010) [2015] NAHCMD 171 (28
July 2015).
Criminal Procedure: Section 37(3) of the Criminal Procedure Act 51 of 1977 provides
that: Any Court before which criminal proceedings are pending may in any case in
which a police official is not empowered … to take finger prints … or to take steps in
order to ascertain whether the body of any person has any mark, … order that such
prints be taken of any accused at such proceedings or that steps, including the taking of
a blood sample, be taken which such Court may deem necessary in order to ascertain
whether the body of any accused at such proceedings has any mark … or shows any
condition or appearance. S v Gomeb (CC 18/2013) [2015] NAHCMD 164 (22 July
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2015).
Criminal Procedure – Sentence – Prisoner convicted on five counts of Contravening s
15 read with s 1 of the Prevention of Organized Crime Act 29 of 2004 (POCA) –
Trafficking in persons and four counts of Contravening s 2 (1)(b) read with ss 1, 2(2),
2(3), 3, 5, 6 and 7 of the Combating of Rape Act 8 of 2000 (CORA) – Rape with
coercive circumstances and one count of Rape without coercive circumstances –
Sentence to be imposed in terms of the POCA and CORA – Existence of ‘substantial
and compelling circumstance – Mandatory minimum sentence departed from –
Cumulative effect of sentence considered – Sentences ordered to run concurrently. S v
Lukas (CC 15-2013) [2015] NAHCMD 186 (10 August 2015).
Criminal procedure – Trial – Mental state of accused – Lower court’s order in terms of
s 77(6) of the Criminal Procedure Act 51 of 1977 is neither a conviction or acquittal –
Order accordingly not subject to review in terms of s 304 of Act 51 of 1977 – There is
unanimous finding in the psychiatric report that at the time of commission of the crime
the accused was mentally ill and was not able to appreciate the wrongfulness of the
crime and act in accordance with such appreciation – Lower court should accordingly
deal with accused in terms of s 78(6) of Act 51 of 1977 – S v Narib 2010 (1) NR 273; S
v Nyambali 2010 (1) NR 273 followed. S v Thaniseb (CR 22-2015) [2015] NAHCMD 179
(31 July 2015).
Criminal procedure – Charges – Application of s 332(5) of the CPA – Deeming
provision to hold directors of a juristic body liable for acts committed in their official
capacity – Accused employed as directors of Avid but charged in their personal capacity
– Avid, the corporate body not held liable to create legal basis on which a director could
be held personally liable for corporate crimes committed in the course of its corporate
activities – No allegations that the accused were directors acting in their official
capacities – Absent such allegation, the State cannot rely on s 332(5) in order to secure
a conviction. Kapia v The State (CC 09-2008) [2015] NAHCMD 195 (21 August 2015)
Criminal Procedure – Amendment of charges – Amendment sought to insert the
deeming provision of s 332(5) of the CPA – Essentials of a charge is to inform the
accused in clear and unambiguous language of the case to be met – Amendment must
fall within the ambit of s 86(1) of the CPA - Amendment sought would only be allowed if
the accused will not be prejudiced in his/her defence – Amendment would change the
basis and capacity in which the accused persons are charged and have pleaded and is
therefore a substitution in the guise of an amendment – Prejudice to the accused
persons evident – Right to a fair trial includes transparency in the charges levelled.
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Amendment refused. Kapia v The State (CC 09-2008) [2015] NAHCMD 195 (21 August
2015)
Criminal Procedure - Accused convicted of contravening the Stock Theft Act.
Sentencing magistrate not in agreement with the conviction and suggested to the High
Court based on reasons stated that the proceedings be set aside on review as being not
consistent with substantial justice. S v Katjatako (CR 24-2015) [2015] NAHCMD 189 (11
August 2015)
Criminal procedure - Trial - Mental state of accused - Provision
Criminal Procedure Act 51 of 1977 that Court obliged to have at least
appointed where death sentence a possibility no longer obligatory
however, that present case serious enough to warrant such order. S v
2013) [2015] NAHCMD 177 (3 August 2015).
in s 79(1)(b) of
two psychiatrists
- Court holding,
Thomas (CC 19-
Criminal Procedure – Sentence – Magistrate using wrong term namely ‘both’ instead
of ‘each’ when sentencing two accused persons for theft of stock – On review the term
‘both’ is replaced with each. S v Huseb (CR 25-2015) [2015] NAHCMD 208 (8
September 2015).
Criminal procedure – Review – Questioning in terms of s 112(1)(b) of the Criminal
Procedure Act 51 of 1977 – Primary purpose of questioning in terms of s 112(1)(b) of
Act 51 of 1977 is to protect an uneducated accused, especially an undefended accused
from the adverse consequences of an ill-considered plea of guilty – The questions and
answers are to establish the factual basis and legal basis for such plea – Accordingly,
questions and answers must cover all the essential elements of the offence which the
State in the absence of such plea would be required to prove – In instant case
questions and answers were inadequate because they do not cover the essential
elements of the offence. S v Rooinasie (CR 26-2015) [2015] NAHCMD 207 (4
September 2015).
Criminal Procedure – The accused – Report on mental state of accused in terms of s
79 of Act 51 of 1977 – Court should follow guidelines and requirements set out in s 77
and 78. Criminal Procedure – The accused – Report in terms of s 79 of Act 51 of 1977 –
Where accused unrepresented, not sufficient for court to inform accused of the finding –
Accused should be furnished with a copy of report – Court should make every effort to
explain report in clear and comprehensive terms and language to accused. Criminal
Procedure – The accused – Diagnosed with mental retardation – Found to be
unaccountable for crime committed due to mental defect – However found able to follow
and understand court proceedings – Findings ambiguous where mental condition
unchanged. Criminal Procedure – The accused – When mentally retarded likely not able
to comprehend s 77 and 78 proceedings – Incapable of exercising rights availed by
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these sections to challenge report – Imperative that court directs Legal Aid assistance.
Criminal Procedure – Court – Directive declaring accused State President’s patient –
Provisions of s 77 (6) applicable to other jurisdiction (South Africa) erroneously applied
– Orders made detaining accused in terms of s 77 (6) or 78 (6) pending signification of
decision of State President, not a judge. Criminal Procedure – Review – Proceedings
finalised under either s 77(6) or 78 (6) not reviewable. State v Usinge (CR 27/2015)
[2015] NAHCMD 222 (18 September 2015)
EXTRADITION
INQUEST
Inquest – Findings in terms of s 18 (2) of the Inquests Act 6 of 1993 – Evidence –
Deceased died of single gunshot wounds – Fatal shot fired from unknown firearm –
Causing of death unlawful act – Person causing death unknown. Inquest The late
Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015).
LAW OF EVIDENCE
Evidence—Evaluation of—Two mutually destructive versions — No apparent reason why
accused's version should be rejected—Not proved to be false beyond reasonable doubt
Conviction and sentence set aside. Alugodhi v State (CA 19-2014) [2015] NAHCNLD 3
(23 January 2015).
Evidence — Evaluation thereof — Principles on — Appeal — Misdirection — Criminal law—
Assault definition — De minimus non curat lex — Not applicable. Nghipondoka v The
State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015).
Evidence – Admissibility thereof. S v Kauaria (CC 11/2011) [2015] NAHCMD 95 (27
April 2015).
Evidence – Identification – Single evidence – Reliability of complainant’s evidence –
General principles. S v Doeseb (CC17/2012) [2015] NAHCMD 102 (29 April 2015).
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Evidence – Single witness – Young children – Cautionary rules – Court may convict on
evidence of a single witness if clear and satisfactory in material respects – Cautionary
rules – Not applied in formalistic way – Court may convict on evidence of young children
– if satisfied that the child is able to comprehend the truth – possess intelligence – Able
to remember and recollect the event – Evidence to be assessed in its totality. S v
Pieters (CC 48/2009) [2015] NAHCMD 38 (3 March 2015).
Evidence – Admissions – Admissibility – Duty on police and court to inform accused of
fundamental rights – Accused duly informed of rights since arrest – No need to be
repeated once satisfied accused understood meaning thereof – Accused in position to
make informed decision. Evidence – Witness statement – Verbatim explanation of rights
need not be stated by officer explaining rights. Evidence – Cross-examination – Crossexaminer should put his defence on every aspect in dispute to witness implicating
accused whilst still on witness stand. S v Khoikhoi (CC 01/2014) [2015] NAHCMD 28
(19 February 2015).
Evidence – Review — Submitted out of time — lip service to provisions of Act — Not
condoned — Evidence not support conviction-Substitution of charge will be unfair –
Accused convicted of assault with intent to do grievous bodily harm and sentenced to
two years imprisonment of which one year imprisonment was suspended for three years
on normal conditions. Accused not charged with any alternative charge nor warned of
competent verdicts. Magistrate contends that evidence supports a conviction of a
contravention of section 18(1) of Act 33 of 1960. The case was submitted for review on
07 October 2014 while case finalized on 23 June 2011. The evidence does not support
the conviction. Substitution of charge will be unfair. Conviction and sentence set aside.
The warning of rights of review amounts to lip service to complying with the provisions
for review in the Act. It cannot be condoned. S v Shaanika (CR 1/2014) [2015]
NAHCNLD 12 (24 March 2015).
Evidence — Trite that State bears onus to prove beyond reasonable doubt — Mere fact
that evidence of accused false does not necessarily lead to conviction — Court to apply
its mind where versions of State and defence are mutually destructive — Technique
applied by courts in resolving factual disputes applied — Evidence should not be
evaluated piecemeal. S v Haufiku (CC2/2013) [2015] NAHCNLD 10 (11 February 2015).
Trial – Murder – Accused and deceased in a domestic relationship – State case entirely
based on circumstantial evidence – Court faced with conflict of facts between State
witnesses and accused – Approach by court discussed and principles applied –
Accused’s testimony found untruthful – Accused not per se guilty – Accused’s
untruthfulness a factor when considering all the evidence – Circumstantial evidence not
to be considered in isolation – Cumulative effect thereof will be decisive. The State v
Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015).
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Evidence – Circumstantial evidence – Inferences to be drawn – Must be consistent with
proved facts – Must exclude any inferences – When dealing with circumstantial
evidence Court must consider cumulative effect of all the evidence – Evidence: Doctrine
of common purpose − Prerequisites – Presence – Awareness of crime being committed
– Common cause with co-accused – Some action on part of perpetrator – Mens rea to
harm or to kill. S v Lewin (CC 17-2011) [2015] NAHCMD 141 (15 June 2015).
Evidence ─ Circumstantial ─ Shoeprints. The State relied on circumstantial evidence of
shoeprints found by police officers .The exhibits were handed up in relation to the
shoeprints. The appellant’s rights to cross-examination were adequately explained but
the learned magistrate did not meaningful assist him in cross-examination. Appellant
was found with suspected stolen meat and in circumstances that were suspicious. He
casted the blame on some other persons who allegedly have brought the meat to the
house. The Court held that the Appellant did not receive a fair trial. The appeal was
upheld. The conviction and sentence were set aside. Ndakongele v The State (CA 112013) [2015] NAHCNLD 31 (10 July 2015).
Circumstantial evidence: This can only lead to conviction if the inference sought to be
drawn is consistent with all the proved facts. Proved facts should be such that they
exclude reasonable inference from the same the one to be drawn. Accused was the
custodian of the deceased. She was seen beating her. Deceased later died and was
found with wounds and scars which the doctor described as both old and fresh. Sticks
were found in the house. Accused was in a hurry to have deceased buried before the
arrival of police. Accused found guilty of murder with legal or constructive intent. S v
Kalukumwa (CC 26-2012) [2015] NAHCNLD 27 (30 June 2015).
Criminal Procedure: Evidence—Trite that State bears onus to prove beyond
reasonable doubt-Mere fact that evidence of accused false does not necessarily lead to
conviction. State v Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)
Evidence – Innocence – Accused charged with murder – Defence that firearm
discharged accidentally – Accused not obliged to disclose defence – However where he
raises what he may consider to be a defence inclination is that such to be professed at
first opportunity for it to carry weight. S v Komeya (CC 10-2012) [2015] NAHCMD 200
(25 August 2015).
Evidence – Witness – Calling, examination and refutation of – Cross-examination –
General rule that it is essential, when it is intended to suggest that witness not speaking
truth on particular point, to direct witness’s attention to fact by questions put in crossexamination showing that imputation intended to be made and to afford witness
opportunity of giving any explanation and defending his character – If point in dispute
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left unchallenged party calling witness entitled to assume that unchallenged testimony
be accepted as correct. Evidence – Defence – Private defence – Requirements of
attack and defensive act restated and applied. S v Barmann (CC 05-2014) [2015]
NAHCMD 210 (11 September 2015).
POSTPONEMENT
Application – This is an application for the postponement of a criminal trial to enable
counsel for the accused who hails from South Africa time to obtain a visa to attend the
trial. The application was also sought to enable the prosecution to consider a special
plea to be filed by the defence. The court considered the principles applicable to
postponements generally. The court held that the postponement to allow defence
counsel time to obtain immigration papers to attend trial was important in order to
secure the fundamental interests of justice and thus granted the application. The court
refused to allow the postponement to enable the prosecution to consider the special
plea as the special plea had not been served and the prosecution had a right, once it
had been served to consider same and make an appropriate application to court. The
court refused to countenance an application for a postponement hinging on an
application that had not been served when valuable court time may needlessly be lost.
The application was granted in part. S v Conradie (CC 20/2013) [2015] NAHCMD 101
(27 April 2015).
SENTENCE
Sentence – Induces a sense of shock. S v Mavunda (CR 01/2015) [2015] NAHCMD
10(30 January 2015).
Sentence – Factors to be considered by the court - personal circumstances, the crime,
and the interests of society- The objectives of punishment, namely prevention,
deterrence, reformation and retribution, will also be considered. S v Angamba (CC
04/2013) [2015] NAHCMD 22 (12 February 2015); S v Komeya (CC 10-2012) [2015]
NAHCMD 221 (16 September 2015); S v Kock (CC 7-2012) [2015] NAHCMD 214 (15
September 2015)
Sentence – Murder – Accused acting with direct intent – Accused in domestic
relationship with deceased – Personal circumstances and interests of accused
considered – Accused first offender – Accused being in custody for period of three
years and seven months leading to reduction in sentence – Remorse – To be valid
consideration and accused must take court in his confidence – Gravity of offence and
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legitimate interests of society outweigh circumstances of accused – Custodial sentence
inevitable. S v Hange (CC12-2012) [2015] NAHCMD 90 (16 April 2015).
Sentence ─ Competent verdict to murder ─ Culpable homicide ─ Guidelines of
principles and factors to be considered ─ Mitigating and aggravating circumstances –
Accused was indicted for murder but convicted for culpable homicide. He assaulted the
deceased by inflicting one fatal stab wound on the back of the deceased. S v Lebeus
(CC09-2013) [2015] NAHCNLD 39 (05 August 2015).
Sentencing – Accused convicted of serious crimes – personal circumstances of
accused taken into account – crimes very serious – society needs protection – courts
must send clear message that severe sentences would be imposed. State v Jossop (CC
01/2011) [2015] NAHCMD 82 (9 April 2015).
Sentence – Murder – Accused acted with direct intent – Accused in domestic
relationship with deceased – Personal circumstances and interests of accused
considered – Accused first offender – Gravity of offence and legitimate interests of
society outweigh circumstances of accused – Custodial sentence of 35 years imposed.
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 55 (13 March 2015)
Criminal procedure — Sentence — Stock Theft - Sentences imposed on appellants
as per the prescribed minimum sentences in terms of s 14 of the Stock Theft Act 12 of
1990 – before the their declaration of invalidity in Daniel v Attorney-General & Others;
Peter v Attorney-General & Others 2011 (1) NR 330 (HC) - reconsidered on appeal —
Appeal court then finding - after applying dictum of S v Huseb - that when this Court in
Daniel v Attorney General and Others and Peter v Attorney General and Others, struck
down the minimum sentences prescribed by Sections 14(1)(a)(i) and 14(1)(b) of the
Stock Theft Act 12 of 1990, as amended, as unconstitutional, this meant, that at the
time, that the appellants were sentenced, the inconsistencies with the constitution,
relating to the minimum sentencing regime, applicable to the appellants, already
existed.
As the sentencing magistrate in the court a quo did not know of the constitutional
invalidity of the minimum sentencing regime imposed by the Stock Theft Act 1990, at
the time of sentencing the appellants, in this case, it could not be said that he had
misdirected himself in this regard.
However, it was clear, that, if the appellants’ sentences would be allowed to stand, then
that would be tantamount to allowing a sentence in conflict with the Namibian
Constitution to continue to stand. As this would amount to a breach of the supreme law
and result in a grave injustice and as a court of appeal has the duty to protect accused
persons against grave injustices the court therefore had a duty to reconsider the
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sentences meted out to the appellants afresh. Appeal against sentences accordingly
upheld. Appellants sentenced afresh. Isak v The State (CA 62/2011) [2015] NAHCMD
98 (20 February 2015); Mathys & Another v State (CA 98/2014) [2015] NAHCMD 42
(23 January 2015)
Sentence — Murder read with the provisions of the Combating of Domestic violence Act,
Act 4 of 2003 — Two (2) counts of contravening section 16(1) of the Combating of
Domestic Violence Act, Act 4 of 2003, breaching a protection order — Plea of guilty to
murder — Sentence of one count of breaching protection order to run concurrently with
sentence of murder. S v Haufiku ( CC 02/2013) [2015] NAHCNLD 11 (9 March 2015).
Sentence – Culpable Homicide – Assault with intent to do grievous bodily harm −
Accused first offender – Time spent in custody – Factors to her credit − Seriousness of
the offences− Loss of life – Custodial sentence inevitable –Sentence − Culpable
Homicide – Assault with intent to do grievous bodily harm – The accused is a first
offender who spent a considerable time in custody awaiting trial – These are factors to
her credit – However, custodial sentence is inevitable due to seriousness of the
offences and loss of life. S v Khamuxas (CC 20/2012) [2015] NAHCMD 69 (24 March
2015).
Sentence – Accused convicted of – Indecent assault – Accused putting his private part
between complainant’s buttocks – Doing up and down movements – Aggravating
factors − Complainant 9 years old – Accused uncle to complainant – Accused was
accommodated by complainant’s parents – Accused having previous conviction of rape
– Court viewing this in a serious light – Grave situation calling for accused to be isolated
from the public – Accused sentenced to seven (7) years’ imprisonment. S v Gariseb
(CC 02-2013) [2015] NAHCMD 135 (11 June 2015).
Sentence – Culpable homicide – Caused by assault – Generally treated with a heavier
hand – Provocation and personal circumstances carrying substantial weight. The
accused was convicted of culpable homicide in that she had negligently strangled the
deceased to death. The deceased was the original aggressor and provoked the
accused into a fight. The court held that the mitigating circumstances were strong but
that the court could not ignore that the deceased had been robbed of her life at the age
of 34 years. The court imposed a sentence of four years' imprisonment, of which three
years are suspended. S v Ndahambelela (CC 08-2013) [2015] NAHCNLD 5 (28 January
2015).
Sentence – Irregularity vitiating the sentencing procedure – court failed to comply with
the provisions of s114 of the Criminal Procedure Act,1977 (Act 51 of 1977- Penalty
provision, s14(1)(a)(ii) of the Stock Theft Act, already declared unconstitutional –
sentence set aside and substituted. Amunyela v The State (CA 46-2014) [2015]
NAHCNLD 26 (30 June 2015).
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Sentence – Previous Convictions – Aggravating factor – Court cannot turn blind eye on
it – Period spent in custody awaiting trial – Weighs in favour of accused – Offences
committed closely connected in time – Several offences were committed – Accused to
be punished appropriately for each one of them. S v Valombola (CC 25-2015) [2015]
NAHCMD 206 (4 September 2015).
Sentence – Accused convicted of murder, assault common – Appropriate sentence to
take into account the personal circumstances of the offender, the crime with specific
reference to the seriousness thereof and the circumstances in which it was committed
and lastly, the interests of society – Court may emphasise one factor over the other –
Domestic setting considered since the accused was in a relationship with the deceased
from which one child was born – Court emphasising difference between ‘remorse’ and
‘regret’ – Accused testimony of being remorseful rejected in light of subsequent
offences committed and was merely an aid in mitigation – Evidence about accused
being intoxicated when he murdered the deceased and assaulted other people – Court
acknowledging that intoxication could be a mitigating factor since it reduces the accused
blameworthiness – Facts will determine whether intoxication a mitigating factor –
Custodial sentence inevitable – Court exercising its discretion and ordering offences
from the same incident to run concurrently. S v Barmann (CC 05-2014) [2015]
NAHCMD 224 (21 September 2015).
SECTION 174 APPLICATION
Application in terms of s 174 Act 51 of 1977 – Accused charged with 12 counts
ranging from fraud – alternatively theft or theft by false pretenses to theft and a count
contravening s 64(2) of Close Corporation Act – Accused and complainant holding 50%
member’s interest in the CC – Accused consenting to complainant transferring his
member’s interest temporarily to third party to preclude complainant’s wife from claiming
a share of the member’s interest in pending divorce proceedings – Third party allegedly
holding 50% in trust on behalf of complainant – Complainant and accused running the
affairs of the CC and third party playing no role in running thereof – Accused aware and
consenting to the arrangement – Several cheques issued by Inland Revenue on various
occasions in different amounts in favour of the CC - Cheques marked ‘Not Negotiable’
– Instead of depositing cheques into bank account of the CC - Accused depositing such
in a bank account of a different entity – Upon coming to notice of complainant
transactions reversed on his instructions – Meantime accused obtaining 50% of
member’s interest previously transferred to third party – On this basis accused causing
bank to reverse complainant’s instructions. Held: Cannot be said evidence adduced by
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State of such poor quality that reasonable court may not possibly convict. S v Rothen
(CC 27/2006) [2015] NAHCMD 99 (27 April 2015).
Criminal procedure – Discharge in terms of s174 – Prosecutor conceded that evidence
on the a charge of attempted murder was “shaky” – Court a quo ruled that the appellant
be put on his defense on the issue of assault GBH which is a competent verdict on a
charge of attempted murder. The court a quo convicted the appellant of attempted
murder after hearing the evidence – Quaere – Did the prosecutor “abandon’ or
“withdrawn” the charge of attempted murder and was the magistrate under the
circumstances entitled to convict the appellant on the charge of murder. Taapopi v The
State (CA 296/2013) [2015] NAHCNLD 34 (27 July 2015).
Criminal Procedure – s 174 of Act 51 of 1977 - In terms of our law the question that a
trial Court must decide at the close of the prosecution case is whether there is no
evidence, upon which a reasonable Court acting carefully may convict the accused on
the offences he is facing. If the answer is ‘Yes’, the accused must be placed on his feet
to furnish an answer to the allegations against him. On the other hand if the answer is
‘No’, the Court is not allowed to place him on his defense because no prima facie case
has been made out against him. Kashawa vs The State (CC 9-2013)[2015] NAHCMD
202 (27 August 2015).
Criminal procedure – Application in terms of s 174 of the Criminal Procedure Act, 51 of
1977 – Discharge of accused at close of State case – Charges – Fraud alternatively
theft and multiple counts under Companies Act 61 of 1973 – Accused charged in
personal capacity – Test – whether there is prima farcie evidence on which a
reasonable court can convict – Court may also draw inference from the proven facts –
Application partially granted and partially dismissed. Kapia v The State (CC 09-2008)
[2015] NAHCMD 195 (21 August 2015)
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CASE SUMMARIES
Alugodhi v State (CA 19-2014) [2015] NAHCNLD 3 (23 January 2015)
Summary: The Court on appeal was faced with two mutually destructive versions in a
charge of housebreaking with intent to steal and theft. The State relied on circumstantial
evidence of shoeprints by police officers and security guards. No exhibits were handed
up in relation to the shoeprints. The appellant gave evidence that could reasonably
possibly be true. Appellant was not found with any stolen property. The Court held that
the State did not prove the case beyond reasonable doubt. The conviction and sentence
were set aside.
Amunyela v The State (CA 46-2014) [2015] NAHCNLD 26 (30 June 2015).
Summary: The appellant was convicted of stock theft in contravention of the Stock
Theft Act and was sentenced to 20 years’ imprisonment of which 10 years’
imprisonment was suspended for five years. The regional court magistrate failed to
comply with the provisions of s114 of the CPA and the minimum sentence prescribed by
s 14(1)(a)(ii) of the Stock Theft Act has been declared unconstitutional. The court
accordingly replaced the sentence with a sentence of 6 years’ and 6 months’
imprisonment.
Amupolo v State (CA 51/2014) [2014] NAHCMD 31 (20 February 2015)
Summary: The appellant, a police officer, was convicted of contravening section 33
(b) of the Anti-corruption Act (No 8 of 2003). She transported people with a police
vehicle for which she solicited and accepted payment as a reward. She appealed
against the conviction on the basis that she was not properly identified as the driver of
the vehicle and that the elements of the offence were not proven.
Held that, although an identification parade was not held, the witnesses whom she
transported had the opportunity to closely observe her as the driver of the vehicle and
reliably identified her as the driver.
Held further that, witnesses testified that the appellant solicited and accepted money
from them as a reward for transporting them to their destinations. The appellant was
therefore correctly convicted. Appeal dismissed.
Booysen v State (CA 107/2014) [2015] NAHCMD 44 (06 March 2015)
Summary: The appellant is appealing against the sentence of four (4) years
imprisonment imposed on him after he was convicted of assault (by threat) read with the
provisions of the Domestic Violence Act 4 of 2003 – The appellant filed the notice of
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appeal late and has not explain the reasons for the delay to file the notice within the
prescribed period of 14 days after he was sentenced – His explanation that he was
waiting for the court proceedings is not a good excuse for the delay, therefore not
accepted – The appellant, in his application for condonation of the late filing of the
notice of the appeal, also failed to address the issue of prospects of success on appeal
– Similarly, the appellant’s legal representative also failed to augment the gaps in the
condonation application by the appellant through a supplementary condonation
application – As a result, therefore, the court found that as the appellant did not file a
proper condonation application, there was no appeal before court – In the result, the
appeal is struck from the roll.
Boois v State (CA 76-2014) [2015] NAHCMD 131 (8 June 2015)
Summary: Criminal procedure – Notice of appeal – Such notice should set out clearly
and specifically grounds on which appeal is brought – Court found that appellant has
not set our clearly and specifically grounds on which the appeal is brought –
Consequently, court upheld respondent’s point in limine that since there are no grounds
of appeal properly so called court should find that there is no notice of appeal before the
court – Relying on Mbarandongo v The State, court concluded that there is no valid
notice of appeal before the court for the court to consider – In the result court struck the
appeal from the roll.
Dam v State (CA 97/2014) [2015] NAHCMD 47 (27 February 2015).
Summary: Criminal procedure – Appeal – Appeal against sentence – Appellant (and
co-accused) sentenced to 14 years and six months’ imprisonment for crimes including
robbery with aggravating circumstances – Appellant did not establish sentence is
vitiated with any irregularity or misdirection and sentence does not induce a sense of
shock in the mind of the court, considering the seriousness of the crime that was
committed in a vicious manner against harmless and innocent persons who have done
the appellant no harm – Court therefore refusing to interfere with sentence imposed –
Consequently, appeal dismissed.
Dias vs The State (CC 14-2011) [2015] NAHCMD 142 (17 June 2015).
Summary: Mr Dias, the applicant in the application for leave to appeal against the
sentence is seeking leave to appeal the sentence of six years imprisonment of which
half thereof was suspended for five years on certain conditions – The court found the
sentence imposed appropriate and not disturbingly harsh to induce a sense of shock –
Further, court found that the applicant had failed to establish prospect of success on
appeal and dismissed the application.
Ditshabue v State (CA 31/2010) [2015] NAHCMD 80 (30 March 2015)
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Summary: Criminal procedure – Appeal – After their trial in the lower court applicants
(ie appellants) appealed to the court against sentence only – The basis of the
application are contained in grounds in the notice of the application – Substance of
those that are grounds within the ambit of the principles enunciated by the court in S v
Gey van Pittius and Another 1990 NR 35 were considered together with oral
submissions – The court was not persuaded by applicants that sentence was severe –
Court had found that the learned magistrate did not misdirected himself when he
imposed the sentence and the sentence did not induce a sense of shock –
Consequently, appeal court had dismissed the appeal – The applicant launched an
application for leave to appeal – Having considered applicants application for leave to
appeal this court found that the applicants have failed to satisfy the court that they have
a prospect of success on further appeal – Consequently, the court dismissed the
application.
Geingob v The State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015)
Summary: The accused was convicted of robbery pursuant to his plea of guilty.
During the court’s questioning in terms of s112 (1)(b) he explained that after snatching
the complainant’s cellphone from his hand he intended keeping it (available) until
complainant’s mother returned his property (also a cellphone). Accused however then
sold the phone. On appeal contended that accused raised a defence and the court
should have noted a plea of not guilty. There is no legal basis from which a right derived
entitling the accused to hold the property of a third person as security.
Doeseb v The State (CA 25-2015) [2015] NAHCMD 199 (25 August 2015).
Summary: Appellant applied for condonation for late filing of heads of argument. Held
– the delay was minimal and no prejudice enured to any party as a result of the delay.
Though not specifically argued, prospects of success were held to be extant. The
requirement to allege and prove all elements for condonation emphasized. Appellant
was refused bail initially and later brought a fresh application before the magistrate’s
court alleging new facts, viz loss of employment as a result of the continued
incarceration; inability to support family and failure to pay loans and policies held not to
be new facts but old matters but which are the ordinary consequences of detention.
Held further that the court should consider the issues arising in both the old and fresh
applications. Held further that the appellate court is not at liberty to substitute its views
for the lower court but must decide whether that court was correct in refusing bail.
Appeal dismissed.
Hifikepunye v State (CA 102/2014) [2015] NAHCMD 39 (03 March 2015).
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Summary: The appellant had approached a person interested in buying stock and
received N$ 900 from him. The buyer together with the appellant boarded a friend’s
vehicle to go and collect the stock purchased. At a certain spot in the veld the appellant
got off the vehicle, walked into the bushes and came back with two 50 kg maize meal
bags of meat which he loaded on the vehicle.
Held: Kefas and Johannes who boarded the vehicle together with the appellant to
collect the stock in fact materially corroborated each other and effectively placed the
appellant at the scene of crime. These two witnesses also connected the appellant to
the commission of the crime of stock theft.
Held: The conviction is confirmed.
Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015)
Summary: The appellant was tried and convicted for rape. Notice of appeal – it was
held that the notice of appeal should fully and concisely set out the grounds upon which
it alleged the trial court erred so as to give notice to all the parties the grounds on which
the decision is attacked. Application for condonation – the court held that where the
appellant has not filed the notice of appeal in time, he or she should file an application
for condonation accompanied by an affidavit which explains the delay and states
grounds on which the appellant claims he or she has prospects of success on appeal.
Sentence – where there is no appeal against sentence, the court may not interfere with
the sentence imposed as there are no grounds alleged therefor. Evidence – the court
held that although the complainant was a single witness and young, she had adduced
her evidence truthfully and the trial court duly warned itself on the dangers of relying on
her evidence. Appeal dismissed as no prospects of success were alleged and shown to
exist.
Ilukena v The State (CC 06/2014) NAHCND 1 (16 JANUARY 2015)
Summary: Applicant in this matter was a police officer. He is HIV-positive He was
arrested on counts of kidnapping and murder. Later a count of assault by threat read
with the provisions of the combating of domestic violence act was added. His wife had a
relationship with the deceased. The applicant searched for the deceased. When he
found the deceased he hand cuffed him and took him to his home. At his house he also
feet cuffed the deceased. He tortured the deceased with the wife witnessing the
incident. The deceased eventually died. Bail was refused.
Iita v State (CA 37/2014) [2015] NAHCMD 76 (16 March 2015).
Summary: Criminal procedure – Appeal – Conviction – Appellant (accused) charged
with crime of attempted murder in the lower court – Appellant raised the defence of
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private defence – Complainant had thrown stones at appellant at appellant’s drinking
establishment from which he had banned the complaint because of his past unruly and
violent behaviour towards the appellant and patrons of the establishment – To defend
himself and his property appellant had shot the complainant with a pistol at his chest
causing him grievous bodily harm – Lower court accepted the appellant’s explanation
that he acted to defend his person and property was possibly true – Lower court did not
find it proven that the defence and means used were necessary – Consequently,
learned magistrate convicted appellant for the crime of assault with intent to commit
grievous bodily harm on the basis of competent verdict and sentenced him accordingly
– Court found assault with intent to commit grievous bodily harm to be a competent
verdict in the circumstances and on the facts of the case – Consequently, court
dismissed the appeal and confirmed the conviction.
Inquest The late Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015).
Summary: During a skirmish between the police and a group referring to themselves
as ‘The Children of the Liberation Struggle’ (CLS) the police dispersed the group and
drove them away from the gate of premises to which they have blocked all access. After
being pepper-sprayed some members in the group started throwing stones at the
police, injuring three officers. Several shots were fired by a number of police officers.
Evidence in the form of a video recording shows that shots were either fired in the air or
the ground, without any proof that the deceased was struck by any of the bullets so
fired. This corroborates the evidence of the officers who fired the shots. The deceased
had covered some distance from where the fight broke out before struck by a bullet
which caused her death. Evidence given by two independent witnesses shows that one
or more unknown member(s) of the CLS were seen in possession of firearms
immediately before and during the incident. Whereas the projectile that killed the
deceased passed through her body and was not subsequently recovered, the firearm
from which it was fired could not be determined. In view thereof, the court found that the
deceased was unlawfully killed by an unknown person.
Kaanjuka v State (CA 132/2004) [2015] NAHCMD 2 (20 January 2015).
Summary: Criminal procedure – Appeal – After his trial in the lower court applicant (ie
appellant) appealed to the court against sentence only – The basis of the appeal was
that a cumulative sentence of 40 years, 20 years each, for two counts of rape of two
eight-year old girls was shockingly inappropriate – The court was not persuaded by
appellant’s (ie applicant’s) counsel’s argument – Appeal court had found that the
learned magistrate did not misdirected himself when he imposed the cumulative
sentence and the sentence did not induce a sense of shock – Consequently, appeal
court had dismissed the appeal – The applicant launched an application for leave to
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appeal – Having considered applicant’s application for leave to appeal this court found
that the applicant has failed to satisfy the court that he has a prospect of success on
appeal – Consequently, the court dismissed the application.
Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10 February 2015).
Summary: Criminal procedure – Appeal – Appeal against sentence – Appellant noted
appeal against sentence out of time – In that event appellant should apply to court for
condonation of late noting of appeal – Appellant must give satisfactory explanation for
delay – In determining the condonation application court should take into account the
explanation in the supporting affidavit for the delay and prospects of success on appeal
– In instant case appellant has failed to give satisfactory explanation for the delay and
there are no prospects of success on appeal – Court found that the explanation for the
delay was not satisfactory – Court also found that the appellant has not established that
the sentencing proceedings were vitiated by an irregularity or that the learned
magistrate misdirected herself – Court also did not find the sentence imposed to be so
manifestly excessive that it induces a shock in the mind of the court – Consequently, the
appeal should fail – Court accordingly dismissed the appeal.
Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15 June 2015).
Summary: The accused persons testified during an enquiry held in terms of s 417 of
the Companies Act 61 of 1973 and were implicated in the court’s judgement.
Subsequent thereto they were approached by the police and informed of the
incriminating allegations emanating from the judgment and asked whether they had any
knowledge thereof. They were at the time advised to consult a lawyer prior to making
the statements. At the relevant time they were not regarded as either witnesses or
suspects. They made the statements voluntarily and handed same over to the police.
They were subsequently indicted and during the trial objected to the production of the
statements in evidence on the basis that the accused were not warned when making
the statements that it would be used against them in criminal proceedings. Though the
accused elected not to give evidence, they considered themselves witnesses when
making the statements. There is no duty to explain rights to a witness, only to a suspect
or an accused. This notwithstanding they were advised to consult a lawyer before
making any statement. If they did not heed the advice given to them it is only to their
own peril. Accused no 4 is an admitted legal practitioner and married to accused no 4,
an educated person. In the absence of evidence to the contrary, the court was satisfied
that they were aware of their rights.
Kashawa vs The State (CC 9-2013)[2015] NAHCMD 202 (27 August 2015).
Summary: On 25 November 2009, at night a suspect intruded Lavinia Kweenda’s
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house armed with a pistol, raped her and her daughter and disappeared in the cover of
darkness. A case was reported, but the suspect was not arrested. On 17 April 2010, a
burglar broke in Anna Maria Alweendo’s shebeen/shack, a police officer was alerted
and the accused was shot in the right leg after the officer had returned the fire. A bolt
cutter; a cash box; coins and cash notes stolen from the burgled shebeen and other
belongings were found on him and positively identified by the other complainants.
Held: A prima facie case that requires an answer from the accused has been
established and the application for his discharge is declined.
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015).
Summary: The appellant appealed against convictions and the sentence of 20 years’
imprisonment of which 12 years’ imprisonment is suspended for five years for 2 counts
of theft of 2 (two) cattle, one ox valued at N$1500,00 and one cow valued at N$
2000.00 respectively. The two heads of cattle were stolen on the same date and at the
same place. The ox in count 1 belonged to a different owner than the cow/heifer in
count 2. The appellant should only have been convicted of one count of theft of 2 (two)
head of cattle. This court found that there was a duplication of convictions. Convictions
set aside and substituted with one count of theft. The prescribed minimum sentence of
20 years’ imprisonment was held by this court to be unconstitutional and the sentence
imposed herein was found to be shockingly inappropriate. The court considered the
recorded facts in mitigation and aggravation; sentences imposed by this court, and the
interests of communal farmers who are vulnerable to stock theft in the jurisdiction of the
sentencing court. The appeal against sentence was upheld and the sentence imposed
by the regional court is set aside and substituted with a sentence of 10 (ten) years’
imprisonment of which 2 years are suspended for 5 years on the usual conditions.
Lameck v State (CC 15/2015) [2014] NAHCMD 85 (10 April 2015).
Summary: Applicants applied for my recusal which application was dismissed.
Applicants then applied for leave to appeal to the Supreme Court. Applicants must
prove that there exists reasonable prospects of success on appeal, not a mere
possibility or that the case is arguable. A further consideration in my view is the national
importance and public interest of the matter. Leave to appeal is granted.
Lubembo v State (CA 111/2014) [2015] NAHCMD 16 (22 January 2015).
Summary: The appellant was arrested on 28 January 2011 on the allegations of rape.
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He escaped from lawful custody on 26 June 2011 while being escorted with others from
Court back to the Cells. He was re-arrested on 25 August 2011. The appellant’s case
was since then postponed on numerous occasions for Legal Aid resulting in him being
in custody for a period of ± three years.
Lifumbela v State (CA 80-2014) [2015] NAHCMD 132 (8 June 2015)
Summary: Criminal procedure – Appeal – Appeal against conviction and sentence –
Noting of appeal out of statutory time limit – Applicant must apply to court to condone
late filing of notice of appeal – In supporting affidavit appellant must give satisfactory
explanation for the delay – In determining condonation application court should consider
reasons for the delay and prospects of success – But court should consider prospects
of success only where satisfactory explanation for delay in noting appeal has been
given except in cases where there has been a failure of justice in the proceedings in the
lower court or the decision of the lower court is so repugnant and perverse that the
appellate court should not allow it to stand – In instant case appellant noted appeal out
of the statutory time limit under s 67(1) of the Magistrates’ Courts Rules – Court found
explanation given for delay in noting the appeal contained untruths and the explanation
not satisfactory – Consequently, court upheld respondent’s point in limine about the late
noting of the appeal and struck the appeal from the roll.
Lukas v State (CA 16/2013) [2015] NAHCMD 35 (26 February 2015)
Summary: Bail – Appeal against the decision of the magistrate – The matter was
struck from the roll due to non-appearance of the appellant and her legal representative
– Meanwhile appellant was arraigned in this court for trial – Appellant lodged fresh
application based on new facts before a different judge– Learned judge declined to
grant bail to appellant – Appellant revived the appeal against the magistrate’s decision –
The reasons advanced by the magistrate for the refusal of bail considered by the judge
who heard the application based on new facts – Held: By lodging application based on
new facts, the appellant is deemed to have abandoned the appeal – Facts that
appellant seeks to put before court already considered by the learned judge who heard
the application based on new facts. This court has no jurisdiction to review its decision
or to hear an appeal in respect of its own decision – Thus the court declined to hear the
‘appeal’ – Options available to appellant – To appeal against the decision of this court
when it denied bail based on new facts to the Supreme Court or to lodge a fresh bail
application based on new facts, if any.
Lungameni v The State (CA1-2012) [2015] NAHCNLD 9 (06 March 2015)
Summary: The State appealed against the sentence imposed by the magistrate. The
respondent brought an application for leave to adduce new evidence. The court granted
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the applicant leave to lead new evidence. The applicant was convicted of having stolen
money he had received in his capacity as a police officer. He presented evidence which
showed that the same money was found in a cabinet in his office. The serial numbers of
the money found corresponded with the serial numbers recorded on a register which
was handed into evidence during the trial in the court a quo and marked exhibit “B”. The
court found that the conviction could not stand and the conviction and sentence were
set aside.
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015).
Summary: Criminal law — Drug offences — Cocaine — Dealing in in contravention of
Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of
1971 — Appellants driving vehicle in which cocaine hidden in spare tyre — On appeal
— Appellants' version that they had not known that cocaine had been concealed in
vehicle, was held reasonably possible on the facts proved in the case — Mens rea
accordingly not proved — Court on appeal accordingly setting aside conviction of trial
court of dealing in cocaine.
Moussa v State (CA 105/2014) [2015] NAHCMD 21 (11 February 2015).
Summary: Criminal procedure – Bail – Appeal against learned magistrate’s refusal to
grant bail – Appellant (accused 9) and eight co-accused charged with two counts of
kidnapping and robbery with aggravating circumstances – Some co-accused escaped
and the rest, including accused, have not even taken a plea – Court found that trial of
accused not in sight and therefore his endless pre-trial incarceration not acceptable –
Such violates appellant’s rights guaranteed to him by art 12(1) of the Namibian
Constitution – Learned magistrate’s decision not to admit appellant to bail was wrong –
It constitutes a misdirection on the law and or fact and is such serious misdirection that
leads inexorably to the conclusion that there has been a failure of justice – Based on
these reasons court set aside lower court’s decision and granted bail to the appellant on
conditions.
Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March 2015).
Summary: On 27 November 2014, this court dismissed a special plea in terms of s
106 (1)(f) of the Criminal Procedure Act 51 of 1977 by the applicants, that is, that this
court does not have jurisdiction to try them for offences they had been indicted to stand
trial in the High Court – Not happy with the dismissal of their special plea, the applicants
had sought leave to appeal such dismissal – The court, however, on the authority of
case law, found that the applicants failed to establish special circumstances in the
matter to justify an appeal at this stage before conviction and sentence – Alternatively,
the court held that no prospects of success on appeal had been established for another
court to come to a different conclusion – Leave to appeal declined.
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Nghipondoka v The State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015)
Summary: Appellant was convicted of assault common. Appellant, a director of
education, facilitated a conference for teachers. During the conference she observed
some teachers reading newspapers. She reprimanded teachers not to read the
newspapers during the conference. The appellant, according to her, observed the
complainant in the matter continue reading his newspaper that was folded on his lap.
The complainant denied having read the newspaper. Appellant approached him, talked
to him without a response, grabbed him on the collar of his jacket, pulled him up from
the chair he was sitting on, pushed him into the aisle, slapped him with open hand once
on the back and hit or threw him with a newspaper. Appellant on appeal submitted that
the magistrate erred in his evaluation of the evidence, alternatively that the assault was
justified and/or that the rule of de minimus ought to have been applied. Court found no
misdirection and assault not justified nor subject to the de minimus rule.
Nkandi v The State (CA2-2013) [2015] NAHCNLD 16 (17 April 2015)
Summary: The appellants appealed against the sentence of 20 years’ imprisonment of
which 15 years’ imprisonment is suspended for five years for theft of 4 (four) donkeys
valued at N$2 800,00. The prescribed minimum sentence of 20 years’ imprisonment
was held by this court to be unconstitutional and the sentence imposed herein was
found to be shockingly inappropriate. The court considered the recorded facts in
mitigation and aggravation; sentences imposed by this court, and the interests of
communal farmers who are vulnerable to stock theft in the jurisdiction of the sentencing
court. The appeal against sentence was upheld and the sentence imposed by the
regional court is set aside and substituted with a sentence of 5 (five) years’
imprisonment.
S v Awa-Eiseb (CR 03/2015) [2015] NAHCMD 12 (30 January 2015).
Summary: To prove a contravention of s 82(1) of the Road Traffic and Transport Act
22 of 1999, ie driving under the influence of intoxicating liquor, there must be proof that
the accused’s faculties had been impaired when driving a vehicle on a public road.
Accused pleaded guilty to a charge of contravening s 82 (1) and during question
admitted that he was drunk while driving on a public road. The court, in convicting,
accepted the accused’s mere say-so without ascertaining whether the accused’s
faculties were indeed impaired whereby his driving skills were affected. Conviction set
aside.
S v Barmann (CC 05-2014) [2015] NAHCMD 210 (11 September 2015).
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Summary: The accused pleaded not guilty to multiple counts involving murder,
attempted murder, assault with intent to do grievous bodily harm and assault. These
arose from two separate and unrelated incidents. The State led evidence showing that
the accused had struck the deceased, his girlfriend at the time, forcefully with a drinking
glass on her neck whereby she was fatally injured. The accused’s defence that the
injury was accidentally caused when he blocked the blow when the deceased tried to hit
him with the glass was rejected as false. On count 2 evidence that complainant was
stabbed on the face with a broken glass is lacking and it was at most proved that the
accused had hit him with a clenched fist once, constituting assault. Evidence led on
count 3 did not support allegations of accused having stabbed the complainant with a
knife. Accused’s evidence that he had only struck the complainant with a broken crutch
on the side of the neck when attacked by the complainant, is reasonably possibly true in
the light of the evidence adduced. The accused’s defensive act found to be lawful in the
circumstances. The accused’s plea of guilty on a charge of assault with intent to do
grievous bodily harm accepted by the court (count 4). Evidence led in respect of count 5
shows that accused forcefully pushed the complainant out of the way, causing her to fall
onto her back, thereby making himself guilty of assault. Accused accordingly convicted
on those counts duly proved and discharged on count 3.
S v Doeseb (CC 17/2012) [2015] NAHCMD 102 (29 April 2015).
Summary: The accused was charged with one count of assault with intent to do
grievous bodily harm and two counts of rape. Complainant gave single evidence about
an incident in which she was grabbed at night and taken to an isolated spot where she
was assaulted and raped by two persons. The complainant claimed to have identified
the accused as one of the assailants. In its assessment of the reliability of the
complainant’s observation implicating the accused, the court had regard to factors such
as visibility and the fact that the complainant admitted having been intoxicated at the
time. Another factor taken into account was conflicting reports made by the complainant
to different witnesses as regards the events which took place. Though the discrepancies
in the complainant’s evidence could have been brought about due to shock, it cannot be
ruled out that it came about due to her having been under the influence of alcohol at the
time the offence was committed. When the court considered the complainant’s evidence
together with the rest of the evidence, including the merits and demerits on both sides, it
came to the conclusion that the evidence regarding the identity of the complainant’s
assailants was unreliable and did not establish beyond reasonable doubt that the
accused had been correctly identified. Accused accordingly found not guilty on all
counts.
S v Franklin Savage (CC 12-2014) [2015] NAHCMD 150 (8 June 2015).
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Summary: Criminal Law: The state sought to have the admissions made by the
accused ruled admissible. The defence objected to that on the basis that the accused
was not properly warned of his rights, was assaulted – A trial-within-a-trial was held and
the court found that there was no basis for the objection.
Held further, that the accused’s rights were fully explained to him.
Held further, that the accused was not assaulted. The admissions made by the accused
to the police are ruled admissible.
S v Frederick (CC19-2012) [2015] NAHCMD 194 (21 August 2015).
Summary: On the first count the accused and the deceased had an intimate romantic
relationship while residing apart. On the day of the incident, he visited her residence in
the early hours of the morning and found that she was still not yet at home. On her
arrival an argument about her absence ensued, resulting in the accused stabbing her up
to twenty seven times with her own house’s kitchen knife. On the second count, and
separate occasion the accused searched for his daughter at various places in the
evening, but did not find her. He became unhappy, and was later informed that she was
visiting her friend at a place where the complainant and his friend, also happened to be
at the time. The daughter noticed him approaching and ran away. The accused
questioned the complainant on the whereabouts of his daughter and in the process he
hit him with a fist in the face, instantly pinning him to the ground unconscious,
occasioning a head injury and a fractured collarbone.
Held: The killing of defenseless women by their male partners has seriously escalated
with no end looming on the horizon.
Held: In the result the accused is sentenced as follows: thirty five (35) years’ on the first
and five (5) years’ on the second count respectively, running concurrently would be
appropriate.
S v Gomeb (CC 18/2013) [2015] NAHCMD 164 (22 July 2015).
Summary: During the evening on the day of the incident, Fritz Nanab, a resident of
Khorixas heard the screaming of a person close to his house nearby the church yard.
He alerted the police about it, but as it persisted he decided to go out and see what was
happening. On arrival he saw two persons running away from the scene. On coming
closer he found one male person on top of a naked screaming female victim. He caught
and handed him to the police, who had also arrived at the scene. Nanab did the same to
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another suspect who later came back at the scene enquiring about a cherry (girl).
Held: During the investigation only accused 2’s blood was drawn and sent for analysis.
The police could not shade light as to why the same was not done to accused 1 and 3.
Held: The order to draw blood for comparison purposes is generally in the interest of
both parties. However it must be noted that the chain of custody of any swabs, blood
samples obtained from the complainant must have been meticulously observed and
properly accounted for in order for such comparison to take place.
Held: In this matter the evidence relating to the alleged obtaining of swabs from the
complainant as well as her bra and panty has been irreparably damaged, such that
there is nothing with which accused 1 and 3’s blood samples can be compared with.
Held: In the result the application to have blood drawn from accused 1 and 3 is
declined.
S v Hange (CC12-2012) [2015] NAHCMD 90 16 April 2015).
Summary: The accused was convicted of having acted with direct intent when killing
the deceased with whom he was in a domestic relationship and from which one child
was born. The accused is a first offender and maintains his mother and minor cousin.
He is 27 years of age and after cognisance was given to his personal circumstances the
court concluded that the imposition of a custodial sentence is inevitable. The period of
three years and seven months the accused spent in custody awaiting trial will lead to a
reduction in sentence. The gravity of the offence and the legitimate interests of society
dictate that deterrence and retribution as sentencing objectives must be emphasised
and that a lengthy custodial sentence is required. The accused sentenced to 32 years’
imprisonment.
S v Haufiku ( CC 02/2013) [2015] NAHCNLD 11 (9 March 2015).
Summary: The accused in this matter pleaded guilty to murder and not guilty to the
other counts. He murdered his wife after she obtained a protection order in terms of the
Combating of Domestic Violence Act, Act 4 of 2003. He breached the protection order
once before the murder at a time when the deceased was not at her cuca-shop, the
place that he was ordered not to go to. On the day of the murder, the accused again
breached the protection order and eventually murdered the deceased. The sentence of
the first breaching of the protection order was ordered to run concurrently with the
sentence of the murder.
S v Haufiku ( CC2/2013) [2015] NAHCNLD 10 (11 February 2015).
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Summary: The accused and the deceased were married. The deceased obtained a
final protection order on 17 August 2012 in accordance with section 13 of the
Combating of Domestic Violence Act 4 of 2003. On an unknown date in September
2012 or end of August 2012 the accused breached the protection order by going to the
cuca-shop of the deceased to buy 2 bottles of beer on credit. The deceased was not at
the cuca-shop on the said date. On 20 September 2012 the deceased returned to the
cuca-shop from Oshakati. She sent one Martin to collect the money for the 2 beers from
the accused. The accused instead of sending the money came to the deceased at the
cuca-shop in breach of the protection order. The debt was eventually consolidated with
money that the deceased owed the accused. The accused returned to the place where
he came from. Shortly thereafter the accused came again to the cuca-shop of the
deceased. He demanded his things and threw out an iron steel rod. He tried to stab the
deceased with a pickaxe. He eventually got hold of a panga and hacked/chopped the
deceased once on the lower back and twice on the head. The deceased died as a result
of the head wounds.
S v Hausiku (CC 10/2013) [2015] NAHCMD 50 (10 March 2015).
Summary: Criminal Law: The state sought to have a warning statement, a plea in terms
of s119 of Act 51 of 1977 and a confession by the accused ruled admissible. The
defence objected to that on the basis that the accused was not properly warned of his
rights, was forced to say what he said and was assaulted. A trial within a trial was held
and the court found that there was no basis for the objection.
Held further, that the accused’s rights were fully explained to him.
Held further, that the accused was not assaulted. The warning statement, plea in terms
of s119 and confession ruled admissible.
S v Kambidu (CR 9/2015) [2015] NAHCMD 52 (12 March 2015).
Summary: The accused worked as a barman and waiter at Gorden Blue Restaurant for
N$1 500 per month. None of the staff including the accused ever received a salary for
six months, hence the taking away of N$2 600 from the day’s earnings, thereby placing
unlawfulness in issue.
Held: The owner of the business or his delegate did not testify to displace the reason
given for taking the money.
Held: The guilty of the accused has not been established beyond reasonable doubt.
Held: The conviction and sentence are set aside.
S v Katjizumo (CR 08/2015) [2015] NAHCMD 49 (09 March 2015)
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Summary: Criminal Procedure – Plea of guilty – accused questioned in terms of
s 112(1)(b) of the Criminal Procedure Act 51 of 1977 on the charge of housebreaking
with intent to commit a crime unknown to the State – When asked by the court what he
intended to do inside the house, the accused responded that he wanted to see if his
wife was inside with someone – The court should have entered a plea of not guilty in
terms of s 113 of Act 51 of 1977 for the public prosecutor to lead evidence as such
response suggested a possible defence or left room for a reasonable explanation other
than the accused’s guilt – Therefore, the conviction and sentence imposed by the
magistrate set aside and the matter remitted to the magistrate to enter a plea of not
guilty and allow the public prosecutor to lead evidence.
S v Katuuo (CR 12/2015) [2015] NAHCMD 64 (18 March 2015).
Summary: To prove a contravention of s 82(1) of the Road Traffic and Transport Act
22 of 1999, i.e. driving under the influence of intoxicating liquor, there must be proof that
the accused’s faculties had been impaired when driving a vehicle on a public road.
Accused pleaded guilty to a charge of contravening s 82 (1) and during questioning
admitted that he consumed intoxicating liquor prior to him having driven on a public
road. The court, in convicting, assumed that the accused was under the influence
without ascertaining whether his faculties were indeed impaired, affecting his driving
skills. Conviction set aside. On a further count after the court entered a plea of not
guilty, the prosecutor’s closing of the State case without leading evidence, and the
consent of the Prosecutor-General not having been obtained, the accused’s subsequent
acquittal amounted to a nullity. Acquittal and subsequent proceedings set aside.
S v Katjatako (CR 24-2015) [2015] NAHCMD 189 (11 August 2015)
Summary: The accused was convicted by a magistrate of stock theft. The magistrate
left the public service before delivering sentence and in terms of section 275 of the
Criminal Procedure Act 5 of 1977, another magistrate had to impose the sentence.
CRIMINAL PROCEDURE - Held that the charge sheet did not provide sufficient
particulars to enable the accused to prepare his defence in terms of the Criminal
Procedure Act. Held further - the High Court can in unusual cases and where there are
material irregularities resulting in injustice or where justice cannot be attained by any
other means set aside the proceedings before magistrate’s courts even if they have not
yet been concluded. EVIDENCE - Held further that the evidence adduced by the State
did not prove beyond reasonable doubt that the accused committed the offence. Held
further that the court relied on a confession and pointing out that did not comply with the
provisions of the Criminal Procedure Act. Conviction set aside.
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S v Khoikhoi (CC 01/2014) [2015] NAHCMD 28 (19 February 2015).
Summary: The State sought the admissibility of statements made to the police and
magistrate by the accused during pre-trial proceedings. The evidence presented
showed that the accused’s rights were explained to him on numerous occasions prior to
him making a statement despite the accused asserting that he did not understand what
these rights meant. However, from his own evidence it is clear that the accused was
familiar with his fundamental rights. Statements ruled admissible in evidence .
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 51 (10 March 2015).
Summary: The accused killed his girlfriend by stabbing her several times with a knife.
Four eyewitnesses described the incident in which the killing took place and though
their evidence in minor respects differ, they corroborate one another on material
aspects of their evidence. The accused claimed having acted in private defence but in
that respect gave contradicting evidence. His testimony in court is also in conflict with
previous statements made to the police and a plea explanation taken during section 119
proceedings. The court found the different versions advanced by the accused to be
irreconcilable and after weighing it up against the State case – despite some
contradictions and imperfections in the evidence of the witnesses – rejected the
accused’s evidence as being false beyond reasonable doubt.
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 55 (13 March 2015)
Summary: The accused was convicted of having acted with direct intent when
stabbing to death his girlfriend with whom he was in a domestic relationship. He had
one child with the deceased who was pregnant at the time of her death. The accused is
a first offender and has two minor children. He is 27 years of age and after cognisance
was given to his personal circumstances the court concluded that the accused was not
a youthful offender suitable for rehabilitation. The gravity of the offence and the
legitimate interests of society dictate that deterrence and retribution as sentencing
objectives must be emphasised and that a lengthy custodial sentence is required.
Though the importance of rehabilitation not to be overlooked as an objective of
sentence, reformation in this instance must take place in the confines of prison. The
accused sentenced to 35 years’ imprisonment.
S v Lameka (CC11/2012) [2015] NAHCNLD 7 (24 February 2015).
Summary: The two accused persons were employed as security guards. Whilst
trying to defuse a situation at a bar/barbershop, the deceased started fighting with the
accused 2 who in turn hit the deceased down the ground. The deceased got up and
launched an attack on accused 1. It was common cause that accused 1 shot the
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deceased. The issue in dispute was whether the deceased had a knife at the time he
turned to accused 1 and whether accused 1 fought with the deceased prior to shooting
him. It was further disputed by the accused that they kicked the deceased after he was
shot. The court found that it was not safe to rely on the uncorroborated evidence of a
single eyewitness. The court further drew an adverse inference from the failure by the
State to call witnesses who could have corroborated the testimony of the single witness
as no evidence was adduced that they were unavailable. The court found that it was
reasonably possibly true that accused 1 and 2 acted in self-defence as per the
testimony of accused 1. They were accordingly found not guilty and discharged.
S v Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)
Summary: Headnote: The accused was convicted of culpable homicide, murder,
attempted murder and various other crimes. In convicting the accused, the court set out
some important general principles of the law of evidence as it applies in criminal trials.
here the court is required to draw inferences from circumstantial evidence, it may only
do so if the 'two cardinal rules of logic' as set out in R v Blom 1939 AD 188, have been
satisfied. These rules were formulated in the following terms: (1) the inference sought to
be drawn must be consistent with all the proved facts. If it is not, then the inference
cannot be drawn. (2) The proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they do not exclude other
reasonable inferences, then there must be doubt whether the inference sought to be
drawn is correct.
The law does not require from a court to act only upon absolute certainty, but rather
upon just and reasonable convictions. When dealing with circumstantial evidence, as in
the present case, the court must not consider every component in the body of evidence
separately and individually in determining what weight should be accorded to it. It is the
cumulative effect of all the evidence together that has to be considered when deciding
whether the accused's guilt has been proved beyond reasonable doubt. In other words,
doubts about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation, but those doubts may be set at rest when it is evaluated again
together with all the other available evidence. There is thus no onus on an accused to
convince the court of any of the propositions advanced by him and it is for the State to
prove the propositions as false beyond reasonable doubt.
Caution must be exercised not to attach too much weight to the untruthful evidence of
the accused when drawing conclusions and when determining his guilt. In evaluating
the evidence in the present case, the court approved the dictum in S v Mtsweni 1985 (1)
SA 590 (A) (as summarised in the headnote). Although the untruthful evidence or denial
of an accused is of importance when it comes to the drawing of conclusions and the
determination of guilt, caution must be exercised against attaching too much weight
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thereto. The conclusion that, because an accused is untruthful, he therefore is probably
guilty must especially be guarded against. Untruthful evidence or a false statement does
not always justify the most extreme conclusion. The weight to be attached thereto must
be related to the circumstances of each case. In considering false testimony by an
accused, the following matters should, inter alia, be taken into account: (a) the nature,
extent and materiality of the lies and whether they necessarily point to a realisation of
guilt; (b) the accused's age, level of development and cultural and social background
and standing insofar as they might provide an explanation for his lies; (c) possible
reasons why people might turn to lying, e.g. because, in a given case, a lie might sound
more acceptable than the truth; (d) the tendency that might arise in some people to
deny the truth out of fear of being held to be involved in a crime, or because they fear
that.
S v Maasdorp (CR 10/2015) [2015] NAHCMD 56 (13 March 2015).
Summary: The accused was convicted on two counts on pleas of guilty, while the
matter proceeded to trial in respect of one count after a plea of not guilty was entered.
The court passed sentence on those counts the accused was convicted on before
setting the matter down for trial. The procedure adopted by the magistrate is irregular
and not provided for in Act 51 of 1977. Evidence received during the trial may require of
the court to enter a plea of not guilty (s 113) in respect of a charge the accused was
convicted of, which is only possible before sentence is passed. Furthermore, factors
relevant to sentence may emerge during the trial and when the accused has already
been sentenced on some charges, the court could not have had regard thereto,
constituting an injustice. Sentence should be left to the end when all the facts are before
court.
S v Mayumbelo (CR 15/2015) [2015] NAHCMD 107 (5 May 2015).
Summary: Criminal procedure – Accused put on his defence – The learned
magistrate then instructed accused he had the opportunity to indicate to court why he
should be found not guilty – Court found that the instruction was wrong as the accused
bore no onus to prove his innocence – Nevertheless, the court found that the totality of
the evidence accounts for the guilt of the accused – Consequently the court confirmed
the conviction and the sentence.
S v Mutandwa (CR 04/2015) [2015] NAHCMD 13 (05 February 2015)
Summary: The accused entered Namibia at Oshikango but did not pass through the
border post. When she tried to leave Namibia through the Trans Kalahari Border post
she was apprehended and charged in the Gobabis magistrate’s court for illegal entry at
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a place other than a border post (Oshikango). Accused was convicted on her own plea
of guilty. The court acted in terms of s 110 (1) of Act 51 of 1977 was deemed to have
jurisdiction but failed to explain to the unrepresented accused her rights pertaining to
object thereto. The court’s omission to do so constitutes an irregularity vitiating the
entire proceedings.
S v Nakaleke (CC13/2013) [2015] NAHCMD 21 (13 May 2015).
Summary: Headnote: The accused stand indicted on 2 (two) counts of indecent
assault read with the provisions of the Combating of Domestic Violence Act, Act 4 of
2003 and a count of contravening section 2(1) (a) Read with sections 1, 2(2), 3, 5 and 7
of the Combating of Rape Act, Act 8 of 2000, Rape further read with the provisions of
the Combating of Domestic Violence Act, Act 4 of 2003. Where the court is required to
draw inferences from circumstantial evidence, it may only do so if the 'two cardinal rules
of logic' as set out in R v Blom 1939 AD 188, have been satisfied. These rules were
formulated in the following terms: (1) The inference sought to be drawn must be
consistent with all the proved facts. If it is not, then the inference cannot be drawn. (2)
The proved facts should be such that they exclude every reasonable inference from
them save the one to be drawn. If they do not exclude other reasonable inferences, then
there must be doubt whether the inference sought to be drawn is correct.
The law does not require from a court to act only upon absolute certainty, but rather
upon just and reasonable convictions. When dealing with circumstantial evidence, as in
the present case, the court must not consider every component in the body of evidence
separately and individually in determining what weight should be accorded to it. It is the
cumulative effect of all the evidence together that has to be considered when deciding
whether the accused's guilt has been proved beyond reasonable doubt. In other words,
doubts about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation, but those doubts may be set at rest when it is evaluated again
together with all the other available evidence.
There is thus no onus on an accused to convince the court of any of the propositions
advanced by him and it is for the State to prove the propositions as false beyond
reasonable doubt.
Caution must be exercised not to attach too much weight to the untruthful evidence of
the accused when drawing conclusions and when determining his guilt. In evaluating
the evidence in the present case, the court approved the dictum in S v Mtsweni 1985 (1)
SA 590 (A) (as summarised in the headnote): Although the untruthful evidence or denial
of an accused is of importance when it comes to the drawing of conclusions and the
determination of guilt, caution must be exercised against attaching too much weight
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thereto. The conclusion that, because an accused is untruthful, he therefore is probably
guilty must especially be guarded against. Untruthful evidence or a false statement does
not always justify the most extreme conclusion. The weight to be attached thereto must
be related to the circumstances of each case. In considering false testimony by an
accused, the following matters should, inter alia, be taken into account: (a) the nature,
extent and materiality of the lies and whether they necessarily point to a realisation of
guilt; (b) the accused's age, level of development and cultural and social background
and standing insofar as they might provide an explanation for his lies; (c) possible
reasons why people might turn to lying, e.g. because, in a given case, a lie might sound
more acceptable than the truth; (d) the tendency that might arise in some people to
deny the truth out of fear of being held to be involved in a crime.
S v Nendongo (CR 13/2015) [2015] NAHCMD 65 (18 March 2015).
Summary: The accused was charged with several offences set out in five counts,
plus alternatives, to which he pleaded. At the end of the trial the court convicted him of
one offence not charged whilst omitting to pronounce itself on some of the counts the
accused has pleaded. The judgment in itself is ambiguous and conflicting as regards
convictions and acquittals in respect of all the charges, from which it is evident that the
magistrate failed to apply her mind to the matter and delivered judgment haphazardly.
The judgment set aside on review.
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015).
Summary: The complainant, a 12 year old girl, had sexual intercourse with her uncle,
the accused who was 18 years old at the time. The State opted the charge the accused
of housebreaking with the intent to rape and rape in terms of the common law and not
read with the Combatting of the Rape Act. According to the complainant the accused
came to her hut on 3 occasions demanding entrance. She refuse to allow him to enter
and he pushed the door open and entered her hut. He then had sexual intercourse with
her against her will. The accused admitted having sexual intercourse with the
complainant. According to him the complainant asked him for N$ 6 dollars and he gave
it to her on condition she agrees to have sexual intercourse with him. Held that the
single evidence of the complainant was unsatisfactory and found to be not credible. The
Sate failed to prove beyond reasonable doubt that the accused was guilty of
housebreaking with intent to rape and rape. The court however held that the State
proved beyond reasonable doubt that the accused contravened s 14 of the Combatting
of Immoral Practices Act which is a competent verdict on a charge of rape.
S v Oxurub (CC 30/2010) [2015] NAHCMD 108 (5 May 2015).
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Summary: Criminal procedure – Identification parade – Accused identifies by witness
– Court found that witnesses were not influenced when they identified accused – Court
found that identification parade was carried in a manner that did not offend the
guidelines set out in S v Ndikwetepo and Others 1992 NR 232 (HC) – Court found that
conduct of the parade was not unfair – Consequently, court concluded that evidence of
identification parade is satisfactory and safe to rely on. Criminal procedure –
Identification in the dock – Such identification not to discounted altogether – Court to
decide what weight, if any, to accord to dock identification – In instant case accused
refused to attend identification parade in the absence of his legal representative – Court
having held that accused was not entitled to legal representation at identification parade
concluded accused failure to attend the parade without his legal representative present
was unreasonable – Consequently court found that the State’s reliance on dock
identification was therefore not unreasonable – Having found that witness’s encounter
with accused prior to the dock identification was extensive and protracted – Court
concluded that witness’s identification of accused is reliable and credible and therefore
safe and satisfactory to rely on.
S v Oxurub (CC 30-2010) [2015] NAHCMD 171 (28 July 2015).
Summary: Criminal procedure – Sentence – Minimum sentence regime under s 3(1)
of Act 8 of 2000 applied – Court did not find any ‘substantial and compelling
circumstances’, within the meaning of s 3(2) of Act 8 of 2000, to exist – Consequently,
court not entitled to depart from the minimum sentence – ‘Substantial and compelling
circumstances’ explained – Principles enunciated in S v Lopez 2003 NR 162 (HC) and
in S v Malgas 2001 (2) SA 1222 (SCA) adopted – Accused convicted of rape of four
ladies in terms of Act 8 of 2000 – Three were child girls – In the case of one child girl he
used skullduggery to persuade her and win her trust in order to subdue her – With the
rest he throttled them until they lost consciousness and in that state he committed rape
against them – The series of rape was committed over a period of about two years – On
the facts and in the circumstances of the commission of the crimes it cannot be argued
that substantial and compelling circumstances existed – Court concluded that in the
circumstances in which crimes of the rape were committed the accused deserved very
little mercy – Accused sentenced to 25 years’ imprisonment in respect of one child girl,
20 years’ each in respect of the two other child girls and 16 years in respect of the adult
woman
S v Pieters (CC 48/2009) [2015]NAHCMD 38 (3 March 2015)
Summary: Evidence – The accused was charged with multiple counts committed
against young children and one adult person – Most witnesses are youthful and single
witnesses – The Court has warned itself to the dangers of convicting on evidence of
single witnesses and young children – The Court may convict on the evidence of a
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single witness if it is clear and satisfactory in all material respects – The Court may also
convict on the evidence of young children if it is satisfied that the young child
comprehends the truthfulness of events, possesses sufficient intelligence, able to
recollect and remember what happened – And that the witness is a reliable witness.
Summary: Criminal Procedure – Dock identification – Evidence of dock identification is
part of the evidential matter to be tested – Although there is a danger to convict on
evidence of dock identification it cannot be ignored – The Court should decide what
weight to be attached – Dock identification evidence is admissible depending on the
circumstances of each case – In this case witnesses gave a proper description of the
accused – Accused refused to take part in the identification parade – for no reasonable
grounds – Only reasonable inference to be drawn is that the accused was afraid of
possible identification.
S v Pieters (CC 48/2009) [2015] NAHCMD 118 (27 May 2015).
Summary: Criminal Procedure – Sentencing – The accused was convicted inter alia of
three counts of rape – Contravening s(2)(1)(a)of the provisions of the Combating of rape
Act – Accused has a previous conviction of rape – Convicted during 2012 – No
substantial and compelling circumstances exist – Court obliged to impose a mandatory
sentence – Accused is accordingly sentenced to a mandatory sentence in respect of
each count.
S v Rooinasie (CR 26-2015) [2015] NAHCMD 207 (4 September 2015).
Summary: Criminal procedure – Review – Questioning in terms of s 112(1)(b) of the
Criminal Procedure Act 51 of 1977 – Primary purpose of questioning in terms of s
112(1)(b) of Act 51 of 1977 is to protect an uneducated accused, especially an
undefended accused from the adverse consequences of an ill-considered plea of guilty
– The questions and answers are to establish the factual basis and legal basis for such
plea – Accordingly, questions and answers must cover all the essential elements of the
offence which the State in the absence of such plea would be required to prove – The
learned magistrate’s questions and accused answers were such that they assumed the
guilty of the accused – Questions and answers were inadequate because they did not
cover the essential elements of the crime of theft with which accused was charged –
Consequently, court set aside the conviction.
S v Seibeb (CR 18-2015) [2015] NAHCMD 147 (19 June 2015).
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Summary: The accused who was charged with assault with intent to do grievous
bodily harm, pleaded guilty to the charge, questioned in terms of s 112(1)(b) of Act 51 of
1977, but the magistrate failed to ask questions on all allegations contained in the
charge sheet – On review, the verdict of guilty as charged was substituted with the
verdict of common assault, a competent verdict of assault with intent to do grievous
bodily harm in terms of s 266(a) of the Criminal Procedure Act 51 of 1977 – The
sentence is in order and has been confirmed.
S v Shikudule (CR 17/2015) [2015] NAHCMD 126 (5 June 2015).
Summary: Before the accused had finished cross-examining one of the complainant’s,
proceedings were adjourned and when the trial later resumed he was not afforded the
opportunity to continue cross-examining the witness. This constituted a gross
irregularity as the accused has the right to cross-examine all witnesses called by the
prosecution, a right enshrined in the Namibian Constitution. The conviction set aside.
S v Thaniseb (CR 22-2015) [2015] NAHCMD 179 (31 July 2015).
Summary: Criminal procedure – Trial – Mental state of accused – Lower court’s order
in terms of s 77(6) of the Criminal Procedure Act 51 of 1977 is neither a conviction or
acquittal – Order accordingly not subject to review in terms of s 304 of Act 51 of 1977 –
There is unanimous finding in the psychiatric report that at the time of commission of the
crime the accused was mentally ill and was not able to appreciate the wrongfulness of
the crime and act in accordance with such appreciation – Lower court should
accordingly deal with accused in terms of s 78(6) of Act 51 of 1977 – Consequently,
submission returned to lower court for that court to deal with the accused in terms of s
78(6) of Act 51 of 1977.
S v Tjikuvira (CR 06/2015) [2015] NAHCMD 34 (24 February 2015).
Summary: The accused, aged 18 years, was convicted and sentenced to a fine of N$4
800. The sentencing court decided against imposing alternative imprisonment. In
addition to the fine an order was made in terms of s 290 according to which the accused
was placed under supervision of a probation officer for a period of two years. Whereas
the accused remained in default the provisions of s 287 (2) may be invoked by which
accused is brought before the court and be sentenced to imprisonment, alternative to
the fine. Reference to court in this section refers to the court and not the judicial officer.
The accused from the outset was clearly without the means to pay the fine and to
impose imprisonment as alternative to the fine would have the same effect as direct
imprisonment which the sentencing court never intended. In the circumstances of the
case it constituted a misdirection to impose a fine. Sentence and order set aside on
review.
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S v Tjiposa (CR 16/2015) [2015] NAHCMD 123 (2 June 2015)
Summary: Criminal procedure – Trial – Addressing court before sentencing by the
State and accused in terms of s 274(2) of the Criminal Procedure Act 51 of 1977 –
Accused denied opportunity to address the lower court before being sentenced –
Accused was therefore severely prejudiced – Consequently, sentence set aside –
Matter remitted to lower court for learned magistrate to comply with s 274(2) of Act 51 of
1977 before sentencing.
S v Thomas (CC 13 - 2011) [2015] NAHCMD 133 (9 June 2015).
Summary: The accused was convicted of murder, unlawful use of property, rape,
robbery with aggravating circumstances, indecent assault and kidnapping. On the count
of murder, he pleaded that he acted in private defence when he hit the deceased seven
times with a pick handle. On the other charges, he denied any involvement in the
commission of those crimes.
Held that his life or property was not under threat or danger when he hit the unarmed
deceased seven times with the pick handle.
Held further that, even if his life was in danger, which the court rejected, court found that
the accused exceeded the limits of private defence when he hit the unarmed deceased
seven times with the pick handle.
Held further that on the rape charge, the complainant knew the accused very well and
there was light when he attacked the complainant and raped her, he was clearly
identified by the complainant as the perpetrator.
Held further that his DNA was found in the sexual assault evidence collection kit of the
complainant.
Held further that after the rape, he robbed the complainant of her vehicle and drove up
to Keetmanshoop with her vehicle against her will and whilst driving forced her hand
and placed it on his private parts. The guilt of the accused was proved beyond
reasonable doubt.
S v Thomas (CC 19-2013) [2015] NAHCMD 177 (3 August 2015).
Summary: The accused had been referred for psychiatric observation in terms of s 77
(1) of the Criminal Procedure Act 51 of 1977 and reported on in terms of s 79 of the Act.
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The conclusion reached by the constituted panel was that the accused is unfit to stand
trial in that he suffers from a neurocognitive disorder. In view of dissenting findings in
the reports issues and relied upon when making the finding, the evidence of three
members of the panel was heard from which the court concluded that without
neuropsychological tests the conclusion reached by the panel was premature. There
were furthermore indications that the accused might not have been criminally
responsible for his actions and it would be prudent to also have him examined in terms
of s 78 (2) of the Act. Whereas the accused had been examined by only one psychiatrist
the court now has a discretion to invoke the provisions of s 79(1)(b) of the Act. This will
depend mainly on the seriousness of the case and where the consequences for the
accused are serious. The court found the present circumstances to be such that it
warranted an order that the accused be re-examined by a panel of two psychiatrists.
S v Unengu (CC 14/2013) [2015] NAHCMD 33 (24 February 2015)
Summary: During the trial defence counsel extensively cross-examined State
witnesses from their statements made to the police. Any deviation from these
statements were deemed by counsel to be material, rendering the witnesses incredible.
The court considered the relevant case law and distinguished between what would
constitute a material deviation from a previous statement and evidence, though
contradicting, not having adverse effect on the witness’ credibility. Contradictions
between a witness’ statement and viva voce evidence not to be viewed in isolation as
regard must be had to the evidence as a whole. The court should be slow to discredit a
witness on differences between oral statements made by a witness to other witnesses
who then testify on the content of these statements. Numerous factors are likely to
influence the correctness of the content of the statements and any difference between
the statements should not automatically be attributed to the witness.
Where the State fails to call any witness the court should consider any adverse
inference to be drawn from such failure in the circumstances of the particular case.
S v Unengu (CC 14/2013) [2015] NAHCMD 43 (05 March 2015).
Summary: The accused was convicted of having raped and assaulted the complainant
with intent to cause grievous bodily harm. The accused’s personal circumstances such
that a custodial sentence undoubtedly will negatively impact on his family, but this is a
consequence of crime and the court not to be deterred from imposing the kind of
sentence dictated by the interests of justice. The accused was not sober when
committing crimes but his blameworthiness can only be regarded as diminished when
evidence shows that his mental faculties were impaired. The court after considering all
the relevant factors for purposes of sentence found the accused’s personal interests
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outweighed by the gravity of the offence and the interests of society. The circumstances
justify a sentence in excess of the mandatory sentence of not less than 10 years’
imprisonment. On a count of rape the accused sentenced to 12 years’ imprisonment
and for assault with intent to cause grievous bodily harm, a further 6 months’
imprisonment.
Shaalukeni v The State (CA 60/2009) [2015] NAHCNLD 6 (05 February 2015)
Summary: The appellant was convicted of three counts of housebreaking with intent to
steal and theft. He was sentenced to two years’ imprisonment in count 1, 3 years’
imprisonment in count 2 and 10 years’ imprisonment in count 3. The sentence imposed
in count 2 was to run concurrently with the sentence imposed in count 3. The magistrate
further ordered that the 11 months which the appellant spent in police custody awaiting
trial/sentence are to be deducted from the net sentence. He appealed against his
conviction and sentence. He submitted that the court a quo did not assist him, the state
failed to prove the elements of the offences he was charged with and the magistrate did
not properly evaluate the evidence. The court found no merit in these ground and his
appeal against conviction is dismissed. The court however found that the magistrate
misdirected himself by ordering compensation when it was not appropriate and further
by failing to give the appellant the opportunity to be heard in respect of the application
for compensation. This order is accordingly set aside. The magistrate further erred in
accepting as an aggravating factor that the appellant benefitted as some of the cash
was not recovered as this was not properly proven by the state. The order by the
magistrate that 11 months be deducted from the net sentence is not property and it is
accordingly set aside. The court substituted it with substantially the same sentence as
imposed by the magistrate but ameliorated the cumulative effect thereof by ordering that
the sentence in count 1 and 2 run concurrently with the sentence in count 3.
Shaulwa vs The State (CA 100/2014) [2015] NAHCMD 37 (5 February 2015).
Summary: Criminal procedure – Appeal – Appeal against conviction and sentence –
Appellant was an unrepresented accused in the trial court – Appellant’s grounds of
appeal – Failure by learned magistrate to adequately explain appellant’s right to legal
representation, failure to apply s 115 of the Criminal Procedure Act 51 of 1977 and
violation of appellant’s right to be discharged in accordance with s 174 of the Act – On
sentence learned magistrate’s failure to thoroughly and objectively question appellant
on possible mitigating factors – Court found that trial court’s instructions on right to legal
representation was adequate and appellant replied he understood them – Court found
further that trial court’s instructions on the scope and purpose of cross-examination
were adequate and appellant responded he understood them – Court found further that
on the evidence the court cannot fault the trial court for not discharging the appellant
under s 174 of Act 51 of 1977 – The totality of the evidence accounts for the guilt of the
accused – On sentence – Court found that no irregularities or misdirections existed in
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the proceedings and the sentence was not so excessive as to induce a sense of shock
in the mind of the court – Court therefore not entitled to interfere with sentence imposed
– Consequently, court dismissed appeal on conviction and sentence.
Sheefeni and Another v The State (CA 25/2011) [2015] NAHCNLD 32 (24 July 2015).
Summary: The appellants noted their Appeal out of time against the sentence of 8
(eight) years’ imprisonment. They did not advance grounds of appeal but only pleaded
for a reduction in the sentences alluding to facts which aroused after they were
imprisoned. The court found that there was no proper appeal before court and addition
that there are no prospects of success. The Appeal was struck from the roll.
Shikongo v The State (CA 02/2013) [2015] NAHCNLD 08 (6 March 2015).
Summary: The appellants appealed against the sentence of 20 years’ imprisonment of
which 10 years’ imprisonment is suspended for five years for theft of 8 heads of cattle
valued at N$22 000. The prescribed minimum sentence of 20 years’ imprisonment was
held by this court to be unconstitutional and the sentence imposed herein was found to
be shockingly inappropriate. The court considered the recorded facts in mitigation and
aggravation; sentences imposed by this court, and the interests of communal farmers
who are vulnerable to stock theft in the jurisdiction of the sentencing court. The appeal
against sentence was upheld and the sentence imposed by the regional court is set
aside and substituted with a sentence of 10 years’ imprisonment of which 3 years’
imprisonment is suspended for five years on the normal conditions.
State v Jossop (CC 01/2011) [2015] NAHCMD 82 (9 April 2015).
Summary: The accused was convicted of two counts of murder, one count of
attempted murder, three counts of assault with intent to do grievous bodily harm,
damage to property and attempting to defeat or obstruct the cause of justice. Court
considered the triad factors. Accused had not shown any remorse for his actions court
wants to send a clear and strong message that criminals would be severely punished.
Accused sentenced to an effective sixty years imprisonment.
State v Kasita (CC 05/2014) [2015] NAHCNLD 13 (17 March 2015).
Summary: The accused pleaded not guilty to murder and assault by threat and state
that he was suffering from schizophrenia. He stated that this rendered him incapable of
appreciating the wrongfulness of his actions and to act in accordance of his
appreciation. The plea explanation was supported by a report by a psychiatrist in terms
of section 79 of the CPA which bot counsel accepted. Evidence was led which satisfied
the court that the accused committed the acts but he was found not guilty of both
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charges because of his mental illness. The court ordered him to be detained in a
psychiatric hospital or prison pending the signification of the President in terms of s78
(6) of the CPA.
The State v Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015).
Summary: The accused pleaded not guilty to a charge of murder and claimed to have
acted in private defence when he pushed the deceased away from him after she had
cut his throat with a knife. He then lost consciousness and thus unable to explain the
injuries on the deceased’s body. From the post-mortem examination report it is evident
that the deceased sustained two cut wounds to the neck of which one was fatal, and
two fractures of the skull and abrasions on the neck, consistent with fingernail marks.
Accused disputed having inflicted any of the injuries. The accused and the deceased
were alone in the bedroom when cries for help were heard coming from the deceased’s
residence. The door of the bedroom was found locked from the inside and several
witnesses testified that when the accused later stepped outside, he was not injured. He
was later seen cutting his own throat. The untruthfulness of the accused’s testimony is
directly connected to his defence. His untruthfulness not per se making him guilty but is
a factor to be taken into account when assessing all the evidence. Where the court is
faced with conflicting facts from the State witnesses and the accused, the probabilities
might be decisive. Accused gave conflicting instructions to counsel which remained
unexplained and impacts on his credibility as a witness. Though the State case entirely
rests on circumstantial evidence the court found the accused’s evidence to be false
beyond reasonable doubt.
Unengu v The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015).
Summary: The applicant was convicted of rape read with the provisions of Act 8 of
2000 and sentenced to 12 years’ imprisonment. He was also convicted of assault with
intent to do grievous bodily harm and sentenced to 6 months’ imprisonment. Applicant
lodged an appeal against his conviction on the charge of rape. The State (respondent)
lodged a cross-appeal against the sentence imposed on the rape charge as well as
applicant’s acquittal on a second count of rape and attempted murder. The court having
considered the grounds articulated in the respective notices of appeal came to the
conclusion that the court did not commit any misdirection in its evaluation of the
evidence as contended, accordingly, there are no prospects of success on appeal for
either the applicant or the respondent and dismissed both applications.
Venter v State (CA 35-2015) [2015] NAHCMD 182 (24 July 2015).
Summary: Appeal – Notice of appeal – Grounds of appeal – Grounds stating that
magistrate misdirected himself on the facts of law that there were material irregularities
during the proceedings and overemphasized the importance of other facts – Court
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found that those were not grounds but conclusions drawn by the drafter of the notice of
appeal – Consequently, court rejected such ‘grounds’. Criminal procedure – Appeal –
Generally – Findings on credibility – Appeal court will not redily interfere with credibility
findings and factual findings of trial court – Such interference necessary only where
irregularity or misdirection by trial court occurring – Photographs of crime scene not
placed before court as part of evidence of State – Trial court instead admitted evidence
of two State witnesses on how the place where crime of rape took place and the way
complained looked immediately after the sexual attack on her by the appellant – Upon
such evidence trial court concluded that rape in coercive circumstances took place –
Court did not fault the factual and credibility findings by trial court as no misdirections on
irregularities were proved – Appeal was dismissed.
Visagie v State (CA 67-2013) [2015] NAHCMD 216 (11 September 2015).
Summary:
The appellant was convicted of two counts of Rape in contravention of
Sec 2 read with Sections 1, 3,4,6,7 and 8 of the Combating of Rape Act, 8 of 2000 by
the Regional Court for the District of Windhoek.
He lodged an appeal against his
conviction and sentence of 15 years imprisonment, but did not pursue his appeal
against his sentence on the date of argument.
Appellant listed 24 grounds of appeal in his notice of appeal. However, he introduced
two new grounds of appeal on the date that the matter is argued, to wit (1) that the
coercive circumstances as required by Sec 2(2) of the Combating of Rape Act are not
apparent from Complainant’s testimony; and- (2) that the charge sheet is not specific
with regards to the coercive circumstances as it fails to expressly states the nature or
manner of the physical force, this is undesirable as it leaves the Court to speculate on a
very material and crucial aspect of the charges.
Appellant avers that he has not
introduced new grounds of appeal, he has merely summarized the different grounds of
appeal set out in his notice of appeal.
The matter was once removed from the roll and clerk of Criminal Court was directed by
the Court to rectify the defects and mistakes in the record of proceedings, clerk of
Criminal Court failed to adhere.
Matter was re-enroled by the Registrar of the High
Court for hearing whilst the record was still containing the same defects and matter was
postponed and clerk of Criminal Court was once again instructed to correct the record.
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Clerk of Criminal Court once again failed to adhere and the Trial Magistrate personally,
at the last hour adhered to the Court’s direction.
Held, that the dereliction of duties by the Registrar and clerks of the Magistrate’s Court
and their supervisors may cause potential injustice and disrepute to the administration
of justice.
Held further, that Appellant has introduced two new grounds of appeal without filing a
notice of amendment of the grounds of appeal, nor has he applied for leave to file such
notice. Appellant has failed to lay a foundation to introduce the new grounds of appeal.
Held further, that the phrase ‘coercive circumstances’ connotes the absence of free will
or consent. Therefore the sexual act was committed under coercive circumstances.
Held further, that the charge sheet is not too broad and inadequate regarding
“application of physical force to the complainant”. It intelligently informs the accused of
the material aspects relied upon to substantiate the charge against him. It is not
required to provide the details of what constitutes coercive circumstances in the charge
sheet.
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