UNREPORTED HIGH
COURT CRIMINAL
JUDGMENTS INDEX
2013
COMPILED BY: MS. LOTTA AMBUNDA
JUDICIAL RESEARCH ASSISTANT
DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
THE HIGH COURT JUDGMENT INDEX 2013
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 2013. 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 ................................................................................................................................ 8
CRIMINAL APPEAL ............................................................................................................................ 8
CRIMINAL LAW ................................................................................................................................. 10
CRIMINAL PROCEDURE ................................................................................................................ 19
LAW OF EVIDENCE ......................................................................................................................... 39
SENTENCE ........................................................................................................................................ 42
CASE SUMMARIES ................................................................................................... 47
Appolus v The State (CA 32/2012) [2013] NAHCMD 37 (12 February 2013) ......... 47
Bocky v The State (CA 27/2010) [2013] NAHCNLD 40 (08 July 2013) ...................... 47
Ditshabue v State (CA 96/2010) [2013] NAHCMD 132 (12 April 2013) ...................... 47
Hango v The State (CA 48/2009) [2013] NAHCNLD 44 (07 August 2013) ................. 48
Hihepa v The State (CA 36/2011) [2013] NAHCNLD 31 (24 May 2013) .................... 49
Hoorzook v State (CA 71/2012) [2013] NAHCMD 168 (10 June 2013). ..................... 49
Iiyambo v State (CA 68/2012) [2013] NAHCMD 42 (8 February 2013). ..................... 49
Immanuel v State (CA 41/2013) [2013] NAHCMD 254 (12 September 2013) ............ 50
Izack v The State (CA 15/2013)[2013] NAHCMD 207 (23 July 2013) ........................ 50
Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013) ......................... 51
Kahua v The State (CA 18/2013) [2013] NAHCMD 223 (12 July 2013) ..................... 51
Kahiha v State (CA 10/2010) [2013] NAHCMD 206 (22 July 2013) ............................ 52
Lambert v State (CA 58/2013) [2013] NAHCMD 213 (12 July 2013) .......................... 52
Londeni v The State (CA 12/2013) [2013] NAHCMD 210 (12 July 2013) ................... 53
Lukas v State (CC 15/2013) [2013] NAHCMD 334 (13 November 2013) ................... 53
Mcnab v State (CC 181/1998 [2013] NAHCMD 256 (16 September 2013) ................ 54
Muharukua v The State (CA 14/2009) [2003] NAHCNLD 29 (20 May 2013) .............. 54
Mwanyekele v State (CA 15/2013) [2013] NAHCMD 301 (25 October 2013) ............. 54
Mweemba v State (CA 56/2013) [2013] NAHCMD 344 (20 November 2013) ............ 55
Nakale v State (CC 43/2009) [2013] NAHCMD 331 (13 November 2013) .............. 56
Nangombe v The State (CA 19/2013) [2013] NAHCNLD 60 (12 December 2013)..... 56
Nashapi v S (CC 02/2004) [2013] NAHCMD 291 (17 October 2013) ......................... 57
Natangwe v The State (CA 65/2011) [2013] NAHCNLD 26 (30 April 2013) ............... 57
Ndala v The State (CC 32/2001) [2013] NAHCMD 262 (19 September 2013) ........... 57
Ndemuhenuka v The State (CA 76/2010) [2013] NAHCNLD 5 (15 February 2013) ... 58
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Onesmus v The State (CA 01/2013) [2013] NAHCNLD 22 (22 April 2013) ................ 58
Pienaar v The State (CA 25/2012) [2012] NAHCMD 113 (07 August 2012) ............... 59
Pieters v State (CA 27-2013) [2013] NAHCMD 198 (17 July 2013)............................ 59
Sankwasa v State (CA 70/2012) [2013] NAHCMD 249 (23 August 2013).................. 60
Shailemo v State (CA 72/2013) [2013] NAHCMD 323 (8 November 2013) ................ 60
Shihepo v The State (CA 23/2011) [2013] NAHCNLD 33 (31 May 2013) ................... 61
Shituna v The State (CA 59/2011) [2013] NAHCNLD 51 (August 2013) .................... 61
Shipuata v The State (CA 26/2011) [2013] NAHCNLD 02 (23 January 2013) ............ 62
Shipuata v The State (CA 26/2011) [2013] NAHCNLD 04 (01 February 2013) .......... 62
S v Alfeus (CC 16/2011) [2013] NAHCMD 102 (16 April 2013) .................................. 63
S v Edward (CR82/2013) [2013] NAHCMD 368 (3 December 2013). ........................ 63
S v Eiseb, S v Kooper (CR 29-2013) [2013] NAHCMD 105 (17 April 2013). .............. 63
S v Ekandjo (CR73-2013)[2013]NAHCMD314(1 November 2013) ............................ 63
S v Gariseb (CC 18/2011) [2013] NAHCMD 136 (21 May 2013) ................................ 64
S v Gariseb (CC 18/2011) [2013] NAHCMD 192 (10 July 2013) ................................ 64
S v Jackson (CC 03/2011) [2013] NAHCMD 288 (17 October 2013). ........................ 64
S v Haingura (CR71/2013)[2013] NAHCMD 310 (31 October 2013) .......................... 65
S v Hairwa (CR 70/2013) [2013] NAHCMD 309 (31 October 2013) ........................... 65
S v Luish (CR 22-2013) [2013] NAHCMD 79 (27 March 2013) .................................. 65
S v Lukas (CC 18/2012) [2013] NAHCMD 313 (1 November 2013) ........................... 65
State v Mbimbi (CR 42/2013) [2013] NAHCMD 209 (24 July 2013) ........................... 65
S v Muzorongondo (CC 15/2011) [2013] NAHCMD 173 (21 June 2013) ................... 66
S v Muzorongondo (CC 15/2011) [2013) NAHCMD 236 (6 August 2013) .................. 66
S v Namweya (CC 13/2013)[2013]NAHCMD 333 (14 November 2013)..................... 66
S v Namweya (CC 13/2012) [2013] NAHCMD 341(18 November 2013) .................... 67
S v Nangolo (CA 45/2013) [2013] NAHCMD 294 (18 October 2013). ........................ 67
S v Schiefer (CC 17/2008) [2013] NAHCMD 263 (25 September 2013) .................... 67
S v Schiefer (CC 17/2008) [2013] NAHCMD 299 (24 October 2013). ........................ 67
S v Sobuso (CR 28-2013) [2013] NAHCMD 104 (17 April 2013)................................ 68
S v Somseb (CC 1/2012) [2013] NAHCMD 174 (21 June 2013) ................................ 68
S v Tjaseua (CR 3-2013) [2013] NAHCMD 10 (22 January 2013) ............................. 68
S v Tjiromongua (CR 06-2013) [2013] NAHCMD 31 (5 February 2013) ..................... 68
S v Tjiveze (CR 27-2013) [2013] NAHCMD 110 (24 April 2013) ................................ 69
S v Tuhandi (CR 84/2013) [2013] NAHCMD 367 (02 December 2013). ..................... 70
S v Waterboer (CC 16/2009) [2013] NAHCMD 148 (4 June 2013) ............................. 70
S v Van Rooi (CR 50/2013) [2013] NAHCMD 218 (29 July 2013) .............................. 71
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S v van Wyk (CR72-2013)[2013]NAHCMD 315 (1 November 2013).......................... 71
S v Waterboer (CC 16/2009) [2013] NAHCMD 159 (11 June 2013) ........................... 71
State v Aebeb (CR 53/2013) [2013] NAHCMD 243 (15 August 2013) ........................ 71
State v Ananias (CA 34/2013) [2013] NAHCMD 238 (6 August 2013) [In Chambers] 72
State v Aribeb (CR 60/2013) [2013] NAHCMD 273 (04 October 2013) ...................... 73
State v De Jay (CC 4/2010) [2013] NAHCMD 251 (16 August 2013) ......................... 73
State v Ditshabue (CC 26/2012) [2013] NAHCMD 261 (20 September 2013) ........... 74
State v Farmer (CC 6/2010) [2013] NAHCMD 95(10 April 2013) ............................... 74
State v Farmer (CC 06/2010) [2013] 138 NAHCMD (23 MAY 2013) .......................... 75
State v Goraseb (CR 78-2013) [2013] NAHCMD 336 (15 November 2013). .............. 75
State v Jackson & 2 Others (CC 03/2011) [2013] NAHCMD 193 (11 July 2013) ........ 75
State v Kambahe (CR 79-2013) [2013] NAHCMD 337 (15 November 2013). ............ 76
State v Katzao (CC 25/2010) [2013] NAHCMD 87 (4 April 2013) ............................... 76
State v Kauaria (CR 9/2013) [2013] NAHCMD 35 (12 February 2013) ...................... 76
State v Kgosiemang (CR 56/2013) [2013] NAHCMD 245 (15 August 2013) .............. 77
State v Kido (CC 3/2013) [2013] NAHCMD 253 (10 September 2013) ...................... 77
State v Muranda (CR 51/2013) [2013] NAHCMD 237 (7 August 2013) ...................... 77
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 108 (18 APRIL 2013) .................. 78
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 167 (18 June 2013) ..................... 78
State v Pedro (CR 59/2013) [2013] NAHCMD 252 (06 September 2013) ............... 78
State v Pieters (CR 58/2013) [2013] NAHCMD 272 (04 October 2013) ..................... 79
State v Solomon (CR 25/2013) [2013] NAHCMD 94 (9 April 2013). ........................... 80
State v Tilonen (CR 52/2013) [2013] NAHCMD 242 (15 August 2013) ...................... 80
State v Titsol (CC 05/2009) [2013] NAHCMD 183 (28 June 2013) ............................. 81
State v Tjapa (CC 9/2011) [2013] NAHCMD 225 (30 July 2013) ................................ 81
State v Tsowaseb (CR 55/2013) [2013] NAHCMD 244 (15 August 2013) .................. 82
State v Uri-Khob (CC 25-2010) [2012] NAHCMD 78 (26 MARCH 2013) .................... 82
Tangeni v The State (CA 85/2010) [2013] NAHCNLD 16 (15 April 2013) .................. 82
The State v Awala (CR 06/2013) [2013] NAHCNLD 14 (26 March 2012) ................... 82
The State v Diergaardt (CR 13/2013) [2013] NAHCMD 48 (26 February 2013) ......... 83
The State v Fillemon (CR 04/2013) [2013] NAHCNLD 12 (15 March 2013) ............... 83
The State v Frey (CR 19/2013) [2013] NAHCMD 60 (6 March 2013) ......................... 83
The State v Ganeb (CR 47/2013) [2013] NAHCMD 220 (29 July 2013) ..................... 84
The State v Gariseb and Another (CC 16/2012) [2013] NAHCMD 25 (30 January
2013) .......................................................................................................................... 84
The State v Gawanab (CR 46/2013) [2013] NAHCMD 219 (29 July 2013) ................ 85
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The State v Goabab (CC 14/2008) [2013] NAHCMD 122 (10 May 2013) .................. 85
The State v Haufiku (CC 16/2012) [2013] NAHCNLD 49 (24 September 2013) ......... 85
The State v Hauwanga (CR 11/2013) [2013] NAHCNLD 23 (22 April 2013) .............. 86
The State v Hendimbi (CR 18/2013) [2013] NAHCMD 91 (09 April 2013) .................. 86
The State v Herunga (CA 67/2012) [2013] NAHCNLD 32 (24 May 2013) .................. 87
The State v Hilongwa (CR 05/2013) [2013] NAHCNLD 15 (27 March 2013) .............. 87
The State v Iilonga (CC 17/2012) [2013] NAHCNLD 06 (25 February 2013) ............. 87
The State v Iyambo (CA 25/2013) [2013] NAHCNLD 42 (2 May 2013) ...................... 87
The State v Kauima (CC 07/2011) [2013] NAHCNLD 35 (20 June 2013) .................. 88
The State v Kandjou (CR 48/2013) [2013] NAHCMD 221 (29 July 2013) .................. 88
The State v Kangondjo (CR 35/2012) [2013] NAHCMD 153 (7 June 2013) ............... 88
The State v Kapolo (CC 05/2012) [2013] NAHCNLD 28 (16 May 2013) .................... 88
The State v Kuaima (CC 07/2011) [2013] NAHCNLD 07 (26 February 2013) ............ 89
The State v Kuhatumwa (CR 03/2013) [2013] NAHCNLD 11 (07 March 2013).......... 90
The State v Kahuure (CR 44 /2012) [2013] NAHCNLD 211 (24 July 2013) ............... 90
The State v Kamutushi (CC 08/2012) [2013] NAHCNLD 41 (17 July 2013) ............... 90
The State v Kamutushi (CC 08/2012) [2012] NAHCNLD 39 (05 July 2013) ............... 91
The State v Kashopatii (CR 14/2013) [2013] NAHCMD 212 (24 July 2013) ............... 91
The State v Lameck (CC 11/2010) [2013] NAHCMD 36 (11 February 2013) ............. 91
The State v Likezo (CC 12/2012) [2013] NAHCNLD 34 (12 June 2013) .................... 92
The State v Liseli (CC 13/2010) [2013] NAHCNLD 13 (18 March 2013) .................... 92
The State v Lucas (CR 02/2013) [2013] NAHCNLD 10 (04 March 2013) ................... 92
The State v Mangate (CR 36/2012) [2013] NAHCMD 154 (7 June 2013) .................. 92
The State v Mbwale (CC 07/2012) [2013] NAHCNLD 36 (26 June 2013) .................. 93
The State v Mbango (CC 19/2012) [2013] NAHCNLD 46 (13 August 2013). ............. 93
The State v Mtshibe (CC 15/2008) [2012] NAHCMD 58 (5 March 2013) ................... 94
The State v Ndapwiyonya (CR 09/2013) [2013] NAHCNLD 19 (18 April 2013) .......... 94
The State v Nepele & Others (CA 07/2011) [2013] NAHCNLD 43 (2 May 2013) ....... 95
The State v Nguudipalelwa (CR 12/2013) [2013] NAHCMD 47 (26 February 2013) .. 95
The State v Nhinda (CC 23/2012) [2013] NAHCNLD 08 (28 February 2013) ............. 95
The State v Okuani (CR 07/2013) [2013] NAHCMD 32 (05 February 2013) .............. 95
The State v Raiva (CR 10/2013) [2013] NAHCNLD 20 (18 April 2013) ...................... 96
The State v Tate (CR 08/2013) [2013] NAHCNLD 18 (15 April 2013) ........................ 96
The State V van der Byl (CC13/2010) [2013] NAHCMD 19 (29 January 2013) .......... 96
The State v Van Schalkwyk (CR 01/2013) [2013] NAHCNLD 09 (01 March 2013) .... 96
The State v Vrede (CR 8/2013) [2013] NAHCMD 34 (12 February 2013). ................. 97
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Tangeni v The State (CA 85/2010) [2013] NAHCNLD (15 April 2013) ....................... 97
Tjarimba v The State (CA 07/2010) [2013] NAHCNLD 03 (25 January 2013) ............ 97
Ude v State (CA 12/2011) [2013] NAHCMD 149 (7 June 2013) ................................. 97
Valombola v The State (CA 93/2013) [2013] NAHCMD 279 (9 September 2013) ...... 98
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SUBJECT INDEX
CRIMINAL APPEAL
Appeal - Appeal against sentence of periodical imprisonment for failing to comply with a
maintenance court order to pay maintenance for a minor child. Izack v The State (CA
15/2013)[2013] NAHCMD 207 (23 July 2013).
Appeal - Appeal against sentence of 5 years imprisonment with two years suspended
for culpable homicide. The appellant had fired warning shots in order to arrest the
deceased who was poaching on the appellant’s farm. The regional magistrate said that
the appellant’s offences must have shocked a small community like Omaruru and
referred to the appellant taking the law into his own hands. But there were no facts
before her as to how the community in Omaruru was affected. Nor did the facts
establish that the appellant took the law into his own hands. The purpose of firing
warning shots was to affect an arrest. The court found that the regional magistrate
misdirected herself by over emphasizing what she considered to be the interests of
society in balancing process which is inherent to sentencing as set out by the Supreme
Court in S v van Wyk 1993 NR 425 at 448. The regional magistrate also misdirected
herself by failing to consider an alternative to a sentence of imprisonment and also
misdirected herself in wrongly referring to the evidence of a clinical psychologist as
hearsay evidence and not properly evaluating that evidence. The sentence was
disturbingly inappropriate, taking into account the uncontested facts of the crime.
Sentence set aside and substituted by a fine of N$15 000 or 2 years imprisonment plus
3 years suspended. Lang v The State (CA 53/2013) [2013] NAHCMD 342 (18
November 2013).
Appeal - Application for leave to appeal by the State against acquittal of accused on all
charges. S v Nangolo (CA 45/2013) [2013] NAHCMD 294 (18 October 2013).
Appeal - Application for leave to appeal against the conviction on double murder and
the sentence imposed thereon. Requirement – appellant must satisfy the court that
were leave to be granted there are reasonable prospects of success on appeal. Nakale
v State (CC 43/2009) [2013] NAHCMD 331 (13 November 2013).
Appeal – Bail – Appeal against refusal of bail by Magistrate – Bail applications to be
treated with a sense of urgency as it deals with a person liberty- no evidence that the
accused, once on bail, will abscond, interfere with witnesses - In assessing the risk of
flight the courts may properly take into account not only the strength of the case for the
state and the probability of a conviction but also the seriousness of the offence charged
and the concomitant likelihood of a severe sentence – No sufficient evidence against
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the accused at this point or that it will be against justice if released on bail – Magistrate
misdirected in refusing bail – Personal circumstances of the accused justifying release
on bail – Principle of presumption of innocence until proven guilty to always be
considered – Appropriate approach is to impose stringent conditions. Appeal allowed
and bail granted. Unengu v State (CA 38/2013) [2013] NAHCMD 202 (18 JULY 2013);
see further Lang v S (CA 53/2013) [2013] NAHCMD 248 (23 August 2013).
Appeal – Conviction and sentence – Certificate from the magistrate who dealt with the
matter that such appeal record is the true copy of the proceedings in the Magistrates’
Court – without such certificate, High court may not accurately rely on the record –
certain pages of the record unreadable – record incomplete and not properly compiled
by clerk of the Court – See Petrus Coetzee v The State unreported appeal judgment in
Case No: 52/09, delivered on 11 March 2011. Visagie v State (CA 67/2012) [2013]
NAHCMD 44 (22 February 2013).
Appeal – Appeal against sentence - Appeal against sentence of 6 years, of which 3
years were suspended for 5 years on appropriate conditions for a contravention of s2
(1) (a) of Act 8 of 2000 imposed by a regional magistrate. The appellant was at the time
of the commission of the offence 15 years and 1 month old. He had also spent some 18
months incarcerated prior to sentencing. But a severely aggravating feature of the crime
(comprising the insertion of his finger in the vagina of a girl of 5 years) was the tender
age of the victim. The regional magistrate had considered the personal circumstances
of the appellant following a social report being handed in before sentencing. The
appellant did not establish a misdirection or irregularity on the part of the regional
magistrate. Despite the age of the appellant, the sentence does not induce a sense of
shock, given the seriousness of the crime and the interest of society in ensuring that
severe sentences are handed down for the statutory rape of young children at tender
ages. Gomaseb v The State (CA 58/2013) [2013] NAHCMD 366 (29 November 2013).
Appeal - Grounds of appeal: - Not permissible to introduce new grounds of appeal in
heads of argument – Appellant bound by grounds – In the notice of appeal – Must
confine herself to those. Self defence – Determining factor whether appellant
reasonably believed – Her life was in imminent danger – whether it would be said that a
reasonable person in position of appellant would have acted the way she did. –
Appellant did not reasonably believe that her life was in imminent danger - appeal
dismissed. Gregory v State (CA 142/2007) [2013] NAHCMD 46 (25 February 2013).
Appeal – Notice of appeal – filed outside the time limit of 14 days – Magistrate Court
Rule, Rule 67 (1) read with Criminal Procedure Act section 309 (2) of Act 51 of 1977 –
failure to seek condonation – appeal struck from the roll. Londeni v The State (CA
12/2013) [2013] NAHCMD 210 (12 July 2013).
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Appeal – Section 310 of the Criminal procedure Act, 1977 – Against the decision of the
Regional Magistrate declaring GN 100 of 2003, published in terms of Section 82 (7) of
the Road Traffic and Transport Act, 1999 [Act 22 of 1999] ultra vires the Road Traffic
and Transport Act, 1999.- test for applications for leave restated – reasonable prospects
of success – Whether another court will come to a different conclusion – such notice not
in compliance with s 94 (3) and (4) – no prospects of success on appeal – appeal
dismissed. State v Heathcote (CC 24/2013) [2013] NAHCMD 195 (12 July 2013), S v
Titus (CR 61/2013; CR 64/2013; CR 65/2013) [2013] NAHCMD 359 (28 November
2013); Willemse v The State (CA 2-2008) [2013] NAHCMD 371 (11 December 2013).
Appeal – Section 310 of the Criminal procedure Act, 1977 - The Prosecutor-General
may in terms of s 310(1) of Act 51 of 1977 appeal inter alia against an order made in a
lower court. In terms s 310(2)(a) such application must be lodged within 30 days of such
order or within such extended period as may on application on good cause be allowed –
Application for leave to appeal lodged more than eleven months late. Applicant has not
dealt with the issue of condonation at all and therefore no explanation for the late filing
of the application for leave to appeal is provided – Court declines to consider application
for leave to appeal – Application is struck from the roll – In terms of s 310(7) of Act 51 of
1977 State is ordered to pay costs respondents have been put to in opposing the
application. The State v De Jager (CA 94/2013) [2013] NAHCMD 353 (21 November
2013).
CRIMINAL LAW
Criminal law – Abduction – State to prove that the accused had the intention to
remove minor permanently or at least for a substantial period – accused intended to
temporarily remove the complainant in order to facilitate sexual intercourse – abduction
not proven. Criminal Law – Kidnapping – not specified in the indictment that the
accused intended to deprive the custodians of their control- court constrained to
adjudicate on the charge as per indictment – Accused found to have formed a separate
intention to deprive the complainant of her freedom of movement - accused took the
complainant to a confined space to restrain her from making good a third escape –
found guilty of kidnapping. Criminal Law – Contravention of s 2(1)(a) – Coercive
circumstances – Accused threatened the complainant and used physical force – The
accused unable to tell his own age or that of the complainant but aware of the possibility
that his conduct is prohibited by law and reconciled himself with this possibility. S v
Garab (CC 18/2012) [2013] NAHCNLD 47 (29 July 2013).
Criminal law – Accused charged with murder, possession of a firearm without a licence
and possession of ammunition – Pleaded not guilty – On murder charge explained that
the deceased was shot accidentally either by him or herself—Court reject‘s his version
find that the deceased was shot deliberately by the accused, conduct of the accused
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after incident not consistent with somebody who shot deceased by accident. State v
Farmer (CC 6/2010) [2013] NAHCMD 95 (10 April 2013).
Criminal law – Accused charged with murder and robbery with aggravating
circumstances – pleaded not guilty—Defence of mental illness (psychotic) due to
substance abuse over the years—Confession—Admissibility requirements met-Mental
illness—Diminished responsibility—Convicted of murder dolus directus no evidence to
support robbery as the victim was possible dead when robbed—Convicted of theft.
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 108 (18 April 2013).
Criminal law – Accused convicted of murder - Element of intention - dolus directus.
State v Zuzee (CC 26/2008) [2013] NAHCMD 247 (16 August 2013); S v Kameruao
(CC 12/2009) [2013] NAHCMD 284 (15 October 2013).
Criminal law – Accused charged and convicted of housebreaking with intent to commit
a crime unknown to the state – Evidence shows that the accused broke into the house
but did not steal – Such conviction not competent – The accused admitted all the
elements of the crime of House breaking with intent to steal - Substituted with the
conviction of housebreaking with intent to steal. The State v Ganeb (CR 47/2013) [2013]
NAHCMD 220 (29 July 2013).
Criminal Law— Accused charged with robbery with aggravating circumstances, 3
counts of attempted murder, negligent discharge or handling of a firearm and
possession of a firearm and ammunition without a licence—Plea—Bare denial—
Accused positively identified as the perpetrator of the robbery—Aimed and fired at
police officers—Attempted to kill them—Fired shots with a revolver—No licence—
Proven that possession of firearm and licence unlawful—Guilty as charged. State v
Tjapa (CC 9/2011) [2013] NAHCMD 225 (30 July 2013).
Criminal law - Criminal law: If an accused is facing two separate counts and the same
evidence is used to sustain a conviction on both of them, there is a splitting of charges,
and only one of the counts should be preferred against him. S v Tuhandi (CR 84/2013)
[2013] NAHCMD 367 (02 December 2013).
Criminal law - Arms and Ammunition Act, 1996 (Act 7 of 1996) – Possession of an arm
without a licence, permit or authorization – Section 10(8) provides for a period of not
less than two years to declare a person convicted of unlawful possession of an arm unfit
to possess an arm – A period of 12 months ordered by the magistrate has been
substituted with a period of 24 months. State v Kambahe (CR 79-2013) [2013]
NAHCMD 337 (15 November 2013).
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Criminal law - Appeal against conviction and sentence – Ad the conviction - Court
concluding that findings of magistrate not wrong – Appeal against conviction dismissed Ad sentence – Court finding that the aspect of deterrence was over-emphasised,
whereas the strong personal mitigating factors in favour of the appellant were under –
Emphasized - That the learned magistrate therefore got the complicated task of trying to
harmonise and balance the principles applicable to sentencing and to apply them to the
facts wrong in these respects – In any event the sentence imposed by the court a quo
also inducing a sense of shock in the sense that there was a startling disparity between
the sentence imposed by the trial court and the sentence deemed appropriate by the
appeal court – Sentence set aside. Appolus v The State (CA 32/2012) [2013] NAHCMD
37 (12 February 2013).
Criminal law – Appeal against conviction and sentence – Convicted on a charge of
rape, read with the provisions of the Combating of Rape Act, 2000 (Act 8 of 2000) –
Regional Magistrate finding that there are no substantial or compelling circumstances –
Conviction and sentence confirmed by appeal court. Hango v The State (CA 48/2009)
[2013] NAHCNLD 44 (07 August 2013).
Criminal law – Appeal against conviction – Section 2(1)(a) of the Combating of Rape
Act 8 of 2000 – Appeal filed 2 years and 9 months after conviction – Against rule 67(1)
of the Magistrate’s Court rules – Application for condonation to contain a reasonable
and bona fide explanation for the delay – Appellant did know of the procedure and time
limits – Application for condonation dismissed - Misdirection from the court a quo –
Sentence reduced. Johannes v State (CA 11/2012) [2013] NAHCNLD 1 (08 January
2013)
Criminal Law – Appeal against conviction and sentence – Accused convicted of theft –
Held that the accused’s explanation not reasonably possibly reasonably true that he
was not involved in the theft – Accused is the vital link in the States knowledge of the
identity of the person in whose possession the stolen property was found – Appeal court
held that the inference drawn is consistent with the proved facts and excludes every
reasonable inference that accused was not the thief – Conviction and sentence
confirmed. Leonard v The State (CA 62/2011) [2013] NAHCNLD 24 (24 April 2013)
Criminal Law - Appeal against conviction and sentence – Appeal dismissed by the
appeal court – Reasons – Application for condonation granted – Ad merits – Appellant
tendered an unequivocal plea of guilty – Court a quo did not misdirect itself by
convicting the appellant on his own admission of guilt – Judicial discretion reinstated –
Sentence imposed not too severe and thus appropriate – Appeal dismissed. Moyo v
State (CA 57/2012) [2013] NAHCMD 7 (17 January 2013).
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Criminal law – Appeal – Minimum sentence prescribed in s 2 of the Combating of Rape
Act, 8 of 2000. The need for the trial court to explain the provisions of s 3 (2) and the
concept of substantial and compelling circumstances to accused persons after
conviction in accordance with the guidelines set out in S v Garoeb 2005 NR 310 (HC) at
517. Sentence set aside and matter remitted to trial court to consider sentence afresh
after applying such guidelines. Nampala v The State (CA 41/2011) [2013] NAHCNLD 25
(30 April 2013).
Criminal law - Appeal by State against discharge of respondent at the close of the
State’s case. The magistrate misdirected himself and failed to apply the test restated by
the Supreme Court in State v Teek 2009 (1) NR 127 (SC). Discharge set aside and
matter remitted to the magistrate’s court for the trial to by in de novo as the presiding
magistrate had since left the magistracy. S v Willemse (CA 52/2013) [2013] NAHCMD
321 (7 OCTOBER 2013).
Criminal law – Application in terms of s 174 of the Criminal Procedure Act – Test
whether there is prima facie case on which a reasonable court may convict. Malumo v
State (CC 32/2001) [2012] NAHCMD 33 (11 February 2013).
Criminal law - Application for leave to appeal against sentence - The applicant failed to
satisfy this court that there are reasonable prospects of success on appeal – application
dismissed. Kahiha v State (CA 10/2010) [2013] NAHCMD 206 (22 July 2013).
Criminal law – Assault by threat – Some elements of the offence inspiring a belief that
force is to be applied – Immediate personal violence – Subjective test. S v Waterboer
(CC 16/2009) [2013] NAHCMD 148 (4 June 2013).
Criminal law - Bail – Application for – Balancing Act – Presumption of innocence of the
applicant and his or her right to personal liberty against interests of society – Factors
considered in determination of application – Real risk that the applicant will interfere
with witnesses – Seriousness of the crimes and severity of sentences that would be
imposed on accused if convicted. Lukas v State (CC 15/2013) [2013] NAHCMD 334 (13
November 2013).
Criminal law - Criminal law - Assault with intent to do grievous bodily harm – Nature of
harm not necessarily important – For the crime is not actual causing grievous bodily
harm - Essential element – Intention to cause grievous bodily harm. S v Namweya (CC
13/2013)[2013] NAHCMD 333 (14 November 2013).
Criminal law – Culpable homicide arising from driving of motor vehicle – Duties of
driver turning right and following driver set out. Katjorokere v The State (CA 20-2012)
[2013] NAHCMD 90 (5 April 2013).
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Criminal law - Contravention of sections 12(1) and 12(4) of the Immigration Control Act
7 of 1993 - A charge in terms of statute must cite the actual elements of the offence
contravened as contained in the enabling section. A failure to do so renders the charge
defective. The State v Okuani (CR 07/2013) [2013] NAHCMD 32 (05 February 2013).
Criminal Law – Contravening s 2(1)(a) of the Combating of Rape Act – the intentional
commission of a sexual act with a complainant under coercive circumstances as defined
in s2(2) of the Act – Accused pleaded ignorance of the law - State bears the onus to
prove intent – onus to prove that the accused was aware of the age of the complainant
and that she was below the age of 14 – subjective perception of the accused to be
examined – accused illiterate and unsophisticated - accused knew it was wrong for an
adult to have sexual intercourse with a child and that complainant was young - State
however failed to prove beyond reasonable doubt that accused was aware of the
definitional elements of the offence i.e that the complainant was 12 years old and that
she was legally incapable of giving valid consent. The State v Likezo (CC 12/2012)
[2013] NAHCNLD 34 (12 June 2013).
Criminal Law – Contravening s 2(1)(a) of the Combating of Rape Act 8 of 2000. State
v Matundu (CC46/2009) [2013] NAHCMD 241(15 August 2013).
Criminal law - Circumstantial evidence – s 174 - Inference sought to be drawn must be
consistent with proved facts – Proved facts should exclude every reasonable inference
save for the one sought – Prima facie case - Cardinal principle - Need for the State to
adduce evidence sufficient to establish a fact or raise a presumption which unless
disproved or rebutted obliges the court to place accused on his defence. Witnesses’
statements – Minor contradictions – Not necessarily affect credibility. State v Ditshabue
(CC 26/2012) [2013] NAHCMD 261 (20 September 2013).
Criminal law – Escaping from lawful custody – State must prove accused in lawful
custody at the time of escape – When Court invokes s 112 (1) (b) – it should ask
questions pertaining to whether accused was in lawful custody. S v Van Rooi (CR
50/2013) [2013] NAHCMD 218 (29 July 2013).
Criminal law – Housebreaking with intent to steal and theft – Proof of Accused selling
and found in possession of goods removed from the house of complainant – Failure of
accused to explain possession of such goods – Conviction of theft substituted with one
of guilty of housebreaking with intent to steal and theft on review. The State v Mangate
(CR 36/2012) [2013] NAHCMD 154 (7 June 2013)
Criminal law - Judgment on the merits – Accused appearing on charges of murder and
assault with intent to commit grievous bodily harm – Charge arising from incident in
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which deceased was stabbed 14 times with a knife and a State witness who tried to
intervene was cut once with the knife – Accused convicted on the count of murder but
acquitted on the second count. State v Ganuseb (CC 8/2011) [2013] NAHCMD 11 (16
January 2013).
Criminal law - Jurisdiction of this court in respect of the persons of the
applicants/accused and the lack of jurisdiction in respect of the territory of Caprivi
Region presently known as Zambezi Region.- Section 106(1)(f) of the Criminal
Procedure Act - Application’ is being brought more than nine years out of time - this
application is ill-conceived and this Court is the wrong forum to bring this application,
that this Court is functus officio in respect of the jurisdiction issue - Application is struck
from the roll. Ndala v The State (CC 32/2001) [2013] NAHCMD 374 (17 September
2013).
Criminal law - General principles of liability - Accessory after the fact - What constitutes
- Failure to report crime - Mere failure per se to report crime not unlawful and not
resulting in conviction of being accessory after the fact. Criminal procedure – Section
112 (1)(b) of the Criminal Procedure Act 51 of 1977 – Accused convicted of being an
accessory after the fact to housebreaking with intent to steal and the crime of theft on
his plea of guilty – When the court questioned - Material elements of the crime not
admitted. The State v Hendimbi (CR 18/2013) [2013] NAHCMD 91 (09 April 2013).
Criminal law - Intention to kill – Direct intent – Inference as to cumulative impact of
accused’s conduct – Nature of weapon used – Position where injuries directed –
Number of injuries and nature of wounds sustained. S v Lukas (CC 18/2012) [2013]
NAHCMD 313 (1 November 2013).
Criminal law – Leave to appeal – Leave to appeal to be filed 14 days after delivery of
judgment in terms of s 316(1) of the Criminal Procedure Act 51 of 1977 – Leave to
appeal filed out of time – Application for condonation granted – Ad merits of the leave to
appeal – Appellants to satisfy the court that there are reasonable prospects of success
on appeal – Court held that there are no reasonable prospects that the Supreme Court
may come to a different conclusion. Angula and others v State (CA 51-2003) [2013]
NAHCMD 40 (18 February 2013).
Criminal law – Murder and assault GBH to – Accused pleaded guilty, however state
not happy with admissions – Plea of not guilty entered – Accused stabbed deceased
eight times - Convicted of murder with dolus directus – And common assault. State v
Uri-Khob (CC 25-2010) [2012] NAHCMD 78 (26 MARCH 2013).
Criminal law - Murder – Test for dolus eventualis – Subjective – Whether the accused
subjectively viewed foresaw the reasonable possibility that his actions could cause
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deceased’s death but, reckless as to such fatal reasonable possibility embarked on to
assault deceased – The court assessed relevant facts as to the accused’s state of mind
and intention cumulatively – And drew inference – Accordingly accused found guilty of
murder with intent in the form of dolus eventualis. S v Muzorongondo (CC 15/2011)
[2013] NAHCMD 173 (21 June 2013).
Criminal law – Murder – Mens rea – Common purpose – Not necessarily to prove –
Prior agreement – Causal connection between act of accused and death of deceased –
Conduct of one accused – imputed to the other - Doctrine applied where two or more
perpetrators act together – prerequisites: presence, awareness of crime being
committed, common cause with co-accused, some action on part of perpetrator, mens
rea and intentions to harm or to kill. State v Jackson & 2 Others (CC 03/2011) [2013]
NAHCMD 193 (11 July 2013).
Criminal Law – Murder, read with the provisions of the Combating of Domestic
Violence Act, Act 4 of 2003 and Defeating the course of justice. Trial within a trial:
Admissibility as evidence, the letter the accused wrote to Det. Chief Insp. Phillander and
the confession he made to the Magistrate. He alleges these statements were preceded
by assaults and threats perpetrated on him by police officers and should therefore be
excluded as required by Articles 8 (2)(b) and 12 of the Constitution. State v De Jay (CC
4/2010) [2013] NAHCMD 251 (16 August 2013).
Criminal Law – Punishment falls within the discretion of the trial court. As long as the
discretion is judicially, properly and reasonably exercised, this court will not interfere
with the sentence imposed. S v Haingura (CR71/2013)[2013] NAHCMD 310 (31
October 2013).
Criminal law – Rape in contravention of section 2(1)(a) of Act 8 of 2000 – Accused
faced with 13 counts – Charges arising from traditional healing practices conducted by
the accused – Such practice not excluded from definition of ‘sexual act’ on basis of
being consistent with sound medical practices. The State v Mbwale (CC 07/2012)
[2013] NAHCNLD 36 (26 June 2013).
Criminal law – Rape in contravention of section 2(1)(a) – coercive circumstances
enumerated in subsection 2 not a numerus clauses – Coercive circumstances not
defined in the Act may be relied upon – Court only to find such circumstances coercive
if compelling and failure to do so amounts to an injustice. The State v Mbwale (CC
07/2012) [2013] NAHCNLD 36 (26 June 2013).
Criminal law – Sentence - Accused convicted of 2 counts of kidnapping and 3 counts of
rape. Sentenced to 35 years imprisonment. State v Katzao (CC 25/2010) [2013]
NAHCMD 87 (4 April 2013).
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Criminal law – Sentence – Murder by stabbing the deceased 14 times with a knife – 20
years imprisonment imposed. State v Ganuseb (2) (CC 8-2011) [2013] NAHCMD 133
(17 May 2013).
Criminal law — Sentence — Diminished criminal responsibility — Lack of remorse —
Son of the deceased — Aggravating. State v Ngatjizeko (CC 23/2008) [2013] NAHCMD
167 (18 June 2013).
Criminal law – Sentence - Murder – Sentence- accused charged with double murder of
his parents – Factors to be taken into account – The time the accused stayed in custody
awaiting his trial plays an important role – Accused first offender - youthfulness factors
in his favour – Court cannot ignore that two innocent lives were taken away -Offences of
murder very serious – heinous – deceased persons killed in cold-blood – execution style
– Accused attacked deceased persons viciously and mercilessly – Society expects the
accused to be dealt with accordingly – Imposition of lengthy sentence – Failure of which
will put the administration of justice in disrepute. S v Schiefer (CC 17/2008) [2013]
NAHCMD 299 (24 October 2013).
Criminal law – Sentence - Appeal – Sentence imposed disproportionate to the crime
and legitimate expectations of society – Penalty provisions of Stock theft Act, 12 of
1990, as amended, being struck down as being unconstitutional – Court’s discretion no
longer limited – Sight should not be lost of the reasoning behind legislature prescribing
stiff mandatory sentences for stock theft – Stock theft is a serious offence and prevalent
in region where subsistence farmers rely on cattle for their livelihood. Hihepa v The
State (CA 36/2011) [2013] NAHCNLD 31 (24 May 2013).
Criminal law– Sentence - Circumstantial evidence - A court should only convict on
circumstantial evidence if the inference sought to be drawn is consistent with the proved
facts and the proved facts exclude every reasonable inference from them save the one
to be drawn – Lack of corroboration between proved facts and circumstantial evidence
due to poor investigation and inadequate prosecution. Conviction and sentence set
aside. Tjiriange vs The State (CA 96/2013) NAHCMD 369 (04 December 2013).
Criminal law - Traffic offences – Contravention of s 76(4) of Road Traffic and Transport
Act, 22 of 1999 - duty of traffic officers to produce appointment certificate on demand –
entrapment – speed traps not unlawful even where traffic officers conceal their
presence whilst measuring speed –laser speed measuring camera used – magistrate
concluding that this device operate accurately when switched on – judicial notice –
device should form the subject of judicial recognition – no evidence presented that the
device was operating accurately at the time. Shituna v The State (CA 59/2011) [2013]
NAHCNLD 51 (August 2013).
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Criminal Law - The use of a breathalyzer to test the level of alcohol in the blood of a
motor vehicle driver has been declared invalid by this court. S v Hairwa (CR 70/2013)
[2013] NAHCMD 309 (31 October 2013).
Criminal law – Review - Contravention of section 11(1)(a) of Stock Theft Act, 1990 (Act
12 of 1990) – Ambit and effect of decision in Daniel v Attorney-general and others;
Peter v Attorney-general and others 2011 (1) NR 330 (HC) clarified. S v Tjiromongua
(CR 06/2013) [2013] NAHCMD 31 (5 February 2013).
Criminal law – Review - Possession of stock suspected to be stolen in contravention of
s 2 of the Stock Theft Act 12 of 1990 – Elements of offence comprising (i) found in
possession (ii) stock or produce (iii) reasonable suspicion (iv) unsatisfactory account (v)
mens rea – Reasonable suspicion must exist contemporaneously with being found in
possession – Accused may still attempt to satisfy court at trial that he has satisfactory
account for possession - Provisions of s 112(1)(b) of Criminal Procedure Act 51 of 1977
applicable to charge of c/s 2 of Stock Theft Act – S 112(1)(b) therefore also applicable
to element of reasonable suspicion in mind of someone else - Court must be satisfied
on plea of guilty that accused admits all elements of offence. Criminal procedure –
Charge – Charge of c/s 2 of Stock Theft Act 12 of 1990 – Charge must be formulated
using the correct tense – Correct formulation is to allege that accused was found in
possession of stock in regard to which there was a reasonable suspicion that it has
been stolen – If wrong tense is used the charge does not disclose an offence and
magistrate should have invited prosecutor to amend it, alternatively ordered amendment
in terms of s 86 of Criminal Procedure Act – Not necessary that accused’s inability to
give satisfactory account must have existed at time of being found in possession –
Accused can still attempt to satisfy court of satisfactoriness of his account at the trial Preferable to formulate this element in the present tense. Plea – Plea of guilty –
Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 – Provisions of
s 112(1)(b) applicable to charge of c/s 2 of Stock Theft Act 12 of 1990 – Accused can
make admission about element of offence of which he does not have personal
knowledge such as reasonable suspicion in mind of person who find him in possession
– Court has duty to satisfy itself of reliability of such admission where accused is not
legally represented – Conviction and sentence set aside. S v Silas (CR 4/2013) [2013]
NAHCMD 24 (30 January 2013).
Criminal law – Review – Sentence – C/section 2(c) of the Prevention of Counterfeiting
of Currency Act, 1965 (Act 16 of 1965) – Section 2(i) provides for imprisonment not
exceeding 15 years – Sentence imposed by magistrate of fine, alternatively
imprisonment, not competent - Sentence set aside and substituted. S v Sevelinu (CR
10/2013) [2013] NAHCMD 43 (21 February 2013).
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Criminal law – Review - Section 10(6), read with sections 10(7) and (8) of the Arms
and Ammunition Act, 1996 (Act 7 of 1996) – Declaring accused unfit to possess firearm
– Mandatory that Court should bring provisions of section 10(6) to accused’s attention
and afford him opportunity to advance reasons and present evidence why he should not
be deemed unfit to possess firearm and in regard to the period of such unfitness – In
casu magistrate failed to afford accused such opportunity – Declaration of unfitness set
aside and matter referred back to magistrate to comply with Act. S v Stefanus; S v
Johannes (CR 20 & 21-2013) [2013] NAHCMD 74 (19 March 2013).
Criminal law – Review – Section 14 of the Stock Theft Act, 12 of 1990 – current legal
position in relation to sentence for first offenders set out. S v Tjiveze (CR 27-2013)
[2013] NAHCMD 110 (24 April 2013).
Criminal law – Review - The maxim ‘ignorance of the law is no excuse’ is no longer
part of our law since the decision in S v De Blom 1977 (3) SA 513 (A) – Conviction and
sentence based in reliance on this maxim set aside. S v Zambwe (CR 20-2013) [2013]
NAHCMD 77 (22 March 2013).
Criminal law – Review - Traffic offences – Contravention of section 82(1) of Road
Traffic and Transport Act 22 of 1999 - Driving motor vehicle on public road under
influence of liquor – Accused pleading guilty but denying that his driving skills were
impaired – Conviction and sentence set aside. S v Tjaseua (CR 3/2013) [2013]
NAHCMD 10 (22 January 2013).
Criminal law – Review - Contravening s 82(6) of Road Transportation Act, 22 of 1999 –
Court to be satisfied that State proved breath specimen was taken within two hours after
alleged offence – State failed to prove this element – Conviction and sentence set
aside. The State v Hilongwa (CR 05/2013) [2013] NAHCNLD 15 (27 March 2013).
Criminal law - Witness deviation – statement to police – opposed to testimony in court
– not in itself – mean events not taking place – Witness – not required – at the time of
making his/her statement to – police to furnish – statement – all its detail – Police
statement – is more often than not simply – bare bones of a complaint – the fact that
flesh – added to the account at – stage of oral testimony – not necessarily – adverse
consequence. S v Gariseb (CC 18/2011) [2013] NAHCMD 136 (21 May 2013).
CRIMINAL PROCEDURE
Criminal procedure – Absence of accused person - Where an accused person is
absent without leave of the court, the court may order that the proceedings continue in
his or her absence – Where such accused person again attends the proceedings he or
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she has a discretion whether or not to examine any witness who testified during the
absence of such accused. Where such accused again attends the proceedings, the
proceedings against such accused shall continue from the stage at which such accused
person became absent. The accused person may examine any witness and a court
shall postpone the proceedings until the evidence, if any, on behalf of that accused has
been led even where there was an extreme lack of co-operation in attending court
proceedings by such accused person. The provision (s 160(1) ) that any witness who
had testified in the absence of such accused may be examined cannot be interpreted to
mean that all witnesses may be examined. Witnesses who gave relevant evidence ie
who had implicated an accused or a witness from whom favourable evidence may be
elicited, may be examined. Kamwi v The State (CC 32/2001) [2013] NAHCMD 286 (16
October 2013).
Criminal procedure - The approach of this court in appeal matters is that it has to be
satisfied that the judgment of the court below was wrong before it gives the decision
which in its opinion the lower court should have given. Immanuel v State (CA 41/2013)
[2013] NAHCMD 254 (12 September 2013).
Criminal procedure — Accused convicted of assault and raping his own daughter—
Appeal—Leave to appeal to the Supreme Court against sentence by the state—Spent
11 months in custody before conviction—Court finds that to constitute compelling and
substantial circumstances to deviate from mandatory sentence of 15 years—State
appeals against sentence—Prospect of success – Application granted. The State V van
der Byl (CC13/2010) [2013] NAHCMD 19 (29 January 2013)
Criminal procedure – Appeal – Sentence – Minimum sentence – Stock Theft
Amendment Act 19 of 2004 – Minimum sentence declared unconstitutional in earlier
decision – This court bound by that decision. Natangwe v The State (CA 65/2011)
[2013] NAHCNLD 26 (30 April 2013); Atutala v The State (CA 19/2012) NAHCNLD 48(5
August 2013); The State v Uirab and others (CR 41/2012) [2013] NAHCMD 199 (18
July 2013).
Criminal procedure —Appeal-against convictions and sentences on rape and incest—
Sentence of 18 years and 3 years respectively—Grounds of appeal—Guilt of appellant
not proven beyond reasonable doubt—Complaint single witness—Sentences
unreasonable—State proved the guilt of the appellant beyond reasonable doubt—
Conviction on incest charge—Duplication—Appeal allowed-Appeal against rape
dismissed. Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013).
Criminal procedure – Appeal – Record incomplete – Court must decide whether
despite incomplete record all the evidence is before the court for the court to make a
decision on the appeal and whether appellant is prejudiced by any indistinct parts of the
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record. Criminal procedure – Sentence – Appellant contending that trial court
emphasized seriousness of the offence compared with the personal circumstances of
appellants – Court finding that the trial cannot be faulted in doing that. Ditshabue v
State (CA 96/2010) [2013] NAHCMD 132 (12 April 2013).
Criminal procedure– Appeal – Findings on credibility – Court on appeal will not readily
interfere with credibility findings of trial court – Such interference justified only where
irregularity or misdirection by trial court occurring. Tangeni v The State (CA 85/2010)
[2013] NAHCNLD 16 (15 April 2013).
Criminal procedure – Appeal against conviction – Notice of appeal – Noting of appeal
is foundation on which appeal is based – Where grounds are not grounds but
conclusions of the draftsperson who drafted the notice court is not entitled to adjudicate
the case on such non-grounds – In instant case counsel therefore did not pursue such
non-grounds. Hoorzook v State (CA 71/2012) [2013] NAHCMD 168 (10 June 2013).
Criminal procedure - Criminal Procedure: In an appeal matter the appellant is required
to clearly and specifically show this court the areas of fact or law on which he thinks the
presiding officer has misdirected herself. Shailemo v State (CA 72/2013) [2013]
NAHCMD 323 (8 November 2013).
Criminal Procedure - Application to lead further evidence on appeal – Court of appeal
has power to order the hearing of such evidence either under s 19 of the High Court
Act, 16 of 1990 or the Criminal Procedure Act, 51 of 1977 (CPA) – In terms of the CPA
the court of appeal hears further evidence either in terms of s 304(2)(b) or remits the
case under s 304(2)(c)(v) of the CPA to the court a quo with instruction to hear such
evidence – The appeal court will grant leave only in exceptional circumstances –
Applicant preferably to lodge a substantive application – Judgments in other
jurisdictions considered and applied with approval – Applicant to satisfy the
prerequisites set out in JCL Civils Namibia (Pty) Ltd v Steenkamp 2007(1) NR 1 (SC) –
Compare S v De Jager, 1965 (2) SA 612 (A). Shipuata v The State (CA 26/2011) [2013]
NAHCNLD 02 (23 January 2013).
Criminal Procedure – Application for discharge in terms of section 174 – Credibility of
witnesses warned in terms of s 204– Some witnesses evidence suspect – Evidence of
one witness distinguished — Criminal Law – State adduced no direct evidence of
accused active participation – By inference concluded accused committed an overt act
by omission – Failing to inform the authorities of overt act committed by others with
hostile intent.- Having expressed hostile intent – Concluded that prima facie evidence
was adduced of high treason. The State v Liseli (CC 13/2010) [2013] NAHCNLD 13 (18
March 2013).
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Criminal Procedure — Application for condonation by Prosecutor-General for lodging
application for leave to appeal outside the time limit prescribed by s310 of the Criminal
Procedure Act, 51 of 1977 as amended – Court may grant condonation on good cause
– Representative of Prosecutor-General in court when sentence was passed – her
subsequent resignation no bar to provide an explanation for not informing the office of
the Prosecutor-General of shockingly lenient sentence – court found that there was a
lack of due diligence by the representative of the Prosecutor, – Subsequent delay in the
enrolment of matter unacceptable – possibility exists that the accused already served 8
months of imprisonment – matter heard more than three years after sentencing–
applications of this nature should be given priority and be dealt with expeditiously –
Grounds for the appeal contained in the application for leave to appeal meritorious – a
factor to be considered but not decisive – Application for condonation dismissed. The
State v Herunga (CA 67/2012) [2013] NAHCNLD 32 (24 May 2013).
Criminal procedure – Application for recusal of Magistrate - A magistrate who intends
mero motu to recuse himself or herself may only do so in certain circumstances for
instance where it appears that the judicial officer has an interest in the case or where
there is some other reasonable ground for believing that there is a likelihood of bias on
the part of the judicial officer. State v Aribeb (CR 60/2013) [2013] NAHCMD 273 (04
October 2013).
Criminal procedure - A notice of appeal against a sentence of 24 months
imprisonment lodged more than 3 years out of time. Wholly inadequate explanation
provided. Furthermore no prospects of success. Condonation for late filing of notice of
appeal refused. The State v Iyambo (CA 25/2013) [2013] NAHCNLD 42 (2 May 2013).
Criminal procedure - Application for condonation – Need to make a full disclosure
about reasons for non-compliance – Courts will not syphathise with an untruthful
applicant – Application dismissed. Nashapi v S (CC 02/2004) [2013] NAHCMD 291 (17
October 2013).
Criminal Procedure - Appeal – Evidence – Dock identification – particular care should
be taken and premise for reaching a conclusion on identity should be investigated by
magistrate – Sentencing –the prescribed minimum sentence was disproportionate to the
crime, the offender and the legitimate needs of society – in addition words “or a period
not less than twenty years’” struck down from s 14(1)(a)(ii) of Stock Theft Act.
Ndemuhenuka v The State (CA 76/2010) [2013] NAHCNLD 5 (15 February 2013).
Criminal Procedure – Appeal – Legal representation – Right to legal representation not
unlimited, - presiding officer – No duty on magistrate to shield an unrepresented
accused from questions relating to omission by erstwhile legal practitioner to put his
defense to witnesses – Assessment of evidence by trial court - appeal court only to
22 | P a g e
interfere if the magistrate was wrong in his assessment of the evidence. Sentence –
Magistrate simplified explanation of substantial and compelling circumstances in order
for the accused to understand – Assisted accused to illicit facts in mitigation – No
misdirection by sentencing court Condonation – Period of delay considerable – Poor
explanation – And no reasonable prospects of success – Application dismissed.
Shipuata v The State (CA 26/2011) [2013] NAHCNLD 04 (01 February 2013)
Criminal procedure – Appeal – Findings on credibility – Court on appeal will not readily
interfere with credibility findings of trial court – Such interference justified only where
irregularity or misdirection by trial court occurring. Tangeni v The State (CA 85/2010)
[2013] NAHCNLD (15 April 2013)
Criminal Procedure—Appeal—Application for leave to appeal—No possibility that
another court would reach different conclusion—No reasonable prospects of success.
State v Titsol (CC 05/2009) [2013] NAHCMD 183 (28 June 2013).
Criminal procedure – Appeal – Application for leave to appeal by the State – Applicant
should state that reasonable possibility exists that an appeal court would reach a
different conclusion from that reached by the trial court and must also clearly indicate
reasonable prospects of success – In the instant case, the court found that there were
serious misdirections on the part of the learned magistrate on the law and the facts on
material issues – On that score, the court satisfied that the applicant has discharged the
onus cast on it for the court to grant the application. State v Ananias (CA 34/2013)
[2013] NAHCMD 238 (6 August 2013) [In Chambers].
Criminal procedure - Application for condonation – Section 317 – Special entry Application to lead evidence - Petition to Chief Justice – Such petition final – Court has
no jurisdiction to entertain the application – Accordingly application struck from the roll.
Mcnab v State (CC 181/1998 [2013] NAHCMD 256 (16 September 2013).
Criminal procedure – Application for forfeiture under sections 34 and 35 of the
Criminal Procedure Act. S v Roux (CC 2-2005) [2013] NAHCMD 319 (5 November
2013).
Criminal procedure - Bail - Appeal against refusal by magistrate to grant bail - High
Court hearing appeal can only set magistrate's decision aside if it was clearly wrong.
Criminal procedure - Bail - Appeal against magistrate's refusal to grant bail Fundamental rights in terms of Namibian Constitution - Right to fair trial and
presumption of innocence until guilt is proved - Such rights not absolute - Must be
protection of subjects against criminals – Prima facie case established – Onus on
applicant to show why he or she should be committed to bail – Section 61 – Applicant
must show why it would not be in public interest or administration of justice to retain him
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or her in custody. Criminal procedure - Bail - Appeal against magistrate's refusal to
grant bail - Factors taken into account on appeal – Court a quo considered all factors Court not satisfied on balance of probability that magistrate's decision wrong - Appeal
accordingly dismissed. Onesmus v The State (CA 01/2013) [2013] NAHCNLD 22 (22
April 2013).
Criminal Procedure – Bail Appeal – Court a quo having found that Appellant not a
suitable candidate for bail because of previous convictions – On appeal found that the
consideration of whether or not there was a likelihood that an accused would commit
further crimes if admitted to bail was a relevant consideration for the granting or refusing
of bail given the provisions of Section 61 of the Criminal Procedure Act 51 of 1977 and
that bail could be refused on that basis alone - decision of the court a quo upheld.
Pienaar v The State (CA 25/2012) [2012] NAHCMD 113 (07 August 2012).
Criminal procedure – Bail – Sec. 62 (1) of the CPA – Application by the state to add
condition to the respondent’s bail – Read with s 63 of CPA – Evidence that the
respondent has travelled three time out of the country since his release on bail – Facing
serious charges of which he is likely to be sentenced to a custodial sentence – Not
established that his frequent travelling jeopardized the proper administration of justice –
Travelling for business purposes as he has 13 minor children who both a financially
dependent on him – Additionally has sufficient immovable properties and has not shown
any intention of not returning to Namibia. State v Mbok (CC 4/2011) [2013] NAHCMD
175 (10 JUNE 2013).
Criminal Procedure – Bail – Appeal against the decision of the lower Court to grant bail
– Court should not set aside decision to refuse bail by lower court unless satisfied that
magistrate exercised discretion wrongly. Valombola v The State (CA 93/2013) [2013]
NAHCMD 279 (9 September 2013).
Criminal Procedure - Charge - Accused charged and convicted of a contravention of s
50(1)(a) of Children’s Court Act 74 of 1983 (RSA) - Such Act never applied in Namibia Correct statute being s 18 (1) of Children’s Act 30 of 1960 - Court on review can
substitute incorrect statute provided it is in accordance with justice and accused would
suffer no prejudice – The particulars of wrong charge to which accused pleaded in
essence similar to provisions of substitute charge. Sentence – Where there are
indications that the accused’s minor children in her custody raises concern over their
well-being in the court’s mind and the children’s future well-being being unknown (after
their mother is given a custodial sentence), the court should exercise its discretion and
request a social welfare report before sentencing. The State v Hauwanga (CR 11/2013)
[2013] NAHCNLD 23 (22 April 2013).
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Criminal procedure – Charge – Accused convicted under s 12 of Immigration Control
Act, 7 of 1993 – Change lacking essential elements of the offence created therein –
charge does not disclose an offence – conviction and sentence set aside on review. The
State v Raiva (CR 10/2013) [2013] NAHCNLD 20 (18 April 2013).
Criminal Procedure – Charge defective – Date (month and year) during which alleged
offence committed not mentioned in charge – Section 84 of Act 51 of 1977 requires –
Accused must be informed of the case the State brings against him. The State v
Kuhatumwa (CR 03/2013) [2013] NAHCNLD 11 (07 March 2013).
Criminal procedure – Duplication of convictions – In case where two counts involved –
Court should not consolidate counts for purposes of conviction – If sufficient evidence
Court should convict on one count and acquit on the other. Katjorokere v The State (CA
20-2012) [2013] NAHCMD 90 (5 April 2013).
Criminal procedure – Duplication of convictions - State may in terms of section 83 of
Act 51 of 1977 charge an accused with more than one offence on the strength of the
evidence the State has at its disposal – However, what should be avoided is an
improper duplication of convictions by the presiding legal officer. Two tests, the single
intent test and the same evidence test are used to determine whether or not there was a
duplication of conviction – In applying one or the other test the court should also be
guided by common sense and fairness. Accused convicted of theft and trespassing – In
order for accused to gain access to bag on premises from which he stole certain articles
he of necessity had to trespass. Single intent test applicable – Conviction of both theft
and trespassing a duplication of convictions - Conviction in respect of trespassing set
aside. State v Jazperson (CR 34/2013) [2013] NAHCMD 155 (07 June 2013).
Criminal procedure - Drug offences – Cocaine – Dealing in contravention of s 2 (c) of
Act 41 of 1971 – Sentence – Accused a 41 year old first offender, born in Nigeria,
married to a Namibian woman – Accused having sold on two occasions 276.7644
grams of cocaine for N$ 139 006.07 – Sentence of 2 years imprisonment (count 1) and
8 years on count 2 of which 2 years are suspended on the usual condition and the
sentence on count 1 to run concurrently with sentence on count 2, confirmed on appeal.
Ude v State (CA 12/2011) [2013] NAHCMD 149 (7 June 2013).
Criminal Procedure - Evidence – Confessions and admissions – Admissibility – Duties
of Police officers when recording statements – explaining right to legal representation –
such explanation should include informing the accused of the right to apply for legal aid
– Failure of such explanation rendering statements inadmissible. The State v Gariseb
and Another (CC 16/2012) [2013] NAHCMD 25 (30 January 2013).
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Criminal procedure - Evidence – Evaluation of evidence of a child under the age of 14
– In terms of s 164(4) court precluded from treating evidence of a child as inherently
unreliable and to apply special caution – No per se precluded from careful approach, as
is the case with any witness, where there is a lack of ability to recall and recount past
events circumstantial evidence – Court not enjoined to speculate on possibilities where
same not founded on the evidence adduced. Identification evidence – Witness satisfied
court that they correctly identified the accused – Accused to some extent also
corroborated allegation that he was seen. Alibi – Where State discharge evidential onus
placing accused at the scene – Totality of evidence and mendacity of accused in
respect of his whereabouts evaluated. The State v Kuaima (CC 07/2011) [2013]
NAHCNLD 07 (26 February 2013).
Criminal procedure – Evidence - Failure by accused to testify – Accused not under
obligation to testify in his defence – State led direct incriminating evidence against
accused - Not appropriate case for accused to safely opt to exercise his right to remain
silent – Incriminating State evidence – Calling for an answer – Failure to answer in the
face of the weight of uncontradicted evidence – Court may safely conclude that such
evidence - conclusive to warrant conviction. S v Namweya (CC 13/2013)[2013]
NAHCMD 333 (14 November 2013).
Criminal procedure - Fundamental rights - Right of accused to a fair trial in terms of
Article 12 of the Namibia Constitution - Admission of evidence – evidence allegedly
obtained in breach of the Constitutional rights guaranteed under Article 12 of the
Namibia Constitution - Fairness an issue having to be decided upon facts of each case
by trial Judge - At times fairness might require that evidence unconstitutionally obtained
be excluded - But there will also be times when fairness will require that evidence,
although obtained unconstitutionally, should nevertheless be admitted. Sankwasa v
State (CA 70/2012) [2013] NAHCMD 249 (23 August 2013)
Criminal procedure - Evidence - Failure by accused to give evidence - Accused not
obliged to give evidence in his defence - However, guilt of accused could still be proved
if weight of evidence against him was sufficient. Sankwasa v State (CA 70/2012) [2013]
NAHCMD 249 (23 August 2013).
Criminal procedure - Evidence - Confessions and admissions - Admissibility - Duties
of magistrate when recording confessions and admissions - Magistrate not merely a
recording agent - Magistrate must be satisfied that statement made freely and
voluntarily - Where accused indicates assault or injuries magistrate must make further
enquiries. Criminal procedure - Evidence - Confessions and admissions - Admissibility Duties of magistrate when recording statements - Explaining right to legal
representation - Such explanation should include alerting accused to right to apply for
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legal aid - Lack of such explanation rendering statements inadmissible. The State v
Mbango (CC 19/2012) [2013] NAHCNLD 46 (13 August 2013).
Criminal procedure - Trial - Irregularity in - Effect thereof - Constitutional irregularities Test proposed by common law is adequate in relation to both constitutional and nonconstitutional errors - Where irregularity so fundamental that it could be said that in
effect there had been no trial, conviction to be set aside - Where irregularity less severe
then, depending on its impact on the verdict, conviction should either stand or be set
aside on the merits. Sankwasa v State (CA 70/2012) [2013] NAHCMD 249 (23 August
2013)
Criminal Procedure – Murder – Accused allegedly murdered her newborn child –
Accused pleaded not guilty and disputes having killed her child – Post mortem
examination report – Cause of death asphyxia – Inference drawn from medical evidence
– Deceased child was suffocated – Accused only person with deceased prior to his
death – Accused having acted with direct intent, alternatively, acted with intent in the
form of dolus eventualis when abandoning newborn child who subsequently died.
Criminal Procedure – Concealment of birth – Accused pleaded not guilty – In defence
accused admits having buried newborn child – Accused disputes having acted with
intent to conceal birth – Accused secretly gave birth – Accused abandoned child shortly
after birth – Child later found alive by passersby – Crime of concealment of birth only
applicable if child is already dead – Accused later returned to where child was found –
Child last seen alive whilst with accused – Later discovered that accused buried her
child after it died – Court found by burying the deceased the accused acted with intent
to conceal birth. The State v Kamutushi (CC 08/2012) [2012] NAHCNLD 39 (05 July
2013)
Criminal Procedure - A magistrate has the final say whether a case should be finalised
in terms of s 112(1)(a) – Where a magistrate is in doubt regarding the seriousness of
the offence an enquiry in terms of s 112(1)(b) is advisable. Magistrate’s Court is a court
of record and it is the duty of a magistrate to record proceedings in a clear and
intelligible manner – Failure to do so will leave the record incomplete. Accused person
has the right to address the court on an appropriate sentence and must be allowed to
exercise this right. Where prosecutor suggests a particular sentence (after the address
by the accused) the accused person must be given the opportunity to respond to such
suggestion and this must be apparent from the record – This is in line with the principle
of fair trial. State v Linus (CR 40/2013) [2013] NAHCMD 229 (31 July 2013).
Criminal Procedure – Plea - Section 113 (1) of the Criminal Procedure Act, 51 of 1977
to be applied both in terms of a conviction in terms of section 112(1)(a) and section
112(1)(b) where magistrate satisfied that accused has a valid defence – Sentence –
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Formulation thereof improper. The State v Awala (CR 06/2013) [2013] NAHCNLD 14
(26 March 2012).
Criminal Procedure – Plea of guilty – Questioning in terms of s 112 (1)(b) of Act 51 of
1977 – When questioning an accused pursuant to this section – Court may only convict
if satisfied that accused admits all the elements of the offence charged. The State v Van
Schalkwyk (CR 01/2013) [2013] NAHCNLD 09 (01 March 2013); see further State v
Kharuxab (CR 67/2013) [2013] NAHCMD 308 (31 October 2013); see further S v
Shamwange (CR 76/2013) [2013] NAHCMD 339 (15 November 2013).
Criminal Procedure – Plea - An allegation the accused advances in his answers to any
of the questions put to him by Court in terms of Section 112(1)(b) of Act 51 of 1977, that
puts an element of the charge in dispute should alert the Court that a plea of guilty has
not been properly tendered. Such a conduct clearly suggests the accused’s innocent
mindset. The questioning should immediately stop and a plea of not guilty should be
noted in terms of Section 113 of Act 51 of 1977 to give an opportunity for evidence to be
lead if the prosecution so elects. State v Pedro (CR 59/2013) [2013] NAHCMD 252 (06
September 2013).
Criminal procedure - Questioning by magistrate in terms of section 112(1)(b) of Act 51
of 1977 incomplete – Magistrate did not question the accused in respect of the element
of intention – Conviction and sentence set aside and matter referred back to magistrate
to question accused on the issue of intention. State v Andrew (CR 32/2013) [2013]
NAHCMD 120 (03 May 2013); State v Pieters (CR 58/2013) [2013] NAHCMD 272 (04
October 2013)
Criminal procedure – Questioning - Accused convicted of two statutory contraventions
under the Road Traffic Act 22 of 1999 after pleas of guilty — The questioning by the
magistrate in respect of a charge of contravening s 82(1) of Act 22 of 1999 (driving
under the influence of liquor) was incomplete and was as such conceded by the
presiding magistrate — The matter is referred back to magistrate to complete his
questioning. State v Heita (CR 26/2013) [2013] NAHCMD 101 (16 April 2013).
Criminal procedure - Where a question of law is raised in a superior court in terms of
the provisions of s 319 of Act 51 of 1977 such question of law is reserved for
consideration by the Appellate Division. Ndala v The State (CC 32/2001) [2013]
NAHCMD 262 (19 September 2013).
Criminal Procedure – Record – Charge sheet to form part of
proceedings in lower courts in terms of s 76(3)(a) - It is duty of the
keep a proper record of the proceedings - Where there is no
Reviewing Judge will not know what the charge against the accused
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the record of the
presiding officer to
charge sheet, the
was and would not
be in a position to certify whether the proceedings appear to be in accordance with
justice. State v Mungunda (CR 66/2013) [2013] NAHCMD 307 (31 October 2013).
Criminal procedure - Referral to the High Court by district court magistrate under s
304(4) of Act 51 of 1977 prior to conviction and sentence. Not competent referral.
Matter remitted for finalisation of trial.
The State v Katamelo & Another (CR 38/2013)
[2013] NAHCMD 188 (5 July 2013).
Criminal procedure - Section 112 (1) (b) Act 51 of 1977 – When court applies s112
(1) (b) – accused raised defence – court should immediately enter a plea of not guilty –
not to question the accused further. The State v Diergaardt (CR 13/2013) [2013]
NAHCMD 48 (26 February 2013).
Criminal Procedure – Section 114 of the Criminal Procedure Act, 51 of 1977, as
amended – when accused is committed for sentence by the regional court the
magistrate is required to afford the accused the opportunity to, on a balance of
probability, satisfy the court that the plea and admissions were incorrectly recorded –
the magistrate is further required to make a formal finding of guilty if satisfied that plea
and admissions were correctly recorded or that the accused is guilty – failure to do so a
fatal irregularity. Nehoya v The State (CA 43/2011) [2013] NAHCNLD 38 (28 June
2013).
Criminal procedure - Removal of appeal from the roll for non-appearance– Default
position is that appeal will be struck from the roll if appellant does not appear on the
date set down for the hearing of the appeal. Kahua v The State (CA 18/2013) [2013]
NAHCMD 223 (12 July 2013).
Criminal procedure – Review - S 10 (7) Act No. 7 of 1996 – compulsory to bring to the
attention of the accused convicted of unlawful possession of an arm without a licence,
permit or other authorisation and afford him an opportunity to advance reasons why he
should not be declared or deemed to be declared unfit to possess an arm. Failure to do
that – misdirection. The State v Nguudipalelwa (CR 12/2013) [2013] NAHCMD 47 (26
February 2013)
Criminal Procedure – Special Review - Sentence – Omission by magistrate to insert
conjunctive “and” or “or” resulting in conditions of suspension having appearance of
separate sentences which does not qualify as sentences in terms of s 276 – magistrate
may have intended it to be conditions of suspension – court however unable to alter
sentence to include same as conditions as it does not comply with requirements – not
clear and does not relate to offence accused was charged with – sentence as set out in
paragraph 1 confirmed - paragraphs 2 - 4 of sentence not in accordance with justice
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and set aside. The State v Fillemon (CR 04/2013) [2013] NAHCNLD 12 (15 March
2013).
Criminal procedure – Special review - The conviction of failing to appear and the
sentence of a fine N$100 or 1 month imprisonment imposed on the accused by the
Windhoek Magistrate court are hereby set aside – Wrong person convicted. The State v
Haipinge (CR 30/2013) [2013] NAHCMD 114 (29 April 2013).
Criminal procedure – Special review – Accused pleaded guilty to one count of assault
with intent to do grievous bodily harm and was convicted accordingly – Before
sentencing, the trial magistrate ordered the accused to undergo psychiatric evaluation –
Upon the psychiatric report the trial magistrate applied s 9 of the Mental Health Act 18
of 1973 and declared the accused to be a civil patient – The court found that the trial
magistrate applied the wrong law and so the court set aside the order or sentence.
State v Muranda (CR 51/2013) [2013] NAHCMD 237 (7 August 2013).
Criminal procedure – Special review – In 2011 charge of failure to pay maintenance
read with s11 (1) of the Maintenance Act, 23 of 1963 – At the time the accused was
charged, Act 23 of 1963 had long since been repealed by s50 (1)(a) of maintenance
Act, 9 of 2003 – Accused was charged and convicted for a statutory offence which did
not exist at the time he was charged and convicted - The 1963 Maintenance Act had
been repealed some eight years beforehand - The section in terms of which the
accused was charged had long since been repealed - It could no longer be relied upon
as a basis for the statutory offence contained in it - That section thus no longer
embodied an offence at the time when the accused was charged and convicted - For
this reason alone, the conviction and the sentence of a caution and discharge are
hereby set aside. S v Fransley (CR 83/2013) [2013] NAHCMD 364 (29 November
2013).
Criminal procedure - Review – Accused charged c/sec 6 of Immigration Control Act, 7
of 1993 – Answers given during questioning in terms of section 112(1)(b) of Criminal
Procedure Act, 51 of 1977, revealed that accused did not commit this offence –
Accused may have committed offence of c/sec 7 of Act 7 of 1993 – Conviction and
sentence set aside. S v Mawawa (CR 16-2013) [2013] NAHCMD 61 (7 March 2013).
Criminal procedure – Review - Charge – C/Regulation 3(1) of Exchange Control
Regulations, 1961 – Essential element that the foreign currency was taken out of
Namibia without the permission of the Treasury or a person authorised by the Treasury
– Failure to include this allegation in charge – Accused not questioned on this element
in terms of section 112(1)(b) of Criminal Procedure Act, 1977 – Conviction and
sentence set aside. S v Mfuka (CR 11-2013) [2013] NAHCMD 82 (2 April 2013).
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Criminal procedure – Review – Evidence – Admissibility – Extra-curial admissions and
pointing out – Rights of suspect and accused – Police should warn suspect of
constitutional rights – Right to legal representation, right to be presumed innocent, right
to silence, right against self-incrimination – Admissions and pointing out rules
inadmissible due to failure to warn accused as suspect. S v Kandjimi and Another (CR
17/2013) [2013] NAHCMD 62 (7 March 2013).
Criminal Procedure – Review – Sentence – Magistrate extending bail and bail money
after sentencing pending the outcome of review in terms of section 302 of the Criminal
Procedure Act, 51 of 1977 – Magistrate wrong to extend such bail and bail money of the
accused person. State v Goraseb (CR 78-2013) [2013] NAHCMD 336 (15 November
2013).
Criminal Procedure – Review – Magistrate following the procedure in section 112(1)(b)
of the CPA after a plea of not guilty – Irregular - Conviction and sentence set aside. S v
Eiseb, S v Kooper (CR 29-2013) [2013] NAHCMD 105 [17 April 2013].
Criminal procedure – Review - Accused convicted without pleading to the charge –
Irregular – Conviction and sentence set aside. S v Uxam (CR 74/2013)[2013]NAHCMD
326 (8 November 2013)
Criminal procedure – Review - Accused convicted of two statutory contraventions
under the Road Traffic Act 22 of 1999 after pleas of guilty — The questioning by the
magistrate in respect of a charge of contravening s 82(1) of Act 22 of 1999 (driving
under the influence of liquor) was incomplete and was as such conceded by the
presiding magistrate — The matter is referred back to magistrate to complete his
questioning. State v Heita (CR 26/2013) [2013] NAHCMD 101 (16 April 2013).
Criminal procedure – Review - Sentence of – A fine beyond the ability of the accused
to pay or to generate – Not proper and inappropriate – On review – Sentence
substituted for a short sentence of imprisonment. S v Luish (CR 22-2013) [2013]
NAHCMD 79 (27 March 2013)
Criminal Procedure – Review – Conviction of driving with an excessive blood alcohol
level – Set aside – Criminal Procedure – Magistrate relying on the affidavit in terms of
section 212(4)(a)(8)(a) of the Criminal Procedure Act 51 of 1977 – Affidavit not signed
by the deponent – Nor signed by the Commissioner of Oaths. S v Sobuso (CR 28-2013)
[2013] NAHCMD 104 [17 April 2013].
Criminal Procedure – Review – Questioning by magistrate in terms of section
112(1)(b) of Act 51 of 1977 incomplete – Magistrate did not question the accused in
respect of the element of intention – Conviction and sentence set aside and matter
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referred back to magistrate to question accused on the issue of intention. State v
Groenewald (CR 31/2013) [2013] NAHCMD 119 (03 May 2013).
Criminal Procedure – Review – Sentence – court cannot impose a term of
imprisonment without option of a fine if the matter is dealt with and finalised in terms of s
112 (1) (a) of Act 51 of 1977 as amended by s 7 of Act 13 of 2010. Sentence –
Accused charged with two counts dealt with in terms of section 112 (1) (a) and section
112 (1) (b) respectively - Court cannot take the two counts together for purpose of
sentence and impose a single sentence without the option of a fine – Such sentence
incompetent. State v Kauaria (CR 9/2013) [2013] NAHCMD 35 (12 February 2013).
Criminal procedure – Review - An accused should be warned that conduct is to be
regarded as contempt in facie curiae – and that he may be convicted to contempt and
be afforded an opportunity to address the court in that regard before convicting an
accused for such an offence. The State v Amkheibeb (CR 5/2013) [2013] NAHCMD 23
(30 January 2013).
Criminal procedures – Review – Accused charged in c/s 80 (1), read with ss 1, 49, 50,
51, 80 (3), 82(1), 86 and 106, of the Road Traffic and Transportation Act 22 of 1999, as
amended – Plea of guilty – Not clear whether plea to both counts or only one – Record
incomplete – Review court not satisfied that the accused was properly convicted. The
State v Jakop (CR 15/2013) [2013] NAHCMD 52 (28 February 2013).
Criminal procedure – Review – Sentence – Condition of suspension incomplete –
Sentence corrected. The State v Makando (CR 07/2013) [2013] NAHCNLD 17 (15 April
2013)
Criminal procedure - Review - Four accused charged with having contravening
section 6 of Immigration Control Act, 7 of 1993 – Inappropriate joinder of accused of
separate offences entirely unrelated – Failure by State to inform accused of place where
offence was committed – The place an indispensible element or the offence – failure
renders charge fatally defective – No evidence adduced that accused entered at a place
other than a port of entry - Accused should have been charged with having contravened
s 7 of the Immigration Control Act. The State v Ndapwiyonya (CR 09/2013) [2013]
NAHCNLD 19 (18 April 2013).
Criminal procedure – Review – Plea of guilty- accused convicted – plea not clear that
all the elements of the offence – Plea of not guilty should have been recorded – Plea of
not guilty recorded and matter referred back for trial. The State v Tjivikua (CR 23/2013)
[2013] NAHCNLD 83 (28 March 2013).
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Criminal procedure – Review – Forfeiture – Wrong amount indicated on the
Magistrates court order – Ratification thereof – Conviction confirmed. The State v
Heiden (CR 14/2013) [2013] NAHCMD 49 (26 February 2013).
Criminal procedure – Review - Two accused persons charged with robbery - Accused
1 was convicted of theft whilst accused 2 was convicted of contravening section 7 of
Ordinance 12 of 1956. The review sheet indicates that both were convicted of robbery.
The review sheet should reflect the correct verdict on which the accused was convicted
of. The magistrate should proofread the record before he signs it to certify the
proceedings. The State v Vrede (CR 8/2013) [2013] NAHCMD 34 (12 February 2013).
Criminal procedure – Review questioning in terms of section 112(1)(b) of the Criminal
Procedure Act, 51 of 1977 – Accused not admitting all allegations of the offence
charged with – Conviction and sentence set aside. S v Ekandjo (CR732013)[2013]NAHCMD314(1 November 2013).
Criminal procedure - Review – Questioning by Magistrate in terms of section
112(1)(b) of the Criminal Procedure Act 51 of 1977 – Charge sheet alleging stabbing
complainant with bottle on left eye – Accused admitting hitting complainant with bottle
on the left side of face – Verdict of guilty as charged inconsistent and inappropriate.
Criminal Procedure – Record of proceedings contains facts and factors of theft and
drink and drive cases – Conviction and sentence set aside. S v van Wyk (CR722013)[2013]NAHCMD 315 (1 November 2013)
Criminal Procedure – Request for further particulars in terms of section 87 of Act 51 of
1977 – Where information requested is contained in the contents of the docket
disclosed to the accused no need to provide further particulars. The State v Lameck
(CC 11/2010) [2012] NAHCMD 36 11 February 2013).
Criminal procedure – Robbery – Accused unrepresented – Presiding officer under a
duty to assist the accused – Duty of guiding the accused during cross-examination of
State witnesses to challenge material evidence incriminating the accused by directing
the accused’s attention to such evidence – Failure constituting a misdirection vitiating
proceedings. Identification – Principles applicable re-affirmed. Shihepo v The State (CA
23/2011) [2013] NAHCNLD 33 (31 May 2013).
Criminal Procedure – Section 212 (4) of Act 51 of 1977 – Post-mortem examination
report handed in under section – Report contains medical words and terminology which
are illegible – Court must insist on a report that is legible – Court otherwise has to
invoke s 186 of Act 51 of 1977 – Court cannot rely on the report if it is in some respects
illegible – Medical reports preferably to be typed. Evidence – Documentary – PostMortem examination report – Some medical words contained in report illegible – Court
33 | P a g e
ordered prosecution to submit a report that is legible in all respects – Court is unable to
rely on a document that is not legible in all respects – Party seeking to rely on a
document as evidence under a duty to present a legible document. The State v Nhinda
(CC 23/2012) [2013] NAHCNLD 08 (28 February 2013)
Criminal procedure – Sentence – Appeal against – Sentence pre-eminently falling
within discretion of trial court. Criminal procedure – Any submission by public prosecutor
or defence counsel on any matter in the proceedings do not bind the court. Iiyambo v
State (CA 68/2012) [2013] NAHCMD 42 (8 February 2013).
Criminal procedure – Sentence – Domestic Violence – Intimate relationship should be
an aggravating factor when sentencing – Public outcry to impose stiffer sentences to
root out evil of domestic violence – Prevalence of domestic violence - the rights of the
victim – The interest of society outweighed personal circumstances of the accused –
Court justified to impose a severe sentence to protect the constitutional right to life;
respect of human dignity and to deter the accused – The factor that there has been an
intimate relationship between the accused and the deceased should be considered as
an aggravating factor when sentencing. There is a public outcry to impose stiffer
sentences to root out evil of domestic violence. Although the accused is a first offender
who pleaded guilty, his personal circumstances have been outweighed by the
prevalence of domestic violence against women and children; the rights of the victim
and the interest of society. Therefore, the court is justified to impose a severe sentence
to protect the constitutional right to life; respect for human dignity and to deter the
accused. S v Alfeus (CC 16/2011) [2013] NAHCMD 102 (16 April 2013)
Criminal procedure – Sentence – Formulation of sentence not only unclear but also
bad in law – Court setting aside the sentence and replacing it with another sentence.
State v Solomon (CR 25/2013) [2013] NAHCMD 94 (9 April 2013). See also, State v
Immanuel (CR 80-2013) [2013] NAHCMD 352 (22 November 2013).
Criminal procedure – Sentence - Accused was convicted on 12 counts of fraud
occasioning Santam, Namibia a total loss of N$ 465 243.51. The crimes were
committed by paying company monies into other people’s accounts to avoid detection.
Some of the account holders were paid N$ 500 for agreeing to avail their bank accounts
- Held, the accused, a first offender at the age of 35, has an 8 year old school going
child, whose father has deserted the household. The pension (amount unknown) money
of the accused has been withheld in terms of Santam policy. The process of recovering
the loss will only be started after the accused has finally been sentenced – Held,
Accused did not testify in mitigation of sentence, but instead called a witness Franciscus
Benedictus Basson, a lecturer of the Bible School at The Pentecostal Church, who
testified that the accused has joined their church and has spiritually changed from the
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past bad experiences and has come closer to God. The State v Homses (CC 41/2009)
[2013] NAHCMD 15 (28 January 2013).
Criminal procedure – Sentence – Accused convicted on charges of murder and
concealment of birth – Accused having acted with direct intent. Sentence – Infanticide –
Infants have as much right to protection of life as any other person – Accused
committed premeditated murder acting with clear mind – Murder committed found to be
no different from other cases of murder – Substantial sentence of imprisonment
justified. Sentence – Infanticide – Accused’s perceptions and beliefs must be based on
facts to be meaningful indicator of her emotional state of mind – Accused committed
murder for own selfish reasons. Sentence – Accused’s personal circumstances and
other important factors not be underemphasised - Stage reached where courts have to
revisit the objectives of punishment in cases involving infanticide – In deserving cases
more emphasis to be placed on deterrence as sentencing objective – Serving as
general deterrence to others. Sentence – Concealment of birth – Penalty clause section
7 (1) of Ordinance 13 of 1962 providing for maximum fine of N$200 alternatively three
years’ imprisonment – Imprisonment only as alternative to fine – Fine ineffective and
inappropriate not reflecting seriousness of crime – Particular crime usually goes hand in
hand with infanticide – Legislature to consider amending penalty clause as matter of
urgency. The State v Kamutushi (CC 08/2012) [2013] NAHCNLD 41 (17 July 2013).
Criminal procedure – Sentence – Previous conviction – On a charge of rape –
Whether or not charged previously under the common law - Criminal procedure –
Sentence - Previous convictions of offences committed ten or more years ago – Such
previous convictions not to be necessarily disregarded or without due consideration of
the weight to attach to them. The State v Mtshibe (CC 15/2008) [2012] NAHCMD 58 (5
March 2013).
Criminal procedure – Sentence confusing – Not allowed to stand in law – Conviction
confirmed and sentence substituted. The State v Tjizu (CR 24/2013) [2013] NAHCNLD
84 (28 MARCH 2013)
Criminal procedure – Sentence – Conditions of suspended sentence must be clear –
Accused must know what should be avoided so that the suspended sentence does not
become operative. The State v Angula (CR 12/2013) [2013] NAHCNLD 30 (21 May
2013).
Criminal Procedure – Sentence – Accused sentenced to pay a fine with an alternative
period of imprisonment – suspended on condition accused renders service to
community – sentence incomplete. The State v Kangondjo (CR 35/2012) [2013]
NAHCMD 153 (7 June 2013).
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Criminal procedure – Sentence - Factors to be taken into account - Fact that accused
has spent time in custody awaiting finalization of trial important mitigating fact Sentencing court must take such period of custody into account when imposing
sentence – Youthfulness – Not all youthful offenders act impulsively – Each case has to
be determined on own merits – Substantial and compelling circumstances – although
same exist the weight of the other factors considered and the court deemed it
appropriated to deviate marginally from the prescribed minimum. The State v Kauima
(CC 07/2011) [2013] NAHCNLD 35 (20 June 2013)
Criminal procedure – Sentence – Murder – Accused first offender who pleaded guilty –
Youth of 22 years – Killed the deceased by assaulting him with an arrow – Set alight his
body – Crushed his bones and hid them in a cave – Although accused youthful offender
– His actions – not consistent with actions of a person of his age – His actions more
consistent with those of a calculating mature criminal mind – Accordingly accused
sentenced to 30 years’ imprisonment. S v Somseb (CC 1/2012) [2013] NAHCMD 174
(21 June 2013).
Criminal Procedure – Sentence – Murder - Accused first offender – Convicted of
murder in the form of dolus eventualis - for killing 4 years old child – and defeating or
obstructing the course of justice – Accused accordingly sentenced to 30 years’
imprisonment in respect of murder – 12 months’ imprisonment in respect of defeating
or obstructing the cause of justice – Sentence ordered to run concurrently. S v
Muzorongondo (CC 15/2011) [2013) NAHCMD 236 (6 August 2013).
Criminal procedure – Sentence – Competent sentence in terms of the Road Traffic
and Transport Act 22 of 1999 - Prescribed maximum penalty of a fine not exceeding
N$4000 or imprisonment for a period not exceeding 1 year or both such fine and
imprisonment – The accused was convicted in the Karasburg Magistrate’s Court of
displaying a licence number not applicable to the vehicle in contravention of the
provisions of Road Traffic Regulation 48(5)(a) of Government Notice 53 of 2001 read
with certain provisions of the Road Traffic and Transport Act 22 of 1999 and sentenced
to a fine of N$12 000.00 or in default 24 months imprisonment – Sentence substituted.
State v Kgosiemang (CR 56/2013) [2013] NAHCMD 245 (15 August 2013).
Criminal procedure – Sentence – Antedating of sentence by trial court not permitted –
Section 282 – Option of antedating only open to appeal and review court. The State v
Hauwanga (CR 13/2013) [2013] NAHCNLD 37 (28 June 2013).
Criminal procedure – Sentence – Previous conviction – On a charge of rape –
Whether or not charged previously under the common law – Mandatory sentence. S v
Gariseb (CC 18/2011) [2013] NAHCMD 192 (10 July 2013).
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Criminal procedure – Sentence – Accused convicted of murder – theft – Offences of
assault with intent to do grievous bodily harm and assault by threat committed three
hours after the first two crimes – Such evidencing different intentions – Accordingly
sentence on theft ordered to run concurrently with sentence on murder count while
sentence on assault by threat ordered to run concurrently with sentence on assault with
intent to do grievous bodily harm count. State v Kido (CC 3/2013) [2013] NAHCMD 253
(10 September 2013).
Criminal procedure – Sentence – In terms of section 297(1)(b) of Act 51 of 1977 a
sentence or part of a sentence may be suspended for a period not exceeding 5 years –
This period of suspension must be recorded as it forms an integral part of any
suspended sentence. State v Marungu (CR 43/2013) [2013] NAHCMD 230 (31 July
2013).
Criminal Procedure – Sentence – imposition of - factors to be taken into account –
Sentence – Direct imprisonment – Appellant convicted of culpable homicide read with
the Domestic Violence Act 4 of 2003 – Sentence confirmed but suspended for 5 years
conditionally. Pieters v State (CA 27-2013) [2013] NAHCMD 198 (17 July 2013).
Criminal Procedure – Sentence – previous conviction of murder – 10 years old or more
– Common law does not postulate that the such previous conviction should be ignored –
Court has a discretion to disregard or take into account such previous conviction – An
aggravating factor in appropriate case. Criminal Procedure – Sentence – Accused
convicted of murder – robbery with aggravating circumstances – both crimes resulting
from a single act– one crime cannot be completely ignored by taking both counts
together for purpose of sentence –principle of double jeopardy – accused person should
not be punished twice for same offence – solution lying in ordering part of sentence on
robbery count to run concurrently with the sentence on murder count. S v Jackson (CC
03/2011) [2013] NAHCMD 288 (17 October 2013).
Criminal Procedure – Sentence - In terms of s 9 of Police Offences Proclamation 27 of
1920 – Court held that in imposing an additional second sentence not permitted by s 9
of the Proclamation the lower court acted ultra vires and therefore sentence 2 is a
nullity. S v Edward (CR82/2013) [2013] NAHCMD 368 (3 December 2013).
Criminal Procedure - Criminal Procedure – Sentence – Stock theft – sentence
disproportionate to the offence committed, the offender and legitimate expectations of
society – matter remitted to regional court to sentence the accused afresh. Nangombe v
The State (CA 19/2013) [2013] NAHCNLD 60 (12 December 2013).
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Criminal procedure – Stopping of prosecution by the prosecutor – Intention of
prosecutor of great importance to be determined as a matter of fact. If prosecutor does
not intend to stop the prosecution but adopts a neutral attitude such does not amount to
a stopping. The State v Fourie (CR 37/2012) [2013] NAHCMD 338 (15 November
2013).
Criminal procedure – The accused – Report in terms of s 79 of Act 51 of 1977 – Court
should follow provisions of s 78 – This includes a determination whether any of the
parties dispute the report – Where prosecution disputes report which contains finding
that accused is not criminally responsible for the crime because at the time of the
commission of the offence he suffered from a mental illness court should explain to
accused that he may subpoena and call any member of panel who enquired into his
mental state to testify – Where it becomes clear that prosecution and accused do not
intend calling such witness the court should act in terms of s 186 by calling witness. S v
Ndengu (CR 33/2013) [2013] NAHCMD 141 (29 May 2013).
Criminal procedure – The accused – Report in terms of s 79 of Act 51 of 1977- Report
that the accused is unable to appreciate the wrongfulness of his acts – Magistrate
proceed to admit the accused in terms of s 9(6) of the Mental Health Act of 1973 Correct procedure is through s 78 of the CPA. The State v Gawanab (CR 46/2013)
[2013] NAHCMD 219 (29 July 2013).
Criminal Procedure – Trial – Presiding officer – Unavailability of Magistrates to
continue with trial – Irregular to proceed with trial before magistrate other than one who
presided at proceedings in terms of s 115 of Criminal Procedure Act 51 of 1977 without
explanation why original magistrate not available – Such procedure sanctioned by s 118
of Act only if original magistrate not available – It was for the State to establish the fact
of the unavailability of the magistrate – Where this has not been done continuation of
the trial before another magistrate irregular. Irregular proceedings – Whether irregularity
vitiates the proceedings depends on the circumstances of particular case. The State v
Lucas (CR 02/2013) [2013] NAHCNLD 10 (04 March 2013).
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 - If accused has pleaded, she or he is entitled to
verdict on plea – Closing of the State case on one count and subsequent acquittal set
aside and matter remitted to magistrate to continue with trial if the required consent not
obtained. The State v Tate (CR 08/2013) [2013] NAHCNLD 18 (15 April 2013).
Criminal procedure - Trial - Verdict - Competent verdict - Accused charged with
housebreaking with intent to commit crime to prosecutor unknown - Accused convicted
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of housebreaking with intent to rape and rape - Such not competent verdict in terms of s
262 of Act 51 of 1977 - On appeal verdict changed on count 1 to housebreaking with
intent to rape and on count 2 to rape. Sentence – Court misdirected itself by not
explaining provisions of s 3 (2) of Act 8 of 2000 to unrepresented accused – On appeal
evidence in mitigation received in terms of s 304 (2)(b) of Act 51 of 1977. Sentence –
Set aside on appeal – Trial magistrate has resigned – Court of appeal sentenced
appellant on counts 1 and 2 afresh – Cumulative effect of individual sentences
considered – Appropriate order made in terms of s 282 (2) whereby effect of sentences
imposed ameliorated – Similar order made in respect of count 3 set aside on appeal.
Bocky v The State (CA 27/2010) [2013] NAHCNLD 40 (08 July 2013).
Criminal procedure - Trial - Plea - Plea of guilty - Questioning in terms of s 112(1)(b)
of Criminal Procedure Act 51 of 1977 - Object of s 112(1)(b) is to protect accused from
consequences of an unjustified plea of guilty - Where accused's responses to
questioning suggest a possible defence or leave room for a reasonable explanation
other than guilt, a plea of not guilty should be entered in terms of s 113 and the matter
clarified by evidence. Mweemba v State (CA 56/2013) [2013] NAHCMD 344 (20
November 2013).
Criminal procedure - Withdrawal of charges by prosecutor- plea of guilty entered Matter set down again for plea and trail – Prosecutor withdraw the charges – Application
of s 6 of the CPA prosecutor may not withdraw charges after a plea of guilty has been
entered – Prosecution may only be stopped with the permission of the PG – Matter
placed in the hands of the PG to decide whether she will proceed with prosecution.
State v Aebeb (CR 53/2013) [2013] NAHCMD 243 (15 August 2013)
LAW OF EVIDENCE
Evidence - A trial judge or magistrate has advantages which an appellate court cannot
have, namely seeing and hearing witnesses and being steeped in the atmosphere of the
trial – The main advantage such a presiding officer has is not only the opportunity to
observe the demeanour of the witnesses but also the appearance and the whole
personality of a particular witness. Where a court which heard a case was influenced
by the demeanour of a witness and says so, the court of appeal is, as a rule, guided by
the trial court, in the absence of irregularities or misdirections. Ameb v State (CA
61/2013) [2013] NAHCMD 324 (8 November 2013).
Evidence – Admissions and confessions – duty on judicial officer to evaluate evidence
and to consider admissibility of evidence adduced at the end of trial even in cases
where the accused was legally represented and did not object to the admissibility
thereof – Appeal – Where irregularities found it must be evident that it vitiated the entire
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trial before the conviction will be set aside on appeal. Muharukua v The State (CA
14/2009) [2003] NAHCNLD 29 (20 May 2013).
Evidence - Admissibility of evidence – not proven that police officer explained
constitutional rights not to incriminate himself and right to legal representation–
admission of verbal statements would render the trial unfair. Evidence – warning
statement and confessions – Admissibility of evidence - police officers and magistrates
to “go a step further in assisting the court which may later be called upon to adjudicate
on the admissibility of the statement and would work against an injustice to an accused”
– it is the duty of court to determine the admissibility of the statement or confession.
The State v Haufiku (CC 16/2012) [2013] NAHCNLD 49 (24 September 2013).
Evidence – Accused not a credible witness – court however has to determine after
consideration of all the proven facts, her version could be reasonably possibly be true Criminal law – murder - self defence – accused exceeded the bounds of self defense –
the State not able to prove that she subjectively knew that she had exceeded the
bounds of self defence – convicted of culpable homicide – defeating or obstructing the
course of justice – in casu only be convicted of attempt - where State relies on an
omission to inform police that she assaulted the deceased – not supported by the
evidence and sanctioning such conduct setting a precedent for an infringement of the
accused right to remain silent guaranteed by the constitution – allegation of concealing
evidence – no direct evidence and not supported by circumstantial evidence found not
guilty and discharged. The State v Kapolo (CC 05/2012) [2013] NAHCNLD 28 (16 May
2013).
Evidence – Appeal against appellant’s conviction for robbery and sentences of 14
years imprisonment. Challenge to evidence on identification of the appellants found to
be lacking. Appeal against conviction and sentence dismissed. The State v Nepele &
Others (CA 07/2011) [2013] NAHCNLD 43 (2 May 2013).
Evidence – Assessment of – Deviation by State witness from police statement –
Purpose of statement to obtain details of offence in order to decide whether or not to
institute prosecution – Statement not intended to be precursor to witness' court
testimony – Often written in language other than that of witness and tending to be
summary of what witness said to police officer – Neither unusual nor surprising that
discrepancies occurred between witness' evidence and contents of that witness' police
statement. The State v Mbwale (CC 07/2012) [2013] NAHCNLD 36 (26 June 2013).
Evidence – Assessment of – Deviation by State witness from police statement – Proper
approach to discrepancies – Necessary to determine what witness meant to say on
each occasion in order to decide whether or not there was an actual contradiction and, if
so, what nature thereof was – Not every contradiction, error or deviation material –
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Circumstances under which two versions were given, effect of any contradictions on
witness' credibility, and quality of any explanation given by witness for such
contradictions must be taken into account. The State v Mbwale (CC 07/2012) [2013]
NAHCNLD 36 (26 June 2013)
Evidence – Assessment of deviation by State witness from police statement – Witness
claims statement containing facts not forming part of her narrative to police officer who
reduced statement to writing – In casu, possible that police officer recording the
statement facts not being part of oral statement made to him – Not to be viewed as a
deviation from witness statement. The State v Mbwale (CC 07/2012) [2013] NAHCNLD
36 (26 June 2013).
Evidence – Cautionary approach in evaluation of single witness’s evidence – Despite
contradiction and shortcomings the court is nevertheless satisfied that the truth had
been told. S v Garab (CC 18/2012) [2013] NAHCNLD 47 (29 July 2013).
Evidence - The evidence of single witness must be approached with caution although
such caution should not be allowed to displace the exercise of common sense.
Mwanyekele v State (CA 15/2013) [2013] NAHCMD 301 (25 October 2013).
Evidence – Credibility of accused as a witness – Self-defence and intoxication –
Accused abandoning these defences and incriminating one of the State witnesses as
the person who committed the offence – Later on accused changing his version that he
did not know who committed the offence. S v Waterboer (CC 16/2009) [2013] NAHCMD
148 (4 June 2013).
Evidence – Circumstantial evidence – Two requirements – Inference sought to be
drawn must be consistent with all the proven facts – The proven facts are such that they
exclude every reasonable inference from them save one sought to be drawn –
Circumstantial evidence in this case has satisfied the legal requirements – Accordingly
an inference can be drawn. Criminal Procedure – Confession in terms of s 217 of
Criminal Procedure Act – Confession may be excluded from evidence after it had been
admitted provisionally – But only if evidence emerges later which justifies the reversal of
the ruling – In this matter no evidence has emerged after the confession was ruled to be
admissible that warrants a reconsideration of ruling earlier given – Confession finally
admitted in evidence. S v Schiefer (CC 17/2008) [2013] NAHCMD 263 (25 September
2013).
Evidence – Conviction for rape - complainant’s testimony full of contradictions and
improbabilities. Appellants’ explanation of the circumstances surrounding the
offense unjustifiably rejected. Evidence led insufficient to secure a conviction.
Appeal against both conviction and sentence upheld - complainant and 1st appellant
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were in love. Complainant alleged that the two appellants who are brothers raped
her. Her explanation of the circumstances unconvincingly. Evidence led insufficient
and therefore conviction is unsafe. Anguo vs The State (CA 50/2011) NAHCNLD 59
(5 December 2013).
SENTENCE
Sentence – Appellant convicted of rape of a nine year old boy. Sentence of 17 years
imprisonment imposed. On appeal held that the retributive and deferent aspects of
sentence to be afforded more weight than the personal circumstances of the appellant.
Sentence confirmed. Ndakolo v The State (CA 08/2012) [2013] NAHCNLD 57 (05
December 2013).
Sentence - Sentence – Stock theft – Appellant convicted of theft of three head of cattle
and sentenced to 20 years’ imprisonment of which half suspended – Court sentencing
found no ‘substantial and compelling’ circumstances – Since the mandatory sentences
set out in s 14 (1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 (as amended) found to
be unconstitutional, a sentencing court no longer required to make a finding whether or
not ‘substantial and compelling’ circumstances exist – In the circumstances of this case
a sentence of 20 years’ imprisonment unjustified and inappropriate – Sentencing court
misdirected itself – Sentence substituted. Tjarimba v The State (CA 07/2010) [2013]
NAHCNLD 03 (25 January 2013). See further the case Musutua v The state (CA
30/2012) NAHCNLD 61 (03 December 2013); Hepute v The State (CA 26/2012) [2013]
NAHCNLD 62 (03 December 2013); Tjiuma v The state (CA 34/2011) NAHCNLD 58 (05
December 2013).
Sentence - Contravening s 43(1) of the Anti-Corruption Act 8 of 2003 – Crimes of
corruption should be visited with vigorous punishment – Court however of the view that
a wholly suspended sentence would be appropriate in casu. The State v Goabab (CC
14/2008) [2013] NAHCMD 122 (10 May 2013).
Sentence – Murder – Domestic violence – Accused first offender – aggravating factors
to be taken into account – Accused disregarded police warning – Killed his romantic
partner by stabbing her with a knife – Such offence extremely serious as was executed
in a cruel manner – Sentence imposed must reflect the seriousness which the court
regards any such act of violence committed against women and other vulnerable people
in our society – Accordingly accused sentenced to 32 years’ imprisonment. S v
Waterboer (CC 16/2009) [2013] NAHCMD 159 (11 June 2013). See further the case of
State v Britz (CR 86/2013) [2013] NAHCMD 381 (20 December 2013).
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Sentence - Sentence – Murder – Accused first offender – Aggravating factor – Offence
premeditated – Interest of society outweighing personal circumstances of accused –
Society expecting long term imprisonment – Court justified to impose lengthy sentence.
S v Namweya (CC 13/2012) [2013] NAHCMD 341(18 November 2013).
Sentence – Accused convicted on plea of guilty on a charge of rape in contravention of
the provisions of s 2 (1)(a) of the Combating of Rape Act, 8 of 2000. Youthful offenders
– Dicta enunciated in S v Ericksen that youthfulness is a mitigating factor endorsed –
However, youthfulness only one of several other factors relevant to sentencing –
Sentencing court not to indiscriminately exercise its discretion by simply accepting in all
cases as a mitigating factor that youths are always immature, lack insight, discernment
and experience – Regard must also be had to the circumstances of a particular case
(Director of Public Prosecutions, Kwazulu-Natal v P) followed – Court obliged to look at
all facts and circumstances before reaching a conclusion. Unsophisticated accused –
Mere ipse dixit from the Bar that accused is an unsophisticated person because he has
no or little formal education does not per se make of him an unsophisticated person –
Neither the fact that he hails from a rural setting – In order to be a valid consideration,
and as such a mitigating factor, it should be established that (i) the accused’s
background causes him/her to be an unsophisticated person; (ii) that this fact indeed
impacted on his/her abilities or actions during the commission of the crime; and (iii) if so
established, the weight to be accorded thereto – Without these facts being duly
established, there is no legal basis the court would be entitled to treat the accused
differently. Psychological harm – Victim 8 year old – Severe injuries inflicted to genitalia
as a result of the sexual intercourse – Evidence of permanent psychological harm
lacking – Unrealistic to suppose that there will be no psychological harm – Does not
mean that sentence should be approached on the footing that there was no
psychological harm. Substantial and compelling circumstances – Circumstances
considered individually might be substantial – However, to find that those circumstances
are compelling it must be considered together with all the circumstances present –
Extenuating circumstances and aggravating factors to be considered together in the
evaluation. The State v Iilonga (CC 17/2012) [2013] NAHCNLD 06 (25 February 2013).
Sentence - Accused convicted of robbery with aggravating circumstances, 3 counts of
attempted murder, negligent discharge or handling of a fire arm, possession of a firearm
and ammunition without a licence. - Sentence – Factors to be considered during
sentence - Balancing of these factors – Principles restated. State v Tjapa (CC
09/2011)[2013] NAHCMD 246 (16 August 2013); see further The State v Kamati (CR
39/2013) [2013] NAHCMD 234 (5 August 2013).
Sentencing — Murder with dolus directus and possession of a firearm without a licence
and ammunition — Accused first offender — Has shown no remorse — sentenced to 35
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years imprisonment on murder and 1 year on possession of a firearm and ammunition
without a licence. State v Farmer (CC 06/2010) [2013] NAHCMD 138 (23 MAY 2013).
Sentencing - Accused convicted of murder with dolus directus and common assault—
Factors to be taken into account – First offender and expressed remorse—Accused and
deceased husband and wife – Aggravating – Sentenced to 30 years imprisonment on
the murder count and 1 year on common assault—Sentence on common assault to run
concurrently with the sentence on murder. State v Uri-Khob (CC 11/2012) [2013]
NAHCMD 137 (21 May 2013).See further S v Geingob (CR68/2013)[2013]NAHCMD
311(01 November 2013); S v Itula (CR69/2013)[2013] NAHCMD 312 (01 November
2013);
Sentence – Suspended sentence – Must clearly reflect that the accused should not be
convicted of the same offence during the suspended period. State v Tilonen (CR
52/2013) [2013] NAHCMD 242 (15 August 2013).
Sentence - Suspended sentence – Framing of the sentence must not be too wide and
onerous - Must clearly reflect that the accused should not be convicted of the same
offence during the suspended period. State v Tsowaseb (CR 55/2013) [2013] NAHCMD
244 (15 August 2013).
Sentence – Confusing sentence – Must be clear so as to be in accordance with the law.
Sentence rephrased. The State v Kahuure (CR 44/2012) [2013] NAHCMD 211 (24 July
2013). See further S v Gowaseb (CR 77/2013) [2013] NAHCMD 345 (20 November
2013).
Sentence – Defective sentence - It was noted during the consideration of the
proceedings which had been submitted for automatic review that the accused persons
had been sentenced in respect of count 2, the alternative charge, in respect of which
they were never convicted – it was held that a valid sentence could in such
circumstances not be imposed - sentence on alternative charge accordingly set aside. S
v Owaseb (CR 81/2013) [2013] NAHCMD 351(22 November 2013).
Sentence – Phrasing of sentence – Must be clear so as to be in accordance with the
law. Sentence rephrased. The State v Kashopatii (CR 14/2013) [2013] NAHCMD 212
(24 July 2013).
Sentence – Prescribed sentences — Minimum sentences in terms of Stock Theft Act,
1990 — Crucial that value of stock stolen should be determined — Value of stock
impacts on sentence — Such value should be determined in magistrates' court in order
to decide whether accused should be transferred to regional court for sentence - To
inform an unrepresented accused like the accused of section 14 of the Stock Theft Act,
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1990 (as amended) is meaningless. Lambert v State (CA 58/2013) [2013] NAHCMD
213 (12 July 2013).
Sentence – Competent sentence – s112 (1) (a) of Act 51 of 1977 as amended by s 7 of
Act 13 of 2010 - Magistrate imposing a sentence without an option of a fine – Sentence
not competent – Accordingly replaced with the competent sentence involving an option
of a fine. S v Nakale (CR 49/2013) [2013] NAHCMD 217 (26 July 2013). See further S v
Tumuna (CR 75/2013) [2013] NAHCMD 327 (8 November 2013).
Sentence – Case disposed of in terms of section 112(1)a of the Criminal Procedure Act
51 of 1977 as amended – sentence of six months imprisonment without an option of a
fine – incompetent – set aside. State v Mbimbi (CR 42/2013) [2013] NAHCMD 209 (24
July 2013).
Sentence – Suspended sentence – Must clearly reflect that the accused should not be
convicted of the same offence during the suspended period. The State v Kandjou (CR
48/2013) [2013] NAHCMD 221 (29 July 2013).
Sentence – Suspended sentence – Accused convicted of Assault GBH – Personal
circumstances may warrant a suspended sentence – Sentence imposed replaced with a
partially suspended sentence. State v Namwandi (CR 57/2013) [2013] NAHCMD 271
(04 October 2013).
Sentence – Unlawful possession of a machine gun - A sentence of ten years
imprisonment was imposed in respect of an accused who had been convicted of the
unlawful possession of a machine gun in contravention of the provisions of s 29(1)(a) of
the Arms and Ammunition Act 7 of 1996. This court had in the case of S v Likuwa 1999
NR held that the minimum sentence of ten years imprisonment prescribed by the
unlawful possession of a machine gun was an inhuman or cruel punishment and in
conflict with Article 8(2)(b) of the Namibian Constitution and this minimum sentence was
struck out. The minimum sentence of ten years imprisonment appears on the charge
sheet used by the prosecutor more than 14 years after it had been struck out – The
Prosecutor-General should take remedial measures in this regard. Sentence of ten
years imprisonment set aside and substituted with appropriate sentence. State v
Katema (CR 62/2013) [2013] NAHCMD 293 (18 October 2013).
Sentence – Previous conviction of murder – 10 years old or more – Common law does
not postulate that the such previous conviction should be ignored – Court has a
discretion to disregard or take into account such previous conviction – An aggravating
factor in appropriate case. Criminal Procedure – Sentence – Accused convicted of
murder – robbery with aggravating circumstances – both crimes resulting from a single
act– one crime cannot be completely ignored by taking both counts together for purpose
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of sentence –principle of double jeopardy – accused person should not be punished
twice for same offence – solution lying in ordering part of sentence on robbery count to
run concurrently with the sentence on murder count. S v Jackson (CC 03/2011) [2013]
NAHCMD 288 (17 October 2013).
Sentence – Accused was charged with the common law crime of robbery - Factors in
sentencing considered – Interest of society and the seriousness of the crime committed
may justify a custodial sentence rather than a fine – Conviction confirmed but not
sentence. S v Haufiku (CR 63/2013) [2013] NAHCMD 292 (17 October 2013).
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CASE SUMMARIES
Appolus v The State (CA 32/2012) [2013] NAHCMD 37 (12 February 2013)
Summary: Appellant – aged 71 - Was arraigned on the charge of murdering his own
son Patricio David Apollus in the Regional Court held at Keetmanshoop. He pleaded not
guilty and in his defence only submitted a statement in terms of section 115 of the
Criminal Procedure Act 51 of 1977, in which he claimed that he had acted in selfdefence and that the shot which had been fired, which had admittedly killed his son, had
meant to be a warning shot, intended to go over the deceased. The deceased, who had
bent down, allegedly rose unexpectedly and got into the path of the shot and was thus
killed almost instantly - He was subsequently found guilty and convicted of murder and
sentenced to 15 years imprisonment, of which 5 years were suspended. The appellant
subsequently noted an appeal against this conviction and sentence - Ad the conviction Court concluding that findings of magistrate not wrong – Appeal against conviction
dismissed - Ad sentence – Court finding that the aspect of deterrence was overemphasised, whereas the strong personal mitigating factors in favour of the appellant
were under – Emphasized - That the learned magistrate therefore got the complicated
task of trying to harmonise and balance the principles applicable to sentencing and to
apply them to the facts wrong in these respects – In any event the sentence imposed by
the court a quo also inducing a sense of shock in the sense that there was a startling
disparity between the sentence imposed by the trial court and the sentence deemed
appropriate by the appeal court – Sentence set aside and replaced.
Bocky v The State (CA 27/2010) [2013] NAHCNLD 40 (08 July 2013)
Summary: Appellant was arraigned in the regional court on charges of (1)
housebreaking with intent to commit a crime unknown to the State; (2) rape; and (3)
robbery with aggravating circumstances. He was convicted on count 1of housebreaking
with intent to rape and rape; acquitted on count 2; and convicted on count 3. Section
262 (2) of the Act does not provide for a conviction of housebreaking with the intent
proved (upon entering) and the crime committed while on the premises. The trial court
misdirected itself by bringing in the rape as a competent verdict under the charge of
housebreaking when convicting. The convictions were corrected and the appellant
sentenced afresh. Trial magistrate resigned and appeal court sentenced appellant on
counts 1 and 2 afresh. Conviction and sentence on robbery charge (count 3) confirmed,
though order made for sentence to be served concurrently set aside.
Ditshabue v State (CA 96/2010) [2013] NAHCMD 132 (12 April 2013)
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Summary: Criminal procedure – Appeal – Record incomplete – In casu certain parts of
the record are incomplete – Court decided that the record is comprehensible and
adequate for a proper consideration of the appeal as all the relevant evidence
necessary for the court to make a decision is before the court – Court found that the
indistinct parts are not such that the court could not make a sense out of the evidence
that was adduced and that the appellants are not prejudiced in any way by certain parts
being indistinct. Criminal procedure – Sentence – Appellant contended that the trial
court emphasized seriousness of the offence compared with the personal
circumstances of the appellants – Court rejected such argument on the basis that there
is no inflexible rule of law to the effect that a trial court may not emphasize one or more
factors in sentencing at the expense of others – Court confirmed sentence as the
sentence imposed did not induce a sense of shock in the mind of the court and the
sentence is not so severe that it is unjust or unreasonable, considering the
circumstances of the commission of the offence.
Hango v The State (CA 48/2009) [2013] NAHCNLD 44 (07 August 2013)
Summary: This is an appeal against conviction and sentence. The accused was
convicted on a charge of rape, read with the provisions of the Combating of Rape Act,
2000 (Act 8 of 2000). The Regional Magistrate found that there are no substantial or
compelling circumstances. The appeal court held:
Held: In my view the facts in their totality, the probabilities and the circumstances
surrounding the case overwhelmingly establishes the veracity of the complainant’s
evidence and the learned magistrate in my view was correct in finding that the state had
proved its case to the required standard of proof. The appeal against conviction must
therefore fail. It is now contended that the conclusion reached by the magistrate that he
had no option or choice to accept the evidence of the complainant, since the appellant
did not testify is a material misdirection. Even if it was a misdirection, I am satisfied that
the evidence as a whole established the guilty of the appellant beyond reasonable
doubt.
Held : As far as the sentence imposed is concerned, the learned magistrate correctly
cautioned the appellant that the court would have to impose the statutory prescribed
minimum sentence unless the appellant could establish facts which could be considered
to constitute substantial or compelling circumstances and informed the appellant that he
could testify under oath or make submissions. The appellant preferred the latter option.
It emerged that the appellant was 29 years old at the time and was employed on a part
time basis as a casual labourer. He is the father of three children, who are cared for by
his sister.
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Held: The learned magistrate was correct in concluding that none of these, individually
or collectively, amounted to substantial or compelling circumstances. I cannot fault the
Magistrate’s reasoning. Appeal accordingly dismissed.
Hihepa v The State (CA 36/2011) [2013] NAHCNLD 31 (24 May 2013)
Summary: This is an appeal against the sentence of 20 (twenty) years’ imprisonment
imposed by the regional court having found no substantial and compelling
circumstances. The appellant was convicted of stock theft in that he stole two head of
cattle from a neighboring farm. The sentence of 20 years’ imprisonment which was
imposed was found to be disproportionate to the crime and legitimate expectations of
society. The court of appeal is entitled under these circumstances to interfere. The
sentence is set aside and substituted with a sentence of 7 (seven) years’ imprisonment
of which three years’ imprisonment is suspended for five years on the usual conditions.
The sentence is ante-dated.
Hoorzook v State (CA 71/2012) [2013] NAHCMD 168 (10 June 2013).
Summary: Criminal procedure – Appeal against conviction – Notice of appeal –
Noting of appeal is foundation on which appeal is based – Where no grounds but
conclusions of facts are put forth by the draftsperson of the notice of appeal court is not
entitled to adjudicate the case based on those conclusions – Court finding that only two
of the six grounds of appeal are grounds and so merit adjudication on the merits – Court
rejected the two grounds as meritless – Appeal against conviction therefore dismissed –
In casu, counsel did not pursue the four non-grounds – The principles in S v Gey van
Pittius 1990 NR 35 (HC) and S v Kakololo 2004 NR 7 (HC) on notice of appeal applied.
Iiyambo v State (CA 68/2012) [2013] NAHCMD 42 (8 February 2013).
Summary: Criminal procedure – Sentence – Appeal against – Interference by appeal
court – Appeal court does not have unfettered discretion to reconsider sentence
imposed by trial court – Principle in S v Ndikwelepo and Others 1993 NR 319 applied –
Appeal court may only interfere with trial court’s exercise of discretion if sentence
imposed is so manifestly excessive that it induces a sense of shock in the mind of
appeal court – In casu, on the facts, and in the circumstances, of the case court not
persuaded that sentence imposed by trial court is shockingly inappropriate –
Consequently court dismissed appeal.
Summary: Criminal procedure – Submissions by public prosecutor on any matter
during proceedings does not bind the court – In casu public prosecutor proposed a
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sentence of six months’ imprisonment but magistrate imposed a sentence of two years’
imprisonment – Appellant takes issue with the magistrate not accepting public
prosecutor’s proposal – Submissions by public prosecutor or defence counsel on any
matter, including sentence, do not bind the court.
Immanuel v State (CA 41/2013) [2013] NAHCMD 254 (12 September 2013)
Summary: The Appellant allegedly saw a person among four others hit the left side
body of his car as he was driving past. He turned to ask why, and swearing started, and
the Appellant hit the person with a fist. Among the four was the deceased who
approached the Appellant with a knife, the latter took out the firearm, cocked it, thinking
it would scare the deceased, who instead continued coming and was shot once in the
chest. Appellant left the deceased dying at the scene and went home to watch TV
instead of reporting the matter to the police there and then, a conduct the Magistrate
found to be inconsistent with innocence.
Held: Section 61 of Act 51 of 1977 as amended gives the presiding officer the discretion
to refuse bail even where the Appellant has shown on a balance of probabilities that he
will stand trial if in the opinion of such presiding officer the granting of bail will not be in
the interests of the public and the administration of justice.
Held: further, that this court is satisfied that the Magistrate correctly applied her mind to
the facts of the matter in this regard.
Held: further, that the Appeal is dismissed.
Izack v The State (CA 15/2013)[2013] NAHCMD 207 (23 July 2013)
Summary: The appellant who had previously been ordered to pay maintenance in the
amount of N$ 150 per month in respect of the maintenance of his minor son failed to
comply with the court order and was, upon own plea of guilty, sentenced to 1000 hours
of community service. The appellant now appeals against sentence on the ground that
the sentence is shockingly inappropriate. The appeal succeeds.
Held, that failure to pay maintenance constitutes domestic violence in terms of
Combating of Domestic Violence Act, 4 of 2003; such failure not a peccadillo to
be visited with light sentences;
Held, Appeal court will not lightly interfere with a sentence intended to ensure that a
father makes sure he takes responsibility to pay maintenance seriously.
Held, further, Court satisfied that periodical imprisonment was justified in the
circumstances but that the trial court ought to have elicited further information
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about the accused’s working schedule. Appeal succeeds and matter remitted to
the Magistrates’ court to consider the sentencing afresh.
Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013)
Summary: The appellant was convicted of rape and incest of his own daughter. On
the rape charge, he was sentenced to 18 years imprisonment and on the incest charge
to 3 years imprisonment. The sentence on incest was ordered to run concurrently with
sentence on the rape charge. He appealed against both convictions and sentences.
His grounds of appeal are, inter alia, that his guilt was not proved beyond reasonable
doubt, that the complainant was a single witness, that his rights to legal representation
were not explained and not assisted by the presiding officer during the trial and that the
sentences imposed were unreasonable.
Held, that although the complainant was a single witness on the actual rape, her
evidence was corroborated by witnesses and the J88 and that the guilt of the
appellant was proved beyond reasonable doubt.
Held, further, that, on the charge of incest, there was a duplication of convictions
because the appellant only had a single intent to rape the complainant who
happened to be his daughter
Held, further, that his right to legal representation was explained and appellant was
duly assisted by the presiding officer.
Held, further, that the sentence of 18 years on the rape charge was in order.
Held, further, that the appeal against conviction and sentence on the rape charge is
dismissed.
Held, further, that the appeal against conviction and sentence on the incest charge is
allowed.
Kahua v The State (CA 18/2013) [2013] NAHCMD 223 (12 July 2013)
Summary: The appellant was charged and convicted of displaying on his motor
vehicle, a number-plate which was not for that vehicle. On the date the appeal was set
down for hearing the appellant or his instructed legal representative did not appear.
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Held
that in this case there were no grounds advanced by either the appellant or his
legal practitioner of record Mr G Kasper of Murorua & Associates for his non
appearance.
Held that the appeal is struck from the roll on account of the non-appearance of an
appellant.
Kahiha v State (CA 10/2010) [2013] NAHCMD 206 (22 July 2013)
Summary: On 17 March 2011 the Regional Court Magistrate at Gobabis sentenced the
applicant, a stock theft repeat offender, to five years imprisonment for stealing twenty
three sheep valued N$18 400.00. Held: The application can only succeed if the Appeal
Court is satisfied that there are reasonable prospects that the Supreme Court would
come to a different conclusion should the appeal be granted. Held: The application for
leave to appeal had to be dismissed.
Lambert v State (CA 58/2013) [2013] NAHCMD 213 (12 July 2013)
Summary: Criminal sentence – Stock Theft Amendment Act 19 of 2004 – Where an
accused has been convicted of stock theft, the value of the stock is crucial to sentencing
as it determines whether the prescribed minimum sentence applicable should be one of
imprisonment of not less than two or 20 years, as provided in the Stock Theft
Act, 1990 (as amended). There is a substantial difference between the two prescribed
sentences and the need to determine the proper value of the stock is almost imperative
when it comes to borderline cases where a difference of as little as One Namibia cent in
the value of the stock could result in a sentence of 20 years, instead of two years of
imprisonment. It is therefore not something that should be considered lightly by the
court and it deserves proper consideration.
Held that the appellant’s notice of appeal does not set out the grounds on which he
attacks the conviction, conviction accordingly confirmed.
Held further that this court has as far back as 2005 stated that the value of the stock is
crucial to sentencing as it determines whether the prescribed minimum sentence
applicable should be one of imprisonment of not less than two or twenty years.
That in this case the District Magistrate should pertinently have instructed the
accused of the importance of the value of the sheep and elicited evidence, as
contemplated in section 112(3) of the Criminal Procedure Act, 1977 as to the
value of the sheep.
Held further that it is meaningless for a magistrate to simply inform an accused person
about the penalty clause. The appellant was not legally represented and it was
thus the duty of the magistrate to explain to him the provisions and implications
of section 14 of the Stock Theft Act, 1990.
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Held further that a failure by a magistrate to explain to an unrepresented accused the
purport of section 14(2) of the Stock Theft Act, 1990 (as amended) and to afford
him an opportunity to place information before him or her constitutes an
irregularity.
Londeni v The State (CA 12/2013) [2013] NAHCMD 210 (12 July 2013)
Summary: The appellants appeared in the Regional court sitting at Mungunda Street,
Windhoek facing charges of robbery with aggravating circumstances, contravening
section 2 of Act 12/1999 as amended –i.e. theft of motor vehicle and attempted murder.
The appellants pleaded not guilty but were found guilty as charged. On 30 July 2012,
they were each sentenced to 7 years imprisonment with 2 years suspended on the first
count, 10 years imprisonment on the second count and 3 years imprisonment on the
third count.
Held that in terms of section 309 (2) of Act 51 of 1977, the court of appeal can
condone an applicant’s failure to timeously file his notice of appeal. This can be
done if the applicant provides an explanation in an affidavit which is acceptable to
the court as to why he was unable to file his notice of appeal within the prescribed
time limits.
Held
that the first appellant has not applied for condonation for the late filing of his
appeal, he has also not tendered an explanation as to why his appeal is out of
time, that the first appellant’s appeal is not properly before this Court.
Held that second appellant has not filed a notice of appeal and has no locus standi
before this Court.
That the appeal in respect of first and second appellant is struck from the roll.
Lukas v State (CC 15/2013) [2013] NAHCMD 334 (13 November 2013)
Summary: Bail – Application for – Balancing Act – Presumption of innocence of the
applicant and his or her right to personal liberty against interests of society – Factors
considered in determination of application – Real risk that the applicant will interfere
with witnesses – Seriousness of the crimes and severity of sentences that would be
imposed on accused if convicted – Accused refused bail in court below – Accused
brought fresh application in the court having been refused bail in lower court – The real
risk that applicant will interfere with child girl witnesses who are also the complainants
contributed heavily in refusal of bail by lower court – Court was satisfied the State has in
the court established the existence of the real risk that the applicant will interfere with
witnesses – The only new factor in the court is applicant now nursing a two-month old
baby – Court was satisfied that the applicant and her baby are being cared for humanly
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in the Walvis Bay prisons – Court also found that the State was prepared to keep the
applicant’s two other young children in a safe place – Consequently, application was
dismissed.
Mcnab v State (CC 181/1998 [2013] NAHCMD 256 (16 September 2013)
Summary: Criminal Procedure – Applicants applied for condonation for the late filing
of an application to make a special entry in terms of s 317 of the Criminal Procedure Act
and to lead fresh evidence. Prior to that, they had petitioned the Chief Justice for leave
to appeal. The petition was refused by the Supreme Court. Such decision is final.
Therefore, this court has no jurisdiction to entertain this application. Accordingly, the
application is struck from the roll.
Muharukua v The State (CA 14/2009) [2003] NAHCNLD 29 (20 May 2013)
Summary: The two appellants were convicted of stock theft read with the provisions of
the Stock Theft Act, 12 of 1990 in the district court and sentenced to 20 years
imprisonment in the regional court. On appeal they challenged inter alia the court’s
reliance on inadmissible evidence to convict. No evidence was adduced that second
appellant, when he was found in possession of stock, was cautioned by the police
officer in terms of the Judge’s Rules before he was questioned despite the fact that he
was a suspect at the time. Two witnesses testified that first appellant in their presence
admitted to having stolen their cattle in an interview by a police officer who was
questioning the appellants at the time. No evidence was adduced that first appellant
was cautioned before the interview was conducted. The court found that the confession
was inadmissible. Despite the fact that the appellant was represented at the time, the
magistrate had a duty to consider the admissibility of evidence when he evaluated the
evidence at the end of the trial. The conviction and sentence of first appellant are
accordingly set aside. In respect of second appellant it was found that where an
irregularity occurred the nature thereof was not such as to taint the entire proceedings
to warrant the setting aside of the conviction. It was found that the court a quo
adequately explained those rights relevant to the appeal, to the second appellant. The
remaining evidence supports a conviction of second appellant of having contravened s
2 of the Stock Theft Act. His conviction and sentence are set aside and substituted with
a sentence of 1 year’s imprisonment, suspended on the usual conditions.
Mwanyekele v State (CA 15/2013) [2013] NAHCMD 301 (25 October 2013)
Summary: The evidence of single witness must be approached with caution although
such caution should not be allowed to displace the exercise of common sense.
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Where the State fails to call witnesses who have been identified and who are available,
certain consequences may follow, namely that a court would be justified to infer that the
reason for such failure to call a witness, is that in the opinion of the prosecutor such
evidence might possibility have given rise to contradictions which could have reflected
adversely on the credibility and reliability of the single witness. A finding by a court that
an accused had acted negligently or carelessly, on a charge of attempted murder,
excludes the element of dolus (intention). The defence of self-defence is a denial that
conduct was unlawful. In considering whether accused acted in self-defence a court is
not required to consider whether there was an equilibrium between weapons used.
It must be ever present in the mind of a presiding officer that in the particular
circumstances of a case the person claiming to act in self-defence might have done so
in a emergency situation. The act of self-defence may not be more harmful than
necessary to ward off the attack but much depends upon the varying circumstances in
each case in deciding whether the bounds of self-defence have been exceeded. The
vital question is not whether there were other methods of defence which might have
been successful, in averting the unlawful attack but whether the method in fact adopted
can be justified in the circumstances.
Mweemba v State (CA 56/2013) [2013] NAHCMD 344 (20 November 2013)
Summary: The appellants appeared before the District Magistrates’ Court for the
district of Katima Mulilo on two charges of contravening the Nature Conservation
Ordinance, 19751. The first count was that the appellants contravened section 26(1)
read with Sections 1, 26(2), 26(3), 85 87, 89 and 89A of Ordinance 4 of 1975 further
read with sections 90 and 250 of the Criminal Procedure Act 1977 2 in that they hunted
specially protected game, (namely: three elephants) without a permit. The second count
which the appellants faced was that they contravened section 2(1)(a) read with Sections
1, 3, 4 and 5 of Proclamation AG 42 of 1980 as amended by Act 31 of 1990 in that they
were in possession of six elephant tusks weighing 43, 75 kg and valued at N$ 31 283,
88.
The appellants who were unrepresented, each, tendered a plea of guilty to the charges.
Pursuant to questioning by the learned magistrate in terms of s 112(1)(b) of the Criminal
Procedure Act 1977 the appellants were, on 31 January 2013, convicted on both counts
and on 11 February 2013 the appellants were, each, sentenced to four years
imprisonment in respect of the first count and one year imprisonment in respect of the
second count. They appeal against both the conviction and sentence.
1
Ordinance 4 of 1975.
2
Act 51 of 1977.
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Held that where there are co-accused the magistrate is required to question each
accused independently even if this involves laboriously repeating the same questions.
Held further that the primary purpose of s 112(1)(b) of the Act is to protect an
undefended accused, such as the accused in casu, against the consequences of an
incorrect plea of guilty.
Held further that the answers given in an enquiry in terms of s 112(1)(b) of the Criminal
Procedure Act 51 of 1977 do not constitute 'evidence' under oath from which the court
can draw inferences regarding the guilt of the accused. Section 112(1)(b) requires of a
court in peremptory language to question the accused with reference to the alleged
facts of the crime in order to ascertain whether he or she admits the allegations in the
charge to which he or she has pleaded guilty. It may only convict the accused on
account of such a plea if it is satisfied on the basis of such answers that the accused is
indeed guilty. Unless the accused has admitted to all the elements of the offence, he or
she may not be convicted merely on account of his or her plea.
Nakale v State (CC 43/2009) [2013] NAHCMD 331 (13 November 2013)
Summary: Appellant was convicted on two counts of murder (dolus directus) and given
consecutive running sentences of 30 years on the first count where a domestic
relationship existed and 20 years on the second count respectively.
Held: The evidence of the appellant during cross-examination was that he loaded,
cocked the pistol and put the safety pin on the firing position then stuck the arm on his
waist before he went to the scene of crime (the residence of the two women). The
ballistic expert findings were that the deceased were separately killed by distance gun
shots. The street bystanders testified they heard how Lucia shouted amid gunshots
pleading with the appellant to stop shooting. The final conduct of the appellant exiting
the scene with the fatally injured looking Lucia behind him who went down in desperate
need of urgent medical attention – The appellant just looked at her, stuck the pistol on
his waist, got into his car and drove away.
Held: The inferential evidence is solid such that I am not satisfied there are reasonable
prospects of success in showing that the conviction and sentence were vitiated by the
misdirections contended by the appellant’s counsel.
Held: The application for leave to appeal is accordingly dismissed.
Nangombe v The State (CA 19/2013) [2013] NAHCNLD 60 (12 December 2013)
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Summary: The appellant appealed against the sentence imposed by the regional court.
The appellant was sentenced to 20 years’ imprisonment of which 10 years were
suspended in accordance with the provisions of s14(1)(a)(ii) of the Stock Theft Act,
1990 (Act 12 of 1990) as amended. The record of the sentencing procedure was
incomplete but the court was able to consider the appeal on the information recorded.
At the time of sentencing the magistrate was required to act in terms of s114 of the
Criminal Procedure Act, 1977 (Act 51 of 1977) and if satisfied that the appellant had
correctly been convicted of the offence, to sentence the appellant in accordance with
the provisions of s14 of the Stock Theft Act, 1990 (Act 12 of 1990) as amended. The
appellant was correctly convicted in the district court and the conviction was confirmed.
The regional court magistrate evidently did not find substantial and compelling
circumstances and imposed the prescribed minimum sentence provided for in terms of
s14(1)(a)(ii). The mandatory sentence prescribed has subsequently been struck down
as being in conflict with the constitution but this does not per se mean that the sentence
imposed was inappropriate. The record at hand provides details of the offence and
limited personal information of the appellant. On the available facts the court was able
to determine that the sentence imposed was disproportionate to the offence, the
offender and the legitimate expectations of society. The sentence was accordingly set
aside. The court could not determine an appropriate sentence and the matter was
remitted to the regional court to sentence the accused afresh.
Nashapi v S (CC 02/2004) [2013] NAHCMD 291 (17 October 2013)
Summary: Applicant gave contradictory statements about his non-compliance with
rules in application for late noting appeal. Application for condonation was made 8 years
after sentence, reasons were unsatisfactory - Application was dismissed as applicant
was not candid with the court.
Natangwe v The State (CA 65/2011) [2013] NAHCNLD 26 (30 April 2013)
Summary: Criminal sentence – Stock Theft Amendment Act 19 of 2004 – Court finding
that sentence imposed was primarily influenced by the impugned minimum sentence
provisions in terms of Stock Theft Amendment Act 19 of 2004 – This court bound by
decision of the court declaring minimum sentence under that Act unconstitutional – In
casu court at large to impose appropriate sentence, considering the factors to be taken
into account in sentencing – Having done so, court concluding that the sentence
imposed by trial court induces a sense of shock in the mind of the court – Consequently
court upholding the appeal.
Ndala v The State (CC 32/2001) [2013] NAHCMD 262 (19 September 2013)
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Summary: Where a question of law is raised in a superior court in terms of the
provisions of s 319 of Act 51 of 1977 such question of law is reserved for consideration
by the Appellate Division. It is not the task of the trial court to decide on the merits or
demerits of the point of law raised and to make a finding either in favour of the point so
raised or against the point so raised – To do so would constitute an irregularity and the
court would be acting ultra vires the provisions of s 319. Any application for the
reservation of a question of law must be brought as soon as possible and within a
reasonable time after the conclusion of the trial ie after the conviction and sentence of
an accused or after his or her acquittal and may not, in contradistinction to a special
entry in terms of s 317, be brought during trial proceedings.
Ndemuhenuka v The State (CA 76/2010) [2013] NAHCNLD 5 (15 February 2013)
Summary: Second appellant was convicted of stock theft on the strength of the
testimony of two State witnesses who identified him as being the person who was in the
company of first appellant when he sold 4 heads of cattle which turned out to be stolen
cattle. The witnesses initially failed to recognise him during trial but later became certain
that it was indeed him whom they saw in the company of first appellant. The witnesses
failed to testify what led them to reach this conclusion and no investigation was done by
the magistrate to ascertain the premise on which the witnesses based their identification
of second appellant. This court concluded that magistrate erred when he concluded that
the evidence proved beyond reasonable doubt that second appellant was the person
who accompanied first appellant. Appeal accordingly upheld. First appellant’s sentence
was found to have been disproportionate to the crime, the offender and the legitimate
needs of society. In addition hereto this court struck down words “or a period not less
than twenty years’” from s 14(1)(a)(ii) of Stock Theft Act and this court thus entitled to
interfere with the sentence. The sentence accordingly set aside and substituted with a
sentence of 12 years’ imprisonment of which four years are suspended.
Onesmus v The State (CA 01/2013) [2013] NAHCNLD 22 (22 April 2013)
Summary: Appellant appealed against the refusal of bail by the magistrate’s court,
whilst on the same evidence admitting his co-accused to bail. The fundamental rights of
the accused in respect of the right to a fair trial; the presumption of innocence until
proved guilty and the protection of others against criminals, considered. The applicant
bears the onus on preponderance of probability to show why he or she should be
released on bail. Where the provisions of s 61 find application applicant must show that
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it would not be in the interest of the public and or the administration of justice to retain
him or her in custody pending the trial.
Pienaar v The State (CA 25/2012) [2012] NAHCMD 113 (07 August 2012)
Summary : Appellant had appealed the refusal of the court a quo to admit him to bail –
bail having been refused on the ground that ‘in the light of the appellant’s previous
convictions and because he would not suffer financially even if detained it meant that
the appellant was not a good candidate for bail and that appellant’s application for bail
thus had to be dismissed – After an analysis of the appellants previous convictions court
finding that this history disclosed a propensity on the part of the appellant to come into
conflict with the law on a regular basis and that there was real likelihood that appellant,
if released on bail, may commit further crimes - appellant’s criminal record also
disclosing two previous convictions for assault - such previous convictions also
underscoring the evidence of the investigating officer that there was fear from the
witnesses who had informed him that they know the appellant very well, that he is an
aggressive type of person and that he may just injure them – Accordingly found that the
appellant might very well harbour resentment towards such witnesses - accordingly fear
of being assaulted on the part of such witnesses becoming so much more real given the
appellant’s previous conviction for assault – the likelihood that the appellant might
commit further crimes if released on bail was thus reinforced by the evidence in this
regard.
Held
the consideration of whether or not there was a likelihood that an accused would
commit further crimes if admitted to bail was a relevant consideration for the
granting or refusing of bail given the provisions of Section 61 of the Criminal
Procedure Act 51 of 1977 and that bail could be refused on that basis alone –
Held appellant’s history of previous convictions disclosed a propensity on the part of
the appellant to come into conflict with the law on a regular basis.
Held that such history also pointed to the real likelihood that appellant, if released on
bail, may commit further crimes.
Held that it could not be said that the decision of the court a quo to refuse bail on this
ground was wrong. Appeal accordingly dismissed.
Pieters v State (CA 27-2013) [2013] NAHCMD 198 (17 July 2013)
Summary: The appellant was sentenced to 18 months imprisonment after she was
convicted of culpable homicide read with the Domestic Violence Act, 4 of 2003. In
appeal, Court finds the appellant to be the victim than the abuser in the domestic
relationship with the deceased. The court misdirected itself by over-emphasising the
heinousness of the crime failing to consider the facts of the matter and the
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circumstances under which the crime was committed. Sentence of 18 months
imprisonment confirmed but suspended for 5 years conditionally.
Sankwasa v State (CA 70/2012) [2013] NAHCMD 249 (23 August 2013)
Summary: The court a quo had convicted the appellant, an employee of Namdeb in
Oranjemund, of theft of diamonds from Namdeb, in contravention of the Diamonds Act
13 of 1999. It was common cause that when the appellant commenced employment
with Namdeb, he underwent an induction program in regard to the security system at
Namdeb and he had signed a declaration that he was familiar with the security
measures. The appellant had pleaded not guilty and had not given evidence in his
defence. On appeal the questions that the court had to decide are whether the evidence
in the court a quo was obtained in breach of the Appellant’s Constitutional Rights as
enshrined in Chapter 3 of the Namibia Constitution and the consequences that follow if
it was so obtained; and whether the court a quo erred when it found that the unpolished
diamonds that were eventually valuated were the same unpolished diamonds removed
by the appellant from under his trouser.
Held further that when the appellant passed through the Scanex x-ray facility he was
not a suspect and it is at that time that the foreign objects were detected in the pelvic
area of his body. So at that time he was a non-suspect and there was, therefore, no
duty on the Namdeb security officers to advise him of his Constitutional rights.
Held further that there was no duty on Detective Inspector Husselman in the
circumstances of this case to inform the Appellant of his Constitutional rights under
Article 12. Consequently the police officer did not infringe any of the Appellant’s
constitutional rights guaranteed in Article 12 of the Namibian Constitution.
Held further that the appellant has failed to discharge the onus resting on him to
demonstrate a violation of any of his Constitutional rights. That the admission of the 12
unpolished diamonds in evidence, in all of the circumstances of this case, would not
render the trial unfair and bring the administration of justice into disrepute.
Held further that the appellant had the duty to rebut the evidence led by the State
witnesses and his failure to do so only leads to the conclusion that the prosecutor's
case was sufficient to prove the elements of the offence.
Shailemo v State (CA 72/2013) [2013] NAHCMD 323 (8 November 2013)
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Summary: Two robbers, one of them armed with an unlicensed Makarov pistol whose
serial number has been erased entered Erundu Bar at 02h00 at night and robbed the
complainant at gunpoint. They fled the scene, stealing an amount of N$ 1 830 and one
bottle of Mokador. A security guard was hit on the head with the pistol during a fight that
ensued as the robbers exited the bar. Police on night patrol were alerted and the
robbers were immediately persued up to a plastic built shack where they were found
pretending to be asleep with clothes, shoes and socks still on. The pistol and a
bloodstained T-shirt were found in the shack. Stolen items were never recovered.
Held: The evidence against the appellants is solid, credible and were therefore correctly
convicted and sentenced.
Held: The appeal against conviction and sentence is dismissed.
Shihepo v The State (CA 23/2011) [2013] NAHCNLD 33 (31 May 2013)
Summary: Robbery – Appellant convicted of robbery on single evidence of the
complainant. Court relied on the complainant’s bold assertion that he positively
identified the appellant as one of his assailants without testing the reliability of such
evidence. In the circumstances the identification of the appellant has not been
established beyond reasonable doubt.
Shituna v The State (CA 59/2011) [2013] NAHCNLD 51 (August 2013)
Summary: The appellant appealed against conviction of having contravened section
76(4) of the Road Traffic and Transport Act, 22 of 1999. In his grounds of appeal, he
took issue with (i) the failure of the traffic officer to show his appointment certificate on
demand; (ii) the magistrate’s acceptance of unauthorised entrapment by the traffic
officers; (iii) the magistrate’s conclusion that speed measuring cameras operate
accurately when they are switched on; and the magistrate’s evaluation of the evidence.
The court considered the evidence adduced and concluded that the failure by the traffic
officer to produce an appointment certificate does not invalidate the notice to appear in
court which he had handed to the appellant. The court further concluded that “speed
traps” per se are not illegal and entrapment not a defence where the traffic officers do
nothing more than to trap offending motorists and do not entice them in any way to
commit an offence. The court was not persuaded that the device used to measure the
speed was the subject of judicial recognition. Furthermore no evidence was adduced
that the device was operating accurately at the time and the magistrate erroneously
expected the appellant to prove that it was defective. The appeal upheld and the
conviction and sentence were set aside.
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Shipuata v The State (CA 26/2011) [2013] NAHCNLD 02 (23 January 2013)
Summary: Applicant on appeal from the regional court against his conviction and
sentence simultaneously applied to lead further evidence. No formal application was
made to lead further evidence on appeal and the issue was raised for the first time in
counsel for the applicant’s heads of the appeal. The application is based on the witness
statement of one of the State witnesses who did not testify at the trial as he could not be
traced. The prerequisites for a successful application are that: (a) there should be a
reasonable and acceptable explanation why the evidence was not tendered at the trial;
(b) the evidence must be essential for the case at hand; and (c) the evidence must be of
such a nature that it may probably have the effect of influencing the result of the case
(JCL Civils supra). Compare: prerequisites as set out in De Jager supra which are in
principle the same. Although apparent from the record why the evidence was not
adduced at the trial ie the witness could not be traced, there is no explanation as to the
present whereabouts and availability of the witness; neither is there any explanation
satisfying the second and third prerequisites. Applicant realising the shortcomings in his
application withdrew same on the day of the hearing.
Shipuata v The State (CA 26/2011) [2013] NAHCNLD 04 (01 February 2013)
Summary: The appellant was legally represented up to the close of the State’s case.
His legal practitioners or record withdrew and was not prepared to reconsider their
position. The accused requested a further postponement of the matter in order to
secure legal representation. The magistrate refused to grant a postponement. The
appellant submitted that his constitutional right to a fair trial has been infringed by the
magistrate’s refusal to grant a further postponement; and by magistrate’s failure to
come to his aid when he was cross-examined in respect of an omission by his legal
representative to put his version to the complainant. The magistrate in his ruling
indicated that he considered the prejudice to the appellant, the duration of the case from
its inception, previous postponements granted on application by the appellant for the
purpose of obtaining legal representation; and the administration of justice. This court
held that the magistrate exercised his discretion properly when he refused to grant a
further postponement. The court further held that the magistrate has no duty to come to
the aid of the appellant when cross-examined in respect of an omission by his legal
practitioner. The appellant and the complainant had two mutually destructive versions
relating to the circumstances under which sexual intercourse took place. The
complainant described sexual intercourse in the bush whilst coercive circumstances
(the use of force) were present. The appellant’s version was that sexual intercourse in
the bush was consensual and in exchange for N$ 80 and two beers. The trial court
found the evidence of the complainant satisfactory despite certain shortcomings and
defects in her testimony and rejected the appellant’s version as being farfetched and
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improbable. The court held that there were no reasonable prospects of success on the
grounds of appeal against his conviction. The appellant further failed to show any
irregularity or misdirection by the magistrate during the sentencing procedure. There
were no reasonable prospects of success on the grounds of appeal against the
sentence. The period of delay was considerable and a poor explanation was tendered.
Under these circumstances, the application for condonation stands to be dismissed.
S v Alfeus (CC 16/2011) [2013] NAHCMD 102 (16 April 2013)
Summary: The accused pleaded guilty to an indictment containing a charge of murder
read with the provisions of the Domestic Violence Act, Act 4 of 2003. He shot the
deceased his intimate partner who was unarmed twice with a firearm on the head. He
was convicted of murder with direct intent. Sentenced to thirty (30) years’ imprisonment.
Two (2) years of which are suspended for 5 years on condition that the accused is not
convicted of murder, culpable homicide or any other offence of which violence is an
element committed during the period of suspension.
S v Edward (CR82/2013) [2013] NAHCMD 368 (3 December 2013).
Summary: Criminal procedure – Sentence – In terms of s 9 of Police Offences
Proclamation 27 of 1920 – Two accused persons were found guilty of being found in
their possession, without lawful excuse, housebreaking implements in contravention of s
9(1) of the Proclamation – The court found the proceedings were in accordance with
justice and accordingly confirmed the conviction – The court found further that the first
sentence to a fine or imprisonment wholly suspended on conditions was in accordance
with s 9 of the Proclamation, read with s 297(1)(a) and (b) of the Criminal Procedure Act
51 of 1977, but in imposing the additional second sentence of community service the
lower court acted ultra vires s 9 of the Proclamation – Accordingly court set aside the
sentence and replaced it with another sentence.
S v Eiseb, S v Kooper (CR 29-2013) [2013] NAHCMD 105 (17 April 2013).
Summary: The magistrate recorded formal admissions in terms of section 220 of the
CPA in a plea of not guilty proceedings and convicting the accused persons without
affording the Public Prosecutor and the accused persons to either lead evidence or to
close their respective cases – Conviction and sentence irregular and set aside.
S v Ekandjo (CR73-2013)[2013]NAHCMD314(1 November 2013)
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Summary: The accused who conducted own defence pleaded guilty to an offence of
Housebreaking with the intent to commit an offence unknown to the State – Convicted
as charged and sentenced. On review, both the conviction and sentence set aside and
the matter remitted to the magistrate to enter a plea of not guilty in terms of section 113
of the Criminal Procedure Act 51 of 1977 as the accused did not admit all allegations of
the offence he was charged with.
S v Gariseb (CC 18/2011) [2013] NAHCMD 136 (21 May 2013)
Summary: Witness deviation statement to the police as opposed to testimony in court
does not in itself mean that those events did not take place or that there have been a
recent fabrication by the witness especially not if the witness gives an explanation for
their omissions and that explanation is not gain said by anyone. It is trite law that a
witness is not required at the time of making his or her statement to the police to furnish
a statement in all its detail. What is set out in a police statement is more often than not
simply the bare bones of a complaint and the fact that flesh is added to the account at
the stage of oral testimony is not necessarily of adverse consequence.
S v Gariseb (CC 18/2011) [2013] NAHCMD 192 (10 July 2013)
Summary: Sentence - The accused was convicted of three counts of rape in
contravention of s 2 (1) (a) of the Combating of Rape Act 8 of 2000 – He has a previous
conviction of rape in contravention of the same section committed during 2008 – The
court is bound to impose a mandatory sentence in terms of the Act – The accused is
accordingly sentenced to 45 years’ imprisonment in respect of each count.
S v Jackson (CC 03/2011) [2013] NAHCMD 288 (17 October 2013).
Summary: Criminal Procedure – Sentence – all accused persons convicted of murder Accused No. 3 has a previous conviction of murder of more than 10 years old –
Common law does not postulate that the court should disregard a previous conviction of
10 years old or more. A court has a discretion to disregard a previous conviction of 10
years or more and treat the accused as a first offender or to take into account the
previous conviction. Accordingly, in this case the court taking into account the previous
conviction of murder in respect of accused No. 3 as an aggravating factor. Criminal
Procedure – Sentence - Accused persons convicted of murder and robbery with
aggravating circumstances – both crimes resulting from a single incident. The court
cannot completely ignore one count by taking both counts together for purpose of
sentence – Principle of double jeopardy – Accused persons should not be punished
twice for the same offence – Solution to this dilemma lies in the court ordering part of
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the sentence on robbery with aggravating circumstances count to run concurrently with
sentence on the murder count.
S v Haingura (CR71/2013)[2013] NAHCMD 310 (31 October 2013)
Summary: After questioning in terms of section 112(1)(b) of Act 51 of 1977 as
amended, the 19 year old sickly first offender was convicted for theft of one goat valued
at N$500. Despite the above coupled with the fact that the sheep was recovered and
the accused prayed for a sentence with an alternative of a fine, he was nonetheless
given an effective goal term of two years imprisonment. Held: The sentence is
shockingly severe and cannot be allowed to stand especially given the fact that
mandatory sentences in stock theft matters no longer apply.
S v Hairwa (CR 70/2013) [2013] NAHCMD 309 (31 October 2013)
Summary: The accused was arrested while driving along the Rundu – Nkurenkuru
road. A breathalyzer test results showed the level of blood to be 0.47 ml in excess of the
legal limit 0.37 milligrams per 1000 millitres of breath. He was charged, convicted, and
sentenced to N$2 000 or 8 months imprisonment. Held: The conviction hinges solely on
the results of the breathalyzer reading and can therefore not be allowed to stand.
S v Luish (CR 22-2013) [2013] NAHCMD 79 (27 March 2013)
Summary: The accused was charged with and convicted of assault with the intent to
do grievous bodily harm – Read with the provisions of the Domestic Violence Act, 4 of
2003 – The magistrate imposed a fine beyond the ability of the accused to pay or to
generate, therefore, the accused, inevitably has to go to jail to serve the alternative
sentence – Sentence no proper and inappropriate – On review, sentence imposed by
magistrate set aside and substituted for a short sentence of imprisonment.
S v Lukas (CC 18/2012) [2013] NAHCMD 313 (1 November 2013)
Summary: Criminal law – Intention to kill – Direct Intention - Intention is a state of mind
which can be inferred from the circumstances regarding each case. The court will have
to look at the cumulative conduct of the accused, the nature of the weapon used
together with the position on the body where the injuries were directed and the number
of times the accused inflicted the injuries.
State v Mbimbi (CR 42/2013) [2013] NAHCMD 209 (24 July 2013)
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Summary: The accused pleaded guilty to a charge of common assault, convicted on
own plea of guilty following the provisions of section 112(1)a of the Criminal Procedure
Act 51 of 1977 as amended. The sentence of six months direct imprisonment imposed
by the magistrate is incompetent and is set aside.
S v Muzorongondo (CC 15/2011) [2013] NAHCMD 173 (21 June 2013)
Summary: Criminal law – Murder – Test for dolus eventualis – Subjective test – The
accused killed the deceased a 4 year old toddler by assaulting her with fists on the
abdomen and throwing her on a concrete floor – The deceased landed with her head
first – She sustained a fracture of the skull – The cause of death was head injuries –
The accused denied intention to kill or foreseeing the reasonable possibility that his
actions could result in the deceased’s death – The court finds that all the relevant facts
which bear the accused’s state of mind and intention - cumulatively assessed, an
inference can be drawn – that the accused subjectively foresaw the reasonable
possibility that his actions could cause the deceased’s death, but reckless as to such
fatal possibility embarked on to assault the deceased – The test is a subjective one –
Accordingly the accused is found guilty of murder with intent in the form of dolus
inventualis.
S v Muzorongondo (CC 15/2011) [2013) NAHCMD 236 (6 August 2013)
Summary: Criminal Procedure – Sentence – Murder – The accused a first offender
was convicted of murder in the form of dolus eventualis of a four years old child and
defeating or obstructing the cause of justice. Accordingly accused is sentenced to 30
years’ imprisonment in respect of murder and 12 months’ imprisonment in respect of
defeating or obstructing the cause of justice. The sentence on the 2 nd count is ordered
to run concurrently with the sentence on the 1st count.
S v Namweya (CC 13/2013)[2013]NAHCMD 333 (14 November 2013).
Summary: Criminal Procedure – Evidence – Failure by accused to testify in his defence
– Although the accused is not under any obligation to testify in his defence, the State
had led direct evidence incriminating the accused. This is not an appropriate case
where the accused can safely opt to exercise his right to remain silent. Incriminating
State evidence calls for an answer from the accused. Failure to answer in the face of
the weight of such uncontradicted evidence the Court may safely conclude that such
evidence is conclusive to warrant the accused's conviction.
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Criminal Law – Assault with intent to do grievous bodily harm- Nature of harm is not
necessarily important – for the crime is not actual causing grievous bodily harm. The
essential element is the intention to cause serious injuries and not the actual injuries
that had been caused.
S v Namweya (CC 13/2012) [2013] NAHCMD 341(18 November 2013)
Summary: Criminal Procedure – Sentence – Murder – The accused who is a first
offender killed the deceased by stabbing her 7 times with a knife. The aggravating
factor is that the offence was premeditated – The interest of society has outweighed the
personal interest of the accused – Society expects Court to impose long term of
imprisonment – Court justified in imposing a lengthy sentence.
S v Nangolo (CA 45/2013) [2013] NAHCMD 294 (18 October 2013).
Summary: The respondent had been acquitted on a count of murder and two further
counts of attempted murder. Court finding that leave should be granted in respects of
the counts one and two – the facts appear from the judgment.
S v Schiefer (CC 17/2008) [2013] NAHCMD 263 (25 September 2013)
Summary: Law of evidence – Circumstantial evidence – Two requirements for an
inference to be drawn – (a) The inference sought to be drawn must be considered with
all the proven facts (b) The proven facts are such that they exclude every reasonable
inference from them save one sought to be drawn – Circumstantial evidence in this
matter has satisfied the legal requirements needed – Therefore an inference can be
drawn that the accused committed the murders - Criminal Procedure - Confession in
terms of s 217 of the Criminal Procedure Act - The accused has confessed to the two
murders – The confession was admitted in evidence after a trial-within-a trial - Counsel
for the accused argued that the confession should be excluded from evidence – The
Court ruled that although the confession may be excluded from evidence after it had
been admitted provisionally, but, only if evidence emerges later which justifies the
reversal of the ruling – In this matter no evidence has emerged after the confession was
ruled to be admissible that warrants a reconsideration of the ruling earlier given –
Accordingly the confession is finally admitted in evidence - The accused is accordingly
convicted of two counts of murder.
S v Schiefer (CC 17/2008) [2013] NAHCMD 299 (24 October 2013).
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Summary: Murder- Sentence. Factors to be taken into account – The accused was
convicted of double murder of his parents- At the time the accused committed these
offences he was about three months away from his 19th birthday. The accused was a
youthful offender - First offender who spent about 6 years in custody. These are factors
in his favour. The time the accused stayed in custody awaiting for his trial plays an
important role – Although, the accused is a first offender – The court cannot ignore that
two innocent lives were taken away – The accused committed serious and heinous
crimes of murder – The accused killed the deceased persons in cold-blood execution
style – He attacked the deceased persons viciously and mercilessly – Society expects
the accused person to be dealt with accordingly and be given a lengthy sentence –
Failure to which will put the administration of justice in disrepute.
S v Sobuso (CR 28-2013) [2013] NAHCMD 104 (17 April 2013)
Summary: The magistrate convicted the accused person of driving with an excessive
blood alcohol level whilst relying on an unsigned affidavit by both the deponent thereof
and the Commissioner of Oaths – Conviction and sentence set aside – Affidavit relied
on by the magistrate does not comply with the requirements of an affidavit.
S v Somseb (CC 1/2012) [2013] NAHCMD 174 (21 June 2013)
Summary: Criminal procedure – Sentence - The accused a youthful first offender of 22
years, who pleaded guilty, was convicted of murder with direct intent - He killed the
deceased by assaulting him with an arrow - He set his body alight, crushed his bones
and hid them in a cave - Although the accused was undoubtedly a youthful offender,
who pleaded guilty, his actions were evidently not consistent with actions of a person of
his age - On the contrary his actions were more consistent with those of a calculating
mature criminal mind- The accused is accordingly sentenced to 32 years’ imprisonment.
S v Tjaseua (CR 3-2013) [2013] NAHCMD 10 (22 January 2013)
Summary: The accused pleaded guilty to a charge of c/section 82(1) of Road Traffic
and Transport Act 22 of 1999, namely that he drove a motor vehicle on public road
under the influence of liquor. During the questioning in terms of section 112(1)(b) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), he stated that at the time of the incident
his driving skills were not impaired and that he drove well. The Court held that the
accused did not admit an element of the offence, namely that he had been under the
influence of liquor. The conviction and sentence were set aside and the matter remitted
to the magistrate in terms of section 312(1) to enter a plea of not guilty in terms of
section 113.
S v Tjiromongua (CR 06-2013) [2013] NAHCMD 31 (5 February 2013)
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Summary: The Court clarified the ambit and effect of Daniel v Attorney-general and
others; Peter v Attorney-general and others 2011 (1) NR 330 (HC). In that case the High
Court did not strike down any provision of the Stock Theft Act, 1990 (Act 12 of 1990)
relating to an offence where the value of the stock is less than N$500, i.e. in relation to
section 14(1)(a)(i). The applicable sentence in such a case is still imprisonment for a
period of not less than two years without the option of a fine. Furthermore, the only
sentence that may be imposed for stock theft, irrespective of whether the value is more
or less than N$500, is still only imprisonment without the option of a fine. It is therefore
not correct to state that the courts may impose ‘any’ appropriate sentence for stock
theft. The reading down of section 14(2) should also be noted. The effect is that in
cases where the offence is one of a contravention where section 14(1)(a)(i) is
applicable, i.e. where the value is less than N$500, the court is still required to consider
whether there are any substantial and compelling circumstances which justify the
imposition of a lesser offence than two years without the option of a fine.
S v Tjiveze (CR 27-2013) [2013] NAHCMD 110 (24 April 2013)
Summary: Since delivery of the judgment in Daniel v Attorney-General and others;
Peter v Attorney-General and others 2011 (1) NR 330 (HC), it is clear that section 14(2)
should only be applied in cases where the value of the stock is less than N$500. The
current legal position in relation to sentence for first offenders in terms of section 14 of
the Stock Theft Act, 12 of 1990, as amended is:
1. Cases where the value of the stock is less than N$500, i.e. ‘section
14(1)(a)(i) cases’ and the accused is a first offender
1.1 The prescribed sentence is any period of imprisonment for a period
of not less than two years without the option of a fine, but not exceeding
the normal sentence jurisdiction of the magistrate.
1.2 The court must explain section 14(2) to the accused and if satisfied
that substantial and compelling circumstances exist, enter those
circumstances on the record and may impose a lesser sentence than two
years imprisonment, which must still be a period of imprisonment.
1.3 If the court finds that there are substantial and compelling
circumstances it may impose a shorter period of imprisonment. The court
may in its discretion also wholly or partly suspend any period of
imprisonment imposed.
1.4 If the court is not satisfied that there are substantial and compelling
circumstances, it must impose a sentence of at least two years
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imprisonment without the option of a fine, but it may suspend part of the
sentence.
2. Cases where the value of the stock is N$500 or more, i.e. ‘section
14(1)(a)(ii) cases’ and the accused is a first offender
2.1 The prescribed sentence is any period of imprisonment without the
option of a fine, but not exceeding the normal sentence jurisdiction of the
magistrate.
2.2 Section 14(2) does not apply, i.e. the court is not concerned with
substantial and compelling circumstances.
2.3 The court may wholly or partly suspend the period of imprisonment.
S v Tuhandi (CR 84/2013) [2013] NAHCMD 367 (02 December 2013).
Summary: The two accused were charged and convicted on two counts: hunting a
warthog at Farm Ouparakane without a permit on the first count and theft of the same
warthog at the same farm on the second count. The matter was disposed of in terms of
section 112(1)(b) of Act 51 of 1977 and were sentenced accordingly on each count.
Held: It is a duplication of charges to convict and punish an accused twice on one and
the same offence he had committed at the same time and place.
Held: In the result both conviction and sentence on the second count are set aside.
S v Waterboer (CC 16/2009) [2013] NAHCMD 148 (4 June 2013)
Summary: The accused was charged with the murder of his romantic partner by
stabbing her with a knife and assault by threat of one of the State witnesses – The
accused put up two defences namely, self-defence and intoxication and gave conflicting
versions as to the stabbing of the victim – The court found that because accused
changed his defences and gave conflicting versions this casts serious doubt on his
version and leads to unavoidable conclusion that his versions are a fabrication Accused is found to be an unreliable and untrustworthy witness – Accordingly, the
accused is found guilty of murder with direct intent read with the provisions of the
Combating of Domestic Violence Act 4 of 2003. The accused threatened the
complainant that he should give way otherwise he would stab the complainant –
Complainant believed that the accused was able to carry out his threats and released
the deceased – Court found that the accused who was armed with a knife had inspired
a belief that he was going to stab the complainant – The complainant believed that the
accused was capable of carrying out this threats of violence towards him because he
was armed at that stage and he had also stabbed the deceased – In instant case the
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test to be applied is subjective - One must have regard to the complainant’s state of
mind. The accused was found guilty of assault by threat on second count.
S v Van Rooi (CR 50/2013) [2013] NAHCMD 218 (29 July 2013)
Summary: Criminal law – Escaping from lawful custody - For an accused to be
convicted of escaping from lawful custody the State bears the onus to prove that the
accused was in lawful custody. If the court invokes the provisions of s 112 (1) (b) of Act
51 of 1977 the court should ask questions pertaining to whether the accused was in
lawful custody at the time he escaped.
S v van Wyk (CR72-2013)[2013]NAHCMD 315 (1 November 2013)
Summary: The accused charged with assault with intent to do bodily harm pleaded
guilty, questioned by the magistrate in terms section 112(1)(b) of the Criminal
Procedure Act 51 of 1977. The accused person admitted hitting the complainant with a
bottle on the left side of the face while the charge sheet alleges that the accused
stabbed complainant with the bottle on the left eye – Thus a verdict of guilty as charged
is inconsistent with the facts admitted by the accused. Further, the record of
proceedings contains facts and factors of theft and drink and drive cases. Magistrates
have a duty to keep records of proceedings they are conducting with care and proper to
reflect the correct minutes of proceedings taking place before them. Conviction and
sentence set aside due to errors and irrelevant information in the record of proceedings.
S v Waterboer (CC 16/2009) [2013] NAHCMD 159 (11 June 2013)
Summary: The accused was convicted of murder, read with the provisions of the
Combating of Domestic Violence Act 4 of 2003. Although the accused is a first offender
the matter is aggravated by the fact that the accused killed his romantic partner, he was
warned by the police to stay away from the deceased - He disregarded the police
warning and killed the deceased by stabbing her with a knife on the arm and on the
neck and left the knife stuck in her neck - The offence is extremely serious and was
executed in a cruel manner - The sentence imposed must reflect the seriousness which
the court regards any such act of violence committed against women and other
vulnerable people in our society - The accused is accordingly sentenced to 32 years’
imprisonment.
State v Aebeb (CR 53/2013) [2013] NAHCMD 243 (15 August 2013)
Summary: Three accused persons aged 19 years, 18 years and 17 years respectively
were charged with theft of N$10 000 and liquor valued at N$1500. All three of them
were unrepresented. All three accused persons pleaded guilty to the charge. A plea of
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not guilty in terms of section 113 of Ac 51 of 1977 was entered on their behalf after
questioning by the magistrate in terms of s 112(1)(b) on 12 February 2013. The case
was recalled again for plea and trial and the prosecutor withdraw the charges against
accused 2 and 3 who thereafter pleaded guilty again. After the close of states case in
respect of accused 1, the state addressed the court in terms of s 174 which was
dismissed and accused 1 was then accordingly convicted and sentenced.
In respect of accused 2 and 3, who are juveniles, pre-trial reports were read into the
record before the accused pleaded guilty. The appeal court held that the purpose of a
juvenile diversionary program is to prevent a minor accused person (especially a first
offender) not to be exposed to the criminal justice system, in short to keep such a
juvenile out of court. That is to say that where a pre-trial report of a social worker is
available, simply withdraw the charge(s) against such an accused person. In view of the
purpose of a juvenile diversionary program it is therefore not necessary at all to read a
pre-trial report into the record during criminal proceedings. Therefore once a consensus
has been reached between the prosecutor and the social worker that an accused
person should participate in a juvenile diversionary program such accused person
should not even be required to plead to a charge in court, because to do so would
defeat the purpose of the juvenile diversionary program.
With regard to the withdrawal of the charges against accused two and three after plea of
guilty, the court held that in terms of s 6 of the CPA, the prosecutor could not withdraw
the charges after a plea of guilty has already been entered. Prosecution may however
be stopped by permission of the prosecutor general. No such authority was given in this
case and the matter is left in the hands of the PG to decide whether or not to stop the
prosecution against accused two and three.
State v Ananias (CA 34/2013) [2013] NAHCMD 238 (6 August 2013) [In Chambers]
Summary: Criminal procedure – Appeal – Application for leave to appeal by the State –
To succeed applicant should state that reasonable possibility exists that an appeal court
would reach a different conclusion from that reached by the trial court and must also
clearly indicate reasonable prospects of success on appeal – In instant case court found
serious misdirections on the law and the facts on the part of the trial learned magistrate
on material issues being the learned magistrate’s wrong application of the novus actus
interveniens principle and his failure to apply the principle in S v Shivute 1991 NR 123
(HC) that exculpatory statements in s 115 (Act 51 of 1977) statements must (as a
general rule) be repeated by the accused under oath in the witness-stand for them to
have any value in favour of the accused – Consequently, the court found that an appeal
court may come to a different conclusion from that of the trial court and there are
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prospects of success on appeal – Accordingly, the court granted the State’s application
for leave to appeal.
State v Aribeb (CR 60/2013) [2013] NAHCMD 273 (04 October 2013)
Summary: A magistrate who intends mero motu to recuse himself or herself may only
do so in certain circumstances for instance where it appears that the judicial officer has
an interest in the case or where there is some other reasonable ground for believing
that there is a likelihood of bias on the part of the judicial officer. In such an instance the
magistrate must afford the parties ie. the prosecutor and the accused (or his or her legal
representative) an opportunity to address the court on the issue of the intended recusal
by the magistrate. Where the record of proceedings disappeared before a conviction the
magistrate and/or clerk of the court as part of their administrative duties must compile
afresh the record of the completed part of the trial in any manner which is fair and
reliable as possible – The magistrate may thereafter in terms of s 186 of Act 51 of 1977
recall any witness to give evidence in respect of the correctness of the reconstructed
record and such a witness will then be subjected to cross-examination on the
correctness of the record and on the contents of his or her evidence against the
accused – Thereafter the trial takes its normal course. A court of review may not in such
a case order that proceedings should start de novo.
State v De Jay (CC 4/2010) [2013] NAHCMD 251 (16 August 2013)
Summary: Murder, read with the provisions of the Combating of Domestic Violence Act,
Act 4 of 2003 and Defeating the course of justice. Trial within a trial: Admissibility as
evidence, the letter the accused wrote to Det. Chief Insp. Phillander and the confession
he made to the Magistrate. He alleges these statements were preceded by assaults and
threats perpetrated on him by police officers and should therefore be excluded as
required by Articles 8 (2)(b) and 12 of the Constitution.
Held: The accused, a retired economics, business studies and accounting teacher, a
degree holder and a Master’s degree student, at the time of the arrest should not have
found it difficult and fail to tell the Magistrate that he has been assaulted or threatened.
He should also not have found any difficulties to tell the same to the two doctors who
attended and examined him at different occasions. Any of the two doctors would easily
have examined and recorded his findings such as injuries; wounds; swellings; cuts;
while still fresh and related to the accused’s arrest and or detention on this matter.
Held: It is my view that even a person who has never been to school could not find it
difficult and fail to tell the Magistrate, or the doctor where he is injured and feels pain
and how these came about.
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Held: The accused’s version that it was the police who handcuffed, blindfolded and
assaulted him with a plastic shambok resulting in bruises on his back and swollen left
hand is rejected as false.
Held: He instead freely and voluntarily made these documents
Held: However, the omission on the part of the three officers Chief Insp. Phillander, the
C.I.D. Unit Com. Insp. Groenewald, Warrant Officer Kotungondo to inform the
undefended accused of his right not to incriminate himself immediately (prior) to him
starting to write the letter renders that document inadmissible as evidence before this
court.
State v Ditshabue (CC 26/2012) [2013] NAHCMD 261 (20 September 2013)
Summary: Accused was married to the deceased and were living next to each other
at Gobabis. Their relationship turned sour. The deceased was stabbed to death, but
nobody witnessed this incident. The deceased’s daughter and her boyfriend discovered
her death and found accused kneeling next to the body. Upon seeing this, accused
stabbed himself with a homemade knife and he fell down. These two witnesses ran
away. The Police attended to the scene of crime later. In order to secure a conviction
based on circumstantial evidence, the court should draw an inference. Before such an
inference is drawn, the court must be satisfied that:
1) The inference sought to be drawn is consistent with all proved facts, if it is not, it
cannot be drawn and
2) The proved facts should be such that they exclude every reasonable inference
from them, save the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn is
correct.
A prima facie case arises where the State has adduced sufficient evidence which
establishes a fact or raises a presumption which if not disproved or rebutted obliges the
court to put accused on his defence. Minor contradictions on the State witnesses do not
necessarily affect credibility. The historical and educational background of witnesses
should be seriously considered when evidence is placed before the court. Mere
omission on the part of the category of these members of society does not necessarily
indicate dishonesty.
State v Farmer (CC 6/2010) [2013] NAHCMD 95(10 April 2013)
Summary: The accused was charged with murder, possession of a firearm without a
licence, and ammunition. He pleaded not guilty. On the murder charge he explained that
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whilst in the process of handing the firearm to the deceased as requested by her for
safekeeping, a shot went off accidentally which killed the deceased. A tragic accident.
On the other charges he explained that he purchased the firearm from a certain Kwere
and he believed that Kwere was the lawful owner and Kwere agreed to help him to
transfer the firearm in his name.
Held, the behavior of the accused immediately after the shooting incident was not
consistent with somebody who shot the mother of his child by accident, (he
threatened the witnesses who came to the scene not to come closer, he did not
tell them that the shot went off by accident.
Held, plea explanation on murder not making sense, why would the deceased have
insisted on the firearm being handed to her whereas there was no relationship
anymore, why telling the deceased about the firearm on that fateful night that
accused already had purchased a month ago.
Held, admissions to witness how he shot the deceased done freely, voluntarily and
whilst in his sober senses
Held, further accused had the firearm had ammunition in his possession for more than
a month and failed to have registered in his name.
Held, accused convicted as charged.
State v Farmer (CC 06/2010) [2013] 138 NAHCMD (23 MAY 2013)
Summary: Accused was convicted of murder his ex girlfriend. Accused first offender
and has not shown any remorse. Domestic relationship — Aggravating — sentenced to
35 years on murder and 1 year on possession of a firearm without a licence and
ammunition. One year sentence ordered to run concurrently with the 35 years sentence.
State v Goraseb (CR 78-2013) [2013] NAHCMD 336 (15 November 2013).
Summary: In this matter, after the magistrate had convicted and sentenced the
accused to eighteen (18) months imprisonment, he extended accused’s bail money
pending the outcome of the review in terms of section 302 of the Criminal Procedure
Act, 51 of 1977. Section 302 does not provide for such procedure – magistrate was
wrong to extend the accused’s bail and bail money pending the outcome of the review –
The order of the magistrate to extend the bail and bail money inappropriate and an
illegality and set aside.
State v Jackson & 2 Others (CC 03/2011) [2013] NAHCMD 193 (11 July 2013)
Summary: Where two or more perpetrators participate in a crime the state may rely on
a doctrine of common purpose – It is not necessary to prove prior agreement or causal
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connection between the conduct of each accused and the death of the deceased –
Conduct of one accused is imputed to the others and accused can still be held liable –
however, the State must prove necessary prerequisites – namely:
(a) The accused must have been present at the scene where violence was being
committed;
(b) He must have been aware of the assault being perpetrated;
(c) He must have intended to make common cause with those who were actually
perpetrating the assault;
(d) He must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of association with the
conduct of the others;
(e) He must have had the requisite mens rea; so in respect of the killing of the
deceased, he must have intended them to be killed, or he must have foreseen
the possibility of their being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.
Accordingly accused persons are found guilty on the basis of the doctrine of common
purpose.
State v Kambahe (CR 79-2013) [2013] NAHCMD 337 (15 November 2013).
Summary: The accused person who was convicted of the unlawful possession of an
arm in contravention of the Arms and Ammunition Act, 1996 (Act 7 of 1996), was
declared unfit to possess an arm for a period of 12 months. On review, the period of 12
months was substituted with a period of 24 months.
State v Katzao (CC 25/2010) [2013] NAHCMD 87 (4 April 2013)
Summary: Sentence-Accused convicted of 2 counts of kidnapping and 3 counts of
rape. Seriousness of the crimes reiterated. In the case of rape - No substantial and
compelling circumstances shown. Accused sentenced to 1 year on the kidnapping
charges and sentenced to 15, 10 and 10 years on each of the rape counts-Effective 35
years imprisonment.
State v Kauaria (CR 9/2013) [2013] NAHCMD 35 (12 February 2013)
Summary: The accused pleaded guilty to two counts of theft. The first count was
finalised in terms of section 112 (1) (b) whilst the second count was finalised in terms of
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section 112 (1) (a) of Act 51 of 1977 as amended by Act 13 of 2010. The court a quo
took the two counts together for purpose of sentence and imposed a term of
imprisonment wholly suspended without the option of a fine in respect of the 2nd count
which was dealt with in terms of s 112 (1) (a) because the court cannot impose a term
of imprisonment without the option of a fine in terms of this provision. Sentence
accordingly set aside.
State v Kgosiemang (CR 56/2013) [2013] NAHCMD 245 (15 August 2013)
Summary: The Competent sentence in terms of the Road Traffic and Transport Act 22
of 1999 is the prescribed maximum penalty of a fine not exceeding N$4000 or
imprisonment for a period not exceeding 1 year or both such fine and imprisonment. In
this case, the accused was convicted in the Karasburg Magistrate’s Court of displaying
a licence number not applicable to the vehicle in contravention of the provisions of Road
Traffic Regulation 48(5)(a) of Government Notice 53 of 2001 read with certain
provisions of the Road Traffic and Transport Act 22 of 1999 and sentenced to a fine of
N$12 000.00 or in default 24 months imprisonment.
Held: In terms of s 304(2)(c) of Act 51 of 1977 a review court inter alia may confirm,
reduce, alter or set aside the sentence or any order of the magistrate’s court, may
impose such sentence as the magistrate’s court ought to have given, and make any
order connected with the proceeding as the court seems likely to promote the ends of
justice. Sentence was accordingly substituted.
State v Kido (CC 3/2013) [2013] NAHCMD 253 (10 September 2013)
Summary: Criminal Procedure – Sentence – Accused convicted of murder – theft –
Offences of assault with intent to do grievous bodily harm and assault by threat
committed three hours after the first two crimes – Such evidencing different intentions –
Accordingly sentence on theft ordered to run concurrently with sentence on murder
count while sentence on assault by threat ordered to run concurrently with sentence on
assault with intent to do grievous bodily harm count.
State v Muranda (CR 51/2013) [2013] NAHCMD 237 (7 August 2013)
Summary: Review – Special review – Accused pleaded guilty to one count of assault
with intent to do grievous bodily harm and was convicted accordingly – Before sentence
the learned magistrate court ordered the accused to undergo psychiatric evaluation –
The psychiatric report indicates that at the time of the commission of the offence the
accused was suffering from a mental illness and as a result was unable to appreciation
the wrongfulness of his action and to act in accordance with such appreciation – Acting
upon the report the trial court applied s 9 of the Mental Health Act 18 of 1973 and
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declared accused to be a civil patient – Court found that the trial court applied the wrong
law – The court held that the trial court should have applied s 78(6) of the Criminal
Procedure Act 51 of 1977 – Accordingly, the court remitted the case to the learned
magistrate for her to apply s 78(6) of Act 51 of 1977.
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 108 (18 APRIL 2013)
Summary: Criminal law—The accused was charged with murder and robbery with
aggravating circumstance. He pleaded not guilty and raised a defence of mental illness
(psychotic) as a result of many years of abuse of marijuana. He objected to a
confession being admitted on the basis that he was not in his sound and sober senses
and that his rights to legal representation was not explained.
Held, that he was in his sound and sober senses when the confession was recorded
and that his right to legal aid was explained.
Held, further that at the time of the commission of the crimes he was suffering from
diminished responsibility which is not a defence, but a factor to be taken into
account when sentencing.
Held, further that the deceased was possible dead by the time the money was stolen
from her and therefore no evidence of robbery.
Held, accused convicted of murder with dolus directus and theft.
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 167 (18 June 2013)
Summary: The accused was convicted of murder with dolus directus — Court found
that he acted with diminished criminal responsibility which is a mitigating factor. The
murder was premeditated; the accused has not shown any remorse first offender and
spent 6½ years in custody. The accused is the biological son of the deceased and that
is aggravating. Sentenced to 40 years imprisonment.
State v Pedro (CR 59/2013) [2013] NAHCMD 252 (06 September 2013)
Summary: An accused pleaded guilty to theft of 16 (2kg each) bags of onion valued at
N$1 500.00. He told the Court they were thrown away and he picked them up to try and
sell them to sustain himself and his family.
Held: Acquiring thrown away property puts the elements of theft into question because
it suggests that the owner thereof no longer intends to use it thereby disconnecting his
ownership from it.
Held: The Court erred in pronouncing itself as satisfied when the allegation that the
onions were thrown away has not been discounted at all.
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Held: In the result the offence of theft was not established against the accused, and
both conviction and sentence are set aside.
State v Pieters (CR 58/2013) [2013] NAHCMD 272 (04 October 2013)
Summary: Some of the objectives of questioning an accused person in terms of the
provisions of s112(1)(b) of Act 51 of 1977 which must be borne in mind by magistrates
are the following:
(a) to protect an accused, especially the unrepresented or illiterate accused,
against an ill-considered plea of guilty which can result in prejudice to such an
accused person;
(b) firstly to establish the factual basis for the plea of guilty, and secondly, the
legal basis for such a plea – In the first phase of the enquiry, the admissions
made may not be added to by other means such as a process of inferential
reasoning – The second phase amounts essentially to a conclusion of law based
on the admissions;
(c) the section must be applied with care and circumspection and on the basis
that where an accused person’s responses to the questioning suggest a possible
defence or leave room for a reasonable explanation other than the accused’s
guilt, a plea of not guilty should be entered;
(d) it is vitally important that the distinction between facts and conclusions drawn
therefrom be born in mind when s 112(1)(b) is invoked especially in cases in
which generic legal concepts such as reasonableness, negligence and
recklessness constitute an essential ingredient of the offence charged.
There are also a number of basic principles governing the questioning in terms of s
112(1)(b) amongst others:
(i) section 112(1)(b) does not entitle the court to cross-examine or to badger an
accused person;
(ii) a court must only establish the attitude of the accused in respect of each
allegation in the charge sheet;
(iii) it is not the function of the court to try to persuade an accused person that
he/she is wrong if he or she denies an allegation;
(iv) a court is not entitled to ignore the accused’s denial because it thinks that it is
not well-founded;
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(v) an accused person need not to justify or substantiate such denial;
(vi) an accused must not be nudged to admit an allegation in the charge sheet;
and
(vii) a court must bear in mind the right of an accused person in terms of our
Constitution to be presumed innocent as well as the right to a fair trial before an
independent and impartial court.
State v Solomon (CR 25/2013) [2013] NAHCMD 94 (9 April 2013).
Summary: Criminal procedure – Sentence – Formulation of sentence not only unclear
but also bad in law – Trial court suspending part of the period of imprisonment for two
years ‘on condition that the accused is not convicted during period of suspension’ and
the other part also for two years ‘on condition accused completes 400 hrs of community
service …’ – Court set aside the sentence and put another sentence in its place: Six
months’ imprisonment; wholly suspended for four years on condition that –
(a) the accused performs 400 hours of community service at Ngonga Primary
School under the supervision of Mrs E N Peleko. The community service starts
on 28 January 2013 and it is performed every day (except a public holiday) from
08h00 to 13h00; and
(b) the accused is not convicted of the offence of theft, committed during the
period of suspension.
State v Tilonen (CR 52/2013) [2013] NAHCMD 242 (15 August 2013)
Summary: The accused in this case was convicted and sentenced as follows:
‘4 (four) years imprisonment of which 2 (two) years is suspended for 5 years on
the following condition;
(a) that accused is not convicted of any offence involving theft committed
during the period of suspension.
(b) that the accused compensates the complainant Magdalena Jesaya of Erf
5594 Hans Dietrich Street, Donkerhoek, Windhoek, through the Clerk of
the Court, Ondangwa the sum of N$41 672.81 on or before 31 December
2003.’
Held that the suspended sentence is defective as it does not reflect the crime of theft.
Suspended sentence reformulated to refer that the accused is sentenced on
condition that the accused is not convicted of the offence of fraud during the
period of suspension.
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State v Titsol (CC 05/2009) [2013] NAHCMD 183 (28 June 2013)
Summary: Applicant was convicted of culpable homicide. As a police officer, applicant
failed to take the deceased who sustained injuries whilst in detention to the hospital for
medical treatment. Court found that the applicant was negligent and convicted him of
culpable homicide. Disenchanted with the conviction, applicant launched on application
for leave to appeal against conviction.
Held, that there are no prospects of success on appeal.
Held further, that there is no possibility that another court may come to a different
conclusion. Application dismissed.
State v Tjapa (CC 9/2011) [2013] NAHCMD 225 (30 July 2013)
Summary: The accused was charged with robbery with aggravating circumstances, 3
counts of attempted murder, negligent discharge or handling of a firearm and
possession of a firearm and ammunition without a licence. He denied all the charges.
The witnesses positively identified him as the one who entered the supermarket on the
date of the robbery wielding a firearm, ordering people to lie down, threatened,
assaulted and pointed a firearm at some of the staff members. They testified that he
then ordered them to put the money from the safe and the tills in the money bags and
he then walked out of the shop carrying the bags and the revolver in his hands.
Held, that the accused was positively identified by the witness as there was sufficient
illumination in the shop and that some witnesses saw his face at a close distance when
he pointed the firearm at them and therefore he was positively identified by the
witnesses.
Held further that he was the one who ordered the witness to put the money in the
bags and he then left with the bags and the revolver in his hands, and that the
bags and the revolver were found in the pipe and the riverbed where he was
found.
Held further that, the evidence sustains a conviction of robbery with aggravating
circumstances.
Held further that, when the police officers pursued him after he left the shop and
carrying the bags and a revolver he turned around, aimed at the police officers
and fired 3 shots at them he thus had the intention to kill them and therefore he is
guilty of attempted murder.
Held further that on a charge of negligent discharge or handling of a firearm, it was
proven that the accused negligently discharged the firearm whilst being pursued
by the police and members of the public and by so doing endangered the lives or
limbs of the witnesses and is therefore guilty as charged. 3
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Held further that, the accused admitted that he did not possess a firearm licence and
therefore when he possessed the firearm and the ammunition he did so
unlawfully and is therefore guilty as charged.
State v Tsowaseb (CR 55/2013) [2013] NAHCMD 244 (15 August 2013)
Summary: The accused in this case was convicted of assault and sentenced as
follows:
‘N$3 000.00 or 20 months imprisonment of which N$1 500.00 or 10 months
imprisonment are suspended for a period of 3 years on condition that the
accused is not convicted of assault, assault with intent to do grievous bodily harm
or any offence under Act 4 of 2003 committed during the period of suspension.’
Held that the suspended sentence is too wide and onerous and was substituted to
read that: ‘the accused is not convicted of contravening section 2 of Act 4 of
2003’.
State v Uri-Khob (CC 25-2010) [2012] NAHCMD 78 (26 MARCH 2013)
Summary: The accused was charged with murder and assault with intend to do
grievous bodily harm. He pleaded guilty, but the state did not accept the plea. A plea of
not guilty was entered. The accused beat the deceased with an iron pipe and when she
fled into the house, he pursued her and stabbed her eight times. The cause of death
was an incised neck injury. Complaint Gaises tried to stop the beating and in the
process hit on the lip with the piece of iron pipe. Held, from the conduct of the accused,
he had direct intention to cause the death of the deceased. Held, although Gaises was
not part of the fight, the accused foresaw the possibility that if he continues to beat the
deceased he may hit Gaises and he reconciled himself with that possibility, he is
therefore guilty of common assault.
Tangeni v The State (CA 85/2010) [2013] NAHCNLD 16 (15 April 2013)
Summary: Appellants were convicted on a charge of robbery, the court having been
satisfied that the appellants were duly identified by several witnesses. On appeal the
appellants attacked the conclusion reached by the trial court as far as it concerns their
identification. On appeal the court found no irregularity or misdirection apparent from the
record, thus there is no basis on which the findings of credibility by the trial court can be
rejected. The court restated the principle that the function to decide on acceptance or
rejection of evidence falls primarily within the domain of the trial court.
The State v Awala (CR 06/2013) [2013] NAHCNLD 14 (26 March 2012)
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Summary: The accused was convicted in the magistrate’s court of malicious damage to
property (count 1) after questioning in terms of section 112(1)(b) and of assault by
threat (count 2) in terms of section 112(1)(a). The answers given by the accused in
response to questions by the magistrate in terms of s 112(b) on count 1 alluded to a
possible defence of incapacity due to intoxication. The date, place and complainant in
count 2 were the same as in count 1. The magistrate, not having been alive to the fact
that the accused was raising a defence in respect of count 1, did not clarify either from
the accused himself or the prosecutor whether these incidents were related. A strong
possibility therefore exists that the same defence would have been raised by the
accused in respect of count 2 before sentencing. The magistrate would have been
entitled under those circumstances to record a plea of not guilty despite the fact that the
accused had been convicted after his plea in terms of s 112(1)(a). The provisions of s
113(1) equally applies to a conviction in terms of s 112(1)(a). Conviction of both counts
found not to be in accordance with justice and set aside. The accused was sentenced to
serve one sentence concurrently. Such a sentence is not in accordance with justice.
The matter remitted to the magistrate in terms of s 312 and directed to proceed on both
counts in accordance with the provisions of s 113(1).
The State v Diergaardt (CR 13/2013) [2013] NAHCMD 48 (26 February 2013)
Summary: The accused was charged with two counts namely: Assault with intent to do
grievous bodily harm and indecent assault. He pleaded guilty to the 1st count of assault
with intent to do grievous bodily harm and he was convicted as charged. In respect of
the 2nd count he pleaded not guilty. The magistrate invoked s 112 1 (b) of the Criminal
Procedure Act 51 of 1977 in respect of the 1st count and convicted the accused as
charged. The accused raised a defence that he only assaulted the complainant with an
open hand. The court was supposed to enter a plea of not guilty and not to proceed
further to question the accused. The conviction is set aside.
The State v Fillemon (CR 04/2013) [2013] NAHCNLD 12 (15 March 2013)
Summary: The accused appeared on a warrant of arrest before a magistrate who held
the view that the sentence was not proper. The matter was remitted for special review in
terms of s 304(4). The court held that the conviction and sentence contained in
paragraph 1 of the sentence was in accordance with justice and it was accordingly
confirmed. Paragraphs 2-4 of the sentence were found not to be in order and were set
aside.
The State v Frey (CR 19/2013) [2013] NAHCMD 60 (6 March 2013)
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Summary: The court cannot impose a term of imprisonment without the option of a fine
if the matter is dealt with in terms of s 112 (1) (a). Failure to impose a term of
imprisonment not coupled by a fine, the sentence is incompetent.
The State v Ganeb (CR 47/2013) [2013] NAHCMD 220 (29 July 2013)
Summary: In this case, the accused was convicted of the offence of Housebreaking
with the intent to commit a crime unknown to the State but on his own admission, was
responsible for breaking into the house and running away when the alarm system went
off. He admitted that his intention was to steal the money but did however not take the
money. The evidence shows that he admits to all the elements of Housebreaking with
intent to steal. Conviction accordingly corrected.
The State v Gariseb and Another (CC 16/2012) [2013] NAHCMD 25 (30 January 2013)
Summary: Both accused persons were charged with two counts namely: Murder and
housebreaking with intent to rob and robbery with aggravating circumstances. Each
accused made an admission of pointing out and a confession. The court held a trialwithin-a-trial after the defence objected to the production of the statements on the
grounds that the statements were not made freely and voluntarily. Both Counsel
contended further that the accused persons were not properly informed of their rights to
legal representation including the right to apply for legal aid.
Held: The State bears the onus of proof to prove that the admissions or confessions
made by the accused persons were made freely and voluntarily without undue
influence. The standard of proof required is that of beyond a reasonable doubt.
The state should also prove that the accused made those admissions when he
was in his sober and sound senses. In addition, the court must be satisfied that
the rights of the accused persons had been adequately explained, including the
right of accused to apply for legal aid. A failure to do so may render the
statement to be inadmissible.
Held: The admissibility of confessions should meet the requirements of section 217 of
Act 51 of 1977 and admissibility of admissions should meet the requirements of
section 218 of the same Act.
Held; Article 12 of the Namibian Constitution provides for rights concerning a fair trial –
Article 12 (1) (f) in particular provides for the right against self- incrimination and
the right to have evidence obtained in violation of Article 8 (2) (b) to be excluded.
A police officer who took a statement for an accused person proceeded to take a
confession despite the fact that the accused was assaulted during his arrest. The
accused gave a statement about five days from the time of his arrest. Assault
marks were visible. The statement cannot be said to be free and voluntary, the
possibility that accused was still instilled with fear cannot be excluded.
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Held; Although the police officers who took statements explained the right to legal
representation, they have failed to explain to the accused the right to apply for
legal aid. Although the Constitution did not provide expressly or specifically for
the right to apply for legal aid, Article 12 provides for a fair trial which includes the
right to legal representation and the right against self incrimination. Failure to
explain rights to apply for legal aid may render the statements to be inadmissible.
The statements were taken in violation of Article 12 of the Constitution and the
confessions and admissions are ruled to be inadmissible.
The State v Gawanab (CR 46/2013) [2013] NAHCMD 219 (29 July 2013)
Summary: Where the accused have been referred for observation in terms of s 77 of
the Criminal Procedure Act, 1977 and the report shows that the accused was mentally ill
to the extent that he was unable to appreciate the wrongfulness of his actions, the
Magistrate must proceed in terms of s 78 of Act 51 of 1977.
The State v Goabab (CC 14/2008) [2013] NAHCMD 122 (10 May 2013)
Summary: The accused had been convicted of having contravened s 43(1) of the AntiCorruption Act 8 of 2003, ie being public officers who had used their respective
positions corruptly to effect payment from State Revenue for a private debt of accused
1. The accused betrayed a position of trust being employed in senior government
positions. Accused 1 however had disclosed the fact that the payment was for a private
debt to subordinates and had repaid the full amount involved which fact was found to
have lessened his moral blameworthiness. Both accused are first offenders. The role
accused 2 played warranted differential treatment. The court was of the view that a
wholly suspended sentence would be appropriate.
The State v Haufiku (CC 16/2012) [2013] NAHCNLD 49 (24 September 2013)
Summary: The accused objected to the admissibility of verbal admissions he allegedly
made on the ground that his constitutional right to a fair trial has been violated. The
police officer’s evidence in respect of the circumstances was not corroborated by entries
in the occurrence book and the court accepted the account of the accused testimony
which was probable and corroborated by entries in the occurrence book. The admitted
failure to explain the accused’s right to legal aid led to the exclusion of the warning
statement. The accused objected to the admission of the confession on the ground that
he was assaulted by three police officers. The pro forma warning statement as well as
the pro forma confession recorded an injury to the ear of the accused. The magistrate
merely recorded that the accused informed him that he was assaulted by a police officer
and he did not further enquire into the circumstances of the assault or the
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circumstances which led to the accused wanting to make a confession. The court held
that the State failed to prove the requirements for the admission of the confession.
The State v Hauwanga (CR 11/2013) [2013] NAHCNLD 23 (22 April 2013)
Summary: The accused was wrongly charged and convicted of ill-treatment or
abandonment of a child or infant in contravention of Act 74 of 1983, which Act is not
applicable in Namibia. The accused should have been charged with a contravention of s
18 (1) of the Children’s Act 33 of 1960. On review the court was satisfied that the
description of the act alleged to have been committed by the accused (as set out in the
charge), in material respects, corresponds with the provisions set out in subsections (1)
and (2) of s 18, and that the accused fully realised the case she had to meet. The error
made by the prosecution to have charged the accused under the wrong (South African)
Act is not fatal to the conviction and it would be in the interest of justice to substitute the
charge. The substitution and subsequent conviction of the accused is not prejudicial to
the accused’s defence. The circumstances of the case are such that there is reason to
believe that the minor children of the accused may either be neglected and left destitute
and as such be children in need of care after the imposition of a custodial sentence. A
social welfare report in the circumstances of this case was required, which would
equally have placed the court in a much better position when sentencing.
The State v Hendimbi (CR 18/2013) [2013] NAHCMD 91 (09 April 2013)
Summary: The accused was convicted of being an accessory of after the fact on his
plea of guilty to a charge of housebreaking with intent to steal and the crime of theft.
During the court’s questioning pursuant to the provisions of s 112 (1) (b) of Act 51 of
1977 the accused explained that he found items placed in front of a house by people
who ran away when they saw him approaching. He further explained that he took the
items and wanted to take them for himself. As he was walking home people in a taxi
approached him and claimed that the items were theirs, he asked them to bring the
owner for the owner to identify the items. The people in the taxi followed him as he
walked home. He later decided to abandon the items and go home.
Held that the conviction of the accused of being an accessory after the fact to
housebreaking with intent to steal and the crime of theft is wrong and is set
aside.
Held further that the answers which the accused gave to the magistrate in pursuance
to the questioning in terms of section 112 (1) (b) of Act 51 of 1977 reveal that the
accused appropriated the items (although he later abandoned the items) with the
intention to permanently deprive the owners of those items. That the elements of
the crime of theft have been proven.
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The State v Herunga (CA 67/2012) [2013] NAHCNLD 32 (24 May 2013)
Summary: The Prosecutor-General applied for leaved to appeal against a sentence
imposed by the Magistrate’s Court in terms of section 310 of the Criminal Procedure
Act, 51 of 1977 as amended. The accused were convicted of robbery and sentenced to
pay a fine of N$800 or eight (8) months imprisonment. The application for leave to
appeal was lodged out of time and no explanation was given except to say that the
representative of Prosecutor-General had resigned. A further delay occurred after the
application was lodged. It was evident from correspondence that the ProsecutorGeneral’s office adopted an incorrect procedure and an inordinate delay occurred in the
appointment of a date for hearing. The court held that such an application may be
enrolled on any date as it is considered by a single judge in chambers. Although the
court held that there are reasonable prospects that the appeal may succeed, it was not
decisive. In this case the factors weighed against this court granting an indulgence to
the State. The application is dismissed and the matter struck from the roll.
The State v Hilongwa (CR 05/2013) [2013] NAHCNLD 15 (27 March 2013)
Summary: The accused admitted that he was driving a motor vehicle under the
influence of alcohol on a public road. During questioning in terms of section 112(1)(b)
he disputed the accuracy of the device which showed that the concentration of alcohol
in the specimen of his breath exceeded the legal limit. A plea of not guilty was recorded
in terms of section 113 (1). The State led evidence to prove that the device was
accurate but failed to prove that the test was done within two hours after the alleged
offence. The conviction and sentence are set aside on review.
The State v Iilonga (CC 17/2012) [2013] NAHCNLD 06 (25 February 2013)
Summary: The accused was convicted on his plea of guilty for having raped the
complainant aged 8 years. He is 21 years old, a first offender and progressed at school
up to grade 5 before dropping out. Complainant was coming from school on her way
home when forcibly overpowered and raped by the accused. Serious injuries were
inflicted to the genitalia which required medical intervention. Court found that despite
the presence of substantial circumstances these, when considered together with all the
circumstances and aggravating factors, are not compelling. The court thus not entitled
to impose a lesser sentence. On the contrary, the facts of the case dictate that a
sentence above the prescribed minimum sentence be imposed. Accused sentenced to
20 years’ imprisonment, partly suspended.
The State v Iyambo (CA 25/2013) [2013] NAHCNLD 42 (2 May 2013)
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Summary: A notice of appeal against a sentence of 24 months imprisonment lodged
more than 3 years out of time. Wholly inadequate explanation provided. Furthermore no
prospects of success. Condonation for late filing of notice of appeal refused.
The State v Kauima (CC 07/2011) [2013] NAHCNLD 35 (20 June 2013)
Summary: The accused had raped the complainant who was 4 years and 11 months
old at the time by having inserted his penis into her anus. Although the court could not
conclude from the evidence that the complainant suffered permanent injuries the court
took into consideration that the complainant had suffered injuries at the time and
experienced excruciating pain when the accused raped her. The accused showed no
sign of remorse. The accused was 18 years old at the time and was a first offender. He
spent 2 years and 7 months in custody awaiting the finalisation of the trial. The court
held that his youthfulness, the fact that he is a first offender and the period detained are
substantial and compelling. The court however, in view of the gravity of the offence and
the legitimate expectations of society deemed it appropriate to deviate marginally from
the prescribed minimum sentence. The accused sentenced to 13 years’ imprisonment.
The State v Kandjou (CR 48/2013) [2013] NAHCMD 221 (29 July 2013)
Summary: Accused in this case was correctly convicted of Malicious damage to
property and sentence to a period of 3 months of which the period was wholly
suspended on condition that he is not accused of theft during the suspended period.
Court ractified the sentence and substituted with a suspended sentence on condition
that the accused is not convicted of Malicious damage to property committed during the
period of suspension.
The State v Kangondjo (CR 35/2012) [2013] NAHCMD 153 (7 June 2013)
Summary: The accused convicted of theft was sentenced to pay a fine of N$1000.00
or 6 months imprisonment wholly suspended on condition accused renders community
service in terms of section 297(1)(b) read with subsection 1(a)(i)(cc) of the Criminal
Procedure Act 51 of 1977 – Sentence incomplete and set aside on review.
The State v Kapolo (CC 05/2012) [2013] NAHCNLD 28 (16 May 2013)
Summary: The accused was charged with murder read with the provisions of the
Combating of Domestic Violence Act, 8 of 2003 and defeating or obstructing the course
of justice in that she killed her boyfriend and with a stick and thereafter: omitted the
mention to the police that she assaulted the deceased; and covered a blood stain which
was discovered outside her homestead with sand and a log. The deceased died of poly
blunt trauma and the medical evidence proved that it was more than twice. The only
witness to the actual assault on the deceased was the accused and the State relied on
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circumstantial evidence. The accused raised private defense as a defense and admitted
to having hit the deceased twice with a stick. The Evidence not in dispute gave a
background of domestic violence and general aggressive behavior of the deceased.
The deceased visited the homestead of the accused where he was requested to leave.
He persisted in being verbally abusing the accused. Evidence was adduced that he had
a walking stick with him. Although the accused was found not to be a credible witness it
was found that her version that the accused was trying to re-enter the homestead after
initially leaving it and using his walking stick in a threatening manner is reasonably
possibly true. The court however found that she had exceeded the bounds of what was
reasonably necessary to ward off the unlawful attack when she went outside her
homestead to continue hitting the deceased multiple times fracturing 8 ribs on his right
side and 3 on left and lacerating his right kidney and descending aorta. The court held
further that the accused by launching the second attack by striking out at the deceased
multiple times ought to have foreseen that her actions might result in death, and
therefore, by failing to appreciate that, she was negligent and is thus guilty of culpable
homicide which is a competent verdict on a charge of murder.
The accused’s written statement omitted an admission that she assaulted the deceased
– This was not proven by the witnesses for the State and the court held that sanctioning
such omission would be setting a precedent for violation of right of an accused not to
incriminate herself. The State relied on circumstantial evidence for to prove that
accused concealed a blood spot where the assault was perpetrated. The court found
that the proven facts do not justify a conclusion that the accused committed the offence.
The accused was according found not guilty on charge of defeating or obstructing the
course of justice.
The State v Kuaima (CC 07/2011) [2013] NAHCNLD 07 (26 February 2013)
Summary: The complainant who was 3 years and 11 months old gave direct evidence
that the accused who was 19 at the time and in a domestic relationship as envisioned
by s 3(1)(e)(i) of the Combating of Domestic Violence Act, 4 of 2003, had raped her by
inserting his penis into her buttocks. In view of material contradictions between her
evidence and other State witnesses the court could not rely on her evidence. Her
guardian, the accused brother and medical doctor gave circumstantial evidence. The
guardian and brother of accused saw the accused in the immediate vicinity where the
complainant was found after they heard her screaming. The court was satisfied that the
accused was properly identified. The accused gave untruthful evidence of his
whereabouts at the material time. The court, by inferential reasoning concluded that it
was the accused was responsible for causing complainant to scream and leaving her
with sperm like substance running down her legs. The latter fact and the medical
evidence were found to have been consistent with the complainant having been raped
by the insertion of his penis into her anus. The only reasonable inference drawn from
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the proven facts was that the accused had raped the complainant by inserting his penis
into the complainant’s anus. The accused according convicted of the offence he was
charged with.
The State v Kuhatumwa (CR 03/2013) [2013] NAHCNLD 11 (07 March 2013)
Summary: The accused was convicted in terms of s 112 (1)(a) on his plea of guilty on a
charge of assault (by threat). The charge was defective in respect of the date in that the
month and year was omitted. The court could not have convicted the accused on his
plea of guilty on a defective charge. Conviction and sentence set aside.
The State v Kahuure (CR 44 /2012) [2013] NAHCNLD 211 (24 July 2013)
Summary: The accused was convicted of theft and sentenced as follows:
‘Fined N$800.00 (eight hundred Namibian dollars) of which N$800.00 (eight hundred
Namibian dollars) is suspended for a period of 3 (three) years on the following
condition:
1. That the accused is not convicted of theft or attempted theft, committed during
the period of suspension.’
Or
3 (three) month’s imprisonment of which 3 (three) months is suspended for a period
of 3 (three) years on the following condition:
1. That the accused is not convicted of theft or attempted theft, committed during
the period of suspension.
Held, that the sentence is confusing, not in accordance with the law and cannot be
allowed to stand. Substituted to read as follows:
‘Fined N$800.00(Eight Hundred Namibian Dollars) or in default of payment 3 months
imprisonment wholly suspended for a period of 3 years on condition that the
accused is not convicted of theft or attempted theft committed during the period of
suspension.’
The State v Kamutushi (CC 08/2012) [2013] NAHCNLD 41 (17 July 2013)
Summary: The murder and concealment of infants are serious crimes and not
uncommon. Accused in present case acted with direct intent and committed
premeditated murder in circumstances where her emotional state of mind was not
unbalanced. The court found the circumstances to be no different from other cases of
murder and that a substantial sentence of imprisonment justified. In respect of the
concealment of birth charge the court expressed its dissatisfaction with the outdated
penalty of a maximum fine of N$200 alternatively three years’ imprisonment and the
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need for the Legislature to increase the penalty or substitute the whole section by
enacting new legislation reflecting the seriousness of the offence.
The State v Kamutushi (CC 08/2012) [2012] NAHCNLD 39 (05 July 2013)
Summary: The accused pleaded not guilty to charges of murder and concealment of
birth. Accused after giving birth in secrecy abandoned her newborn child and returned
home. When the child was found alive by passersby they approached the homestead of
accused’s parents which was nearby. Accused returned to the scene where child was
found and admitted that it was her child. She promised to keep the child and those who
had found it then left. According to the accused the child shortly thereafter died in her
arms. During a follow-up visit shortly thereafter it was discovered that the child had been
buried without reporting its death to anyone. Court rejected the accused’s evidence and
convicted on both counts.
The State v Kashopatii (CR 14/2013) [2013] NAHCMD 212 (24 July 2013)
Summary: The accused was convicted of being possession of a firearm without a
licence (in contravention of section 2 read with section 1, 38) and 39 of act 7 of 1996 (as
amended) and sentenced as follows:
‘N$1000.00 (one thousand Namibian dollars) or 6 (six) months imprisonment
wholly suspended for 5 (five) years on condition accused does not commit
offence of possession of a fire-arm without a licence during period of suspension.
Order: accused declared unfit to possess a firearm for 2 years’
Held, that the sentence is not in accordance with the law and cannot be allowed to
stand. Substituted to read as follows:
‘Fined N$1000.00 (one thousand Namibian dollars) or in default of payment 6 (six)
months imprisonment wholly suspended for 5 (five) years on condition that the
accused is not convicted of possession of a firearm without a licence committed
during the period of suspension.’
The State v Lameck (CC 11/2010) [2013] NAHCMD 36 (11 February 2013)
Summary: Accused requested further particulars to the indictment – State contends
inter alia that the information requested is contained in the police docket which was
disclosed to the accused – Test is whether the accused has sufficient information to
prepare his defence – Accused not challenging states averment that the accused are
already in possession of the information – Application to compel delivery of further
particulars refused.
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The State v Likezo (CC 12/2012) [2013] NAHCNLD 34 (12 June 2013)
Summary: The accused admitted having sexual intercourse with the consent of the
complainant. He however pleaded that he did not know the complainant was 12 years
old and furthermore that he was ignorant of the law. The complainant version was that
the accused grabbed her from behind, held her mouth and carried her into a nearby
field where he raped her. After he raped her she heard her grandmother calling and she
did not immediately respond. She only responded after her grandmother continued
calling. According to her grandmother it took her a while to locate the complainant and
had gone to look for her at a neighbour’s house. The court found that there were
inconsistencies and shortcomings in both the evidence of the complainant and the
accused but the court was unable to rely on the single uncorroborated evidence of the
complainant. The court found that the accused knew that it was wrong for an adult to
have sexual intercourse with a child and that the complainant was young, The court was
however not satisfied that the State had succeeded to discharge the onus to prove
beyond reasonable doubt that the accused was aware of the definitional elements of the
offence which include knowledge of her age and that she was legally incapable of giving
valid consent. The accused is found not guilty and discharged on both counts.
The State v Liseli (CC 13/2010) [2013] NAHCNLD 13 (18 March 2013)
Summary: The accused was charge with high treason. After close of the State’s case
he applied for discharge in terms of s 174. It was not disputed that accused owed
allegiance to Namibia, a sovereign State. He disputed that he committed an overt act
with hostile intent. The State adduced prima facie evidence that he was aware of others
who committed overt acts with hostile intent and failed to inform the authorities which
constituted an overt act of treason. He further, in a confession admitted that he shared
the hostile intent of those who in his presence committed acts of treason. See further
The State v Thambapilai (CC 36/2008) [2013] NAHCMD 160 (7 June 2013).
The State v Lucas (CR 02/2013) [2013] NAHCNLD 10 (04 March 2013)
Summary: Trial proceedings continued and were concluded before one magistrate
while the accused had pleaded not guilty before a different magistrate. The prosecutor
did not inform the court about the unavailability of the magistrate before whom the
accused had pleaded. In the absence of such an indication by the prosecution, it was
irregular for proceedings to continue before a different magistrate. Court satisfied that
the irregularity does not vitiate the entire proceedings.
The State v Mangate (CR 36/2012) [2013] NAHCMD 154 (7 June 2013)
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Summary: The accused charged with housebreaking with intent to steal and theft but
convicted of theft – on review the conviction of theft has been substituted with a
conviction of housebreaking with intent to steal and theft due to failure of the accused to
explain possession of goofs removed from the house of complainant during the
housebreaking.
The State v Mbwale (CC 07/2012) [2013] NAHCNLD 36 (26 June 2013)
Summary: The accused, practicing as a traditional healer, was arraigned on 13
counts of rape in contravention of section 2(1)(a) of Act 8 of 2000 for having committed
sexual acts with the complainants during their treatment. The accused pleaded not
guilty disputing the unlawfulness of his acts which included the insertion of herbs into
the private parts of the complainants on the basis of being consistent with sound
medical practice and thus excluded from a ‘sexual act’ as defined in the section 1 of the
Act. The accused disputed having had sexual intercourse with the complainants as it
does not form part of traditional healing practices. Whereas on the strength of the
evidence adduced two sexual acts – insertion of the fingers into the vagina and sexual
intercourse – were committed with the complainants, the court separately dealt with
each.
Held, acts committed by a traditional healer being part of traditional healing practices
which amount to ‘sexual acts’ as defined in the Act, are unlawful.
Held, as regards the utilisation of fingers when inserting herbs into the private parts in
casu the evidence falls short of proving that the accused acted with mens rea.
Held, evidence proved that acts of sexual intercourse were committed with
complainants in respect of only some of the counts and not all. Accused
convicted on those counts.
The State v Mbango (CC 19/2012) [2013] NAHCNLD 46 (13 August 2013).
Summary: The accused persons were arrested and subsequent thereto warning
statements were obtained of each. The following day they appeared before a magistrate
for purposes of making statements during which only accused no 1 made a statement
(confession). The admissibility of these statements were challenged on the basis that
the accused were assaulted by the police prior to the making thereof and also that the
accused were not informed of their right to legal aid. As regards the warning statements
the accused persons prior to the making of a statement said they wanted to be legally
represented. The police officers recording the statements, notwithstanding, continued
taking down the statements. The court ruled the warning statements inadmissible.
Regarding the statement made to the magistrate by accused no 1, the magistrate failed
to inform the accused of his entitlement to legal aid and was of the view that this is
embodied in the explanation of the right to legal representation. Although the accused
informed the magistrate that he was assaulted (beaten) when arrested and the
magistrate observed minor injuries on the person of the accused, he failed to investigate
the possibility whether there was any connection between these injuries and the
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accused making a statement. The court ruled the statement made by accused no 1
equally inadmissible.
The State v Mtshibe (CC 15/2008) [2012] NAHCMD 58 (5 March 2013)
Summary: Criminal procedure – Sentence – Court finding that accused has a previous
conviction on a charge of rape committed under the common law in such a case the
court should consider a second or subsequent conviction on a charge of rape under the
Combating of Rape Act as such. Sentence – Previous convictions – for purpose of
sentence under the Act. Previous convictions on offences committed ten or more years
ago, court holding that such previous convictions should not necessarily be disregarded
neither should due weight not be attached to such previous convictions. The accused
was convicted on one count of assault with intent to do grievous bodily harm and two
counts of rape committed under coercive circumstances in contravention of the Act. The
previous conviction under the common law is taken into account and a mandatory
sentence imposed in terms of the Act. Sentence: 3rd Count: Assault with intent to do
grievous bodily harm, 12 months’ imprisonment; 5th Count: Rape c/s 2 (1) (a) Act 8 of
2000, 45 years; 6th Count: Rape c/s 2 (1) (a) Act 8 of 2000, 45 years. The sentence on
the 3rd count is to run concurrently with the sentence imposed in respect of counts 5
and 6.
The State v Ndapwiyonya (CR 09/2013) [2013] NAHCNLD 19 (18 April 2013)
Summary: Four accused were charged with contravention of s6 of the Immigration
Control Act, 7 of 1993 having entered Namibia at an unknown place which was not a
port of entry. No evidence was adduced that the accused entered Namibia at the same
time and neither did the prosecutor inform the court that evidence admissible at the trial
of one of the accused will in his opinion also be admissible as evidence at the trial of the
other accused. The accused during questioning in terms of s 112(1)(1)(b) informed the
court that they had entered Namibia at Oshikango border post. A plea of not guilty was
recorded. Evidence was led that the accused were found at Oshakati Police Station and
that they were unable to produce documents which indicate that they in fact passed
through Oshikango border post.
Held that the joinder of accused who committed separate and completely unrelated
offences is not appropriate;
Held that the charge is fatally defective where it does not inform the accused of the
place where the offence was committed when the place is an essential element
of the offence;
Held that no onus rests on the accused to prove that they entered Namibia at a port of
entry; the State bears the onus to prove that the accused entered at a place
other than a port of entry and in casu failed to do so;
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Held
that the defects resulted in a failure of justice and the conviction and sentence
must be set aside.
The State v Nepele & Others (CA 07/2011) [2013] NAHCNLD 43 (2 May 2013)
Summary: Appeal against appellant’s conviction for robbery and sentences of 14 years
imprisonment. Challenge to evidence on identification of the appellants found to be
lacking. Appeal against conviction and sentence dismissed.
The State v Nguudipalelwa (CR 12/2013) [2013] NAHCMD 47 (26 February 2013)
Summary: - The accused was charged with the offence of possessing of a firearm
without a licence, contravening s 2 read with ss 1, 38 (2) and 39 of Act 7 of 1996, as
amended. He pleaded guilty and convicted as charged. When sentencing the accused
the learned magistrate failed to invoke the provisions of s10 (7) of the Act. Failure to do
so amounts to a misdirection on the part of the trial magistrate.
The State v Nhinda (CC 23/2012) [2013] NAHCNLD 08 (28 February 2013)
Summary: The accused was convicted on his plea of guilty on a charge of murder. The
prosecutor before sentence handed in the post-mortem examination report which
contained medical words and terminology which are illegible. The medical practitioner
who compiled the report is not available to testify in respect of the report. Court invoked
the provisions of s 186 of Act 51 of 1977 and called a legal practitioner to decipher
words contained in the report that were illegible. This would not have been necessary
had the report, when compiled, been legible. Medical reports handed into evidence
must be legible in all respects – preferably typed.
The State v Okuani (CR 07/2013) [2013] NAHCMD 32 (05 February 2013)
Summary: Accused charged and convicted of entry into Namibia without an unexpired
passport bearing a valid visa or authority.
Held: The charge does not allege that the accused failed to produce an unexpired
passport which bears a valid visa or an endorsement by a person authorized
thereto by the government of Namibia when ordered to do so by an Immigration
officer. This allegation is central for a contravention of section 12(1) of Act 7 of
1993 to arise.
Held: The charge does not also allege that the accused was found in Namibia after
having been refused entry. This is a crucial element for contravening section
12(4).
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Held: That the exclusion of these pertinent elements enjoined in sections 12(1) and
12(4) renders the charge defective.
Held: In the result the conviction and sentence cannot be allowed to stand.
The State v Raiva (CR 10/2013) [2013] NAHCNLD 20 (18 April 2013)
Summary: The magistrate conceded after being referred to two previous decisions of
this court that the charge as formulated did not contain the essential elements of the
offences created by s 12(1) and (4) of the Immigration Control Act 7 of 1993. The
conviction and sentence were set aside.
The State v Tate (CR 08/2013) [2013] NAHCNLD 18 (15 April 2013)
Summary: After the accused pleaded guilty on both counts the court entered a plea of
not guilty in respect of count 1. He was correctly convicted on count 2. During
subsequent proceedings the complainant on count 1 was absent and the prosecutor
asked the court to deem the State case closed. The court acquitted the accused on that
count in terms of s 174. On review found that the closing of the State case amounted to
a stopping of prosecution and whereas the consent of the Prosecutor-General had not
been obtained beforehand, the stopping was void. The accused’s subsequent acquittal
thus amounted to a nullity. The closing of the State case and the acquittal on count 1
set aside.
The State V van der Byl (CC13/2010) [2013] NAHCMD 19 (29 January 2013)
Summary: Respondent was convicted of one count of assault and one count of rape of
his own daughter. Sentenced to one year on assault and 14 years on rape. Court
ordered the one year sentence on assault to run concurrently with the sentence on
rape. Effective 14 years imprisonment. Court deviated from mandatory sentence
because it found that 11 months spent in custody before conviction constituted
compelling and substantial circumstances. State unhappy with that:
Held, personal circumstances of the accused outweighed by the seriousness of the
offence and interest of society.
Held, that there are prospect of success. Application allowed.
The State v Van Schalkwyk (CR 01/2013) [2013] NAHCNLD 09 (01 March 2013)
Summary: The accused pleaded guilty on a charge of assault with intent to do grievous
bodily harm. When questioning the accused pursuant to the provisions of s 112 (1)(b)
the court omitted to enquire into the accused’s intent at the stage of committing the
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offence. An essential element of the crime was not admitted by the accused,
accordingly the conviction and sentence set aside.
The State v Vrede (CR 8/2013) [2013] NAHCMD 34 (12 February 2013).
Summary: If more than one accused person is being sentenced, the sentence should
be clear. It is confusing to impose the following sentence 8 months’ imprisonment wholly
suspended for 5 years on certain conditions. It is not clear whether the sentence was
imposed in respect of one accused person or in respect of both.
Tangeni v The State (CA 85/2010) [2013] NAHCNLD (15 April 2013)
Summary: Appellants were convicted on a charge of robbery, the court having been
satisfied that the appellants were duly identified by several witnesses. On appeal the
appellants attacked the conclusion reached by the trial court as far as it concerns their
identification. On appeal the court found no irregularity or misdirection apparent from the
record, thus there is no basis on which the findings of credibility by the trial court can be
rejected. The court restated the principle that the function to decide on acceptance or
rejection of evidence falls primarily within the domain of the trial court.
Tjarimba v The State (CA 07/2010) [2013] NAHCNLD 03 (25 January 2013)
Summary: Appellant was convicted under the Stock Theft Act 12 of 1990 of theft of
three head of cattle (valued at N$ 11 500) which were subsequently retrieved. The
buyer of these cattle however had suffered a financial loss as he had to return the cattle
to their rightful owner. Appellant was throughout the trial unrepresented and the
magistrate failed to assist the appellant in putting forward as much as possible
information in mitigation, failing which constituted a misdirection. The period of one year
which appellant was in custody prior to and during his trial was not taken into
consideration. The sentence set aside and substituted with a sentence of 11 years’
imprisonment of which 4 years’ imprisonment suspended on the usual conditions. The
sentence is antedated.
Ude v State (CA 12/2011) [2013] NAHCMD 149 (7 June 2013)
Summary: The appellant was convicted, on his own guilty plea, in the regional court on
two counts of dealing in 276.7644 grams of cocaine in contravention of s 2(c) of Act 41
of 1971 and was sentenced to an effective 6 years imprisonment. The appellant was 41
years old and first offender. A trap was set up for him. He pleaded guilty on two counts
of dealing. Sold the cocaine for N$ 139 006.07. On appeal the sentence confirmed.
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Valombola v The State (CA 93/2013) [2013] NAHCMD 279 (9 September 2013)
Summary: In hearing an appeal against a lower court's refusal to grant bail this Court
is bound by s 65(4) of the Criminal Procedure Act in the sense that it must not set aside
the decision of a lower Court "unless such Court or Judge is satisfied that the decision
was wrong.
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