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 ................................................................................................................................ 6 APPEAL ................................................................................................................................................ 6 CRIMINAL LAW ................................................................................................................................... 6 CRIMINAL PROCEDURE ................................................................................................................ 12 LAW OF EVIDENCE ......................................................................................................................... 23 SENTENCE ........................................................................................................................................ 24

CASE SUMMARIES ................................................................................................... 27 Appolus v The State (CA 32/2012) [2013] NAHCMD 37 (12 February 2013) ......... 27 Ditshabue v State (CA 96/2010) [2013] NAHCMD 132 (12 April 2013) ...................... 27 Hihepa v The State (CA 36/2011) [2013] NAHCNLD 31 (24 May 2013) .................... 28 Hoorzook v State (CA 71/2012) [2013] NAHCMD 168 (10 June 2013). ..................... 28 Iiyambo v State (CA 68/2012) [2013] NAHCMD 42 (8 February 2013). ..................... 28 Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013) ......................... 29 Muharukua v The State (CA 14/2009) [2003] NAHCNLD 29 (20 May 2013) .............. 29 Natangwe v The State (CA 65/2011) [2013] NAHCNLD 26 (30 April 2013) ............... 30 Ndemuhenuka v The State (CA 76/2010) [2013] NAHCNLD 5 (15 February 2013) ... 30 Onesmus v The State (CA 01/2013) [2013] NAHCNLD 22 (22 April 2013) ................ 31 Pienaar v The State (CA 25/2012) [2012] NAHCMD 113 (07 August 2012) ............... 31 Shihepo v The State (CA 23/2011) [2013] NAHCNLD 33 (31 May 2013) ................... 32 Shipuata v The State (CA 26/2011) [2013] NAHCNLD 02 (23 January 2013) ............ 32 Shipuata v The State (CA 26/2011) [2013] NAHCNLD 04 (01 February 2013) .......... 32 S v Alfeus (CC 16/2011) [2013] NAHCMD 102 (16 April 2013) .................................. 33 S v Eiseb, S v Kooper (CR 29-2013) [2013] NAHCMD 105 [17 April 2013]. .............. 33 S v Gariseb (CC 18/2011) [2013] NAHCMD 136 (21 May 2013) ................................ 34 S v Luish (CR 22-2013) [2013] NAHCMD 79 (27 March 2013) .................................. 34 S v Muzorongondo (CC 15/2011) [2013] NAHCMD 173 (21 June 2013) ................... 34 S v Sobuso (CR 28-2013) [2013] NAHCMD 104 (17 April 2013)................................ 35 S v Somseb (CC 1/2012) [2013] NAHCMD 174 (21 June 2013) ................................ 35 S v Tjaseua (CR 3-2013) [2013] NAHCMD 10 (22 January 2013) ............................. 35 S v Tjiromongua (CR 06-2013) [2013] NAHCMD 31 (5 February 2013) ..................... 35 S v Tjiveze (CR 27-2013) [2013] NAHCMD 110 (24 April 2013) ................................ 36 S v Waterboer (CC 16/2009) [2013] NAHCMD 148 (4 June 2013) ............................. 37
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S v Waterboer (CC 16/2009) [2013] NAHCMD 159 (11 June 2013)........................... 37 State v Farmer (CC 6/2010) [2013] NAHCMD 95(10 April 2013) ............................... 37 State v Farmer (CC 06/2010) [2013] 138 NAHCMD (23 MAY 2013) .......................... 38 State v Katzao (CC 25/2010) [2013] NAHCMD 87 (4 April 2013) ............................... 38 State v Kauaria (CR 9/2013) [2013] NAHCMD 35 (12 February 2013) ...................... 38 State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 108 (18 APRIL 2013) .................. 39 State v Ngatjizeko (CC 23/2008) [2013] NAHCMD 167 (18 June 2013) ..................... 39 State v Solomon (CR 25/2013) [2013] NAHCMD 94 (9 April 2013). ........................... 39 State v Titsol (CC 05/2009) [2013] NAHCMD 183 (28 June 2013) ............................. 40 State v Uri-Khob (CC 25-2010) [2012] NAHCMD 78 (26 MARCH 2013) .................... 40 Tangeni v The State (CA 85/2010) [2013] NAHCNLD 16 (15 April 2013) .................. 40 The State v Awala (CR 06/2013) [2013] NAHCNLD 14 (26 March 2012) ................... 41 The State v Diergaardt (CR 13/2013) [2013] NAHCMD 48 (26 February 2013) ......... 41 The State v Fillemon (CR 04/2013) [2013] NAHCNLD 12 (15 March 2013) ............... 41 The State v Frey (CR 19/2013) [2013] NAHCMD 60 (6 March 2013) ......................... 42 The State v Gariseb and Another (CC 16/2012) [2013] NAHCMD 25 (30 January 2013) .......................................................................................................................... 42 The State v Goabab (CC 14/2008) [2013] NAHCMD 122 (10 May 2013) .................. 43 The State v Hauwanga (CR 11/2013) [2013] NAHCNLD 23 (22 April 2013) .............. 43 The State v Hendimbi (CR 18/2013) [2013] NAHCMD 91 (09 April 2013) .................. 44 The State v Herunga (CA 67/2012) [2013] NAHCNLD 32 (24 May 2013) .................. 44 The State v Hilongwa (CR 05/2013) [2013] NAHCNLD 15 (27 March 2013) .............. 44 The State v Iilonga (CC 17/2012) [2013] NAHCNLD 06 (25 February 2013) ............. 45 The State v Kauima (CC 07/2011) [2013] NAHCNLD 35 (20 June 2013) .................. 45 The State v Kangondjo (CR 35/2012) [2013] NAHCMD 153 (7 June 2013) ............... 45 The State v Kapolo (CC 05/2012) [2013] NAHCNLD 28 (16 May 2013) .................... 46 The State v Kuaima (CC 07/2011) [2013] NAHCNLD 07 (26 February 2013) ............ 46 The State v Kuhatumwa (CR 03/2013) [2013] NAHCNLD 11 (07 March 2013).......... 47 The State v Lameck (CC 11/2010) [2013] NAHCMD 36 (11 February 2013) ............. 47 The State v Likezo (CC 12/2012) [2013] NAHCNLD 34 (12 June 2013) .................... 47 The State v Liseli (CC 13/2010) [2013] NAHCNLD 13 (18 March 2013) .................... 48 The State v Lucas (CR 02/2013) [2013] NAHCNLD 10 (04 March 2013) ................... 48 The State v Mangate (CR 36/2012) [2013] NAHCMD 154 (7 June 2013) .................. 48 The State v Mbwale (CC 07/2012) [2013] NAHCNLD 36 (26 June 2013) .................. 49 The State v Mtshibe (CC 15/2008) [2012] NAHCMD 58 (5 March 2013) ................... 49 The State v Ndapwiyonya (CR 09/2013) [2013] NAHCNLD 19 (18 April 2013) .......... 50
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The State v Nguudipalelwa (CR 12/2013) [2013] NAHCMD 47 (26 February 2013) .. 50 The State v Nhinda (CC 23/2012) [2013] NAHCNLD 08 (28 February 2013) ............. 50 The State v Okuani (CR 07/2013) [2013] NAHCMD 32 (05 February 2013) .............. 51 The State v Raiva (CR 10/2013) [2013] NAHCNLD 20 (18 April 2013) ...................... 51 The State v Tate (CR 08/2013) [2013] NAHCNLD 18 (15 April 2013) ........................ 51 The State V van der Byl (CC13/2010) [2013] NAHCMD 19 (29 January 2013) .......... 52 The State v Van Schalkwyk (CR 01/2013) [2013] NAHCNLD 09 (01 March 2013) .... 52 The State v Vrede (CR 8/2013) [2013] NAHCMD 34 (12 February 2013). ................. 52 Tangeni v The State (CA 85/2010) [2013] NAHCNLD (15 April 2013) ....................... 52 Tjarimba v The State (CA 07/2010) [2013] NAHCNLD 03 (25 January 2013) ............ 53 Ude v State (CA 12/2011) [2013] NAHCMD 149 (7 June 2013) ................................. 53

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SUBJECT INDEX

APPEAL 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 – 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)

CRIMINAL LAW 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 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 - 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
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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 – 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). 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 – 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)

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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 – 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). 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 – 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 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 - 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
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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 – 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 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 – 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 - Appeal – Sentence – 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 – 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
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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). 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
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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 — 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). Criminal procedure - 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 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
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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 - 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. he State v Liseli (CC 13/2010) [2013] NAHCNLD 13 (18 March 2013). 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 - 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
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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 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 - 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 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
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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 - 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). 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 – 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 – 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).

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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). 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 – 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). 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). 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 - 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 - S 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 – 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
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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 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 - 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). 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 – 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 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).

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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 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)

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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). 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 – 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 – Post20 | P a g e

Mortem examination report – Some medical words contained in report illegible – Court 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). 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 – 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). 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)

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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 – 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).

LAW OF EVIDENCE 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 trial before the conviction will be set aside on appeal. Muharukua v The State (CA 14/2009) [2003] NAHCNLD 29 (20 May 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
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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 – 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 – 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 – 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).

SENTENCE 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
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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) 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). 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
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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) 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 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).

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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.

Ditshabue v State (CA 96/2010) [2013] NAHCMD 132 (12 April 2013) 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

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sentence is not so severe that it is unjust or unreasonable, considering the circumstances of the commission of the offence.

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 sentence of six months‘ imprisonment but magistrate imposed a sentence of two years‘
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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.

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.

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
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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.

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.

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 appellan t‘s sentence was found to have been disproportionate to the crime, the offender and the legitimate
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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 c ourt 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 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 –

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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. Held

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.

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
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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 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 t hirty (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 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

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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 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 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 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 rec kless 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.

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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) 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
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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 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.

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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 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 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 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 Farmer (CC 6/2010) [2013] NAHCMD 95(10 April 2013)

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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 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 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)

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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 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 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 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
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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 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 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
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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) 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)

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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) 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 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
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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. 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 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 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.
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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.

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)

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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 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 Kangondjo (CR 35/2012) [2013] NAHCMD 153 (7 June 2013)

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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 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)
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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 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 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.

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
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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) 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
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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 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
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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; Held that the defects resulted in a failure of justice and the conviction and sentence must be set aside.

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
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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). 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
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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 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
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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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