Unconstitutionally Obtained Evidence in Namibia

UNCONSTITUTIONALLY OR
IMPROPERLY OBTAINED
EVIDENCE
Table of Contents
Evidence obtained by means of unlawful search and seizure...........................................................3
Article 13 of The Namibian Constitution: Privacy..........................................................................3
S v Van Rensburg (CC 24/2012) [2017] NAHCMD 44 (22 February 2017)......................................3
S v Lameck and Others 2018 (3) NR 902 (HC)................................................................................3
S v Lameck and Others 2019 (2) NR 368 (HC)................................................................................4
S v Nuuyoma (CC 17/2018) [2019] NAHCMD 101 (15 April 2019).................................................6
S v Nicodemus (CC 15/2017) [2019] NAHCMD 271 (06 August 2019)...........................................8
S v Awene (HC-NLD-CRI-APP-CAL-2017/00003) [2019] NAHCNLD 141 (05 December 2019)........8
Illegal monitoring or interception of communications......................................................................9
Article 13 of The Namibian Constitution: Privacy..........................................................................9
Section 24 of The Namibian Central Intelligence Service Act 10 of 1997: Prohibition of
Interception and monitoring.........................................................................................................9
Section 25 of The Namibian Central Intelligence Service Act 10 of 1997: Issuing of direction....10
Section 26 of The Namibian Central Intelligence Service Act 10 of 1997: Execution of direction 12
Section 40 of the Prevention and Combating of Terrorist and Proliferation Activities Act 4 of
2014: Interception of communications and admissibility of intercepted communications.........12
2014: Issue of warrant.................................................................................................................13
2014: Execution of warrant.........................................................................................................14
Communication Act 8 of 2009.....................................................................................................15
Autoptic Evidence forcibly and involuntarily obtained from the person of the accused.................16
Section 37 of Act 51 of 1977: Powers on respect of prints and bodily appearance of accused...16
Section 225 of Act 51 of 1977: Evidence of prints or bodily appearance of accused...................17
S v Eigowab 1994 NR 192 (HC).....................................................................................................18
S v Malumo and Others 2006 (2) NR 629 (HC).............................................................................18
S v Gomeb and Others 2015 (4) NR 1100 (HC).............................................................................19
S v Gemeng and Another 2018 (3) NR 701 (HC)...........................................................................19
Evidence of obtained by means of a police trap..............................................................................20
S v Kramer and Others 1990 NR 49 (HC)......................................................................................20
S v Nangombe 1994 NR 276 (SC).................................................................................................21
S v De Bruyn 1999 NR 1 (HC)........................................................................................................21
S v Shituna (CA 59/2011) [2013] NAHCNLD 51 (8 October 2013)...............................................24
Evidence obtained by means of torture..........................................................................................25
S v Minnies and Another 1990 NR 170 (HC).................................................................................25
S v Malumo and Others 2013 (3) NR 868 (HC).............................................................................26
Late disclosure and/or evidence obtained from..............................................................................28
continues investigations..................................................................................................................28
S v Malumo and 112 Others 2011 (1) NR 169 (HC)......................................................................28
Onus................................................................................................................................................30
S v Malumo and Others (CC 32/2001) [2008] NAHCMD ( 3 November 2008).............................30
S v Engelbrecht 2017 (3) NR 912 (SC)..........................................................................................31
Discretion to exclude or include unconstitutionally or improperly obtained evidence...................32
Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC)................32
S v De Wee 1999 NR 122 (HC)......................................................................................................32
S v Forbes and Others 2005 NR 384 (HC).....................................................................................34
S v Malumo and Others (2) 2007 (1) NR 198 (HC)........................................................................38
S v Kukame 2007 (2) NR 815 (HC)................................................................................................39
S v Malumo and 112 Others 2011 (1) NR 169 (HC)......................................................................41
S v Sankwasa 2014 (3) NR 751 (HC).............................................................................................41
S vs Nuuyoma (CC 17/2018) [2019] NAHCMD 101 (15 April 2019)..............................................44
How a court of appeal should evaluate unconstitutionally obtained evidence...............................45
S v Shikunga and Another 1997 NR 156 (SC)................................................................................45
S v Kandovazu 1998 NR 1 (SC).....................................................................................................47
S v Smith and Another 1999 NR 142 (HC)....................................................................................47
S v M 2006 (1) NR 156 (HC)..........................................................................................................48
S v SS 2014 (2) NR 399 (HC).........................................................................................................49
Evidence obtained by means of unlawful search and
seizure
Article 13 of The Namibian Constitution: Privacy
1) No persons shall be subject to interference with the privacy of their homes, correspondence or
communications save as in accordance with law and as is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country, for the
protection of health or morals, for the prevention of disorder or crime or for the protection of the
rights or freedoms of others.
2) Searches of the person or the homes of individuals shall only be justified:
a) where these are authorised by a competent judicial officer;
b) in cases where delay in obtaining such judicial authority carries with it the danger of
prejudicing the objects of the search or the public interest, and such procedures as are
prescribed by Act of Parliament to preclude abuse are properly satisfied.
S v Van Rensburg (CC 24/2012) [2017] NAHCMD 44 (22 February 2017)

Siboleka J:
The accused challenged evidence obtained by means of search warrants addressed to “all police
officers” as opposed to naming specific officers. The relevant part of the ruling reads as follows:
“The search warrant issued by the Magistrate at Oranjemund on 25 September 2006 is declared
invalid for failure to comply with the requirements set out in sections 21(1)(a), (2) and 25(1)(b)(i)(ii);
of the Act as amended. The seizures of exhibits AA 235 to AA 428 are also declared invalid and not
accepted as evidence before this court for the same reasons.”1
S v Lameck and Others 2018 (3) NR 902 (HC)

Liebenberg J:
Evidence was obtained on the strength of search warrants issued by a magistrate in terms of section
22 (5) of the ACC Act. Accused argued that the said warrants were inadmissible as:
1. The application was based on an uncommissioned statement

2. The search warrants authorised all officers as opposed to specifying one
3. The search warrants were vague and illegible
On the right to privacy and search warrants
1
P.905.
“[9] Whereas the right to privacy is guaranteed under art 13 of the Constitution it deserves a very
high level of protection and demands a strict interpretation of the search and seizure provisions in
the Act. Those provisions may, for obvious reasons, result in a serious encroachment on the rights
of those persons subjected to them. Hence, the courts will construe search and seizure warrants
strictly and furthermore carefully scrutinise anything done in pursuance thereof. What this means is
that the courts are obliged to employ a strict interpretation of the provisions relating to search and
seizure warrants.”2
On the issue of authorising all officers
“[19] Section 22(5)(b) of the Act in peremptory terms states that a search warrant must specifically
authorise an authorised officer mentioned in the warrant to conduct the entry and search. Whereas
the section makes plain that a specified officer must be authorised, the issue of interpretation of the
statutory requirement does not arise. By its ordinary meaning an authorised officer must be
identified and mentioned in the warrant to conduct the entry and search, not any or all officers.
Absent the requirement, the only question to answer is whether it renders the warrant null and
void.
[20] Mr Lisulo conceded that on the available precedents it would appear that the courts have
adopted the view that the search warrant must be addressed to a specific officer and, failing which,
the warrant is liable to be set aside. However, he also argued that it was not fatal, suggesting that it
is legal and enforceable. The court recognising counsel's conflicting submissions invited him to
elaborate. Counsel was however unable to further develop the argument envisaged and left the
matter in the court's discretion.
[21] The court in Simataa v Magistrate of Windhoek and Others 6 was called upon to decide the
same issue and succinctly disposed thereof by referring to the statutory requirement of an
authorised officer to be mentioned in the warrant which, in itself, was sufficient reason to set aside
the warrants under consideration. Not only is the court's finding consistent with the law, it had not
been challenged on appeal. These findings clearly nullify any suggestion that failure to authorise an
identified officer in the search warrant, is not fatal. All search warrants in the present instance are
drawn in the same form and fall foul of the same defect of being addressed to '(a)ll authorised
officers'. Inevitably they fall to be set aside.” 3
S v Lameck and Others 2019 (2) NR 368 (HC)

Liebenberg J:
The defence challenged the admissibility of evidence obtained by means of summons’ issued by the
Director General of the ACC in terms of section 21 (5) of the Act. The court concluded as follows:
1. In order for summons to be issued in terms of s 21 (5), the Director General must launch an
investigation in terms of s 18.
2. There are jurisdictional requirements that must be fulfilled before the Director General can
launch an investigation.
3
P. 907
3. The Director General, Paulus Noa, claimed to have complied with jurisdictional requirements
for the launching of an investigation based on an affidavit by ACC investigations head Nelius
Becker. The latter prepared the affidavit as an aftermath to information obtained from
financial institutions, MTC and Ministry of Home Affairs as a consequence of the said
summons’.
4. The summons’, therefore, preceded the launching of investigations in terms of s 18 and

were thus unlawful.
“[28] As stated before, the net effect of the ACC's initiation of procedure not prescribed by law
exceeded its jurisdiction, whereby it unlawfully came into possession of evidential material it now
seeks to produce against the very same persons whose fundamental rights have been infringed.
[29] In deciding the question of admissibility of evidence unlawfully obtained I find guidance in the
words of Jafta J, in Liebenberg NO and Others v Bergrivier Municipality 8 (endorsed in Zuma v
Democratic Alliance and Others 9) where the following appears in para 93:
‘In our law, administrative functions performed in terms of incorrect provisions are invalid,
even if the functionary is empowered to perform the function concerned by another
provision. In accordance with this principle, where a functionary deliberately chooses a
provision in terms of which it performs an administrative function but it turns out that the
chosen provision does not provide authority, the function cannot be saved from invalidity by
the existence of authority in a different provision.’
[30] In this instance the ACC, through the actions of the director-general, chose to adopt the
procedures, as it did, when issuing the summonses. The correct procedures were available, but not
followed. This rendered the summonses (exhs T1 – 5) invalid and renders evidence obtained
consequential thereto unlawful. The Constitution guarantees an accused a fair trial — which includes
pre-trial procedures — whereby the accused's dignity and interests must at all times be respected
and protected by the courts. To allow evidence that was unlawfully obtained (emanating from
invalid summonses) would result in a gross violation of the accused persons' fundamental rights to
privacy and a fair trial, guaranteed under the Constitution.
[31] The commission's conduct in this regard must be discouraged in the strongest of terms as the
courts cannot allow persons or institutions to be subjected to an abuse of power on its part.
Although the ACC fulfils an important function in society with its main purpose to fight the seemingly
unending scourge of corruption in this country, the commission must be reminded that it is also
subject to the Constitution and the law, moreover, that it must give effect to the provisions of the
Act, its creator, which brought it into existence.
[32] In view of the decision reached on the validity of the summonses issued, the question of
intelligibility thereof has become superfluous and need not be decided.
[33] In the result, summonses issued by the ACC on 11 June 2009 (exhs T1 – 5) are invalid and
evidence emanating from the impugned summonses is ruled inadmissible.” 4
S v Nuuyoma (CC 17/2018) [2019] NAHCMD 101 (15 April 2019)

Miller AJ:
4
Pp. 37-376.
Factual background
The state sought to lead evidence of documents found at Accused number 14’s place, who was
accused 1’s boyfriend, which apparently belonged to Accused 1 and implicated her. The defence
challenged the admission of this evidence as accused 1’s rights were apparently not explained to her
nor was accused 14 informed of his rights to legal representation at the time. A trial-within-a-trial
was held.
The court ultimately concluded that there was a factual dispute here. Accused 1 claimed that what
was discovered at accused 14’s place did not implicate her and she was merely there to change and
clothes and did not see when the search was actually conducted.
Accused 14 claimed that he did not consent to the search but was told it would happen anyways and
that he could be arrested should he interfere.
Conclusion
The search was carried out by the police, though an ACC official was present to verify what was
relevant and what was not. The court was of the view that the search and seizure was lawful in
terms section 22 of the CPA authorising a search without a warrant where there was a reasonable
belief that a warrant would be obtained should it be applied for and the delay in obtaining the
warrant would defeat the objects of the search.
[15] If as was contended by counsel for the accused, s 23 of the Anti-Corruption Act is to be
applicable, it is apparent that an irregularity had occurred. This stems from the fact that the flat
searched was a private residence.
[16] Section 23 (1) of the Anti- Corruption Act prohibits the search of a private residence without a
warrant. The question arises whether that irregularity in the circumstances means necessarily that
the evidence should be excluded.
[17] In S v Shikunga and Another 1997 NR 156 the Supreme Court at p. 170 held that:
‘It would appear to me that the test proposed by our common law is adequate in relation to
both constitutional and non-constitutional errors. Where the irregularity is so fundamental
that it can be said that in effect there was no trial at all, the conviction should be set aside.
Where one is dealing with an irregularity of a less severe nature then, depending on the
impact of the irregularity on the verdict, the conviction should either stand or be substituted
with an acquittal on A the merits. Essentially the question that one is asking in respect of
constitutional and non-constitutional irregularities is whether the verdict has been tainted
by such irregularity. Where this question is answered in the negative the verdict should
stand. What one is doing is attempting to balance two equally compelling claims - the claim
that society has that a guilty person should be convicted, and the claim that the integrity of
the judicial process should be upheld. Where the irregularity is of a fundamental nature and
where the irregularity, though less fundamental, taints the conviction the latter interest
prevails. Where however the irregularity is such that it is not of a fundamental nature and it
does not taint the verdict the former interest prevails. This does not detract from the
caution which a court of appeal would ordinarily adopt in accepting the submission that a
clearly established constitutional irregularity did not prejudice the accused in any way or
taint the conviction which followed thereupon.’
[18] In the case of Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187
(CC) Kriegler J states as follows:
‘ In any democratic criminal justice system there is a tension between, on the one hand, the
public interest in bringing criminals to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even those suspected of conduct
which would put them beyond the pale. To be sure, a prominent feature of that tension is
the universal and unceasing endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by state agencies in the
prevention, investigation or prosecution of crime. But none of that means sympathy for
crime and its perpetrators. Nor does it mean a predilection for technical niceties and
ingenious legal stratagems. What the Constitution demands is that the accused be given a
fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be
decided upon the facts of each case, and the trial judge is the person best placed to take
that decision. At times fairness might require that evidence unconstitutionally obtained be
excluded. But there will also be times when fairness will require that evidence, albeit
obtained unconstitutionally, nevertheless be admitted.’
[19] This approach was adopted by the Namibian Supreme Court in S v Kandovazu 1998 NR 1 SC. In S
v Sankwasa (CA-70/2012) in a judgment delivered on 23 August 2013, the Namibian High Court in
admitting real evidence, held that receiving such evidence will not bring the administration of justice
into disrepute nor would it render the trial unfair.” 5
The court ruled the evidence admissible on the following basis:
[20] As far as accused number one is concerned, the essence of the dispute between the State and
the accused number one is whether at the time the documents were discovered, those documents
were in her possession. This is denied by accused number one and that raises a factual dispute which
will best be decided during the course of the trial with regard to all the evidence tendered during the
course of the trial.
[21] As far accused number fourteen is concerned, there is nothing to suggest that the discovery of
the documents at his flat implicate him in any manner. It is the evidence of Ms Shikukumwa that
accused number fourteen was not at that stage even after the discovery of the documents, regarded
as a suspect but rather as a potential State witness. It cannot be in those circumstances that the
admission of the documents would render the trial of accused number fourteen unfair in any
manner.
[22] In as much as the objection of accused number one was based in the first place on the premises
that her legal rights were not explained to her, it became common cause during the trial that she
had indeed been so informed and that she in fact had discussions with her lawyer. She was
consequently fully aware of her right to legal representation during the course of the events which
transpired on the 1st of December 2015 and thereafter.”
S v Nicodemus (CC 15/2017) [2019] NAHCMD 271 (06 August 2019)

Liebenberg J:
5
Pp. 7-8.
Evidence was obtained from the Accused’s residence. There was dispute between the defence in
relation to the following:
1. Whether or not accused consented to the search?

2. Whether or not the accused’s rights in relation to the search were explained.
The court concluded both factual disputes in favour of the state. The court, however, took the
position that the situation would not have been different even if the accused’s rights were not
explained to him. This was based on the following:
[56] Though stated in the context of the right to legal representation, the court in S v Bruwer said:
‘I am also mindful of the fact that reference in our Constitution to a fair trial forms part of
the Bill of Rights and must therefore be given a wide and liberal interpretation. However, I
fail to see how it can be said, even against this background, that a trial will be less fair if a
person who knows that it is his right to be legally represented is not informed of that fact.
Whether the fact that an accused was not informed of his right to be legally represented,
resulted in a failure of justice is, as in most other instances where a failure of justice is
alleged, a question of fact.’
[57] Whether the dispute concerns the right to legal representation or any of the other rights
enshrined in the Constitution, the principle in my view remains the same. The test is whether the
accused took an informed decision. In the present instance several state witnesses testified about
the extent of the rights explained to the accused and his acknowledgment thereof, whilst the
accused himself confirmed having been aware of his rights. In my view counsel’s submission is
without merit and the court is satisfied that the accused’s constitutional rights had not been
infringed during the search conducted at his premises, pointing out or report made by the accused
following his arrest.”6
S v Awene (HC-NLD-CRI-APP-CAL-2017/00003) [2019] NAHCNLD 141 (05

December 2019)
January J:
Complainant lost money at a bar. He suspected that the appellant had stolen the money. The latter
refused to be searched. The court was of the view that such a refusal was not justified as there was a
need to immediately search the accused given the evidence against him.
6
Pp.22-23.
Illegal monitoring or interception of
communications
Article 13 of The Namibian Constitution: Privacy
1) No persons shall be subject to interference with the privacy of their homes, correspondence or
communications save as in accordance with law and as is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country, for the
protection of health or morals, for the prevention of disorder or crime or for the protection of the
rights or freedoms of others.
2) Searches of the person or the homes of individuals shall only be justified:
a) where these are authorised by a competent judicial officer;
b) in cases where delay in obtaining such judicial authority carries with it the danger of
prejudicing the objects of the search or the public interest, and such procedures as are
prescribed by Act of Parliament to preclude abuse are properly satisfied.
Section 24 of The Namibian Central Intelligence Service Act 10 of 1997:

Prohibition of Interception and monitoring
1) Any person who, without a direction issued under subsection (2) –
a) intentionally and without the knowledge or permission of the dispatcher intercepts a

communication which has been or is being or is intended to be transmitted by telephone or
in any other manner over a telecommunications system; or
b) intentionally monitors a conversation by means of a monitoring device so as to gather

confidential or classified information concerning any person, body or organisation; or
c) intentionally and without the permission of the person who is lawfully in charge or
occupation of any premises enters upon the premises –
i) to search the premises; or

ii) to examine, copy, photograph or transcribe any record, document or other material on
the premises; or
iii) to remove any record, document or other material from the premises for the purposes of
examining, copying, photographing or transcribing it,
with the purpose of gathering information concerning a threat or potential threat to the
security of Namibia in the discharge of a function in terms of this Act,
shall be guilty of an offence and on conviction be liable to a fine not exceeding N$20 000 or to
imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
2) Notwithstanding the provisions of subsection (1) or anything to the contrary contained in any
law, a judge may, subject to the provisions of section 25, issue the Service with a direction
authorising the Director-General, or any staff member or other person authorised thereto by the
Director-General under section 26(1) –
a) to intercept a particular postal article or a particular communication which has been or is

being or is intended to be transmitted by telephone or in any other manner over a
telecommunications system;
b) to intercept all postal articles to or from a person, body or organisation or all

communications which have been or are being or are intended to be transmitted by
telephone or in any other manner over a telecommunications system to or from a person,
body or organisation;
c) to monitor in any manner by means of a monitoring device conversations by or with a

person, body or organisation, whether a telecommunications system is being used in
conducting those conversations or not; or
d) when reasonably necessary –

i) to enter upon and search any premises;
ii) to examine, copy, photograph or transcribe any record, document or other material on
the premises; and
iii) to remove any record, document or other material from the premises, for as long as is
reasonably necessary, for the purposes of examining, copying, photographing or
transcribing it.
3) The provisions of section 26(3) and of subsection (2) of this section, in so far as they provide for
a limitation on the fundamental right to privacy contemplated in Article 13 of the Namibian
Constitution, are enacted upon the authority conferred by the said Article.

Issuing of direction
1) A direction contemplated in section 24(2) may be issued by a judge only –
a) upon a written application made by the Director-General; and
b) if the judge is convinced, on the grounds mentioned in subsection (2), that –

i) the gathering of information concerning a threat or potential threat to the security of
Namibia is necessary to enable the Service to properly investigate such threat or
potential threat or to effectively perform its functions in terms of section 5 of this Act or
any other law; and
ii) such threat or potential threat cannot be properly investigated or such functions cannot
be effectively performed in any other manner.
2) An application referred to in subsection (1)(a) shall be accompanied by a supporting affidavit

stating –
a) the facts relied on to justify on reasonable grounds the necessity for the issue of a direction
so as to enable the Service to investigate a threat or potential threat to the security of
Namibia or to effectively perform its functions in terms of section 5 of this Act or any other
law;
b) that other investigative procedures have been tried and have failed, or why it appears that
they are unlikely to succeed, or that the urgency of the matter is such that it would be
impractical to carry out an investigation using only other investigative procedures or that
without a direction it is likely that information of importance with respect to a threat or
potential threat to the security of Namibia or the performance of the functions entrusted to
the Service in terms of section 5 of this Act or any other law would not be obtained;
c) the type of postal article or communication proposed to be intercepted, the type of

information, records, documents or other material proposed to be obtained or removed and
the powers proposed to be exercised for that purpose;
d) the identity of the person, body or organisation, if known, whose communication is proposed
to be intercepted or which is in possession of the information proposed to be obtained;
e) the person, body or organisation, or class or classes of persons, bodies or organisations, to

which the direction is proposed to be applied; and
f) the place where the direction is proposed to be executed, if a general description of that
place can be given.
3) A direction issued under subsection (1) shall be issued for a period not exceeding three months at
a time, and the period for which it has been issued shall be specified in that direction.
4) The judge who issued a direction or a judge acting in his or her stead may, upon a written
application made by the Director-General before the expiry of the period or extended period for
which the direction has been issued, extend that period for a further period not exceeding three
months at a time if the judge is convinced that the extension is necessary for the reasons
mentioned in subsection (l)(b).
5) An application referred to in subsection (l)(a) or (4) shall be heard and a direction issued without
any notice to the person, body or organisation to which the application applies and without
hearing such person, body or organisation.
6) If, upon an application made by the Director-General before the expiry of the period or extended
period for which a direction has been issued, the judge who issued the direction or a judge acting
in his or her stead is convinced that the grounds on which the direction was issued, have ceased
to exist, the judge shall cancel the direction.

Execution of direction
1) If a direction has been issued under section 24(2), any staff member or other person authorised
thereto by the Director-General, may execute that direction or assist with the execution thereof.
2) The Director-General may authorise such number of staff members to assist with the execution
of a direction as he or she may deem necessary.
3) Any staff member or other person who executes a direction or assists with the execution thereof,
may at any time enter upon any premises in order to install, maintain or remove a monitoring
device, or to intercept or take into possession a postal article, or to intercept any communication,
or to install, maintain or remove a device by means of which any communication can be
intercepted, or to search the premises with the purpose of gathering information concerning a
threat or potential threat to the security of Namibia, or to examine, copy, photograph or
transcribe any record, document or other material on the premises or remove such record,
document or other material from the premises, for as long as is reasonably necessary, for the
purposes of examining, copying, photographing or transcribing it, for the purposes of this Act.
Section 40 of the Prevention and Combating of Terrorist and Proliferation

Activities Act 4 of 2014: Interception of communications and admissibility of
intercepted communications
1) Despite anything to the contrary in any other law and subject to subsection (2), the Inspector-
General may for the purpose of obtaining evidence of the commission of an offence under this
Act, apply ex parte to a judge in chambers for the issuance of a warrant for the interception of
communications.
2) A judge to whom an application is made under subsection (1) may issue a warrant authorising
the Inspector-General –
a) to require a communications service provider to intercept and retain a specified

communication or communications of a specified description received or transmitted or
about to be received or transmitted by that communications service provider;
b) to authorise a member of the Police or the Namibia Central Intelligence Agency to enter any
premises and to install or remove on such premises, any device for the interception and
retention of communication if there are reasonable grounds to believe that information
concerning the commission of the offence under this Act, or the whereabouts of the person
suspected to have committed an offence under this Act, may be obtained; or
c) to intercept all postal articles to or from any person, body or organisation affected by the
warrant.
3) Any information contained in a communication –
a) intercepted and retained pursuant to an order under subsection (2);
b) intercepted and retained in a foreign state in accordance with the law of that foreign state
and certified by a judge of that foreign state to have been so intercepted and retained, is
admissible as evidence in proceedings for an offence under this Act.
4) Subsection (2) or (3), in so far as it provides for the limitation on the fundamental right to privacy
contemplated in Article 13 of the Namibian Constitution, is enacted upon the authority conferred
to by that Article.

Activities Act 4 of 2014: Issue of warrant
1) A warrant contemplated in section 40(1) may be issued by a judge –
a) upon a written application made by the Inspector-General; and
b) if the judge is satisfied, on the grounds mentioned in subsection (2) that –
i) the gathering of information concerning any terrorist activity is necessary to enable the
police force to properly investigate any such terrorist or proliferation activity; or
ii) any such terrorist or proliferation activity cannot be properly investigated in any other
manner.
2) An application referred to in subsection (1)(a) is accompanied by a supporting affidavit setting

out-
a) the facts constituting reasonable grounds that necessitate the issuing of a warrant to enable
the investigation of a terrorist or proliferation activity;
b) that other investigative procedures –
i) has been tried and have failed;
ii) appears to be unlikely to succeed;
iii) would be impractical, due to the urgency of the matter, to carry out an investigation
using only those other procedures;
iv) would not work, as without a warrant it is likely that information of importance with
respect to terrorist or proliferation activities would not be obtained;
c) the type of postal article or communication proposed to be intercepted, the type of
information, records documents or other material proposed to be obtained or removed and
the powers to be exercised for that purpose;
d) the identity of the person, body or organisation, if known, whose communication is proposed
to be intercepted or which is in possession of the information proposed to be obtained;
e) the person, body or organisation, or class or classes of persons, bodies or organisations, to

which the warrant is proposed to be applied; and
f) the place where the warrant is proposed to be executed, if a general description of that place
can be given.
3) A warrant issued under subsection (1) is issued for a period not exceeding three months at a
time, and the period for which it has been issued is specified in that warrant.
4) The judge who issued a warrant or a judge acting in his or her stead, upon a written application
made by the Inspector-General before the expiry of the period or extended period for which the
warrant has been issued, may extend that period for a further period not exceeding three
months at a time, if the judge is convinced that the extension is necessary for the reasons
mentioned in subsection (1)(b).
5) An application referred to in subsections (1)(a) or (4) is heard, and a warrant is issued - (a)
without any notice to the person, body or organisation to which the application applies; and (b)
without hearing the person, body or organisation to which the application applies.
6) If, upon an application made by the Inspector-General before the expiry of the period or
extended period for which a warrant has been issued, the judge who issued the warrant or a
judge acting in his or her stead, is convinced that the grounds on which the warrant was issued,
have ceased to exist, the judge must cancel the warrant.

Activities Act 4 of 2014: Execution of warrant
1) If a warrant has been issued under section 41(1) for purposes of section 40(2)(a), the Inspector-
General must comply with section 70(8) of the Communications Act, 2009 (Act No. 8 of 2009).
2) If a warrant has been issued under section 41(1) for purposes of section 40(2)(b) or (c) a member
of the Police who executes a warrant or assists with the execution thereof, may at any time enter
upon any premises to –
a) install, maintain or remove a monitoring device;
b) intercept or take into possession a postal article;
c) intercept any communication;

d) install, maintain, remove a device by means of which any communication can be intercepted;
e) search the premises with the purpose of gathering information concerning any terrorist or
proliferation activity; or
f) examine, copy, photograph or transcribe any record, document or other material on the
premises; or remove such record, document or other material from the premises, for as long
as is reasonably necessary, for the purposes of examining, copying, photographing or
transcribing it, for the purpose of this Act.
3) If a warrant contemplated in subsection (1) or a copy thereof is handed to the person, body or
organisation responsible for –
a) any activity or activities mentioned in the warrant; or
b) the rendering of any service or services to a person, body or organisation, or class or classes
of persons, bodies or organisation, mentioned in the warrant, by a member of the Police who
executes that warrant or assists with the execution of that warrant, the person, body or
organisation concerned must as soon as possible comply with the terms of that warrant.
4) A person who fails to comply with the terms of a warrant referred to in subsection (3) commits
an offence and is liable to a fine not exceeding N$10 million or five years imprisonment, or to
both such fine and such imprisonment
Communication Act 8 of 2009
Provisions of the communications Act meant to regulate the lawful interception of communications
by law enforcement agencies are yet to come into force.
Autoptic Evidence forcibly and involuntarily
obtained from the person of the accused
Section 37 of Act 51 of 1977: Powers on respect of prints and bodily

appearance of accused
1) Any police official may –
a) take the finger-prints, palm-prints or foot-prints or may cause any such prints to be taken –
i) of any person arrested upon any charge;
ii) of any such person released on bail or on warning under section 72;
iii) of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of
section 40(1);
iv) of any person upon whom a summons has been served in respect of any offence referred
to in Schedule l or any offence with reference to which the suspension, cancellation or
endorsement of any licence or permit or the disqualification in respect of any licence or
permit is permissible or prescribed; or
v) of any person convicted by a court or deemed under section 57 (6) to have been
convicted in respect of any offence which the Minister has by notice in the Gazette
declared to be an offence for the purposes of this subparagraph;
b) make a person referred to in paragraph (a)(i) or (ii) available or cause such person to be
made available for identification in such condition, position or apparel as the police official
may determine;
c) take such steps as he may deem necessary in order to ascertain whether the body of any
person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing
feature or shows any condition or appearance: Provided that no police official shall take any
blood sample of the person concerned nor shall a police official make any examination of the
body of the person concerned where that person is a female and the police official concerned
is not a female.
d) take a photograph or may cause a photograph to be taken of a person referred to in

paragraph (a)(i) or (ii).
2)
a) Any medical officer of any prison or any district surgeon or, if requested thereto by any police
official, any registered medical practitioner or registered nurse may take such steps,
including the taking of a blood sample, as may be deemed necessary in order to ascertain
whether the body of any person referred to in paragraph (a)(i) or (ii) of subsection (1) has
any mark, characteristic or distinguishing feature or shows any condition or appearance.
b) If any registered medical practitioner attached to any hospital is on reasonable grounds of

the opinion that the contents of the blood of any person admitted to such hospital for
medical attention or treatment may be relevant at any later criminal proceedings, such
medical practitioner may take a blood sample of such person or cause such sample to be
taken.
3) Any court before which criminal proceedings are pending may –
a) in any case in which a police official is not empowered under subsection (1) to take finger-
prints, palm-prints or foot-prints or to take steps in order to ascertain whether the body of
any person has any mark, characteristic or distinguishing feature or shows any condition or
appearance, order that such prints be taken of any accused at such proceedings or that the
steps, including the taking of a blood sample, be taken which such court may deem
necessary in order to ascertain whether the body of any accused at such proceedings has any
mark, characteristic or distinguishing feature or shows any condition or appearance;
b) order that the steps, including the taking of a blood sample, be taken which such court may
deem necessary in order to ascertain the state of health of any accused at such proceedings.
4) Any court which has convicted any person of any offence or which has concluded a preparatory
examination against any person on any charge, or any magistrate may order that the finger-
prints, palm-prints or foot-prints or a photograph of the person concerned be taken.
5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this
section, shall be destroyed if the person concerned is found not guilty at his trial or if his
conviction is set aside by a superior court or if he is discharged at a preparatory examination or if
no criminal proceedings with reference to which such prints or photographs were taken or such
record was made are instituted against the person concerned in any court or if the prosecution
declines to prosecute such person.
Section 225 of Act 51 of 1977: Evidence of prints or bodily appearance of

accused
1) Whenever it is relevant at criminal proceedings to ascertain whether any finger-print, palm-print

or foot-print of an accused at such proceedings corresponds to any other finger-print, palm-print
or foot-print, or whether the body of such an accused has or had any mark, characteristic or
distinguishing feature or shows or showed any condition or appearance, evidence of the finger-
prints, palm-prints or foot-prints of the accused or that the body of the accused has or had any
mark, characteristic or distinguishing feature or shows or showed any condition or appearance,
including evidence of the result of any blood test of the accused, shall be admissible at such
proceedings.
2) Such evidence shall not be inadmissible by reason only thereof that the fingerprint, palm-print or
foot-print in question was not taken or that the mark, characteristic, feature, condition or
appearance in question was not ascertained in accordance with the provisions of section 37, or
that it was taken or ascertained against the wish or the will of the accused concerned.
S v Eigowab 1994 NR 192 (HC)

O’Linn J:
“I again disagree with the reasoning of Ackermann J where the learned Judge uses the analogy of the
right of a person not to answer questions by the police. To my mind, there is no true analogy. The
right of a person not to answer questions is trite law, ingrained in our law. There is no provision
similar to s 37 which empowers the policeman to take steps to ensure, even by force, the taking of
blood samples. Furthermore it is recognised by Ackermann J that to take a blood sample from a
person's body is not in conflict with a person's right against self-incrimination in the form of speech
or a communication. See Schmerber v California 384 US 757 (1966); Seetal v Pravitha NO and
Another 1983 (3) SA 827 (D) at 846H-847C; Ex parte Minister of Justice: In re R v Matemba 1941 AD
75 at 82-3; Wigmore A Treatise on the Anglo-American System of Evidence at Common Law; Du Toit
et al Commentary on the Criminal Procedure Act at 122; article by Boister in (1994) 1 SACJ at 122.”7
The Court went on to conclude that:
1. The Accused had a duty to submit to the blood sample.
2. The police official had authority to ensure that it was taken where there was resistance.
S v Malumo and Others 2006 (2) NR 629 (HC)

Hoff J:
The state sought to have a document containing photographs of the Accused persons taken shortly
after arrest admitted into evidence. The court said the following on the taking of photographs and
their use as evidence:
“[21] Similarly, a police officer may take a photograph of a person such as the accused persons after
they had been arrested and the taking of such photograph does not infringe the constitutional
privilege against self-incrimination.
Even where an accused person is compelled to give prints it would not infringe his or her
constitutional rights. In S v Maphumulo 1996 (2) SACR 84 (N) at 88c - d the following appears:
'And the question is whether, if he is required to submit to his fingerprints being taken, or a
photograph being taken, or of his being identified in the dock by a witness testifying in open
court under oath, he is being asked, in effect, to make an admission against his interest, or
an admission incriminating him in the commission of an offence.'
The answer to this question appears at 90b - d:

7
Pp. 210-211.
'. . . the taking of the accuseds' fingerprints whether it be voluntarily given by them, or taken
under compulsion in terms of the empowerment thereto provided in s 37(1) would not
constitute evidence given by the accused in the form of testimony emanating from them,
and as such would not violate their rights as contained in s 25(2)(c), or 25(3)(d) of the
Constitution'.
[22] Section 25(2)(c) of the interim Constitution of South Africa Act 200 of 1993 confers upon an
accused person the right not to be compelled to make a confession or admission, and s 25(3)(d) the
right not to be a compellable witness against oneself.
Section 25(3)(c) deals with the right to be presumed innocent and to remain silent and not to testify
during trial.
[23] The point raised in limine that a trial-within-a-trial should have been held in order to determine
the admissibility of the photographs taken of the accused persons is thus disposed of by the
provisions of s 37(1) of the Criminal Procedure Act 51 of 1977. In terms of the provisions of s 37(1) a
police officer is not only empowered to take photographs or prints, but an accused person may also
be compelled to allow prints or photographs to be taken even against his or her will.” 8
The Court further noted that s 37 applied whether or not a specific reference was made to it by the
State.
S v Gomeb and Others 2015 (4) NR 1100 (HC)

Siboleka J:
This was a rape case in which the state applied for an order authorising the drawing of blood from
accused 1 and 3 in order to compare it with swabs taken from the rape kit.
The state, however, failed to prove the chain of custody relating to the contents of the rape kit and,
as such, the court considered the order sought as being superfluous in the circumstances.
S v Gemeng and Another 2018 (3) NR 701 (HC)

Shivute J:
The state applied for an order, in terms of section 37 of the CPA, compelling the accused persons to
provide buccal swabs for purposes of DNA evidence. Earlier samples obtained did not yield sufficient
amplifiable DNA for comparison.
Defence objected on two grounds:
1. S. 37 only relates to external bodily features and not buccal swabs.

2. This would amount to the accused persons being required to incriminate themselves.
Does S. 37 only apply to external bodily features?
“From the reading of s 37(3) it is evident that the section does not only refer to external body
features but it also refers to taking steps that include taking of a blood sample. A blood sample is not
an external feature or characteristic. According to my understanding of the section steps to be taken
are not limited to blood samples. The court may order any steps to be taken and this includes any
other body features either external or internal. Taking a buccal swab is a step that is meant to prove
a characteristic.”9
8
Pp. 633-634.
9
P. 703
Does the compulsion amount to self-incrimination?
“[6] With regard to the issue that the accused persons will be compelled to incriminate themselves
or to assist the state in proving the case; once the buccal swabs are provided for analysis and
comparisons the results may exonerate the accused persons or may also incriminate them.
Therefore it is not correct that they are compelled to incriminate themselves. Furthermore, s 37(3)
(a) and (b) of the Act gives the power to the court to make such an order.” 10
Evidence of obtained by means of a police trap
S v Kramer and Others 1990 NR 49 (HC)

O’Linn J:
1. The trap as a necessary evil
“It is trite law that the trap system is regarded as a necessary evil in our law - ie that although it is
tainted by immorality, it is justified particularly to bring a known criminal or offender to justice. Our
Courts have traditionally held the view that the trapping system is legal, particularly because it is
also legalised by statutory law in that, for example, moneys paid to traps can be forfeited to the
State, and in some cases must be forfeited to the State in terms of express statutory provisions to
this effect (see s 108(2) of the Precious Stones Act 73 of 1964, and s 6 of Proc AG 7 of 1990, which
added a new s 34ter to s 34bis of Proc 17 of 1939). Compare S v Tsochlas 1974 (1) SA 565 (A) at
573G-574A.
In view of Namibia's Constitution, which in art 12 specifically provides for a fair trial as a
fundamental human right and freedom, legislative enactments which abolish or abridge the
fundamental right to a fair trial will be unconstitutional. See art 25 of the Constitution. If the above-
stated s 6 of Proc AG 7 of 1990 is found to abolish or abridge the aforesaid fundamental right in
providing for an automatic forfeiture of moneys paid to the police or a police agent in the course of a
trap in the pursuance of an agreement for the delivery or acquisition of diamonds and/or insofar as
it purports to give a blanket and unconditional legitimacy to this form of trap, then such enactment
would be unconstitutional. I can also foresee that the defence of 'entrapment' may in future again
be raised in our Courts. However, in view of the fact that the point has not been raised in the Court
a quo or on appeal before us I will proceed on the assumption that our law as to the legality of traps
remains as it was before implementation of the Namibian Independence Constitution (see R v
Clever; R v Iso 1967 (4) SA 256 (RA) at 257B-258D).”11
2. Traps should ideally be used to target perpetual criminals
“To ensure that this objective is scrupulously adhered to, the police should not set a trap for a
person unless the police have obtained, prior to the setting of the trap, credible information on oath
that the 'accused has been engaged in criminal conduct of a similar nature in the past and is likely to
continue to do so unless checked'. In Namibia the Courts have been assured from time to time and
have assumed over a long period of time that the aforesaid practice is adhered to. I say this to
demonstrate the fact that there exist several rules and principles to prevent abuse and am not
suggesting that in this particular case there is proof that this particular precaution was not observed
10
Ibid
11
P. 55
or that the trial Court had committed any irregularity or misdirection in not establishing whether or
not this precaution was observed.”12
3. The trap should try as much as possible to simulate real life
“Fairness and regularity of the trap is not confined to whether or not the victim was encouraged
and/or induced and/or incited by word of mouth. Such encouragement can flow from deeds such
as, for example, when the bait's value and attractiveness is out of proportion to the price or quid pro
quo required from the victim. I think that when the trap offers the victim a parcel of diamonds such
as in this case, 60 diamonds valued at R374 097 for a purchase price of R50 000, then the persuasion
and/or inducement and/or incitement is inherent in the situation.
Such a trap also militates against the established rule that the trap situation must not go further
than the ordinary crime situation which will be encountered in practice; in other words 'every effort
should be made to see that it simulates the situation as it ordinarily exists in the community'. See,
for example, R v Clever (supra at 258E); S v Yagnik 1973 (1) SA 749 (RA); S v Van Pittius and Another
(supra).”13
S v Nangombe 1994 NR 276 (SC)

Dumbutshela AJA:
Facts
Accused worked at CDM. Y suspected him of being involved in the theft of diamonds. When the
Appellant was set to travel to Swakop to see his family. Y asked him to take a parcel with to which
the appellant asked if it contained diamonds. The former answered in the affirmative. Appellant then
requested Y to assist him in removing diamonds from CDM. Appellant would hand diamond to Y
thereafter the latter would leave the building with the said diamonds for appellant to collect at a
later time. They were to share the proceeds. It later emerged that Y was working with the police and
CDM.
“A trap is defined in Gardiner and Lansdown South African Criminal Law and Procedure 6th ed vol 1
at 659-60 as summarised and accepted in S v Malinga and Others 1963 (1) SA 692 (A) at 693F-G and
S v Tsochlas 1974 (1) SA 565 (A) at 574B as follows:
'A trap is a person who, with a view to securing the conviction of another, proposes certain
criminal conduct to him, and himself ostensibly takes part therein. In other words, he
creates the occasion for someone else to commit the offence.'
See S v Ohlenschlager 1992 (1) SACR 695 (T) at 703B.”14
“In Namibia entrapment is not a defence. I cannot say whether the provisions of arts 12 and 25 of
the Constitution of Namibia are contravened by entrapping suspects to crimes. It has still to be
shown that these articles are contravened each time a suspect to a crime is entrapped. Does a fair
trial begin with the arrest of a suspect? Is a fair trial not confined to the actual trial before a
presiding magistrate or Judge? These questions have to be answered before it can be said that arts
12 and 25 provide a defence to trapping.”15
12
P. 56
13
P. 57.
14
P. 281.
15
P. 282.
The Court did, however, point out its displeasure with the use of the trap system in situations where
the trapper is likely to receive a monetary reward or find favour with his employer.
S v De Bruyn 1999 NR 1 (HC)

Hannah J:
Facts
An informer approached the head of the Diamonds and Narcotics Bureau of the Police in Windhoek
concerning the accused who was interested in purchasing diamonds. The police then provided to
constables with diamonds which they would in turn “sell” to the accused. Beyond making the
necessary introductions, the informer did not play a major role in the negotiations. Upon concluding
the transaction, the police identified themselves and arrested the accused.
The Legality of the trap system was in Issue
“As I understand the submission it is on the lines that the entrapment of an accused by agents of the
State, such as the police and their informers, is an illegal, improper and unfair way of gathering
evidence against him and, as such, evidence of entrapment, if led at a trial offends against the
fundamental right of every person to a fair trial. This submission would more properly have been
made before the evidence complained of was received; but I shall deal with it none the less.
Police traps and informers have been part of the armoury of police forces throughout the world for a
great many years in their battle against crime. The Courts have frequently expressed their distaste
for such methods and have been at pains to emphasise the need to treat evidence obtained by such
means with all due caution. But the Courts, certainly in South Africa and the United Kingdom, have
concluded that the use of traps and informers is a justifiable and necessary means of detecting
crime. If I may respectfully say so, the position was very aptly summed up by De Villiers JP many
years ago in R v Seebloem 1912 TPD 30 in the following words (at 33 in fine - 4):
'A trap performs, certainly not a very high function, but a function which has been found
necessary in certain classes of cases. It is countenanced not only by the police authorities,
but also by the Attorney-General and by the Government of the country. And it is so
countenanced, I take it, for the reason that it is a method employed by the police to detect
crime. Under these circumstances I find it impossible to say that a trap is guilty of turpitudo
when he engages in a trapping operation. For this reason the turpitudo is only on the side of
the accused.'
This passage received express approval by Diemont JA in S v Marais 1982 (3) SA 988 (A) at 1002H.
Having regard to the wealth of authority arrayed against him, Mr Hinda was eventually constrained
to concede that in the Roman-Dutch legal system the police trap is not per se illegal. He therefore
limited his argument to unfairness and submitted that the concept was an unfair system of obtaining
evidence. Evidence obtained in such a way prejudices the constitutional right of an accused person
to a fair trial and for this reason alone should be excluded.” 16
Is the trap system fair and constitutional?
The defence argued that, though not illegal per se, the trap system was unfair and potentially
unconstitutional. Authority for such a conclusion was arrived at through an analysis of the American
position on the issue. The court said the following:
16
Pp. 7-8.
“One must proceed with caution before accepting a defence recognised in a country which operates
a different legal system and one must examine with care the principles upon which such a defence is
based. It will, however, suffice for the purposes of this judgment if I set out the defence of
entrapment in the United States of America as described in Burchell and Hunt South African Criminal
Law and Procedure 2nd ed vol 1 at 383:
'The defence of entrapment by a government official is a creation of the American Courts.

The word ''entrapment'' is inappropriate since ''it is not the entrapment of a criminal upon
which the law frowns, but the seduction of innocent people into a criminal career by its
officers is what is condemned''. In other words, because the trap has, in accordance with his
usual function, merely created the occasion for the accused to commit the offence is no
defence. To excuse, the criminal design must have originated with the official. He must have
implanted in the mind of an innocent person the disposition to commit the alleged offence
and have induced its commission in order that he might be prosecuted.'
In R v Ahmed 1958 (3) SA 313 (T), a case referred to by Miss Lategan, for the State, Williamson J was
faced with a somewhat similar argument to that now advanced by Mr Hinda, although, of course, no
constitutional point was raised. The learned Judge said at 317A - G:
'It may be possible that our Courts, on principles similar to those that have been worked out
in America, may refuse to convict in cases where there has been ''improper'' trapping in the
sense that the Court deprecates trapping in those particular cases. I am only aware,
however, of the Court having treated the fact of an accused having been trapped as a
possible mitigating factor in relation to the question of sentence and not as a defence to the
charge involved. I am not concerned here with the oft-mentioned dislike of the Court of
trapping evidence or with the care exercised before such evidence is unreservedly accepted.
It has been suggested by a writer quoted at 625 of the work of Glanville Williams referred to
above that the question whether a trapping on an advance by a government official should
or should not receive judicial approval should depend upon the answers to the following
questions: (1) Are the violations so frequently committed that a special effort must be made
to stamp them out?; (2) Is the crime so repugnant to decency or so serious in its
consequences that a government is justified in testing its citizens?; (3) Is the offence so
shrouded in secrecy that evidence is extremely difficult to secure in any other way? If these
are the sort of tests which should be applied by the Court in deciding whether it should or
should not mark its disapproval of a resort by the State to trapping in any particular type of
case, I can only say that in relation to the crime of receiving stolen property or any
associated crime, the answer to each of the postulated questions should be, in my opinion,
in the affirmative. But I am not at all satisfied that it is necessarily the function of the Court
to express its disapproval or otherwise of the method of investigation considered necessary
by the authorities charged with the investigation and suppression of crime in regard to any
particular crime or class of crime. If the commission of a crime is proved by the production of
evidence which is duly found to be credible and acceptable, then in my view the Court must
act on that evidence. But in punishing an offender, the Court may well be strongly influenced
by the fact that he was induced to commit the crime as a result of advances made to him by
a State official or other trap used by such an official.'
In my opinion, any reasonable, fair-minded person would immediately recognise the intrinsic
unfairness involved in a government official deliberately enticing or inducing someone, not
otherwise predisposed to commit an offence, to commit one, and then, having done so, to turn
round and instigate a prosecution against such person. Certainly, such conduct would deeply offend
my sense of fair play and I am prepared to assume, without deciding the question, that such conduct
is so unfair that evidence gathered in such a way should be excluded on the ground that to admit it
would prejudice the right of an accused to a fair trial.
I approach the matter in this highly qualified way for two reasons. Firstly, the matter has not been
fully argued and, although Williamson J flirted with the concept, no Court operating the Roman-
Dutch system of law has, so far as I am aware, succumbed to the flirtation. It would be a bold Court
indeed which were to hold that the defence of entrapment exists in Namibia without first hearing
full argument. The second and more compelling reason is that it is unnecessary, in the circumstances
of the present case, to decide the matter. Counsel does not submit nor, in my view, could he
properly submit, that this Court should go further down this troublesome road than the Courts of
the United States of America have travelled. Even assuming that there is a defence of entrapment or
official instigation of crime in the sense recognised in the United States, the facts of the present case
fall far short of raising such a defence. The police did no more than create the occasion for the
accused to commit the offence. They did not instigate it. If the informer laid temptation in the
accused's way and acted the role of seducer, and there is no evidence that he did, then he did so
acting on his own behalf and not on behalf of officialdom. In my judgment, for this reason the first
defence argued by Mr Hinda fails.”17
S v Shituna (CA 59/2011) [2013] NAHCNLD 51 (8 October 2013)

Tommasi J:
Liebenberg J:
[20] In S v De Bruyn 1999 NR 1 (HC) this court considered entrapment as a defence and, without
deciding the issue, expressed the opinion that: ‘Any reasonable, fair-minded person would
immediately recognise the intrinsic unfairness involved in a government official deliberately enticing
or inducing someone, not otherwise predisposed to commit an offence, to commit one, and then,
having done so, to turn round and instigate a prosecution against such person.’
[21] W/O Jason testified that he was measuring the speed of vehicles. Nothing in his evidence
suggests that the original criminal design originated with him. His aim was merely to detect those
motorists who offended by exceeding the speed limit. It is probable that he may have concealed his
presence in the manner testified to by the appellant as this practice is not uncommon. In. S v AZOV
1974 (1) SA 808 (T) Snyman J at page 809 B – D describe this kind of trap in the following manner::
“There is the trap which most of us dislike so much where a traffic inspector puts a cord across the
road and when you go over it too fast he traps you. There the traffic inspector has done nothing
really to entice you to exceed the speed limit; he has merely set about trapping you. In that respect
perhaps the Afrikaans expression is a better one where one would say in such a case ‘Hy het hom
betrap’. He did not entice him into doing the thing, he simply caught him doing it by setting up
special machinery in order to catch him. There is no reason why a trap of that kind should be treated
with the disapproval which is suggested in general about traps.” I equally see no reason why this
court should disapprove of speed traps even where traffic officers conceal their presence on the
road. “18
17
Pp. 8-9.
18
Pp. 8-9.
Evidence obtained by means of torture
S v Minnies and Another 1990 NR 170 (HC)

Du Toit AJ:
Facts discovered as a result of an inadmissible pointing out
After analysing the development of the law on pointing outs, the court said the following:
“It is against this legislative background that I must evaluate the interrogation and the pointings out.
In doing so I am influenced by the following considerations:
1. In interpreting and giving effect to human rights provisions, I would rather err, if I do err, on
the side of the protection of the individual against police excesses.
2. Nevertheless I would not seek to hamper the just efforts of the police in the difficult task of
combating crime.
3. Notwithstanding the view expressed in S v Ismail, I respectfully question whether the

Legislature, which enacted s 218(2), really wanted to sanction police violence as a method of
solving crimes.
4. S v Mmonwa (supra) supports the view that s 218(2) in any event gives a Court a discretion
to admit or exclude evidence of a pointing out. This is in accordance with the more modern
view as to the treatment of facts resulting from confessions (or admissions). Where the
evidence is obtained by torture, it would bring the administration of justice into disrepute if
such evidence were admitted. This affords adequate grounds, in my view, for exercising
such a discretion against the admission of such evidence.
5. The views expressed herein are based on the facts of this case. I do not deal with other
forms of illegally obtained evidence, and do not wish to do so.” 19’
On torture
“Article 12(1)(f) is peremptory in its terms. The Court shall not admit in evidence testimony which
has been obtained by torture.”20
Conclusion
19
Pp. 198-199
20
P. 199.
The fact that X was discovered was admissible the fact that it was discovered through the accused’s
conduct was inadmissible.
S v Malumo and Others 2013 (3) NR 868 (HC)

Hoff J:
The Court said the following regarding torture:
“[46] Article 8(2)(b) of the Constitution of Namibia provides that no persons shall be subject to
torture or to cruel, inhuman or degrading treatment and punishment.
[47] In the case of Jestina Mukoko v The Attorney-General an unreported judgment of the Supreme
Court of Zimbabwe delivered on 20 March 2012, Malaba DCJ in dealing with s 15(1) of the
Zimbabwean Constitution which is similarly worded as art 8(2)(b) of the Namibian Constitution,
stated the following at 32 – 33:
'The obligation on the State, through its agents, not to admit or use in criminal proceedings,
information or evidence obtained from an accused person or any third party by infliction of
torture, inhuman or degrading treatment is not explicitly set out by a separate provision in
the Constitution. It would be contrary to the object and purpose of the prohibition under s
15(1) of the Constitution to allow admission or use of such information or evidence in any
legal proceedings.'
[48] The court continues at 33 (last paragraph) to 34 as follows:
'At various stages of the whole process of proceedings by which the State deals with persons
suspected of crime who are in the custody of police officers, the Constitution imposes duties
for the protection of the fundamental rights of the subject. The primary duty is on the law
enforcement agents not to abuse executive authority in the investigation of crime by
torturing or treating suspects in an inhuman or degrading manner to extract information or
confessions to be used against them in legal proceedings anticipated to follow the ill-
treatment. If the duty fails to achieve its intended purpose at this stage, the law imposes the
duty on public prosecutors not to admit or use information or evidence obtained from an
accused person suspected of having committed a criminal offence or any third party by
torture, inhuman or degrading treatment when making prosecutorial decisions. If the duty
fails at this stage the law imposes the duty on judicial officers. Eventually it lies with the
Court to intervene through the exercise of its original jurisdiction to enforce or secure the
enforcement of fundamental rights.'
The Court continues at 35 as follows:
'Information or evidence obtained from an accused person or any third party by torture,
inhuman or degrading treatment if admitted or used in legal proceedings would reduce s
15(1) of the Constitution to a mere form of words. As JACKSON J put it in the dissenting
opinion in Korematsu v United States (1944) 323 US 214 at 246 once judicial approval is
given to such conduct it lies about like a loaded weapon ready for the hand of any authority
that can bring forward a plausible claim of an urgent need. In People (Attorney-General) v
O'Brien (1965) IR 142 KINGSMILL MOORE J of the Supreme Court of Ireland said that: to
countenance the use of evidence extracted or discovered by gross personal violence
would . . . involve the State in moral defilement.'
[See also Ex parte Attorney-General: In re Corporal Punishment by Organs of State 1991 NR 178 (SC)
(1991 (3) SA 76); S v Likuwa 1999 NR 151 (HC) (1999 (2) SACR 44); the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, acceded to by Namibia during
1994.”21
The Court was seemingly in support of the view expressed in the Zimbabwean case of Jestina
Mukoko because Hoff J goes on to say, in relation to the evidence of a witness obtained by tortue:
“[221] I have discussed the issue of torture and degrading and humiliating treatment of witnesses
(supra) and must mention at this stage that had the State presented the evidence of this witness as
the only evidence against the accused person I would have disallowed such evidence and would
have released the accused.”22
21
Pp. 884—885.
22
This part is not included in the reported judgement.
Late disclosure and/or evidence obtained from
continues investigations
S v Malumo and 112 Others 2011 (1) NR 169 (HC)

Hoff J:
The state sough to lead evidence of witnesses whose statements were only obtained many years
after the commencement of trial and additional statements from witnesses who’d already provided
statements.
Should such evidence be admitted or not (depends)
“[48] It will depend on the facts and circumstances of each case whether a decision to exclude
evidence obtained during a trial in consequence of continuous investigations, is justified or not.
[49] The principle enunciated in aforementioned authorities (Mlwandle, Du Toit en Andere, R v

Antinello and R v B supra) is that in spite of the fact that it may have far-reaching consequences for
the State a court may bar the admission of evidence obtained in violation of an accused's
constitutional rights where its admission would render the trial unfair or otherwise detrimental to
the administration of justice.
[50] The State has an onus in criminal proceedings to show beyond reasonable doubt that the
admission of evidence will not ultimately render the trial unfair.
[51] In this regard the State would do so by presenting evidence, in casu most probably, by leading
investigating officers or other witnesses to show that the accused persons would not be prejudiced
should the new and additional statements be admitted. Mr Kauta suggested to State counsel that
the procedure to be followed in this instance would be to hold a trial-within-a-trial. This suggestion it
appears to me was not seriously considered, since it appears from the submissions by Mr July that
the State viewed the objection raised as a factor which affects the weight to be attached to evidence
and not the admissibility of the evidence sought to be presented. No evidence was presented by the
State why these statements (ie the five new statements and the five additional statements) could
not have been taken at an earlier stage. There is no answer to the question why it was necessary at
this stage of the trial to take these statements. There is no evidence that the accused persons would
not be prejudiced should these witnesses be allowed to testify.
[52] The constitutional rights that would be violated should these witnesses be allowed to testify are
the right of an accused person to be released should the trial not take place within a reasonable time
(art 12(1)(b)), the right to cross-examine witnesses and the right to adduce evidence (art 12(1)(d)),
and the right to be afforded adequate time and facilities for the preparation and presentation of
their case (art 12(1)(e)).”23
The contamination argument
23
PP. 181-182.
“[57] This court was in support of the objection, referred to 'the risk of contamination' in respect of
the statements discovered at this stage. The State did not specifically counter this submission. In a
nutshell it relates to the vast media attention attracted by this case from its inception. Evidence has
been disseminated on a continuous basis by way of the printed and electronic media. In addition it
must be added that hundreds of State witnesses had already testified, the majority whom hail from
the Caprivi area, the same area where the majority of the new witnesses reside.
[58] Even though there is no evidence to this effect before this court, I am of the view, having regard
to these factors, that there is a real risk that these new statements may contain allegations based on
information obtained by means of secondary sources and not from the witnesses' original
knowledge or memory of incidents referred to in these statements. I agree with counsel that it may
be virtually impossible for this court, given these circumstances, to distinguish between original
knowledge and 'implanted' knowledge. This in turn creates a very real trial related prejudice, and the
impression (as submitted by counsel) is created that the State patches up its case as gaps are
discovered.
[59] I have indicated earlier that there is no explanation why this court must at this very late stage
admit the evidence based on these statements (ie new as well as additional statements) and
furthermore there is no explanation why these statements could not have been provided much
earlier during the course of the trial.” 24
In conclusion
“[60] The right of the State to present evidence obtained by way of continuous investigations during
the course of this trial must be limited by the right of accused persons to a fair trial.” 25
In conclusion, the court ruled as follows:
1. That the objection in respect of witnesses Brogan Maumbwilo, Eustace Mukela Simataa,
Precious Katangu Kabula, Chikoma Tryphinan Sezuni and Mukungu Mukungu Morricious is
hereby upheld.
2. That the objection in respect of witnesses Elasca Samwele Sitale, Linus Manga Kufuna,
Chrispin Mulatehi Likemo, Edwin Sitali Mweti and Primes Vitssentsius Amwaamwa is hereby
dismissed. The State is however restrained from presenting evidence in this court in respect
of these witnesses founded on the contents of their additional statements.
3. That this ruling is based on the view of this court, namely that to allow the first five
witnesses to testify in respect of new evidence and last mentioned five witnesses in respect
of what is contained in their additional statements, would violate the fundamental right of
the accused persons to a fair trial guaranteed by the provisions of art 12 of the Namibian
Constitution.”26
24
PP. 182 – 183.
25
P. 183.
26
Ibid
Onus
S v Malumo and Others (CC 32/2001) [2008] NAHCMD ( 3 November 2008)

Hoff J:
“[19] In respect of the submission that a party seeking to establish the existence of a constitutional
right bears the onus of proving the existence of such right and the violation of such right, this court
has been referred to Van den Berg and Kauesa supra in support thereof.
[20] In Van den Berg supra the High Court of Namibia with approval referred to Kauesa v Minister of
Home Affairs and Others 1995 (1) SA 51 (Nm) where it was held (per O'Linn J following the Canadian
decision in R v Oakes (1986) 26 DLR (4th) 200) that the onus is on an applicant to prove that a
fundamental right or freedom has been infringed. It appears from Kauesa that the reason why an
applicant bears the onus to prove the existence and violation of a fundamental right is because of
the presumption of constitutionality in respect of Acts of Parliament or regulations promulgated
under statutes. In Mathebula supra Claasen J in answering the question who bears the onus of
proving the violation of a fundamental right stated the following at 16h – i:
‘It is now settled law that the answer to the question is: the applicant who alleged and relies upon
such infringement bears the onus to prove the existence of a constitutional right and its
infringement.’
'[21] A reading of Mathebula and Kauesa supra reveals that the authorities relied upon deal with
applications in which the constitutionality of statutory provisions had been challenged on the basis
of the infringements of fundamental human rights. (See also S v Smit NO and Others 1996 (2) SACR
675 (Nm).)
[22] In S v Mgcina 2007 (1) SACR 82 (T) the Transvaal Provincial Division (consisting of three Judges)
considered inter alia the finding of the court in Mathebula supra and concluded that the court was
wrong in holding that the accused person in that case bore an onus to prove an infringement of a
fundamental right when it is alleged that in the course of obtaining evidence against an accused
person his fundamental rights have been infringed. The court in Mgcina held that it is important to
distinguish between two distinct situations. The first situation is where an applicant alleges that a
fundamental right has been violated by an Act or legal prescript, and such alleged violation forms the
foundation of the relief sought by such applicant. The second situation is where the State in criminal
proceedings intends to present evidence and an accused person alleges that the evidence was
obtained in a manner which violates the fundamental rights of such accused person.
[23] In the first situation a two-pronged enquiry is followed. It must first be determined whether
there has been a violation of a fundamental right, and if so, is it justified to limit such right in any
way? In this situation the applicant must prove the existence and violation of a fundamental right. If
an applicant is successful, then the party seeking to limit that right bears an onus to prove the
justification of such limitation.
[24] The second situation (which is distinct from the first situation) concerns the question whether
evidence has been obtained which violates a fundamental right. It concerns the admissibility of
evidence the State intends to rely upon. In this situation an accused person bears no onus to prove
anything. The onus is on the State to prove beyond reasonable doubt that a fundamental right had
not been violated.' [See Mgcina supra 94h – 95d.]”
S v Engelbrecht 2017 (3) NR 912 (SC)

Mainga JA:
The onus is on the accused to prove the violation of a constitutional right. Notwithstanding that, the
court still accepted that the accused rights to legal representation had not been proven based on the
failure of the state to establish that it had.
NB: The Malumo judgement seems to be at odds with the view expressed by the Supreme Court in
Engelbrecht. This means that the accused in fact bears the onus to prove that a constitutional right
has been violated. However, one could argue that the Engelbrecht exposition of the law in this
manner appears to be obiter. I say this because, notwithstanding the view expressed supra by
Mainga JA, the court still excluded the evidence on the basis of a violation of a constitutional right.
This is in spite of the fact that the appellant had not lead credible evidence in order to discharge
the apparent onus.
Discretion to exclude or include unconstitutionally
or improperly obtained evidence
Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA

187 (CC)
Kriegler J:
The applicant was, inter alia, challenging the constitutional validity of searches conducted in terms
of a particular statutory provision. The Court was of the view that the conduct occurred prior to the
coming into operation of the South African Constitution and thus did not need to adhere to it for
validity in relation to that conduct. The court, however, pointed out that even if the Constitution was
applicable the evidence obtained by means of unlawful search and seizure need not necessarily be
excluded.
“[13] In any democratic criminal justice system there is a tension between, on the one hand, the
public interest in bringing criminals to book and, on the other, the equally great public interest in
ensuring that justice is manifestly done to all, even those suspected of conduct which would put
them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing
endeavour by international human rights bodies, enlightened legislatures and courts to prevent or
curtail excessive zeal by State agencies in the prevention, investigation or prosecution of crime. But
none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for
technical niceties and ingenious legal stratagems. What the Constitution demands is that the
accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has
to be decided upon the facts of each case, and the trial Judge is the person best placed to take that
decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But
there will also be times when fairness will require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.
[14] If the evidence to which the applicant objects is tendered in criminal proceedings against him,
he will be entitled at that stage to raise objections to its admissibility. It will then be for the trial
Judge to decide whether the circumstances are such that fairness requires the evidence to be
excluded. It follows that the applicant is not entitled to an order from this Court in these
proceedings that the evidence secured as a result of the searches and seizures will be inadmissible in
criminal proceedings against him. Insofar as the decision in Park-Ross is inconsistent with this
conclusion, it must be taken to be incorrect.” 27
S v De Wee 1999 NR 122 (HC)

Smuts AJ:
Facts
27
Pp. 195-196
This was a ruling on the admissibility of a warning statement obtained from the Accused without an
explanation of his rights to legal representation. Since the Court had concluded that such a right was
constitutionally protected, it had to be determined whether unconstitutionally obtained evidence
should be excluded in every circumstance or whether there was a discretion:
“In considering the correct approach to be adopted where evidence obtained in conflict with
constitutional rights is concerned, it is important to have regard to the approach of the Supreme
Court although in a different context to this matter. In S v Shikunga and Another 1997 NR 156 (SC);
1997 (2) SACR 470 (NmS) Mahomed CJ, after a thorough survey of the approaches of several
jurisdictions with regard to this vexed question which included Canada, United States, Jamaica,
Australia and South Africa, concluded at 171B - D (NR), 484D - F (SACR) that:
'What one is doing is attempting to balance two equally compelling claims - the claim that
society has that a guilty person should be convicted and the claim that the integrity of the
judicial process should be upheld. Where the irregularity is of a fundamental nature and
does not taint the verdict, the former interest prevails. This does not detract from the
taint the conviction which followed thereupon.'
This approach has also recently been reaffirmed by the Supreme Court in the matter of S v
Kandovazu 1998 NR 1 (SC).
This general approach is also in accordance with that adopted in South Africa in respect of the
exclusion of evidence obtained in conflict with constitutional rights after the adoption of their
constitution. See: Key v Attorney-General, Cape Provincial Division and Another 1996 (4) SA 187 (CC)
at 195G - 196D paras [13] and [14] where the following was stated by Kriegler J:
'In any democratic criminal justice system there is a tension between, on the one hand the
public interest in bringing criminals to book and, on the other, the equally great public
legislatures and courts to prevent or curtail excessive zeal by State agencies in the
decided upon the facts of each case, and the trial Judge is the person best placed to take
obtained unconstitutionally, nevertheless be admitted. If the evidence to which the
applicant objects is tendered in criminal proceedings against him, he will be entitled at that
stage to raise objections to its admissibility. It will then be for the trial Judge to decide
whether the circumstances are such that fairness requires the evidence to be excluded.'
See also S v Zuma and Others 1995 (2) SA 642 (CC).
I respectfully agree with the approach adopted by Kriegler J in the present context.
I also accept that the Supreme Court has held that, in cases where irregularities even involve
constitutional rights, a Court is vested with a discretion to determine whether or not those
irregularities would result in a failure of justice which would taint a conviction, prejudice the accused
or are of such a fundamental nature that evidence should be excluded. I have already indicated that
the Melani judgment relied upon by Mtambanengwe J also makes it clear that there is not an
absolute exclusion of such evidence. This is also the approach adopted by O'Linn J in the Oberholzer
case.
I am accordingly of the view that the Courts in this country are thus vested with a discretion when an
irregularity is raised involving the denial of a constitutional right such as evidence obtained in
conflict with such a right, as to whether the evidence should be admitted in the face of that denial of
that constitutional right.”28
How to exercise the discretion?
“I also find it would be most difficult indeed to attempt to formulate a test which would result in
exhaustively dealing with different possibilities and decline to do so. I have also had regard to the
way in which Farlam J exercised his discretion in the Motloutsi case supra in following the approach
adopted by the Irish courts. I have also had regard to the Canadian approach which is referred to in
the Melani, Motloutsi and Van der Merwe cases and certain of the other judgments which I have
referred to. This involves a test as to whether the admission of the evidence would bring the
administration of justice into disrepute in the eyes of a reasonable person. Whilst these tests have
their advantages and may at times be helpful in assisting a Court in seeking to achieve the balance
referred to by the Chief Justice in S v Shikunga, each case must clearly be determined on its own
merits.”29
How the court exercised the discretion to the facts
“The next question I now face is the manner in which the discretion vested in me is to be exercised.
Unlike the case of S v Bruwer (supra) I have nothing before me which would suggest that the accused
in this matter would or should have been aware of his right to consult a legal representative. The
State has been unable to put any circumstances before me to satisfy me that this was the case. It is
however true that the accused has not been helpful in this regard by not giving evidence. But in view
of the grave potential prejudice to him in allowing the evidence, I find myself in the position that
there are no circumstances before me which satisfy me that it would be fair and right to allow
evidence of his statement without his having been informed of his right to consult with a legal
representative. Fairness thus requires in my view that the evidence be excluded.
In all these circumstances I have reached the conclusion that the statement which the State seeks to
adduce in evidence against the accused is inadmissible.” 30
S v Forbes and Others 2005 NR 384 (HC)

Mtambanengwe AJ:
On appeal from the Regional Court in a robbery matter. The two accused had been convicted mainly
on the strength of their pleas of guilty during the S 119 proceedings. It was common cause that their
rights to legal representation prior to pleading in terms of section 119 was not explained to them. In
considering the effect of this, the court said the following:
28
PP. 126 – 127.
29
P. 128.
30
P. 129.
“The question whether evidence unconstitutionally or unlawfully obtained should or should not be
admitted has also received judicial attention in a number of cases, in this jurisdiction and in South
Africa and elsewhere. In S v Shikunga and Another 1997 NR 156 (SC) Mahomed CJ considered the
issue in light of the background of an admission of a confession pursuant to s 217(1)(b)(ii) of the
Criminal Procedure Act 51 of 1977. In that case there was evidence aliunde the confession, which
'showed clearly that the conviction of the second accused would inevitably have followed even if the
constitutional irregularity relied upon had not been committed' (contrast the present case where the
s 119 proceedings form the main basis of conviction of the two appellants). However, in his survey of
the decisions on the approach to the question in various jurisdictions, the Chief Justice made certain
important remarks which must be borne in mind in considering the question in this case - whether
the irregularities alleged vitiate the proceedings. At 164I to 165C the learned Chief Justice said:
'There appears to be a tension between two important considerations of public interest and
policy in the resolution of this problem. The first consideration is that accused persons who
are manifestly and demonstrably guilty should not be allowed to escape punishment simply
because some constitutional irregularity was committed in the course of the proceedings.
There is however a competing consideration of public interest involved. It is this: the public
interest in the legal system is not confined to the punishment of guilty persons, it extends to
the importance of insisting that the procedures adopted in securing such punishments are
fair and constitutional and that the public interest is prejudiced when they are not.'
After examining the approach adopted in various jurisdictions, the Chief Justice formulated the
proper approach as follows (at 170F-171D):
'There can be no doubt from these authorities that a non-constitutional irregularity

committed during a trial does not per se constitute sufficient justification to set aside a
conviction on appeal. The nature of the irregularity and its effect on the result of the trial has
to be examined. Should the approach be different where the error arises from a
constitutional breach? That question assumes that the breach of every constitutional right
would have the same consequence. In my view that might be a mistaken assumption and
much might depend on the nature of the right in question. But even if it is assumed that the
breach of every constitutional right has the same effect on a conviction which is attacked on
appeal, it does not follow that in all cases that consequence should be to set aside the
conviction. I am not persuaded that there is justification for setting aside on appeal all
convictions following upon a constitutional irregularity committed by a trial court.
It would appear to me that the test proposed by our common law is adequate in relation to
with an acquittal on the merits. Essentially the question that one is asking in respect of
stand. What one is doing is attempting to balance two equally compelling claims - the claim
where the irregularity, though less fundamental, taints the verdict the latter interest
caution which a Court of appeal would ordinarily adopt in accepting the submission that a
In S v Ngcobo 1998 (10) BCLR 1248 (N) Combrinck J discussed the approach adopted in South Africa
to the question whether to admit or exclude evidence obtained in violation of an accused's
constitutional rights at 1252C-1255A. In the course of that discussion the learned Judge said at
1252F-1253A:
'The approach to be adopted to this type of evidence was laid down in Key v Attorney
General Cape of Good Hope Provincial Division and Another (supra) and endorsed by the
Supreme Court of Appeal in Khan v S [1977] 4 All SA 435 (A). The oft-quoted passage (at
195G-196C) in the Key judgment bears repeating:
''In any democratic criminal justice system there is a tension between, on the one
hand, the public interest in bringing criminals to book and on the other, the equally
great public interest in ensuring that justice is manifestly done to all, even those
suspected of conduct which would put them beyond the pale. To be sure, a
prominent feature of that tension is a universal and unceasing endeavour by
international human rights bodies, enlightened Legislatures and courts to prevent or
curtail excessive zeal by State agencies in the prevention, investigation or
prosecution of crime. But none of that means sympathy for crime, and its
perpetrators. Nor does it mean a predilection for technical niceties and ingenious
legal stratagems. What the Constitution demands is that the accused be given a fair
trial. Ultimately, as was held in Ferreira v Levin fairness is an issue which has to be
decided upon the facts of each case, and the trial Judge is the person best placed to
take that decision. At times, fairness might require that evidence unconstitutionally
obtained be excluded. But there will also be times when fairness will require that
evidence, albeit obtained unconstitutionally, nevertheless be admitted. If the
evidence to which the applicant objects is tendered in criminal proceedings against
him, he will be entitled at that stage to raise objections to its admissibility. It will
then be for the trial Judge to decide whether the circumstances are such that
fairness requires the evidence to be excluded.''’
And at 1254E-1255A the learned Judge had this to say:
'It is essential that society should have confidence in the judicial system. Such confidence is
eroded where courts on the first intimation that one of an accused's constitutional rights has
been infringed excludes evidence which is otherwise admissible. Such evidence is very often
conclusive of the guilt of the accused. It is either admissions or a confession made
voluntarily and without undue influence wherein the accused implicates himself in the
commission of the offence or it is the discovery either by way of a search or a pointing-out of
objects such as the murder weapon or property of the victim which conclusively link the
accused to the crime. At the best of times but particularly in the current state of endemic
violent crime in all parts of our country it is unacceptable to the public that such evidence be
excluded. Indeed the reaction is one of shock, fury and outrage when a criminal is freed
because of the exclusion of such evidence. One need only postulate the facts of the present
matter to illustrate the point. A defenceless woman and three men are gunned down in cold
blood in the sanctity of their home in the middle of the day. The slain woman's personal
belongings taken during the course of the robbery are dug up by the appellant in a mealie
field behind his parents' home the next night. Imagine the reaction of the man or woman in
the street if the appellant were acquitted because Captain Kweyama failed to again warn the
appellant of his right to silence and the consequences of his act of pointing-out the stolen
property.
It has become noticeable in appeals and reviews from the lower courts, which have come
before us that at the first intimation that an accused's constitutional rights have been
infringed the evidence tainted by such infringement is without further ado excluded. It is
necessary therefore to emphasise the discretion which rests in the presiding officer to
decide whether the evidence should be excluded. That discretion still remains as is apparent
from the wording of s 35(5) of the final Constitution.
Whether to admit or exclude evidence so obtained must be decided in a trial-within-a-trial F

where it can be factually established whether there was a causal link between the denial of
the right and the evidence obtained, whether despite the denial of the right the accused was
aware of or must have been aware because of his understanding of his rights and whether
he knew or must have known what the consequences of his statements or conduct would
be.
In the present case the learned Judge a quo's approach was four square within the principles
laid down in Key's and Khan's cases. The interests of the accused and the proper
administration of justice given all the facts and circumstances were correctly weighed
against each other and the result was manifestly correct.'
Public policy plays a vital role in considering the admission of this evidence. In Klein v Attorney-
General Witwatersrand Local Division and Another 1995 (2) SACR 210 (W) the following was said at
224a-b:
'Such a rigid principle would operate to the disadvantage of law enforcement and the
consequent prejudice of the society which the law and the Constitution is intended to serve.
Before any remedy can be enforced the nature and extent of the violation must be properly
considered. It is the duty of the courts to do so in fulfilment of their obligation to give effect
to the principle of public policy.'
In S v Motloutsi 1996 (1) SACR 78 (C) (1996 (2) BCLR 220) it was observed:
'that in every case a determination has to be made by the trial Judge as to whether the
public interest is best served by the admission or by the exclusion of evidence of facts
ascertained as a result of, and by means of, illegal actions'
See also the cases of S v Shaba en 'n Ander 1998 (1) SACR 16 (T) and Director of Public Prosecutions,
Natal v Magidela and Another 2000 (1) SACR 458 (SCA).”31
Did the court a quo properly apply its discretion in admitting the evidence?
The following facts were considered in deciding whether the s 119 proceedings must be allowed as
part of the evidence.
31
PP. 391 – 394.
They were aware of their rights to be legally represented. They were so informed by the police at
their arrest and during the taking of the warning statements. They are educated and industrious
people in the society.
Accused 1 was fully aware of the factual issues as he was present at the scene and could claim to be
a victim.
They must have been fully aware of the circumstances surrounding the investigation. They informed
the police that they would be prepared to make a statement to the court.
The charge was a simple one where one can either admit or deny participation.
They made certain admissions during the questioning by a magistrate in open court according to the
argument by their representatives. They could hardly be under any false illusion as to what the
effect could be.”32
In Conclusion
“The magistrate's exercise of his discretion in this matter cannot be faulted. The two appellants were
rightly convicted and their appeal should be dismissed.” 33
S v Malumo and Others (2) 2007 (1) NR 198 (HC)

Hoff J:
After concluding that the non-explanation of a suspect’s rights to legal aid or self-incrimination was a
violation of his constitutional rights. The court considered whether or not to exclude the evidence
and said the following regarding the existence of a discretion in that respect:
“[o]n the authority of inter alia Namibian case law, where evidence was obtained in conflict with the
constitutional rights of an accused person the courts have a discretion to allow it or to exclude it.
[89] In S v Shikunga and Another 1997 NR 156 (SC) Mahomed CJ considered the aforementioned
question and concluded as follows at 171B - D:
‘What one is doing is attempting to balance two equally compelling claims - the claim that
society has that a guilty person should be convicted, and the claim that the integrity of the
judicial process should be upheld. Where the irregularity is of a fundamental nature and
does not taint the verdict the former interest prevails.’
[90] The same approach is adopted in South Africa. In Key v Attorney-General, Cape Provincial
Division, and Another 1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788) at 195G - 196D
the following was stated by Kriegler J:
‘[13] In any democratic criminal justice system there is a tension between, on the one hand,
the public interest in bringing criminals to book and, on the other, the equally great public
32
P. 394.
33
P. 395.
obtained unconstitutionally, nevertheless be admitted.
[14] If the evidence to which the applicant objects is tendered in criminal proceedings
against him, he will be entitled at that stage to raise objections to its admissibility. It will
then be for the trial Judge to decide whether the circumstances are such that fairness
requires the evidence to be excluded.’
[91] It is now settled law that each case must be determined on its own merits.” 34
Applying the discretion
In applying its discretion, the court said the following:
“[93] In S v Motloutsi 1996 (1) SACR 78 (C) ([1996] 1 All SA 27) at 86e Farlam J (as he then was)
preferred the approach adopted by the Irish courts namely that 'where there has been a deliberate
and conscious violation of constitutional rights by the State or its agents evidence obtained by such
violation should in general be excluded '.
[94] The test applied in Canada (whether the admission of evidence obtained in violation of an
accused's constitutional rights would bring the administration of justice into disrepute) is regarded
by Farlam J as too narrow an approach, though the bringing of the administration of justice into
disrepute is but one factor to be considered, granted, a very important factor.
[95] On the State's own version, in this trial-within-a-trial the evidence clearly points to the fact that
there was a deliberate and conscious violation of the constitutional right to legal representation and
the right against self-incrimination, as well as the right to remain silent. The latter right is normally
explained when a person is warned in terms of the Judges' Rules.
[96] The violation of aforesaid rights is, in my view, of such a nature that at least it would, in the
event of this court eventually convicting the accused person, taint such a conviction. The interest
referred to supra that the integrity of the judicial process be upheld thus prevails, and this court
exercises its discretion against the admission of the evidence objected to.” 35
S v Kukame 2007 (2) NR 815 (HC)

Van Niekerk J:
The court had concluded the accused’s constitutional rights were violated in the obtaining of a
confession from him. It had to be determined what the effect thereof was.
The Discretion
[74] Where evidence, as here in the case of the confession, was obtained in conflict with the
accused's constitutional rights, the court has a discretion to allow it or to exclude it (S v Oberholzer
(delivered 15/5/1997 HC); S v De Wee 1999 NR 122 (HC) at 127I; S v Malumo and Others (2) 2007 (1)
34
Pp. 214-215.
35
PP. 215-216.
NR 198 (HC) para 88). The underlying reason for not adopting a strictly exclusionary rule to
unconstitutionally obtained evidence is to be found in the approach, such as taken by the Supreme
Court, although this dealt with constitutional irregularities committed during the course of a trial,
where the following was said in S v Shikunga 1997 NR 156 (SC) (1997 (2) SACR 470) at 171B - D (NR)
and 484d - f) (SACR):
‘Essentially the question that one is asking in respect of constitutional and non-constitutional
irregularities is whether the verdict has been tainted by such irregularity. Where this
question is answered in the negative the verdict should stand. What one is doing is
attempting to balance two equally compelling claims - the claim that society has that a guilty
person should be convicted, and the claim that the integrity of the judicial process should be
upheld. Where the irregularity is of a fundamental nature and where the irregularity, though
less fundamental, taints the conviction the latter interest prevails. Where however the
irregularity is such that it is not of a fundamental nature and it does not taint the verdict the
former interest prevails. This does not detract from the caution which a court of appeal
would ordinarily adopt in accepting the submission that a clearly established constitutional
irregularity did not prejudice the accused in any way or taint the conviction which followed
thereupon.’
(See also S v Kandovazu 1998 NR 1 (SC).)
[75] The following approach taken in the South African courts as expressed in Key v Attorney-
General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6)
BCLR E 788) para 13, has also been quoted with approval in this court (see De Wee supra at 127B -
G; Malumo supra para 90):
[13] In any democratic criminal justice system there is a tension between, on the one hand,
(See also S v Cloete and Another 1999 (2) SACR 137 (C) at 146c; S v M 2002 (2) SACR 411 (SCA).)”36
The metric
“[76] Various tests have been adopted in different jurisdictions to determine how the courts'
discretion should be exercised. I agree, with respect, with Smuts AJ in De Wee at 128A - B, that the
following test used in New Zealand and adopted by Froneman J in S v Melani supra is helpful:
36
PP. 837 - 838
It seems to us that, once a breach of s 23(1)(b) has been established, the trial Judge acts
rightly in ruling out a consequent admission unless there are circumstances in the particular
case satisfying him or her that it is fair and right to allow the admission into evidence. What
such circumstances might be is not a matter upon which the Court is now required to give
any ruling.
[77] I also agree, with respect, with the approach adopted by Hoff J in the Malumo case, namely that
of considering whether the nature of the violation of the rights is of such a nature that it would taint
any conviction that might follow (see para 96). In my view, the violation of the accused's rights in this
case is fundamental, in that his express election to exercise his right to a lawyer was simply ignored,
alternatively, that there was no clear indication beyond a reasonable doubt that the accused had
changed his mind or waived his right to legal representation before making the confession. There are
no circumstances which I consider sufficient that it could be said to be fair and right to allow the
confession to be admitted in evidence.”37
S v Malumo and 112 Others 2011 (1) NR 169 (HC)
See the notes on the judgement noted supra.
S v Sankwasa 2014 (3) NR 751 (HC)

Ueitele J:
The matter came on appeal. Defence counsel argued that various rights of the accused persons were
violated in the court a quo. After analysing the evidence, the court concluded that the only right that
could have been violated is the right to privacy. The accused was searched by police at NamDeb
without his consent or a search warrant. However, the court was of the view that the said search
was sanctioned by section 22 of the CPA. However, even if the accused’s rights had been violated,
the court had a discretion to exclude or admit unconstitutionally obtained evidence.
The Court cited the Shikunga and Key judgements and concluded that:
“[42] In this matter I am satisfied that the admission of the 12 unpolished diamonds into evidence, in
all of the circumstances of this case, would not render the trial unfair and bring the administration of
justice into disrepute for the following reasons: It is clear that the information which Detective
Inspector Husselman received as to the location of the 'foreign object' on the appellant was
obtained while the appellant was a non-suspect and when there was no duty on the Namdeb
security officers to inform him of his constitutional rights, he was not questioned or asked to make
any statement or give any self-incriminating information; the search of his person is sanctioned by
art 13 of the Constitution and s 22 of the Criminal Procedure Act. I am therefore not persuaded that
the court a quo erred in admitting the evidence of the 12 unpolished diamonds.” 38
NB: The issue of discretion in this judgement appears to be obiter because the reasoning behind
admitting the evidence, by way of discretion, is that it is sanctioned by statute.
37
PP. 838 - 839
38
P. 768.
Mainga JA:
“[27] There have been a number of decisions in this court and the High Court on the effect of the
admissibility of self-incriminatory acts by an accused following upon infringement of the right to
legal representation. S v Kau and Others 1995 NR 1 (SC); S v Shikunga and Another supra; S v
Bruwer 1993 NR 219 (HC) (1993 (2) SACR 306); S v Kukame 2007 (2) NR 815 (HC); S v Malumo and
Others 2007 (1) NR 72 (HC); S v Malumo and Others (2) 2007 (1) NR 198 (HC); S v De Wee 1999 NR
122 (HC).
[28] The principle gleaned from some of these decisions is that a court has a discretion to allow or
exclude unconstitutionally obtained evidence or evidence in conflict with a constitutional right for
reasons of public policy. See S v De Wee at 127I; S v Kukame at 837I; S v Malumo and Others (2) at
215 para 88. See also S v Soci at 292I; S v Khan 1997 (2) SACR 611 (SCA) ([1997] 4 All SA 435 (A)) at
619a – g. No strictly exclusionary rule is adopted in exercising the court's inherent power in ensuring
a fair trial.
[29] The correct approach adopted in considering evidence obtained in conflict with constitutional
rights was spelt out, though in a different context, in S v Shikunga and Another at 170F – 171D by
Mahomed CJ, after the learned Chief Justice conducted a thorough survey of the approaches in four
other jurisdictions, namely, Canada, United States, Jamaica, Australia, as follows:
'There can be no doubt from these authorities that a non-constitutional irregularity

committed during a trial does not per se constitute sufficient justification to set aside a
conviction on appeal. The nature of the irregularity and its effect on the result of the trial has
to be examined.
Should the approach be different where the error arises from a constitutional breach? That
question assumes that the breach of every constitutional right would have the same
consequence. In my view that might be a mistaken assumption and much might depend on
the nature of the right in question. But even if it is assumed that the breach of every
constitutional right has the same effect on a conviction which is attacked on appeal, it does
not follow that in all cases that consequence should be to set aside conviction. I am not
persuaded that there is justification for setting aside on appeal all convictions following upon
a constitutional irregularity committed by a trial court.
It would appear to me that the test proposed by our common law is adequate in relation to
with an acquittal on the merits. Essentially the question that one is asking in respect of
stand. What one is doing is attempting to balance two equally compelling claims — the claim
See also S v Kandovazu 1998 NR 1 (SC).
[30] Compare Mahomed CJ's observations above to that of Kriegler J in Key v Attorney-General, Cape
Provincial Division, and Another 1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788) at
195G – 196D J paras 13 and 14, where the following was said:
'[13] In any democratic criminal justice system there is a tension between, on the one hand,
legislature and courts to prevent or curtail excessive zeal by State agencies in the
[14] If the evidence to which the applicant objects is tendered in criminal proceedings
against him, he will be entitled at that stage to raise objections to its admissibility. It will
then be for the trial Judge to decide whether the circumstances are such that fairness
requires the evidence to be excluded.'
[31] In S v Melani and Others 1996 (1) SACR 335 (E) (1996 (2) BCLR 174; [1996] 1 All SA 137) at 351E
– G, Froneman J referred to the position in New Zealand on the same question in R v Kirifi (1992) LRC
(Crim) 55 (NZCA) where the following is stated:
'It seems to us that, once a breach of s 23(1)(b) has been established the trial Judge acts
rightly ruling out a consequent admission unless there are circumstances in the particular
case satisfying him or her that it is fair and right to allow the admission into evidence. What
such circumstances might be is not a matter upon which the Court is now required to give
any ruling.’”39
The court, seemingly without analysing how to apply the aforementioned discretion, said the
following:
“[T]he appellant's constitutional right to legal representation was violated. It then follows necessarily
that the confession on which the trial court relied to convict the appellant must be ruled
inadmissible. Appellant did not receive a fair trial since there was no evidence other than the
confession to convict the appellant. The conviction should be set aside.” 40
39
PP. 921-923
40
P. 927
It is worth noting that the court was aware that this was a case in which someone who was de facto
guilty had his conviction set aside due to the non-explanation of his rights in the taking of the
confession. The court remarked that:
“It is sad that those who are guilty should walk free due to blunders occasioned by the police officers
in the investigation of crimes.”41
S vs Nuuyoma (CC 17/2018) [2019] NAHCMD 101 (15 April 2019)

The existence of a discretion was endorsed in cases of search and seizure. See the notes on the
judgement indicated above on the topic of search and seizure.
NB:
Courts that claim to apply the Shikunga test in relation to unconstitutionally and/or improperly
obtained evidence are misguided in their interpretation of that judgement. Shikunga did not deal
with the admissibility of the evidence. Whether on appeal or in a court of first instance. What
Shikunga dealt with was the consequence of excluded evidence on the proceedings in an appeal
court. According to Shikunga, the evidence is a priori inadmissible. The question is really what
happens next. If the evidence can be excised from the rest of the proceedings, then an acquittal or
convictions should necessarily follow. However, should it not be possible to excise the irregularity
from the proceedings then the entire proceedings become a nullity that ought to be set aside
without any consideration of the merits. Accordingly, the accused can in such cases be re-tried.
Though, this discussion might have been rendered academic by the decision in Engelbrecht
because Mainga JA seemingly endorses the views expressed by inter alia Smuts AJ and Hoff J, as
they then were, in their interpretation of the Shikunga test. In fact, the court expressly endorses
the existence of a discretion. On, the other hand, the court doesn’t actually exercise a discretion
but in effect correctly applies the test in Shikunga. This leaves the question as to whether
Namibian Courts have a discretion to admit or exclude unconstitutionally obtained evidence.
41
Ibid
How a court of appeal should evaluate
unconstitutionally obtained evidence
S v Shikunga and Another 1997 NR 156 (SC)

Mahomed CJ:
The court a quo allowed an inadmissible confession to be admitted into evidence. However, the
court was of the view that evidence aliunde to such confession was still sufficient to justify a
conviction. The question arose then as to how an appeal court is to assess constitutional and
unconstitutional irregularities in a trial.
 The tension identified
“There appears to be a tension between two important considerations of public interest and policy
in the resolution of this problem. The first consideration is that accused persons who are manifestly
and demonstrably guilty should not be allowed to escape punishment simply because some
constitutional irregularity was committed in the course of the proceedings, but in circumstances
which showed clearly that the conviction of the accused would inevitably have followed even if the
constitutional irregularity relied upon had not been committed. (This is exactly what transpired in
the present case. Although the confession was admitted in terms of s 217(1)(b)(ii) the trial Court was
able to justify correctly the conviction of the second accused without any reliance on the
confession.)
There is however a competing consideration of public interest involved. It is this: the public interest
in the legal system is not confined to the punishment of guilty persons, it extends to the importance
of insisting that the procedures adopted in securing such punishments are fair and constitutional and
that the public interest is prejudiced when they are not.
The courts in various countries have repeatedly addressed themselves to the tensions contained
between these two different considerations.” 42
 The common law approach to non-constitutional errors
“The approach that has been adopted in assessing the effect of an irregularity in terms of the
common law is one that asks essentially whether or not a failure of justice has resulted from the
irregularity or defect. To this effect two categories in relation to trial irregularities or defects have
been delineated (as set out S v Moodie 1961 (4) SA 752 (A) at 756D-F), a general and an exceptional
category:
A. General category:
42
P. 165
In S v Tuge 1966 (4) SA 565 (A) at 568B the Court articulated the test as follows: the question is
'whether, on the evidence and the findings of credibility unaffected by the irregularity or defect,
there is proof of guilt beyond a reasonable doubt'. (The Tuge approach was accepted by the
Appellate Division in S v Mnyamana and Another 1990 (1) SACR 137 (A) at 141; and; S v Mkhise; S v
Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A) at 872A-B). (This formulation of the test is a
development of the general test in Moodie (supra) which stated that a failure of justice occurs if the
court cannot hold that a reasonable trial court would inevitably have convicted if there had been no
irregularity.)
B. Exceptional category:
In Moodie's case supra the Court stated that an irregularity can be of such a nature as to amount to
a failure of justice per se, and to be so held, without applying the general test. The Court in Moodie
stated further that whether an irregularity can be classified as falling within the ambit of the general
or the exceptional test depends on the nature and the degree of the irregularity. This was
elaborated on in Mkhise (supra) where the Court stated that in order to decide whether an
irregularity falls into the exceptional category the enquiry is whether the nature of the irregularity is
so fundamental and serious that the proper administration of justice and the dictates of public policy
require it to be regarded as fatal to the proceedings in which it occurred.
The consequences of categorising an irregularity as falling within the ambit of the general or the
exceptional category is indicated by the varying remedies. If an irregularity is so fundamental that it
falls into the realm of the exceptional test the Court might set aside the conviction without
reference to the merits, and the accused can be re-tried. On the other hand where an irregularity
falls into the general category, if 'but for' the irregularity there is not proof of guilt beyond a
reasonable doubt, then the accused is acquitted on the merits and cannot subsequently be re-tried.
Similarly if 'but for' the irregularity there is proof of guilt beyond a reasonable doubt then the
conviction stands, on the merits (S v Naidoo 1962 (4) SA 348 (A) at 354D-H).
Thus, according to this test, when one is confronted with a non-constitutional irregularity or defect,
the first issue that needs to be resolved is whether the irregularity falls into the general or the
exceptional category. “43
 The Constitutional approach
“It would appear to me that the test proposed by our common law is adequate in relation to both
constitutional and non-constitutional errors. Where the irregularity is so fundamental that it can be
said that in effect there was no trial at all, the conviction should be set aside. Where one is dealing
with an irregularity of a less severe nature then, depending on the impact of the irregularity on the
verdict, the conviction should either stand or be substituted with an acquittal on the merits.
Essentially the question that one is asking in respect of constitutional and non-constitutional
irregularities is whether the verdict has been tainted by such irregularity. Where this question is
answered in the negative the verdict should stand. What one is doing is attempting to balance two
equally compelling claims - the claim that society has that a guilty person should be convicted, and
the claim that the integrity of the judicial process should be upheld. Where the irregularity is of a
fundamental nature and where the irregularity, though less fundamental, taints the conviction the
latter interest prevails. Where however the irregularity is such that it is not of a fundamental nature
and it does not taint the verdict the former interest prevails. This does not detract from the caution
which a court of appeal would ordinarily adopt in accepting the submission that a clearly established
43
Pp. 165-166.
constitutional irregularity did not prejudice the accused in any way or taint the conviction which
followed thereupon.”44
 Applying that test to the facts
Circumstances are conceivable where such a confession is wrongly used to convict the accused and
there is debatable other evidence to support the conviction, and the court on appeal is nevertheless
asked to uphold the conviction on the grounds that it is justified without having any regard to the
confession at all. In such cases the court might have to analyse carefully the evidence in order to
determine whether it would be safe to uphold the conviction, and it might often be reluctant to
come to that conclusion. These are not however the circumstances of the present case. The trial
Judge admitted the confession because he regarded himself as being bound by a previous decision
which upheld the constitutionality of s 217(1)(b)(ii) of Act 51 of 1977, but he was able to convict the
second accused without any reliance on the confession at all because of other reliable evidence and
because of objective facts which were common cause. The conviction of the second accused could
not therefore be said to be unfair. To set aside the conviction in these circumstances would not be
to assert the importance of a constitutional right at all: it would amount simply to a substitution of
form for substance. There is in my view no justification whatever for that result in this case.” 45
S v Kandovazu 1998 NR 1 (SC)

Gibson AJA:
Applied the test in Shikunga in relation to a trial in which a request for disclosure was denied by the
court:
“What has to be looked at, as the learned Chief Justice observes is 'the nature of the irregularity and
its effect'. If the irregularity is of such a fundamental nature that the accused has not been afforded
a fair trial then a failure of justice per se has occurred and the accused person is entitled to an
acquittal for there has not been a trial, therefore there is no need to go into the merits of the case at
all.
Elsewhere in this judgment I have indicated with the benefit of recent decisions, such as, S v Nassar,
S v Scholtz, S v Heidenreich, S v Shabalala and Others supra, that the order refusing disclosure of
police witness statements to the defence was tantamount to a denial of the right to a fair trial to an
accused person. As a result there is no doubt that there has been a miscarriage of justice that
negates the core of a fair trial. In the result the accused must be acquitted without investigating the
merits.”46
S v Smith and Another 1999 NR 142 (HC)

Hannah J:
The matter came on automatic review. The two accused person were represented by the same legal
practitioner in the court a quo where there was a conflict of interest. The court concluded that this
conflict violated the accused persons’ rights. In deciding how to address this irregularity in the
proceedings on review, the court said the following:
See also S v Mathe 1996 (1) SACR 456 (N) at 459….Booysen J said at 459I - 460A:
44
Pp. 170-171
45
Pp. 171-172
46
P. 8.
'There is no doubt that the irregularities in this matter are associated with the trial in a
degree impelling the basic concept that the accused must be fairly tried. ( S v Alexander and
Others (1) 1965 (2) SA 796 (A) at 809D.)
There is thus no doubt that the irregularities in this matter pass the ''sufficient actual
connection'' test. Once an irregularity sufficiently connected with the trial has been shown
to exist, a failure of justice will be held to have occurred if the irregularity constitutes so
gross a departure from the established rules of procedure and the requirements which the
fundamental principles of law and justice lay down for proceedings that the accused cannot
be said to have had a fair trial. G In that event the conviction is set aside despite the
presence of convincing evidence which might be present to the effect that the accused is
guilty. (See S v Mushimba en Andere 1977 (2) SA 829 (A) at 844G - H.)'
In S v Shikunga 1997 NR 156 (SC); 1997 (2) SACR 470 (NmS) Mahomed CJ said at 171A - C (NR), 484C
- E (SACR):
'Essentially the question that one is asking in respect of constitutional and non-constitutional
irregularities is whether the verdict has been tainted by such irregularity. Where this
question is answered in the negative the verdict should stand. What one is doing is
attempting to balance two equally compelling claims - the claim that society has that a guilty
person should be convicted, and the claim that the integrity of the judicial process should be
upheld. Where the irregularity is of a fundamental nature and where the irregularity, though
less fundamental, taints the conviction the latter interest prevails. Where, however, the
irregularity is such that it is not of a fundamental nature and it does not taint the verdict the
former interest prevails.'”47
The court ultimately concluded that the irregularity nullified the proceedings. It was still open to the
Prosecutor General to institute new proceedings against the accused.
S v M 2006 (1) NR 156 (HC)

Martiz J:
This was an appeal against conviction. Appellant did not have a guardian present for his trial on a
charge of rape. Apparently, the only guardian available in Otjiwarongo, where his trial was taking
place, was in custody at the time. The Appeal court concluded that the Regional Magistrate did not
give due consideration and effect to the provision of s 73 and s 74 of CPA. This amounted to an
irregularity.
How to deal with this irregularity on appeal?
After quoting the oft cited passage in Shikunga, the court said the following:
“It is against this background that the regional magistrate's failure to apply ss 73 and 74 should be
considered. On a reading of the record, I have little doubt that the trial would have taken a different
course and that the appellant's defence would have been conducted differently if he had had the
counsel or assistance of a guardian. He could not read or understand English. He was not acquainted
with the provisions of the Act under which he was being charged and had no comprehension of the
consequences which might follow upon his conviction. His decision to rather conduct his defence in
person than to wait a further two months in custody for a decision on his application for legal
representation was as ill-considered as it was unwise. It is likely that a guardian would have
47
P. 144
counselled him differently. He did not know of his right to police docket discovery and, even if such
discovery had been made, he would not have been able to read and use the contents of the
statements in defence of his claimed innocence. Such discovery would have shown whether the
police docket contained a medical report corroborating or contradicting the complainant's allegation
of anal penetration. The appellant's guardian might well have questioned the competency of the
complainant to distinguish between false and truthful statements - especially so because he
admitted to the magistrate that he did not know the difference between the two concepts, agreed
with the magistrate that a white paper shown to him was black, and said that he did not know what
it meant to tell lies to other people.
In the premises I am satisfied that the regional magistrate's failure to explain the appellant's rights
under, and to apply, the provisions of ss 73 and 74 of the Act constituted serious irregularities in the
proceedings which, in the circumstances of this case, tainted the appellant's conviction and led to a
miscarriage of justice. In the result, both his conviction and sentence fall to be set aside. It is,
however, apparent from the evidence adduced against the appellant that the State has a strong
prima facie case against him on, what is rightfully regarded as, a very serious offence. In the
circumstances, I propose to remit the case for trial before another regional magistrate and to direct
that the appellant shall remain in custody until then.” 48
S v SS 2014 (2) NR 399 (HC)

Damaseb JP:
The court, on appeal, concluded that an irregularity had occurred in that the appellant’s rights to
cross examination were not explained to him and his co-accused.
The effect of an irregularity
“[47] S v Shikunga and Another establishes the principle that where there was a non-constitutional
irregularity committed during the trial, the test is whether it was so fundamental that it could be said
that in effect there had been no trial at all. If the answer is in the affirmative the conviction must be
set aside. Where the irregularity was of less severe nature, then depending on the impact of the
irregularity on the verdict, the conviction should either stand or a verdict of acquittal on the merits
should be substituted therefor, the essential question being whether the verdict was tainted by the
irregularity.”49
The court after assessing the merits said the following:
“[50] For all of the above reasons, the court a quo should have found that the state had failed to
prove the case against the two accused beyond reasonable doubt. They should have been acquitted.
[51] Accordingly:
(a) The application for condonation for the late filing of the appeal is granted;
(b) the appeal succeeds; and
(c) the convictions and sentences of both accused are set aside and both accused are set
free.”50
48
PP. 159 – 160.
49
P. 412.
50
P. 413
NB: Although reference is made to Shikunga, I believe this was obiter. The court was ultimately of
the view that, in considering the merits, the state had failed to prove its case beyond reasonable
doubt.
Interestingly, this was a case where a fundamental irregularity nullifying the entire proceedings
had occurred but the court nevertheless viewed an acquittal as being in order. This is so given that
in spite of the irregularity, guilt beyond reasonable doubt was not proved. This might be authority
for modifying the view in Shikunga where, even without excluding the irregularity, a verdict of
guilty was not in order. In such a cases, a nullification of the proceedings would be prejudicial to
an accused person. It is far better to substitute the conviction with an acquittal.
See notes indicated supra. In effect, the court applied the Shikunga test without a specific reference
to it.

Unconstitutionally Obtained Evidence in Namibia

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UNCONSTITUTIONALLY OR

Article 13 of The Namibian Constitution: Privacy

2) Searches of the person or the homes of individuals shall only be justified:

a) where these are authorised by a competent judicial officer;

S v Van Rensburg (CC 24/2012) [2017] NAHCMD 44 (22 February 2017)

S v Lameck and Others 2018 (3) NR 902 (HC)

1. The application was based on an uncommissioned statement

On the right to privacy and search warrants

On the issue of authorising all officers

S v Lameck and Others 2019 (2) NR 368 (HC)

4. The summons’, therefore, preceded the launching of investigations in terms of s 18 and

S v Nuuyoma (CC 17/2018) [2019] NAHCMD 101 (15 April 2019)

The court ruled the evidence admissible on the following basis:

S v Nicodemus (CC 15/2017) [2019] NAHCMD 271 (06 August 2019)

1. Whether or not accused consented to the search?

S v Awene (HC-NLD-CRI-APP-CAL-2017/00003) [2019] NAHCNLD 141 (05

Article 13 of The Namibian Constitution: Privacy

2) Searches of the person or the homes of individuals shall only be justified:

a) where these are authorised by a competent judicial officer;

Section 24 of The Namibian Central Intelligence Service Act 10 of 1997:

1) Any person who, without a direction issued under subsection (2) –

a) intentionally and without the knowledge or permission of the dispatcher intercepts a

b) intentionally monitors a conversation by means of a monitoring device so as to gather

i) to search the premises; or

a) to intercept a particular postal article or a particular communication which has been or is

b) to intercept all postal articles to or from a person, body or organisation or all

c) to monitor in any manner by means of a monitoring device conversations by or with a

d) when reasonably necessary –

Section 25 of The Namibian Central Intelligence Service Act 10 of 1997:

1) A direction contemplated in section 24(2) may be issued by a judge only –

a) upon a written application made by the Director-General; and

b) if the judge is convinced, on the grounds mentioned in subsection (2), that –

2) An application referred to in subsection (1)(a) shall be accompanied by a supporting affidavit

c) the type of postal article or communication proposed to be intercepted, the type of

e) the person, body or organisation, or class or classes of persons, bodies or organisations, to

Section 26 of The Namibian Central Intelligence Service Act 10 of 1997:

Section 40 of the Prevention and Combating of Terrorist and Proliferation

a) to require a communications service provider to intercept and retain a specified

3) Any information contained in a communication –

a) intercepted and retained pursuant to an order under subsection (2);

Section 41 of the Prevention and Combating of Terrorist and Proliferation

1) A warrant contemplated in section 40(1) may be issued by a judge –

a) upon a written application made by the Inspector-General; and

b) if the judge is satisfied, on the grounds mentioned in subsection (2) that –

2) An application referred to in subsection (1)(a) is accompanied by a supporting affidavit setting

b) that other investigative procedures –

i) has been tried and have failed;

ii) appears to be unlikely to succeed;

e) the person, body or organisation, or class or classes of persons, bodies or organisations, to

Section 42 of the Prevention and Combating of Terrorist and Proliferation

a) install, maintain or remove a monitoring device;

b) intercept or take into possession a postal article;

c) intercept any communication;

a) any activity or activities mentioned in the warrant; or

Communication Act 8 of 2009

Section 37 of Act 51 of 1977: Powers on respect of prints and bodily

1) Any police official may –

d) take a photograph or may cause a photograph to be taken of a person referred to in

b) If any registered medical practitioner attached to any hospital is on reasonable grounds of

3) Any court before which criminal proceedings are pending may –

Section 225 of Act 51 of 1977: Evidence of prints or bodily appearance of

1) Whenever it is relevant at criminal proceedings to ascertain whether any finger-print, palm-print

S v Eigowab 1994 NR 192 (HC)