Professional Documents
Culture Documents
LOTTA AMBUNDA
JUDICIAL RESEARCH ASSISTANT
DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
THE HIGH COURT JUDGMENT INDEX 2015
THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-
PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.
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Table of Contents
SUBJECT INDEX...............................................................................................................................7
CRIMINAL APPEAL...........................................................................................................................7
APPLICATION FOR CONDONATION..........................................................................................11
APPLICATION FOR LEAVE TO APPEAL....................................................................................13
CONSTITUTIONAL LAW................................................................................................................14
CRIMINAL LAW................................................................................................................................14
CRIMINAL PROCEDURE...............................................................................................................22
INQUEST...........................................................................................................................................35
JURISDICTION OF HIGH COURT OVER CAPRIVI ZIPFEL.....................................................35
LAW OF EVIDENCE........................................................................................................................36
POSTPONEMENT OF CRIMINAL TRIAL....................................................................................38
SENTENCE.......................................................................................................................................39
SECTION 174 APPLICATION........................................................................................................43
CASE SUMMARIES........................................................................................................................45
Alugodhi v State (CA 19-2014) [2015] NAHCNLD 3 (23 January 2015).....................45
Amunyela v The State (CA 46-2014) [2015] NAHCNLD 26 (30 June 2015)................45
Amupolo v State (CA 51/2014) [2014] NAHCMD 31 (20 February 2015)....................45
Beukes v The State (CA 27-2015) [2015] NAHCMD 292 (2 December 2015)............45
Booysen v State (CA 107/2014) [2015] NAHCMD 44 (06 March 2015)......................46
Boois v State (CA 76-2014) [2015] NAHCMD 131 (8 June 2015)................................46
Dam v State (CA 97/2014) [2015] NAHCMD 47 (27 February 2015)..........................46
Dias vs The State (CC 14-2011) [2015] NAHCMD 142 (17 June 2015)......................47
Ditshabue v State (CA 31/2010) [2015] NAHCMD 80 (30 March 2015)......................47
Doeseb v The State (CA 25-2015) [2015] NAHCMD 199 (25 August 2015)...............47
Gaseb v State (CA30/2015) [2015] NAHCMD 285 (23 November 2015)....................48
Geingob v The State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015).............48
Goagoseb v State (CC 06/2008) [2015] NAHCMD 265 (6 November 2015)...............48
Hifikepunye v State (CA 102/2014) [2015] NAHCMD 39 (03 March 2015)..................49
Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015).................49
Ilukena v The State (CC 06/2014) NAHCND 1 (16 JANUARY 2015)..........................49
Iita v State (CA 37/2014) [2015] NAHCMD 76 (16 March 2015)..................................50
Inquest The late Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015).....50
Kaanjuka v State (CA 132/2004) [2015] NAHCMD 2 (20 January 2015).....................51
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Kambinda v State (CA 7/2015) [2015] NAHCMD 212 (11 September 2015)...............51
Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10 February 2015).................51
Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15 June 2015)......................52
Kashawa vs The State (CC 9-2013)[2015] NAHCMD 202 (27 August 2015)..............52
Koen v State (CC 14-2012) [2015] NAHCMD 220 (16 September 2015)....................53
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015)...................53
Lameck v State (CC 15/2015) [2014] NAHCMD 85 (10 April 2015)............................54
Lubembo v State (CA 111/2014) [2015] NAHCMD 16 (22 January 2015)..................54
Lifumbela v State (CA 80-2014) [2015] NAHCMD 132 (8 June 2015).........................54
Lukas v State (CA 16/2013) [2015] NAHCMD 35 (26 February 2015)........................54
Lungameni v The State (CA1-2012) [2015] NAHCNLD 9 (06 March 2015).................55
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015)...............55
Moussa v State (CA 105/2014) [2015] NAHCMD 21 (11 February 2015)...................55
Murangi v The State (CA 88/2015) [2015] NAHCMD 294 (4 December 2015)...........55
Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March 2015).................56
Nghipondoka v The State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015).......56
Nkandi v The State (CA2-2013) [2015] NAHCNLD 16 (17 April 2015)........................56
Paulus v The State (CA 40-2015) [2015] NAHCMD 211 (11 September 2015)..........57
S v Alweendo (CA 11-2011) [2015] NAHCNLD 48 (20 October 2015)........................57
S v Awa-Eiseb (CR 03/2015) [2015] NAHCMD 12 (30 January 2015)........................57
S v Barmann (CC 05-2014) [2015] NAHCMD 210 (11 September 2015)....................58
S v Basson (CC 9-2012) [2015] NAHCMD 247 (15 September 2015)......................58
S v Boois (CR 37-2015) [2015] NAHCMD 275 (13 November 2015)..........................59
S v Cloete (CA 49-2015) [2015] NAHCMD 248 (14 October 2015).............................59
S v Doeseb (CC 17/2012) [2015] NAHCMD 102 (29 April 2015).................................59
S v Franklin Savage (CC 12-2014) [2015] NAHCMD 150 (8 June 2015)....................60
S v Frederick (CC19-2012) [2015] NAHCMD 194 (21 August 2015)..........................60
S v Gawanab (CC16-2011)[2015] NAHCMD 232 (25 September 2015).....................61
S v Gomeb (CC 18/2013) [2015] NAHCMD 164 (22 July 2015)..................................61
S v Hange (CC12-2012) [2015] NAHCMD 90 16 April 2015).......................................61
S v Haufiku ( CC 02/2013) [2015] NAHCNLD 11 (9 March 2015)................................62
S v Haufiku ( CC2/2013) [2015] NAHCNLD 10 (11 February 2015)............................62
S v Hausiku (CC 10/2013) [2015] NAHCMD 50 (10 March 2015)...............................62
S v Jantze (CC 23-2013) [2015] NAHCMD 241 (07 October 2015).............................63
S v Jantze (CC 23-2013) [2015] NAHCMD 219 (14 September 2015).....................63
S v Johannes (CC 07-2015) [2015] NAHCNLD 47 (05 October 2015)........................64
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S v Kambidu (CR 9/2015) [2015] NAHCMD 52 (12 March 2015).............................64
S v Katjizumo (CR 08/2015) [2015] NAHCMD 49 (09 March 2015)............................64
S v Katuuo (CR 12/2015) [2015] NAHCMD 64 (18 March 2015).................................64
S v Katjatako (CR 24-2015) [2015] NAHCMD 189 (11 August 2015)..........................65
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 28 (19 February 2015)..........................65
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 51 (10 March 2015)..............................65
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 55 (13 March 2015)...............................66
S v Lameka (CC11/2012) [2015] NAHCNLD 7 (24 February 2015)............................66
S v Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)....................................66
S v Maasdorp (CR 10/2015) [2015] NAHCMD 56 (13 March 2015)............................68
S v Majiedt (CC 11-2013) [2015] NAHCMD 289 (1 December 2015)..........................68
S v Mayumbelo (CR 15/2015) [2015] NAHCMD 107 (5 May 2015).............................69
S v Mutandwa (CR 04/2015) [2015] NAHCMD 13 (05 February 2015).......................69
S v Nakaleke (CC13/2013) [2015] NAHCMD 21 (13 May 2015)..................................69
S v Nendongo (CR 13/2015) [2015] NAHCMD 65 (18 March 2015)............................71
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015)..............................71
S v Oxurub (CC 30/2010) [2015] NAHCMD 108 (5 May 2015)....................................71
S v Oxurub (CC 30-2010) [2015] NAHCMD 171 (28 July 2015)..................................72
S v Pieters (CC 48/2009) [2015]NAHCMD 38 (3 March 2015)....................................72
S v Pieters (CC 48/2009) [2015] NAHCMD 118 (27 May 2015)..................................73
S v Rooinasie (CR 26-2015) [2015] NAHCMD 207 (4 September 2015)....................73
S v Sakaria (CC02-2014) [2015] NAHCNLD 33 (27 July 2015)...................................73
S v Sakaria (CC 02-2014) [2015] NAHCNLD 37 (20 May 2015)..................................73
S v Seibeb (CR 18-2015) [2015] NAHCMD 147 (19 June 2015).................................74
S v Shekunyenge (CC 05-2012) [2015] NAHCMD 283 (20 November 2015).............74
S v Shikudule (CR 17/2015) [2015] NAHCMD 126 (5 June 2015)...............................75
S v Thaniseb (CR 22-2015) [2015] NAHCMD 179 (31 July 2015)...............................75
S v Tjikuvira (CR 06/2015) [2015] NAHCMD 34 (24 February 2015)..........................75
S v Tjiposa (CR 16/2015) [2015] NAHCMD 123 (2 June 2015)...................................75
S v Tjuuma (CR 3-2015) [2015] NAHCNLD 53 (2 November 2015)............................76
S v Thomas (CC 13 - 2011) [2015] NAHCMD 133 (9 June 2015)...............................76
S v Thomas (CC 19-2013) [2015] NAHCMD 177 (3 August 2015)..............................77
S v Unengu (CC 14/2013) [2015] NAHCMD 33 (24 February 2015)...........................77
S v Unengu (CC 14/2013) [2015] NAHCMD 43 (05 March 2015)................................77
S v Van der Westhuizen (CC 06-2015) [2015] NAHCMD 260 (5 November 2015).....78
S v Venaani (CA 38/2015) [2015] NAHCMD 271 (13 November 2015).....................78
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Shaalukeni v The State (CA 60/2009) [2015] NAHCNLD 6 (05 February 2015)........78
Shaulwa vs The State (CA 100/2014) [2015] NAHCMD 37 (5 February 2015)...........79
Sheefeni and Another v The State (CA 25/2011) [2015] NAHCNLD 32 (24 July 2015).
......................................................................................................................................79
Shikongo v The State (CA 02/2013) [2015] NAHCNLD 08 (6 March 2015).................80
State v Ambros (CR 32/2015) [2015] NAHCMD 251 (20 October 2015)..................80
State v Basson (CC 09/2012) [2015] NAHCMD 227 (25 September 2015)..............80
State v Jossop (CC 01/2011) [2015] NAHCMD 82 (9 April 2015)................................80
State v Kasita (CC 05/2014) [2015] NAHCNLD 13 (17 March 2015)...........................81
The State v Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015).......................81
The State v Shekunyenge (CC 05/2015) [2015] NAHCMD 270 (13 November 2015).
......................................................................................................................................81
Unengu v The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015).....................82
Venter v State (CA 35-2015) [2015] NAHCMD 182 (24 July 2015).............................82
Visagie v State (CA 67-2013) [2015] NAHCMD 216 (11 September 2015).................83
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SUBJECT INDEX
CRIMINAL APPEAL
Bail - This is an appeal against the Regional Court Magistrate’s refusal to release the
appellant on bail. The same facts placed before the court below were repeated during
the appeal hearing. Lubembo v State (CA 111/2014) [2015] NAHCMD 16 (22 January
2015).
Appeal - When a court of appeal is entitled to interfere with a sentence, namely when
the trial court misdirected itself on the facts or on the law; when an irregularity which
was material occurred during the sentence proceedings; when the trial court failed to
take into account material facts or over-emphasised the importance of other facts; or
when the sentence imposed is startlingly inappropriate, induces a sense of shock or
there is a striking disparity between the sentence imposed by the trial court and that
which would have been imposed by the court of appeal. Nuugonya v The State (CA
109/2014) [2015] NAHCMD 46 (06 March 2015); Keletse v State (CA 09/2014) [2015]
NAHCMD 48 (09 March 2015); Binga v State (CA 96-2014) [2015] NAHCMD 180 (5
August 2015);
Appeal – Appeal against sentence – Appellate court entitled to interfere with sentence
imposed if sentence vitiated by an irregularity or misdirection or sentence so manifestly
excessive that it induces a sense of shock in the mind of appellate court – Court found
that sentence imposed not vitiated by an irregularity or misdirection and not so
manifestly excessive that it induces a sense of shock in the mind of the court –
Consequently court not entitled to interfere with sentence – Appeal accordingly
dismissed. Dam v State (CA 97/2014) [2015] NAHCMD 47 (27 February 2015); S v
Nendongo (CR 5/2015) [2015] NAHCMD 23 (13 February 2015).
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magistrate’s instructions to the appellant (accused) on the scope and purpose of cross-
examination was adequate and appellant replied he understood them – Court held that
the duty of the learned magistrate towards an unrepresented accused did not include
holding brief for such accused – Court found that the totality of the evidence accounted
for the guilt of the appellant and accordingly confirmed the conviction – On sentence –
Court found that no irregularities or misdirections existed in the proceedings on
sentencing and the sentence was not so excessive as to induce a sense of shock in the
mind of the court – Court concluded it was therefore not entitled to interfere with the
sentence imposed. Shaulwa vs The State (CA 100/2014) [2015] NAHCMD 37 (5
February 2015); See also Bikwe & Another v State (CA 10/2013) [2015] NAHCMD 288
(26 November 2015).
Appeal - This is an appeal against a conviction and sentence for rape in contravention
of certain provisions of the Combating of Rape Act. The appellant was sentenced to 12
years imprisonment. He filed a letter applying for condonation for the late filing of the
appeal two years after the conviction and sentence. He subsequently filed his notice of
appeal about two years after the letter applying for condonation. Held that in
applications for condonation the applicant should good cause; explain the delay and
also show that they have reasonable prospects of success on appeal. Held that the
delay in this case was inordinate and had not been satisfactorily explained. Held further
that the appellant had no prospects of success on appeal. Application for condonation
was therefore dismissed. Swartbooi v The State (CA 3/2015) [2015] NAHCMD 74 (27
March 2015).
Appeal -– Notice of appeal – Such notice should set out clearly and specifically grounds
on which appeal is brought – Court found that appellant has not set our clearly and
specifically grounds on which the appeal is brought – Relying on Mbarandongo v The
State Case No. CA 127/2009 (Unreported), court concluded that there is no valid notice
of appeal before the court for the court to consider. Boois v State (CA 76-2014) [2015]
NAHCMD 131 (8 June 2015).
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Appeal - Grounds of Appeal not set out in the Notice of Appeal – An improper Notice of
Appeal is no ground of Appeal at all and as such a nullity – Once a Nullity it remains a
Nullity. Hoaeb v State (CA 17-2015) [2015] NAHCMD 120 (08 May 2015).
Appeal – Application for leave to adduce evidence – Court have the power to grant
leave in terms of s19 of the High Court Act, (Act 16 of 1990) and s304(2)(b) read with s
309(3) of the Criminal Procedure Act, 1977 (Act 51 or 1977) - Power of court to be used
sparingly – The applicant gave an acceptable explanation; showed that the evidence
was essential for the case on hand; and that it would have the effect of influencing the
result of the case – Evidence led showed that the money was not stolen or used but
simply misplaced – The conviction and sentence set aside . Lungameni v The State
(CA1-2012) [2015] NAHCNLD 9 (06 March 2015).
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Appeal – Conviction – Duplication of convictions − Convictions set aside-substituted
with one count of 2 heads of cattle – Partly inadmissible evidence admitted and relied
upon − Rest of evidence no misdirection-conviction confirmed – Sentence – Prescribed
minimum sentence of 20 years’ imprisonment struck out as being unconstitutional –
Court is justified to interfere — Sentence of 20 years’ imprisonment of which 12 years’
imprisonment suspended shockingly inappropriate – Sentence set aside and substituted
with sentence of 10 years’ imprisonment of which 2 years are suspended on conditions.
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015).
Appeal – Criminal Procedure – Calculation of dies for noting of criminal appeal in terms
of rule 67 of the Magistrate’s Court Rules. Taapopi v The State (CA 296/2013) [2015]
NAHCNLD 34 (27 July 2015).
Appeal against – Sentence – Appellant jointly charged with two others – Appellant’s co-
accused persons in position of trust – Not apparent from record that appellant in similar
position – All accused persons sentenced to same sentence – Magistrate misdirecting
himself by not drawing a distinction between a person in position of trust and the one
who was not – Misdirection also not to reflect youthfulness of appellant in the sentence -
Sentence vitiated by misdirection and set aside – Appellant’s appeal upheld and fresh
sentence imposed. Mayumbelo v State (CA 24-2015) [2015] NAHCMD 188 (11 August
2015)
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Appeal – Accused persons not brought to court – No excuse from the relevant
authorities as to why the accused where not brought to court – This is a hindrance of
the administration of justice. Liboleni v The State (CA 12-2015 ) NAHCNLD 43 (02
September 2015).
Appeal ― By State against decision of lower court ―Main test is whether there are
reasonable prospects that applicant will succeed on appeal. S v Alweendo (CA 11-
2011) [2015] NAHCNLD 48 (20 October 2015).
Appeal - Application for condonation of late filing of notice of appeal against sentence –
Requirements restated – Applicant must give a reasonable explanation for the delay
and explanation must be bona fide – Court will not sympathize with untruthful applicant
– Applicant must make a full and detailed disclosure of the circumstances which caused
the delay in filing the notice of intention to appeal – Applicant must in addition establish
the existence of good prospects of success on appeal in respect of the merits of the
case. Nawa v The State (CA 144/2013) [2015] NAHCMD 4 (22 January 2015).
Appeal – Appeal against sentence – Noting of appeal out of statutory time limit –
Applicant should apply to court for condonation of late noting of appeal – Appellant must
give satisfactory explanation for delay – In determining the condonation application
court should take into account the explanation in the supporting affidavit for the delay
and prospects of success on appeal – In instant case appellant has failed to give
satisfactory explanation for the delay and there are no prospects of success on appeal –
Court finding that appellant has not shown that the proceedings on sentence was
vitiated by an irregularity or misdirection on the part of learned magistrate – Court also
found that the sentence is not so manifestly excessive that it induces a sense of shock
in the mind of the court – Consequently, court concluded that upon the authorities the
court was not entitled to interfere with the sentence imposed – Consequently, the court
dismissed the appeal. Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10
February 2015); Simataa v The State (CA 138/2013) [2015] NAHCMD 11 (2 February
2015).
Appeal – late filing of notice of appeal – Appellant’s failure to give reasons for the delay
to file notice of appeal within 14 days from date of sentencing – Appeal – Late filing of
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notice of appeal – Appellant omits to address the issue of prospects of success on
appeal in an affidavit supporting the application for condonation of the late filing of
notice of appeal – Legal representative for the appellant’s failure to augment gaps in the
condonation application by the appellant – Court found that as there is no proper
application for condonation filed by the appellant, that there was no appeal before court
– The appeal is struck from the roll as a result therefore. Booysen v State (CA
107/2014) [2015] NAHCMD 44 (06 March 2015).
Criminal Procedure – Appeal against conviction – Noting appeal out of statutory time
limits; the form the application for condonation should assume and what it should allege.
Grounds of appeal – they should clearly and fully set out the bases upon which the
appeal is brought. Failure to appeal on sentence – the court cannot deal with sentence
if no appeal against sentence and no grounds are alleged on which the trial court may
have erred. Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015).
Rules of Court – Application for condonation for late filing of heads argument – Two
elements to be proved i.e. reasonable explanation for delay and prospects of success.
CRIMINAL PROCEDURE - Appeal against refusal of bail – Section 65 (2) of the
Criminal Procedure Act – Meaning of ‘new facts’ in bail applications – Duties of
appellant for bail based on new facts. Doeseb v The State (CA 25-2015) [2015]
NAHCMD 199 (25 August 2015).
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Criminal Procedure - Application for condonation for late filing of an appeal – whether
the High Court has the jurisdiction to re-enrol an appeal in respect of which it had
refused an application for condonation. Murangi v The State (CA 88/2015) [2015]
NAHCMD 294 (4 December 2015).
Leave to appeal – should not be granted on the basis of a mere possibility of the
success on appeal but only where there are prospects of success on appeal. Leave
must not be granted where absolutely no chance of a successful appeal exists or where
the court is certain beyond reasonable doubt that the appeal will fail. Lameck v State
(CC 15/2015) [2014] NAHCMD 85 (10 April 2015).
Application for leave to appeal – Court held that in order to succeed the applicant
must satisfy the court that he or she has a reasonable prospect of success – In instant
case, court found that the court sitting as an appellate court had considered fully and
adequately the grounds of appeal – Having done that the appeal court had dismissed
the appeal – Court found in the instant application that applicants have failed to show
that they have a reasonable prospect of success on a further appeal – Consequently,
court dismissed the application. Ditshabue v State (CA 31/2010) [2015] NAHCMD 80
(30 March 2015)
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Applicant must clearly indicate reasonable prospects of success on appeal. Unengu v
The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015).
Criminal procedure – Application for leave to appeal against the sentence in terms of s
316(1) of the Criminal Procedure Act 51 of 1977 – no prospects of success on appeal,
the application dismissed. Criminal procedure – Application for leave to appeal against
the acquittal in terms of s 316A of the Criminal Procedure Act 51 of 1977 – no prospects
of success on appeal and application dismissed. Dias vs The State (CC 14-2011) [2015]
NAHCMD 142 (17 June 2015).
Criminal procedure – Appeal – Application for leave to appeal – Court held that in
order to succeed an applicant must satisfy the court that he or she has a reasonable
prospect of success on appeal – In instant case court found that the grounds relating to
conviction have no merit – Court found that in a fully reasoned judgment the trial court
gave reasons for the court’s conclusion that the guilt of the applicant (and his co-
accused) had been proved – Court also found that the trial court took into account all
relevant factors that a trial court should take into account when sentencing – Court held
that the applicant has not shown that he has a reasonable prospect of success on
appeal. Goagoseb v State (CC 06/2008) [2015] NAHCMD 265 (6 November 2015).
CONSTITUTIONAL LAW
Constitutional law: Article 12(1)(f) – Section 174 of the Criminal Procedure Act 51 of
1977 – Constitutionality in terms of Art 12(1) (f) – Placing the accused on his defence
does not violate the accused’s right to fair trial – Accused given the opportunity to either
defend himself or to remain silent. S v Barnard (CC 5-2013) [2015] NAHCMD 226 (24
September 2015).
CRIMINAL LAW
Criminal law – 278 charges against the accused persons – Main charges, High
Treason, Sedition and Public Violence, murder and attempted murder – Requirements
discussed – Test – Whether the State has proved beyond reasonable doubt that there
were overt acts done with the hostile intent – Principles on the defence of Alibi and
mistaken identity raised by the defence discussed. State v Malumo (CC 32/2001) [2015]
NAHCMD 213 (7-14 September 2015)
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intoxicating liquor – Not sufficient to prove that accused consumed liquor. S v Awa-
Eiseb (CR 03/2015) [2015] NAHCMD 12 (30 January 2015).
Criminal law - Appeal – Criminal Law — Magistrate correctly concluded that state
proved the elements of housebreaking with intent to steal and theft. Criminal Procedure
– Legal representation — Record reflect that magistrate rendered the necessary
assistance to the appellant — Evidence – Caution applied to evidence of single witness
although not mentioned in judgment – Evidence correctly evaluated — Sentence – No
proof of how loss was calculated and appellant not afforded the opportunity to address
court a quo before making compensation order – Ordering that 11 months spent in
custody whilst awaiting trial be deducted from net sentence was not proper – The
sentence in its entirety set aside and substituted. Shaalukeni v The State (CA 60/2009)
[2015] NAHCNLD 6 (05 February 2015).
Criminal law - Theft - What constitutes – Accused claimed to have kept complainant’s
property as security pending the return of his property (cellphone) by complainant’s
mother – Accused has right against mother of complainant – Such right not imputed to
complainant – Accused however sold the property soon thereafter – Accused had no
right to keep complainant’s property – No valid defence – Court not obliged to note plea
of not guilty. Criminal law – Robbery – Element of violence – Violence need not be
serious – Sufficient violence if object snatched from the victim’s hand. Geingob v The
State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015).
Criminal Law – Accused charged with rape in contravention of s 2 (1) (a) of the
Combating of rape Act – State alleging that accused inserted his penis into the minor
complainant’s vagina and or anus – Medical evidence finding no signs of penetrations –
Evidence revealing accused placed his penis between complainant’s buttocks – Making
up and down movements – Accused not guilty of rape – But guilty of indecent assault.
Criminal Law – Accused charged with rape committed on diverse occasions read with s
94 of the Criminal Procedure Act – State alleging that during 2011 accused having a
sexual act with complainant by inserting his penis into complainant’s anus or vagina on
diverse occasions – Complainant alleging that accused placed his penis between her
buttocks or on top of her vagina – No evidence as to which year – Where − And in what
circumstances the offence was committed – No sufficient particularities or clear details
were given – No sufficient evidence proving the charge beyond reasonable doubt –
Accused not guilty and acquitted. S v Gariseb (CC 02/2013) [2015] NAHCMD 114 (19
May 2015).
Criminal law – Trial - An accused has the right to remain silent during a trial. The
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reason being that there is no duty of any kind placed on him. It is, always the
prosecution that carries the burden (onus) to prove the allegations it has brought
against him beyond reasonable doubt. However, if at the close of the prosecution case
a prima facie case requiring an answer from him has been established, a choice to
remain silent will leave the prosecution case unchallenged. An adverse inference could
be drawn against him, and he runs the material risk of being convicted. Hifikepunye v
State (CA 102/2014) [2015] NAHCMD 39 (03 March 2015).
Criminal Law – Trial within a trial – Admission of warning statement, plea in terms of
s119 of Act 51 of 1977 and confession – Objection thereto – Rights not explained –
Assaulted – Forced – No basis for objection – Admissible. S v Hausiku (CC 10/2013)
[2015] NAHCMD 50 (10 March 2015).
Criminal law – Accused convicted of murder – Accused stabbed his girlfriend several
times with knife – Accused’s defence one of private defence – Evidence of State
witnesses contradicting on minor aspects – Credibility of witnesses not affected –
Evidence of accused self-contradicting – Irreconcilable with previous statements of
accused – Defence of private defence not proved – Intent – Circumstantial evidence –
Inference that accused acted with direct intent to kill. S v Khoikhoi (CC 01/2014) [2015]
NAHCMD 51 (10 March 2015).
Criminal law - the concept of ‘possession’, when used in a penal statute, comprises
two elements, a physical element (corpus) and a mental element (mens rea).
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015).
Criminal law – The accused was charged with robbery it being alleged that he used
violence to induce the complainant to part with his items. After reviewing the evidence,
the trial court held that the offence of robbery had not been proved and found the
accused guilty of assault with intent to cause grievous bodily harm and theft. On
automatic review, the High Court found that the Magistrate erred because the violence
and the theft constituted a single transaction. The court considered the propriety of
convicting the accused on two competent verdicts and held that it would have been
competent to do so if the offence of robbery had not been borne out. The court also
reiterated the need by trial courts to explain competent verdicts to unrepresented
accused at the stage of tendering their pleas. The court found the accused guilty of
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robbery and remitted the matter to the Magistrate’s court for sentencing in line with the
proper verdict. S v Kakoma (CR 11/2015) [2015] NAHCMD 58 (13 March 2015).
Criminal law – Convicted of Murder – Elements must be proved by the State beyond
reasonable doubt. S v Frederick (CC 19/2012) [2015] NAHCMD 78 (31 March 2015);
S v Kock (CC 07-2012) [2015] NAHCMD 154 (30 June 2015).
Criminal law — Murder read with the provisions of Combating of Domestic Violence
Act 4 of 2003 — Contraventions of section 16(1) of the Combating of Domestic Violence
Act 4 of 2003 —Breaching a protection order — Attempted Murder. S v Haufiku ( CC
2/2013) [2015] NAHCNLD 10 (11 February 2015).
Criminal law – State bears onus to prove that accused did not act in self-defence –
State failed to prove element of unlawfulness – Criminal Procedure – Evidence – Single
evidence – Caution applied and found that it was not safe to rely on the uncorroborated
testimony of a single witness – Whilst accused’s version not entirely satisfactory it was
found reasonably possibly true. Adverse inference drawn by failure of state to call
witnesses who could corroborate single witness. S v Lameka (CC11/2012) [2015]
NAHCNLD 7 (24 February 2015).
Criminal law – Combating of Rape Act – Minors under the age of 18 years at the time
of the commission of the crime - Prevention of Organised Crime Act, ‘Trafficking of
persons for sexual exploitation’ read with the United Nations Convention Against
Transnational Organised Crime – Minor children sexually exploited for money on
recruitment of accused – Additionally charged in terms of Combating of Rape Act, 2000
– No duplication of convictions - The counts relate to conduct committed on different
dates and required the accused on each separate occasion to make arrangements with
Pretorius and D for the sexual exploitation of D – Position of power used over minor
children from less privileged backgrounds – Such conduct punishable as trafficking for
sexual exploitation – Accused equally guilty of rape under coercive circumstances –
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Accused accordingly convicted. State v Lukas (CC 15/2013) [2015] NAHCMD 124 (2
June 2015).
Criminal Law – Trial within a trial – Admissions – Objections to – Rights not explained
– Assaulted. S v Franklin Savage (CC 12-2014) [2015] NAHCMD 150 (8 June 2015).
Criminal law – Culpable homicide – Negligent driving – Accused being the driver of
motor vehicle approaching pedal cyclist from behind on correct side of the road –
Accused as warning sounded horn of his vehicle – Cyclist moves more to the left side –
Cyclist suddenly and unexpectedly changes direction to cross over on to the side of
oncoming traffic – Accused steers vehicle to the same side of road to avoid a collision –
Collision on side of road for oncoming traffic – Situation of sudden emergency –
Whether negligent – Court a quo finds failure of accused to wait and see how cyclist
responds to sounding of the horn constituting negligence – Steps taken by accused
such as reasonably careful driver would fairly be expected to take in same
circumstances – No negligence by accused proved – Conviction on charge of culpable
homicide set aside. State v Nako (CR 20/2015) [2015] NAHCMD 158 (03 July 2015).
Criminal law - Criminal Procedure: Evidence ─ Trite that State bears onus to prove
beyond reasonable doubt ─ Mere fact that evidence of accused false does not
necessarily lead to conviction. S v Nakaleke (CC13/2013) [2015] NAHCMD 21 (13 May
2015).
Criminal law – Attempted murder by firing – defence asserting that victim not suffered
injuries and therefore charge of attempted murder not proved – Court holding that
injuries not part of the element of the crime – Essential element intention to kill – offence
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committed even where victim did not suffer injuries – Here victim in any event suffering
minor injuries. S v Komeya (CC 10-2012) [2015] NAHCMD 200 (25 August 2015).
Criminal Law: Housebreaking with intent to rape and rape – Rape in terms of common
law – Defence of sexual intercourse with consent of the complainant – Consensual
sexual intercourse with a girl under 16 not common law rape but contravention of s 14
of the Combating Of Immoral Practices Act 21 of 1980 is an offence – Such is a
competent verdict on a count of common law rape - section 16 of same act creates a
rebuttable presumption of unlawfulness– Absence of evidence to dissuade court from
drawing an adverse inference that he knew his actions were unlawful State proved
contraventions of s14 of the Combatting of Immoral Practices Act – competent verdict.
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015).
Criminal law: It is an aggravating factor where an accused chases his victim around
the place in full view of helpless onlookers until he corners and fatally wounds her. S v
Jantze (CC 23-2013) [2015] NAHCMD 241 (07 October 2015).
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Criminal law: In an application for leave to appeal the applicant is required to satisfy
the trial court that he has reasonable prospects of success on appeal. Koen v State (CC
14-2012) [2015] NAHCMD 220 (16 September 2015).
Criminal Law – Murder – Accused 1 – 3 charged with murder – Each of them playing
his role – Doctrine of Common purpose – Act of one accused imputed to the other.
Criminal Law – Accused 2 making spontaneous statements – Such admissions
admissible against him. S v Valombola (CC 25-2012) [2015] NAHCMD 159 (12 June
2015).
Criminal Law – Writing down of mandatory minimum sentence – Stock Theft Act --- has
no effect on the seriousness of the offences so ordained by the legislature. Custodial
sentences still have to be imposed for on every theft of stock whose value exceeds
N$500. Held: The sentence of three (3) years’ imprisonment wholly suspended for five
(5) years’ on condition that the accused is not convicted of a crime of stock theft,
committed during the period of suspension is set aside and substituted with the
following sentence: Each accused: Six (6) years’ imprisonment. The sentence is
antedated to 04 October 2013. S v Haufiku (CA 14-2014) [2015] NAHCMD 259
(30 October 2015).
Criminal law: He acts with direct intent he who arms himself with a dangerous weapon
such as a knife runs towards a defenseless victim raises up the hand in which he holds
the weapon to effect a heavy blow and eventually strikes on his victim with fatal
consequences. S v Jantze (CC 23-2013) [2015] NAHCMD 219 (14 September 2015).
Criminal Law – Murder – Sentence – Stabbing deceased 21 times – Slitting his throat –
Killing deceased in callous and cowardly manner – Offence premeditated – Sentence of
30 years’ imprisonment deemed to be appropriate. S v Adams (CC 17-2012) [2015]
NAHCMD 296 (8 December 2015).
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Criminal law - Rape – attempted – What constitutes – Accused found on top of
complainant, who lay naked on the ground screaming- Accused’s pants pulled down-
Such act constituting act of preparation for rape- Lack of penetration- Inferences to the
drawn there from. Rape – What constitutes – Act 8 of 2000 accused admitting having
scratched the complainant inside her vagina- Sexual act in Section 1 of Act 8 of 2000 –
Accused accordingly guilty of Rape on that basis. S v Savage (CC 12-2014) [2015]
NAHCMD 287 (25 November 2015).
Criminal law: For a conviction to follow, the evidence must connect the accused to the
commission of the offence. The overall standard remains proof beyond reasonable
doubt. Kambinda v State (CA 7/2015) [2015] NAHCMD 212 (11 September 2015).
Criminal law- Accused’s conduct – a conditio sine qua non of the deceased’s death. An
unbroken causal chain exists right through from the beginning of arguments and fighting
at the food and drinks outlet to the scene of crime where the accused was found sitting
at the corner of the bed whereon the deceased was laying on her back fully covered in a
blanket – dead. State v Basson (CC 09/2012) [2015] NAHCMD 227 (25 September
2015).
Criminal law: Murder – taking away another person’s life – a serious crime – attracting
a custodial sentence. The deceased was murdered by her lover after a stab wound was
inflicted on her neck. The incident took place in her own house. Held: The accused is
sentenced to Thirty five (35) years’ imprisonment. S v Basson (CC 09/2012) [2015]
NAHCMD 290 (30 November 2015).
Criminal law: A wrong suspect brought before Court – request that the proceedings be
set aside. Two suspects in the same holding cell shared a surname, resulting in the
wrong person being convicted and sentenced. Held: The entire proceedings including
the conviction and sentence are set aside. State v Katjaka (CR 31/2015) [2015]
NAHCMD 250 (16 October 2015).
Criminal Law – Prima facie case – what it is in a criminal trial – evidence under oath
connecting the accused to the alleged prosecutable wrong – becomes conclusive proof
if not displaced by the accused in evidence under oath. S v Venaani (CA 38/2015)
[2015] NAHCMD 271 (13 November 2015).
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conduct supports finding of intent in form of dolus eventualis – Convicted accordingly.
The State v Shekunyenge (CC 05/2015) [2015] NAHCMD 270 (13 November 2015).
CRIMINAL PROCEDURE
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were impaired and driving skills affected. S v Awa-Eiseb (CR 03/2015) [2015] NAHCMD
12 (30 January 2015).
Criminal procedure – Bail – Appeal against learned magistrate’s refusal to grant bail –
High Court hearing appeal can only set aside learned magistrate’s decision only if
decision was wrong – Magistrate finding that no new fact existed when appellant
detained in custody for about two years and nine months between time third bail
application failed and time of hearing of fourth and final bail application – Court held that
the term ‘new fact’ is not esoteric – Court held that the term ‘new fact’ bears its ordinary
grammatical meaning – ‘Fact’ means ‘a thing that is indisputably the case’ and ‘new’
means ‘not existing before’ – Consequently, court concluded that the decision of
learned magistrate that the two years and nine months’ detention awaiting trial coming
into existence after third bail application was not a new fact was wrong – Court found
that the learned magistrate misdirected herself on the law and/or fact and it is such
serious misdirection that leads inexorably to the conclusion that there has been a failure
of justice regard being had also to the fact that appellant has been detained in custody
awaiting trial for some seven years and his trial is not in sight – Court held that pre-trial
incarceration should not be used as a substitute for post-trial incarceration – It becomes
even more repulsive and greatly prejudicial to the accused where the pre-trial
incarceration is prolonged endlessly because the accused’s trial is nowhere in sight –
Such pre-trial incarceration violates the accused’s rights guaranteed to him or her by art
12(1) of the Namibian Constitution – Consequently, court set aside lower court’s
decision not to admit appellant to bail and court granted him bail with conditions.
Moussa v State (CA 105/2014) [2015] NAHCMD 21 (11 February 2015).
Criminal procedure - Bail – Accused indicted to stand trial in high Court on several
charges arising from two incidents of rape – Accused alleged to have committed second
rape six months after the first and while free on bail – Section 61 of Criminal Procedure
Act, 1977 (Act 51 of 1977) applied – Bail refused as not being in the interests of the
public or the administration of justice. Kamoruao v The State (CC 12-2009) [2015]
NAHCMD 32 (25 February 2015).
Bail – Appellant appealing against the decision of the magistrate refusing to release her
on bail – Appeal being removed from the roll due to non- appearance of appellant and
her legal representative – Appellant lodging application for bail in this court before
another Judge based on new facts – Matter pending before this court for trial – Bail
declined by the learned Judge hearing the application – Evidence on which bail was
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refused by magistrate considered by the judge hearing the application based on new
facts - Appellant reviving appeal against decision of magistrate in this court – Court
holding that appeal deemed to have been abandoned and hearing thereof amounting to
reviewing decision of this Court – Thus court declining to hear the appeal – Options
available – Appellant to appeal against the refusal of bail by this court to the supreme
court or to lodge fresh application based on new facts before this court. Lukas v State
(CA 16/2013) [2015] NAHCMD 35 (26 February 2015)
Criminal reviews – It is the duty of a magistrate to establish that the information on the
review coversheet correctly reflect the convictions (and not the offences the accused
had been charged with) in the record of the proceedings before sending the case on
review. Where person charged with housebreaking with intent to steal and theft but the
evidence did not prove that perpetrator had the intention to steal but had the intention to
commit the crime of assault with intent to do grievous bodily harm an accused may in
terms of the provisions of s 262(1) of Act 51 of 1977 be convicted of the crime of
housebreaking with intent to assault. Taking counts together for purpose of sentence
must be done with circumspection – When a single or one comprehensive sentence is
imposed in respect of two or more charges, it essentially means that the single
sentence is to be regarded as the punishment for each of the separate convictions and
must therefore be a competent and appropriate sentence in respect of each of the
convictions. S v Iita (CR 47/2014) [2015] NAHCMD 18 (09 February 2015).
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Criminal procedure — Plea — Guilty — Questioning in terms of s 112(1)(b) of Criminal
Procedure Act 51 of 1977 — Leading questions not to be put to accused – Elements of
offence covered by one leading question – Accused’s answer not recorded – Improper
questioning – Criminal procedure — Housebreaking with intent to steal and theft – Plea
— Guilty — Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 —
Intent of accused when entering not established — Elements of offence not admitted. S
v Uirab (CR 23-2015) [2015] NAHCMD 183 (06 August 2015).
Criminal procedure – Trial – Addressing court before sentencing by the State and
accused in terms of s 274(2) of the Criminal Procedure Act 51 of 1977 – Depriving
accused of the opportunity to address court before sentence amounting to gross
irregularity – Accused severely prejudiced because he was denied the opportunity to
address the court before sentence – Consequently, sentence set aside. S v Tjiposa (CR
16/2015) [2015] NAHCMD 123 (2 June 2015)
Criminal procedure – Accused put on his defence – The learned magistrate instructed
accused to indicate to the court as to why he should be found not guilty – Court held
that the instruction was wrong as an accused bears no onus to prove his or her
innocence – Court nevertheless held that the totality of the evidence accounts for the
guilt of the accused – Court found that the proceedings were in accordance with justice
– Consequently court confirmed the conviction and the sentence. S v Mayumbelo (CR
15/2015) [2015] NAHCMD 107 (5 May 2015).
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that is fair. Criminal procedure – Identification in the dock – Court held that there is no
rule of law that a dock identification must be discounted altogether, especially where it
does not stand alone – Court to decide what weight, if any, should be accorded to the
dock identification – Court held further that accused was not entitled to legal
representation at identification parade. S v Oxurub (CC 30/2010) [2015] NAHCMD 108
(5 May 2015).
Criminal procedure – The accused appeared before the magistrate’s court charged
with malicious damage to property read with the Domestic Violence Act. He was not
asked to plead but was referred for mental observation as he was suspected of
suffering from mental illness or a mental defect. A medical report was produced which
stated that he was capable of following the proceedings and mounting his defence but
as not capable of appreciating the wrongfulness of his action at the time. The court a
quo ordered him to be detained as a president’s patient in turns of Section 77(6) of the
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CPA. The High Court on automatic review held that the charge sheet did not full
particularise the offence and that on account of his suspected mental illness or defect,
the court should have advised the accused to obtain services of a legal representative
or assisted him in obtaining one at the government expense. The court held further that
the trial court was not competent to deport without a basis from the findings of the redial
personnel as to the accused’s mental state and the effect thereof on the trial. The
proceedings were set aside. S v Vekooka (CR 7/2015) [2015] NAHCMD 41 (4 March
2015).
Criminal procedure - Plea – Section 112 (1)(b) – Charge of driving under the influence
– Not sufficient when accused admits he was drunk when driving vehicle – Court from
its questioning must be satisfied that faculties of accused were impaired and driving
skills affected. S v Katuuo (CR 12/2015) [2015] NAHCMD 64 (18 March 2015).
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compelling circumstances exist – Mandatory sentence. S v Pieters (CC 48/2009) [2015]
NAHCMD 118 (27 May 2015).
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Statements ruled admissible. Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15
June 2015).
Criminal Procedure: Section 37(3) of the Criminal Procedure Act 51 of 1977 provides
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that: Any Court before which criminal proceedings are pending may in any case in
which a police official is not empowered … to take finger prints … or to take steps in
order to ascertain whether the body of any person has any mark, … order that such
prints be taken of any accused at such proceedings or that steps, including the taking of
a blood sample, be taken which such Court may deem necessary in order to ascertain
whether the body of any accused at such proceedings has any mark … or shows any
condition or appearance. S v Gomeb (CC 18/2013) [2015] NAHCMD 164 (22 July
2015).
Criminal procedure – Trial – Mental state of accused – Lower court’s order in terms of
s 77(6) of the Criminal Procedure Act 51 of 1977 is neither a conviction or acquittal –
Order accordingly not subject to review in terms of s 304 of Act 51 of 1977 – There is
unanimous finding in the psychiatric report that at the time of commission of the crime
the accused was mentally ill and was not able to appreciate the wrongfulness of the
crime and act in accordance with such appreciation – Lower court should accordingly
deal with accused in terms of s 78(6) of Act 51 of 1977 – S v Narib 2010 (1) NR 273; S
v Nyambali 2010 (1) NR 273 followed. S v Thaniseb (CR 22-2015) [2015] NAHCMD 179
(31 July 2015).
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fall within the ambit of s 86(1) of the CPA - Amendment sought would only be allowed if
the accused will not be prejudiced in his/her defence – Amendment would change the
basis and capacity in which the accused persons are charged and have pleaded and is
therefore a substitution in the guise of an amendment – Prejudice to the accused
persons evident – Right to a fair trial includes transparency in the charges levelled.
Amendment refused. Kapia v The State (CC 09-2008) [2015] NAHCMD 195 (21 August
2015)
Criminal Procedure – Sentence – Magistrate using wrong term namely ‘both’ instead
of ‘each’ when sentencing two accused persons for theft of stock – On review the term
‘both’ is replaced with each. S v Huseb (CR 25-2015) [2015] NAHCMD 208 (8
September 2015).
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Procedure – The accused – Diagnosed with mental retardation – Found to be
unaccountable for crime committed due to mental defect – However found able to follow
and understand court proceedings – Findings ambiguous where mental condition
unchanged. Criminal Procedure – The accused – When mentally retarded likely not able
to comprehend s 77 and 78 proceedings – Incapable of exercising rights availed by
these sections to challenge report – Imperative that court directs Legal Aid assistance.
Criminal Procedure – Court – Directive declaring accused State President’s patient –
Provisions of s 77 (6) applicable to other jurisdiction (South Africa) erroneously applied
– Orders made detaining accused in terms of s 77 (6) or 78 (6) pending signification of
decision of State President, not a judge. Criminal Procedure – Review – Proceedings
finalised under either s 77(6) or 78 (6) not reviewable. State v Usinge (CR 27/2015)
[2015] NAHCMD 222 (18 September 2015)
Criminal procedure – Plea – Plea of guilty in terms of s 112 (1)(b) – Court must
examine whether explanation substantiates plea – Court not to draw inferences from
accused’s answers. S v Kahinatjo (CR 29-2015) [2015] NAHCMD 234 (2 October
2015).
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Criminal Procedure – Special review in terms of section 304 of the Criminal Procedure
Act; application of the provisions of section 112 (1) (a); Propriety of changing a plea of
guilty to not guilty in terms of section 113 of the Act; RECUSAL – grounds for recusal
must be reasonable where a magistrate decides to mero motu recuse him or herself. S v
Boois (CR 37-2015) [2015] NAHCMD 275 (13 November 2015).
Criminal Procedure – Provisions of s 112 (1) (a) and s 112 (1) (b) and when they apply
reexamined. Criminal Law – contravention of Part I of the Schedule to sections of Act 41
of 1971. The accused was charged with illegal possession of habit-forming substance.
He pleaded guilty and was convicted on his own plea in terms of s 112 (1) (a) and was
sentenced to custodial sentence without the option of a fine. Held the magistrate erred
in applying the aforesaid provision. Held prosecutor has a duty to assist the court in
deciding whether to apply s 112 (1) (a) or (b). Held further that contravention of Act 41
of 1971 dealing with dependence-producing drug or plant is a serious offence and trial
magistrates are advised to invariably apply s 112 (1) (b) regardless of weight of
substance alleged to have been in accused’s possession. Conviction and sentence set
aside and matter remitted to be tried by another magistrate. S v Skrywer (CR 33-2015)
[2015] NAHCMD 258 (30 October 2015).
Criminal procedure – provides guidance – the manner for conducting criminal trial
proceedings aimed at maximizing a fair trial for both parties. State v Ambros (CR
32/2015) [2015] NAHCMD 251 (20 October 2015).
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suggested to be untrue – Witness to be afforded opportunity of giving explanation and
defending his or her character. Tjitandi v The State (CA 158-2013) [2015] NAHCMD 297
(9 December 2015).
INQUEST
Inquest – Findings in terms of s 18 (2) of the Inquests Act 6 of 1993 – Evidence –
Deceased died of single gunshot wounds – Fatal shot fired from unknown firearm –
Causing of death unlawful act – Person causing death unknown. Inquest The late
Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015).
Review – Inquest – Section 21 (1) of the Inquests Act 6 of 1993 – Section must be
read with s 18 (1) providing for instances where body of deceased person destroyed or
not found or recovered – Findings in term of s 18 – Magistrate found identification of
deceased and date of death unknown – Findings made not consistent with evidence –
Section 21 (2) – Unless finding not set aside on review – Effect of an order of the High
Court as a presumption of death – Findings set aside on review. Inquest Review Vernda
(CR 28-2015) [2015] NAHCMD 228 (25 September 2015).
Jurisdiction – Jurisdiction of the High Court over the Caprivi Zipfel discussed and
clarified – Principle of duplication of convictions applied – Evaluation of evidence
proving that the State has discharged the onus in respect of 30 accused person and has
failed to discharge such onus in respect of 35 accused persons alleged to have been
involved in the 2nd August 1999 attack on the Caprivi Region with the aim to overthrow
the authority exercised by the Government of Namibia in the Caprivi Region. State v
Malumo (CC 32/2001) [2015] NAHCMD 213 (7-14 September 2015).
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LAW OF EVIDENCE
Evidence: Fingerprints evidence – Real evidence – As such admissible. S v
Valombola (CC 25-2012) [2015] NAHCMD 159 (12 June 2015).
Evidence – Single witness – Young children – Cautionary rules – Court may convict on
evidence of a single witness if clear and satisfactory in material respects – Cautionary
rules – Not applied in formalistic way – Court may convict on evidence of young children
– if satisfied that the child is able to comprehend the truth – possess intelligence – Able
to remember and recollect the event – Evidence to be assessed in its totality. S v
Pieters (CC 48/2009) [2015] NAHCMD 38 (3 March 2015).
Evidence – Review — Submitted out of time — lip service to provisions of Act — Not
condoned — Evidence not support conviction-Substitution of charge will be unfair –
Accused convicted of assault with intent to do grievous bodily harm and sentenced to
two years imprisonment of which one year imprisonment was suspended for three years
on normal conditions. Accused not charged with any alternative charge nor warned of
competent verdicts. Magistrate contends that evidence supports a conviction of a
contravention of section 18(1) of Act 33 of 1960. The case was submitted for review on
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07 October 2014 while case finalized on 23 June 2011. The evidence does not support
the conviction. Substitution of charge will be unfair. Conviction and sentence set aside.
The warning of rights of review amounts to lip service to complying with the provisions
for review in the Act. It cannot be condoned. S v Shaanika (CR 1/2014) [2015]
NAHCNLD 12 (24 March 2015).
Evidence — Trite that State bears onus to prove beyond reasonable doubt — Mere fact
that evidence of accused false does not necessarily lead to conviction — Court to apply
its mind where versions of State and defence are mutually destructive — Technique
applied by courts in resolving factual disputes applied — Evidence should not be
evaluated piecemeal. S v Haufiku (CC2/2013) [2015] NAHCNLD 10 (11 February 2015).
Trial – Murder – Accused and deceased in a domestic relationship – State case entirely
based on circumstantial evidence – Court faced with conflict of facts between State
witnesses and accused – Approach by court discussed and principles applied –
Accused’s testimony found untruthful – Accused not per se guilty – Accused’s
untruthfulness a factor when considering all the evidence – Circumstantial evidence not
to be considered in isolation – Cumulative effect thereof will be decisive. The State v
Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015).
Circumstantial evidence: This can only lead to conviction if the inference sought to be
drawn is consistent with all the proved facts. Proved facts should be such that they
exclude reasonable inference from the same the one to be drawn. Accused was the
custodian of the deceased. She was seen beating her. Deceased later died and was
found with wounds and scars which the doctor described as both old and fresh. Sticks
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were found in the house. Accused was in a hurry to have deceased buried before the
arrival of police. Accused found guilty of murder with legal or constructive intent. S v
Kalukumwa (CC 26-2012) [2015] NAHCNLD 27 (30 June 2015).
Evidence ─ Trite that State bears onus to prove beyond reasonable doubt. S v Sakaria
(CC02-2014) [2015] NAHCNLD 37 (20 May 2015).
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refused to allow the postponement to enable the prosecution to consider the special
plea as the special plea had not been served and the prosecution had a right, once it
had been served to consider same and make an appropriate application to court. The
court refused to countenance an application for a postponement hinging on an
application that had not been served when valuable court time may needlessly be lost.
The application was granted in part. S v Conradie (CC 20/2013) [2015] NAHCMD 101
(27 April 2015).
SENTENCE
Sentence – Induces a sense of shock. S v Mavunda (CR 01/2015) [2015] NAHCMD
10(30 January 2015).
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society outweigh circumstances of accused – Custodial sentence of 35 years imposed.
S v Khoikhoi (CC 01/2014) [2015] NAHCMD 55 (13 March 2015)
As the sentencing magistrate in the court a quo did not know of the constitutional
invalidity of the minimum sentencing regime imposed by the Stock Theft Act 1990, at
the time of sentencing the appellants, in this case, it could not be said that he had
misdirected himself in this regard.
However, it was clear, that, if the appellants’ sentences would be allowed to stand, then
that would be tantamount to allowing a sentence in conflict with the Namibian
Constitution to continue to stand. As this would amount to a breach of the supreme law
and result in a grave injustice and as a court of appeal has the duty to protect accused
persons against grave injustices the court therefore had a duty to reconsider the
sentences meted out to the appellants afresh. Appeal against sentences accordingly
upheld. Appellants sentenced afresh. Isak v The State (CA 62/2011) [2015] NAHCMD
98 (20 February 2015); Mathys & Another v State (CA 98/2014) [2015] NAHCMD 42
(23 January 2015)
Sentence — Murder read with the provisions of the Combating of Domestic violence
Act, Act 4 of 2003 — Two (2) counts of contravening section 16(1) of the Combating of
Domestic Violence Act, Act 4 of 2003, breaching a protection order — Plea of guilty to
murder — Sentence of one count of breaching protection order to run concurrently with
sentence of murder. S v Haufiku ( CC 02/2013) [2015] NAHCNLD 11 (9 March 2015).
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offences and loss of life. S v Khamuxas (CC 20/2012) [2015] NAHCMD 69 (24 March
2015).
Sentence – Accused convicted of – Indecent assault – Accused putting his private part
between complainant’s buttocks – Doing up and down movements – Aggravating
factors − Complainant 9 years old – Accused uncle to complainant – Accused was
accommodated by complainant’s parents – Accused having previous conviction of rape
– Court viewing this in a serious light – Grave situation calling for accused to be isolated
from the public – Accused sentenced to seven (7) years’ imprisonment. S v Gariseb
(CC 02-2013) [2015] NAHCMD 135 (11 June 2015).
Sentence – Irregularity vitiating the sentencing procedure – court failed to comply with
the provisions of s114 of the Criminal Procedure Act,1977 (Act 51 of 1977- Penalty
provision, s14(1)(a)(ii) of the Stock Theft Act, already declared unconstitutional –
sentence set aside and substituted. Amunyela v The State (CA 46-2014) [2015]
NAHCNLD 26 (30 June 2015).
Sentence – Previous Convictions – Aggravating factor – Court cannot turn blind eye on
it – Period spent in custody awaiting trial – Weighs in favour of accused – Offences
committed closely connected in time – Several offences were committed – Accused to
be punished appropriately for each one of them. S v Valombola (CC 25-2015) [2015]
NAHCMD 206 (4 September 2015).
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blameworthiness – Facts will determine whether intoxication a mitigating factor –
Custodial sentence inevitable – Court exercising its discretion and ordering offences
from the same incident to run concurrently. S v Barmann (CC 05-2014) [2015]
NAHCMD 224 (21 September 2015).
Sentence - A person who uses a panga or such lethal weapon on a defence’s woman
without provocation should receive a sentence befitting of his callousness – courts
cannot ignore the alarming rate of domestic violence being perpetrated on women and
children. Stiffer penalties are called for to discourage would-be offenders and pass out
punishment to the accused. S v Johannes (CC 07-2015) [2015] NAHCNLD 47 (05
October 2015).
Sentence: Murderers under these circumstances should not readily receive sympathy
from the courts. Courts should pass sentences which are deterrent in nature. Accused a
female adult systematically physically abused a 3 years old child under her custody
resulting in her death. There was no reason given for this type of manner. Courts should
severely punish such offenders. S v Kalukumwa (CC 26-2012) [2015] NAHCNLD 36 (28
July 2015).
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genuineness of alleged contrition – Accused’s attempted suicide not a mitigating factor
– Deceased’s pregnancy an aggravating factor – Gravity of offence and legitimate
interests of society outweigh interests of accused – Custodial sentence of 35 years
imposed. S v Van der Westhuizen (CC 06-2015) [2015] NAHCMD 260 (5 November
2015).
Criminal procedure – Sentence – Stock theft (c/s 11 (1)(a) of Act 12 of 1990) – Fine
imposed – Section 14 (1)(a) of the Stock Theft Act not providing for fines for stock theft
– Sentence not competent – Fine set aside and substituted with custodial sentence.
State v Hoeb (CR 36/2015) [2015] NAHCMD 269 (13 November 2015).
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State of such poor quality that reasonable court may not possibly convict. S v Rothen
(CC 27/2006) [2015] NAHCMD 99 (27 April 2015).
Criminal Procedure – s 174 of Act 51 of 1977 - In terms of our law the question that a
trial Court must decide at the close of the prosecution case is whether there is no
evidence, upon which a reasonable Court acting carefully may convict the accused on
the offences he is facing. If the answer is ‘Yes’, the accused must be placed on his feet
to furnish an answer to the allegations against him. On the other hand if the answer is
‘No’, the Court is not allowed to place him on his defense because no prima facie case
has been made out against him. Kashawa vs The State (CC 9-2013)[2015] NAHCMD
202 (27 August 2015).
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CASE SUMMARIES
Amunyela v The State (CA 46-2014) [2015] NAHCNLD 26 (30 June 2015).
Summary: The appellant was convicted of stock theft in contravention of the Stock
Theft Act and was sentenced to 20 years’ imprisonment of which 10 years’
imprisonment was suspended for five years. The regional court magistrate failed to
comply with the provisions of s114 of the CPA and the minimum sentence prescribed by
s 14(1)(a)(ii) of the Stock Theft Act has been declared unconstitutional. The court
accordingly replaced the sentence with a sentence of 6 years’ and 6 months’
imprisonment.
Held that, although an identification parade was not held, the witnesses whom she
transported had the opportunity to closely observe her as the driver of the vehicle and
reliably identified her as the driver.
Held further that, witnesses testified that the appellant solicited and accepted money
from them as a reward for transporting them to their destinations. The appellant was
therefore correctly convicted. Appeal dismissed.
Beukes v The State (CA 27-2015) [2015] NAHCMD 292 (2 December 2015).
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Summary: The accused was convicted on his plea of guilty of violating a formal
warning issued to him by the police in terms of the Combating of Domestic Violence Act
4 of 2003. During questioning pursuant to s 112 (1)(b) of the CPA the accused raised
intoxication as defence. The court continued questioning the accused and then
convicted, having been satisfied that the charge was admitted. The magistrate should
not have evaluated the accused’s answers and should have corrected the plea by
entering a plea of not guilty in terms of s 113. This constituted a misdirection which
vitiated the conviction. The sentence of periodical imprisonment was not a competent
sentence in that accused was ordered to serve his sentence at a police station and not
a correctional facility as stipulated in the Act. Appeal upheld and matter reverted to trial
court under s 312 of CPA to invoke s 113 and proceed to trial.
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vitiated with any irregularity or misdirection and sentence does not induce a sense of
shock in the mind of the court, considering the seriousness of the crime that was
committed in a vicious manner against harmless and innocent persons who have done
the appellant no harm – Court therefore refusing to interfere with sentence imposed –
Consequently, appeal dismissed.
Dias vs The State (CC 14-2011) [2015] NAHCMD 142 (17 June 2015).
Summary: Mr Dias, the applicant in the application for leave to appeal against the
sentence is seeking leave to appeal the sentence of six years imprisonment of which
half thereof was suspended for five years on certain conditions – The court found the
sentence imposed appropriate and not disturbingly harsh to induce a sense of shock –
Further, court found that the applicant had failed to establish prospect of success on
appeal and dismissed the application.
Doeseb v The State (CA 25-2015) [2015] NAHCMD 199 (25 August 2015).
Summary: Appellant applied for condonation for late filing of heads of argument. Held
– the delay was minimal and no prejudice enured to any party as a result of the delay.
Though not specifically argued, prospects of success were held to be extant. The
requirement to allege and prove all elements for condonation emphasized. Appellant
was refused bail initially and later brought a fresh application before the magistrate’s
court alleging new facts, viz loss of employment as a result of the continued
incarceration; inability to support family and failure to pay loans and policies held not to
be new facts but old matters but which are the ordinary consequences of detention.
Held further that the court should consider the issues arising in both the old and fresh
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applications. Held further that the appellate court is not at liberty to substitute its views
for the lower court but must decide whether that court was correct in refusing bail.
Appeal dismissed.
Summary: The appellant was charged with one count of rape under s 2(1)(a) of the
Combating of Rape Act 8 of 2000 (The Act) and one count of assault with intent do
grievous bodily harm. It was alleged that he had committed unlawful sexual acts by
having sexual intercourse with the complainant under coercive circumstances. Appellant
was convicted on both counts but he appealed against the conviction on rape and the
sentence of a 10 years’ imprisonment. The appellant argued that he had sexual
intercourse with the complainant with her consent.
Held, that the sexual intercourse which the accused had with the complainant,
constituted rape in contravention of s 2 of the Act.
Held further that is trite law that a court, when sentencing an accused, has regard to the
well-known triadic factors, namely, the crime, the criminal and the interests of society.
The time may have come also to bear in mind the circumstances of the victim and the
effect the crime has had on her.
Geingob v The State (CA 87/2014) [2014] NAHCMD 19 (06 February 2015)
Summary: The accused was convicted of robbery pursuant to his plea of guilty.
During the court’s questioning in terms of s112 (1)(b) he explained that after snatching
the complainant’s cellphone from his hand he intended keeping it (available) until
complainant’s mother returned his property (also a cellphone). Accused however then
sold the phone. On appeal contended that accused raised a defence and the court
should have noted a plea of not guilty. There is no legal basis from which a right derived
entitling the accused to hold the property of a third person as security.
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applicant (and his co-accused) had been proved – Court also found that the trial court
took into account all relevant factors that a trial court should take into account when
sentencing – Court held that the applicant has not shown that he has a reasonable
prospect of success on appeal – Court rejected grounds that applicant put forth in
respect of conviction – Court found that the very factors which applicant complained the
trial court failed to take account of were in fact considered – Applicant’s assertion is
therefore factually incorrect – Trial court took into account all relevant factors, including
the youthfulness of the applicant at the time of the commission of the crimes and the
fact that applicant had spent some five and a half years in custody awaiting trial – Court
found that the applicant has not shown that he has reasonable prospects of success on
appeal – Consequently, application is dismissed.
Held: Kefas and Johannes who boarded the vehicle together with the appellant to
collect the stock in fact materially corroborated each other and effectively placed the
appellant at the scene of crime. These two witnesses also connected the appellant to
the commission of the crime of stock theft.
Held: The conviction is confirmed.
Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22 June 2015)
Summary: The appellant was tried and convicted for rape. Notice of appeal – it was
held that the notice of appeal should fully and concisely set out the grounds upon which
it alleged the trial court erred so as to give notice to all the parties the grounds on which
the decision is attacked. Application for condonation – the court held that where the
appellant has not filed the notice of appeal in time, he or she should file an application
for condonation accompanied by an affidavit which explains the delay and states
grounds on which the appellant claims he or she has prospects of success on appeal.
Sentence – where there is no appeal against sentence, the court may not interfere with
the sentence imposed as there are no grounds alleged therefor. Evidence – the court
held that although the complainant was a single witness and young, she had adduced
her evidence truthfully and the trial court duly warned itself on the dangers of relying on
her evidence. Appeal dismissed as no prospects of success were alleged and shown to
exist.
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Summary: Applicant in this matter was a police officer. He is HIV-positive He was
arrested on counts of kidnapping and murder. Later a count of assault by threat read
with the provisions of the combating of domestic violence act was added. His wife had a
relationship with the deceased. The applicant searched for the deceased. When he
found the deceased he hand cuffed him and took him to his home. At his house he also
feet cuffed the deceased. He tortured the deceased with the wife witnessing the
incident. The deceased eventually died. Bail was refused.
Inquest The late Frieda Ndatipo (1-2015) [2015] NAHCMD 192 (17 August 2015).
Summary: During a skirmish between the police and a group referring to themselves
as ‘The Children of the Liberation Struggle’ (CLS) the police dispersed the group and
drove them away from the gate of premises to which they have blocked all access. After
being pepper-sprayed some members in the group started throwing stones at the
police, injuring three officers. Several shots were fired by a number of police officers.
Evidence in the form of a video recording shows that shots were either fired in the air or
the ground, without any proof that the deceased was struck by any of the bullets so
fired. This corroborates the evidence of the officers who fired the shots. The deceased
had covered some distance from where the fight broke out before struck by a bullet
which caused her death. Evidence given by two independent witnesses shows that one
or more unknown member(s) of the CLS were seen in possession of firearms
immediately before and during the incident. Whereas the projectile that killed the
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deceased passed through her body and was not subsequently recovered, the firearm
from which it was fired could not be determined. In view thereof, the court found that the
deceased was unlawfully killed by an unknown person.
Summary: Criminal procedure – Appeal – After his trial in the lower court applicant (ie
appellant) appealed to the court against sentence only – The basis of the appeal was
that a cumulative sentence of 40 years, 20 years each, for two counts of rape of two
eight-year old girls was shockingly inappropriate – The court was not persuaded by
appellant’s (ie applicant’s) counsel’s argument – Appeal court had found that the
learned magistrate did not misdirected himself when he imposed the cumulative
sentence and the sentence did not induce a sense of shock – Consequently, appeal
court had dismissed the appeal – The applicant launched an application for leave to
appeal – Having considered applicant’s application for leave to appeal this court found
that the applicant has failed to satisfy the court that he has a prospect of success on
appeal – Consequently, the court dismissed the application.
Kambinda v State (CA 7/2015) [2015] NAHCMD 212 (11 September 2015).
Summary: The accused were first seen by one of the eyewitness at the river, Simanya
Village where on enquiry were shown the crossing point into Angola, but they instead
took a bath and went to rest in the bush. The second eyewitness arrived at the river and
because of the prevalence of cattle rustlers at the village, the fact that the accused wore
torn trousers and were never seen at that village before, caused suspicions to rise high.
The two witnesses tracked the accused who were found asleep. They woke up got
scared and started running but were later rounded up.
Held: The two key eyewitness who apprehended the accused testified in their evidence
in chief and during cross-examination that none of them saw any of the accused walking
behind the alleged stolen cattle or chasing them.
Held: The conviction cannot be allowed to stand, and it is accordingly set aside.
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– In instant case appellant has failed to give satisfactory explanation for the delay and
there are no prospects of success on appeal – Court found that the explanation for the
delay was not satisfactory – Court also found that the appellant has not established that
the sentencing proceedings were vitiated by an irregularity or that the learned
magistrate misdirected herself – Court also did not find the sentence imposed to be so
manifestly excessive that it induces a shock in the mind of the court – Consequently, the
appeal should fail – Court accordingly dismissed the appeal.
Kapia v The State (CC 09-2008) [2015] NAHCMD 140 (15 June 2015).
Summary: The accused persons testified during an enquiry held in terms of s 417 of
the Companies Act 61 of 1973 and were implicated in the court’s judgement.
Subsequent thereto they were approached by the police and informed of the
incriminating allegations emanating from the judgment and asked whether they had any
knowledge thereof. They were at the time advised to consult a lawyer prior to making
the statements. At the relevant time they were not regarded as either witnesses or
suspects. They made the statements voluntarily and handed same over to the police.
They were subsequently indicted and during the trial objected to the production of the
statements in evidence on the basis that the accused were not warned when making
the statements that it would be used against them in criminal proceedings. Though the
accused elected not to give evidence, they considered themselves witnesses when
making the statements. There is no duty to explain rights to a witness, only to a suspect
or an accused. This notwithstanding they were advised to consult a lawyer before
making any statement. If they did not heed the advice given to them it is only to their
own peril. Accused no 4 is an admitted legal practitioner and married to accused no 4,
an educated person. In the absence of evidence to the contrary, the court was satisfied
that they were aware of their rights.
Kashawa vs The State (CC 9-2013)[2015] NAHCMD 202 (27 August 2015).
Held: A prima facie case that requires an answer from the accused has been
established and the application for his discharge is declined.
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Koen v State (CC 14-2012) [2015] NAHCMD 220 (16 September 2015).
Summary: The applicant was the Head of the Finance Department at Outjo
Municipality. He was the Strategic Executive Officer, Treasurer (Chief Financial Officer).
He had vast experience in the financial sector, and was tasked to promptly receive,
record all monies paid in by residents for various services, and to bank it or to supervise
that it was banked regularly. The applicant went on a carefully planned stealing spree
culminating in him setting the Municipal Finance Office on fire to destroy evidence. In
the destruction that ensued all finance records such as receipt books, vouchers,
computers as well as irreplaceable valuable historical documents housed there for
years were reduced to ashes.
Held: A sentence of 12 years taken together for the counts of arson and defeating the
course of justice as well as that of N$350 000 or in default of payment six years
imprisonment for theft to some of the charges in respect of the second alternative to the
main count in count 3 is not misplaced.
Held: No reasonable prospects of success on appeal has been shown and both
applications are dismissed.
Kurooro v The State (CA 59/2013) [2015] NAHCNLD 23 (12 June 2015).
Summary: The appellant appealed against convictions and the sentence of 20 years’
imprisonment of which 12 years’ imprisonment is suspended for five years for 2 counts
of theft of 2 (two) cattle, one ox valued at N$1500,00 and one cow valued at N$
2000.00 respectively. The two heads of cattle were stolen on the same date and at the
same place. The ox in count 1 belonged to a different owner than the cow/heifer in
count 2. The appellant should only have been convicted of one count of theft of 2 (two)
head of cattle. This court found that there was a duplication of convictions. Convictions
set aside and substituted with one count of theft. The prescribed minimum sentence of
20 years’ imprisonment was held by this court to be unconstitutional and the sentence
imposed herein was found to be shockingly inappropriate. The court considered the
recorded facts in mitigation and aggravation; sentences imposed by this court, and the
interests of communal farmers who are vulnerable to stock theft in the jurisdiction of the
sentencing court. The appeal against sentence was upheld and the sentence imposed
by the regional court is set aside and substituted with a sentence of 10 (ten) years’
imprisonment of which 2 years are suspended for 5 years on the usual conditions.
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Lameck v State (CC 15/2015) [2014] NAHCMD 85 (10 April 2015).
Summary: Applicants applied for my recusal which application was dismissed.
Applicants then applied for leave to appeal to the Supreme Court. Applicants must
prove that there exists reasonable prospects of success on appeal, not a mere
possibility or that the case is arguable. A further consideration in my view is the national
importance and public interest of the matter. Leave to appeal is granted.
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the application based on new facts. This court has no jurisdiction to review its decision
or to hear an appeal in respect of its own decision – Thus the court declined to hear the
‘appeal’ – Options available to appellant – To appeal against the decision of this court
when it denied bail based on new facts to the Supreme Court or to lodge a fresh bail
application based on new facts, if any.
Mayawoula v The State (CA 6/2015) [2015] NAHCMD 97 (09 March 2015).
Summary: Criminal law — Drug offences — Cocaine — Dealing in in contravention of
Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of
1971 — Appellants driving vehicle in which cocaine hidden in spare tyre — On appeal
— Appellants' version that they had not known that cocaine had been concealed in
vehicle, was held reasonably possible on the facts proved in the case — Mens rea
accordingly not proved — Court on appeal accordingly setting aside conviction of trial
court of dealing in cocaine.
Murangi v The State (CA 88/2015) [2015] NAHCMD 294 (4 December 2015).
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Summary: The applicant applied before the High Court to enrol his appeal which had
been removed from the roll after the High Court refused his application for condonation
on the grounds that he had no prospects of success. Held that once the High Court has
refused an application for condonation, it does not have the power to re-enrol the
appeal. Held further that if the appellant is dissatisfied with the decision of the High
Court dismissing the application for condonation, he or she has a right to appeal directly
to the Supreme Court for relief without seeking leave from that Court. Application for
enrolment refused.
Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March 2015).
Summary: On 27 November 2014, this court dismissed a special plea in terms of s
106 (1)(f) of the Criminal Procedure Act 51 of 1977 by the applicants, that is, that this
court does not have jurisdiction to try them for offences they had been indicted to stand
trial in the High Court – Not happy with the dismissal of their special plea, the applicants
had sought leave to appeal such dismissal – The court, however, on the authority of
case law, found that the applicants failed to establish special circumstances in the
matter to justify an appeal at this stage before conviction and sentence – Alternatively,
the court held that no prospects of success on appeal had been established for another
court to come to a different conclusion – Leave to appeal declined.
Nghipondoka v The State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015)
Summary: Appellant was convicted of assault common. Appellant, a director of
education, facilitated a conference for teachers. During the conference she observed
some teachers reading newspapers. She reprimanded teachers not to read the
newspapers during the conference. The appellant, according to her, observed the
complainant in the matter continue reading his newspaper that was folded on his lap.
The complainant denied having read the newspaper. Appellant approached him, talked
to him without a response, grabbed him on the collar of his jacket, pulled him up from
the chair he was sitting on, pushed him into the aisle, slapped him with open hand once
on the back and hit or threw him with a newspaper. Appellant on appeal submitted that
the magistrate erred in his evaluation of the evidence, alternatively that the assault was
justified and/or that the rule of de minimus ought to have been applied. Court found no
misdirection and assault not justified nor subject to the de minimus rule.
Paulus v The State (CA 40-2015) [2015] NAHCMD 211 (11 September 2015).
Summary: The accused pleaded guilty to theft of goods valued at N$329.94 and was
sentenced to three years’ imprisonment of which 8 months’ imprisonment suspended.
On appeal argued that the sentence was unduly harsh if regard is had to the value of
the stolen goods. A factor that weighed heavily against the accused is his record of
previous convictions involving similar crimes for which he in each instance was
sentenced to a term of imprisonment. Punishment should be in relation to the crime
committed and although sentences will become increasingly heavier if the accused
reoffends, there are boundaries, particularly when it involves petty crime. Though the
sentence is somewhat harsh it is not startlingly inappropriate or such that it induces a
sense of shock. Whereas no misdirection was committed or an irregularity occurred at
the stage of sentencing, there is no basis for appeal court to interfere with the sentence.
Summary: To prove a contravention of s 82(1) of the Road Traffic and Transport Act
22 of 1999, ie driving under the influence of intoxicating liquor, there must be proof that
the accused’s faculties had been impaired when driving a vehicle on a public road.
Accused pleaded guilty to a charge of contravening s 82 (1) and during question
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admitted that he was drunk while driving on a public road. The court, in convicting,
accepted the accused’s mere say-so without ascertaining whether the accused’s
faculties were indeed impaired whereby his driving skills were affected. Conviction set
aside.
Summary: The accused pleaded not guilty to multiple counts involving murder,
attempted murder, assault with intent to do grievous bodily harm and assault. These
arose from two separate and unrelated incidents. The State led evidence showing that
the accused had struck the deceased, his girlfriend at the time, forcefully with a drinking
glass on her neck whereby she was fatally injured. The accused’s defence that the
injury was accidentally caused when he blocked the blow when the deceased tried to hit
him with the glass was rejected as false. On count 2 evidence that complainant was
stabbed on the face with a broken glass is lacking and it was at most proved that the
accused had hit him with a clenched fist once, constituting assault. Evidence led on
count 3 did not support allegations of accused having stabbed the complainant with a
knife. Accused’s evidence that he had only struck the complainant with a broken crutch
on the side of the neck when attacked by the complainant, is reasonably possibly true in
the light of the evidence adduced. The accused’s defensive act found to be lawful in the
circumstances. The accused’s plea of guilty on a charge of assault with intent to do
grievous bodily harm accepted by the court (count 4). Evidence led in respect of count 5
shows that accused forcefully pushed the complainant out of the way, causing her to fall
onto her back, thereby making himself guilty of assault. Accused accordingly convicted
on those counts duly proved and discharged on count 3.
Summary: The accused and the deceased were drinking jabula under a big tree where
good and drinks are sold. He had a knife in his pocket when arguments and fighting
between them started over a tin of meat and a loaf of bread the accused bought and
sent Boetetjie to take home. That ugly situation between them persisted all the way
back home, where the accused sent the children to a nearest shop to buy matches.
When they returned they found the accused sitting at the corner of the bed holding his
head with both hands. The shirt and short trouser he was wearing were bloodstained,
while the deceased was laying on her back wholly covered with a bloodstained blanket
dead.
Held: The accused is the person who stabbed the deceased with a knife to death during
the time he had sent away the children to buy matches.
Held: He is convicted of the murder of the deceased, Johanna Basson.
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S v Boois (CR 37-2015) [2015] NAHCMD 275 (13 November 2015).
Summary: The applicant applied to the High Court for condonation for leave to appeal
against a sentence meted by the Magistrate’s Court. Requirements for success for an
application for condonation revisited. Held that an applicant for condonation must not
only make allegations about prospects of success but must also state on oath with
reference to the record and other relevant documents reasons why it is claimed the
applicant for condonation has reasonable prospects of success. Held the applicant did
not save making mere allegations, establish that she had reasonable prospects of
success. Application for condonation refused.
Summary: The accused was charged with one count of assault with intent to do
grievous bodily harm and two counts of rape. Complainant gave single evidence about
an incident in which she was grabbed at night and taken to an isolated spot where she
was assaulted and raped by two persons. The complainant claimed to have identified
the accused as one of the assailants. In its assessment of the reliability of the
complainant’s observation implicating the accused, the court had regard to factors such
as visibility and the fact that the complainant admitted having been intoxicated at the
time. Another factor taken into account was conflicting reports made by the complainant
to different witnesses as regards the events which took place. Though the discrepancies
in the complainant’s evidence could have been brought about due to shock, it cannot be
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ruled out that it came about due to her having been under the influence of alcohol at the
time the offence was committed. When the court considered the complainant’s evidence
together with the rest of the evidence, including the merits and demerits on both sides, it
came to the conclusion that the evidence regarding the identity of the complainant’s
assailants was unreliable and did not establish beyond reasonable doubt that the
accused had been correctly identified. Accused accordingly found not guilty on all
counts.
Summary: Criminal Law: The state sought to have the admissions made by the
accused ruled admissible. The defence objected to that on the basis that the accused
was not properly warned of his rights, was assaulted – A trial-within-a-trial was held and
the court found that there was no basis for the objection.
Held further, that the accused’s rights were fully explained to him.
Held further, that the accused was not assaulted. The admissions made by the accused
to the police are ruled admissible.
Summary: On the first count the accused and the deceased had an intimate romantic
relationship while residing apart. On the day of the incident, he visited her residence in
the early hours of the morning and found that she was still not yet at home. On her
arrival an argument about her absence ensued, resulting in the accused stabbing her up
to twenty seven times with her own house’s kitchen knife. On the second count, and
separate occasion the accused searched for his daughter at various places in the
evening, but did not find her. He became unhappy, and was later informed that she was
visiting her friend at a place where the complainant and his friend, also happened to be
at the time. The daughter noticed him approaching and ran away. The accused
questioned the complainant on the whereabouts of his daughter and in the process he
hit him with a fist in the face, instantly pinning him to the ground unconscious,
occasioning a head injury and a fractured collarbone.
Held: The killing of defenseless women by their male partners has seriously escalated
with no end looming on the horizon.
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Held: In the result the accused is sentenced as follows: thirty five (35) years’ on the first
and five (5) years’ on the second count respectively, running concurrently would be
appropriate.
Summary: The accused was charged with murder. He raised private defence and in
the alternative the death of the deceased was caused by himself by removing drips
inserted into his lungs to remove fluid. Held further that evidence showed that accused
was the aggressor when he stabbed the deceased nine times. Held further that the fact
that the deceased removed the drips had no causal link to his death. Accused guilty as
charged.
Summary: During the evening on the day of the incident, Fritz Nanab, a resident of
Khorixas heard the screaming of a person close to his house nearby the church yard.
He alerted the police about it, but as it persisted he decided to go out and see what was
happening. On arrival he saw two persons running away from the scene. On coming
closer he found one male person on top of a naked screaming female victim. He caught
and handed him to the police, who had also arrived at the scene. Nanab did the same to
another suspect who later came back at the scene enquiring about a cherry (girl).
Held: During the investigation only accused 2’s blood was drawn and sent for analysis.
The police could not shade light as to why the same was not done to accused 1 and 3.
Held: The order to draw blood for comparison purposes is generally in the interest of
both parties. However it must be noted that the chain of custody of any swabs, blood
samples obtained from the complainant must have been meticulously observed and
properly accounted for in order for such comparison to take place.
Held: In this matter the evidence relating to the alleged obtaining of swabs from the
complainant as well as her bra and panty has been irreparably damaged, such that
there is nothing with which accused 1 and 3’s blood samples can be compared with.
Held: In the result the application to have blood drawn from accused 1 and 3 is
declined.
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He is 27 years of age and after cognisance was given to his personal circumstances the
court concluded that the imposition of a custodial sentence is inevitable. The period of
three years and seven months the accused spent in custody awaiting trial will lead to a
reduction in sentence. The gravity of the offence and the legitimate interests of society
dictate that deterrence and retribution as sentencing objectives must be emphasised
and that a lengthy custodial sentence is required. The accused sentenced to 32 years’
imprisonment.
Summary: The accused and the deceased were married. The deceased obtained a
final protection order on 17 August 2012 in accordance with section 13 of the
Combating of Domestic Violence Act 4 of 2003. On an unknown date in September
2012 or end of August 2012 the accused breached the protection order by going to the
cuca-shop of the deceased to buy 2 bottles of beer on credit. The deceased was not at
the cuca-shop on the said date. On 20 September 2012 the deceased returned to the
cuca-shop from Oshakati. She sent one Martin to collect the money for the 2 beers from
the accused. The accused instead of sending the money came to the deceased at the
cuca-shop in breach of the protection order. The debt was eventually consolidated with
money that the deceased owed the accused. The accused returned to the place where
he came from. Shortly thereafter the accused came again to the cuca-shop of the
deceased. He demanded his things and threw out an iron steel rod. He tried to stab the
deceased with a pickaxe. He eventually got hold of a panga and hacked/chopped the
deceased once on the lower back and twice on the head. The deceased died as a result
of the head wounds.
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Summary: Criminal Law: The state sought to have a warning statement, a plea in terms
of s119 of Act 51 of 1977 and a confession by the accused ruled admissible. The
defence objected to that on the basis that the accused was not properly warned of his
rights, was forced to say what he said and was assaulted. A trial within a trial was held
and the court found that there was no basis for the objection.
Held further, that the accused’s rights were fully explained to him.
Held further, that the accused was not assaulted. The warning statement, plea in terms
of s119 and confession ruled admissible.
Summary: A nine months old romantic relationship between the accused and the
deceased turned sour when she was suspected of still continuing to see her ex-
boyfriend. Held: A sentence of 38 years’ would be appropriate in the circumstances.
Held: It is very difficult to assemble a reasonable answer about an event that has
unfolded in the eyes of several onlookers in the broad daylight of the morning way
before even the worst alcohol lovers have not yet found it prudent to spoil their abilities
of observation.
Held: Assault by threat only succeeds in respect of Willem Queen in respect of whom
the accused stood in front with a knife in a raised up hand wanting to stab the deceased
who sought refuge by standing behind the old man’s back. The old man, Queen, got
frightened for his life. He thought the accused would stab him.
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S v Johannes (CC 07-2015) [2015] NAHCNLD 47 (05 October 2015).
Summary: Accused had a love relationship with the deceased. He accused her of
having an affair with another man. He visited her and assaulted her using a panga
which resulted in her death. The wounds were described by the doctor who performed
the post-mortem as being on the upper level of severity. The attack was brutal and
savagery in nature. Accused pleaded guilty and was convicted of murder with legal
intent. In mitigation the court found that a plea of guilty and conviction of murder with
legal intent is mitigatory. All the mitigatory features were taken into account but were
outweighed by the aggravating ones and accused was sentenced to 40 years.
Held: The owner of the business or his delegate did not testify to displace the reason
given for taking the money.
Held: The guilty of the accused has not been established beyond reasonable doubt.
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Summary: To prove a contravention of s 82(1) of the Road Traffic and Transport Act
22 of 1999, i.e. driving under the influence of intoxicating liquor, there must be proof that
the accused’s faculties had been impaired when driving a vehicle on a public road.
Accused pleaded guilty to a charge of contravening s 82 (1) and during questioning
admitted that he consumed intoxicating liquor prior to him having driven on a public
road. The court, in convicting, assumed that the accused was under the influence
without ascertaining whether his faculties were indeed impaired, affecting his driving
skills. Conviction set aside. On a further count after the court entered a plea of not
guilty, the prosecutor’s closing of the State case without leading evidence, and the
consent of the Prosecutor-General not having been obtained, the accused’s subsequent
acquittal amounted to a nullity. Acquittal and subsequent proceedings set aside.
Summary: The accused was convicted by a magistrate of stock theft. The magistrate
left the public service before delivering sentence and in terms of section 275 of the
Criminal Procedure Act 5 of 1977, another magistrate had to impose the sentence.
CRIMINAL PROCEDURE - Held that the charge sheet did not provide sufficient
particulars to enable the accused to prepare his defence in terms of the Criminal
Procedure Act. Held further - the High Court can in unusual cases and where there are
material irregularities resulting in injustice or where justice cannot be attained by any
other means set aside the proceedings before magistrate’s courts even if they have not
yet been concluded. EVIDENCE - Held further that the evidence adduced by the State
did not prove beyond reasonable doubt that the accused committed the offence. Held
further that the court relied on a confession and pointing out that did not comply with the
provisions of the Criminal Procedure Act. Conviction set aside.
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their evidence in minor respects differ, they corroborate one another on material
aspects of their evidence. The accused claimed having acted in private defence but in
that respect gave contradicting evidence. His testimony in court is also in conflict with
previous statements made to the police and a plea explanation taken during section 119
proceedings. The court found the different versions advanced by the accused to be
irreconcilable and after weighing it up against the State case – despite some
contradictions and imperfections in the evidence of the witnesses – rejected the
accused’s evidence as being false beyond reasonable doubt.
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Summary: Headnote: The accused was convicted of culpable homicide, murder,
attempted murder and various other crimes. In convicting the accused, the court set out
some important general principles of the law of evidence as it applies in criminal trials.
here the court is required to draw inferences from circumstantial evidence, it may only
do so if the 'two cardinal rules of logic' as set out in R v Blom 1939 AD 188, have been
satisfied. These rules were formulated in the following terms: (1) the inference sought to
be drawn must be consistent with all the proved facts. If it is not, then the inference
cannot be drawn. (2) The proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they do not exclude other
reasonable inferences, then there must be doubt whether the inference sought to be
drawn is correct.
The law does not require from a court to act only upon absolute certainty, but rather
upon just and reasonable convictions. When dealing with circumstantial evidence, as in
the present case, the court must not consider every component in the body of evidence
separately and individually in determining what weight should be accorded to it. It is the
cumulative effect of all the evidence together that has to be considered when deciding
whether the accused's guilt has been proved beyond reasonable doubt. In other words,
doubts about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation, but those doubts may be set at rest when it is evaluated again
together with all the other available evidence. There is thus no onus on an accused to
convince the court of any of the propositions advanced by him and it is for the State to
prove the propositions as false beyond reasonable doubt.
Caution must be exercised not to attach too much weight to the untruthful evidence of
the accused when drawing conclusions and when determining his guilt. In evaluating
the evidence in the present case, the court approved the dictum in S v Mtsweni 1985 (1)
SA 590 (A) (as summarised in the headnote). Although the untruthful evidence or denial
of an accused is of importance when it comes to the drawing of conclusions and the
determination of guilt, caution must be exercised against attaching too much weight
thereto. The conclusion that, because an accused is untruthful, he therefore is probably
guilty must especially be guarded against. Untruthful evidence or a false statement does
not always justify the most extreme conclusion. The weight to be attached thereto must
be related to the circumstances of each case. In considering false testimony by an
accused, the following matters should, inter alia, be taken into account: (a) the nature,
extent and materiality of the lies and whether they necessarily point to a realisation of
guilt; (b) the accused's age, level of development and cultural and social background
and standing insofar as they might provide an explanation for his lies; (c) possible
reasons why people might turn to lying, e.g. because, in a given case, a lie might sound
more acceptable than the truth; (d) the tendency that might arise in some people to
deny the truth out of fear of being held to be involved in a crime, or because they fear
that.
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S v Maasdorp (CR 10/2015) [2015] NAHCMD 56 (13 March 2015).
Summary: The accused was convicted on two counts on pleas of guilty, while the
matter proceeded to trial in respect of one count after a plea of not guilty was entered.
The court passed sentence on those counts the accused was convicted on before
setting the matter down for trial. The procedure adopted by the magistrate is irregular
and not provided for in Act 51 of 1977. Evidence received during the trial may require of
the court to enter a plea of not guilty (s 113) in respect of a charge the accused was
convicted of, which is only possible before sentence is passed. Furthermore, factors
relevant to sentence may emerge during the trial and when the accused has already
been sentenced on some charges, the court could not have had regard thereto,
constituting an injustice. Sentence should be left to the end when all the facts are before
court.
Summary: The accused, aged 50 years, pleaded guilty and was accordingly convicted
on 396 counts of fraud involving more than N$56 million. The accused worked for a
company which sold building material and by way of fraudulent transactions, effected by
manipulating the sales system, sold cement to two clients of the company at 30% of the
actual cost price. Payments were directly made to the accused which, over a period of
five years, accumulated to the sum of approximately N$17 million. The accused had
spent all the money and except for two small businesses she had started with the stolen
money, she had nothing to show at the time of her arrest. The main reason proffered for
having committed the crimes is that the accused suffers from a skin pigmentation
disorder called Vitigilo which impacted on her mental health and made her feel
stigmatized. In order to boost her self-confidence she spent the money on her
appearance and looks, and bought the acceptance of colleagues and friends by treating
them and assisting them financially. In sentencing the court considered the triad of
factors and principles applicable thereto.
Held, that although the accused’s skin condition was a factor relevant to sentence, it
was not the sole cause for the accused to have committing the crimes. There was also
an element of greed, therefore, it could not be accorded much weight.
Held, further that the accused’s position of trust bestowed on her in the company, the
enormity of fraudulent transactions over a period of five years, the amount involved and
the accused’s inability to make restitution, are all seriously aggravating.
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Held, further that the accused’s plea of guilty, coupled with a genuine show of remorse,
is a mitigating factor weighing heavily with the court which should lead to a significant
reduction in sentence.
Held, further that so-called ‘white-collar crime’ has become prevalent in this jurisdiction
and the court is entitled to take judicial notice thereof and impose deterrent sentences to
deal with this scourge.
Held, further that though the taking together of counts for purposes of sentence should
be reserved for exceptional circumstances, the imposition of one composite sentence in
the present circumstances is appropriate.
The court having taken together all the counts convicted of, sentenced the accused to
25 years’ imprisonment of which 8 years’ is suspended on condition of good conduct.
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of the Combating of Rape Act, Act 8 of 2000, Rape further read with the provisions of
the Combating of Domestic Violence Act, Act 4 of 2003. Where the court is required to
draw inferences from circumstantial evidence, it may only do so if the 'two cardinal rules
of logic' as set out in R v Blom 1939 AD 188, have been satisfied. These rules were
formulated in the following terms: (1) The inference sought to be drawn must be
consistent with all the proved facts. If it is not, then the inference cannot be drawn. (2)
The proved facts should be such that they exclude every reasonable inference from
them save the one to be drawn. If they do not exclude other reasonable inferences, then
there must be doubt whether the inference sought to be drawn is correct.
The law does not require from a court to act only upon absolute certainty, but rather
upon just and reasonable convictions. When dealing with circumstantial evidence, as in
the present case, the court must not consider every component in the body of evidence
separately and individually in determining what weight should be accorded to it. It is the
cumulative effect of all the evidence together that has to be considered when deciding
whether the accused's guilt has been proved beyond reasonable doubt. In other words,
doubts about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation, but those doubts may be set at rest when it is evaluated again
together with all the other available evidence.
There is thus no onus on an accused to convince the court of any of the propositions
advanced by him and it is for the State to prove the propositions as false beyond
reasonable doubt.
Caution must be exercised not to attach too much weight to the untruthful evidence of
the accused when drawing conclusions and when determining his guilt. In evaluating
the evidence in the present case, the court approved the dictum in S v Mtsweni 1985 (1)
SA 590 (A) (as summarised in the headnote): Although the untruthful evidence or denial
of an accused is of importance when it comes to the drawing of conclusions and the
determination of guilt, caution must be exercised against attaching too much weight
thereto. The conclusion that, because an accused is untruthful, he therefore is probably
guilty must especially be guarded against. Untruthful evidence or a false statement does
not always justify the most extreme conclusion. The weight to be attached thereto must
be related to the circumstances of each case. In considering false testimony by an
accused, the following matters should, inter alia, be taken into account: (a) the nature,
extent and materiality of the lies and whether they necessarily point to a realisation of
guilt; (b) the accused's age, level of development and cultural and social background
and standing insofar as they might provide an explanation for his lies; (c) possible
reasons why people might turn to lying, e.g. because, in a given case, a lie might sound
more acceptable than the truth; (d) the tendency that might arise in some people to
deny the truth out of fear of being held to be involved in a crime.
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S v Nendongo (CR 13/2015) [2015] NAHCMD 65 (18 March 2015).
Summary: The accused was charged with several offences set out in five counts,
plus alternatives, to which he pleaded. At the end of the trial the court convicted him of
one offence not charged whilst omitting to pronounce itself on some of the counts the
accused has pleaded. The judgment in itself is ambiguous and conflicting as regards
convictions and acquittals in respect of all the charges, from which it is evident that the
magistrate failed to apply her mind to the matter and delivered judgment haphazardly.
The judgment set aside on review.
Summary: The complainant, a 12 year old girl, had sexual intercourse with her uncle,
the accused who was 18 years old at the time. The State opted the charge the accused
of housebreaking with the intent to rape and rape in terms of the common law and not
read with the Combatting of the Rape Act. According to the complainant the accused
came to her hut on 3 occasions demanding entrance. She refuse to allow him to enter
and he pushed the door open and entered her hut. He then had sexual intercourse with
her against her will. The accused admitted having sexual intercourse with the
complainant. According to him the complainant asked him for N$ 6 dollars and he gave
it to her on condition she agrees to have sexual intercourse with him. Held that the
single evidence of the complainant was unsatisfactory and found to be not credible. The
Sate failed to prove beyond reasonable doubt that the accused was guilty of
housebreaking with intent to rape and rape. The court however held that the State
proved beyond reasonable doubt that the accused contravened s 14 of the Combatting
of Immoral Practices Act which is a competent verdict on a charge of rape.
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with accused prior to the dock identification was extensive and protracted – Court
concluded that witness’s identification of accused is reliable and credible and therefore
safe and satisfactory to rely on.
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S v Pieters (CC 48/2009) [2015] NAHCMD 118 (27 May 2015).
Summary: Criminal Procedure – Sentencing – The accused was convicted inter alia of
three counts of rape – Contravening s(2)(1)(a)of the provisions of the Combating of rape
Act – Accused has a previous conviction of rape – Convicted during 2012 – No
substantial and compelling circumstances exist – Court obliged to impose a mandatory
sentence – Accused is accordingly sentenced to a mandatory sentence in respect of
each count.
Summary: The accused is charged with murder and attempted murder alleging that he
murdered a 78 year old male and attempted to murder the wife of the deceased. He
assaulted the deceased and his wife with a dried stick resembling a pick axe handle.
The accused and his customary wife were coming from a shebeen. They stayed nearby
the deceased and his wife. The accused was allegedly stabbed previously by a relative
of the deceased and his wife. When he approached his sleeping hut, he overheard the
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deceased and his wife talking about the fact that the person who stabbed the accused
was still in custody and that accused must take him out.
This angered him but he went to his hut to sleep. The accused wife went to the elderly
couple and requested for tobacco. They refused to give her tobacco. Eventually an
altercation ensued between the deceased and the accused wife about a tobacco pipe.
This led to the deceased hitting the accused wife with a walking stick. The accused
became aware of the hitting. He took the dried stick, went to the deceased and beat him
on the head and body. Thereafter he approached the deceased’s wife and beat her on
the head and arm fracturing the left arm. He again went to the deceased and continued
beating him. The accused then went to his hut to sleep.
The accused was somewhat intoxicated, unsophisticated and denied the intention to kill.
The court could in the circumstances not find that he had intention to kill but found that
he had intention to injure. He was negligent in causing the death of the deceased and
intentionally injured the complainant in count 2.
Summary: The accused who was charged with assault with intent to do grievous
bodily harm, pleaded guilty to the charge, questioned in terms of s 112(1)(b) of Act 51 of
1977, but the magistrate failed to ask questions on all allegations contained in the
charge sheet – On review, the verdict of guilty as charged was substituted with the
verdict of common assault, a competent verdict of assault with intent to do grievous
bodily harm in terms of s 266(a) of the Criminal Procedure Act 51 of 1977 – The
sentence is in order and has been confirmed.
Summary: The accused was in a domestic relationship with the deceased which was
marred by alcohol abuse by the deceased. One night when she came home drunk the
accused brutally attacked her by beating her for a protracted period of time with sticks,
hit her with fists and kicked her all over the body. She succumbed to her injuries some
days later. In sentencing the accused regard was had to the accused’s personal
circumstances being a first offender and the sole breadwinner of his minor children.
Aggravating factors were the gravity of the offence and brutality of the assault. The
court considered the accused’s proclaimed remorse and found same to be without
substance. Sentence of 30 years’ imprisonment imposed.
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S v Shikudule (CR 17/2015) [2015] NAHCMD 126 (5 June 2015).
Summary: Before the accused had finished cross-examining one of the complainant’s,
proceedings were adjourned and when the trial later resumed he was not afforded the
opportunity to continue cross-examining the witness. This constituted a gross
irregularity as the accused has the right to cross-examine all witnesses called by the
prosecution, a right enshrined in the Namibian Constitution. The conviction set aside.
Summary: The accused, aged 18 years, was convicted and sentenced to a fine of N$4
800. The sentencing court decided against imposing alternative imprisonment. In
addition to the fine an order was made in terms of s 290 according to which the accused
was placed under supervision of a probation officer for a period of two years. Whereas
the accused remained in default the provisions of s 287 (2) may be invoked by which
accused is brought before the court and be sentenced to imprisonment, alternative to
the fine. Reference to court in this section refers to the court and not the judicial officer.
The accused from the outset was clearly without the means to pay the fine and to
impose imprisonment as alternative to the fine would have the same effect as direct
imprisonment which the sentencing court never intended. In the circumstances of the
case it constituted a misdirection to impose a fine. Sentence and order set aside on
review.
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Accused was therefore severely prejudiced – Consequently, sentence set aside –
Matter remitted to lower court for learned magistrate to comply with s 274(2) of Act 51 of
1977 before sentencing.
Summary: The two accused were respectively convicted for contravening sections
41(1) and 51 of the Nature Conservation Ordinance 4 of 1975 (the Ordinance). Neither
of the sections expressly provide for the liability of an accused upon conviction. Section
87 of the Ordinance applies. Both accused have no previous convictions. The
sentences of N$500.00 (five hundred) or 3 (three) months imprisonment are not in
accordance with justice and is set aside. It is substituted with sentences N$250.00 or 3
months imprisonment for each of the accused.
Summary: The accused was convicted of murder, unlawful use of property, rape,
robbery with aggravating circumstances, indecent assault and kidnapping. On the count
of murder, he pleaded that he acted in private defence when he hit the deceased seven
times with a pick handle. On the other charges, he denied any involvement in the
commission of those crimes.
Held that his life or property was not under threat or danger when he hit the unarmed
deceased seven times with the pick handle.
Held further that, even if his life was in danger, which the court rejected, court found that
the accused exceeded the limits of private defence when he hit the unarmed deceased
seven times with the pick handle.
Held further that on the rape charge, the complainant knew the accused very well and
there was light when he attacked the complainant and raped her, he was clearly
identified by the complainant as the perpetrator.
Held further that his DNA was found in the sexual assault evidence collection kit of the
complainant.
Held further that after the rape, he robbed the complainant of her vehicle and drove up
to Keetmanshoop with her vehicle against her will and whilst driving forced her hand
and placed it on his private parts. The guilt of the accused was proved beyond
reasonable doubt.
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S v Thomas (CC 19-2013) [2015] NAHCMD 177 (3 August 2015).
Summary: The accused had been referred for psychiatric observation in terms of s 77
(1) of the Criminal Procedure Act 51 of 1977 and reported on in terms of s 79 of the Act.
The conclusion reached by the constituted panel was that the accused is unfit to stand
trial in that he suffers from a neurocognitive disorder. In view of dissenting findings in
the reports issues and relied upon when making the finding, the evidence of three
members of the panel was heard from which the court concluded that without
neuropsychological tests the conclusion reached by the panel was premature. There
were furthermore indications that the accused might not have been criminally
responsible for his actions and it would be prudent to also have him examined in terms
of s 78 (2) of the Act. Whereas the accused had been examined by only one psychiatrist
the court now has a discretion to invoke the provisions of s 79(1)(b) of the Act. This will
depend mainly on the seriousness of the case and where the consequences for the
accused are serious. The court found the present circumstances to be such that it
warranted an order that the accused be re-examined by a panel of two psychiatrists.
Where the State fails to call any witness the court should consider any adverse
inference to be drawn from such failure in the circumstances of the particular case.
Summary: The accused was convicted of having raped and assaulted the complainant
with intent to cause grievous bodily harm. The accused’s personal circumstances such
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that a custodial sentence undoubtedly will negatively impact on his family, but this is a
consequence of crime and the court not to be deterred from imposing the kind of
sentence dictated by the interests of justice. The accused was not sober when
committing crimes but his blameworthiness can only be regarded as diminished when
evidence shows that his mental faculties were impaired. The court after considering all
the relevant factors for purposes of sentence found the accused’s personal interests
outweighed by the gravity of the offence and the interests of society. The circumstances
justify a sentence in excess of the mandatory sentence of not less than 10 years’
imprisonment. On a count of rape the accused sentenced to 12 years’ imprisonment
and for assault with intent to cause grievous bodily harm, a further 6 months’
imprisonment.
S v Van der Westhuizen (CC 06-2015) [2015] NAHCMD 260 (5 November 2015).
Summary: The accused brutally stabbed to death his pregnant girlfriend before
committing an unsuccessful suicide. The relationship was marred by a history of
violence and alcohol abuse. Though claiming to be remorseful the accused did not give
evidence to that effect and the court thus in no position to determine the genuineness of
his alleged contrition. That the murder was committed in a domestic setting is an
aggravating factor; also that the accused knew the deceased was expecting his child.
Prevention, deterrence and retribution as objectives of punishment emphasised.
Summary: The complainant was walking from Hakahana bar to her friend when the
accused came and started assaulting her. He stabbed her with a knife and forcibly took
and locked her inside his room for five days during which he repeatedly sexually
assaulted her. Rachel and the doctor who examined her materially corroborated her
evidence. That was the prosecution’s evidence at the end of its case. Held: A prima
facie case was made out and is still firmly in place awaiting for an answer from the
accused. Held: The appellant has prospects of success on appeal.
Shaalukeni v The State (CA 60/2009) [2015] NAHCNLD 6 (05 February 2015)
Summary: The appellant was convicted of three counts of housebreaking with intent to
steal and theft. He was sentenced to two years’ imprisonment in count 1, 3 years’
imprisonment in count 2 and 10 years’ imprisonment in count 3. The sentence imposed
in count 2 was to run concurrently with the sentence imposed in count 3. The magistrate
further ordered that the 11 months which the appellant spent in police custody awaiting
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trial/sentence are to be deducted from the net sentence. He appealed against his
conviction and sentence. He submitted that the court a quo did not assist him, the state
failed to prove the elements of the offences he was charged with and the magistrate did
not properly evaluate the evidence. The court found no merit in these ground and his
appeal against conviction is dismissed. The court however found that the magistrate
misdirected himself by ordering compensation when it was not appropriate and further
by failing to give the appellant the opportunity to be heard in respect of the application
for compensation. This order is accordingly set aside. The magistrate further erred in
accepting as an aggravating factor that the appellant benefitted as some of the cash
was not recovered as this was not properly proven by the state. The order by the
magistrate that 11 months be deducted from the net sentence is not property and it is
accordingly set aside. The court substituted it with substantially the same sentence as
imposed by the magistrate but ameliorated the cumulative effect thereof by ordering that
the sentence in count 1 and 2 run concurrently with the sentence in count 3.
Sheefeni and Another v The State (CA 25/2011) [2015] NAHCNLD 32 (24 July 2015).
Summary: The appellants noted their Appeal out of time against the sentence of 8
(eight) years’ imprisonment. They did not advance grounds of appeal but only pleaded
for a reduction in the sentences alluding to facts which aroused after they were
imprisoned. The court found that there was no proper appeal before court and addition
that there are no prospects of success. The Appeal was struck from the roll.
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Shikongo v The State (CA 02/2013) [2015] NAHCNLD 08 (6 March 2015).
Summary: The appellants appealed against the sentence of 20 years’ imprisonment of
which 10 years’ imprisonment is suspended for five years for theft of 8 heads of cattle
valued at N$22 000. The prescribed minimum sentence of 20 years’ imprisonment was
held by this court to be unconstitutional and the sentence imposed herein was found to
be shockingly inappropriate. The court considered the recorded facts in mitigation and
aggravation; sentences imposed by this court, and the interests of communal farmers
who are vulnerable to stock theft in the jurisdiction of the sentencing court. The appeal
against sentence was upheld and the sentence imposed by the regional court is set
aside and substituted with a sentence of 10 years’ imprisonment of which 3 years’
imprisonment is suspended for five years on the normal conditions.
State v Ambros (CR 32/2015) [2015] NAHCMD 251 (20 October 2015).
Summary: A new Prosecutor handling a partly heard matter – State case already
closed and the accused had testified but not yet cross-examined. A further State
witness erroneously called to testify – matter sent for special review. Held: No prejudice
has been occasioned to any of the parties. The Magistrate should disregard the State
evidence erroneously adduced when its case has already closed. Allow accused to be
cross-examined and to call further witness if he has any and finalize the matter.
State v Basson (CC 09/2012) [2015] NAHCMD 227 (25 September 2015).
Summary: The accused and the deceased were drinking jabula under a big tree where
food and drinks are sold. He had a knife in his pocket when arguments and fighting
between them started over a tin of meat and a loaf of bread the accused bought and
sent Boetetjie to take home. That ugly situation between them persisted all the way
back home, where the accused sent the children to the nearest shop to buy matches.
When they returned they found the accused sitting at the corner of the bed holding his
head with both hands. The shirt and short trouser he was wearing were bloodstained,
while the deceased was laying on her back wholly covered with a bloodstained blanket
dead.
Held: The accused is the person who stabbed the deceased with a knife to death during
the time he had sent away the children to buy matches.
Held: He is convicted of the murder of the deceased, Johanna Basson.
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wants to send a clear and strong message that criminals would be severely punished.
Accused sentenced to an effective sixty years imprisonment.
The State v Hange (CC 12/2012) [2015] NAHCMD 83 (10 April 2015).
Summary: The accused pleaded not guilty to a charge of murder and claimed to have
acted in private defence when he pushed the deceased away from him after she had
cut his throat with a knife. He then lost consciousness and thus unable to explain the
injuries on the deceased’s body. From the post-mortem examination report it is evident
that the deceased sustained two cut wounds to the neck of which one was fatal, and
two fractures of the skull and abrasions on the neck, consistent with fingernail marks.
Accused disputed having inflicted any of the injuries. The accused and the deceased
were alone in the bedroom when cries for help were heard coming from the deceased’s
residence. The door of the bedroom was found locked from the inside and several
witnesses testified that when the accused later stepped outside, he was not injured. He
was later seen cutting his own throat. The untruthfulness of the accused’s testimony is
directly connected to his defence. His untruthfulness not per se making him guilty but is
a factor to be taken into account when assessing all the evidence. Where the court is
faced with conflicting facts from the State witnesses and the accused, the probabilities
might be decisive. Accused gave conflicting instructions to counsel which remained
unexplained and impacts on his credibility as a witness. Though the State case entirely
rests on circumstantial evidence the court found the accused’s evidence to be false
beyond reasonable doubt.
The State v Shekunyenge (CC 05/2015) [2015] NAHCMD 270 (13 November 2015).
Summary: Accused pleaded not guilty on a charge of murder, read with the
provisions of the Combating of Domestic Violence Act 4 of 2003, and in his defence
raised private defence. The accused’s version of the attack on him by the deceased
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(with whom he cohabitated and being the mother of his child), formed part of evidence
the court had rejected as false. Accordingly, found the accused had not acted in private
defence. On his own evidence the attack had already seized where after he retaliated
and subjected the deceased to a protracted assault. The victim was hospitalised and
received treatment and during the following days, nothing abnormal was detected in her
medical condition. On the fourth day it suddenly changed when blood tests showed that
a condition called crush syndrome had developed with accompanying organ failure. The
deceased had to be transferred to a hospital with ICU facilities but died on the way.
Accused asserted that failure on the part of the medical staff to transfer the deceased
sooner constituted a novus actus interveniens. No evidence led by the defence showing
that deceased should have been treated differently, or that the causal relationship had
been broken. Both defences raised by accused rejected. Whereas the accused’s
version had been rejected, the court in determining the accused’s mens rea, looked at
factors like the weapon used, at which part of the victim’s body it was directed, the
nature and extent of the injuries. The palm stick used not considered to be a dangerous
weapon and despite a protracted assault, this not necessarily indicative of intent in the
form of dolus directus. Evidence supports a finding of intent in form of dolus eventualis.
Accused convicted of murder.
Unengu v The State (CC 14/2013) [2015] NAHCMD 127 (5 June 2015).
Summary: The applicant was convicted of rape read with the provisions of Act 8 of
2000 and sentenced to 12 years’ imprisonment. He was also convicted of assault with
intent to do grievous bodily harm and sentenced to 6 months’ imprisonment. Applicant
lodged an appeal against his conviction on the charge of rape. The State (respondent)
lodged a cross-appeal against the sentence imposed on the rape charge as well as
applicant’s acquittal on a second count of rape and attempted murder. The court having
considered the grounds articulated in the respective notices of appeal came to the
conclusion that the court did not commit any misdirection in its evaluation of the
evidence as contended, accordingly, there are no prospects of success on appeal for
either the applicant or the respondent and dismissed both applications.
Venter v State (CA 35-2015) [2015] NAHCMD 182 (24 July 2015).
Summary: Appeal – Notice of appeal – Grounds of appeal – Grounds stating that
magistrate misdirected himself on the facts of law that there were material irregularities
during the proceedings and overemphasized the importance of other facts – Court
found that those were not grounds but conclusions drawn by the drafter of the notice of
appeal – Consequently, court rejected such ‘grounds’. Criminal procedure – Appeal –
Generally – Findings on credibility – Appeal court will not redily interfere with credibility
findings and factual findings of trial court – Such interference necessary only where
irregularity or misdirection by trial court occurring – Photographs of crime scene not
placed before court as part of evidence of State – Trial court instead admitted evidence
of two State witnesses on how the place where crime of rape took place and the way
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complained looked immediately after the sexual attack on her by the appellant – Upon
such evidence trial court concluded that rape in coercive circumstances took place –
Court did not fault the factual and credibility findings by trial court as no misdirections on
irregularities were proved – Appeal was dismissed.
Visagie v State (CA 67-2013) [2015] NAHCMD 216 (11 September 2015).
Summary: The appellant was convicted of two counts of Rape in contravention of
Sec 2 read with Sections 1, 3,4,6,7 and 8 of the Combating of Rape Act, 8 of 2000 by
the Regional Court for the District of Windhoek. He lodged an appeal against his
conviction and sentence of 15 years imprisonment, but did not pursue his appeal
against his sentence on the date of argument.
The matter was once removed from the roll and clerk of Criminal Court was directed by
the Court to rectify the defects and mistakes in the record of proceedings, clerk of
Criminal Court failed to adhere. Matter was re-enroled by the Registrar of the High
Court for hearing whilst the record was still containing the same defects and matter was
postponed and clerk of Criminal Court was once again instructed to correct the record.
Clerk of Criminal Court once again failed to adhere and the Trial Magistrate personally,
at the last hour adhered to the Court’s direction.
Held, that the dereliction of duties by the Registrar and clerks of the Magistrate’s Court
and their supervisors may cause potential injustice and disrepute to the administration
of justice.
Held further, that Appellant has introduced two new grounds of appeal without filing a
notice of amendment of the grounds of appeal, nor has he applied for leave to file such
notice. Appellant has failed to lay a foundation to introduce the new grounds of appeal.
Held further, that the phrase ‘coercive circumstances’ connotes the absence of free will
or consent. Therefore the sexual act was committed under coercive circumstances.
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Held further, that the charge sheet is not too broad and inadequate regarding
“application of physical force to the complainant”. It intelligently informs the accused of
the material aspects relied upon to substantiate the charge against him. It is not
required to provide the details of what constitutes coercive circumstances in the charge
sheet.
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