2020 UNREPORTED HIGH COURT CRIMINAL JUDGMENTS



ALZER

Table of Contents

Appeal 5

Constitutional Law 35

Criminal Procedure 36

Criminal Law 52

Criminal Review 64

Sentence 86

CASE SUMMARIES 99

Asino v S (HC-MD-CRI-APP-CAL-2019/00064) [2020] NAHCMD 225 (15 June 2020) 99

Boois v S (HC-MD-CRI-APP-CAL-2019/00063) [2020] NAHCMD 128 (22 April 2020) 99

Babi v S (HC-MD-CRI-APP-CAL-2020/00092) [2020] NAHCMD 540 (26 November 2020) 102

Gustavo v S (HC-MD-CRI-APP-CAL-2020/00063) [2020] NAHCMD 318 (28 July 2020) 103

Hango v S (HC-MD-CRI-APP-CAL-2019/00090) [2020] NAHCMD 201 (29 May 2020) 103

Hanse v S (HC-MD-CRI-APP-CAL-2018/00048) [2020] NAHCMD 186 (20 May 2020) 104

Hamana v S (HC-NLD-CRI-APP-CAL-2020/00012) [2020] NAHCNLD 156 (12 November 2020) 105

Iipinge v S (HC-MD-CRI-APP-CAL-2019/00111) [2020] NAHCMD 156 (8 May 2020) 106

Isaack v S (HC-MD-CRI-APP-CAL-2019/00108) [2020] NAHCMD 351 (13 August 2020) 108

Joubert v S (HC-MD-CRI-APP-CAL-2020/00020) [2020] NAHCMD 396 (4 September 2020) 109

Katata v S (HC-MD-CRI-APP-CAL-2019/00020) [2020] NAHCMD 94 (13 March 2020) 110

Kharuchab v S (HC-MD-CRI-APP-CAL-2019/00086) [2020] NAHCMD 345 (12 August 2020) 111

Kakurarume v S (CC 6/2014) [2020] NAHCMD 532 (19 November 2020) 112

Lizazi v S (CA 23/2015) [2020] NAHCMD 91 (13 March 2020) 112

Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00046) [2020] NAHCMD 78 (6 March 2020) 113

!Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00081) [2020] NAHCMD 181 (19 May 2020) 114

Nuuyoma v S (CC 17/2018) [2020] NAHCMD 277 (30 June 2020) 115

Nghipunya v S (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020) 116

Pienaar v S (HC-MD-CRI-APP-CAL-2019/00065) [2020] NAHCMD 159 (11 May 2020) 119

Peter v S (CC 20/2018) [2020] NAHCMD 241 (1 June 2020) 121

Queta v S (HC-MD-CRI-APP-CAL-2020/00065) [2020] NAHCMD 328 (3 August 2020) 122

S v Aumbaasa (CC 1/2019) [2020] NAHCNLD 26 (13 February 2020) 124

S v Balzer (CC 14/2019) [2020] NAHCMD 514 (12 November 2020) 124

S v Claasen (CC 12/2018) [2020] NAHCMD 82 (09 March 2020). 125

S v Claasen (CC 12/2018) [2020] NAHCMD 184 (20 May 2020) 127

S v David (CC 11/2018) [2020] NAHCNLD 38 (09 March 2020) 130

S v Dawid (CC 09/2017) [2020] NAHCMD 442 (24 September 2020) 131

S v Driedmond (CR 110/2019) [2020] NAHCMD 6 (20 January 2020) 132

S v Goliath (CC 23/2019) [2020] NAHCMD 545 (26 November 2020) 133

S v Goliath (CC 2/2020) [2020] NAHCMD 575 (8 December 2020) 134

S v Iipinge (CC 11/2017) [2020] NAHCNLD 95 (27 July 2020) 134

S v Jonas (CC 14/2017) [2019] NAHCMD 525 (3 December 2019) 135

S v Katanga (CC 23/2018) [2019] NAHCMD 21 (23 January 2020). 135

S v Katanga (CC 23/2018) [2019] NAHCMD 66 (27 February 2020) 137

S v Kashonga (CC 05/2020) [2020] NAHCMD 293 (16 July 2020) 138

S v Koper (CC 6/2019) [2020] NAHCMD 312 (24 July 2020) 140

S v Levi (CC 22/2019) [2020] NAHCMD 218 (11 June 2020) 141

S v Levi (CC 22/2019) [2020] NAHCMD 257 (29 June 2020) 143

S v Lulatelo (CC 10/2016) [2020] NAHCNLD 63 (5 June 2020) 143

S v Masuna (CC 11/2019) [2020] NAHCMD 465 (9 October 2020) 144

S v Masuna (CC 11/2019) [2020] NAHCMD 587 (24 November 2020) 145

S v Mateus (CC 2/2020) [2020] NAHCNLD 101 (5 August 2020) 146

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 3 (16 January 2020) 147

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 219 (11 June 2020) 148

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 262 (30 June 2020) 149

S v Mbok (CC 4/2011) [2020] NAHCMD 263 (15 June 2020) 150

S v Mensah (CC 15/2018) [2020] NAHCMD 236 (19 June 2020) 151

S v Mensah (CC 15/2019) [2020] NAHCMD 256 (25 June 2020) 154

S v Munuma (CC 03/2004) [2020] NAHCMD 90 (12 March 2020) 156

S v Munuma (CC 03/2004) [2020] NAHCMD 428 (22 September 2020) 157

S v Nailenge (CC 02/2015) [2020] NAHCNLD 36 (04 March 2020) 158

S v Nkandi (CC 4/2019) [2020] NAHCNLD 62 (5 June 2020) 159

S v Paulus (CC 3/2019) [2020] NAHCNLD 108 (17 August 2020) 160

S v Pretorius (CC 2/2018) [2020] NAHCMD 507 (6 November 2020) 160

S v Roelf (CC 5/2019) [2020] NAHCMD 222 (12 June 2020) 161

S v Roelf (CC 5/2019) [2020] NAHCMD 358 (14 August 2020) 162

S v Saal (CR 6/2020) [2020] NAHCMD 19 (24 January 2020) 163

S v Scott (CC 21/2018) [2020] NAHCMD 154 (7 May 2020) 163

S v Serfontein (CC 07/2019) [2019] NAHCMD 01 (17 January 2020) 164

S v Serfontein (CC 07/2019) [2020] NAHCMD 56 (20 February 2020) 165

S v Strong (CC 16/2019) [2020] NAHCMD 49 (13 February 2020) 166

S v Strong (CC 16/2019) [2020] NAHCMD 210 (4 June 2020) 167

S v Strong (CC 16/2019) [2020] NAHCMD 231 (18 June 2020) 169

S v Sikongo (CC 19/2018) [2020] NAHCMD 65 (26 February 2020) 170

S v Sprangers (CC14/2016) [2020] NAHCMD 410 (11 September 2020) 171

S v Siyave (CC 15/2018) [2020] NAHCNLD 168 (26 November 2020) 174

S v Sprangers (CC 14/2016) [2020] NAHCMD 498 (30 October 2020) 175

S v Uamunika (CC 3/2018) [2020] NAHCMD 267 (26 May 2020) 176

S v Uamunika (CC 3/2018) [2020] NAHCMD 289 (15 July 2020) 178

S v Uusiku (CC 9/2019) [2020] NAHCNLD 61 (5 June 2020) 179

S v Uusiku (CC 9/2019) [2020] NAHCNLD 93 (24 July 2020) 180

S v Uazeua (CC 17/2016) [2020] NAHCMD 427 (21 September 2020) 181

S v Uupindi (CC 11/2019) [2020] NAHCNLD 150 (14 October 2020) 181

S v Uupindi (CC 11/2019) [2020] NAHCNLD 178 (9 December 2020) 182

S v Van Der Westhuizen (CC 11/2018) [2020] NAHCMD 528 (18 November 2020) 183

Shekundja v S (CC 19/2017) [2020] NAHCMD 339 (22 July 2020) 184

Shiweda v S (HC-NLD-CRI-APP-CAL-2019/00040) [2020] NAHCNLD 11 (21 January 2020) 186

Subeb v S (HC-MD-CRI-APP-CAL-2019/00074) [2020] NAHCMD 73 (28 February 2020) 186

Shikongo v S (HC-MD-CRI-APP-CAL 2020/00013) [2020] NAHCMD 407 (11 September 2020) 187

Townsend v S (CC 19/2013) [2020] NAHCMD 457 (6 October 2020) 189

Tsuseb v S (HC-MD-CRI-APP-CAL-2019/00094) [2020] NAHCMD 472 (19 October 2020) 190

Van Rooyen v S (HC-MD-CRI-APP-CAL-2019/00107) [2020] NAHCMD 180 (18 May 2020) 191

Van Wyk v S (HC-MD-CRI-APP-CAL-2020/00076) [2020] NAHCMD 399 (7 September 2020) 193

Vujicin v S (HC-MD-CRI-APP-CAL-2020/00062) [2020] NAHCMD 551 (1 December 2020) 195

Zeronimo v S (HC-NLD-CRI-APP-CAL-2019/00011) [2020] NAHCNLD 57 (26 May 2020) 196

Appeal

Appeal against sentence – Appeal dismissed – No reasonable explanation for the late filling of the appeal and no prospects of success on appeal. Hamukoto v S (HC-NLD-CRI-APP-CAL-2019/00042) [2020] NAHCNLD 09 (23 January 2020); Natangwe v S (HC-NLD-CRI-APP-CAL-2019/00064) [2020] NAHCNLD 15 (30 January 2020); Ndilipunye v S (HC-NLD-CRI-APP-CAL-2019/00031) [2020] NAHCNLD 42 (10 March 2020); Josef v S (HC-NLD-CRI-APP-CAL-2020/00015) [2020] NAHCNLD 128 (10 September 2020)

Criminal Procedure – Leave to Appeal – Appeal lies against sentence of life imprisonment – Applicant relies on Generalised Anxiety Disorder (mood illness) as mitigating factor – Mere diagnosis of disorder per se not a as mitigating factor – Required that evidence be led showing the extent to which her medical condition impacted on her mind-set and actions during commission of offence – Weight thereof to be determined by the court in light of the evidence adduced and not merely by the presence of the disorder. S v du Preez (CC 02/2016) [2020] NAHCMD 35 (04 February 2020); The State v Daniel (HC-MD-CRI-APP-SLA-2019/00043) [2020] NAHCMD 25 (27 January 2020); The State v Dentlinger (HC-MD-CRI-APP-SLA-2019/00021) [2020] NAHCMD 24 (27 Jaanuary 2020); S v Kohler (CC 21/2017) [2020] NAHCMD 96 (16 March 2020); S v Schiefer (CC 17/2008) [2020] NAHCMD 72 (28 February 2020); S v Sindano (HC-NLD-CRI-APP-SLA-2019/00056) [2020] NAHCNLD 27 (13 February 2020); Februarie v S (CC 4/2016) [2020] NAHCMD 394 (4 September 2020);Ngoya v S (CC 10/2011) [2020] NAHCMD 406 (2 September 2020)

Criminal Procedure – Leave to Appeal – Condonation Application – Applicant filing contradictory affidavits explaining reason for delay – Consequence is that explanation not reasonable and satisfactory – Prospects of success on grounds raised – Applicant failed to show any prospects – Condonation refused. The State v Kapia (CC 09/2008) [2020] NAHCMD 74 (02 March 2020); Namiseb v S (CC 19/2011) [2020] NAHCMD 439 (25 September 2020)

Criminal Procedure – Leave to Appeal – Application filed out of time – Condonation application – Applicant avers that late filing of application for leave was due to her inability to secure the necessary funds – Lack of funds sole reason – Applicant to have filed a confirmatory affidavit of legal representative confirming applicant’s intention to lodge application for leave to appeal within prescribed time limit – Explanation for the delay not reasonable and acceptable. Criminal Procedure – Leave to Appeal – Test – Whether there are prospects of success on appeal – Whether court committed misdirection on law or facts – Application grounds whether another Court may reasonably give different interpretation of section 43(1) of the Anti-Corruption Act 8 of 2003 – Approach followed by applicant seeking guidance from Supreme Court on interpretation of law not a proper ground of appeal. S v Hanse-Himarwa (CC 05/2018) [2020] NAHCMD 33 (03 February 2020); S v Haiduwa (CC 02/2017) [2020] NAHCNLD 37 (06 March 2020)

Criminal Procedure – Leave to Appeal - Applicant has shown that the Court a quo did not apply its mind properly in refusing a postponement where the state required 15 minutes to prepare to close their case and address the court and proceed to eventually discharge the Respondent. Suffice to the remarks made by the trial court during proceedings, the decision to refuse a postponement was premature and unreasonable. See S v Acheson 1991 NR 1 at para C-G for considerations to be taken into account. The Court a quo was selective in its analysis of evidence presented and applied a wrong test in discharging the respondent on all charges. Held that the court is of the view that there is reasonable prospects of success on appeal and another court may arrive at a different conclusion. S v Kolofu (HC-NLD-CRI-APP-SLA-2019/00078) [2020] NAHCNLD 74 (23 June 2020)

Criminal Procedure – Leave to Appeal – Whether the applicant has shown on a balance of probabilities that, based on the grounds of appeal raised, there are reasonable prospects of success on appeal – Appeal lies against dismissal of recusal application – Grounds of appeal constituting reasons for presiding judge to recuse himself and criticism of court’s analysis of the merits in application for recusal – Approach does not satisfy well established test on leave to appeal – Failing to state reasonable prospects of success on appeal – An adverse finding to an application decided in trial proceedings on the merits, not constituting a ground for recusal – Applicant dismissed. S v Thomas (CC 19/2013) [2020] NAHCMD 244 (23 June 2020)

Criminal Procedure – Leave to Appeal - Application for leave to appeal against conviction and sentence-Applicant convicted of contravening provisions of Anti-Corruption Act-Leave to appeal to be granted where there are reasonable prospects of success on appeal-No reasonable prospects of success on appeal exist-Application dismissed. Summary: The applicant was convicted of nineteen counts of contravening, inter alia, the Anti –Corruption Act and defeating and or obstructing the course of justice. She was sentenced to four years’ imprisonment of which two years were suspended. The applicant, a former magistrate, received payments (gratification) from traffic offenders and withdrew traffic tickets without the offenders appearing in court. As a result, she was charged with contravening the anti-corruption act. The court found that she did receive payments (gratification) from these offenders and in return withdrew the charges against these offenders without any legal basis. Theron v S (CC 27/2012) [2020] NAHCMD 246 (10 June 2020)

Criminal Procedure – Leave to Appeal - The respondent in this matter was convicted on 26 March 2020 for Culpable Homicide, a competent verdict on a charge of murder for which he was indicted. He pleaded not guilty. He was acquitted on a charge of contravening section 38(1)(o) read with sections 1, 38(2) and 39 of the Arms and Ammunition Act, Act 7 of 1996, discharging a firearm in or on any public place or public road He was thereafter sentenced on 14 June 2020 to 9 years imprisonment of which 6 years were suspended for 5 years on condition that that accused is not convicted for culpable homicide committed during the period of suspension. The applicant filed an application for leave to appeal against the acquittal on the charge of murder and a charge of contravening section 38(1)(o) read with sections 1, 38(2) and 39 of the Arms and Ammunition Act, Act 7 of 1996, discharging a firearm in or on any public place or public road. An application for leave to appeal is also filed against the sentence and an order that a motor vehicle which is the instrumentality of the crime should not be forfeited to the State. Held that this court is not convinced that another court may arrive at a different conclusion that the appellant should be acquitted. The counter application by the respondent therefore stands to be refused. S v Valombola (CC 15/2013) [2020] NAHCNLD 83 (6 July 2020); Nkandi v S (CC 4/2019) [2020] NAHCNLD 162 (20 November 2020)

Criminal Procedure – Murder - Leave to Appeal – Late filing of heads of argument in non-compliance of Rule 118(6) of rules of court – Application for condonation – Application opposed – Points in limine raised Duties of legal practitioners – Points in limine upheld. Kalimbo v S (HC-NLD-CRI-APP-CAL-2019/00033) [2020] NAHCNLD 146 (9 October 2020)

Criminal Procedure – Leave to Appeal – Whether the applicant’s application was launched in terms of s 316 of Criminal Procedure Act 51 within the stipulated period of time, if not, and, whether there is an application for condonation for such default. Whether it was has proven on a balance of probabilities that it can be said that the applicant enjoys prospects of success on appeal which could cure the defect of failure to provide a reasonable explanation for the late filing of the application for condonation – Appeal lies against conviction and sentence – Grounds for leave to appeal constitutes arguments which were considered by this court during the hearing of the appeal – There is no application for condonation, no reasons for the delay are provided and reasonable prospects of success on appeal not stated – The argument that another court may come to a different conclusion is not the correct test – Applicant for condonation refused and the matter struck from the roll. Pienaar v S (HC-MD-CRI-APP-CAL-2019/00065) [2020] NAHCMD 527 (18 November 2020)

Criminal Procedure – Appeal - Bail – Appeal against the Magistrate’s Court decision to do not grant bail – Section 65(4) of the Criminal Procedure Act 51 of 1977 – The decision of the court a quo not to grant bail should not be set aside if the court is not satisfied that the decision is wrong – Magistrate found it not to be in the interest of the administration of justice for the accused to be admitted to bail – This court is not persuaded that the discretion was exercised wrongly – Appeal is dismissed. Summary: The appellant is facing charges of rape, indecent assault and assault with intent to do grievous bodily harm – He applied for bail, which was refused in the Magistrate’s Court – The magistrate invoked section 61 of the Criminal Procedure Act, No. 51 of 1977, thereby refusing bail on the ground that it is not in the interest of the public or the administration of justice for the accused to be admitted to bail – The appellant lodged an appeal in terms of section 65(1) of the Criminal Procedure Act, No. 51 of 1977. The court found that it is bound by section 65(4), and concluded that it is not satisfied that the decision of the magistrate is wrong – Hence the appeal is dismissed. Waandja v S (HC-MD-CRI-APP-CAL-2020/00014) [2020] NAHCMD 251 (24 June 2020); Sibelelo v S (HC-MD-CRI-APP-CAL-2020/00071) [2020] NAHCMD 463 (8 October 2020)

Criminal Procedure Appeal - Bail –matter pending before this court for trial – nature of proceedings – bail application in terms of the Criminal Procedure Act, 51 of 1977 – refusal of bail by magistrate and dismissal of the appeal does not preclude the court form entertaining a further bail application – court ought to consider all the circumstances at time of application and consider facts both old and new – found that there remains a prima facie case- the likelihood of committing similar crimes and interference with witnesses – seriousness of the offences and the public interest and administration of justice outweighs the right of applicant to liberty and the right to be presumed innocent. Kennedy v S (CC1/2018) [2020] NAHCMD 305 (17 July 2020)

Criminal procedure — Bail Appeal – Appellant unrepresented – Strong prima facie case – No grounds of appeal – No prospects of success – Matter struck from the roll. Summary: Appellant in this matter stands charged with housebreaking with intent to steal and theft in the magistrate court Eenhana. He applied for bail in that court. The application for bail was refused. The appellant has five other pending cases for housebreaking committed when he was out on bail in another case. The appellant raised no grounds of appeal. There are no concise points of argument but only a restatement of mitigating factors. The appeal is struck from the roll. Ndahangwapo v S (HC-NLD-CRI-APP-CAL-2019/00063) [2020] NAHCNLD 94 (27 July 2020)

Criminal Procedure – Bail Appeal – Appeal against refusal by magistrate to admit appellant to bail – Court of appeal limited to the provisions of section 65 (4) Criminal Procedure Act – Interfering by appellate court only permissible when satisfied that magistrate was clearly wrong – Criticisms of substance do not constitute material misdirection – Trial court correctly exercised its discretion in favour of the evidence of the investigating officer – Such evidence reliable and credible when weighed against the evidence of the appellant. Queta v S (HC-MD-CRI-APP-CAL-2020/00065) [2020] NAHCMD 328 (3 August 2020)

Criminal Procedure – Appeal – Application for condonation - The appellant in this matter was convicted for housebreaking with intent to steal and theft after a plea of guilty. He was sentenced to 36 months imprisonment of which 12 months are suspended for 5 years on condition that the accused is not convicted of housebreaking and theft committed during the period of suspension. He prosecuted the appeal by himself and is appealing against sentence only. The appellant stated that he filed the notice of appeal late because he only received the record late. He did not state what steps he took to receive the record timeously. Held that the appellant conceded in this court that the learned magistrate did not misdirect or erred in the sentence. The appellant in his purported heads of argument only prays for a reduction of the sentence. He did not raise any misdirection by the magistrate nor does the court find any. : Kamosho v S (HC-NLD-CRI-APP-CAL-2019/00085) [2020] NAHCNLD 90 (23 July 2020); Van Wyk v S (HC-MD-CRI-APP-CAL-2019/00004) [2020] NAHCMD 387 (1 September 2020); Tjatendela v S (CC 17/2006) [2020] NAHCMD 372 (24 August 2020); Awala v S (HC-NLD-CRI-APP-CAL-2020/00011) [2020] NAHCNLD 136 (17 September 2020); Erastus v S (HC-NLD-CRI-APP-CAL 2019/00009) [2020] NAHCNLD 127(10 September 2020); Nande v S (HC-NLD-CRI-APP-CAL-2020/00025) [2020] NAHCNLD 165 (19 November 2020); Kasimeya v S (CC 05/2015] NAHCNLD 177 (16 December 2020)

Criminal Procedure – Appeal - The appellant was convicted in the Magistrates Court sitting at Outapi on a charge of house breaking with intent to steal and theft. He pleaded guilty, was convicted and subsequently sentenced to four (4) years’ imprisonment of which one (1) year imprisonment is suspended for four (4) on condition accused is not convicted of house breaking with intent to steal and theft committed during the period of suspension. He now appeals against the sentence. Held that that the point in limine taken by counsel appearing on behalf of the respondent is well founded. The purported grounds of appeal on which the appellant relied are no grounds at all but conclusions made by himself or new evidence raised for the first time. It is trite that grounds of appeal should not embody arguments or conclusions reached by an appellant. It must be specific and clear. Therefore the requirements as set out in Rule 67(1) of the Magistrates court Rules have not been met. Held that there was no misdirection or irregularity committed in this matter. Moses v S (HC-NLD-CRI-APP-CAL-2019/00088) [2020] NAHCNLD 92 (23 July 2020)

Criminal Procedure – Appeal - Evidence of a single witness – Corroboration by other evidence – Forensic evidence lacking – Such does not invalidate or nullify equally convincing evidence – Evidence be considered in totality – Appellant’s guilt having been proven beyond reasonable doubt. Summary: The appellant was convicted on the charge of Rape in the Regional Court sitting at Katima Mulilo where after he was sentenced to 12 years imprisonment. Appellant appealed against conviction only after withdrawing his appeal against sentence. Muyongo v S (HC-MD-CRI-APP-CAL-2019/00106 [2020] NAHCMD 294 (17 July 2020)

Criminal Procedure - Appeal – Appellant convicted on two charges in court a quo - On basis of single witness evidence – Requirements for conviction on single witness restated – No misdirection by court a quo – Appeal dismissed. Nambahu v S (CA 104/2016) [2020] NAHCMD 352 (14 August 2020)

Criminal Procedure – Appeal against conviction – Trial on a charge of – Theft of stock taking into consideration the provisions of section 11(1) (a), 1, 14 and 17 of the Stock Theft Act 12 of 1990 as amended – Appellant convicted after evidence was led in the Eenhana district court – Matter transferred to the Regional Court – Appellant sentenced to six (6) years imprisonment – No qualm that State had proven beyond reasonable doubt that appellant committed the offence charged – Appeal court found in instant case no reason for this court to interfere in the trial court’s credibility finding. Shiweda v S (HC-NLD-CRI-APP-CAL-2019/00040) [2020] NAHCNLD 11 (21 January 2020); Inicko v S (HC-NLD-CRI-APP-CAL-2019/00065) [2020] NAHCNLD 30 (24 February 2020)

Criminal Procedure – Bail – Appeal against refusal by magistrate to admit appellant to bail – Section 61 of the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA) discussed – State proved strong prima facie case – Seriousness of offence – Cross-border investigations – More than one accused – Well planned crime syndicate – Increases likelihood of interference – In defence appellant proffered a bare denial – Onus not discharged by appellant – Evidence of state – Analysis when asking whether prima facie case shown – Various factors to be taken into account – Court to exercise common-sense – Not in the interest of public and interest of administration of justice to permit appellant to bail. Criminal Procedure – Bail – Court of appeal limited to the provisions of section 65 (4) of the Criminal Procedure Act – Interference by appellate court only permissible when satisfied that magistrate was clearly wrong – Criticisms immaterial – No misdirection proved – Trial court correctly exercised its discretion in favour of the evidence of the investigating officer – Such evidence reliable and credible when weighed against the affidavit of the appellant. Criminal Procedure – Bail – Use of Affidavits – Permissible – State not compelled to follow suit – Where applicant proceeds via affidavit and the State via viva voce evidence, evidence tested under oath will per se carry more weight than evidence on affidavit. Criminal Procedure – Bail – Multiple Offences – Section 61 of the CPA – Where one of the charges fall under Part IV of Schedule 2 of the CPA – Section 61 applicable – Application of – Holistic approach. Nghipunya v S (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020); Namweya v S (HC-NLD-CRI-APP-CAL-2020/00051 [2020] NAHCNLD 170 (3 December 2020)

Bail: Emvula v S (HC-NLD-CRI-APP-CAL-2018/00042) [2020] NAHCNLD 31 (24 February 2020).

Criminal Procedure – Bail – Appeal against refusal by magistrate to admit appellant to bail – Court of appeal limited to the provisions of section 65 (4) Criminal Procedure Act – Interfering by appellate court only permissible when satisfied that magistrate was clearly wrong – Criticisms immaterial – Trial court correctly exercised its discretion in favour of the evidence of the investigating officer – Such evidence more probable when weighed against the evidence of the appellant. Babi v S (HC-MD-CRI-APP-CAL-2020/00092) [2020] NAHCMD 540 (26 November 2020)

Appeal- Point in limine - Two notices of appeal filed- Which notice should be used by the court - Notice to withdraw the first notice of appeal filed - Second notice not served as required by law - Court rejects to uphold the second notice - Point in limine upheld. Appellant appealed against conviction and sentence on a charge of murder. She was charged and convicted of murder and concealment of birth. Her first notice of appeal against sentence was withdrawn. She thereafter filed a second notice in which she was appealing against both conviction and sentence. Respondent objected to a second notice for the following reason. That on top of the initial notice of appeal against sentence there was no indication as to what the state of the initial notice was. In the absence of that proposition, the initial notice of appeal still stands, and the second notice was a sham. This court upheld the point in limine. Kalimbo v S (HC-NLD-CRI-APP-CAL-2019/00033) [2020] NAHCNLD 40 (12 March 2020).

Appeal - Point in limine- Mr Elifas Ndalusha, after the first and similar application was dismissed by this court on the merits, is again before court with a second attempt to be granted leave to appeal against his sentence. He and the co-accused were convicted on the 22 November 2005 by Gibson, J on one count of murder, two counts of robbery with aggravating circumstances and one count of defeating or obstructing the course of justice and sentenced to an effective imprisonment period of 44 years. That is after the court has ordered parts of the sentence imposed, to run concurrently with the 44 years imprisonment. Aggrieved by the conviction and the sentence, the applicant sought from this court leave to appeal against both the conviction and sentence to the Supreme Court. The applicant has not opposed the point in limine raised by the respondent. Held that the step taken by the applicant not to oppose the point in limine is the correct step. Held that therefore, and on the authority of the Supreme Court judgment of Haikali above, the court concludes that this court has become functus officio to hear the application and as such, it is a nullity, having no force or effect. Legally, there is no application before court. Ndalusha S (CC 06/2003) [2020] NAHCMD 303 (21 July 2020)

Criminal procedure – Notice of appeal – Bail refused in court a quo – Such notice should set out clearly and specifically grounds on which appeal is brought – there is no valid notice of appeal before the court for the court to consider - Appeal struck from the roll. Summary: Appellant lodged an appeal with this court against the decision of Magistrate Shilemba when she refused him bail on 29 July 2019. The Appellant is facing one count of Rape in contravention of Combating of Rape Act, No 8 of 2000. The respondent raised a point in limine that there were no clear and specific grounds set out in the notice of appeal as required by rule 67(1) of the Magistrates court Rules. The court held, that there were no grounds of appeal and that the appeal is struck from the roll. Mutumbulwa v S (HC-NLD-CRI-APP-CAL-2020/00039) [2020] NAHCNLD 87 (20 July 2020); Amukwa v S (HC-NLD-CRI-APP-CAL-2019/00082) [2020] NAHCNLD 102 (6 August 2020); Aron v S (HC-NLD-CRI-APP-CAL-2019/00095) [2020] NAHCNLD 173 (8 December 2020);

Criminal procedure – Appeal - Housebreaking with intent to steal and theft –Doctrine of recent possession – Where a person is found in possession of recently stolen goods and has failed to give any explanation which could reasonably be true ― Court entitled to infer that such person is the person who committed the offence – Sufficient evidence led that accused possessed the television – Failure for accused to explain possession of such good detrimental to his case – Inference properly drawn ― No misdirection on the part of the presiding magistrate. Summary: The appellant was convicted on a charge of housebreaking with intent to steal and theft of goods valued at N$3740. He was sentenced to five years imprisonment. The stolen television was found a day after the complainant’s house was broken into in one of the witness’s house. He left the property with the intention of picking it up. The learned magistrate found that his failure to give explanation of his possession was detrimental to his case. The court held that there are no reasonable prospects of success on the grounds raised in respect of conviction. His appeal against conviction is dismissed. Gawaseb v S (HC-NLD-CRI-APP-CAL-2019/00097) [2020] NAHCNLD 104 (13 August 2020)

Criminal Procedure – Appeal – Against conviction and sentence – Late filing of notice of appeal – Condonation application defective – Affidavit for condonation refers to condonation for leave to appeal in terms of s 316 (1) of the Criminal Procedure Act, 51 of 1977 – Point in limine – Respondent raising points in limine that affidavit does not give reasonable explanation for the delay. Katata vs S (HC-MD-CRI-APP-CAL-2019/00020) [2020] NAHCMD 94 (13 March 2020); Katunawo v S (HC-NLD-CRI-APP-CAL-2019/00091) [2020] NAHCNLD 123 (3 September 2020); Nghipunya v S (HC-NLD-CRI-APP-CAL-2019/00037) [2020] NAHCNLD 124 (3 September 2020); Shishiveni v S (HC-MD-CRI-APP-CAL-2019/00067) [2020] NAHCMD 395 (4 September 2020)

Criminal Procedure – Appeal – Against conviction and sentence - Immigration – Immigration Control Act 7 of 1993 – Appellants convicted of contravening s 29(5) and contravening s 54(e) of the Immigration Control Act 7 of 1993 – Each appellant sentenced to a fine of N$6 000 or one year’s imprisonment on the first charge – Each appellant sentenced to a fine of N$4 000 or six months’ imprisonment on the second charge in the Magistrate’s Court – Appeal against conviction and sentence – Court rejected the grounds of appeal advanced – Appeal dismissed. Joubert v S (HC-MD-CRI-APP-CAL-2020/00020) [2020] NAHCMD 396 (4 September 2020)

Appeal – incomplete record of trial proceedings – absence of cross-examination of a state witness – reconstruction of missing portion of evidence not possible - record inadequate for adjudication of appeal – proceedings set aside on account of absence of material portion of evidence. Lizazi v State (CA 23/2015) [2020] NAHCMD 91 (13 March 2020)

Criminal Procedure - Appeal - Traffic offences - Suspension of driver’s licence - When to be imposed - Section 50 of Act 22 of 1999 - Cannot be imposed for a contravention of regulation 232 (4) r/w 369 GN 53 /2001 r/w section 1,86 & 89 of Act 22 of 1999 as amended. Court has no power to suspend the licence of a motorist who has been convicted of an offence not relating to driving of a motor vehicle. The appellant was convicted upon his own admission of guilty on a charge of occupying a seat in a motor vehicle and failing to wear a safety seat belt in contravening Regulation 232 (4) r/w 369 GN 53 /2001 r/w section 1,86 & 89 of Act 22 of 1999 as amended. He pleaded guilty and was convicted pursuant to section 112 (1) (a) of Act 51 of 1977. Appellant was sentenced to N$1000 (thousand) dollars or hundred (100) day’s imprisonment. In addition the appellant’s licence was suspended for six (6) months in terms of section 50 of Act 22 of 1999. Suspension of or disqualification from obtaining a driving licence can only be imposed in terms of section 50 of Act 22 of 1999 where the offence in respect of which the appellant is convicted, is related in some way to the manner of his driving of the motor vehicle. Appeal court upheld the appeal against the order of suspension of his driving licence finding that the order was incompetent to the offence appellant was convicted of. Further dismissed the appeal against sentence holding that there was no misdirection or irregularity on the part of the presiding officer. Nekundi v S (HC-NLD-CRI-APP-CAL-2019/00057) [2020] NAHCNLD 29 (20 February 2020)

Criminal Procedure – Appeal against sentence – Interference by Court of appeal – such interference only justified where sentence vitiated by irregularity or misdirection or is startlingly inappropriate – Sentence essentially falling within discretion of trial Court - Reasonable explanation – Prospects of success – Startlingly inappropriate sentence set aside and substituted. Appellants 1, and 2 were convicted on three counts of housebreaking with intent to steal and theft whereas appellant 3 was convicted on 2 counts of housebreaking with intent to steal and theft. It is a settled rule of practice that punishment falls within the discretion of the Court of trial. As long as that discretion is judicially, properly or reasonably exercised, an appellate Court ought not to interfere with the sentence imposed. The magistrate simply took all charges together for the purpose of sentence and sentenced the appellants to eight years imprisonment, three years of which are suspended for five years on condition the appellants are not convicted for housebreaking with intent to steal and theft. He did not differentiate between the different crimes and ignored that appellant 3 was only convicted for two crimes. In our view he committed a misdirection. S v Garoseb (HC-NLD-CRI-APP-SNA-2019/00048) [2020] NAHCNLD 35 (03 March 2020)

Criminal Procedure – Appeal against sentence – Interference by Court of appeal – such interference only justified where sentence vitiated by irregularity or misdirection or is startlingly inappropriate – Sentence essentially falling within discretion of trial Court - Reasonable explanation – Prospects of success – Startlingly inappropriate sentence set aside and substituted; Appellants 1, and 2 were convicted on three counts of housebreaking with intent to steal and theft whereas appellant 3 was convicted on 2 counts of housebreaking with intent to steal and theft. It is a settled rule of practice that punishment falls within the discretion of the Court of trial. As long as that discretion is judicially, properly or reasonably exercised, an appellate Court ought not to interfere with the sentence imposed. The magistrate simply took all charges together for the purpose of sentence and sentenced the appellants to eight years imprisonment, three years of which are suspended for five years on condition the appellants are not convicted for housebreaking with intent to steal and theft. He did not differentiate between the different crimes and ignored that appellant 3 was only convicted for two crimes. In our view he committed a misdirection. S v Garoseb (HC-NLD-CRI-APP-SNA-2019/00048) [2020] NAHCNLD 35 (03 March 2020); Nitschke v S (HC-MD-CRI-APP-CAL-2020/00059) [2020] NAHCMD 440 (25 September 2020); Nghimwenavali v S (HC-NLD-CRI-APP-CAL-2020/00001) [2020] NAHCNLD 164 (26 November 2020); Gideon v S (HC-NLD-CRI-APP-CAL-2019/00094) [2020] NAHCNLD 174

(14 December 2020)

Criminal Procedure - Appeal - Conviction - Murder with direct intent - Heads of argument late - Reasons for delay reasonable - prospects of success - Magistrate evaluated evidence piecemeal and not with the totality of evidence - Appellant’s version reasonably possibly true - Appeal succeeds - Convicted for culpable homicide. The appellant appeals against conviction. He was convicted for murder with direct intent. The appellant went to the house where the deceased resided on the day of the incident. He wanted to confront her about a traditional gate that he constructed at his field to prevent his animals not to get strayed from his field. The gate was constructed with sticks. The sticks were removed and not replaced. The problem started two days before the alleged crime. The appellant followed footprints from the gate to the house where the deceased resided. When he approached the house the deceased and another girl ran away. The deceased went into a hut of her uncle. The appellant went to the door of the hut and called the deceased by name. She said she will come out but did not come out of the hut. The appellant eventually tried to remove a curtain at the door of the hut with a shotgun that he went with to the hut. A shot went off through the curtain during the process of trying to remove it. The deceased was fatally injured. The evidence is circumstantial. The appellant is the only one who could testify how the shot went off. He gave an explanation which is reasonably possibly true. The conviction of murder with direct intent is set aside. The appellant is convicted for culpable homicide. Shaanika v S (HC-NLD-CRI-APP-CAL-2019/00035) [2020] NAHCNLD 32 (21 February 2020)

Criminal Procedure - Appeal - Conviction and sentence - Rape - Victim 7 years old - No misdirection on conviction - Appeal against conviction dismissed - Minimum sentences, substantial and compelling circumstances and coercive not explained during proceedings - guidelines not followed - Appeal against sentence upheld - Remitted back for sentence. The appellant pleaded not guilty. After the evidence was led he was convicted of Rape under the Combating of Rape Act, 8 of 2000. No evidence was led regarding any domestic relationship. Appellant was convicted and then sentenced to 15 years imprisonment. He now appeals against both the conviction and the sentence. This court found that the conviction was in accordance with justice and was confirmed. The appeal against sentence was upheld and sentence imposed is set aside. The matter is remitted for magistrate to comply with the guidelines and explain the minimum sentences, substantial and compelling circumstances and coercive circumstances. Period already served should also be considered. Shanghala v S (HC-NLD-CRI-APP-CAL-2019/00055 [2020] NAHCNLD 39 (12 March 2020)

Criminal Procedure - Appeal – Non-pathological criminal Incapacity – Principles applicable to Non-pathological criminal incapacity restated – The presumption of sanity endorsed – Medical expert evidence an advantage in the assessment of the mental condition of the accused at time of the commission of the offences but not a must - When the defence of non-pathological criminal incapacity is raised courts should carefully assess the facts to determine veracity of such defence. Criminal Appeal – Indecent assault requires touching or holding another indecently– Substitution of the charge possible on appeal where appellant will not be prejudiced thereby - Proof beyond reasonable doubt not proof beyond all doubt - Evidence establishing guilt – Appeal against conviction dismissed. Subeb v S (HC-MD-CRI-APP-CAL-2019/00074) [2020] NAHCMD 73 (28 February 2020)

Criminal Procedure - Appeal – The implication of admissions recorded in terms of section 220 of the CPA 51 of 1977 (the CPA) and admissions not so recorded The application of section 212(7)(a) of the CPA – The evidential rule on admissibility of medical records relaxed - Evidence of child witnesses not unreliable by virtue of being children as per section 164(4) of the CPA – Sentence – Appeal court has limited role to interfere – Record – Records in shambolic state frustrates the administration of justice - Presiding magistrate duty bound to compile a proper record of appeal. Boois v S (HC-MD-CRI-APP-CAL-2019/00063) [2020] NAHCMD 128 (22 April 2020)

Criminal Procedure – Appeal– Appeal against sentence on 25 counts of contravention of s 35(a) of the Anti-Corruption Act, 2003 – Custodial sentence appropriate in seriousness offences – Unchallenged expression of remorse under oath accepted – Cumulative effect of sentence – Taking counts together for sentencing – Sentence set aside and substituted with 6 years’ imprisonment 3 suspended for 5 years. Hango v S (HC-MD-CRI-APP-CAL-2019/00090) [2020] NAHCMD 201 (29 May 2020)

Criminal Procedure – Appeal against conviction and sentence – Appellant convicted of murder with direct intent to kill and sentenced to twenty (20) years imprisonment – Appeal – Appellant raising alibi as defence – But not testifying in support of his alibi defence – Court a quo rejecting evidence of appellant as false – On appeal, the finding confirmed – Appeal Grounds – Appellant alleges not afforded a fair trial – That ground and other grounds against the conviction rejected on appeal – No merits or substance in grounds of appeal – Appeal against conviction dismissed – Appeal against sentence not pursued by the Appellant. Hanse v S (HC-MD-CRI-APP-CAL-2018/00048) [2020] NAHCMD 186 (20 May 2020)

Criminal Procedure – Appeal – Against refusal to admit appellant to bail in an application on new facts – Issues regarding not receiving medication and missing medical appointments while in custody should be addressed when they occur – Diagnosed with a condition that was treatable whilst in detention – Medical condition not constituting new facts – Pending investigations against appellant not constituting new facts – Error in interpretation of s 61 of CPA does not change appellant’s position with regards to bail – Court a quo not wrong in dismissing the application. Iipinge v S (HC-MD-CRI-APP-CAL-2019/00111) [2020] NAHCMD 156 (8 May 2020)

Criminal Procedure – Appeal against conviction and sentence - The appellant appeared together with accused 1 in the district court held in Walvis Bay on the charge of housebreaking with intent to steal and theft. He pleaded not guilty to the charge. After hearing evidence, the court convicted the appellant and his co-accused as charged and sentenced them to 12 months’ imprisonment each. Dissatisfied with the adverse outcome of the proceedings, the appellant filed an appeal against conviction and sentence within the prescribed period of time. Held that the grounds of appeal in this matter therefore do not constitute grounds of appeal. It follows that there are no grounds on which this appeal can be adjudicated upon. In the foregoing, this matter falls to be struck from the roll. Kanzuu v S (HC-MD-CRI-APP-CAL-2019/00076) [2020] NAHCMD 200 (29 May 2020)

Criminal Procedure – Appeal against conviction and sentence - This application rests on eight grounds of appeal against conviction and two grounds against sentence. In considering an application for leave to appeal, it is trite law that the test is whether another court may reasonably come to a different conclusion. Furthermore, the applicant must satisfy the court that he or she has a reasonable prospect of success on appeal. Thus an application for leave to appeal should not be granted if it appears to the court that there is no reasonable prospect of success on appeal. It must also be borne in mind that a mere possibility that another court might come to a different conclusion is not sufficient to justify the grant of leave to appeal S v Nowaseb 2007 NR (2) 640 at 640 F – 641A. 9. In the present matter, the court has given its reasons for conviction and sentence and is of the opinion that it exercised its discretion properly and judiciously. It follows that the principles that warrant an appeal court to interfere with the conviction and sentence do not find application in this case. It is the court’s view that the applicant has failed to show that he has a reasonable prospect of success on appeal. Mathias v S (CC 3/2017) [2020] NAHCMD 313 (24 July 2020)

Criminal Law – Appeal against sentence – Fully suspended sentence too lenient on charge of attempted murder, perpetrated in the context of domestic violence. Held – Sentence set aside – Substituted with sentence of 7 years’ imprisonment of which 2 years’ imprisonment are suspended for 5 years on the condition that the accused is not convicted of attempted murder committed during the period of suspension. S v Dentlinger (HC-MD-CRI-APP-SNA-2020/00056) [2020] NAHCMD 554 (3 December 2019)

Criminal Procedure – Appeal against sentence - The appellant was convicted in the Magistrates Court sitting at Eenhana on a charge of housebreaking with intent to steal and theft. The value involved was N$ 821 and nothing of the stolen items were recovered. He was subsequently sentenced to 48 months imprisonment on 15 February 2018. The appellant had a previous conviction of housebreaking with intent to steal and theft. Dissatisfied with the sentence imposed, the appellant filed a notice of appeal against the sentence on 16 April 2018 and simultaneously filed an application for condonation of his late filing of the notice of appeal. Held that there was no misdirection or irregularity in this matter. Although the appellant did not break into a home but broke the complainants bar the principle remains the same. The business fraternity play a vital role in the communities and equally needs the protection of the courts. Looting their businesses will not be tolerated. The appellant in casu has a previous conviction of the same offence which is a clear indication that accused had not learned a lesson from the previous sentence he served. Further that there are no particular circumstances justifying the imposition of a lesser sentence and in our view, this appeal is without merit and stands to fail. Nepunda v S (HC-NLD-CRI-APP-CAL-2019/00020) [2020] NAHCNLD 49 (07 May 2020)

Criminal Procedure - Appeal – Amended notice of appeal filed after the appeal was struck from the roll – Whether the court can entertain an appeal based on an amended notice after original notice to be amended is struck from the roll – High Court has no jurisdiction to hear an appeal on such amended notice of appeal. The appeal should not have been re-enrolled. !Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00081) [2020] NAHCMD 181 (19 May 2020)

Criminal Procedure – Appeal – Dock identification to be approached with caution but weight attached thereto differs from case to case – Bare denial rejected in face of sufficient incriminating evidence – Sentencing on 6 counts while conviction only on 5 counts amounts to misdirection but its impact depends on whether it is material – Time spend in custody pending trial at the behest of the offender may not be considered in mitigation – Accused’s acknowledgment of the commission of the offence in mitigation confirms conviction – S 317 of the CPA 51 of 1977 special entry is a tool at the disposal of an accused to record an irregularity in the trial. Pienaar v S (HC-MD-CRI-APP-CAL-2019/00065) [2020] NAHCMD 159 (11 May 2020)

Criminal Procedure – Appeal - notice of appeal filed late - condonation application – no reasonable prospects of success on appeal – application for condonation dismissed on account of no prospects of success – Matter struck from the roll. Thomas v S (HC-MD-CRI-APP-CAL-2019/00089) [2020] NAHCMD 179 (14 May 2020); Elao v S (HC-NLD-CRI-APP-CAL-2020/00037) [2020] NAHCNLD 157 (12 November 2020); Tuhafeni v S (HC-NLD-CRI-APP-CAL-2020/00027) [2020] NAHCNLD 159 (12 November 2020)

Criminal Procedure – Appeal – Conviction and Sentence – Contravening section 2(1)(a) of the Combating of Rape Act - Right to legal representation – Admission of medical report – Right to afford appellant sufficient time and facilities to prepare – Complainant disabled – Conviction confirmed – Substantial and compelling circumstances not explained – Criminal Procedure – Sentence – Sentence in terms of Combating of Rape Act 8 of 2000 - Guidelines to be followed before imposing sentence - Such guidelines including explaining coercive circumstances to accused - Accused also to be made aware of minimum sentences - Court should also explain concept of substantial and compelling circumstances - Accused to be made aware that he/she has opportunity to make statement or call witnesses before sentence imposed – (Sentence set aside – Matter remitted to sentence afresh). Zeronimo v S (HC-NLD-CRI-APP-CAL-2019/00011) [2020] NAHCNLD 57 (26 May 2020)

Criminal Procedure – Appeal – Against sentence – Appellant and fellow police officer convicted of four counts of offences under s 38(b) of the Anti - Corruption Act, 2003 ( Act 8 of 2003) – Both sentenced to an effective four years imprisonment – appellant filed defective Notice of Appeal – Counsel acting without power of attorney – No mandate to lodge and act on behalf of the appellant – Point in limine – notice of appeal defective – No grounds of appeal – In appeal – Point in limine upheld and appeal struck from the roll. Asino v S (HC-MD-CRI-APP-CAL-2019/00064) [2020] NAHCMD 225 (15 June 2020); Endjala v S (HC-NLD-CRI-APP-CAL-2020/00035) [2020] NAHCNLD 161 (19 November 2020); Lazarus v S (HC-NLD-CRI-APP-CAL-2020/00043) [2020] NAHCNLD 172 (3 December 2020)

Criminal Procedure – Appeal – Interference with findings of facts by trial judge – Contradictions and deviations in witness evidence – Court of Appeal will not readily interfere with factual findings by trial judge, unless serious misdirection committed – Grounds of appeal – Not permissible to introduce new grounds of appeal in heads of argument – Appellant bound by grounds in the notice of appeal – The court will consider the nature, number and importance of contradictions – Deviation immaterial – This court cannot fault the trial court in its analysis of the facts and evidence and satisfied with the reasons given – Appeal dismissed. Dumeni v S (HC-MD-CRI-APP-CAL-2019/00100) [2020] NAHCMD 224 (15 June 2020)

Criminal Procedure – Appeal – Sentence – 24 months’ imprisonment – Appellant convicted of theft from employer – Goods valued at N$40 548 – Court a quo duly considering – Personal circumstances of appellant – the offence – interest of society – Purpose of sentencing and the fact that the appellant stole from his employer – The appellant in a position of trust who took advantage of trust bestowed upon him. Court a quo considering the triad of sentencing – striking a balance between competing interests and imposing 24 months’ imprisonment – Appeal court not satisfied that court a quo committed an irregularity or failed to exercise its discretion judiciously. Ketti v S (HC-MD-CRI-APP-CAL-2019/00082 [2020] NAHCMD 213 (5 June 2020)

Criminal Procedure - Appeal against sentence - Imprisonment without option of fine – Drug offense – Accused found in possession of 1445 grams of cannabis to the value of N$ 14 450-00 and 49 mandrax tablets that contains methaqualone to the value of N$ 4 900. Sentence of 36 months imprisonment of which 12 months imprisonment was suspended for 5 years on the usual conditions. Held - Though possession of drugs is regarded as less serious than the offense of dealing in drugs, it cannot be overlooked that a transporter is an instrumental cog in the wheel of the drug supply chain and cannot get away with a mere slap on the wrist. Held – No material misdirection in the sentence of the court a quo - Appeal dismissed. Mokhatu v S (HC-MD-CRI-APP-CAL-2019/00093) [2020] NAHCMD 232 (19 June 2020)

Criminal Procedure – Appeal against conviction and sentence – Appellant convicted of stock theft and sentenced to four years’ direct imprisonment – Appellant opting to remain silent where there is sufficient incriminating evidence against him – Appellant alleging to have been punished for having exercised his constitutional right to remain silent – Such right not absolute. Identification − No proper identification of all the stolen cattle – Evidence of identification in cases of stock theft essential – Failure to properly identify stolen stock fatal to the State’s case – Appeal against conviction partly succeeds – Sentence altered on appeal. Summary: The appellant was charged with eight counts of theft of stock and was subsequently found guilty on four counts of theft of stock, whereafter he was sentenced to four years’ imprisonment. Being dissatisfied with his conviction and sentence, the appellant appealed against both. Appellant has not testified in his defence and opted to remain silent. Appeal against conviction partly succeeds. Sentence set aside and substituted with another sentence. Naobeb v S (HC-MD-CRI-APP-CAL-2019/00024) [2020] NAHCMD 226 (15 June 2020); Nakale v S (HC-NLD-CRI-APP-CAL-2019/00038) [2020] NAHCNLD 169 (3 December 2020)

Criminal Procedure – Appeal - The appellant was charged with contravening section 16(1) read with sections 1, 16(1)(a), 6(2) and 33 of Act 1 of 2010-Dealing in illicit tobacco products to the value of N$2000. Held that the concession that the sentence is inappropriate and that a fine would have been appropriate. In my considered view, the magistrate overemphasized the seriousness of the offence. The appellant however already served slightly more than 7 months imprisonment. Imposing a fine at this stage would, in my view be prejudicial to the appellant. Hence the order above. S v Trofimus (HC-NLD-CRI-APP-CAL-2019/00096) [2020] NAHCNLD 75 (25 June 2020)

Criminal Procedure – Appeal - Evidence – Discrepancies in witness statements – Does not necessarily mean that deliberate lies were told to the court – Contradictions per se’ do not lead to the rejection of a witness’ evidence – It may be indicative of an error – Function to decide on acceptance or rejection of evidence falls primarily within the domain of the trial court –Court a quo did not misdirect itself in convicting the appellant. Criminal Procedure – Appeal against Sentence – Interference by Court of appeal –Sentence is pre-eminently a matter for trial court – interference is only justified where the trial court exercised its discretion improperly – sentence imposed on each count is not shockingly inappropriate nor does it induce a sense of shock – Court a quo’s discretion properly exercised – Appeal against sentence dismissed. Gariseb v S (HC-MD-CRI-APP-CAL-2019/00083 [2020] NAHCMD 300 (20 July 2020)

Criminal Procedure – Appeal - The appellant was charged with contravening section 82(2)(a) of Act 22 of 1999- Driving with excessive blood alcohol level, alternatively, contravening section 82(1) of Act 22 of 1999- Driving under the influence of intoxicating liquor. Held that the Magistrate’s questioning, more on the Appellant’s alcohol content in his blood and the admissions made are enough to establish that the main count was proven. This court in terms of section 270 of the CPA has the power to confirm the charge which had been proven as the charge of which the Appellant was convicted. Held that this court agree with the concession that the sentence is inappropriate and that a fine would have been appropriate. Held that the magistrate overemphasized the seriousness of the offence. The appellant however already served slightly more than 8 months imprisonment. Haindongo v S (HC-NLD-CRI-APP-CAL-2019/00076) [2020] NAHCNLD 85 (09 July 2020)

Criminal Procedure – Appeal – Sentence – 20 months imprisonment – Theft – Goods valued at N$19000 – Court a quo duly considered personal circumstances of appellant – Court declined to interfere with the sentence. The appeal is dismissed. Summary: The appellant who was convicted in the district court siting in Oshakati on 30 October 2019 on three counts of theft and sentenced to 20 months imprisonment. Appealed the sentence passed on him by the District Court on various grounds. The appellant committed the theft on various occasions. Held: that the magistrate did not commit any misdirection during the sentencing proceedings: Held: Further that the sentence passed is appropriate in the circumstances of the matter and appeal dismissed. Iyambo v S (HC-NLD-CRI-APP-CAL-2020/00010) [2020] NAHCNLD 91 (23 July 2020)

Criminal Procedure – Appeal – Sentence - The appellant was charged with contravening section 82(2) (a) of Act 22 of 1999- Driving with excessive blood alcohol level. He tendered a guilty plea and was thereafter questioned in terms of section 112(b) of the Criminal Procedure Act, Act 51 of 1977 (CPA). He was convicted and sentenced to 18 months imprisonment without an option of a fine on 18 October 2019. He appeared in person in the court a quo. The appellant filed his notice of appeal out of time and simultaneously filed an application of condonation for the late filing of the appeal. The appeal lies against the sentence only. The respondent did not oppose the application and conceded that the sentence was harsh and inappropriate under the circumstances. Held that this court agrees with the concession that the sentence is inappropriate and that a fine would have been appropriate. Held that in the court’s view, the magistrate overemphasized the seriousness of the offence. The objectives of sentencing could still have been achieved within the ambits of the penalty clause without imposing a custodial sentence. The appellant however has already served slightly over 9 months imprisonment. Hosea v S (HC-NLD-CRI-APP-CAL-2020/00040) [2020] NAHCNLD 105 (13 August 2020)

Criminal procedure – Appeal – Against conviction and sentence – Defence of private defence – Appellant’s version not supported by the evidence – Evaluation of evidence by trial court – No material misdirection – Sentence – Punishment is pre-eminently a matter for the discretion of the trial court – No misdirection found in sentence of 17 years on charge of murder in circumstances of case. Isaack v S (HC-MD-CRI-APP-CAL-2019/00108) [2020] NAHCMD 351 (13 August 2020)

Criminal Procedure – Appeal - Sentence – Dealing in dependence producing substance in contravention of s 2 (a) read with ss 1, 2, (1) 8, 9, 10, 14 and Part 1 of the Schedule of the Abuse of Dependence Producing Substances and Rehabilitation Centre Act 41 of 1971 as amended – Deterrence important due to increase in substance dealing – Message be sent out in order to show intolerance for dealing in substance – But mitigating factors also to be considered – The substances recovered after the arrest – Custodial sentence appropriate in this case – Though Court entitled to interfere with sentence to a certain extent. Kharuchab v S (HC-MD-CRI-APP-CAL-2019/00086 [2020] NAHCMD 345 (12 August 2020)

Criminal Procedure - Application in terms of s 174 of the Criminal Procedure Act, 51 of 1977 –Discharge of accused at close of State case – Charges – Murder as read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003– Test – whether there is prima facie evidence on which a reasonable court can convict- Court held that there is sufficient evidence on which a reasonable court acting reasonably may convict the accused on the preferred charge-Application dismissed. Thomas v S (CC 5-2019) [2020] NAHCNLD 125 (7 September 2020); S v Uazeua (CC 17/2016) [2020] NAHCMD 427 (21 September 2020); S v Nanyemba (CC 12/2018) [2020] NAHCNLD 149 (14 October 2020); Heita v S (CC 14/2016) [2020] NAHCNLD 167 (30 November 2020)

Criminal Procedure – Trial – Appeal against conviction – Appellant convicted of common assault – Single uncorroborated evidence of complainant – Evidence of single witness shall be clear and satisfactory – Trial court found that the complainant is a credible witness – Trial court rejected the version of the defence –Found that the evidence of the complainant is marred by contradictions and inconsistencies – Found that there is a basis for appeal court to interfere with trial court’s finding – Found that the trial court did not approach the single witness’s version with caution – Consequently, the appeal is upheld – The conviction and sentence are set aside. Law of evidence – Evaluation of the evidence of a complainant in a common assault case who is a single witness – The cautionary rule is applicable to the evidence of a single witness. Slogan v S (HC-MD-CRI-APP-CAL-2020/00028) [2020] NAHCMD 473 (19 October 2020); Sheetekela v S (CC 10/2014) [2020] NAHCMD 590 (9 December 2020)

Criminal procedure – Appeal – Sentence – Condonation for the late filing – Reasonable explanation and prospects of success – Explanation not reasonable in circumstances – Plea of guilty – Youthfulness – Weight to be attached – Lifestyle of appellant emancipated himself from hiding behind youthfulness – Punishment pre-eminently a matter for the discretion of the trial court – Court a quo properly weighed all factors applicable to sentence – No misdirection found – no prospects of success on appeal. Tsuseb v S (HC-MD-CRI-APP-CAL-2019/00094) [2020] NAHCMD 472 (19 October 2020)

Criminal- Appeal- Conviction and sentence- Credibility of witness and mutually destructive versions-Evaluation of evidence-Relevance of evidence-Charge sheet must contain all the charges levelled against an accused-Cannot place facts before the Court that does not carry any evidential value-Material misdirection from the Court a quo- warranting the interference of the appeal court-Conviction and sentence set aside- Appeal succeeds. Hamana v S (HC-NLD-CRI-APP-CAL-2020/00012) [2020] NAHCNLD 156 (12 November 2020)

Criminal Procedure – Appeal – Sentence – Direct imprisonment – Theft from employer – Whether sentence imposed is startlingly inappropriate – No misdirection by trial court found –Trial court correctly considering evidence placed before it – Sentence imposed not dissimilar to what appeal court would have imposed – Appeal dismissed. Mwata v S (HC-MD-CRI-APP-CAL-2020/00030) [2020] NAHCMD 517 (13 November 2020)

Criminal Procedure – Application for leave to appeal against a discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977 – Reasonable prospects of success on appeal. S v Amupolo (HC-NLD-CRI-APP-SLA-2020/00054) [2020] NAHCNLD 160 (17 November 2020)

Criminal Procedure – Appeal – Discharge of accused in terms of s 174 of Act 51 of 1977 at close of State case – Objective test – Evidence upon which a reasonable court could convict – However, exercise of discretion depending on opinion of court – Court on appeal may interfere if court a quo acted mala fide, on a wrong principle or did not apply its mind – Analysis of evidence in present case indicating court's failure to apply its mind – Court setting aside discharge. S v Kolofu (HC-NLD-CRI-APP-SNA-2020/00045) [2020] NAHCNLD 158 (12 November 2020)

Criminal Procedure – Appeal against conviction – Appellant found guilty on several counts in the regional court – Appeal lies against only four counts – count 10 is trafficking in persons, and the remaining counts 11, 12 and 13 are of rape – Found that there is no evidence to prove that the appellant committed rape by inserting his penis into the vagina of the complainant in count 10, and therefore the appeal is upheld in that respect – Appeal in the remaining counts anchored on the ground that the complainant in counts 11, 12 and 13 refused to answer questions in cross-examination – Argued that the learned magistrate erred by convicting the appellant on those counts – Court found that the complainant in those counts testified and answered some questions in cross-examination – Court found that the complainants in other counts also testified to prove the charges in counts 11, 12 and 13 – Found that the trial court considered the evidence as a whole – Found that the trial court was satisfied with the evidence of the complainants – Found that there is evidence to prove that the appellant committed the offences in counts 11, 12 and 13 – Found that the trial court correctly convicted the appellant in those counts – In that respect the appeal against conviction is dismissed. Criminal Procedure – Appeal against sentence – Appellant convicted and sentenced on various counts of rape and trafficking in persons in the regional court – Magistrate ordered that some sentences run concurrently – Appellant sentenced to an effective sentence of 35 years imprisonment – Argued that the trial court erred in law by imposing an effective sentence of 35 years on the appellant who was 67 years old at the time of sentencing, thus depriving him any prospect of being released in his lifetime – Held that sentencing is a matter for the discretion of the trial court – Court of appeal will only interfere with the exercise of that discretion where it has not been exercised properly or where there was an irregularity committed during the proceedings – Court of appeal will only interfere with the sentence if it is startlingly inappropriate and shocking – Found that the trial court considered relevant mitigating and aggravating factors and attached appropriate weight to each – Found that there is not basis upon which the appeal court may interfere with the exercise of that discretion – Found that the sentence imposed is appropriate in the circumstances – Appeal against sentence is dismissed. Vujicin v S (HC-MD-CRI-APP-CAL-2020/00062) [2020] NAHCMD 551 (1 December 2020)

Criminal law – application for leave to appeal against sentence and application for condonation for the late filing of the application for leave to appeal –that is a second application in the same matter and for the same relief before the High Court –the Court is not competent to express itself again on the same matter – the Applicant should approach the Supreme Court by petition –matter is struck from the roll. Peter v S (CC 20/2018) [2020] NAHCMD 241 (1 June 2020)

Constitutional Law

Constitutional Law – Human Rights – Right to legal representation – Fundamental right – Right not absolute – Imposing limits only in exceptional circumstances – where reasonable to limit such rights. Constitutional Law – Human Rights – Right to fair trial – Article 12 (1) (e) Namibia Constitution – Accused to be afforded time and necessary facilities - Facilities including disclosure to witness statements and other documentary evidence – Such right essential to a fair trial – Court’s failure to order state to provide disclosure – Amounts to ignorance of notions of justice and basic fairness. Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00046) [2020] NAHCMD 78 (6 March 2020)

Criminal Procedure

Criminal Procedure – Plea – Accused convicted without pleading – Gross irregularity – Proceedings nullified. S v Kambundu (CR 09/2020) [2020] NAHCMD 43 (07 February 2020)

Criminal Procedure – Bail – New facts – Court’s approach in considering whether there are new facts – Those new facts be considered against the background of the old facts – Notwithstanding new facts – Bail was refused. Summary: Applicant brought a bail application based on new facts. The new facts were; time spent in custody, continued treatment for schizophrenia, police do not take the accused on time to the Oshakati State Hospital to receive his medication to control the schizophrenia, no new suicide attempts, prejudice to accused person to assist and actively participate in preparation of his defence, trial date not yet set as psychiatric report is disputed and enquiry is first to be held. Held, that, the grounds raised have not changed the position upon which bail initially was refused as they have not addressed the issue of public interest or the interest of the administration of justice. Sheelongo v S (CC 16/2018) [2020] NAHCNLD 51 (8 May 2020); Shekundja v S (CC 19/2017) [2020] NAHCMD 339 (22 July 2020)

Criminal Procedure – Bail Appeal – Appeal against refusal by magistrate to admit appellant to bail – Record of bail application – Evidence adduced in bail application complete - Magistrate failed to give reasons for order. Issue – whether failure of magistrate to give reasons for order vitiate the magistrate’s decision - record of bail proceedings not fatally inadequate. Held – appeal court has duty to reassess evidence tendered during the bail proceedings to see if it supports finding of the magistrate. Appeal – Court not to set aside decision to refuse bail unless satisfied that magistrate was clearly wrong. – Appeal dismissed. Ihambo v S (HC-MD-CRI-APP-CAL-2019/00092) [2020] NAHCMD 235 (18 June 2020); Ardnt v S (CC 27/2019) [2020] NAHCMD 299 (17 July 2020); Heita v S (HC-MD-CRI-APP-CAL-2020/00040) [2020] NAHCMD 311 (23 July 2020)

Criminal Procedure –Bail –Interest of the public or the administration of justice –Appeal against refusal by a magistrate to admit the appellant to bail–The court of appeal should not set aside the decision to refuse bail –Unless the court of appeal is satisfied that the decision of the magistrate is wrong. Gustavo v S (HC-MD-CRI-APP-CAL-2020/00063) [2020] NAHCMD 318 (28 July 2020); Van Wyk v S (HC-MD-CRI-APP-CAL-2020/00076) [2020] NAHCMD 399 (7 September 2020)

Criminal procedure – Evidence – Admissions – Admissibility – Duty on police and court to inform accused of fundamental rights – Accused duly informed of rights when charged – Accused well aware of his rights during court appearance and meaning thereof – Accused understanding his rights and able to make a decision. Evidence – Duty on the cross-examiner to put his defence on every material aspect in dispute to the opposing witness failing which such evidence can be accepted as true. S v Mbemukenga (CC 10/2018) [2020] NAHCMD 3 (16 January 2020)

Criminal Procedure- Admissibility of Recordings-Trial within a trial-Witness instructed by Anti-Corruption Commission to secretly record incriminating conversations-Recordings not disclosed during docket disclosure-Recordings done in violation of Accused Rights to fair trial-Privacy and Equality- Inadmissible- Prejudice of late disclosure curable. S v Mbok (CC 4/2011) [2020] NAHCMD 263 (15 June 2020)

Criminal law – Evidence – failure to call a witness – adverse inference not always drawn but subject to the circumstances of each case. Mutually destructive versions – only one version correct – location of damages herein points to improbability of version of the plaintiff. Negligence – motor vehicle accident – Duty of driver when overtaking – motor vehicle ahead driving in zig zag pattern – generally not necessary to give warning to traffic by hooting ahead when overtaking – In casu defendant did not have the luxury of assuming that the other vehicle would remain in its lane – not opportune to pass motor vehicle under these circumstances - reasonable driver would under these circumstances not have overtaken in the manner the defendant did – defendant failed to discharge onus that the plaintiff was the sole cause of the accident and counterclaim dismissed. Limon v Djuulume (HC-MD-CIV-ACT-DEL-2018/03345) [2020] NAHCMD 160 (8 May 2020)

Criminal law - Expert evidence — DNA analysis —sealed rape kit with identifying serial number handed to investigating officer – sealed rape kit handed for Forensic analysis - Chain of handling of samples from collection to analysis found to be properly presented. Summary: The deceased was seen in the company of the accused and another person the evening before her body was discovered. The cause of death was strangulation and there were signs of sexual assault. The husband reported that a black radio and cell phone was stolen. The State led evidence of DNA analysis which shows that the DNA of the accused was found in the vestibule of the deceased. The court rejected the accused’s denial that he was last seen in the company of the deceased as false beyond reasonable doubt and the accused was convicted of murder and having contravened section 2(1)(a) of the Combating of Rape Act, 8 of 2000 – Rape. No evidence was found to prove that the accused was guilty of housebreaking with the intent to steal and theft and robbery with aggravating circumstances. S v Eliaser (CC 04/2015) [2020] NAHCNLD 254 (25 June 2020)

Criminal Procedure – Warning Statements – Admissibility thereof – The right not to incriminate themselves and to apply for a legal aid funded lawyer not recorded on the statements to prove that the rights have been explained to the accused – The mere say so by warrant officer Kombungu not sufficient proof that rights were explained – Warning statements disallowed for not passing the test of a fair trial envisaged in Article 12. The accused in the matter are charged with crimes of high treason, murder, sedition and possession of arms and ammunition. The crimes were perpetrated in the former Caprivi now Zambezi Region during 1999. Various witnesses testified on behalf of the state already but when the investigating officer warrant officer Kombungu gave his evidence, the defence objected to the admissibility of warning statements of certain accused. In view thereof, a trial within a trial was conducted to establish whether to admit or not to admit the warning statements objected to by the defence. During the trial within a trial proceedings, the state led evidence of officer Kombungu and fellow police officers. They were all cross examined by the two defence's counsel. However, none of the accused persons whose warning statements are involved testified. Held: that the warning statements are disallowed no proof that rights not to incriminate themselves and to apply for legal aid explained to the accused. Held further that the mere say so by Kombungu that he explained the rights without recording it, is not sufficient proof that the right to apply for legal aid lawyer was explained. S v Munuma (CC 03/2004) [2020] NAHCMD 11 (21 January 2020)

Criminal Procedure – Single witness evidence – Court to follow cautious approach especially when single witness is an accomplice – To reduce such risk court is to look for corroborating reliable evidence from other witnesses – Single witness stood nothing to gain as the matter against her has been finalised – Furthermore her evidence is corroborated by state witnesses – Court satisfied that evidence of the single witness (also being an accomplice) is the truth and reliable. Criminal Procedure – Evaluation of evidence – Accused’s defence is that of having no knowledge of proceeds of unlawful activities deposited into his bank account – Whether that defence is reasonably true – When considering accused’s version against proved evidence accused had access to information contained in bank statements over a substantial period of time – Accused’s defence not reasonably true. S v Serfontein (CC 07/2019) [2019] NAHCMD 01 (17 January 2020); S v Kauluma (CC 19/2019) [2020] NAHCMD 548 (30 November 2020)

Criminal procedure – Application in terms of section 174 of the Criminal Procedure Act, 51 of 1977 - Discharge of accused at close of State case where there is no evidence supporting the charge – Interpretation of ‘no evidence’ in S v Nakale and S v Teek followed – Credibility plays a limited role at this stage - Whether there is evidence on which a reasonable court acting carefully may convict – Accused’s right against self-incrimination to be protected – circumstantial evidence to be considered at this stage and inferences may be drawn from proven facts which must be consistent with such facts – Application dismissed. S v Strong (CC 16/2019) [2020] NAHCMD 49 (13 February 2020); Elia v S (CC 18/2018) [2020] NAHCMD 214 (8 June 2010); Nuuyoma v S (CC 17/2018) [2020] NAHCMD 277 (30 June 2020)

Criminal Procedure – Guilty Plea – Section 112(1)(a) of the Criminal Procedure Act as amended – Increase in the monetary limit to fine not exceeding N$ 6 000.00 did not alter the basic principle that the section is reserved for minor offenses – A lengthy term of imprisonment term irreconcilable with nature of the provision. The accused was charged with a traffic violation. He pleaded guilty at his first appearance at court and was convicted under section 112(1)(a) of the Criminal Procedure Act as amended. In sentencing the court treated the matter as a serious offense and imposed a fine of N$ 3000.00 or 12 months imprisonment. Held – It is implicit in section 112(1)(a) of the CPA that the sentence to be imposed must be commensurate to a minor offence. Therefore a lengthy imprisonment term, even as an alternative to a fine, is irreconcilable with the nature of the provision. Held – It is prudent that magistrates do not accelerate into section 112(1)(a) of the Criminal Procedure Act as amended without considering whether it is sensible in the particular circumstances of the case. Held – On review the sentence was set aside and replaced with a fine of N$ 3000.00 or 3 months imprisonment. S v Zauisomwe (CR 10/2020 [2020] NAHCMD 44 (11 February 2020)

Criminal Procedure – Application for a postponement by the State – State must lay a proper basis for the application – Giving reasons from the bar or lead evidence in support of thereof – It is not for the mere asking. S v Bashala (CC 30/2020) [2020] NAHCMD 39 (04 February 2020).

Criminal Procedure – Trial-within-a-trial – Confessions – Admissibility of confession – Accused persons alleging their right against self-incrimination and to apply for legal aid not satisfactorily explained – thereby infringing their right to a fair trial in terms of Art 12(1)(a) read with Art 12(1)(f) of the Constitution of Namibia. S v Munuma (CC 03/2004) [2020] NAHCMD 90 (12 March 2020)

Criminal procedure – Trial-within-a-trial – Admissibility of bank records – Court to determine whether Notices (Summons) issued by the Director-General of the Anti-Corruption Commission under did not comply with section 18(3) and 20(2) of the Anti-Corruption Commission Act, 2003, whether Notice (Summons) were unintelligible and whether section 27 was applicable instead. Trial-within-a-trial to determine admissibility of notices or summons as State evidence. Held: section 18(3) and 20(2) require that before summons is issued there should be an investigation in progress, which investigation was factually in progress. Held: it was reasonable in the circumstances to specify the various types of accounts kept by those entities at the bank. Held: that the notices (Summons) fall squarely within the ambit of section 26(1)(c) and (d). Held: that the objections raised by the defence counsel stand to be rejected. S v Nuuyoma (CC 17/2018) [2020] NAHCMD 62 (31 January 2020)

Criminal Procedure – Trial-within-a-trial - Pointing out – State carries the burden of proving that such pointing out are made freely and voluntarily – Not induced by threats or promise by any person or authority – Without having been induced by threats or promise by any person or authority – An accused’s freedom of will should not be extinguished. Summary: The charges preferred against the accused are that of murder and attempted murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003. In that between the 31 December 2018 and 01 January 2019 at Maltahohe, the accused killed Elizabeth Swartbooi an adult female, the deceased. Secondly on the same dates and place, the accused attempted to kill his 3 week old baby boy, Rivaldo Reville Swartbooi, by causing him to fall on the ground on his head with intent to murder him. The charges are denied. S v Abraham (CC 24/2019) [2020] NAHCMD 332 (6 August 2020)

Criminal procedure – Inquiry in terms of s 77 and 78 of the Criminal Procedure Act 51 of 1977 – Findings made by the psychiatrists disputed – Psychiatrists testified in terms of s 77(3) – Court found the testimonies of the witness as credible-No evidence before court that the accused cannot stand trial –Psychiatrists report upheld- Inquiry dismissed. Summary: This is an enquiry into the accused’s mental state, following the defence’s challenge to the findings of the State psychiatrist report after observation. The court is satisfied that the report dated 30 September 2017, covered and contained the essential details; it was a reflection of the unanimous decision of the constituted panel of professionals thus it is reliable and persuasive. The court held that; the accused can stand trial as the disorder as indicated in the report does not impact his ability to follow the proceedings and thus at the time of the enquiry and acts committed in terms of section 78 he was mentally stable which makes him capable of appreciating the wrongfulness of his actions. S v Nandjembo (CC 8/2018) [2020] NAHCNLD 107 (17 August 2020)

Criminal Procedure: Evidence – Charged with murder and Contravening section 2(1) (a) as read with sections 1, 2(1), 2(2), 2(3) 3, 4, 5, and 7 of the Combating of Rape Act, 2000 (Act 8 of 2000).―Accused pleaded guilty to both counts ― Convicted of murder --A plea of not guilty entered on count two ―Single witness evidence clear and satisfactory—Supported by medical evidence of bruise or inflammation ―Accused version improbable and not possibly true–Court satisfied that the State proved its cases beyond reasonable doubt – Accused guilty of rape. S v Paulus (CC 3/2019) [2020] NAHCNLD 108 (17 August 2020)

Criminal Procedure - Evidence - Witnesses - Young children - Approach to be adopted - Court must be extra cautious - Reason - Inherent danger and risks in accepting such uncorroborated evidence of a single child witness - Criminal Procedure - Deviation from statement made to the police - between other witnesses and contradictions between the versions of same witness - Approach - Court must determine what was meant by witness on each occasion - Court must take recognizance that not every error by witness - Not every contradiction or deviation affects credibility - Contradictions and discrepancies to be considered and evaluated on a holistic basis - Court to decide whether evidence is trustworthy despite shortcomings and defects - Whether it is satisfied that the truth has been told - Court found that - Victim's evidence not sufficiently credible and reliable to secure a conviction. Criminal Procedure - Charge - Formulation of charges - Accused persons charged with several offences which are identical - Alleged to have been committed during 2016 - Witness cannot link a particular accused to a particular offence - Solution to this problem - State should have charged them in terms of s 94 of the Criminal Procedure Act - Various offences to be joined in one charge committed on diverse occasions. S v Sikongo (CC 19/2018) [2020] NAHCMD 65 (26 February 2020)

Criminal Procedure – Test – Section 164 - Criminal Procedure Act 51 of 1977 – Court to establish whether witness understands import of the oath or not – Court then to admonish witness by enquiring whether witness capable of distinguishing between the truth and falsehood – Where no enquiry made proceedings irregular and evidence of witness inadmissible. Criminal Procedure – Test – Section 164 of Criminal Procedure Act 51 of 1977 – Magistrate enquired from witness whether she knew difference between truths and falsehood by use of colours – Test not satisfactory but not fatal – Witness 13 years of age. Criminal Procedure – Test – Section 164 of Criminal Procedure Act 51 of 1977 – Practical method of establishing competency in very young children is to make use of pictures – Through use of pictures child required to distinguish between what is right and wrong answer to picture shown – Secondly to distinguish between which one of persons in picture is telling the truth and who is lying – No rule of thumb test as to which method is right and should be employed – Provided method used must satisfy requisites of s 164 of CPA. Criminal Procedure – Complainant unable to identity person who raped her – Magistrate proposing identification parade in open court – Such procedure improper – However proposed identification parade abandoned – Conduct of magistrate not affecting evidence of complainant. Criminal Procedure – Assessment of single witness evidence – Medical evidence corroborates complainant’s evidence on sexual act committed with her – Appellant admitted being in company of complainant at relevant time – Trial court correctly found that evidence of single witness was satisfactory and reliable – Appeal court not to interfere with finding. Criminal Procedure – Sentence – Coercive circumstance – Charge setting out that coercive circumstance present because of physical violence as provided by s 2(a) of Act 8 of 2000 – Charge not setting out that state also relies on the coercive circumstance as provided by section 2(d) of Act 8 of 2000 which relates to case where complainant under age of fourteen years and perpetrator is more than three years – Appellant contends state failed to prove assault perpetrated and age of complainant – Therefore no coercive circumstance – Evidence proved complainant’s age under fourteen years and perpetrator three years older than complainant – Section 88 of the Criminal Procedure Act applicable – Defective charge cured by evidence. Criminal Procedure – Sentence – Substantial and compelling circumstances – Court required to consider all circumstances and exercise discretion judiciously – Failure – Constitutes misdirection. Criminal Procedure – Sentence – Combating of Rape Act 8 of 2000 – Prescribed sentence – Suspension of – Where no substantial and compelling circumstances exist – Section 297(4) of Criminal Procedure Act 51 of 1977 only applicable in respect of sentence in excess of prescribed sentence. Van Rooyen v S (HC-MD-CRI-APP-CAL-2019/00107) [2020] NAHCMD 180 (18 May 2020)

Criminal Procedure - Right to legal representation - Includes entitlement to legal aid − must be explained to unrepresented accused person, especially uneducated and unsophisticated accused persons in such a manner that an accused person is placed in a position to make an informed decision. Accused person must also be informed how to exercise such right or entitlement. Explanation of rights never a mere formality – Explanation must be supplemented to do justice to accused person – Accused must understand and appreciate the explanation and his rights. Failure to properly explain rights – Irregularity which may vitiate the proceedings. The right to remain silent has application at different stages of a Criminal Prosecution – If there is evidence calling for an answer and an accused person chooses to remain silent in the face of such evidence – Entitled Court to conclude that the evidence is sufficient in the absence of any other evidence. S v Abraham (CC 24/2019) [2020] NAHCMD 233 (18 June 2020)

Criminal Procedure ― Evidence ― Failure by accused to testify–Accused not under obligation to testify in his defence–State led direct evidence incriminating accused- Not appropriate case for accused to safely opt to exercise his right to remain silent—State evidence calling for an answer ―Failure to answer in the face of the weight of uncontradicted evidence ― Court safely concluded evidence was sufficient warranting conviction. S v Uusiku (CC 9/2019) [2020] NAHCNLD 61 (5 June 2020)

Criminal Procedure – Sentence― Double Murder–Accused 65 year old first offender –has been in custody for four years awaiting trial – Apology offered not genuine – Accused not accepting consequences of his actions – Not remorseful.

Nature of offences – Serious offences – Prevalent – One count committed in a domestic setting and pre-meditated – Aggravating factors―Accused grabbing and pulling deceased from the shebeen and kicking her – Stabbing a heavily pregnant deceased nine times with a knife –Accused had time to reflect―Stabbed Taapopi once in the chest in the process of intervening – Deterrent and retribution sentence called for. Interest of society – Court not to over emphasize certain interest at the expense of the other – Balance to be struck between the interests of the accused and those of the society― Having considered both interests – Court finding that interest of society outweighs personal interest of accused – Accused found a danger to society – Greater need of removing him from society. S v David (CC 11/2018) [2020] NAHCNLD 82 (6 July 2020)

Criminal Procedure ̶ Sentence – Accused convicted of assault with intent to do grievous bodily harm and murder read with the Combating of Domestic Violence Act, Act 4 of 2003 – Factors to be taken account--Offences now serious and prevalent in Namibia—Society expects Courts to protect the most vulnerable within the community —Guilty plea ̶ First offender – Considerable weight should be given to a plea of guilty ̶ Weight to be accorded not considered in isolation ̶ Assessed in light of circumstances of case and all other factors. S v Iipinge (CC 11/2017) [2020] NAHCNLD 95 (27 July 2020)

Criminal Procedure – Sentence – Murder with dolus directus – Accused killed two people under different circumstances within 24 hours –– Murder gruesomely perpetrated against one deceased while the other deceased was a helpless woman who attempted to flee the attack – Society calls for severe sentences – Accused deserved to be uprooted from society – Accused sentenced to double life sentences on 2 counts of murder - Housebreaking with intent to steal and theft – Accused broke a padlock, entered the house and stole matches and tobacco – Offence invading another’s privacy and calling for custodial sentence - Accused sentenced to 1 year’ imprisonment. S v Kashonga (CC 05/2020) [2020] NAHCMD 293 (16 July 2020)

Criminal Procedure – Trial – Evidence – of a single witness – Court must be satisfied that the testimony was satisfactory and truthful – Court accepting complainants’ evidence as true. Evidence – witnesses giving mutually destructive versions – court should apply its mind on merits, demerits and probabilities of case. Evidence – Alibi – accused does not bear the burden of proof when raising the burden of proof when raising an alibi defence – Court required to assess alibi in the same way as any other defence – Court must decide whether it is reasonably possibly true or whether it should be rejected as false beyond a reasonable doubt. S v Koper (CC 6/2019) [2020] NAHCMD 312 (24 July 2020)

Criminal law and Procedure – Rape –single witness evidence to be treated with caution but common sense must prevail - two mutually conflicting versions – the most probable version to be accepted - medical evidence corroborates rape having occurred – duplication - accused guilty on counts one, two and three. S v Ndovai (CC 10/2019) [2020] NAHCNLD 134 (15 September 2020)

Criminal Law and Procedure - Evidence – Rape – Single witness evidence to be treated with caution – Court should weigh evidence, consider its merits, demerits and decide whether it is trustworthy – Despite contradictions and shortcomings in the testimonies. Mutually destructive versions – Proper approach – Court to apply its mind to merits, demerits of State, defence witnesses’ evidence and probabilities of case – Court not to isolate each piece of evidence – Court to look at evidence holistically and to consider whether defence’s case has a reasonable possibility of being substantially true – Evidence in its totality supported by inherent probabilities proves that accused persons raped complainant. Accused distancing himself from reply to pre-trial memorandum – No rule that accused be bound by admissions he made in reply to pre-trial memorandum – Each case to be treated on own merits – Once accused placed his case in hands of his legal representative – Legal representative takes over case – Accused cannot distance himself from conduct of his case. S v Balzer (CC 14/2019) [2020] NAHCMD 514 (12 November 2020)

Criminal Procedure – Sentence – murder and rape – gender based violence – not only grievous bodily harm but murdered the complainant – prescribed minimum sentence – 15 years’ imprisonment - no compelling and substantial circumstances - lengthy custodial sentence for murder – mindful of the cumulative effect and requirement not to impose a sentence which would be considered as an inordinately lengthy term of imprisonment as envisioned in S v Gaingob and Others 2018 (1) NR 211 (SC). S v Eliaser (CC 4-2015) [2020] NAHCNLD 126 (8 September 2020)

Criminal Procedure – Application for request of letter to Permanent Secretary – Section 2(1) of International Co-operation in Criminal Matters Act – Act 9 of 2000 – Application brought on notice in terms of s 65(1) of the rules of court – Application accompanied by an affidavit deposed to by the prosecutor in the matter – Letter of request is tantamount to continuous investigations of the matter during the trial – The prosecutor claiming ignorance of existence of the Act and an excuse of not being a prosecutor at the start of the trial – Ignorance of the law not an excuse – The prosecutor as a qualified lawyer is presumed to know the law or at least where to find it. S v Munuma (CC 03/2004) [2020] NAHCMD 428 (22 September 2020)

Criminal Procedure - Mental state of accused- Application for referral in terms of provisions of sections 77, 78 and 79 of the Criminal Procedure Act 51 of 1977 – Factual or medical basis required before referral - Mere submissions from the bar not satisfactory – Epilepsy not a mental illness per se. The accused is indicted for housebreaking with intent to murder and murder read with the provisions of the Combating of Domestic violence Act, Act 4 of 2003 and a second count of attempted murder. The pre-trial proceeding are finalized and the case was set down to fix a trial date. The accused however, applied to be referred for mental observation. No evidence was presented to lay a basis for such referral. It was submitted that the accused suffers from epilepsy as a result of being hit with a stick on the head. Counsel wants to establish the severity of the injury. This court found that the application is premature as there is no basis for a referral. Epilepsy is not a mental illness. S v Samuel (CC 3/2020) [2020] NAHCNLD 140 (28 September 2020);

Criminal Procedure – Grounds of appeal – Appeal against sentence – Appellant submitting arguments on conviction – Improper – Not clear and specific – Court of appeal should not tolerate lethargically drafted grounds of appeal – Rule 67(1) of the Magistrate’s Court Rules peremptory. Criminal Procedure – Appeal – Sentence – Appellate court slow to interfere on appeal – Partially succeeding – Sentence largely appropriate in circumstances – Deterrence and Retribution – No misdirection committed by court a quo on sentences passed individually – Cumulative effect of sentences harsh in circumstances. Shikongo v S (HC-MD-CRI-APP-CAL 2020/00013) [2020] NAHCMD 407 (11 September 2020)

Criminal Procedure- Evidence-- Accused not under obligation to testify in his defence – Failure by accused to testify – Not appropriate case for accused to safely opt to exercise his right to remain silent – Incriminating State evidence – Evidence calling for an answer – Failure to answer in the face of the weight of uncontradicted evidence not without consequences – Court safely conclude that such evidence conclusive to warrant conviction. Criminal law–Intention - Assault with intent to do grievous bodily– Determination of – Court considered conduct of the accused, the nature of the weapon used together with the position on the body where the injuries were directed to determine intention to do grievous bodily harm. S v Uupindi (CC 11/2019) [2020] NAHCNLD 150 (14 October 2020);

Criminal Procedure – Bail – Applicant charged with serious offences – Applicant has a duty to prove on a balance of probabilities that the he should be granted bail pending trail and that the interests of justice will not be prejudiced thereby – Applicant should take the court into his confidence and explain allegations to the best of his abilities – Applicant raised the defence of an alibi which is contradicted by the evidence led by the state – Circumstantial evidence against the applicant demonstrates the strength of the state’s case – Prima facie evidence by the state demonstrates that there is a real possibility that the applicant may be convicted on the charge of murder – The possibility of the conviction and severe sentence increases the risk of abscondment – Interest of the administration of justice and the public in this case requires the applicant be detained in custody while awaiting trial. Applicant failed to satisfy the court that he should be granted bail – Application dismissed. Townsend v S (CC 19/2013) [2020] NAHCMD 457 (6 October 2020)

Criminal Procedure Bail – New Facts – Trial at advanced stage - Investigation completed and interference no longer in issue – Court reiterate approach in considering whether there are new facts be considered against the background of the old facts – Notwithstanding new facts – Court not satisfied that new facts considered together with evidence tendered in initial bail hearing warrant bail to be granted. Kakurarume v S (CC 6/2014) [2020] NAHCMD 532 (19 November 2020)

Criminal Procedure ‒ Evidence ‒ Doctrine of common purpose ‒ Circumstantial evidence ‒ Inferences to be drawn from proved facts. Two accused persons are charged with murder, rape, robbery and defeating or obstructing the course of justice. The evidence is primarily based on circumstantial evidence and extra-curial admissions made by accused 2. The State charges both accused together on the basis of the doctrine of common purpose. The court finds that the elements of the doctrine of common purpose have not been established in respect of accused 1. Accused 1 is acquitted on all counts. Accused 2 is found guilty. S v Narimab (CC 12/2015) [2020] NAHCMD 523 (16 November 2020)

Criminal Law

Criminal law: Rape of an under aged girl followed by suffocating her to death. Her dead body sexually violated, murder dolus directus. On another count the accused broke into a house wherein a lady was sleeping and sexually assaulted her – custodial sentence inevitable. After sexually assaulting the deceased the accused took her to a half-built brick house where he firmly held her mouth and nose, inhibiting the flow of air. He firmly continued to hold her like that until she passed on. The accused then placed the deceased on her knees fully exposing her private parts. He then proceeded to sexually violate the deceased’s body and dislocated the neck in the process. Held: The deceased was gruesomely murdered, and her body violated. S v De Klerk (CC 06/2016) [2020] NAHCMD 36 (04 February 2020)

Criminal law – Murder - Robbery with aggravating circumstances and attempted robbery with aggravating circumstances - Circumstantial Evidence must not be assessed in piece-meal but should be considered in its totality – The behaviour of an accused after the incident can reveal his intention - Running away from the scene without ascertaining if the person in whose direction the firearm was pointing when it went off during a struggle sustained injuries or not can signal a guilt mind. S v Katanga (CC 23/2018) [2019] NAHCMD 21 (23 January 2020)

Criminal law - Murder committed in a domestic setting. The victim was stabbed several times as a result of which she was certified dead at the hospital. A custodial sentence inevitable. On the day of the incident the accused visited the deceased during the day. He came back at night and fatally stabbed her several times with a knife after she had refused to go with him to his residence. Held: Crime, serious, and was committed for flimsy reasons. S v Rooi (CC 21/2017) [2020] NAHCMD 46 (14 February 2020)

Criminal Law – Accused charge with 31 counts of fraud – Accused’s involvement commenced after proceeds of unlawful activities deposited into his bank account – Misrepresentation to complainant made by another and not accused – Accused cannot be charged with fraud neither alternative count of theft by false pretence – Theft a continuing crime – Conviction on second alternative count of theft proper in the circumstance. Criminal Law – Accused charged with one count of contravening s 6(a), (b) and (c) of the Prevention of Organised Crime Act 29 of 2004 (POCA) – Particulars of charge also incorporating elements of fraud patched together with the provisions of sections 4, 5 and 6 of POCA – The provisions of different sections under POCA cannot be intertwined – State to decide which offence to charge accused for – State subsequently amended charge to a contravention of s 4(b)(i) of the Act. S v Serfontein (CC 07/2019) [2019] NAHCMD 01 (17 January 2020)

Criminal Law –Accused charged with murder read with the provisions of the Combating of Domestic violence Act 2003 - Accused pleaded not guilty - No plea explanation – Witnesses saw how the accused bashed the head of the three times against the floor-Medical evidence corroborated the evidence that the head was bashed three times-State proved beyond reasonable doubt the guilt of the accused convicted of murder with direct intent. S v Dawid (CC 09/2017) [2020] NAHCMD 442 (24 September 2020)

Criminal law – Murder – Self-defence – Requirements for self-defence – Not acted in self-defence – accused aggressor – Direct intent. Criminal Law Murder – Mens rea – Intention – Type of intention – Determination of – Court to consider nature of weapon used, position on body where injury inflicted and force used. The court reiterated that, in order for an accused to succeed with self-defence, the following requirements must be met: (a) The attack must be unlawful; (b) the attack must be directed at an interest legally deserving of protection; and (c) the attack must be imminent but not yet completed. Intention is a state of mind which can be inferred from the circumstances of each case. In determining the type of mens rea in a murder case, the court will have to look at the nature of the weapon used together with the position on the body where the injury was directed and the force used. The accused did not act in self-defence. S v Epamba (CC 11/2016) [2020] NAHCNLD 34 (28 February 2020); S v Sakeus (CC 13/2016) [2020] NAHCNLD 55 (14 May 2020)

Criminal law – Accused was convicted of the crime of assault read with the provisions of the Domestic Violence Act, Act 4 of 2003 - Section 297 of the Criminal Procedure Act, Act 51 of 1977 provides that a sentence imposed may be suspended in whole or in part for a period not exceeding five years. The accused was convicted of the crime of assault read with the provisions of the Domestic Violence Act, Act 4 of 2003. Accused admitted to two previous conviction of similar offence. Held: The sentence imposed is deficient in some respects, and is not in accordance with the law and for that reason, stands to be corrected. Held: Section 297 of the Criminal Procedure Act, Act 51 of 1977, provides that a sentence imposed may be suspended in whole or in part for a period not exceeding five years. Held: The conviction is confirmed and the sentence is set aside. Held: The accused is fined N$6 500 or 29 months’ imprisonment of which the amount of N$1 000 or 18 months’ imprisonment is suspended for a period of 5 years on condition the accused is not convicted of assault, assault with the intention to do grievous bodily harm or attempted murder, committed during the period of suspension. S v Frederick (CR 108/2019) [2019] NAHCMD 4 (20 January 2020)

Criminal law – murder - alibi – no duty on the accused to proof alibi – part of alibi not confirmed – testimony in this regard found not credible. Evidence – identification/recognition of voice – witness recognized voice of accused as it is well known to him – manner in which the witness was addressed given the relationship between the parties - Criminal Procedure – ramifications of failing to cross- examine witness relating bias adverse to the accused - Criminal law – robbery with aggravating circumstances – force or injuries not inflicted with the intent to steal but to dispose of item – not guilty of robbery with aggravating circumstances. S v Nailenge (CC 02/2015) [2020] NAHCNLD 36 (04 March 2020)

Criminal law – Murder – Mens rea - Common purpose – Not necessary to prove causal link between act of accused and death of deceased – Accused acting in concert – Where court cannot determine whether each accused contributed causally to deceased's death – Such accused can still be guilty of murder on basis of common purpose – However certain prerequisites must be met: a) They must have been present at the scene where the violence was being committed; b) He must have been aware of the assault on the victim; c) He must have intended to make common cause with those who were actually perpetrating the assault; d) He must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others; e) the requisite mens rea; i.e., in respect of the killing of the deceased, he must have intended him/her to be killed, or he must have foreseen the possibility of he/she being killed and performed his own act of association with recklessness as to whether or not death was to ensue – Kidnapping – Unlawful deprivation of one’s liberty of movement – Lawful arrest – Intention to deprive one’s liberty to be proven – Defeating or obstructing to the course of justice or attempt to do so – What constitutes. The accused persons are jointly charged with the crime of murder, obstructing the course of justice or attempting to do so as well as kidnapping. Each accused pleaded not guilty to the charges preferred. After the trial, each accused was found guilty and convicted on the charge of murder with dolus eventualis on the first count as well as on the charge of attempting to obstruct the course of justice. Each accused was however acquitted on a charge of kidnapping. S v Shetekela (CC 10/2014) [2019] NAHCMD 106 (19 March 2020).

Criminal law - Interpretation of statute – Whether Act 9 of 2003, s 34 is applicable only before the accused pleaded to the charge. Accused was charged with a contravention of section 39(1) of Act 9 of 2003 and failed to comply with a court order directing him to pay maintenance in respect of his two minor children. The magistrate acceded to prosecutor’s request to convert the proceedings into section 34 inquiry. The question for review is whether section 34 inquiries of Act 9 of 2003 is applicable before the accused pleaded to the charge, which was answered in the negative by the review court. S v Hendricks [2020] NAHCMD CR 19/2020 114 (25 March 2020)

Criminal law - Disclosure of the Investigation Diary - S v Kennedy (CC 1/2018) [2020] NAHCMD 377 (25 August 2020)

Criminal Law – Murder - Leave to Appeal – Acquittal – Self-defence – Requirements restated - Another Court may not come to different conclusion – No prospects of success. Summary: The respondent was acquitted on a charge of murder. He acted in self-defence. The applicant filed an application for leave to appeal. The requirement for self-defence are restated. There are no prospect that another court may come to a different conclusion and no prospects of success on appeal. S v Johannes (HC-NLD-CRI-APP-SLA-2019/00079) [2020] NAHCNLD 50 (07 May 2020)

Criminal law – Competent verdict – Section 262(2) of CPA - Accused charged with the offense of housebreaking with intent to commit a crime unknown to the State – Accused’s intent when entering, disclosed during the trial, or admitted - Accused convicted of housebreaking with the intent proven or admitted. Suspended sentence - Condition of suspended sentence too wide. - Requirement that suspended sentence must be clear and unambiguous - Accused must know precisely what prohibited act will attract the risk of the suspended sentence being put into operation. S v Khaebeb (CR 28/2020) [2020] NAHCMD 150 (7 May 2020)

Criminal Law – Murder – Requirements – (a) Accused must be aware of circumstances which made his act correspond to definitional elements and rendered it unlawful – (b) Accused must be capable of acting in accordance with his insight into right and wrong. He must have criminal capacity at the time of the commission of the offence – (c) He must have willed the commission of the act constituting a crime. Intention – State of mind – Subjective test to be applied – Approach to be followed holistic one – In absence of accused admitting intention to kill – An inference must be drawn from evidence relating to accused’s outward conduct at the time of commission of act as well as circumstances surrounding events – Court must consider all circumstances of case before and after commission of act – Including possibility of previous arguments between accused and deceased – Determination for dolus eventualis – Accused acts with intention in form of dolus eventualis if commission of act or causing of unlawful result is not his aim , but: - Subjectively foresees the possibility that in striving towards main aim the unlawful act may be committed or the unlawful result may be caused and – he reconciles himself to this possibility. S v Scott (CC 21/2018) [2020] NAHCMD 154 (7 May 2020); S v Uamunika (CC 3/2018) [2020] NAHCMD 267 (26 May 2020)

Criminal Law - Arson—Alternative charge of Malicious damage to property read with the provisions of Combating of Domestic Violence Act 4 of 2003,--Arson—Alternative charge of Malicious damage to Property-- Kidnapping and Murder—Assault read with the provisions of Combating of Domestic Violence Act 4 of 2003. Criminal Procedure: Mental condition--Report in terms of s 78 of the Criminal Procedure Act 51 of 1977-Procedure ensued not in accordance with - Accused found not guilty due to mental illness -- was incapable of appreciating the wrongfulness of his action and of acting in accordance with an appreciation of his wrongfulness of his act - Accused detained in a psychiatric hospital or prison pending the signification of the State President in terms of section 78 of the Act. S v Lulatelo (CC 10/2016) [2020] NAHCNLD 63 (5 June 2020)

Criminal law – Murder, Robbery with aggravating circumstances – Accused raising an alibi defence and bare denials to allegations linking him to the offences committed – Evidence to be evaluated as a whole and not in isolation – Circumstantial evidence proves that accused was at the scene and committed murder and robbery with aggravating circumstances – The doctrine of recent possession restated – On proven facts, court held that the accused killed the deceased with direct intent – Accused also committed the offence of robbery with aggravating circumstances. S v Mbemukenga (CC 10/2018) [2020] NAHCMD 219 (11 June 2020)

Criminal law – Murder – Attempted murder – Private Defence –Accused indicated that assailant(s) attacked and/or advanced towards him – Evaluation and credibility – Accused version self-contradicting – Contradiction between plea statement, s 220 statement and testimony of accused – State leading direct, credible and corroborative evidence showing that circumstances of private defence did not exist, beyond a reasonable doubt – Private defence rejected – Murder with direct intent proved. Criminal law – Theft – Charge relates to where accused picks up a firearm knowing it may belong to another person – Res Nullius not alleged – Duty to take reasonable steps to ascertain owner and safeguard the firearm rests on the finder of a thing – Accused failing to do so – Accused actions ensuing after taking possession of the firearm assumed and exercised the rights of an owner of the firearm with intent to permanently deprive owner thereof. Criminal law – Pointing of a firearm (c/s 38(1) of Act 7 of 1996) – Accused raised Private Defence – Accused version self-contradicting – Accused conceding that assailants were not advancing towards him and posed no imminent threat at the time but that he merely felt pressurized – Accused version rejected as false. S v Mensah (CC 15/2018) [2020] NAHCMD 236 (19 June 2020)

Criminal law – Murder, Housebreaking with intent to murder and attempted murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003, alternatively housebreaking with intent to murder and assault by threat – Accused raising private defence and stabbing the deceased by mistake on the charge of murder and denials on housebreaking with intent to murder and attempted murder with the alternative – Evidence to be evaluated in totality and all evidence to be accounted for – Requirements of private defence revisited – Lack of intent attributed to a mistake examined – The behaviour of an accused after the event can, in appropriate cases prove intent –– On proven facts, court held that the accused killed the deceased with direct intent – On Housebreaking with intent to murder and attempted murder and the alternative – single witness evidence approached with caution – Witness evidence marred by discrepancies – Court doubtful of the guilt of the accused – Benefit of doubt to be given to accused. S v Levi (CC 22/2019) [2020] NAHCMD 218 (11 June 2020)

Criminal law – Murder, Attempted murder, Assault with intent to do grievous bodily harm, Defeating or obstructing the cause of justice – Accused raising bare denials and an alibi,- to be evaluated together with the totality of evidence – The behaviour of an accused after the event can, in appropriate cases show intent – A party has a duty to put his version to an opposing witness – Approach to evidence of single witness revisited – On proven facts, court entitled to draw inference that accused killed the deceased with direct intent – Competent verdicts – Evidence not clear on defeating or obstructing the cause of justice – Material discrepancies constituting doubt - Where there is doubt on guilt of an accused benefit of doubt to be given to accused. S v Strong (CC 16/2019) [2020] NAHCMD 210 (4 June 2020)

Criminal law – Accused charged with one count of fraud – four counts of theft by conversion – alternatively theft – contravening section 4 (b) (i) – read with sections 11 of the Prevention of Organised Crime Act 29 of 2004 – read with section 94 of the Criminal Procedure Act 51 of 1977 – Fraud not proved beyond a reasonable doubt – accused found not guilty. Accused found guilty on counts 2 to 7. S v Sprangers (CC14/2016) [2020] NAHCMD 410 (11 September 2020)

Criminal Law – Accused charged with a count of murder and a count of rape – Accused admitted to police officers that he strangled the deceased – Accused made a confession to a magistrate that he strangled the deceased – Accused testified that he strangled the deceased but she was alive when he left her – Accused gave conflicting versions of the condition and the position in which he left the deceased – Post-mortem report found that the deceased died of asphyxia due to strangulation – Defence submitted that accused must be convicted of culpable homicide but not murder – Court found that circumstantial evidence shows that the accused murdered the deceased – Found that no evidence was presented before court to prove that the accused raped the deceased – Accused acquitted of rape. Evidence – Circumstantial evidence – Court must be satisfied that the inference sought to be drawn is consistent with all the proved facts; and that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn – Found that the only inference that can be drawn and is consistent with the proved facts is that the accused murdered the deceased – Accused admitted to have strangled the deceased for about three minutes – Accused testified that the deceased was alive when he left her – Post-mortem report shows that the deceased died of asphyxia due to manual strangulation – Post-mortem report shows that the major organs of the deceased were found congested with blood and fluids – Found that the congestion shows that blood did not flow back to the heart from those organs since the strangulation started – That shows that the strangulation continued until the deceased died – Court found that circumstantial evidence shows that the accused murdered the deceased – Court found that no evidence shows that the accused committed rape – Accused acquitted of rape. S v Masuna (CC 11/2019) [2020] NAHCMD 465 (9 October 2020);

Criminal Law – Assault with intent to do grievous bodily harm – Accused in murdering his intended victim, assaulting his victim’s mother who was standing between the accused and the victim – Accused convicted of assault with intent to do grievous bodily harm in respect of his victim’s mother – Accused must have foreseen subjectively the possibility of injuring or assaulting the victim’s mother other than the intended victim – Accused being reckless as to whether he would assault the unintended victim or not. S v Goliath (CC 2/2020) [2020] NAHCMD 542 (26 November 2020)

Criminal law – Intoxication – Defence of non-pathological incapacity – If properly raised constitutes a complete defence – Onus on the State to prove beyond reasonable doubt that the accused had criminal capacity – Deciding whether the State discharged the onus to prove the accused’s overall guilt, requires the court to consider criminal capacity or lack thereof against the background of intoxication – State is assisted by the presumption that every man is presumed to have sufficient mental capacity to be responsible for his crimes – The displacement of the presumption of mental capacity, is an arduous task to attempt to attempt without the assistance of medical evidence. S v Goliath (CC 23/2019) [2020] NAHCMD 545 (26 November 2020)

Criminal Law – Conviction – On 6 counts of contravention of s 15 read with s 1 of the Prevention of Organized Crime Act, 29 of 2004 (POCA) – Trafficking in persons – Trafficking of persons for sexual exploitation read with the United Nations Convention Against Transnational Organised Crime – Minor children sexually exploited in exchange for money – The charges relate to conduct committed on diverse dates whereby transport was paid for by the accused to transport the victims to and from the accused’s house for sexual exploitation – Position of power used over minor children from less privileged backgrounds – Such conduct constitutes an offence of trafficking in persons for sexual exploitation. Six counts of rape of minor girls under coercive circumstances in contravention of s 2(1)(a) of the Combating of Rape Act 8 of 2000 (‘CORA’) read with s 94 of the CPA. S v Pretorius (CC 2/2018) [2020] NAHCMD 507 (6 November 2020)

Criminal law – Murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003—Defence – Lack of intention – Subjective test applied— Evidence assessed cumulatively leans towards State case ― Accused’s intention inferred from circumstantial evidence— Behaviour of accused before, during and after validated intention to murder ― Accused not only intended to discipline and teach the deceased a lesson but acted with intent to murder. S v Siyave (CC 15/2018) [2020] NAHCNLD 168 (26 November 2020)

Criminal law – Murder – Self-defence – Requirements for self-defence – Not acted in self-defence – Accused aggressor – Direct intent. Criminal law Murder — Mens rea — Intention — Type of intention — Determination of — Court to consider nature of weapon used, position on body where injury inflicted and forced used.

Summary: The court reiterated that, in order for an accused to succeed with self-defence, the following requirements must be met: (a) The attack must be unlawful; (b) the attack must be directed at an interest legally deserving of protection; and (c) the attack must be imminent but not yet completed. Held: Intention is a state of mind which can be inferred from the circumstances of each case. In determining the type of mens rea in a murder case, the court will have to look at the nature of the weapon used together with the position on the body where the injury was directed and the force used. The accused did not act in self-defence. S v Garures (CC 08/2014) [2020] NAHCNLD 171 (4 December 2020)

Criminal Review

Against conviction and sentence: S v Emvula (CR 2/2020) [2020] NAHCMD 10 (21 January 2020); S v Jossop (CR 3/2020) [2020] NAHCMD 14 (23 January 2020); S v Peer (CR 4/2020) [2020] NAHCMD 15 (23 January 2020); S v van der Westhuizen (CR 5/2020) [2020] NAHCMD 20 (24 January 2020); S v Romano Botha (CR 8/2020) [2020] NAHCMD 38 (05 February 2020); S v Ervin (CR 09/2020) [2020] NAHCNLD 18 (31 January 2020); S v Festus (CR 07/2020) [2020] NAHCNLD 14 (30 January 2020); S v Jackfres Isaak (CR 7/2020) [2020] NAHCMD 37 (05 February 2020); S v Makuva (CR 1/2020) [2020] NAHCNLD 01 (13 January 2020); S v Michael (CR 03/2020) [2020] NAHCNLD 03 (15 January 2020); S v Mingeli (CR 6/2020) [2020] NAHCNLD 13 (29 January 2020); S v Mupopiwa (CR 2/2020) [2020] NAHCNLD 02 (13 January 2020); S v Negongo (CR 10/2019) [2020] NAHCNLD 19 (4 February 2020); S v Pulavali (CR 08/2020) [2020] NAHCNLD 17 (31 January 2020); S v Swart (CR 01/2019) [2019] NAHCMD 02 (17 January 2020); S v Titus (CR 05/2020) [2020] NAHCNLD 12 (29 January 2020); S v Tjavara (CR 04/2020) [2020] NAHCNLD 08 (17 January 2020); S v Alex (CR 14/2020) [2020] NAHCNLD 23 (10 February 2020); S v Bock (CR 12/2020) [2020] NAHCMD 53 (17 February 2020); S v Gariseb (CR 15/2020) [2020] NAHCNLD 24 (12 February 2020); S v Hanse (CR 15/2020) [2020] NAHCMD 104 (20 March 2020); S v Iyanabu (CR 16/2020) [2020] NAHCNLD 41 (12 March 2020); S v Links (CR 13/2020) [2020] NAHCMD 97 (16 March 2020); S v Gariseb (CR 15/2020) [2020] NAHCNLD 24 (12 February 2020); S v Samuel (CR 12/2020) [2020] NAHCNLD 22 (10 February 2020); S v Tulinyane (CR 13/2020) [2020] NAHCNLD 21 (10 February 2020); S v Valombola (CR 17/2020) [2020] NAHCNLD 43 (19 March 2020); S v Rooi (CR 17/2020) [2020] NAHCMD 113 (25 March 2020); S v Ubiteb and Another (CR 18/2020) [2020] NAHCMD 112 (25 March 2020); S v Mwaala (CR 18/2020) [2020] NAHCNLD 44 (24 March 2020); S v William (CR 14/2020) [2020] NAHCMD 93 (13 March 2020); S v Niiaale (CR 32/2020) [2020] NAHCMD 178 ( 15 May 2020); S v Nailenge (CC 02/2015) [2020] NAHCNLD 58 (18 May 2020); S v Uugwanga (CR 30/2020) [2020] NAHCNLD 64 (8 June 2020); S v Uugwanga (CR 30/2020) [2020] NAHCNLD 64 (8 June 2020); S v Vries (CR 42/2020) [2020] NAHCMD 249 (25 June 2020); S v Bock (CR 44/2020) [2020] NAHCMD 282 (13 July 2020); S v Damaseb (CR 51/2020) [2020] NAHCMD 306 (22 July 2020); S v Nero (CR 47/2020) [2020] NAHCMD 296 (17 July 2020); S v Poppas (CR 48/2020) [2020] NAHCMD 287 (16 July 2020); S v Yusiku (CR49/2020) [2020] NAHCMD 295 (17 July 2020); Hituamata v S (CC 09/2015) [2020] NAHCMD 354 (14 August 2020); S v Richter (CR 56/2020) [2020] NAHCMD 356 (14 August 2020); S v Hamutenya (CR 52/2020) [2020] NAHCMD 336 (6 August 2020); S v Joseph (CR 53/2020) [2020] NAHCMD 347 (12 August 2020); S v Kambonde (CR 43/2020) [2020] NAHCNLD 100 (3 August 2020); S v Katonda (CR55/2020) [2020] NAHCMD 349 (12 August 2020); S v Plaaitjie (CR 58/2020) [2020] NAHCMD 362 (18 August 2020); S v Tjiveze (CR 54/2020) [2020] NAHCMD 348 (12 August 2020); S v Tjiukundi (CR 61/2020) [2020] NAHCMD 381 (28 August 2020); S v Smetley (CR 62/2020) [2020] NAHCMD 382 (31 August 2020); S v Kaulinge (CR 67/2020) [2020] NAHCMD 429 (22 September 2020);S v Haraseb (CR 70/2020) [2020] NAHCMD 430 (22 September 2020); S v Hartzenberg (CR 72/2020) [2020] NAHCMD 441 (25 September 2020);S v Iipinge (CR 52/2020) [2020] NAHCNLD 131 (16 September 2020); S v Meintjies (CR 73/2020) [2020] NAHCMD 444 (28 September 2020);S v Moises (CR 65/2020) [2020] NAHCMD 413 (14 September 2020);S v Pieters (CR 63/2020) [2020] NAHCMD 386 (25 August 2020); S v Rooi (CR 69/2020) [2020] NAHCMD 421 (18 September 2020); S v Negumbo (CR 54/2020) [2020] NAHCNLD 142 (6 October 2020); S v Iikande (CR 53/2020) [2020] NAHCNLD 143 (9 October 2020); S v Immanuel (CR 56/2020) [2020] NAHCNLD 145 (9 October 2020); S v Jossop (CR 80/2020) [2020] NAHCMD 479 (21 October 2020); S v Shipapo (CR 84/2020) [2020] NAHCMD 486 (23 October 2020); S v Aibeb (CR 104/2020) [2020] NAHCMD 569 (7 December 2020); S v Angula (CR 99/2020) [2020] NAHCMD 563 (07 December 2020)

Criminal Procedure – Special Review in terms of s 304(4) of the Criminal Procedure Act 51 of 1997 – Accused having pleaded not guilty to the charges and making formal admissions in terms of s 220 of the Criminal Procedure Act − After which the prosecutor brought an application for the matter to be withdrawn in terms of s 6(a) of the Criminal Procedure Act – Court realising that the accused had already pleaded to the charge, and as such was entitled to a verdict. S v Saal (CR 6/2020) [2020] NAHCMD 19 (24 January 2020); S v Magous (CR 74/2020) [2020] NAHCMD 454 (2 October 2020)

Criminal Procedure – Review – Plea – Section 112 (1) (b) of Act 51 of 1977 questioning – Offence – Assault with intent to do grievous bodily harm – Accused not questioned of his intention – Court convicted accused after drawing inferences from accused’s answers – Questioning which amounts to a replication of what appears in the charge sheet fell short of the standard required – Same should be discouraged at all cost – Court should be satisfied that accused answers establish unequivocal plea of guilty to the offence charged. S v Petrus (CR 11/2020) [2020] NAHCNLD 25 (13 February 2020)

Criminal Procedure – Review – Wrong accused person reflected on review sheet – Sentence vague - Sentence not corresponding with record of proceedings – Conviction and sentence confirmed but the formulation of sentence amended to read properly. The Accused persons were convicted of hunting of huntable game in contravention of section 30(1) (a) of Ordinance 4 of 1975 as amended. They were both sentenced to a fine of N$2 000 or in default of payment 12 months’ imprisonment, of which N$1 000 or 6 months’ imprisonment are suspended for a period of of 3 (Three) years, on certain conditions, committed during the period of suspension. A co-accused whose trial was separated from the matter was wrongly reflected in the review cover sheet. The sentence is vague. There is disparity between the review cover sheet and the record of proceedings. Sentence confirmed but amended to read properly. S v Andrew (CR 11/2020) [2020] NAHCMD 52 (17 February 2020)

Criminal Procedure ― Review ― Section 302 (1) Record ― Submitted without proofread ― Presiding magistrate no longer available ― Another magistrate reflected amendments or alterations he proposed- Procedure implored wrong in law-Correct procedure discussed and reiterated ― Magistrate and clerk of court should take proper care when preparing records for review – Magistrate has final and ultimate responsibility ― Errors could have been detected and corrected. These two cases are review matters in terms of s 302 (1) of the Criminal Procedure Act 51 of 1977 (the CPA). In both of the cases the proceedings appear to be in accordance with justice. However they were submitted for review without being proof-read. Errors could have been detected and corrected at the onset before the records are submitted if proof reading was done. The magistrate who presided over this matter is no longer in service. The original record is amended / tampered with to reflect the alterations in the conviction and sentence proposed by him. The procedure implored was wrong and amounts to tampering with the record. Presiding officer has no power to tamper or amend the record without the High court order. S v Kauhanda; S v Kapawe (CR 22/2020) [2020] NAHCNLD 48 (22 April 2020); S v #Gaeseb (CR 68/2020) [2020] NAHCMD 419 (18 September 2020); S v Muhepa (CR 87/2020) [2020] NAHCMD 497 (30 October 2020); S v Simasiku (CR 88/2020) [2020] NAHCMD 503 (4 November 2020);S v Nankero (CR 89/2020) [2020] NAHCMD 505 (4 November 2020); S v Chipupu (CR 90/2020) [2020] NAHCMD 512 (9 November 2020);S v Hausiku (CR 85/2020) [2020] NAHCMD 499 (2 November 2020);S v Isaacks (CR 93/2020) [2020] NAHCMD 533 (19 November 2020);S v Kharuxas (CR 94/2020) [2020] NAHCMD 534 (19 November 2020); S v Mundindi (CR 92/2020) [2020] NAHCMD 515 (12 November 2020);S v Muningandu (CR 96/2020) [2020] NAHCMD 539 (24 November 2020);S v Sindimba (CR 86/2020) [2020] NAHCMD 492 (2 November 2020); S v Cloete (CR 105/2020) [2020] NAHCMD 570 (7 December 2020); S v Erombu (CR 114/2020) [2020] NAHCMD 594 (9 December 2020); S v Masarure (CR 100/2020) [2020] NAHCMD 564 (7 December 2020); S v Mubita (CR 98/2020) [2020] NAHCMD 556 (3 December 2020); S v Ndara (CR 103/2020) [2020] NAHCMD 567 (7 December 2020); S v Pietersen (CR 110/2020) [2020] NAHCMD 578 (8 December 2020); S v Pohomba (CR 108/2020) [2020] NAHCMD 576 (8 December 2020); S v Poppas (CR 106/2020) [2020] NAHCMD 580 (8 December 2020); S v Siminga (CR 112/2020) [2020] NAHCMD 588 (9 December 2020); S v Thinyemba (CR 111/2020) [2020] NAHCMD 582 (8 December 2020); S v Shikeni (CR 113 /2020) [2020] NAHCMD 592 (9 December 2020); S v Madema (CR 20/2020) [2020] NAHCMD 118 (27 March 2020); S v Shumbu (CR 95/2020) [2020] NAHCMD 537 (23 November 2020)

Criminal Procedure ― Review - The accused was charged with the wrong section of the Immigration Control Act, Act 7 of 1993 (the Act) – Remaining in Namibia after expiration of visitors permit to wit contravening section 29(1) read with sections 1 and 8 of the said Act. Held that the relevant section is section 29(5) of the Act. Held that the conviction of contravening section 29(1) read with sections 1 and 8 of the Immigration Control Act, Act 7 of 1993 is set aside; Held that the conviction is substituted with a contravention of section 29(5) read with sections 1, 8, 29(1), 29(2), 29(3) and 29(4) of the Immigration Control Act, Act 7 of 1993 – Remaining in Namibia after expiration of visitors entry permit; Held that the sentence of N$6000 or default of payment 18 months imprisonment is confirmed. S v Nyere (CR 20/2020) [2020] NAHCNLD 46 (20 April 2020)

Criminal Procedure ― Review - The accused was convicted for attempted murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 after she dumped her new born baby in a latrine pit. Fortunately the baby was discovered alive and saved by the police after community members reported the incident to the police. Held that this court has on numerous occasions in the past directed that it is imperative that the phrase ‘committed during the period of suspension’ must be included when sentences are suspended. It is an imperative condition otherwise the sentence is incomplete. S v Paula (CR 19/2020) [2020] NAHCNLD 45 (20 April 2020); S v Siua (CR 21/2020) [2020] NAHCNLD 47 (20 April 2020); S v Mbwainga (CR 33/2020) [2020] NAHCMD 198 (28 May 2020); S v Boicky (CR 34/2020) [2020] NAHCNLD 71 (22 June 2020)

Criminal Procedure ― Review - This matter is submitted for review in terms of s 302 of the Criminal Procedure Act 51 of 1977. The accused was charged with two counts of contravening s 2(a) of Act 41 of 1971. In count 1, the accused was charged with possession of 6 full mandrax tablets containing methaqulone with a value of N$ 600 while in count 2, he was charged with possession of 27 bankers of cannabis weighing 350 grams valued at N$ 350. Held that it is a duplication of convictions to convict an accused person for possession of mandrax containing methaqualone and possession of cannabis as two separate counts if committed at the same time. S v Van Wyk (CR 27/2020) [2020] NAHCMD 174 (11 May 2020)

Criminal law – Review- Accused was charged and convicted on two separate charges of a contravention of Section 2(b) of Act 41 of 1971, namely possession of prohibited dependence producing substance, namely cannabis and methaqualone which are different substance – What they have in common is that both are prohibited dependence producing substance – Section 2(b) relates to possession of prohibited dependence producing substance and not possession of cannabis or methaqualone – therefore a single crime is committed. S v Driedmond (CR 110/2019) [2020] NAHCMD 6 (20 January 2020)

Criminal Procedure ― Review - The accused appeared in the magistrate’s court for the district of Keetmanshoop on two counts for contraventions committed under sections 3(b) of the Abuse of Dependence Producing Substances and Rehabilitations Centres Act 41 of 1971(the Act). Held that in light of the above legal principles, the learned magistrate’s contention that the S v Rooi case should not find applicability to judgements delivered before it, is incorrect as the case is applicable to past judgements which have been wrongly decided. Held that the accused should therefore be convicted of only one offence, namely, contravening section 2(b) of Act 41 of 1971 for the possession of dependence-producing substances, to wit, methaqualone and cannabis. Held that although the accused was charged under the wrong schedule of the Act in both counts, this court is satisfied that he admitted all the elements of the offence of a contravention of s 2(b) of Act 41 of 1971, (possession of a dependence-producing substance) and that the charge may be corrected on review. Count 1 thus stands to be set aside and the substance contained in that count is to be incorporated under count 2. S v Bock (CR 23/2020) [2020] NAHCMD 148 (6 May 2020); S v Freemann (CR 36/2020) [2020] NAHCMD 205 (2 June 2020)

Criminal Procedure ― Review - The two matters were sent to the High Court pursuant to a review in terms of section 302(1) of the Criminal Procedure Act 51 of 1977. In both matters, the accused persons’ were charged, convicted and sentenced on contravening sections 82 (5) (a) of the Road Traffic and Transport Act 22 of 1999 (the Act). Held that the approach therefore, adopted by the magistrate during sentencing cannot be considered to be judicious and is completely inept to say the least. This inevitably offends the principle of proportionality, which contemplates the harm inflicted proportionally to the harm caused by the offender. Held that the penalties imposed by the Act for contravening sections 82 (1) and 82 (5) both fall under section 106 (2) thereof, which stipulate that an accused will be liable to pay a fine not exceeding N$ 8000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment. The court would therefore not interfere with the fines imposed in both cases. S v De Bruin_ S v Nail (CR 34/2020) [2020] NAHCMD 199 (28 May 2020); S v Nghitenanye (CR 83 /2020) [2020] NAHCMD 484 (23 October 2020)

Criminal Procedure ― Review - The accused was charged with housebreaking with intent to steal and theft. He broke and entered the house, where after he stole 1 gas stove, 1 gas bottle, 2 pillow cases, clothes, window curtains, television set, blankets, 1 printer, 2 school bags, 3 buckets and 1 pair of shoes valued at a total amount of N$10 198. It has become more accepted than not, that a first offender convicted of committing the offence of housebreaking with intent to steal and theft is sentenced to a term of imprisonment and, depending on the circumstances of the case, part of the sentence is suspended on good behaviour. Held that in the absence of circumstances to the contrary, this court finds no reason for the harsher sentence imposed in this matter than would ordinarily have been appropriate. The sentence imposed therefore is excessively inappropriate, induces a sense of shock and falls to be set aside. S v Gaeseb (CR 31) [2020] NAHCMD 172 (12 May 2020)

Criminal Procedure ― Review - The accused was charged with Reckless or Negligent driving in contravention of section 80(1) read with Section 1, 80(3), 86, 89, 106(1) and 106(6) of the same Act on count one and with contravening section 31 (1) (a) read with section 106 of the Road Traffic and Transportation Act 22 of 1999 on count two. Further, magistrates when dealing with pleas of guilty on a charge of reckless or negligent driving should not forget to enquire from the Public Prosecutor who is prosecuting, if she or he will accept a conviction on negligent driving or not, before returning a verdict of guilty on negligent driving. That is necessary, because the State (Public Prosecutor) might want to lead evidence to prove reckless driving against the accused. That being the case, the verdict of guilty as charged in this matter is, incompetent and needs correction. Held that the condition of suspension on count one “of which N$ 2000 (Two thousand N$ or 1 (one) year imprisonment was suspended for a period of 3 years on convicted that accused that accused (sic) is not convicted of the offence of negligent driving” did not form part of my query I have noticed during the preparation of the judgement that it was not properly framed and need to be corrected. S v Iipinge (CR 29/2020) [2020] NHCNLD 59 (18 May 2020)

Criminal Procedure ― Review – Duplication of convictions - The accused in this matter was charged with 1. A contravention of section 16 (1) read with sections 1, 16 (1) (a) and 16(2) of the Tobacco Products Control Act, Act 1 of 2010- Dealing in illicit tobacco products and; 2. A contravention of section 90(a) read with sections 1, 5, 9, 14(1) (a), 36, 59 and 97(1) (b) of the Customs and Excise Act, Act 20 of 1998-Dealing in/possession of illicit goods. Held that the convictions and sentences in relation to both charges can therefore not be allowed to stand. S v Joseph (CR 25/2020) [2020] NAHCNLD 56 (18 May 2020); S v Napayeombili (CR 24/2020) [2020] NAHCNLD 54 (18 May 2020); S v Nuixabes (CR 23/2020) [2020] NAHCNLD 53 (14 May 2020)

Criminal Procedure ― Review - The accused pleaded guilty to a charge of theft from his employer of 2400 kg of chicken to the value of N$50 000. The court questioned the accused in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977, as amended, (‘the CPA’) and after being satisfied that all the elements were admitted, convicted the accused accordingly. Held that once a sentencing court decides to incorporate suspension of a sentence of a fine coupled with an alternative of imprisonment, the suspension applies to both the fine and the alternative of imprisonment and not just to one side thereof. The decision by the magistrate to partially suspend the fine and not apply the same formula to the alternative of imprisonment, amounts to an irregularity which stands to be corrected. S v Shimhanda (CR 29/2020) [2020] NAHCMD 151 (7 May 2020)

Criminal Procedure ― Review - The accused appeared in the magistrate’s court for the district of Karasburg charged with the offence of housebreaking with intent to steal and theft. The accused pleaded guilty to the charge and after questioning in terms of section 112(1)(b) of the CPA, he was convicted as charged and sentenced to 3 years’ imprisonment. During the questioning, the magistrate did not ask the accused to explain how he broke into the house mentioned in the charge in order to clearly establish that there was a breaking in. Held that the magistrate correctly conceded that the element of breaking must be established. Held that in the premises, the conviction and sentence imposed on the accused cannot be allowed to stand and therefore falls to be set aside. The accused is to be further questioned. S v Snyders (CR 32/2020) [2020] NAHCMD 173 (12 May 2020)

Criminal Procedure ― Review - The accused in the matter was charged with the crime of theft in the magistrate’s court sitting at Grootfontein. He was convicted as charged and sentenced to pay a fine of N$ 1000 or 6 (six) months imprisonment wholly suspended for 2 years on condition that the accused performs 100 hours community service at the Grootfontein magistrate’s court under the supervision of Ms Renate Kauapirura; that such service to commence on 24 October 2019 and completes on 21 November 2019 and that the accused to perform such service from Mondays to Fridays excluding public holidays and will perform service for 5 hours each day. However, a different sentence was typed on the Review Sheet. Held that the sentence will be substituted accordingly. S v Haradoeb (CR 38/2020) [2020] NAHCMD 227 (15 June 2020)

Criminal Procedure ― Review - This case is before us not in the ordinary course of review, but in terms of section 304(4) of the Criminal Procedure Act as amended (hereafter referred to as CPA). It was referred to this Court by the Divisional Magistrate of Windhoek Central Division with a recommendation that the admission of guilt be set aside and the fine be refunded to the accused. The bundle that was placed before the review court comprised of the original written notice issued to the accused, an affidavit by the accused, a letter by the Divisional Magistrate, a letter by the Head of Office of the Windhoek Magistrates’ Court, a letter by the Additional Magistrate who checked the admission of guilt and a general receipt issued to the Katutura Police Station. Held that in the case of statutory offenses, it is required to cite the particular provisions of the legislation, which was not done in the written notice at hand. Had the police officer contemplated the traffic offense to be that of failed to stop in compliance with any direction conveyed by a road traffic sign or direction by a traffic officer in uniform, he/she should have included that the offense was a contravention of Regulation 340(a) read with Regulation 369 and section 1, 86 and 89 of the Act. Held that in looking at the charge as formulated on the written notice the accused could not have pleaded guilty to the defective charge. Therefore, the magistrate when checking the written notice in terms of section 57(7) of the CPA should not have found that the conviction was in order and should not have confirmed it. S v Mweulinale (CR 44/2020) [2020] NAHCMD 252 (25 June 2020)

Criminal Procedure ― Review - The charge sheet reflects that the accused is faced with two counts, 1. Housebreaking with intent to steal and theft and 2. Malicious damage to property. The accused however never pleaded to these charges. The accused is not represented. On the first appearance of the accused in the district court the state applied for the accused to be “observed”. The prosecutor however laid no basis for such application, except to state that it seems from the accused conduct that he is unfit. Held that a referral in itself holds serious consequences for an accused and it follows that it should be transparent that a proper and relevant reason exists to invoke the provisions of section 77(1) or section 78(2), or both, in the particular circumstances of the matter. Held that the court must then make its direction, either in terms of section 77 (1) or 78 (2), or both, because this is the necessary jurisdictional basis for the relevant enquiry in terms of section 79 (1) to be conducted and reported on. S v Amutenya (CR 26/2020) [2020] NAHCNLD 67 (9 June 2020)

Criminal procedure – Review - accused charged under wrong section – charge may be corrected on review – error not fatal where particulars of offense correctly described in charge sheet. Criminal Procedure – Questioning in terms of s 112(1) (b) of the CPA – Omission by magistrate to ask questions on vital elements of the offence of driving with excessive blood alcohol level – conviction and sentence set aside Criminal law – Suspension of accused’s driver’s license – Mandatory period for suspension of driver’s licence specified by statute – driver’s license suspended for lesser period than that which is prescribed Summary: The accused pleaded guilty to the offence of driving with an excessive blood alcohol level. He was questioned in terms of s 112(1) (b) of the Criminal Procedure Act, convicted and sentenced. His drivers license was suspended for a period of one month in terms of section 51(2) (a) of the Road Traffic and Transportation Act. On review, the court found that the accused was charged with the wrong section however, error was not fatal as the offense was correctly described in the charge sheet and the accused will not suffer any prejudice as a result of the omission. The conviction and sentence is set aside due to the magistrate’s failure to question the accused as to whether his blood samples were taken within two hours after the incident and whether such blood samples were taken by an authorized officer. The order to suspend accused’s driver’s license for a lesser period than that which is prescribed by statute is not in accordance with the law. Even if it was, such order cannot be allowed to stand because the accused was improperly convicted. S v Cloete (CR 41 /2020) [2020] NAHCMD 240 (22 June 2020)

Criminal procedure – Review - Six accused appeared in the Oshakati Magistrate’s Court on contraventions of the Immigrations Control Act, No 7 of 1993 (the Act). Accused one, two, three and six pleaded guilty and were convicted of a contravening section 29 (5) (1) read with section 26 and section 12 (1) read with section 1, 2, 4 and 12 (4) of the Immigration Control Act, Act 7 of 1993. On count one it is alleged that the accused remained in Namibia for purposes of business or employment without a business permit while on count two the State alleged that the accused not being Namibian citizens or persons domiciled in Namibia failed to produce an unexpired passport to an immigration officer on demand respectively. Accused 4 and 5 were charged and convicted of count 2 only. Held that Ndauendapo J, with Siboleka J concurring in the State v Okuani (CR 07 /2013 [2013] NAHCMD 32 (5 February 2013) set aside conviction and sentence and directed magistrates and prosecutors to make sure that the pro-forma charge sheets are corrected to have regard to the contents of these two sections. Despite these clear directives given, this court is still clouded with voluminous uncorrected pro-forma charge sheets. S v David (CR 33/2020) [2020] NAHCNLD 70 (19 June 2020)

Criminal procedure – Review - The accused in this matter was charged with contravention of section 90(a) read with sections 1, 5, 9, 14(1) (a), 36, 59 and 97(1) (b) of the Customs and Excise Act, Act 20 of 1998-Dealing in/possession of illicit goods. He pleaded guilty and the magistrate correctly proceeded to question the accused in terms of section 112(1) (b) of Act 51 of 1977. Held that on review a convicted accused is a “fortiori” entitled to the benefit of doubt where reasonable grounds exist for a belief that a recorded admission, necessary for a conviction, was not made at all. Held that in instances where an accused does not freely admit to all the elements of the offence the onus rest on the state to prove the accused guilt beyond reasonable doubt. S v David (CR 39/2020) [2020] NAHCNLD 80 (30 June 2020)

Criminal procedure – Review - The accused was charged with the offence of Housebreaking with intent to steal and theft. He was subsequently convicted and sentenced to three years imprisonment of which one year imprisonment was suspended for five years on condition that accused is not convicted of the offence of housebreaking with intent to steal and theft, committed during the period of suspension. Held that since the magistrate have conceded that he indeed could not have been satisfied. The procedure was to invoke the provisions of s 113 of the Criminal Procedure Act 51 of 1977and proceed with a trial. Held that the proceedings in this case appear to me not to be in accordance with justice and cannot therefore be confirmed. S v Gomaseb (CR 43/2020) [2020] NAHCMD 250 (25 June 2020)

Criminal procedure – Review - Accused in this matter was charged with main count of driving under the influence of intoxicating liquor in contravening section 82 (1) (a) of the Road Traffic and Transportation Act 22 of 1999 with alternative count of driving with an excessive blood –alcohol level in contravening section 82(1) (b) of Act 22 of 1999 as per the charge sheet He pleaded guilty on alternative count and after questioning he was found guilty as charged and convicted accordingly. Held that although there was an error in quoting the statutory provision of the Act contravened, such error is not fatal. The offence was correctly outlined and no prejudice suffered. The correct statutory provision for the offence of driving with excessive blood alcohol is a contravening section 82 (2) of the Act and the magistrate rightly conceded. S v Kapi (CR 31/2020) [2020] NAHCNLD 68 (10 June 2020)

Criminal procedure – Review - The accused was charged with Housebreaking with intent to steal and theft in both cases and the magistrate correctly proceeded to question the accused in terms of section 112(1) (b) of Act 51 of 1977. Despite the fact that the magistrate have been cautioned on various occasions by this court to refrain from asking suggestive questions she proceeded to ask suggestive questions to the accused in both cases and convinced herself that the accused admits to all elements of the offence. Held that the magistrate can surely not say that she was satisfied that the accused persons pleaded guilty freely and voluntarily in both cases and that she was satisfied that the accused indeed admitted to all the elements of the offence. I am of the view that on review a convicted accused is a “fortiori” entitled to the benefit of doubt where reasonable grounds exist for a belief that a recorded admission, necessary for a conviction, was not made at all. Held that no reasonable court will be satisfied with such insufficient mitigating factors, more specifically the level of education of the accused when such court intends to impose a custodial sentence on and accused. S v Kashidulika; S v Kalingodi (CR 38/2020) [2020] NAHCNLD 79 (30 June 2020)

Criminal procedure - Review – Failure of the magistrate to question the accused in term of section 112(1) (b) Criminal Procedure Act 51 of 1977. Failure of magistrate to hold an enquiry and make a forfeiture order – discretionary and peremptory – Duty of public prosecutor restated – Magistrate needs to be proactive to forfeit. Summary: In casu the accused was convicted and sentenced on: 1. hunting of specially protected game (a rhinoceros); 2. Possession of a firearm without a license; 3. Possession of ammunition; 4. Entering a game park or nature reserve without permission; 5. Conveying a firearm into a nature reserve/game park. The accused pleaded guilty to all counts. The magistrate applied section 112(1) (b) of the CPA in relation to charges 1, 2, 3 and section 112(1) (b) of the CPA in relation to charges 4 and 5 without questioning the accused. The accused was convicted and sentenced on all charges. S v Muharukua (CR 28/2020) [2020] NAHCNLD 65 (8 June 2020)

Criminal procedure - Review - This court has in numerous cases disapproved and pronounced itself that magistrates should not suspend sentences on condition that an accused should not commit ‘a similar, similar offence or ‘committed as charged’. Held that the condition of suspension is too wide and is bound to lead to uncertainty and misinterpretation. [See: S v Simon 1991 NR 104 (HC); Hiemstra’s Criminal Procedure, Issue 2 at 28-79 to 28-80, Conditions must be clear: Commentary on section 297 of the Criminal Procedure Act]. Held that the conditions must be clear and must refer to one or more specific offences, not to a group of offences. S v Namweda (CR 40/2020) [2020] NAHCNLD 81 (30 June 2020)

Criminal procedure - Review - The accused was convicted in the Windhoek magistrate court for driving a motor-vehicle with an excessive blood alcohol level, in contravention of the provisions of s 82 (2) of the Road Traffic and Transport Act 22 of 1999 (the Act) and sentenced to a fine of N$5 000 or in default of payment 12 months’ imprisonment. Notwithstanding the fact that in terms of s 304(2) of the CPA, a query shall be delivered to the trial magistrate to furnish reasons for convicting or for imposing a certain sentence, if it appears to the judge that the proceedings are not in accordance with justice or doubt thereto exists. This requisite may be dispensed with where the judge concerned is of the opinion that the conviction and sentence is clearly not in accordance with justice and the court is of the opinion that the convicted person may be prejudiced. Held that though irregular to proceed to let the accused plead on the alternative and subsequent conviction where there is no plea to the main count or, same being withdrawn, the irregularity did not cause the accused material prejudice. Though the two latter irregularities did not cause prejudice to the accused, the same cannot be said for the former. Consequently, we are not satisfied that the accused admitted all the elements of the offence under s 82 (2) of the Act. Therefore, the conviction cannot be allowed to stand. S v Pretorius (CR 45/2019) [2020] NAHCMD 258 (29 June 2020)

Criminal procedure - Review – Assault with intent to do grievous bodily harm – Magistrate misdirected himself by failing to ask accused questions pertaining to the intention at the time of assaulting the complainant – Matter remitted to magistrate to establish whether accused intended to cause grievous bodily harm to complainant – Section 112(1)(b). S v Rukero (CR 40/2020) [2020] NAHCMD 230 (18 June 2020)

Criminal Procedure - Review –– Inquiry in terms of s 77 and 78 of the Criminal Procedure Act 51 of 1977 – Order made in terms of s 77(6) for appellant to be detained in a mental hospital pending the signification of the State Preside- Criminal Procedure - Review - Failure of the magistrate to follow the correct procedure in terms of section 77(1) of Act no 51 of 1977. Summary: The magistrate admitted that an irregular procedure was adopted during the referral of the accused by another magistrate and that the accused was unrepresented and not heard at the time she was referred. S v Tamuholoko (CR 36/2020) [2020] NAHCNLD 73 (22 June 2020)

Criminal Procedure - Review – Failure of magistrate to hold an enquiry and make a forfeiture order – discretionary and peremptory – Duty of public prosecutor restated – Magistrate needs to be proactive to forfeit – Application of section 112(1) (a) of the Criminal Procedure Act, (the CPA) Act 51 of 1977 restated. Summary: In S v Vesanenuaije the accused was convicted for hunting of huntable game (an Oryx valued at N$2000); possession of a firearm without a licence; and in terms of section 112 (1) (a) of possession of ammunition. There was no forfeiture order made which in terms of the Arms and Ammunition Act, Act 7 of 1996 is discretionary and in terms of the Nature Conservation Ordinance 4 of 1975 partly discretionary and otherwise compulsory. The matter is remanded for the magistrate to hold the necessary enquiry. The magistrate convicted the accused on possession of ammunition after applying section 112(1) (a) of the CPA. This conviction and sentence are set aside. The matter is remitted for the magistrate to comply with the provisions of section 112(1) (b) of the CPA. The convictions and sentences of hunting of huntable game and possession of a fire arm without a license are confirmed. S v Vesanenuaije (CR 27/2020) [2020] NAHCNLD 66 (9 June 2020)

Criminal Procedure - Review - Drug offences ― Statutory presumption that accused dealing ― Accused pleaded guilty but not admitting dealing ― Accused must be given opportunity to rebut presumption ― This cannot be done as part of questioning in terms of s 112(1) (b) of Criminal Procedure Act 51 of 1977. Summary: The accused herein was convicted of having contravened s 2(a) of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971, dealing in cannabis and sentenced to two years imprisonment. The accused pleaded guilty and was questioned in terms of s 112(1) (b) of the Criminal Procedure Act 51 of 1977. He admitted that he was in possession of 3.984 kilograms grams of cannabis and when asked what it was for, he answered that he smokes it and did not want to go from person to person in order to obtain the said substance for his personal use. Court held: that a magistrate cannot convict an accused if the accused was not afforded the opportunity to rebut the presumption by giving evidence in person. S v Mwatongwe (CR 42/2020) [2020] NAHCNLD 88 (20 July 2020)

Criminal Procedure - Review - The unrepresented accused appeared in the magistrate’s court for the district of Katima Mulilo on 2 (two) counts, contravening section 2(c) and 2(a) of the Abuse of Dependence Producing Substances and Rehabilitations Centres Act 41 of 1971(the Act) respectively. He pleaded guilty and was questioned by the magistrate in terms of the provisions of s 112(1) (b) of the Criminal Procedure Act 51 of 1977 (the CPA) on both counts and was accordingly convicted and sentenced. There are a number of issues that appear from the review record. Although a query was initially directed to the magistrate on the difference between the charge sheet of the typed record and the charge to which the accused pleaded, the ensuing issues outlined herein roused the court to form the view that the proceedings are clearly not in accordance with justice and the delay which is likely to be caused by the submitting of a further query to the magistrate would prejudice the convicted person. For reasons to follow, the court will dispense with such requirement. Held that the accused only at sentencing testified that he used to smoke cannabis and that he did not know that cocaine was dangerous because he didn’t have experience with it. Notwithstanding the above averments, justice demands that the court cannot have regard thereto in order to vitiate a tainted and irregular s 112(1) (b) procedure. Therefore, the convictions cannot be allowed to stand. S v Omar (CR 50/2020) [2020] NAHCMD 297 (17 July 2020)

Criminal Procedure – Review – Substitution of charge on review – When competent to do so – Accused convicted on escaping from lawful custody in terms of common law – Accused escaped before being locked up in a police cell – Essential elements of the two offences not the same – Review court not entitled to substitute conviction to a contravention of s 51 of the Criminal Procedure Act 51 of 1977 – Substitution on review only competent where essential elements not altered by substituted offence or where wrong label attached to charge. S v Endjala (CR 71/2020) [2020] NAHCMD 432 (23 September 2020)

Criminal Procedure – s 297(1)(b) of the Criminal Procedure Act – Competence of a suspended sentence – s 297(1)(b) permits a court to impose a sentence which is wholly or partially suspended – But does not empower court in suspending a sentence into two parts, attaching a different condition to each part and suspending each part for different periods of time – Magistrate divided suspended sentence into two parts – Such sentence impermissible and amounts to irregularity – Latter portion of sentence set aside. S v Ngumbi (CR 66/2020) [2020] NAHCMD 414 (15 September 2020)

Special Review – Section 304 (4) - This is a special review in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 as amended (the CPA). The case was referred by the acting divisional magistrate for the District of Keetmanshoop, Mrs Matroos-Kruger. She proposed that this court set aside the order made by the Magistrate of Lüderitz to recuse himself because the recusal application was not properly substantiated, neither duly considered by the magistrate. Court ordered that the court order of 9 June 2020 of the magistrate to recuse himself is confirmed. That the plea and trial proceeds before a different magistrate. S v Swartbooi (CR 64/2020) [2020] NAHCMD 403 (10 September 2020)

Criminal Procedure – Automatic review – Delay in reply to query – Accused deprived of protection that urgent review mechanism was designed for. Criminal procedure – Mental illness and criminal capacity – Evidence under oath that accused suffered from mental disturbance. Sufficient for magistrate to refer accused for mental observation. Criminal procedure – Testimony of a minor child – Competency examination – Vital pre-requisite to determine, whether the child is capable of understanding what it means to speak the truth, before the child testifies. Criminal procedure – Procedural rights explanations not apparent from court record – Terse recording of rights to unrepresented accused insufficient. S v Kau principle repeated that explanations of procedural rights must be recorded in detail. Criminal procedure – Suspended sentence – Period of suspension – Conditions of suspended sentence – Conditions must not be vague. Held - Trial tainted by irregularities of a serious nature which vitiates proceedings – Conviction and sentence set aside. S v Frederick (CR 76/2020) [2020] NAHCMD 459 (6 October 2020); S v Pena (CR 58/2020) [2020] NAHCNLD 148 (16 October 2020); S v Nukoneka (CR 59/2020) [2020] NAHCNLD 155 (11 November 2020)

Criminal Procedure – Review - Section 118 of the Criminal Procedure Act 51 of 1977 (CPA) – Section 275 of the CPA – Where accused charged with multiple counts and pleads guilty to some and court enters convictions on latter counts, the legal position is that evidence on those convictions do not per se stand as evidence against the remaining count(s) – Where accused pleads guilty and court does not enter convictions, the evidence on the counts so pleaded stands as evidence against all counts – section 118 applicable in the former scenario and not the latter – In this matter, accused stands charged on three counts and pleaded guilty to two and court entered convictions thereon, evidence thus does not per se stand against the remaining charge – Section 118 and 275 of the CPA applicable in the circumstances of this matter. S v Mutota (CR 82/2020) [2020] NAHCMD 482 (22 October 2020)

Criminal Procedure – Review - Proclamation 17 of 2020 – Covid -19 Regulations – purchase liquor during lockdown – accused charged with contravening wrong regulation – conviction and sentence set aside. S v Paziua (CR 77/2020) [2020] NAHCMD 471 (16 October 2020)

Criminal procedure – Review – Reckless or negligent driving are two separate offences under section 80(1) of the Road Traffic and Transportation Act 22 of 1999 – Section 112(1)(a) of the Criminal Procedure Act 51 of 1977 as amended to be invoked for speedy finalization of less serious and minor offences – Offences of reckless or negligent driving are serious in nature and invoking section 112(1)(a) is grossly irregular – The magistrate acted ultra vires his powers when he imposed a fine in excess of the prescribed penalty clause – The fine imposed is disproportional to the alternative term of imprisonment – Courts should seek sufficient facts in order to appreciate the offence charged but not just rely on the label of the offence – Gross irregularities committed – Conviction and sentence are set aside. S v Shigwele (CR 75/2020) [2020] NAHCMD 453 (2 October 2020);

Criminal procedure – Failure to pay maintenance – Defence contained in s 39(2) Act 9 of 2003 – Magistrate to explain lack of means before plea to undefended accused in a charge of failure to pay maintenance – Material misdirection – Conviction and sentence set aside. Maintenance – Consent Maintenance Orders – Magistrate to explain obligations to defendant when order is made – Maintenance court is a court of record.

Criminal Procedure – Magistrate to inform accused at point of conviction when conviction particulars are different than particulars in charge annexure. Procedure – Attestation – Sworn declaration – Arrear maintenance – Affidavit by Clerk of Court in terms of section 212(1) of Criminal Procedure Act – Administration of oath or affirmation by clerk of court as a commissioner of oaths. S v Efraim (CR 113/2020) [2020] NAHCMD 589 (30 December 2020)

Review - Criminal law – Arms and Ammunition Act 7 of 1996 – Charges – Possession of firearm (c/s 2) – Homemade silencer and magazines – Definition of “arm” – Any other instrument – Such instrument only an arm once declared as such by Minister by notice in the Gazette – Silencer or magazine not declared an arm by Minister – Accused wrongly charged. Criminal law – Arms and Ammunition Act 7 of 1996 – Accused charged with contravention of section 2 for magazines of machine gun – Section 29(1)(a) provides for offences committed in relation to machine guns – Accused should have been charged under this section and not section 2. Criminal law – Arms and Ammunition Act 7 of 1996 – Ammunition – Accused charged with contravention of section 33 – Accused found in possession of ammunition capable of being fired by machine gun – Section 29(1)(e) correct section under which the accused should be charged – Legislature made clear distinction between type of ammunition referred to in section 33 and that in section 29(1)(e) with different penalty provisions – Two different offences with different elements – One cannot be substituted with the other on review. State v Chihunga (CR 107/2019) [2020] NAHCMD 587 (09 December 2020)

Sentence

Criminal Procedure: - Sentence—Factors to be considered at sentencing--Accused convicted of murder—Offence committed in the domestic setting--Accused murdered his biological uncle—Deceased being the initial aggressor–Weight not to be considered in isolation--Assessed in light of circumstances of case and other factors— Deceased at all material times unarmed --No imminent danger at the time the deceased was hit—Conduct of the accused unacceptable –Personal circumstances considered--Accorded less weight--Custodial sentence inevitable. S v Aumbaasa (CC 1/2019) [2020] NAHCNLD 26 (13 February 2020).

Criminal Procedure – Sentence – ‘White-collar’ crimes – Alarming increase of these crimes in Namibia – Conclusion drawn from large number of cases coming before courts – Court may take judicial notice of the increasing prevalence of ‘white-collar’ crimes committed in its jurisdiction. Criminal Procedure – Sentence – Principle of individualisation – Sentence must be tailored in such way that it fits the particular accused before court –Accused’s former convicted by another court of almost similar offences committed under the same circumstances – Circumstances under which accused and former wife found themselves differ – Former wife pleaded guilty however she was convicted of a more serious offence of fraud – Accused on the other hand did not plead guilty neither did he testify in mitigation to show his remorse – Accused’s blameworthiness on par with his former wife – Lengthy custodial sentence inescapable. S v Serfontein (CC 07/2019) [2020] NAHCMD 56 (20 February 2020)

Criminal Procedure – Sentence – Murder read with the Combating of Domestic Violence Act, Act 4 of 2003 – Direct intent – Case of extreme measures taken to commit murder – Jealousy. The accused is convicted for murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. The accused and deceased were in a relationship as boy- and girlfriend before the deceased ended the relationship on the advice of family members. At the time of her death the accused and deceased were no longer living together. The deceased had a new boyfriend. On the day of the incident the accused went to the house where the deceased was staying, smashed a window, entered the house and brutally assaulted the deceased by hitting her with fists and by inflicting multiple stab wounds. The deceased died on the scene because of multiple stab wounds. The accused was convicted for murder with direct intent. S v Shilongo (CC 01/2018) [2020] NAHCNLD 20 (07 February 2020); S v Gowaseb (CC 2/2019) [2020] NAHCMD 423 (21 September 2020); S v Koper (CC 6/2019) [2020] NAHCMD 448 (30 September 2020)

Criminal law – Sentence — Murder — Domestic violence — Aggravating factors in sentencing — Violence against women reached crisis point and continuing unabatedly — Imposition of severe sentences required. Summary: The accused was married to the deceased. At the time of the murder they were not longer living together. The deceased lived with their children, twins, at the common home and the accused at a flat. On the day of the incident the accused went to the deceased at home, confronted her of her absence the previous night and assaulted her in the presence of children. He eventually stabbed her to death. He was convicted for murder read with the provisions of the Combating of Domestic Violence Act. He is sentenced to 35 years imprisonment. S v Epamba (CC 11/2016) [2020] NAHCNLD 52 (14 May 2020)

Criminal Procedure – Sentence – Murder of a farm owner and robbery with aggravating circumstances – Accused employed at the farm murdered and robbed his employer - Position of trust - Society cries to court for protection against violent offenders – Failure to show remorse is an aggravating factor. Criminal procedure – Murder gruesomely perpetrated on the deceased - This should be condemned by courts - Premeditated murder- Lengthy custodial sentence unavoidable- Accused sentenced to 30 years’ imprisonment. Robbery with aggravating circumstances committed against the employer in a trusted employer-employee relationship. Accused abused the trust – Farming is the cornerstone of our development and economy as such should be protected - Present circumstances calls for custodial sentence- Accused sentenced to 10 years’ imprisonment. S v Katanga (CC 23/2018) [2019] NAHCMD 66 (27 February 2020)

Criminal Procedure – Sentence – Theft by false pretences – Accused having pleaded guilty to the charge and convicted on five counts of theft by false pretences as well as on a count of money laundering – Both offences considered to be of serious nature and on the increase – The fact that the money was recovered to be considered as mitigating factor in accused’s favour – The crimes, though committed once off, were premeditated – Counts one to five taken together for the purpose of sentencing – Count six ordered to run concurrently with the sentence on the first to fifth count. S v Shipandeka (CC 8/2018) [2020] NAHCMD 26 (30 January 2020)

Criminal Procedure – Sentence – Antedating of sentence by trial court not permitted – Section 282 – Option of antedating only open to appeal and review court. : S v Klaasen (CR 21/2020) [2020] NAHCMD 145 (30 April 2020)

Criminal Procedure – Sentence – Accused convicted on a count of murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003 –Accused murdered his pregnant girlfriend by strangling her –Deciding what a proper sentence should be –The court will take into account the personal circumstances of the accused – Take into account the nature and extent of the crime committed –Together with the circumstances under which the crime was committed -The court will have regard to the interests of the society – Period spent in custody as an awaiting-trial prisoner – Sentences should reflect an element of mercy – Found that the nature of the crime and the manner in which it was committed, and the interest of society considerably outweigh the personal circumstances of the accused – Found that in this case the element of mercy carries little weight. S v Masuna (CC 11/2019) [2020] NAHCMD 587 (24 November 2020)

Criminal Procedure – Sentence – Murder – Housebreaking with intent to rob and robbery (aggravating circumstances) – Theft – Obstructing or defeating the course of justice – Possession of a firearm contravening section 2 of the Arms and Ammunition Act 7 of 1996 – Possession of Ammunition (contravening section 33 of Act 7 of 1996) – Use of a motor vehicle without owner’s consent contravening section 83(2) of the Road Traffic and Transport Act 22 of 1999 – Accessory after the fact – Seriousness of Offences – Deceased’s elimination premeditated – Deceased was of advanced age, vulnerable and living alone on his farm and became the victim of a vicious attack by accused no 2. Criminal procedure – Sentence – Mitigation – Remorse – Accused persons did not testify in mitigation – Court is unable to determine the genuineness of alleged contrition – Blameworthiness – Court to distinguish between blameworthiness of the two accused persons whose actions differ in respect of the crimes committed – Level of punishment on accused no.1 should be considerably less than that of his co-accused. Criminal procedure – Sentence – Interests of society – Murder and robbery generally attract lengthy custodial sentences – Court must endeavour to find a balance between the accused persons’ blameworthiness and the cumulative effect of the sentences imposed on the respective counts – Mitigating factors in favour of the accused are far insufficient. Criminal Procedure – Sentence – Multiple convictions – Cumulative effect of sentences to be considered – Section 280(2) of the Criminal Procedure Act 51 of 1977 – Accused no 1, sentences imposed on counts 2, 3 and 5 be served concurrently – Accused no 2, sentences imposed on counts 4 – 8 be served concurrently with the sentence imposed on count 1. Criminal law – Arms and Ammunition Act 7 of 1996 – Declaration of unfitness to possess an arm – Section 10 of the Arms and Ammunition Act 7 of 1996 – Each accused declared unfit to possess an arm – Period to commence after each accused person has served their respective sentences in full. S v Claasen (CC 12/2018) [2020] NAHCMD 184 (20 May 2020)

Criminal Procedure – Sentence – Murder with dolus directus – Accused stood in a position of trust towards the deceased – Society calls for severe sentence – Failure to show remorse aggravates the sentence – Time spent in custody pending trial mitigates the sentence. Criminal procedure – Murder gruesomely perpetrated against an employer by an employee – pre-meditated violent attack on the deceased – Lengthy custodial sentence inescapable – Accused sentenced to 32 years’ imprisonment. Robbery with aggravating circumstances committed against the employer – Accused allowed at the scene out of trust from the employer – Offence calling for a custodial sentence – Accused sentenced to 10 years’ imprisonment – The principle regulating taking different counts together for purpose of sentence revisited. The sentence on count 2 ordered to be served concurrently with the sentence on count 1. S v Mbemukenga (CC 10/2018) [2020] NAHCMD 262 (30 June 2020)

Criminal Procedure – Sentence – Accused convicted of murder in the form of dolus eventualis – Whether such intention is a mitigating factor depends on facts of each case – On present facts – Accused brutally attacked deceased by trampling on her head and private parts whilst she was under influence of intoxicating liquor – Fact that the accused acted with dolus eventualis not considered a mitigating factor – Accused sentenced to 25 year’s imprisonment. S v Scott (CC 21/2018) [2020] NAHCMD 274 (8 July 2020); S v Uamunika (CC 3/2018) [2020] NAHCMD 289 (15 July 2020)

Criminal Procedure - Sentence – Consistency – Such consistency promotes legal certainty – Court to balance interests of individual, society and purpose of sentence evenly – Accused persons police officers convicted of murder – wholly suspended sentence inappropriate under the circumstances – Nature of offence arouses moral indignation − Interest of accused secondary – custodial sentence inevitable. Summary: The accused persons who are members of the Windhoek City Police were charged with a count of murder, kidnapping and defeating the course of justice or attempting to do so. After a trial, they were each convicted of murder and of defeating the course of justice but acquitted of kidnapping. S v Shetekela (CC 10/2014) [2020] NAHCMD 275 (8 July 2020)

Criminal Procedure – Sentence – Murder with direct intent Accused killed the deceased who attempted to restore peace between the accused and his ex-girlfriend – Society calls for severe sentence – Remorse although belatedly expressed coupled with the court’s observation found to be genuine – Time spent in custody pending trial mitigates the sentence – Principles applicable to sentencing revisited– Lengthy custodial sentence inevitable – Accused sentenced to 23 years’ imprisonment. S v Levi (CC 22/2019) [2020] NAHCMD 257 (29 June 2020)

Criminal Procedure – Sentence – Murder – Attempted murder – Theft – Personal circumstances – First offender – Remorse – The accused testified in mitigation and called one witness in mitigation – Remorse genuine – Interests of Society – Crimes of violence cannot be tolerated any longer and the courts are under a duty to do its part in bringing an end to it by imposing deterrent sentences. – Accused committed offences with firearm appropriated – Considered aggravating factor – Taking a life of an innocent defenceless woman – Accused acted irrationally and inexcusably – Deterrence and retribution emphasised. Criminal Procedure – Sentence – Intoxication – May constitute both mitigating and/or aggravating factor during sentence – It is for the state to discount it as a mitigating factor, to show that it did not materially affect the appellant’s behaviour – In present case, crimes committed whilst under the influence of alcohol, rendering his behaviour marginally less reprehensible. Criminal law – Arms and Ammunition Act 7 of 1996 – Declaration of unfitness to possess an arm – Section 10 of the Arms and Ammunition Act 7 of 1996 – Accused declared unfit to possess an arm – Period of 5 years to commence after accused person has served sentences in full. S v Mensah (CC 15/2019) [2020] NAHCMD 256 (25 June 2020)

Criminal Procedure – Sentence – Murder with direct intent committed in a domestic relationship – Accused in a position of trust towards the deceased – Society calls for severe sentence – Failure to show remorse is an aggravating factor – Time spent in custody pending trial mitigates the sentence – First offender at 58 years old counts in accused’s favour as a relevant consideration in mitigation of sentence – The principle regulating taking different counts together for purpose of sentence revisited. Criminal procedure – Murder in a domestic set up – Lengthy custodial sentence inevitable – Accused sentenced to 28 years’ imprisonment. Assault with intent to do grievous bodily harm – Serious offence – Perpetrated on another person who attempted to save the deceased from being stabbed further – Sentence not to run concurrently with sentence on murder as two different persons were stabbed – Calls for a custodial sentence – Accused sentenced to 2 years’ imprisonment – Counts 3 and 4 – Common assault – Accused sentenced to 6 months’ imprisonment on each count – The sentences on counts 3 and 4 ordered to be served concurrently with the sentence on count 1. S v Strong (CC 16/2019) [2020] NAHCMD 231 (18 June 2020)

Criminal Procedure – Sentence― Factors to be taken into account at sentencing ― Accused 25 years’ old first offender – Convicted of murder, assault with intent to do grievous bodily harm and assault by threat ― Offences committed in the context of a domestic setting— Absence of substantial and compelling circumstances – Balance struck between the interests of the accused and those of the society ― Court found aggravating factors extreme and shocking outweighs personal circumstances of the accused. S v Uusiku (CC 9/2019) [2020] NAHCNLD 93 (24 July 2020); S v Jonas (CC 14/2017) [2019] NAHCMD 525 (3 December 2019); S v Paulus (CC 3-2019) [2020] NAHCNLD 130 (16 September

2020)

Criminal Procedure – Sentencing--Accused convicted of murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003 and escaping from lawful custody--Accused hacked his girlfriend several times-- First offender and pleaded guilty—A defenseless woman was murdered --Factors to be taken into account --Absence of mitigating factors warranting lenient sentences—More aggravating that dangerous weapon a panga is involved –Accused booked out of the cells for purposes of pointing out--Escaped from lawful custody—Lengthy custodial sentence inevitable. S v Mateus (CC 2/2020) [2020] NAHCNLD 101 (5 August 2020)

Criminal Procedure – Sentence – Murder – Accused first offender – Convicted of murder in the form of dolus eventualis – Domestic set up – Domestic Violence be regarded as an aggravating factor in sentencing – Such offences too prevalent in this country – The duty of the courts to protect victims of domestic violence – Accused accordingly sentenced 25 years Imprisonment of which 5 years imprisonment is suspended for 5 years on condition that the accused is not found guilty of murder read with the provisions of the Domestic Violence Act, 4 of 2003, committed during the period of suspension. S v Roelf (CC 5/2019) [2020] NAHCMD 358 (14 August 2020)

Criminal Procedure - Murder – Sentence – Factors to be taken into account – Personal circumstances of accused person – First offender – Time spent in custody awaiting finalization of his trial – Factors in his favour. Summary: The accused person is convicted for murder with direct intent. The factors to be taken into account are personal circumstances of the offender, the crime, the interest of society and interest of the victim(s). The accused is a first offender. He spent 6 years trial awaiting in custody awaiting the finalisation of his trial. He did not pre-meditate the crime. He was to a certain extent provoked. These are factors in his favour. Murder is a serious offence and prevalent. The deceased person was killed in a ruthless manner. A deterrent and effective sentence is called for. The anger and level of intoxication are not factors justifying the accused’s behaviour. He is sentenced to 35 years imprisonment of which 5 years are suspended on conditions. S v Sakeus (CC 13/2016) [2020] NAHCNLD 106 (14 August 2020)

Criminal Procedure - Sentence – Convicted of murder with direct intent, read with the provisions of the Combating of Domestic Violence Act – Convicted of assault with the intent to cause grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 – Domestic relationship a factor in aggravation – Offense exacerbated by brutal manner in which offense was committed – Serious nature of offense, gravity of the heinous murder plus societal interests outweigh the factors in mitigation of sentence. S v Bock (CC 32/2019) [2020] NAHCMD 390 (3 September 2020);

Criminal Procedure – Sentence – Factors to be taken into account at sentencing–Accused convicted of one count of Rape and two counts of Assault by threat–Offences committed in the context of a domestic relationship–Combating of Rape Act 8 of 2000–Absence of substantial and compelling circumstances. S v Ndovai (CC 10/2019] [2020] NAHCNLD 135 (18 September

2020)

Criminal Procedure - Sentencing-Accused convicted of murder-Factors to be taken into account restated-accused first offender-Had not shown remorse-Murdered a four years boy-Sentenced to 30 years effective imprisonment. Summary: The accused was convicted of murder with direct intent read with the provisions of the Combating of Domestic violence Act. He is a first offender and 50 years old. He killed the deceased, who was four years old, by bashing his head against a concrete floor. He has not shown remorse for his actions. Violence against children and women has reached an alarming stage. And is continuing unabated. The courts need to send a strong message that violence against the vulnerable in society will not be tolerated. Accused sentenced to thirty five years of which five years are suspended for five years on condition that the accused is not convicted of murder, committed during the period of suspension. S v Dawid (CC 9/2017) [2020] NAHCMD 518 (11 November 2020)

Criminal Procedure ― Sentence ― Accused charged and convicted of two counts of assault by threat and a count of murder ― Offences committed in the context of a domestic relationship ― Factors to be taken into account ― Aggravating factors outweigh his personal circumstances―Society expects Courts to impose heavy sentences ―Custodial sentence inevitable. S v Panda (CC 7/2019) [2020] NAHCNLD 166 (24 November 2020)

Criminal Procedure - Sentence –– Theft – four counts of theft by conversion – alternatively theft – contravening section 4(b)(i) – read with sections 11 of the Prevention of Organised Crime Act 29 of 2004 – read with section 94 of the Criminal Procedure Act 51 of 1977 – Accused pleaded not guilty – Accused committed a white – collar crime – Courts view white collar crimes in a serious light – Accused in no position to compensate complainant or pay appropriate fine if imposed – Sentence of imprisonment inevitable – Accused showing no remorse – Held that the accused is sentenced on Counts 2 – 7 – Theft by conversion:14 years’ imprisonment of which 6 years’ imprisonment suspended for a period of 5 years on condition that the accused is not convicted of theft (without the option of a fine), committed during the period of suspension – Count 8 – Money-laundering (c/s 4 of Act 29 of 2004): 6 years’ imprisonment – sentence imposed on count 8 be served concurrently with the sentence imposed on counts 2 – 7.

Criminal Procedure – Sentence – Trite that the personal circumstances of the accused must be considered and weighed against the seriousness of the crimes committed as well as the interests of society. S v Sprangers (CC 14/2016) [2020] NAHCMD 498 (30 October 2020)

Criminal Procedure – Sentence – Factors to be taken into account – Nature of the crime – Interests of society – Personal circumstances of accused – Accused first offender – Time spent in custody – Such period not arithmetically discounted and subtracted from the overall sum of imprisonment imposed – Such factor should be considered together with other factors such as the culpability of the accused and his moral blameworthiness, to arrive at an appropriate sentence.

Criminal Procedure – Sentence – Plea of guilty – Weight to be attached – Depending on circumstances of each case – Accused pleading guilty to murder– Offence committed in presence of deceased’s mother – Accused’s guilty plea in face of overwhelming evidence – Less weight attached thereto. Criminal Procedure – Sentence – Whether sentence to run consecutively or concurrently – Factors to be considered – Whether charges are closely related or arose from same course of action – Whether cumulative effect is likely to be excessive or to induce a sense of shock then sentence should run concurrently – Court ordering the sentences to run concurrently. S v Goliath (CC 2/2020) [2020] NAHCMD 575 (8 December 2020)

Criminal Procedure – Sentence – Accused convicted of murder, robbery with aggravating circumstances and attempting to defeat or obstruct the course of justice – Accused first offender – who spent 9 months in custody awaiting for trial pleading guilty to all counts – Although a plea of guilty may amount to mitigating factor – this may depend on the circumstances of each case – Accused found in possession of deceased’s stolen property – In the face of overwhelming evidence – Accused had no option but to plead guilty – Court attaching weight for what it is worth – The seriousness of some offences, the cold-hearted manner of their execution and the pre-meditation by far overshadow the accused’s personal circumstances. S v Thomas (CC 12/2020) [2020] NAHCMD 552 (2 December 2020)

Criminal Procedure – Sentence – Sentencing composite sentences desirable only in exceptional circumstances – Separate crimes should be punished separately. At the conclusion of the trial on 30 April 2019 in the Gobabis Regional Court, the appellant was convicted and sentenced to 20 years imprisonment on a charge of murder, 5 years imprisonment on a charge of robbery with aggravating circumstances and another 5 years imprisonment on a charge of house-breaking with intent to steal and theft. The sentences were to run consecutively. On the 1st of May 2019, the appellant filed his notice of appeal through the Magistrate office Gobabis. The appellant appeared in person whilst Ms Esterhuizen appeared on behalf of the respondent. His appeal is only against the sentences imposed. In essence, his only ground of appeal is that the learned magistrate imposed shocking and inappropriate custodial sentences which are running consecutively and is asking this Court to make an order to the effect that the sentences on the 2nd and 3rd counts be ordered to run concurrently with the sentence on the 1st count. Held: Separate crimes should be punished separately. Held: Further that there was no misdirection when the magistrate did not order the sentences to run concurrently. Silas v S (HC-MD-CRI-CAL-2019-00085) [2020] NAHCMD 579 (8 December 2020)

Criminal law – Murder – Sentence – First offender- Domestic set up – Direct intent – Shot boyfriend with a hunting rifle in the head – Provoked but downplayed her involvement – 4 years and 11 months in prison by her own making – Did not attend court – 35 years’ imprisonment of which 5 years suspended on conditions. Summary: The accused was convicted for murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. She is an adult female. On the day of the incident the deceased hit her with a wooden stick on the head. She sustained an open wound and fell on the ground. She stood up and got hold of a hunting rifle. She aimed and shot the deceased through a window in the head causing his brain to splatter. At the time of shooting, the deceased was talking to a witness and was about to go to his house away from the accused. The accused was on warning before this court but eventually did not turn up at court. Warrants of arrest were issued as a result of which she was in custody trial awaiting. She has been four years’ and 11 months trial awaiting. She is a first offender. She is sentenced to 35 years’ imprisonment of which 5 years are suspended on conditions. S v Garures (CC 08/2014) [2020] NAHCNLD 176 (16 December 2020); S v Uupindi (CC 11/2019) [2020] NAHCNLD 178 (9 December 2020)

CASE SUMMARIES

Asino v S (HC-MD-CRI-APP-CAL-2019/00064) [2020] NAHCMD 225 (15 June 2020)

Summary: The appellant and a fellow police officer were charged with and convicted of four counts of offences under s 38(b) of the Anti-Corruption Act 8 of 2003; and were sentenced to an effective four years imprisonment each. Dissatisfied with the sentence imposed on him, the appellant lodged an appeal against the sentence; but the notice of appeal is defective because it does not contain clear and specific grounds of appeal. In addition, counsel acting on his behalf, did not obtain special power of attorney from him to lodge the appeal and act on his behalf. As a result of the notice of appeal being defective, the respondent raised a point in limine which point in limine was, as a result, upheld and the appeal struck from the roll. The court held: that even though the appellant lodged the appeal within the period of 14 days as prescribed by Rule 67(1) of the Magistrate’s Court Act 32 of 1944, it lacked clear and specific grounds of appeal.

Held further: that there was no valid appeal before court for determination.

Held further: that in view of the failure by counsel to obtain a power of attorney from the appellant himself to lodge and act on his behalf, the papers drawn up and filed by counsel are of no use or effect in the appeal proceedings.

Boois v S (HC-MD-CRI-APP-CAL-2019/00063) [2020] NAHCMD 128 (22 April 2020)

Summary: The appellant was convicted on a charge of murder with intent in the form of dolus eventualis in the Regional Court sitting at Rehoboth. She was sentenced to 14 years’ imprisonment of which 6 years were suspended for a period of 5 years on condition of good behaviour. She noted an appeal against both conviction and sentence. The issue to be resolved is whether the magistrate erred when he rejected the appellant’s defence that she never assaulted the deceased and caused his deceased.

Further, whether the magistrate misdirected himself when he relied on admissions contained in the medical reports to prove the identity and cause of death of the deceased when such admissions were not recorded in terms of section 220 of the CPA. Further, whether the magistrate misdirected himself when he found the evidence of a 12 years old single witness as satisfactory to prove the stabbing of the deceased without applying double caution. It should further be determined whether the magistrate erred when he convicted the appellant of murder and sentenced her as above-mentioned.

Held that the admission recorded in terms of section 220 of the CPA is conclusive proof of the admitted fact.

Held further, that admissions not recorded in terms of section 220, made by unrepresented, unintelligent and uneducated accused should be approached with caution. Admissions, although not recorded in terms of section 220, but made by intelligent and educated unrepresented accused can be relied upon by the court.

Held further, that section 212(7A)(a) relaxed the strict evidential rule regarding the admissibility of medical reports to the extent that medical reports are admitted into evidence upon production.

Held further, that the court could not properly follow the ratio decindendi in Goagoseb v S (CA63/2014) NAHCMD 9 (09 February 2015) as it does not account for the applicable provisions of section 212(7A)(a) of the CPA as amended.

Held further, that a criminal trial is not a game of catch as catch can. Parties are discouraged from laying traps for the opposing party and the court to fall in and then claim that an irregularity was committed.

Held further, that evidence of children shall not be regarded as unreliable and therefore subject it to special caution by virtue of the age of the witness, as provided for in section 164(4) of the CPA as amended.

Held further, that from the evidence, the court a quo correctly found that the appellant proceeded to another room, fetched the knife and stabbed the deceased on the chest and rejected her versions for not being reasonably possibly true.

Held further, that a court has limited scope to interfere with sentencing on appeal and no material misdirection or irregularity was committed by the trial court.

Held further, that the appeal record is in disarray and that it is extremely difficult to read, and its muddling frustrates the administration of justice to the core.

Held further, that it is the ultimate responsibility of the trial magistrate to ensure that a proper record is compiled and submitted to this court for appeal hearing.

Held, that the appeal against conviction and sentence is dismissed.

Babi v S (HC-MD-CRI-APP-CAL-2020/00092) [2020] NAHCMD 540 (26 November 2020)

Summary: The appellant and respondent opted to proceed with a bail application on affidavit. Following a refusal of bail, the appellant now appeals to this court. The appellant is charged in the Windhoek magistrate’s court with the offence of contravening section 4(1)(a) of the Controlled Wildlife Products Act 9 of 2008 as amended – Possession of controlled wildlife products: to wit 2 x rhino horns. The appellant also faces a charge of Bribery on another matter and has a similar matter to this one pending in the Gobabis district.

Held, bail proceedings, whether it is brought on affidavit or by way of oral evidence is neither strictly civil nor strictly criminal but sui generis in nature.

Held further, the state through the investigating officer, has a duty to place before court evidence it has in its possession. This does not per se mean that the state needs to lead the actual evidence or the witnesses it intends presenting at trial, but simply to indicate what evidence it has in its possession.

Held further, an argument premised on linguistics is not likely to succeed as the opinion of the appellant and/or the opinion of this court is not the determining factor during an appeal.

Held further, the court a quo found the version of the respondent more reliable and probable in light of the particular evidence linking the accused to the offence in this matter, as well as his pending matters.

Held further, the court a quo was not wrong for finding that the appellant is likely to interfere with police investigations because of his pending bribery case.

Gustavo v S (HC-MD-CRI-APP-CAL-2020/00063) [2020] NAHCMD 318 (28 July 2020)

Summary: The appellant was arrested on 27 November 2019 on charges of contravention of Section 46 (b) of the Anti-Corruption Act 8 of 2003, contravention of Section 33 (b) of the Anti-Corruption Act 8 of 2003, Two Counts of Fraud, and contravention of Section 4 (b) of the Prevention of Organized Crime Act 29 of 2004. The appellant applied for bail in the Magistrate’s Court, and the Magistrate found that although, the appellant is not a flight risk and has strong connections to Namibia, it is not in the interest of the public or the administration of justice to release the appellant on bail, thereby invoking Section 61 of the Criminal Procedure Act 51 of 1977. The appellant appealed against the decision of the Magistrate to refuse bail, based on various grounds raised in the Notice of Appeal and the Heads of Argument. Amongst those grounds, one is that the Magistrate erred by finding that Section 61 of the Criminal Procedure Act 51 of 1977 applies to the appellant’s application for bail. The court stated that it will only set aside the decision against which the appeal is brought if it is convinced that the decision of the Magistrate is wrong. The court found that the appellant is facing two counts of fraud, and fraud is one of the offences listed in Part IV, Schedule 2 of the Criminal Procedure Act 51 of 1977, which gives courts the discretion to refuse bail on the ground of the interest of the public or the administration of justice. The court found that it is not convinced that the Magistrate’s decision is wrong. Hence, the appeal is dismissed.

Hango v S (HC-MD-CRI-APP-CAL-2019/00090) [2020] NAHCMD 201 (29 May 2020)

Summary: The appellant was convicted on 25 counts of contravening s 35(a) of the Anti-Corruption Act, 2003. He was separately sentenced on each count to a total of 15 years and 4 months’ imprisonment. On appeal against sentence, the appellant contended that his expression of remorse was ignored by the trial court and that the court imposed an inappropriate and shocking sentence on him. Guidelines for the court of appeal to interfere with the sentence passed by the trial court reinstated. S v Tjiho 1991 NR 361 (HC).

Held, that where an appellant expresses remorse under oath in mitigation, and his evidence is left unchallenged, unless there are clear reasons to the contrary, such evidence can be accepted as correct and the remorse regarded as genuine. The dismissal of the expression of remorse by the trial court was not correct.

Held further, that the cumulative effect of the sentence is inappropriate with regards to the accused’s blameworthiness in relation to the offences he was convicted of and raises a sense of shock. This resulted in a misdirection and the sentence is set aside.

Held further, that where counts are closely related in time, place and circumstances, they may be taken together for sentencing. This practice is however reserved for exceptional cases. This is an instance where it is in the interest of justice to take counts together for sentence.

Held further, that a custodial sentence is justified in the circumstances of this case. Individual sentences set aside and taking all the counts together for sentence, substituted with a sentence of 6 years’ imprisonment of which 3 years suspended for 5 years.

Hanse v S (HC-MD-CRI-APP-CAL-2018/00048) [2020] NAHCMD 186 (20 May 2020)

Summary: The Appellant was convicted of a crime of murder with direct intent and sentenced to twenty (20) years imprisonment by a magistrate sitting at the Mariental Regional Court. Not happy with both the conviction and sentence, the appellant is now appealing against both. In the meantime, the appellant has abandoned his appeal against the sentence. Appellant alleging amongst others that he did not receive a fair trial in the court a quo. His defence of an alibi rejected, and the appeal dismissed.

Held that the learned magistrate delivered a comprehensive and a detailed judgment running into eight pages.

Held that the court could not find any misdirection in the assessment of the evidence by the magistrate.

Held further, that the respondent’s evidence is overwhelming and unchallenged.

Held furthermore, that the appeal is dismissed.

Hamana v S (HC-NLD-CRI-APP-CAL-2020/00012) [2020] NAHCNLD 156 (12 November 2020)

Summary: Appeal against conviction and sentence. The Appellant was arraigned before the Regional Court on a charge of contravening section 2(1)(a) of the Combatting of Rape Act 8 of 2000-Rape. On conviction he was sentenced to 10 years imprisonment.

The trial court decided it is satisfied as to the reliability and the credibility of the State witnesses and, for that reason, rejected the evidence of the accused and defence witnesses while giving no reasons for rejecting the evidence of the Appellant.

The charge sheet only alleged one sexual act allegedly committed on 2 July 2012. In the magistrate’s judgment she spoke of four incidents of sexual intercourse.

The Court held; an apparent misdirection by the Court a quo warranted interference by the appeal court. The irrelevant and highly prejudicial evidence lead, and allowed by the Court a quo, made it almost impossible for the Appellant to mount an adequately constructed defence in this matter. The evidence of the other alleged incidents prior to 2 July 2012 should have been disallowed as irrelevant and impermissible.

The Court further held; that due to shortcomings in the evidence of the single youthful witness, the lack of vital evidence regarding the elements of the crime alleged against the Appellant, that the State did not prove the preferred charge in this matter beyond a reasonable doubt.

The appeal against conviction and sentence is accordingly upheld.

Iipinge v S (HC-MD-CRI-APP-CAL-2019/00111) [2020] NAHCMD 156 (8 May 2020)

Summary: The appellant was charged with offences under Ordinance 4 of 1975 and the Controlled Wildlife Products and Trade Act 9 of 2008. He lodged two bail applications which were both refused on separate grounds. Dissatisfied with the findings, he now appeals against the refusal of his subsequent bail application on new facts.

Held, that the findings of the court a quo in the initial bail application that appellant and his co-accused operated as a syndicate and that it would not be in the interest of the administration of justice to grant bail, were unchallenged and remain applicable.

Held further, any decision against which the appeal is brought, shall not be set aside unless the court of appeal or judge is satisfied that the decision was wrong.

Held further, regarding the appellant’s medical condition of ‘major depression’ worsening if he continues to be in custody, such evidence was not led by Dr Raath who diagnosed appellant with the said medical condition.

Held further, the appellant’s medical condition was not an external factor that suddenly overwhelmed him, but a mental condition he had been living with in the past, presumably not significantly impacting on his day-to-day living that required treatment. This only changed some time after his detention.

Held further, the appellant should have taken up his issues about the lack of dispensing medication on time and missed appointments (with the psychologist) with the officer in charge when it occurred, as opposed to only raising them during the bail application for the first time.

Held further, Dr Bulaya’s opinion that, the appellant would need a new environment to recover was without merit, for reason that he had already taken this view before the appellant consulted the psychologist and thus lacks sincerity.

Held further, the diagnosis of ‘major depression’ did not constitute a new fact, for the reason that appellant was already diagnosed with such condition in 2017. Furthermore, he will continue taking medication for his condition which is expected to raise his spirit and change his mind set. The appellant continues to have access to a private physician who could indirectly monitor the administering of medication to him and arrange consultations with the psychologist.

Held further, failure to arrest the appellant on a charge of hunting of specially protected game committed in another district and the pending investigations against him is inconsequential to his subsequent bail application and takes the matter no further. During the bail application he was already facing a similar charge.

Held further, the wrong interpretation of s 61 of the CPA has not brought about any meaningful change in the appellant’s position with regards to bail. The alleged new facts relied upon during the subsequent application do not carry sufficient weight to have the court a quo’s decision set aside. The appeal is accordingly dismissed.

Isaack v S (HC-MD-CRI-APP-CAL-2019/00108) [2020] NAHCMD 351 (13 August 2020)

Summary: After being tried and convicted in the Windhoek regional court on 18 September 2019 on one count of murder, the appellant was sentenced to 17 years’ direct imprisonment. He appeals on the basis that the regional court misdirected itself on the evaluation of evidence in finding that the appellant did not act in private defence. The appellant is further disgruntled by the sentence passed by the court.

Held, it is trite that grounds of appeal should not embody arguments or conclusions reached by an appellant and should be specific and clear.

Held further, the evidence though not perfect, is acceptable if the court was satisfied that the witness whose evidence the court relied on, gave an honest account thereof. In any event, evidence by the state in a criminal trial need not prove the guilt of an accused on absolute certainty.

Held further, the court finds that the evidence provided by the medical officer in regards to the number of stab wounds is reliable.

Held further, the version by the appellant is self-contradicting and highly improbably.

Held further, there is no rule in law that the fact there is a fight between the deceased and the accused, in itself, constitutes a defence.

Held further, evidence of the appellants own witness differs markedly on material aspects of the appellant’s version of events leading up to the fatal stabbing of the deceased, the assault to his head with the deceased’s left hand, the assault to his head with a brick as well as regard his intervention while the deceased and appellant were on the floor.

Held further, crimes like murder generally attract lengthy custodial sentences and the court must endeavour to find a balance between the accused person’s blameworthiness and effective sentence.

Held further, sentence of 17 years’ imprisonment not considered shocking and inappropriate in the circumstances of the case.

Joubert v S (HC-MD-CRI-APP-CAL-2020/00020) [2020] NAHCMD 396 (4 September 2020)

Summary: On 28 November 2019, the first and second appellant, who are senior counsel practicing as advocates in the Republic of South Africa arrived in the Republic of Namibia at Hosea Kutako International Airport – At the airport, the appellants sought entry into the Republic of Namibia and made certain declarations to immigration officials upon which they were granted visitors’ permits in terms of s 29(1) of the Immigration Control Act 7 of 1993 – It turned out that the appellants sought entry into the country to represent their clients in a bail application – Subsequently, the appellants were charged with contravention of s 29(5) and contravention of s 54(e) of the Immigration Control Act 7 of 1993 – The appellants pleaded guilty in the Magistrate’s Court and they were consequently convicted and sentenced, each to a fine of N$6 000 or one year’s imprisonment on the first charge and a fine of N$4 000 or six months’ imprisonment on the second charge – Thereafter they brought an appeal against their conviction and sentence before the High Court – The first ground of appeal is based on s 29(6) of the Immigration Control Act 7 of 1993, in terms whereof it was argued that in as much as the appellants’ purpose was a single appearance in a bail application, it cannot be said that in doing so they could be said to have carried on a profession, being that of an advocate, and that in order to carry on a profession some degree of permanence was required, as opposed to a single appearance in a single case – The court found that by representing their clients in a bail application, they would have rendered a professional service to their clients, and by appearing on their behalf in a bail application they would have been engaged in practicing the profession of an advocate – The second ground of appeal is based on the argument that a person who has been issued a certificate by the Chief Justice to appear in Namibian courts in terms of s 85(2) of the Legal Practitioners Act 15 of 1995 needs only a visitor’s permit issued in terms of s 29(1) of the Immigration Control Act 7 of 1993 – The court found that this ground of appeal has no merit – The court held that the Legal Practitioners Act 15 of 1995 and the Immigration Control Act 7 of 1993 co-exist, and they serve different purposes that are not related – Hence the appeal is dismissed.

Katata v S (HC-MD-CRI-APP-CAL-2019/00020) [2020] NAHCMD 94 (13 March 2020)

Summary: The appellant and his co-accused who were charged with murder were convicted and sentenced in the Regional Court to an imprisonment period of 18 years. The appellant is now appealing against both his conviction and sentence on various grounds. The appellant, however lodged his appeal seven months plus outside the period prescribed by law for noting an appeal. That being the case, the respondent raised points in limine to the effect that the delay for the late filing of the appeal was not properly explained and that the grounds of appeal are not clear and specific as required by Rule 67(1) of the Magistrate’s Court Act 32 of 1944.

Held – that the delay to file the notice of appeal timeously is not properly explained in the affidavit.

Held – further that the appellant also failed to state in the affidavit that the matter enjoys prospects of success on appeal, therefore condonation should be granted to him.

Kharuchab v S (HC-MD-CRI-APP-CAL-2019/00086) [2020] NAHCMD 345 (12 August 2020)

Summary: The appellant was charged in the Magistrate Court sitting at Karibib with the offence of Contravening s 2 (a) read with ss 1, 2(1) and or s 2 (ii) 8, 10, 14 and Part 1 of the Schedule of Act 41 of 1971 – Dealing in a dependence producing substance. In the alternative, the appellant faced charges of Contravening s 2 (b) read with s 1, 2 (i) and 2 (ii) 8, 10, 14 and Part 1 of the Schedule of Act 41 of 1971 – Possession of a dependence producing substance to which he pleaded guilty. The Court proceeded with the s 112 (b) questioning where after s 113 of the Criminal Procedure Act 51 of 1977 as amended was invoked, and the matter proceeded to trial. The appellant was subsequently convicted on the main count of dealing in a dependence producing substance after the trial where after he was sentenced to three years direct imprisonment.

The appellant now appeals against the sentence. Court of appeal found the trial court to have misdirected itself by over-emphasising the offence and the need to impose deterrent sentence at the expense of other equally compelling mitigating circumstances.

Kakurarume v S (CC 6/2014) [2020] NAHCMD 532 (19 November 2020)

Summary: Applicants brought bail applications on new facts. Essentially new facts were that investigations were completed; medical grounds, lengthy incarceration – and that co-accused were granted bail. This was considered with evidence and findings in the initial bail hearing.

Held - An applicant or his legal practitioner will have to ensure that the new facts they have in their arsenal are relevant, but also that it can dissipate the initial causes for the refusal of bail and satisfy the court that bail is warranted at this juncture when the conglomerate of evidence is re-assessed.

Held - Though applicants brought new facts, these facts cumulatively considered with evidence tendered in initial application have not satisfied this court that bail is warranted in this case.

Lizazi v S (CA 23/2015) [2020] NAHCMD 91 (13 March 2020)

Summary: The appellants were convicted and sentenced in the district court in Windhoek on three counts of contravening section 43(1) of the Anti-Corruption Act 8 of 2003. The essence of the charges were that the accused persons, who were employed as recruiting officers acted in concert to corruptly and un-procedurally recruit their relatives into the Namibian Police. The appellants appealed against the convictions and sentences respectively.

A portion of the trial evidence was not recorded as the tape was blank. Magistrate requested to reconstruct the missing evidence. Considerable time appears to have been spent on efforts to reconstruct the evidence, but it was to no avail. None of the role-players were able to find their notes. The missing evidence constituted cross-examination of one of the state witnesses.

Question before court whether the missing portion was material for the appeal court to assess whether the convictions were correct.

Held that the importance of cross-examination of a material witness cannot be underscored. It serves as an opportunity to test the veracity of the testimony and how it compares with that of the other witnesses on the same aspects.

Held that the appeal court cannot improvise on the whim of an idea. The court was not placed in a position to know which way the evidence swayed in cross-examination and how it compared with that of the other witnesses.

Held considering the lacuna in the evidence, the court record is not adequate for an objective assessment of the question of whether the convictions of the appellants were in order.

Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00046) [2020] NAHCMD 78 (6 March 2020)

Summary: The appellant sought a postponement to secure the presence of his legal representative to attend trial. The right to legal representation is a fundamental right. The court refused a postponement on the grounds that the matter has been on the roll for a long time and it has been postponed several times to afford the appellant to get a legal representative. Furthermore, the court ruled that counsel for the appellant undertook to be in court but he failed to do so. The court proceeded in the absence of the appellant and his legal representative. Although the right to legal representation is not absolute as it is subject to certain limitations, such limitations should only be imposed in exceptional circumstances where it is reasonable to limit such rights. The limitation of such right was not reasonable in the circumstances.

Right to a fair trial. The appellant informed the court that he could not proceed with the case in the absence of his legal representative because he had paid him to represent him. Furthermore, the appellant argued that he was not able to proceed with the trial because he was not in a position to cross-examine witnesses as he was not provided with a disclosure. The right to a disclosure is essential for proper enforcement of appellant’s right to a fair trial. Article 12 (1) (e) that provides for accused to be afforded adequate time and facilities, not only refers to physical facilities but includes access to witness statements and other documentary evidence. By not ordering the state to provide the appellant with disclosure, the court ignored the notions of justice and basic fairness. There has been a misdirection on the part of the court. The appellant was deprived of a fair trial. The nature of the irregularly vitiates the proceedings.

!Nowaseb v S (HC-MD-CRI-APP-CAL-2019/00081) [2020] NAHCMD 181 (19 May 2020)

Summary: The appellant appeared in the magistrate’s court on a charge of assault with intent to do grievous bodily harm. He was convicted as charged and sentenced to 3 years’ imprisonment. He launched an appeal against sentence which was heard and struck from the roll by this court, differently constituted, for lack of grounds of appeal. Subsequently, the appellant filed an amended notice of appeal against both conviction and sentence. The issue to be resolved is the validity of the amended notice of appeal and whether the appeal can be determined based on the amended notice of appeal.

Held, that the appellant filed a notice of appeal in a different case file where the record is exactly the same as in this matter. The appeal was heard and struck from the roll for lack of grounds of appeal.

Held further, that the notice of appeal ceased to exist after the appeal was struck from the roll and could therefore not be amended. The amended notice of appeal is therefore invalid, and nothing turns on it.

Held further, that the proceedings in the present matter are a nullity as this case was already finalised by this court and the Registrar should not have enrolled it.

Held further, that this court has no jurisdiction to hear this matter again consequently the appeal is struck from the roll.

Nuuyoma v S (CC 17/2018) [2020] NAHCMD 277 (30 June 2020)

Summary: Accused persons are facing 629 charges of fraud and theft, as well as contravention of the Prevention of Organized Crime Act 29 of 2004 (POCA) and contravention of the Anti-Corruption Act 2 of 2003 – The State called witnesses, led evidence and at the close of the case for the prosecution, accused 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, and 14, except accused 10 brought an application in terms of s 174 of the Criminal Procedure Act 51 of 1977, which provides that ‘if, at the close of the case for the prosecution at any trial, the Court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty’ – The Court followed the principles laid down in case of S v Nakale and case of S v Teek – The Court found that there is no evidence that accused 6 committed the offence referred to in the charge or any offence of which she may be convicted on the charge, and returned a verdict of not guilty in terms of s 174 of the Criminal Procedure Act 51 of 1977 – In terms of the same section, the Court discharged accused 1 and 4 on count 286, accused 5 was discharged on count 625 and count 626, and accused 14 was discharged on count 629, but the Court refused their s 174 application on the remaining charges – The Court found that accused 2, 3, 7, 8, 9, 11 and 12 have a case to answer on all the charges they are facing and dismissed their application in terms of s 174 of the Criminal Procedure Act 51 of 1977 – The evidence led so far, unless contradicted, establishes sufficient evidence upon which a reasonable Court acting carefully might convict the accused on the preferred charges.

Nghipunya v S (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020)

Summary: The appellant unsuccessfully brought an application for bail in the Windhoek magistrate court. The application was brought on affidavit and the applicant submitted one affidavit in support of his application. The respondent opposed and called two witnesses in support of its opposition.

Held, an applicant may apply for bail on affidavits, founding and supporting.

Held further, once notice is received by the state, it may decide which procedure it will follow and is not bound by the procedure followed by the applicant.

Held further, where both the applicant and the state agree to file and oppose the application through the filing of affidavits, the court may, where there is a dispute of fact, resolve same through utilising the Plascon Evans rule.

Held further, regardless of which procedure is followed, the court retains its inquisitorial role and may utilise the provisions of sections 167,186 and 274 of the CPA.

Held further, where either party proceeds by affidavit or from the bar and the other by leading oral evidence, the oral evidence tested under cross-examination carries more probative weight than the affidavit and submissions from the bar.

Held further, an applicant for bail does not per se enjoy a right to bail but a right to apply.

Held further, an applicant must specifically make out his own case and not necessarily rely on the perceived strength or weakness of the state’s case.

Held further, some grounds of appeal as they appear ex facie the record either overlap with one another; are repetitious; unclear and simply amount to conclusions reached by the drafter.

Held further, it is a trite principle of law and practice that an appellant cannot introduce additional grounds of appeal in his/her heads of argument or at the hearing which has not been encapsulated in the notice of appeal.

Held further, from the amendment of section 61, it has been expressed by our courts over time as an expression of concern by the legislature for the increase in serious crimes and thereby giving the court wider powers when dealing with offences listed under Part IV of Schedule 2 in bail applications.

Held further, the words ‘notwithstanding’ do not equate to restrict the applicability of section 61 only to when a court finds that an applicant is not likely to abscond or interfere.

Held further, a court, when exercising its discretionary wider powers in terms of section 61, should look at the evidence holistically when asking itself whether the applicant has discharged his onus on a balance of probabilities.

Held further, an applicant is not compelled to place incriminating evidence before the court and has the right to remain silent when such situation arises; however to a certain degree such applicant is called upon to place information before the court to contradict the state’s allegation of a strong prima facie case.

Held further, the court as the final arbiter would not simply accept the unsubstantiated ipse dixit of the investigating officer, the Prosecutor-General or the applicant.

Held further, a skeleton application or one riddled with mere say-so, launched by an applicant, is likely to fail for that reason and not necessarily because such applicant managed to place every allegation by the investigating officer under cross-examination in unsubstantiated dispute.

Held further, there are many reasons why it may be difficult for the state to show complete evidence during a bail application before trial commences.

Held further, factors such as the appellant and some of his co-accused held public office’s and are entangled in a serious offence where the allegation of misappropriation of public funds amounting to several millions of Namibian taxpayer’s monies, is involved; where there is more than one accused; investigations are cross-border; and possibly more arrests are to be made, must be considered.

Held further, distinguishing between the seriousness of monetary crimes and violent crimes can no longer be seen to be different in bail applications.

Held further, looking at the evidence given by the investigating officer, both orally and the documentary evidence before court, and weighed against the bare denial of the appellant, the court is satisfied that the magistrate did not misdirect herself when finding that the state prima facie established the appellant’s involvement in a criminal syndicate; having acted with common purpose in furtherance of illicit transactions.

Held further, when dealing with evidence of a crime syndicate a court must appreciate the involvement of each member and must be slow to view an individual member’s contribution in isolation, but rather in relation to the furtherance of the business of the syndicate.

Held further, the court below in these circumstances did not misdirect itself when it ruled that a remote possibility of interference was a sufficient ground on which bail should be refused.

Held further, the court a quo took correctly into account the offence, the sentence likely to be imposed, the additional charges to be levelled against the appellant and the appellant’s assets and ties to Namibia when finding that the inducement to abscond was greater than his mere ipse dixit that he will not.

Held further, there is no merit in the assertion that the court a quo required the appellant to prove his innocence. The court only followed well established principles related to the adjudication of bail applications in Namibia.

Held further, the appeal is accordingly dismissed.

Pienaar v S (HC-MD-CRI-APP-CAL-2019/00065) [2020] NAHCMD 159 (11 May 2020)

Summary: The appellant was convicted on 4 counts of fraud and 1 count of theft under false pretences in the Regional Court held at Windhoek. Taking all counts together for purposes of sentence, the appellant was sentenced to 6 years’ imprisonment of which 3 years’ imprisonment was suspended for 5 years on condition of good behaviour. He launched an appeal against both conviction and sentence. The issue for determination is whether the magistrate misdirected herself when she rejected the appellant’s defence and convicted him on counts: 1 (fraud), 2 (fraud), 5 (theft under false pretences), 9 (fraud) and 10 (fraud).

Further, whether the evidence on identification of the appellant was sufficient to sustain a conviction. Further, whether the magistrate misdirected herself when she relied on dock identification by Rossouw Carsten and Stephanus Britz to convict the appellant. Further, whether the magistrate misdirected herself when she sentenced the appellant on 6 counts when she convicted him on five counts only and what effect this has on the sentence. Further, whether during sentencing, the magistrate adequately considered the time that the appellant spent in custody pending trial.

Held, that on count 5, the appellant was charged with fraud alternatively theft but was convicted of theft under false pretences while the evidence supported the charge of theft. Held further, that the magistrate made a wrong reference when she convicted the appellant of theft under false pretences. On appeal, the court is competent to correct the charge where the appellant will not be prejudiced thereby, and the charge is accordingly corrected to read theft.

Held further, an acknowledgment of the commission of the offence by an accused in mitigation should, unless there are convincing reasons to the contrary, be accepted as confirmation of the verdict delivered. A criminal trial is a tedious process which should not be abused.

Held further, that dock identification should be approached with caution. Such evidence cannot be ignored but the weight to be attached thereto will depend on circumstances of each case. Pointing out of distinguishing features of an appellant is indicative of reliable recollection.

Held further, that from the evidence, the court a quo correctly found that the evidence supports the charges convicted of and rejected his versions for not being reasonably possibly true.

Held further, that the speed delivery of sentence is not a ground to gauge the appropriateness of the sentence passed.

Held further, that the moral blameworthiness plays a critical role during sentencing. Different sentences are justifiably imposed on different accused persons with contrasting moral blameworthiness.

Held further, that time is spent in custody pending trial counts in mitigation of sentence, but where incarceration is at the behest of the appellant, then it may not be worthy of consideration.

Held further, that where it is not apparent whether the trial court convicted or acquitted an accused on a particular charge, the accused should be afforded the benefit of doubt and be acquitted.

Held further, that the trial court misdirected itself when it sentenced the appellant on 6 charges while he was convicted on 5 charges only. The trial court misdirected itself but such misdirection is not excessive or shockingly inappropriate and therefore it is immaterial.

Held further, that a special entry it terms of s 317 of the CPA is a tool available to an accused to raise an irregularity which occurred during the trial. Raising a special entry during appeal with unmeritorious grounds is an abuse of process.

Held, that the appeal against conviction and sentence is dismissed.

Peter v S (CC 20/2018) [2020] NAHCMD 241 (1 June 2020)

Summary: The applicant was convicted and sentenced to 30 years’ imprisonment for stock theft in the High Court. After that he brought a late application for leave to appeal against the sentence. The application for condonation for the late filing of the notice was then rejected by the High Court because of an unacceptable reason for the delay. Subsequent to the Applicant’s conviction and sentence, the Supreme Court held that the mandatory minimum sentences prescribed by the legislature for a sentence of stock theft were unconstitutional. The matter rested for a while, and later the Applicant approached the High Court again in the present case with an application for leave to appeal and an application for condonation for the late filing of the application.

Held that the Judge is not entitled to override the express provision of Section 316 (6) of the Criminal Procedure Act 51 of 1977.

Held that the Applicant is not entitled to once more approach the High Court for the relief he seeks.

Held that the High Court is not competent to further express itself on the same matter.

Held that this matter should be decided by the Supreme Court on petition to it in terms of Section 316 (6) of the Criminal Procedure Act 51 of 1977.

Hence the matter is struck from the roll.

Queta v S (HC-MD-CRI-APP-CAL-2020/00065) [2020] NAHCMD 328 (3 August 2020)

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Summary: Following the refusal of bail in the Windhoek magistrate’s court, this appeal essentially attacks the reasons advanced by the magistrate in finding that the appellant is a flight risk. Additionally, the appellant complains about the magistrate’s application of section 61 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the CPA) as well as the reasoning in finding that the appellant had no emotional roots in Namibia. The appellant faces charges of dealing in controlled wildlife products under the Controlled Wildlife Products Act 9 of 2008 to the value of N$4 989760; contravening a section under the Prevention of Organised Crime Act 29 of 2004; as well as an accessory after the fact to a charge of Housebreaking with intent to steal and theft.

Held, the court factually considered that the appellant with relative ease, entered Namibia without presenting himself to an immigration officer as required by law and cannot be faulted for drawing a conclusion that the appellant may cross the border without detection.

Held further, the allegation by the appellant i.e. that he simply needs to present an employment certificate at the border post, is a fabrication.

Held further, even if the appellant provided an address where he will be residing, has a child or cousin in the territory where he is applying for bail, it does not equate to establishing deep emotional roots in that territory.

Held further, the ground of appeal attacking the magistrate’s application of section 61 of the CPA is largely academic as it does not taint the evidence and the finding by the magistrate that the appellant is a flight risk. The magistrate principally refused bail on the basis of the appellant being a flight risk. The court merely augmented this finding by stating that it would not be in the interest of the public or administration of justice to admit a person who poses a flight risk on bail.

Held further, there is no rule in bail proceedings that a court is prevented from utilizing more than one ground in the refusal of bail.

S v Aumbaasa (CC 1/2019) [2020] NAHCNLD 26 (13 February 2020)

Summary: Accused convicted of murder read with the provisions of the Domestic Violence Act of 2003. The accused and the deceased resided together in the accused’s mother’s house. Accused admitted to having stoned the deceased on the chest twice after the deceased dropped a panga he had. He further admitted that when he hit the deceased with the stone, the deceased was no longer armed. He stated that he was agitated and angry when he started hitting the deceased in the chest with a stone because he could not understand why his uncle, the deceased wanted to assault him. The deceased succumbed to the hitting. Though accused opted not to say anything in mitigation, the court was satisfied that a plea of guilty and his counsel’s submission constitute adequate mitigation. Considerable weight ought to be accorded to a plea of guilty as incentive to others. However such weight should be assessed in the light of circumstances of the case and other factors. This court held that the seriousness of the offence outweighs the accused personal circumstances and such conduct calls for a lengthy custodial sentence.

S v Balzer (CC 14/2019) [2020] NAHCMD 514 (12 November 2020)

Summary: The accused persons were charged with several counts of rape contravening s 2 (1)(a) and 2 (1)(b) of the Combating of Rape Act, 8 of 2000 among other charges. The State rested its case on evidence of the complainant who was a single witness. Evidence of single witness to be treated with caution. The court should weigh evidence, consider its merits, demerits and decide whether it is trustworthy despite contradictions and shortcomings in the testimonies.

Mutually destructive versions – When the court is confronted with mutually destructive versions, the proper approach is for the court to apply its mind to the merits, demerits of both State, defence witnesses’ evidence and to inherent probabilities of the case. The court must not isolate each piece of evidence but must look at the evidence holistically and consider whether the defence case has a reasonable possibility of being substantially true. Consideration of evidence in its totality supported by inherent probabilities proves that accused persons raped the complainant.

Accused distancing himself from his reply to the pre-trial memorandum - Although there is no rule of thumb test that the accused person should be bound by the admissions he made in his reply to the pre-trial memorandum, each case has to be treated on its own merits. Once an accused has placed his case in the hands of his legal representative, the legal representative takes control over the case and the accused cannot distance himself from the conduct of his legal representative.

S v Claasen (CC 12/2018) [2020] NAHCMD 82 (09 March 2020).

Summary: On 19 October 2015 the deceased was murdered on his farm and his property stolen. As a result of the incident three accused persons who worked for the deceased were charged with eight counts, including and amongst others, murder, housebreaking with intent to rob and robbery, defeating or obstructing the course of justice and use of a motor vehicle without the owner’s consent. Accused no’s 1 and 3 pleaded not guilty on the basis that they acted out of duress. On the other hand, accused no 2 pleaded guilty to counts, 5 (use of motor vehicle without the owner’s consent), 6 (defeating or obstructing or attempting to defeat or obstruct the course of justice), 7 (possession of firearms without a licence) and 8 (possession of ammunition). However on the remaining counts he pleaded not guilty and raised private defence.

Held, that, with regards to the circumstances that led to the firing of the first shot, there is no evidence rebutting the evidence of the expert that it would have been impossible for the deceased to hold one finger on the trigger whilst the rifle was pointed at the deceased’s abdomen during the struggle for possession.

Held, further that, there is a material contradiction between accused no 2’s plea explanation and his testimony regarding his actions during the shooting incident. Accused found to be unreliable witness rendering his defence of private defence to be false and rejected.

Held, further that, accused no 2 had the intention earlier on to steal the property of the deceased and in order to do so he had to overcome any resistance the deceased may put up. Therefore the offence of housebreaking with the intent to rob and robbery had been proved because a causal link between the killing of the deceased and the taking of the property had been established.

Held, further that, in order to decide on the defence of necessity, the court has to look at all the facts of the case.

Held, further that, whilst evidence may support a defence of necessity up to the stage where the goods were loaded onto the truck nothing showing that whatever transpired thereafter was done under duress. Therefore, accused no 1 knew property to have been stolen and made him guilty of theft. As for accused no 3 the offence of theft not proved.

Held, further that, although accused no 1 was not part of the robbery itself his actions satisfy the definition of an accessory after the fact by facilitating accused no 2’s evasion of liability.

Held, further that, the ambit of section 83 (2) of the Road and Transportation Act 22 of 1999 is wide enough to include a passenger in a vehicle. The court is of the view accused no 3 acted out of necessity when she boarded the truck.

S v Claasen (CC 12/2018) [2020] NAHCMD 184 (20 May 2020)

Summary: At the inception of the trial, three accused persons stood trial on the charges of: count 1, Murder; counts 2 and 3, Housebreaking with intent to rob and robbery (aggravating circumstances); count 4, Robbery (aggravating circumstances); count 5, Use of motor vehicle without the owner’s consent (c/s 83(2) of Act 22 of 1999); count 6, Defeating or obstructing or attempting to defeat or obstruct the course of justice; count 7, Possession of firearms without a licence (c/s 2 of Act 7 of 1996) and count 8, Possession of ammunition (c/s 33 of Act 7 of 1996).

Accused 3 was acquitted on all counts whereas accused no 1 was acquitted on count 1 and the main charge in counts 2 and 3, however convicted on the competent verdict of theft on both charges; count 4, he was convicted as an accessory after the fact; count 5 and count 7 with Possession of a revolver. Accused no 2 was convicted on counts 1, 2, 3, 4, 5, 6, 7 (rifles) and count 8. Both accused no 1 and 2 opted not to give evidence in mitigation of sentence but rather place their personal circumstances on record by counsel from the bar. It was submitted that accused no 1 is a first offender, a Namibian citizen aged 29 years, single and has one son aged 8 years whose current whereabouts are not known. The accused no 2 has one previous conviction of theft from his employer in 2009 for which he was given a fine. It was also submitted that accused no 2’s plea of guilty to counts 5 – 8 is indicative of him having taken the court into his confidence and showing remorse. Counsel for the defence both submitted that the court should impose fines on the lesser offences, alternatively, wholly suspended sentences. Contrary thereto the state suggested the imposition of direct imprisonment on each of the counts the accused persons stand convicted of. When the court raised the issue with counsel as to whether the accused persons have the financial means to pay fines, moreover where the imposition of direct terms of imprisonment is likely to be imposed on some of the counts, there was no clear answer forthcoming. The crimes committed are serious. The victim whom the two accused stood in a relationship of trust with was their employer, of advanced age and living alone on his farm. As such, he was vulnerable and became the victim of a vicious attack by accused no 2 on him during which he was fatally wounded in the abdomen when shot twice with a rifle. The reason for killing the deceased remains a mystery as the second accused’s evidence was rejected as false as to what led to the shooting and subsequent death of the deceased. Both accused persons chose not to testify in mitigation and abided by what was placed on record on their behalf by counsel. Thus, this court is unable to determine the genuineness of their alleged contrition.

Held, the court must guard against overemphasising the retributive and deterrent aspects of punishment at the expense of the accused’s personal circumstances. There is a material difference between the involvement of the accused persons in the commission of the respective crimes and the accompanying blameworthiness.

Held, when balancing and harmonising competing principles relevant to sentence, the court need not give equal weight to each factor and may emphasise one or more factors at the expense of others.

Held, bearing in mind that crimes like murder and robbery generally attract lengthy custodial sentences, the court must endeavour to find a balance between the accused persons’ blameworthiness and the cumulative effect of the sentences imposed on the respective counts.

Held, the mitigating factors in favour of the accused are far insufficient to be regarded as retribution for the despicable crimes committed.

Held, remorse must come from the heart and must manifest itself in some form or manner i.e. by testifying and expressing one’s feelings of remorse, or to act in some positive way showing that repentance by the accused person is sincere. This is usually done by the accused when giving evidence in mitigation of sentence.

Held, the aggravating circumstances by far outweigh the circumstances relied on by the accused persons in mitigation of sentence.

Held, preparatory steps were taken by accused no 2 to gain access into the home of the deceased and appropriate some property prior to the killing and which the accused must have realised would be discovered by the deceased upon his return from the cattle post.

Held, accused no 2 planned his actions to gain access into the house and possess a firearm in advance. The return by the deceased from the cattle post was to be expected and his elimination premeditated; which accused no 2 was prepared for, not the deceased.

Held, it was a brutal attack on a vulnerable person of advanced age who really stood no chance against the physical power of the much younger accused who had armed himself prior to the attack.

Held, it is necessary to send out a clear message that conduct, as demonstrated by the accused when killing and robbing an innocent person, will not and should not be tolerated.

Held, where serious crime is involved, the objectives of punishment is to put specific emphasis on deterrence and retribution. Though the personal circumstances of the accused persons deserves equal consideration, the interest of society considered together with the seriousness of the crimes committed, are paramount.

Held, where both the accused were convicted of the unlawful possession of one or more firearms, a declaration by which each is found unfit to possess firearms, seems appropriate.

Held, accused no 1 is sentenced to an effective term of imprisonment of 6 years.

Held, accused no 2 is sentenced to an effective term of imprisonment of 38 years.

S v David (CC 11/2018) [2020] NAHCNLD 38 (09 March 2020)

Summary: The accused was indicted on three charges namely, attempted murder, murder and murder read with the provisions of Combating of Domestic Violence Act, Act 4 of 2003. Accused pleaded not guilty on all charges and during the trial raised private defence. He made certain admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977. The state called several witnesses in proving its case and at the end of the state case accused testified under oath and had no witnesses to call. On count one the court heard the evidence of a single witness and mutual destructive evidence. I cautioned myself of the danger of convicting the accused on such evidence. With regard to count two and three it was not disputed that the accused and state witnesses were at Timo’s bar from where accused pulled the deceased in count three outside. Eye witnesses testified that they saw accused kicking the deceased in the stomach outside the bar. That resulted the deceased in count two to intervene and eventually was stabbed to death. Thereafter accused stabbed the deceased in count three several times and she died at the hospital the following day. Accused in his plea explanations indicated that he acted in private defence in all three counts. He also made admissions in respect of count two and three in terms of section 220 of the Criminal Procedure Act 51 of 1977. The court held that the evidence of the complainant was not reliable as it was unclear short and flawed with ambiguity and the balance leaned to the credibility of the defence in count one. The court further held that despite discrepancies in the eye witnesses’ evidence, they were not material to reject the evidence in its totality. The court further held that defence failing to meet requirements of private –defence in count two and three. The court found accused not guilty on count one and guilty as charged on count two and three.

S v Dawid (CC 09/2017) [2020] NAHCMD 442 (24 September 2020)

Summary: The accused was charged with murder read with the provisions of the Combating of domestic violence Act 2003. He pleaded not guilty and gave no plea explanation. Mr. Shiimi testified that on that fateful night he heard a child crying and saying “papa I am sorry”. He further heard a loud bang and then silence. He went to investigate and saw the deceased laying on the floor bleeding from the nose and head. He then saw the accused lifting the deceased and bashing his head against the floor on two occasions. He went to call Ms. Roslyn Oarum (Ms. Roslyn) and together they witnessed how the accused again bashed the deceased’s head against the floor. He tried to open the room of the accused, but it was locked from the inside. He went to call Ms. Lena Nangula Iipinge (also known as Meme Nangula) and Ms. Roslyn, Meme Nangula corroborated his version. Meme Nangula testified that she called the accused to open the door three times and only after the third time did he open the door. She entered the house and saw that the deceased was no more. The accused testified that whilst he was laying on the bed, he heard the deceased crying and saying “It is Shiimi papa”. He testified that he saw Mr. Shiimi lifting the deceased and let loose on the floor and then ran out of the room. He denied that he was the one who killed the deceased.

Held, that Shiimi’s evidence was clear and credible. That he saw how the accused bashed the deceased’s head against the floor.

Held further that Roslyn and Meme Nangula corroborated the version of Mr. Shiimi.

Held, further, that the version of the accused is false beyond a reasonable doubt.

Held further that the accused is guilty of murder with direct intent.

S v Driedmond (CR 110/2019) [2020] NAHCMD 6 (20 January 2020)

Summary: Accused charged and convicted on count 1 and 2 of possession of prohibited dependence producing substance, namely methaqualone and 2 cannabis, respectively. Both substances are listed as prohibited dependence producing substance, the possession whereof constitutes a contravention of section 2(b) of Act 41 of 1971.

Held: The fact both substance are different substance is correct, what they have in common is that both are prohibited dependence producing substances.

Held: Section 2(b) relates to possession of prohibited dependence producing substance and not possession of cannabis or methaqualone. Therefore a single crime is committed.

Held: The conviction on count 1 is altered that the accused was in possession of both cannabis and methaqualone.

Held: In respect of Count 1 the accused is sentenced to a fine of N$5.000 or 12 months imprisonment of which N$3 000 or 5 months’ are suspended for 5 years on condition the accused is not convicted of a contravention of Section 2(b) of Act 41 of 1971 committed during the period of suspension.

S v Goliath (CC 23/2019) [2020] NAHCMD 545 (26 November 2020)

Summary: Accused was arraigned on two charges of a murder, and three charges of attempted murder. Initially, the accused pleaded guilty on count 2, a murder charge. The plea explanation stated that he consumed a substantial quantity of alcohol and even though he was intoxicated and angry he could still appreciate that his actions were wrongful. He prayed for a conviction on murder with diminished criminal capacity. The court was of the opinion it does not constitute an unequivocal plea of guilt. Plea altered to that of not guilty which left the State with duty to lead evidence on all five charges.

Held – Not sufficient to merely say: ‘I was drunk and cannot remember what happened,’ in order to invoke impunity.

Held – The displacement of the presumption of mental capacity, it is an arduous task to attempt to attempt without the assistance of medical evidence.

Held – Defence version that accused remembers one of the stabbing incidents and other activities, but not the other stabbing incidents which occurred in the same night, has a hollow ring to it and is not credible in the circumstances.

Held – Defence of temporary of non-pathological criminal incapacity rejected as false beyond reasonable doubt.

S v Goliath (CC 2/2020) [2020] NAHCMD 575 (8 December 2020)

Summary: The accused was convicted on charges of murder, assault with intent to do grievous bodily harm, assault by threat, housebreaking with intent to murder and attempted murder. The court was faced with the question as to what appropriate sentence to pass. The court looked at the triad of factors which consisted of the crime, the interest of society and the personal circumstances of the accused. The time which accused spent in custody pending his trial was also considered.

Held, that the period which the accused spent in custody is not arithmetically discounted and subtracted from the overall sum of imprisonment imposed and that such factor should be considered together with the culpability of the accused and his moral blameworthiness in order to arrive at an appropriate sentence.

Held further, that the weight to be attached to a plea of guilt depends on the circumstances of each case. The accused pleaded guilty to the murder charge, because he had no other option due to the fact that he committed the offence in the presence of the deceased’s mother, hence the overwhelming evidence against him. Therefore, less weight is attached to the accused’s guilty plea.

Held further, that if charges are closely related or arose from the same course of action and if the cumulative effect of the sentences is likely to be excessive or to induce a sense of shock, then the sentences should run concurrently.

S v Iipinge (CC 11/2017) [2020] NAHCNLD 95 (27 July 2020)

Summary: The accused was indicted for murder read with the provisions of the Combating of Domestic Violence Act. The accused admitted that he hit the deceased with a clenched fist in the face and stabbed her with a knife. The deceased died at the scene as a result of the stabbing wound. He pleaded guilty and was convicted as charged. Accused opted to testify in mitigation before sentence. Considerable weight was accorded to a plea of guilty, he is a first offender and the fact that accused acted under emotional stress. However, the fact that accused took the law into his own hands and the offence was committed within a domestic relationship are aggravating factors calling for a lengthy custodial sentence. This court accorded less weight to his personal circumstances and sentenced the accused to 23 years imprisonment.

S v Jonas (CC 14/2017) [2019] NAHCMD 525 (3 December 2019)

Summary: The accused was convicted of three counts of rape and three counts of trafficking in persons. She is a 34 year old single mother of five minor children who have absent fathers. She has been in custody since 24 November 2015. Regard should be had to the degree of culpability or blame worthiness exhibited by the accused in executing the crime. The period which accused spent in custody pending finalisation of the trial and the genuine remorse she showed for her actions are mitigating factors. However, she committed premeditated offences. Sentences must reflect the seriousness of the offence and fit the offender. The minimum prescribed sentence is not to be departed from lightly and for circumstances to be substantial and compelling, they must be such as cumulatively to justify a departure from the standardised response chosen by the legislature. The personal circumstances of the accused do not qualify cumulatively to justify a departure from the mandatory sentence.

S v Katanga (CC 23/2018) [2019] NAHCMD 21 (23 January 2020).

Summary: The accused is charged with murder, robbery with aggravating circumstances and attempted robbery with aggravating circumstances. It is alleged that the accused person murdered the deceased who was a farmer and his employer by shooting at him and assaulting him all over his body with sticks, stones and unknown objects and proceeded to rob him of certain properties and further attempted to rob him of other properties. The accused pleaded not guilty to all counts and opted to remain silent. During cross examination the accused raised what appeared to be a defence of an alibi. Forensic evidence established that the grooves on the projectile retrieved from the thigh of the deceased substantially matched the grooves on the firearm (revolver) which was seized from the accused on the same day of the murder.’

Held, that, the court’s approach to circumstantial evidence is that such evidence should not be assessed in piece-meal but should rather be considered in its totality. In so doing inferences to be drawn should be consistent with proven facts and should exclude every other reasonable inference.

Held, further that, the behaviour of the accused person of running away from the scene without ascertaining whether the deceased sustained injuries or not subsequent to the firearm going off during a struggle with the deceased when the firearm pointed at the deceased signals a guilty mind. Moreover, where the accused testified that when he ran away from the scene, he left the deceased seated leaning against the wall and was breathing heavily.

Held, further that, there was credible evidence from the state witnesses that the accused was arrested hours after the murder while in possession of the cellular phone belonging to the deceased and despite a bare denial of this evidence no logical explanation for such possession came forth from the accused.

Held, further that, the injuries sustained by the deceased, the broken sticks, bloodied stones, blood drag marks observed at the scene and the manner in which the house of the deceased was ransacked was inconsistent with the explanation of the accused.

Held, further that, the accused’s explanation was not reasonably possibly true and had to be rejected as false.

S v Katanga (CC 23/2018) [2019] NAHCMD 66 (27 February 2020)

Summary: The accused was indicted in the High Court on the following charges of count 1 - murder, count 2 - robbery with aggravating circumstances and count 3 – attempted robbery with aggravating circumstances. He pleaded not guilty to all counts and offered no plea explanation but opted to remain silent. On 23 January 2020, this court found that the state proved its case beyond reasonable doubt on charges of murder with direct intent on count 1 and robbery with aggravating circumstances on count 2 and convicted the accused accordingly. He was acquitted on attempted robbery with aggravating circumstances on count 3 as the evidence led by the state was found wanting on that charge.

Held that, in sentencing courts should consider the triad principles, namely: the crime, the offender and the interest of society as well as the fourth element of mercy, but mercy should not be misplaced pity.

Held further that, although accused is a first offender, such is outweighed by the seriousness of the offences and need for the court to protect society from the accused and would-be offenders.

Held further that, the accused murdered the deceased in a premeditated, calculated and gruesome manner which deserves condemnation.

Held further that, the accused was in a position of trust towards the deceased in his capacity as the deceased’s employee and the accused abused such trust which aggravates the sentences.

Held further that, the number of cases of murder and robbery on our court roll shows no sign of abatement and courts should play its role by imposing severe sentences to deter would-be offenders.

S v Kashonga (CC 05/2020) [2020] NAHCMD 293 (16 July 2020)

Summary: The accused was indicted in the High Court on 2 counts of murder and 1 count of housebreaking with intent to steal and theft. He pleaded guilty to all counts and was convicted on that basis. Evidence led in mitigation and aggravation established that the accused killed Hendrik Beukes on 24-25 May 2019 following an altercation. While the deceased was on the ground, the accused picked up a huge stone measuring 30cm in width and repeatedly, on more than 4 times, threw it to the head of the deceased. The head of the deceased was resultantly deformed, his skull was crushed and part of the brain was missing. He died as a result of severe head injuries. On 25 May 2019, the accused met Daniella Swartbooi (the deceased in count 1) in Rehoboth. He demanded his money which was previously taken by her. She denied taking money from him and ran away. He chased her, caught up with her and stabbed her with a knife on the chest. She died as a result of the stabbing. On the charge of housebreaking with intent to steal and theft, the accused broke a padlock and stole a box of matches and tobacco.

Held that, the triad principles of sentencing revisited: the crime, the offender and the interest of society as well as the fourth element of mercy, but mercy should not be misplaced pity.

Held further that, within 24 hours, the accused took away the life of 2 persons under different circumstances, thus depriving them of their right to life, and deserving of severe sentences.

Held further that, pleading guilty is a mitigating factor, but where such plea is made in the face of overwhelming evidence, it becomes a neutral factor which carries less weight.

Held further that, remorse, even though expressed at the end of the trial may be found to be genuine depending on the facts and circumstances of each case. The seriousness and brutality of the offences committed outweighed the personal circumstances of the offender inclusive of remorse.

Held further that, time spent in custody pending trial should be judicially considered in mitigation together with all other factors relevant to sentencing.

Held further that, the barbaric and gruesomeness of the murder committed against a friend and a defenceless woman is aggravating to the core.

Held further that, courts should not just be institutions which balances the scales of justice in sentencing but should further protect the society from unscrupulous offenders and would be offenders by passing severe sentences on persons who commit serious crimes.

Held further that, in serious cases, retribution and deterrence purposes of punishment should carry a lot of weight while rehabilitation of the offender should play a limited role.

Held further that, the accused behaved like an animal when he savagely attacked Hendrik Beukes and chased after Daniella Swartbooi like a predator pursuing prey, which qualifies him to be worthy of being uprooted from society.

Held further that, the accused ruined the lives of the families of the deceased persons, his own life and the lives of his family for which severe sentences is the price to pay.

Held further that, the nature of the offences of murder justifies the imposition of the most severe form of sentence possible in this jurisdiction, namely, life imprisonment.

Held further that, as per s 99(2) of the Correctional Services Act 9 of 2012, any sentence imposed is to be served concurrently with the earlier sentence of life imprisonment.

S v Koper (CC 6/2019) [2020] NAHCMD 312 (24 July 2020)

Summary: The accused appeared on two charges of attempted murder and of Contravening section 2(1) (a) of the Combating of Rape Act, 8 of 2000. These charges relate to the rape and attempted murder of Lucia Jaartze on 27 November 2014 at or near Karasburg in the district of Karasburg. The accused person pleaded not guilty to both charges. On the day of the incident the complainant was on her way to an engagement party taking place at another house in the same settlement. She then met the accused on her way who informed her that tonight is their night. She rebuked him and said he is just a child whereafter he said that she and her man are not having sexual intercourse and grabbed her. He strangled her and they started to wrestle whereafter he pulled off her panties and inserted his penis into her vagina. He was moving his body in a very rough manner. When he was done, he stood up and walked away. During this encounter he hurt her on her breasts and mouth. He also bit her on her arm and she had abrasions on her knees. He bit her after she tried to remove his hand from her neck. She thought that he was going to kill her. She was able to see his face and recognized his voice as that of Nicky, the accused. She could see clearly as there was a strong light beam at the house of Joseph Kooper which provided light in the area. She testified that she recognized the accused when he was about 5 – 6 meters from her. She could see about 50 – 60 meters with the light from the house of Joseph Kooper. She knew the accused person very well as he visited their house like a child in the house and they fed him from time to time. The accused denied being the perpetrator in the rape of the complainant.

Held that the complainant was a single witness as far as it concerns the allegations that she had been raped by the accused, and that although a court may convict on single witness evidence, it must be satisfied that in every material respect the testimony was satisfactory, and that the truth has been told.

Held that although the complainant, witnesses and accused made reference to different dates, they were all referring to the same events.

Held further that it is established law that the accused does not bear the burden of proof when raising an alibi defence. When faced with an alibi defence the court is required to assess the alibi in the same way as any other defence and must decide whether it is reasonably possibly true or whether it should be rejected as false beyond reasonable doubt.

S v Levi (CC 22/2019) [2020] NAHCMD 218 (11 June 2020)

Summary: The accused was indicted in the High Court on charges of murder and housebreaking with intent to murder and attempted murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003, alternatively, housebreaking with intent to murder and assault by threat. He pleaded not guilty to all counts, offered no plea explanation and opted to remain silent. It is alleged that the accused, who was in a domestic relationship with a Rolena Garises and was involved in a quarrel with her during the night of 11-12 November 2018 at her house after forcing the door open and entering the house. It is further alleged that in the house, the accused grabbed Ms. Garises, pressed a knife against her neck and throat and threatened to cut off her head. As alleged, the deceased came to her rescue and the accused stabbed the deceased with a knife on his neck to death. The accused pleaded not guilty to all counts and chose not to disclose the basis of his defence but to remain silent. During the trial the accused raised the private defence, coupled with the defence that he stabbed without intention to kill and therefor killed by mistake. He denied the charge of housebreaking with intent to murder and attempted murder together with the alternative charge.

Held, that evidence should be evaluated in its totality and all evidence led should be accounted for.

Held further, that a private defence is possible where the attack has commenced or is imminent and retaliation does not amount to a private defence.

Held further, that the defence of stabbing the deceased by mistake cannot be sustained on the proven facts of the case.

Held further, that the behaviour of an accused after the incident may, in appropriate cases, prove his intention.

Held, that evidence of a single witness should be approached with caution.

Held further, that the accused’s explanation to the charge of murder was not reasonably possibly true and was to be rejected as false.

Held further, that the court doubts whether the offence of housebreaking with intent to murder and attempted murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003, alternatively, housebreaking with intent to murder and assault by threat was proven. Where doubt exists, accused should be given the benefit such doubt.

S v Levi (CC 22/2019) [2020] NAHCMD 257 (29 June 2020)

Summary: The accused was indicted in the High Court on the charge of murder and that of housebreaking with intent to murder and assault by threat. He pleaded not guilty to both counts, offered no plea explanation and opted to remain silent. On 11 June 2020, this court after hearing evidence, convicted the accused on the charge of murder with direct intent. The accused was found not guilty and acquitted on the charge of housebreaking with intent to murder and assault by threat.

Held that, in sentencing, courts should consider the crime, the offender and the interest of society as well as the element of mercy together with the purposes of sentencing.

Held further that, substantive time spent in custody awaiting trial should be considered in sentencing. The effect thereof on the sentence will vary from case to case.

Held further that, the nature and seriousness of the offence of murder calls for lengthy period of imprisonment in sentencing and courts should play its part in the process.

Held further that, it is aggravating that the deceased intended to restore peace when he lost his life.

Held further that, remorse although expressed at the late stage of the trial, considered together with the observation of the court, found to be genuine.

S v Lulatelo (CC 10/2016) [2020] NAHCNLD 63 (5 June 2020)

Summary: The accused pleaded not guilty to all six charges preferred against him and gave a statement in terms of section 115 of Act 51 of 1977. In his plea explanation he stated that he was suffering from a mental illness that rendered him incapable of appreciating the wrongfulness of his actions and to act in accordance of his appreciation. The plea explanation was supported by the psychiatric report compiled in terms of section 79 of the Criminal Procedure Act 51 of 1977. It was not expressly disputed or accepted by the parties. The State called ten witnesses and accused exercised his rights to remain silent and called no witness. No evidence to the contrary was produced .The Court despites having satisfied that accused committed all the acts levelled against him in all counts, found no cogent reasons why it should reject the final opinion of the psychiatrist as indicated in exhibit “G” thereof. The accused is ordered to be detained in a psychiatric hospital or prison pending the signification of the president in terms of section 78(6) of the Act.

S v Masuna (CC 11/2019) [2020] NAHCMD 465 (9 October 2020)

Summary: The accused left with deceased from one of the bars in Gobabis to go home in the evening of 9 June 2016 – No witness saw the accused leaving with the deceased that night – The deceased was the girlfriend of the accused and she was eight months pregnant – The deceased was found dead in the morning of the next day – The accused helped the police in following the footprints of the person that left the scene in an attempt to identify the perpetrator – The police could not find the perpetrator and released all the suspects they arrested – In 2017 the police received new information in relation to the death of the deceased which led to the arrest of the accused – The accused admitted to police officers that in the evening of 9 June 2016 he went to get the deceased from the bars where she was drinking and strangled the deceased when they were on their way home, and left her there – The accused also made a confession to a magistrate that he strangled the deceased – The accused testified that the deceased was alive after he strangled her, after which he left her and went home to sleep – The post-mortem report shows that the deceased died of asphyxia due to manual strangulation, and the report shows an observation of fine linear abrasions on the skin of the neck which were possibly caused by nails through handhold – The court found that the only inference that can be drawn and is consistent with the proved facts before court is that the accused murdered the deceased – The court found that there is no evidence presented to show that the accused is guilty of rape – Consequently, the accused is found guilty of murder and acquitted of rape.

S v Masuna (CC 11/2019) [2020] NAHCMD 587 (24 November 2020)

Summary: The accused has been found guilty on charge of murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003. The accused killed his girlfriend, Magdalena Gamras during the period of 9 – 10 June in 2016 at Gobabis, by strangling her. A wife of the deceased’s uncle testified in aggravation and Mr Siyomunji addressed the court in mitigation, on behalf of the accused.

Held, that in deciding what a proper sentence should be, the court will take into account the accused’s personal circumstances, the nature and extent of the crime on which the accused stand convicted, together with the circumstances under which it was committed, and the court will have regard to the interests of society.

Held, that the accused chose to strangle the deceased to death in a manner that can only be described as brutal and callous.

Held, that the fact that the deceased at the time of her death was in a well advanced state of pregnancy with the accused’s child in itself aggravates the offence.

Held, that as far as the interests of society are concerned, crimes committed during the course of domestic relationships are rightfully regarded as serious crimes.

Held, that in this particular case the nature of the crime and the manner in which it was committed and the interests of society considerably outweigh the personal circumstances of the accused.

Held, that in the case of the accused the, the element of mercy carries very little weight.

S v Mateus (CC 2/2020) [2020] NAHCNLD 101 (5 August 2020)

Summary: The accused pleaded guilty to both charges of murder and escaping from lawful custody. He was convicted upon his own admission. In his plea statement, accused stated that on 15 August 2018 he agreed to meet with the deceased in order to give him back the transport money which she took the previous night without his consent. However after they met she informed him about a miscarriage and blamed him for being the cause of the miscarriage. She further accused him of sleeping around with other woman and bringing sexually transmitted diseases to her. Accused further admitted to having struck the deceased several times with a panga causing injuries. Accused stated that he did not intent to murder the deceased but it was only because of those bad feelings. After murdering the deceased, he ran away but was arrested. He also admitted to having escaped from lawful custody after he was booked out of the cells for purposes of a pointing out but was rearrested. His admission of brutally assaulting the deceased is consistent with the chief findings in the post mortem report that the deceased sustained extensive occipital linear fracture with traumatic brain injury, cerebral haemorrhage.

Held that; no mitigating factors warranting a lenient sentence to be imposed.

Held further that; it is rather aggravating that the offence of murder was committed in a domestic relationship and lengthy custodial sentence inevitable. Accused is sentenced to 30 years on murder and 12 months imprisonment on escaping from lawful custody.

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 3 (16 January 2020)

Summary: The state applied to court to have the statement made by the accused during pre-trial proceedings in terms of section 119 of the Criminal Procedure Act declared admissible. The accused objected thereto on two intertwined grounds: firstly, that the investigator informed him of the nature and content of the statement made to the magistrate and threatened him to tell the magistrate exactly what he was informed, failing which, he would not be granted bail; secondly, that he was promised bail in the event that he tells the magistrate as per information from the investigator.

Held, that the evidence led established that by the time the accused appeared in court for the section 119 proceedings he was well knowledgeable of his rights as an accused person, as such rights were explained to him prior to his court appearance by the investigator when he was charged.

Held further, that subsequent to his guilty plea and while fully comprehending his rights the magistrate questioned him as to whether he was forced, threatened or influenced to plead guilty to which he responded in the negative.

Held further, that from the evidence it is apparent that the accused was not threatened, promised bail nor told what to inform the magistrate, resultantly the section 119 plea proceedings are ruled admissible.

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 219 (11 June 2020)

Summary: The accused was indicted in the High Court on charges of murder and robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977. He pleaded not guilty to both counts, offered no plea explanation and opted to remain silent. It is alleged that the accused, who worked for the deceased as a gardener violently assaulted the deceased with bricks and other objects on 7 August 2017. He tied the deceased and hanged him with an electrical cable. The deceased died of hanging. The accused then locked the body of the deceased in the bathroom and stole several properties belonging to the deceased. The accused pleaded not guilty to both counts and opted not to disclose the basis of his defence but to remain silent. During the trial the accused raised an alibi defence, that he was not at the scene on 17 August 2017, as he when he woke up in the morning from his residence, he just hiked to Outjo in order to go and visit his daughter.

Held, that evidence should be evaluated in its totality and not on a piecemeal basis.

Held further, that where an alibi defence is raised, the onus is on the state to prove that such alibi is false beyond reasonable doubt and no burden rests on the accused.

Held further, that where no direct evidence exists, a court may convict based on circumstantial evidence, provided that the inference to be drawn is consistent with all the proven facts and that the proven facts excludes all other reasonable inferences. R v Blom 1939 AD 188.

Held further, that the doctrine of recent possession revisited and applied.

Held further, that the accused’s explanation to the charge of murder and robbery with aggravating circumstances was not reasonably possibly true and is rejected as false.

Held further, that the evidence proved beyond reasonable doubt that the accused was guilty of murder and robbery with aggravating circumstances and he is so convicted.

S v Mbemukenga (CC 10/2018) [2020] NAHCMD 262 (30 June 2020)

Summary: The accused was indicted in the High Court on the following charges: 1 – murder and 2 – robbery with aggravating circumstances. He pleaded not guilty to both counts, did not provide a plea explanation but opted to remain silent. On 11 June 2020, after evidence was led, this court convicted the accused as charged on murder with dolus directus for killing a 79 years old male. He hit the deceased with a brick on his head, tied up his hands behind his back and tied a robe around his neck next to a urinal. The deceased died of hanging. The accused was further convicted of robbery with aggravating circumstances after assaulting the deceased, ransacking his house and stealing his properties.

Held that, the triad principles of sentencing revisited: the crime, the offender and the interest of society as well as the fourth element of mercy, but which should not be misplaced pity.

Held further that, employment contributes to economic growth, and employers should be honoured and cherished for providing employment to better the livelihood of the employees.

Held further that, time spent in custody awaiting trial should be judicially considered in mitigation.

Held further that, the accused was in a position of trust towards the deceased, which he abused out of greed.

Held further that, murder and robbery cases are a daily occurrence on our court roll, and courts should severely punish offenders in condemnation of such offences.

Held further that, remorse is a mitigating factor but if not expressed, it aggravates the sentence.

S v Mbok (CC 4/2011) [2020] NAHCMD 263 (15 June 2020)

Summary: The three Accused are charged with ten main counts, together with alternatives, of contravening various provisions of the Anti -Corruption Act, 8 of 2003.The Accused were initially four, but one of the Accused, Ms. Thomas, pleaded guilty and sentenced. The other three pleaded not guilty. The trial was separated. Ms. Thomas turned state witness. On the instruction of the ACC (Anti-corruption Commission), Ms. Thomas was sent, with a recording device, to Accused 3 to secretly record incriminating conversations she had with Accused 3. On three occasions, she recorded the conversations and handed the recording device to the ACC. The recordings were done without Accused 3’s rights to remain silent, not to incriminate himself and the right to legal representation being explained to him. The recordings and the transcription thereof were not disclosed to Accused 3 until after Ms. Thomas testified in the main trial. The State sought to introduce the recordings and the transcriptions thereof into evidence. Accused 3 objected to that on the basis that his rights to a fair trial; to privacy and to equality were violated.

Held that Accused 3’s rights to remain silent, not to incriminate himself were not explained to him when the recordings were done and accordingly his rights were violated.

Held further that his right to be treated equal before the law like any other suspect was also violated.

Held further that the failure not to disclose the recordings earlier violated Accused 3’s right to a fair trial.

Held further that the late disclosure of the recordings did not vitiate the trial as the prejudice suffered by Accused 3 as a result of late disclosure could be cured by a postponement to enable him to prepare on the issue of the recordings.

Held further that the recordings and the transcriptions thereof are ruled inadmissible.

S v Mensah (CC 15/2018) [2020] NAHCMD 236 (19 June 2020)

Summary: The accused, charged with Murder, Assault with intent to do grievous bodily harm, Pointing of a firearm (c/s 38(1) of Act 7 of 1996), Possession of a firearm without a licence (c/s 2 of Act 7 of 1996), unlawful Possession of ammunition (c/s 33 of Act 7 of 1996), Theft, Attempted murder Alternatively, Negligent discharge or handling of a firearm (c/s 38(1) (l) of Act 7 of 1996) and Discharging a firearm in a public place (c/s 38(1)(o) of Act 7 of 1996), handed up a statement prepared in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 (CPA) pleading guilty to the charges of Assault with intent to cause grievous bodily harm, Possession of a firearm without a licence, Unlawful possession of ammunition, Discharging a firearm in a public place and the alternative charge to Attempted murder, Negligent discharge of a fire-arm. He pleaded not guilty to the remainder of the charges and duly handed up a section 115 statement in terms of his pleas of not guilty. The state only accepted the pleas of guilty in respect of the charges of Assault with intent to do grievous bodily harm and Discharging of a firearm in a public place. In respect of the remaining counts, the court entered pleas of not guilty in respect of section 113 of the CPA. The court was satisfied that the accused admitted the elements of the former offences and found the guilty as charged.

In the early hours of 23 December 2017, the accused, armed with a 9mm pistol which he picked up, pointed the said firearm towards the head of a major male complainant and discharged one round, fortunately delivering a near miss to the complainant’s head. The accused later fired a further 2 shots into the air within the Donkerhoek residential area. Later that same fateful morning, the accused assaulted another major male complainant with a bottle in the face and moments thereafter shot and killed a major female person, the deceased. The accused raised the defences of private defence and that he did not intend on stealing the firearm, but only unlawfully possessed it and during submissions raised intoxication which caused him diminished criminal capacity as a defence.

Held, the accused realised that someone could have lost the firearm and that it was obviously not abandoned where found; thus, not an instance of res nullius.

Held, on diverse occasions the accused fired several shots with the pistol, from which it could be deduced that he assumed and exercised the rights of an owner of the firearm. The only reasonable conclusion to come to is that the accused unlawfully appropriated the pistol with intent to permanently deprive the lawful owner of his property.

Held, in respect of the charge of attempted murder there is material deviations from accused’s defence of having acted in private defence and the reason for discharging the firearm. It also differs markedly from his earlier statement and inevitably will adversely impact on his credibility.

Held, the offence of assault with intent to do grievous bodily harm, to which the accused pleaded guilty, is closely related in time and place to the two subsequent offences of pointing of a firearm and murder, which followed in quick succession.

Held, the only evidence about the accused’s loss of memory during the pointing of the firearm immediately before discharging the firearm, is the accused’s mere say-so. In the absence of persuasive evidence in support of the accused’s claim of lacking criminal capacity, based on intoxication when he so acted, his explanation in light of all the evidence, does not appear to be reasonably possible.

Held, the belated defence of intoxication raised only in the end, is clearly an afterthought and a direct consequence of the accused’s poor performance under cross-examination when giving conflicting evidence.

Held, the lack of additional factors placed before court, render the significance of the blood alcohol results ambiguous and, standing alone, diminutive.

Held, in respect of the pointing of a firearm and murder charges, the testimony of the accused is neither clear nor consistent with earlier statements he made at the earlier stage of pleading. Not only was he uncertain as to the number of persons who were present, he undoubtedly fabricated evidence about him having been attacked by two young men as stated in his plea statement.

Held, the accused’s version of his intention to fire warning shots into the air in both instances, are not merely improbable, but without a doubt false and falls to be rejected where in conflict with other credible evidence.

Held, it can safely be accepted that the accused acted with direct intent to kill.

S v Mensah (CC 15/2019) [2020] NAHCMD 256 (25 June 2020)

Summary: The accused has been found guilty on charges of Murder with direct intent, Assault with intent to do grievous bodily harm, Pointing of a firearm (c/s 38(1)(i) of Act 7 of 1996), Possession of a firearm without a licence (c/s 2 of Act 7 of 1996), unlawful Possession of ammunition (c/s 33 of Act 7 of 1996), Theft, Attempted murder and Discharging a firearm in a public place (c/s 38(1)(o) of Act 7 of 1996) following a tragic night where the accused allowed himself to succumb to violent behaviour, which led to the assault of more than one person and the loss of life. The state led evidence by the mother of the deceased who indicated that she not only lost a daughter but lost the financial support she received from her. This financial support has also been taken from the deceased’s four children and that they lost their primary care-taker and were subjected to being separated; two living with the grandparents at Stampriet and the other two with their biological father in Windhoek. The accused testified in mitigation relating to court that he has a drug and alcohol addiction and suffered from depression due to economic hardships and his divorce. Acknowledging the seriousness of his crimes and that he must be punished for taking someone’s life and that he will be imprisoned for long. He said his actions are not testament of his up-bringing and that he took wrong turns in life. His evidence was supported by his father, who testified that he has no doubt that deep down the accused is a good person but that he has lost direction in life due to drug addiction. He is alive to his son’s anger issues and past failures at rehabilitating. He believes that the accused, with the necessary support and during incarceration will become a better person.

Held, the crimes committed by accused generally attract direct imprisonment, the duration of which would mainly depend on the circumstances under which the crimes were committed and the blameworthiness of the offender.

Held, the crimes were committed whilst under the influence of alcohol, rendering his behaviour marginally less reprehensible.

Held, the consumption of alcohol did play some part in the accused’s lawless conduct that evening. Although it does not excuse the crime, it mitigates the punishment to be meted out to the accused.

Held, liquor can arouse senses and inhibit sensibilities. It is for the state to discount it as a mitigating factor, to show that it did not materially affect the accused’s behaviour.

Held, in order to be a valid consideration and constituting a mitigating factor, penitence must be sincere and the accused must take the court fully into his confidence. This much the accused has done in mitigation of sentence.

Held, the majority of the offences the accused was convicted of are serious and involves the use of a firearm, not only putting the lives of innocent people at risk, but resulted in the cold-blooded murder of a mother of four young children who were dependent on her.

Held, crimes like murder not only militate against society’s most basic values and principles, it also trashes the victim’s fundamental rights enshrined in the supreme law of the land, the Namibian Constitution.

Held, accused’s alleged diminished blameworthiness in respect of theft of the firearm is compromised by the way he used the weapon to commit crimes on diverse occasions.

Held, the courts must echo society’s indignation and antipathy of those who are guilty of unbecoming and despicable behaviour.

Held, it is wholly unacceptable that innocent people walking the streets or whilst at home where they should feel safe, be accosted and threatened or even killed.

Held, this country over the past decade is suffering from an epidemic of violence which cannot be tolerated any longer and the courts are under a duty to do its part in bringing an end to it by imposing deterrent sentences which ought to serve as an eye-opener to other potential criminals.

Held, it is necessary to send a deterrent message to society in general that conduct, as demonstrated by the accused will not, and should not, for the sake of law and order, be tolerated, and that long-term imprisonment is inevitable.

S v Munuma (CC 03/2004) [2020] NAHCMD 90 (12 March 2020)

Summary: The two accused and others are charged with crimes of high treason, murder, sedition and possession of arms and ammunition. A trial-within-a-trial was conducted after counsel for the two accused objected to the admissibility of confessions taken from them by an experienced magistrate on the ground that their right to a fair trial as provided for in terms of Art 12(1)(a) and Art 12(1)(f) had been infringed because the magistrate failed to explain to them their rights against self-incrimination and to apply for legal aid.

Held – that the evidence of the prosecution that the right to legal representation including the right to apply for legal aid was not rebutted by the accused when choosing to remain silent.

Held – that the accused bore the onus to prove the violation of the rights but failed to discharge such onus.

Held – further that the prosecution has proven beyond a reasonable doubt that the right to legal representation which includes the right to apply for legal aid was explained to the accused.

Held – further that the confessions by the accused are ruled admissible and be admitted into record of the main trial as evidence.

S v Munuma (CC 03/2004) [2020] NAHCMD 428 (22 September 2020)

Summary: This an application for the letter of request following the provisions of s 2(1) of the International Co-operation in Criminal Matters Act 9 of 2000 to the permanent secretary for assistance to obtain evidence of witnesses from Botswana. The application was brought on notice of motion in terms of rule 65(1) of the rules of court. The prosecutor in the matter Mr Campher deposed to the affidavit attached to it. The affidavit contained evidence testified by Mr Nepunda from the directorate of Legal Services in the Ministry of Justice. However, Mr Nepunda did not file a confirmatory affidavit to confirm the evidence in the affidavit by Mr Campher.

Held: that the affidavit of Mr Campher contains inadmissible hearsay evidence.

Held further that bringing such an application at this stage of the proceedings is tantamount to continuous investigations of the matter during trial infringing on the constitutional right of the accused persons in terms of Art 12 of the Constitution.

Held furthermore, that the application was riddled with defects and brought late at the stage when all witnesses of the State have testified already and that the prosecutor claiming ignorance of the law, is not an excuse. The application, as a result, was dismissed.

S v Nailenge (CC 02/2015) [2020] NAHCNLD 36 (04 March 2020)

Summary: The accused faced charges of murder and robbery. The body of his girlfriend was found in his flat with a stab wound in her abdomen and her throat slit. His uncle testified that the accused called him to tell him that he had killed his girlfriend. The accused’s flat mate also received a similar call. His uncle notified the police and they all met at the scene.

The accused was arrested in Epoko Village and later taken to the Oshakati Police station. The accused made a confession to the divisional magistrate and pleaded guilty in the district court during s 119 proceedings. These documents were handed into evidence after the court ruled it to be admissible. The evidence is that the deceased was last seen at 13h00. The accused raised an alibi defence during cross-examination of the last State witness indicating that he was in Outapi from 13h00 – 16h00. The court relied on the credible evidence of the accused’s uncle which places him at the scene.

This was proven correct when they in fact found the deceased’s body with the fatal injuries inflicted with a knife. The court found that the state proved beyond reasonable doubt that a murder was committed, that the person who inflicted the fatal incise injuries was the accused; and that he did so with direct intent. The court found that the evidence failed to prove robbery of her cellphone as the clear intention was to dispose of this item and not to appropriate it.

S v Nkandi (CC 4/2019) [2020] NAHCNLD 62 (5 June 2020)

Summary: The accused stands convicted of two counts of murder, contravention of section 2 of the Arms and Ammunition Act 7 of 1996 - possession of a fire arm and contravention of section 33 of the Arms and Ammunitions Act 7 of 1996 - possession of ammunition. The court states that if sentences for serious crimes are too lenient the administration of justice may fall into disrepute and injured persons may be disposed to taking the law into their own hands. In mitigation council for the accused submitted that the accused was 49 years old at the time of the incident. He was in custody for 18 months. He is a first time offender and pleaded guilty to all the charges levelled against him. She submitted that the accused was not in a domestic relationship with neither of the deceased persons. He was merely provoked by the deceased persons. He shot the deceased persons because they insulted him three days prior to the incident. His health is not good and he did not have the opportunity to apologies to the family of the deceased persons as he had bail restrictions.

The State in mitigation, counsel submitted that both deceased died a brutal death at the hand of the accused. He submitted that their organs were severely damaged by the shotgun bullets. The mere fact that he cocked the gun and shot the second deceased is an indication that the knew what he was doing and aimed in their direction respectively. They had no opportunity to defend themselves.

The court held that: The crimes committed by the accused were brutal and vicious in the extreme and perpetuated with premeditation, justifying that he should be permanently removed from society as would be brought about by the combined sentence of 70 years imprisonment.

S v Paulus (CC 3/2019) [2020] NAHCNLD 108 (17 August 2020)

Summary: Accused was charged with murder and Contravening section 2(1) (a) as read with with sections 1, 2(1), 2(2), 2(3) 3, 4, 5, and 7 of the Combating of Rape Act, 2000 (Act 8 of 2000). It is alleged that the accused during March 2015 proceeded to the deceased’s home where he demanded his money that the deceased owed him. The deceased did not have the money and accused picked up a kitchen knife which was in the homestead of the deceased and stabbed the deceased multiple times on the chest. The deceased succumbed to injuries. Accused fled the scene but was arrested after several days. Two years later the accused kicked the door of the homestead where the victim LS was staying. He used physical force to subdue the victim and proceeded in raping the victim by putting his penis into the vagina of the victim without consent. He pleaded guilty to both counts. He was convicted on his own plea of guilty on both charges. However in mitigation accused denied having raped the victim and a plea of not guilty was entered on a rape charge. After evidence was led, accused was found guilty and convicted accordingly.

S v Pretorius (CC 2/2018) [2020] NAHCMD 507 (6 November 2020)

Summary: The accused is a major male, 40 years of age – He was charged with seven main counts of rape of minor children in contravention of the provisions of the Combating of Rape Act, 8 of 2000 (CORA) – In the alternative, he was charged with seven counts of committing or attempt to commit sexual acts with children below the age of 16 years in contravention of the provisions of Combating of Immoral Practices Act, 21 of 1980 as amended – He was further charged with six counts of trafficking in persons in contravention of the provisions of Prevention of Organized Crime Act, 29 of 2004 (POCA).

Held; the State proved beyond a reasonable doubt that the accused received the victims, which constitutes trafficking in persons as contemplated by POCA and the Protocol.

Held; the State further proved beyond reasonable doubt that the accused sexually exploited the victims in exchange for payment of money within the meaning of POCA and the Protocol.

Held; accordingly, the accused was convicted of 6 counts of rape and trafficking in persons.

S v Roelf (CC 5/2019) [2020] NAHCMD 222 (12 June 2020)

Summary: The accused is charged with the murder of the deceased in that he caused her death by repeatedly beating her, throwing her on the ground and strangling her. Three State witnesses testified as to what they observed over the period of two days between the accused and the deceased. Cause of death was an assault-impacted head injury, which caused intracranial bleeding.

Held – The court accepts that the amount of force used in the attack by the accused was not moderate as testified by him but exceeded moderation as is clear from the injuries suffered by the deceased.

Held – The court further found that he attempted to strangle her with enough force to break the hyoid bone and leave markings on her neck and clearly at some stage, foresaw that he could kill her and reconciled himself with that notion. A supporting indication of the intent of the accused is the fact that the attack continued over some time and the court accept the evidence of Ingrid Meintjies that she heard the deceased cry out for the accused to stop.

Held further – The court finds that there is enough evidence to proof the intention of the accused to kill the deceased.

S v Roelf (CC 5/2019) [2020] NAHCMD 358 (14 August 2020)

Summary: The accused was convicted of one count of murder read with the provisions of the Domestic Violence Act 4 of 2003 on 12 June 2020 in that during the period of 22 to 23 January 2018 in Karasburg, the accused unlawfully and intentionally killed Kathrina Aloysia Alexander by repeatedly beating her, throwing her on the ground and strangling her with whom he was romantically involved. The deceased was a young lady, aged 20 and slightly build. The assault started in a room that the accused shared with the deceased. The accused threw the deceased on the floor with such force that she suffered an impacted head injury and other injuries over her face. She was further strangled with enough force to cause her hyoid bone to fracture and leave finger markings on her neck.

Held that punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances. These factors should be considered together with the main purposes of punishment in mind.

Held further that it is in the interest of society, specifically with regard to children that their interests be considered and the impact that a long custodial sentence will have on them. In this instance the child is currently taken care of by her maternal grandparents but with the assistance of her father. Although this is taken into account, it is unfortunately overshadowed by the seriousness of this offence.

Held furthermore that society will be best served if the accused receives an appropriate sentence that will deter him, and other members of society from committing similar offences. Society look at the judicial system for their protection against perpetrators of the crime of murder and especially where it happens within a domestic relationship. In recent years the courts have seen a number of these murders taking place and the violence against women and children are further escalating.

Held further that the accused showed remorse and taken into account as a mitigating factor.

S v Saal (CR 6/2020) [2020] NAHCMD 19 (24 January 2020)

Summary: The matter was submitted by the Magistrate of Mariental on special review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977. The accused was charged with the crime of theft where after the accused pleaded not guilty to the charge on the 26 February 2019. He made admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 as amended. The case was postponed on several occasions in order to get the original case record which appear to have been either misplaced or missing. On the 15 November 2019, when the matter came before court, the prosecutor, unaware that a plea of not guilty has already been taken, brought an application to have the matter withdrawn in terms of s 6(a) of the Criminal Procedure Act 51 of 1977. The court granted the application. Thus, the reason for the magistrate to have sent this matter on special review.

S v Scott (CC 21/2018) [2020] NAHCMD 154 (7 May 2020)

Summary: Criminal Law – Murder – Intention – For the accused to be convicted of murder, the following requirements must be met. (a) The accused must be aware of the circumstances which made his act correspond to the definitional elements and rendered it unlawful. This ground refers to the awareness of unlawfulness. (b) He must be capable of acting in accordance with his insight into right and wrong. He must have the criminal capacity at the time of the commission of the offence. (c) He must have willed the commission of the act constituting the crime.

Intention –An intention is a state of mind. In order to determine intention, a subjective test must be applied. The approach to be followed must be a holistic one. In the absence of the accused admitting the intention to kill, a subjective test must be inferred from the evidence relating to accused’s outward conduct at the time of the commission of the act as well as all the circumstances surrounding the event including the possibility of previous quarrels between the accused and the deceased. The court should also consider the degrees of injuries suffered.

Dolus eventualis – Determination - A person acts with the intention in the form of dolus eventualis if the commission of the unlawful act is not his main aim, but: (a) He subjectively foresees the possibility that in striving towards his main aim the unlawful act may be committed or the unlawful result may be caused. And, (b) he reconciles himself to this possibility. In the present matter the accused’s actions comply with the requirements of murder in the form of dolus eventualis.

S v Serfontein (CC 07/2019) [2019] NAHCMD 01 (17 January 2020)

Summary: Accused and his former wife were jointly charged with 34 counts of fraud and one count for contravening s 6(a), (b) and (c) of the Prevention of Organised Crime Act 29 of 2004 (POCA). The wife having pleaded guilty and the accused not guilty, a separation of trials was ordered. She was duly convicted and sentenced on 34 counts of fraud and one count of money-laundering. The undisputed facts are that she syphoned large sums of money from her employer’s account and deposited the proceeds of her unlawful activities into the account of the accused. The accused in this matter pleaded not guilty to all the counts and in his defence stated that he had no knowledge of his former wife’s illegal activities as she operated his internet banking account and also made all the deposits into his account.

Held, that, when considering single evidence a court should approach such evidence with caution especially if the key witness was an accomplice who may try to shift the blame onto the accused and extricate herself. However, such risk would be reduced if the single evidence of a witness is corroborated by other reliable evidence. Witness in this instance stood nothing to gain by falsely implicating the accused, thus reducing the risk.

Held, further that, when considering the accused’s version against the proved evidence, it shows that the accused did access his bank account on various occasions and therefore familiarised himself with the information contained in his bank statement.

Held, further that, the accused was not directly involved in the misrepresentation of the complainant, therefore he could not be convicted of fraud, but rather on the second alternative of theft.

Held, further that, the provisions of sections 4, 5 and 6 of POCA create separate and distinct offences and cannot be intertwined, therefore the State has to decide which offence to charge the accused for.

S v Serfontein (CC 07/2019) [2020] NAHCMD 56 (20 February 2020)

Summary: The accused was convicted on 32 counts of Theft totalling N$4 038 691.90 and, in respect of the money stolen, on one count of Money-Laundering in contravention of section 4 of the Prevention of Organised Crime Act 29 of 2004 (POCA). The accused’s former wife, whilst employed by the complainant company, fraudulently syphoned large sums of money away from the company’s bank account and deposited the proceeds into the accused’s savings account. Despite the accused having disputed knowing that these funds were the proceeds of unlawful activity conducted by his former wife, the court at the end of the trial convicted him on the basis that the accused worked hand in hand with his former wife. Once the funds were deposited into his account, he effected the transfer of funds into various other accounts to the financial benefit of both. Court tasked to decide what sentence would be just and proper in the circumstances of the case.

Held, that, there is currently an alarming increase of ‘white-collar’ crimes in Namibia. In sentencing the court is thus entitled to take judicial notice of the increasing prevalence of the said crimes committed in its jurisdiction.

Held, further that, with regard to uniformity of sentences in similar cases the principle of individualisation must be given equal consideration to the extent that a sentence must be constructed and tailored in such way that it fits the particular accused before court and should not be one of general application.

Held, further that, there is a notable difference in circumstances as far as his former wife was convicted of the more serious crimes of fraud and who stood in a relation of trust towards the complainant, opposed to the accused’s conviction on the lesser crime of theft. However, unlike the accused, the accused’s former wife owned up to her actions and demonstrated sincere remorse, a factor that must have weighed heavily with the sentencing court.

Held, further that, given the gravity of the crimes committed by the accused, it seems inevitable that lengthy custodial sentences would be required to have the necessary deterrent effect, individually and generally.

S v Strong (CC 16/2019) [2020] NAHCMD 49 (13 February 2020)

Summary: The accused was arraigned on five charges, namely: count 1 - murder, count 2 - attempted murder, counts 3 and 4 - two counts of assault with intent to do grievous bodily harm and count 5 - defeating or obstructing the course of justice or attempt to do so. At the close of the state’s case the accused brought an application for discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977 only in respect of counts 3 - 5. The application for discharge was opposed by the state.

Held that, section 174 protects the rights of the accused to a fair trial and ensures the court’s vigilance of the accused’s right against self-incrimination which is inclusive of the right to remain silent and the right to be presumed innocent until proven guilty according to law.

Held further that, the state needs to lead substantive evidence to prove a prima facie case against the accused and should therefore not remain hopeful that the accused will seal holes in its case by incriminating himself.

Held further that, in the absence of direct evidence on the charge the court can resort to circumstantial evidence and in the process apply the cardinal principle as set out in S v Blom 1939 AD 188.

Held further that, evidence led so far establishes a prima facie case on which a reasonable court acting may convict.

S v Strong (CC 16/2019) [2020] NAHCMD 210 (4 June 2020)

Summary: The accused was indicted in the High Court on charges of murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003; attempted murder, two charges of assault with intent to do grievous bodily harm, read with the provisions of the Combating of Domestic Violence 4 of 2003 and defeating or obstructing or attempting to defeat or obstruct the course of justice. He pleaded not guilty to all counts. It is alleged that the accused murdered the deceased with whom he had a domestic relationship. It is further alleged that he assaulted and attempted to kill Phillip Gadi Matsaya (Mr. Matsaya), by stabbing and cutting him with a knife. He is further alleged to have assaulted the deceased by kicking and slapping her with intent to cause her grievous bodily harm. He is also alleged to have defeated or obstructed or attempted to so defeat or obstruct the course of justice by hiding his clothes and cleaning the knife used to stab the deceased and Mr. Matsaya. He pleaded not guilty to all counts and chose not to disclose the basis of his defence. The accused raised bare denials to the charges and also raised an alibi although not specifically pleaded. The credibility of witnesses was tested in comparison to their witness statements.

Held, that evidence of a single witness should be approached with caution. That caution should however not replace common sense. A conviction may follow on the evidence of a single but credible witness.

Held further, that the discrepancies between a witness’ statement and the testimony of such witness during trial does not necessarily mean that he/she deliberately lied to court as contradictions per se do not lead to the rejection of a witness' evidence. It may simply be indicative of an error.

Held further, that the behaviour of an accused after the incident may, in appropriate cases, show his intention.

Held further, that where an alibi is raised, the onus is on the state to prove that such alibi is false beyond reasonable doubt.

Held further, that parties have a duty to put so much of their case to opposing party.

Held further, that the accused’s explanation to the charge of murder was not reasonably possibly true and it is to be rejected as false.

Held further, that the evidence led did not prove commission of the offence of attempted murder but proved the competent verdict of assault with intent to do grievous bodily harm.

Held further, that the offences of assault with intent to do grievous bodily harm on counts 3 and 4 were not proven but evidence proved the competent verdict of common assault.

Held further, that the court doubts whether the offence of defeating or obstructing or attempting to defeat or obstruct the cause of justice was proven. Where doubt exists, accused should be given the benefit such doubt.

S v Strong (CC 16/2019) [2020] NAHCMD 231 (18 June 2020)

Summary: The accused was indicted in the High Court on the following charges: 1 - murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003; 2 - attempted murder; 3 - assault with intent to do grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act; 4 - assault with intent to do grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act and 5 – defeating or obstructing or attempting to defeat or obstruct the course of justice. He pleaded not guilty to all counts and did not offer a plea explanation but opted to remain silent. On 04 June 2020, this court after hearing evidence convicted the accused of: 1 - murder with direct intent, read with the provisions of the Combating of Domestic Violence Act; 2 - assault with intent to do grievous bodily harm as a competent verdict; 3 – common assault, read with the provisions of the Combating of Domestic Violence Act as a competent verdict and 4 – common assault, read with the provisions of the Combating of Domestic Violence Act as a competent verdict. The accused was found not guilty and acquitted on count 5.

Held that, in sentencing, courts should consider the triad principles: the crime, the offender and the interest of society as well as the fourth element of mercy, but such should not be misplaced pity.

Held further that, the fact that the accused is a first offender at the age of 58 years old mitigates the sentence.

Held further that, time spent in custody pending trial should be judicially considered in mitigation, but there should be no mathematical calculation to the effect of such time on sentence.

Held further that, the accused was in a position of trust towards the deceased as they were in a domestic relationship and he should have protected her.

Held further that, the number of violent cases, committed in domestic set ups on our court roll is alarming, shows no signs of abatement and courts should pass severe punishment to deter would be offenders.

Held further that, remorse is a mitigating factor but failure to express remorse aggravates the sentence.

S v Sikongo (CC 19/2018) [2020] NAHCMD 65 (26 February 2020)

Summary: The complainant is a single child witness whose evidence was not corroborated in respect of several sexual acts that are alleged to have been committed against her. The cautionary rule regarding single child witness' evidence is still part of our law. The approach to be adopted is that the court should exercise extra caution when dealing with evidence of a single child witness. The reason being that there is an inherent danger and risks in accepting such uncorroborated evidence. With regards to deviation from statement made to the police and contradictions between other witnesses, contradictions, between the versions of same witness, the court must among other things determine what the witness meant to say on each occasion in order to determine whether there was an actual contradiction and the nature of the contradiction. Only material contradictions should be taken into account. The court must keep in mind that not every error by a witness and not every contradiction affects the credibility of a witness. The trial judge must consider the contradictions and discrepancies and evaluate them in a holistic basis. Thereafter, the court should decide whether the evidence is trustworthy despite shortcomings and defects and whether it is satisfied that the truth has been told. In the present case the court made a finding that the victim's evidence not sufficiently credible and reliable to secure a conviction.

Formulation of charges - The two accused persons were charged with multiple counts each that were identical and alleged to have been committed during 2016. The complainant was unable to link a particular offence to a particular accused. She could not tell which of the accused persons had sexual intercourse with her for the last time. This problem could have been solved if the state had charged the accused persons in terms of s 94 of the Criminal Procedure Act which makes a provision for the charge to allege commission of offence on diverse occasions. The various offences could have been joined in one charge and it is sufficient merely to allege the period.

S v Sprangers (CC14/2016) [2020] NAHCMD 410 (11 September 2020)

Summary: The accused together with the second accused who was acquitted in terms of section 174 of the Criminal Procedure Act 51 of 1977, was charged with one count of fraud, 4 counts of theft by conversion alternatively theft and initially contravening section 6 read with sections 1, 7, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004, being the acquisition, possession or use of proceeds of unlawful activities. This charge was later amended to a charge of contravening section 4(b) (i) read with sections 1, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004, read with section 94 of the Criminal Procedure Act 51 of 1977 being money laundering, disguising unlawful origin of property on divers’ occasions.

Held that fraud consists in unlawfully making, with intent to defraud, another. In order to secure a conviction on fraud the state had to prove (i) a misrepresentation; (ii) prejudice or potential prejudice; (iii) unlawfulness; and (iv) intention.

Held that misrepresentation may however take a variety of forms. They may be made by entries in books or records or by conduct or even by silence when there is a duty to speak.

Held further that the criminal court must not be blinded by where the various components come from but rather attempt to arrange the facts, properly evaluated, particularly with regard to the burden of proof, in a mosaic in order to determine whether the alleged proof indeed goes beyond reasonable doubt or whether it falls short and thus falls within the area of a reasonable alternative hypothesis.

Held furthermore that it is clear that the court must look at the evidence as a whole and not piecemeal and there is a duty on the court to weigh the evidence of the state as well as that of the defence and then come to a conclusion based on the probabilities of the case. This process entails looking at the merits and de-merits of each of all the evidence.

Held that in evaluating the evidence placed before court and looking at the probabilities of the evidence the court rejects the version of the accused and find it not reasonably possible true. Although there are discrepancies in the evidence of the state witnesses, the court also takes into account that these happenings took place about 10 years ago and find that the evidence presented by the State is probable and rejects the version of the accused.

Held further the court is not convinced that the accused had a fraudulent intention to defraud the complainant during the conversations where the development of the plots were discussed. Therefore finds the accused not guilty of fraud – count 1.

Held furthermore that the court is however satisfied that counts 2 – 6 the court is satisfied that the accused misappropriated property, in this instance the funds of the complainant which was placed in his control for the purpose of developing and/or purchasing fixed property, which he did not do and as such converted the money for his own use. The court however takes into account that the accused returned U$50 000 from this money to the complainant. The accused is therefore found guilty on counts 2, 3, 4, 5 and 6.

Held furthermore that the court is further satisfied that the accused is guilty of contravening section 4(b)(i) read with sections 1, 8 and 11 of the Prevention of Organised Crime Act, 29 of 2004, read with section 94 of the Criminal Procedure Act 51 of 1977 – Money Laundering – Disguising unlawful origin of property on divers occasions in that he knew that the money in his account was proceeds of unlawful activity in that it was proceeds from his theft from the complainant, he proceeded to transfer the bulk of it to his home loan scheme which transfer had the effect of concealing, or disguising the nature, origin or source of the property or its ownership or the interest the complainant had in it. The accused is therefore found guilty of count 7.

S v Siyave (CC 15/2018) [2020] NAHCNLD 168 (26 November 2020)

Summary: The accused was charged with the crime of murder read with a provision of the Combating of Domestic Violence Act 4 of 2003. At the trial he pleaded not guilty to the charge and gave no explanation. It was in the course of the trial that admissions were recorded in terms of section 220 of Act 51 of 1977. Accused admitted kicking the deceased once but denied having kicked the deceased all over the body. He also denied having beaten her with open hands or fists. Accused stated that by assaulting the deceased he only wanted to teach her a lesson and not to murder her. Intention is a state of mind which can be inferred from the circumstances of each case. In casu the state alleged that upon or about the 21st day of February 2018 at Likwaterera village, in the district of Rundu the accused did unlawfully and intentionally assault Rebecca Kauma by kicking her all over her body with booted feet and beating her with open hands and thereby inflicting upon her certain injuries as result of which the said Rebecca Kauma died on 22 February 2018 and thus the accused did unlawfully and intentionally kill the said Rebecca Kauma.

In determining the type of mens rea in a murder case, the court has to look at the nature of the weapon used, together with the part of the body where the attack/injury was inflicted and the force used. The accused despite asserting that he did not act with intention to kill, evidence led by the State proved otherwise.

Held that the State proved beyond a reasonable doubt that the accused’s behavior prior, during and after the incident was consistent with a direct intent to murder the deceased.

Held further that; the accused’s defence that he did not intend to murder the deceased is rejected as false beyond a reasonable doubt.

S v Sprangers (CC 14/2016) [2020] NAHCMD 498 (30 October 2020)

Summary: The accused was found guilty on the 11 September 2020 of 5 counts of theft by conversion and one charge of contravening section 4(b)(i) read with sections 1, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004, read with section 94 of the Criminal Procedure Act 51 of 1977 being money laundering, disguising unlawful origin of property on divers occasions. The conviction was in connection with money transferred into the business account of the accused to the amount of U$900 000 which amounted to a total of N$6 785 318.76.

Held that the principles of punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances. These factors should be considered together with the main purposes of punishment in mind as reiterated in S v Tcoeib, being deterrent, preventative, reformative and retributive.

Held that the presence of remorse is regarded as mitigating by the courts and in this instance the accused did not show any signs of significant remorse.

Held further that although it is trite that sentences should be individualized, our Courts generally strive for uniformity of sentences in cases where there has been a more or less equal degree of participation in the same offence or offences by participants with roughly comparable personal circumstances.

Held furthermore that theft by conversion, although a specific type of theft, falls into a category of crime that is becoming more and more epidemic in our society.

S v Uamunika (CC 3/2018) [2020] NAHCMD 267 (26 May 2020)

Summary: The accused was indicted on three counts to which he pleaded not guilty. The first count is one of murder and further charged with a count of robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act, 51 of 1977 in that during the same period as in count one and at or near Rehoboth, the accused did unlawfully and with the intention of forcing him into submission, assault Joseph Adriaan Barth by firing shots at him with a firearm, and/or tying his leg(s) and arm(s) with ropes, and/or hitting, cutting and stabbing with a stick(s) and/or other unknown objects on his body and head and fracturing his ribs, and did unlawfully with the intent to steal, take a small solar panel, a brown leather wallet, a white Volkswagen Golf motor vehicle with registration number N4486R and the keys to this motor vehicle, all which was in the lawful possession of Joseph Adriaan Barth. Aggravated circumstances as defined in s 1 of the Criminal Procedure Act, 51 of 1977 was also present in that the accused wielded a dangerous weapon namely a firearm and/or sticks and/or other unknown objects during the commission of the offence which caused grievous bodily harm to the said Joseph Adriaan Barth.

Count three relates to the theft of one STK black cell phone with a SIM card at or near Rehoboth in the district of Rehoboth or at or near Mariental in the district of Mariental, which was the property or in the lawful possession of Joseph Adriaan Barth. The Accused gave a detailed plea explanation, in essence admitting that he hit the deceased over his body but denying that he had any intention to kill the deceased as he was acting in self-defence. He used the vehicle of the deceased just to get away from the farm and had no intention to steal it. He further did not steal any of the other items but took with the solar panel that belonged to him as well as the cellphone that was also his. Counsel for the State submitted that they proved the guilt of the accused person beyond reasonable doubt and that the Court should convict the accused person and find him guilty as charged.

Counsel for the accused argued that the deceased launched an unlawful attack on the accused after the accused enquired from him about his outstanding salary. The deceased uttered words to the effect that today he will shoot the accused and kill him. The accused was aware of a rifle in the vehicle of the deceased and he defended himself by attacking the deceased in order for him to get hold of the rifle. The defensive act was therefore necessary to protect the accused. The argument further rests on the evidence that the deceased took out the rifle and aimed at the accused and that is why the accused beat him with a stick, in order to get hold of the rifle. When he got hold of the rifle, he threw it away from where they were. According to their argument, the accused had no direct intention to kill the deceased. Neither did he act with dolus eventualis because the defensive act was lawful. He did not foresee that death would ensue and did not reconcile him with that possibility. He protected himself and the struggle that ensued was about gaining control over the rifle and the minute he got hold of the rifle he threw it away and no shots were fired from the rifle.

Held – That the accused continued with the attack even though there was no longer cause for fear. He clearly wanted to incapacitate the deceased when he tied him up and shot him in the legs. He must have known how seriously hurt the deceased was at that stage, but he still proceeded to tie him up and to leave him at the farm, exposed to the elements.

Held – The rifle was in a bag, which caused the deceased a delay from removing it and threatening the accused. The accused attacked the deceased without an eminent threat being present.

Held further – The court finds that the accused and the deceased might have had an arrangement with regard to the purchasing of the cell phone and the solar panel. There is no evidence that the accused stole the wallet of the deceased.

S v Uamunika (CC 3/2018) [2020] NAHCMD 289 (15 July 2020)

Summary: The accused person was indicted on three counts to which he pleaded not guilty. The first count is one of murder, second count of robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act, 51 of 1977 and count three related to the theft of a cellphone belonging to the deceased. The Accused was convicted on a count of murder and the use of the vehicle of the deceased without owner’s consent, contravening section 8 of the General Law Amendment Ordinance 12 of 1956 on 1 July 2020. All the charges relates to the death of one Joseph Adriaan Barth during the period of 30-31 August 2017. The accused was an employee of the deceased at the time of the incident. The accused testified that a struggle started between him and the deceased after he did not receive his salary and he questioned the deceased about that fact. The deceased then hit him first where-after a struggle started between him and the deceased, ending with him tying up the deceased and shooting him in the legs. He further testified that he and the deceased further had a good relationship, up until the day of the incident. It was also never his intention to kill the deceased, it happened when he defended himself. This court now has the task to hand down sentences for these offences committed by the accused.

Held that punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances. These factors should be considered together with the main purposes of punishment in mind.

Held further that this was not a pre-meditated offence and the accused was found guilty of the crime of murder without direct intend, but with intent in the form of dolus eventualis. In the current instance, this is seen as a mitigating circumstance and is therefore taken into account when determining an appropriate sentence.

Held furthermore that society will be best served in the accused receiving an appropriate sentence that will deter him and other members from committing the offence of murder, in giving him the opportunity to rehabilitate and becoming a useful member of society after his release and a sentence that expresses the abhorrence of society with the specific crime of murder sufficiently. Society look at courts for their protection against perpetrators of crime and murder, especially murder of farmers, are frowned upon.

S v Uusiku (CC 9/2019) [2020] NAHCNLD 61 (5 June 2020)

Summary: The accused was indicted on three charges namely, murder, assault with intent to do grievous bodily harm and assault by threatening, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. Accused pleaded not guilty on all charges and admitted in terms of section 220 of the Criminal Procedure Act 51 of 1977 the identity of the deceased and that a domestic relationship of a boyfriend and girlfriend was present. The state called several witnesses who directly implicated the accused. At the end of the state case accused elected not to testify and had no witnesses to call. With regard to count one and two it was not disputed that accused was at the deceased’s homestead and a fight erupted. Thereafter he was seen assaulting and dragging the deceased to the gravel road where he continuously and unlawfully assaulted the deceased on the head with a pounding stick. That resulted the deceased not being able to move and becoming unconscious. There was further evidence that no further injuries were sustained during transportation. On count three the court heard the evidence of Lydia a single witness. It cautioned itself of the danger of convicting the accused on such evidence. The evidence of a single witness was found to be clear and satisfactory in all material respect. In submission counsel for the defence raised issues of novus actus intervenes and duplication of charges for the first time. In this regard the court rejected counsel submissions. The court held that although accused person has a right to remain silent, not obliged to disclose the basis of his defence during the pre-trial proceedings and/or at the trial itself, the decision to do so, depending on the circumstances of the case, may not be without consequences. The Court further found the case not appropriate for the accused to safely opt to exercise his right to remain silent as evidence adduced was calling for an answer. Therefore, accused is found guilty on all charges and convicted accordingly.

S v Uusiku (CC 9/2019) [2020] NAHCNLD 93 (24 July 2020)

Summary: The accused was convicted of murder, assault with intent to do grievous bodily harm and assault by threat. The deceased was the accused’s girlfriend, and they have a child together. Accused has a history of violence. In April 2017, three months prior to the deceased’s death accused was cautioned by Lucia a sister to the deceased to stop assaulting her. Again the mother of the deceased on various occasions pleaded with him to stop assaulting her. Accused failed to heed the calls. In June 2017 accused went to the residence of the deceased. He assaulted the deceased in the close proximity of the house and they were separated. Thereafter he dragged the deceased to the gravel road where he assaulted her with a pounding stick which broke into pieces. After assaulting the deceased the accused instead of assisting her left the scene. The deceased was taken to the Onankali clinic where she subsequently died due to severe head injuries.

S v Uazeua (CC 17/2016) [2020] NAHCMD 427 (21 September 2020)

Summary: Accused four and six at the close of the State’s case applied in terms of s 174 of Act 51 of 1977 for discharge. The applicants alleged that there is no evidence connecting the accused persons to all the charges levied against them. They stated that the DNA evidence exonerates them, in that there was no human blood found on Exhibit E. They further alleged that the cigarette bud which allegedly placed them at the scene, was about 30 meters away from where the body of the deceased was lying and was at a public place.

The court held that confessions can be used against the maker but not against another party unless it is repeated under oath. The evidence of the magistrates about the confessions made by the three accused persons are open to criticism but there is no legal ground on which it should be excluded as evidence at this stage. The cigarette bud accused four tried to explain during bail application that was found more than a month before the incident is crucial evidence that placed the accused persons/ applicants at the crime scene.

The court held further that there is no evidence which was led against accused four and six proving the charges on count five and six. Same could not be said in respect of count two, three and four. In the circumstances of the application for the discharge on count two, three and four, the application is dismissed and they are to be placed on their defence. With regard to count five and six, the application is granted and both applicants are found not guilty and discharged.

S v Uupindi (CC 11/2019) [2020] NAHCNLD 150 (14 October 2020)

Summary: The accused is indicted on four charges namely, assault with intent to do grievous bodily harm read with section 94 of Act 51 of 1977, assault with intent to do grievous bodily harm both read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003, defeating or obstructing or attempting to defeat or obstruct the course of justice and murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003. Accused pleaded not guilty on count one two and three and guilty on count four. However the plea of guilty was not accepted by the State and evidence was led. The state called three witnesses who directly implicated the accused. The accused elected to remain silent and no witnesses to call. With regard to count one, the Court held; the intent to cause grievous bodily harm to the complainant was not proved. On count two the Court was satisfied with evidence led to infer that the accused intended to do the complainant grievous bodily harm. The Court further held that; although accused person is not obliged to testify this is not an appropriate case where the accused can safely opt to exercise his right to remain silent. With regard to count three the Court further held that no evidence presented that the accused by so acting had the necessary intention to defeat or obstruct or attempting to defeat or obstruct the course of justice.

S v Uupindi (CC 11/2019) [2020] NAHCNLD 178 (9 December 2020)

Summary: The deceased and accused were related as mother and son. They both lived in Ongali village at the time of the incident. The accused killed the deceased by hacking her with a panga several times. The deceased died on the scene as a result of the hacking. When the charges were put to the accused he pleaded not guilty to count one and two. He gave plea explanation in terms of section 115 of the Criminal Procedure Act 51 of 1977. As for count four accused pleaded guilty to the charge of murder read with the provisions of Combating of Domestic Violence Act 4 of 2003.The accused admitted all the elements of the offence save for the amplification on his plea of guilty where the State did not agree with the allegations that led to the killing of the deceased. The State led evidence and accused was convicted of common assault, assault with intent to do grievous bodily harm and murder all counts read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. Whilst the court in sentencing the accused must take cognisance that accused need not be sacrificed at the altar of deterrence for other would be offenders, it is my respectful view that he fails to conduct himself in a manner one would expect of a son to behave towards his mother and/or parents. The interest of the community must be satisfied and that serious crimes of this nature therefore compel that the objectives of retribution and deterrence weigh more than the objectives of rehabilitation of the offender.

S v Van Der Westhuizen (CC 11/2018) [2020] NAHCMD 528 (18 November 2020)

Summary: The State brought an application which has two parts during the latter part of the its case to call an additional witness, whose witness statement was not disclosed to the Defence until shortly before the application, to testify to as to whether the accused person, during the latter part of 2015, was capable of having sexual intercourse with a female or not. The Defence objected to this application. The first part of the application, dealt with the calling as a witness, (whose name was provided by the Defence) a certain Mrs. Van Heerden is the crux of the matter before court. The accused’s defence against the charges leveled against him has always been that he suffers from an erectile dysfunction and could therefore not have committed the act or acts he has been charged with. This defence was therefore known to the State since the start of the trial. The aim of calling this witness is in support of the evidence of the complainant that the accused indeed was capable of having sexual intercourse during November 2015.

Held that the State must inform the Court of the content of the evidence the State intends to lead in the first instance. Secondly, it must be shown that the accused persons will not be prejudiced by the admission of evidence the State intends to present, and thirdly, the State must give a reasonable explanation why a statement was not recorded from this particular witness.

Held that it is even possible to disallow relevant evidence where the evidential value thereof is overshadowed by the danger of (a) unfair prejudice caused thereby (b) confusion of points in issue and (c) excessive delay, waste of time or unnecessary duplication of evidence.

Held that the court is not certain it can evaluate the impact of the evidence on the fair trial right of the accused as the court was not enlightened as to what evidence the State wish to present. The State further did not show to the court that the accused will not be prejudiced by the presentation of the said evidence.

Held accordingly that the Court is not satisfied that the State indeed showed that the evidence of Mrs. Van Heerden will have evidentiary value and eventually that the evidential value thereof is not overshadowed by the danger of unfair prejudice caused thereby to the accused as this too relates to an allegation of unlawful sexual intercourse. It might further cause confusion of points in issue and will definitely cause an excessive delay and waste of time.

Shekundja v S (CC 19/2017) [2020] NAHCMD 339 (22 July 2020)

Summary: This is a bail application pending trial based on new facts brought on affidavits. The new facts are: that one year and six months has unreasonably lapsed from the date of refusal of the initial bail application without trial; that the state has no strong case against him and he is likely to be acquitted and it is not in the interests of justice to continue to keep him in custody pending trial. The application is opposed by the state. The application was heard on affidavits in order to curb the spread of the COVID-19 pandemic which may be asymptomatic and could easily spread.

Held, that, bail applications are neither civil nor criminal proceedings, are sui generis and unique in nature, procedure and purpose.

Held further, that, in view of the presence of the COVID-19 pandemic which may be asymptomatic but may infect others, courts should play their part to protect and preserve human lives and should avoid face to face interactions, where permissible.

Held further, that, the use of affidavits in bail applications was recognised before the enactment of the South African Criminal Procedure Second Amendment Act 85 of 1997 and even before promulgation of the Criminal Procedure Act 51 of 1977 (the CPA).

Held further, that, the finding in Johan Pretorius v The State, Case No. CC 91/2003, delivered on 29 April 2011 that, affidavits may only be used in bail proceedings for the evidence of the applicant (evidence in chief) after which such applicant should be sworn in or take an affirmation and then subject himself to cross examination is contrary to our law and thus not followed.

Held further, that, the finding in S v Visagie 2013 (1) SACR 158 (GNP) that, the use of affidavits in applying for bail without viva voce evidence, is allowed as it is part of our law and is therefore endorsed.

Held further, that, the present matter is best suited to be heard and decided on the papers.

Held further, that, where there are factual disputes between the parties, such can be resolved by applying the principle set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634-5.

Held further, that, amongst the alleged new facts, only the lengthy period of time lapsed without trial constituted a new fact and thus all evidence on record had to be considered in totality.

Held further, that, the new fact raised, considered together with all the evidence on record did not change the position on which bail was initially refused. The application therefor failed to establish that it was in the interests of justice for him to be granted bail. The bail application pending trial is dismissed.

Shiweda v S (HC-NLD-CRI-APP-CAL-2019/00040) [2020] NAHCNLD 11 (21 January 2020)

Summary: The appellant pleaded not guilty. After the evidence was led he was convicted for theft of stock in the Eenhana district magistrate court. The matter was referred to the Regional court for sentence. He placed sufficient facts before the magistrate after being duly informed about his mitigating rights. The regional court magistrate after having satisfied himself that the conviction was proper sentenced the appellant to 6 (six) years imprisonment. The appellant was dissatisfied, initially appealed against both conviction and sentence but abandoned the appeal against sentence before the hearing. This court found appellant correctly linked to the commission of an offence. Further it is found that the State has proved its case beyond reasonable doubt that appellant committed the offence in question. The appeal against the conviction is therefore dismissed.

Subeb v S (HC-MD-CRI-APP-CAL-2019/00074) [2020] NAHCMD 73 (28 February 2020)

Summary: The appellant was convicted in the Regional Court held at Otjiwarongo of five counts of rape in contravention of section 2(1)(a) of Act 8 of 2000, one count of assault with intent to do grievous bodily harm, two counts of malicious damage to property and two counts of indecent assault. He was sentenced to five years’ imprisonment on each count of rape and a further five years’ imprisonment on counts six to ten, taken together for purposes of sentence. Effectively he was sentenced to a term of thirty years imprisonment. He filed an appeal against conviction only. At the heart of the appeal is the determination whether the magistrate erred when she rejected the appellant’s defence of non-pathological criminal incapacity and found that the appellant appreciated the consequences of his actions at the time of the commission of the crime.

Held, that the magistrate correctly rejected the defence of non-pathological criminal incapacity as no sufficient foundation was laid down for the defence. A proper evidence basis should be led in substantiation of this defence and truthfulness of the offender is prime in the process. Held, an appeal court may correct a charge when a person is wrongly charged, provided that such person will not suffer prejudice thereby. Held, that the appeal against conviction is therefore dismissed.

Shikongo v S (HC-MD-CRI-APP-CAL 2020/00013) [2020] NAHCMD 407 (11 September 2020)

Summary: The appellant was sentenced in the Keetmanshoop regional court, on 22 February 2019 to an effective term of imprisonment of 33 years. He was convicted of Murder, Attempted Murder and two counts of Assault with intent to cause grievous bodily harm. The court a quo, sentenced the appellant to 20 years, 9 years, 2 years and 2 years respectively. Though the court properly applied all pre-trial principles, the cumulative effect of the counts together are considered harsh.

Held, grounds of appeal which in effect appeal the entire reasoning and finding of the court a quo is characteristic of sluggishness and generality.

Held further, a ground of appeal which amounts to a back door attempt by the drafter to place arguments before the court in relation to an appeal against conviction when the appeal lies against sentence does not amount to a proper ground of appeal.

Held further, an appellate court should be slow to interfere merely because it would have imposed a different sentence.

Held further, provocation, without it being founded on reasonable grounds and whether a reasonable person in the same circumstances would act the same in similar circumstances, does not constitute a mitigating factor.

Held further, where no factual foundation has been laid by an accused during his trial, giving rise to the reasonable possibility that he was provoked to such an extent that he acted with diminished criminal responsibility, the question of provocation as a mitigating factor during sentence becomes obsolete.

Held further, it is trite law that a period spent in custody awaiting trial is a material factor to be considered in mitigation, the effect of which will vary from case to case.

Held further, when considering the triad of factors, it is not wrong for a court to place more weight on one factor than it places on another during sentence. What is called for is that the court consider all the factors and strives to strike a balance.

Held further, the escalating number of violent crimes can only be effectively condemned by courts of law through the imposition of effectively deterrent and retributive sentences.

Held further, as the offences are related to one another, the court a quo ought to have been mindful of the cumulative effect thereof, to ensure that the totality of the sentences imposed is not disproportionate to the accused’s blameworthiness in relation to the offences.

Townsend v S (CC 19/2013) [2020] NAHCMD 457 (6 October 2020)

Summary: This is an opposed application for bail pending trial. The applicant was charged and is arraigned in this court on several charges of: Murder; Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977 (the CPA); Importation of firearms (firearm barrels) without a permit in contravention of s 22(1) of Act 7 of 1996; Possession of a firearm without a licence in contravention of s 2 of Act 7 of 1996; Possession of ammunition in contravention of section 33 of Act 7 of 1996 and Defeating or obstructing or attempting to defeat or obstruct the course of justice.

The state opposes bail on the grounds that: the offences charged are seriousness; that the state has a strong case against the applicant; that the applicant poses a flight risk; that the applicant will interference with state witnesses; that it is not in the interest of the public or the administration of justice to grant the applicant bail. The trial commenced where several witnesses testified, and the matter is still at the stage of the state’s case.

Held that, a court in exercising its discretion whether to grant bail to the applicant or not should consider all factors relevant to bail.

Held further that, an applicant for bail should take the court into his confidence and failure to do so, resulting in the applicant withholding crucial information on critical questions, severely affects the prospects of his application.

Held further that, the applicant bears the onus of proving on a balance of probabilities that his release on bail will not prejudice the administration of justice.

Held further that, the state provided sufficient evidence to contradict the applicant’s alibi defence.

Held further that, on the circumstantial evidence presented there is a likelihood that the applicant will be convicted on the murder charge and receive a lengthy custodial sentence, which is likely to entice him to flee, if granted bail.

Held further that, the applicant’s application for bail pending his trial falls to be dismissed.

Tsuseb v S (HC-MD-CRI-APP-CAL-2019/00094) [2020] NAHCMD 472 (19 October 2020)

Summary: The appellant, a youthful offender, was convicted and sentenced in the Swakopmund regional court on a charge of murder following his plea of guilty to a period of 18 years’ imprisonment of which 5 years suspended on condition of good behaviour. Appellant filed his appeal out of time and proffered an unreasonable explanation and did not present sufficient prospects of success on appeal. Appeal is struck from the roll.

Held, it is settled law that an appellant seeking condonation for failure to comply with the rules of court, must give a reasonable and acceptable explanation and show that he has good prospects of success on the merits of the appeal.

Held further, the appellant, whilst trial awaiting, committed a further crime of stock-theft and fathered a daughter during the same period, it seems inevitable to come to the conclusion that the appellant lived the life of an adult person, essentially emancipating himself from his young age.

Held further, when serious offences are committed, the youth cannot hide behind their youthfulness.

Held further, appellant not taking the court into his confidence in mitigation of sentence and express his remorse under oath, the genuineness of his proclaimed remorse questioned.

Held further, the court a quo did not misdirect itself either on procedure or in the evaluation of the material facts when imposing sentence.

Held further, appeal is struck from the roll.

Van Rooyen v S (HC-MD-CRI-APP-CAL-2019/00107) [2020] NAHCMD 180 (18 May 2020)

Summary: The appellant in this matter was tried and convicted in the Regional Court of Windhoek on one count of rape, read with the provisions of the Combating of Rape Act 8 of 2000. The conviction stems from an incident where the appellant was found near a river bed with the complainant. The complainant at the time was eight years old while the appellant was more than three years older. It was proved that he had raped the complainant. He was then sentenced to 15 years’ imprisonment of which 5 years were suspended on condition of good behaviour. Appellant then timeously lodged an appeal against the court’s conviction and sentence.

Held, that, before unsworn evidence can be admitted in terms of s 164 of the CPA, the presiding officer must make a finding that the witness does not understand the nature or import of the oath or the affirmation for any of the reasons specified in s 164(1)(a).

Held, further that, where the witness, for whatever reason, does not understand the import of the oath and the court is of the view that the witness must be admonished to speak the truth, an enquiry must be made to enquire whether the witness is capable of distinguishing between the truth and falsehood.

Held, further that, a practical method of establishing competency in young children is to make use of pictures as to establish the child’s ability to first comprehend the difference between what is right and wrong and thereafter differentiating between the truth and falsehood.

Held, further that, it would have been a misdirection by the magistrate to conduct an identification parade during the trial with the accused in the line-up, moreover after the witness already testified that she was unable to identify her attacker. The proposed procedure having been abandoned; it did not impact on the complainant’s evidence.

Held, further that, when considered together with the medical evidence and the appellant having been the sole person in whose company the complainant was at the relevant time, the trial court was correct in finding that the complainant’s single evidence was satisfactory and reliable.

Held, further that, the omission by the state to include in the charge the coercive circumstance under section 2(d) of Act 8 of 2008 relating to age difference was cured by evidence adduced at the trial and that the appellant suffered no prejudice.

Held, further that, the trial court’s omission to consider the evidence with the view of determining whether there exist substantial and compelling circumstances constituted a misdirection.

Van Wyk v S (HC-MD-CRI-APP-CAL-2020/00076) [2020] NAHCMD 399 (7 September 2020)

Summary: The appellant was arrested on 27 November 2019, inter alia on a charge of obstructing the course of justice by means of frustrating the arrests of Mr Sakeus Shangala and Mr James Hatuikilipi in the Windhoek district court matter of S v Bernard Esau and 5 others (hereafter referred to as the Fishrot matter). While released on warning, the appellant was again arrested on 14 December 2019 on the same charge and two counts of contravening section 6 (a), (b) and (c) read with sections 1, 5 and 11 (1) of the Prevention of Organised Crime Act 29 of 2004, read with the provisions of section 94 of the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA). Bail was refused by the Windhoek magistrate’s court on 19 June 2020. He appeals that ruling.

Held, it matters not whether this court agrees or disagrees with the factual findings of the magistrate, the inquiry is limited to whether the court’s discretion was exercised wrongly.

Held further, it is clearly observed ex facie the record of appeal, that the magistrate did not ‘invoke’ section 61 of the CPA, as alluded to by the appellant.

Held further, the magistrate’s principal ground for refusing bail was as a result of having found that the applicant was not a truthful witness; was released some 14 days before on a similar offence before being arrested on a similar matter; and showing a clear propensity to attempt or defeat the ends of justice.

Held further, notwithstanding the provisions of section 61 of the CPA, the all-embracing question a court should ask itself when dealing with a bail enquiry is whether the interests of justice would be prejudiced if the accused is granted bail.

Held further, as a general rule, there is a distinction between the concepts of interest of justice and the concept of public interest.

Held further, there are instances where the interest of the public or that of society may be a factor taken into account when considering what is in the interest of the administration of justice, however, the requirements under section 61 of the CPA must have been met.

Held further, the court a quo may be criticized for making reference to the concept of public interest when it already made a finding that the applicant was not a candidate for bail on one of the traditional grounds.

Held further, the mere fact that the appellant finds himself culpable to similar conduct of which he was on warning, in itself, is reason enough to find that the appellant shows a propensity to commit such conduct.

Held further, the question of bail conditions becomes relevant once the court has found that the appellant is a candidate for bail.

Held further, other than criticisms immaterial to the factual findings made by the magistrate in this matter, there is no room for a finding that the magistrate exercised his discretion wrongly.

Vujicin v S (HC-MD-CRI-APP-CAL-2020/00062) [2020] NAHCMD 551 (1 December 2020)

Summary: The appellant in this matter was convicted and sentenced in the Regional Court for the Swakopmund Central Division on several charges. This appeal only lies against the conviction and sentence on the following counts: Count 10 – rape, Count 11 – trafficking in persons, Count 12 – rape, Count 13 – rape. The learned magistrate ordered that some sentences run concurrently, resulting in the appellant being sentenced to an effective imprisonment term of 35 years. The appellant argued that there is no evidence presented before the trial court that he committed rape as alleged in count 10, and this court found that there is no evidence upon which the trial court could convict the appellant in count 10, hence the appeal has been upheld in that regard. The appellant argued that the learned magistrate erred in law and/or facts by finding that the appellant is guilty as charged in counts 11, 12 and 13, when the complainant in those counts refused to answer some questions in cross-examination. The appeal court found that the complainant answered some questions in cross-examination, and that the trial court also considered the evidence of other complainants whose evidence proves the charges in counts 11, 12 and 13. The appeal court found that the trial court had solid grounds upon which the appellant could be convicted on those counts. The ground of appeal advanced in respect of the sentence is that the learned magistrate erred in law by imposing an effective sentence of 35 years on the appellant, who was 67 years old at the time of sentencing, thus depriving him any prospect of being released in his lifetime. This court found that the trial magistrate considered various aggravating and mitigating factors in sentencing the appellant. The trial court took into consideration the advanced of the appellant as one of the mitigating factor. The trial court ordered that some sentenced run concurrently, thereby reducing his effective term of imprisonment. Court of appeal will only interfere with the exercise of the discretion of trial court in sentencing where it has not been exercised properly or where there was an irregularity committed during the proceedings. Found that the appellant was already of an advanced age when he committed the offences. Found that the discretion in sentencing the appellant was exercised properly. Found that the appropriate sentence was imposed upon the appellant.

Zeronimo v S (HC-NLD-CRI-APP-CAL-2019/00011) [2020] NAHCNLD 57 (26 May 2020)

Summary: The appellant was convicted for a contravention of section 2(1)(a) of the Combating of Rape Act, Act 8 of 2000. He pleaded not guilty. A trial was held and the State presented overwhelming evidence to prove a prima facie case beyond reasonable doubt. The appellant opted to remain silent but called a witness who eventually did not assist the appellant’s case. Appellant was convicted and sentenced to 20 years imprisonment of which three years were suspended for a period of five years on conditions. The conviction is confirmed. The learned magistrate did not inform or enquire from the appellant about substantial and compelling circumstances. The sentence is set aside and the matter is remitted to the magistrate to sentence the appellant afresh after complying with the guidelines set out in S v Gurirab 2005 NR 510.

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2020 UNREPORTED HIGH COURT CRIMINAL JUDGMENTS

THIS INDEX CONTAINS BOTH REPORTABLE AND NON-REPORTABLE CRIMINAL JUDGMENTS OF THE HIGH COURT, 2020

Compiled By: Ms Charlet Mokomele

Senior Legal Officer: Judicial Support, High Court.

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