COMPILED BY: MS. LOTTA AMBUNDAJUDICIAL RESEARCH ASSISTANTDIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT

THE HIGH COURT JUDGMENT INDEX 2014

THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2014. THE INDEX IS COMPILED TO

ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT

AUTHORITIES.

THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.

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Table of Contents

SUBJECT INDEX...............................................................................................................................6

CRIMINAL APPEAL...........................................................................................................................6

APPLICATION FOR CONDONATION............................................................................................9

APPLICATION FOR LEAVE TO APPEAL....................................................................................11

CRIMINAL LAW................................................................................................................................13

CRIMINAL PROCEDURE...............................................................................................................21

EXTRADITION..................................................................................................................................36

LAW OF EVIDENCE........................................................................................................................36

SENTENCE.......................................................................................................................................39

CASE SUMMARIES........................................................................................................................45

Alweendo v The State (CA 08/2013) [2014] NAHCNLD 44 (16 JULY 2014)...............45Amunyela v The State (CA 66/2009) [2013] NAHCNLD 52 (02 October 2014)..........45Auchumeb v State (CA 44/2012) [2014] NAHCMD 204 (1 July 2014)......................45Coppin v State (CA 47/2013) [2014] NAHCMD 119 (02 April 2014)...........................45Eichhoff v State (CA 26/2014) [2014] NAHCMD 154 (9 May 2014)............................46Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27 November 2014)............46Gawanab v State (CA 132/2013) [2014] NAHCMD 286 (03 October 2014)................47Gertze v The State (CA 145/2013) [2014] NAHCMD 302 (13 October 2014).............48Hamupolo v State (CA 40/2013) [2014] NAHCMD 258 (28 August 2014)................48Haraseb v State (CA 98/2013) [2014] NAHCMD 42 (12 February 2014)....................48Idan v State (CA 34/2014) [2014] NAHCMD 217 (14 July 2014).................................49Joseph v State (CA 148/2013) [2014] NAHCMD 353 (24 November 2014)................49Kalola v State (CA 50/2014) [2014] NAHCMD 294 (7 October 2014).........................50Kambatuku v State (CA 48/2013) [2014] NAHCMD 41 (12 February 2014)...............50Kapia v The State (CC 09/2008) [2014] NAHCMD 164 (23 May 2014).......................50Kapuire v State (CA 33/2010) [2014] NAHCMD 285 (29 September 2014)................50Katangolo v State (CA 45-2012) [2014] NAHCMD 28 (30 January 2014)...................51Katjoisikama v State (CA 113/2007) [2014] NAHCMD 25 (29 January 2014).............51Kauejao v The State (CC 06/2014) [2014] NAHCMD 316 (29 October 2014).............52Kauzuu v State (CA 107/2013) [2014] NAHCMD 68 (28 February 2014)...................52Kleophas v State (CC 10/2008) [2014] NAHCMD 46 (13 February 2014)..................52Lameck v The State (CC 11/2010) [2014] NAHCMD 347 (14 November 2014)..........53

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Maova v State (CA 87/2013) [2014] NAHCMD 134 (14 April 2014)............................53Mbwale v S (CC 19/2010) [2014] NAHCNLD 3 (23 January 2014).............................53Moritz v The State (CA 53/2013) [2014] NAHCMD 203 (01 July 2014).......................53Mujime v State (CA 144/2010) [2014] NAHCNLD 39 (11 July 2014)..........................54Namiseb v State (CC 19/2011) [2014] NAHCMD 251 (25 August 2014)....................54Ndjukuma v State (CA 57/2011) [2014] NAHCNLD 56 (24 October 2014).................55Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014)............55Petrus v State (CC 13/2013) [2014] NAHCMD 234 (05 August 2014).......................56Ramseb v The State (CA 05/2013) [2014] NAHCNLD 40 (11 JULY 2014).................56S v Adams and Another (CC 17/2012) [2014] NAHCMD 90 (19 March 2014)............56S v Alutale (CR 03/2014) [2014] NAHCNLD 06 (04 February 2014)...........................56S v Ananias (CA 34/2013) [2014] NAHCMD 82 (10 March 2014)...............................57S v Brandt (CR 9/2014) [2014] NAHCMD 70 (4 March 2014).....................................57S v Brandit (CR 11/2014) [2014] NAHCMD 91(19 March 2014)..............................57S v Chunga (CC 15/2012) [2014] NAHCNLD 18 (19 March 2014)..............................58S v Daniels (CR 31/2014) [2014] NAHCMD 170 (28 May 2014).................................58S v Dausab (CC 38/2009) [2014] NAHCMD 2 (15 January 2014)...............................59S v Dresselhaus (CC 12/2005) [2014] NAHCMD 183 (17 June 2014)........................59S v Dias (CC 14/2011) [2014] NAHCMD 323 (31 October 2014)................................60S v Ditshabue (CC 26/2012) [2013] NAHCMD 123 (3 April 2014)..............................60S v Frans (CR 2 /2014) [2014] NAHCMD 8 (23 January 2014)...................................60S v Hailonga (CC 5-2012) [2014] NAHCMD 235 (22 July 2014).................................60S v Hamukoto (CC 8/2013) [2014] NAHCMD 59 (7 November 2014)........................61S v Hendriks (CA 22/2014) [2014] NAHCMD 215 (14 July 2014)...............................61S v Herman (CR 05/2014) [2014] NAHCNLD 9 (13 February 2014)...........................61S v Hileni (CR 02/2014) [2014] NAHCNLD 07 (04 February 2014).............................62S v Homses (CC 41/2009) [2014] NAHCMD 36 (06 February 2014)..........................62S v Immanuel (CA 53/2013) [2014] NAHCNLD 1 (14 January 2014)..........................62S v Jossop (CC 5-2012) [2014] NAHCMD 368 (27 November 2014)..........................63S v Mavhengele (CR 07/2014) [2014] NAHCNLD 16 (5 March 2014).........................63S v Mazita (CR 59/2014) [2014] NAHCMD 301 (10 October 2014)............................63S v Mbauka (CR /2014)[2014] NAHCMD 43 (12 February 2014)................................64S v Mbango (CC 19/2012) [2014] NAHCNLD 10 (13 February 2014).........................64S v Mbango (CC 19/2012) [2013] NAHCNLD 13 (27 February 2014).........................64S v Morenga (CA 156-2013) [2014] NAHCMD 360 (26 November 2014)...................65S v Munuma (CC 03/2004) [2014] NAHCMD 363 (27 November 2014).....................65

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S v Mutilifa (CC 03/2012) [2013] NAHCNLD 45 (16 July 2014)..................................65S v Nangolo (CR 26/2014) [2014] NAHCNLD 51 (25 August 2014)............................66S v Nderura (CR 20/2014) [2014] NAHCMD 131 (10 April 2014)................................66S v Ndoke (CR 50/2014) [2014] NAHCMD 263 (29 August 2014)..............................67S v Noabeb (CC 3/2012) [2014] NAHCMD 94 (24 March 2014).................................67S v Shipepe (CR 15/2014) [2014] NAHCNLD 30 (08 April 2014)................................67S v Shivute (CC20/2010) [2014] NAHCMD 343 [14 November 2014].........................67S v Simon (CR 80-2014) [2014] NAHCMD 357 (26 November 2014).........................68S v Tjapa (CC 09-2011) [2014] NAHCMD 367 (27 November 2014)..........................68S v Veii (CR 4-2013) [2014] NAHCMD 24 (29 January 2014).....................................68Shifela v State (CA 9/2014) [2014] NAHCMD 228 (28 July 2014)...............................68Shoombe v State (CA 102/2013) [2014] NAHCMD 62 (21 February 2014)................69State v Kadhila (CR 39/2014) [2014] NAHCMD 231 (31 July 2014)...........................69State v Michael (CR 38/2014) [2014] NAHCMD 226 (25 July 2014)..........................71Tangeni v State (CA 8/2012) [2014] NAHCMD 25 (9 April 2014)................................71The State v Adriaan Pienaar (CA 47/2014) [2014] NAHCMD 218 2014)....................71The State v Harold Hai-Hauseb (CA 5/2014) [2014] NAHCMD 206 2014).................72The State v Kashikuka (CR 35/2014) [2014] NAHCMD 213 (10 July 2014)................72The State v Van Eden (CR 34/2014) [2014] NAHCMD 212 (10 July 2014)................72Titus v The State (CA 46/2011) [2014] NAHCNLD 47 (22 July 2014).........................72Uakarenda v The State (CA 61/2009) [2014] NAHCNLD 54 (10 October 2014)........72Van der Westhuizen v State (CA 122/2013) [2014] NAHCMD 211 (10 July 2014).....73

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SUBJECT INDEX

CRIMINAL APPEAL

Appeal – S 310 appeal by the State against sentence – Misdirection from the trial court – Such misdirection must be material so as to vitiate the sentencing procedure – State bears the onus. S v Kuhlewind (CC 13/2010) [2014] NAHCMD 23 (28 January 2014).

Appeal – Appeal against conviction and sentence that the trial court misdirected itself - A court of appeal is entitled to interfere with a sentence imposed only where the trial court has misdirected itself on the facts or on the law; where an irregularity which was material occurred during the sentence proceedings; where the trial court failed to take into account material facts or overemphasized the importance of other facts; or where the sentence imposed is startlingly inappropriate, induces a sense of shock and where there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of appeal. Shikalepo v State (CA 79/2013) [2014] NAHCMD 29 (31 January 2014). See further Valombola v The State (CA 93/2013) [2014] NAHCMD 33 (5 February 2014); see further Josef v The State (CA 59/2013) [2014] NAHCMD 138 (15 April 2014); see further Nanguti v State (CA 64/2013) [2014] NAHCMD 184 (18 June 2014); Muzweulu v State (CA 150/2013) [2014] NAHCMD 230 (25 July 2014) ; Shetekela v State (CA 21/2014 [2014] NAHCMD 257 (28 August 2014); Kambindo v State (CA 101/2013) [2014] NAHCMD 165 (23 May 2014).

Appeal – Grounds for appeal must be clear and specific so as to comply with rule 67(1) of the Magistrate’s Court rules. Koopman v State (CA 46/2013) [2014] NAHCMD 75 (28 February 2014). See further Nakale v State (CA 71/2013) [2014] NAHCMD 140 (15 April 2014).

Appeal – Against sentence – for an appeal against sentence to be upheld, the court must decide whether the regional court magistrate when imposing sentence committed certain misdirections or irregularities - This court will also take into account whether or not the court a quo failed to take into account certain material facts or over emphasised importance of some facts and also consider the question whether the sentence imposed is startlingly inappropriate, whether it induces a sense of shock or whether there is a striking disparity between the sentence imposed by the trial court and that which this court would have imposed had it sat as a court of first instance - Court of the view that the sentence imposed by the magistrate in the regional court having regard to the particular circumstances of the offence is an appropriate sentence in the circumstances. Basson v State (CA 82/2013) [2014] NAHCMD 127 (14 March 2014).

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Appeal – against conviction and sentence – Point in limine raised that the grounds of appeal were not filed within the 14 days limit prescribed by rule 67(1) of the Magistrate’s Court Rules – court to look at the reasons provided for the non-complience – court must also look at the prospect of success by looking at the evidence presented in the court a quo – State did not discharge enough evidence linking the appellant to the commission of the robbery – Conviction and sentence set aside. Boungue v State (CA 74/2012) [2014] NAHCMD 126 (07 March 2014).

Appeal – Grounds of Appeal – Grounds of appeal must be set out in notice of appeal clearly and specifically – setting out of conclusions drawn by the draftsperson insufficient – An improper ground of appeal is no ground of appeal at all and therefore a nullity – Once a nullity it remains a nullity and cannot be resurrected or revived, neither by condonation of the non-compliance nor by the amendment of the defective notice. Beyer v State (CA 134/2013) [2014] NAHCMD 172 (03 June 2014).

Appeal - Notice of appeal – Such notice should clearly set out grounds of appeal in accordance with rule 67(1) of the Magistrates’ Courts Rules – Appellant wrote a letter to the registrar which he put forth as a notice of appeal – Court held that while pleadings and other papers prepared by lay persons representing themselves should be construed generously and in the light most favourable to such litigant this should not be taken too far as to cover situations where a statutory provision has not been complied with by such litigant. Idan v State (CA 34/2014) [2014] NAHCMD 217 (14 July 2014).

Appeal - Appeal against sentence – Court gives notice that it may increase sentence imposed by the court a quo – Court of the view that the sentence imposed on murder conviction is disturbingly lenient – Court a quo misdirected itself by under emphasizing the seriousness of murder and the prevalence thereof – Sentence increased to 20 years imprisonment. Shifela v State (CA 9/2014) [2014] NAHCMD 228 (28 July 2014).

Appeal – Sentence – Fine – Suspension of - Provisions of s 297 of Criminal Procedure Act 51 of 1977 do not prohibit the suspension of a fine – Accused convicted on charge of corruption in contravention of s 43(1) of Anti-Corruption Act 8 of 2003 – Fine of N$8 000 or 1 year imprisonment wholly suspended imposed – Imposition of such a sentence however to be regarded as lenient – Evidence presented in mitigation not justifying a suspended sentence. Sentence – Plea of guilty as sign of remorse – Considered together with evidence in mitigation – Plea of guilty confirmation of remorse – Mitigating factor for purpose of sentence. S v Brian Stoffberg (CA 58/2013) [2014] NAHCMD 284 (29 September 2014).

Appeal – Sentence – Prescribed minimum sentence not applicable – Sentence substituted with appropriate sentence. The accused was sentences to 20 years’ imprisonment of which 10 years were suspended. The sentence imposed were in accordance with s14(1)(a)(ii) of the Stock Theft Act, 12 of 1990, as amended. A full

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bench of the High Court had declared the mandatory minimum sentences laid down in s14 of the Stock Theft Act 12 of 1990, unconstitutional (Daniel v Attorney-General and Others; Peter v Attorney-General and Others 2011 (1) NR 330 (HC)). This court is in a position to impose an appropriate sentence. Appeal is upheld and the sentence is set aside and substituted with an appropriate sentence. Hembinda v The State (CA 02/2010) [2013] NAHCNLD 48 (22 July 2014); Mukwena v State (CA 59/2011) [2014] NAHCMD 288 (24 September 2014); Nabita v The State (CA 140/2013) [2014] NAHCMD 292 (07 October 2014).

Bail – Appeal against magistrate’s refusal of bail in terms of section 65 of Act 51 of 1977 – Magistrate exercising her discretion not to grant bail – Court refused to interfere with decision of magistrate to refuse bail. The State v Adriaan Pienaar (CA 47/2014) [2014] NAHCM 218 2014).

Bail – Against magistrate’s decision to refuse the second bail application - No new facts on which basis the second application could be considered – Approach to be followed by the appellant court in a subsequent bail application – No ‘material misdirection from the magistrate – Appeal refused. Samahina v The State (CA 77/2014) [2014] NAHCMD 291 (07 October 2014); see further Katjiri v The State (CA 91/2013) [2014] NAHCMD 293 (7 October 2014).

Bail – Appeal against refusal of bail by magistrate – Appellant – a foreigner and an asylum seeker charged with dealing in or possession of parts of elephants a contravention of section 2(1) (a) of Proclamation AG 42 of 1980 as amended – Magistrate exercised discretion correctly when refusing bail – thus appeal dismissed. Criminal Procedure – Appeal against the refusal of bail by a magistrate in terms of section 65(4) of the Criminal Procedure Act 51 of 1977. The appellant who is a foreigner and an asylum seeker has been charged with dealing in or possession of parts of elephants, a contravention of section 2(1) (a) or Proclamation Act 42 of 1980 as amended. In appeal, the Court found that the magistrate exercised her discretion correctly when she refused to grant bail to the appellant and dismissed the appeal. Muteba v State (CA 42/2014) NAHCMD 260 (29 August 2014).

Appeal - Appeal against conviction – Appellant convicted of rape and assault with intent to do grievous bodily harm – Notice of appeal filed out of time – No proper grounds for condonation and no prospect of success shown – notwithstanding condonation granted – to enable court to interfere with sentence – Sentence – Court gives notice that it may increase sentence imposed on assault with intent to do grievous bodily harm – sentence increased to 3 years imprisonment. Kapuire v State (CA 33/2010) [2014] NAHCMD 285 (29 September 2014).

Against sentence – Criminal procedure - Sentence - Appeal against sentence - Role of Court of appeal - Trial court must exercise discretion in sentencing in accordance with

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judicial principles - Court of appeal only to interfere if discretion not correctly exercised - Court of appeal generally reluctant to erode trial Court's discretion - Such erosion could undermine administration of justice. Gawanab v State (CA 132/2013) [2014] NAHCMD 286 (03 October 2014).

Against Conviction and sentence – Appeal against – Respondent raising point in limine against the late filing of notice of appeal – Appellant’s explanation for delay not adequate – Accordingly, court considering appellant’s prospects of success on appeal – Court found that the explanation for delay inadequate and there are no prospects of success on appeal – Consequently, appeal dismissed. Kalola v State (CA 50/2014) [2014] NAHCMD 294 (7 October 2014).

Appeal - By State - against s 174 discharge - Application for leave to appeal by the State against the discharge of the respondents at the close of the State’s case by a Regional Magistrate on 24 January 2014. Reasonable prospects of success established by the State. Leave to appeal to the High Court granted. S v Nangombe (CA 60/2014) [2014] NAHCMD 298 (8 October 2014).

Appeal – Criminal Procedure – failure by magistrate to inform appellant of his right to disclosure of contents of police docket and witness’ statements – in this case such failure amounted to a fundamental irregularity. Evidence: caution – magistrate failed to apply proper caution in respect of complainant’s evidence – material discrepancies between her evidence and the evidence of other state witnesses in respect of her report in respect of the identity of her perpetrator – same not addressed in the magistrate’s judgment. Amunyela v The State (CA 66/2009) [2013] NAHCNLD 52 (02 October 2014).

Appeal – Evidence –Identity evidence by a single witness –The testimony of the complainant not clear in respect of her opportunity to observe the perpetrator without the mask – Description of perpetrator very general – Court a quo ought to have treated her testimony with circumspection. Uakarenda v The State (CA 61/2009) [2014] NAHCNLD 54 (10 October 2014).

Appeal – Sentence – Minimum sentence of 20 years imprisonment for theft of stock with a value of more than N$500, is no longer mandatory – Court may interfere with sentence. Ndjukuma v State (CA 57/2011) [2014] NAHCNLD 56 (24 October 2014); S v Witbooi (CR 75-2014) [2014] NAHCMD 359 (26 November 2014).

APPLICATION FOR CONDONATION

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Application for condonation – Notice of Appeal filed out of time – Application for condonation – Applicant must provide a reasonable explanation for the delay. In addition applicant must establish that there are reasonable prospects of success. Applicant not establishing latter requirement. Condonation refused and appeal struck from the roll. Murangi v The State (CA 88/2013) [2013] NAHCMD 50 (14 February 2014). See further Relito v State (CA 127/2013) [2014] NAHCMD 64 (14 February 2014); Beukes v The State (CC 21/2006) [2014] NAHCMD 96 (19 March 2014); Ramseb v The State (CA 05/2013) [2014] NAHCNLD 40 (11 JULY 2014); Muzo v State (CA29-2013) [2014] NAHCMD 297(8 October 2014); Jackson v State (CC 03/2011) [2014] NAHCMD 308 (17 October 2014); Hunibeb v State (CA 167/2013) [2014] NAHCMD 342 (14 November 2014).

Leave to appeal – Condonation – Late filing of Notice of appeal – Proper procedure – Filing a Notice of Appeal accompanied by supporting affidavit commissioned by a commissioner of oath – Court has judicial discretion to condone non-compliance of the rules in appropriate cases and hear application without a supporting affidavit by the applicant explaining the reasons for the delay – Court should consider – Good cause shown and reasonable prospects of success – Reasons advanced for the delay not acceptable – and no reasonable prospects of success on appeal – Application for condonation to appeal by the applicant is refused. Mtshibe v The State (CC 15/2008) [2014] NAHCMD 307 (16 October 2014).

Appeal – Application for condonation of late filing of notice of appeal – For application of condonation to succeed, there are two legs to be satisfied. Firstly, the applicant must give a satisfactory and reasonable explanation which is bona fide for non-compliance of the Rules. Secondly he must show the court that he has reasonable prospects of success. In the present matter the appellant had failed to give a satisfactory and reasonable explanation which is bona fide for the cause of his delay. He also failed to show that he has reasonable prospect of success on the merits of the appeal. Accordingly application of condonation is dismissed and the matter is struck from the roll. Fillemon v State (CA 80/2013) [2014] NAHCMD 58 (14 February 2014).

Appeal — Application for condonation for late filing of notice of appeal — Appellant failing to provide an acceptable explanation for such late filing and failing to show reasonable prospects of success on appeal – Court therefore dismissing application for condonation – Appeal — Application for condonation for late filing of notice of appeal — Court dismissing application for condonation - Court also dealing with the merits of the appeal through the consideration of the appellant’s prospects of success — Court finding no such prospects – appeal dismissed. Nangolo v The State (CA 44/2009B) [2014] NAHCMD 121 (17 March 2014).

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Appeal – Appeal against conviction – housebreaking and theft – Not timeously filed – No proper application for condonation – No affidavit explaining delay in filing appeal – No prospect of success on appeal – Appeal dismissed. Auchumeb v State (CA 44/2012) [2014] NAHCMD 204 (1 July 2014).

APPLICATION FOR LEAVE TO APPEAL

Appeal – Application for leave to appeal in terms of s 316(1)(b) – Court found no reasonable prospects of success on appeal. Condonation - Notice of appeal filed outside prescribed time limit – In view of no reasonable prospects of success on appeal – Application refused. Kamudulunge v The State (CC 20/2010) [2014] NAHCNLD 11 (26 February 2014).

Appeal – Application for leave to appeal in terms of s 316(1)(b) – Court found no reasonable prospects of success on appeal to exist - Condonation – Notice of appeal filed out of time – In view of no reasonable prospects of success on appeal – Application refused. Simon v The State (CC 08/2011) [2014] NAHCNLD 14 (27 February 2014);

Criminal Procedure – Application for leave to appeal filed out of time – Condonation – Explanation acceptable, but no prospect of success on appeal – State proved beyond reasonable doubt the guilt of applicant – Condonation refused – Matter struck from the roll. S v Tjapa (CC 09-2011) [2014] NAHCMD 367 (27 November 2014).

Appeal – Application for leave to appeal against sentence by the prosecution in terms of s 316A (1) – Court found no reasonable prospects of success on appeal to exist. S v Daniel (CC 05/2011) [2014] NAHCNLD 34 (28 April 2014).

Appeal - Criminal procedure – Appeal – Application by the State for leave to appeal against sentence – Applicant should show that real reasonable possibility exists that an appeal court would reach a different conclusion than that reached by the trial court and there are reasonable prospects of success on appeal – In instant case, the court found that the learned magistrate did not misdirected himself in law as he acted within the four walls of the Magistrates’ Act 32 of 1944, as amended by the Magistrates Courts Amendment Act 9 of 1997 – The offence committed was domestic violence as contemplated in the Combating of Domestic Violence Act 4 of 2003 – Court found that the respondent has failed to establish that real possibility exists that an appeal court would reach a different conclusion than that reached by the trial Court and that there are reasonable prospects of success on appeal – Consequently, the court refused the

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application and dismissed it. S v Morenga (CA 156-2013) [2014] NAHCMD 360 (26 November 2014).

Appeal – Application for leave to appeal in terms of s 310 (1) of Criminal Procedure Act, 51 of 1977 – Test applied – Applicant must satisfy court that he has reasonable prospects of success on appeal – Court satisfied – Leave is granted to appeal. S v Immanuel (CA 53/2013) [2014] NAHCNLD 1 (14 January 2014); S v Mbango (CC 19/2012) [2014] NAHCMD 57 (10 November 2014);

Appeal – Application for leave to appeal in terms of s 316A (1) of Act 51 of 1977 – Test – Applicant must clearly indicate reasonable prospects of success on appeal. The court at the end of a trial was not satisfied that the State proved beyond reasonable doubt that respondents committed murder and acquitted both. The State clearly not satisfied with the outcome seeks leave to appeal the judgment. The court having considered the grounds articulated in the notice of appeal came to the conclusion that there are no prospects of success on appeal for the applicant and accordingly dismissed the application. S v Barmen (CA 12/2012) [2014] NAHCNLD 58 (10 November 2014).

Appeal – Application for leave to appeal in terms of s 316(1)(b) – Court found no reasonable prospects of success on appeal. Condonation - Notice of appeal filed outside prescribed time limit – In view of no reasonable prospects of success on appeal – Application refused. Muruti v S (CC 10/2011) [2014] NAHCNLD 2 (15 January 2014).

Appeal – Application for leave to appeal – Test – Applicant must clearly indicate reasonable prospects of success. Mbwale v S (CC 19/2010) [2014] NAHCNLD 3 (23 January 2014); Titus V State (CA 65/2010) [2014] NAHCMD 139 (15 April 2014).

Application – Leave to appeal by State – Respondent acquitted on charges of Assault with intent to do grievous bodily harm and malicious damage to property - Magistrate misdirected himself in acquitting respondent on the charges of assault with intent to do grievous bodily harm - Leave to appeal granted in respect of the assault charge alone. The State v Harold Hai-Hauseb (CA 5/2014) [2014] NAHCM 206 2014).

Appeal - Application for leave to appeal – Section 316 (1) of Act 51 of 1977 – Test – Applicant must show reasonable prospects of success on a further appeal - The accused was convicted of murder (count 1) and attempted murder (count 2) at the end of a trial and sentenced to 30 and 10 years’ imprisonment respectively. In an application for leave to appeal against sentence imposed on count 1 various grounds were raised in which it is contended that the court misdirected itself. After considering each ground the court came to the conclusion that the applicant failed to indicate that he has reasonable prospects of success on appeal. David v State (CC 32/2007) [2014] NAHCMD 118 (01 April 2014).

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Appeal – An application for leave to appeal can only be granted if it appears to the Appeal Court that it has reasonable prospects of success. Kleophas v State (CC 10/2008) [2014] NAHCMD 46 (13 February 2014).

Appeal – Application for leave to appeal – Application by the State in terms of section 310 (1)(a) of Act 51 of 1977 – Applicant must clearly indicate reasonable prospects of success. S v Hendriks (CA 22/2014) [2014] NAHCMD 215 (14 July 2014); see further Ameb v State (CA 61/2013) [2014] NAHCMD 193 (20 June 2014).

Appeal - Application for leave to appeal by the State against the refusal by a magistrate of an application to forfeit a vehicle and trailer to the State, made under s 89(1)(d)the Nature Conservation Ordinance, of 1975. The duty of a court hearing such an application considered and leave to appeal granted. Nel v The State (CA 38/2014) [2014] NAHCMD 233 (30 July 2014).

Appeal – Leave to appeal – Section 316 (1) of Act 51 of 1977 – Appeal against sentence – No prospects of success on appeal - Applicant seeks leave to appeal against a sentence of 27 years’ imprisonment on a charge of murder. Applicant contends that the court in sentencing ignored his personal circumstances. This ground of appeal found without merit and application refused. Lifatila v The State (CC 12/2011) [2014] NAHCNLD 12 (26 February 2014).

Appeal – Application for leave to appeal - This court sentenced the applicant to 45 years for strangulating his ex-girlfriend to death in her room and to 5 years in prison for locking the deceased’s roommate Erika Embashu inside the wardrobe. He says the sentence is severe, hence the application for leave to appeal. Petrus v State (CC 13/2013) [2014] NAHCMD 234 (05 August 2014).

Appeal - Leave to appeal – The mere possibility that another court might come to a different conclusion is not in itself sufficient to justify the grant of the application – The applicant must satisfy the court that he has a reasonable prospects of success – Applicant failed to satisfy the court to that effect – Leave to appeal refused. Schiefer v State (CC 17/2008) [2014] NAHCMD 269 (16 September 2014).

CRIMINAL LAW

Criminal Law - Reconciliation and resolution of perceived conflicting statutory provisions in the process of interpretation of statutes – Presumptions of interpretation are guidelines and principles employed to assist courts in the process of construing the law – Statues must be read together and the later one must not be so construed as to repeal the provisions of an earlier one unless the statute expressly alters the provisions of the earlier one or such alternation is a necessary inference from the terms of the later

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statute – the inference must be a necessary one and not merely a possible one – Public policy may also be utilised as an instrument in the interpretation of statutes. Kameho v State (CA 67/2013) [2014] NAHCMD 244 (15 August 2014).

Criminal law - Application for condonation for the late filing of an appeal – Applicant had been sentenced to 17 years imprisonment on a charge of rape – In accordance with the provisions of Section 2(1)(a) of the Combating of Rape Act, Act 8 of 2000 – Explanation for late noting of appeal held to be not reasonable – Prospects of success on merits of appeal against conviction and sentence also not good – Condonation refused – Appeal dismissed. Fleermuys v The State (CA 39/2013) [2013] NAHCMD 378 (21 October 2013).

Criminal law - An alibi is a defence that relates to the accused disputing his presence at the scene of crime at the time it was committed. The same dispute would inevitably also apply regarding the accused’s knowledge of the commission of the offence. Sifoyi v State (CA 35/2013) [2014] NAHCMD 4 (20 January 2014).

Criminal Law - A prima facie case exists when the elements of the offence the accused is facing have been established, such that a reasonable court, acting carefully may, in the absence of counter evidence, base its conviction thereon. Haraseb v State (CA 98/2013) [2014] NAHCMD 42 (12 February 2014); see further S v Pugalnanthy (CC 28/2009) [2014] NAHCMD 130 (7 April 2014); S v Koen (CC 14/2012 CC 15/2012) NAHCMD 216 (15 July 2014); S v Petrus (CC 13/2013) [2014] NAHCMD 182 (16 June 2014); S v Thulasithas (CC 28/2009) [2014] NAHCMD 181 (16 June 2014); S v Inja (CR 66/2014) [2014] NAHCMD 332 (7 November 2014).

Criminal law - Criminal law – Arms and ammunition – Conviction of crime involving use of firearm – Section 10 (7) of Arms and Ammunition Act 7 of 1996 peremptory – Accused having to be afforded opportunity by court to state and lead evidence why he should not be declared unfit to possess firearm – Where prosecution does not invoke provisions of s 10 the court should act mero motu. S v Paulus (CR 14/2014) [2014] NAHCNLD 26 (28 March 2014).

Criminal law – Escaping from lawful custody – Lawful detention an element of the offence – Accused must be in lawful custody at time of escape. S v Gaseb (CR 79-2014) [2014] NAHCMD 356 (26 November 2014).

Criminal Law – In our criminal justice system an accused’s guilt must be proved beyond reasonable doubt. S v Homses (CC 41/2009) [2014] NAHCMD 36 (06 February 2014). See also S v Moses (CR 05/2014) [2014] NAHCMD 37 (06 February 2014); See further S v De Jay (CC 04/2010) [2014] NAHCMD 149 (24 April 2014); Kikwe v The State (CA 112/2013) [2014] NAHCMD 137 (15 April 2014).

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Criminal Law – In our law a conviction should follow only if the suspect has been connected to the wrong doing leveled against him beyond reasonable doubt. S v Mbauka (CR /2014) [2014] NAHCMD 43 (12 February 2014).

Criminal Law – A misdirection on a point of law or that of fact must exist in order for this court to interfere with the trial court’s decision on conviction or sentence. Shoombe v State (CA 102/2013) [2014] NAHCMD 62 (21 February 2014); see further S v Kavhura (CR 12/2014) [2014 NAHCMD 93 (24 March 2014); S v Munyele (CR 43/2014) [2014] NAHCMD 252 (27 August 2014).

Criminal Law - Where the prosecution has proved its case against a suspect beyond reasonable doubt on the basis of clear and credible evidence the Appeal Court would find no reason to set aside such a conviction. Kauzuu v State (CA 107/2013) [2014] NAHCMD 68 (28 February 2014).

Criminal law - It is peremptory that a suspect who has been convicted for a contravention of a provision relating to the unlawful possession of an arm without a licence has to be declared unfit to possess an arm in terms of section 10(6)(a) and (7) of the Arms and Ammunition Act 7 of 1996. S v Brandit (CR 11/2014) [2014] NAHCMD 91 (19 March 2014).

Criminal law – Drug offences – Possession of – Sentence – Accused convicted of possession of 14 grams of cannabis – Trial court sentencing accused to two years’ imprisonment – On review, Court recognising prevalence of drug offences and circumstances of the case – Accused’s aim was to hand drug to her boyfriend who was in custody in police cells – Sentence shockingly inappropriate in circumstances of the case – Fine would have sufficed – Accused already served 9 months of sentence – Period served sufficient punishment. S v Ganda (CR 13/2014) [2014] NAHCNLD 24 (24 March 2014).

Criminal law – Housebreaking with intent to commit an offence – Breaking an element of the offence – Entry gained through broken window. S v Nghilifawali (CR 09/2014) [2014] NAHCNLD 20 (20 March 2014).

Criminal Law – Test for dolus eventualis – Did the accused foresee that there is a reasonable possibility that death may occur yet persisted in his deed whether death may occur or not – The Test in respect of intention is subjective. Criminal Law – Culpable Homicide – Test – Whether the accused ought reasonably to have foreseen that death may occur – Culpability required negligence. S v Noabeb (CC 3/2012) [2014] NAHCMD 94 (24 March 2014).

Criminal law - In our law the guilty of the convicted must be proved beyond reasonable doubt. The deceased who stood talking to a friend on the street threw an empty beer

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bottle he had into a nearby municipal dustbin. This conduct was not taken easily by those who were braaing in the nearby house. It resulted in four male persons storming out of the nearby house confronting the deceased and his friend on what they described as throwing a bottle at them. A confrontation ensued culminating in one of those who were braaing to stab the deceased on the left side of his chest with a kitchen knife.Held: The two eyewitnesses pointed two different persons as the ones that stabbed the deceased. Held: Such a contradiction in the prosecution case militates against the required standard of proof beyond reasonable doubt. Held: The appeal is upheld, the conviction and sentence are set aside. Kakuritjire v State (CA 17/2013)[2014] NAHCMD 104 (28 March 2014).

Criminal Law – Traditionally the imposition of sentence lies in the discretion of the trial court alone, and there has to be a real good cause in the form of a misdirection on the law or fact in order for this court to interfere with it. The appellant, a Nigerian national had swallowed 80 bullets of cocaine en route from Brazil to South Africa via Angola. He was arrested at Hosea Kutako International Airport when the drugs were found on his excretion. He pleaded guilty in the Regional Court Katutura and was sentenced to ten (10) years imprisonment two (2) years of which were suspended for five (5) years on the usual conditions of good behavior. He now appeals against that sentence. Held: The penalty provision in section 2(c) of the Dangerous Dependence – Producing Drugs, Act 41 of 1971, allows the trial court to impose a custodial sentence or a sentence coupled with an option of a fine. Held: No misdirection was detected to enable this court to interfere with the Magistrate’s sentence. Held: The appeal is dismissed. Nwosu v State (CA 105/2013) [2014] NAHCMD 105 (28 March 2014).

Criminal Law - For a plea of acting in defence to succeed, an attack must be imminent, or have started and is still continuing. A person may act in her own defence or in the defence of another person. Coppin v State (CA 47/2013) [2014] NAHCMD 119 (02 April 2014).

Criminal law - Accused convicted of hunting a protected game interms of Ordinance 4 of 1975 – Such animal must be listed in schedule 4 of the Ordinace- Eland (Taurotragus Oryx) not listed as such but as a huntable game in schedule 5 – Held that Accused was wrongly convicted. S v Kavero (CR 14/2014) [2014] NAHCMD 107 (31 March 2014).

Criminal law - Accused did wrongfully and unlawfully drive a motor vehicle with registration number N4461 WB while the concentration of alcohol in his breath was not less than 0.37 mililiters of breath exhaled to wit 0.89 grams per 1000 mililiters - The device used for the breathalyzers testing approved by the Minister must meet the requirements of s 82 (7), read with s 94 (3) and 94 (4), of the Act – The Minister had issued Government Notice No. 100 which contains the approval but it did not meet the requirements- Convictions and sentence set aside. S v Gertze (CR16/2014) [2014] NAHCMD 109 (31 March 2014); S v Nengola (CR 17/2014) [2014] NAHCMD 110 (31

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March 2014); S v Namiseb (CR 18/2014) [2014] NAHCMD 111 (31 March 2014); S v Angamba (CC 04/2013) [2014] NAHCMD 256 (29 August 2014).

Criminal law - An accused has a right to remain silent as it is his constitutional right – In determining his guilt or otherwise, the court must then rely on the evidence placed before it by the State and all other evidence - Including his warned statements admitted as evidence – In the absence of the accused’s explanation regarding circumstantial evidence, the court can hold that such evidence is proof beyond reasonable doubt regarding his guilt. S v Ditshabue (CC 26/2012) [2013] NAHCMD 123 (3 April 2014).

Criminal law – Drug offences – Dagga (Cannabis) – Dealing in cannabis in contravention of Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971 – Lower court applied presumption in s 10(1)(a)(i) of Act 41 of 1971 on ‘dealing in’ – Court held that lower court’s interpretation of the provision was wrong – Court held that the unrepresented accused should have been asked to give explanation for his possession of the cannabis which may give rise to a reasonable doubt as to his intention to deal in cannabis – It is only in the absence of such explanation that the possession of the large quantity (2700 kilograms) of cannabis be sufficient circumstantial evidence of dealing in. S v Daniels (CR 31/2014) [2014] NAHCMD 170 (28 May 2014).

Criminal law – Bail – appellant charged with murder – Appellant suicidal over the fact that the deceased has died – Family member lying that the deceased was infact taken to the hospital in order to preserve his life - Releasing him on bail will not be in the interests of the society and the proper administration of justice since he will definitely attempt to kill himself again. Swartz v State (CC 08/2013) [2014] NAHCMD 163 (22 May 2014).

Criminal Law – POCA - Application for a Confiscation Order In Terms of Section 32 Of The Prevention of Organised Crime Act 29 of 2004. The State v Pugalnanthy (CC 28/2009) [2014] NAHCMD 180 (16 June 2014).

Criminal law - Criminal law - Theft is constituted by unlawfully and intentionally taking and assuming control over another person’s property without consent - The appellant and his co-accused stole the complainant’s vehicle during the night. It was found the following morning abandoned at some 150 meters away in the veld. Iitembu v State (CA 74/2013) [2014] NAHCMD 179 (13 June 2014).

Criminal law – Indecent assault – What amounts to – Different views – Act itself, objectively viewed, being indecent – Opposing view – Expressed motive of accused as conveyed to complainant as a factor in establishing element of indecency. S v Mwiya (CR 37/2014) [2014] NAHCMD 224 (25 July 2014).

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Criminal Law – Intent to permanently deprive the owner of his property is required for theft. Titus v The State (CA 46/2011) [2014] NAHCNLD 47 (22 July 2014).

Criminal law – Appeal – Conviction – Accused convicted on warning statements of co-accused – Admission only admissible in evidence against the maker. The appellant was tried together with two other accused and convicted of stock theft. The conviction of the appellant was solely based on warning statements of co-accused in which the appellant is implicated. The presiding magistrate during subsequent bail proceedings conceded that appellant was wrongly convicted. Appeal upheld. Gauorob v The State (CA 16/2014) [2014] NAHCMD 214 (11 July 2014).

Criminal law – Stock theft – Value of stock mentioned in charge not an element of the crime of theft – Value relevant to sentencing – Conviction after plea of guilty – Value of stock not admitted by accused – Prosecutor to prove value by presenting evidence in terms of s 112 (3). S v Kamavei (CR 32/2014) [2014] NAHCMD 198 (25 June 2014).

Criminal law - Sentence – factors to be taken into account – Triad – lack of remorse – lengthy period as awaiting trialists – good prospects of being rehabilitated. The accused were convicted of murder, robbery with aggravating circumstances and defeating or obstructing or attempting to defeat or obstruct the cause of justice. The accused spent 8 years and six months awaiting finalization of their case. They have not shown remorse for their actions. Evidence adduced that they are model prisoners who can be rehabilitated. Sentenced to 20 years imprisonment on the murder charge, 15 years imprisonment on robbery with aggravating circumstances and 5 years imprisonment for defeating or obstructing or attempting to defeat or obstruct the cause of justice. Sentences in count 2 and 3 to run concurrently with sentence in count 1. State v Zuzee (CC 26/2008) [2014] NAHCMD 189 (19 June 2014); see further State v Petrus (CC 13/2013) [2014] NAHCMD 194 (20 June 2014).

Criminal Law - Attempted murder where an arm was used in the commission of the offence-Trial magistrate’s court failing to apply s 10 (6) (a) and 7 of Act 7of 1996. Record of proceedings of the case submitted for special review. Matter referred back to trial court to comply with s 10 (6) and (7) of Act of 1996. The State v Kashikuka (CR 35/2014) [2014] NAHCMD 213 (10 July 2014)

Criminal law — Arms and ammunition — Conviction of crime involving use of firearm — Section 10 of Arms and Ammunition Act 7 of 1996 peremptory — sections 10(6) and (7) requires the court to afford an accused an opportunity to advance reasons and present evidence as to why he should not be declared unfit to use a firearm. - Where the prosecution does not invoke s 10, the court should do so mero motu . State v Kadhila (CR 39/2014) [2014] NAHCMD 231 (31 July 2014).

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Criminal law - Murder and assault - Accused pleaded not guilty - Direct evidence of the assault - Murder - Circumstantial evidence - Accused admitted to had a knife - Deceased spontaneously exclaimed that she was stabbed - That evidence ruled admissible - Accused admitted in the magistrate’s court to have stabbed the deceased - Guilty as charged. S v Hailonga (CC 5-2012) [2014] NAHCMD 235 (22 July 2014).

Criminal Law – The doctrine of recent possession is applicable in matters where articles have recently been stolen and are found in the possession of a person. The probability is that he is the person who stole them. What recent is, will depend on the nature of the article. Hamupolo v State (CA 40/2013) [2014] NAHCMD 258 (28 August 2014).

Criminal law – Criminal law: Section 3 of Act 5 of 1991 gives the Court a discretion to decline bail if in its view, the granting thereof would not be in the interest of the public or the proper administration of justice. Namiseb v State (CC 19/2011) [2014] NAHCMD 251 (25 August 2014).

Criminal law – Self defence – Test for self defence – Whether the appellant reasonably believed that his life was in imminent danger – Whether it would be said that a reasonable person in position of appellant would have acted the way he did or that he was using reasonable means to ward off the attack – Appellant genuinely believed that his life was under imminent danger – Means employed to ward off the attack not excessive – Appellant’s appeal upheld. Rooi v State (CA 115/2013) [2014] NAHCMD 281 (26 September 2014).

Criminal Law - Psychiatric report in terms of s 79 – psychiatrist made two observations: firstly that at the time of writing the report the accused was fit to plead and stand trial, and secondly, that at the time of the commission of the alleged offence the accused was suffering from a mental illness and as a result was not able to appreciate the wrongfulness of the alleged offence and to act in accordance with such appreciation – The accused subsequently required to plead to charge, was convicted and sentenced – Prosecutor and Magistrate for all practical purposes ignored the second observation by the psychiatrist – Person who is not able to appreciate the wrongfulness of his/her acts and not able to act in accordance with this appreciation of wrongfulness is not criminally responsible in terms of the provisions of s 78(1)(b) of Act 51 of 1977 – Where finding of psychiatrist is disputed, party disputing may subpoena and cross-examine any person who under s 79 enquired into mental condition of accused – Conviction and sentence set aside – matter referred back to court a quo in order to hear evidence in respect of the mental capacity of the accused person at the time of the commission of the alleged offence. State v Vekooka (CR 40/2014) [2014] NAHCMD 236 (08 August 2014).

Criminal Law – Theft – Elements of – Intention to steal - Proof of – Appellant policeman had kept admission of guilt monies which was paid at police station with him for one

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month – Such monies according to police directive had to be paid over daily – Appellant attempted to hand over money before investigation started – Trial Court convicting appellant of theft – On appeal Court holding that evidence not establishing intention to appropriate – Conviction set aside. Gertze v The State (CA 145/2013) [2014] NAHCMD 302 (13 October 2014).

Criminal law – Sentence – Imposition of-factors to be taken into account – Accused and deceased involved in domestic relationship – Deceased visibly pregnant when stabbed – Aggravating – All factors to be taken into account. The accused and the deceased were involved in a domestic relationship. She was heavily pregnant when the accused stabbed her to death. That is aggravating. Accused has not shown genuine remorse. All factors taken into account. Accused sentenced to 35 years imprisonment and 1 year for common assault to run concurrently. S v Hailonga (CC 5/2012) [2014] NAHCMD 304 (14 October 2014).

Criminal Law – Accused charged with several counts of fraud – alternatively theft general deficiency and theft by false pretences – State alleging common purpose by the accused persons – common purpose not proved with evidence presented – Main and alternative counts not proved – Criminal Law – Theft – Accused 1 with assistance of accused 2 taking building materials for own use without complainant’s consent – Both accused convicted of theft. S v Dias (CC 14/2011) [2014] NAHCMD 323 (31 October 2014).

Criminal law – Murder, assault with intent to do grievous bodily harm- Attempted murder – Defeating and or obstructing the cause of justice – Evidence support convictions – Accused convicted. S v Jossop (CC 5-2012) [2014] NAHCMD 368 (27 November 2014).

Criminal law - Plea of guilty on housebreaking with intent to steal and theft – accused admitted all allegations in chargesheet, - magistrate entered plea of not guilty on basis that accused stated that article appropriated allegedly due to the fact that employer promised to increase salary of accused which he failed to do. Theft is committed where inter alia property is taken with the intention to deprive the owner thereof permanently of his/her property. Where property is taken with the intention to hold it temporarily as security i.e to enforce a debt, no intention to deprive owner permanently exist, and thus no conviction for theft may follow. Non payment of salary can never be a defence on a charge of theft in circumstances where the perpetrator intended to deprive the owner of such property permanently of the full benefits of such property. S v Kanyanga (CR 81-2014) [2014] NAHCMD 362 (27 November 2014).

Criminal law - Recusal test is the reasonableness of the applicant(s) of the apprehension of bias. Apprehension must be on the basis of the true facts. Recusal on the basis of a perceived error of one aspect of evidence in the middle of a host of

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charges cannot justify recusal and vitiation of the whole proceedings. Irregularity is cured by a review procedure. In determining recusal the Judicial Officer should bear in mind the legal obligation to preside over a case – bear in mind that a Judge is trained to be impartial – that the presumption of innocence operates in favour of an accused person throughout the trial. A Judicial Officer should always be ready to be persuaded otherwise during the course of the trial. – a litigant has a burden of dislodging these presumptions. Lameck v The State (CC 11/2010) [2014] NAHCMD 347 (14 November 2014).

Criminal Law – Murder – Self-defense – Accused exceeded the bounds of self defense – State proved beyond reasonable doubt that accused did not act in self-defense — Intention to kill – Manual strangulation – accused explained that although she was angry that she merely she wanted the deceased to lose consciousness — Explanation and conduct afterwards creates doubt that the accused in fact appreciated the possibility that death would ensue – Convicted of culpable homicide. S V Hamukoto (CC 8/2013) [2014] NAHCMD 59 (7 November 2014).

Criminal law – Assault with intent to do grievous bodily harm – What constitutes – Crime is not actual causing of grievous bodily harm but intent to do so – Essential element is intention to cause grievous bodily harm – Intent may be gathered or inferred from, eg, nature of weapon or instrument used, degree of force applied and part of body at which assault is directed – It is intent to inflict more than just superficial and insignificant injury that usually follow upon an assault. Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014).

CRIMINAL PROCEDURE

Criminal procedure – Arms and ammunition – Conviction of crime involving an offence set out in s 10 (6) – Section 10 (7) peremptory – Accused having to be afforded opportunity by court to state why he should not be declared unfit to possess an arm. S v Paulus (CR21/2014)[2014] NAHCNLD 33 (28 April 2014); S v Moses (CR 72/2014) [2014] NAHCMD 339 (11 November 2014); S v Mendai (CR 71/2014) [2014] NAHCMD 338 (11 November 2014).

Criminal Procedure – Plea of guilty – During questioning in terms of s 112 (1)(b) of Act 51 of 1977 accused on a leading question by court admitted having been in lawful custody at time of escape – Insufficient – Further questioning was required to establish that detention was lawful. S v Gaseb (CR 79-2014) [2014] NAHCMD 356 (26 November 2014).

Criminal procedure – Charge – Duplication of convictions – Accused entered a restricted area in contravention of s 52 (1) of the Diamond Act, 13 of 1999 – Once inside

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he conducted mining activities in contravention of s 3 (1)(a) of the Minerals (Prospecting and Mining) Act, 33 of 1992 – Though two separate acts were committed it constituted one criminal transaction. S v Simon (CR 80-2014) [2014] NAHCMD 357 (26 November 2014).

Criminal procedure—Application for leave to appeal - Accused convicted on his own guilty plea of various counts of fraud, forgery and uttering – Sentenced to 5 years imprisonment – State not happy with the sentence – Applied for leave to appeal – Court considered the personal circumstances of the respondent, the element of mercy and the interest of society – Court of the view that there are no prospect of success on appeal – Application refused. S v Shivute (CC20/2010) [2014] NAHCMD 343 [14 November 2014].

Criminal Procedure – Appeal – Stock theft – Accomplice and single witness – Court applied cautionary rule – Dolus eventualis – Appellant foresaw real possibility that cattle stolen – Reconciled himself with that possibility – Appeal dismissed. Joseph v State (CA 148/2013) [2014] NAHCMD 353 (24 November 2014).

Criminal Procedure - An undefended suspect at the time of arrest has the right to be informed in the language he understands; that he has a right not to incriminate himself; that he has a right to a lawyer of his own choice whom he can pay out of his own resources; if he is unable to afford one, he has a right to apply at the Clerk of the Magistrate’s Court for a state funded lawyer. He will be assisted with the completion of the Legal Aid forms; he has the right to have his lawyer present during an interview (questions) by the police, and while appearing before the Magistrate to make a statement of what happened on the matter; he is not obliged to answer questions from any person (including the police) regarding the allegations against him; should he opt to give answers or explain what happened the same may be written down and later used as evidence against him during trial in Court. S v Dausab (CC 38/2009) [2014] NAHCMD 2 (15 January 2014).

Criminal Procedure – Accused convicted of possession of a firearm without a licence contravening s 2, read with ss 38 and 39 (2), of Act 7 of 1996 as amended – Application of s 10 (7) obligatory – Failure to do so amounts to an irregularity. S v Frans (CR 2 /2014) [2014] NAHCMD 8 (23 January 2014).

Criminal procedure – Appeal against conviction – Court found that Regional Court Magistrate misdirected herself in accepting the version of the complainant and rejecting the version of the appellant without giving reasons for her decision – The court held that the court should evaluate the evidence as a whole and not to focus intently at the separate parts only – In the instant case, the court found the misdirection on the facts to be very serious – Further the court found that the learned Magistrate glossed over the material discrepancies and inconsistencies without binging her mind to bear on them in

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the defence evidence – Consequently the court upheld the appeal against conviction and set aside the conviction and sentence. Maova v State (CA 87/2013) [2014] NAHCMD 134 (14 April 2014).

Criminal procedure - Bail - Failure of accused on bail to appear at any subsequent date set by the court - Procedure to be followed dictated by s 67 of Criminal Procedure Act 51 of 1977 – in such circumstances the bail of an accused person has to be provisionally cancelled and the bail money provisionally forfeited to the State and a warrant for the arrest of the accused has to be issued in terms of Section 67(1) - should the accused subsequently appear before the court within fourteen days - the failure to afford an accused the opportunity to provide an explanation for his non-appearance and to satisfy the court that the failure to appear on the previous date was not due to any fault on his part – in breach of the requirements set by section 67(2)(a) of the Criminal Procedure Act 1977 - constitutes a material irregularity in the proceedings which will prejudice an accused – proceedings accordingly set aside. S v Kondjeni (CR 08/2014) [2014] NAHCMD 71 (05 March 2014). See further Noble v State (CA 02/2014) [2014] NAHCMD 117 (20 March 2014); see further S v Shoikuti (CR 23/2014) [2014] NAHCMD 144 (22 April 2014).

Criminal procedure – Bail – Appeal against magistrate’s refusal to grant bail – Court held that the court should not set aside refusal by the lower court to grant bail unless satisfied that the case was wrongly decided. Eichhoff v State (CA 26/2014) [2014] NAHCMD 154 (9 May 2014).

Criminal procedure - Bail – Further application for after bail refused – What may be considered at such further applications – Once an application is entertained court should consider all facts before it, new and old – Application for bail brought on new facts – Fact being that investigation has been completed – No new evidence led by applicant – Ruling by magistrate’s court based on evidence of investigating officers which was found reliable – Such evidence included applicant having interfered with the investigation and the risk of absconding – Applicant not acquitting himself of the onus to show he will not abscond or interfere with witnesses or the evidence – Application dismissed. Kauejao v The State (CC 06/2014) [2014] NAHCMD 316 (29 October 2014).

Criminal procedure – Charge – Accused convicted of offence under s 12 of Immigration Control Act 7 of 1993 – Conviction set aside on review – Accused wrongly charged – Accused on entry into Namibia issued with visitor’s entry permit – Accused remained in the country after expiration of period – Contravention of s 29 (5) read with ss (1) and not s 12 (4) of Act. S v Mavhengele (CR 07/2014) [2014] NAHCNLD 16 (5 March 2014).

Criminal Procedure - In a criminal trial once the court in its reasons for judgment has pronounced its doubt as to whether the accused has committed the offence or not, such

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a doubt should by operation of law be a benefit it should give to the accused in the form of an acquittal. Katjoisikama v State (CA 113/2007) [2014] NAHCMD 25 (29 January 2014).

Criminal Procedure – Verdict of convicted as charged – Accused person convicted of a goat worth N$250.00 than N$600.00 alleged in charge sheet – Verdict replaced with guilty of theft of goat with a value of N$250.00. Criminal Procedure – Sentence – Prescribed minimum sentence of two years imprisonment – section 11(1)(a)(i) of Stock Theft Act, 1990 (Act 12 of 1990) – Mandatory Magistrate does not have a discretion – A sentence of fifteen (15) months imprisonment ultra vires, therefore inappropriate. S v Veii (CR 4-2013) [2014] NAHCMD 24 (29 January 2014).

Criminal Procedure – Verdict – Accused convicted of attempted escape from lawful custody in terms of s51 of the Criminal Procedure Act, Act 51 of 1977, i.e attempting to escape from lawful custody after arrest but before being lodged in a prison, police cells or lock up – Accused however, arrested and held in the police cells awaiting trial when he escaped – Conviction altered to common – Law offence of attempted escape from lawful custody. The accused pleaded guilty and was convicted of having attempted to escape from lawful custody. He was lodged in the police cells for a considerable period when he tried to escape. He should have been charged with the common law offence of attempting to escape instead of having contravened s 51(1) of the Criminal Procedure Act, Act 51 of 1977. The conviction was altered accordingly. S v Nhoni (CR 23/2014) [2014] NAHCNLD 42 (16 July 2014).

Criminal procedure – Fair Trial - Unrepresented accused – Duty of presiding officer emphasised – Presiding officer in the trial of an undefended accused is required to take a more active part to in some measure redress the disadvantage an undefended accused may suffer from lack of legal representation – The value to an undefended accused of, and the benefit he derives from, judicial assistance emphasises the importance of protecting the undefended accused. A judicial officer, already at the pleading stage, is obliged to examine the charge-sheet, ascertain whether the essential elements of the alleged offence(s) have been averred with reasonable clarity and certainty and then give the accused an adequate and readily intelligible exposition of the charge(s) against him or her. The accused should be informed by the presiding officer or the prosecutor of the operation of any presumption he or she may have to rebut, and the prosecutor should inform the court and the accused of the content of the evidence he intends to lead. If an offence involves proof of a particular circumstance which serves as an aggravating factor justifying the imposition of a particularly severe penalty or the availability of a lesser sentence than would otherwise be the case if an extenuating circumstance is shown by the accused, it is necessary (a) to allege that circumstance in the charge sheet and (b) to draw the accused’s attention thereto before he or she pleads guilty as (c) failure to do so may render the trial unfair. Sibuku v The State (CA 14/2013) [2014] NAHCMD 30 (31 January 2014); see further Katanga v State (CA

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8/2013) [2014] NAHCMD 188 (19 June 2014).

Criminal procedure – Fair trial - A judicial officer who has prior knowledge of the facts of a case before him should not hear it as this is not in compliance with the requirements for a fair trial. Appellant was convicted for Stock Theft. There was no evidence linking him to the offence. The court, however convicted him on the basis of its own knowledge of a previous case with similar facts. This was improper. Appellant did not receive fair trial in accordance with the provisions of the constitution. Tjiharo vs The State (CA 09/2010) [2014] NAHCNLD 36 (24 JUNE 2014).

Criminal procedure - Constitutional law – Human Rights – Right to legal representation – Not sufficient to explain – Court should afford such right to be exercised – Failure by judicial officer to afford appellant a second opportunity to exercise this right to legal representation – amounts to fatal irregularities – Resulting in unfair trial. Kambatuku v The State (CA 48/2013) [2014] NAHCMD 41 (12 February 2014).

Criminal procedure - The questioning of an accused in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 that follows guilty plea, must be halted once a defence (reason) is raised why the offence was committed. It is irregular for the trial court to ignore the defence, continue questioning and eventually convict, leaving the raised defence unattended to - The accused asked for a cigarette from the complainant, who in return started to insult the latter’s mother and did not stop doing so, resulting in the accused hitting her with a broomstick - Held: It is irregular for the trial court not to stop questioning the accused once a defence has been raised. Held: The conviction and sentence are set aside. S v Luxman (CR 13/2014) [2014] NAHCMD 95 (25 March 2014); see further S v Hiiko (CR 73-2014) [2014] NAHCMD 354 (26 November 2014); S v Boois (CR 74-2014) [2014] NAHCMD 355 (26 November 2014);

Criminal Procedure – Questioning in terms of s112(1)(b) of the Criminal Procedure Act,51 of 1977 (The CPA) – The magistrate not questioning each accused independently-Grossly irregular-Conviction and sentence set aside as a result – Matter remitted to the magistrates’ court to question each accused independently. The two accused were jointly charged with theft of 2 sheep worth N$1200 and after pleading guilty to the charge against them, the magistrate did not question each accused independently in terms of s 112(1)(b) of the CPA causing the questioning being grossly irregular. In the result, the conviction and sentence are set aside and the matter remitted to the magistrates’ court for the magistrate to question each accused independently. S v Swartbooi (CR 78/2014) [2014] NAHCMD 371 (02 December 2014).

Criminal procedure – Accused convicted of Housebreaking with intent to steal - If the accused is charged with house breaking with intent to steal and theft the court is under obligation when invoking s 112 1(b) of the Criminal Procedure Act 51 of 1977, to question the accused as to what his intention was when he entered the house. Section

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112 1(b) questioning has a twofold purpose namely: to establish the factual basis of the plea of guilty and to established the legal basis for such plea. From the admissions the court establishes whether the legal requirement for the commission of the offence have been met. These include questions of unlawfulness, actus reus and mens rea. The court can only satisfy itself if all the elements of the offence are adequately covered through admissions - Conviction and sentence set aside. S v Simpire (CR 26/2013) [2014] NAHCMD 147 (22 April 2014).

Criminal procedure – Review in terms of s 116 (3) of Act 51 1977 – Accused convicted in magistrate’s court and committed for sentence by regional court – Regional court magistrate not satisfied conviction in accordance with justice – Review court found the evidence adduced does not sustain the conviction. S v Nghifindaka (CR 01/2014) [2014] NAHCNLD 4 (24 January 2014).

Criminal procedure – Review – Questioning in terms of s 112(1)(b) of the CPA – Aimed at establishing that all elements of the crime – Accused convicted of being in possession of cannabis – Not questioned on why he was in possession of cannabis – Element of intention absent – Matter remitted back for a s 112(1)(b) questioning in respect of the issue of intention. S v Hendricks (CR 55-2014) [2014] NAHCMD 280 (26 September 2014).

Criminal procedure – Sentence – Assault with intent to do grievous bodily harm – Custodial sentence of 48 months’ imprisonment – Sentence considered startlingly inappropriate in circumstances of case – Custodial sentence justified – Sentence altered to 24 months’ imprisonment. S v Nakanyala (CR 53/2014) [2014] NAHCMD 274 (19 September 2014).

Criminal procedure – Sentence – Stock theft (c/s 11 (1)(a) of Act 12 of 1990) – Fine imposed – Section 14 (1)(a) of the Stock Theft Act not providing for fines for stock theft – Sentence not competent – Fine set aside and substituted with custodial sentence. S v Mangundu (CR 52/2014) [2014] NAHCMD 273 (19 September 2014).

Criminal procedure – Sentence –Suspended sentence – Bringing into operation of – Proper procedure set out – For State, not magistrate, to apply therefor. S v Swartbooi (CR 51/2014) [2014] NAHCMD 272 (19 September 2014).

Criminal procedure – Special review – Offences of contravening certain provisions of the Nature Conservation Ordinance 4 of 1975 – Record indicating that the accused were convicted on one count of hunting huntable game and second count of in contravention of provisions of Ordinance 4 of 1975 – Accused convicted on both counts – Confusion on record relating to sentence – Court found that the accused were sentenced twice on count 1, and on count 2 they were given a sentence that is ultra vires the Ordinance – Court held that the sentences were confusing and so it is a proper

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case where the court should intervene – Consequently, the court set aside the sentences and replaced them with other sentences. S v Ndoke (CR 50/2014) [2014] NAHCMD 263 (29 August 2014); S v Katjinamunene (CR 49/2014) [2014] NAHCMD 262 (29 August 2014); S v Hamunyela (CR 48/2014) [2014] NAHCMD 261 (29 August 2014).

Criminal procedure – Review – Sentences subjected to review as set out in s 302 of the CPA – Suspended sentence - when the court decides to partly suspend the sentence, then the suspended portion of the sentence cannot exceed the sentence itself. S v Shalongo (CR 11/2014) [2014] NAHCNLD 22 (20 March 2014).

Criminal Procedure – Trial – Application in terms of s 174 – Test to be applied – Whether there is evidence on which a reasonable court acting carefully may convict –There is no hard and fast rule that can be laid down – Each case must be considered on its own merits and circumstances- It is a consideration whether there is a reasonable possibility that the defence evidence may supplement the State evidence – Other considerations, including the accused’s fundamental rights play a role. S v Julius and 5 Others (CC 63/2007) [2014] NAHCMD 59 (20 February 2014).

Criminal Procedure – Trial – Discharge of accused at close of State case In terms of s 174 of Criminal Procedure Act 51 of 1977 – Approach by court and guidelines set out in S v Nakale and S v Teek followed. S v Mbango (CC 19/2012) [2014] NAHCNLD 10 (13 February 2014). Failure to follow the procedure after a s 174 application has been lodges, see Gurirab v State (CA 117/2013) [2014] NAHCMD 76 (28 February 2014).

Criminal Procedure – Application for discharge in terms of s174 – multiple accused – four police officers charged with murder of a person who was detained in police custody - witnesses placing accused in area where unlawful assault took place – evidence that they may have witness the assault - failure to act in the circumstances may be construed as an act of association – premature for court to discharge the accused at this stage - application for discharge dismissed. S v Mutilifa (CC 03/2012) [2013] NAHCNLD 45 (16 July 2014).

Criminal procedure – Fair trial - Failing to provide the appellant an opportunity to address the court before convicting the accused, the accused was in essence denied his right to a fair trial. S v Timat (CR 07/2014) [2014] NAHCMD 65 (24 February 2014).

Criminal Procedure – Trial – Application in terms of S174 – Test to be applied – Whether there is evidence on which a Reasonable court may convict – No specific formula or test that is applicable to all cases – Each case must be considered on its own merit. S v Adams and Another (CC 17/2012) [2014] NAHCMD 90 (19 March 2014).

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Criminal procedure – Trial - The prosecution - Stopping of prosecution - Unauthorised stopping of prosecution by prosecutor amounts to nullity - It doesn't follow from fact that unauthorised stopping of prosecution and subsequent acquittal amount to nullities that entire proceedings thereby vitiated - If accused has pleaded, she or he is entitled to verdict on plea – Closing of the State case on one count and subsequent acquittal set aside and matter remitted to magistrate to continue with trial if the required consent not obtained. S v Katemo (CR 33/2014) [2014] NAHCMD 205 (3 July 2014).

Criminal procedure – Appeal – Statement by accused in terms of s 115 of Criminal Procedure Act 51 of 1977 – Exculpatory statements therein must as a general rule be repeated under oath to have evidential value, except possibly, when a defence is raised in such exculpatory statement, in which event the State may have to negative such defence – Court held further that exculpatory statements in explanation of plea do not form part of the evidential material. S v Ananias (CA 34/2013) [2014] NAHCMD 82 (10 March 2014).

Criminal procedure – Statutory offences – competent sentence in terms of the relevant statute – undesirable practice of taking convictions in respect of statutory offences together for purpose of sentence – such conviction incompetent. Moshana v State (CA 63/2013) [2014] NAHCMD 87 (14 March 2014).

Criminal procedure – Incomplete record – court a quo may not take the initiative on its own to reconstruct the record – Court of appeal to instruct the court a quo to reconstruct the record. S v Hausiku (CC 15/1990) [2014] NAHCMD 88 (20 January 2014).

Criminal procedure – Record of proceedings – presiding officer must keep a complete record of proceedings – failure to do so an irregularity. S v Tsuseb (CR 54/2014) [2014] NAHCMD 278 (25 September 2014).

Criminal procedure - Plea of guilty – magistrate applies provisions of s 112(1)(a) and convicts accused on mere plea of guilty – During mitigation accused indicated that he did not commit act intentionally – In terms of s 113 if court at any stage of the proceedings under s 112 and before sentence is in law not satisfied that the accused is guilty of the offence, the court shall record a plea of not guilty – Magistrate obliged in terms of s 113(1) to enter plea of not guilty and order prosecutor to proceed with the prosecution. S v Kapiruka (CR 10/2014) [2014] NAHCMD 86 (14 March 2014).

Criminal procedure – Plea – Plea of guilty in terms of s 112 (1)(b) – Court must examine whether explanation substantiates plea – Intention of accused not determined during questioning. S v Nghitula (CR 16/2014) [2014] NAHCNLD 27 (07 April 2014).

Criminal procedure — Plea — Plea of guilty in terms of s 112(1)(a) of the Criminal Procedure Act 51 of 1977 as amended by the Criminal Procedure Amendment Act 13 of

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2010 — Magistrates cannot invoke s 112(1)(a) for the sake of disposing of cases expeditiously without fully enquiring into the details of the offence. S v Mwiya (CR 37/2014) [2014] NAHCMD 224 (25 July 2014).

Criminal procedure – Conviction on competent verdict – Facts justify conviction on more serious offence. S v Kharuxab (CR 08/2014) [2014] NAHCNLD 19 (20 March 2014).

Criminal procedure – Duplication of convictions – Accused convicted on two separate counts for uttering under common law and in contravention of s 56 (e) of Act 7 of 1993 – Tests applied – Under both tests only one offence committed. S v Luhepo (CR 12/2014) [2014] NAHCNLD 23 (24 March 2014).

Criminal procedure – Plea – Plea of guilty in terms of s 112 (1)(b) – Court must examine whether explanation substantiates plea – Court not to draw inferences from accused’s answers. Criminal law – Housebreaking per se is no crime – Must be accompanied by intention to commit crime. S v Shuuveni (CR 10/2014) [2014] NAHCNLD 21(20 March 2014).

Criminal Procedure – Plea of guilty in terms of s112 (2) – Statement prepared by legal practitioner contained no admission of the intent to permanently deprive the owner of his/her property – Court ought to be satisfied that the accused is guilty of the offence to which he/she had pleaded guilty — Matter remitted to magistrate’s court in terms of s312 of the Act. Titus v The State (CA 46/2011) [2014] NAHCNLD 47 (22 July 2014).

Criminal procedure – Revival of suspended sentence – Procedure: The State must bring an application for the sentence to be put into operation, the court has a discretion to allow or refuse the application in terms of Section 297 Act 51/77 of the Criminal Procedure Act - Further the accused person must be afforded the opportunity to oppose such application; accused may testify and call witnesses in order to resist application by the State. S v Nangushu (CR 19/2014) [2014] NAHCMD 112 (31 March 2014).

Criminal procedure – Review – Evaluation of circumstantial evidence – Conviction not supported by facts. S v Riveranus (CR 17/2014) [2014] NAHCNLD 28 (07 April 2014).

Criminal procedure – Review in terms of s 304 (4) of Act 51 of 1977 – Accused convicted on plea of guilty – Contravention of s 82 (5) of Road and Traffic Transportation Act 22 of 1999 – Breathalyzer device used for testing not approved by the Act – Admissions by accused based on analysis obtained by means of device cannot be relied upon. S v Nashiluwa (CR 18/2014) [2014] NAHCNLD 29 (07 April 2014).

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Criminal procedure – Sentence – Imposition of – Factors to be taken into account – Value of stolen goods in case of theft generally relevant factor affecting severity of sentence – Recovery of stolen goods a mitigating factor – This factor to be considered together with other factors relevant to sentence – In itself cannot detract from seriousness of offence. Sentence – Fine – Should not be reduced to extent that public gets impression the offence not properly punished. Review – Section 304 (1) of Act 51 of 1977 – Sentence imposed too lenient – Offends the administration of justice – Court declines to confirm sentence to be in accordance with justice. S v Shipepe (CR 15/2014) [2014] NAHCNLD 30 (08 April 2014).

Criminal procedure – Sentence – Sentencing in terms of the Stock Theft Act 1990 – Court a quo not following sentencing guidelines as imposed by the Act – Sentence set aside on special review. S v Nderura (CR 20/2014) [2014] NAHCMD 131 (10 April 2014).

Criminal Procedure – Sentence – Court not authorized to impose a sentence of imprisonment when an accused is convicted in terms of the provisions of section 112(1)(a) – Sentence furthermore exceeds the penalty provided for by the Road Traffic Act – Sentence clearly wrong – On review the sentence is set aside and substituted with a competent sentence. S v Nangolo (CR 26/2014) [2014] NAHCNLD 51 (25 August 2014).

Criminal procedure – Sentence – Fine - Alternative of imprisonment – Where sentencing court’s reasoning behind the imposition of a fine was to afford the accused the opportunity of staying out of prison even though a sentence of imprisonment would have been justified – In such instance alternative imprisonment no longer an enforcement mechanism encouraging the accused to pay the fine – Alternative imprisonment then becomes the primary means of punishment – Term of imprisonment must be determined as if it was the only punishment imposed. S v Ashipala (CR 41/2014) [2014] NAHCMD 241(12 August 2014).

Criminal procedure – Magistrate – Recusal mero motu – Reasons for recusal not founded on legal principles – Objectively viewed reasons not bona fide and sound in law. S v Tutaleni (CR 19/2014) [2014] NAHCNLD 31 (17 April 2014).

Criminal procedure – Verdict – Charge of housebreaking with intent to commit an offence unknown to the prosecutor – Accused convicted on plea of guilty as charged – Breaking not admitted – Accused cannot be convicted of any of competent verdicts under s 262 (2) of Act 51 of 1977. S v Mwiiindjilwa (CR 20/2014) [2014] NAHCNLD 32 (17 April 2014).

Criminal procedure – Duplication of convictions – Test – Accused convicted on charges of theft and malicious damage to property – Accused acted with a single intent

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to steal money from the vehicle – Breaking of window not constituting a separate offence. S v Kandorozu (CR 29/2014) [2014] NAHCMD 168 (27 May 2014).

Criminal Procedure – improper duplication of convictions – theft of stock belonging to different complainants but which occurred at the same place and on the same date – State was unable to prove three distinctive acts – convictions set aside and substituted with one conviction of theft read with the provisions of the Stock Theft Act, 12 of 1990, as amended. Criminal Procedure – sentence – mandatory minimum sentence of 20 years’ imprisonment no longer applicable – sentence of 20 years’ imprisonment of which 12 years’ imprisonment were suspended considered to be disproportionate to the offence and to the legitimate expectations of society – imposed sentence of 10 years’ imprisonment of which 3 years are suspended. Mujime v State (CA 144/2010) [2014] NAHCNLD 39 (11 July 2014).

Criminal procedure – Sentence – Postponement of sentence – Section 297 (1)(a)(ii) of Act 51 of 1977. S v Uirab and Another (CR 30/2014) [2014] NAHCMD 167 (27 May 2014).

Criminal Procedure – Section 85 – Charge – Legality of charges – Legislation – Application of legislation – Companies Act 61 of 1973 repealed – Effect of repealed Act on criminal proceedings – Companies Act 28 of 2004 without transitional provision – Notwithstanding the Interpretation of Laws Proclamation No 37 of 1920 applicable – Proclamation still part of existing law – Legality of Proclamation not affected by Constitution. Kapia v The State (CC 09/2008) [2014] NAHCMD 164 (23 May 2014).

Criminal procedure – Review in terms of s 304 (4) of Act 51 of 1977 – Accused convicted on plea of guilty – Contravention of s 82 (5) of Road and Traffic Transportation Act 22 of 1999 – Breathalyzer device used for testing not approved by the Act – Admissions by accused based on analysis obtained by means of device cannot be relied upon. S v Kamatjipose (CR 28/2014) [2014] NAHCMD 158 (21 May 2014).

Criminal procedure – Review – undefended accused – Pleaded guilty to counts of assault read with (Combating of Domestic Violence Act) – Questions and answers in terms of s112 (1)(b) of Act 51 of 1977 missing from the record – Conviction and sentence set aside – matter to start de novo. The State v Van Eden (CR 34/2014) [2014] NAHCMD 212 (10 July 2014).

Criminal procedure – Sentence – Stock theft (c/s 11 (1)(a) of Act 12 of 1990) – Fine imposed – Section 14 (1)(a) of the Stock Theft Act not providing for fines for stock theft – Sentence not proper – Fine set aside and substituted with custodial sentence. S v Gowaseb (CR 27/2014) [2014] NAHCMD 157 (21 May 2014).

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Criminal Procedure – Sentencing - Community Service order imposed as a condition of suspension – order vague due to lack of particularity – order to stipulate the type of work to be performed and the time frame within which to be performed. The accused was charged with assault by threat and Crimen injuria as counts 1 and 2 respectively. The sentence imposed on count 1 was conditionally suspended and one condition thereof is that the accused performs 500 – hours community service at the Bukalo Traditional Authority. On review, it is held that the order is vague due to lack of particularity. That the order does not specify the type of work to be performed, and the timeframe within which to perform the work. The State v Clements (CR /2014) [2014] NAHCMD 190 (19 June 2014).

Criminal procedure – Appeal – Sentence – Section 280 (2) of Act 51 of 1977 – Concurrent serving of sentences – Presiding officer has discretion – Discretion must be exercised judiciously. Shilongo v The State (CA 162/2013) [2014] NAHCMD 176 (10 June 2014).

Criminal procedure – Section 112 (1)(b) questioning by court – Accused not admitting value of stolen stock – Accused responding on leading question by court not placing value in dispute – Court must question accused with view of ascertaining whether facts are admitted. Criminal procedure – Review – Sentence – Condition of suspension – Accused not to be convicted of same offence committed during period of suspension. S v Kamavei (CR 32/2014) [2014] NAHCMD 198 (25 June 2014).

Criminal procedure – Search and seizure - Issues of a search and seizure warrant should be within the precincts of the law. The officer applying for it should do so on credible information about the commission of an offence. An individual’s constitutional rights to privacy must always reign supreme, giving way only where the interest of the proper administration of justice privacy demand that it be so. Applicants were facing various allegations of dishonesty-related and other Fiscal offences. The commission carried out a search on the basis of warrants issued by a magistrate. They challenged the said issuance. The court had to balance the interest of society against those of individuals as no right is absolute but is always exercised against the interests of others. State v Lameck (CC 11/2010) [2014] NAHCMD 186 (25 June 2014).

Criminal procedure - Questioning in terms of section 112(1)(b) of the Criminal Procedure Act 51/77 must relate to all the allegations in the charge. This is how the Court can satisfy itself about the guilty of the accused. State v Michael (CR 38/2014) [2014] NAHCMD 226 (25 July 2014).

Criminal procedure—Appeal-against convictions and sentence – contravention of s 127 (1) of Act 11 of 2007 – charge sheet – defective – essential averments to sustain offence lacking – highly prejudicial to undefended accused – conviction tainted – appeal

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upheld. Van der Westhuizen v State (CA 122/2013) [/2014] NAHCMD 211 (10 July 2014).

Criminal procedure – Indictment – Amendment of on review – Common law offence of attempted rape – Statutory offences erroneously inserted in crime description in the annexure – Body of charge clear and unambiguous in its description of act alleged – Accused well knew the case he had to meet – Court not relying on incorrect statutory provisions when questioning accused in terms of s 112 (1)(b) of Act 51 of 1977 and conviction – Accused not prejudiced – Impugned statutory provisions deleted from annexure. The State v Uushona (CR 25/2014) [2014] NAHCNLD 49 (28 July 2014).

Criminal procedure - Review - Power of Court on review to alter conviction to one of a more serious offence – Criminal procedure - Review – Power of the reviewing court flows from the wording of paragraph (iv) of subsection 304(3)(c) of the Criminal Procedure Act 51 of 1977 which obliges the review court - in an appropriate case - to … ‘ … give such judgment … as the magistrate’s court ought to have given…’. In addition Section 304(2)(c)(i) of that Act then expressly empowers the court further to : ‘confirm, alter or quash the conviction, and in the event of the conviction being quashed where the accused was convicted on one of two or more alternative charges, convict the accused on the other alternative charge or on one or other of the alternative charges;’ State v Kadhila (CR 39/2014) [2014] NAHCMD 231 (31 July 2014).

Criminal procedure – Special review – Presiding officer recusing himself due to incidents of hostility from the side of the legal aid public defender – pressing officer declaring the whole proceeding a nullity – had no authority to do that – no harm done since the accused had not pleaded – case referred to the control magistrate to arrange for another magistrate to start the trial. S v Mbapumbua (CR 45/2014) [2014] NAHCMD 254 (27 August 2014).

Criminal procedure - Where an accused is charged and convicted for the contravention of the provisions of the Combating of Domestic Violence Act, Act no. 4 of 2003, it is a requirement that the court should proceed in terms of section 25 (1) of the said Act. Failure to do so is a misdirection which calls for the appeal court’s interference. Alweendo v The State (CA 08/2013) [2014] NAHCNLD 44 (16 JULY 2014).

Criminal procedure – Review — Criminal proceedings not finalised — Review of unterminated proceedings — Court will only deal with unterminated cases on review under rare circumstances. S v Mazita (CR 59/2014) [2014] NAHCMD 301 (10 October 2014).

Criminal procedure – Appeal – against conviction – Exchange Control Regulations – Restriction on the export of currency – Currency obtained from authorised dealer –

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Resident allowed to take out foreign currency equivalent of N$500 000.00 – No evidence that US$67 000.00 exceeded equivalent of N$500 000.00. The appellant was convicted of exporting foreign currency without permission. The appellant acquired the foreign currency (US$67 000.00) from Bank Windhoek, an authorised dealer in terms of the Exchange Control Regulation. As resident, appellant was allowed to take out foreign currency equivalent to N$500 000.00 per annum. No evidence adduced that US$67 000.00 exceeded N$500 000.00. Appeal succeeds. Deng v State (CA 61/2012) [2014] NAHCMD 312 (20 October 2014).

Criminal Procedure - Duplication of Convictions – Accused convicted of multiple offenses – same amounted to improper duplication of convictions. Accused was convicted of forgery, uttering and fraud. He forged an Insurance proposal form and thereafter submitted it to the Insurance Company in order to receive commission from the Insurance Company. The evidence necessary to establish uttering will, at the same time also prove the commission of fraud and as such a conviction of both offences would amount to an improper duplication of convictions. The conviction and sentence of uttering set aside on review. S v Kandjeke (CR 22/2014) [2014] NAHCNLD 35 (28 April 2014).

Criminal Procedure – Special plea in terms of s 106 (1)(f) of Act 51 of 1977 – Accused alleging abduction – All the accused except for one, were deported from Botswana – and handed over to the Namibian Police – No proof of abduction or kidnapping – Accordingly, special plea dismissed – Found that court has jurisdiction to try the accused. S v Munuma (CC 03/2004) [2014] NAHCMD 363 (27 November 2014).

Criminal procedure – Sentence – Imposition of – Factors to be taken into account – Court held that where different and compelling factors jostle for treatment it is necessary to strike a balance which will do justice to the accused and interest of society – Trial court entitled to give greater weight to one factor than to others so long as it is not at the expense of disregarding entirely the other factors – Court held further that it is the trial court which can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate court – In instant case court found that trial court considered all relevant factors – Court concluded that on the facts and circumstances of the case, the learned magistrate did misdirect herself on the facts or on the law on sentencing – Comparing sentences imposed by the court in similar cases, the court found that the sentence imposed by trial court not appropriate – It is manifestly excessive and induced a sense of shock in the mind of the court – Consequently, court found it was entitled to interfere with the sentence – Court concluded that custodial sentence was appropriate but suspended wholly the period of imprisonment. Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014).

Criminal procedure – Trial – The prosecution – Stopping of prosecution – Unauthorised stopping of prosecution by prosecutor amounts to nullity – It doesn't follow

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from fact that unauthorised stopping of prosecution and subsequent acquittal amount to nullities that entire proceedings thereby vitiated – Closing of the State case on two counts and subsequent acquittal set aside and matter remitted to magistrate to continue with trial if the required consent not obtained. S v Wimmerth (CR 58/2014) [2014] NAHCMD 295 (08 October 2014).

Criminal procedure – Appeal against conviction and sentence – Irregularities committed in trial – Effect thereof – Conviction not necessarily vitiated by irregularity – Circumstances of the case to be considered – Medical records admitted – Court failing to inform unrepresented accused of right to object – Magistrate discouraging unrepresented accused to cross-examine State witness on medical records – Constitutes irregularity – Irregularity not fundamental in circumstances of case – Conviction unaffected. Criminal procedure – Sentence – Appeal against sentence – Role of Court of appeal – Trial court must exercise discretion in sentencing in accordance with judicial principles – Court of appeal only to interfere if discretion not exercised in this manner – Court of appeal generally reluctant to erode trial Court's discretion – Such erosion could undermine administration of justice. Moritz v The State (CA 53/2013) [2014] NAHCMD 203 (01 July 2014).

EXTRADITION

Extradition – Request for extradition by India – Extradition founded on documents furnished by the State – Translation of witness statements not by sworn translator – Unsworn statements not to be relied upon – Documents also not properly authenticated or certified as provided for in Act – Documents being foreign documents accordingly inadmissible as evidence. Extradition – Evidence – Act requires magistrate be satisfied that prima facie case proved against the person to be extradited – Rules of the High Court to be applied – Documents relied upon at enquiry not satisfying requirements for admissibility of foreign documents – Statements on which extradition request is founded are inadmissible as evidence – In present appeal court not satisfied of prima facie case – Appeal accordingly dismissed. Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27 November 2014).

LAW OF EVIDENCE

Evidence – Admissibility of extra-judicial admissions – Section 219A of Act 51 of 1977 – Admissibility decided in a trial within a trial – Undue influence found – Fairness of procedure followed by police questionable and suspect. S v Mbango (CC 19/2012) [2014] NAHCNLD 5 (31 January 2014).

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Evidence – Evidence adduced not proving the offence charged – Notwithstanding court convicted accused ‘as charged’. S v Hileni (CR 02/2014) [2014] NAHCNLD 07 (04 February 2014); see further Cloete v State (CA 128/2013) [2014] NAHCMD 78 (28 February 2014); lack of evidence proving lawful detention justifying a conviction of escaping from lawful custody, see Emvula v State (CA 126/2013) [2014] NAHCMD 77 (28 February 2014); S v Nanuseb (CR 76/2014) [2014] NAHCMD 358 (26 November 2014);

Evidence – Admissibility - Pointing out – Pointing out to police not freely and voluntarily made not admissible in evidence – Statements by accused ruled inadmissible as a result of coercion – Section 218 (2) of Act 51 of 1977 not authorising evidence of pointing out made as a result of coercion - Evidence – State relying on bail proceedings during trial – Admissions by accused in bail proceedings – Admissions not to be considered in isolation for purposes of the trial – Must be considered in context with evidence given during bail application – Trial court not to speculate on meaning of admissions made – Reliance on admissions by accused is permitted – Such evidence however must be clear and not left for interpretation by trial court - Evidence – Failure by accused persons to testify or lead evidence – Accused not faced with direct and apparently credible evidence – No adverse inference drawn from the accused persons’ silence – In present case no duty on accused to rebut evidence presented by State. S v Mbango (CC 19/2012) [2013] NAHCNLD 13 (27 February 2014).

Evidence – Of identification – Reliability of witnesses’ observation – Test in S v Mthetwa applied. Evidence – Of identification – Dock identification – Where witness identifies accused in dock it forms part of evidential material upon which case must be decided – Weight to be afforded to dock identification to be decided in circumstances of the case. Evidence – Alibi defence – Onus on the State to rebut an alibi defence. S v Chunga (CC 15/2012) [2014] NAHCNLD 18 (19 March 2014).

Law of Evidence - Footprints can be adequately and legally identified by lay people especially when they lead to a suspect – A suspect who leads police to the recovery of stolen goods after his footprints have led people to where he was found has an uphill struggle in extricating himself from the crime. Tangeni v State (CA 8/2012) [2014] NAHCMD 25 (9 April 2014).

Law of Evidence - Machine generated evidence – may be accepted in a court of law on the basis of professional (expert) testimony, firstly, regarding the trustworthiness of the process or instrument in general (when not otherwise settled by judicial notice), and secondly, testimony of the correctness of the particular instrument used. The extent to which a court will insist upon, or relax the standard of proof when evidence involving the use of scientific instrument is presented will depend upon (a) the nature of the process and instrument involved in a particular case, (b) the extent, if any, to which the evidence is challenged and (c) the nature of the enquiry and the facta probanda in the case.

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In casu, diamond testers found to be devices which are not sufficiently well known for their trustworthiness which would enable a court to take judicial notice of the reliability of the process as well as the reliability of the results. Affidavit in terms of s 212 of Act 51 of 1977 – the aim in general is to provide for the reception of affidavits and certificates on their mere production as prima facie proof of their contents, and thus make serious inroads not only into the domain of the hearsay rule, but also to an accused’s right to a fair trial (including the right to cross-examination).

The requirements (jurisdiction facts) as well as the ambit of the relevant section must be strictly observed and interpreted. Section 212(5) of Act 51 of 1977 found to provide prima facie proof of the mass or value of a precious metal or a precious stone but not prima facie proof of the nature thereof, in casu, that it was a rough or uncut diamond. Paraketsov v State (CA 81/2013) [2014] NAHCMD 132 (28 March 2014).

Criminal Procedure – Evidence – Proof of negligence – Magistrate found accused negligent merely because he drove without a license – Such reminiscent of the taint doctrine - Concluded that accused saw threatening vehicle from a distance when no evidence was adduced on the material distances – Concluded that accused failed to reduce speed when no evidence was adduced in respect the speed the accused was driving – In circumstances the vague statement of accused that he tried to take precautionary measures ought to have been accepted. State failed to prove negligence – On review conviction set aside. S v Nangolo (CR 26/2014) [2014] NAHCNLD 51 (25 August 2014).

Criminal procedure - Evidence — Evidence of single witness — Sufficiency of — Accused can be convicted on evidence of single witness — Though court must exercise caution, common sense should prevail — Evidence of single witness need not be perfect in every respect — Court must be satisfied that truth was tol - Evidence — Circumstantial evidence — Inferences to be drawn from circumstantial evidence — Inference must be consistent with proved facts — Inference must exclude any other inference — Law not requiring court to act upon absolute certainty — When dealing with circumstantial evidence, court must consider cumulative effect of all the evidence. Evidence — Assessment of — Witnesses — The accused — Untruthfulness of accused — False evidence by accused not meaning that accused is guilty — Circumstances of each case must be considered in the light of other evidence — General principles for dealing with false statements by accused, set out - Evidence - Of children - Proper approach to a consideration thereof. Naweseb v State (CA 35/2014) [2014] NAHCMD 239 (11 August 2014).

Evidence – Proper approach where there is a conflict of fact between evidence of State and that of an Appellant – Court should apply its mind not only to the merits and demerits of the state and defence witnesses – But also to probabilities – Magistrate

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failed to apply his mind properly to probabilities. Rooi v State (CA 115/2013) [2014] NAHCMD 281 (26 September 2014).

Evidence - Parade – Delay in holding of identification parade compromising the dependability and credibility of – Complainant’s knowledge of facts which fell outside her personal knowledge calls caution. Evidence – Evaluation of - Court a quo erred by not treating evidence with circumspection – The cumulative effect of the unsatisfactory aspects of complainant’s evidence and shortcomings in the manner the identification parade was arranged makes it unsafe to rely on identity evidence for a conviction. Evidence – Similar fact evidence – As a rule inadmissible and admissible only in exceptional circumstances - It may be admissible to prove the identity of an accused person as a perpetrator where such evidence is relevant to an issue in the case. – Reason is that evidence is prejudicial - The court has to consider the admissibility of similar fact evidence before allowing a party to adduce such evidence - Ought to allow the admission of such evidence if the probative value outweighs its prejudicial effect - In this case the magistrate erred in admitting such evidence. Uakarenda v The State (CA 61/2009) [2014] NAHCNLD 54 (10 October 2014).

SENTENCE

Sentence – Formulation of – Must be clear and not vague. S v Gaeses (CR 85/2013) [2014] NAHCMD 3 (16 January 2014). See further S v Paulus (CR 15/2014) [2014] NAHCMD 108 (31 March 2014). See further S v Kashululu (CR 24/2014) [2014] NAHCMD 145 (22 April 2014) S v Thomas (CR 22/2014) [2014] NAHCMD 143 (22 April 2014); S v Ngariteme (CR 24/2014) [2014] NAHCNLD 43 (16 July 2014); S v Eugen (CR 60 /2014) [2014] NAHCMD 303 (14 October 2014); S v Basson (CR 69 /2014) [2014] NAHCMD 335 (10 November 2014) ; S v Sindimba (CR 61/2014) [2014] NAHCMD 325 (5 November 2014);

Sentence – Formulation of suspended sentence - The condition of suspended sentence should be clear so that the accused can know what is expected of him. It could not have been the magistrates’ intention that the suspended sentence is to be put into operation if the accused is alleged to have committed an offence without her being convicted. Furthermore, the condition does not state within which period the commission of assault with intent to do grievous bodily harm will potentially trigger the setting into operation of the suspended sentence – sentence altered accordingly. S v Nanghaku (CR 25/2014) [2014] NAHCMD 146 (22 April 2014); S v Losper (CR 70 /2014) [2014] NAHCMD 336 (10 November 2014); S v Oalthose (CR67/2014) [2014] NAHCMD 333 (7 November 2014); S v Basson (CR 63/2014) [2014] NAHCMD 327 (5 November 2014); S v Farmer (CR 64/2014) [2014] NAHCMD 328 (5 November 2014);

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Sentence – Imposition of – appellant having a previous conviction of same offence – sentence – magistrate committing a misdirection – sentence – set aside and substituted with another sentence. Katangolo v State (CA 45-2012) [2014] NAHCMD 28 (30 January 2014); S v Hausiku (CR 44/2014) [2014] NAHCMD 253 (27 August 2014).

Sentence – Factors to be considered by the court during sentencing – the accused’s personal circumstances, the crime, and the interests of society. Sufficient weight is traditionally given to each factor. However it may in the end result in one factor being emphasized more than the other. This is normal in sentencing because each case has to be considered on its own merits - Objectives of punishment namely prevention, deference, reformation and retribution also to be considered - The period spent in custody before the finalization of the trial should be taken into account during sentencing - The accused is a first offender on the Rape offences; the victims did not suffer any physical harm during the assault; the accused spent three and a half years in custody awaiting the finalization of trial on this matter. S v Kameruao (CC12/2009)[2014] NAHCMD 14 (23 January 2014). See further S v Noabeb (CC 3/2012) [2014] NAHCMD 106 (31 March 2014); see further State v Ditshabue (CC 26/2012) [2013] NAHCMD 129 (7 April 2014); see further Katjiukua v State (CA 52/2013) [2014] NAHCMD 125 (07 March 2014).

Sentence – Accused first offender – Viciously attacking the deceased – Stabbing him 11 times – Accused committing a heinous crime – Accordingly – accused deserving a lengthy term of imprisonment - Accused a first offender, attacked the deceased who was unarmed viciously and stabbed him 11 times. Although the accused is a first offender, he committed a heinous crime. Accordingly, accused deserves a lengthy term of imprisonment. S v Lukas (CC 18/2012) [2014] NAHCMD 22 (29 January 2014).

Sentence - An accused who embarks on criminal conduct cannot hide behind his unfortunate up bringing in order to escape the logical sentences that flow from such conduct. Accused was convicted of housebreaking with intent to steal and theft, robbery with aggravating circumstances, murder and theft. He pleaded guilty. He was 23 years of age at the relevant period. In mitigation it was submitted on his behalf that he is illiterate and was from a broken home. He murdered his employer and took his property. He also committed housebreaking and theft and in addition thereto theft. These offences were committed on various days and on different complainants. He pleaded guilty to all the charges and was duly convicted and sentenced. S v Mateus (CC 07/2014) [2014] NAHCNLD 50 (31 July 2014).

Sentence – Formulation of conditions of suspended sentence - This court has held that a condition of suspension should only refer to an offence which has a material connection to the nature and circumstances of the offence of which the accused had been convicted of ie it must not be so wide that it has no nexus with the offence the accused had been convicted of - Conditions of suspension furthermore must be

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reasonable and should be formulated in such a way that they do not cause future unfairness and injustice. S v Mate (CR 01/2014) [2014] NAHCMD 20 (28 January 2014); See further S v Iipinge (CR 04/2014) [2014] NAHCNLD 8 (13 February 2014); S v Erriky (CR 42/2014) [2014] NAHCMD 243 (15 August 2014).

Sentence – Accused convicted of theft of stock valued at N$450 read with the provisions of Act 12 of 1990 as amended by Act 19 of 2004 – Accused fined one thousand Namibia dollars (N$1000) or five (5) months’ imprisonment – Court imposed incompetent sentence – Mandatory sentence for a first conviction – Not less than two years’ imprisonment without the option of a fine – Sentence set aside. S v Nakale (CR 3 /2014) [2014] NAHCMD 9 (22 January 2014).

Sentence – Conviction in terms of s 112 (1)(a) – Sentence of imprisonment without the option of a fine imposed – Sentence wholly suspended – Community service as condition of suspension ordered. S v Alutale (CR 03/2014) [2014] NAHCNLD 06 (04 February 2014).

Sentence – Condition of suspension – Accused ordered as condition of suspension to compensate complainant – Accused clearly without the means to give effect to the order – Effect of sentence – Circumstances of case not justifying sentence imposed. S v Herman (CR 05/2014) [2014] NAHCNLD 9 (13 February 2014).

Sentence – Suspended sentence – Conditions of – Correct wording of condition of suspension – The word ‘committed’ should be part of condition – Additionally, condition should be clear and clearly related to the crime accused is convicted of – Accused must know exactly which conduct may lead to his having to serve the suspended sentence – Conditions of suspension must meet these requirements. S v Brandt (CR 9/2014) [2014] NAHCMD 70 (4 March 2014); see further S v Booysen (CR 46/2014) [2014] NAHCMD 255 (27 August 2014);

Sentence – Stock theft (c/s 11 (1)(a) of Act 12 of 1990) – Fine imposed – Section 14 (1)(a) of the Stock Theft Act not providing for fines for stock theft – Sentence not proper – Fine set aside and substituted with custodial sentence. S v Kambonde (CR 06/2014) [2014] NAHCNLD 15 (5 March 2014).

Sentence – Murder – Domestic violence – Accused convicted on plea of guilty – Mitigating and aggravating factors discussed - Plea of guilty – Considerable weight should be given to plea of guilty – Provided accused has no other option – Guilty plea unlikely where accused stands nothing to gain from plea of guilty – Plea of guilty might serve as incentive with prospects of a lesser sentence – Weight accorded not considered in isolation – Assessed in the light of circumstances of case and all other factors, mitigating and aggravating - Remorse – Mitigating factor – Accused not testifying – Court cannot accept accused is without remorse – Other reasons might exist

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– Regard had to circumstances of the case - Domestic violence – Accused killed his lifelong companion – Intoxication affecting judgement not ruled out – Court not to speculate on degree of intoxication – Accused relying on intoxication as mitigating factor must adduce evidence – Without evidence court unable to determine degree of intoxication and weight to be accorded - Domestic violence – Deceased’s conduct considered provocative – Direct consequence of physical assault – Notwithstanding accused over reacted in circumstances. S v Kadhila (CC 14/2013) [2014] NAHCNLD 17 (12 March 2014).

Sentence — Accused convicted of various counts of rape—Accused juveniles at the time of the commission of the offences—No remorse shown—custodial sentences imposed. The accused, who were juveniles at the time of the commission of the crimes, were convicted various counts of rape. They have not shown any remorse for their actions. No exceptional circumstances placed before me not to impose a custodial sentence. Accused sentenced to terms of imprisonment. S v Matundu (CC46/2009) [2014] NAHCMD 99 (28 March 2014).

Sentence – Community service – Not sentence on its own – Condition of suspended sentence – Court imposing community service must specify type of work to be performed – place – time frame. S v Thomas (CR 21/2013) [2014] NAHCMD 141 (31 March 2014).

Sentence — Stock theft involving two sheep – Accused has two previous convictions of stock theft – Minimum sentence of not less than 30 years’ imprisonment taken into consideration by sentencing court — Accused sentenced to 24 years’ imprisonment – Mandatory sentences subsequently found unconstitutional – Effect of striking down of minimum sentence provisions in Stock Theft Act 12 of 1990 — Courts no longer enjoined to impose the prescribed minimum sentence provided for in s 14(1)(a)(ii) and (b) of the Act — However, the offence not considered less serious as a consequence thereof – Appeal against sentence upheld – Sentence substituted on appeal with one of ten years’ imprisonment of which two years suspended on the usual conditions. Teister v The State (CA 24/2010) [2014] NAHCMD 223 (25 July 2014).

Sentence – Stock theft involving four head of cattle – Minimum sentence of 20 years’ imprisonment imposed - Mandatory sentences subsequently found unconstitutional – Effect of striking down of minimum sentence provisions in Stock Theft Act 12 of 1990 - Courts no longer enjoined to impose the prescribed minimum sentence provided for in s 14(1)(a)(ii) of the Act – However, the offence not considered less serious as a consequence thereof – Appeal against sentence of 20 years’ imprisonment upheld – Sentence of eight years’ imprisonment imposed on appeal. Kulandwa v The State (CA 29/2014) [2014] NAHCMD 220 (21 July 2014); S v Ndumba (CR 65/2014) [2014] NAHCMD 330 (6 November 2014);

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Sentence – Stock theft – Sentence of 20 years’ imprisonment unduly harsh – Sentence set aside and substituted with a sentence of eight years imprisonment of which one year was suspended. The appellants were convicted of having stolen two heads of cattle. They appealed against the sentence of 20 years’ imprisonment of which 10 years were suspended. The court held that the sentence imposed was unduly harsh but felt that custodial sentence of 8 years imprisonment of which one year was suspended to be appropriate. Shilula v The State (CA 66/2010) [2002] NAHCNLD 37 (27 June 2014); see further Tjihuno v The State (CA 30/2013) [2014] NAHCMD 185 (18 June 2014); Te Water v State (CR 36/2014) [2014] NAHCMD 225 (25 July 2014).

Sentence – Accused was a Close Corporation – Close Corporation convicted of fraud – Member of Close Corporation authorized by resolution of Close Corporation to plead guilty – Member convicted of fraud in member’s representative capacity – Court took into account the triadic factors enunciated in S v Zinn 1969 (2) SA 537 (A) and as developed and crystalized into guidelines in S v Rabie 1975 (4) SA 855 (A) – Court accepted the summation of S v Rabie guidelines that ‘Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstance’. S v Dresselhaus (CC 12/2005) [2014] NAHCMD 183 (17 June 2014).

Sentence – Custodial sentence – Imposition of - Housebreaking with intent to steal and theft is in itself a serious offence for which a custodial sentence should be imposed.The appellants were convicted of housebreaking with intent to steal and theft in the magistrate’s court, Swakopmund, and sentenced as follows: 1st appellant: Thirty six (36) months imprisonment of which twelve (12) months is suspended for a period of five years on condition that the accused is not convicted of housebreaking with intent to steal and theft, committed during the period of suspension; 2nd appellant: Thirty six (36) months imprisonment in terms of section 280(1) of Act 51 of 1977, eight (8) months imprisonment to be served concurrently with the sentence the appellant is serving. Held: The bedroom window was damaged during the burglary and property valued at N$15 000 was stolen of which part thereof valued N$7 000 was recovered. Held: There is no reason why this court should interfere with the sentences of the trial court. Held: In the result the appeal is dismissed. Drotsky v State (CA 12/2014) [2014] NAHCMD 259 (28 August 2014).

Sentence - Where the liberty of the subject is concerned, the court, as ultimate protector of the rights of the people, must not promote form above substance and must act in favorem libertatis and do justice as meet the circumstances of the case. Court in circumstances declining to refer matter back to the court a quo for sentencing as doing so would only extend his incarceration when on the facts it is clear that he needs to be released immediately. Tjiposa v The State (CA 150/2008) [2014] NAHCMD 305 (14 October 2014).

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Sentence – Accused convicted of contravening s 29 (5) of the Immigration Control Act, 7 of 1993 having overstayed in Namibia for longer than two and a half years after expiration of visitor’s entry permit – Each accused sentenced to the maximum penalty of N$12 000 or 3 years’ imprisonment – Accused first offenders who pleaded guilty – Court over-emphasised seriousness of the offence while ignoring personal circumstances of the accused – Sentences imposed excessive in circumstances of the case and reduced to N$6 000 or 18 months’ imprisonment. S v Malhaui; Gremelo (CR 68/2014) [2014] NAHCMD 334 (07 November 2014).

Suspended sentence - The accused was convicted in the district Court Otjiwarongo of theft after he pleaded guilty. He was sentenced to five hundred (N$500) fine or three (3) months’ imprisonment – The Court further made an order for a suspended sentence of one (1) year’ imprisonment dated 23 June 2011 to be put into operation - It is trite that the Court putting a suspended sentence into operation for non-compliance of the condition must afford the accused the opportunity to address the Court or to lead evidence. There could be a reasonable ground why the accused did not compply with the conditions - Unrepresented accused has to be fully informed about its nature, his rights during the proceedings and the orders which are competent - Accused was not afforded the opportunity to address the Court. This was an irregularity on the part of the learned magistrate - Conviction and sentence are confirmed but the order putting into operation the suspended sentence of one (1) year’s imprisonment is set aside. S v Haseb (CR 62/2014) [2014] NAHCMD 326 (5 November 2014).

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CASE SUMMARIES

Alweendo v The State (CA 08/2013) [2014] NAHCNLD 44 (16 JULY 2014).

Summary: Accused was charged with assault with intent to do grievous bodily harm as read with the provisions of Combating of Domestic Violence Act, Act 4 of 2003. He was convicted and sentenced as follows: On appeal we noted that the court a quo did not invoke s 25 (1) of the said Act. The conviction was confirmed but the sentence was set aside and the matter was remitted to the same court in order to invoke s 25 (1) of the said Act.

Amunyela v The State (CA 66/2009) [2013] NAHCNLD 52 (02 October 2014).

Summary: The complainant, an elderly lady, was raped on her way home. The accused did not dispute that she was raped and that he escorted her the evening she was raped. He however disputed that he had raped her. The State witness contradicted each other in respect of the report made the complainant directly after she was raped in respect of the identity of the perpetrator. Their previous statements to the police would have assisted the appellant to adequately challenge the State witnesses. It was common cause that the magistrate failed to inform the accused of his right to disclosure. The court held that such a failure constituted a fundamental irregularity. The magistrate furthermore made no mention of the discrepancies in respect of the complainant’s report on the identity of the perpetrator in his judgment. The court found these discrepancies material. The magistrate’s failure to refer to it led the court to conclude that he had failed to apply caution to the evidence of the complainant who was a single witness in respect of the rape.

Auchumeb v State (CA 44/2012) [2014] NAHCMD 204 (1 July 2014).

Summary: The appellant was convicted of housebreaking with intent to steal and theft. He was sentenced to 36 months imprisonment. The notice of appeal against conviction and sentence was not filed timeously. No proper application for condonation was filed to explain the delay for filing the notice of appeal. No prospect of success on appeal. Imprisonment is the norm for housebreaking with intent to steal and theft. Appeal against conviction and sentence dismissed.

Coppin v State (CA 47/2013) [2014] NAHCMD 119 (02 April 2014).

Summary: This incident took place at Rumours Grill and Pub in Luderitz at about 22h00 in the evening. The parties were having some drinks. The complainant is originally from Krugersdorp in South Africa. He had come for a visit, driving at the Skeleton Coast with

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a 4x4 bakkie. At some stage while under the influence of alcohol the complainant was playing pool at the time walked from the pool table to where the appellant and his family were sitting. During the talking the appellant felt he was under an imminent attack and he instinctively struck the complainant to the ground with the right hand wherein he held a glass. While the complainant was laying prostrate on the floor the appellant kicked him with booted feet in the face, resulting in the loss of two teeth and injury in the eye.

Held: From the evidence placed before the trial court, the Magistrate correctly found the appellant to have had an intention to cause the complainant serious bodily harm, hence the conviction is in order.

Held: The personal circumstances of the appellant and in particular the fact that it was the complainant who walked to the table where the appellant and his family were sitting shortly before the assault weighs heavily in favour of the appellant.

Held: The conviction is confirmed and the sentence is set aside and substituted with the following: N$4.000 or eight (8) months’ imprisonment.

Eichhoff v State (CA 26/2014) [2014] NAHCMD 154 (9 May 2014)

Summary: Bail – Appeal against magistrate’s refusal to grant bail – The appellant is charged with a Schedule 2, Part IV (of the Act 51 of 1977) offence – On the evidence placed before the lower court this court found that the respondent had made out a prima facie case and whether the respondent would succeed in establishing conclusively the guilt of the appellant in due course during his trial did not concern the lower court – Court further found that the lower court did not apply s 61 of the Act 51 of 1977 wrongly – Accordingly, the court did not find that the lower court decided the case wrongly – Consequently, the court dismissed the appeal.

Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27 November 2014).

Summary: The appellant, a French national, had been committed for purposes of extradition, the requesting country being India. It had been alleged that he had committed several offences under the Indian Penal Code and the Protection of Children from Sexual Offences Act, 2012. The appeal lies against the order of committal. The State at the enquiry adduced no oral evidence and relied on the documents prepared in, and forwarded by, India, the requesting country for extradition of the appellant. The magistrate at the enquiry was satisfied that the requirements for extradition as set out in section 12 (5) of the Extradition Act, Act 11 of 1996 were met and issued an order committing him to prison pending the Minister’s decision. The appeal was based mainly on two issues, namely, (a) the offences for which extradition is sought and the identity of the person before the court not duly established, and (b) the admissibility of witness

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statements and other documents relied upon and the lack of authenticity thereof. The court, after considering the provisions of the Act, read with the Rules of the High Court, concluded that unsworn statements, statements not translated by a sworn translator and documents not authenticated are inadmissible as evidence. Witness statements found to be inadmissible were the basis of the extradition request, without which there can be no prima facie case. The appeal accordingly succeeds.

Gawanab v State (CA 132/2013) [2014] NAHCMD 286 (03 October 2014).

Summary: On the 23rd November 2012 the appellant was convicted by a magistrate sitting in the Regional Magistrates’ Court for the District of Windhoek of one count of rape in contravention of the sections 1, 2(3), 3, 4, 6 and 7 of the Combating of Rape Act, 2000 ( Act 8 of 2000). He was subsequently sentenced to 15 years imprisonment and he now appeals against the sentence so imposed on him. The state opposed the appeal.

In essence the appellant grounds for appeal are that; the Court a quo misdirected itself when it imposed the minimum sentence prescribed in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2008; that the respondent did not prove that the pre-conditions contemplated in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2000 existed in order to trigger the application of that section and that the Court a quo misdirected itself when it arrived at the conclusion that there were no compelling circumstances in this particular case that would have justified the imposition of a lesser sentence than the 15 year minimum sentence prescribed by s 3(1)(a)(iii)(cc).

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 discretion may be said not to have been judicially or properly exercised if the sentence is vitiated by an irregularity or misdirection.

Another test applied by appellate Courts entertaining appeals against sentence which is said to be on the oppressive side is whether such sentence is so manifestly excessive that it induces a sense of shock in the mind of the Court. If it does, the inference can be drawn that the discretion had not been properly exercised.

Held that this Court is satisfied that the circumstances, except the age of the complainant, contemplated in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2000 were present. Held further that the Court a quo did not err in applying that section.

Held that the trial Regional Magistrate did have regard to the principles guiding the sentencing of a convicted person, and that he also had regard to the personal circumstances of the appellant.

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Held that the trial Regional Magistrate did not err or misdirect himself when he found that there were no 'substantial and compelling circumstances' to justify the imposition of a lesser sentence than that prescribed as a minimum.

Held that that there is no disparity in the sentence that the trial court imposed and the one that the appeal court would have imposed to warrant interference with that sentence. Furthermore this Court cannot find that the sentence is so manifestly excessive that it induces a sense of shock in its mind. This Court is satisfied that the court a quo exercised its discretion properly and judicially in imposing the sentence.

Gertze v The State (CA 145/2013) [2014] NAHCMD 302 (13 October 2014).

Summary: The appellant had been convicted of theft (eight counts) by a magistrate's court. He was a sergeant in the Namibian police with 20 years’ service and worked as court orderly for 3 years. Part of his duties was to collect admission of guilt fines paid at the police station from the charge office and hand same over to the clerk of the magistrate’s court on a daily basis. Instead he kept the monies with him for one month before handing it over. The clerk refused to accept the money, acting on instruction from a senior police officer. At that stage appellant was unaware of an impending investigation against him. There were several instances in the past when appellant paid over monies late without any repercussions for him. On appeal the Court held that there was not sufficient evidence to justify a conviction of theft. It had not been proved that the appellant had formed an intention to appropriate the money. The appeal was accordingly upheld.

Hamupolo v State (CA 40/2013) [2014] NAHCMD 258 (28 August 2014).

Summary: The respondent was found with a gambling machine positively identified to have been unlawfully removed from the recently burgled premises. Held: Respondent was unable to tell the police how he came into possession of the said machine. Held: The trial court had no reason to acquit the respondent in the presence of such overwhelming evidence directly connecting him to the crime of housebreaking with intent to steal and theft. Held: The appeal is upheld. The trial court’s judgment of not guilty and acquitted is substituted with the following:

In terms of section 304(2)(c) (iv) the accused is found guilty of housebreaking with intent to steal and theft. The matter is remitted back to the trial magistrate or in his absence anyone in the same capacity to proceed and sentence the respondent accordingly.

Haraseb v State (CA 98/2013) [2014] NAHCMD 42 (12 February 2014).

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Summary: The appellant was seen by an eyewitness, drinking alcohol with the deceased at Kambati Bar on the evening of the incident. The witness knows both the appellant and the deceased very well from the same village. He spoke to the appellant and they shared a smoke. The appellant told him he will escort the deceased to her home. The next morning passersby found the deceased laying on her stomach in the bushes with two blood stained stones next to her. The police found some bloodstains on the appellant’s sandal, and the clothes he had on the previous evening were washed during the night and hanged indoors to dry up.

Held: The appellant’s election not to put his side of the story in rebuttal of this potential evidence directly implicating him was risky and unreasonable.

Held: The only inference drawn from the evidence placed before the trial court that excludes other reasonable inferences was that it is the appellant who killed the deceased. This reasoning is in accordance with the law, and the conviction is confirmed. Held: The appeal is dismissed.

Idan v State (CA 34/2014) [2014] NAHCMD 217 (14 July 2014).

Summary: Criminal procedure – Notice of appeal – Such notice should clearly set out grounds of appeal in accordance with rule 67(1) of the Magistrates’ Courts Rules – Appellant wrote a letter to the registrar which he put forth as a notice of appeal – Court held that while pleadings and other papers prepared by lay persons representing themselves should be construed generously and in the light most favourable to such litigant this should not be taken too far as to cover situations where a statutory provision has not been complied with by such litigant – Court found that no grounds of appeal were set out in a letter to the registrar that appellant put forth as a notice of appeal – Court concluded that there were no grounds of appeal and therefore no appeal for the court to determine – Consequently, court dismissed the appeal.

Joseph v State (CA 148/2013) [2014] NAHCMD 353 (24 November 2014).

Summary: The appellant was convicted of stock theft on the basis of dolus eventualis. The appellant bought 4 cattle valued at N$10 000 from 2 farm workers. According to one of the farm workers, Mathys, the appellant entered into an agreement with him to steal cattle from his employer, sell them and share the money. The farm worker brought 4 cattle to the appellant’s farm and was paid N$8 000. The appellant denied the agreement and testified that he normally buys cattle from the community, but before he does that, he verifies the ownership of the cattle and he also knows the procedure relating to the documentation when selling and buying cattle. The sellers did not have the documentation and he sent his foreman to verify ownership, but could not

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do that as the owner was in South Africa. Two of the cattle were slaughtered and the meat sold and the other two were sold at an auction.

Held that the witness Mathys, although being a single witness and accomplice, the magistrate was alive to that fact and applied cautionary rule.

Held further that the appellant foresaw the real possibility that the cattle were stolen, yet he reconciled himself with that possibility.

Held that the magistrate correctly convicted the appellant. Appeal dismissed.

Kalola v State (CA 50/2014) [2014] NAHCMD 294 (7 October 2014)

Summary: Criminal Procedure – Appellant appeals against both conviction and sentence – Respondent has raised point in limine against the late filing of the notice of appeal and alleging that appellant does not have prospects of success on appeal – Court found that the explanation for delay inadequate and there are no prospects of success on appeal – Consequently, appeal dismissed.

Kambatuku v State (CA 48/2013) [2014] NAHCMD 41 (12 February 2014).

Summary: Constitutional law – Human rights – Rights to legal representation is a fundamental human right – It is not sufficient for a judicial officer to explain rights to legal representation but the offender should be afforded the opportunity to exercise it – Failure by the court to afford the offender to exercise his rights to legal representation amounts to fatal irregularities resulting in unfair trial.

Kapia v The State (CC 09/2008) [2014] NAHCMD 164 (23 May 2014).

Summary: The accused persons were jointly charged with various offences committed in contravention of certain provisions of the Companies Act 61 of 1973. Subsequent thereto the 1973 Act was repealed in toto. The substitute Companies Act 28 of 2004 has no transitional provisions as regards criminal proceedings. Accused raised objection in terms of s 85 of Act 51 of 1977 on grounds that charges lack legality. Where the substitute Act makes no provision for transition of proceedings between the repealed and new Acts, the provisions of the Interpretation of Laws Proclamation, 1920 must be invoked.

Kapuire v State (CA 33/2010) [2014] NAHCMD 285 (29 September 2014).

Summary: Criminal procedure – The appellant was convicted in the regional court of rape and assault with intent to do grievous bodily harm. On rape he was sentenced to 17 years imprisonment and on assault with intent to do grievous bodily harm to 1 year

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imprisonment to run consecutively. He filed a notice of appeal against conviction, the notice was filed out of time and he applied for condonation. Court gave notice prior to hearing that it may increase the sentence on assault with intent to do grievous bodily harm.

Held, that there were no proper grounds of appeal as required by Rule 67(1) of the Magistrate’s Court rule.

Held further that no acceptable explanation for the late filing of appeal provided and nor prospect of success on appeal shown. Notwithstanding condonation granted to enable the court to interfere with sentence on count 2.

Held further that the failure by the magistrate to comply with guidelines as set out in Gurirab matter not so serious to vitiate the sentence.

Held further that the sentence imposed on assault with intent to do grievous bodily harm disproportionate to the gravity of the offence and sentence increased to 3 years antedated to 12 May 2009 and to run consecutively with the sentence imposed on count 1.

Katangolo v State (CA 45-2012) [2014] NAHCMD 28 (30 January 2014).

Summary: The appellant was convicted and sentenced for an offence of possession of cocaine in contravention of section 2(a) of Act, 1971 (Act 41 of 1971). During sentencing the magistrate indicated that the evidence produced by the state positively pointed to possession of the substance not for personal use nor to feed an addiction but rather to dealing resulting in a misdirection. As a result of the misdirection, the sentence imposed in the court below is set aside and substituted with another sentence.

Katjoisikama v State (CA 113/2007) [2014] NAHCMD 25 (29 January 2014).

Summary: On the first count the allegation was that the appellant took two cattle he had stolen to Okamatapati auction pen for sale. The he inexplicably handed another person’s identity document to the auctioneer Vevanguane Zeze who already knew him, and proceeded to register the animals for sale. On the second count it was alleged that on the day of the incident the appellant took two calves and two cows he had stolen to Okondjatu auction for sale. There he met a certain Mukura Tjeriko whom he told about his own animals he had brought for sale. Held: In an appeal once the record of proceedings is incomplete, such that head and tail regarding what transpired in the court a quo cannot be ascertained the conviction and sentence on such a matter cannot be allowed to stand.

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Held: The conviction on both counts are set aside.

Kauejao v The State (CC 06/2014) [2014] NAHCMD 316 (29 October 2014).

Summary: The magistrate’s court had dismissed applicant’s application for bail (together with that of his co-accused) and applicant thereafter indicted in the High Court on charges of murder, stock theft and obstructing the course of justice. Applicant reapplied for bail on the basis of new facts but did not lead any further evidence, the only ‘new fact’ being relied upon is that the investigation since the first bail application has been completed. The court re-assessed all the facts, old and new, and concluded that there is no evidence showing that applicant planned to abscond. However, his two brothers living abroad is a factor to be taken into account. The State’s contention that it has a strong case against the applicant appears to be without merit. Notwithstanding, a prima facie case has been established which, upon conviction, is likely to attract lengthy custodial sentences. Evidence of interference by applicant with the investigation was adduced during first bail application and on which the court relied when refusing bail. Applicant, not having presented this court with new evidence, finds himself in the same position as before. Court satisfied that there is a real likelihood that applicant will interfere with the witnesses and evidence and dismissed the application.

Kauzuu v State (CA 107/2013) [2014] NAHCMD 68 (28 February 2014).

Summary: The complainant missed two goats, which were later said to have been found dead by the first appellant who claimed one goat was his and the other belonged to a family member, Meando. However, the first appellant nonetheless proceeded and gave the whole carcass of the second goat to the second appellant who helped in skinning and taking the meat home.

Held: No police officer in his rightful mind can refuse to be shown valuable evidence related to the very matter he is investigating, for example the skin and head of the alleged stolen stock.

Held: The prosecution has proved its case beyond reasonable doubt.

Held: The appeal is dismissed.

Kleophas v State (CC 10/2008) [2014] NAHCMD 46 (13 February 2014).

Summary: The three applicants attacked and robbed the deceased and three others in the evening on the day of the incident while they were viewing and taking photos of the McNaught comet on the wall of the mountain at Goreangab Dam. Held: There are no

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reasonable prospects that another Court could arrive at a different conclusion. Held: The application for leave to appeal is dismissed.

Lameck v The State (CC 11/2010) [2014] NAHCMD 347 (14 November 2014).

Summary: Applicant applied for recusal on the basis of – alleged bias on the part of the court is that it had dealt with an issue of warrants which had not been argued. The issue which had come before the court was that of summons. The test for recusal is that of the reasonableness of the applicant and that of the perception of bias by the Judicial Officer. Applicants failed to prove that there were reasonable in and that their apprehension of bias was also reasonable. The application was dismissed.

Maova v State (CA 87/2013) [2014] NAHCMD 134 (14 April 2014).

Summary: Criminal procedure – Appeal against conviction – The appellant appealed against his conviction and sentence from the Regional Court sitting at Otjiwarongo – After hearing arguments from counsel of the appellant and respondent, the appeal against conviction was upheld and reasons furnished later – On the evidence, the court found that the Regional Court Magistrate misdirected herself in accepting the version of the complainant and rejecting the version of the appellant without reasons for the rejection – Court found further that the lower court’s finding that the State proved the guilt of the appellant beyond a reasonable doubt despite various material inconsistencies, discrepancies and contradictions in the version of the State was a serious misdirection – Consequently the court upheld the appeal on conviction and accordingly set aside the conviction and sentence.

Mbwale v S (CC 19/2010) [2014] NAHCNLD 3 (23 January 2014).

Summary: The accused was convicted on multiple charges of rape (c/s 2 (1)(a) of Act 8 of 2000) and sentenced to 40 years’ imprisonment. On some counts sentences were ordered to run concurrently to the effect that accused must serve 25 years’ imprisonment. The accused aged 66 years worked as a traditional healer and the complainants were former patients of his. Accused sought leave to appeal against his conviction on all seven counts while the State, in a separate application seeks leave to appeal against the sentences imposed. Both applications dealt with simultaneously. Court found that both applicants failed to show they had reasonable prospects of success on appeal and dismissed the applications.

Moritz v The State (CA 53/2013) [2014] NAHCMD 203 (01 July 2014).

Summary: The accused was convicted after evidence was heard on a charge of rape of a minor and sentenced to 15 years’ imprisonment. On appeal it was argued that the accused was not given a fair trial in that several irregularities were committed by the

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presiding magistrate. Though the procedure adopted by the magistrate pertaining to the admissibility of medical records and him having discouraged the unrepresented accused from cross-examining the medical doctor giving evidence from these records would be irregular, the effect thereof not such that it vitiated the conviction. As regards conviction and sentence there is nothing on record showing that the presiding magistrate misdirected himself either on the facts or the law. Hence, there is no basis on which the court of appeal could interfere.

Mujime v State (CA 144/2010) [2014] NAHCNLD 39 (11 July 2014).

Summary: The appellants were charged with four counts of theft read with the provisions of the Stock Theft Act, 12 of 1990, as amended. They pleaded not guilty but were convicted of three counts of theft involving four heads of cattle. No evidence was adduced to the effect that three distinctive acts of theft were committed by the appellants. In the absence thereof the court a quo ought to have convicted the appellants on a single count of theft. The respondent conceded that there has been an improper duplication of convictions. Although the appellants did not appeal against the conviction the court used its powers of review under s 304(4) to set aside the convictions and substitute it with one conviction of theft read with the provisions of the Stock Theft Act. The magistrate imposed the minimum sentence prescribed by s14(1)(a))ii) of the Act which was struck down as being unconstitutional in Daniel and Another v Attorney-General and Another 2011 (1) NR 330 HC. The sentence imposed was considered to be disproportionate to the offence committed and to the legitimate expectations of society. The sentence was accordingly substituted with an appropriate sentence.

Namiseb v State (CC 19/2011) [2014] NAHCMD 251 (25 August 2014).

Summary: The allegations are that the applicants attacked an elderly couple aged 72 and 69 years respectively. The victims were badly assaulted, the female was raped, and they were in the end robbed of: a Toyota Corolla; N$6 000 cash; one .22 revolver; one 9mm pistol; watch; engagement and Eternity rings; ammunition and an electrical shaver all valued at N$78 900.

Held: The above allegations are very serious, coupled with the fact that the victims were defenseless elderly people.

Held: It is further alleged that the applicants refused to stop at a police mounted roadblock resulting in a shooting that saw the second applicant seriously injured in the buttocks. He was however despite the injuries arrested while fleeing. A police operation was put together. They cornered the first applicant in a shack at Mondesa, Swakopmund. At the door of the shack the police pronounced their presence and

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ordered the first applicant to come out if he was inside there, but he refused to do so. The door was eventually broken and an arrest was effected on him.

Held: It will therefore not be in the interests of the public and the proper administration of justice to release the applicants on bail.

Ndjukuma v State (CA 57/2011) [2014] NAHCNLD 56 (24 October 2014).

Summary: The appellant appealed against the sentence imposed by the regional court magistrate. He was convicted of having stolen 9 cattle. Both counsel agreed that the court should interfere with the sentence of 20 years imprisonment as same is disproportionate to the offence committed and the legitimate expectations of society. The court imposed a sentence of 12 years imprisonment of which 4 years imprisonment was suspended for 5 years.

Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014).

Summary: Criminal law – Assault with intent to do grievous bodily harm – What constitutes – Crime is not actual causing of grievous bodily harm but intent to do so – Essential element is intention to cause grievous bodily harm – Intent may be gathered or inferred from, eg, nature of weapon or instrument used, degree of force applied and part of body at which assault is directed – It is intent to inflict more than just superficial and insignificant injury, injury that usually follow upon an assault – In instant case appellant, a man, slapped the complainant, a woman, with his open hand on right side of complainant’s face causing complainant to lose hearing in right ear and to suffer congested right eye and to bite her own tongue – Court found that on the facts appellant had the requisite intent to commit the crime of assault with intent to cause grievous bodily harm – Consequently, the court confirmed the conviction.

Summary: Criminal procedure – Sentence – Imposition of – Factors to be taken into account – Court held that where different and compelling factors jostle for treatment it is necessary to strike a balance which will do justice to the accused and interest of society – Trial court entitled to give greater weight to one factor than to others so long as it is not at the expense of disregarding entirely the other factors – Court held further that it is the trial court which can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate court – In instant case court found that trial court considered all relevant factors – Appellant was sentenced to 18 months’ imprisonment of which six months was suspended on conditions – Court found that taking into account sentences imposed by the court in similar and the facts and circumstances of the case the sentence imposed was manifestly excessive and induced a sense of shock in the mind of the court – Court was accordingly entitled to interfere with the sentence imposed – Court concluded that while a custodial sentence was

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appropriate such sentence should be suspended wholly – Consequently, the court upheld appeal on sentence, set aside the sentence imposed and replaced it with a sentence of 12 months’ imprisonment, wholly suspended on conditions.

Petrus v State (CC 13/2013) [2014] NAHCMD 234 (05 August 2014).

Summary: During the night on the day of the incident the applicant intruded his ex-girlfriend’s room and strangulated her with a tie until she died. Her roommate Erika Embashu was locked inside the wardrobe, and was held there until the applicant felt he was about to leave the scene. Before he left the scene he touched and called the deceased’s name more than once, there was no reply because she was already dead. The applicant told Erika Embashu he was just making sure the deceased was indeed dead because he did not want to leave her alive on this earth.

Held: The dominant criterion in deciding an application for leave to appeal is whether or not the applicant has reasonable prospects of success on appeal.Held: In the particular circumstances of this case the court is not satisfied that the applicant has reasonable prospects of success on appeal. Held: The application for leave to appeal is dismissed.

Ramseb v The State (CA 05/2013) [2014] NAHCNLD 40 (11 JULY 2014).

Summary: A party seeking condonation must give a reasonable and acceptable explanation for his failure to file such application timeously. It is not excusable for a party to state that he could not find help in prison for processing his application but had to wait for help from his prison inmates. In addition, thereto, in order to succeed in this application, a party must show reasonable prospects of success of his appeal. Appellant was convicted and sentenced to 8 years’ imprisonment for stock theft. He failed to file his notice of appeal timeously. He stated that although the magistrate explained his rights to him for appeal, he did not fully understand and only obtained help from his prison inmates after a year had lapsed. Respondent argued that his explanation for the delay was unacceptable and the prospects of success of his appeal were unreasonable. Application for condonation was accordingly dismissed.

S v Adams and Another (CC 17/2012) [2014] NAHCMD 90 (19 March 2014)

Summary: Criminal Procedure – Trial – Application in terms of s174 – The test to be applied by the Court is whether there is evidence on which a reasonable court acting carefully may convict – There is no specific formula or test that is applicable to all cases when deciding whether or not to discharge – Each case must be considered on its own merit.

S v Alutale (CR 03/2014) [2014] NAHCNLD 06 (04 February 2014).

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Summary: The accused were summarily convicted following their pleas of guilty and each sentenced to eight months’ imprisonment, wholly suspended on the usual condition of good conduct, coupled with the performance of community service. The sentence is incompetent only as far as it concerns the imprisonment imposed without the option of a fine. The sentencing court intended keeping the accused out of prison and decided they had to render community service. Options open to the sentencing court discussed. The court pointed out that community service in itself is not a competent sentence but is merely a condition for the release of the accused where the passing of sentence is postponed, or a condition of suspension where the sentence is wholly or partly suspended.

S v Ananias (CA 34/2013) [2014] NAHCMD 82 (10 March 2014).

Summary: Criminal procedure – Appeal – Statement by accused in terms of s 115 of Criminal Procedure Act 51 of 1977 – Exculpatory statements therein must as a general rule be repeated under oath to have evidential value, except possibly, when a defence is raised in such exculpatory statement, in which event the State may have to negative such defence – Court held further that exculpatory statements in explanation of plea do not form part of the evidential material – In instant case learned magistrate of Regional Magistrate’s Court accorded exculpatory statement in respondent’s plea explanation evidential value and relied heavily on it – On the strength of that the learned magistrate found proven the respondent’s defence of self defence or/and private defence – Court found that on the authority of S v Shivute 1991 NR 123 and S v Tjiho (2) 1990 NR 266 (HC) the learned magistrate erred on the law – Court found further that the State had placed sufficient evidence before the court to satisfy the requirement of ‘one possible exception on the general rule’ laid down in S v Shivute and in that event the learned magistrate should have put the respondent on his defence on the main count of culpable homicide.

S v Brandt (CR 9/2014) [2014] NAHCMD 70 (4 March 2014).

Summary: Criminal procedure – Sentence – Suspended sentence – Conditions of – Correct wording of condition of suspension – The word ‘committed’ should be part of condition – Additionally, condition should be clear and clearly related to the crime accused is convicted of – Accused must know exactly which conduct may lead to his having to serve the suspended sentence – In instant case the conditions imposed for suspending part of the sentence are wrong because they do not contain the word committed – Additionally, conditions that accused is ‘not convicted of any offence of dishonesty’ not meeting such requirements.

S v Brandit (CR 11/2014) [2014] NAHCMD 91(19 March 2014).

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Summary: The accused picked up a .22 revolver, which he took to a friend to show his find and in the process a bullet went off accidentally without injuring any of them, resulting in his arrest.

Held: The conviction and sentence are confirmed;Held: The matter is referred back to the trial Magistrate to have the accused brought before him in execution of section 10(6)(a) and (7) of the Arms and Ammunition Act 7 of 1996.

S v Chunga (CC 15/2012) [2014] NAHCNLD 18 (19 March 2014).

Summary: The one complainant had seen the accused once on a previous occasion while to the other complainant he was a complete stranger. They were approached on the street under cover of darkness by a person wearing a cap, partly covering his face. He inflicted an open wound to the chest of one complainant with a knife. They were directed to a secluded area where he had sexual intercourse twice with the other complainant. Despite having seen his face during different stages the complainants were unable to identify the person. At some point the cap came off and his face became visible. One complainant recognised the accused. During subsequent events after they parted ways with the assailant one complainant described the dress (black trousers and jacket and a cap) of the person, from which a friend who had come to their assistance claimed it was the accused whom he had earlier seen at a club. The complainant who had recognised the accused kept quiet or denied knowing the person when specifically asked about his identity. Her reasons for doing so found unconvincing. Evidence shows she was still in doubt long after she identified the person. Several factors impacted adversely on the quality of the identification evidence. Dock identification of the accused by one complainant, though admissible, afforded little weight in circumstances of the case. Accused raised an alibi defence. Onus is on the State to adduced evidence refuting the alibi. Evidence of State witnesses doubtful and not reliable and the accused’s version reasonably possibly true.

S v Daniels (CR 31/2014) [2014] NAHCMD 170 (28 May 2014)

Summary: Criminal law – Drug offences – Dagga (Cannabis) – Dealing in cannabis in contravention of Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971 – Lower court applied presumption in s 10(1)(a)(i) of Act 41 of 1971 to reach the conclusion that the possession of 2700 kilograms of cannabis amounted to dealing in cannabis – Accused had been charged on a main count of dealing in and on an alternative count of possession of – Court found that the lower court interpreted and applied the presumption in s 10(1)(a)(i) wrongly and the lower court had itself acknowledged that the State offered no evidence to prove dealing in – Court found that the guilt of the accused on the main count had not been proved –

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Consequently court set aside the conviction and sentence on the main count and substituted them with a conviction and sentence on the alternative count if possession.

S v Dausab (CC 38/2009) [2014] NAHCMD 2 (15 January 2014)

Summary: The Otjiwarongo police, on request from their counterparts at Okahandja waited for the allegedly armed accused at the entrance traffic circle from where they drove behind him up to Jimmy’s place. There he got out of his vehicle, put his hands up and told one of the officers the firearm was behind the driver’s seat, the officer took it out. In the meantime and before being warned of any of his rights by any of the officers, which they conceded, he started to explain what happened and he was searched. He was then taken to Insp. Kharuxab’s office at the Police Station where he was allegedly handcuffed behind his shoulders, beaten up by three officers, and told what he should inform his employer regarding the matter.

Held: The accused is a single witness regarding the alleged assault on him against the evidence of the three denying police officers. This allegation has not been supported by any medical examination, neither did the accused lay a criminal charge against his assailants despite the fact that no payment or legal assistance is required for such an undertaking. It follows therefore that the accused’s allegation of assault by the three officers has been satisfactorily displaced and is thus rejected as an afterthought.

Held: From Jimmy’s place where the accused was taken in custody and started to resort under the control of the officers, a duty to make sure that all his rights were properly explained to him rested on the said officers. This duty was not appropriately carried out.

Held: Therefore any explanation which the accused, an undefended person at the time, may have furnished to any person, including the police while in Otjiwarongo is inadmissible.

S v Dresselhaus (CC 12/2005) [2014] NAHCMD 183 (17 June 2014).

Summary: Criminal procedure – Sentence – Accused was a Close Corporation – Close Corporation convicted of fraud – Member of Close Corporation authorized by resolution of Close Corporation to plead guilty – Member convicted of fraud in member’s representative capacity – First accused as other member of Close Corporation pleaded guilty to counts on fraud – First accused convicted on his plea and sentenced accordingly – Close Corporation being an artificial person custodial punishment not appropriate – Court found that victim of the crime had been compensated fully by the Close Corporation for any losses – Court found further that the Close Corporation’s participation in the crime has totally ruined the Corporation resulting in its demise and the Corporation had compensated fully the victim of the crime for the victim’s losses –

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Court concluded that the punishment to impose should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances – Consequently, Court sentenced the first accused to N$200 000.

S v Dias (CC 14/2011) [2014] NAHCMD 323 (31 October 2014).

Summary: The accused persons are charged with several charges of fraud in the main alternatively theft general deficiency and theft by false pretences in counts 1 – 139 – They were also charged with ordinary theft of building materials of their employer, the complainant – The State also alleged that the accused persons committed the offences with a common purpose – However, the court found that the State failed to prove common purpose and offences of fraud with all the alternative offences the accused charged with – In respect of the theft charge, the court found that accused 1 and 2 had committed the offence by assisting each other – Accused 2 also found guilty of fraud, an alternative count to count 141.

S v Ditshabue (CC 26/2012) [2013] NAHCMD 123 (3 April 2014).

Summary: Accused was charged with two counts of murder. He pleaded guilty to count 1 and not guilty to count 2. In count 2, accused who had a frosty relationship with the deceased was found kneeling next to her after she had been stabbed. Upon seeing the two witnesses, he stabbed himself on the chest. It was proved that he had previously threatened her with death or some such other harm. Accused refused to give evidence or call witnesses. The evidence against him was very overwhelming and the only irresistible conclusion is that he killed the deceased in count 2.

S v Frans (CR 2 /2014) [2014] NAHCMD 8 (23 January 2014).

Summary: The accused was convicted of possession of a fire arm without a licence in contravention of s (2) read with ss 38 (2) and 39, of Act 7 of 1996. The magistrate has failed to invoke the provisions of s 10 (7) which is obligatory. Failure to do so amounts to an irregularity.

S v Hailonga (CC 5-2012) [2014] NAHCMD 235 (22 July 2014).

Summary: Criminal law – The accused was charged with murder and assault of his girlfriend. He pleaded not guilty. Two witnesses observed how the accused punched the deceased in the face. After she was punched she ran behind the curtain and was followed by the deceased. Behind the curtain she uttered words to the effect ‘he stabbed me, killed me.’ She ran out and fell to the ground where she died. The accused pleaded in the magistrate’s court and admitted having stabbed the deceased.

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Held that the utterances by the deceased that ‘he stabbed me, killed me’ admissible as axception to the hearsay evidence rule.

Held further that the accused was the only one with a knife behind the curtain when the deceased uttered those words and therefore the only inference to be drawn is that he is the one who stabbed her.

Held further that in the magistrate’s court Swakopmund, the accused admitted having stabbed the deceased.

Held further that having regard to the knife, the fact that the accused walked a distance from his house to the deceased’s house, the place on the body where he stabbed her and the force applied to inflict the wound, the accused had the direct intent to murder the deceased.

Held further that the accused is guilty as charged.

S v Hamukoto (CC 8/2013) [2014] NAHCMD 59 (7 November 2014).

Summary: The deceased and the accused quarreled over a N$10 which the deceased believed she had inadvertently given to the accused. The deceased approached the accused’s cuca shop with a stick but it was removed from her. She hit the accused with her fist on the deceased neck and a fight ensued. The deceased fell to the ground and the accused managed to sit on top of the deceased. She eventually managed to pin the deceased’s arms down on the ground. She held the deceased’s neck with the left arm; and hit the deceased head with her right hand. She got up to fetch a bottle and hit the deceased on her face without realizing that the deceased had already died at that time she strangled her. The court found that the accused, at the time she was sitting on top of the deceased, was in full control of the situation and hereafter became the aggressor. She thus exceeded the bounds of self-defense. No direct intention to kill was proven. Her explanation that she simply wanted to render the deceased unconscious and her conduct afterwards created doubt whether she in fact appreciated the possibility that death would ensue i.e that she had intent in the form of dolus eventualis. The accused was found not guilty of murder but convicted of culpable homicide, a competent verdict on a charge of murder.

S v Hendriks (CA 22/2014) [2014] NAHCMD 215 (14 July 2014).

Summary: The accused was convicted on a charge of attempted murder in the magistrate’s court and sentenced to a term of imprisonment for two years. On review the court of review confirmed the conviction but not the sentence and was of the view that the sentence imposed was too lenient bearing in mind that the crime was

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committed in the setting of a domestic relationship. In reaction thereto the State seeks leave to appeal against sentence.

S v Herman (CR 05/2014) [2014] NAHCNLD 9 (13 February 2014).

Summary: The accused was convicted of theft (under false pretence) of N$20 089.42 in cash and sentenced to 5 years’ imprisonment, partly suspended. One condition of suspension was that accused had to compensate the complainant for the loss suffered. Accused clearly without the means to do – a fact the magistrate appreciated when sentencing. Accused in effect sentenced to five years’ direct imprisonment. The sentence, in circumstances of the case, is unjustified and excessive. Sentence set aside.

S v Hileni (CR 02/2014) [2014] NAHCNLD 07 (04 February 2014).

Summary: The accused was charged with theft of N$3 600 in cash and after evidence was heard convicted her of theft ‘as charged’. The evidence adduced does not sustain a conviction of theft of the specified amount but of a lesser amount (N$725.10). Conviction corrected accordingly.

S v Homses (CC 41/2009) [2014] NAHCMD 36 (06 February 2014)

Summary: The respondent, a former Head of the Legal Department at Santam, Namibia, was charged with twenty nine counts of fraud; the same number of counts as first alternative counts of theft by false pretenses; and the same number of counts as second alternative counts of theft. She was acquitted on counts 1, 2, 4, 5, 6, 8, 9, 10, 12, 13, 15 16, 17,18, 23, 24 and 28 respectively. The Applicant now applies for an application for leave to appeal the acquittals.

Held: Respondent was correctly acquitted on the aforestated counts as a result of the reasonable doubt that was not displaced by the prosecution witnesses.

Held: Not all the alleged beneficiaries on the various claims testified and neither was there evidence to show that they don’t exist and therefore fictitious.

Held: No proof was placed before court to show that payments were made in full and final settlement on the claims related to the acquittals in order to make further payments on them misplaced and therefore fraudulent.

Held: The court’s reference to the respondent’s fraudulent mindset in its judgment cannot be understood to mean she was guilty as charged on all counts that were preferred against her.

S v Immanuel (CA 53/2013) [2014] NAHCNLD 1 (14 January 2014)

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Summary: Applicant (the State) seeks leave to appeal against the acquittal of the respondent on a charge of theft. The magistrate after evidence was heard was not satisfied that the guilt of the accused was proved beyond reasonable doubt. Trial court clearly misdirected itself on the law which may cause another court to come to a different conclusion as regards the guilt of the accused. Court found that there are reasonable prospects of success on appeal and granted leave to appeal.

S v Jossop (CC 5-2012) [2014] NAHCMD 368 (27 November 2014).

Summary: The accused was charged with two counts of murder, assault with intent to do grievous bodily harm, malicious damage to property, three counts of attempted murder and defeating or obstructing or attempting to defeat or obstruct the cause of justice. He pleaded not guilty and gave no plea explanation. The prosecution witnesses saw how the accused stabbed the deceased person. The accused also admitted having stabbed the deceased. The witnesses also testified about how the accused head butted the complainant in this case, he also admitted to doing that. The accused also admitted having damaged the property of the complainant. On the three counts of attempted murder, the witnesses testified that the accused stabbed one of the complainant, Indira Bloodstaan on the head and another one, Richelin Snewe, on the arm. There was also evidence that the accused hit Belinda Guriras on the head with the bottle of beer. Richelin Snewe also testified that when the accused stabbed him in his arm, the accused said that he, Richelin Snewe, was a problem in his murder case. Court found the accused guilty of two counts of murder, malicious damage to property, three counts of assault with intent to do grievous bodily harm, one count of attempted murder and defeating or obstructing the cause of justice.

S v Mavhengele (CR 07/2014) [2014] NAHCNLD 16 (5 March 2014).

Summary: The conviction was set aside by reason of the fact that the accused was wrongly charged under s 12 (4) when found in Namibia without valid travel documents. Though pleading guilty to the charge it later emerged that he did approach an immigration official upon entry into Namibia and was issued with a visitor’s entry permit. Accused however stayed on after expiration of the period granted. In the circumstances he made himself guilty of a contravention of s 29 (5) of Act 7 of 1993 and should have been charged accordingly. These are completely different charges and cannot be substituted on review. Conviction set aside.

S v Mazita (CR 59/2014) [2014] NAHCMD 301 (10 October 2014).

Summary — The accused appeared in the Magistrate’s Court for the District of Mariental sitting at Stampriet on a charge of assault with intent to cause grievous bodily harm, read with the provisions of the Domestic Violence Act, 2003 (Act No. 4 of 2003)

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and at the close of the State’s case the accused applied for a discharge in terms of s 174 of the Criminal Procedure Act, 1977. The magistrate instead convicting him ‘as charged.’

Held that the Court’s power to intervene (through its review powers) with the unterminated proceedings of the magistrates’ court does not emanate from s 116 of the Criminal Procedure Act, 1977.

Held further that this court has inherent power to curb irregularities in magistrates' courts by interfering (through review) with unterminated proceedings emanating therefrom where grave injustice might otherwise result. failure to do so an irregularity.

Held further that in this matter at least one serious irregularity has occurred, namely the conviction of the accused without his version having been heard and that this Court can in this instance review the unterminated proceedings in the magistrates’ court.

S v Mbauka (CR /2014)[2014] NAHCMD 43 (12 February 2014).

Summary: Accused 1, 2 and 3 were arrested for theft of three cattle after they had offered carcasses of cattle meat to others for sale. Held: The carcasses of the meat accused 1 and 3 had offered for sale could not be connected to the carcasses of cattle meat the police found under the bridge at Outjomuise, Windhoek. Held: The guilt of the three accused related to the theft of three alleged cattle has not been established beyond reasonable doubt.

S v Mbango (CC 19/2012) [2014] NAHCNLD 10 (13 February 2014).

Summary: The accused at the close of the State case applied in terms of s 174 of Act 51 of 1977 for discharge on grounds that no direct evidence proved their commission of the offences charged and the quality of the evidence of State witnesses being of such poor quality that no reasonable court may convict on that evidence. It is trite that direct evidence is not required and that a court may convict on circumstantial evidence. The evidence of police officers about pointing out made by all three accused is suspect and open to criticism but there is no legal ground on which it should be excluded as evidence. Accused no 1 during bail proceedings gave evidence which puts him and his co-accused at the crime scene on the night the offences were committed. His evidence further supports some of the charges the accused persons stand charged with and particularly incriminate his co-accused (accused no 2). There is a reasonable possibility that if accused no 1 were to testify, his evidence may supplement the State case. In the circumstances of the case the application is dismissed.

S v Mbango (CC 19/2012) [2013] NAHCNLD 13 (27 February 2014).

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Summary: The three accused persons were charged with housebreaking with intent to rob and robbery (with aggravating circumstances), several counts of rape, in contravention of either s 2 (1)(a) or (b) of Act 8 of 2000, and murder. They pleaded not guilty on all the counts. The arrest of the accused came as a result of information obtained from an unknown informer and the foundation of the State case being pointings out and admissions made to the police. State unable to prove pointing out and making of admissions were not without undue influence and same found inadmissible. Accused at close of State case elected to remain silent. In absence of direct evidence and given the poor quality of circumstantial evidence the court is not entitled to draw any adverse inference from the accused persons’ failure to give evidence.

S v Morenga (CA 156-2013) [2014] NAHCMD 360 (26 November 2014).

Summary: Appeal – Application by the State for leave to appeal against sentence – Trial court convicted respondent on one count of attempted murder – Offence is domestic violence as contemplated in the Combating of Domestic Violence Act 4 of 2003 – Court found that the learned magistrate took into account all relevant factors that should be taken into account when considering sentencing – Having done that the learned magistrate imposed a sentence of imprisonment for the maximum period of five years that is within his jurisdiction in terms of Act 32 of 1944, as amended by Act 9 of 1997 – Court found that the learned magistrate did not misdirect himself on the law – Court concluded that the applicant has not shown that reasonable possibility exists that an appeal court would reach a different conclusion than that reached by the trial court and that there are reasonable prospects of success on appeal – Consequently, the court refused the application and dismissed it.

S v Munuma (CC 03/2004) [2014] NAHCMD 363 (27 November 2014).

Summary: The nine accused who are charged with offences of high treason, public violence and sedition pleaded that the court lacked jurisdiction in terms of s 106 (1) (f) of the Criminal Procedure Act 51 of 1977 – Except for one, all alleged that they had been abducted or kidnapped from Botswana by officials of the Namibian Police and or the Defence Force and or agents of the Namibian Government – Court found that with the evidence presented before it, no abduction or kidnapping was proved – Accordingly the special plea in terms of s 106 (1(f) of Act 51 of 1977 dismissed and held that the court has jurisdiction to try the accused for offences charged with.

S v Mutilifa (CC 03/2012) [2013] NAHCNLD 45 (16 July 2014).

Summary: The deceased was arrested and brought to the Katima Mulilo police Station where he was held. He attempted to escape from police custody but was apprehended by accused 1, 2 & 4 who brought him back to the charge office. He was

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dripping wet when the accused brought him back into the charge office. He was taken to an open area. Here he was assaulted and he died shortly after the assault. The court chose not to rely on the extra curial statement of the co-accused implicating the accused who applied for dishcarge. Evidence, though contradictory, placed the accused at the scene of an unlawful assault. The court held that their omission to act could be construed as an act of association and the court thus held that it may be premature to discharge the accused at this stage. The application for discharge by the two accused was accordingly dismissed.

S v Nangolo (CR 26/2014) [2014] NAHCNLD 51 (25 August 2014).

Summary: The accused was convicted of culpable homicide and driving without a license. He was sentenced to one year imprisonment for driving without a license in contravention of s31(1)(a) of the Road Traffic and Transport Act, 22 of 1999. This sentence was not competent in view of the fact that the court convicted the accused on his mere plea of guilty in terms of s112(1)(a) and it also exceeded the maximum penalty prescribed by s106 of the Road Traffic and Transport Act. The accused collided head on with another vehicle on a straight dry road during the early evening hours. He explained that there was another unknown vehicle which overtook oncoming vehicle. When he realized a collision was inevitable, he braked but it was too late. His vehicle veered into the path of another oncoming vehicle and collided head on with it. The transgressing vehicle passed on his left side. Two persons died as a result of the collision. His evidence that he was a skilled driver and that he took precautionary measures. was not challenged. No evidence in respect of speed and distance was canvassed with the accused. The court a quo erred when it concluded that the accused failed to reduce his speed; that he saw the other vehicle at a distance; and when he concluded that the accused was negligent merely because he was driving without a license. Negligence was not proved beyond reasonable doubt and the conviction and sentence set aside.

S v Nderura (CR 20/2014) [2014] NAHCMD 131 (10 April 2014).

Summary: Accused had been convicted of the theft of 1 sheep to the value of N$400-00. He was sentenced to 8 months imprisonment. When imposing this sentence the court failed to consider that the prescribed sentence in terms of section 14(1)(a)(i) is any period of imprisonment for a period of not less than two years without the option of a fine, but not exceeding the normal sentence jurisdiction of the magistrate. The court also failed to follow the requirements set by section 14(2) before imposing the sentence to the accused in that it failed to satisfy itself whether or not any substantial and compelling circumstances existed, which would warrant the imposition of a lesser sentence than two years imprisonment, which must still be a period of imprisonment. This was noticed and a special review of the sentence imposed on accused 2 was requested therefore. When considering the special review the reviewing court also

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noticed that the court a quo had committed a further irregularity in that it had also failed to inform the accused of the fact that “substantial and compelling circumstances” might lead to the imposition of a lesser sentence and had failed to ask the accused to address this aspect before imposing sentence. On account of these irregularities the sentence imposed on accused 2 was set aside and matter remitted back for purposes of sentencing accused 2 afresh.

S v Ndoke (CR 50/2014) [2014] NAHCMD 263 (29 August 2014)

Summary: Special review – Offences of contravening certain provisions of the Nature Conservation Ordinance 4 of 1975 – Record indicating that the accused were convicted on one count of hunting huntable game and on second count of contravening certain provisions of Ordinance 4 of 1975 – Accused convicted on both counts – Confusion on record relating to sentence – Court found that the accused have been sentenced twice on count 1, and on count 2 they were given a sentence that is ultra vires the Ordinance – Court confirmed the conviction and set aside the sentences and replaced them with other sentences – Sentences were made to run concurrently in the interest of fairness and reasonableness.

S v Noabeb (CC 3/2012) [2014] NAHCMD 94 (24 March 2014).

Summary: The accused was charged with murder on the first count by stabbing the deceased on the thigh. Normally a thigh is not regarded as a vulnerable part of the body. The Court is not satisfied that the accused foresaw the possibility that death may occur – However the Court is satisfied that the accused by stabbing the deceased with a sharp object on the thigh he ought reasonably to have foreseen that death may occur. The State had proved negligence on the part of the accused. He was accordingly convicted of culpable homicide.

S v Shipepe (CR 15/2014) [2014] NAHCNLD 30 (08 April 2014).

Summary: The accused, a 24 year old first offender is convicted of theft of goods valued at N$ 31 000 and sentenced to a fine of N$2 000 or 2 months’ imprisonment, half of which suspended on condition of good conduct. In the circumstances of the case a fine should never have been imposed and as such is inappropriate to the extent that it offends against the proper administration of justice. The court declines to confirm the sentence on review.

S v Shivute (CC20/2010) [2014] NAHCMD 343 [14 November 2014].

Summary: The respondent was, on his own plea of guilty, convicted of various counts of fraud, forgery and uttering. He was sentenced to 5 years imprisonment. The applicant is not happy with the sentence imposed and applied for leave to appeal against

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sentence. The court considered the personal circumstances of the respondent, the confiscation order, the fact that the respondent is a first offender, the element of mercy, the interest of society and held that the 5 years imprisonment does not induce a sense of shock and is not lenient in the circumstances. The application for leave to appeal is refused.

S v Simon (CR 80-2014) [2014] NAHCMD 357 (26 November 2014).

Summary: The accused on count 2 admitted entering a restricted area as defined in the Diamond Act with the intention of conducting mining activities. In respect of a further charge (count 3) he admitted having illegally mined in that area when apprehended. The question arose whether there was a duplication of convictions when the court convicted on both counts. The court applied the applicable tests and concluded that although the accused committed two separate acts, he had done so with a single intent and, in order to conduct any mining activities, he had to enter the restricted area. Both acts were thus necessary to carry out that single intent. The conviction and sentence on count 2 set aside.

S v Tjapa (CC 09-2011) [2014] NAHCMD 367 (27 November 2014).

Summary: The applicant was convicted of robbery with aggravating circumstances, three counts of attempted murder, negligent discharge of firearm, possession of firearm and ammunition without a licence and sentenced to effective 60 years imprisonment. He filed an application for leave to appeal out of time. Explanation that he waited for legal aid to respond to his application and he further stated that he has good prospects of success on appeal. Explanation acceptable, but no prospects of success on appeal. Guilt of applicant proven beyond reasonable doubt. Sentence is not shocking as the appellant has nine previous convictions. Condonation refused, matter struck from the roll.

S v Veii (CR 4-2013) [2014] NAHCMD 24 (29 January 2014).

Summary: An accused person who was charged with theft of a goat worth N$600.00 was found guilty as charged even though the value of the goat accepted by the state was N$250.00. On review, the verdict of ‘guilty as charged’ set aside and substituted with a verdict of ‘guilty theft of a goat with a value of N$250.00’. The sentence of fifteen (15) months imprisonment imposed by the magistrate is set aside as the magistrate acted ultra vires. Section 11(1)(a)(i) of the Stock Theft Act, 1990 (Act 12 of 1990) provides for a minimum prescribed sentence of not less than two years imprisonment for first offenders convicted of theft of stock of which the value thereof is less than N$500.00. The sentence is mandatory, a magistrate does not have a discretion. On review, the sentence of fifteen (15) months imprisonment imposed by the magistrate set

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aide and replaced with a sentence of two years imprisonment, antedated to 14 October 2013.

Shifela v State (CA 9/2014) [2014] NAHCMD 228 (28 July 2014)

Summary: Criminal Procedure – The appellant was convicted in the Regional Court, Windhoek, of murder with dolus directus. He was sentenced to 15 (fifteen) years of which (5) five years were suspended on the usual condition. He appealed against the sentence. Court gave notice prior to the hearing, that, given the facts of this case it may increase the sentence.

Held that, court of appeal may interfere with the sentence imposed only where the court a quo misdirected itself or where the sentence imposed is startlingly or disturbingly inappropriate, or where it creates a sense of shock, or where there is a striking disparity between the sentence imposed by that court and the sentence the court of appeal would have imposed, or that the sentence is totally out of proportion to the gravity or magnitude of the offence, or that it was in the interest of justice to alter it.

Held further that, the magistrate under-emphasized the seriousness of the offence and the interest of society.

Held further that, the sentence imposed is disturbingly lenient and court increased to 20 (twenty) years imprisonment.

Shoombe v State (CA 102/2013) [2014] NAHCMD 62 (21 February 2014).

Summary: This incident took place on the 31st of December 2012 at Erf 49, Nangolo Mbumba Street, Meersig, Walvis Bay. It was on a recently bought house wherein the owner was not residing due to electricity that was stopped. The appellant broke in through the back door that was locked and re-enforced with nailed planks. Doors were removed from their frame hinges, with other items loaded on to a taxi wherein the appellant was also riding. The attention of a police officer on patrol was attracted by the boot of the taxi that could not be closed due to the doors that were sticking out.

Held: There was a fresh breaking into the premises and the appellant was found with items from the premises. His various conflicting versions as to how he acquired the property was correctly rejected by the trial court.

Held: There were no misdirections committed by the Magistrate regarding the conviction and sentence.

Held: The appeal is dismissed.

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State v Kadhila (CR 39/2014) [2014] NAHCMD 231 (31 July 2014).

Summary: Criminal law – Attempted Murder - Mens rea – Court a quo finding that evidence fell short of proving beyond reasonable ground that accused intended to kill complainant – court a quo reasoning that what was lacking for the Court to convict the accused on the main count of attempted murder was (evidence at) which part of the complainant’s body the accused had aimed at when he shot at the complainant as this would have helped in assessing the intent to kill. The court a quo also found that it was also relevant in this regard that no bullet had hit the complainant and the injuries sustained from the assault were not extensive and that the evidence thus fell short of proving beyond reasonable doubt that the Accused intended to kill the Complainant, but failed to achieve this due to some or other intervention. – On review the court held that in the circumstances were the learned magistrate had found that the State witnesses did not give the court any reason to doubt their version of the events, and were the court a quo had correctly come to conclusion that the defence of private defence, as raised by the accused, fell to be rejected – the prosecution had proved the main count of attempted murder beyond reasonable doubt - as the accused had manifested his criminal intent to kill the complainant obviously and clearly – which intent he had expressed verbally - in no uncertain terms - followed by discharging his firearm, in the direction of the complainant, aiming at him and even following up his first two shots with two further ones, all aimed at the complainant, who was in a lying position at the time.

Court holding at the same time that it was really immaterial to know at which particular body part of the complainant the accused was aiming at in order to assess the intention to kill, in circumstances where the accused had made his intentions verbally clear for all to hear and where he then thereafter just simply failed to achieve his proclaimed purpose, despite pointing the firearm in the direction of the complainant and were the evidence showed that the accused had simply done everything which he set out to do but merely failed to achieve his purpose. What underscored the conclusion that the learned magistrate had totally misdirected himself in acquitting the accused person on the charge of attempted murder was the inference to the drawn from the overall circumstances in which the shooting occurred – The accused was obviously enraged as he had been engaged in a serious physical fight with the complainant in the course of which he had more than one opportunity to stop and leave – yet he chose to go to his vehicle and return with a firearm from which he then discharged four shots in the direction of the complainant at the same time making his intentions clear by stating - ‘I will kill you’ – this he could only have done this with one aim in mind namely to kill his adversary.

Held: To allow the acquittal on the main charge to stand in circumstances were the accused should have been convicted on the main count would not be in accordance with justice.

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Held: That such finding would at the same time mean that the conviction on the lesser charge of assault with intent to do grievous bodily harm should also not be allowed to stand.

Held: That this would be an appropriate case were the review court would be obliged to substitute the conviction of the accused on the lesser charge with a conviction on the more serious one. Accordingly the conviction on the lesser charge of assault with intent to do grievous bodily harm set aside and replaced with a conviction of attempted murder.

Court accordingly setting aside the acquittal of the accused on the main charge and conviction of the lesser charge – replacing same with a conviction of the main count of attempted murder – and – remitting matter back to the court a quo to sentence the accused afresh and for compliance with the provisions of the Arms & Ammunition Act 1996.

State v Michael (CR 38/2014) [2014] NAHCMD 226 (25 July 2014).

Summary: The car the accused was driving along Church Street, Aranos, was involved in an accident. He was arrested at the scene and tendered a plea of guilty to driving under the influence of intoxication liquor.

Held: The question whether the alcohol consumption resulting in being under the influence had affected the accused’s proper handling and control of the vehicle resulting in an accident is pertinent to the charge of driving a motor vehicle while under the influence of intoxicating liquor.

Held: The Magistrate realized he did not ask that question and for that reason he requests the proceedings to be set aside and the matter remitted back to him to properly question the accused.

Held: The conviction and sentence are set aside. The matter is remitted back to the trial Magistrate to properly question the accused in terms of section 112(1)(b) of Act 51/77.

Tangeni v State (CA 8/2012) [2014] NAHCMD 25 (9 April 2014).

Summary: Appellants broke into a shop, stole goods which were recovered as a result of their indications following their footprints. Their identification by footprints is adequate to secure a conviction. Appeal is dismissed.

The State v Adriaan Pienaar (CA 47/2014) [2014] NAHCMD 218 2014).

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Summary: The appellant has appealed against the decision of the magistrate to refuse bail in terms of section 65 of the Criminal Procedure Act 51 of 1977. In appeal, the Court refused to interfere with the ruling of the magistrate and the appeal therefore is dismissed.

The State v Harold Hai-Hauseb (CA 5/2014) [2014] NAHCMD 206 2014).

Summary: The applicant has sought leave to appeal against the acquittal of the respondent on both charges, on the grounds amongst others that the magistrate was wrong and misdirected himself in acquitting the respondent on the evidence presented before him. The Court has granted the applicant (State) leave to appeal against the acquittal of the Assault charge alone.

The State v Kashikuka (CR 35/2014) [2014] NAHCMD 213 (10 July 2014)

Summary: Criminal Law - Accused convicted of attempted murder where an arm was used in the commission of the offence-trial magistrate court failing to apply mandatory provisions of Act 7 of 1996. Upon special review court confirms conviction and sentence and remit record back to that court with an order that accused be summoned to court to enable the learned magistrate to apply s. 10 (6) a and (7) of Act of 1996.

The State v Van Eden (CR 34/2014) [2014] NAHCMD 212 (10 July 2014).

Summary: Criminal procedure – The accused pleaded guilty to counts of assault (read with combating of Domestic Violence Act) and breach of a protection order. He was questioned in terms of s 112(1)(b) of Act 51 of 1977. He was convicted and sentenced to pay a fine of N$300 or in default 8 months imprisonment. When the matter was sent on review it was indicated that the proceedings could not be transcribed nor could the magistrate reconstruct the record. In the result, the court is of the view that the matter should start de novo.

Titus v The State (CA 46/2011) [2014] NAHCNLD 47 (22 July 2014)

Summary – The appellants were charged with theft. Their legal practitioner prepared written statements wherein the appellants pleaded guilty and made certain admissions. No admission was however made that they intended to permanently deprive the owner of its property. The magistrate under these circumstances could not have been satisfied that that the appellants were guilty of the offence to which they had pleaded guilty. The conviction and sentence of both appellants are set aside and the matter is remitted to the court a quo in terms of s 312 of the Criminal Procedure Act, 1977 (Act 51 of 1977).

Uakarenda v The State (CA 61/2009) [2014] NAHCNLD 54 (10 October 2014).

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Summary: The appellant was convicted of raping a 16 year old girl. The complainant was raped by a person wearing his underpants as a mask and the rest of his body was completely naked. The only issue in dispute was whether the state had proven beyond reasonable doubt that it was the appellant who had raped the complainant. The trial court found that the complainant was able to positively identification the appellant as the perpetrator at an parade and was fortified in reaching such a conclusion from the similar fact evidence adduced by the State. The court a quo found that the complainant had seen the perpetrator when he pulled his mask off when he ran away and that she was able to positively identification him at the parade. He further relied on the fact that the appellant was implicated in two other cases where the same approach was used.The complainant’s testimony in respect of her opportunity to observe the perpetrator without his mask was not clear and her description of the perpetrator too general. The parade was held more than a month after the appellant was arrested thus compromising its dependability and credibility. The court a quo furthermore ignored the complainant’s knowledge of facts which fell outside her own personal knowledge. The cumulative effect of the shortcomings in the testimony of the complainant and her subsequent of the appellant at the parade called for a cautious approach to the evaluation of the single evidence of the complainant. The court held that the magistrate erred when he failed to apply caution and found that it was unsafe to rely on the complainant’s of the appellant. The state adduced evidence of previous cases where the appellant allegedly had adopted a similar approach i.e by using a mask when raping other complainant’s. The court held that similar fact evidence is generally inadmissible and will only be admitted in exceptional circumstances. The probative value of the evidence should be such that it outweighs the prejudicial effect of such evidence. In this instance the state adduced hearsay evidence of other cases and the magistrate failed to inform the appellant that he may object to the admissibility of such evidence. In this case the magistrate erred in admitting such evidence and the conviction and sentence were accordingly set aside.

Van der Westhuizen v State (CA 122/2013) [2014] NAHCMD 211 (10 July 2014).

Summary: The appellant was charged with contravening section 127 (a) of Act 11 of 2007. He was convicted and sentenced as charged. Accused appealed and argued that the charge sheet was defective for lack of alleging essential averments to sustain the offence. Held that failure to allege essential averments to sustain the offence highly prejudicial to an undefended appellant. Held further that the conviction was tainted and cannot be allowed to stand. Appeal upheld.

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