UNREPORTED HIGH COURT CRIMINAL JUDGMENTS INDEX 2014( UNREPORTED HIGH COURT CRIMINAL JUDGMENTS INDEX 2014 COMPILED BY: MS. LOTTA AMBUNDA JUDICIAL RESEARCH ASSISTANT DIRECTORATE: 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.
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). 45 Amunyela v The State (CA 66/2009) [2013] NAHCNLD 52 (02 October 2014). 45 Auchumeb v State (CA 44/2012) [2014] NAHCMD 204 (1 July 2014). 45 Coppin v State (CA 47/2013) [2014] NAHCMD 119 (02 April 2014). 45 Eichhoff v State (CA 26/2014) [2014] NAHCMD 154 (9 May 2014) 46 Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27 November 2014). 46 Gawanab v State (CA 132/2013) [2014] NAHCMD 286 (03 October 2014). 47 Gertze v The State (CA 145/2013) [2014] NAHCMD 302 (13 October 2014). 48 Hamupolo v State (CA 40/2013) [2014] NAHCMD 258 (28 August 2014). 48 Haraseb v State (CA 98/2013) [2014] NAHCMD 42 (12 February 2014). 48 Idan v State (CA 34/2014) [2014] NAHCMD 217 (14 July 2014). 49 Joseph v State (CA 148/2013) [2014] NAHCMD 353 (24 November 2014). 49 Kalola v State (CA 50/2014) [2014] NAHCMD 294 (7 October 2014) 50 Kambatuku v State (CA 48/2013) [2014] NAHCMD 41 (12 February 2014). 50 Kapia v The State (CC 09/2008) [2014] NAHCMD 164 (23 May 2014). 50 Kapuire v State (CA 33/2010) [2014] NAHCMD 285 (29 September 2014). 50 Katangolo v State (CA 45-2012) [2014] NAHCMD 28 (30 January 2014). 51 Katjoisikama v State (CA 113/2007) [2014] NAHCMD 25 (29 January 2014). 51 Kauejao v The State (CC 06/2014) [2014] NAHCMD 316 (29 October 2014). 52 Kauzuu v State (CA 107/2013) [2014] NAHCMD 68 (28 February 2014). 52 Kleophas v State (CC 10/2008) [2014] NAHCMD 46 (13 February 2014). 52 Lameck v The State (CC 11/2010) [2014] NAHCMD 347 (14 November 2014). 53 Maova v State (CA 87/2013) [2014] NAHCMD 134 (14 April 2014). 53 Mbwale v S (CC 19/2010) [2014] NAHCNLD 3 (23 January 2014). 53 Moritz v The State (CA 53/2013) [2014] NAHCMD 203 (01 July 2014). 53 Mujime v State (CA 144/2010) [2014] NAHCNLD 39 (11 July 2014). 54 Namiseb v State (CC 19/2011) [2014] NAHCMD 251 (25 August 2014). 54 Ndjukuma v State (CA 57/2011) [2014] NAHCNLD 56 (24 October 2014). 55 Nghinaunye v State (CA 62/2014) [2014] NAHCMD 372 (2 December 2014). 55 Petrus v State (CC 13/2013) [2014] NAHCMD 234 (05 August 2014). 56 Ramseb v The State (CA 05/2013) [2014] NAHCNLD 40 (11 JULY 2014). 56 S v Adams and Another (CC 17/2012) [2014] NAHCMD 90 (19 March 2014) 56 S v Alutale (CR 03/2014) [2014] NAHCNLD 06 (04 February 2014). 56 S v Ananias (CA 34/2013) [2014] NAHCMD 82 (10 March 2014). 57 S v Brandt (CR 9/2014) [2014] NAHCMD 70 (4 March 2014). 57 S v Brandit (CR 11/2014) [2014] NAHCMD 91(19 March 2014). 57 S v Chunga (CC 15/2012) [2014] NAHCNLD 18 (19 March 2014). 58 S v Daniels (CR 31/2014) [2014] NAHCMD 170 (28 May 2014) 58 S v Dausab (CC 38/2009) [2014] NAHCMD 2 (15 January 2014) 59 S v Dresselhaus (CC 12/2005) [2014] NAHCMD 183 (17 June 2014). 59 S v Dias (CC 14/2011) [2014] NAHCMD 323 (31 October 2014). 60 S v Ditshabue (CC 26/2012) [2013] NAHCMD 123 (3 April 2014). 60 S v Frans (CR 2 /2014) [2014] NAHCMD 8 (23 January 2014). 60 S v Hailonga (CC 5-2012) [2014] NAHCMD 235 (22 July 2014). 60 S v Hamukoto (CC 8/2013) [2014] NAHCMD 59 (7 November 2014). 61 S v Hendriks (CA 22/2014) [2014] NAHCMD 215 (14 July 2014). 61 S v Herman (CR 05/2014) [2014] NAHCNLD 9 (13 February 2014). 61 S v Hileni (CR 02/2014) [2014] NAHCNLD 07 (04 February 2014). 62 S v Homses (CC 41/2009) [2014] NAHCMD 36 (06 February 2014) 62 S v Immanuel (CA 53/2013) [2014] NAHCNLD 1 (14 January 2014) 62 S v Jossop (CC 5-2012) [2014] NAHCMD 368 (27 November 2014). 63 S v Mavhengele (CR 07/2014) [2014] NAHCNLD 16 (5 March 2014). 63 S v Mazita (CR 59/2014) [2014] NAHCMD 301 (10 October 2014). 63 S v Mbauka (CR /2014)[2014] NAHCMD 43 (12 February 2014). 64 S v Mbango (CC 19/2012) [2014] NAHCNLD 10 (13 February 2014). 64 S v Mbango (CC 19/2012) [2013] NAHCNLD 13 (27 February 2014). 64 S v Morenga (CA 156-2013) [2014] NAHCMD 360 (26 November 2014). 65 S v Munuma (CC 03/2004) [2014] NAHCMD 363 (27 November 2014). 65 S v Mutilifa (CC 03/2012) [2013] NAHCNLD 45 (16 July 2014). 65 S v Nangolo (CR 26/2014) [2014] NAHCNLD 51 (25 August 2014). 66 S v Nderura (CR 20/2014) [2014] NAHCMD 131 (10 April 2014). 66 S v Ndoke (CR 50/2014) [2014] NAHCMD 263 (29 August 2014) 67 S v Noabeb (CC 3/2012) [2014] NAHCMD 94 (24 March 2014). 67 S v Shipepe (CR 15/2014) [2014] NAHCNLD 30 (08 April 2014). 67 S v Shivute (CC20/2010) [2014] NAHCMD 343 [14 November 2014]. 67 S v Simon (CR 80-2014) [2014] NAHCMD 357 (26 November 2014). 68 S v Tjapa (CC 09-2011) [2014] NAHCMD 367 (27 November 2014). 68 S v Veii (CR 4-2013) [2014] NAHCMD 24 (29 January 2014). 68 Shifela v State (CA 9/2014) [2014] NAHCMD 228 (28 July 2014) 68 Shoombe v State (CA 102/2013) [2014] NAHCMD 62 (21 February 2014). 69 State v Kadhila (CR 39/2014) [2014] NAHCMD 231 (31 July 2014). 69 State v Michael (CR 38/2014) [2014] NAHCMD 226 (25 July 2014). 71 Tangeni v State (CA 8/2012) [2014] NAHCMD 25 (9 April 2014). 71 The State v Adriaan Pienaar (CA 47/2014) [2014] NAHCMD 218 2014). 71 The State v Harold Hai-Hauseb (CA 5/2014) [2014] NAHCMD 206 2014). 72 The State v Kashikuka (CR 35/2014) [2014] NAHCMD 213 (10 July 2014) 72 The State v Van Eden (CR 34/2014) [2014] NAHCMD 212 (10 July 2014). 72 Titus v The State (CA 46/2011) [2014] NAHCNLD 47 (22 July 2014) 72 Uakarenda v The State (CA 61/2009) [2014] NAHCNLD 54 (10 October 2014). 72 Van der Westhuizen v State (CA 122/2013) [2014] NAHCMD 211 (10 July 2014). 73
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).
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 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 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
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).
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 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).
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 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).
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 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 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).
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).
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 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 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 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 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 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 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 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 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).
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 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).
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 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).
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 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 &md