CRIMINAL LAW II

SECOND SEMESTER 2018

Table of Contents
Introduction .......................................................................................................................................................................................... 3
1. Crimes against the State & Administration of Justice ................................................................................................................. 4
1.1 Crimes Against the state .................................................................................................................................................. 4
1.1.1 High Treason .............................................................................................................................................................. 4
1.1.2 Sedition ...................................................................................................................................................................... 5
1.1.3 Public Violence ........................................................................................................................................................... 7
1.2 Crimes against the Administration of Justice .................................................................................................................... 8
1.2.1 Contempt of Court ...................................................................................................................................................... 8
1.2.2 Defeating or obstructing the course of justice ........................................................................................................... 10
1.2.3 Perjury ...................................................................................................................................................................... 12
2. Crimes Against the Community ................................................................................................................................................ 13
2.1 Sexual Crimes ................................................................................................................................................................ 13
2.1.1 Indecent Assault ....................................................................................................................................................... 13
2.1.2 Rape ......................................................................................................................................................................... 15
2.1.3 Sexual Offences against Children............................................................................................................................. 18
2.2 Crimes against Public Welfare ....................................................................................................................................... 21
2.2.1 Drug Offences .......................................................................................................................................................... 21
2.2.2 Corruption ................................................................................................................................................................. 23
2.2.3 Human Trafficking .................................................................................................................................................... 24
2.2.4 Money Laundering .................................................................................................................................................... 26
3. Crimes against Property........................................................................................................................................................... 28
3.1 Crimes relating to Appropriation of Property................................................................................................................... 28
3.1.1 Theft ......................................................................................................................................................................... 28
3.1.2 Robbery .................................................................................................................................................................... 30
3.2 Fraud and Related crimes .............................................................................................................................................. 33
3.2.1 Fraud ........................................................................................................................................................................ 33
3.2.2 Forgery & Uttering .................................................................................................................................................... 33
3.2.3 Uttering ..................................................................................................................................................................... 35
3.3 Crimes Relating to Damage of Property ......................................................................................................................... 37
3.3.1 Housebreaking ......................................................................................................................................................... 37
4. Crimes Against the Person ...................................................................................................................................................... 38
4.1 Crimes against Bodily Integrity ....................................................................................................................................... 38
4.1.1 Common Assault ...................................................................................................................................................... 38
4.1.2 Assault with the intention to do Grievous Bodily Harm.............................................................................................. 39
4.2 Crimes against Life......................................................................................................................................................... 40
4.2.1 Murder ...................................................................................................................................................................... 40
4.2.2 Culpable Homicide ................................................................................................................................................... 41
4.3 Crimes Against Dignity and Reputation .......................................................................................................................... 41
4.3.1 Crimen Injuria ........................................................................................................................................................... 41
4.3.2 Criminal Defamation ................................................................................................................................................. 43
5. General Crimes ........................................................................................................................................................................ 44
5.1 Incitement....................................................................................................................................................................... 44
5.2 Law & Morality................................................................................................................................................................ 45

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 5.2.1 PROSTITUTION ....................................................................................................................................................... 51
5.2.2 SODOMY AND UNNATURAL SEXUAL OFFENCES ............................................................................................... 52
5.2.3 TRAFFICKING.......................................................................................................................................................... 52
5.2.4 PUBLIC INDECENCY............................................................................................................................................... 52
5.2.5 BESTIALITY ............................................................................................................................................................. 52
5.2.6 INCEST .................................................................................................................................................................... 52
5.2.7 VOILATING A GRAVE.............................................................................................................................................. 53
5.2.8 VOILATING A CORPSE ........................................................................................................................................... 53
5.2.9 SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS ...................................................................... 54
5.3 Case Support ................................................................................................................................................................. 54

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Introduction

Criminal liability requirements:

Conduct Definitional Unlawfulness Culpability

(Voluntary) Elements

Act Compliance Contrary to Capacity =

law Appreciate
wrongfulnes
s of the act
Omission Without and act in
justification accordance
with
appreciation

Intention /
Negligence

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1. Crimes against the State & Administration of Justice

1.1 Crimes Against the state

1.1.1 High Treason

Case: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14 September 2015)
A person commits high treason if owing allegiance to the Republic of Namibia, she unlawfully
engages in conduct within or outside of Namibia with the intention of

1. Overthrowing the government

2. Coercing the government
3. Violating, threatening or endangering the existence, independence or security of the republic
4. Changing the constitutional structure of the republic
Criminal Liability of High Treason
An overt act or omission/ treasoness conduct
Ex: Taking up arms; Inviting or facilitating
attacks against Namibia; Joining enemy
Conduct
forces; Causing or taking part in an armed
revolt or rebellion; Replacing the constitution
by force; Failing to report treason etc.
Someone who owes allegiance to Namibia
Complying with the definitional elements Ex: Namibian Citizens; Residents
(permanent; temporary); Domiciled Persons
Defences: Official Capacity (Spy); Coercion;
Unlawfulness
Democratic Disclosure
Hostile Intent
Ex: Aware that they are complying with the
Culpability definitional elements and aware of unlawful
actions + Hostile Intention + Directing will at
action

As in the case:
IN THAT about or between January 1992 and December 2002 and at various places in the
Caprivi Region the accused did unlawfully and with hostile intent against the State and to
undermine the authority of the State, take over the authority of the State, coercing the State by
violence into action or inaction, violating or threatening the existence, independence or security
of the Government;
1. Held various meetings where the coup d’etat was discussed, planned and agreed upon;
2. Plan a violent take-over of the authority of the State in the Caprivi Region, and/or;

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 1.1.2 Sedition
Case: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14 September 2015)
Sedition consists in unlawfully and intentionally taking part in a concourse of people violently or
by threats of violence challenging, defying or resisting the authority of the state of the Republic
or causing such a concourse.
A gathering which is unlawful with intent (not necessarily hostile) to defy or subvert the authority
of the state.
Examples of Seditious Conduct
In that upon or about or between January 1998 and February 2003 and at or near the districts of
Katima Mulilo and /or Grootfontein the said accused did unlawfully and with seditious intent,
participate in a gathering of a number of people, which gathering had the intention to unlawfully
defy, and subvert, challenge, resist and/or assail the authority of the government of the Republic
of Namibia by:
1. Addressing, participating, discussing, planning, supporting and resolving, at various
meetings held on dates the particulars of which are unknown to the State and at several
places in the Caprivi Region and/or Windhoek where it was conspired to undermine the
authority of the State and/or Government of Namibia in the Caprivi Region by means of
force and/or violent means, which meetings had the aim to,
• Recruit persons or encourage persons to flee Namibia for Botswana or other countries to
join or become refugees in such countries, and /or;
• Encourage people to join the secessionist movement whose aim was to separate Caprivi
Region from Namibia, and/or;
• Donate money or other valuables to assist the secessionists in the furthering of their
aims; and/or
• To assist others to leave Namibia by way of providing transport, food, accommodation
and other assistance.
2. Shouting slogans, waving placards, and/or acting in such a manner or use a language in
such a manner or propagate certain viewpoints on political ideas, that would have the effect
of undermining the authority of the State in the Caprivi region or elsewhere in Namibia.’

Criminal Liability of Sedition

Conduct Seditious Conduct in whatever form
By concourse of people challenging, defying
Complying with the definitional elements
or resisting the authority of the state
Defences: Official Capacity (Spy); Coercion;
Unlawfulness
Democratic Disclosure
Intent
Ex: Aware that they are complying with the
Culpability
definitional elements and aware of unlawful
actions + Intention + Directing will at action

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The following paragraphs are important regarding the Same Evidence Test and the Single
Intent Test: 1107 + 1108
[1107] I wish to consider this statement in view of the rule against the duplication of convictions
with regard to the provisions of s 83 of Act 51 of 1977. Two practical aids were developed by the
Courts in order to determine whether there is a duplication of convictions, namely, the ‘same
evidence’ test and the ‘single intent’ test. The same evidence test provides that if the evidence
which is necessary to establish one charge also establishes the other charge, there is only one
charge. The single intent test provides that if there are two acts each of which would constitute
an independent offence but there was one intent and both acts are necessary to realize this
intent, there is only one offence. The elements of the crime of high treason are an overt act,
unlawfully committed, by a person owing allegiance to the State, which possesses majestas,
and hostile intent. Violence is not a necessary element of the crime of high treason. The history
abounds with so-called ‘Bloodless coup d’etat’s’ were governments have been overthrown
without firing one single shot. Nevertheless, the crime of high treason is committed in these
circumstances. Violence however is often inevitable as in the instant case.
[1108] Therefore, if the same evidence test is applied, the evidence necessary to prove high
treason would not necessarily prove the crime of murder and therefore two offences have been
committed. In respect of the single intent test it would appear to me that if that test is applied,
the conclusion would be that more than one offence was committed. Hostile intention may
include an intention to overthrow the State but the crime of high treason is also committed even
in the absence of an intention to overthrow the State, where for instance, the intention was
merely to coerce the governing authority, by force. Hostile intention, in my view, may include the
intention to murder but that will not necessarily be the case, and it will depend upon the
circumstances of a particular case whether hostile intention excluded the intention required to
commit the crime of murder.

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 1.1.3 Public Violence
Case: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14 September 2015)
Public violence consists in the unlawful and intentional commission, together with a number of
people, of an act or acts which assume serious dimensions and which are intended forcibly to
disturb public peace and tranquillity or to invade the rights of others.
People may gather peacefully Article 21(1)(d) assemble peaceably and without arms;
Examples of public violence:
1. Fired several shots in the air and/or
2. Shouted and threatened to kill Chief Simasiku and/or Brian Lubeile Lisepo and/or destroy the
Khuta should he or the Khuta not support the secession of Caprivi from Namibia and/or the
taking over of the authority of the state in Caprivi.’
3. Riots

Criminal Liability of Public Violence

Conduct An Act
By a number of people, which assume
Complying with the definitional elements
serious proportions
Unlawfulness Which is unlawful and
Intentional, including more specifically an
intention to (i) disturb the public peace and
Culpability
order by violent means or
(ii) infringe on the rights of others

As in the case:
IN THAT upon or about the 2nd day of August 1999 and at or near Katima Mulilo the said
accused and other persons, numbering more than 150 or there about, did unlawfully assemble
with common intent to forcibly disturb the public peace or security to invade the rights of other
persons, and the accused and the said persons acting in concert, did then and there unlawfully
and intentionally:
1. Attack members of the Namibian Police at various places; and or
2. Attack members of the Namibian Defence Force; and/or
3. Damage buildings belonging to the Namibian Government; and/or
4. Damage vehicle belonging to the Namibian Government;
5. Fires lots of firearms as well as with mortars and rocket launchers at various places and
persons in the Caprivi Region.’

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1.2 Crimes against the Administration of Justice

1.2.1 Contempt of Court

Case: S v Tjombe (CR 28/2018) [2018] NAHCMD 96 (13 April 2018)
Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority
of a judicial body or a judicial officer in his judicial capacity or publishing information or comment
concerning a pending judicial proceeding which constitutes a real risk of improperly influencing
the outcome of the proceeding or to prejudice the administration of justice in that proceeding
Examples/Types of Contempt of Court

Contempt of court

Contempt ex Facie Curiae - Means

contempt commited "outside the
Contempt in Facie Curiae - Means
face of the court, not in the
contempt of court committed in
presence of the presiding
the face of the court.
officerwhile the court is in
session.

Referring to pending case Not referring to pending case

Commentary on a pending Scandalising the court

Interference with witnesses or Failure to comply with order of

court court

Failng to appear in court Obstructing Court Officials

Simulating process

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 • Publication of information regarding a pending case
• Interference with a witness or presiding officer
• Failure to appear in court
• Scandalising the court
• Failure to comply with a court order
• Obstructing court officials
• Stimulating court officials

Criminal Liability of Contempt of Court

The violation of dignity, etcetera of the judicial
body or judicial officer or the publication of
Conduct
information or commentary concerning a
pending judicial proceeding
Complying with the definitional elements The administration of justice by the courts
Unlawfulness Unlawfully
Culpability Intentionally

• Contempt of court manifests in various forms, some of which have their own
requirements
• Certain cases of contempt of court are dealt with, not by criminal proceedings but by civil
law. I.e. not complying with a court order
• Its perpetration may sometimes call for a drastic procedure in terms of which a judge or
magistrate may convict and punish somebody for contempt of court committed inside the
court in the presence of a judge or magistrate
• Contempt of court only applies only when the attack is made toward the judicial officer in
his official capacity
• The presiding officer may then and there act against him by subjecting him to an
immediate trial for contempt of court and if he is convicted then and there impose
punishment.
As in the case:
A three times request by the trial Court to the accused, a witness on the matter, that he should
leave the Court room and stay outside until he is called in was embarrassingly ignored. This
resulted in him being summarily convicted for Contempt of Court and punished accordingly.

Held: The conduct of the trial Court is appropriate to protect its dignity .

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 1.2.2 Defeating or obstructing the course of justice
Case: State v Kido (CC 14/2015] [2017] NAHCMD 18 (31 January 2017)
The crime of defeating or obstructing the course of justice consists in unlawfully and
intentionally engaging in conduct which defeats or obstructs the course of the administration of
justice.

Criminal Liability of Defeating or obstructing the course of justice

Conduct Conduct
Which amounts to defeating or obstructing,
Complying with the definitional elements
the course of justice and which takes place
Unlawfulness Unlawfully
Culpability Intentionally

 Because it is difficult to prove that the cause of Justice has in fact been defeated it is
customary to charge conduct falling within the ambit of this crime as defeating or obstructing
the course of Justice
 A person can be found guilty on a charge of defeating the ends of justice only if it is proved
that justice has in fact been defeated

As in the case:
[8] After the accused hit the deceased with the iron-piece, the accused unlawfully and
intentionally:
i. Buried the deceased in a warthog-burrow that was nearby,
ii. Threw away the object he used to kill the deceased with (i.e. the iron-piece),
iii. Burnt the belongings of the deceased,
iv. Reported, under oath, to the police that the deceased had gone missing, resulting in a
missing-person file being opened, and resulting in the police undertaking investigations
into the search of the missing person.
[9] In performing the abovementioned acts, the accused intended to:
i. Frustrate or interfere with police investigations into any possible charges that may be
preferred against him,
ii. Conceal the death and/or destroy the evidence of the commission of the offences that
may be preferred against him, and/or
iii. Protect himself from being prosecuted for any crime that may be preferred against
him.

Facts:

• Kido and SK were live-in lovers.

• Sk is the mother of IK (the deceased) and IJK from a different relationship.
• Kido and SK (and the two girls) lived together in a domestic relationship.

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• The accused was employed as a farm labourer and lived near Jakkalsfontein.
• Accused reported to SK that the deceased and her belongings were missing.
• Accused led the police officers to a scene, about 3 km from the house where a badly
decomposed body of the deceased was found.
• Accused was arrested charged and tried with murder, rape, defeating or obstructing the
course of justice and assault with intent to do grievous bodily harm.

Issue: Can the accused be convicted of obstructing or defeating the course of justice and if so,
what sentence would be appropriate for this conviction and how do the courts determine this?
Rule of law: In determining the appropriate sentence to be given the court needs to consider
factors such as: the personal circumstances of the accused, the nature and gravity of the crime,
and the interest of society.
Defeating or obstructing the course of justice - the nature and circumstances in which the crime
was committed:
After the accused hit the deceased with the iron piece, the accused unlawfully and
intentionally:
1. buried the deceased
2. threw away the object he used to kill the deceased with
3. burnt the belongings of the deceased
4. reported, under oath to the police that the deceased had gone missing.
5. n performing the abovementioned acts, the accused intended to:

 Frustrate or interfere with police investigations into any possible charges that may be
against him
 Conceal the death and destroy the evidence of the commission of the offences that may
be preferred against him.
 Protect himself from being prosecuted for any crime that may be preferred against him.
Conclusion
Accused was convicted of defeating or obstructing the course of justice with regard to the
evidence that has been submitted before court, the accused was convicted and received a
prison sentence of 5 years for this crime.

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 1.2.3 Perjury
Case:
Perjury consists in the unlawful and intentional making of a false statement in the course of a
judicial proceeding by person who has taken the oath or made an affirmation before or who has
been admonished by somebody competent to administer or accept the affirmation or
admonition.

Criminal Liability of Perjury

Conduct The making of a declaration
Which is false, under oath or in a form
Complying with the definitional elements equivalent to an oath, in the course of a
judicial proceeding
Unlawfulness Unlawfulness
Culpability Intention

 Must be made falsely

 Perjury can only be committed only if the statement is made in the course of a judicial
proceeding, the judicial proceeding maybe of either a criminal or a civil nature
 Subordination of perjury consist in unlawfully and intentionally inducing another person
to make a false statement on oath, affirmation or a admonition and in the course of a
judicial proceeding which statement is in fact made by the other person

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2. Crimes Against the Community

2.1 Sexual Crimes

2.1.1 Indecent Assault

Case: S v Smit (CA 110/2000) [2012] NAHC 118 (16 May 2012)
Assault of an indecent character. Two basic elements: an assault on a person that is of an
indecent character. The onus is on the state to prove that the accused intended to unlawfully
assault the victim and to assault the victim indecently.

Criminal Liability of Indecent Assault

An act of either assaulting, touch or handling
Conduct
another
Complying with the definitional elements The act or the intention must be indecent
Unlawfulness Unlawfully
Intention Intentionally

Attempted indecent assault is possible.

S v Smit (CA 110-2000) [2012] NAHC 118 (16 May 2012)
Facts:
 The appellant became a father figure to the complainant and her brother and would
assist with their homework and school projects as well as with their basic needs.
 The complainant testified that on the first occasion in July 1997, she and her father went
to a birdcage to attend to a bird and that the appellant followed them and placed his arm
around her back.
 On the second occasion, while doing her school project, she needed a map and the
appellant informed her that he had one at his house. The appellant volunteered to drive
the complainant to his house to collect the map. On their way there, while driving, the
appellant touched the complainant on her upper leg. When they arrived at the house, the
appellant touched her again on her leg. While in the house, the appellant closed and/or
locked the door, pressed the complainant against the door, unzipped her trousers and
touched her pubic hair. Thereupon the appellant forced the complainant to touch his
private parts.
 On the third occasion, the complainant was looking for a video cassette at the
appellant’s house. The appellant took her to his bedroom, locked the door and made her
watch a video different from the one she was looking for. That day the appellant fondled
her breasts.
 On the fourth occasion, again at the appellant’s house, when the appellant’s son went to
the bathroom, the appellant once again forced the complainant’s hand to his private
parts, unzipped her trousers and then touched her private parts.

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  On the fifth occasion when the complainant was looking for her brother who had gone
playing, the appellant gave her a lift in his car and while in the car once again touched
her legs.
Issue:
The central issues for decision in the court below were whether the appellant had perpetrated
the alleged indecent acts on the complainant and whether all the elements of the crime had
been proved.
Defence:

The thrust of the appellant’s defence was that the complainant was influenced by LS, the
appellant’s estranged wife, to ruin his reputation so that custody and control of their minor
children in the then pending divorce matter would instead be awarded to LS. – REJECTED

Judgement:
The crime of indecent assault consists in an assault which by nature or design is of an indecent
character. The State must therefore prove that such indecent assault was unlawful in that no
consent was given.

1. The complainant repeatedly testified that she gave no permission for the indecent acts
perpetrated.
2. The second element of the crime requires that there should be an assault which usually
involves the touching of the part of the body that becomes sexually aroused –
sometimes euphemistically referred to as “private parts”.
3. There is clear evidence that there had been touching of private parts without the
complainant’s consent. Such act is clearly indecent in nature in that it involves some sort
of sexual activity falling short of sexual intercourse, thus satisfying the third element of
the crime. The intentional aspect can be drawn from the fact that the appellant knew that
there will not be anybody at home and upon arrival, closed and or locked the door of the
house to keep any third party out. The repeated indecent assaults on the complainant
over a period of time also indicate such intention.

If he or she gives an explanation, even if that explanation be improbable, the Court is not
entitled to convict unless it is satisfied, not only that the explanation is improbable, but that
beyond any reasonable doubt it is false

The appellant misused the trust and his position to take advantage of the complainant’s
vulnerability. The complainant testified that although she felt violated by the appellant’s
shenanigans, she could not tell anyone immediately at the first incident because she was afraid
that if the appellant’s mother had heard about the allegations, she could have chased the
complainant’s family from her house, thus leaving the family homeless.

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 2.1.2 Rape
Case: S v Pieters (CC 48-2009) [2015] NAHCMD 118 (27 May 2015)
Sexual act means insertion/ penetration even to the slightest into any genital or mouth of a
person; with any part of an object or animal or penis of the person into the other person, or any
form of genital stimulation.

Criminal Liability of Rape

Conduct A sexual act
With another person intentionally under
Complying with the definitional elements
coercive circumstances
Unlawfulness Unlawfully
Intention Intentionally

 The Combatting of Rape Act has turned the common law definition of rape that only
women could be raped, that only men could rape and that rape was only through the
vagina. It now can happen to any gender and either by violation or insertion.
 No marriage or other relationship shall constitute a defence to a charge of rape under
this act
 Coercive circumstances include; physical force, threats verbally or by conduct of the
application of physical force, threats verbally or by conduct other than bodily harm,
where the perpetrator is 3 years older and the complainant is under 14, complainant is
unlawfully detained, circumstances physical and mental incapacity, intoxicating
substance or by sleep where the complainant is incapable of understanding the nature of
the sexual act or cannot communicate consent or unwillingness, sexual act by
misrepresentation, sexual act by fraudulent misrepresentation, circumstance where
more one person is intimidating the complainant.
 A child under 14 years who is charged with a sexual act shall be deemed to have the
same capacity as someone above 14 years.
 Section 5 abolition of cautionary rule relating to offences of a sexual or indecent nature,
the cautionary rule is a rule of practice that aims to assist judges in assessing evidence.
It requires judicial officers to exercise caution before adopting the evidence of certain
witnesses on the ground that the evidence of such witnesses is inherently potentially
unreliable. The rule thus requires the presiding officer to cautiously regard the evidence
of children, complainants in sexual offence cases and accomplices.
 Statutory rape is charged under section 14 of the combatting of immoral practices
act this is for children between the ages of 14 -17 years and the perpetrator is three
years older. Any sexual act performed to a child under 14 years regardless of consent is
rape
 Eino v S (CA 51/2016) [2018] NAHCMD 6 (26 January 2018) Rape –single witness
evidence to be treated with caution but common sense must prevail - two
mutually conflicting versions – the most probable version to be accepted -
medical evidence corroborates rape having occurred – accused guilty as
charged. Held that appeal against conviction and sentence is dismissed.

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The minimum sentences:

Type First Second

Other than intoxication and sleep 5 Years 10 years
Physical force, threats of the application of physical force,
10 Years 20 Years
complainant is unlawfully detained
1. the complainant has suffered grievous bodily or mental
harm as a result of the rape;
2. the complainant -
a. is under the age of thirteen years; or
b. is by reason of age exceptionally vulnerable;
c. the complainant is under the age of eighteen
years and the perpetrator is the complainant’s
parent, guardian or caretaker or is otherwise in a
position of trust or authority over the complainant;
d. the convicted person is infected with any serious 15 Years 45 Years
sexually transmitted disease and at the time of the
commission of the rape knows that he or she is so
infected;
e. the convicted person is one of a group of two or
more persons participating in the commission of
the rape; or
f. the convicted person uses a firearm or any other
weapon for the purpose of or in connection with
the commission of the rape,

S v Pieters
 The accused was convicted of 3 counts of rape contravening section 2 subsection 1 a of the
provisions of the combating of rape Act.
 The accused has a previous conviction of rape and he was convicted during 2012, there is no
substantial and compelling circumstances that exist so the court was obliged to impose a
mandatory sentence the accused is accordingly sentence to a mandatory sentence in respect
of each count.
 The accused was convicted on 1 count of attempted rape referred to as count 1, 1 count of
theft which is count 2, three counts of rape in contravention of the act: count 3, 5 and 7 as well
as count 4 of assault with intent to do grievous bodily harm. All 3 rapes were committed under
coercive of circumstance and on the 3rd count the accused applied physical force to the
complainant. On the 5th and 7th count the accused applied physical force to the complainants
and the complainants were also minors under the age of 13 while the accused was more than
3 years older than them.
 The counsel for the accused argued that the court should take into account that the accused
is serving a long sentence and when imposing sentences, it should put more emphasis on
rehabilitation.
 The Council for the state argued that the accused should be given an appropriate sentence
that reflects the intention of the legislature when it came up with mandatory sentences. The
accused committed heinous crimes therefore he should be met with a punishment that has

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 the potential of the deterring the convicted person and like-minded person from committing
such offences and when necessary to remove them from society for a long time.

Aggravating Circumstances
State v Kido - In this matter the rape took place in the context of a domestic relationship and that
fact constitutes an aggravating factor.
Deviating from minimum circumstances
State v Kido - As a general rule, the court is obliged to consider the cumulative effect of the
sentences to be served. Where the cumulative effect is likely to be disproportionate to the
blameworthiness of the accused, individual sentences may be ordered to run concurrently in order
to ameliorate the cumulative effect of the sentences to be served.8 For the aforegoing reasons I
will order some sentences to run concurrently.
Substantial and Compelling Circumstances
S(2) If a court is satisfied that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the applicable sentence prescribed in subsection (1), it shall
enter those circumstances on the record of the proceedings and may thereupon impose such
lesser sentence.

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 2.1.3 Sexual Offences against Children
Case: S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015)
S v Koch (CC 20/2017) [2018] NAHCMD 290 (18 September 2018)
The person who commits an act of sexual penetration with a child is despite the consent of the
child to the commission of such an act, guilty of the offence of having committed an act of
consensual sexual penetration with a child. The person who commits an act of sexual by your
relation with a child is despite the consent of the child to the commission of such an act guilty of
the offence of having committed an act of consensual sexual violation with a child.

Criminal Liability of Sexual Offences against Children

The commission of an act of sexual
Conduct
penetration/violation
With a person between the ages of 0 to 16
Complying with the definitional elements
years of age
Unlawfulness Unlawfulness
Culpability Intention

Child pornography is pornography that exploits children for sexual stimulation. It may be
produced with the direct involvement or sexual assault of a child or it may be simulated child
pornography or it may be simulated child pornography. Abuse of the child occurs during the
sexual acts or lascivious exhibitions of genitals or pubic areas which are recorded in the
production of child pornography. The only legislation directly addressing child pornography is
the Child Care and Protection Act and it should also be noted that the act is still not usable.
Section 234 (1) (d) this section states a child may not be used to induce, procure, offer allow or
cause a child to be used for purposes of creating child pornography, whether or not for reward.
Section 238 states that a person who has been previously convicted of child pornography may
not work with children.
Even though the Act is criminalising child pornography, the provision is not sufficient and not
consistent with international law. The CPA does not define the term “child pornography”. The
provision itself is too narrow as it only criminalises the creation of child pornography and various
support actions to the creation of child pornography, but fails to criminalise distributing,
disseminating, importing, exporting, offering, selling and possessing of child pornography. With
regards to grooming, section 14 (c) of the Combating of Immoral Practices, Act 21 of 1980,
criminalises solicitation of children under specific circumstances. Even though it is not
specifically mentioning grooming via online space, the provision is broad enough to also be
applicable in the online space.
Further, by virtue of Article 144 we have the African Charter on the Rights and Welfare of
Children, Article 27 of this deals with Sexual Exploitation of children and children must be
protected from sexual activity under coercive or induced circumstances, using children in
prostitution, pornographic materials. Article 34 also deals with inducement and coercion to
engage in sexual activity, prostitution or unlawful sexual practices, using children in
pornographic performances and materials.

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Combating of Immoral Practices Act 21 of 1980
Section 14 of the Act provides that any person who commits or attempts to commit a sexual
offence with a child under the age of sixteen, commits or attempts to commit an indecent act
with a child, entices a child to commit a sexual or immoral act with such a child, who is more
than three years older than such a child or is not married to the child is guilty of an offence.
This section was promulgated to protect young children below the age of consent regardless of
whether they had consented to the act or not. The defences that X had lied to Y about his/her
age and that both X and Y are children may stand in a court, under some circumstances.
S v Nghidini (CC 03-2013) [2015] NAHCNLD 40 (6 August 2015)
Originally, the accused faced 3 Counts of housebreaking with intent to rape and rape read with
the Combating of Domestic Violence Act 4 Of 2003. The state confirmed to charge the accused
with common law rape and not rape in contravention of the combating or Rape Act 8 of 2000
Facts
The accused was the complainant’s uncle. On one account he wanted to open the door so that
he could have sex with her she refused and he pushed the door open, he undressed her and had
sexual intercourse with her after he was done, and before he left, he threatened to beat her if she
would tell anyone about it.
On the other two occasions he came to her hut, opened the door and undressed the complainant
and proceeded to have sexual intercourse with her against her will. She did not report these
incidents to her mother. Her mother took her to the clinic thing something was not right and the
clinic established she was pregnant, only then she told her mother what happened.
The accused did not dispute that he had sexual intercourse with the complainant, he however
denied that it was without consent. His version was that she asked for money and he said that
he would give it to her on terms that they would have sexual intercourse she agreed.
What is agreed upon is that they had sexual intercourse.
Issue
The issues in dispute or whether the complainant consented to sexual intercourse and whether
the accused broke into the hut of the complainant.
Judgement
When the court evaluated the evidence the court was reminded to apply caution to the evidence
of the complainant as she's a single witness in respect of rape. It is trite that uncorroborated
evidence of a single witness is sufficient for a conviction according to Section 208 of the Criminal
Procedure Act 51 of 1977. S v Noble 2002 NR 67 the court quoted ‘Judicial experience of the
inherent danger to convict on the evidence of a single uncorroborated witness evoked a judicial
practice that such evidence be treated with utmost care.’ The court further stated both the
complainant and the accused were poor witnesses.
The complainant however corroborated to some degree the fact that he asked him for money and
that he gave her N$6.00. Although she knew that the accused wanted to enter the room with the
intent to have sexual intercourse the thought of waking her brother next to her or raising alarm
did not crossed her mind the complainant withheld information after sexual intercourse from my
mother because she was threatened however she continue to with wall information after the

Page | 19
mother created a secure environment the complainant furthermore testified that should no reason
at all with help the fact that the accused had sexual intercourse with her on two occasions
In terms of the common law consensual sexual intercourse with a girl between the ages of 12 and
16 years does not constitute rape but a contravention of Section 14 of the Combating of
Immoral Practices Act 21 of 1980 which reads as follows
The accused in view of the above cannot therefore be convicted of common law rape, it stands
to reason that the court given its evaluation of the evidence and cannot reject the version of the
accused that the complainant opened the door for him and had consensual sexual intercourse
with him as false. The state thus did not prove beyond reasonable doubt that the accused is guilty
of the three counts of housebreaking with intent to rape and rape. This reasoning was based on
Section 261 (1)(e) of the CPA, which basically states that if evidence of rape or attempted
rape does not prove rape or attempted rape the person may still be found guilty of unlawful
intercourse with a girl under a specified age, committing an immoral or indecent actor
soliciting or enticing of such act.
The court found however that the state did proof beyond reasonable doubt that the elements of
the statutory offence I eat that the accused had contravene section 14 of the combating of the
moral practices act as amended in that he committed the sexual act with a child under the age of
16 or three separate occasions that he was more than 3 years older than the complainant and
not married to her.
On all three accounts that used was found not guilty of housebreaking with intent to rape and rape
but is convicted of having contravened Section 14 of the Immoral Practices Act 21 of 1980 as
amended which is a competent verdict on account of common law rape.

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 2.2 Crimes against Public Welfare

2.2.1 Drug Offences

Case: S v Paulo (CC-102009) [2011] NAHCMD NR (23 February 2011)
Mayawoula v The State (CA 6-2015) [2015] NAHCMD 97 (09 March 2015)

Criminal Liability of Drugs

The act that is possession or use of;
Conduct
dealing
Complying with the definitional elements A drug
Unlawfulness Unlawfully
Culpability Intentionally

Three Categories of drugs

1. Dependence-producing drugs substances
2. Dangerous dependence-producing substances
3. Undesirable dependence-producing substances
General

 The concept of ‘possession’, when used in a penal statute, comprises two elements, a
physical element (corpus) and a mental element (mens rea)
 The physical element consists in an appropriate degree of physical control over the thing
 The mental element relates to the intention with which somebody exercises control over
something
 Attempt to possess is possible
 Must prove that there was a ‘dealing in’
Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971
(RSA)
Section 2 Notwithstanding anything to the contrary in any law contained, any person -
(a) who deals in any prohibited dependence-producing drug or any plant from which such
dependence-producing drug can be manufactured; or
(b) who has in his possession or uses any such dependence-producing drug or plant; or
(c) who deals in any dangerous dependence-producing drug or any plant from which such
drug can be manufactured; or
(d) who has in his possession or uses any dependence-producing drug or plant referred
to in paragraph (c), shall be guilty of an offence and liable on conviction

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The minimum sentences:

Type First Second

A fine not Fine not
exceeding R30 exceeding R50
1. Who deals in any prohibited dependence-producing
000 or to 000 or to
drug or any plant from which such dependence-
imprisonment imprisonment
producing drug can be manufactured; or
for a period not for a period not
2. Who deals in any dangerous dependence-producing
Exceeding 15 exceeding 25
drug or any plant from which such drug can be
years or to years or to
manufactured;
both such fine both such fine
and such and such
imprisonment; imprisonment;
A fine not
To a fine not
exceeding R20
exceeding R30
000 or to
000 or to
1. Who has in his possession or uses any such imprisonment
imprisonment
dependence-producing drug or plant; or for a
for a period not
2. Who has in his possession or uses any dependence- Period not
exceeding 15
producing drug or plant referred to in paragraph (c), exceeding 10
years or to
shall be guilty of an offence and liable on conviction years or to
both such fine
both such fine
and such
and such
imprisonment
imprisonment;
To a fine not
exceeding R20
000 or to
imprisonment
1. Who deals in any potentially dangerous dependence- for a period not
producing drug; or exceeding 10
Years or to
both such fine
and such
imprisonment;
To a fine not
exceeding R10
000 or to
imprisonment
2. Who uses or has in his possession any drug referred for a period not
to in paragraph (a), exceeding 5
Years or to
both such fine
and such
imprisonment.

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 2.2.2 Corruption
Case:
In general, corruption is a form of dishonesty or criminal activity undertaken by a person or
organization entrusted with a position of authority, often to acquire illicit benefit.

Criminal Liability of Corruption

Conduct The acceptance or giving
Complying with the definitional elements Of gratification; in order to act a certain way
Unlawfulness Unlawfully
Culpability Intentionally

 “gratification” includes -
(a) money or any gift, loan, fee, reward, commission, valuable security or property or
interest in property of any description, whether movable or immovable;
(b) any office, dignity, employment, contract of employment or services and any
agreement to give employment or render services in any capacity;
(c) any payment, release, discharge or liquidation of any loan, obligation or other liability,
whether in whole or in part;
(d) any valuable consideration or benefit of any kind, any discount, commission, rebate,
bonus, deduction or percentage;
(e) any forbearance to demand any money or money’s worth or valuable thing;
(f) any service or favour, including protection from any penalty or disability incurred or
apprehended or from any action or proceedings of a disciplinary, civil or criminal nature,
whether or not already instituted, and including the exercise or the forbearance from the
exercise of any right or any official power or duty;

Types of corruption
 Offence of corruptly accepting gravitation – S33
 Offence of corruptly giving gratification - S34
 Corruptly accepting gratification by or giving gratification to the agent - S35
 Corrupt acquisition of private interest by public officer – S36
 Corruption in relation to tenders – S37
 Bribery of public officer – S38
 Corruption of witnesses – S39
 Bribery of foreign public officials – S40
 Bribery in relation to auctions – S41
 Bribery for giving assistance in relation to contracts - S42
 Corruptly using office or position for gratification – S43
 Corruption in relation to sporting events – S44
 Dealing with using holding receiving or concealing gratification in relation to any offence
– S45

Penalty – N$ 500 000 or 25 years’ imprisonment or both

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 2.2.3 Human Trafficking
Case: S v Lukas (CC 15/2013) [2015] NAHCMD 124 (2 June 2015)
Trafficking in Persons means the recruitment, transfer, harbouring or receipt of persons by
means of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over another person, for
the purpose of exploitation and includes any attempt, participation or organising of any of these
actions. Exploitation includes, at a minimum, the exploitation or the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs; and - POCA
15. Any person who participates in or who aids and abets the trafficking in persons, as
contemplated in Annex II of the Convention, in Namibia or across the border to and from foreign
countries commits an offence and is liable to a fine not exceeding N$1 000 000 or to
imprisonment for a period not exceeding 50 years. – POCA
Section 15(a), (c) and (d), read with s 1 of POCA and read further with Article 3 (a) of Annexure
11 of the United Nations Convention Against Transnational Organized Crime and Protocols
thereto, adopted by General Assembly Resolution 55/25 of 15 November 2000 (the ‘Protocol’).
See further State v Lukas (CC 15/2013) [2015] NAHCMD 124 (2 June 2015), paras 4-6.

Criminal Liability of Human Trafficking

The recruitment, transfer, harbouring or
Conduct
receipt of persons
By means of the threat or use of force or
other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve
Complying with the definitional elements
the consent of a person having control over
another person, for the purpose of
exploitation and includes any attempt,
participation or organising of any of these
actions.
Unlawfulness Unlawfully
Culpability Intentionally

S v Lukas
[4] Trafficking in persons is defined in s 1 of the POCA as:
‘The recruitment, transfer, harbouring or receipt of persons by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the purpose
of exploitation and includes any attempt, participation or organising of any of these
actions. Exploitation includes, at a minimum, the exploitation or the prostitution of others

Page | 24
 or other forms of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs’.
[5] Section 15 of the POCA makes it an offence for anyone to participate in or to aid and
abet the trafficking of persons in Namibia as contemplated in Annex II of the Convention. Article
3 of Annex II reads:
‘For the purposes of this Protocol:
a) “Trafficking in persons” shall mean the recruitment, transportation, transfer,
b) harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent
of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or practices similar
to slavery, servitude or the removal of organs;
o The consent of a victim of trafficking in persons to the intended exploitation set
c) forth in subparagraph (a) of this article shall be irrelevant where any of the means set
forth in subparagraph (a) have been used;
o The recruitment, transportation, transfer, harbouring or receipt of a child for the
d) purpose of exploitation shall be considered “trafficking in persons”, even if this does not
involve any of the means set forth in subparagraph (a) of this article;
o “Child” shall mean any person under eighteen years of age.’
[6] As is apparent, the POCA adopts the UN Convention on ‘trafficking in persons' for what
constitutes the offence of ‘trafficking in persons’ under Namibian law. In the context of the case
before me, according to Art 3 (a) of Annexure II of the Convention, trafficking in persons, inter
alia, involves the recruitment by means of the abuse of a position of vulnerability of the victim or
of giving of payments or benefits to the victim for the purpose of exploitation. Under the same
provision, ‘exploitation’ includes the exploitation of the prostitution of others or other forms of
sexual exploitation. Crucially, under Art 3(b), the consent of a person being trafficked for the
purpose of exploitation is irrelevant where the means deployed by the perpetrator is abuse of a
position of vulnerability or the giving of payments or benefits for the purpose of exploitation.
According to Art 3(c), the recruitment of a child for the purposes of exploitation ‘shall be
considered' as 'trafficking in persons’ even if it does not involve any of the means through which,
under sub-paragraph (a) exploitation is achieved. Thus, to constitute trafficking of a child for
purpose of sexual exploitation, all the prosecution need to allege and prove is (a) the fact of
recruitment and (b) the fact of the sexual exploitation. In other words, when a child is involved,
how the alleged perpetrator went about doing that is of no moment; and rightly so.
Convicted on counts of trafficking

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 2.2.4 Money Laundering
Case:
Financial Intelligence Act 13 of 2012
“money laundering” or “money laundering activity” means -
(a) the act of a person who -
(i) engages, directly or indirectly, in a transaction that involves proceeds
of any unlawful activity;
(ii) acquires, possesses or uses or removes from or brings into Namibia
proceeds of any unlawful activity; or
(iii) conceals, disguises or impedes the establishment of the true nature,
origin, location, movement, disposition, title of, rights with respect to,
or ownership of, proceeds of any unlawful activity;
where -
(aa) as may be inferred from objective factual circumstances, the
person knows or has reason to believe, that the property is proceeds
from any unlawful activity; or
(bb) in respect of the conduct of a person, the person without
reasonable excuse fails to take reasonable steps to ascertain whether
or not the property is proceeds from any unlawful activity; and
(b) any activity which constitutes an offence as defined in section 4, 5 or 6 of the
Prevention of Organised Crime Act;
Prevention of Organised Crime Act 29 of 2004
Disguising unlawful origin of property
4. Any person who knows or ought reasonably to have known that property is or forms part of
proceeds of unlawful activities and -
(a) enters into any agreement or engages in any arrangement or transaction with
anyone in connection with that property, whether that agreement, arrangement or
transaction is legally enforceable or not; or
(b) performs any other act in connection with that property, whether it is performed
independently or in concert with any other person,
and that agreement, arrangement, transaction or act has or is likely to have the effect -
(i) of concealing or disguising the nature, origin, source, location, disposition
or movement of the property or its ownership, or any interest which
anyone may have in respect of that property; or
(ii) of enabling or assisting any person who has committed or commits an
offence, whether in Namibia or elsewhere -
(aa) to avoid prosecution; or (bb) to remove or diminish any property acquired directly, or
indirectly, as a result of the commission of an offence, commits the offence of money
laundering.

Page | 26
Assisting another to benefit from proceeds of unlawful activities
5. A person who knows or ought reasonably to have known that another person has obtained
the proceeds of unlawful activities, and who enters into an agreement with anyone or engages
in any arrangement or transaction whereby -
(c) the retention or the control by or on behalf of that other person of the proceeds of
unlawful activities is facilitated; or
(d) the proceeds of unlawful activities are used to make funds available to that other
person or to acquire property on his or her behalf or to benefit him or her in any
other way, commits the offence of money laundering.
Acquisition, possession or use of proceeds of unlawful activities
6. Any person who -
(a) acquires;
(b) uses;
(c) has possession of; or
(d) brings into, or takes out of, Namibia,
property and who knows or ought reasonably to have known that it is or forms part of the
proceeds of unlawful activities commits the offence of money laundering.

Criminal Liability of Money Laundering

Conduct
Complying with the definitional elements
Unlawfulness
Culpability

The Placement Stage: during which the proceeds are moved away from the place where they
were obtained and placed in the financial system through financial institutions
They Layering Stage: during which the money in the form of electronic funds is distributed by
layering transactions on top of each other by example efts, shell companies and false invoices.
The Integration Stage: during which the money is collected and made available under the guise
of legitimate income
Essential elements:
The accused must know or ought reasonably to have known that property forms part of the
proceeds of unlawful activities
The accused must enter into agreement, arrangement or transaction or perform any act in
connection with above mentioned property which has or is likely to have a certain effect:

• To conceal the nature of and dealings with the proceeds of crime

• Of assisting a person who committed a crime to avoid prosecution or to remove or
diminish property acquired as a result of criminal activity

Page | 27
 3. Crimes against Property

3.1 Crimes relating to Appropriation of Property

3.1.1 Theft
Case: Anghuwo v S (CA 58/2017) [2018] NAHCMD 323 (16 October 2018)
A person commits theft if he unlawfully and intentionally appropriates movable, corporeal
property which
i. belongs to and is in the possession of another
ii. belongs to another but is in the perpetrators own possession or
iii. belongs to the perpetrator but is in another possession and such other person has a
right to possess it would you legally prevailed against the perpetrators own right of
possession
provided that the intention to appropriate the property includes an intention to permanently
deprive the person entitled to the possession of the property.

Criminal Liability of Theft

Conduct An act of appropriation
Complying with the definitional elements In respect of a certain type of property,
Unlawfulness Unlawfulness
Culpability Intention + intention to appropriate

Forms of theft
 Removal of property: Ordinary theft, when one person appropriates property that does
not belong in their possession, with the intention of keeping it permanently.
 Embezzlement: X commits this form of theft if he appropriate Y’s property which
happens to be already to be in X’s possession.
 Arrogation of Possession: X commits this form of theft if he takes his own property
from the possession of Y, who has a right to its possession which prevails against the
owner
 Theft of credit including the unlawful appropriation of trust funds: X commits this
form of theft if he steals money in the form of credit.
Property includes:
 Property must be movable
 Property must be corporeal
 Property must be of economic value
 Property must be able to owned
Anghuwo v S (CA 58/2017) [2018] NAHCMD 323 (16 October 2018)

Page | 28
From the facts of the matter it is credibly clear that the appellant and his co-accused acted in
common purpose to steal the complainant’s cell phone and I-phone. This conduct is displayed
by their simultaneous actions i.e., when the appellant was asking for time and requesting to be
shown the watch twice and more his co-accused was busy removing the properties from the
vehicle. After their task has been accomplished, they walked away, the appellant looking back
at the complainant to see what he was doing at his vehicle

Intention

Intention to
Awareness Directing one's will
appropriate

Intention to deprive
Act of
ownership of lawful
Appropriation
owner

Intention to
Property
excrcise ownership

Permanently
Unlawfulness
deprive

Page | 29
 3.1.2 Robbery
Case: S v Namashongo (CC 05/2013) [2017] NAHCNLD 5 (06 February 2017);
S v Amukoto (CR 01-2016) [2016] NAHCMD 6 (21 January 2016)
S v Kauaria (CC 11/2011) [2018] NAHCMD 13 (01 February 2018)
Robbery consist in theft of property by unlawfully and intentionally using
i. violence to take the property from somebody else or
ii. threats of violence to induce the possessor of the property to submit to taking of the
property

Criminal Liability of Robbery

Conduct The theft of property
Through the use of either violence or threats
Complying with the definitional elements of violence and a causal link between the
violence and the taking of the property
Unlawfulness Unlawfulness
Culpability Intention + intention to appropriate

 A form of aggravated theft

 Aggravated robbery or attempted robbery, means -
ii. the wielding of a fire-arm or any other dangerous weapon;
iii. the infliction of grievous bodily harm; or
iv. a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when the offence is committed, whether
before or during or after the commission of the offence;
 A person is guilty of attempting to commit a crime if he/she, intending to do so, unlawfully
engages in conduct that is not merely preparatory but has also reached at least the
commencement of the execution of the intended crime. A person is equally guilty of
attempting to commit a crime even though the commission of the crime is impossible, if it
would have been possible in the factual circumstances which he/she believes exist or will
exist at the relevant time. A person will also be guilty of an attempt even when he/she
voluntarily withdraws from its commission after his/her conduct has reached the
commencement of the execution of the intended crime. The stage of commencement of
execution is also called the stage of consummation. Once this stage is reached, 'attempt' at
a crime is complete.
 Robbery can be committed even though there is no real threats violence directed at Y.
 A threat should comply with the following requirements
o A threat must be of physical violence
o The threat must be one of immediate violence.
o The threat must be against Y himself,
 If violence precedes the taking it amounts to theft and violence

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S v Namashongo
Facts:
• The accused awaited for other surrounding cucashops to close before he went to rob,
armed with an axe and a pocket knife.
• The two victims were vulnerable girls who were surprised in the room in which they were
sleeping in adjacent to the cucashop that was robbed.
• Accused forced the girls to give him the key to the cucashop opened the door to the
cucashop and took cash and property to the value of N$5000.00.
• Accused was indicted for housebreaking with intent to rob and robbery with aggravating
circumstances.
• He pleaded guilty and submitted a statement where he admits to his guilt.
• The court found strong mitigating factors and considered the time that the accused was
incarcerated awaiting trial.
• The sentence was individualised and partially suspended.

Judgement:
• The accused was found guilty of housebreaking with intent to rob and robbery with
aggravating circumstances. He was sentenced to 6 years’ imprisonment of which 3 years
are suspended on condition that the accused is not convicted for housebreaking with the
intent to rob and robbery committed during the period of suspension.

Attempted robbery
S v Amukoto
Facts:
• This case is on review.
• A query was directed to the magistrate enquiring whether the conviction was proper in
view of the circumstances in which the crime was committed, and whether the accused
did not essentially plead guilty to attempted robbery.
• The magistrate conceded that the accused unsuccessfully attempted to steal cash.
• He should not have been convicted of the completed offence of robbery.
• Particulars of the charge: accused unlawfully and intentionally forced the complainant
at her work place with intent to steal and attempted to take cash in lawful possession of
the complainant.
• Accused was employed as a security officer at Task mobile
• Complainant was a supervisor and cashier at the same company.
• Accused unexpectedly attacked the complainant by hitting her with fists, strangled her and
covered her mouth and nose with his hands.

Page | 31
• Complainant managed to get away.
• Accused aimed at stealing the cash in the safe whereupon the complainant did not have
the key of the safe on her.
Issue: Whether or not the accused should be convicted of attempted robbery or robbery.
Rule of law and application:
• The elements of the crime of robbery are: (a) theft of property; (b) through the use of
violence or threats; (C) a causal link between the violence and the taking of the property;
(d) unlawfulness and (e) intention.
• The accused in the instance intended through violent means to take possession of cash
under control of the complainant but he was unsuccessful only because he could not
obtain access to the safe. Thus, except for the act of appropriation, all the remaining
elements were present.
• S v Agliotti: ‘A person is guilty of attempting to commit a crime if he/she, intending to do so
unlawfully engages in conduct that is not merely preparatory but has also reached at least
the commencement of the execution of the intended crime. A person is equally guilty of
attempting to commit a crime even though the commission of the crime is impossible, if it
would have been possible in the factual circumstances which he/she believes exist or will
exist at the relevant time. A person will also be guilty of an attempt even when he/she
voluntarily withdraws from its commission after his/her conduct has reached the
commencement of the execution of the intended crime.
Conclusion:
• The conviction is set aside and substituted with that of attempted robbery.
• The sentence is set aside and substituted with the following: 3 years imprisonment of
which 1 year is suspended for 5 years on condition that the accused is not convicted of
robbery, theft or assault, committed during the period of suspension.

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 3.2 Fraud and Related crimes

3.2.1 Fraud
Case: S v Majiedt (CA 57/2011) [2011] NAHC 367 (16 December 2011)
Fraud is the unlawful, and intentional making of a misrepresentation which causes actual
prejudice or which is potentially prejudicial to another.

Criminal Liability of Fraud

Conduct A misrepresentation
Complying with the definitional elements Prejudice or potential prejudice
Unlawfulness Unlawfulness
Culpability Intention

• There must be misrepresentation or a perversion or distortion of the truth

• This can be express or implied
• The must be a real or potential prejudice, if the prejudice is not proven X can still be
convicted
• Potential Prejudice means that the misrepresentation looks at objectively involved some
risk of pressures and that it was likely to prejudice
• X must firstly be aware of the fact that the representation is false
• There is a distinction between an intention to deceive and an intention to defraud the
former means and intention to make somebody believe that something which is in fact
false is true the latter means the intention to induce somebody to embark on a cause of
action prejudicial to herself as a result of the misrepresentation.
• It is this latter intention which must be established in order to convict somebody of fraud.
The mere telling of lies which the teller thereof does not believe the person to whom they
are told will act upon is not fraud. The intention to defraud includes the intention to
deceive but the latter does not include the former if their intention to defraud is present
x’s motive is immaterial no intention to acquire some advantage is required
S v Van Wyk (CC 7/2017) [2018] NAHCMD 11 (31 January 2018)
Summary: The accused pleaded guilty to 288 counts of fraud and convicted accordingly. The
amount involved is N$ 1 604 217 60 but the complainant suffered the actual loss of N$ 1 557
172 24. The accused was employed as a team leader by the complainant. Accused committed
fraud by using passwords and user IDS of his colleagues and transferred money into his own
accounts and that of his friends, relatives and acquaintances. He later withdrew the money for
his own benefit. The accused took advantage of his position of trust bestowed upon him and
engaged in fraudulent activities over a period of two years and seven months. Offences are
premeditated. These are aggravating factors against the accused. Accused’s plea of guilty
coupled with genuine remorse factors that weigh heavily in his favour and may lead to a
reduction in sentence. White collar crimes are seen in a serious light by the Courts and call for
deterrent sentences.

3.2.2 Forgery & Uttering

Case: S v Luhepo (CR 12/2014) [2014] NAHCNLD 23 (24 March 2014)

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Forgery consists in unlawfully and intentionally making a false document to the actual or
potential prejudice of another

Criminal Liability of Forgery

Conduct Making of a document
Complying with the definitional elements Which is false and prejudicial
Unlawfulness Unlawfulness
Culpability Intention + Intention to defraud

• Forgery is merely a species of fraud.

• In Forgery misrepresentation takes place by way of the falsification of a document. The
difference between fraud and forgery is fraud is completed only when the Miss
representation has come to the notice of the representee, forgery is completed the
moment the document is falsified. If the document is then brought to the attention of the
others as separate crime is committed namely the uttering the document

As in the case:
[1] The accused appeared in the magistrate’s court Oshakati on charges of forgery (count 1);
uttering (count 2); and uttering or using a forged or fabricated certificate or document which had
not been issued by lawful authority in contravention of s 56 (e) of Act 7 of 1993 (count 3).
Despite having pleaded not guilty he was convicted at the end of the trial as charged.

[8] The elements of the statutory offence include all the elements of the common law offence of
uttering with the only distinction that the statutory offence requires that the permit, certificate or
document has not been issued by lawful authority or which though issued by lawful authority,
such person is not entitled to use.

S v Kandjeke (CR 22/2014) [2014] NAHCNLD 35 (28 April 2014)

[4] In S v Gaseb 2000 NR 139 (SC), O'Linn AJA at p 159 E-I approved of Hannah J's
judgment in S v Seibeb; S v Eixab, where the learned judge stated as follow:

'There is no single test. This is so because there are a large variety of offences and each has its
own peculiar set of facts which might give rise to borderline cases and therefore to difficulties.
The tests which have been developed are mere practical guidelines in the nature of questions
which may be asked by the Court in order to establish whether duplication has occurred or not.
These questions are not necessarily decisive (S v Grobler en 'n Ander (supra); R v Kuzwayo
1960 (1) SA 340 (A)).
The most commonly used tests are the single intent test and the same evidence test.
Where a person commits two acts of which each, standing alone, would be criminal, but does so
with a single intent, then he ought only to be indicted for, or convicted of, one offence because
the two acts constitute one criminal transaction. See R v Sabuyi 1905 TS 170 at 171. This is the
single intent test. If the evidence requisite to prove one criminal act necessarily involves proof of
another criminal act, both acts are to be considered as one transaction for the purpose of a
criminal transaction. But if the evidence necessary to prove one criminal act is complete without
the other criminal act being brought into the matter, the two acts are separate criminal offences.
See Landsdown and Campbell South African Criminal Law and Procedure vol V at 229, 230 and
the cases cited. This is the same evidence test.’

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[5] In this instance the evidence necessary to establish uttering the forged document was
the same evidence required to prove fraud i.e that the accused knowingly submitted the forged
document to the Insurance Company with the intention to defraud it. Under these circumstances
a conviction of the more serious offence should follow and the conviction and sentence of
uttering should be set aside.

3.2.3 Uttering
Case: The State v Kamati (CR 39/2013) [2013] NAHCMD 234 (5 August 2013)
Uttering consists in unlawfully and intentionally passing of a false document to the actual or
potential Prejudice of another

[1] The particulars of the charge were that on or about 18 January 2012 at or near
Keetmanshoop the accused unlawfully, falsely and with intent thereby to defraud, and to the
prejudice of Angala Filipus, offered, uttered and put off a forged document, to wit a driver’s
licence well knowing it to have been forged.
[2] The accused pleaded guilty to the charge. In the course of questioning by the magistrate
under s 112 Act 51 of 1977, the accused acknowledged that he had presented a driver’s licence
to police at a roadblock, knowing that it was forged. He admitted that he did so with a view to
deceive the police officer at the roadblock. He proceeded to admit the other elements of the
offence.
[15] It is trite that there is no single test when determining whether or not a duplication of
convictions has taken place and the tests which have been developed by the courts serve as
practical guidelines only (S v Seibeb and Another; S v Eixab 1997 NR 254 (HC). The two tests
most commonly used are the single intent test and the same evidence test (S v Benjamin en ‘n
Ander 1980 (1) SA 950 (A). When two separate offences were committed with a single intent and
were part of one continuous transaction, there is only one offence. This is referred to as the ‘single
intent test’. When the offences differ from one another in their elements but the same evidence
would prove both offences, there is only one offence and this is referred to as ‘the same evidence
test’.
[16] When applying the aforementioned tests to the present circumstances, we are satisfied
that, in respect of both tests, there was but only one offence committed. The convictions on both
count 2 and 3 therefore constituted an improper duplication of convictions. Bearing in mind the
motive behind the accused’s uttering of a falsified birth certificate ie to legalise his unlawful stay
in Namibia, we are of the view that, in the present circumstances, it is appropriate to convict the
accused of the statutory offence of uttering a certificate which has not been issued by lawful
authority in contravention of s 56 (e) of Act 7 of 1993, opposed to the common law offence of
uttering.
S v Kandjeke (CR 22/2014) [2014] NAHCNLD 35 (28 April 2014)

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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.

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 3.3 Crimes Relating to Damage of Property

3.3.1 Housebreaking
Case: The State v Mangate (CR 36/2012) [2013] NAHCMD 154 (7 June 2013)
Housebreaking with the intent to commit a crime consists in unlawfully and intentionally
breaking into and entering a building or structure with the intention of committing some crime in
it.

Criminal Liability of Housebreaking

Conduct Breaking and entering
Complying with the definitional elements A building or structure
Unlawfulness Unlawfully
Culpability Intentionally

 Housebreaking alone is not a crime, it goes along with another crime

 Housebreaking with the intent to steal, is a crime in its own right X can still be charged
with two crimes i.e. housebreaking with the intent to steal and theft.
 The structure which might be ordinarily used for human habitation or for the storage or
housing property
 Intention: Must have intention of unlawfully breaking into and entering the house or
structure and must have at the time of housebreaking have the intention of committing
another crime
 S v Paulus (CR 01-2012) [2012] NAHC 5 (20 January 2012) The accused was
convicted in the magistrate’s court of the crime of housebreaking with intent to commit a
crime unknown to the State
 The State v Mangate (CR 36/2012) [2013] NAHCMD 154 (7 June 2013) - The accused
charged with housebreaking with intent to steal and theft but convicted of theft – on
review the conviction of theft has been substituted with a conviction of housebreaking
with intent to steal and theft due to failure of the accused to explain possession of goofs
removed from the house of complainant during the housebreaking.

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 4. Crimes Against the Person

4.1 Crimes against Bodily Integrity

4.1.1 Common Assault

Case: Joel Shaende v State (99/2016) [2016] 66 NAHCNLD (29 July 2016);
S v Waterboer (CC 16/2009) [2013] NAHCMD 148 (4 June 2013)
Assault consists in any unlawful and intentional act or omission which results in another
person’s bodily integrity being directly or indirectly impaired or which inspires a belief in another
person that such impairment of bodily integrity is immediately to take place.

Criminal Liability of Common Assault

Conduct which results in another person’s
bodily integrity being impaired or the inspiring
Conduct
of a belief in another person that such
impairment will take place
Complying with the definitional elements
Unlawfulness Unlawfulness
Culpability Intentionally

 Most common way is by application of force by X to Y’s body.

 Direct application: When X applies physical force with a part of his body to Y’s Body
thereby striking or touching a part of Y’s body. Subject to the de minimus rule the
slightest contact with Y’s body may be sufficient to constitute the crime. Nghinaunye
case
 Indirect application: Force can be applied indirectly. When X does not use part of his
body to apply force to a part of Y’s body but uses an instrument or other strategy for this
purpose i.e. throws a stone or hits them with a stick. S v Marx
 Since the slightest touch can amount to assault, it is not a requirement of the crime that
X should injure Y.
 The assault can be administering poison to Y. The South African court in A 1993 this
constitutes a violation of Y’s physical integrity any for used regardless of what is used.
 Assault may be committed through the instrumentality of a third party. If X orders Z to
assault Y, X is guilty of assault
 Inspiring fear that force will be applied: If X inspires fear or believe in Y that force is
immediately to be applied
o Must be against the person
o The threat of violence must be immediate and not in the near future.

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 o The test is that a subjective would believe the threat to happen and X was able to
do. Y’s state of mind
o Words are sufficient to constitute violence
o Fear depends on person to person, the fear need not be reasonable.
 X must have intended to apply force to the person or threaten with immediate violence,
implies X must have been aware of Y’s fear. Dolus Eventualis is sufficient but not
negligence.

4.1.2 Assault with the intention to do Grievous Bodily Harm

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

Criminal Liability of GBH

Conduct which results in another person’s
bodily integrity being impaired or the inspiring
Conduct
of a belief in another person that such
impairment will take place
Complying with the definitional elements
Unlawfulness Unlawfulness
Intentional + Intention to do grievous bodily
Culpability
harm

 Whether X in fact had intent to do grievous bodily harm is a factual question.

 Factors taken into account:
o The nature of the weapon
o The way it was used
o The degree of violence used
o The part of the body aimed at
o Persistence of the attack
o The nature of the injuries
o S v Tazama 1992 NR 190 (HC) at 191I – 192B that the intent to harm can be
deducted from the following factors:
▪ The nature of the weapon or instrument used;
▪ the degree of force used by the accused in wielding that instrument or
weapon;
▪ the situation on the body where the assault was directed, and
▪ the injuries actual sustained by the victim of the assault if any
 Dolus eventualis is sufficient
 Threat infliction also counts as in common assault.
 Assault with the intent to commit another crime is possible, most of the other crimes
amount to attempt
 If intention was to cause GBH but result in no or minor harm, then it will be a conviction
GBH due to intention
 If intention was to cause minor harm but results in GBH then conviction will be common
assault due to intention

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 o Assault with intent to do grievous bodily harm – Essential elements – Assault –
Committed with intent to do grievous bodily harm – Crime not causing grievous
bodily harm but it is assault with intent to do grievous bodily harm. S v Afrikaner;
S v Cloete (CR 34/2017) [2017] NAHCMD 141 (15 May 2017).

4.2 Crimes against Life

4.2.1 Murder
Case: State v Nampindi (CC 29/2012) [2016] NAHCMD 164 (9 June 2016).
Murder is the unlawful and intentional causing of death of another human being

Criminal Liability of Murder

Conduct Causing of death
Complying with the definitional elements Of another person
Unlawfulness Unlawfully
Culpability Intentionally

The distinction between murder and culpable homicide is that murder is the causing of the death
of another person unlawfully and intentionally while culpable homicide is the unlawful, negligent
causing the death of another human being.
Causing of death
o Should be voluntary act or omission
o The act or omission qualifies as the cause of Y’s death if the court is of the
opinion that it is the factual and legal cause. (Factual: Conditio sine qua non –
X’s conduct cannot be thought away without the death disappearing. Legal –
policy consideration as the cause)
Of another human being
o To instigate, assist or put another in the position to commit suicide can amount to
criminal charges
o Person must be alive
Intention
o Direct Intention; Dolus directus to kill
o Dolus Eventualis: X must foresee the possibility of Y being killed and still
reconcile themselves with this possibility
o Must be aware of unlawfulness
o A mistake concerning the material element of the crime excludes intention
o X’s motive is irrelevant

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4.2.2 Culpable Homicide
Case: S v Lebeus (CC 9/2013) [2015] NAHCNLD 18 (22 April 2015)
Unlawful negligent causing of the death of another human being

Criminal Liability of Culpable Homicide

Conduct Causing the death
Complying with the definitional elements Of another person
Unlawfulness Unlawfully
Culpability Negligently

• The test for negligence:

o Whether the reasonable person in the same circumstances would have foreseen
the possibility that Y’s death may result from X’s conduct
o Whether the reasonable person would have taken steps to guard against such a
possibility
o Whether X’s conduct deviated from what the reasonable person would have
done in the circumstances
• The court must be satisfied that X was negligent in causing Y’s death in order/reduce to
change a murder sentence

4.3 Crimes Against Dignity and Reputation

4.3.1 Crimen Injuria

Case: Ndishishi v The State (CA50/2013) [2017] NAHCNLD 40 (25 April 2017)
Crimen Injuria consists in the unlawful intentional and serious violation of the dignity or privacy
of another.

Criminal Liability of Crimen Injuria

The infringement of the dignity or privacy of
Conduct
another
Complying with the definitional elements Which is serious
Unlawful Unlawfully
Culpability Intentionally

 Violation of the dignity, reputation and physical security of another

 Crime is committed when one of these is violated
 In cases to which a peeping Tom is to exist, such right to privacy cannot be infringed due
to Y being unaware of such. Regarding impairment of dignity to which Y is aware of X
conduct, which is essential, to which Y’s personal reaction should be taken into account.
 Both privacy and dignity is to be protected according to the Constitution as well as with
the crime.

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 Dignitas however do not include the concept of privacy, therefore in the definitional
elements of such crime such had been replaced with dignity and privacy. Such dignity is
to include self-respect and mental tranquillity.
 Such crime can be committed by word or by deed, however such crime mostly being
committed with regards to a taint of sexual impropriety taint, such crime is not confined
to this.
 An attack could however be the conduct of a male or female towards a male or female.
Such attack could not constitute a violation of a groups dignitas with regards to a group
being attacked based on affiliation to a religion, language group, nationality or race,
except under special circumstances from which such attack is against his/her self-
respect could have been deduced.
 Violation of dignity – subjective dimensions
o Such act is to violate another’s dignity or privacy to which in order to determine
such a test is to be carried out. This is in order to prove that such infringement
had taken place, therefore an objective and subjective test should apply.
o Subjective test – if such infringement is to take place, Y must be aware of X’s
conduct (offending behavior), to which Y should feel degraded or humiliated by it.
Dignity, self-respect (station in life and moral values) and mental tranquility
(timid) – subjective attributes of person’s personality. Exception to rule: Y is a
child or mentally defective person, to which such cannot understand the nature of
his/her conduct, thus could possibly not be degraded by such. This can be no
defence for X, thus such crime can be committed towards a child and a mentally
defective person.
o A reasonable person is to take offence to such if sensibilities had been offended,
however if such person is very broad-minded or gives consent to such, Y ten
takes no offence and X cannot be convicted of such crime.
o Cases to which privacy has been violated, the following would apply: The state
would not to prove that Y is aware of X’s conduct, thus such person “peeping
Tom” violates Y’s right to privacy, even if he/she unaware.
 Violation of dignity – objective dimension
o In cases to which infringement of privacy takes place, other rules are to apply:
establishment as to whether or not Y was aware of X’s conduct (offensive). Due
to such mental tranquillity and self-esteem differing from person to person, the
court is to out of necessity apply an objective standard. Such conduct should
offend a reasonable person, if Y is very hyper sensitive or timid and takes
offence to conduct which would not offend a reasonable person, the X would not
be found guilty of committing a crime.
 Instances of violation of dignity
o Indecent exposure of one’s body in presence of other
o Communicating with somebody else a message which contains – expressly or
implied – sexual immorality, invitation, indecent photos being sent.
o Addressing another in a manner which would humiliate or belittle Y

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  Such words which are vulgar or gross impertinence may constitute a crime, if such
circumstances are sufficiently serious.
 Assault violating Y’s dignity, although such charge would be made when ones
impairment of dignity, more serious than bodily security.
 Infringement of privacy
(a) Peeping tom
(b) Planting of a listening device in person’s apartment, listening to his/her conversations
(c) Opening and reading postal communications addressed to Y
(d) Prying into private life in unwarranted manner (cameras, bugs, telescopes)
 Violation of dignity or privacy must be serious
o Walton, everyday life to which the court had stated that trivial or minor insults are
to occur against one’s dignity.
o The seriousness is determined by the objective test which takes into account the
modes of thought, conduct in particular community at a particular time and place.
Such depends on the sec and age of parties, persistence of conduct complained
of, degree of publicity attached to conduct, social position of parties.
In our law three interest of human personality are protected. These are the physical integrity, the
reputation (fama) and dignity. Violations of a person’s dignity are prosecuted as crimen injuria.
Impairment of fama is prosecuted as defamation and violation of the interest in
corpus is prosecuted as assault. The interest that the magistrate sought to protect with
the prohibition was clearly the complainant’s dignity. Dignitas is broadly speaking
a person’s “self-respect, mental tranquillity and privacy. - S v Jana 1981 (1) SA 671

4.3.2 Criminal Defamation

Case: S v Motsepe 2015 (5) SA 126 (GP)
Criminal Defamation consists in the unlawful and intentional publication of matter concerning
another which tends to injure his reputation.

Criminal Liability of Criminal Defamation

Conduct The publication
Of a defamatory allegation concerning
Complying with the definitional elements
another
Unlawfulness Unlawfully
Culpability Intentionally

 Deals with the good name or reputation of a person among society.

 Verbal defamation (slander) was criminalised in 1951 in Fuleza 1951 1 SA 519 (A).
 Reputation can only be harmed if the conduct or words complained of come to the notice
of someone other than Y i.e. publication takes place
 Words are defamatory if they expose a person to hatred, contempt or ridicule, or if they
tend to diminish the esteem in which the person to whom they refer is held by others
 Mere vulgar abuse is not likely

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  The publication of defamatory matter which is otherwise prima facie unlawful may be
justified on the grounds
o That it is the truth and that in addition it is for the public benefit that it made be
known
o That it amounts to fair comment
o That the communication is privileged
 X’s intend to harm Y’s reputation by the unlawful publication of defamatory matter
concerning him. He must be aware of the fact that he says or writes will tend to injure Y’s
reputation. This implies that X must intend the communication to come to the notice of
somebody. If he thinks that are covered by truth, public interest and fair comment and
privilege he lacks intention.
 We agree that a criminal sanction is indeed a more drastic remedy than the civil remedy
but that disparity is counterbalanced by the fact that the requirements for succeeding in
a criminal defamation matter are much more onerous than in a civil matter. Thus the
essential elements of the crime of defamation flowing from the definition are (i) the
unlawful; (ii) intentional; (iii) publication of matter; (iv) defamatory of another.
 The onerous requirements in the case of criminal defamation are probably the reason for
the paucity of prosecutions for defamation, compared to civil defamation actions. There
is a heavier burden of proof resting on the state in a crime of defamation. – S v Mohepo

5. General Crimes

5.1 Incitement
Incitement occurs when an inciter encourages another to commit a crime. Such can be done
through suggestions, proposals, requests, gestures, arguments, inducement, goading, arousal
of cupidity. No matter whether such incitement is successful or unsuccessful, such would be a
crime.
The purpose for such to be constituted a crime is to be able to maintain law and order at an
early stage, before aggravated effects can take place. This would also prevent others by
discouraging them to commit such a crime.
 The act of incitement
▪ Influencing another to commit a crime - X goes to Y, to which X influences or seeks
to influence Y verbally or by conduct to commit a crime. Nkosiyana, stating that an
inciter is a person who reaches and seeks to influence the mind of another to
commission a crime.
▪ Ways in which incitement may be committed - Such incitement can occur explicitly or
impliedly, being with words or an act, in the case of verbal incitement to which such
could be done orally or written.
▪ Conduct that does not qualify as incitement - Incitement cannot occur if X is to list
pros and cons of committing a crime to Y, or raising curiosity about the possibility of
committing a crime, or arousing greed on part of Y (to obtain money from another).
▪ The concretization requirement - The words which X uses towards Y should not be
vague or ambiguous, thus requiring such to be specific or concrete so that Y would
know what he/she is to do. Two elements are required in order form a concrete
statement made on the part of X, these are that (a) a description of the crime which

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 Y is incited for, and (b) the description of the identity of victim or object with regards
to the crime wish is to be committed.
▪ Intention - In order for such crime to be committed such could only be done
intentionally and not negligently. Dolus eventualis is thus sufficient for this crime. The
person who incites the crime needs to know that the intention of the other party
would be there to commit a crime. If the person who has been incited commits a
crime which exceeded that of which X had incited him/her to do, X would not be
found liable of incitement.
▪ Impossible to incite a person who lacks capacity - If X is to go to a child or mentally ill
person, to which he/she is of full knowledge of the lack of capacity, then X cannot be
found guilty of incitement.
▪ An inciter is a person who unlawfully encourages another to commit a crime. The
means used to persuade the other person (the ‘incitee’) are secondary. Indeed, the
“machinations of criminal ingenuity” are common; and the means to incite the incitee
include suggestions, proposals, requests, gestures, arguments, inducement,
goading, and arousal of cupidity. In R v Nhlovo 1921 AD 485 it was held that
incitement is a crime, whether or not the person incited is successful in committing
the crime he has been encouraged to commit.
What is the relationship between attempts, conspiracy and incitement. There is a relationship
between attempt, conspiracy and incitement. First, an attempt to commit incitement is possible.
Inversely, incitement to commit attempt, not the main crime, but to attempt to commit the main
crime, is also possible. Moreover, conspiracy to commit incitement is possible. Lastly, certain
acts of incitement may simultaneously qualify as attempts to commit the main crime.

5.2 Law & Morality

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5.2.1 PROSTITUTION
Many definitions of prostitution focus on the seller of sex rather than on the entire transaction. An
example of a more inclusive definition of prostitution is ‘an institution which allows certain powers
of command over one person’s body to be exercised by another’.
Prostitution is currently covered in Namibia primarily by the Combating of Immoral Practices Act
of 21 of 1980. The statute does not criminalise the actual act of engaging in sex for reward.
Instead, it criminalises a number of the surrounding activities. The Act is aimed primarily at third
parties (“pimps” and brothel-owners) and at public manifestations of prostitution (such as public
solicitation). Section 2(3); Section 5; Section 6; Section 7; Section 8; Section 10: It is illegal under
the act -
 to solicit or “make any proposals to any other person for immoral purposes” in a public
street or place
 to exhibit oneself in an indecent dress or manner in public view, or in any place which is
open to the public
 to commit “any immoral act” with another person in public (but not in private)
 to keep a brothel
 to “procure” any female to have unlawful carnal intercourse with another person, to
become a prostitute, or to “become an inmate of a brothel”
 to entice a female to a brothel for the purpose of prostitution, or to conceal a female who
has been enticed to a brothel
 to furnish information, or to perform any other act, aimed at assisting a male to have
unlawful carnal intercourse with a female
 to knowingly live wholly or in part on the earnings of prostitution
 to assist in bringing about “the commission by any person of any immoral act with another
person”, or to receive any money for the commission of such an act
 to detain a female against her will in a brothel, or to otherwise detain her for the purposes
of unlawful carnal intercourse with a male.
Current constitutional challenge to the Act: In 2000, the case of Hendricks and Others v
Attorney General and Others was heard by the High Court. As of mid-2002, no judgement has
yet been handed down. The applicants are seeking an order declaring sections 1(1), 2, 10 and
12 of the Combating of Immoral Practices Act unconstitutional, on the grounds that these sections
are an “unreasonable and unjustifiable violation of the Applicants’ right of freedom of association,
practising any profession or carrying on any occupation, trade or business.” Other constitutional
rights which may be implicated include the right to equality, freedom from discrimination and the
right to privacy. The applicants argue that their right to be presumed innocent is unreasonably
and unjustifiably violated by the presumptions in the law. Some of the sections of the Act are also
being challenged on the grounds that they are unconstitutionally overbroad.
I must immediately point out that prostitution per se is not and was never a crime in common law.
In earlier comments on the common law position, Milton and Cowling, South African Criminal Law
and Procedure, vol. III at 343 wrote:
"The law (and society) adopts an ambivalent attitude to this oldest of professions. On the one
hand prostitution is condemned as a social evil while on the other hand it is tolerated in so far as
it is not a criminal offence for a woman to be a prostitute nor is it an offence for a man to have
sexual relations with a prostitute."

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5.2.2 SODOMY AND UNNATURAL SEXUAL OFFENCES
The common law crime of “sodomy” criminalises anal intercourse between males, while the
common-law crime of “unnatural sexual offences” covers mutual masturbation, “sexual
gratification obtained by friction between the legs of another person” and other unspecified sexual
activity between men. These crimes are now relevant primarily as they apply to consenting adults
– such as male sex workers with male clients. They are seldom enforced with respect to
consenting adults, but the fact that they exist adds to the stigma experienced by male sex workers
and thus increases their vulnerability.

5.2.3 TRAFFICKING
“Trafficking” is essentially the illegal movement of persons for work elsewhere. It involves the
transport or trade of humans, usually women or children, for economic gain by means of force or
deception. Although there is no evidence that trafficking for the purposes of prostitution is a
widespread problem in respect of Namibia, there has been at least one case involving the
transport of young Namibian women to South Africa for the purposes of sexual exploitation.
Because this is a problem which may develop in future, it should be kept in mind while formulating
policy on sex work. Namibia must also give attention to its international obligations to combat
trafficking.

5.2.4 PUBLIC INDECENCY

Consists in unlawfully, intentionally and publically engaging in conduct which tends to deprive the
morals of others or which outrages the public’s sense of decency.
Elements: (a) Conduct (b) In public (c) which tends to deprive the morals of others or which
outrages the public sense of decency (d) Unlawfully (e) Intentionally
Examples: Improper exposure of the body; Commission of sexual intercourse in public
Section 7 & 8 of the Combatting of Immoral Practices Act

5.2.5 BESTIALITY
Consists in unlawful and intention sexual relations between a human being and an animal
Elements (a) Sexual penetration (b) between a human being and an animal (c) unlawfully and (d)
intentionally

5.2.6 INCEST
The unlawful and intentional sexual intercourse between male and female persons who are
prohibited from marrying each other because they are related within the prohibited degrees of
consanguinity, affinity or adoptive relations.
Elements: (a) Sexual Intercourse (anal or oral does not qualify) (b) Between males and females
(c) Who are prohibited to marry each other (d) Unlawfully (e) Intentional
d) Consent by the other party is no defence
e) Parties must have the intention to have sexual intercourse with one another and they must be
aware of the fact that they are related to each other within the prohibited degrees of relationship
Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013)

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The appellant was convicted of rape and incest of his own daughter. On the rape charge, he was
sentenced to 18 years imprisonment and on the incest charge to 3 years imprisonment. The
sentence on incest was ordered to run concurrently with sentence on the rape charge.
He appealed against both convictions and sentences. His grounds of appeal are, inter alia, that
his guilt was not proved beyond reasonable doubt, that the complainant was a single witness, that
his rights to legal representation were not explained and not assisted by the presiding officer
during the trial and that the sentences imposed were unreasonable.
Held, that although the complainant was a single witness on the actual rape, her evidence was
corroborated by witnesses and the J88 and that the guilt of the appellant was proved beyond
reasonable doubt.
Held, further, that, on the charge of incest, there was a duplication of convictions because the
appellant only had a single intent to rape the complainant who happened to be his daughter
Held, further, that his right to legal representation was explained and appellant was duly assisted
by the presiding officer.
Held, further, that the sentence of 18 years on the rape charge was in order.
Held, further, that the appeal against conviction and sentence on the rape charge is dismissed.
Held, further, that the appeal against conviction and sentence on the incest charge is allowed.

5.2.7 VOILATING A GRAVE

Consists in unlawfully and intentionally damaging a human grave.
Elements: (a) Damaging a human grave (b) Unlawfully (c) Intentionally
Crime overlaps with malicious damage to property and theft if parts of the grave were stolen.
X must the intention of disturbing, destroying or damaging a grave.

5.2.8 VOILATING A CORPSE

A person who unlawfully and intentionally commits a sexual act with a human corpse is guilty of
the offence of committing a sexual act with a corpse.
Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May 2013)
From a reading of the definition as to what constitutes a ‘sexual act’, and the offence of rape as
set out in s 2 (1), it is clear that where reference is made to ‘another person’ in the Act, the
Legislature intended such person to be a living person, thus excluding a sexual act being
committed with a corpse. Consequently, though evidence in the instant matter about the insertion
of an unknown object in the genitalia of the deceased would constitute a sexual act as per the
definition, it does not constitute the offence of rape in that the act was committed after death. In
circumstances as the present, the accused should have been prosecuted (in the alternative) with
the offence of violation of a corpse under common law, as it is not one of the competent verdicts
of rape provided for under s 261 of the Criminal Procedure Act 51 of 1977, or when read with s
18 of the Riotous Assemblies Act 17 of 1956.
The court will not in its own charge the crime but the prosecution should bring the crime.

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5.2.9 SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS
Mentally disabled people constitute a group of people who are particularly vulnerable to sexual
exploitation. Because if their mental disability they do not understand the nature, character or
consequences of sexual acts committed in respect of them and as a rule do not report their sexual
exploitation to other people or the authorities. A person who is mentally disabled means a person
affected by any mental disability including any disorder or disability of the mind to the extent that
he or she at the time of the alleged commission of the offence in question was unable to
appreciate the nature and reasonably foreseeable consequences of a sexual act be able to
appreciate the nature and reasonably foreseeable consequences of such an act but unable to act
in accordance with that appreciation unable to resist the permission of any such act or unable to
communicate his or her willingness to appreciate in any such Act
Section 15 of the Combatting of Immoral Practices Act

5.3 Case Support

Grievous Bodily Harm - S v Khamuxas (CC 20/2012) [2014] NAHCMD 381 (15 December
2014)
Counsel submitted on the basis of the holding in S v Tazama 1992 NR 190 (HC) at 191I – 192B
that the intent to harm can be deducted from the following factors:
(i) The nature of the weapon or instrument used;
(ii) the degree of force used by the accused in wielding that instrument or weapon;
(iii) the situation on the body where the assault was directed, and
(iv) the injuries actual sustained by the victim of the assault if any
[32] Concerning the accused’s defence of intoxication counsel argued that a court would not
easily accept that an accused was so drunk that he or she did not know what he or she was
doing. Counsel relied on the dictum to this effect in S v Davids 1991 NR 255 (HC) at 259D – E.

Criminal Capacity - Murder

S v Calitz 1990 (1) SACR 119 (A) at 126h - 127c; S v Wiid 1990 (1) SACR 561 (A) at 564b – g
and several other cases.
This leads to the primary issue whether the accused lacked criminal capacity at the time she
killed the deceased and whether she was able to distinguish between right and wrong and was
able to act in accordance with that appreciation or distinction.
When the accused raised the above defence the onus to prove that she had criminal capacity at
the relevant time lies with the State and the Court is guided by the following principles:
1. In discharging the onus the State is assisted by the natural inference that in the absence of
exceptional circumstances a sane person who engages in conduct which would ordinarily
give rise to criminal liability does so consciously and voluntarily;
2. An accused person who raises such defence is required to lay a foundation for it, sufficient
at least to create a reasonable doubt on the point.
3. Evidence in support of such a defence must be carefully scrutinised.

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4. It is for the Court to decide the question of the accused’s criminal capacity, having regard to
the expert evidence and all the facts of the case, including the nature of the accused’s
actions during the relevant period.
Private Defence - S v Khamuxas (CC 20/2012) [2014] NAHCMD 381 (15 December 2014)
The test for private defence is whether the accused reasonably believed that his or her life was
in danger or that she was using reasonable means to ward off the attack. This is normally an
objective test. However, an element of subjectivity is present in the process which relates to the
persons and circumstances involved in the act
On this version alone, the accused’s belief that her life was still in danger is not reasonable. As
such she was not acting in private defence when she stabbed Kausiona. She was instead acting
in revenge to hurt her.
Intoxication - S v Khamuxas (CC 20/2012) [2014] NAHCMD 381 (15 December 2014)
[51] Concerning the issue of intoxication, as this court held in S v Davids 1991 NR 255 (HC)
at 259D – E.
“Although it was stated in S v Schretien 1981 (1) SA 1097 (A) at 1106 B – H, that it is a defence
to a charge that if a person is so drunk that he does not know what he is doing a court would not
easily accept that an accused was so drunk that he did not know what he was doing.”
Evidence
It is trite that “Where the court is required to draw inferences from circumstantial evidence, it
may only do so if the 'two cardinal rules of logic' as set out in R v Blom 1939 AD 188, have been
satisfied. These rules were formulated in the following terms: (1) the inference sought to be
drawn must be consistent with all the proved facts. If it is not, then the inference cannot be
drawn. (2) The proved facts should be such that they exclude every reasonable inference from
them save the one to be drawn. If they do not exclude other reasonable inferences, then there
must be doubt whether the inference sought to be drawn is correct.”

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