REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
REVIEW JUDGMENT
Case Title: The State v Nekongo Hilma | Case No.: CR 2/2025 | |
High Court NLD Review No.: 250/2024 | Division of Court: Northern Local Division | |
Heard before: Honourable Lady Justice Salionga J et Honourable Mr Justice Kesslau J | Delivered on: 20 January 2025 | |
Neutral citation: S v Hilma (CR 2/2025) [2025] NAHCNLD 2 (20 January 2025) | ||
It is hereby ordered that:
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Reasons for the order: | ||
KESSLAU J (SALIONGA J concurring) [1] The matter from the Magistrate’s court of Ohangwena is before this court for review in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA). [2] The accused was charged with assault with the intent to do grievous bodily harm read with the provisions of the Combating of Domestic Violence Act 4 of 2003 (the Act). It was alleged inter alia that the accused is a niece to the victim. The accused pleaded not guilty on the charge, however, after the evidence was led, was convicted and subsequently sentenced to three years’ imprisonment. [3] The following query was sent to the Magistrate: ‘1. When considering the definition of a ‘domestic relationship’ as defined in s 3 of Act 4 of 2003 and the fact that the accused and complainant were not sharing a residence, how was the Magistrate satisfied that the parties were in fact in a domestic relationship?’ [4] The Magistrate in reply conceded that a domestic relationship was not proved in that the accused and her uncle were not sharing the same residence. [5] The Act defines a domestic relationship in section 3 and the applicable part to this matter states that: ‘3(1) For the purposes of this Act a person is in a “domestic relationship” with another person if, subject to subsection (2) . . . (e) they - (i) are or were otherwise family members related by consanguinity, affinity or adoption . . . and they have some connection of a domestic nature, including, but not limited to - (aa) the sharing of a residence; or (bb) one of them being financially or otherwise dependant on the other; . . .’ (emphasis added) [6] In Joseph v S1 the court held that: ‘The Act did not contemplate including family members related by consanguinity, affinity, or adoption into the definition of a domestic relationship if they are not sharing a residence or are not financially or otherwise dependant on the other.’ (Emphasis added) [7] The conviction is thus not in order and will be substituted accordingly. Generally, the existence of a domestic relationship is an aggravating circumstance during sentencing. In this matter it played a role in influencing the sentence imposed. Having found that such domestic relationship was not proved it follows that the sentence should be adjusted. [8] It appears from the record that the victim was physically injured prior to the attack in an unrelated incident. He was thus using crutches to walk with at the time of the crime. The injuries inflicted by the accused, was serious in nature and the victim was not completely healed at the time of the trial. It is also clear from the record that the accused showed no remorse for her actions. On the other hand, the accused did spent some five months in custody whilst awaiting trial. [9] In the result the following orders are made.
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Judge(s) signature | Comments: | |
KESSLAU J: | None | |
SALIONGA J: | None |
1 Joseph v S (HC-NLD-CRI-APP-CAL-2020/00056) [2021] NAHCNLD 48 (26 May 2021) par 18; S v Erick and Another (CR 48/2023) [2023] NAHCNLD 135 (5 December 2023); S v Goreab (CR7/2024) [2024] NHCDLD 23 (5 March 2024).
Cited documents 4
Act 2
1. | Criminal Procedure Act, 1977 | 1953 citations |
2. | Combating of Domestic Violence Act, 2003 | 387 citations |
Judgment 2
1. | Joseph v S (HC-NLD-CRI-APP-CAL 56 of 2020) [2021] NAHCNLD 48 (26 May 2021) | 2 citations |
2. | S v Erick and Another (CR 48/2023) [2023] NAHCNLD 135 (5 December 2023) | 1 citation |