Latest judgments

Criminal Procedure – Appeal – Sentence – Possession of cannabis – 85 grams valued at N$ 1720 – Sentence of 8 months’ imprisonment of which 3 months  are suspended for 2 years – Seriousness of offence overemphasised at expense of accused personal circumstances – Sentence shockingly inappropriate – circumstances of case merit imposing option of a fine – Sentence set aside and substituted.

Criminal Procedure – Application for leave to appeal – Test – Applicant must clearly indicate reasonable prospect of success – Application for leave to appeal against conviction dismissed – Application for leave to appeal against sentence is granted.

Criminal Law –Accused charged with murder read with the provisions of the Combating of Domestic violence Act 2003 - Accused pleaded not guilty - No plea explanation – Witnesses saw how the accused bashed the head of the three times against the floor-Medical evidence corroborated the evidence that the head was bashed three times-State proved beyond reasonable doubt the guilt of the accused convicted of murder with direct intent.

Founding affidavit – Effect of illegible commissioner of oaths stamp - Legislation – Justices of the Peace and Commissioners of Oaths Act 16 of 1963 – Regulations 1 to 4 – Failure to comply with the provisions thereof – provisions merely directory and not peremptory – non-compliance cured by defaulting party tendering a reasonable explanation – where same not done, non-compliance is fatal.

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