Court name
High Court Main Division
Case number
CC 15 of 2013
Case name
S v Lukas
Media neutral citation
[2015] NAHCMD 186
Judge
Damaseb J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


SENTENCE


Case
No: CC 15/2013


DATE:
10 AUGUST 2015


REPORTABLE


In
the matter between:


THE
STATE


And


JOHANNA
LUKAS................................................................................................................ACCUSED


Neutral
citation: S v Lukas (CC 15-2013) [2015] NAHCMD 186 (10 August
2015)


Coram:
DAMASEB, JP


Heard:
18 and 25 June 2015; 2 July 2015; 04 August 2015


Delivered:
10 August 2015


Flynote:
Criminal Procedure – Sentence – Prisoner convicted
on five counts of Contravening s 15 read with s 1 of the Prevention
of Organized Crime Act 29 of 2004 (POCA) – Trafficking in
persons and four counts of Contravening s 2 (1)(b) read with ss 1,
2(2), 2(3), 3, 5, 6 and 7 of the Combating of Rape Act 8 of 2000
(CORA) – Rape with coercive circumstances and one count of Rape
without coercive circumstances – Sentence to be imposed in
terms of the POCA and CORA – Existence of ‘substantial
and compelling circumstance – Mandatory minimum sentence
departed from – Cumulative effect of sentence considered –
Sentences ordered to run concurrently.


ORDER


1.
COUNT 1:
Contravening s 15 read with s 1 of the Prevention of Organized Crime
Act 29 of 2004 – Trafficking in persons – 
5
years;


COUNT
2
: Contravening s 2 (1)(b) read with ss
1, 2(2), 2(3), 3, 5, 6 and 7 of Combating of Rape Act 8 of 2000 –
RAPE; with coercive circumstances –
8
years;


COUNT
3
: Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons – 5
years;


COUNT
4
: Contravening s 2 (1)(b) read with ss 1, 2(2), 2(3), 3, 5, 6
and 7 of Combating of Rape Act 8 of 2000 – RAPE; with coercive
circumstances –  8 years;


COUNT
5
: Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons – 5
Years;


COUNT
6
: Contravening s 2 (1)(b) read with ss 1, 2(2), 2(3), 3, 5, 6
and 7 of Combating of Rape Act 8 of 2000 – RAPE; with coercive
circumstances -  8 years;


COUNT
7:
Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons - 5 years;


COUNT
8
: Contravening s 2 (1)(b) read with ss
1, 2(2), 2(3), 3, 5, 6 and 7 of Combating of Rape Act 8 of 2000 –
RAPE; with coercive circumstances – 
8
years;


COUNT
9
: Contravening s 15 read with s 1 of the Prevention of Organised
Crime Act 29 of 2004 – Trafficking in person – 5
Years;


2.
The sentences
on counts
3,5,7
and
9
will run concurrent with count
1;


3.
The sentences
on counts
4,
6,
and 8
will run concurrently with count
2.


Therefore,
you are sentenced to a total of 13 years imprisonment.


JUDGMENT


Damaseb,
JP:


[1]
I convicted the prisoner at the bar on five counts of contravening s
15 read with s 1 of the Prevention of Organized Crime Act 29 of 2004
(POCA): Trafficking in persons. I also convicted her on four counts
of contravening s 2 (1)(b) read with ss 1, 2(2), 2(3), 3, 5, 6 and 7
of the Combating of Rape Act 8 of 2000 (CORA): Rape with coercive
circumstances; and one count (count 10) of ‘Rape without
coercive circumstances’.


[2]
After the parties’ submissions on sentence, I was concerned
about the conviction on count 10. I therefore invited counsel to
address me on the following questions of law:


1.
Given
the finding of the absence of ‘coercive circumstances’ in
respect of the sexual act perpetrated by Pretorius on M, with - as
the court found- the accused's procurement - was it competent to
convict her of 'rape without coercive circumstances'?[1]


2.
Was it not appropriate in those
circumstances to acquit the accused on count 10?


3.
The Combating of Immoral Practices Act 21
of 1980 (IPA) creates the following offence:


Section
14


14.
Sexual offences with youths


Any
person who-


(a)
commits or attempts to commit a sexual act with a child under the age
of sixteen years; or


(b)
commits or attempts to commit an indecent or immoral act with such a
child; or


(c)
solicits or entices such a child to the commission of a sexual act or
an indecent or immoral act,


and
who-


(i)
is more than three years older than such a child; and


(ii)
is not married to such a child (whether under the general law or
customary law),


shall
be guilty of an offence and liable on conviction to a fine not
exceeding N$40 000 or to imprisonment for a period not exceeding ten
years or to both such fine and such imprisonment.’


4.
Section 261 of the Criminal Procedure Act,
1977 states:


261
Rape and indecent assault


(1)
If the evidence on a charge of rape or attempted rape does not prove
the offence of rape or, as the case may be, attempted rape, but-


(a).
. .


(b).
. .


(c).
. .


(d).
. .


(e)
the statutory offence of-


(i)
unlawful carnal intercourse with a girl under a specified age;


(ii)
committing an immoral or indecent act with such a girl; or


(iii)
soliciting or enticing such a girl to the commission of an immoral or
indecent act;


. . . .


the accused may
be found guilty of the offence so proved.


5.
In view of the finding that no coercive
circumstances were found concerning M, was a conviction of an
offence under s 14 of the CIPA read with s 261 of the CPA a competent
verdict on a charge of rape with coercive circumstances under the
CORA?


6.
At this stage of proceedings, what course
is open to the court if it is satisfied that the accused was
improperly convicted on count 10?’


[3]
As the questions posed to counsel were intended to indicate, the
conviction on count 10 was incompetent; in other words it was a
nullity as no such offence exists under our law and as such, not
sustainable.  I agree with Mrs Nyoni for the State that it is
too late for this court to alter the conviction to any competent
verdict. That said, this is a court of justice and it will offend
Article 12 of the Constitution to sentence a convicted person for an
offence not cognizable under law. Doing so will be inconsistent with
the ethos of the Constitution which is premised on legality. Being a
nullity it behooves me, in proceeding to impose sentence, to treat it
as such and ignore it. I will therefore only proceed to sentence the
accused in respect of counts 1-9.


[4]
It is now my duty to impose an appropriate sentence on the prisoner.
In so doing, I am guided by the triad, expressed in the following
terms by Levy J in
S
v Tjiho
[2]:


When
sentencing an accused, the trial court must bear in mind the nature
of the crime, the interests of society and the interests of the
accused. These three factors are frequently referred to as the triad.
The sentencing Judge or magistrate must keep in mind the purposes of
punishment and must try to effect a balance in respect of the
interests of the accused, and the interests of society in relation to
the crime itself and in relation to those purposes.’(Footnotes
omitted)


[5]
It is trite that punishment falls within the discretion of the trial
court, to be exercised judicially.


[6]
Since it is the person who committed the crime who is to be
punished, personal circumstances play an important role and must not
be ignored. The personal circumstances of the convicted person must
be weighed against the interests of society. It is in the interest of
society that the prisoner receives a sentence that fits her
circumstances and the seriousness of the crimes she committed. Should
society feel that the punishment imposed on a criminal is inadequate,
it may well hesitate to accept such person back; and the criminal
herself must feel that having paid her 'debt to society' she will be
accepted back. Society’s expectation of condign punishment must
be tempered by the imperative of mercy where necessary and possible.


[7]
Law and order are conditions precedent for an orderly society;
therefore society expects the court's protection against lawlessness.
The convict must be prevented from repeating her crime and, if
possible, reformed and other persons must be deterred from doing what
she did. It is in the interest of society that criminals who have
served their sentences be accepted back into society.


[8]
The net result is that sentences for similar offences frequently
differ because personal circumstances differ. The sentence I impose
today is, therefore, not necessarily precedent for the future, save
in so far as similar circumstances repeat themselves in future.


[9]
I want to make mention of the lack of urgency with which this matter
was handled by the authorities. The events had taken place in
April-May 2012, but the actual investigation only started in October
2012. Early intervention in order to assess the needs of the two
minor victims therefore never happened. Even more inexplicably, it
became apparent during the trial that even at that stage no attempt
had been made to offer counselling to the child victims and their
families, yet it was conceded by the social welfare officers that
such counselling was needed. No satisfactory explanation was given on
the record for this dereliction of duty. It appears that the
preoccupation (and rightly so) was more on pursuing criminal charges
against the accused than the welfare of the minor victims. That calls
for censure.


[10]
Section 15 of the POCA reads as follows:


15
Trafficking in persons


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.’



Implication of
penalty clause reading: fine or imprisonment


[11]
In the case of
S
v Mali and Others
[3]
Accused 3 was found guilty of ‘pointing a firearm’, in
contravention of s 39 (1) (i) of Act 75 of 1969. In this case, the
matter went for review after the magistrate imposed direct
imprisonment as a sentence. The relevant penalty clause reads:


a
fine not exceeding R500 or to imprisonment for a period not exceeding
six months’


[12]
The court held:


However
it seems to me that s 39 (2) (d) must be interpreted in such a way
that imprisonment can only be imposed as an alternative to a fine.
Admittedly the terms thereof do not include the usual phrase "or
in default of payment thereof", which would place the matter
beyond doubt. However there are sound reasons for reading such words
into s 39 (2) (d) as a necessary implication. Accordingly, the use of
the words "or to both such fine and such imprisonment" can
only mean, in my view, that the words "or to imprisonment"
which follow the provisions for a fine are intended to provide an
alternative to the fine, and, by implication, operate only in default
of payment of such fine.’[4]


[13]
This approach was not followed in the following cases:
S
v Mathabela 1986 (4) SA 693 (T); followed by S v Nkwane; S v Takwana
1982 (1) SA 230 (Tk) and S v Arends 1988 (4) SA 792
.
The position in South Africa now is that where a penalty clause reads
'a fine not exceeding R300 or... imprisonment for a period not
exceeding three months', the use of the words 'or to both such fine
and such imprisonment' in s 39(2)(b) of Act 75 of 1969 cannot be said
to convey that the words 'or to imprisonment' which follow the
provision for a fine in that section were intended to make provision
for imprisonment merely as an alternative to the fine in the event of
non-payment thereof’. It was held that the omission of the
words 'or to both such fine and such imprisonment' from s 39(2)(d) of
Act 75 of 1969 is not an indication that the Legislature did not
intend imprisonment to be a competent sentence unless coupled with
the alternative of a fine. The result of this conclusion is that the
penal provisions of s 39(2) (d) of Act 75 of 1969 should have been
interpreted in
Mali's
case to mean that those provisions give the court a discretion to
impose either a fine not exceeding R500 or imprisonment for a period
not exceeding six months, which means that it is competent to impose
a period of imprisonment without the option of a fine. That is the
plain meaning of the words used in the section and is the meaning
which should be given to them.[5]
That is also the proper approach to be followed in Namibia. The
legislative intent I discern from the penal provision in the POCA,
seen against the backdrop of the seriousness of the offence of
trafficking in persons[6], is
that a sentence of direct imprisonment without the alternative of a
fine is competent. Given the poverty of the prisoner a fine would in
any event be unreasonable.


[14]
Section 3 of the CORA reads:


Penalties


(1)
Any person who is convicted of rape under this Act shall, subject to
the provisions of subsections (2), (3) and (4), be liable-


(a)
in the case of a first conviction-


(i)
where the rape is committed under circumstances other than the
circumstances contemplated in subparagraphs (ii) and (iii), to
imprisonment for a period of not less than five years;


(ii)
where the rape is committed under any of the coercive circumstances
referred to in paragraph (a), (b) or (e) of subsection (2) of section
2, to imprisonment for a period of not less than ten years;


(iii)
where-


(aa)
the complainant has suffered grievous bodily or mental harm as a
result of the rape;


(bb)
the complainant-


(A)
is under the age of thirteen years; or


(B)
is by reason of age exceptionally vulnerable;


(cc)
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;


(dd)
. . . .


(ee)
. . . .


(ff)
. . . .


to
imprisonment for a period of not less than fifteen years;’


[15]
The case before me is one where the prisoner is convicted of
trafficking in two minor girls, and rape with coercive circumstances
in respect of one of them. The victims are two minor girls who fell
prey to the prisoner’s greed because of their poor backgrounds.
This aggravates the crime considering that she exploited the victims’
poverty to groom them for sexual exploitation.


[16]
In respect of the convictions of rape under coercive circumstances,
the law prescribes that the sentencing court can only deviate from
the mandatory minimum sentence of 15 years, if the prisoner
establishes substantial and compelling circumstances.[7]


Seriousness
of offences and factors in aggravation


[17]
The seriousness of the crimes is apparent form the sentences provided
by the legislature. What militates against a proper balancing of
society’s interest and that of the prisoner, is the fact that
the court does not know the full story as the prisoner has not taken
the court into her confidence to come clean about what truly
happened. There is definitely more here than meets the eye.


[18]
In aggravation, the offences were committed out of greed and with
little regard for the wellbeing of the minor complainants and the
corrupting influence this conduct had on the children. I was
satisfied beyond reasonable doubt that the prisoner’s conduct
therefore results in grooming in that the prisoner used her position
of power over the minor children to expose them to sexual
exploitation. I want to make special mention of the fact that this
corrupt influence was particularly apparent in the case of
complainant D who became completely desensitized and related what are
otherwise despicable acts of sexual depravity as if they were so
mundane. Her description of those acts would make even the most
hardened adult shudder.


Does
the Prisoner show remorse for her actions?


[19]
In mitigation of sentence, the prisoner said she was sorry and asked
for forgiveness from D and her mother. In order for remorse to be a
valid consideration at the stage of sentencing, it has to be
sincere.[8] The prisoner at the
bar has persisted with her denial of criminal culpability. All she
says is that she is sorry that she took D to Pretorius who, in turn,
raped her in the way D alleged. She persisted that she had no part in
the rapes perpetrated on complainant D by Pretorius, and she still
maintains that she never took M to Pretorius. As I understood her,
the reason she asks for forgiveness is that her taking D to Pretorius
was the reason that she landed in the trouble she finds herself
today. It is obvious, therefore, that the prisoner shows no remorse
for what she did. The true test of remorse is acceptance of what one
has done wrong and atoning one’s wrongdoing by making a clean
breast of what happened. That is lacking in the case of the prisoner
at the bar. In fact, her continued denial of her wrongdoing has the
effect that we do not know what role others played or did not play in
this matter and the extent of Pretorius’ exploitation of the
girl children of Swakopmund. The evidence pointed to Pretorius as a
sexual deviant with a rapacious appetite for pedophilia.


[20]
It is however not lost on me that a prisoner, whose defense during
trial was based on complete denial, might feel conflicted and
embarrassed to, during the sentencing procedure, admit wrongdoing and
plead for mercy.


Substantial
and compelling circumstances


[21]
But what are substantial and compelling circumstances?  Mr
Justice Marais JA’s venerable legal chestnut in
S
v Malgas
[9]
has been accepted in this jurisdiction as the test for what are
substantial and compelling circumstances.[10]
It becomes apparent from that case that:


(a)
the minimum prescribed sentence is not to be departed from lightly
and for flimsy reasons;


(b)
undue sympathy for the accused should not blind the court to the
standardized response to the crime chosen by the legislature;


(c)
the legislature has left the discretion to the court to decide
whether the circumstances of any particular case justify departure
from the prescribed sentence: in latter regard, all factors normally
considered by the court either as aggravation or mitigation, do play
a role;


(d)
for circumstances to be substantial and compelling, they must be such
as cumulatively justify a departure from the standardized response
chosen by the legislature;


(e)
the circumstances would be substantial and compelling as to justify a
departure in favour of the convict from the minimum sentence
prescribed in favour of a lesser sentence, if imposing the prescribed
sentence would be so unjust and disproportionate to the crime, the
criminal and the interest of the society;


(f)
each case must be considered on its facts.


Personal
circumstances of the convict


[22]
The prisoner’s personal circumstances are truly
heart-wrenching. This is not to be equated to undue sympathy for the
prisoner for reasons I fully set out throughout this judgment.  She
is currently 23 years of age and a mother of three minor children.
She is fairly young and was incarcerated since 3 October 2012. She
dropped out of school early and became a mother at the rather young
age of 18 years. She gave birth to two other children; one of them
whilst she was incarcerated awaiting trial in this matter. The latter
event shows a great deal of immaturity and irresponsibility. It
demonstrates to me that she does not carefully think through the
consequences of her actions. That she could go on and get herself
pregnant whilst already bearing the brunt of raising two children
without the support of their fathers is a sign of immature behaviour.


[23]
The prisoner is part of a family unit which I can only describe as
afflicted by poverty and misfortune: the mother is the only
breadwinner in a family which comprises of four siblings, a poorly,
disabled father and children of the prisoner and that of another of
her siblings, Evangeline, a young lady of 23 who also dropped out of
school and is staying at home looking after her own child and the
children of the prisoner while the mother, a woman of 48 years, has
to struggle daily by selling kapana to keep the entire family alive.


[24]
The prisoner’s mother testified and enlightened me about the
stress and burden she bears in keeping her family alive. The gist of
her evidence was corroborated by the prisoner’s sister,
Evangeline. The prisoner’s mother had since the incarceration
of the prisoner become diabetic as a result of the burden she now
carries alone in the absence of the prisoner who was the only other
person who assisted her to carry the financial burden of caring for
the family. She does casual jobs for the Swakopmund Municipality and
on average brings home N$ 600 - N$ 800 per month from selling kapana
and doing casual jobs. From this income, she supports the entire
household, including the convict’s grandmother in the North,
and pays for the water and electricity that is often cut off because
she can’t always pay up. The prisoner’s grandmother who
is at the moment taking care of the elder child of the prisoner in
the north has indicated that she is unable to cope and wants to
return the child to the prisoner’s mother.


[25]
I have only given a snapshot of the very saddening story of the
prisoner which calls out for mercy. The record speaks for itself.
Although she has not shown remorse for her actions, it is the duty of
this court to place all these factors in the scale in weighing
whether the mandatory minimum sentence on the rape under coercive
circumstances is called for.


[26]
The prisoner is a first offender and has to date been in custody for
a period approaching three years. The offences were committed when
she was 20 years old.


[27]
In a case where the prisoner was a juvenile at the time of the
commission of the crime, the court stated in
S
v Erickson
[11]
that it is necessary for the court to determine what appropriate form
of punishment in the peculiar circumstances of the case would best
serve the interests of society, as well as the interests of the
juvenile. The interests of society are not best served by
disregarding the interests of a youthful offender, for an
ill-considered form of punishment might easily result in a person
with a distorted or more distorted personality being eventually
returned to society. Young offenders should ordinarily be treated
differently compared to adults when it comes to sentencing. The
reason for this is that youthful offenders, such as the convict are,
prima facie, regarded as immature. A youthful person often lacks
maturity, insight, discernment and experience and, therefore, acts in
a foolish manner more readily than a mature person.[12]The
soundness of this rule of practice is fortified by the conduct of the
prisoner both before the crimes and while awaiting trial.


[28]
As I have already shown, the law requires of me to record the
substantial and compelling circumstances which I find to justify
departure from the mandatory minimum sentence for the rapes with
coercive circumstances. Imposing the prescribed mandatory minimum
sentence on the convict will be manifestly unjust and not in the
interest of society for the following reasons:


a)
Her age at the time that she committed the
crime and her age now;


b)
The time she already served awaiting trial;


c)
The inability of her sickly mother to care
for her children while she is in prison;


d)
The demonstrable need for her to be allowed
to return to society to give a fighting chance to her innocent
children whose fathers are absent;


e)
The poor state of health of her parents and
the apparent poverty afflicting the entire family – a factor
that is relevant in so far as it affects her minor children in whose
care they will be left whilst she serves her punishment; and


f)
The absence of an obvious relative to care
for her children.


[29]
Seen cumulatively, I am satisfied that the prisoner’s
circumstances constitute substantial and compelling circumstances for
the purposes of s 3(2) of the CORA. This finding leaves me at large
to depart from the mandatory minimum sentences for rape under
coercive circumstances in respect of complainant D who , as I found ,
was not less three years than her rapist’s, Pretorius.


Should
the sentences run consecutively or concurrently?


[30]
The sentencing court is obliged to consider the cumulative effect of
the sentences to be served, especially where the charges are part of
the same course of action. Where, therefore, the cumulative effect
is
likely to be disproportionate to the blameworthiness in relation to
the offences committed, or will be so excessive as to evoke a sense
of shock, the individual sentences can significantly be ameliorated
by ordering the sentences to run concurrently.[13]
That is what I propose to do in the present case.


[31]
Miss Lukas, you are a young woman and you were even much younger when
you committed these despicable crimes. To be precise, you were below
the age of majority when you committed the crimes. The lure of money
might have blinded you to the seriousness of the crimes. You are a
first offender and have been in prison awaiting trial for a
considerable period of time. You became a mother at the rather young
age of 18 and even went on to give birth to two other children. These
three children are going to grow up without your love and care for
the best part of their formative years. The sentence I will impose is
deliberately tailored to ensure that your offspring are able to face
the challenges of teenage life with the support of a mother. Although
it was suggested by the State during cross-examination of your mother
when she testified your behalf in mitigation of sentence, that the
State’s social welfare programme can assist in taking care of
your children whilst you are serving a prison term, no evidence was
led to show how that works. I can’t take judicial notice of the
existence of such a programme and proceed from the premise that no
such programme exists. I have found that your personal circumstances
constitute substantial and compelling circumstances. The sentence I
impose will be long enough to mark society’s disapproval of
your conduct but sufficiently measured to allow you a chance to
return to society to take care of your children.


[32]
With this sentence, this court wishes to send a message that what you
did is not acceptable. The poverty of a child must never become the
license for others to exploit them for financial greed or for others’
sexual gratification. The poor in our society, especially children,
need our empathy and support, not to feed greed and sexual deviance.
I therefore reject your mother’s plea that you be given a
suspended sentence. A non-custodial sentence will send a wrong
message that trafficking in children is acceptable. I will be mocking
justice if I were you impose a non-custodial sentence.  In your
case a custodial sentence is inevitable.


Order


[33]
In light of the above reasons, I find the following to be the
appropriate sentence:


4.
COUNT 1:
Contravening s 15 read with s 1 of the Prevention of Organized Crime
Act 29 of 2004 – Trafficking in persons – 
5
years;


COUNT
2
: Contravening s 2 (1)(b) read with ss
1, 2(2), 2(3), 3, 5, 6 and 7 of Combating of Rape Act 8 of 2000 –
RAPE; with coercive circumstances –
8
years;


COUNT
3
: Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons – 5
years;


COUNT
4
: Contravening s 2 (1)(b) read with ss 1, 2(2), 2(3), 3, 5, 6
and 7 of Combating of Rape Act 8 of 2000 – RAPE; with coercive
circumstances –  8 years;


COUNT
5
: Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons – 5
Years;


COUNT
6
: Contravening s 2 (1)(b) read with ss 1, 2(2), 2(3), 3, 5, 6
and 7 of Combating of Rape Act 8 of 2000 – RAPE; with coercive
circumstances -  8 years;


COUNT
7:
Contravening s 15 read with s 1 of the Prevention of Organized
Crime Act 29 of 2004 – Trafficking in persons - 5 years;


COUNT
8
: Contravening s 2 (1)(b) read with ss
1, 2(2), 2(3), 3, 5, 6 and 7 of Combating of Rape Act 8 of 2000 –
RAPE; with coercive circumstances – 
8
years;


COUNT
9
: Contravening s 15 read with s 1 of the Prevention of Organised
Crime Act 29 of 2004 – Trafficking in person – 5
Years;


5.
The sentences
on counts
3,5,7
and
9 will
run concurrent with count
1;


6.
The sentences
on counts
4,
6, and 8

will run concurrently with count
2.


Therefore,
you are sentenced to a total of 13 years imprisonment.


PT
Damaseb


Judge-President


APPEARANCE:


The
State I Nyoni


Of
Office of the Prosecutor-General, Windhoek


The
accused L Karsten


On
instructions of Directorate of Legal Aid, Windhoek



[1]
On reflection, I am satisfied that it is not an offence cognizable
in law.




[2]
1991 NR 361 (HC) at 365B-F.




[3]
1981 (2) SA 478 (E).




[4]
At page 479H-G.




[5]
S v Arends, p 794F-I.




[6]
An offence which the State correctly submitted is seen as a modern
manifestation of slavery.




[7]
Section 3(2) of the Combating of Rape Act, 2000 reads:


(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.’




[8]
Ibid, at 58A.




[9]
2001 (2) SA 1222(SCA).




[10]
See S v Lopez 2003 NR 162 at 172-174.




[11]
2007 (1) NR 164 at 167A-B.




[12]
Ibid at p 166F-G.




[13]
S
v Ndikwetepo and Others 1993 NR 319 (SC) at 325C-D.