COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
NO: CA 67/2015
the matter between:
citation: Apollus v S (CA 67-2015)  NAHCMD 213 (22 July
SIBOLEKA J and USIKU J
on: 13 June 2016
on: 22 July 2016
Criminal law: A written plea of guilty covering the elements of
the offence drawn up by counsel in terms of section 112(2) of the
Criminal Procedure Act 51 of 1977 signed and confirmed on record by
the accused himself – stands as an unequivocal plea of guilty.
The appellant signed and confirmed a guilty plea drawn up by his
counsel in the Court a quo in terms of section 112 of Act 51
of 1977. He was convicted thereon for rape and sentenced to 15 years
There was no miscommunication or misdirection in the conviction and
In the result the appeal against conviction and sentence are
the result the appeal against conviction and sentence is dismissed.
J (USIKU J concurring):
This is an appeal against conviction and sentence. Mr. Nambahu
appeared for the appellant and Mr. Muhongo for the respondent. This
court appreciates both counsel’s arguments on the matter.
The grounds of appeal are as follows:
court erred in law and/or fact by accepting the accused’s
guilty plea regardless of the apparent miscommunication between the
accused and his counsel.
court erred in law and fact by accepting the accused plea which is
indeed vague and embarrassing in that is simply a restatement of the
allegations contained in the charge sheet without elaborating on his
admissions and/or admitting any element thereof and/or stating the
specific circumstances and manner in which the offense was
court erred in law and fact by holding that the state has proven its
case beyond reasonable doubt.
court erred in convicting the appellant of rape committed between 25
December 2008 and 2 November 2009 when in fact no admissions were
made to that effect.
court, in aggravation, erred in law and/or fact by accepting that
the complainant got pregnant as a result of this offence without the
accused admitting same.
court erred in law and fact by convicting the appellant with rape
under coercive circumstances if same were not admitted in his plea
and/or elsewhere during the proceedings.”
Ms. Dreyer appeared for the now appellant in the Regional Court,
Otjiwarongo on the following charges:
in contravention of section 2(1)(a) read with the provisions of
section 1, 3, 4, 5, 6 and 7 of The Combating of Rape Act, Act 8 of
sexual intercourse with a child under the age of sixteen in
contravention of section 14(a) read with sections 1, 12, and 14(2) of
Act 21 of 1980 as amended by Act 7 of 2000; Committing an immoral act
with a child under the age of sixteen in contravention of section
14(1)(b) read with sections 1 and 12 of Act 21 of 1980 as amended by
Act 7 of 2000.
The appellant pleaded guilty to the main count and not guilty to the
two alternative counts: The main count reads:
State vs Gideon Apollus
No: R/C 63/10
the accused is guilty of contravening section 2(1)(a), read with the
provisions of Section 1, 3, 4, 5, 6 and 7 of the Combating of Rape
Act, Act 8 of 2000: RAPE
that between 25th day of DECEMBER 2008
and 2nd NOVEMBER 2009 and at or near
MOOIPLAAS FARM in the Regional Division of Namibia, the
accused, did wrongfully, unlawfully, intentionally and under coercive
circumstances to wit:
IS UNDER THE AGE OF 14 TO WIT: 12 YEARS OLD, AND ACCUSED IS MORE THAN
THREE YEARS OLDER THAN COMPLAINANT TO WIT: 31 YEARS OLD
or continue to commit a sexual act with another person, the
complainant namely ELIZABETH GAOSES. The sexual act consisted
of the accused INSERTING HIS PENIS INTO HER VAGINA.”
A statement was prepared on behalf of the appellant in terms of
section 112(2) of the Criminal Procedure Act 51 of 1977 which was
read into record, signed and confirmed by the appellant, and it
THE REGIONAL DIVISION OF NAMIBIA HELD AT OTJIWARONGO
the matter between:
IN TERMS OF SECTION 112(2)
THE CRIMINAL PROCEDURE ACT
hereby state in terms of the aforesaid section as follows:
I am the Accused in the above matter.
I am being charged with:
in contravention of Section 2(1)(a) of the Combating of Rape Act, Act
8 of 2000, read with the provisions of Section 1, 2, 3, 4, 5, 6 and 7
of the said act and it is alleged that between 25 December 2008 and
02 November 2009 and at or near Mooiplaas Farm in the Regional
Division of Namibia, I did wrongfully, unlawfully and intentionally
under coercive circumstances, to wit: complainant is under the age of
14 to wit: 12 year old, and accused is more than three years older
than the Complainant to wit: 31 years old commit or continue to
commit a sexual act with another person, the Complainant, named
Elizabeth Goases by inserting my penis into the Complainant’s
I plead guilty to the charge. I admit the following facts and tender
my plea of guilty on the basis thereof:
I admit that between May 2009 and June 2009 I was at or near
Mooiplaas farm in the Regional Division of Namibia.
I admit that I wrongfully, unlawfully, intentionally and under
coercive circumstan- ces committed a sexual act with Elizabeth
I admit that I knew at the time of my actions that the complainant
was under the age of 14 years to wit 12 years.
I admit that I was more than three years older than the Complainant
to wit 31 years.
I admit that the sexual act consisted of me inserting my penis into
the vagina of the Complainant.
I admit that I knew at the time of my actions that such action was
wrongful and unlawful and punishable by law.
I admit that this plea was made freely and voluntarily and that I was
not unduly influenced.
In view of the foregoing I plea guilty to the crime as alleged in the
at OTJIWARONGO this 17th day of JUNE 2011
After the guilty plea statement was handed in to form part of the
record, the Prosecutor and the Magistrate pronounced themselves as
Mr Lino: Yes your worship the State accepts the guilty plea on the
The Court satisfied that you have admitted all the allegations of the
offence of Rape on the main count and finds you guilty …”
The above explanation by the appellant in the Court a quo about
what he did to the complainant is an unequivocal plea of guilty to
the crime of rape as contemplated in section 2(1)(a) of the Combating
of Rape Act 8 of 2000. In my view there was no prejudice occasioned
to him when he was convicted as he pleaded.
Some of the instances where the date and time of the commission of
the crime is of essence are the following:
plea of not guilty coupled with an alibi where the accused
pertinently alleges that he was not present at the scene of crime on
the alleged date and time. During the trial of such a matter the
prosecution would have to consider leading evidence in order to place
the accused at the scene of crime on the alleged date and time.
Another instance relates to offences of driving a motor vehicle on a
public road while under the influence of alcohol. Here the time frame
within which the suspect’s blood has been drawn for tests, is
In the present case here is how the legislature promulgated the
offence of Rape in the Combating of Rape Act 8 of 2000:
Any person (in this Act referred to as a perpetrator) who
intentionally under coercive circumstances –
commits or continues to commit a sexual act with another person; or
cause another person to commit a sexual act with the perpetrator or
with a third person shall be guilty of the offence of rape”
It is my considered view that the guilty plea tendered by the
appellant in the Court a quo fully satisfied all the required
elements of the offence of Rape. The verdict of “Guilty”
handed down by the Court a quo was in accordance with the law
and cannot be interfered with.
On sentence, section 3(1) of the Combating of Rape Act 8 of 2000
(1) Any person who is convicted of rape under this Act shall, subject
to the provisions of subsection (2), (3) and (4) be liable
in the case of a first conviction –
the complainant –
is under the age of thirteen years; to imprisonment for a period of
not less than fifteen years;
Taking into account the above penalty provisions, this court is
unable to find fault in the sentence of fifteen years the trial Court
imposed on the appellant.
In the result the appeal against conviction and sentence is
: Mr C. G. Nambahu
of Legal Aid
: Mr M. H. Muhongo
of the Prosecutor-General, Windhoek