IN THE HIGH COURT OF NAMIBIA
In the matter between
[HIGH COURT REVIEW CASE NO.: 571/07]
PARKER, J. et SILUNGWE, A.J.
2007 June 4
This matter is submitted to this Court for automatic review. The accused person was convicted of the statutory offence of trespassing, i.e. in terms of s. 1 of the Trespass Ordinance, 1962 (Ordinance 3 of 1962), and sentenced to 24 months’ imprisonment, of which 12 months were suspended for three years on condition that he was not convicted of the offence of trespass under s. 1 of Ordinance 3 of 1962, committed during the period of suspension.
In interpreting and applying the provisions of s. 1 of the South African Trespass Act, 1959 (Act 6 of 1959) which are identical to the Namibian provisions, Roberts, AJ, held in R v Venter, that a charge of trespass under the Act cannot succeed unless there is mens rea. Thus, the form if culpability required for the crime is intention. Venter was approved by Jennet, JP in S v Ziki where the learned Judge stated, “That mens rea must be present for the offence of trespass is clear (see R v Venter 1961 (1) SA 363 (T)), though the accused must show that it is absent (see S v Nkopane, 1992 (4) SA 279 (O)).”
What is the position in this case? In his evidence, the accused person admitted that he was found inside the grounds of the Onakathilo Club and that he did not have the permission of the owner or lawful occupier of the Club to be there. He testified further that he told the boy who found him in the Club that he was hiding from his uncle who wanted to take him to the cattle-post, and the Club was the nearest isolated place where he could hide.
Having considered the totality of the evidence, I think his story could reasonably possibly be true, and, therefore, in my view, the accused has shown that mens rea is absent. Thus, in my opinion, the learned magistrate should have concluded that the necessary mens rea was not present.
In the result, the conviction and sentence are set aside.