Court name
High Court
Case name
S v Williams
Media neutral citation
[2007] NAHC 168











CASE NO.: CR
73/07






IN THE
HIGH COURT OF NAMIBIA






In the
matter between






THE STATE






versus






HENOCK WILLIAMS






[HIGH
COURT REVIEW CASE NO.: 571/07]







CORAM: PARKER, J. et SILUNGWE, A.J.



Delivered on: 2007 June 4


________________________________________________________________________



REVIEW JUDGMENT:


PARKER,
J:






[1] 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.





[2] 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,1
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)).”2





[3] 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.





[4] 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.





[5] In the
result, the conviction and sentence are set aside.








_________________


PARKER, J





I agree.








_________________


SILUNGWE,
A.J.


















1
1961
(1) SA 363 (T).




2
1965
(4) SA 14 (E) at 15G-H.