Court name
High Court
Case name
S v Iyambo
Media neutral citation
[2007] NAHC 204















CASE
NO. CR 179/07





IN
THE HIGH COURT OF NAMIBIA








THE
STATE





and





GLORIA
IYAMBO






HIGH COURT REF
NO. 1773/07





CORAM: MANYARARA,
AJ
et
HINRICHSEN A.J





Delivered
on: 21 December 2007









REVIEW
JUDGMENT





HINRICHSEN
A.J.













[1] In this matter the accused aged 18
years of age was charged with having committed the crime of abortion
in contravention of Section 10 (1)(a), read with Section 1,2,3,5,6
and 11 of the Abortion and Sterilization Act 2 of 1975 (the Act) in
that on or about 15
th
September 2007 she wrongfully and unlawfully procured an abortion.
She pleaded guilty to the charge and stated in evidence that she
performed the abortion on herself thereby interrupting a pregnancy of
two months. She was found guilty and was sentenced to N$3,000 or two
years imprisonment on 17.09.2007. The Act prescribes no minimum
sentence.







[2] This sentence is completely out of
proportion to the crime committed. Even the Old Authorities stated
that sentences for abortion should be less severe where a very young
foetus is involved. The foetus in this case is only two month's
old. There seems to be a paucity of decisions concerning abortion.







[3] The Namibian case of the State v
Haimbodi 1993 NLR, page 120 and the State v Alweendo 1993 NLR, page
177 deal only indirect by with abortion but indicate that sentences
under circumstances like the present one are lenient.







[4] By comparison in the far more
serious cases involving the concealment of birth the sentences are as
a rule largely or totally suspended. (See the following unreported
cases of the High Court of Namibia –






Lucresia
Luwango CC 9/99, 18 years of age, three years imprisonment totally
suspended for 5 years on condition;



Lindia Shiwenda, CC 52/98, 19 years of
age, 5 years imprisonment of which 4 years are suspended for 5 years
on condition;)







[5] A further point to consider is
that the accused is a minor. Although she had "….nothing to
say" in mitigation, being a minor and undefended she should have
been actively encouraged to inform the Court about her subjective
circumstances and her motive for her deed. On this basis the Court
hearing the matter could have established to what extent her youth
contributed to the commission of the crime (See du Toit " STRAF
IN SUID-AFRIKA" 1981 Ed. Pages 12 and 55 to 56).







[6] Rumpff C J in the undermentioned
cases



S v Mohlobane 1969 (1) SA S61 A


S
v Lehnberg and Another 1975 (4) SA 553 (A)


S
v Matabane 1975 (4) SA 564 A


S
v Maarman 1976 (3) SA 510 A


S
v Mapatsi 1976 (4) SA 721 A






postulated that immaturity,
inexperience, lack of reason, and gullibility experienced in youthful
offenders cause them not to be measured morally by the same standards
as adults. In the present case these principles were not applied.







[7] The sentence imposed by the
Magistrate of Oshakati in this case is substituted for the following.







N$300 or 3 months wholly suspended on
condition that during the period of suspension the accused is not
convicted of a crime containing the element of abortion.









_________________



HINRICHSEN A.J.














I
agree











____________________



MANYARARA, AJ