Court name
High Court
Case number
CC 21 of 2008

Musisuwa v S (CC 21 of 2008) [2009] NAHC 66 (03 June 2009);

Media neutral citation
[2009] NAHC 66





In the matter between:





Heard on: 09.03.2009; 31.03.2009

Delivered on: 03 June 2009


[1] The accused an adult male has pleaded not guilty to an indictment
containing a count of rape contravening section 2 (1) (a) of the
Combating of Rape Act, Act 8 of 2000. The accused wrongfully,
unlawfully and intentionally committed a sexual act with the
complainant by inserting his penis into her vagina under coercive
circumstances. At the time, the complainant was 4 years old below the
age of 13 years and the accused was more than 3 years older than the
complainant. This offence was committed on 12 April 2007 at Ombavia
village in the district of Outapi. The accused was convicted as

[2] The Court must now impose sentence
on him for the crime he has committed. Those are the demands of
Justice. In imposing a suitable sentence, this Court is guided by
well established theories pertaining to sentencing as set out in
v Zinn
1969 (2) SA 537 (A)
to wit preventative, reformative, deterrent and retributive. I must
further take into account the accused’s personal factors and
circumstances; the nature and seriousness of the crime committed; and
finally I must have regard to the interest of the society.

[3] With regard to the personal
circumstances of the accused, the accused did not testify in
mitigation and called no witnesses. However, his Legal representative
addressed the Court from the bar that his age was unknown, his
parents were still living, he was single without children. The
accused advanced up to grade 1. He repeated it five times. After he
failed for the fifth time his parents decided to take him to the
cattle post. Before he was incarcerated the accused was staying at
the house of the complainant’s grandmother. He was working at a
project for a certain Mwaala immediately before his arrest. He earned
N$400.00 per month. The accused assisted the complainant’s family
financially. The accused’s father is a pensioner who farms with
stock and had a crop field. His health condition started to
deteriorate after the accused’s incarceration. Therefore he wanted
to go and look after his father.

It was further submitted that the
accused was a first offender, who has been in custody for two years.
He showed remorse for the crime he committed and that he apologized
for what he did. These are factors which I consider to be in the
accused’s favour.

[4] The defence counsel submitted
further that before the accused committed this offence, he consumed a
traditional brew called “tombo” therefore this offence was not
pre-mediated. He argued further that the accused was a person of
sub-intelligence and that he was mental retarded. A health passport
for the accused was produced before this court. In the health
passport there were entries made that the accused was taken to the
hospital and the police officer who took him there reported that the
accused was complaining about loss of concentration. I consider this
statement to be double hearsay as neither the police officer nor the
person who made the entries was called to testify. Apart from the
above mentioned entries, there was another remark that the accused
appeared to be mental retarded, again the person who made these
entries or observations was not called to testify. It was not clear
for what purpose the health passport was produced. If it was for the
accused’s defence that he was for some reasons not criminally
responsible, such a defence should have been properly raised during
the trial. I accordingly do not rely on the information contained in
a health passport. So much for the personal circumstances of the

[5] The accused had committed a
serious crime of rape for which lengthy custodial sentences are
generally called for except in special circumstances. The victim in
this case was merely 4 years old at the time this offence was
committed hence vulnerable. This is regarded to be an aggravating
factor on the side of the accused. The accused was left alone with
the children at home. He pulled the victim to his room, took off her
clothes, and applied vaseline on her private parts in order to
facilitate easy sexual penetration. Thereafter he inserted his penis
into her vagina. When he realized that the child was too small and
that he could not fully penetrate, he then stopped, and it was at
that stage the complainant’s grandmother also arrived.

[6] Counsel for the defence insisted
that the complainant did not suffer physical injuries nor there was
any evidence of trauma or psychological injuries. Although there was
no visible injuries the crucial fact is that complainant’s rights
to dignity and privacy was seriously invaded and she was exposed to
immoral acts.

[7] The society abhors and resents
what the accused has done. Every law abiding citizen is concerned
with regard to the prevalence of violent crimes especially murders
and rapes against defenceless women, the aged and young children. One
cannot turn a blind eye to the cries of the society otherwise the
society will loose confidence in the administration of Justice and
resort to taking the law into their own hands. Therefore society
needs to be protected by the courts by imposing a sentence which is
proportionate to the gravity of the offence and the degree of
responsibility. The seriousness of the offence and interest of
society outweigh the accused’s personal circumstances mitigating

[8] In S
v Shapumba
1999 NR 342 (SC)
it was held that
crime of rape being an unlawful and forceful invasion of the body and
privacy of a woman, mostly with the purpose to satisfy the sexual
urge of the offender, can expect in the most exceptional
circumstances, not contained mitigating factors which could explain
the commission of the crime and diminish the moral blameworthiness of
the offender. Whereas there is very little that can mitigate the
commission of the crime there are certain specific factors which
would further aggravate and contribute towards seriousness of the
crime and consequent punishment thereof. Examples of these are the
rape of young children, amount of force used before, during or after
the commission of the crime…”

The offence of rape is prevalent in Namibia and it is considered in
a serious light. Section 3 (1) (a) (iii) provides that any person who
is convicted of rape under Act 8 of 2000 shall …in the case of
first conviction where the complainant suffered grievous bodily harm
and mental harm as a result of rape, the complainant is under the age
of thirteen years or is by reason of age exceptionally vulnerable…to
imprisonment for a period of not less than fifteen years.

[10] In terms of section 3(2) of the
Act it is not necessary for any court to adhere to the prescribed
minimum sentence if there are substantial and compelling
circumstances which justify the imposition of a lesser sentence than
the applicable sentence prescribed in subsection (1).

It was submitted by the counsel for
the defence that the following factors when combined constituted
“substantial and compelling circumstances”. The fact that the
accused is a first offender; he has been in custody for more than 2
years; that he consumed a traditional brew called “tombo” before
he committed the offence; the fact that he did not proceed further
to have sexual intercourse again with the complainant when he
realized that she was too small and that the accused was of

[11] In Levi
Gurirab vs The State
190/2004 unreported delivered on 12 July 2005. The question was
raised as to what was meant by the phrase “substantial and
compelling circumstances exist which justify as used in section 3 (2)
of the Combating of Rape Act, Act 8 of 2000.

The Court referred to S
v Lopez
2004 (4) NCLP 95
(HC) where Hannah J with whom Maritz J as he then was, concurred,
stated the following at 112.

The first matter to be addressed is
the meaning to be given to the words “substantial and compelling
reasons”. In addressing this question great assistance is to be
delivered from the judgment of Marais J A in S v Malgas 2001 (2) SA
1222 (SCA). In that case the South African Supreme Court of Appeal
was concerned with the construction of the phrase “substantial and
compelling circumstances” in section 51 (3) (a) of the Criminal Law
Amendment Act, 105 of 1977, which is almost identically worded to
section 3 (2) of our Act. Then at 1235 F the learned judge of appeal
summarized his conclusion in the following way:

  1. Section
    51 has limited but not eliminated the courts discretion in imposing
    sentence in respect of offences referred to Part 1 of Schedule 2 (or
    imprisonment for other specified periods for offences listed in
    other parts of Schedule 2).

  1. Courts
    are required to approach the imposition of sentence conscious that
    the Legislature has ordained life imprisonment (or the particular
    prescribed period of imprisonment) as the sentence that should
    ordinarily and in the absence of weighty justification be imposed
    for the listed crimes in the specified circumstances.

  1. Unless
    there are, and can be seen to be, truly convincing reasons for a
    different response, the crimes in question are therefore required to
    elicit a severe, standardized and consistent response from the

  1. The
    specified sentences are not be departed from lightly and for flimsy
    reasons. Speculative hypotheses favourable to the offender, undue
    sympathy, aversion to imprisoning first offenders, personal doubts
    as to the efficacy of the policy underlying the legislation and
    marginal differences in personal circumstances or degrees of
    participation between co-offenders are to be excluded.

  1. The
    Legislature, has however, deliberately left it to the courts to
    decide whether the circumstances of any particular case call for a
    departure from the prescribed sentence. While the emphasis has
    shifted to the objective gravity of the type of crime and the need
    for effective sanctions against it, this does not mean that all
    other considerations are to be ignored.

  1. All
    factors (other than those set out in D above) traditionally taken
    into account in sentencing (whether or not they diminish moral
    guilt) thus continue to play a role; none is excluded at the outset
    from consideration in the sentencing process.

  1. The
    ultimate impact of all circumstances relevant to sentencing must be
    measured against the composite yardstick (substantial and
    compelling) and must be such as cumulatively justify a departure
    from the standardized response that the Legislature has ordained.

  1. In
    applying the statutory provisions, it is inappropriately
    constricting to use the concepts developed in dealing with appeals
    against sentence as the sole criterion.

  1. If
    the sentencing court on consideration of the circumstances of the
    particular case is
    that they render the prescribed sentence unjust in that it would be
    disproportionate to the crime, the criminal and the needs of
    society, so that an injustice would be done by imposing that
    sentence, it is entitled to impose a lesser sentence.

  1. In
    so doing, account must be taken of the fact that crime of that
    particular kind has been singled out for severe punishment and that
    the sentence to be imposed in lieu of the prescribed sentence should
    be assessed paying due regard to the bench mark which the
    Legislature has provided”.


The combating of Rape Act does not
define what are to be considered as “substantial and compelling
circumstances”. However the Namibian Courts have endorsed and
adopted the interpretation of the words”substantial and compelling
circumstances” as explained by the South African Courts.

[12] I now turn to the issues whether
in this case “substantial and compelling circumstances” exist in
order for the court to deviate from imposing the mandatory sentence.

[13] The submissions that the accused
is a person of sub-intelligence, is a mere speculation by the defence
counsel. Speculation hypothesis favourable to the offenders, aversion
to imprisoning first offenders, the fact that he showed remorse and
that he consumed alcohol before he committed the offence and like
consideration were equally obviously not intended to qualify as
“substantial and compelling circumstances” unless the ultimate
impact of all the circumstances relevant to sentencing measured
against the composite yardstick (“substantial and compelling
circumstances”) must be such as cumulatively justify a departure
from the standardized response that the legislative has ordained.

The specific sentence should not be
departed from lightly and for flimsy reasons which could not
withstand scrutiny. In the absence of truly and convincing reasons,
this court has come to the conclusion that there are no “substantial
and compelling circumstance”.

[14] The court having considered the
personal circumstances of the accused; the fact that he has been in
custody for two years; the seriousness and prevalence of the offence
he was convicted of; the fact that the offence was committed against
a young child and the legitimate interest of the society; a stiff
sentence is called for not only to deter the accused but would be
offenders as well.

[15] In the result the accused is
sentenced as follows:

Twenty (20) years imprisonment, of
which two (2) years is suspended for 5 years on condition that the
accused is not convicted of Rape or Attempted Rape committed during
the period of suspension.



R. Shileka

of the Prosecutor-General

B. Uirab

Instructed by:

Legal Aid