Unit 1

High Treason
Introduction

High treason is a crime committed against the State. Snyman defines treason as:

A person commits high treason if, owing allegiance to the Republic of [Namibia], she unlawfully
engages in conduct within or outside the Republic, with the intention of (a) overthrowing the
government of the Republic; (b) coercing the government by violence into any action or inaction (c)
violating, threatening or endangering the existence, independence or security of the Republic; or (d)
changing the constitutional structure of the Republic (Snyman, 299:2008).

From the given definition the elements of the crime high treason are:

1. An overt act or omission (treasonous conduct)

2. (By) someone owing allegiance (SoA) to the Republic of Namibia

3. Unlawfulness

4. Hostile intention

Figure 1: Namibia and South Africa's high treason icons

Source: https://img.washingtonpost.com

Upon completion of this unit you should be able to:

  Discuss the elements of the crime high treason;
 Identify possible defences to various the elements of high treason;
 Apply the elements of the crime to a given scenario;
Outcomes

Snyman, CR. (2008). Criminal Law Fifth Edition. Durban: Lexis Nexis, pp
309-321.

State v Malumo (CC 32/2001) [2015] NAHCMD 213 (7-14 September

Prescribed reading 2015)

Burchell, J: Principles of Criminal Law, 3rd Ed, Juta and Company Ltd,
Lansdowne, 2005

Additional Reading

Allegiance: The loyalty owed by a citizen to his/her nation

state.

Overt: Open and done in plain sight.

Coerce: To compel to an act or choice.

Overthrow: To remove someone from power using force.

Hostile: Openly opposed or resisting

1. Elements of Crime

The elements/requirements of the crime high treason have been listed above. What follows is a
discussion of each of the outlined elements and the possible defences which the accused person can
raise to escape criminal liability.

1.1.1. An overt act or omission (treasonous conduct)

From the general principles of criminal law you have learnt that “criminal conduct” can manifest
itself in the form of either an act or omission. The crime of high treason is no exception to the
general principle underlining conduct. The conduct requirement for high treason is an overt act or
omission. In the Malumo case, an overt act has been defined as, any act,
 ‘if viewed objectively, which is seemingly and apparently to all appearances innocent, may establish
treason if it is performed with a hostile intent’- para 13.

The following are examples of acts of high treason.

 Verbal or written communications regarding the intent to overthrow, or violating the

independence of the State, or to coerce the government into action or refraining from any
action (Malumo case para 16)

 A declaration of allegiance to a leader of an organisation who has declared support for an

armed struggle or for liberation or independence of a part of a unitary State would amount
to high treason. (Malumo case para 16)

 Murdering, or attempting, conspiring or inciting to murder the political and military leaders
of the country.

 In times of war, assisting the enemy in fighting for it against the Republic or against one of
its enemies (Snyman, CR: 2008, p313-314).

An overt act may also be in the form of an omission. In this regard, Friedman J in S v Banda quoted in
the Malumo case at para 17, states the following:

“[…] the crime of treason provides an exception to the rule as to mere non-disclosure. It seems clear
that anyone who, knowing of the commission of this crime, refrains from giving information to the
authorities must by reason of this mere non-disclosure be regarded as having taken part in
treasonable conduct. Even bare knowledge of its attempt or commencement without disclosure of
the same to the authorities may render a person liable, even though the person has in no way taken
part in the plans of the principal offender. The afore-mentioned must apply with greater force to a
member of the armed forces, who has sworn an oath of allegiance to the State.”- at 572A-B.

From Criminal Law 1 you know that criminal conduct must be done voluntary and it must be that of
human being (except where someone act through the instrumentality of an animal). It follows that
the treasonous conduct must comply with these requirements too. Similarly, the accused person can
raise the defences usually available at this level to escape criminal liability.

Discuss, with the aid of case law, the defenses which can be raised by a
person being accused for having engaged in treasonous conduct.
Discussion
 Thabo, a Namibian citizen, is having a beer at Avoli shebeen in
Windhoek. Whilst minding his own business he overhears a discussion by
a group men plotting to assassinate the President and few other
Activity ministers. The men blame these politicians as being the main culprits for
the country’s economic woes. The planned assassinations is apparently
part of a bigger plan to topple/over-throw the current government.

Is Thabo obliged to report the planned assassinations to the

authorities? Substantiate your answer with reference to the Malumo
case.

1.2.2. The State need not actually be overthrown before high treason is committed

The state need not actually be overthrown before high treason is committed. It therefore means
that there is no such thing as “attempted high treason” but attempt will constitutes a complete act
of high treason. If it were a requirement of the crime that the State must cease to exist or lose its
independence through the act, it would be impossible to commit the completed crime, because
there would then be no state or government left to prosecute such an act of high treason (Snyman,
CR: 2008, p316). This has been confirmed in the Malumo case:,

“Attempts to destroy the existence, independence or safety of the State are punishable as completed
and not attempted high treason.”- para 14.

1.1.3. No difference between perpetrators, co-perpetrators, an accomplice and accessory after the
fact

For the crime of high treason there is no difference between perpetrators, co-perpetrators, an
accomplice and accessory after the fact. Similarly, incitement or conspiracy to commit high treason
are regarded as overt acts for purposes of the crime of high treason. However,

“a mere discussion of the possibility of acts of treason, not resulting in any agreement, nor including
any mutual incitement, does not amount to high treason”- Malumo case at para 15.

Refresh your memory on participants to a crime. Apply these to the

crime in question by reading the Malumo case para 14 and Snyman on
page 316
Note it! /
Warning

r 1.1.4 Persons owing allegiance to the Republic of Namibia

The second element/requirement is that the treasonous conduct must have been committed by
persons owing allegiance (POAs). POAs are citizens, residents and those domiciled in Namibia.
However, tourists, visiting business people, crews of foreign aircrafts or ships in distress are not
POAs. Owing allegiance objectively determine. That is why the court in Malumo case held:

“[…] all the accused persons are subjects of the Namibian State to whom they owed an allegiance
since the foundation of the Namibian State” – par. 1108.
 You may recall that despite the acclaimed statement delivered by Toivo ya Toivo during his treason
trial he, together with his co-accused, were convicted of high treason. Per Toivo ya Toivo:

“We find ourselves here in a foreign country, convicted under laws made by people whom we have
always considered as foreigners. We find ourselves tried by a judge who is not our countryman and
who has not shared our background [...] this court has no jurisdiction over us. […] We are Namibians
and not South Africans. We do not now, and will not in the future, recognise your right to govern us,
to make laws for us in which we have no say; to treat our country as if it were your property and us
as if you were our masters [...]” – Statement of Toivo ya Toiva in S v. Tuhadeleni and 36 Others.

1. 2.Unlawfulness

In your Criminal Law module, you learnt that unlawfulness is an element of all crimes. This,
essentially translate to “unjustified”. It therefore means that an act which would otherwise be
unlawful can be lawful in the presence of a justification. The crime of high treason is no exception to
the general principles underlying unlawfulness. In this context, some of the defences which may be
raised by the accused in charge of high treason include:

 Coercion;

 Democratic discourse.

1. 3.Intention

The hostile intention (animus hostiles) accompanying the act has been described as the definitive
element of high treason. It therefore means that the intention requirement of high treason is in the
form of hostile intention. But what is hostile intention?

Hostile intention comprises of the intention to unlawfully;

i) overthrow the Government,

ii) coerce the Government into action or inaction,

iii) violate, threaten or endanger the existence, independence or security of the Republic; or

iv) change constitutional structure of the Republic.

It follows that if X, has any of the above four intention then he has hostile intention which makes
him liable of high treason provided the other three elements of the crime has been met.

In Criminal Law 1 we explained intention as follows:

 Hostile intent must be factored into the above given equation. Thus, for the element of intention to
be fully met the accused:

 must be aware that s/he,

i) is engaging in treasonous conduct;

ii) owes allegiance to the Republic; and

iii) acting unlawfully.

 Additionally, must have a hostile intent (in whichever of the above outlined forms); and

 directs his/her will towards the commissioning of the crime.

1.5. Motive is irrelevant

You should not confuse motive with intention. X’s motive (the ultimate aim of X’s conduct) might be
to further an important societal goal, however X’s ultimate motive is relevant to the enquiry
whether treason has been committed or not.

Read Malumo case para 24 and answer the questions below.

a) What is the distinction between intention and motive?

Activity b) Can the fact that X’s ultimate goal is the achievement of some
solid or economic advantage for a portion or even for the whole
community, be taken to consideration in the enquiry of whether
treason has been committed or not?

1.6 Application of the Elements

 Below is the illustration of the application of the elements of the crime in its sequence starting from
conduct to intention and possible grounds of justification applicable to each element.

Read the Malumo case and attempt to answer the following questions.

a) Show why the court was satisfied that the State proved the
crime of treason against 30 of the accused persons.
Activity
b) On which ground were the remaining 35 accused persons found
not guilty.

c) Do you agree with the i) ‘same evidence test’ and ii) the ‘single
intent test’ as applied by the Court in relation to the crimes of
high treason, sedition and public violence? Substantiate your
answer.

d) Are certain aspects of the definition of the crime of high treason

compatible with the ius certum rule of Principles of Legality?
Substantiate your answer.
 Unit summary
In this unit you learned that the crime of high treason is committed
against the State. There are four element of the crime of high treason
namely (a) an overt act or omission (treasonous conduct) (b) done by
someone owing allegiance to the Republic of Namibia (c) unlawfully and
Summary with (d) hostile intention. You also learnt that for a crime of high
treason, intention cannot be regarded as exclusively forming part of the
culpability element but it also play a role in determining a treasonable
act. You should be able to apply all the four elements of high treason
and their possible grounds of justification.

The other two (2) crimes committed against the State are sedition and
public violence. Make your own summaries for these crimes. Make sure
to research Namibian case law on these crimes.

References
Snyman, CR. (2008). Criminal Law Fifth Edition. Durban: Lexis Nexis.

References
 Unit 2
Contempt of Court
Introduction

There are several crimes that may be committed against the administration of justice. These include
contempt of court, defeating or obstructing the course of justice, perjury, etc. In this study unit, we
will only look at contempt of court.

The crime of contempt of court may be committed both inside and outside of court either by
conduct or word. It may occur in various ways. For instance, singing in court or commenting on a
pending case.

To obtain a conviction for this crime the State must proof beyond reasonable doubt that the accused
intentional engaged in contemptuous conduct or words which adversely affects the administration
of justice by the courts in an unlawful manner. The crime in question has unique features. The
constitutionality of this crime has been challenged in other jurisdiction.

Upon completion of this unit you should be able to:

 Discuss the elements of the crime of contempt of court;

 Apply the elements of the crime to a given factual situation;
 Discuss the unique features of the crime of contempt of court;
 Critique the constitutionality of the crime of contempt of court;
Outcomes
 Discuss the culpability requirements of media practitioners for a
conviction of this crime;

Snyman, CR. (2008). Criminal Law Fifth Edition. Durban: Lexis Nexis, pp
315-327.

Prescribed reading

Burchell, J: Principles of Criminal Law, 3rd Ed, Juta and Company Ltd,
Lansdowne, 2005

Additional Reading

Contemptuous: Expressing or feeling a lack of respect.

Dignity: Integrity of the court.

Repute: Reputation.
Terminology Authority: The moral, or legal right or ability to control.

Violates: To break, infringe, or transgress a law, rule, agreement,

promise, instructions, etc.

Pending: About to happen or waiting to happen.

2.1 Elements of the crime

The elements of the crime of contempt of court are the following:

1. Contemptuous conduct which,

i) violates the dignity, repute or authority of a judicial body or judicial officer in his/her judicial
capacity; or

ii) the publication of information or commentary regarding a pending judicial proceeding, etc.

2. Administration of justice by the courts

3. Unlawfulness; and

4. Intention

The following subsections will discuss each of these elements.

2.1.1 Forms and features of the crime

Contempt of court may occur in two forms as shown the diagram below.
 Discuss, with examples from case law:

1. the meaning of contempt in facie curia

Activity 2. the meaning of contempt ex facie curia

The crime in question has unusual features. What are these features? Also, the constitutionality of
this crime has been challenged in other jurisdictions such as South Africa. What is the situation in
Namibia in this regard?

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

2.1.2 Contemptuous conduct

Contemptuous conduct may occur in various ways. The following is a convenient scheme for
classifying the different ways in which the crime can be committed.
 Source: Snyman, 2014.

The alleged contemptuous conduct, whether done in facie curia or ex facie curia must be done
voluntary. For instance, twelve (12) Caprivi secessionists in 2006 were convicted of contempt of
court for interrupting court proceedings by singing and shouting slogans in court. It is conceivable
that a person who fell asleep in court, and who shouted of loud whilst in a dreaming state could
raise automatism as a defence to escape criminal liability. Similarly, the person who had two (2)
court appearances scheduled for the same day, the same time, and in different courts would be able
to raise impossibility on a charge of contempt of court for non-appearance at one of the court
sessions.

Find examples from Namibian case law of contemptuous conduct for

each of the following:

 commenting on pending case;

Activity
 interference with witnesses;

 scandalising the court;

 obstructing court officials; and

 simulating court processes.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

2.1.3 Administration of justice by the courts

Contempt of court can only be committed if the conduct or words impinges upon the administrative
of justice in or by the court. It thus follows, the following cartoon does not amount to contempt of
court. Can you explain why not?
 Source: The Namibian.

Does the following impinge the administration of justice? Fully

substantiate your answer.

1) Labelling the actions of NamPol and the NDF barbaric during

Discussion their joint ‘Operation Hornkranz’ and ‘Operation Kalahari
Desert’.

2) Criticizing the New Equitable Economic Empowerment

Framework Bill.

2.1.4 Unlawfulness

You know now that every alleged unlawful conduct may be excused by the court if there are an
acceptable ground of justification for having done so. For instance, for the crime in question fair
comment, and privilege statement raised by a member of parliament are recognised grounds of
justification to escape criminal liability for a conviction of contempt of court.
 Thinking Point 1:

Consider the following statement:

“Justice is not a cloistered virtue: she must be allowed to suffer the

Discussion
scrutiny and respectful, even though outspoken, comments of ordinary
men” (per, Lord Atkin).

Is the judiciary untouchable? Fully motivate your answer.

Thinking Point 2:

“They presented our judiciary as uncaptured rational zones differing from

the political elites populating the legislature and executive. We therefore
Discussion channeled our energy and little resources to the courts – the 'uncaptured
rational zone'. We were naïve, we later discovered.

We discovered the following; (1) whereas the Republic of Namibia is

founded upon, in Article 1(1) the Constitution, principles “of democracy,
the rule of law and justice for all”, the courts are concerned mainly with
the rule of law, and little with justice for all; (2) our judiciary is pro-rich
and anti-poor; (3) it lacks social consciousness, and is mechanical (form
and not substance); (4) it is impossible to achieve justice for all in such an
arena.” – per Job Amupanda, The Namibian, 29/03/18, p.10

Does this statement qualify as fair comment? Why? Why not?

2.1.5 Intention

The form of culpability required for a conviction of this crime is intention. To this end, dolus
eventualis is sufficient. This is, where the accused foresaw the possibility that his/her conduct or
words may impinge the administration of justice, reconciled him/herself with that possibility and
continued nonetheless in doing exactly that.

In the case of editors, the culpability requirement is negligence. Why? Is this exception justified?

Make sure to educate yourself thoroughly on the culpability

requirement of media practitioners for this crime. This is an ideal exam
question!
Note it! /
Warning
 Unit summary
In this unit you learned about one of several crimes which may be
committed against the administration of justice, namely, contempt of
court. To obtain a conviction for this crime, the State must proof beyond
reasonable doubt that the accused engaged in conduct or words which
Summary impinges the administration of justice by the courts in an unlawful and
intentional manner. You also learned that this crime can be committed
both inside and outside of court in a number of ways.

We have seen that the other crimes committed against the

administration of justice include i) defeating or obstructing the course of
justice, and ii) perjury. Make your own summaries for these crimes.
Make sure to research Namibian case law on them.

References

Snyman, CR. (2008). Criminal Law Fifth Edition. Durban: Lexis Nexis.

References
 Unit 3
Rape

Introduction

The next three (3) units will cover sexual crimes. These are rape, sexual offences against minors, and
indecent assault. Other sexual crimes such as incest, bestiality, sexual acts with a corpse will not be
covered. These crimes are still prescribed though and must thus be self-studied. In this unit we
discuss the crime of rape.

In Namibia, the crime of rape is governed by the Combating of Rape Act (No. 8 of 2000). This Act
developed the common law crime of rape. For instance, under the common law rape is narrowly
defined in that only women can be raped. Also, rape could only be done through sexual intercourse.
In terms of the Combating of Rape Act (CORA), on the other hand, both women and men can be
raped. Also, the Act provides that a person can be raped either virginally, anally or even by way of
coercive oral sex.

In discussing the crime of rape under the Act, we will be looking at the elements of the crime, the
notion of coercive circumstances, marital rape, compelled rape, and punishment upon conviction.

Upon completion of this unit you should be able to:

 Discuss the main difference between rape under the common

 law and rape under the Combating of Rape Act) ;

 List the elements of statutory crime of rape;

Outcomes
 Apply the elements of the crime of rape to a concrete situation;

 Discuss the minimum sentences imposed by the Rape Act;

 Discuss the notion of substantial and compelling circumstances

in the context of rape as has crystallised through Namibian case
law;

Snyman CR Criminal Law 6th ed (2008) LexisNexis, Durban. Pg343-360

Prescribed reading

Burchell, J. (2005). Principles of Criminal Law. Cape Town: Juta.

Additional reading Hubbard, D. (2006). Rape in Namibia: An Assessment of the Operation of

the Combating of Rape Act (No. 8 of 2000) Summary Report. Danida:
Royal Danish Ministry of Foreign Affairs.
 Cautionary: Serving as a warning.

Coercive Use of force or intimidation to obtain compliance.

Complainant: A person who has an issue and is making a charge

Terminology
in a court of law.

Compel: To force someone to do something.

Compelling: An argument or reason that convinces you that

something is true.

Perpetrator: Someone who has committed a crime or a violent

or harmful act.

Substantive: Having a firm basis in reality and therefore

important, meaningful, or considerable.

3.1. The definition of rape

Under common law rape is defined as: ‘the unlawful and intentional sexual intercourse with a
female without her consent’. On the other hand, in terms of section 2(1) of the Combating of Rape
Act (CORA):

‘any person […] who intentionally under coercive circumstances -

(a) commits or continues to commit a sexual act with another person; or

(b) causes another person to commit a sexual act with the perpetrator or with a third person, shall be
guilty of the offence of rape’.

What are main fundamental differences of rape under the common law
compared to rape under the CORA?

This is a self-study exercise. You are strongly advised to attempt it.

The next subsections dissects the various aspects of the crime as provided for in the CORA.

3.2 Elements of the crime of rape

The elements of the crime of rape, as extracted from section 2(1) of the CORA, are:

1) A sexual act

2) Under coercive circumstances

3) Unlawfulness
 4) Intention

3.2.1 Sexual act

The conduct requirement of rape is a sexual act. A sexual act is defined in section 1(1) of the Act as:

(a) the insertion (to even the slightest degree) of the penis of a person into the vagina or anus or
mouth of another person; or

(b) the insertion of any other part of the body of a person or of any part of the body of an animal
or of any object into the vagina or anus of another person, except where such insertion of any part of
the body (other than the penis) of a person or of any object into the vagina or anus of another person
is, consistent with sound medical practices, carried out for proper medical purposes; or

(c) cunnilingus or any other form of genital stimulation;

The sexual act, needless to say, must be done voluntary. It is clear from the definition that the
sexual act can be committed by both men and women. It can also be committed through the
instrumentality of another person or even an animal.

Source: The Namibian

Read S v Khulewind CC 13/2010 (14 August 2014).

1. What was the sexual act complained of in this case?

2. What is the current legal position of Namibia in regards to

penetration?

This is a self-study exercise. You are strongly advised to attempt it.

 In the case of S v Swart No. CC 08/2010 case, X a 16 -year -old male had
raped a Y a 4-year-old female by inserting his finger into her vagina. The
judge Miller AJ, in his decision stated:
Case Study / “Since the enactment of the Act the question of the part of the accused’s
Example anatomy, be it a penis or a finger, or some other object is irrelevant.
What is relevant as far as sentence is concerned will be the consequences
of the insertion of whatever part of the anatomy or object into the
vagina of the Complainant were.”

Read the case of S v Nicky de Klerk no CC19/07 (HC), and answer the
following questions.

1. What defence did the accused raise to exclude his conduct?

2. Why did the court reject this defence? Explain fully.

3. Do you agree with the court’s decision?

4. What is the difference between automatism and antecedent

liability? Which of this two was in question in this case?

Scan Namibian case law for other examples of sexual acts found
punishable by the courts

The sexual act complained of must have been done under coercive circumstances.

3.2.2 Size doesn’t matter

For a conviction of the crime of rape under CORA, size does not matter. This is provided for in
section 1(1)(a) of the Act. In terms of this section, even the slightest degree of insertion of the penis
of a person into the vagina or anus or mouth of another person is regarded as a sexual act. This was
confirmed by Justice Naomi Shivute in S v Shikongo. In this case she held that:

“The size and degree of penetration are not determining factors whether a sexual act took place or
not.” – par. 12.
 Read S v Sikongo (CC19/2018) [2019] NAHCMD 199 (20 JUNE 2019).

1. What was the sexual act complained of in this case?

Activity 2. Explain how the court dealt with the defence counsel’s
application for the victim to be recalled to come and explain (to
the court) the degree of the alleged penetration of the penis
into her vagina as well as the size of the accused’s penis
respectively.

3. Do you agree with the court’s finding and reasoning?

Substantiate your answer.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

3.3 Coercive Circumstances

The element reflects one of the most crucial differences between common law crime of rape and
under the CORA. Whereas the common exclusively forbids non-consensual sex, the CORA prohibits
any sexual act committed under ‘coercive circumstances’. What constitutes ‘coercive
circumstances’? Coercive circumstances is broadly defined in section 2(2) of the CORA. The section
gives examples of coercive circumstances. The use of the word ‘includes’ indicates that the examples
given do not constitute a closed list - numerus clauses.
 Read section 2(2) of Combating of Rape Act 8 of 2000. State, with
reasons, whether the following situations would amount to ‘coercive
circumstances’.
Activity
1. James and Maria are engage in foreplay and heavy petting. They
later proceed to have sexual intercourse.

2. James hits Maria on the head and afterwards has sexual

intercourse with her.

3. James tells Maria that if she does not have sexual intercourse
with her, he will kill her parents and one month old daughter.
Maria agrees then agrees to have sex with James.

4. James, who is 23 years old, has sex with Maria who at the time is
13 years old.

5. James drags Maria out of her house, locks her up in his

apartment where he repeatedly has sexual intercourse with her.

6. Maria suffers from a mental disability known as bipolar. James

has sexual intercourse with her.

7. James ‘spikes’ Maria’s drink with an unknown substance which

enhances libido. He afterwards has sex with her.

8. James finds Maria asleep after she took some sleeping pills to
calm her nerves. He has sexual intercourse with her whilst in a
deep state of sleeping.

9. Maria, whilst in a drunken state, suggests to have sex with

James. He agrees and the two then have sex.

10. Maria agrees to have sex with her lecturer James in exchange for
good pass grades.

11. Maria, a female police officer, orders James, a male sex worker
to have sex with her to avoid arrest. James agrees and the two
have sex.

12. Maria, a sex worker, agrees to have sex with James for an
agreed fee. After the sexual act James refuses to pay.
 Read the case of Mtshibe v The State (CC 15-2008) [2014] NAHCMD.

1. Identify and discuss the coercive circumstances applicable in this

case.
Activity
2. What was the finding and reason of the court in this regard?

3. Do you agree? Explain yourself.

1. Scan Namibian case law for other examples of ‘coercive

circumstances’ found reprehensible and thus punishable by the
courts.
Note it! / 2. ‘Coercive circumstances’ as used in the CORA has not replaced
Warning the common law ‘lack of consent’.

3. ‘Consent’ obtained from a child under 14 automatically amounts

to ‘coercive circumstances’.

3.3.1 Gang Rape

The issue of gang rape is very serious in Namibia. Heavy penalties are handed out to perpetrators
who are convicted of such a heinous act. This courts have viewed such acts at as abhorrent and
intolerable. Gang rape can simply be defined as the rape of one person by a group of other people or
multiple persons at the same time.1

1
 Source: Legal Assistance
Centre (LAC)

Read the cases of:

S v Gau Gaob and Others (CC 03/2013) [2015] NAHCNLD 40 ( 6 August

2015); and
Activity
Gaseb and Others v The State 2000 (1) SACR 438 (NMS)

1. Summarise the facts of these cases and highlight the issue of

gang rape as it transpired in each respectively.

2. Use these cases as a baseline to summarise the court’s attitude

towards the issue of gang rape.

3. How is this attitude reflected in sentencing in cases of alleged

gang rape by the court?

3.4 Unlawfulness

Like for any other crime, certain grounds of justification may be raised to exclude the unlawfulness
of the complained act. Some of the defences available for the crime of rape include consent,
coercion, official capacity, etc.
 Analyse the following scenarios. Identify which defence, if any, can be
raised in each case.

1. X and Y agreed to have sex. However, five minutes into the

Activity
encounter Y changes her mind and ask X to stop. X refuses and
continues.

2. X is a sex worker who was caught by the Mr Y, a police officer. In

order to avoid being arrested, X agrees to have sex with Y.

3. An army officer tortures and rape female civilians on the

instructions of his commander.

4. James has sex with Maria after Rose, Maria’s friend gives him
permission to.

5. Maria believes that all James requires from the contract entered
is a dinner date and she agrees. At the end of the night James
has sexual intercourse with her as he was under the impression
she has agreed to that.

6. Thabo, a male nurse inserts his finger into Maria’s vagina as part
of the routine medical check-up.

3.4.1 Marital Rape

Source: Legal Assistance Centre

Marital rape, often referred to as spousal rape, is rape that occurs within the four walls of a
marriage. Marital rape means any unwanted sexual acts by a spouse or ex-spouse that is committed
without the other person's consent. Such illegal sexual activity are done using force, threat of force,
intimidation, or when a person is unable to consent. The sexual acts include intercourse, anal or oral
sex, forced sexual behaviour with other individuals, and other sexual activities that are considered
 by the victim as degrading, humiliating, painful, and unwanted.2 Section 2(3) of the CORA in clear
terms states that: “No marriage, or other relationship shall constitute a defence to a charge of rape”.

Read S v Malgas (CR 637/ 05) [2007] NAHC 39 (25 January 2007).

Analyse the facts of this case and discuss the reasons why the court
convicted the husband for raping his wife.

3.4.2 Compelled rape

Any person (A) who unlawfully and intentionally compels a third person (C) to commit a sexual act
with another person (B), without the consent of such a person i.e. the complainant (B), is guilty of
the offence of compelled rape. The issue of compelled rape is catered for in section 2(1)(b) of the
CORA. In terms of this section, a person who intentionally and under coercive circumstances causes
another person to commit a sexual act with the perpetrator or with a

third person, shall be guilty of the offence of rape.

Read S v, Lukas CASE NO. CC19/07 (HC)

Activity 1. Summarise the facts of this case and highlight the issue of
compelled rape as it transpired in this case.

2. What was the decision of the court in this regard?

3. What was the reasoning behind its findings?

4. What is the significance of this finding on the issues of sexual

exploitation and sexual grooming of children?

3.5 Intention

The culpability requirement for the crime of rape is intention. This simply means that one cannot
rape another negligently. Do you still remember our shorthand definition for intention in Criminal
Law 1? We said, that intention is ‘to know and to will an unlawful act or result’. From this it follows
that the person who:

 Knows/ foresees that,

1) his/her sexual act,

2) is or is likely to be committed under coercive circumstances, which

3) will it renders it unlawful, but

2
Retrieved from https://definitions.uslegal.com/m/marital-rape/. Last accessed on the 9th of August 2018.
  still continues to do such as act, will be said to have had intention at the time when s/he
performed the complained act.

Mistake can be raised as a defence to escape a conviction on a charge of rape.

Discuss, and give examples from case law of each of the following:

1. sex by fraud i.r.o. of the identity of the person (error in

personae);
Activity
2. sex by fraud i.r.o of the nature of the act (error in negotio).

3.6 Prescribed penalties

Section 3 of the CORA prescribes the minimum penalties to be imposed upon a conviction of rape.

Read section 3 of the CORA and answer the following questions.

1. State the requirements set in the act for sentencing?

Activity 2. What is the minimum sentence given for a first time offence and
a subsequent offence?

3. What is the meaning of substantive and compelling

circumstances?

4. Explain how substantial or compelling evidence might affect the

court’s decision when imposing a sentence? Give examples from
Namibian case law where such considerations were at issue.

5. Find cases where the court refused to deviate from the

prescribed minimum sentences.

Read S v Swartz Case (CC 08/2010), (unreported), delivered on 18

November 2011 and answer the following questions.

S v Malgas (CR 637/

Activity
1. Briefly summary the facts of this case.

2. Discuss the finding and reason of the court in this case?

3. Discuss the punishment imposed by the court in this case. Do

you agree with the stance taken by the court? Substantiate
 Unit summary

In this unit you learned about the statutory crime of rape as created
under the Combatting of Rape Act of 2000. You have learned that this
Act broadens the scope of rape. Some of the major differences between
rape created under the Act and rape under the common law relate to
Summary the conduct requirement and the definitional element of the crime. You
have also learned that any person can be raped and that rape can occur
in various way under coercive circumstances.

References-

Snyman, CR. (2008). Criminal Law Fifth Edition.

Durban: Lexis Nexis..

References
 Unit 4
Sexual offences against children
Introduction

In previous unit, you have learnt about rape. In this unit, we specifically consider sexual offences
which may be committed against children.

The sexual offences which may be committed against children are mainly governed by the
Combating of Immoral Practices Act (No. 21 of 1980) – CIPA, and the Combating of Immoral
Practices Amendment Act (No. 7 of 2000) – (CIPAA). The mainstay of these Acts are to protect
children from sexual exploitation. These Acts thus criminalise the sexual exploitation of children.
Child sexual exploitation, as explained by NSPCC Learning, is a type of child sexual abuse. It occurs
where an individual or group takes advantage of an imbalance of power to coerce, manipulate or
deceive a child or young person into sexual activity. The statutory protection against child sexual
exploitation under these Acts is granted to a child or young person, who, for purposes of these Acts
are those under the age of 16. Meanwhile, a child is defined as someone under the age of 18 in
terms of the newly-promulgated Child Care and Protection Act (CCPA). This clear signifies a
misalignment and begs the immediate question: should the age limit against sexual exploitation be
aligned with the CCPA?

Upon completion of this unit you should be able to:

 Discuss the meaning of the crime statutory rape;

 Discuss the criminalisation of a sexual act with a child under the
CIPAA;
 Discuss the criminalisation of an indecent act with a child under
Outcomes
the CIPA;
 Discuss the criminalisation of an immoral act with a child under
the CIPA;
 Critique the criminalisation of consensual adolescent sexual
conduct;
 Advance reasons for law reform to combat child pornography.

The Combating of Immoral Practices Act (No. 21 of 1980);

The Combating of Immoral Practices Amendment Act (No. 7 of 2000);

Prescribed reading

Self-researched Namibian case law on the topic.

Additional reading
 Abuse Any action that pressures or coerces someone to
do something sexually which they don’t want to
do.

Terminology Adolescent: A young person in the process of developing from

a child into an adult.

Consensual: Involves the willing participation of both or all

parties.

Exploit: To use someone or something unfairly for your

own advantage.

Immoral: Conflicting with generally or traditionally held

moral principles.

Indecent: Offensive to accepted standards of decency or

modesty.

Predator: Any organism that exist by preying upon other

organisms.

Presumption: An idea that is taken to be true, and often used as

the basis for other ideas, although it is not known
for certain.

4.1 Statutory rape

Analyse section 14 of the CIPAA. Highlight the following from your

analysis:

1. the meaning of a sexual act;

Activity
2. the protected age range;

3. protection from what?

4. protection against whom?

5. the crime committed in terms of section 14 of the CIPAA?

6. the crime committed in terms of section 2 (2) (d) of CORA?

 This is a self-study exercise. You are strongly advised to attempt it.

Feedback

Statutory rape is a variation of rape. Whereas rape occurs non-consensually and under coercive
circumstances, statutory rape refers to consensual sex with a minor under the age of consent. The
consent given by the minor is, however, not accept in law. The age of consent to a sexual act in
Namibia is 16. Section 14 of the CIPAA and section 2 (2) d) of the Combating of Rape Act (No. 8 of
2000) – CORA, respectively, criminalise the commissioning of a sexual act, indecent or immoral act
with minors under certain circumstances. Similarly, to solicit or entices a child to such is also
prohibited.

4.2 From case law

Source: UNICEF Namibia

Case law shows that sexual abuse and exploitation of children is rife in Namibia. This occurs in the
form of child trafficking, child prostitution, the ‘blesser’ phenomena, bogus healing and curing
practices, to mention but a few. For instance, these despicable acts were complained of in cases
such as S v Savage and S v Koch, State v Nghidini, Gomaseb v The State, amongst others.

Scan Namibian case law for examples where the CIPA and

the CIPAA were at issue. Specifically, scout for cases where

a minor child was either solicited or enticed to engage in

a sexual act, an indecent or immoral act, including attempts involving:

 intergenerational sexual acts with minor;

 sexual acts in exchange for financial support;

 sexual acts procured to reportedly cure medical sicknesses;

 sexual acts procured to reportedly receive spiritual cleaning;

 child prostitution;

 child trafficking; and

 being in the presence of or watching self-masturbation.

This is a self-study exercise. You are strongly advised to attempt it.

4.2.1 Presumptions

The 1980 Combating of Immoral Practices Act created very presumptions. In Hendricks & Others v
Attorney General, Namibia & Others 2002 NR 353 (HC) some of these presumptions were
challenged.
 Study the Hendricks case and answer the following questions:

Activity 1. List all the presumptions challenged in this case;

2. Discuss the court’s finding in respect of each of the challenged

presumptions.

3. What was the court’s decision in respect of each of the challenged

presumptions?

4. What was the court’s finding and decision in respect of the

constitutionality of prostitution?

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

4.2.2 Defences

Like for any crime, certain defences can be raised by an accused person alleged to have contravened
a provision of the CIPA and CIPAA. In this regard, the CIPA creates specific defences which avails to
an accused person. Additionally, the general defences available to evade criminal liability is also
available to such a person.

1. Scrutinize the CIPA for examples of defenses available to an

accused person under this Act.

Activity
2. Discuss, with the aid of Namibian case law, instances where
some of these and other defenses were raised by the accused.
 This is a self-study exercise. You are strongly advised to attempt it.

Feedback

4.2.3 Consensual sexual acts between adolescents

The issue of consensual sexual acts between adolescents is still a grey area in Namibia. For instance,
a romantic relationship between two minors aged 14 and 17 who are sexually active, strictly
speaking falls within the ambit of the CIPAA. In other words, the 17 year old may be prosecuted
under the Act. Should this be the case though?

The primary objective of section 14 of the CIPA is, arguably, is to protect children between the ages
of 14-16 from adult sexual predators and not to criminalise consensual sexual acts between
adolescents.

The matter of consensual sexual acts between adolescents was at issue in Teddy Bear Clinic for
Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014
(2) SA 168 (CC). In this case the South African Constitutional Court (SA ConCourt) was called upon to
decide on whether the criminalization of consensual sexual acts between adolescents was
constitutional.

Activity Read the Teddy Bear case answer the following questions.

1. Summarise the facts of this case and highlight the issue of

consensual sexual acts between adolescents as it transpired in this
case.

2. What was the decision of the SA ConCourt in this regard?

3. What was the reasoning behind its findings?

4. Do you agree with the court’s finding? Why? Why not?

5. Scrutinise Amendment Act 5 of 2015 to see how the SA legislature

went about to accommodate the ConCourt’s ruling in the Teddy
Bear case.

6. Do you think similar law reform is necessary in Namibia?

Substantiate your answer.
 This is a self-study exercise. You are strongly advised to attempt it.

Feedback

4.3 Child pornography

Even child pornography is criminalised in Namibia, but concept is not defined. Specifically, the Child
Care and Protection the CCCPA, (Act No. 3 of 2015) creates the crimes but does not define what it is.
This, arguably, raises issues of legality. With that said, section 234 (1)(d) of the CCPA forbids any
person to:

[…] induce, procure, offer, allow or cause a child to be used for purposes of creating child
pornography, whether for reward or not.”

So what constitutes child pornography? This answer can be gleaned from article (2)(c) the Optional
Protocol to the Convention on the Rights of the Child (OPSC). The OPSC defines child pornography as
follows:

“Child pornography means any representation, by whatever means, of a child engaged in real or
simulated explicit sexual activities or any representation of the sexual parts of a child for primarily
sexual purposes.”

Namibia ratified the OPSC. Its definition thus forms part of Namibian law in terms of article 144 of
the Constitution. This definition is scrutinised in a UNICEF 2016 UNICEF Legal Brief on Namibia
Children, and deserves full quotations.

“This definition is very comprehensive as it is not limited to visual depiction, but also includes non-
visual depictions, such as text and sound. However, the definition does not cover virtual child
pornography or the case in which the actor is made to appear to be a minor.3 Virtual pornography is
the production of morphed or blended artificially created images of children involved in sexual
activities.4The realism of such images creates the illusion that children are actually involved. The term
“simulated” does not aim to cover virtual pornography, it rather refers to the sexual conduct, which

3
ITU, Understanding cybercrime: Phenomena, challenges and legal responses, September 2012, p. 170.
4
Najat M’jid Maalla, Report of the Special Rapporteur on the sale of children, child prostitution and child
pornography, 07/2009 (UN Doc. A/HCR/12/23), p. 7.
 can be real or simulated. This definition covers most cases of child pornography. However, nude or
semi-nude pictures in sexually suggestive postures but not showing the genitals of the child (“erotic
posing”) are not covered by the current definition. The term “erotic posing” hence includes
deliberately posed pictures of fully, partially clothed or naked children in sexualised or provocative
poses, which do not show the sexual parts of a child. In contrast, “explicit erotic posing”, which
describes pictures emphasising genital areas, where the child is either naked, partially clothed or fully
clothed, are covered by the provision.5 Erotic posing, it is argued, should also be included in the
definition as it is also child exploitation.”6

The Combating of Immoral Practices Act, the Combating of Rape Act,

and the Child Care and Protection Act all do not adequately address child
Activity
pornography. Look at other comparable jurisdictions and craft a
definition of child pornography containing a comprehensive catalogue of
offences.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

5
Terminology according to the COPINE (Combating Paedophile Information Networks in Europe) scale.
6
As legislative example, Germany and South Africa included erotic posing in their definition of child
pornography. Germany defined erotic posing as follows: “nude or semi-nude depiction of a child in an
unnatural or sexually suggestive posture” (Section 184c Criminal Code). This clear and precise wording can
serve as best practice for Namibia.
 Vincent who are 28, and Lucia, 30 are married. Their relationship has
been experiencing difficulties. Vincent has temporarily started seeing a
new girlfriend, Marteen. Marteen tells Vincent one evening that she is
Case Study / ready to take their relationship to a new level, and, as she is 16 it is her
Example choice. Vincent has a suspicion that she is younger but decides to go
ahead and have sexual intercourse with her. In fact, it later transpired
that she was only 15 years old.

When Lucia hears about this she is desperate to get Vincent back. She
invites him into the marital home for a romantic evening. The evening
went well and they both consume a lot of wine. Lucia finds herself
agreeing to sexual intercourse with Vincent. About 30 seconds after
engaging in sexual intercourse, Lucia decides against it and asked
Vincent to stop. Vincent refuse to stop and continues.

Both Marteen and Lucia claim that they have been raped.

Advise Vincent.

(Hint: this question is taken from the October /November 2017 Main
Exams. It counted 25 marks!).

Unit summary
In this unit you learned about sexual offences which able be committed
against young persons. This include statutory rape i.e. consensual sex
between a child between 14-16 years and someone who is three (3)
years older than the child in question. Other sexual offences include
Summary soliciting or enticing a child to engage in an indecent or immoral act. You
also learned about the criminalisation of child pornography.

The next unit will discuss the crime of indecent assault as the last sexual
offence covered in this module.

References

Snyman, CR. (2008). Criminal Law Fifth Edition. Durban: Lexis Nexis.

References
 Unit 5

Indecent Assault

Introduction

This unit brings to a close the sexual offences discussed in the Criminal Law 2 module. In this unit we
discuss indecent assault.

Indecent assault is still a common law crime in Namibia. Indecent assault, according to Snyman
consist of the:

“[…] unlawful and intentional assaulting, touching, or handling another in circumstances in which
either the act or the intention with which it is committed is indecent.”

From the given definition it is clear that this crime can be committed in various ways. Also, what is
criminalised is either the indecent act or the indecent intention. This will become clear later in this
unit.

It is worth pointing out that this common law crime has in the meantime been transformed into a
statutory crime in South Africa. In South Africa indecent assault is now called sexual assault. In
Namibia we still adhere to the common law crime of indecent assault. Please note this difference!

Also take notice, that the latest version of the prescribed textbook therefore does not include the
crime of indecent assault. For this reason you need to consult Snyman CR Criminal Law 4th Ed (2008)
for this study unit.

Upon completion of this unit you should be able to:

 Comment on the two different approaches to the crime of

indecent assault;
 Discuss the elements of the crime indecent assault;
 Apply the elements to a given scenario;
Outcomes
 Discuss instances of an innocent act accompanied with an
indecent intention;
 Discuss the various defences which may be raised to evade a
conviction of indecent assault;
 Recite Namibian case law involving indecent assault.

Snyman CR Criminal Law 4th Ed (2008), LexisNexis, Durban, pages 436-

439.

Prescribed reading

Burchell, J. (2005). Principles of Criminal Law. Cape Town: Juta.

Additional Reading
 Assault: Harmful or offence contact.

Erogenous zone: An area of the human body that has heightened

sensitivity, the stimulation of which may generate
Terminology a sexual response, such as relaxation, the
production of sexual fantasies, sexual arousal and
orgasm.

Gender-neutral: Relating to people and not especially to men or to

women.

Indecent: Offensive to accepted standards of decency or

modesty.

Irrebuttable: Incapable of being rebutted or refuted.

Non-erogenous: An area of the human body not usually associated

with sexual arousal;

4.1. Two opposing views regarding the nature of crime

5.1.1 1st View/Approach

In terms of this view, the crime indecent assault does not require any form of additional intention.
The indecent act of the accused person is what needs to be indecent. This view was followed in the
Abrahams case1918 CPD 590 593.

Thinking Point:

What, in your opinion, is/are the implication(s) of this approach?

5.1.2 2nd View/Approach

In terms of this view, indecency can be discerned from either the accused person’s act or his/her
intention. It therefor follows, that an accused person may be convicted of the crime it the
prosecution proved that:

i) his/her act was indecent; or that

ii) s/he had an indecent intention at the time of the commissioning of the complained act even
though his/her act was not indecent per se.
 Scan Namibian case law. Which of two approaches as discussed is
followed by our courts? Give examples to substantiate your answer.

This is a self-study exercise. You are strongly advised to attempt it.

It is important to note that the South African legislature resolved the conflict between the two
approaches by creating two separate forms of the crime of indecent assault.

5.2 Elements of indecent assault

The crime of indecent assault, like any other crime, has specific elements/requirements to be met.
The State must proof all these elements beyond reasonable doubt to obtain a conviction. The next
subsections deal with this elements.

5.2.1 An indecent act

The objective nature of the act complained of is important. This is so because mere touching does
not necessarily amounts to indecent assault. The accused must have had the intention to act
indecently. The act is thus closely associated with the intention requirement. It follows, that an act
accompanied with an indecent intention amount to indecent assault. Conversely, an act without
indecent intention does not to indecent assault.

Give real life examples involving instances of:

1. an indecent act accompanied with an indecent intention;

2. an ‘indecent’ act accompanied without an indecent intention.

This is a self-study exercise. You are strongly advised to attempt it.

 It is important to note that the complaint’s (Y’s) private parts does not need to have been actually
touched. An attempt to do so is sufficient. It is therefore possible to be convicted for attempted
indecent assault. Can you think of an example in this regard?

Importantly, the ‘touching or handling’ part of the definition incorporate acts which do not,
generally, fall under the rubric of assault.

The crime of indecent assault is gender-neutral. This means, the perpetrator and victim of this crime
may be either male or female.

Also, the crime is committable by threat of immediate force of indecent assault.

5.3 Indecency

The act complaint of must be indecent. From this it follows, that a person may touch another person
with an outright indecent intent. This may be the case where one touches another person’s
erogenous zone with the aim to achieve sexual gratification and/or /stimulation. But, where
someone touches another person’s erogenous zone without the aim to achieve sexual gratification
and/or /stimulation this element would be absent. However, where a person touches another’s non-
erogenous zones to achieve sexual gratification and/or /stimulation this element is met. Such a
person may thus rightfully be convicted of indecent assault provided all other elements of the crime
are proven.

Consider the following scenario:

Chris obtains sexual thrills from touching the back of a woman’s neck.
When Gayle complains about a stiff neck, Chris offers to massage it for
Activity
her. Gayle agrees to this. Chris experience sexual excitement from
massaging her.

1. Explain why Chris’ act amounts to an indecent act for purposes

of the crime indecent assault;

2. Survey Namibian case law for examples of cases similar to Chris’

conduct (non-erogenous zones cases).

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

The indecent act must also be unlawful under the circumstances.

 5.4 Unlawfulness

Generally, an otherwise unlawful act may be rendered lawful where there exist a recognised ground
of justification for such an act. The person accused for having indecently assaulted another person
can, similarly, raise some defenses to render his otherwise unlawful act lawful. Some of the defenses
available to ‘cancel out’ the unlawfulness of an indecent assault include:

 consent; note though that young children under the age of 14 are irrebutably presumed not
to be able to consent to indecent assault;

 official capacity;

 Compulsion/coercion

Scan Namibian and foreign case law for examples where defenses
available under unlawfulness were raised. From this, show the instances
Activity
where and why the courts:

1. rejected the defense raised; and

2. accepted the defense raised.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

5.5 Intention

Generally, a person acts or causes a result intentionally if,

 s/he wills the act or result

 in the knowledge

 of what s/he is doing (i.e. the act)

 that the act and circumstances surrounding it accord with the definitional elements, and

 that it is unlawful.

The crime of indecent assault requires additional elements of intention. The accused must have had
the additional intention to:

1. assault ,and
 Thinking Point:

Can you think of examples where someone can be said to have intention
in the form of dolus eventualis for a conviction of indecent assault?
Discussion

Exam ‘Misunderstanding’ Leads To Indecent Assault Charges

April 12, 2019 by Randy Slovacek

Case Study /
Example

When an ankle exam detours to something else (stock photo)

A Pennsylvania doctor has been charged with indecent assault after an

ankle exam went in a whole different direction.

According to local news station WQAD, the male victim told police he
texted Dr. William Vollmar on March 14 about treating his injured ankle.

The physician agreed to meet the man at his Quarryville sports clinic in
at 7:30 p.m.

After 5-10 minutes of examination, Vollmar asked the man if he wanted

to be “worked on.” Assuming the doctor meant massage and physical
adjustments, which the doctor had performed on the victim before, he
said yes.

Near the end of the massage, during which the patient was naked except
for a towel over his mid-section, the doctor asked the man, “Do you
trust me?”

The man said he did, and Vollmar then began to touch the victim’s
genitals.
 Stunned, the man told Vollmar to stop. According to the victim, the
doctor then asked, “Do you want me to finish you?”

The victim declined and ended the “massage.”

The victim told police that he never consented to have his genitals
touched.

When the police interviewed Vollmar, the doctor explained that the
whole episode was a “huge misunderstanding, mostly on my part.”

The doctor told the authorities that, while doing chiropractic

manipulation on the man’s hips, he thought the man showed interest in
something more, so Vollmar touched the peen.

According to the police complaint, the doctor admitted the victim had
not given permission to touch his genitals.

Source: https://instinctmagazine.com/exam-misunderstanding-leads-to-
indecent-assault-charges/

What do you think? Can the doctor be convicted of indecent assault?

Discuss the criminal liability of the doctor in full.

(Hint: A question such as this requires the State to proof all the
elements of the crime; the defense counsel, on the other hand, will only
focus on the defenses they would want to raise to evade criminal
liability).

2. assault indecently.

A graphic depiction of the intention requirement for indecent assault (IA) would look as follows:

Intention for IA = Awareness + (intention to assault + intention to assault indecently) + DHW

i) indecent act + ii) indecency iii) unlawfulness + (intention to assault + intention to assault
indecently) + DHW

Note, DHW = directing his/her will.

The absence of any of the listed sub-elements for intention would mean there is no intention for a
conviction for indecent assault. For instance, the person who was not aware that s/he committed an
indecent act, in the first place, cannot be said to have had intention to commit indecent assault.
Such a person can there not be convicted of indecent assault and would raise mistake as a defence.
 Similarly, the person who, for example touched the private parts of another person without the
intention to indecently assault the other can also not be convicted of indecent assault.

Dolus eventualis is sufficient for a conviction.

Unit summary
In this unit you learned about the common law crime of indecent
assault. You have seen that for a conviction of this crime the complaint is
about an indecent act or indecent intention. In the latter case, the act
may not be indecent, but the state of mind of the accused, objectively
Summary assessed, is. In making your summaries and consulting the textbook, do
not forget that this common law crime is now called sexual assault in
South Africa.

References

Snyman, CR. (2002). Criminal Law Fourth Edition. Durban: Lexis Nexis.

References