Criminal II Booklet PDF

Faculty of Law
PROGRAMME: BACHELORS OF LAW COURSE LECTURER: MR. LIBEBE
COURSE CODE:JCR 3692 COURSE TITLE: CRIMINAL LAW II
Produced by the Avengers Class of LLB 2020.
Compilation of the Presentation Write Ups.
“This write up has been submitted in partial fulfilment of the requirements for the
Bachelors (Honours) Degree in Law for the course of Criminal Law II”
Prostitution
Contents
1. Introduction ............................................................................................................ 3
1.1 Definition of prostitution..................................................................................... 3
1.2 The continuum of sex for material gain ............................................................. 3
1.3 International laws .............................................................................................. 3
1.4 The 1949 Convection ........................................................................................ 4
2. Elements of Prostitution ......................................................................................... 4
2.1 Engaging the services of a person 18 years or older ........................................ 4
2.2 A benefit to any person, the sexual act should result in a reward ..................... 4
2.3 Intent ................................................................................................................. 4
2.4 Unlawfulness / similarly referring to legality ...................................................... 5
2.5 purpose of engaging in a sexual act ................................................................. 5
Question 1 .................................................................................................................. 6
Discuss whether prostitution is in itself a criminal offence....................................... 6
Prostitution standing in terms of case law .................................................................. 8
Question 2 .................................................................................................................. 9
Conclusion ............................................................................................................... 10
Bibliography ............................................................................................................. 11
1. Introduction
1.1 Definition of prostitution
Prostitution refers to a transaction involving the exchange, between 2 or more

entities, of sexual services and monetary or other offers such as job opportunities
this definition was formulated in the Hendricks and others v attorney general of
Namibia,1 which allows certain powers of command over one person’s body to be
exercised by another.2 The act can be committed by both male and female in S v
Jordan3 it was held that prostitutes are gender neutral, and that both the person who
offers the act of sex for reward and the person who accepts to reward the person for
their services are said to be guilty of the offence of prostitution.
There exist 2 (two) forms of prostitutions, a natural and a classical form of

prostitution. The Natural definition would be when the sex worker would actively
engage in sexual acts for material rewards and the classical definition is where a
person would actively solicit money for sexual favour.
1.2 The continuum of sex for material gain
In Namibia, there are undefined relationships where young women have older
‘boyfriends’ who provide cash or gifts in exchange for sexual favour – the ‘sugar
daddy’ phenomenon. This phenomenon has blurred the line between casual
relationships and prostitution.
1.3 International laws

Namibia is a part of many international conventions recognized by our Constitution in
Article 144,4 as forming part of the Law of Namibia. The international stance sex
work is primal to the debate on the Namibian and Policy on sex work.
1.4 The 1949 Convection

In line with abolishing sex work, the 1949 Convention does not entail the criminalization
of prostitution itself, but seeks to criminalize acts of third parties associated with
prostitution. Namibia has neither signed nor ratified this convention. In terms of Namibia
1
2002 NR 353 (HC).
2
CR Snyman.2014. Criminal Law (6th edition). South Africa: LexisNexis (Pty)Ltd, p1995 at 351-2 (discussing the
South African Sexual Offences Act). 3 Article 144 of the Namibian Constitution reads as follows: “Unless
otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and
international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”
3
2002 2 SACR 499 (CC).
4
The Namibian Constitution.
there are certain Prohibitory, abolishing and regulatory provisions which criminalize the
acts of loitering and solicitation of prostitution in Namibia.5
2. Elements of Prostitution
2.1 Engaging the services of a person 18 years or older
The engaging should be entered into as an agreement between persons who are 18
years of age and older, The Namibian law puts in place regulations under the
Combating of immoral practice Act6 that stipulates under section 14 that any person
who tries or performs sexual act with a minor that is 16 years and younger commits
an offence despite the minor having consented to the act themselves.
2.2 A benefit to any person, the sexual act should result in a reward
The act of prostitution is done when the is an exchange of sex with a reward, the
reward can be monetary or sex in exchange for a favour or sex as compensation for
something rendered. The reward has to be owed or payed to the person who’s
services were engaged or the person who is in charge of the perpetrator also known
as a pimp.
2.3 Intent
The accused must have the intention to engage in the act of sex for reward with a
person who is 18 years and older, “for engaging in a sexual act or committing a
sexual act with the person whose services were engaged.” 7
The act of prostitution is an act which requires ‘actual or constructive intension’ to
materialise.8 This means there must be subjection or desire of the mind to engage in
the act which could be deemed as prostitution. The supreme court in S v Teek9
elaborated on how the principle of 'constructive intent' weighs on a crime and said
that this form of intent need not be actual, but can be implied where a person acts
reckless or negligently and where a person ought to have reasonably foreseen the
outcome of his actions, and also added that an act requiring constructive intension
need not to be performed with malice, yet needs to be voluntary.
This form of intension fits to the act of prostitution when sexual advances are made
on the grounds of giving or receiving a reward. The intentional element is
5
ibid
6
Act 21 of 1980.
7
Kemp,G. Walker, Palmer, Baqwa, Gevers, Leslie and Steynberg. 2012. Criminal Law in South Africa.
South Africa: Oxford University press Southern Africa (Pty) Ltd, p341.
8
Theoharis, M. 2012. Solicitation of Prostitution. Available at https://www.criminaldefenselawyer.com; last
accessed on 21 September 2020.
9
2019 (1) NR 215 (SC).
established even when impliedly acted upon, with regard to the determination aspect
of the acting parties, the element is complete as soon as there is an intention and
effect is given to such intent. This means that a party to prostitution is to have made
an attempt to engage in the act, with the intent to follow through with such attempt,
hence a joke to engage in prostitution cannot be regarded as prostitution.
2.4 Unlawfulness / similarly referring to legality

Article 12 (3)10 states that “No persons shall be tried or convicted for any criminal
offence or on account of any act or omission which did not constitute a criminal
offence at the time when it was committed” which is an imperative part of legality, as
to whether a person cannot be charged with an offence not provided for by any
statute or common law. Namibian law in regard to this does not criminate the act of
prostitution in its natural form, although it is an recognised act and made reference to
throughout statutes such as the Prevention of Organised Crime Act 11 and Combating
of Immoral Practices Act12 and vast case law, there is currently no panel legislation
or common law rule in place for prostitution.
2.5 purpose of engaging in a sexual act

This element of the act of prostitution establishes that the mere engagement for the
services of another for prostitution is enough to satisfy this element, not withstanding
whether the actual sexual act was committed or not. This is known as an overt act and
takes the approach of acts such as high treason, where engaging in the act satisfies the
act and not the completion of the intended act. This was reiterated in the hig h treason
case of S v Banda and Others,13 that an overt act does not need the completion of
the intent and that the state need not actually be overthrown before high treason is
committed. The same approach is to be followed for prostitution, in that an sexual act
need not to be performed but the intent to engage is enough to render the act of
prostitution.14
Question 1
Discuss whether prostitution is in itself a criminal offence.
Prostitution in Namibia is not considered a criminal offence on its own, in order for an
act or conduct to be regarded as being unlawful it needs to be defined as a crime by
10
The Namibian Constitution.
11
Act 29 of 2004.
12
Act 21 of 1980.
13
1990 (3) SA 466 (BG).
14
ibid
the law through statues of law such an Act15 and conduct which infringes the human
rights of others which are protected under the bill of rights.16
There are three approaches that can be taken by the state in terms of the conduct of
prostitution the first approach allows for the conduct of prostitution and does not limit it or
prohibit it, the second approach involves the law completely prohibiting prostitution in all
its form of practices, then we have the third approach which is the approach Namibia
has adopted to curb prostitution, this approach is a mixture of the first two approaches in
that prostitution is allowed but it is curbed, curbed in the sense that there surrounding
factors that lead or allow for prostitution are criminalized. 17
In the Hendricks and others v Attorney general case18 judge Maritz explicitly
highlighted the fact that prostitution is not and was never a crime in terms of our
common law. The Combating of immoral practices Act19 curbs prostitution by
criminalizing factors that allow for free and uninterrupted, unregulated practice of
prostitution, section 2 of the Act criminalizes the act of owning or running a brothel in
Namibia, thus taking a way the possibility of prostitutes having a solid work place.
The Hendricks and others v Attorney general case,20 held that keeping of brothels is
prohibited as to maintain public order and morality and avoid unsolicited factors that
keeping of a brothel may result into such as solicitation and inciting others into the
act of sex for reward.
Section 5 of the Act21 criminalises the conduct of procuring another person into
committing the act of sex for reward procuration can take different forms section 5
(c) stipulates that people who procure others into prostitution commit a criminal
offence moreover section 5 (d) stipulates that the act of procuring another into being
an inmate of a brothel is a criminal offence.
Section 7 criminalizes the act of soliciting and enticing others into the act of sex for
reward in a public place or in the streets. Section 7 (b) also stipulates that exhibiting
oneself while dressed in an indecent and improper manner commits an offence and
can be jailed.
These regulations under section 7 are also backed up by municipal by laws which
make it an offence to solicit and loitering, the soliciting also includes stopping cars on
15
Kemp,G. Walker, Palmer, Baqwa, Gevers, Leslie and Steynberg. 2012. Criminal Law in South Africa. South
Africa: Oxford University press Southern Africa (Pty) Ltd, p30.
16
The Namibian Constitution of 1990. Article 6 protects the right to life, thus making murder a criminal offence
as it violates the constitution and infringes the rights of a person.
17
Snyman, C, R. 2014. Criminal Law (Sixth edition). South Africa: LexisNexis (Pty)Ltd, p374.
18
2002 NR 353 (HC).
19
Act 21 of 1980.
20
2002 NR 353 (HC).
21
Ibid 16.
the streets while dressed an indecent manner and if found one can be charged for
contravening those regulations.22
Section 8 prohibits the conduct of immoral practices in public, that is having sex or
performing sexual activities to another person in public. Section 10 of the Combating
of immoral practices Act prohibits knowingly living of earning from prostitution is
prohibited and helping to bring about an income or gets remunerated for an act of
sex for reward that was performed by others, basically being a pimp is an offence in
Namibia.23
Prostitution standing in terms of case law

The Hendricks and others v Attorney general and others24 in this case were the
applicants and others had been arrested for keeping a house on a plot just outside
Windhoek, which served as a brothel of sorts. This house was raided by members of
the police on 16 November 1999, as it was suspected that certain illegal practices
were being conducted at the house, they were charged under the Combating of
Immoral Practices Act with the offences of keeping a brothel (section 2 (1) 5) and
living off the earnings of prostitution (section 10 (a) 6).
The applicants are sort an order declaring sections 1 (1), 2, 10 and 12 of the
Combating of Immoral Practices Act25 unconstitutional. In the papers filed by the
applicants it was submitted that these sections are an “unreasonable and
unjustifiable violation of the Applicants’ right of freedom of association, practicing any
profession or carrying on any occupation, trade or business.” Other constitutional
rights which are cited include the right to equality, freedom from discrimination and
the right to privacy. The applicants also argue that their right to be presumed
innocent is unreasonably and unjustifiably violated by the presumptions in the law.
Some of the sections of the Act are also being challenged on the grounds that they
are unconstitutionally overbroad –such as section 2 which makes it an offence to
keep a brothel, as defined in section 1 in absurdly broad terms, and section 10 (a)
which makes it an offence to benefit knowingly from the proceeds of prostitution.
The applicants in this case also relied on Article 21 (1) (j) which stipulates that
everyone has the right to practice any profession or carry out any trade, the court in
this case held that the keeping of brothels is prohibited as to maintain public order
133
2002. Report on Commercial Sex Work and the Law in Namibia “whose body is it”. Available at
https://www.lac.org.na/projects/grap; last accessed 20 September 2020.
23
Act 21 of 1980
24
2002 NR 353 (HC).
25
Act 21 of 1980
and morality and avoid unsolicited factors that keeping of a brothel may result into
such as solicitation and inciting others into the act of sex for reward.
The court in this case further held section 1(i) of the Combating of immoral practices
Act was unconstitutional when the definition of brothel includes ...or for persons to
visit for the purpose of having unlawful carnal intercourse or for any other lewd or
immoral purpose' and thus those words were to be removed. The court further held
that the presumption held under ss 2 (3), 12 (1) and 12 (2) which had previously
allowed for the presumption of prostitution to be a liable reason for arrest was
declared unconstitutional, as it went against Article 12 (d) which stipulates that all
persons shall be presumed innocent until there are proven guilty.
R v De Munck,26 points out that prostitution per se is not and was never a crime in
common law. it is not a criminal offence for a woman to be a prostitution nor it is an
offence for a man to have sexual relations with a prostitute.
The S v Jordan27 case the court in this case held that “in principle there is no
difference between a prostitute who receives money for her favours and her sister
who receives for rendering a similar service, a benefit or reward of a different kind,
such as a paid vacation or any other form of quid pro qou”
Question 2
Kegan Agreed to pay Megan a sex worker N$120.00 if she would have sexual
intercourse with him. She agreed and sexual intercourse took place but Kegan ran
off without paying her. The Criminal Liability of Kegan with reference to the sexual
acts he committed to Meghan.
In answering this question, we will start of by applying the definitional elements of

“Prostitution” which are:
Engaging in the services of a person 18 years or older for engaging in a sexual act
by committing a sexual act for the benefit of a reward, favour or compensation
unlawfully and intentionally.
As the details of the scenario is not clear, we assume the engagement that took
place was verbal communication between the two in which Kegan made the offer
and Megan accepted. We also assume that Megan is 18 years or older as there is
no indication that she is a minor. The purpose of the engagement was for sexual
26
1918 (1) KBD 635.
27
2001 (10) BCLR 1055 (T).
intercourse to take pace. The act of sexual intercourse did take place. The reward to
be paid was a monetary sum of N$120.00. However, Kegan failed to make payment.
As mention at the beginning of this document, the private act of prostitution (the
exchange of sex for a reward done in private) is not a crime as both common law
and statutory law have not criminalised the act itself.28 What has been criminalised
are the third-party factors or elements that surround the act. For the purpose of the
above mention question, it does not in its text mention any of these third party factors
such as brothels, solicitation in public, and procurement of prostitutes or pimping.
And because the scenario simply contains “The Act/Conduct” itself, we cannot attach
the element of unlawfulness to the act of prostitution.
In order to attach the element of unlawfulness to an act, that act must be stated or
provided as to be a crime by an Act of Parliament and the Combating of Immoral
Practices Act does not expressly nor by implication criminalise “the act itself done in
private”.
Thus in answering the question. Megan will have a claim against Kegan and Kegan
does have criminal liability towards Megan. However, this matter will now moving
forward fall under the Laws of Civil Procedure and on the basis of immorality and
agreements that are contra bones mores the court will decide whether to adjudicate
on the matter or not.
Conclusion
In concluding, we would like to state that Namibian Statutory Law in vague on the matter
of prostitution as there is not enough Reported or unreported case law that can give
guidance on the study of the legality of prostitution and applying South African case law
would be misleading in a sense that their case law applies the sexual offences Act which
specifically and expressly criminalises all acts of prostitution whether public or private
whilst in Namibia the position is somehow unclear.
28
2002. Report on Commercial Sex Work and the Law in Namibia “whose body is it”. Available at
https://www.lac.org.na/projects/grap; last accessed 20 September 2020.
Bibliography
Books
Du. Plessis J, Pretorious, C. 2017 The Law of Contract in South Africa. Cape Town:
Oxford University Press.
Kemp, G. Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg. 2012. Criminal Law
in South Africa. South Africa: Oxford University press Southern Africa (Pty) Ltd.
Snyman, CR. 2014. Criminal Law (Sixth edition). South Africa: LexisNexis (Pty)Ltd.
Statutes
The combating of immoral practices Act 21 of 1980.
The Namibian Constitution
The Constitution of the Republic of Namibia.
Case law
Hendricks and others v attorney general of Namibia 2002 NR 353 (HC).
R v De Munck 1918 (1) KBD 635.
S v Banda and Others 1990 (3) SA 466 (BG).
S v Jordan 2001 (10) BCLR 1055 (T).
S v Teek 2019 (1) NR 215 (SC).
Internet reference
2002. Report on Commercial Sex Work and the Law in Namibia “whose body is it”.
Available at https://www.lac.org.na/projects/grap; last accessed 20 September 2020.
Theoharis, M. 2012. Solicitation of Prostitution. Available at

https://www.criminaldefencelawyer.com; last accessed 21 September 2020.
Criminal Law and Moral Practices
Table of Content
Question:.................................................................... Error! Bookmark not defined.

Introduction: ............................................................................................................. 13
Combating Immoral Practices Act ............................................................................ 13
Ubuntu ..................................................................................................................... 14
S v Makwanyane and Another. ............................................................................ 15
Facts: ................................................................................................................. 15
Holding .............................................................................................................. 15
Presentation Question: What is the relevance of the case to the question? ......... 16
Answer: ................................................................................................................. 16
Natural Law .............................................................................................................. 16
Loophole of Natural Law .......................................................................................... 17
Naturalistic fallacy ................................................................................................. 17
Analytical Positivism................................................................................................. 17
Inadequacies of Analytical Positivism ................................................................... 17
Theories of Punishment ........................................................................................... 18
Presentation Question: What is homosexuality considered as in society? ............ 19
Answer: ................................................................................................................. 19
Relevant Case Law .................................................................................................. 19
Conclusion ............................................................................................................... 20
Bibliography: ............................................................................................................ 20
Books .................................................................................................................... 20
Case Law .............................................................................................................. 21
Internet Sources.................................................................................................... 21
Journals ................................................................................................................ 21
Statutes ................................................................................................................. 21
ii
Introduction:
Morality is about knowing right from wrong and ethics is the way we act on our moral
compass. Our moral compass is inconsistent as it changes as we get older and
acquire new knowledge and experiences that gives us another perspective of what
conduct is right or wrong. Our families, friends, religion and so forth, each have an
impact on the development of our moral compass. 29
The difficult thing about basing criminal laws on moral standards is that society
cannot always find agreement on the standards used to determine right and wrong,
good or bad as every person in society has been raised in different ways and
different cultures. Which leads us to what is known as moral relativism, this meaning
that our view of right and wrong shifts relative to time, place and our personal value
system, for example on the topics of abortions, same-sex relationships.30
Therefore with this challenge in our criminal law needs to be balanced in that even
though the shifting sands of our moral framework is unstable, our criminal law should
endure moral standards that should not rest on a time or place.31
Combating Immoral Practices Act
In terms of the Combating Immoral Practices Act, 32 this act describes the opposite of
moral principles. This Act describes what actions are considered as immoral in
society as well as by the law, and what their punishments are. It also protects
vulnerable parties such as children and females in society.
The aim of this Act is to provide for the combating of brothels, prostitution and other
immoral practices and for matters connected therewith.
According to this Act, the following are considered as immoral practices; the keeping
of brothels; procuration; assistance for purposes of unlawful carnal intercourse;
prostitution; sexual offences with youths.
The punishment for anyone who is found guilty of committing immoral practices are
quite severe. This include imprisonment for a period not exceeding five years for
procuration, fine not exceeding two thousand rand or to imprisonment for a period
not exceeding two years or to both such fine and such imprisonment for Enticing to
commission of immoral acts and a fine not exceeding three thousand rand or to
29
Justice Education Society.2016. Morality and Criminal Law. Available at: https://www.lawlessons.ca/lesson-
plans/2.1.morality-and-criminal-law; last accessed on 1 September 2020.
30
ibid.
31
ibid.
32
Act 21 of 1980.
imprisonment for a period not exceeding three years or to both such fine and such
imprisonment for Committing of immoral acts.
Through this Act, individuals are able to be aware of what actions are considered
immoral and what punishments will be conferred upon them by the court should they
be found guilty of an immoral act. The act provides individuals the opportunity by
themselves decide whether or not they will commit an act that is considered as
immoral.
In terms of the Constitution, Article 8, 9 and 15 protect vulnerable individuals from
acts that are considered as immoral. Article 8 which talks about respect of human
dignity states in section (b) that ‘no persons shall be subject to torture or to cruel,
inhuman or degrading treatment or punishment’. 33
The acts mentioned above are considered as immoral in society. The constitution
therefore condemns such actions. Article 9 also touches on the condemnation of
immoral acts in section 1 and 2. Article 15 protects children from immoral practices
such as child labour. It promotes moral practices that children should be protected by
their parents or guardians and by society.
Ubuntu
A fundamental principle to take into consideration when validating that criminal law is
centered on moral principle is Ubuntu. Ubuntu can be defined as a quality that
includes the essential human virtues; compassion and humanity. 34 Ubuntu is in a
sense synonymous to humanity and subsequently intricately connected with moral
principle.
Ubuntu is an embodiment of a set of values and moral principles which spearheaded

the peaceful co-existence of the African people in this country who advocated for
Ubuntu based on, among other things, mutual respect.35
Ubuntu being a South African based concept that became an integral part of
numerous African communities that saw its appreciation as an integral part of the
constitutional values and principles that inform interpretation of the Bill of Rights in
the case of
33
The Constitution of Namibia Act 1 of 1990.
34
Eze, M. 2010. Intellectual History in Contemporary South Africa. South Africa: Palgrave Macmillan, pp190-
191.
35
Himonga, C. 2013. Reflections on Judicial Views of Ubuntu. Potchefstroom Electronic Law Journal.
Vol. 16(5), pp2-10.
S v Makwanyane and Another.36 37
Facts:
In this case, two accused individuals were convicted on multiple counts but the main
count being that of murder for which they were subsequently, sentenced to death on
each of the counts of murder and to long terms of imprisonment on the other counts.
Upon appeal, the Appellate Division of the Supreme Court dismissed the appeals
against the convictions and came to the conclusion that the circumstances of the
murders were such that the accused should receive the heaviest sentence
permissible according to law.
At that time this was Section 277(1) (a) of the Criminal Procedure Act, 9 which
prescribes that the death penalty is a competent sentence for murder. The case
therefore sought to consider whether this provision was consistent with the Republic
of South Africa Constitution,
Holding
The court ruled that capital punishment was incompatible with the protection against
"cruel, inhuman or degrading treatment or punishment" in the Interim Constitution. It
therefore abolished the death penalty in South Africa.
It was also held that the death sentence destroys life, which is protected without
reservation under section 9 of the South African Constitution and that it annihilates
human dignity which is protected under section 10, elements of arbitrariness are
present in its enforcement and it is irremediable. All these elements are similarly
protected throughout chapter 3 of the Namibian Constitution, particularly Article 6
and Article 8.38
36
S v Makwanyane and Another 1995 (6) BCLR 665 (CC).
37
of 1977
38
The Constitution of Namibia Act 1 of 1990.
Presentation Question: What is the relevance of the case to the question?
Answer:
The facts of the case pertaining to which Makwanyane had been sentenced to death
are not directly relevant, the focal issue was what the bearing the interim constitution
had on the death penalty, as it was said to violate the right to life, dignity and the
right to be free from torture and cruel punishment. The courts unanimously found that
the death penalty was indeed unconstitutional, and by doing so were enforcing a
moral principle and regulating the degree of enforcement, ensuring that as a
consequence for a criminal act the law essentially seeks to enforce a moral principle
to an extent that is humane and further reinforcing that criminal law need to be
consistent with moral principles.
Natural Law
Natural law is a legal theory that recognizes or identifies law and morality as deeply
connected, a concept that is intertwined and fused together. 39 Morality relates to
what is right and wrong and what is good and bad.
A prominent legal theorist in the Natural Law school of thought, St Thomas Aquinas,
claimed that natural law and religion were inextricably connected and held the firm
belief that natural law participates in the divine eternal law and that the fundamental
principle of natural law is that we should do good and avoid evil.40 Aquinas however,
wasn’t as stringent in his connection between natural law and religion to the degree
of say, another theorist St Augustine, who staunchly believed in Christianity and went
as far as indicating that “the rules of moral conduct are implanted by nature in the
human mind, forming the proper basis for and being superior to all written laws; the
will of God revealed to man through his conscience”
Natural law theorists believe that human laws are defined by morality and that as
such, humans are guided by inherent human nature to figure out what the laws are,
and to act in conformity with those laws. From a natural law perspective, a law that
doesn't provide justice is invalidated as a law entirely. Principally, any law that is
good is moral, and any moral law is good.
39
Amoo, S. 2008. Introduction to Namibian Law Materials and Cases. Windhoek: Macmillan Education Namibia
Publishers, p21.
40
Himma, K. 2002. Natural Law. Internet Encyclopedia of Philosophy and Its Authors.
Available at:
https://iep.utm.edu/natlaw/#:~:text=Here%20it%20is%20worth%20noting%20that%20Aquina
s%20holds%20a%20natural,a%20natural%20law%20legal%20theorist; Last Accessed: 09 September 2020.
In light of the aforementioned aspects, the natural law school of thought evidently
has significant bearings on the structure of laws as it suggests that law itself is
founded upon moral principles, hence it would be correct to conclude that one of the
main functions of criminal law is to enforce a moral principle.
Loophole of Natural Law
Positivists such as Kelsen however, argue that universal moral standards in fact do
not exist, and that the entire concept of law enforcing a moral principle is flawed in
that there is not consistency in what is determined right and wrong by every being. 41
Naturalistic fallacy
The concept of morality under the natural law theory is not subjective. This means
that the definition of what is 'right' and what is 'wrong' is the same for everyone,
everywhere.
Hume argues that one cannot derive an “ought” from an “is”. 42 This has the
implication that since the natural school of thought suggests the state of nature is
grounded on moral principles it does not imply that people are obliged to conform to
them.
Analytical Positivism
Legal positivism is the thesis that supports the ideology that the existence and
content of law depends on social facts and not on its merits. Legal positivism
maintains that a law is a command which obliges a person or persons, and obliges
generally to acts or forbearances of a class” or a “course of conduct.43
Inadequacies of Analytical Positivism
The analytical positivism school of thought also shows considerable shortfalls as it

separates law from social policies and attempts to exclude value considerations in its
analysis of the law. Its incompetency’s are also illustrated through the theorist Austin
who ignores customary rules, where in actual fact, though the enactment of a statute
41
Kelsen, H. 2014. Kelsen on Natural Law Theory: An enduring Critical Affair. Open Edition Journals. Vol 23(1),
p135-163.
42
Donald, C. 2015. The Cambridge Companion to Hume’s Treatise, Cambridge: Cambridge University Press.
43
Waluchow, W 1998. The Many Faces of Legal Positivism. The University of Toronto Law Journal, Volume
Number 48(3), pp. 387–449.
is in some ways connected to the giving of an order, some rules of law originate in
custom and do not owe their legal statutes to any such conscious law creating act. 44
Theories of Punishment
In terms of the theories is punishment, there are 5 theories that are considered by
courts when. The first being the absolute theory, followed by the relative theory, then
the preventative theory, the deterrence theory, the reformative theory and lastly the
combination theory. The courts use these theories when deciding on the severity of a
punishment for a crime committed. These theories are there to show individuals that
immoral acts such as crimes will be punished. They also serve as a way of deterring
people from committing crimes. The reformative theory for instance intends to
rehabilitate convicted individuals into law abiding citizens who are able to fully
understand the differences between wrong and right and are able to take
responsibility for their actions.45
In the case S v Kanyuumbo, 46 the facts were as follows:
The accused raped a 6 year old child when he was under the influence of alcohol, he
admitted to the court he is the one that raped the child.
In the case it was held that this kind of conduct is not tolerated or accepted by
society, therefore the accused acted against public morals. It was also held that
there is no doubt that a long period of imprisonment is one that would be a
balanced/fair one. Such a long term of imprisonment will also comply with the
elements of retribution, deterrence and reformation.
19
In S v Brandt, the two accused, Paul Brandt and Stephanus Christians pleaded
guilty to their charges that accused them of having mandrax tablets in their
possession that contained methaqualone.
The magistrate questioned them in terms of section 112(1) (b) of the Criminal
Procedure Act, 51 of 1997, and they were then convicted and sentenced to 12
months imprisonment each. But on appeal the court set aside the convictions and
sentences imposed on them because when the magistrate questioned them he didn’t
ask whether the tablets the accused possessed contained methaqualone. Which
resulted that the cases were remitted to the court below to question the accused
properly and prove methaqualone by means of a scientific certificate. The court held
44
ibid.
45
Pretorius, S. 2018. Three Theories of punishment in criminal law. Available at;
https://sandpattorneys.co.za/three-theories-punishment-criminal-law-shaped-way-worldseeks-retribution/;
last accessed on 15 April 2020.
46
S v Kanyuumbo (C03/2007) [2007] NAHC 34 (26 April 2007) - retributive theory 19 S v
Brandt (CR 53/2017) NAHCMD 230 (17 August 2017).
that courts should be urged to impose sentences that would deter members of
society from taking the law into their own hands. Courts have to engage in the
judicious and meticulous act of balancing competing interests, and the objective of
this judicial activity can only be attained by adopting a combinational stance to
criminal punishment.
Presentation Question: What is homosexuality considered as in society?
Answer:
In terms of homosexuality, it depends in which context one is looking at it. From a

biblical view, homosexuality is considered as immoral or (in biblical term) a sin.
According to a few verses in the bible, it does not condone homosexuality.
Leviticus, 18:22,47 “Do not practice homosexuality, having sex with another man as
with a woman. It is a detestable sin."
Leviticus 20:13,48 if a man practices homosexuality, having sex with another man as
with a woman, both men have committed a detestable act. They must both be put to
death, for they are guilty of a capital offense."
In our modern society, homosexuality has become more accepted. However, not
everyone is on the same page, as they consider it immoral, but others do not bother
with it.49
Relevant Case Law

In Van Straten v Bekker,50 the facts were, the plaintiff was a married woman. She
sued her husband for loss of consortium and contumelia (act or something producing
the effect of deliberate disrespect).
But the court held that the action of contumelia and loss of consortium had lost their
lustre, meaning that it is not seen or used anymore as they are no longer in
consonance with the constitutional values of privacy, dignity and equality. The court
held too that there were other means available to society for protecting the family
other than through the claim based on adultery. Society no longer views the act of
adultery to the degree of strongly disapproving, as has always been the case.
47
Barker, K. 2002. Zondervan NIV Study Bible. Philadelphia: Zondervan Publishers, (Lev 18.22).
48
ibid (Lev 20.13).
49
CatholicHawaii. 2014. Bible Verses About Homosexuality. Available at:
https://www.catholichawaii.org/media/224239/bible_verses_about_homosexuality.pdf: last accessed on the
22 of September 2020.
50
Van Straten v Bekker (I 6056-2014) [2016] NAHCMD 243 (25 August 2016).
Lastly the court held that the role of the guilty spouse in the disintegration of the
marriage is often underplayed, giving prominence to the role of the third party, when
the guilty spouse may have been the one who initiated the extra-marital affair.
The same was held in the Sibonga v Chaka and Another,51 case.
Conclusion
Taking into account the Combating of Immoral Practices Act 21 of 1980, the
Constitution, the principles of Ubuntu, natural Law principles, the theories of
punishment and the listed case law, it can be affirmed that criminal law has
substantial basis in moral principles as in a great number of crimes such as the ones
listed in the Combating of Immoral practices Act, the main function being executed is
the enforcement of a moral principle.
Bibliography:
Books
Amoo, S. 2008. Introduction to Namibian Law Materials and Cases. Windhoek:
Macmillan Education Namibia Publishers.

Barker, K. 2002. Zondervan NIV Study Bible. Philadelphia: Zondervan Publishers.
Donald, C. 2015. The Cambridge Companion to Hume’s Treatise. Cambridge:
Cambridge University Press.

Eze, M. 2010. Intellectual History in Contemporary South Africa. South Africa:
Palgrave Macmillan.
51
Sibonga v Chaka and Another (SA 77/2014) [2016] NASC 16 (19 August 2016).
Case Law
S v Makwanyane and Another 1995 (6) BCLR 665 (CC).

Sibonga v Chaka and Another (SA 77/2014) [2016] NASC 16 (19 August 2016).
Van Straten v Bekker (I 6056-2014) [2016] NAHCMD 243 (25 August 2016).
S v Kanyuumbo (C03/2007) [2007] NAHC 34 (26 April 2007).
S v Brandt (CR 53/2017) NAHCMD 230 (17 August 2017).
Internet Sources
CatholicHawaii. 2014. Bible Verses about Homosexuality. Available at:

https://www.catholichawaii.org/media/224239/bible_verses_about_homosexuality.pdf
Himma, K. 2002. Natural Law. Internet Encyclopedia of Philosophy and Its Authors.
Available at:
https://iep.utm.edu/natlaw/#:~:text=Here%20it%20is%20worth%20noting%20that%2
0Aquinas%20holds%20a%20natural,a%20natural%20law%20legal%20theorist.
Justice Education Society. 2016. Morality and Criminal Law. Available at:
https://www.lawlessons.ca/lesson-plans/2.1.morality-and-criminal-law.
Pretorius, S. 2018. Three Theories of punishment in criminal law. Available at;
https://sandpattorneys.co.za/three-theories-punishment-criminal-law-shaped-
wayworld-seeks-retribution.
Journals
Himonga, C. 2013. Reflections on Judicial Views of Ubuntu. Potchefstroom

Electronic Law Journal. Volume Number 16(5).
Kelsen, H. 2014. Kelsen on Natural Law Theory: An enduring Critical Affair. Open
Edition Journals. Volume Number 23(1).
Waluchow, W 1998. The Many Faces of Legal Positivism. The University of Toronto
Law Journal, Volume Number 48(3).
Statutes
Combating Immoral Practices Act 21 of 1980.

Criminal Procedure Act 51 of 1977.
The Constitution of Namibia Act 1 of 1990
Corruption
Corruption was defined as ‘anybody who accepts any gratification from anybody
else, or gives any gratification to anybody else in order to influence the receiver to
conduct herself in a way which amounts to the unlawful exercise of any duties,
commits corruption52.’ It is also stated in the presentation that corruption in general
is a common law crime and used to be referred to as bribery and only used to be
committed by State officials, however the law evolved and started to prosecute
everyone equally who commits the offence of corruption. Mr Libebe asked during the
presentation the meaning of gratification, and the answer was that it refers to the
receiving of gifts, monies or anything that would ensure that the corruption prevails in
the direction of the corrupter.
Namibia's main anti-corruption statute is the Anti-corruption Act, which includes
passive bribery, aggressive bribery, attempted corruption, extorting and bringing in a
foreign public official. Although, compared to other countries in the region, the
country suffers less corruption, corruption remains widespread. In addition to that,
the Act also provides for the formation of the Anti-Corruption Commission (ACC)
outlines its functions and matters related to the fighting and dealing with corruption in
Namibia2.
Statistics have shown that Namibia scored 52 points out of 100 on the 2019
corruption perceptions index reported by Transparency International 53. Corruption
Index in Namibia averaged 48.73 points from 1998 until 2019, reaching an all-time
high of 57 points in 2002 and a record low of 41 points in 2004 54. The Corruption
52
Snyman. CR (Sixth Edition). 2014. Criminal Law. University of South Africa: South Africa. 2 (ibid.).
Section 2 of the 2003 Act
53
Namibia Corruption Index. Available at https://tradingeconomics.com/namibia/corruption-index; last
54
(ibid.).
Perceptions Index grades countries and territories based on how corrupt their public
sector is observed to be. A country or territory’s score shows the perceived level of
public sector corruption on a scale of 0 (very clean) to 100 (highly corrupt) 55.
The second aspect of the presentation focused on two types of corruption, namely
‘corrupt acquisition of private interest by public officer and corruption in relation to
tenders.’ The former is found in section 36 of the Anti-Corruption Act and focuses on
the prohibition of public officials to be involved in private interests that would
jeopardise their performances or be in conflict with their public duties. The latter
mainly focuses on the tender process in the country and how an individual will
commit a crime by favouring a certain company or individual at the expense of
everyone else. It is found in section 37 of the Anti-Corruption Act56.
Bribery as a type of corruption
Bribery can be described as illegal and unethical, giving, obtaining, or performing

some act of value to affect the actions of an official or other person responsible for a
public or legal duty57.
- Section 32 (a) of the Anti-Corruption Act 8,2003 provides that a public official
means any person who is a member ,officer ,employee or a servant of the
public or of a public body and includes ,inter alia members of the police force
,National assembly etc.8
- Section 38 of the latter mentioned Act outlines what constitutes a bribe of a

public official, this inter alia includes voting or abstaining from voting at any
meeting of a public body or organization and or showing favor or disfavor for
any decision so as to fit what he she is asked for with the intend of receiving
gratification in return58.
In the case of Likando v The State, the appellant (Mr. Likando) unlawfully solicited
and accepted the amount of N$500 in cash from the complaint at a police check
point east of Windhoek. Paragraph (24) provides that a factor held by the trial court
to have been most aggravating is that the appellant being a police officer, was in the
position to effect an arrest but unlawfully and intentionally chose to abuse his power
55
(ibid.).
56
Anti-Corruption Act 8 of 2003.
57
https://en.wikipedia.org/wiki/Bribery,Last accessed on [10 September 2020] 8
(Section 32) Anti-Corruption Act 8 of 2003.
58
and use his position as a tool to extort money from the complaint. The appellant was
in the latter case convicted on one count in contravention of s 38 (b) of the Anti-
Corruption act59.
Corruptly Accepting Gratification by or giving gratification to an agent. With

regard to corrupt acceptance of gratification by or giving gratification to an agent,
Section 35 of the Anti-Corruption Act60 can be referred to as the establishing aspect.
The section wants us to set up two things:
1. Under what conditions an individual can be held responsible for the bribing of
an Agent.
2. In what conditions will an officer be held criminally responsible for taking a

bribe?
In the case of Musewa v The State, a court orderly was given N$150.00 by a civilian
who sought the appellant’s assistance and the appellant took the money claiming
that he thought it was his money that a friend of his was supposed to return to him.
The issue in the case was whether or not the Magistrate misdirected himself in
holding the appellant in contravention of section 35(1) (a) of the act of 2008. The
appeal was dismissed and the court held that the magistrate did not misdirect itself in
holding the appellant in contravention of the latter stated section.61
The third part of the presentation looked at the various elements of corruption. In
brief, the first aspect was the acceptance or agreement requirement in which deals
with the fact that Y for instance accepted the gratification from X, which ultimately
reached a consensus or meeting of minds.
Inducements deals with the fact that Y for instance have to accept the gratification in
order to perform in a certain way. The motive have to be met and agreed upon. In
inducements the corruptor persuades or intimidates that specific person to act in a
certain manner.
Unlawfulness deals with the fact that corruption in general is against public morals
and therefore cannot be lawful or justified. It is often a requirement that is needed in
every crime.
59
Likando v State (CA 70/2016) [2016] NAHCMD 379.
60
61
Musewa v S (CA 34/2017) [2018] NAHCNLD 10.
The last aspect that was dealt with is intention. Intention deals with the exact motive
of the individuals when they committed those acts. It was also stated in the
presentation that corruption is a double intent crime in which means that ‘Y must
have not only the intention of accepting gratification, but must furthermore also have
the intention of acting in a certain manner in future return for the gratification. Y must
have the required intention at the moment he receives the gratification.’
Section 43 of the Anti-Corruption Act
This section basically deals with offences which are capable of being committed by
only one person in the public service. Section 43 states in subsection (1) that a
public officer commits an offence who, directly or indirectly, corruptly uses his or her
office or position in a public body to obtain any gratification, whether for the benefit of
himself or herself or any other person. Meaning that if any person in in a position of
any public service proceeds to commit a crime for their own benefit or perhaps for
the benefit of someone else, he/she has committed an offence of gratification.
(2) For the purposes of subsection (1), proof that a public officer in a public body has
made a decision or taken action in relation to any matter in which the public officer,
or any relative or associate of his or hers has an interest, whether directly or
indirectly, is, in the absence of evidence to the contrary which raises reasonable
doubt, sufficient evidence that the public officer has corruptly used his or her office or
position in the public body in order to obtain a gratification.
Having said that, in the case of S v Theron62 the accused is a former magistrate. On
the 1st of August 2011 at the Magistrates’ Court of Oshakati, in the district of
Oshakati, the Magistrate as a judicial officer did wrongfully, unlawfully, directly or
indirectly, corruptly and intentionally use her office which is the Magistrates’
Commission to obtain a gratification of her own benefit of an amount of N$1500.00
from Mr Israel. The court held that the accused has contravened section 43 (1) of the
Anti-Corruption Act.
In another case of S v Goabab14, the same action happened but this time, the public
officers were two. Accused one is a Permanent Secretary to the National Assembly,
accused two is an Acting Deputy Director for general service. They wrongfully,
unlawfully, directly and corruptly used their offices to obtain a gratification to hire a
motor vehicle from Budget Rent A Car for a period of 14 days for a total amount of
N$18 497,20c. This motor vehicle was gired for private use by the accused persons
at the expense of the Government of the Republic of Namibia and thus creating an
62 14
S v Theron CC 27/2012) [2019]. Sv
Goabab and Another 2013.
impression that the said vehicle was hired by the government, whereas in truth and
in fact, when the accused persons hired the vehicle, they k new that it was not for
official use but for their own benefit. The accused persons misrepresented
themselves and had no permission or authority from the Public Service Commission
to hire the said vehicle as stated above and they did so by means of false pretences.
The accused persons abused their positions for gratification and thus contravened
section 43 (1) of the Anti-Corruption Act.
Penalties for gratification

Penalties for gratification are provided for in section 49 of the Anti-Corruption Act,
200363 and involves the legal punishments that can be imposed on persons who are
commit corruption, either by accepting or giving gratification for the performance of a
particular task or omission to perform a certain task.
We cannot eradicate corruption completely in Namibia or any other country in the
world but we can however, introduce and adapt means and strategies to combat
corruption in Namibia, such as what is provided in Section 49 of the Anti-Corruption
Act 8 of 2003.16 The penalties for conducting one’s self in a corrupt way are
stipulated in this section. The Act provides that, “A person convicted of an offence
under any provision of this Chapter is liable to a fine not exceeding N$500 000 or to
imprisonment for a term not exceeding 25 years, or to both such fine and such
imprisonment.” This means that a person who is found guilty and is convicted can
then be charged a fine (which should not exceed half a million Namibian dollars) or
can be imprisoned for a term that should not be more than 25 years.
This are reasonable and sensible penalties of course, but with the ever increasing
cases of corruption, especially among high ranking government officials, our law
makers should revisit these penalties and make them a little been more severe and
harsher as humanly as possible. If we take a look at the fine that can be imposed on
an official that has acted in a corrupt manner for example, it cannot be an amount
which is more than half a million Namibian dollars, which is almost pocket change for
high ranking government officials who are mostly involved in corruption deals worth
millions of dollars. So an increase in the fine and jail term given to people who act in
a corrupt way should be increased so that it can install fear in public officials who are
involved in these corruption schemes.
63
No. 8 of 2003. 16
Ibid.
In conclusion, penalties for gratification are provided for in section 49 of the
AntiCorruption Act 8 of 2003 as means of punishing offenders who are involved in
corruption schemes and these penalties are also a way of combating corruption as
they are supposed to install fear of acting in a corrupt manner among Namibian
citizens, especially those who hold government offices.
The Video
Facts:
- The video was about the bribing of a police officer who is a public official. He
received money to perform a duty in favour of a citizen that is contrary to the
law.
Issue
- In this scenario would be whether or not the action between the two parties
constitute gratification.
Relevant Law:
- Section 32 states that “public officer” means a person who is a member, an
officer, an employee or a servant of a public body, and includes - (a) a staff
member of the public service, including the police force, prisons service and
defence force, or of a regional council or a local authority council.
- Section 38 of the Anti-Corruption Act lays out the grounds for what constitutes
a bribe towards a public official - ‘A person who offers or gives or agrees to
give to a public officer, or who, being a public officer, solicits or accepts or
agrees to accept, any gratification as an inducement or a reward’. The Act
stipulates that ‘a public officer commits an offense who, directly or indirectly,
corruptly uses his or her office or position in a public body to obtain any
gratification, whether for the benefit of himself or herself or any other person.
- Section 42 A person commits an offence who corruptly solicits or accepts or

agrees to accept, whether for the benefit of himself or herself or any other
person, any gratification as an inducement or as a reward of his or her giving
assistance or using influence, or having given assistance or used influence, in
the (b) the payment of the price, consideration or other moneys stipulated or
otherwise provided for in any such contract.
- Section 43. (1) of the Anti-Corruption Act states that a public officer commits
an offence who, directly or indirectly, corruptly uses his or her office or
position in a public body to obtain any gratification, whether for the benefit of
himself or herself or any other person.
Application of the law:

- The party receiving the gratification is a police and thus section 32 of the Act
which states that a public official may include a police officer which means he
qualifies to be called a public official.
- The officer accepted the bribe which was the money he received. Section 38
of the Act states that a public officer commits an offense who, directly or
indirectly, corruptly uses his or her office or position in a public body to obtain
any gratification, whether for the benefit of himself or herself or any other
person. This officer corruptly used his position as a public official to accept
gratification for the benefit of himself.
- The officer accepted the bribe with the reward of giving assistance in the
payment of the price as section 42 of the Act explains.
- The police officer has committed an offence using his position to obtain the
gratification for himself.
Conclusion:
- The exchange of money between the two parties did constitute gratification
because it has met all the supporting sections proving it was gratification. The
police officer has contravened sections 32, 38, 42 (b) and 43 (1) of the
AntiCorruption Act and has thus is guilty of the offence.
This marks the end of this presentation write up. The offence of corruption
(gratification) and its elements were discussed: acceptance, inducement,
unlawfulness and intention. Namibian cases were also summarised and their
significance, and finally, it also a video was included that we explained.
REFERENCES
ACTS
Anti-Corruption Act 8 of 2003
BOOKS
Snyman. CR (Sixth Edition). 2014. Criminal Law. University of South Africa: South
Africa.
CASES
Musewa v S (CA 34/2017) [2018] NAHCNLD 10.

S v Theron (CC 27/2012) [2019]
S v Goabab and Another 2013.
Likando v State (CA 70/2016) [2016] NAHCMD 379
INTERNET SOURCE
Namibia Corruption Index. Available at

https://tradingeconomics.com/namibia/corruption-index; last accessed on 17
September 2020.
JOURNAL
Amupanda, J. 2019. “The fight against corruption in Namibia: An appraisal of

institutional environment and a consideration of a model for civil society
participation”. Namibia Law Journal, volume 2. (Issue NO.1): p 189
Drug Offense
Introduction
In this academic paper we are going to discuss drug offences .Drug Offences
64
are classified as crimes against the community .Here in under you will find
two crimes namely known as (a) dealing in drugs and (b) the use or possession
of drugs.65 In the case of S v Swatz 66
,the courts laid down serious concerns
about the rising number of drug offenses and the need of great deterrence
punishment from these crimes. The law that governed this area under criminal
law would be the Abuse of Dependence Producing Substances and
Rehabilitation Centre’s Act 41 1971, which lays down the prohibited drugs and
group them in three groups, from dangerous to most dangerous. As well as the
exceptions to the general rules, and defines the important concepts.
Possession or Use of Drugs:
The Abuse of Dependence Producing Substances and Rehabilitation Centre’s Act

41 of 1971 purpose is to provide for the prohibition of dealing in and the use or
possession of drugs.
Possession in the act stated above is defined as “keeping, storing or having in

custody, under control or supervision of the prohibited drug”.67
Section 2(B)68 of this act provides that notwithstanding anything to the contrary
in any law contained any person who has in his position or uses any such
prohibited dependency producing drugs shall be guilty of an offence and liable
on conviction and penalties are thus laid down in the act for such offences.
The elements of such a crime are as follow: 69
• The act (that is possession or use)

• Drug
• Unlawfulness
• Intention
64
C.R. Snyman, Criminal Law 6th ed (Durban, Lexus Nexus 2008).
65
Ibid, pg.420.
66
[2018] NAHCMD 343.
67
The Abuse of Dependence Producing Substances and Rehabilitation Centre’s Act 41 of 1971.
68
Ibid.
69
C.R. Snyman, Criminal Law 6th ed (Durban, Lexus Nexus 2008).
These elements will now be explained in detail:70
The Act (possession or use) – There are two ways in which prosecution may
prove that X possessed the drug, firstly by proving possession in the ordinary
juridical sense of the word and secondly by relying on the extended meaning
given to the word “possess”. The word use is largely self-explanatory, an
individual is in use of drug if he or she is smoking, injecting, ingesting or
inhaling this drug.
The Drug- the crime is committed if what is possessed or used is either a

dependence producing substance/drug, a dangerous or potentially dangerous
dependence-producing substance/drug as these terms are defined in the Act.
Unlawfulness- In terms of the general principles of criminal liability, the

possession or use of the drug must be unlawful to constitute a crime. However,
unlawfulness may be excluded in some instances such which fall under the
grounds of justification where are stipulated in the Act section 3(2-6).
Intention- Culpability in the form of intention is required for this crime. Thus, the
person who has packets and suitcases under his or her control but is unaware
that there is dagga in one of the packets, cannot be found guilty of possessing
the drug. In the case of S v Paulo and Another71, the court held that the
Legislature did not intend to make a person guilty of possessing something
when he or she did not know that she or he had that thing at all. Court also held
that in order to establish possession the state must prove that the accused was
knowingly in control of the prohibited drug in circumstances which showed he
or she was assenting to being in control of the drug. The court further held that
possession of the prohibited drug is satisfied only by knowledge of the
existence of the drug and not its qualities or quantities.
Dealing in drugs is a more serious crime than possessing or using drugs.
Definition of dealings in drugs: The end result of dealing is the sale, trade,
exchange or transport of one or more drugs from the original party to another. 9
70
Ibid.
71
2013 (2) NR
9
366.
Cambridge
Dictionary 10
Ibid, pg423.
In other words the individual is in charge of the drugs for economic gains,
through illegal means . The elements of such a crime are as follow: 10
• The act (of dealing in)

• Drug
• Unlawfulness
• Intention
The act (of dealing in )The act of dealing buy and sell of the illegal substance
,however this meaning can also be extended .72The extended meaning can be
found under section 1 of the Act 73.
The drug- The drug can be the substance that is prohibited by law in terms of
statutory law or conventions signed by that particular country or state, where the
crime takes place.
The drug under the act is classified under three schedule as follows;
Dependenceproducing drug, Dependence-producing substance, dangerous
Dependence-producing drug.
Unlawfulness –This is that the act or conduct an omission must not have a
justification ground. These can be found under section 5 of the act. The acts
then set out who is allowed to have control over certain substance in certain
doses and quantity, if he person is found with t and is not under what the act
prescribes. Then such an individual will be seen to be in custody of that
substance unlawfully.
Intention the individual accused of the above must have the criminal capacity
and the intent to be dealing in the prohibited substance (drug) as defined or
outlined in the act. The individual must do so unlawful and have no justification
ground available. The person must then be directly aware of the substance and
must act in the manner that the purpose is to sell or distribute the substance.
Question 1
In terms of Abuse of Dependence-Producing Substances and Rehabilitation
Centers Act,74possession is defined as including includes keeping, storing or
72
C.R. Snyman, Criminal Law 6th ed (Durban, Lexus Nexus 2008).pg423.
73
The Abuse of Dependence-Producing Substance and Rehabilitation Centers Act 41 of 1971.
74
having in custody or under control or supervision, furthermore section 2 of the
Act,75 provides that notwithstanding anything to the contrary in any law
contained, any person …(b) who has in his possession or uses any
dependence-producing drug or plant;…shall be guilty of an offence and liable
on such conviction.15 Furthermore the elements as discussed by Kavena
provide that in order for an accused to be found guilty of possession of drugs
her she must meet all the requirements of the crime, the first is The act which
requires that accused must be in possession or use , it is argued that it is
common cause that the accused was found in possession of the Mandrax and
that the accused exercised possesio civilis over the drugs because he was
keeping it on behalf of another person, the second question to answer is was
what the accused was found with the Mandrax does it contain the substance
Methaqualone before a court can convict an accuse the court must be satisfied
that whatever drugs that an accused is found with is a prohibited drug
Methaqualone, this finds authority in the case of Iipumbu v S, 76 which held that;
What is prohibited is the drug called Methaqualone and where an accused is
charged with dealing in, use or being in possession of Mandrax, the onus is on
the State to prove that what the accused was dealing in, used or had in his
possession, contained Methaqualone. Ordinarily, this will require scientific
evidence.
Furthermore in terms of section 10(2) of the act,77 78
it provides that If in any
prosecution for an offence under this Act it is proved that a sample which was
taken of anything to which such offence refers, was or contained any
dependence producing drug or that such drug could be manufactured
therefrom, such thing shall be deemed to possess the same properties as such
sample, unless the contrary is proved. It is submitted that if t is proven that yes
indeed the Mandrax the accused was found in possession in is a drug that is
under scheduled one, the accused has met the requirement of drugs. In S v
Maniping and S v Twala,18 it was held that the court must satisfy itself about the
substance in Mandrax by means of scientific evidence in the certificate.
Before an act can be described as unlawful, the general principles of criminal
liability must apply, this means the accused must have no legal excused to
75
Ibid see
section 2. 15
Ibid.
76
S v Iipumbu 2009 (2) NR 546 (HC)
77
No. 41 of 1971.
78
NR 69 (HC).
possess such drugs it is submitted that the accused had no sort of
documentation or legal excuse for him to be in possession of such drugs it is
submitted that the accused in this case possessed no such licenses and his
only excuse to the possession of the drugs was that he was holding it on behalf
of another and that he had no intent to use it. The final requirement is that of
intention the accused must have the necessary intention to possess, this
intention must be in the form of culpability, it is argued that the accused had the
necessary intention because he ought to have known what he was keeping
possession of was drugs as a reasonable person in his position would have,
this was demonstrated in the case of S v Paulo and another ,79 were the court
adopted the principle gather from R v Binns and Another ,80 as well as S v
Smith, with approval and cited that:
‘The concepts of custody or possession comprise two main elements: they are,
firstly, the physical element of corpus, i.e. physical custody or control over the
res in question, exercised either mediate or immediately, and the mental
element of animus, i.e. the intention to exercise control over the thing.’
In conclusion it is submitted that the statement of ‘An accused person who

exercises control over Mandrax tablets on behalf of someone else but has no
intention of using the drugs personally cannot be convicted of the crime of
known as ‘use or possession of drugs’. is in incorrect statement because the
law prohibits such a conduct, If an accused person is found to be in
possession of any dependency drugs while such an accuse person is not
authorized to possess such a substance is guilty of the offence possession, On
account of the above authorities the accused can be found guilty for
contravening section 2(b) read with section 1 of Abuse of Dependence-
Producing Substances and Rehabilitation Centers Act.81
Question 2
Possession is defined as the control or ownership over a thing 22.Usually this

can be seen as the person who most likely possess the certain thing ,in this
case the prohibited substance is the owner thereof. However, the Act 82 defines
79
S v Paulo and another 2013 (2) NR 366.
80
R v Binns and Another 1961(2) SA 104 (TPD).
81
22
https://legal-dictionary.thefreedictionary.com/possession.
82
possession under possess as “includes keeping, storing or having in custody or
under control or supervision …”83
In order to discuss possession in depth we will look at how it has been dealt with in
the cases of S v Iipumbu84 and the case of S v Brandt85.
An appeal case that emanated from a lower court in which the appellant was
charged in contravention of several sections of the Abuse of Dependence-Producing
Substances and Rehabilitation Centers Act 41 of 1971 (herein referred to as the Act)
and after evidence was led, subsequently sentenced in the court a quo.
The appellant brought an application to contest the irregularities and gross
technicalities upon which conviction and sentencing was effected
Annexures brought to the Court’s attention in which the accused was charged
Section 2(a) and 2(b) provisions of the Act
Section 3(a) and 3(b) provisions of the Act
Legal issues raised: whether or not the court a quo-erred in charging and convicting
the appellant under section 3 of the act?
• Section 3 deals with potentially dangerous dependence-producing drugs in the

Schedule under Part III in the Act. Neither cannabis nor Mandrax is listed
under
Part III
• Section 2
Whether or not the accused was unlawfully convicted by the court a quo?
• prima facie element of possession
Ratio decidendi
• Prejudice to accused person
• Misdirection with regards to admitting hearsay evidence
• Travesty of justice and right to fair trial Judgment
• Conviction and sentence of court a quo set aside
83
Ibid, Section 1.
84
2009 (2) NR 546 (HC).
85
(CR 53/2017) [2017] NAHCMD 230 (17 August 2017).
S V BRANDT (CR 53/2017) [2017] NAHCMD 230 (17 August 2017)
Summary of facts: The two accused pleaded guilty to charges of possession

of Mandrax tablets containing methaqualone. They were questioned by the
presiding officer in terms of section 112(1)(b) of the CPA Act 51 of 1977,
hereafter they were convicted and sentenced.
Legal issue: Whether or not, in the absence of a scientific report declaring it as
such, a person can be convicted for possession of Mandrax containing
methaqualone?
Ratio decidendi: The court held that in determining whether a person can be
convicted for possession of Mandrax, it should be completely ascertaining the
substance in Mandrax (methaqualone) by means of scientific evidence in the
certificate. Furthermore, that, this is particularly important in the case where an
accused is unrepresented.
Judgment: On review, the court set aside the convictions and sentences
imposed due to failure by the magistrate to ask whether the tablets contained
methaqualone or not. As a result, the case was remitted to the court a quo for
the accused to be question afresh.
In light of the above discussed cases an inference can thus be drawn that
possession does not merely refer to the prima facie aspect but rather the
scientific investigation in determining whether a dependence-producing drug
contains prohibited substances. Meaning that just because an individual is
found in possession of the prohibited substance or the drugs, they must be
aware of the possession. This then raises the question as to how exactly will
the prosecution will be able to determine that the accused was aware of the
possession? One of the way is look at how the drugs or prohibited substance
was concealed as well as packaged.
In light of what was discussed above, there has been an upraise by the
Rastafarian community, that the act 71 of 1971 infringes their rights. This is
because they are of the believe that smoking cannabis, which is prohibited by
the Act under Schedule 1, is part and parcel of their beliefs and culture (Article
19 of the Namibian Constitution). However, the Legislature has in the recent
years have a bill known as the Combating of the Abuse of Drugs Bill, 2006,
which plans on strengthen the consequence of an individual who is found of
possession or dealing in in prohibited substance (especially cannabis).
However, it is yet to be passed and enforced, as research is still being done as
to whether it is to the benefit of society, taking in consideration all groups within
the societies in Namibia.
Reference list
Books
C.R. Snyman, Criminal Law 6th ed (Durban, Lexus Nexus 2008)
Legislation
The Namibian Constitution Act 1 of 1990
Abuse of Dependence-Producing Substances and Rehabilitation Centers Act 41 of
1971
Combating of the Abuse of Drugs Act, 2006(yet to commence)
Case law
S v Swatz [2018] NAHCMD 343

S v Paulo and another 2013 (2) NR 366 (SC)
R v Binns and Another1961(2) SA 104
(TPD), S v Paulo and another 2013
(2) NR 366.
S v Maniping and S v Twala 1994 NR

69 (HC)

S v Brandt Websites https://legal-
dictionary.thefreedictionary.com/possession
TOPIC Assault common, Assault GBH (with the intent to do grievous bodily
harm) and Crimen Injuria.
TABLE OF CONTENTS
INTRODUCTION...................................................................................................... 43
(a) Assault Common ............................................................................................. 43
(b) Assault GBH (with intent to do grievous bodily harm) ...................................... 46
(c) Crimen injuria ................................................................................................... 48
SCENARIO .............................................................................................................. 53
CONCLUSION ......................................................................................................... 54
BIBLIOGRAPHY ...................................................................................................... 55
INTRODUCTION
Human dignity is captured not only as a universal value but also as a fundamental
human right, existing not only in the international law sphere but also in the
domestic/municipal laws. The recognition of human dignity brings about various legal
and extra-legal considerations that are centred around the responsibility the state
has to ensure the protection of human dignity. 86 Generally, a summary reading of
Article
8(1) of the Namibian Constitution informs us about the ‘inviolable’ nature of the right
to human dignity, when read-together with Article 8(2)(b) it becomes evident that
offences that resonate with ‘torture, cruel, inhuman or degrading treatment’ are a
peril to ‘human dignity’. This is rightly so, as a branch of substantive law known as
criminal law criminalises offences that infringe the right to human dignity. These
offences are conveniently categorised as ‘crimes against bodily integrity’,2 bodily
integrity is defined as the inviolability of the physical body and it emphasizes the
importance of personal autonomy. These crimes include Assault Common together
with its qualified form known as Assault with the intent to cause grievous bodily harm
(GBH) and crimen injuria. Assault involves conducts that can amount to torture. 87
Furthermore, owing to the interdependent nature of rights, human dignity is entwined
with the right to privacy and right to life.
This assignment will provide a general discussion on the crimes against bodily
integrity. More specifically the paper will discuss common Assault, as well as Assault
GBH and crimen injuria with reference to how these cries have been defined in our
criminal law jurisprudence as well as how the liability for these offences has been
established in various decided cases.
(a) Assault Common

According to Snyman88 simply put Assault is merely iniuria (injury) against the
physical integrity (corpus) of another. Burchell89 advances this and states that
assault consists of ‘the unlawful and intentional, applying of force to the person of
86
Le Moli G. 2019. “The Principle of Human Dignity in International Law”. in Andenas, M. et al (Eds). General
Principles and the coherence of international Law, Netherlands: Brill Nijhoff, pp. 352-368. 2 See generally Van
der Bijl, C. 2012. “Psychological’ assault: the crime of assault revisited”. South African Journal of Criminal
Justice, Vol 25(1), pp 1-23.
87
See generally Article 8(2)(b) ‘No person shall be subject to torture…’
88
Snyman, CR. 2008. Criminal law (4th Edition). South Africa: Lexis Nexis, p 455.
89
Burchell, J. 2013. Principles of Criminal Law (4th Edition). Durban: Juta Academic, p 577.
another, or inspiring a belief in that other person that force is immediately to be
applied to him or her’.90
Similarly, both Burchell91 and Snyman 92 agree that assault exists where there is a
direct (most cases of assault occur in this way) or indirect unlawful application of
force against the body of another. Thus, in order for criminal liability for assault to be
established the following elements have to be established. Firstly, assault requires
the application of force or the inspiring of a belief that force is to be applied.
Generally, ‘assault’ has both a ‘physical’ and ‘mental’ attribute. Secondly, assault
must be unlawful, the unlawfulness of assault can be traced in Article 8(2)(b) of the
Constitution. Seemingly, the law strikes a balance in upholding the right to human
dignity and conducts that are a threat to a person’s life which is constitutionally
protected.93 However, there are exceptional cases where unlawful conducts that
comply with the definitional elements of common assault are deemed to be justifiable
on a ground of justification. Generally, private defence has been levelled as a
possible ground of justification in instances where there is a considerable threat of
imminent violence. A practical example of how the defence of private defense was
raised in a case of assault can be found in the South African High Court decision of
S v Mrwetyana94, ‘In this case the appellant who was a constable was charged with
grievous bodily harm (‘assault’ GBH) where he allegedly insulted the complainant by
hitting him with open hands and fists with the intention to cause him grievous bodily
harm’.
The appellant pleaded not guilty to the charge and tendered a plea explanation in
which he admitted that he assaulted the complainant on two occasions but he merely
did so in self-defences. His defence of private defence was rejected and his charge
was substituted with a charge of common assault.’ In reaching this judgement the
court applied the dictum of Watermeyer CJ as it was applied in R v Attwood11, in that
in cases of self-defence ‘An accused would not have been entitled to an acquittal on
the ground that he was acting in self-defence if it appeared as a reasonable
possibility on the evidence that the accused had been unlawfully attacked and had
reasonable grounds for thinking that he was in danger of death or serious injury, that
the means of self-defence which he used were not excessive in relation to the
90
Burchell op cit at 577.
91
Burchell op cit at 587.
92
Snyman op cit at 447-458.
93
See Article 6 of the Constitution of Namibia
94
Unreported Judgement (CA & R 39/2018) [2019] ZANCHC 17 (8th March 2019). 11
1946 AD 331.
danger and the means he used were the only or least dangerous means whereby he
could have avoided the danger’.95 Thus, the principles as laid down in the latter case
are the requirements for a successful justification of private defence.
Additionally, assault may also occur while an arrest is being effected against an
accused person. This is rightly so, in that where a police officer assaults an accused
person by applying force to the body (corpus) of said accused, his/her conduct is
justifiable based on the ground of official capacity. This is rightly so, as Schedule 1
Criminal Procedure Act, 197796, recognises ‘Assault, when a dangerous wound is
inflicted’. The categorising of assault as a schedule 1 offence signifies the severity of
this crime and when read-together with Section 49(1)(2) it allows for police officers
to use what the Act deems ‘reasonable force’ and where such force leads to the
killing of an accused person such a killing is deemed to be ‘justifiable homicide’. 97
Consent is also a ground of justification in ‘assault’ cases. A classic example can be

found in S v Van Zyl and Others98, in this case four teachers (appellants) at a private
school, administered corporal punishment on their pupils. They were charged with
and found guilty of assaulting a pupil in the court a quo. The arguments advanced by
the teachers were that the provisions of Section 56 of the Education Act, 2001
prohibiting corporal punishment did not apply to private schools, and that their
intention was to discipline the pupil and that teachers were at common law in loco
parentis and were entitled to inflict corporal punishment. 99 The appellants further
maintained that the pupil consented to receiving the corporal punishment and that in
any event a transgression of Section 56 did not amount to criminal conduct’. This
case now had to address the issue of whether consent could afford the teachers a
defence, of which the court held, that consent with regard to bodily infringements
must not be permitted by the legal order. This is rightly so, in that as a rule of thumb
consent to bodily injury or the risk of such injury was normally contra bonos mores.
Accordingly, Hoff J (and Shivute J concurring) highlighted that the common law
position that bodily infringements were normally unlawful, would mean that the
'consent' given by the learners was contra bonos mores. Although in this case
95
ibid at p.340.
96
Act No. 51 of 1977.
97
ibid at Section 49(1)(2).
98
NR 1000 (HC).
99
Act No. 16 of 2001.
‘consent’ was not accepted as a defence, there are cases were consent is an
acceptable defence. For instance, where a surgeon operating on a patient cuts that
person to perform such a surgery, the infliction of an injury is justifiable on account of
the consent the person has given during the course of the procedure. Furthermore,
the same defence can be extended and applied to sporting injuries that comply with
the definitional element of ‘assault’.
Additionally, the kind of culpability required in assault cases is ‘intention’. The

‘intention’ required can be direct, indirect and foreseeable (dolus eventualis).100
Additionally, instances of Intoxication may lead to an accused being declared as
lacking the intention to assault. The legal position in practice is that the accused
person, where alcohol inhibits their mental state must be found not guilty (thus
leading to a complete acquittal).101
However, with regards to provocation the position is not quite clear. The position
could be termed paradoxical at best meaning it might exclude intention required for
ordinary assault and recognised to exclude the “special intention” required for
qualified assaults, such as assault with intent to do grievous bodily harm. An
102
example where this defence was applied in S v Campher the court in its findings
clarified the position of provocation as a defence stating that ‘provocation could not
only exclude the intention of the accused person, but also his mental capacity’.
Essentially, this position thus, leads to the consequence that the accused may be
acquitted because he lacks the criminal capacity, he cannot be convicted of culpable
homicide or of assault.103
(b) Assault GBH (with intent to do grievous bodily harm)

Assault with the intent to do grievous bodily harm is a separate, substantive crime
where all the requirements of assault apply. However, this offence is qualified by the
intention to do grievous bodily harm. Generally, whether or not actual grievous bodily
harm was in fact inflicted for liability is immaterial. 21 Exceptionally, such a question
could only be material during sentencing (usually it is argued in aggravation).
100
See generally Van Zyl, P.H.S. 1982. “Criminal law Simplified”. De Rebeus, Volume (174), pp 256257.
101
See S v Chretien 1981(1) SA 1097 (A). Although this case was concerned with the defence of automatism,
the Appellate division was of the view that intoxication results in a person lacking criminal capacity.
102
1987(1) SA 940 (A).
103
Pather S. 2000. Comparative Analysis of the defence of provocation (LLM Thesis). Durban: University of
Natal, p 19.
The test for intention requires a factual enquiry into the state of mind of the assailant,
which is derived from certain factors. These factors were pronounced in the case S v
Goeieman22, the facts of this case briefly summarised were that the accused pleaded
guilty to a charge on assault GBH. Subsequently, he was questioned in terms of
Section 112(1)(b) of the Criminal Procedure Act, 1977. Where he affirmed that he
had assaulted the complainant with a walking stick three times on her legs. Ideally,
the question was done in order to ascertain the intention of the accused at the time
of the assault.
The series of questions levelled to the accused were aimed at establishing certain
factors that could serve as factual aids in determining the intention element. The
factors as cited by both Snyman and Burchell are usually, the nature of the weapon
or instrument used; the degree of force used in wielding such a weapon or
instrument and the part of the body at which the assault was directed; the
persistence of the attack; and the injuries actually sustained. The appeal court in
Goeieman took issue with the manner of the questioning in that it, left the court with
an unclear picture as to whether the accused had ‘foreseen the possibility of the
complainant sustaining serious injury as a result of the attack on her’.
Furthermore, the appeal court found that the notion that ‘the fact that there were no
injuries sustained by the complainant was immaterial to the question of intent’ by the
magistrate in the court a quo was flawed in many aspects. Essentially, the appeal
court found that a strict interpretation of such a principle would negate the fact that
‘the harm if any caused to the victim of an assault may be a relevant factor in
determining the intent of the assailant’. However, the fact ‘that no harm was caused
does no negate the fact that the intention to cause harm was present’. In addition,
the court in S v Tazama,104 confirmed the position that assault GBH was concerned
with the intent to do grievous bodily harm, and not the actual causing of harm.
Furthermore, it was found that an essential element in cases of assault GBH is the
‘intention to harm’. Thus, slight injury could constitute assault GBH and conversely
the infliction of slight injuries not necessarily assault GBH. To succeed in establishing
criminal liability for assault GBH ‘intention to cause harm must. However, this view
has been challenged in our jurisprudence. It has been held that such a question
104
1992 NR 190 (HC).
could be considered material to some degree, See S v Goeieman 1993 NR 225
(HC).105
106
As to the question of who bears the burden of proving such an intention the courts
have highlighted in S v Henury107, that ‘before a conviction may follow on a charge of
assault GBH the state must prove the required intention’. Accordingly, this intention
should extend more than just inflicting the harm and comparatively insignificant and
superficial injuries which follow from the assault.
Exceptional cases in assault grievous bodily harm occur in varied instances.
Generally, not every assault that results in ‘serious bodily harm’ can be termed
assault GBH. This can be attributed to the fact that there are instances where even
though serious bodily harm has been inflicted, it may be substituted with mere
common assault. The legal principle in support of this legal position was well adopted
in the case S v Bokane108, where the court found that ‘the nature of actual injuries is
not always an indication of the intent to do grievous bodily harm’. This view has led
to the approach that in such exceptional cases intention in the form of dolus
eventualis is sufficient for an accused to be liable for assault GBH.
In conclusion cases on assault GBH are essentially proven on the culpability of the
accused person. The culpability required is not mere intention but the ‘intention to
seriously impair, injure and infringe’ the bodily integrity of the victim.
(c) Crimen injuria
Crimen Injuria is classified as a common law crime, which simply means the
unlawful, intentional and serious violation of the dignity or the privacy of another
person. The objective behind this crime is to protect, the right to dignity 109 and
privacy.110 As a consequence, the right to freedom of expression is limited to protect
the right to dignity.111 Crimen injuria may overlap with defamation if the conduct
105
1993 NR 225 (HC).
106
NR 101 (HC).
107
108
1975 (2) SA 186 (NC).
109
See article 8(2) (b) of the Namibian Constitution which states that, “No persons shall be subject to torture or
to cruel, inhuman or degrading treatment of punishment.”
110
See article 13(1) of the Namibian Constitution which states that “No persons shall be subject to interference
with the privacy of their homes, correspondence or communications save as in accordance with law and as is
necessary in a democratic society…”
111
Hubbard, D. 2008. Stalking: Proposed New legislation for Namibia. Windhoek, Legal Assistant Center, at
p.13.
constitutes impairment of both dignity and reputation. Crimen injuria is primarily
focused more on dignity and privacy, while defamation deals with a person’s
reputation. It is also important to note that, crimen injuria may overlap with the crime
of assault in cases where an act which impairs someone’s bodily security and his/her
dignity as well.112
The first criterion: for the offence is that the offender must impair the dignity of the
complainant. Dignity, as a concept, has been explained in both positive and negative
terminology. In a positive sense, dignity is described as a person’s right to self-
respect, privacy and mental tranquility. Negatively, dignity has been described as a
person’s right to be free from insulting, offensive, humiliating and degrading
treatment and to be free of any invasion of privacy in their homes, property,
possessions and communications.113 The second criterion: is that the invasion of
dignity must be serious.
This requirement is rooted in the principle of “Maxim de minimis non curat lex” which
means that the court does not concern itself with trifle matters. The determination of
whether an act is sufficiently serious is largely dependent upon “the modes of
thought and conduct prevalent in a particular community at a particular time and
place and is in principle determined by an objective test.” The court usually look at
the age, sex, social standing sexual impropriety the parties’ previous relationship
persistence publicity the complainant’s personal reaction the public interest and the
nature of the act.114
Under certain circumstances acts which are merely insulting would be considered to
be minor offences by our modern law; and one can quite imagine cases where that
would clearly be so. If one man, for instance, makes an insulting gesture at another
man, not amounting to assault or anything like that, that would be very likely be
considered not to constitute a criminal injuria; it might be such a light form of
injuria.115
112
Snyman op cit at 469.
113
Hubbard, D.2008; at p.14.
114
Op cit at 14.
115
Op cit at p.14.
That might be in the case of one man insulting another, or of a woman insulting
another woman. But it seems to me that the position is altogether different when a
man insults a woman. When a woman, especially a young woman, is insulted by a
man with whom she is not even acquainted, for then, according to the circumstances
of each case, the insult may be of such a serious nature as to found a criminal
charge.
The law would naturally be always more studious to protect girls and women against
insults from men than it would be in the case of insult offered by one man to another,
for obvious reasons which I do not need to enlarge upon. So that taking that the
magistrate finds that the accused’s intent was not in any way indecent or lascivious,
but was merely insulting, seems to me under the circumstances, it is not such a light
form of injuria as to be relegated to the civil law. 116
This is to say Crimen Injuria is punishable only if it is sufficiently serious or of a

reprehensible character to merit punishment in the interests of our society. In the
case of Waltons read together with the Van Meer, case117 118the court held that in the
ordinary hourly-burly of everyday life a man must be expected to endure a minor or
trivial insult to his dignity. However, this view was rejected in the case of
Bugwandeen35 when the Natal court, after an examination of the authorities, rejected
the requirement that the injuria be serious in order to be punishable. This is because,
the requirement is very nebulous as to lead to arbitrariness in its application.
It is submitted, with respect, that the court’s view is incorrect. This is rightly so, as it
is contrary to the court’s own statement immediately afterwards that the impairment
of dignity should be real and substantial, injuria of a trivial nature should be excluded
on the principle of de minimis non curat lex.
The third criterion: is that the invasion of dignity must be done unlawfully. This means
that in certain circumstances, self-defense, necessity, consent, and statutory
authority may justify actions which would otherwise be categorised as crimen injuria.
Finally, the offender must intentionally offend the complainant’s dignity. This implies
116
R v Van Meer 1923 OPD 77.
117
ibid.
118
SA 787 (N) 796 A.
that the offender knows that the complainant did not consent to his or her conduct.
Mere negligence is insufficient to support the cause of action of crimen injuria.119
Accordingly, the classic example of peeping Tom cases, opening private post and
eavesdropping on private conversations with listening devices are actions which may
be considered forms of crimen injuria because they constitute invasions of privacy.
“Grooming” a child as a preliminary step towards sexual contact can constitute

crimen injuria, as an invasion of dignity. A stranger who stares or follows a woman
without her consent may also commit crimen iniuria.120 Therefore, the conduct can
be said to be unlawful because it violates the provisions of the constitution, namely
the right to dignity and the right to privacy. The conduct can also be statutorily
unlawful because it violates the Racial Discrimination Prohibition Act, 1991,
121
Section 11(1) (a) of the Act states that people are not publicly allowed to use any
language or publish or distribute any written matter or display any article or do any
act or thing with intent to threaten, ridicule or insult any person or group of persons
on the ground that such person belongs or such group of persons belong to a
particular racial group. This is prohibited because it infringes the dignity of the people
concerned. The last criterion: is intention. The crime can be committed intentionally
only and negligence, can never be sufficient.
Intoxication may result in X’s not being aware that he is violating Y’s dignity, and this
implies that he must know that Y did not consent to his conduct. 122
The violation of dignity in general can be committed either by word or by deed.

Although most cases of crimen injuria involve some taint of sexual impropriety, the
crime is not confined to insults of such nature. An attack not directed to victor
himself, but against some group he is affiliated with (e.g. his language group (Subiya,
Herero, damara etc.), his religion (Christianity), race or nationality will normally
constitute a violation of his dignity, unless there are special circumstances from
which an attack on his self-respect can be deduced. In the case of S v Tanteli,40 it
was pointed out that the attack was not, against the complainant personally. It was
119
Ibid.
120
See Snyman op cit at .470. Also see R v Van Meer 1923 OPD 77. Where it was held that where there accused
behaves in a deliberately objectionable manner with intent to insult and injure the complainant in her
modesty, which actions the accused did damage and insult the complainant, and thus the accused did commit
the crime of crimen injuria.
121
Act No.26 of 1991.
122
Snyman, CR.2008. Criminal law (4th ed). South Africa: Lexis Nexus, at p.475. 40 1995 2
SA 772 (T).
an attack upon his language. Undoubtedly, the complainant found that to be hurtful
and offensive in a general sense; but it did not, in relation to the person of the
complainant, have that degrading, insulting or ignominious character which is a
requisite of an injuria. A subjective test is applied in cases of crimen injuria. The
subjective test simply means that Y must be; (a) aware of X’s offending behavior
and; (b) feel degraded or humiliated by it.
Dignity, self-respect and mental tranquility describes subjective features of a

person’s attitude. For instance, the mental tranquility of the timid will be more easily
disturbed than that of the robust. In particular, an individual’s self-respect. is
intimately connected with his particular station in life and his moral values. The word
subjective is more based on influenced by personal feelings or how the person views
things.123 There is however, the following exception to the rule : Where Y is a young
child or a mentally defective person, he will not be able to understand the nature of
X’s conduct, and consequently will not be able to feel degraded by it. This however,
does not afford X a defence.
For this reason, the crime cannot be committed by a child or even by a mentally
disabled person. Additionally, the objective test standard can also be applied it
simply states that a person’s conduct must be of such a nature that it would offend at
least the feelings of a reasonable person. This is to say, if the offence would not
offend a reasonable person, the law should not assume that a crime has been
committed.124 The test for privacy in crimen injuria is objective. It has to be
established that a person must be aware of someone’s offensive conduct.
For a practical example in our jurisprudence the case of S v Vries,43should suffice.

The facts of the case briefly summarized where that the accused was charged with
crimen injuria and assault. It was alleged that the accused impaired the dignity of the
complainant by stating to him, “Jy is ‘n Damara, jy is sleg en jou hond!” which
translates to “You are a Damara, you are bad and you are a dog!” The court
described the crimen injuria as “saying or doing something to another unlawfully and
with the intention of seriously impairing such person’s dignity”. The court held that
mere vulgar abuse can injure a person’s dignity but only if the accused has the
intention to degrade and humiliate and the complainant actually testifies that he or
123
Snyman op cit at 471.
124
Snyman op cit at 471-472. 43
1992 NR 5 (HC).
she was in fact degraded or humiliated. In this case, the complainant did not testify
that he felt humiliated and degraded by the insult and a result no charge of crimen
injuria could stand.
SCENARIO
X will be held criminally liable for her own conduct or action which based of the facts
appears to have been pre-meditated. The application of force (or inspiring a belief
that force is to be applied): There was a direct application of force to the body of Y by
X (pushing him through a glass door). X’s conduct towards Y was unlawful, in that
her action infringed Y’s right to dignity in accordance with Article 8(1) which provides
that “The dignity of all persons shall be inviolable” this must be read together with
Article 8(2) (b) which provides that “No persons shall be subjected to torture, cruel,
inhumane or degrading treatment or punishment.” It becomes evident that the nature
of X’s conduct could amount to ‘cruel’ treatment.
However, even where X raises the defence that she felt threatened by Y and she
was merely protecting her property which was in the possession of Y (Article 16),
such a defence will not stand because in order to escape liability the threat must be
one of violence to the person of X: threat to property is not sufficient. Private
defence is not an adequate defence as the degree of violence far exceeds this
justification, thus there can be no justification for X’s conduct. Intention X had the
necessary intention in the form of dolus eventualis, this is rightly so as X was able to
foresee the likelihood that by pushing Y through a glass door serious injuries would
be inflicted on the person of Y (taking into consideration how fragile he was), yet she
reconciled herself with this possibility and proceeded with her conduct even when
she had already recovered possession of her property.
Although provocation may exclude intention in assault GBH cases and not common
assault cases. Therefore, in determining the intention of X the court may consider
certain factors (S v Henury44) such as (a) the degree of force used; (b) instrument
used; (c) the part of the body attacked and nature of injuries sustained. These factors
may determine whether the ‘intention to do grievous bodily harm’ was present.
Thus, once it established that X had the intention to do GBH, a conviction on Assault
GBH must follow, where such an intention is missing the charge may be common
assault. However, for the purposes of this Scenario X’s conduct does not meet the
‘intention to do serious bodily harm’. Therefore, a suitable charge would be common
assault.
CONCLUSION
In conclusion the rights to dignity, privacy and life are fundamental human rights.
This usually necessitates the importance of ensuring that the state protects these
rights through its substantive frameworks. Furthermore, the criminalization of
conducts that impair the rights to dignity and privacy is very much warranted in our
society, where courts are seen to be faced with a backlog of cases involving assault
GBH, assault common and crimen injuria. The intention element is significant in
assault GBH cases. Seemingly, crimen injuria exhibits the violation of both the right
to dignity and privacy. The tests to establish liability for these crimes has well been
established in our case law jurisprudence. Furthermore, the courts are now tasked
with the need to balance seemingly competing interests, hat is now balancing the
right to dignity, privacy and the freedom of expression. The significance of this
crimes cannot be water washed they have and will always be relevant, in as long as
the bodily integrity of persons is at threat. The state is now called upon to prosecute
and provide competent verdicts.
BIBLIOGRAPHY
BOOKS & BOOK CHAPTERS
Burchell, J. 2013. Principles of Criminal Law (4th Edition). Durban: Juta Academic
Hubbard, D. 2008. Stalking: Proposed New legislation for Namibia: Windhoek, Legal
Assistant Center
Le Moli G. 2019. “The Principle of Human Dignity in International Law”. in Andenas,
M. et al (Eds). General Principles and the coherence of international Law,
Netherlands:
Brill Nijhoff
Snyman, CR.2008. Criminal law (4th ed). South Africa: Lexis Nexis
CASES
Bungwandeen 1987 1 SA 787 (N) 796 A

Kauesa v Minister of Home Affairs and Others, 1995 NR 175 (SC)
R v Attwood 1946 AD 331
R v Van Meer 1923 OPD 77
S v Bokane 1975 (2) SA 186 (NC)
S v Campher 1987(1) SA 940 (A)

S v Chretien 1981(1) SA 1097 (A)
S v Goeieman 1993 NR 225 (HC)
S v Henury 2000 NR 101 (HC)
S v Mrwetyana Unreported Judgement (CA & R 39/2018) [2019] ZANCHC 17 (8 th
March 2019)
S v Tanteli 1995 2 SA 772 (T)
S v Tazama 1992 NR 190 (HC)
S v Van Zyl and Others 2016 NR 1000 (HC)
S v Vries 1992 NR 5 (HC)

STATUTES
Criminal Procedure Act 51 of 1977
Discrimination Prohibition Act No.26 of 1991
Education Act 16 of 2001
The Constitution of the Republic of Namibia Act No.1 of 1990
JOURNAL ARTICLES
Horn, N. 2009. “Freedom of expression and hate speech in Namibia”. Namibian Law
Journal, Vol 1 (1)
Pather S. 2000. Comparative Analysis of the defence of provocation (LLM Thesis).
Durban: University of Natal
Van Zyl, P.H.S. 1982. “Criminal law Simplified”. De Rebeus, Volume (174)
THESIS & DISSERTATIONS
Van der Bijl, C. 2012. “Psychological’ assault: the crime of assault revisited”. South
African Journal of Criminal Justice, Vol 25(1).
Criminal Defamation
Contents
Introduction. ................................................................................................................... 58
Criminal Defamation. .................................................................................................. 58
Legal framework on Criminal Defamation. .................................................................. 58
The Elements to Criminal Defamation............................................................................ 59
Quiz Question and Answers. .......................................................................................... 63
Conclusion. .................................................................................................................... 64
Reference lists. .............................................................................................................. 68

Introduction.
This is a write up for a prior class presentation done on the 16 th of September 2020,
the write up will particularly deal with the offence of criminal defamation, the
definition and elements of criminal defamation will form up this writing and ultimately
conclude with the scenario question and its answers.
Criminal Defamation.
Leroy Et al in their writings, educated us that a defamatory statement is a testimonial

that injures a third party’s reputation. Criminal defamatory can come about in two
forms, either be written statement (libel) and slander (spoken statement). 125
The law of defamation attempts to create a viable balance between two important
rights: a person’s right to an unimpaired reputation and another's right to freedom of
expression. In creating this viable balance there is need to look at the legal frame in
the Namibian criminal defamation law.
Legal framework on Criminal Defamation.
Article 8 (2) (b) of the Namibian Constitution states that ‘No persons shall be subject
to torture or to cruel, inhuman or degrading treatment or punishment. Article 8(1)(a)
states that the right to human dignity is inviolable. However, Article 21(1)(a) states
that all persons have the right to: freedom of speech and expression, which shall
include the freedom of the press and the other media. 2 The latter article can be
subject to article 22 of the constitution, in a way that it can be limited, as opposed to
article 8.
Combating of Domestic Violence Act 4 of 2003.
Criminal defamation can go hand in hand with harassment as catered in the Act 4 of
2003, as stated in sec 2(e) harassment may mean, repeatedly making unwelcoming
communications through either telephone calls or inducing a third party to make
telephone calls to the complainant. Sec 2(g) of the same acts makes provisions what
125
Leroy, M & Roger, C. (2010). Business Law today the essential. United States: south western
languages. P.7. 2 See article 8 & 21(1)(a) of the Namibian Constitution.
of constitute an emotional abuse and those are: repeated insults, ridicule or name
calling etc.126
Snyman defined criminal defamation it is the unlawful and intentional publication of
matter concerning another which tends to injure his reputation.127 This definition was
confirmed in a South African case of S v hoho 2009, 1 SACR. 276 (SCA) at par.23 of
the case judgement.
In another definition, defamation is the intentional infringement of another person’s
right to his good name….it is a wrongful, an intentional publications of words or
behavior concerning another person which has the effect of injuring his status, good
name or reputation.128
The Elements to Criminal Defamation.
i. The Publication
ii. Of a defamatory allegation concerning another
iii. Unlawfully
iv. Intentionally.
Publication.
Publication involves the communication of the defamatory statements or words to

persons other than just the defamed party. words are defamatory if they tend to
expose a person to hatred, ridicule or diminish the esteem which that person has in
the eyes of others. Mere “vulgar abuse” is not likely to lower the reputation of the
person to whom it is addressed as they are merely just idle or meaningless abuse of
words mostly made to cause temporary provocation to a person and not to injure
such person’s reputation.6
With respect to libel (written defamation), the defamatory statements must be
communicated through a tangible medium, so it should be published either in a book,
newspaper, pamphlet or on a website where it is read by others other than just the
defamed person while with slander (spoken defamation), the defamatory statement
126
Refer to sections 2(e) and 2(g) of Act 4 of 2003.
127
Snyman, C.R. 2014. Criminal law 6th edition. South Africa: Lexis Nexis.p.467.
128
Neethling J. & Potgieter J. (2014). The Law of Delict 7th edition. LexisNexis:
Durban.p.250. 6 Snyman, C.R. 2014.p.469.
is considered published when it is communicated orally and it is heard by persons
other than just the person the statement is defaming.129
There are instances in which publication does not arise: It is not publication if the
other person is not aware of the defamatory words or actions or if it is a
Communication taking place between spouses. 8
In the case of Amunyela v Shaanika,130 The legal issues were: whether or not the
defamatory statements were made by the defendant? And Whether or not there was
a publication of these defamatory words?
Court held that, the defamatory words were indeed made by the magistrate towards
the plaintiff and there was publication of such defamatory statements as they were
made in the presence of the clerk and other witnesses.
This case indicated that a person’s position in society can aggravate the defamation
or rather has an influence on the publication of such defamatory statements as such
person may have the attention of a larger audience or people would or may take
statements directed to such persons or from such persons seriously.
A defamatory allegation concerning another/ False Statement.
When one person makes false statement accusations against or statement about
another and publishes those statement. The statement must damage and injure the
reputation and integrity of the supposed defamed party’s character. To identify if the
statement is false, link the defamatory information to an individual or organisation.
No reputation is harmed if no one understands who it is being referred to Identity that
the plaintiff’s name mentioned; enough information provided about the person in the
story so much that there is little doubt the individual’s identity.
As it was dealt with in the case of 131Smith v Windhoek Observer Pty Ltd, the issue in
this case was whether or not the statements published in the newspaper were
defamatory to the plaintiff. The court held that, the imputations that was made by the
129
Aaron M.2019 .The Minc Law Guide to Virginia Defamation Law. Retrieved from:
https://www.minclaw.com/virginia-defamation-law-state-guide/. Last accessed 15 September 2020. 8 No. 1
of 1990,Article 12(1)(f)’ No persons shall be compelled to give testimony against themselves or their
spouses, who shall include partners in a marriage by customary law, and no court shall admit in evidence
against such persons testimony which has been obtained from such persons in violation of article 8(2)(b)
hereof.’ Spousal privilege.
130
2007 (1) NR 148 (HC).
131
NR 327 (HC).
defendants were highly defamatory to the plaintiff by inputting him with the crime of
murder. The plaintiff is a public figure holding a very important and responsible office
of the deputy commissioner’s office. He was subsequently awarded damages and an
apology was published.10
Examples of defamatory conduct:

Suggestions of a person being a criminal or committed a crime; being immoral;
someone is suffering from an unacceptable social disease; and or a person being
unfit to practice his profession.
The case of Unoovene v Nangolo (2) NR 497 (HC) case summary and significance.
Issue: Whether or not the statements were defamatory?
The court alluded to that, this is objectively determined. If the statement tends to
lower the plaintiff in estimation of right thinking members of the society in general, it
is defamatory. The question is as to what the ordinary, reasonable, balanced and
right thinking person reading the words, of which the plaintiff in mentioned, would
think of him. If it lowered his reputation manifestly those wordings or writing is
defamatory.132
Unlawfulness.
The impairment of reputation must be unlawful infringement of a legally protected

right, unlawfulness is measured using: reasonableness and the legal convictions.
While in unlawfulness, if there is proof that the publication is defamatory and
unlawful, the defendant is given an opportunity to rebut the presumption of
unlawfulness.
Justification ground for unlawfulness.
The supposed defamatory are remarks are indeed truthful.133

It is in the public interest that the remarks be known
That it amounts to fair comment.
132
(2) NR 497 (HC).
133
See Section 107 of Criminal Procedure Act.
Fair comment- provide fair comment on facts which are true and in the public
interest. Distinguish between facts and opinion; fair reasonableness; correctly, stated
facts and comment must refer to matters of public interest.134
That the communication is privilege (Maisel v Van Naeren 1960 4 SA 836 (C) 840
case as cited in the book of Snyman.)
Privilege can be public and private privilege. Apart from that, a privilege can be
absolute privilege (privileged circumstances that protect the defendant irrespective if
his motive in making the statement) and qualified privilege (justify the lawfulness of a
defamatory statement- prove that communication was relevant to the matter under
discussion: Condition is that reporting must be fair and honest; Three occasions of
qualified privilege: Statements published in the discharge of duty, the exercise of a
right or furtherance of a legitimate interest; Statements made during the course of,
or in connection with , judicial proceedings and Reports of legal proceeding,
parliamentary debates.135 An example of the most common privilege one can raise in
our law is marital privilege and attorney & client privilege.136
Afshani and Another v Vaatz 2006 (1) NR 35 (HC) Case summary and significance.
Whether or not the defendant’s statement was defamatory?
This case played out with the defence of qualified privilege, it is a case of importance
to academic as it schooled us that in order to succeed with the defence of qualified
privilege the statement must be made: In the discharge of a legal, social or moral
duty to persons having a reciprocal duty or interest to receive them; In the protection
of furtherance of an interest to a person who has a common or corresponding duty or
interest to receive them; and the statement was relevant to the matter under
discussion on that occasion.137
The court then held that, the defendant established on a balance of probabilities that
she had made the defamatory statement out of a social duty owed by her to the other
members of the NIA and in the furtherance of a legitimate interest she had with them;
that the other members had a reciprocal social duty and legitimate interest to receive
the statement communicated to them; that the contents of the statement were
134
Refer to ss 58 and 71 0f the Constitution of the Republic of South Africa. In the Namibian constitution there
no similar provisions, hence reference was made South African one (comparative law).
135
Neethling J. & Potgieter J. (2014).p.252.
136
See also Article 60 (3) for the National Assembly and Article 74 (5) for the National Council read together
with section 2 of the Powers, Privileges and Immunities of Parliament Act 17 of 1996.
137
2006 (1) NR 35 (HC).
connected to the matter she was addressing and relevant to the purpose of the
occasion; and that the annual general meeting of the NIA at which the defamatory
statement was made was an occasion of qualified privilege.
Intention.
Intention means that the person who commits an act: has directed his will towards
the commission of an Act and In Knowledge of the unlawfulness of the Act. 138 Once
publication has been established there is a presumption that publication is
intentional, the onus lays on the defendant to rebut that presumption, this can be
rebutted if the defendant raises the defence of a mistake or a prank. 139
The matter of Trustco Group International Ltd v Shikongo19 the issue of the matter is
how should the law of defamation give effect to both the right of freedom of speech
and the right of human dignity?
The court held that, media have the duty to hold public officials accountable and
inform the citizens. However the power must be exercised in a responsible manner.
Limitations placed of freedom of speech by article 21(2) is important in the law of
defamation. Such limitation is protecting the mass media and not placing human
dignity at risk. The court also alluded that, the law is requiring reasonable journalism
and the courts must not place unreasonable standards on journalists.
Quiz Question and Answers.
Sandy has a Facebook account. She is an active user of her Facebook page, and
“posts” regularly. Recently, she received some insulting messages on her page. The
massages were posted by her Ex-boyfriend, Andy. One of the things he wrote on her
wall was that she is a “prostitute with breasts that were as big as watermelons”.
Question: Which case can Sandy rely on and the factors the court will consider when
deciding the case.
Answer: The case which Sandy can rely on is the case of Criminal defamation, this
case has four elements which are: The Publication, of a defamatory allegation
concerning another, must be Unlawful and Intentional and those will be the factors
the court will put in consideration when deciding the case. The four elements stated
138
Snyman, C.R. 2014.p.176.
139
Neethling J. & Potgieter J.
(2014).p.276. 19 2010 (2) NR 377 (SC).
above will be treated as sub-issues, in establishing whether criminal defamation was
established from the facts, therefore the issues are:
i. Whether or not there is publication from the facts?
ii. Whether or not the statements (written) are defamatory?

iii. Whether or not the publication is unlawful?
iv. Whether or not publication is intentional?
First factor: whether or not there is publication from the facts?
Relevant law: Publication.

This involves the defamatory statements being read or heard by a third party. If those
defamatory wordings reaches to attention of the third party then there is publication.
There are exceptions though, them being that: if the third party does not understand
the meaning of the defamatory words, then there’s no publication; communication
between spouses does not constitute publication. Also a mere vulgar does not
constitute defamation.
Application of the law to the facts.
The wordings by Andy according to the facts were shared on an active Facebook
account, meaning there are people actively engaging with Sandy, those people being
third parties. The exception of the parties not understanding the meaning, in this
writing we would assume in Sandy’s favour the third parties, few if not all understood
the meaning of the publication. The statements of Andy don’t constitute a mere
vulgar, because those wording are degrading one, like comparison of body part and
calling someone a prostitute which as immoral profession in our Country.
Conclusion.
The element of publication has be established from facts, there is then a

presumption that the publication is both wrongful and intentional, the onus rets on
Andy to rebut this.
Second factor: Whether or not the statements (written) are false?
Relevant law: In order to determine if the statement is false one makes understand
who is being referred when the statements were made in this case the plaintiff name
mentioned; enough information provided about the person in the story so much that
there is little doubt the individual’s identity. An example of a defamatory statement is,
being immoral, suffering of a disease etc.
Application.
Since the words were written on Sandy’s Facebook account as mentioned in the
facts, one can clearly see that those words are referring to Sandy and because they
are coming from his Ex-boyfriend is evident enough that the words are false because
Sandy wants to lay a charge because those are false statements. Even if they are
true, they are degrading and one’s human dignity in inviolable.
Conclusion.
The statements from the facts are false and also degrading.
Factor 3: Whether or not the publication is unlawful?
Relevant law: The impairment of reputation must be unlawful infringement of a

legally protected right, unlawfulness is measured using: reasonableness and the
legal convictions. However there are grounds of justification like: truth, fair comment,
privilege and consent.
Application of the law to the facts.
Firstly to apply those statements to any reasonable person, no one will appreciate of
her sensitive body part be compared to a watermelon as big as it can be. Secondly
those statements have violated the legal convictions of the community, because if
one is to refer to the constitution, Sandy’s right to human dignity was violated. Also
we are we are submitting that the grounds of justifications truth and privilege will not
succeed because article 8 is inviolable.
Conclusion.
The element of unlawfulness has been established from the facts.

Factor 4: Whether or not the publication was done intentionally?
Relevant law: Intention means that the person commits an act: has directed his will
towards the commission of an Act and In Knowledge of the unlawfulness of the Act.
However the defendant can raise the defence of a mistake or a joke to rebut that the
publication was not intentional.
Application of the laws to fact.
Andy from the facts showed to have the necessary will to post (act) those words on
Sandy’s account, nothing on the contrary showed he did not have the necessary
direct his will from the facts. Him knowing the wrongfulness of Act, that cannot be
answered objectively without having Andy to answer, but in this case we would
assume in our clients favour that Andy knew it is wrongful. The justifications of
mistake and a joke in our opinion will last.
Conclusion.
The element of intention has been established from the facts.

Legal Advice: all the elements of the offence of criminal defamation from the facts
has been established and Sandy has been accordingly advised on the factors the
court will take into consideration when assessing the offences. Therefore Sandy can
approach the competent court to seek her redress criminally, or maybe go delictually.
The question asked during the presentation: Is the offence of criminal defamation of
relevance in our Criminal law if there is Defamation lawsuit in law of delict?
Yes it’s of relevance… Why?

In civil lawsuits, the defendants are not given legal aid legal representations by the
State. So if a party institutes a civil lawsuit, he or she will have to hire a legal
representative as well as the respondent. So one can say that civil lawsuits are for
the wealthy and those who really have a high reputation to protect. Which is not the
same with criminal defamation, as parties are afforded legal Aid legal representation
if they cannot afford a ‘special’ lawyer.
So basically criminal defamation is relevant in our criminal law because it caters for
those who cannot afford to pursue a civil law suit and hire the best and expensive
legal representations..
Even though it might cause a case load in the courts, the courts can always decide
whether such matters before it of criminal defamation are trival or not and deal with
them appropriately.
Conclusion.
So the offence of criminal defamation is either spoken or written statements that
injures only the reputation that one holds in the eyes of those around such person
and its elements are intention, unlawfulness, false statement as well as publication. it
was indicated in some cases the need to establish whether there was a publication
of such defaming statements as there cannot be criminal defamation without the
publication of those defamatory statements whether written or spoken. one can take
up the crime of criminal defamation in a civil lawsuit or in a criminal court however its
more favorable to just institute a civil law suit in order to get the highest desired
remedy but For financial reasons, criminal defamation is of importance as those who
cannot afford expensive lawyers can always opt for it.
Reference lists.
Books.
Leroy, M & Roger, C. (2010). Business Law today the essential. United States: south
western languages.
Neethling J. & Potgieter J. (2014). The Law of Delict 7th edition. LexisNexis: Durban.
Snyman, C.R. 2014. Criminal law 6th edition. South Africa: Lexis Nexis.
Cases.
Afshani and Another v Vaatz 2006 (1) NR 35 (HC).
Amunyela v Shaanika 2007 (1) NR 148 (HC).

Smith v Windhoek Observers Pty Ltd 1991 NR 497 (HC).
Trustco Group International Ltd and Others v Shikongo 2010 (2) NR 377 (SC).
Unoovene v Nangolo (2) NR 497 (HC).
Statutes.
Compacting of Domestic Violence Act 4 of 2003.

Namibian Constitution Act 1 of 1990.
Powers, Privileges and Immunities of Parliament Act 17 of 1996.
Internet sources
Aaron M.2019 .The Minc Law Guide to Virginia Defamation Law. Retrieved from:
https://www.minclaw.com/virginia-defamation-law-state-guide/
Human Trafficking
Table of Contents
1. Background and Context on Human Trafficking

2. Namibian Efforts to Combat Human Trafficking
3. Context Namibian Constitution
4. Statutes Combating Trafficking
4.1. Combating Trafficking in Person Act
4.2. Prevention of Organized Crime Act
4.2.1. S v Koch
4.3. Combating Rape Act
4.3.1. S v Jonas
4.4. Labour Act
5. International Treaties
5.1. UN Protocol on Human Trafficking
Background and Context
Human trafficking is a form of modern-day slavery that occurs when a trafficker uses
force, fraud or coercion to control another, for the purposes of engaging in
commercial sex acts or soliciting labour or services against another person’s will. 140
Human trafficking shall mean the recruitment, transportation, transfer, harbouring or

receipt of persons by means of the threat or use of force or other forms of coercion,
abduction, fraud, deception, the abuse of power of a position of vulnerability or giving
or receiving payments or benefits to achieve the consent of a person having control
over another person, for the purpose of exploitation.141
Namibia is a nation of origin, and transit, which is a temporary stop on a trafficked

victim’s journey to the country where they will be enslaved, and terminus, which is
the place where trafficked persons end up, for foreign victims, Namibian women,
children and possibly for men subjected to trafficking in persons, specifically, the
ambience of forced labour and forced prostitution. Traffickers exploit Namibian
children through forced labour in agriculture, cattle herding, involuntary domestic
servitude, charcoal production and commercial sexual exploitation.
The Constitution of Namibia
This is the most supreme law of Namibia and shall be basis for protecting people
within the country.142 It is basis of all laws and it fundamentally aims to protect all
people in Namibia. It provides for the sanctity of the human dignity and the arbitrary
violation of the right to liberty.143 Article 95(b) of the Constitution of Namibia
additionally gives the state the obligation to ensure for the protection and welfare of
all people, even in the face of abuse and exploitation. Article 9 of the Constitution,
further provides all citizens with protection from slavery, servitude and forced labour.
140
Ezeh, MD. 2017. Human Trafficking and Prostitution Among Women and Girls of Edo State, Nigeria
Possibility of Rehabilitation through Education and Prevention. United Kingdom: Xlibris, p. 12. 2 3 Ibid.
4
Ibid.
141
Ezeh (2017:56)
142
The Constitution of the Republic of Namibia Act 1 of 1990
143
Ibid Article 7 and 8
Article 15, read with the Child Care and Protection Act of 2015, protects children
against economic exploitation or protects children against all other forms of abuse or
exploitation. Article 12(1) (a) of the Namibian Constitution, Stipulates that on the
grounds of ‘moral, public order and national security’, the press or public can be
excluded from a court or tribunal hearing. Witnesses can be relocated and receive
physical protection on an informal case-bycase basis.
Combating of Trafficking in Persons Act, 1 of 2018
Trafficking in Persons is a significant human rights and development issue worldwide

that affects men, women and children, and Namibia is no exception. To this effect,
Namibia ratified the United Nations Convention against Transnational Organized
Crime and the additional Protocol to Prevent Suppress and Punish Trafficking in
Humans, especially women and children, in 2003.144
While the international community has commended the efforts of the Namibian
government to prevent and counter people trafficking, these efforts are not sufficient
to adequately counter the grave challenge of human trafficking. A recent report
published by the US State Department states that ‘the government did not meet the
minimum standards in several key areas. For example, the government has not
convicted any traffickers for the second consecutive year (after the adoption of the
Combating of Trafficking in Persons Act; did not refer all identified victims to care,
and continued to lack formal procedures for victim identification and referral. 145
Section 3(2) of the Combating of Trafficking in Persons Act, defines human

trafficking as “the recruitment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of
144
2009. A Baseline Assessment of Human Trafficking In Namibia a Nationally Representative Qualitative
Assessment. Available at www.mgecw.gov.na; last accessed on 08-09-2020.
145
Chandra, Y. 2019. “Human Trafficking In Namibia: Challenges and Opportunities for the Parliament and
Government”. CPA UK Briefing Paper. UK Parliament: Common Wealth Parliamentary Association UK, p. 4.
exploitation.146 Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of organs.
The Combating of Trafficking in Persons Act aims to give effect to the United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children; to criminalize trafficking in persons and related offences; to protect and
assist victims of trafficking in persons, especially women and children; to provide for
the coordinated implementation and administration of this Act; and to provide for
incidental matters.
Prevent of Organized Crime Act, 29 of 2004
The government increased anti-trafficking law enforcement efforts. The 2004

Prevention of Organized Crime Act (POCA) criminalized sex trafficking and labor
trafficking and prescribed penalties of up to 50 years’ imprisonment or a fine not
exceeding 1 million Namibian dollars ($69,690). These penalties were sufficiently
stringent and, with respect to sex trafficking, commensurate with punishments
prescribed for other serious crimes, such as rape. In March 2018, the president
signed the Combating of Trafficking in Persons Act, which explicitly criminalizes
human trafficking and provides protection measures for victims of trafficking and it
was promulgated in April 2018; however, the implementing regulations required for
the law to be fully operational were not finalized by the end of the reporting
period.”147
Section 5 The Prevention of Organized Crime Act stipulates that a person who
knows or ought reasonably to have known that another person has obtained the
proceeds of unlawful activities, and who enters into an agreement with anyone or
engages in any arrangement or transaction commits the offense of money
laundering.148
146
Act 1 of 2018.
147
Pompeo, M R. 2019. Trafficking In Persons Report. Available at www.refworld.org; last accessed on 08-
092020.
148
Act 29 of 2004
S v Koch149
The accused lived in the same neighborhood with the complainants and from the
collective version of the complainants, the accused would invite them to his room
where he would commit sexual acts with them. The court is called upon to determine
whether the accused harboured or received the girls for purpose of sexual
exploitation.” It was held that, “on the charge of Human Trafficking of children, which
the State proved its case beyond a reasonable doubt that the accused harboured or
received the minor complainants within the meaning of POCA and the Protocol by
engaging in lewd and lascivious conduct for his sexual gratification. The court
satisfied that, at the very least, the accused solicited the complainants to engage in
indecent and immoral conduct with him for his sexual gratification, contrary to s 14(c)
of the CIPA. Held further, accused found guilty on child trafficking and on alternative
charges of committing a sexual act with a child below the age of 16 years on divers
occasions contrary to the CIPA.”
Combating of Rape Act, 8 of 2000
Human trafficking and rape are both traumatic crimes, premised upon the power,
control, abuse and exploitation of another human being.
With reference to the Act, the action of rape is interdicted, in terms of section 2 of
which avers that: Any person, by intention, under coercive circumstance commits or
continues to commit a sexual act with another person; or causes another person to
commit a sexual act with the perpetrator or with a third party, shall be guilty of the
offence of rape. It is further stated that “coercive circumstance,” as applied by section
1 includes, but is not limited to the application of physical force to the complainant or
to a third party, and this shall also include threats and harm, depriving one of their
own willingness. Section 2 draws the relationship between human trafficking and
rape as both are traumatic crimes, premised upon the power, control, abuse and
exploitation of another human being. Moreover, the act also provides for penalties
with regards to the act of rape under section 3, as it states that, Any person who is
convicted of rape under the Act shall, subject to the provisions of subsections (2), (3)
and (4), be liable to imprisonment of not less than 5, not less than 15 or a period of
imprisonment amassing to 45 years, depending on the circumstances provided
under.
149
S v Koch (CC 20-2017)
S v Jonas150
The accused was alleged to have unlawfully recruited the complainant by means of
coercion, deception, abuse of power or of a position of vulnerability with the intent to
sexually exploit her. The accused was also alleged to have coerced the complainant
to commit sexual acts with various men. The complainant was a single witness in
some material respects of the trial. In considering her evidence, the court held that
single witness evidence may have shortcomings, defects or contradictions however,
the court may convict an accused on such evidence if satisfied that the truth was
told. The accused stands trial on an indictment containing three counts of Prevention
of
Organized Crime Act. Trafficking of persons for sexual exploitation read with the
United Nations Convention Against Transnational Organized Crime. Accused
recruited, transferred and received the complainant by means of fraud, deception,
the abuse of power or position of vulnerability. Purpose of recruiting complainant was
to facilitate her sexual exploitation for money. Consent of a victim of trafficking is
irrelevant and not a defense. Accused was found on the basis that she had
fraudulently received the complainant, and further prostituted the complainant for her
own gratification. Additionally, using the vulnerability of the complainant to force to do
as she wished.
The survivor voice is a vital part of establishing effective and comprehensive
antitrafficking strategies that advance prosecution, protection, and prevention
efforts.151
Labour Act, 11 of 2007
In Addition to the other acts the Labour Act read with Article 9 of the Constitution
prohibits the trafficking of person and their subsequent forced labour, in terms of
Section 4 of The Labour Act prohibits forced labour: “any work or service performed
or rendered involuntarily by an individual under threat of any penalty, punishment or
150
(2019) NAHCMD 262.
151
Pompeo, M R. 2019. Trafficking In Persons Report. Available at www.uk-cpa.org; last accessed on 08-
092020.
other harm to be imposed or inflicted on”.152 This also includes work performed by an
employee’s child.
Under Section 3 of the Labour Act, strictly prohibits any child under 14 to work;
Children aged 14 - 16 years can work only if it conforms to certain stipulations. For
instance, they cannot work between 20h00 and 07h00. Children aged 14 – 18 years
are also subject to certain conditions.153
International Treaties
Article 19 (5) of the UN Protocol to Prevent, Suppress and Punish Trafficking in

Persons, explicitly women and children avers that:154
State parties shall adopt or strengthen legislative or other measures such as

educational, social or cultural measures including bilateral and multilateral. It is
such that Namibia has enacted legislation to effectively combat trafficking in
person. It enacted the Combating in Trafficking of Persons Act 1 of 2018, which
directly aims to combat human trafficking in Namibia.
UNHCR (2018) draws attention to the fact that, “Adopting and implementing the draft
national mechanism to identify victims and refer them to care; increase funding and
efforts to provide care to trafficking victims; increase efforts to investigate, prosecute,
and convict traffickers; gazette and implement the Combating of Trafficking in
Persons Bill; finalize and implement a new national action plan to guide antitrafficking
efforts; train officials on relevant legislation; strengthen coordination among
government ministries at both the ministerial and working level; and increase efforts
to raise public awareness, especially in rural areas”155
152
Act 11 of 2007.
153
Act 11 of 2007.
154
United Nations Convention Against Transnational Organized Crime, G.A. res. 55/25, annex II, 55 U.N. GAOR
Supp.
(No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001).
155
UNHCR. 2018. 2018 Trafficking in Persons Report – Namibia. Available at www.refworld.org; last accessed
on 08-09-2020.
The 10 Year SADC Strategic Plan of Action on Combating Trafficking in Persons,
especially Women and Children (2009-2019) puts emphasis on, amongst others,
extensive efforts towards prevention through awareness raising campaigns that
would result in “increased psychosocial competencies such as understanding and
consciousness of the problem and skills on how to avoid or prevent trafficking in
persons, as well as recognition that trafficking in persons is a crime.” 156
Conclusion
The government should also ‘adopt and implement the draft national mechanism to
identify victims and refer them to care, as well as increase funding and efforts to
provide care to trafficking victims.’ Increased effort to ‘investigate, prosecute, and
convict traffickers’ is required. Finally, it is essential to link different agencies by
establishing inter-agency working groups, particularly in border regions like the
Zambezi. This will improve policy coordination and effective sharing and analysis of
the information at the regional level. Equally, law-enforcement agencies should
coordinate with relevant stakeholders to ensure that they are aware of their work and
gather information from the grassroots level.157
156
SADC Secretariat. 2017. Preventing and Combating Trafficking in Persons: Lessons from the SADC Region.
Available at www.sadc.int; last accessed on 08-09-2020.
157
Chandra, Y. 2019. “Human Trafficking In Namibia: Challenges and Opportunities for the Parliament and
Government”. CPA Uk Briefing Paper. UK Parliament: Common Wealth Parliamentary Association UK, p. 8.
Bibliography
Constitution of the Republic of Namibia.
Statutes
Combating of Trafficking in Persons Act, 1 of 2018
Prevention of Organized Crime Act, 29 of 2004
Combating Rape Act, 8 of 2000
Child Care and Protection Act, 3 of 2015
Criminal Procedure Act, 25 of 2004
Labour Act, 11 of 2007
Treaties
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially

Women and Children.
United Nations Convention Against Transnational Organized Crime, G.A. res. 55/25,
annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001).
Cases
S v Koch (CC 20-2017)
S v Jonas [CC 14-207] (2014)
Papers
Ezeh, MD. 2017. Human Trafficking and Prostitution Among Women and Girls of Edo
State, Nigeria Possibility of Rehabilitation Through Education and Prevention. United
Kingdom: Xlibris, p. 12.
2009. A Baseline Assessment Of Human Trafficking In Namibia A Nationally
Representative Qualitative Assessment. Available at www.mgecw.gov.na; last
accessed on 08-09-2020.
Chandra, Y. 2019. “Human Trafficking In Namibia: Challenges And Opportunities For
The Parliament And Government”. CPA Uk Briefing Paper. UK Parliament: Common

Wealth Parliamentary Association UK, p. 4.
Pompeo, M R. 2019. Trafficking In Persons Report. Available at www.refworld.org;

last accessed on 08-09-2020.
UNHCR. 2018. 2018 Trafficking in Persons Report – Namibia. Available at

www.refworld.org; last accessed on 08-09-2020.
SADC Secretariat. 2017. Preventing and Combating Trafficking in Persons: Lessons

from the SADC Region. Available at www.sadc.int; last accessed on 08-09-2020.
Fraud
Definition
Fraud is the unlawful and intentional making of a misrepresentation which causes

actual prejudice or which is potentially prejudicial to another.158 It includes the false
representation of facts by intentionally excluding some information or giving false
statements to another person in order to gain something that may have not been
gained without deception.159 The elements that amount fraud are misrepresentation,
prejudice, unlawfulness and intention.
Misrepresentation
The very first requirement of fraud is misrepresentation which is often referred to as

the perversion or the distortion of the truth.160 Misrepresentation can be defined as
the action or the offence of giving a false or misleading account of the nature of a
certain course of events. This means that one person represents to another that a
fact or a set of facts exists whilst in reality, it does not. Normally, misrepresentation
would take the form of spoken or written words, but conduct is also very much
sufficient in proving the element of misrepresentation.161
The Forms of Misrepresentation
Express or Implied Misrepresentation
Misrepresentation may either be expressed or implicit meaning that a party may

represent a fact in a particular manner or may suggest that a fact is true without
actually saying so.
For example, if X unlawfully comes into the possession of Y’s credit card and uses
the card to make purchases in a shop by falsely writing Y’s signature on the pay slip,
this would entail that X is committing fraud as she is misrepresenting that she is the
owner of the credit card whilst she in fact is not. 162
In the case of S v Van Rooyen and Another, it was stated that. Evidence on a charge
of which false representation is an element If at criminal proceedings, at which an
158
Snyman CR.2008.Criminal Law Fifth Edition. Durban: Lexis Nexis, p531.
159
Investopedia.2020.Fraud Explained. Available at https://wwww.investopedia.com/terms/f/fraud.asp. Last
accessed 4 September 2020.
160
Snyman, CR. 2014. Criminal Law. South Africa: LexisNexis Pty (Ltd), p.524.
161
(Ibid.).
162
(Ibid.).
accused is charged with an offence of which a false representation is an element, it
is proved that the false representation was made by the accused, he shall be
deemed, unless the contrary is proved, to have made such representation knowing it
to be false. 163
Commissio or Omissio
Misrepresentation may have been made either by commissio (a positive act) or

omissio whereby a party fails to disclose a fact, which in the eyes of the law may
amount to the making of a misrepresentation as there is a legal duty on the party to
disclose the particular fact.164 A legal duty may be created by legislation thus an
omission to comply with the provision of legislature may amount to a
misrepresentation and fraud and also, from considerations rather than statute such
as where courts are in the opinion that one party should have acted positively in
order to remove a misconception which would have existed in the party’s mind.165
In the case of S v Harper, in order to induce Y to lend him money, X expressed to Y
his honest belief that he had adequate security for a loan and thus Y accordingly lent
X the money but X subsequently found out, after receiving the money from Y that the
security of his loan was no longer adequate. X, knowing that Y was still under the
impression that the security to the loan was safe, let a whole year pass without
informing Y of the changed circumstances regarding his loan and at the end of the
year, X went insolvent and Y could not recover his money, so upon taking the matter
to court, the court established that X was under a legal duty to inform Y of the
changed circumstances relating to the security of his loan and thus his intentional
omission constituted a misrepresentation thus convicting him of fraud. 166
False Promise about the Future
Fraud claims normally cannot be based on unfulfilled promises or statements

regarding future events thus promises to perform future acts are not legal
representations and failure to perform them does not change that fact but if a
defendant, at the time of making the promise, had no intention whatsoever of
163
S v Van Rooyen and Another 1992 NR 165 (HC).
164
Snyman, CR. 2104. Criminal Law. South Africa: LexisNexis Pty (Ltd), p.525.
165
( Ibid.).
166
S v Harper 1981 2 SA 638 (D).
carrying out the promise made, then that promise would then be considered a
misrepresentation of the present fact.167
Misrepresentation to a Computer or a Machine
It is possible for one to make a misrepresentation leading to liability for fraud even if
the misrepresentation is not made to another person but rather a computer or a
machine. For example, if A steals B’s credit card and proceeds to make purchases
with the stolen card, A not only commits theft but also commits fraud every time she
makes purchases with the credit card as A is misrepresenting that it is her card
knowing that it actually belongs to B.168
In the case of Renault UK Ltd v Fleetpro Technical Services Ltd and Another, the
High Court established that misrepresentation could be made to a computer when
Renault alleged that a customer had made fraudulent misrepresentation allowing it to
obtain motor cars at discount prices on behalf of end users who were not entitled to
benefit Renault’s discount scheme.169 The High Court ruled that the fact that
misrepresentation had been made to a machine, which is Renault’s computer
system, did not prevent them from being actionable thus the accused was convicted
of fraud.
Prejudice
Prejudice is defined as harm or injury that results or may result from some action or
judgment of another in disregard of one’s right. 170 This is especially to the detriment
of one’s legal rights. There must be real or potential prejudice for the crime of fraud
to be committed as merely telling a lie is not punishable. The crime is committed only
if it brings some form or other.171
Prejudice may either be actual or potential, in that even if actual prejudice was not
proved, one may still be convicted if her misrepresentation proved to be potentially
prejudicial, if it involved some form of risk. There should not necessarily be a
probability of prejudice involved, but rather what is required is the possibility of harm,
that prejudice can be, not will be, caused.172
167
Berlik,LE.2012.Misrepresentation of Present Intent to Perform Contract.Available at
www.virginiabusinesslitigationlawyer.com; last accessed 28 August 2020.
168
Snyman, CR. 2014. Criminal Law. South Africa: LexisNexis Pty (Ltd).
169
Renault UK Ltd v Fleetpro Technical Services Ltd and Another [2007] EWHC 2541 (QB).
170
Unknown. Merriam Webster. Available at https://www.merriam-webster.com/dictionary/prejudice ; last
171
Snyman CR. 2014. Criminal Law. South Africa: Lexis Nexis, p527.
172
Supra p528.
S v Campbell173 sets out the rules on potential prejudice. In this case, the police had
been informed that the defendant was looking for a buyer for diamonds at plus-minus
R70 000. They then set up a trap. Rahn and the appellant discussed the diamond
trade and the appellant produced 10 stones. The stones were placed on a white
paper used for evaluating the colour of diamonds.
The defendant told Rahn he had a machine that could indicate whether stones were
genuine diamonds or not. Defendant fetched the machine and tested his ring and a
red light showed. The Defendant produced another packet of 16 stones and also
tested it with the machine. Again, a red light showed. Rahn and the appellant then
negotiated a price and eventually agreed on R70 000 for the 26 stones.
Rahn went to fetch the money and gave the agreed sign to the police. When he
returned with the money, the inspector and other policemen were already in the
room. The money was not handed over to the defendant.
The legal question was whether all the requirements of the crime of fraud had been
met, particularly the element of prejudice. It has been recognised that actual
prejudice is not required to constitute fraud and there must be a risk that prejudice
could be caused.
Whether the person to whom the representation is made is aware of the fact that it is
false is irrelevant, in that the law looks from the point of the deceiver, if he had the
intention to deceive. The court also highlighted the test for prejudice, which is
objective. Prejudice must be determined at the time of the misrepresentation. It is
clear that viewing from the appellant’s point of view, there had been a risk that the
State could be prejudiced at the time. The appeal was dismissed, and the
magistrate’s conviction upheld.
Non-proprietary prejudice
Most cases of fraud have to do with either financial or proprietary prejudice.

However, it is not always necessary for prejudice to be proprietary in character. In
such instances, the conduct is prejudicial to the State or third party. The
misrepresentation is calculated to weaken the control of either the State or the third
173
S v Campbell 1990 NR 274 (HC).
party over a certain place or person174. The following are examples where
prejudice is regarded as non-proprietary:
• The owner of a liquor license making false entries in sales registers regarding
the sale of their liquor. This is prejudicial to the State because the
misrepresentations are calculated to weaken the State’s control over the sale
of liquor. 175
• Providing a prosecutor with a fake driver’s license when charged with a traffic
offense.176
• Entering into an agreement with Y, which Y would not have entered into if
there had been no fraudulent misrepresentation.177
Unlawfulness
An act is deemed unlawful when the accused commits a criminal act with the
intention to do so with no just reason, when trying to establish liability in terms of
fraud the unlawful requirement first needs to be met. In order to determine whether
or not an individual is criminally liable for an act they committed, regardless of the act
complying with the definitional element we have to determine if the act was done
unlawfully or not. 178
An importance case we can refer to is the case of S v Vanwyk.179 The accused was
employed as a team leader by the complainant. Accused committed fraud by using
passwords and user IDS of his colleagues and transferred money into his own
accounts and that of his friends, relatives and acquaintances. He later withdrew the
money for his own benefit. The accused took advantage of his position and trust
bestowed upon him and engaged in fraudulent activities over a period of two years
and seven months, the accused then pleaded guilty to this charge.
The court held that the crimes by the accused were pre-meditated as they were
committed over a lengthy period of time. The accused had ample time to reflect and
come to his senses to stop his fraudulent actions before his actions were discovered
174
Snyman, CR. 2014. Criminal Law Sixth Edition. Pretoria: LexisNexis, p 529.
175
R v Heyne 1956 (3) SA 604 (A).
176
Snyman CR.2008.Criminal Law Fifth Edition. Durban: Lexis Nexis,p530.
177
(ibid.).
178
Sandford, L Bisscoff (Eds). 2014. Criminal Law. South Africa : Interpak Books Pietermaritzburg,p95.
179
S v Vanwyk ( cc7/2017)NAHCMD II (31 January 2018).
but he opted to continue with his activities. As a result, he was convicted and found
guilty of fraud.180
Grounds for justification for unlawfulness in terms of fraud are compulsion or obeying
of orders. 181
Intention
Intention is when the person has the actus reus to misrepresent himself which in the
broad sense would mean misrepresentation elevates to fraud when it is prefixed by
the element of intention to deceive/defraud the other party. 25
The intention to defraud includes the intention to deceive, but the latter does not
include the former this clearly means that if the intention to defraud is present, X’s
motive is immaterial. No intention to acquire some advantage is required. 182
Snyman draws a distinction between an intention to deceive and an intention to
defraud. Intention to deceive the other party is the essence of fraud. Intention to
deceive means an intention to make somebody believe that something which is in
fact false, is true. The intention to defraud means the intention to induce somebody
to embark on a course of action prejudicial to herself as a result of the
misrepresentation. The intention to deceive is relating to the misrepresentation, and
the latter is the intention relating to both the misrepresentation and the prejudice. It is
this latter intention which must be established
in order to convict somebody of fraud. The mere telling of lies which the teller thereof
does not believe the person to whom they are told will act upon is not fraud. 183
For example, X, intending to deceive/defraud Y, falsely represents that 1,000 tons of
sugar is produced annually at his factory, although X is fully aware that only 600 tons
of sugar can be produced annually. Y thereby agrees to buy the factory. X has
resorted to fraud to obtain the consent of Y. 184
Using the practical example Snyman establishes that X must, be aware of the fact
that the representation is false. X can be said to be aware that her representation is
180
S v Vanwyk ( cc7/2017)NAHCMD II (31 January 2018)
181
Sandford, L Bisscoff (Eds). 2014. Criminal Law. South Africa : Interpak Books Pietermaritzburg, p 530. 25
Snyman,CR, 2014. Criminal Law. (6th edition) Pretoria:LexisNexis,p531.
182
( Ibid.).
183
(Ibid.).
184
Unknown.2017. Money Matters. Available at https://accountlearning.com/top-10-essential-elements-
offraud/; last accessed on Wednesday 02, September 2020.
false not only if she knows that it is false but also if she has no honest belief in its
truth, or if she acts recklessly, careless as to whether it is true or false. X can know
that the representation is false even with her suspiciousness of the correctness; X
intentionally abstains from checking on sources of information with the express
purpose of avoiding any doubts about the facts which form the subject matter of the
representation.185
All rules applied in practice are applications of the rule that dolus eventualis (when
an accused person subjectively foresees the possibility that in striving towards his
main aim an unlawful crime will be committed and reconciles from this possibility)
meets. In other words that it is sufficient if X foresees the possibility that her
representation may be false but nevertheless decides to make it.186
S v Nakare187
Summary
The accused is employed by the Rundu Hospital and he took a cheque that
belonged to Mr. Simafo. It was part of the duties of the accused to hand out cheques
including this particular one. Mr. Simafo was at that time on leave. The accused
claims that there was an agreement between himself and Mr. Simafo that he could
take his cheque and use the money. Another witness testified that the accused is the
one who usually hands out the cheques and that he once too his cheque but later
returned his money. The accused testified that he according to his agreement with
Mr. Simafo repaid him before the end of September.
These charges did not contain all the elements of fraud. In neither of the two charges
was the element of prejudice to the claimant alleged and only by inference could it be
said that the misrepresentation was alleged. The Judge stated that in every instance
where the charge is the offence of fraud all the elements, including that of
misrepresentation should be set out clearly.
S v Nakale and Others 188
Summary
185
Snyman CR.2008.Criminal Law Fifth Edition. Durban: Lexis Nexis,p531.
186
(Ibid.).
187
S v Nakare 1992 NR 99 (HC).
188
S v Nakale And Others (No 1) 2007 (2) NR 405 (HC).
Accused No. 1 had arranged for unauthorised bail to be granted to a rape suspect
who was awaiting trial. He was aware that the complainant was against the granting
of bail.
For the purposes of the topic on fraud, attention will be paid to accused 2 and 3.
Accused No. 2 was a clerk at Outapi magistrates' office. The elements of this charge
of fraud in relation to accused No. 2's involvement were that;
 He wrongfully, unlawfully, falsely and with the intention to defraud; pretended
that the warrant of detention dated 20 May 2005 was valid;
 Induced Constable Haufiku to act on it, by misrepresenting to her that Olavi
Munkundi was granted bail of N$1 000 and to release him from custody;
 Consequently, accused No. 2 had the intent to defraud when he signed the
warrant of detention on 20 May 2005, which warrant of detention caused the
release of Olavi Munkundi.
 With regard to prejudice, the unlawful release of Olavi Munkundi as a result of
the unlawful and false warrant of detention caused a potential criminal to be
freed to the potential prejudice of the administration of justice and to the
potential prejudice of the State.
Consequently, upon meeting all the requirements of fraud, the accused No. 2 was
found guilty of committing the offence of fraud as charged.
Accused No. 3 was the assistant magistrate of Outapi magistrates' court. She was
accused of defrauding the State by misrepresenting that the entries she made in the
case record of Olavi Munkundi were correct, while she knew Olavi Munkundi did not
appear in the court on 20 May 2005, the case was not on the roll, he was not granted
bail in court in the amount of N$1 000 and that she did not preside over the
proceedings on 20 May 2005.
Accused No. 3 admitted that she knew that the entries she made in both the Court
Book and on the case record of Olavi Munkundi were wrongfully made. She also
admitted that she knew what she did was wrong and admitted that it was unlawful,
yet she continued with it.
The government of Namibia or even the complainant was prejudiced by the conduct
of accused No. 3. Upon meeting all the requirements of fraud, the accused No. 3
was found guilty of committing the offence of fraud as charged.
S v Friedman
In Friedman, the accused, had been charged with fraud involving the smuggling of
stolen, unwrought gold. He contended that the common-law definition of fraud was
unconstitutional since the courts held that prejudice does not have to be financial or
proprietary, may be potential, and doesn’t have to be suffered by the represent.
The court stated that;
“The present definition of fraud is wide, but that does not make it difficult,
much less impossible, to ascertain the type of conduct which falls within it”.189
Attempt
The view was long held that, because potential prejudice is sufficient to constitute
fraud, there can be no such thing as attempted fraud considering that even if a
representation isn’t acted upon or believed, potential prejudice is still present and
fraud is complete.190
However, it was held in R v Heyne191 that an attempt to commit fraud is possible in

cases where a misrepresentation is made but not communicated to the representee.
The case of R v Francis192 is a rare case of attempted fraud. Francis buried jewels in
his friend's garden. He then insured the jewels against theft with an insurance
company. At a later date he informed the company falsely that the jewels had been
stolen from his motor car and claimed the value of the jewels in money. The
insurance company required proof that his motor car had been burgled. Francis then
broke the lock of his car creating the impression that his motor car had been broken
into. His fraudulent conduct, however, was discovered before he completed the claim
form. Francis was found guilty of attempted fraud. Should he have completed the
claim form and handed it to the insurance company, he would have been guilty of
fraud. Francis was caught before he could make the misrepresentation to the
insurance company in the claim form. It was held that there had been no question of
potential prejudice when he contacted the company in the first instance.
189
S v Friedman 1996 (1) SACR 181 (W).
190
Snyman,C,R. 2014." fraud and related crimes ". In Criminal Law,Sixth Edition,Cape Town: LexisNexis,p53.
191
R v Heyne 1956 (3) SA 604 (A) 622.
192
R v Francis 1981 (1) SA 230 (ZA).
Scenario question
The issue is whether or not Natasha met all the elements of fraud and can therefore
be charged with fraud.
In the case of S v Van Rooyen and another. 193 The court applied the presumption
that, upon the trial of a person charged with an offence of which false representation
is an element, if it is not provided that the false representation was made by him, he
shall be deemed to have made the representation knowing it to be false unless
proved to the contrary.
As the first element of fraud we submit that misrepresentation as an element has
been met. In respect of the act Natasha made the misrepresentation to a computer
as it was not made directly to the other person. She falsely and impliedly represents
to the computer that it is Robert who is using the computer and is writing the email to
the boss. By writing down her bank details and by sending it to the boss she
misrepresented that the account details sent belong to Robert while in actual fact it
belong to her, and in applying the aforementioned presumption we submit that there
has been a perversion and distortion of truth.
In terms of prejudice, reference can be made to the case of S v Essop. In this case,
Judge Steyn emphasised that “Prejudice is required for the simple reason that some
sort of harm needs to be caused and for purposes of the crime the harm is labelled
as prejudice.”194
As we have just learned, prejudice occurs when the telling of a lie brings about some
type of harm to another. From the facts of this scenario, it is evident that what
Natasha did, in fact does meet the requirement of prejudice. In invading the privacy
of her superior without permission and sending her bank details to Robert’s boss,
she has harmed Robert by robbing him of N$50 000 that should have been in his
bank account.
In terms of the element of unlawfulness , reference can be made to the case of S v

Rooi.195 The accused was a garage employee, he loaded the GRN vehicle with
containers and drums with fuel and gave the impression that the fuel was required in
connection with his official duties while that was not the case. Although he was first
convicted for theft, the evidence in court proved fraud instead of theft. He was fully
aware that he was only permitted to use the government fuel for the exercise of his
193
S v Van Rooyen and another 1992 NR 165 (HC) .
194
Essop v S (AR931/2004)[2014]ZAKZPHC 30; [2014] 3 All SA 337 (KZP); 2014 (2) SACR 495 (KZP)(23 May).
195
S v Rooi (CR 3 /2018) [2018] NAHCMD 12 (01 February 2018).
duties, but he actually used the fuel for his own benefit. Therefore, his conduct was
unlawful.
Applying this to the scenario at hand, when Natasha opened Robert’s emails, read
them and entered her own account details as if they belonged to Robert so that she
could receive the money, she was fully aware that what she was doing was wrong
but she chose to do it anyway. Taking someone’s money without good reason or
without permission is an unlawful act.
In terms of intention, In the case of S v Nkala,196 the accused had made a transfer
from the complainant’s bank account and he impliedly represented to the First
National Bank that it was the complainant who had withdrawn the money. The
accused knew that that representation was false because it was made without the
complainant’s knowledge or consent. He accordingly misrepresented the situation to
First National Bank with the intention to induce the bank to release the money from
the complainant’s account. The withdrawal of money caused prejudice to the
complainant and the bank. In the circumstances, the court was of the opinion that all
the elements of fraud had been met convicted of fraud.
Applying this to the scenario Natasha knowingly entered her bank details into the
email in order to have the money sent to her. She impliedly represented to Roberts
boss that it was Roberts details that she forwarded back in that email. She had the
intention to induce Roberts boss to release money into her bank account instead of
Roberts bank account. Thus, meeting the element of intention. Upon meeting all the
requirements of fraud Natasha can thus be charged for fraud.
196
S v Nkala (20170040) [2017] ZAECGHC 51 (9 May 2017).
Bibliography
Cases
Renault UK Ltd v Fleetpro Technical Services Ltd and Another [2007] EWHC 2541
(QB).
S v Campbell 1990 NR 274 (HC).
R v Francis 1981 (1) SA 230 (ZA).
S v Friedman 1996 (1) SACR 181 (W).
S v Harper 1981 2 SA 638 (D).

R v Heyne 1956 (3) SA 604 (A).
S v Essop (AR931/2004)[2014]ZAKZPHC 30; [2014] 3 All SA 337 (KZP); 2014 (2)

SACR 495 (KZP)(23 May)
S v Nakale And Others (No 1) 2007 (2) NR 405 (HC).

S v Nakare 1992 NR 99 (HC).
S v Nkala (20170040) [2017] ZAECGHC 51 (9 May 2017).
S v Rooi (CR 3 /2018) [2018] NAHCMD 12 (01 February 2018).
S v Van Rooyen and another 1992 NR 165 (HC).
S v Vanwyk ( cc7/2017) NAHCMD II (31 January 2018).
Books
Snyman CR.2008.Criminal Law Fifth Edition. Durban: Lexis Nexis.

Snyman, CR. 2014. Criminal Law. South Africa: LexisNexis Pty (Ltd).
Sandford, L Bisscoff (Eds). 2014. Criminal Law. South Africa: Interpak Books
Pietermaritzburg.
Internet sources
Investopedia.2020.FraudExplained.Available at
https://wwww.investopedia.com/terms/f/fraud.asp. Last accessed 4 September 2020.
Berlik,LE.2012.Misrepresentation of Present Intent to Perform Contract.Available at
www.virginiabusinesslitigationlawyer.com; last accessed 28 August 2020.
Unknown.MerriamWebster.Availableat
https://www.merriamwebster.com/dictionary/prejudice ; last accessed on 08
September 2020.
Unknown.2017. Money Matters. Available at https://accountlearning.com/top-
10essential-elements-of-fraud/; last accessed on Wednesday 02, September 2020.

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Faculty of Law

PROGRAMME: BACHELORS OF LAW COURSE LECTURER: MR. LIBEBE

COURSE CODE:JCR 3692 COURSE TITLE: CRIMINAL LAW II

Produced by the Avengers Class of LLB 2020.

Compilation of the Presentation Write Ups.

1.1 Definition of prostitution

Prostitution refers to a transaction involving the exchange, between 2 or more

There exist 2 (two) forms of prostitutions, a natural and a classical form of

1.2 The continuum of sex for material gain

1.3 International laws

1.4 The 1949 Convection

2.4 Unlawfulness / similarly referring to legality

2.5 purpose of engaging in a sexual act

contravening those regulations.22

Prostitution standing in terms of case law

In answering this question, we will start of by applying the definitional elements of

The combating of immoral practices Act 21 of 1980.

The Namibian Constitution

The Constitution of the Republic of Namibia.

Hendricks and others v attorney general of Namibia 2002 NR 353 (HC).

R v De Munck 1918 (1) KBD 635.

S v Banda and Others 1990 (3) SA 466 (BG).

S v Jordan 2001 (10) BCLR 1055 (T).

S v Teek 2019 (1) NR 215 (SC).

Theoharis, M. 2012. Solicitation of Prostitution. Available at

Question:.................................................................... Error! Bookmark not defined.

Combating Immoral Practices Act

Ubuntu is an embodiment of a set of values and moral principles which spearheaded

Loophole of Natural Law

Inadequacies of Analytical Positivism

The analytical positivism school of thought also shows considerable shortfalls as it

Presentation Question: What is homosexuality considered as in society?

In terms of homosexuality, it depends in which context one is looking at it. From a

Relevant Case Law

Amoo, S. 2008. Introduction to Namibian Law Materials and Cases. Windhoek:

Macmillan Education Namibia Publishers.

Cambridge University Press.

S v Makwanyane and Another 1995 (6) BCLR 665 (CC).

CatholicHawaii. 2014. Bible Verses about Homosexuality. Available at:

Himonga, C. 2013. Reflections on Judicial Views of Ubuntu. Potchefstroom

Combating Immoral Practices Act 21 of 1980.

Bribery as a type of corruption

Bribery can be described as illegal and unethical, giving, obtaining, or performing

- Section 38 of the latter mentioned Act outlines what constitutes a bribe of a

Corruptly Accepting Gratification by or giving gratification to an agent. With

The section wants us to set up two things:

2. In what conditions will an officer be held criminally responsible for taking a

Section 43 of the Anti-Corruption Act

Penalties for gratification

- Section 42 A person commits an offence who corruptly solicits or accepts or

Application of the law:

Musewa v S (CA 34/2017) [2018] NAHCNLD 10.

Namibia Corruption Index. Available at

Amupanda, J. 2019. “The fight against corruption in Namibia: An appraisal of

Possession or Use of Drugs:

The Abuse of Dependence Producing Substances and Rehabilitation Centre’s Act

Possession in the act stated above is defined as “keeping, storing or having in

The elements of such a crime are as follow: 69

• The act (that is possession or use)

The Drug- the crime is committed if what is possessed or used is either a

Unlawfulness- In terms of the general principles of criminal liability, the

Dealing in drugs is a more serious crime than possessing or using drugs.

• The act (of dealing in)