Women and Justice: Court: High Court

Domestic Case Law

Rex v. Simelane High Court (2017)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with rape of his seven-year-old granddaughter between the months of August to October 2008. The prosecution alleged that the accused did intentionally have unlawful sexual intercourse with a female seven-year-old minor who is incapable of consenting to sexual intercourse. The complainant, her brother who was sharing a bedroom with her during the rapes, the complainant’s aunt who the complainant first told of the rapes, a neighbor who had been told of the accused’s actions by his wife, the doctor who examined the complainant, and the constable all testified for the prosecution. The accused denied the charges and argued that all of the witnesses were lying, specifically that the children had been coached by the police. The Court discussed the elements that the Crown must prove in order for the accused to be found guilty of rape, namely (1) the accused must be identified; (2) there must be sexual intercourse; and (3) there must be lack of consent by the complainant. The accused was found guilty of rape. In sentencing, the Court found that the Crown proved that there were aggravating factors under Section 185(bis) of the Criminal Evidence Act (1938), namely, (1) the victim was a minor of a tender age; (2) the accused sexually assaulted the victim on more than one occasion; and (3) the accused stood in locus parentis to the victim and this abused the relationship of trust. The Court found the witnesses credible and found the accused guilty as charged.

Stapley v. Dobson High Court (2008)

Gender discrimination

This is a child custody case involving a father (the applicant) seeking custody of his minor child because the child’s biological mother, the respondent, sought to take the child to Sri Lanka without the applicant’s permission. The applicant and respondent were never legally married and the respondent had custody of the child. The Court found that Section 31 of the Constitution abolishes the status of illegitimacy of children but that Section 31 is silent on the status of the father of a child born out of wedlock. The Court held that until Parliament enacts the necessary laws under Section 29(7) of the Constitution (which specifically provides for the enactment of laws by Parliament to ensure children’s rights) the legal effects flowing from the fact that the child was born out of wedlock apply and the Court cannot grant guardianship of the minor child to the applicant. Section 31 of the Constitution relates, in part to the rights of children born out of wedlock to inherit from their father. The Court was satisfied that the mother showed careful preparation in her decision to move to Sri Lanka for better career opportunities. The application failed.  

Rex v. Shongwe High Court (2008)

Domestic and intimate partner violence

The 54-year-old accused pleaded guilty to culpable homicide based on allegations that she unlawfully poured boiling water on her husband. He refused to seek medical attention for his injuries because he was embarrassed and he died six days later. The Court ordered a suspended sentence because the accused “had been and was being” viciously attacked by her husband and was escaping his attack. The Court based its judgment on a finding that there was a combination of extenuating factors present, including that the accused suffered from battered wife syndrome, the needs of the six remaining minor children for whom the accused is the sole caretaker and provider, that the accused had already served two years imprisonment before she was released on bail, and the deceased’s refusal to go to the hospital for treatment for fear of being ridiculed by other men.

State v. Britz High Court (2013)

Domestic and intimate partner violence

In this case, the court overturned a “strikingly short” two-year sentence imposed on the defendant, who was convicted of attempting to kill his ex-girlfriend by stabbing her three times, including once near her eye, with a knife while she was holding her 2-year-old child. Despite the severity of the crime and finding that the defendant exhibited no remorse for his actions, the presiding magistrate only imposed a two-year jail sentence, citing the defendant’s personal circumstances as the sole breadwinner and caretaker for his three children and his ill grandmother.  Although trial courts have discretion to determine punishment, the High Court refused to confirm the sentence and would only confirm the conviction, citing the three principles of sentencing: the personal circumstances of the accused, the nature of the crime, and the interests of society. The Court directed the Registrar to provide a copy of this decision to the Prosecutor-General, explaining that while taking the defendant’s circumstances into account is proper, the two-year sentence was unjust because of the severity of the crime and the prevalence of violence against women and children. 

State v. Waterboer High Court (2013)

Domestic and intimate partner violence

The defendant was convicted of murder and violating the Combating Domestic Violence Act for killing his girlfriend after the police had warned him to stay away.  Before sentencing, the court noted that the defendant’s punishment had to reflect the “extremely serious” nature of his crime. The court stated that “[t]he sentence . . . must reflect the seriousness [with] which the court regards any such act of violence committed against women and all other vulnerable people in our society,” and imposed a 32-year sentence (¶¶ 10–11). 

Kamaze v. State High Court (2013)

Statutory rape or defilement

The appellant was convicted of raping his minor daughter and sentenced to 18 years and three years imprisonment, for rape and incest respectively, to run concurrently. He appealed his conviction, claiming that his minor daughter was the only witness to the alleged crime, that the trial judge improperly assumed the complainant was under 18 years old, that the prosecution did not meet its burden of proof, that his rights to legal representation were not explained, and that the sentences were unreasonable. The High Court of Namibia (“High Court”) determined that the child’s testimony was sufficient to sustain the conviction pursuant to Section 208 of Act 51 of 1977, which allows for conviction based on “the single evidence of any competent witness.”  The High Court held that “although the complainant is a single witness to the actual rape, the fact that she immediately reported that to her sister and her niece corroborates her evidence,” and that the medical report, which was the result of a doctor’s examination conducted on the night of the rape after the complainant took a bath, corroborated her account of being raped.  However, the High Court allowed the appeal on the charge of incest.  The High Court cited the “single intent” test, which requires that two criminal acts be considered as one transaction if the evidence for one of the acts necessarily involves proof of another criminal act.  The Court stated that the defendant had a single intent – to rape his daughter – so he should only be convicted of one crime (rape) rather than two.