REPORTABLE

CASE NO: CA 24/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

CORAM SHIVUTE J et GEIER AJ

Heard
on: 31 January 2011

Delivered on: 19 May 2011

SUMMARY

Criminal Law – statutory
offence – whether mens rea is an essential ingredient of
the offence created by section 35 (1) of the Anti-Corruption Act, Act
no 8 of 2003 – the question whether or not mens rea is
an element of the offence under consideration essentially to be
established by interpreting the statute in question in order to
deduce therefrom the essence of the legislatures intentions where the
legislation merely prohibits conduct without reference to the element
of mens rea -

Criminal Law – statutory
offence - whether mens rea is an essential ingredient of the
offence created by section 35 (1) of the Anti-Corruption Act, Act no
8 of 2003 – the question whether or not mens rea is an
element of the offence under consideration essentially to be
established by interpreting the statute in question - the point of
departure is the general rule : “... actus non facit reum
nisi mens sit rea, and that in construing statutory prohibitions
or injunctions, the Legislature is presumed, in the absence of clear
and convincing indications to the contrary, not to have intended
innocent violations thereof to be punishable – Decisions of R.
v H. 1944 AD 121 at pages 125, 126, R v Wallendorf and Others
1920 AD 383 at p 394S v Arenstein 1964 (1) SA 361 AD S v Maseka
1991 NR 249 HC at p 253 B approved – this approach is fortified
by the rule that penal statutes are to be benevolently interpreted
(in favorem innocentia) as well as by the presumption (since mens rea
is an element of common law crimes) that the legislature does not, in
the absence of clear language to this effect, intend to alter the
common law -

Criminal Law – statutory
offence - Courts have evolved a special approach to discover whether
the presumption is to be given effect to or not – court to have
reference to what is termed ‘other considerations’ or
“'various' considerations’ in order to determine whether
or not the legislature has intended strict liability in a statute -
inter alia - language and context of the prohibition - the
scope and object of the statute - the nature and extent of the
penalty imposed - the ease with which the prohibition can be evaded
if reliance could be placed on the absence of mens rea and the
reasonableness or otherwise of holding that mens rea is not an
ingredient of the offence - Particular importance to be attached to
the language and context of the prohibition - The mere fact that a
provision was couched in absolute or prohibitory language is not a
decisive criterion that the intention was to create strict liability
- the presence of certain adverbs which qualify the prohibited
conduct and refer to a certain mental state of mind (usually
awareness of the nature of his or her conduct) of the person engaging
in the positive conduct, is a strong indication that mens rea
is an ingredient - the ordinary grammatical meaning of the verbs
employed to describe the prohibited conduct bears an implication that
the person indulging in such conduct is aware of the nature of his or
her conduct and knowingly indulges in it, it is regarded as an
indication that mens rea is required - “the aspect of
‘reasonableness’ towards both the state and the accused
of excluding mens rea is another factor which is increasingly
taken into account in determining whether strict liability was
intended. A finding of strict liability is prejudicial towards the
accused in that it is a “travesty of justice” that a
completely innocent person be found guilty, while a finding of mens
rea is prejudicial to the state in that it incurs the additional
load of proving mens rea. The mere fact that a nominal fine
can be imposed on an accused who is held strictly liable, does not
remove the basic injustice and thus cannot serve to justify strict
liability. If the result of excluding mens rea is the
punishment of innocent conduct other than the conduct, which the
legislature clearly intended to punish, while the inclusion of mens
rea will result in only the latter being punishable, strict
liability is not intended. The legislature does not intend absurd
results and the exclusion of mens rea leads to such
unreasonable results that it can be said to be absurd. Courts are
inclined to adopt this reasoning where the description of the actus
reus is couched in wide terms - A quantitive criterion has in
this respect evolved through which the reasonableness or otherwise of
excluding mens rea as an element of the offence is determined
- and whether or not - the application of these criteria -
individually or cumulatively - results in the conclusion that strict
liability was intended -

Criminal Law – statutory
offence - created by section 35 (1) of the Anti-Corruption Act, Act
no 8 of 2003 – interpretation of – Court on application
and consideration of quantitive criteria concluding that ‘mens
rea’ an element of the offence created in section 35(1) of
the Anti Corruption Act 2003 –

Constitutional Law – Article 7 rights - no person to be
deprived of personal liberty except according to procedures
established by law – in accord with “fundamental
principle of democratic societies’ that “ ...
people who are not at fault should not be deprived of their freedom
by the State and only persons who have committed an unlawful act
intentionally or negligently may be punished through the deprivation
of liberty.... “ Court also on
application of the said fundamental democratic principle and Article
7 of the Namibian Constitution concluding that ‘mens rea’
an element of the offence created in section 35(1) of the Anti
Corruption Act 2003 – S v Coetzee & Others 1997 (1)
SACR 379 CC at p 438 – 442, paras [162] to [175] and p442 -443
paras [176] – [177] approved –

Constitutional Law – Article 12 Trial Rights –
consideration of whether doctrine of strict liability infringes on
the presumption of innocence as contained in Article 12(1)(d) of the
Namibian Constitution and therefore on the fair trial rights
enshrined in Article 12(1)(a) – court finding the strict
liability doctrine also in conflict with one of the most fundamental
rules of criminal justice system, namely that it for the prosecution
to prove the guilt of the accused person, and that such proof must be
proof beyond reasonable doubt’, which, normally, includes proof
of the culpability, that the person has committed the unlawful act
either 'intentionally' or 'negligently' - The effect of strict
liability would be to relieve the prosecution of the burden of
proving that the accused person has committed the unlawful act either
'intentionally' or 'negligently' - such situation could result in a
conviction despite the existence of a reasonable doubt as to the
accused’s guilt.

Constitutional Law – Article 12 Trial Rights –
consideration of whether doctrine of strict liability infringes on
the presumption of innocence as contained in Article 12(1)(d) of the
Namibian Constitution and therefore on the fair trial rights
enshrined in Article 12(1)(a) – court finding that the strict
liability device would render the presumption of innocence
ineffective as an accused person might be deprived of the benefit
conferred by the right enshrined in Article 12(1)(d) of the
Constitution. This deprivation would therefore not only infringe
directly on the accused persons constitutional rights as enshrined in
Article 12 (1)(d) but also ultimately on the fair trial rights
conferred on such persons by Article 12(1)(a) - Court also against
the requirements of Articles 12(1)(d) and 12(1)(a) of the Namibian
Constitution concluding that ‘mens rea’ an element
of the offence created by section 35(1) of the Anti Corruption Act
2003 -

Criminal Law – statutory
offence – created by section 35 (1) of the Anti-Corruption Act,
Act no 8 of 2003 – mens rea in what form – Court
holding upon consideration of the quantitive criterion – ie the
cumulative effect of various factors – individually and
cumulatively - that dolus is the form of mens rea
required for a conviction in terms of section 35(1) of the Anti
Corruption Act 8 of 2003 –

Criminal Law – statutory
offence – created by section 35 (1) of the Anti-Corruption Act,
Act no 8 of 2003 – mens rea – onus of proof -
whenever mens rea an element of a statutory offence, and whatever the
form of mens rea required, the state to prove the required mens rea
beyond a reasonable doubt -This burden remains on the state
throughout the case - but where the state has led evidence that the
prohibited act has been committed by the accused, an inference can be
drawn - depending on the nature of the actus reus and other
circumstances -that the accused committed the act with the necessary
mens rea - This results in a duty being cast on an accused, who
relies on the absence of mens rea to adduce evidence to rebut the
so-called prima facie case made out by the state -This duty is not
tantamount to an onus of proof on a balance of probabilities and the
accused accordingly acquits him- or herself of this duty if he or she
adduces evidence which, on an evaluation of the evidence as a whole,
creates a reasonable doubt as to whether there was mens rea on his or
her part – In present case Appellant discharging onus –
conviction thus set aside on appeal -

CASE NO: CA 24/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

CORAM:
SHIVUTE J et GEIER, AJHeard: 31 January 2011Delivered: 19 May 2011

___________________________________________________________________JUDGMENT:

GEIER, AJ.: [1] The Appellant was convicted in the
Otjiwarongo’s Magistrates Court on one count of contravening
section 31 (1) (a) of the Anti Corruption Act, Act no 8 of 2003. He
was sentenced to pay a fine of N$ 10 000.00 or 4 years imprisonment
of which N$ 5 000.00 or 2 years were suspended on the usual
conditions. [2] An appeal against this conviction was noted on 11
February 2009. [3] A number of grounds of appeal were raised in such
notice. The one central issue which my view however determines the
outcome of this appeal was phrased as follows:

“That the learned magistrate (had) erred both in law and in
fact in holding that the Appellant had the requisite intention when
he solicited or accepted the N$ 2 000.00 from the Complainant”.

[4] Mr. Namandje who appeared on behalf of the Appellant in his Heads
of Argument submitted in this regard:

“There was a glaring omission on the part of the learned
Magistrate to specifically analyse (the) evidence with a view to
finding that the State proved all elements of the charge including
but not limited to the element of a subjective intention
to receive gratification as a(n) inducement and the element of
inducement itself. Section 35 (1) (a) of the
Anti-Corruption Act is, with minor differences, the same as Section
45 (1) of the old South African Ordinance Number 17 of 1939 as quoted
in the matter of S v Ernst, 1963 (3) SA 666 (T),
at p 667 C – 668 B:

“Sec. 45 (1) of the Local Government Ordinance, in so far
as is presently relevant, reads as follows:

‘Any servant of the council . . . who whether for himself
or for any other person, corruptly solicits or receives, or agrees to
receive from any other person any fee, advantage or reward (whether
pecuniary or otherwise) as an inducement to or in consideration of or
otherwise on account of his doing or forbearing to do anything in
respect of any matter whatsoever or transaction (actual or proposed)
in which the council is concerned, shall be guilty of an offence,’
etc.

Sec. 45 (2) is the complementary provision which penalises the
other person for so seducing or trying to seduce any servant of the
council in that manner.

The essence of the offences is the actual subjective
intention and state of mind of the accused. Under sec. 45
(1) it must be proved that the servant solicited, received or agreed
to receive the fee or reward (a) as an inducement to or in
consideration of or on account of his acting or forbearing to act,
and (b) dishonestly, i.e. knowing that it was in breach of his duty
of good faith towards the council. The existence of that intention
and state of mind can be proved (or negative) by any of the usual
kinds of evidence and inferences relating thereto. Generally where
the offer of the fee, etc., originates with the person then one can
usually infer what the servant’s state of mind was in accepting
or agreeing to accept it from the giver’s intention,
manifested, expressly or impliedly, in offering it. That consensus ad
idem would usually be sufficient to establish that the servant’s
state of mind corresponded with that of the giver. That is the common
kind of case arising under sec. 45 (1) to which the dicta of
RAMSBOTTOM, J., in Ndobe’s case refer. There the learned Judge
at pp 563 – 4 said:

‘If a fee or reward is received, it must
be received ‘as an inducement’ to
the recipient to do or refrain from doing something, or in
consideration of his doing or refraining from doing. That
imports the idea of a mental state in the giver. A man can only
receive something as an inducement to act or refrain from acting if
it was in the mind of the giver to induce him to act or refrain from
acting. That imports the idea of a mental state in the giver. A man
can only receive something as an inducement to act or refrain from
acting if it was in the mind of the giver to induce him to act or
refrain from acting, and he can only receive
something ‘in consideration of’ his acting or forbearing
to act if the giver intended the fee or reward to be in consideration
of an act or forbearance . . .. A servant of the council receives a
fee or reward ‘corruptly’ and ‘as an inducement to
or in consideration of’ his acting or forbearing if he receives
it knowing that the giver has given it with the intention of inducing
him to eat or forbear from acting or in consideration of his acting
or forbearing to act.’

It does not, however, follow that the servant’s intention
and state of mind must necessarily in every case coincide with that
of the giver. It could still be open to the servant to prove that
despite the giver’s intention, he did not accept the fee etc.
corruptly as an inducement or consideration to act, or forbear from
acting.” (Own emphasis).

4.5.11 In relation to the above quotation the learned
Magistrate failed to appreciate that the mental state of the giver
must also be investigated for it must be an intention of the giver to
induce the appellant to act or to refrain from acting. This is
lacking in the evidence of the State and in the finding of the
Magistrate. In fact, it is clear from the evidence of Mr. Pretorius
that he did not have any corrupt intention and did not give the money
as an inducement to the appellant.

4.5.12 Further the provisions of Section 35(1)(a) are, with
slight exceptions, the same as those of section 45(2)(a) of the old
South African Act 4 of 1918. It may be helpful and conducive to
clarity if we quote from the judgment of R v Durga, 1952 (4) SA
619 (N), at p 619 – 620:

“HOLMES, J.: The appellant was convicted, under the
provisions of sec. 2(a) of act 4 of 1918, on 22 counts of corruption.
He was employed by the Uvongo Town Board as an overseer of native
labour gangs. His duties included the reporting of unsuitable workers
with a view to their dismissal by the Board, and the recruiting of
new workers. When a Native applied to the appellant for work, the
appellant would tell him, falsely, that according to the law of the
Town Board he would have to pay 5 s . down, and thereafter 5 s . per
week in order to retain his work. The complainants testified to
payments made by them as the result of this representation by the
appellant. They believed the representation.

Sec. 2(a) of Act 4 of 1918, in so far as here relevant, reads
as follows:‘If any agent corruptly accepts or obtains . . .
from any person . . . any gift or consideration as an inducement or
reward for doing or forbearing to do . . . any act in relation to his
principal’s affairs, or for showing . . . favour to any person
in relation to his principal’s affairs, . . . he shall be
guilty of corruption . . .’

During the hearing of the appeal, an added ground was handed in
by consent. It was to this effect: the complainants made the payments
in the belief that the law of the Town Board required them to do
so, and therefore it could not be said that the payments were
corruptly given, and in consequence it could not be said that the
appellant corruptly accepted them as an inducement within the
meaning of sec. 2(a).

In my view the ground of appeal is sound. On a plain
reading of sec. (2)(a) it seems to me clear that if the giver is
innocent of any notice to induce or reward the agent, it
cannot be said that the latter has accepted or obtained a gift or
consideration as an inducement or reward. I agree, with respect,
with the reasoning of VAN DEN HEEVER, J. (as he then was) in Rex v
Sesing, 1940 OPD 78 at p. 88, to which Mr. Macaulay, for the
appellant, referred the Court. The learned Judge there says, in
connection with sec. 2(a) of act 4 of 1918: ‘A recipient
cannot induce himself to do or refrain from doing. It seems to me,
therefore, that the Legislature could have meant nothing more
than this: If you accept, knowing that the giver meant to seduce.’”
(Own emphasis)

Having regard to the above position of the law, the conviction
of the appellant is bad both in fact and law and should not stand.
This court has accepted that in interpreting the provisions of the
word “corruptly” as used in the Anti-Corruption Act mens
rea remains an element.See: The Prosecutor-General v Teckla
Nandjila Lameck and 7 Others, Case Number POCA 1/2009, Judgment
delivered on 22 January 2010 third sentence of paragraph 29 which
reads as follows:

“As Mr Gauntlet(t) correctly submits in the supplementary
heads of argument, mens rea remains an important element of the
offence of corruption created by s33 of the ACA, read with s3(2) of
the PSCA.”

See also: R v Mbata, 1954 (1) NPD 538
at p 540 D-H”

[5] In the Respondent’s written Heads of Argument drawn by
State Counsel Moyo it was simply submitted that “the
wrongfulness and unlawfulness” of his (the Appellant’s)
conduct is proscribed by the Act. The word ‘corruptly’ as
used and defined in the provisions of the said Act assumes a special
technical meaning and renders the provision a strict liability
offence”. No authority was advanced for this sweeping
proposition. [6] Ms. Husselmann who appeared on behalf of the
Respondent at the hearing of this matter simply submitted in her
Supplementary Heads of Argument that “the respondent
reiterates its submission in the main Heads of Argument regarding
strict liability. It is submitted that the Appellant’s actions
were done ‘corruptly’ as defined in Act 8 of 2003. See:
The Prosecutor-General v Teckla Nandjila Lameck and Others Case No
POCA 1/2009 an unreported judgment of the High Court of Namibia
delivered on 14/08/2009 by Damaseb JP at Frank AJ at paragraph 31 and
35”. During argument she maintained this position.[7] The
first question to be determined therefore is whether mens rea
is an essential ingredient of the offence created by section 35 (1)
of the Anti-Corruption Act, Act no 8 of 2003? IS MENS
REA AN ELEMENT OF SECTION 35 (1) OF ACT 8 OF 2003 [8]
The section provides that:

“An agent commits an offence who, directly or indirectly,
corruptly solicits or accepts or agrees to accept from any person a
gratification –

as an inducement to do or to omit to doing anything,

as a reward for having done or having omitted to do anything,

in relation to the affairs or business of the agents principal.

[9] It is to be noted that the concepts of ‘agent’,
‘corruptly’, ‘gratification’, ‘principal’,
‘public body’ and ‘public officer’ are
all defined in the Act.”¹
[10] The word ‘agent’ is defined to mean ‘a
person employed by or acting for another in any capacity whatsoever
and includes a public officer or an officer serving in or under any
public body’.²[11]
‘Corrupty’ means “ ... in contravention of
or against the spirit of any law, provision, rule, procedure,
process, system, policy, practice, directive, order or any other term
or condition pertaining to: any employment relationship;

any agreement; or

the performance of any function in whatever capacity³;
‘Gratification’ ... ‘includes -money or any gift,
loan, fee, reward, commission, valuable security or property or
interest in property of any description, whether movable or
immovable;

any office, dignity, employment, contract of employment or services
and any agreement to give employment or render services in any
capacity;

any payment, release, discharge or liquidation of any loan,
obligation or other liability, whether in whole or in part;

any valuable consideration or benefit of any kind, any discount,
commission, rebate, bonus, deduction or percentage;

any forbearance to demand any money or money’s worth or
valuable thing;

any service or favour, including protection from any penalty or
disability incurred or apprehended or from any action or proceedings
of a disciplinary, civil or criminal nature, whether or not already
instituted, and including the exercise or the forbearance from the
exercise of any right or any official power or duty;

any right or privilege;

any aid, vote, consent or influence, or any pretended aid, vote,
consent or influence;

any offer, undertaking or promise, whether conditional or
unconditional, of any gratification within the meaning of any of the
preceding paragraphs⁴;

‘Public officer’ is defined to mean ‘a
person as a member, an officer, an employee or a servant of a public
body and includes ... a staff member of the public service, including
the police force ...⁵

‘Public body’ in turn means ‘any
ministry, office or agency of Government⁶’.

The word ‘principal’ is defined to mean to ‘
... include(s) any employer ... in case of a person serving in or
under a public body, the public body and in the case of a person
acting in the representative capacity, the person on whose behalf the
representative acts⁷.

[12] Accordingly Section 35 (1) has to be read with these definitions
in mind. [13] Finally it is to be noted that Section 35 (4) expressly
also provides that

“If, in any proceedings against an agent for an offence
under sub-section (1), it is proved that the agent corruptly accepted
or obtained to obtain or to agreed to accept any gratification,
having reason to believe or suspect that the gratification was
offered or given as an inducement or reward contemplated in that
section, it is no defence that the agent –

Did not have the power, right opportunity to perform or not to
perform any act contemplated in that sub-section;

Accepted the gratification without intending to perform or not
to perform the Act in relation to which gratification was given, or

failed to perform or not to perform the Act in relation to
which gratification was given.”

[14] Section 35(1) thus creates the statutory offence in respect of
the corrupt giving or the corrupt acceptance of gratification in
respect of agents. Section 34 creates the complimentary offence in
respect of the ‘inducer or ‘giver’ of the
gratification. [15] ’According to the observations made by
Beadle CJ in S v Zemura⁸
statutory offences may be classified into three main categories which
may conveniently be stated as: (1) strict liability; (2) mens rea
in the form of culpa (negligence); and (3) mens rea in
the form of dolus (intention)⁹.[16]
“The first category involves those offences where the statute
imposes strict liability. In such cases, the State is required to do
no more than establish that the accused committed the acts
constituting the offence and, despite the fact that he might satisfy
the Court that he had no mens rea when he committed those
acts, he is nevertheless guilty.”¹⁰
This quite clearly is what state counsel had in mind.[17] “The
second category relates to those offences where the onus is on
the State to prove that the accused committed the acts constituting
the offence, but thereafter an evidential onus is thrust on
the accused to disprove the inference that he had the requisite mens
rea (culpa) when he committed those acts. In discharging the
evidential onus, it is enough for the accused to give an
explanation which will at least raise a reasonable doubt in the mind
of the Court as to whether or not he had such a guilty mind when he
committed the acts alleged in the charge. In other words, it suffices
for the accused to give an explanation which, on a balance of
probabilities, shows that he had no mens rea in the form of
culpa when he committed the alleged acts.”¹¹[18]
“The third category is about those offences where the onus
is on the State in the first instance to prove, not only that the
accused committed the acts constituting the offence, but also his
guilty state of mind when he committed them. In other words, no
inference of mens rea in the form of dolus is drawn
from the fact that he committed the prohibited acts. The State must
prove positively that he committed them with a guilty mind. Hence,
the mere fact that he committed the prohibited acts is not sufficient
evidence from which to draw such an inference. Offences falling
within this category are usually characterised by words such as:
‘knowingly’, ‘wilfully’, ‘intentionally’,
‘wrongfully’, ‘unlawfully’, et cetera.”¹²

[19] During argument Mr Namandje did not clarify, which category he
had in mind. From the quoted passages from his Heads of Argument,
which refer to ‘subjective intention’ and the ‘state
of mind of the accused’ it must be inferred however that
reference is made to mens rea in the form of ‘dolus’.

[20] “The authorities are agreed that the question whether or
not mens rea is an element of the offence under consideration
is essentially to be established by interpreting the statute in
question in order to deduce therefrom the essence of the legislatures
intentions where the legislation merely prohibits conduct without
reference to the element of mens rea”.¹³

[21] In S v Maseka the Namibian High Court observed that “...
The defence of ignorance of the law is a defence in common law crimes
as well as in the case of statutory offences, unless the legislature
has expressly or by clearest implication provided for strict
liability.”¹⁴[22]
Also in the present instance therefore, the point of departure, to
answering this question, in line with the leading South African
authority of S v Arenstein¹⁵,
must be the general rule :

“... actus non facit reum nisi mens sit rea,
and that in construing statutory prohibitions or injunctions, the
Legislature is presumed, in the absence of clear and convincing
indications to the contrary, not to have intended innocent violations
thereof to be punishable. (R. v H. 1944 AD 121
at pages 125, 126, R v Wallendorf and Others
1920 AD 383 at p 394).”¹⁶

[23] In The Law of South Africa – LAWSA -¹⁷
the learned authors St Q Skeen and Hoctor have summarised the
applicable starting position as follows :

“The basic approach which has emerged is that, in
accordance with the fundamental principle embodied in the maxims
actus non facit reum, nisi mens sit rea and nulla poena sine culpa,
the legislature is presumed, unless there are clear and convincing
indications to the contrary, not to have intended innocent violations
of statutory prohibitions to be punishable.¹⁸
This approach is fortified by the rule, where there is
ambiguity¹⁹,
that penal statutes are to be benevolently interpreted (in favorem
innocentia) as well as by the presumption (since mens rea is an
element of common law crimes) that the legislature does not, in the
absence of clear language to this effect, intend to alter the common
law.²⁰”

[24] In the Volume 3 of South African Criminal Law and Procedure,
2^nd edition by the learned authors Milton, Cowling and
Hoctor it is stated that “ ... the South African Courts
have evolved a special approach in applying this presumption. In
essence this is to have reference to what is termed ‘other
considerations’ to discover whether the presumption is to be
given effect to or not.”²¹
[25] It emerges that these ‘other’ or “'various'
considerations have been utilized by the courts in numerous decisions
in order to determine whether or not the legislature has intended
strict liability in a statute²².
‘These are inter alia the language and context of the
prohibition, the scope and object of the statute, the nature and
extent of the penalty imposed, the ease with which the prohibition
can be evaded if reliance could be placed on the absence of mens
rea and the reasonableness or otherwise of holding that mens
rea is not an ingredient of the offence.²³”
[26] “Great difficulty is often experienced in the application
of these ‘criteria’ and they have been described as
‘ambivalent’, yet it is settled law that the court must
employ them in determining the legislative intention. It must
consider whether the application of these criteria, individually or
cumulatively, results in the conclusion that strict liability was
intended.”²⁴
[27] “Particular importance is attached to ... the language and
context of the prohibition. The mere fact that a provision was
couched in absolute or prohibitory language is not a decisive
criterion that the intention was to create strict liability. ... The
courts have frequently held that the presence of certain adverbs
which qualify the prohibited conduct and refer to a certain mental
state of mind (usually awareness of the nature of his or her conduct)
of the person engaging in the positive conduct, is a strong
indication that mens rea is an ingredient. The following are
such adverbs which are frequently employed in legislation:
“knowing(ly)”, “wilful(ly)”,”
“cruelly”,’’ “maliciously”,
“wittingly”, and “falsely”. Similarly, if the
ordinary grammatical meaning of the verbs employed to describe the
prohibited conduct bears an implication that the person indulging in
such conduct is aware of the nature of his or her conduct and
knowingly indulges in it, it is regarded as an indication that mens
rea is required.”²⁵
[28] It will have been noted that also “the scope and object of
the Act as a whole must be considered in determining whether mens
rea is an element of the offence created. Where the object of the
statute is to safeguard the public welfare, health, interest and
safety, this has been regarded as a feature favouring an intention to
create strict liability,” ... Because most statutory
prohibitions are intended to be in the public interest, this feature
is currently not regarded as a strong indication of strict
liability.”²⁶
[29] “Recourse is frequently made to the nature and extent of
the prescribed penalty to determine whether strict liability was
intended. The general rule is that where the prescribed penalty is
severe and substantial, it will not be lightly assumed that the
legislature intended innocent violations to be punishable.”²⁷
The existence of a heavy penalty is accordingly a very strong
indicative factor. [30] "The ease with which liability can be
avoided if mens rea is an ingredient of the offence in
question is an important consideration. ... Where, as a result of its
nature, proof of the commission of the prohibited conduct logically
leads to an inference of mens rea, no easy evasion is
possible. ... If the nature of the prohibited conduct does not
warrant such an inference and proof of mens rea is well-nigh
impossible, the court will readily accept that strict liability was
intended."²⁸
[31] Finally I should point out that amongst all the possible
factors, (and in this regard it should be noted that the factors
mentioned in this judgement are not to be regarded as an exhaustive
list), “the aspect of ‘reasonableness’ towards both
the state and the accused of excluding mens rea is another
factor which is increasingly taken into account in determining
whether strict liability was intended. A finding of strict liability
is prejudicial towards the accused in that it is a “travesty of
justice” that a completely innocent person be found guilty,
while a finding of mens rea is prejudicial to the state in
that it incurs the additional load of proving mens rea. The
mere fact that a nominal fine can be imposed on an accused who is
held strictly liable, does not remove the basic injustice and thus
cannot serve to justify strict liability. If the result of excluding
mens rea is the punishment of innocent conduct other than the
conduct which the legislature clearly intended to punish, while the
inclusion of mens rea will result in only the latter being
punishable, strict liability is not intended. The legislature does
not intend absurd results and the exclusion of mens rea leads
to such unreasonable results that it can be said to be absurd. The
courts are inclined to adopt this reasoning where the description of
the actus reus is couched in wide terms.”²⁹
[32] “A very important factor relating to the criterion of
reasonableness is the number of people who will innocently transgress
the prohibition and the incidence and ease with which innocent
transgressions may take place. If the nature of the actus reus
is such that large numbers of people will innocently contravene the
prohibition, it is clearly unreasonable that strict liability be
imposed. Contraventions by large numbers of people are more likely to
occur where the prohibition is directed at the public in general
rather than at a specific class of person. Where it is clear that
only a few people will innocently transgress the provision,
reasonableness does not militate so strongly against strict
liability. Even if the provision will not be transgressed by a large
number of persons, but the individuals may often and very easily
contravene the provisions while engaged in innocent conduct,
reasonableness demands that mens rea be included as an element
of the offence. The courts have thus in this respect evolved a
quantitative criterion to determine the reasonableness or otherwise
of excluding mens rea as an element of the offence.”³⁰
THE LANGUAGE AND CONTEXT OF SECTION 35(1)[33]
In applying the aforesaid principles it appears firstly that there is
nothing in the language or context of Section 35(1) which is
indicative of an intention to make innocent violations of the section
punishable. [34] Indeed the definition of the word ‘corruptly’
indicates that a contravention of a law, provision, rule etc. is
contemplated. The adverb ‘corruptly’ clearly needs to be
read with the verbs ‘solicit’, ‘accept’ and
‘agree’. The adverb ‘corrupt’ in this
instance qualifies an agent’s conduct of ‘soliciting’,
‘accepting’ or agreeing to accept ‘a gratification’
in relation to the affairs of the business of the agent’s
principal. Over and above the meaning assigned by the definition of
the word ‘corruptly’ in section 32 of the Anti Corruption
Act, ‘the word ‘corruptly’ in itself denotes
something which is spoiled, degenerate, debased or depraved’³¹.
‘In the context of statutory offences the legislature commonly
resorts to the term when proscribing the practices involving a
dishonest obtaining of peculiar gain or other advantage’³²
ie. here ‘a gratification’. As the language so utilised
in section 35(1) implies an awareness of the nature of the prohibited
conduct on the part of the person engaging in it, this would be the
first important indicator that mens rea is an element of this
statutory offence.THE SCOPE AND OBJECT OF THE ACT[35]
It needs to be taken into account that the Anti-Corruption Act 2003
was clearly promulgated to combat the scourge of corruption. It was
obviously enacted for the public benefit and interest and in this
regard fulfils an important role. Although this factor has been
regarded as a feature favouring an intention to create strict
liability³³
I am in agreement with the sentiments expressed by the courts³⁴
that this factor is not to be regarded as a very strong indicator.
THE PENALTY ASPECT[36] This is the
criterion, which according to the learned authors Milton, Cowling
and Hoctor³⁵,
in South African Criminal Law and Procedure is the one
that is ‘most consistently applied’. They submit that
“the premise underlying this criterion appears to be that most
statutory offences of are of a regulatory nature and not malum
in se. As such they are visited with only slight penalties
intended more to rebuke than to punish. It is therefore inappropriate
to embark on an extensive investigation of the accused’s state
of mind before imposing the penalty On this premise the criterion
then operates on a basis that the more severe the penalty the less
likely the implication that mens rea is to be excluded.’’³⁶
[37] Section 49 of the Anti-Corruption Act 2003 provides that “a
person convicted of an offence under any provision of Chapter 4 of
the Act is liable to a fine not exceeding N$ 500 000.00 or to
imprisonment for a term not exceeding 25 years, or to both such fine
and such imprisonment”. [38] It appears immediately that
section 49 is not merely ‘regulatory in nature’. Its
intention is also not simply ‘to rebuke rather than to punish’.
If regard is had to the severity of the penalties prescribed in
section 49, it becomes clear that it would be more than ‘appropriate
to embark on an extensive investigation of the accused’s state
of mind before imposing the penalty.’ Surely the dictates of an
accused’s fair trial rights, as proscribed by Article 12(1)(a)
and (d) of the Constitution would also demand such investigation. I
will return to this aspect below.[39] Also in this case this
criterion strongly militates against a finding that strict liability
was intended. It simply is highly unlikely that the legislature ever
intended innocent violations of the section 35(1) of the Anti
Corruption Act 2003 to be punishable to such extent. IMPLEMENTATION
[40] As regards the ease with which liability could be avoided should
it be found that mens rea is an ingredient of Section 35 (1),
I hold the view that transgressions of Section 35 (1) lend themselves
to fairly easy proof of the commission of any prohibited conduct
particularly because of the wide ambit of conduct which falls within
the ambit and scope of the section because of the all-encompassing
nature of the definitions created in section 32. Once such conduct
has been proved it would very often in any event lend itself
logically to an inference of mens rea. Thus no easy evasion is
possible in principle. [41] The wide scope and ambit of the type of
conduct which can be brought into the net of the statute, is on the
other hand indicative of how easily innocent transgressions of the
statute can occur. As however innocent transgressions of the Act are
presumed not to be have been intended to be punishable by parliament,
this is a further strong indication that mens rea was intended
all along to have been an element of this offence.

REASONABLENESS TOWARDS STATE AND ACCUSED[42]
In this regard it is taken into account that a finding of strict
liability would, in principle, be prejudicial towards the accused in
that it would be a “travesty of justice” that a
completely innocent person be found guilty, while a finding of mens
rea would on the other hand be prejudicial to the state in the
sense that it incurs the additional load of proving mens rea.³⁷
[43] Given the extremely wide ambit of conduct which is imported into
section 35(1) by way of definition, it does not take much to conclude
that the application of the strict liability principle may result in
the punishment of innocent conduct rather than the conduct which the
legislature clearly intended to punish. The inclusion of mens rea
will result in only the latter being punishable. The legislature does
not intend absurd results. The exclusion of mens rea could
lead to such results if the court would conclude that section 31(a)
would be a strict liability offence. Obviously the court would be
inclined to adopt an interpretation of the statute which would avoid
such result. In such circumstances the ’balance of convenience’
so-to-speak, favours the causing of the ‘inconvenience’,
of ‘imposing the additional burden of proving mens rea’,
on the stateTHE CONSTITUTIONAL CONSIDERATIONSARTICLE
7[44] The constitutionality of strict liability received
the attention of the South African Constitutional Court in S v
Coetzee & Others³⁸
when it considered the constitutionality of sections 245 and 332(5)
of the Criminal Procedure Act 51 of 1977.[45] In S v Coetzee &
Others O’ Regan J embarked upon a highly instructive
comparative consideration of South African, American, English,
Australian, New Zealand and Canadian case law³⁹
before she concluded:

“[176] The striking degree of correspondence between
different legal systems in relation to an element of fault in order
to establish criminal liability reflects a fundamental principle of
democratic societies: as a general rule people who are not at fault
should not be deprived of their freedom by the State. This rule is
the corollary of another rule which the same comparative exercise
illustrates: when a person has committed an unlawful act
intentionally or negligently, the State may punish them. Deprivation
of liberty, without established culpability, is a breach of this
established rule. Where culpability is established, and the conduct
is legitimately deemed unlawful, then no such breach arises. [177]
What is also clear, however, from an examination of our law and that
of foreign jurisdictions, is that it is widely recognised (both in
our common law and in the law of other countries) that the
culpability required to establish criminal liability need not in all
circumstances be evidenced by direct intent (dolus directus) on the
part of the accused to commit a criminal act. In our own law other
forms of intent, such as dolus eventualis, have been recognised as
sufficient to meet the requirement of culpability and, in certain
circumstances, the law has recognised that even negligence or culpa,
can be sufficient to give rise to criminal liability...”.⁴⁰

[46] This so-called “fundamental principle of democratic
societies’ that “ ... people who are not at fault
should not be deprived of their freedom by the State and only persons
who have committed an unlawful act intentionally or negligently may
be punished through the deprivation of liberty....
“ is also embodied in Article 7 of the Namibian
Constitution.⁴¹
Any ‘ ... deprivation of liberty, without established
culpability ..., i.e. on the basis of the strict liability doctrine
only, would thus not only be a breach of the aforesaid
“fundamental principle of democratic societies’
but would also be in breach of Article 7.ARTICLES
12(1)(a) and (d)[47] Strict liability offences relieve the
State of the burden to prove mens rea. Once the actus reus
is proved the accused becomes ‘liable without fault.’[48]
The question which immediately arises is, whether or not, the
doctrine of strict liability infringes on the presumption of
innocence as contained in Article 12(1)(d) of the Namibian
Constitution and therefore on the fair trial rights enshrined in
Article 12(1)(a)?[49] It does not take much to realise that the
strict liability doctrine is also in conflict with one of the most
fundamental rules of our criminal justice system, namely that it for
the prosecution to prove the guilt of the accused person, and that
such proof must be proof beyond reasonable doubt’, which,
normally, includes proof of the culpability, that the person has
committed the unlawful act either 'intentionally' or 'negligently'.
The effect of strict liability would obviously relieve the
prosecution of the burden of proving that the person has committed
the unlawful act either 'intentionally' or 'negligently'. Such a
situation could result in a conviction despite the existence of a
reasonable doubt as to the accused’s requisite mens rea
[50] I have in this regard already alluded to the possibility that
innocent transgressions of the Anti Corruption Act 2003 can occur.
This would be in spite of the presumption of innocence. The strict
liability device would therefore render the presumption of innocence
ineffective as an accused person is in such circumstances deprived of
the benefit conferred by the right enshrined in Article 12(1)(d) of
the Constitution. This deprivation would therefore not only infringe
directly on the accused persons constitutional rights as enshrined in
Article 12 (1)(d) but also ultimately on the fair trial rights
conferred on such persons by Article 12(1)(a).[51] All the above
listed ‘considerations’, ie. those taken into account by
the courts traditionally, as well as the referred to constitutional
aspects, then, 'quantitatively', lead me to the inescapable
conclusion that ‘mens rea’ is an element of the
offence created in section 35(1) of the Anti Corruption Act 2003.[52]
I should mention that both Ms Husselmann and Mr Namandje referred the
court to the judgments handed down by this court in The
Prosecutor-General v Teckla Nandjila Lameck and Others Case No POCA
1/2009. [53] Ms Husselmann cited the so-called ‘unreported
judgment’⁴²
of the High Court of Namibia. delivered on 14/08/2009 by Damaseb
JP at Frank AJ at paragraphs 31 and 35”. I was unable to
see how the relied upon passages constitute authority for the
proposition that the offences under consideration there, namely
sections 33 and 42(2) of the Anti Corruption Act 2003, are strict
liability offences. This was an issue which the court just did not
have to decide in that case. The court was concerned, in the main,
with the question, and in the context of considering certain in
limine issues, on an extended return day of a ‘restraint
order’ issued in terms of the Prevention of Organised Crime Act
2004, and, whether or not, a prima facie case had been made
out in respect of certain offences, inclusive of the offences created
by sections 33 and 42(2) of the Anti Corruption Act 2003.⁴³
[54] Mr Namandje did indeed rely on an, as yet, unreported judgement,
namely on paragraph [29] of the judgment which was handed down by the
court on 22 January 2010 and were the court commented that “
... as Mr Gauntlet(t) correctly submits in the supplementary heads
of argument, mens rea remains an important element of the offence of
corruption created by s33 of the ACA, read with s 3(2) of the PSCA
... “. It appears however from the referred to
‘supplementary heads of argument’, that the aspect
of strict liability was not addressed in any further detail, nor was
any authority for that submission cited. This is not surprising given
the issues which the court had to determine in that matter.[55] Both
the referred to ‘unreported’ decisions therefore did not
take the matter further and were not of assistance to the court.THE
FORM OF MENS REA[56] The next stage of the enquiry would
be to establish which form of mens rea applies in this case -
is it dolus or culpa i.e. intentional wrongdoing
(dolus) or negligence (culpa)? [57] It would appear
that also here “the general point of departure is that the form
of mens rea, which the legislature will usually have in mind
is dolus and that only in exceptional cases culpa will
suffice.”⁴⁴
“According to this approach dolus is the form of mens
rea required in common law crimes and a statutory provisions
should be interpreted to deviate as little as possible from the
common law. With other words it would appear that the courts usually
accept that the legislature has dolus in mind and only culpa
in exceptional cases as otherwise a criminal liability would be
greatly extended and could even lead to unjust results”.⁴⁵[58]
Again a number of considerations have evolved through which the
intention of the legislature is to be ascertained,⁴⁶
which again include factors such as language, context, object, ease
of evasion, reasonableness, etc.⁴⁷
[59] Accordingly I will assume as the point of departure that dolus
is the form of mens rea which the legislature had in mind
when it enacted the Anti Corruption Act No 8 of 2003. [60] In
accordance with what was stated in S v Arenstein⁴⁸
that ‘ ... the degree of blameworthiness required for a
culpable violation of a statutory prohibition is in the first place
to be sought in the language of the lawgiver ... ‘, I take into
account that ‘ ... the requirement of intentional wrongdoing is
usually indicated by the use of words such as ‘wilfully’,
‘intentionally’ or ‘maliciously’ ... ‘⁴⁹..
[61] I have already indicated above that the definition of the word
‘corruptly’, as used in section 35(1) as read with
section 32 of the Anti Corruption Act 2003, indicates that a
contravention of a law, provision, rule etc. is contemplated, that
the adverb ‘corruptly’ needs to be read with the verbs
‘solicit’, ‘accept’ and ‘agree’
and that the adverb ‘corrupt’ in this instance qualifies
an agent’s conduct of ‘soliciting’, ‘accepting’
or agreeing to accept ‘a gratification’ in relation to
the affairs of the business of the agent’s principal. This
aspect as well as the factor that ‘the word ‘corruptly’
in itself denotes something which is spoiled, degenerate, debased or
depraved’, together with the use of these words, in this
context, as read with their ordinary grammatical meaning, implies an
awareness of prohibited conduct and thus indicates that the
requirement of dolus was intended. [62] I again take into
account the nature and severity of the penalties prescribed by
section 49, which factors, on their own, strongly militate towards
liability based on dolus.[63] Finally I take into account that
the obligation to prove an element of an offence, which falls
particularly within the knowledge of an accused, such as dolus
or culpa, makes it more difficult for the prosecution to
secure a conviction. I am however not persuaded that this difficulty
is unreasonable in the overall context of our criminal justice
system, were the discharging of the burden of proof is a function
which the criminal justice system in any event imposes on the
prosecution, in the normal course.[64] The cumulative effect of the
above listed factors then drive me to the conclusion that dolus
is the form of mens rea required for a conviction in terms of
section 35(1) of the Anti Corruption Act 8 of 2003.THE
ONUS OF PROOF[65] Also in this regard the applicable
position has been usefully analysed by the learned authors of LAWSA⁵⁰
where they state:

“... whenever mens rea is an element of a statutory
offence, and whatever the form of mens rea required, the state must
prove the required mens rea beyond a reasonable doubt. This burden
remains on the state throughout the case but where the state has led
evidence that the prohibited act has been committed by the accused,
an inference can be drawn, depending on the nature of the actus reus
and other circumstances, that the accused committed the act with the
necessary mens rea. This results in a duty being cast on an accused,
who relies on the absence of mens rea to adduce evidence to rebut the
so-called prima facie case made out by the state. This duty is not
tantamount to an onus of proof on a balance of probabilities and the
accused accordingly acquits him- or herself of this duty if he or she
adduces evidence which, on an evaluation of the evidence as a whole,
creates a reasonable doubt as to whether there was mens rea on his or
her part.”

[66] This would be in accordance with how Silungwe J, (Hannah J
concurring), formulated the position In S v Maritz :

“... On the basis of the guidelines stated above, I reckon
that the crime with which the appellant was charged in the present
case falls within the 2^ndcategory, to wit,
mens rea in the form of culpa. Hence, proof by the respondent that
the appellant committed the acts prohibited by the statute —
which is not open to dispute — is sufficient to infer that he
did so with a guilty mind, and sufficient to saddle him with the onus
of giving an explanation which, on a balance of probabilities,
satisfies the Court that he had no mens rea when he committed the
acts alleged in the charge...”.⁵¹

THE FACTS LEADING TO APPELLANT’S CONVICTION[67]
The appellant was charged as follows ;

“That the accused is guilty of contravening Sec 35(1 )(a)
of the Anti-Corruption Act, Act 8 of 2003, read with Sections 32,
35(4), 46, 49 and 51 of the said Act. CORRUPTLY ACCEPTING OF
GRATIFICATION BY AGENT {AS AN INDUCEMENT) In that upon or about 24
OCTOBER 2006 and at or near FARM OVITUO ‘ in the district of
OTJIWARONGO the accused did wrongfully and unlawfully, directly or
indirectly and corruptly solicit or accept or agree to accept from MR
WESSEL STEYN PRETORIUS a gratification: to wit: N$ 2 000-00 as an
inducement to something in relation to the affairs or business of his
principal, to wit: to do investigations and/or affecting an arrest on
cases allegedly committed on OVITUO FARM and fuel or transport costs
to be incurred as a result of affecting such arrest.”

[68] It should be mentioned that, as far as the obvious defect in the
charge was concerned, namely in regard to the omission of the
necessary allegation that the accused acted as agent of a particular
principal, such defect was cured by evidence. The parties did not
make an issue of this.[69] The material evidence on the charge was
then briefly summarised by appellant’s counsel as follows:

“The appellant prior to the 24^thof
October 2006 was suspended from his work as a police officer. This
includes the period covering the 24^thof
October 2006.⁵²

On the 24^th of October 2006 he was approached by one
Wessel S Pretorius, a retired doctor and farmer who asked the
appellant to assist him to trace a suspected thief. The approach by
Pretorius was due to the fact that his previous contacts with the
Namibian Police to assist him did not bear any fruit.

Frustrated by the inaction of the Namibian Police at Otjiwarongo
and knowing the appellant as having been a good police officer he
approached him to assist him in tracing the suspect.

After being informed by the appellant that he was off duty and/or
suspended he gave him an amount of N$ 2 000.00 (TWO THOUSAND NAMIBIA
DOLLARS) as money for petrol. He referred to the payment as
“reimbursement”.

The money was for petrol and for travelling expenses.

The witness conceded that he was informed that the appellant was
on suspension when he requested him to assist him to trace the
suspects.

Most importantly, as soon as the appellant was requested to assist
he informed the two State witnesses that he would be willing to help
them save that he was off duty and he had no vehicle.

The issue of paying for the applicant’s travel expenses only
came after he had already agreed to assist Mr Pretorius. The money
was therefore definitely not paid as an inducement.

The money was not paid as compensation for work but only for
travelling expenses.”

[70] It is clear from the facts, which were common cause, that the
Appellant received the N$ 2 000.00 from Dr. Pretorius and that this
was given to Appellant in order for him to use his private vehicle
when assisting Mr. Pretorius and that the N$ 2 000.00 was therefore
not paid as a remuneration or as a fee, but in regard to the
disbursements which would be incurred. [71] Appellant’s conduct
thus fell squarely within the ambit of the conduct prohibited by
section 35(1) of the Anti Corruption Act.⁵³
The Respondent had thus succeeded in proving the relied upon actus
reus. Also this was common cause. It appeared therefore that the
respondent had made out a prima facie case against the appellant.
[72] In such circumstances it became incumbent on Appellant to adduce
evidence to rebut the prima facie case made out by the
state.[73] This then brings to the fore the final stage of the
enquiry namely whether or not the Appellant had discharged the
evidential onus of showing that he had no mens rea in
the form of dolus and whether or not, on an evaluation of the
evidence as a whole, the Respondent has proved the commission of the
offence beyond a reasonable doubt. [74] The appellant testified as
follows in chief :

“Okay. What was your intention when you took the money one
thousand Namibian Dollars cash and a cheque for one thousand Namibian
Dollars? What was your intention for this money or with this money or
taking this money? So, the money was not for me or as if I was
benefiting anything from it. The money was just to put fuel into my
vehicle as I was using the vehicle, Did you receive any benefit from
this money? To tell the truth I did not benefit anything. I am
actually the one who lost.” ........And at the time of doing
what you did, did you .think: you were doing anything wrong? No
.......Did you have any corrupt intention when you did what you did?
Not at all ... ... Do I understand you correctly you did not receive
or accept this money as a gratification or as an inducement to do
something? That is correct

[75] Under cross examination this testimony was not challenged.[76]
In conjunction with this the complainant made the following
concessions under cross examination :

“ ... Mr Pretorius if the State is now alleging here that the
Accused person accepted this two thousand Namibian Dollars (N$2
000-00) as gratification or a reward for doing something. If he
accepted this money to pay for the fuel to drive all this way do you
agree with me that there is no money for gratification, there is no
money for reward? --- He was very sure of himself that he will find
him in Okahandja and as I say no work, no pay, no results. But I
think you are missing my point. My point is the intention of the
Accused person was never to enrich himself in this it was just to
fund the trip to pay for the expenses. Do you agree with that? Yes Do
you agree that from that it doesn’t look like the Accused
person had any corrupt intention? No. Do you also agree that by
handing the full amount of two thousand Namibian Dollars (N$2 000-00)
back to you he actually made a loss? He had to make? ... “.

[77] The state witness Malherbe stated :

“ ... Now would you agree, actually you were very clear on that
I just want to confirm that the whole if you can call it deal with
the Accused person was that he gets the money for his expenses? That
is correct. What is left he must give back? Yes ... “ ...

MR VON WILLIGH: Mr Marlherbe all I expect from you is to testify
about your personal knowledge ? No That is the only thing? —-
Okay, There was no fee involved for him? Nothing none so ever The
allegation in the charge sheet against the Accused person is that he
received two thousand Namibian Dollars for his own benefit and
gratification. Do you agree with that? No.

I have no further questions Your Worship ... “..

[78] In my view this evidence is clearly indicative that the
appellant did not hold any actual subjective intention, nor that he
was aware of the unlawful nature of his actions or of the possibility
that his conduct might be unlawful, and despite such knowledge he
nevertheless proceeded therewith.[79] Mr Namandje submitted in that
regard that “there was a glaring omission on the part of the
learned Magistrate to specifically analyse (the) evidence with a view
to finding that the State had proved all elements of the charge
including but not limited to the element of a subjective intention to
receive gratification as an inducement and the element of inducement
itself” ... [81] The learned magistrate did indeed not consider
this evidence and what the intention and state of mind of the
Appellant was, when he agreed to assist Dr Pretorius in apprehending
the suspected cattle thief as the following extract from the
judgement in the court a quo shows :

“ Basically the issue before Court is whether the acceptance
of two thousand Namibian Dollars (N$2 000.00) was received as
gratification or . inducement for the Accused person to do something.
And also as previously read into the record the definition of
corruption as well as that of gratification was also repeated here or
rather corruptly that means in contravention of off or against the
spirit of any law provision, rule, procedure, process system, policy,
practice directive order or any other term or condition pertaining to
any employment relation, any agreement or performance of function of
any, in whatever capacity. And gratification is defined as to include
money, or any gift, loan, fee or reward commission etcetera. And it
was also evidence before this Court that there was in fact fuel at
the police station during the period of the 24th of October 2006. And
it was also the Court’s opinion that Accused person could have
told the Complainant that he was on suspension as he was approached,
because of the fact that he was a police officer. Thirdly Accused was
approached to go to Okahandja, but he end up in Omitara or Witvlei.
And fourthly Accused also testified that he came back to fill up his
car in Otjiwarongo. ... And Accused person only paid the two the two
thousand Namibian Dollars to after it was reported to Inspector
Marais as well as Inspector Khairabeb. The Court must, however,
concede that this could have been an internal matter, but Accused
knew, in fact knew that he should not have acted in such capacity as
police officer as he was on suspension. And in him doing so he fell
squarely with the definition of corruption in that he received money
or a fee. And the Court is, therefore, satisfied that the State has
proven its case beyond reasonable and Accused accepted two thousand
Namibian Dollars (N$2 000.00). According to him its money for fuel to
go to Okahandja which was roughly 120 kilometres from the
complainant’s farm. The Court is also of the opinion that
amount of two thousand Namibian Dollars (N$2 000.00) was too excess
irrespective whether the Accused person drove a 6 cylinder engine or
not. And the Accused’s version is rejected as follows as it
would and is improper for Accused person to receive money in order to
do something whilst knowing he could not even act in the capacity or
a position as a police officer although according to him he acted as
a friend. The Court, Accused is. found guilty as charged. ... “.

[82] The evidence of Dr Pretorius, Mr Malherbe and of Appellant,
which must be accepted, shows that it was not for any dishonest or
corrupt motive or purpose that the request for assistance was made
and the N$ 2000.00 offered and accepted in respect of the
disbursements that would be incurred. [83] The evidence also shows
that both Dr Pretorius and Appellant acted in the belief that they
were entitled to do so and that they were not transgressing the
law.⁵⁴[87]
Ultimately it appears therefore that the Appellant has adduced
sufficient evidence to create a reasonable doubt as to whether there
was the requisite mens rea on his part. It thus cannot be said
in casu that, on the evaluation of the evidence as a whole, the
Respondent here has proved the commission of the offence beyond a
reasonable doubt

[86] I therefore find that the learned magistrate erred and
misdirected herself in this regard.

[88] In the result the grounds of appeal raised in this regard are
sound and the conviction and sentence of the Appellant are hereby set
aside. _____________________ GEIER, AJ I
agree______________________SHIVUTE J

Counsel for Appellant Mr Namandje

Sisa Namandje & Co

Counsel for Respondent: Ms Husselmann

On behalf of The State