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


Full judgment

CASE NO.: CC 21/2008



In the matter between:





Heard on: 09.03.2009; 31.03.2009

Delivered on: 03 June 2009


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(my emphasis)

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

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

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

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

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

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

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




Instructed by: Office of the Prosecutor-General


Instructed by: Directorate: Legal Aid