S v Guibeb and Others (2) (CC 41 of 1997) [1998] NAHC 8 (19 August 1998)

S v Guibeb and Others (2) (CC 41 of 1997) [1998] NAHC 8 (19 August 1998)

The court held that the common law presumption that a boy under 14 is incapable of rape remains in force in Namibia and must be applied, resulting in convictions for indecent assault rather than rape for accused under 14. The court also found that the evidence was insufficient or unreliable against some accused, leading to acquittals.

Citation
[1998] NAHC 8
Parties
Prosecution: The State; Accused 1: Bernard Guibeb; Accused 2: Phillipus Guxab; Accused 3: Benny Kamendu; Accused 4: Ronny Haraeb; Accused 5: Rodney Guirab; Accused 6: Penias Kurz; Accused 7: Given Doeseb
Court
High Court
Jurisdiction
Namibia
Judgment Date
19 August 1998
Case Number
CC 41 of 1997
Procedural Posture
Criminal / Judgment After Trial
Outcome
Convictions and acquittals entered as per findings on each accused.
Legal Topics
Rape, Indecent Assault, Criminal Capacity, Common Law Presumptions
Source Language
English
Criminal Law Rape Indecent Assault Criminal Capacity Common Law Presumptions

Case Brief

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Parties

The State

Prosecution

Bernard Guibeb

Accused 1

Phillipus Guxab

Accused 2

Benny Kamendu

Accused 3

Ronny Haraeb

Accused 4

Rodney Guirab

Accused 5

Penias Kurz

Accused 6

Given Doeseb

Accused 7

Procedural Posture

Criminal / Judgment After Trial

Legal Issues

  1. 1 Whether boys under 14 can be convicted of rape under common law
  2. 2 Assessment of credibility of complainants and accused
  3. 3 Application of criminal capacity presumptions to minors

Ratio Decidendi

The court held that the common law presumption that a boy under 14 is incapable of rape remains in force in Namibia and must be applied, resulting in convictions for indecent assault rather than rape for accused under 14. The court also found that the evidence was insufficient or unreliable against some accused, leading to acquittals.

Court Disposition

Convictions and acquittals entered as per findings on each accused.

Orders

  • Accused 2 (Phillipus Guxab) convicted of indecent assault on counts 1 and 2.
  • Accused 4 (Ronny Haraeb) acquitted on count 1 and convicted of indecent assault on count 2.