S v Mootseng and Another (1) (CC 35 of 2009) [2010] NAHC 115 (28 September 2010)

S v Mootseng and Another (1) (CC 35 of 2009) [2010] NAHC 115 (28 September 2010)

Accused no. 1 foresaw the possibility of fatal injury to the deceased and recklessly proceeded, satisfying dolus eventualis for murder. The evidence established four separate acts of rape by accused no. 1. Accused no. 2's involvement in rape was not proved beyond reasonable doubt, but both accused acted with common purpose in the robbery with aggravating circumstances.

Citation
[2010] NAHC 115
Parties
Prosecution: The State; Accused No. 1: Bizzah Gerhardt Tsamaseb Mootseng; Accused No. 2: Gotfried Gariseb
Court
High Court
Jurisdiction
Namibia
Judgment Date
28 September 2010
Case Number
CC 35 of 2009
Procedural Posture
Criminal / Judgment
Outcome
Conviction and acquittal on various counts
Legal Topics
Murder, Rape, Robbery With Aggravating Circumstances, Dolus Eventualis, Common Purpose
Source Language
English
Criminal Law Murder Rape Robbery With Aggravating Circumstances Dolus Eventualis Common Purpose

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Parties

The State

Prosecution

Bizzah Gerhardt Tsamaseb Mootseng

Accused No. 1

Gotfried Gariseb

Accused No. 2

Procedural Posture

Criminal / Judgment

Legal Issues

  1. 1 Whether accused no. 1 is guilty of murder (dolus eventualis)
  2. 2 Whether accused no. 1 is guilty of multiple counts of rape
  3. 3 Whether accused no. 2 is guilty of rape or robbery with aggravating circumstances

Ratio Decidendi

Accused no. 1 foresaw the possibility of fatal injury to the deceased and recklessly proceeded, satisfying dolus eventualis for murder. The evidence established four separate acts of rape by accused no. 1. Accused no. 2's involvement in rape was not proved beyond reasonable doubt, but both accused acted with common purpose in the robbery with aggravating circumstances.

Court Disposition

Conviction and acquittal on various counts

Orders

  • Accused no. 1: Guilty of murder (dolus eventualis), four counts of rape, and robbery with aggravating circumstances; not guilty on other rape counts.
  • Accused no. 2: Not guilty of murder and rape; guilty of robbery with aggravating circumstances.