Data source
Date of text
05 Apr 1991
Original language


Type of text
National - higher court
Court name
High Court of Namibia
The appellant met Mr. Muller through his business of an electrical contractor. They became to know each other for more than ten years. During this period, the appellant saw some ivory in Muller's house, which might have encouraged the appellant to offer an illegal ivory deal to Muller. In 1989, the appellant offered rhinoceros horns to Muller. Muller however did not have the money and declined the offer. Muller used to deal illegal in ivory. He was arrested and had two previous convictions. The police came to some understanding with Muller, and he agreed to cooperate with the police in apprehending people dealing in prohibited products such as ivory. After getting in touch with the appellant and telling him that he was looking for ivory, they met a couple of times, after which Muller reported the meetings to the police. The appellant was in touch with "Gomes", who had ivory, with the intention of selling it to Muller. The three met, including three others, and were shortly after apprehended by police who arrested everyone at the meeting, except Muller who was cooperating with police. The appellant was sentenced to five years in prison (minus 18 months), a sentence he is now appealing. The main contention raised is the over-emphasized seriousness of the offence. The representative of the appellant argued that in doing so the learned Judge lost sight of the actual role played by the appellant in the commission of the offence, and thus failed to place sufficient weight on the appellant's personal circumstances. The question to be answered by this Court is: "Is a sentence of imprisonment for serious offences the only appropriate sentence?" There are of course other punishments which are as effective as a sentence of imprisonment. As such, the Court concluded that considering the personal circumstances of the particular appellant, namely having a family to care for and never having committed an offence before, the imprisonment imposed by the Court a quo was grossly inappropriate and induces a sense of shock (see S v Letsoko and Others, 1964(4) S.A. 768). Judgement: The Court decided that a form of community service would better suit the purposes of punishment in this case. Being convinced that the appellant is of good character and will not be seen in front of the Court in the future, the Court set aside the sentence. The Court ordered for the High Court to impose a sentence along these lines, according to section 297(1)(a)(i)(cc) of the Criminal Procedure Act. The appellant himself should lay the foundation for such service by providing prima facie evidence or information on the availability in that area of organisations or persons willing and able to supervise and control the appellant during his service. The case is remitted to the High Court for the imposition of a sentence by the trial Judge which is in conformity with this Court's directions. (Provided by: UNODC SHERLOC)