The Court had to consider an appropriate sentence for Bashala’s convictions relating to the illegal smuggling of refugees for financial or other material benefits. The Court had the duty to weigh up the accused’s circumstances, the crime committed, and the interests of society.

The Court considered mitigating factors such as that the accused was a first offender and the sole caretaker of her two children, paying for their rent and transport expenses as they had no other means of income. She also expressed remorse and stated that she had a range of severe health issues and that her husband was unemployed and was undergoing cancer treatment. The Court pointed out that ill health cannot become a licence to commit crimes, nor can offenders expect to escape punishment because of health issues.

There were also aggravating factors to consider: all the victims were fleeing from war in their country. They were vulnerable and desperate to find safety and security and were exposed to great danger while travelling to Namibia. These factors contributed towards the seriousness of the crimes.

Issuing court
Date of judgment

Criminal law; smuggling; illegal immigrants; smuggling of immigrants; vulnerable persons; sentencing; sentencing for illegal smuggling of immigrants; mitigating factors; aggravating factors; ill health as a mitigating factor

Case citations
[2022] NAHCMD 465
Nationality of refugee/asylum seeker

The accused, a Congolese national and a refugee in Namibia pleaded not guilty to all the charges preferred against her in terms of the Prevention of Organised Crime Act. 

The allegations were that from December 2017 to April 2018, she aided in the smuggling of Congolese nationals into Namibia for purposes of obtaining financial or another material benefit.

After a full-fledged trial, the accused was acquitted on some of the charges concerning 12 counts (counts 1-12). She was, however, found guilty in respect of counts 13, 14 and 15, which arose from the incidents in which the accused assisted or aided in the smuggling of Congolese nationals into Namibia to obtain financial or other material benefits.

Decision/ Judgment

The accused is sentenced as follows:

(a)      Count 13: 3 years imprisonment.

(b)      Count 14: 3 years imprisonment.

(c)      Count 15: 3 years imprisonment.

It was ordered that the sentences in respect of counts 13 and 14 were to run concurrently with the sentence in respect of count 15.

Basis of the decision

Custodial sentence was unavoidable.

Supported by the UNHCR