REPORTABLE CASE NO.: SA 71/2011

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

THE STATE Appellant

and

LAZARUS NATANGWE SHADUKA Respondent

Coram: SHIVUTE CJ, MARITZ JA and MAINGA JA

Heard: 4 April 2012

Delivered: 13 December 2012

___________________________________________________________________

APPEAL JUDGMENT ___________________________________________________________________

MAINGA JA (SHIVUTE CJ AND MARITZ JA concurring):

Introduction

[1] This an appeal with the leave of this Court by the Prosecutor-General under

section 316A read with section 316 of the Criminal Procedure Act, 51 of 1977.

[2] On Sunday, 13 July 2008 the deceased, Selma Shaimemanya Shaduka, was

shot by her husband, the respondent (who, for purposes of this judgment I shall refer

2

to as the ‘accused’) at their common home in Windhoek. She died shortly afterwards

as a result of the gunshot wound. The accused was also the licenced owner of the

9mm semi-automatic Makarov pistol with which the deceased was shot.

[3] The post mortem report of the autopsy subsequently conducted, which was

received in evidence without objection from the defence, reveals the following

principal findings:

1. A projectile wound at the back of the deceased, between the spinal

column and the right shoulder joint;

2. The right upper lung lobe was perforated on the posterior aspect;

3. On right side there was a haemothorax ;

4. A perforated diaphragm and liver,

5. A glazed right kidney and colon ascendance; and

6. A projectile lodged under the skin of the right buttock.

[4] In the opinion of the State pathologist who carried out the examination of the

body, the gun shot injuries to the lungs, liver, kidney and colon ascendance caused

the death of the deceased.

[5] Both Dr Ludik, the Director of the National Forensic Science Institute, who

also examined the deceased’s body and Mr Wolmarans, an independent Forensic

3

Ballistic Expert witness called by the defence with many years of experience, ruled

out the possibility of suicide.

[6] Arising out of this incident, the accused was indicted in the High Court on a

charge of murder read with the provisions of the Combating of Domestic Violence

Act, 4 of 2003 and of defeating or obstructing or attempting to defeat or obstruct the

course of justice.

[7] On the charge of murder it is alleged that the accused murdered the

deceased on or about 13 July 2008 at Windhoek. The allegation on the charge of

defeating or obstructing or attempting to defeat or obstruct the course of justice is

that the accused unlawfully with intent to defeat or obstruct the course of justice

cleaned and/or tampered and/or interfered with the scene where the deceased was

shot and removed her body from the scene and/or tried to flush away an unknown

number of 9 mm live bullets in a toilet bowl and/or washed his hands and/or in an

unknown manner removed any traces of any substance and/or chemicals which

would have been present on his hands which in turn would have indicated that he

had recently fired a firearm, and/or reported to the police and/or the people at the

Paramount Healthcare Centre that the deceased had shot herself and/or had been

shot by unknown persons and, when these acts were perpetrated, the accused knew

or foresaw the possibility that his conduct might frustrate and/or interfere with police

investigations into the death of the deceased and/or his conduct might conceal

and/or destroy evidence indicating that he had shot the deceased and/or his conduct

might protect him from being prosecuted for a crime in connection with the death of

the deceased.

4

[8] The accused was acquitted on the count of murder but convicted on a

competent verdict of culpable homicide. On the count of defeating or obstructing the

course of justice he was convicted of an attempt to defeat or obstruct the course of

justice by trying to flush away the 9mm bullets. He was sentenced to N$25 000

(Twenty Five Thousand Namibian Dollars) or one (1) year imprisonment and N$2000

(Two Thousand Namibian Dollars) or two (2) months imprisonment respectively.

[9] The appeal is directed against the conviction of culpable homicide and the

sentence thereon.

[10] The background to the events that led to the death of the deceased is not very

clear from the evidence presented as there were no eye witnesses and the

accused’s version of how the deceased had been shot and killed was rejected by the

Court below.

Evidence at the trial

[11] The evidence given at the trial of the accused reveals the following events

which occurred after the incident on that fateful day. Sergeant Alfons Tjitamunisa of

the Namibian Police, who was outside the Paramount Healthcare Centre (the

Centre) at about 19h00, observed a Mercedes Benz sedan motor vehicle

approaching the Centre at high speed. He testified that the hazard lights of the motor

vehicle were flashing and that its hooter was sounding. The vehicle came to a stop

close to the front glass door of the Centre. The accused alighted from the driver’s

seat of the vehicle. As he was doing so, he started to scream and shout: ‘Help me!

5

Help me! My wife shot herself’. The accused walked very briskly into the Centre and

when he later re-emerged, walked up to the vehicle and opened its rear door. A

female person, who was later identified as the deceased was lying on the back seat

and the witness observed that her body was still shaking and moving. He noticed a

baby on the front passenger seat. The accused appeared to be heartbroken. He fell

to the ground and rolled about. He continued to call for help for some time before a

doctor emerged to examine the deceased on the back seat. Sergeant Tjitamunisa

saw blood behind the deceased’s neck. After a brief examination, the doctor

declared that she was dead. Sergeant Tjitamunisa was requested to report the

matter to the police but before he departed to do so, he noticed that some of the

persons who had gathered at the scene approached the accused where he was still

crying and rolling on the ground and tried to calm him down. After a while, the

accused stood up, went to the vehicle where he collected his daughter and he was

taken inside the Centre. Sergeant Tjitamunisa drove to the police station where he

reported the matter and returned to the Centre. At the Centre he tried to establish

what had happened but the accused could not at that stage relate to him what had

happened. Sergeant Tjitamunisa could smell liquor on the accused’s breath.

Windhoek City Police officers and members of the Serious Crime Unit of the Namibia

Police (Nampol) arrived on the scene shortly thereafter whereupon Sergeant

Tjitamunisa left the scene.

[12] Constable Boois of the Windhoek City Police, who was called to the Centre to

attend to a suicide complaint, saw the accused lying in the parking area on the

ground. She introduced herself to him and enquired about what had happened. The

accused was crying and screaming. All that she could make out was: ‘My wife, my

6

wife, who will take care of my child.’ She went to the vehicle and saw the deceased

on the back seat. She returned to the accused and asked for his name which the

accused provided. She asked him whether he knew the woman in the car to which

he responded that it was his wife, Selma Shaduka. She enquired again as to what

had happened. The accused told her that when he had arrived at home that day he

saw that the kitchen door was ajar and that the deceased was lying on the couch

bleeding. He then rushed her to the Healthcare Centre. At that stage Constable

Boois and accused entered the Centre. Inside the Centre Constable Boois enquired

from the accused where he resided and whether he owned a firearm and, if he did,

where it was. Accused informed Sergeant Boois that he resides at the flats in BC

Barnes Street, Klein Windhoek and that he owned a firearm and that it was at his

home in Klein Windhoek on top of a fridge.

[13] Maria Appelgryn, an employee at the Centre, was busy handing over duties to

the night shift staff at the time the accused arrived. She confirmed Sergeant

Tjitamunisa’s evidence about the accused’s conduct in part. She testified that after

the accused had stopped outside the Centre, he jumped out of the vehicle and ran

inside screaming hysterically and continuously: ‘Help! Help! My wife was shot’. She

called a doctor. Dr Kaura responded to the call and, after a brief examination,

declared the deceased dead. She was asked to call the police which she did. She

went home at about 20h00. By then, the police officers had arrived at the Centre. As

she was leaving, she observed the accused and a police officer going into one of the

toilets. She described the accused as being hysterical and shocked.

7

[14] Constable Modestus Mwatile was on duty as a driver for the Emergency

Response Unit the same evening. An operator at the radio central call room informed

him that a person had tried to commit suicide. He was directed to the Centre to

which he proceeded and where he found members of the Windhoek City Police

already present on the scene. He found the Mercedes Benz vehicle parked as

described by Sergeant Tjitamunisa and noticed the deceased lying on the back seat

inside the vehicle. He enquired about the whereabouts of the driver and he was

directed inside the Centre. There he found the accused and his daughter in the toilet,

both crying. He asked the accused to accompany him outside. He could see that the

accused was emotionally distressed. He asked for the accused’s name which he

provided. He enquired as to what happened. The accused related to him that he had

left his home to take a friend to Hakahana, a township in Windhoek. When he

returned home, he found his wife motionless with wide open eyes in the lounge. He

then realised that the deceased had shot herself as his pistol was lying on the floor.

He explained that when he departed earlier from home, the pistol was on top of the

fridge in the lounge. Upon a further enquiry whether he had an argument with the

deceased, accused denied it. When he further asked the accused to explain how

deceased could have shot herself, the accused replied that he did not know whether

she had shot herself or someone else had shot her.

[15] Warrant Officer Amakali of the Serious Crime Unit and the investigating officer

of the case also responded to a police report about an alleged suicide at the Centre.

He proceeded to the Centre where he met with other police officers. Sergeant

Tjitamunisa informed him that deceased had reportedly committed suicide. He

observed the body of the deceased in the vehicle. He was also pointed to the

8

accused who was inside the Centre. He approached the accused and introduced

himself. The accused identified himself and, upon enquiry, also identified the

deceased. Warrant Officer Amakali enquired from him as to what had happened.

The accused said he had dropped off a friend after they had lunch. On his way back

he drove against a pavement and damaged one of the front wheels of his vehicle. He

drove to the Shell Filling Station at Tacoma to get the wheel fixed. He then drove

home. When he arrived at the gate of the complex, his wife opened the gate

remotely and he drove inside. When he entered the flat, the baby was crying and he

found his wife lying on the couch in the lounge. When he looked at her face, her

eyes turned white and he noticed blood on the back of her neck. He also said that

when he left the flat to give his friend a lift, he left the firearm on top of the fridge.

[16] Warrant Officer Amakali summoned help from the mortuary and from the

Scene of Crime Unit. Constable Kandundu arrived and took photographs, inter alia,

of the deceased in the vehicle. The corpse was thereafter removed. In that process

Warrant Officer Amakali observed that the only wound on the deceased was at her

back between the shoulders, more to the right hand side. On account of the position

of the wound, he suspected that the deceased could not have shot herself. He

instructed Constable Kandundu to take samples from the hands of the deceased and

the accused to have them tested for gunshot primer residue. He then arrested the

accused and explained to him his rights. The accused’s response was: ‘It is okay.’

He was then taken to the Windhoek Police Station.

[17] Warrant Officer Amakali thereafter visited the accused’s residence where

other police officers were already busy inspecting the scene. He observed a pistol on

9

the floor with the magazine lying a distance away; a firearm licence on the dining

table; blood droplets on the couch, on the cushion, and next to the couch on the floor

in a corner; a pair of ladies slippers on the floor near the couch and the television

set; a chip in one of the floor tiles close to the dining room table near the lounge

area. In a room on the upper floor of the flat he saw a gun holster on a box by the

door; a small safe located in a cupboard of the main bedroom with its door ajar and

its key in the lock; a spent cartridge and a cellular phone with a sim card and battery

detached from the phone under the couch. It was later established that the cellular

phone belonged to the accused. He checked the firearm and found that it was

cocked; that the safety catch was on and it had one bullet in the chamber. In the

magazine there were three 9mm bullets.

[18] On 14 July 2008 at 17h00 Warrant Officer Amakali charged the accused with

murder. He was given the opportunity to call his lawyer with whom he consulted

before he later made a statement. The statement, which was taken in the presence

of accused’s lawyer, reads as follows:

‘I came home around 19h20 on Sunday 2008.07.13. I came home. My wife

(deceased) opened me. I came in and lied on the couch in the house. I had my

firearm with me tacked between my waist and the trouser I was wearing at that

moment. As I was lying I felt that my firearm was irritating me. I then took it out. My

wife joined me on the couch and was lying on me and we were watching television.

My wife took my firearm and cocked it. I told my wife not to play with the firearm. I

tried to remove the firearm from her. I saw the firearm hammer was pulled to the

back. I remove the firearm from the wife and stated that she must not do that with the

firearm as she does not know the fire arms. I was having the firearm in my firearm

while standing up and mentioned that my wife must not touch/handle the firearm like

that in the presence of a child. The firearm then went off while it was already in my

10

hand. The fire arm did not make a loud noise. I just saw the eyes of my wife turning

white. I thought the bullet went on the floor. I was shocked. I placed the firearm safety

catch on safe and threw it away. … The incident occurred none intentionally, the gun

went accidently off. We did not argue. We were just watching television. I loved my

wife not intentionally harming her.’ (sic)

[19] On 14 July 2008 between 12h00 and 14h00 before Warrant Officer Amakali

charged the accused, Ms Amara Appolus who also worked at the Centre as a

receptionist, discovered peculiar looking black objects in the toilet bowl which did not

flush away. Warrant Officer Amakali was called and he identified the two objects as

rounds of 9mm live ammunition. He was informed that the accused had used the

same toilet the night before. Warrant Officer Amakali seized the bullets and they

were received as exhibits during the trial.

[20] Crucial, though not immediately related to the events of 13 July 2008, is the

evidence of Ms Lavinia Mbangula, Detective Chief Inspector de Klerk and Sergeant

Hangalo. Ms Mbangula is a cousin of the deceased. She was requested by the

deceased to move in with them to babysit their daughter. When she moved in with

the family on 11 August 2007, all was well until the baby turned two months old. The

accused started to have arguments with the deceased and, in the course thereof,

accused her of bewitching him. He also began assaulting her and threatened to kill

her on several occasions. The witness referred to an occasion when he assaulted

the deceased to such an extent that she had to receive stitches for an eye injury and

had a scratch on her ear. On another occasion he called the deceased to the

garage, when she returned she appeared angry and had stains of milk on her

clothes. On two occasions while they resided in the Avis suburb, the accused called

11

from the North and threatened to kill the deceased and Ms Mbangula if Ms Mbangula

did not move out of their home. The witness heard the threats because the deceased

had switched her cellphone to loudspeaker mode.

[21] Ms Mbangula mentioned another occasion when the deceased, during a

temporary absence of the accused, had summoned the police to her home and

requested them to collect the accused’s firearm and keep it in their custody, which

they did. Subsequently, the accused summoned the deceased and Ms Mbangula to

the living room and enquired about his firearm. The deceased telephoned the police

and when they answered, she handed the phone to accused to speak to the officer

on the phone. The accused threw the phone away and threw his drink into

deceased’s face. He chased Ms Mbangula out of the living room. A while later the

police arrived and they took the accused and deceased with them to the police

station.

[22] On 1 June 2008, the Shaduka family moved to the town house where the

incident later occurred. On a Tuesday, the baby accidentally fell from the stairs while

the witness was cleaning the house. The deceased called the accused, who was at

the time in the North, to inform him about the accident. On the Thursday that

followed, the accused called reiterating his threats to kill the deceased and enquired

whether Ms Mbangula was still in their house. He stated in no uncertain terms to the

deceased that on his return he should not find Ms Mbangula in their house and again

threatened to kill the witness. As a result Ms Mbangula left the house on Sunday, 8

June 2008.

12

[23] To these revelations, Ms Mbangula further added that accused had been very

suspicious at times and that he had accused the deceased of spying on him. He

repeatedly demanded from the deceased to disclose who she was working for. On

one occasion, he cut open all the cellphone chargers and also opened the heater

and the electrical power box to search for listening devices which he suspected that

the deceased had allegedly placed there. He also accused the deceased of having

placed cameras and listening devices in his vehicle.

[24] Sergeant Hangalo confirmed the evidence of Ms Mbangula about the

confiscation of accused’s firearm. On 12 March 2008 Sergeant Hangalo was

instructed by D/Chief Inspector de Klerk to attend to a complaint at the Avis home of

the accused and deceased. There she met the deceased and Ms Mbangula. The

deceased handed her the firearm which she took with her to their offices for

safekeeping.

[25] Detective Chief Inspector De Klerk, a member of the Drug Law Enforcement

Unit of the Namibian Police confirmed the evidence of Sergeant Hangalo. He

received the call from the deceased and then instructed Sergeant Hangalo to attend

to the matter. At the time no formal complaint was laid against the accused. After

some time the accused called D/Chief Inspector de Klerk asking for the firearm. He

told the accused that he had good reason for not returning the firearm. Accused

threatened him with legal action which he ignored.

[26] On 30 March 2008 he attended to a complaint at the home of the accused in

Avis. The accused was arrested on a charge of assault by threats laid by the

13

deceased. The accused and the deceased were taken to the police station, but the

deceased declined to make a statement and to be placed in a safe home. As a

result, the accused was released.

[27] On 11 April 2008 the deceased and accused visited him at his office. The

accused wanted his firearm to be returned for personal protection in running his

business which, among other things, involved transporting substantial sums of

money. The accused also informed him that he had received help for his drug

problem and that he wanted to rebuild his marriage. The accused revealed that he

had been using crack cocaine. Detective Chief Inspector de Klerk became

concerned as he had knowledge that an addiction to crack cocaine was difficult to

overcome and that the drug caused mood swings. He privately consulted the

deceased to determine whether it was safe to release the firearm to the accused.

Reluctantly and with no small measure of concern for the deceased, he released the

firearm to the accused.

[28] The accused testified in his defence. The accused’s account of the fatal

incident is briefly stated as follows: He had breakfast with the deceased at home

that Sunday. Thereafter he went to his gambling house where he spent the rest of

the day. At 17h00 he went home but returned to his business premises to fetch his

wallet which he had forgotten there. At the premises he met one of his customers

who asked accused to take him home. He agreed but the person then asked to be

taken to the Country Club. At the intersection of the road to the University of Namibia

and Mandume Ndemufayo Avenue, the person changed his mind again and asked to

be taken home. The accused became annoyed and distracted as a result. As he

14

entered a traffic circle in Mandume Ndemufayo Avenue, he nearly collided with

another vehicle. In swerving to avoid the other vehicle, he drove his vehicle against a

kerbstone and damaged one of its front wheels. He drove to the Triple J and at one

of the service stations he asked for help to change the wheel. When they failed to

help him he drove home.

[29] He arrived home at 19h15 or 19h20. The deceased opened the gate for him.

He parked the vehicle outside the garage. The deceased offered to make something

for him to eat but he declined. He told her that he intended to watch television. The

deceased then went upstairs to the baby. The accused laid down on the couch in

front of the television. The firearm, which was stuck in his trousers, was irritating him.

He removed it and placed it on top of the couch’s backrest. The deceased and the

baby joined him later. After she had made a bed on the floor for the baby, she joined

him on the couch; lying partly on top of him. They chatted for a while. He fell asleep

and was awoken by ‘something’. His own narration of the subsequent events as

transcribed proceeded as follows:

‘I do not know what woke me up. Maybe it was the movement of my wife or I cannot

say but when I woke up I saw that my wife was holding the firearm with both hands.

She was holding it and pointing in the opposite direction and then I say how can you

play with a firearm and there is also a child and at that time I notice that the hammer

of the firearm or the trigger was pulled backwards. Then I decided to ask for the

firearm or to take the firearm from her so that I can put it on a safe guard because

you cannot stay with a firearm like that. At that stage the firearm was in my right hand

and at that stage is when my wife rise up or she stood up. …

I do not know really what happened. I just saw that she fall and she fall with the body

towards the firearm. She hit herself on the firearm. I do not know whether she slipped

and fell down or what. Something happened but I do not what was it exactly.

15

And when she fell against the firearm, I just hear a sound pop and I did not know

what make such a sound and then I asked what is it? Because she did not answer

and I see her, when I looked at her I realised something is wrong here and when I

looked in her eyes, I see her eyes was white. At that stage the firearm was still in my

hand and then I pushed it just next to the couch and then at that stage I realised that

my wife was hurt and then I took her and took another cushion which was at the

other couch to help her so that she can sit upright or to stand upright and then I took

the firearm again after I lift her up and put the firearm on the safe grid and then I

throw it on the kitchen side. I did not notice where it land or where it lands…..’ (sic)

[30] The evidence that followed was about how the accused had taken the

deceased to the Centre; what he had done while at the Centre; that he had been

arrested and taken to the police station and the statement he made in the presence

of his lawyer after he had consulted with him. Worth mentioning is his assertion that

when his statement was being taken, he and Warrant Officer Amakali were speaking

English and Oshiwambo and that he had signed the statement without giving proper

attention to its contents. He denied telling Warrant Officer Amakali that he had ‘the

firearm in my firearm’ as is recorded in the statement but that he informed him that

he had held the firearm in his hand.

[31] The second witness on behalf of the defence was Mr Wolmarans who, as

already noted, agreed with Dr Ludik that, given the position of the gunshot wound,

the deceased could not have committed suicide. He also agreed with Dr Ludik and

Mr Nambahu, the Chief Forensic Scientist at the National Forensic Science Institute,

that the wound was a ‘hard’ contact wound. The rest of his evidence consisted in

main of criticism of Dr Ludik’s report, particularly the manner in which Dr Ludik

examined the body of the deceased after the autopsy had already been conducted.

He held the opinion that the method was not scientifically accurate. He also departed

16

from Dr Ludik’s opinion that the pistol was held at an angle of 90° against the body of

the deceased when the shot was fired. His opinion was that it was held at an angle

of between 5° and 25° with the body, thus agreeing with Mr Nambahu’s evidence on

that score. Mr Wolmarans’ conclusion was that the trajectory of the bullet through the

body of the deceased supported the version of the accused in Court and, to a certain

degree, that of his warning statement. In his report, there appears a handwritten note

which he had made during the consultations with the accused. In it he recorded the

accused’s recollection of the crucial moment when deceased was shot. The note

reads:

‘I was leaning on my left arm to rise up. My wife was rising up also. I had a gun on

my right hand. It appears that my wife, as she was rising up had slide backwards,

striking the barrel of the gun that also caused me to lose balance. At that moment of

impact, my finger or fingers must have touched the trigger.’ (sic)

[32] It becomes opportune to refer to the evidence of Mr Nambahu. He received,

among other things, from D/Constable D Goraseb the folowing: 1 x 9mm Makarov

pistol, 1 x 9mm spent case, 1 x 9mm magazine , 1 x 9mm spent projectile and 2 x 9

mm bullets and swabs taken from the deceased and accused to test for the

presence of gunshot primer residue. He concluded after examination of the items

that the pistol was in a working condition and that the empty cartridge found under

the couch in accused’s living room and the bullet removed from the deceased’s body

were both fired from the pistol. He could not find gunshot residue on the swabs

received. But he stated that, that did not mean that accused had not fired the firearm

as gunshot residue can easily be removed from a person’s hands by washing, strong

winds or by the skin coming into contact with other materials or cloth. In this

17

particular case, the gunshot residue could have rubbed off when the accused carried

the deceased to the vehicle or when he picked up the baby. He also testified that the

muscular effort needed to discharge the accused’s firearm was 5.5 kgf for a double

action pull of the trigger and 3.5 kgf for a single action pull – both of which fall within

normal parameters. Like Dr Ludik and Mr Wolmarans, he also found that the wound

was a ‘hard’ contact wound for the reason that blood was found inside the barrel of

the firearm and from the ring-like mark found around the entrance wound on the

deceased’s body. He agreed with Mr Wolmarans that the pistol was held at an

approximate angle of 25° to the body when the shot was fired. He opined that the

absence of any markings or deformation on the metal jacket of the bullet found in the

body of the deceased signified that the bullet did not struck any hard object when it

travelled through the body and that, if the firearm had been held at 90° to the body,

one would have expected bone fractures or splinters in the body.

Decision of the High Court

[33] The Court below followed the approach of the majority judgment in R v

Mlambo 1957(4) SA 727 (AD) to determine the question whether the accused had

caused the deceased’s death intentionally or negligently. On the strength of that

decision it held that accused handled the firearm negligently and returned a verdict

of guilty of culpable homicide. I shall return to this approach later in this judgment.

[34] The Court took into account a number of factors which it found tended to point

away from the conclusion that the accused had intentionally discharged the shot,

such as the position of the wound and the behaviour of the accused after the

shooting. It noted that when he took the deceased for medical attention; he drove at

18

a high speed; that he arrived barefoot at the clinic and hysterically screamed for

help. The Court found that the observations made by the police officers when they

examined the lounge of the accused after the incident fit well in with the accused’s

warning statement, namely, the fired cartridge, the cellphone and the detached

battery found under the couch. The Court also observed that Mr Wolmarans’

evidence to the effect that the marking of the muzzle around the wound and the

trajectory through the body also support to a certain degree accused’s warning

statement and noted the opinion of Mr Wolmarans that the objective evidence fits in

with the warning statement.

[35] In the opinion of the Court below, ‘it would require some other clear facts or

circumstances for an inference of an intentional killing to be drawn beyond

reasonable doubt’.

Grounds of appeal

[36] The grounds of appeal against conviction set out in the application for leave to

appeal are these:

‘That the Honourable Judge misdirected herself and/or erred in law and/or in fact by:

1. Not rejecting the accused’s defence of an accidental shooting in totality as:

- The reason why the respondent pulled the trigger remains totally unexplained

as the court rejected the respondent’s version that the deceased fell back

onto the firearm;

- The reason why the respondent did not activate the safety catch of the

firearm remains totally unexplained;

- The reason why the respondent did not point the firearm away from the

deceased remains totally unexplained;

19

- The reason why the respondent pressed a loaded, cocked firearm against the

body of the deceased remains totally unexplained.

2. Not finding that the only reasonable interference to be drawn from the evidence

and the probabilities in the case is that the respondent acted with dolus when he

pulled the trigger of the firearm as:

- The respondent was correctly found to be a lying witness who gave

contradictory explanations to explain his wife’s death;

- The respondent and the deceased had a troubled marriage with a history of

domestic violence and the respondent in the past threatened to kill the

deceased;

- It is so improbable that it can be rejected as false beyond a reasonable doubt

that the deceased would have played with the firearm and cocked it for no

apparent reason;

- The warning statement of the respondent does not support a defence of

accidental shooting as it refers to the firearm itself that went off and

respondent does not admit pulling the trigger in his warning statement;

- The firearm is a deadly weapon which the respondent fired at a close range

into the upper body of the deceased with fatal consequences.

3. Not considering, alternatively not properly considering that to constitute in law an

intention to kill there need not be a set purpose to cause death or even a desire

to cause death as a person in law intends to kill if he deliberately does an

unlawful act which he in fact appreciates might result in the death of another and

he acts reckless as to whether such death results or not and by not finding that

the respondent at least acted with dolus eventualis when he pulled the trigger.

4. Wrongly relying on the majority judgment of R v Mlambo 1957(4) SA 727 (AD)

which is not applicable to this case as it is applicable to cases where the Court

cannot draw an inference of dolus due to the absence of indications of an intent

to kill, e.g. the absence of evidence of a deadly weapon used, absence of a

cause of death, and absence of a history of animosity between an accused and

deceased.’

Analysis of the evidence and the law

20

[37] Given its importance to the issues at hand, I turn to the decision on which the

Court below relied (referred to in the fourth ground of appeal). In the Mlambo case,

both the accused and the deceased worked for the same employer. The accused

killed the deceased and buried her body underneath a compost heap. He lied about

the whereabouts of the deceased. When an offensive odour emanated from the

advanced decomposed body, the accused falsely explained that the odour was

coming from a sheepskin which he had buried in the compost heap. He covered the

part of the decomposed body which was visible with sand and he warned two others

not to go to the heap. His conduct raised suspicion and the police were summoned.

The accused was eventually charged and convicted of the murder of the deceased.

On appeal the majority of the South African Appeal Court held that it could not be

inferred beyond reasonable doubt that the appellant had the intention to kill the

deceased (head note at 727B–D). The majority reasoned that where, in a trial on a

charge of murder the evidence does not establish what the cause of death was, the

court is without an important element arriving at a decision whether or not an

unlawful killing was the result of a murder. The other indications of an intention to kill

must be very strong if they are to make up for this serious deficiency and leave no

reasonable doubt. The conviction of murder was therefore substituted with that of

culpable homicide.

[38] Malan JA who wrote for the minority and whose judgment was concurred in by

Price AJA disagreed. In the course of his judgment he formulated a statement which

has become known as “the Mlambo case dictum” at 737C-738D of the report. It is

summarised in the sworn translation of the judgment in S v Steynberg 1983(3) SA

140 (AD) which the court has been provided with. It reads:

21

‘When an accused causes somebody’s death by means of an unlawful assault and

only the accused is able to explain the circumstances of the fatal assault, but he

gives an explanation which is rejected as false, then the Court can make the

interference that the accused committed the said assault with the intention to kill

rather than with any other less serious form of mens rea.’ (At 147C-D.)

[39] On appeal, counsel for the appellant shifted her stance from that taken on

behalf of the prosecution in the Court below, i.e. that the intention of the accused

was in the form of dolus directus. In this Court counsel sought a conviction on the

basis of dolus eventualis and submitted that this Court should find that the State had

proved beyond reasonable doubt that the respondent foresaw the possibility of fatal

consequences and reconciled himself with such possibility when he discharged the

fatal shot. Mr Strydom for the respondent argued that the verdict of the Court below

was correct as the State had failed to prove any form of intention and that it would be

a quantum leap in logic to hold on the evidence that accused had intention to kill the

deceased.

[40] The only question then which arises before this Court is whether the State

had proven beyond reasonable doubt that, when the accused discharged the fatal

gunshot wound, he had the intention to kill the deceased. Given the fact that there

were no eyewitnesses to the incident, the version of the accused of how the shooting

took place, gains added significance. So too, the nature of the relationship between

the accused and the deceased, given the evidence of Ms Mbangula, D/Chief

Inspector de Klerk and Sergeant Hangalo. I must digress here to point out that the

22

period between the date Ms Mbangula moved out of the Shaduka home (8 June

2008) to the date the deceased was killed (13 July 2008) is 36 days.

[41] The Court below, for well founded reasons, held that accused had lied at the

Centre about the circumstances surrounding the deceased’s death. It also rejected

his oral evidence that the deceased had fallen backwards against the firearm

causing it to be discharged - an aspect of evidence which the Court below described

as ‘the most important allegation of all’ in the accused’s defence. The Court noted

that no allegation to that effect had been made in the accused’s warning statement

and concluded that the accused’s evidence during the trial about that crucial moment

was ‘an afterthought’. The Court went on to rely on the accused’s warning

statement, regarding it not as being the whole truth but ‘the closest the accused

came to telling the truth…’. In the opinion of that Court, the warning statement was

consistent with the objective evidence proved. In dealing with the lies that accused

had told about how the deceased had met her death, the Court below stated:

‘I think it must be clear that even if the accused lied at Paramount, that does not

necessarily mean that he killed deceased intentionally. It would appear that the

accused had a change of heart between the 13th July and 14th July when he gave his

warning statement. Then he abandoned any allegations about suicide or suggestions

that it may have been someone else who shot the deceased.’

[42] In regard to whether the facts established intent to kill, the Court below stated:

‘In my view, however, there is not sufficient evidence from which I can conclude that

the accused fired the short with dolus directus. . . . Even if I accept the evidence of

Ms Mbangula that accused at times threatened to kill the deceased and that he

23

sometimes may have posed a danger to her, as well as that he assaulted her, the

connection between the evidence and the events of the evening of 13th July 2008

appear tenuous on the available facts.’

[43] With regard to the explanation of the accused on how the hard contact wound

had been caused, the Court below stated:

‘The accused further chose not to explain how it came that the weapon was pressed

against the deceased’s body. He merely said that the shot went off. In my view he

deliberately omitted to explain this properly because he knew that he handled the

firearm in a way that renders him blameworthy. That is also why he lied at the

hospital and moved the focus from his own conduct.’

[44] It is indeed correct, as counsel for the accused submitted, that it does not

follow from the fact that the accused lied at Paramount that he is guilty for it is

possible that an innocent person may give a false explanation because he or she

may think that the truth is unlikely to be sufficiently plausible. S v Henning, 1972 (2)

SA 546 (N) at 549B; Maharaj v Parandaya 1939 NPD at 239. But while such conduct

does not in itself establish the guilt of such person, it is a factor which a trial court is

entitled to take into account together with all other relevant and material factors as

part of the totality of the evidence in deciding whether the guilt of an accused has

been established beyond reasonable doubt. A court will be cautious in its approach

and the weight to be given to the factor in question depends upon the facts of a

particular case and the nature of the conduct being enquired into. (S v Henning,

supra, at 549. See also: R v Nel 1937 CPD at 330; R v Du Plessis 1944 AD 314 at

323 and R v Gani, 1958 (1) SA 102 (AD) at 113 B-E )

24

[45] The Court accepted that the accused had lied at the Centre, but did not

accord any weight to the fact that the accused was also untruthful in Court when he

testified that he could not remember what he had said at the Centre. The details and

apparent rationality of the explanations which he gave to the police officers some

time after his arrival at the Centre; the deliberate construction of lies to direct blame

for the gunshot wound away from him to the deceased or another person; his clear

recollection of the events which preceded the incident and his intentional but botched

attempt to flush away the 9mm rounds of ammunition in the toilet evidence a person

who, although emotionally upset, was clearly not deprived of self-control and rational

thinking. There is no reason why he would not have been able to recollect the next

day what he had said to the police the previous evening. On the contrary, it rather

appears as if the evolution of his explanations from suicide (which he must have later

realised was untenable given the position of the entrance wound) to the possibility

that another unknown person might have shot the deceased (which he must also

have realised later would not fit in with his explanation that she had opened the gate

remotely for him only moments earlier) to an accidental discharge of the firearm

proffered the next day was for the very reason that he knew full well that what he had

said to the police the previous evening would not stand up to the objective evidence

and judicial scrutiny. It might have been a different case altogether if accused

admitted in Court the falsehoods concocted the previous evening and explained why

he had lied, for instance, that he feared to say that he had caused his wife’s death

accidentally because others would think that he had done so deliberately. It must be

remembered that the falsehoods were uttered voluntarily after his arrival at the

Centre.

25

[46] When the Court below, in its own words, failed to find other credible evidence

to shed light on the incident, it turned to consider the contents and effect of the

accused’s warning statement. It considered that the statement had been given in the

presence of his lawyer after he had had the benefit of an earlier consultation with his

lawyer. In my view, the Court below was on point when it held that he deliberately

chose not to explain in his statement how it came about that the weapon had been

pressed against the deceased’s body. He merely said ‘the firearm then went off while

it was already in his hand’. He qualified that sentence to say ‘the gun went

accidentally off’. No mention was made that the deceased had fallen backwards onto

the gun. In the second bail application accused was asked whether he would stand

by his warning statement, inter alia, containing the sentence above, his reply was,

‘by the whole of it’. Yet, during the trial, when he was cross-examined on the warning

statement, he stated that Warrant Officer Amakali had taken down the statement

carelessly and that he had added some flesh to the statement, more particularly on

the crucial issue on how deceased met her death. The Court below rejected the

blame attributed to Warrant Officer Amakali and the additions on the crucial piece of

evidence. In my view, rightly so. The statement is silent where accused had placed

the firearm when he removed it from his pants but it continues to state that while they

were watching television the deceased took the firearm and cocked it. When

accused realised during the trial that it was not plausible that he would have allowed

her to handle the gun in that manner given his insistence on safety, he claimed in his

oral evidence that he had dozed off and was awaken by something and that the

deceased had the firearm in her possession and that it was cocked.

26

[47] The Court below among other factors, relied heavily on the behaviour of the

accused after the shooting incident, to find that he did not have intention to kill

namely, rushing the deceased to hospital and the fact that he seemingly screamed

hysterically and that he appeared to be shocked. The hysterical screaming, the

collapsing and rolling about at the news that deceased was dead must be

considered in the light of the utterances he made, ‘Help! Help! My wife has shot

herself’ and ‘Who is going to look after my daughter’. He went about doing what he

did at the Centre, while he well knew that he had fired the shot which caused the

death of the deceased. While at the Centre the accused got rid of the rounds of

ammunition which he had on his person. The thinking that was behind accused’s

attempt to get rid of the two rounds of ammunition before being arrested and the

construction of deliberate lies do not quite fit in with the picture of a man so

distraught with grief that he had no recollection the next day of what he had said and

done at Paramount, as I have remarked earlier. The accused denied that he

attempted to dispose of the ammunition. Viewed in this context, his animated

conduct as a shocked and grieving husband after the incident was intended as a

pretence to deliberately build up a case for suicide or murder by an unknown

assailant. This begs the question how far the pretence extended back in time that

evening: whether the accused’s rush to the Centre at speed and sounding the

vehicle’s horn was not part of the pretence. Having shot his wife, he must have

realised that, unless he would do something immediately to demonstrate his concern

for her life, an adverse inference that he had intended her death would be all the

more likely. The Court held, however, that this was not the only reasonable inference

and, according the accused the benefit of reasonable doubt, found that, although the

27

accused had acted unlawfully and negligently when he discharged the firearm, he

had not intended to kill the deceased and genuinely attempted to have her life saved.

[48] The Court below further found that the position of the wound was also an

indicator that accused might not have had an intention to kill the deceased. It

reasoned that if he had such an intention he would have shot her, for example, in the

head. Once the accused’s explanation that the deceased fell backwards onto the

firearm is rejected as an afterthought, there is no explanation how her body came

into contact with the firearm. There are multiple scenarios which could have resulted

in wounds of this nature. One of the possibilities explored during the trial was that,

given the time frame within which the shooting occurred (shortly after the accused

had arrived at home) that there was an altercation and that he had fired the shot

during an ensuing scuffle when the deceased’s body was bend forwards – a position

which would also have resulted in the same injuries as described by the two expert

witnesses. The setting suggested was that the accused left home in the morning and

returned when it was almost dark; smelt of liquor; was involved in that small accident

and, in the context of a turbulent and oft acrimonious marriage relationship as

described by Ms Mbangula, an argument ensued on his arrival. This proposition

suggested is more consistent with the time frame within which the death occurred

after the accused’s arrival at home than the picture which he sought to paint in Court:

ie. that he came home; that the deceased joined him on the couch after she had

gone upstairs to collect the baby and prepared a bed for her on the floor; that they

had a conversation while watching television; that he dozed off for a while, etc. This

is more so if regard is also had to his own evidence, i.e. that after the shooting

incident, he wanted to call the ambulance but he could not find his cell phone; that

28

he wanted to use the other vehicle instead of the Mercedes Benz but he could not

find the keys; that he carried the deceased’s body to the vehicle and returned to

fetch the baby. He even had time to switch off the television - an improbability under

the circumstances for a person who was in a hurry to get his wife to the hospital.

Even if it is assumed in accused’s favour that he did all that with deliberate speed, it

is unlikely that all of the events testified to by him could be properly fitted into the

time frame between his arrival at home and, shortly afterwards, at the Centre.

[49] The Court below found the evidence of Ms Mbangula irrelevant to the events

of 13 July 2008 and concluded that it appeared tenuous on the facts of this case. In

my opinion the evidence of Ms Mbangula is not only relevant but also important in

the circumstances of this case to demonstrate the accused’s aggressive attitude

towards the deceased; the unfounded suspicions he harboured that she was spying

on him and that he had occasionally threatened to kill her. It is of particular

significance that he again threatened to kill the deceased about one month before

the incident. Ms Mbangula might have contradicted herself during cross-examination

but the substance of her evidence remains and is corroborated in certain respects:

that the pistol used to kill the deceased had previously been seized and was kept in

custody of the police at the request of the deceased. The deceased could only have

thought that intervention from the police was needed for fear of her life. The

accused’s denials that he had assaulted or threatened to kill the deceased or Ms

Mbangula is inconsistent with the deceased’s admitted conduct to call on the police

and to hand over the firearm for her own protection. D/Chief Inspector de Klerk

testified that he was reluctant to hand back the pistol when accused demanded its

return. He further testified that accused visited him at his office, and informed him

29

that he had received help for his drug problem and that he wanted to build his

marriage again. He also testified that the deceased had laid charges of assault or

threats on 30 March 2008. That testimony puts beyond doubt that not only that the

marriage was not a happy one but that accused was an abusive husband who had

threatened the life of the deceased before.

[50] Finally, the Court below found that the demonstration which the accused gave

in the Registrar’s office tended to confirm the accused’s version and the opinion of

Mr Wolmarans that the objective evidence of the gunshot wound fits in with the

warning statement. The finding may be good as far as it goes, i.e. that the objective

evidence about the nature of the gunshot wound and the trajectory of the bullet

through the body of the deceased are compatible with the accused’s demonstration

and explanation. That does not mean, however, that the objective evidence may not

also be compatible with various other scenarios as pointed out earlier – and as the

accused’s counsel properly conceded during argument. Once that Court rejected the

accused’s version that the deceased had fallen backwards unto the barrel of the

handgun, thus causing it to discharge accidently, no credible evidence is left on how

it came about that the gun was pressed against the deceased’s body and sufficient

pressure was exerted on the trigger thereof to cause a gunshot wound of that nature

and location. This is the most crucial issue in this case. I have no doubt that the

Court below was correct when it found that the accused’s explanation at the trial was

an afterthought. In my view, it was as much a deliberate untruthful reconstruction as

his earlier explanations of suicide or murder by an unknown assailant. It is also false

beyond reasonable doubt that the firearm discharged accidentally as he proposed in

his warning statement: it is unlikely that the deceased had cocked the firearm for no

30

apparent reason especially if regard is had to her demonstrated resentment for it. It

is also improbable that, having admonished his wife for handling the firearm without

the safety catch on in the presence of their baby moments earlier, he took the

firearm from her but failed to make it safe by either putting the safety catch on or

ejecting the round from the chamber. What is before the Court is a story put forward

by a dishonest witness; a story which is false beyond reasonable doubt and should

be rejected as a concoction designed to escape conviction.

[51] But is this finding sufficient in the context of this case to also hold that he had

murdered the deceased? To answer this question, I must again briefly reflect on the

approach proposed in the Mlambo dictum. The majority judgment in the Mlambo

case finds no application in this case. I understand that judgment to say, for the

reason that the cause of death could not be determined due to the advanced

decomposition of the body; the Court was without an important element in arriving at

a decision whether or not an unlawful killing was murder. It is in that respect the facts

of Mlambo case are different from this case, where the cause of death is known to

be the gunshot wound. This is an appropriate case where the Mlambo dictum per

Malan JA above finds application. In fact, like in the matter of S v Steynberg, 1983

(3) SA 140 (A) this matter too, is an example of the facts and circumstances where

the approach of Malan JA in Mlambo’s case is pertinent:

‘It amounts to this: when an accused causes somebody’s death by means of an

unlawful assault and only the accused is able to explain the circumstances of the

fatal assault, but he gives an explanation which is rejected as false, then the court

can make the inference that the accused committed the said assault with intention to

kill rather than with any other less serious form of mens rea. In this manner, an

31

accused’s false account of the circumstances of the assault can result in the accused

being found guilty of the more serious crime of murder rather than the lesser offence

of culpable homicide. …

… The application of such an approach can often produce satisfactory and correct

results. But the application thereof obviously does not mean that, when an accused

gives a false explanation about a fatal assault he perpetrated on someone about

which he alone is able to give evidence, the inference must be made that the

accused had the intention to kill the deceased. Malan JA also didn’t put it like that:

one must be mindful of the qualifying words “in suitable cases” which appear in the

Mlambo case dictum. In the nature of things it is generally impossible to devise an

exhaustive formula according to which it can be judged whether or not the said

approach can thus be applied. It depends on the special circumstances of each case.

The nature and extent of the accused’s lies are of major importance.

In addition, all the other factors which, from the evidence, appear to be relevant to

the adjudication of the question whether the inference that the accused had the

intention to kill is justified, should be brought to bear; and this adjudication is

undertaken with due observance of the established rules of logic in connection with

circumstantial evidence as formulated in R v Blom 1939 AD 188 at 202-3.

Where the Mlambo case dictum is fittingly applied, there is no room for the notion

that the conviction serves in retribution for the accused’s false evidence. For the

proper adjudication of a trial case, the trial court has to rely on the evidence adduced.

In a criminal trial the testimony of the accused himself can be a material and

significant component of the entire evidential material; and the acceptance or non-

rejection of the accused’s testimony can be decisive in his acquittal or conviction of a

lesser crime than the one on which he stands trial. However, when the accused’s

testimony is rejected as false, the trial court in his decision of the matter out of

necessity has to manage without the said aid. In short, proper application of the

Mlambo case dictum merely means that the accused cannot complain about the fact

that because of his own untruthfulness the trial court cannot give him the benefit of

the possibility (viz. that he used violence on the deceased with any other intention

than killing him, or even with a harmless intention) that is not based on any

acceptable information (evidence)…. It is with these considerations in mind that the

32

evidence in the current case must be approached.’ (sworn translation of the judgment

per Hoexter JA at 147- 148).

[52] I endorse this interpretation on the application of the Mlambo dictum. The

circumstances of this case fall squarely within its sweep and, in my view, it should

have been adopted by the trial Court.

[53] The prosecution presented a very strong prima facie case of murder to the

Court below. The accused was alone with the deceased at home. He was the owner

of the firearm and had it in his possession when he entered the house shortly before

the incident. The firearm was not cocked at that time. It’s mechanism was designed

as such that it could not be fired without cocking it first by pulling its sliding

mechanism backwards and releasing it to load a round of ammunition from its

magazine into the firing chamber. The firearm must have been cocked deliberately

within the relatively short period of time between the accused’s arrival and the

discharge thereof. Moreover, definite pressure had to be applied to the trigger in

order to discharge the round. The accused had the firearm in his hand, pressed

against the back of the deceased’s body, when the fatal shot was discharged.

[54] So strong, indeed, was the case against the accused that, had he failed to

answer to it, a conviction on the count of murder would have been unavoidable. I

cannot see why his position should be any better if the answer he chose to present

to court was a deliberate concoction of falsehoods which falls to be rejected. In this

context the evolutionary nature and extent of the accused’s repeated lies must also

be considered: It commenced with an allegation of suicide. It was followed by an

allegation that he did not know whether it was suicide or whether someone else had

33

shot and killed her. Later, he claimed that he had shot her by accident and that he

had the thought that the ‘bullet went on the floor’ – in a downwards direction, given

his body-position at the time. In Court he testified that the deceased caused the shot

to be fired, firstly, by cocking the firearm while he was dozing and then by

unexpectedly falling against him when he had the firearm in his hand - thus causing

the bullet to be fired in a slightly upwards direction or, at best, a direction more or

less parallel to the floor. All of these progressive lies were intended to exculpate

himself and blame others. If, in addition to the factors already mentioned, the

acrimonious attitude of the accused towards the deceased and his recent and

repeated threats to her life are taken into consideration, I am constrained by the

cumulative weight of the evidence to hold that the State has proven the accused’s

guilt on the count of murder beyond reasonable doubt. I am also satisfied that, given

the deliberate action which was required to cock the handgun before it could be

discharged, the accused had the direct intention to kill the deceased at the time

when he pulled the trigger. The accused should have been convicted on the count of

murder and the verdict of the Court below should accordingly be substituted.

Sentence

[55] I now turn to consider the sentence and I intend to do so very briefly. There

are five grounds of appeal against sentence on the first count of culpable homicide

and two on the second count, the attempt to defeat the course of justice. The

conviction on second count was not appealed against. I assume that the two

grounds on sentence on count 2 were abandoned.

34

Given the fact that the accused’s conviction on the crime of culpable homicide must

be substituted for one of murder, it follows that that the sentence must be set aside

and be substituted for a sentence appropriate to the seriousness of the crime whilst,

at the same time, according due weight to the interests of society and the personal

circumstances of the accused. It is therefore not necessary to deal with the grounds

advanced by the appellant why the sentence on the crime of culpable homicide was

inappropriately lenient.

[56] The traditional approach to sentence as spelt out by Holmes JA in the South

African case of S v Rabie 1975(4) SA 855 (A) at 857D-F is well known. It has been

stated and re-stated in numerous decisions in our Courts and hardly needs repetition

in this case. It will suffice to state that I heed to the admonition spelt out in that case.

[57] I shall briefly refer to the personal circumstances advanced on behalf of the

accused during his trial. He is a first offender and was 37 years of age at the time

when he committed the crime. He is the father of two minor children: the child born of

his marriage with the deceased and another daughter who was 12 years of age. His

eldest daughter visited him regularly whilst he was in custody. He testified that she

had difficulty to come to terms with his incarceration and that she was receiving

psychological treatment as a result. He also provided for six orphaned children: five

of his late sister and one of his late brother. His father passed away during

December 2009 and since then he also assumed responsibility for the maintenance

of his elderly mother. As the Court below noted, the accused is well educated: he

holds a Bachelor’s degree in Economics from the University of Namibia and a

Masters degree in Financial Economics from the University of London. He set up a

35

number of businesses covering diverse areas of enterprise: in construction; in trade

and investment; in life insurance and in the gambling industry. His businesses in

building construction, trade and investment were closed down as a result of his initial

arrest and subsequent detention pending trial. He still had a moderate income from

his life insurance business but the mainstay of his income was a gambling house

which relatives continued to manage on his behalf. He had an investment of N$500

000 on a 32 day call account and, in addition was holding several Government

bonds which had all been pledged. He was suffering from malignant hypertension

and would need medical treatment for his condition.

[58] Upon a proper analysis of the evidence tendered in mitigation, the Court

below held, for several reasons which need not be repeated here, that there were

some reservations about the accused’s professed remorse for the killing of the

deceased.

[59] During the period preceding his trial, the accused’s child born of his marriage

with the deceased was in the custody of the deceased’s maternal grandmother. She

must be 5 years of age by now. The family’s intention was to apply that custody of

the child should be awarded to them because they did not wish the child to grow up

with the person who had been responsible for her mother’s death. It is also clear

from the evidence tendered in aggravation that the passing of the deceased had a

profound impact on her immediate relatives, especially on her father and mother. Her

father testified in most endearing terms about his deceased daughter and recorded

that he was deeply traumatised by her death. He was suffering of sleeplessness at

night and had lost a lot of weight as a consequence. His wife was experiencing

36

migraines after the tragedy. The court below noted that, what further deepened their

emotional and psychological scars, was their search for answers about how and why

the deceased had been killed. It accepted unreservedly – and correctly, I should add

- that the hurt and suffering caused by the deceased’s death must have been

immeasurable.

[60] The crime committed by the accused is grave and of the most serious nature.

It needs no elaboration and I do not propose to dwell on it at any length. Since time

immemorial, society has set itself against it. The right to life accorded to all human

beings in Namibia is therefore also the first and most fundamental of all rights

protected and entrenched in our Constitution. Not only was the deceased entitled to

such protection by society in general but, being married to the accused, she was

also entitled to look towards him to respect it and to protect her. Instead, he

murdered her.

[61] In addition to aggravating factors pertaining to the crime of murder in general,

there are also particular reasons why society is entitled to demand an appropriate

judicial response to the crime committed to by the accused: it was perpetrated in a

domestic context. Crimes of this nature perpetrated on women and children are

rampant in this country and the public at large has repeatedly demonstrated their

concerns about its prevalence. So serious has it become that Parliament was moved

to adopt the Combating of Domestic Violence Act in 2003. Notwithstanding its

promulgation and enforcement, the commission of crimes falling within its scope

continued almost unabated. This cannot be allowed and, whenever required, the

37

punishment meted out by courts of law to address such crimes, should reflect the

seriousness with which it is being regarded.

[62] I accept that, notwithstanding his earlier threats against the deceased, that

the evidence does not suggest that the accused had planned the commission of this

crime. It appears that it was perpetrated on the spur of the moment. Had it been pre-

planned, the sentence proposed would have been much higher.

[63] In the result, I make the following order:

1. The appeal against the accused’s conviction of the crime of culpable

homicide and the sentence imposed in respect thereof succeeds.

2. The accused’s conviction of culpable homicide on 23 August 2010 and the

sentence of N$25 00000 (Twenty Five Thousand Namibian Dollars) or one

(1) year imprisonment imposed pursuant to that conviction on 30 August

2010 are set aside and the following orders are substituted:

‘The accused is convicted of the crime of murder’

‘The accused is sentenced to 20 years imprisonment’

3. The accused’s conviction on the count of an attempt to obstruct or defeat

the course of justice and the sentence of N$2000 or two months

imprisonment imposed in respect of that conviction as well as the orders of

38

the High Court declaring the accused unfit to possess a firearm for a

period of 10 (ten) years and forfeiting exhibits 1, 2, 3, 4, 5, 6 and 7 in

favour of the State are all confirmed.

4. It is directed that the N$25,000 paid to by the accused in satisfaction of the

sentence set aside in paragraph 2 of this order be refunded to him.

___________________MAINGA JA

___________________SHIVUTE CJ

___________________MARITZ JA

39

APPEARANCES:

APPELLANT: B L Wantenaar

For the State

RESPONDENT: J A N Strydom

Instructed by Hennie Barnard & Partners