REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 32/2019

In the matter between:

THE STATE

and

HENDRIK BOCK                                                                                     ACCUSED

Neutral citation:  S v Bock (CC 32/2019) [2020] NAHCMD 390 (3 September 2020)

Coram:          CLAASEN J

Heard:           31 August 2020

Delivered:     3 September 2020

Count 1: Murder (direct intent) read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 – 32 years’ imprisonment.

Count 2: Assault with the intent to cause grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 – 1 year’ imprisonment.

In terms of s 280(2) of Act 51 of 1977, it is ordered that the sentence of count 2 be served concurrently with the sentence imposed on count 1.

JUDGMENT

CLAASEN J:   

[1]        The date of 04 September 2018 will forever be etched in the mind of Mr Fritz Anab, an elderly San resident of Houtsputz, Tallismanus in the Gobabis area, as he observed his daughter Angela Anab being stabbed three times with a knife by her boyfriend, the accused. It happened right in front of his humble abode, in the shadow of a tree, whilst Mr Anab and a friend were playing a traditional game called ‘onyune.’  Mr Anab walked over to a neighbours’ house to request assistance to call the police. The accused followed him and upon being refused entry by the neighbour’s yard, the accused announced that he will now go and ‘finish her off’.  Upon Mr Anab’s return to the tree, he was met by the gruesome scene of his daughter’s throat that was slit. The accused sat not too far from the deceased’s body. Thus, for Mr Anab, his house and the tree in front of it is no longer a place of solace, but a stark reminder of the events of that day.

[2]        For this, the accused was convicted of murder, with direct intent, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. The court also convicted the accused on a second count of assault with the intent to cause grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. The latter is for an unrelated incident that occurred between the accused and his girlfriend, Ms Anab during 2016.

[3]        Today, the court moves into the phase wherein the accused will be held accountable for his unlawful actions. In doing that, the court is mindful of the overall objectives of punishment namely prevention, retribution, deterrence and rehabilitation. In the execution of its task, the court draws upon sentencing principles as it crystallised through case law, one of which is the triad of Zinn.[1]  It postulates that a sentencing court is to have regard to nature of the offense, the personal circumstances of the offender and the public interest.

[4]        Another general tenet is that sentencing is not done in a one-size-fit-all manner, but that each case is to be treated on its own merits. In S v Rabie[2]at 862 G-H it was held that:

 ‘Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances.’

[5]        Both counsel for the accused and counsel for the State made submissions from the bar to assist the court in coming to an appropriate sentence. I proceed to that.  

[6]        The accused is a first offender at the age of 53 years old. He is the father of 3 children, who are still in primary school, and reside with their mother. The accused grew up in Mariental, with his mother, without the presence and guidance of a father figure in his life.

[7]        The accused is a member of the San community in Namibia. Counsel on behalf of the accused drew the court’s attention to the fact that the San group is amongst the most marginalised persons in Namibia and that his client is no exception.  As a child, he has not seen the inside of any school, and thus has no formal education. At the tender age of 19 years, he went to Talismanus to fend for himself. He has been supporting himself and his children, by doing odd jobs as a subsistence labourer amongst the farmers in the area. That was until his arrest on 4 September 2018.

[8]        It was submitted that the accused is remorseful about what happened and would have personally apologized to the family of the deceased, if they had been present at court. I pause to mention that the current COVID-19 travel restrictions posed a challenge to secure the presence of the family member at the court.  Furthermore counsel also argued that the fact that the accused did not run away after the event and that he tendered a guilty plea on the murder charge are indicative of his remorse.

[9]        As to what preceded the event, the plea explanation depicts that both the deceased and the accused consumed alcohol prior to the incident and that the accused was angered by the deceased’s blatant disclosure to him that she deliberately infected him with the HIV/AIDS virus. These parts of the plea explanation were accepted by the State. For the sake of not causing confusion, it is re-iterated that all the elements of the offense of murder, with direct intent, were admitted in the guilty plea.

[10]      The accused’s plea explanation set out the stabbing and cutting of the deceased’s throat in continuous sequence and that death followed immediately thereafter, which the State took issue with.  Evidence was lead on this issue for the purpose of establishing that there was an interval between the stabbing and the cutting of the throat. In addition, the State wanted to prove that certain words of a threatening nature were uttered by the accused, before he committed the act of cutting the deceased’s throat.  This the State established by virtue of their evidence and it forms part of the circumstances of the fatal acts committed by the accused.  

[11]      Undoubtedly, murder is one of the most serious crimes in our midst. It is because of the irrefutable loss of life and the consequences for those who are left behind, which is also a factor in aggravation. Not only is it the parents who are without a daughter but a minor daughter is also deprived of her mother and the accused who acted as her stepfather. The child, for now, has her grandparents. It is not known who will take care of her when her elderly grandparents are no longer there.  In addition, counsel for the State also referred to the financial burden that has been passed on to the grandparents who are struggling to make ends meet.  

[12]      The aggravating facets of this murder are startling. That much is clear from the post-mortem report[3] and the photo-plan of the crime scene,[4] which documents were admitted by consent between the parties. The observations recorded by Dr Kabongo who compiled the post mortem where inter alia that he observed a sectional wound of 11 cm on the anterior neck zone and of both cartid arteries, both internal and external jugular veins and trachea. He also recorded a right posterior chest penetrating stab wound of 2 cm in length on the 7^th intercostal space. Dr Kabongo recorded the cause of death as a result of haemorragic shock due to the neck’s vital structures.

[13]      The sequence of events reveals that the accused was relentless in his drunken rage. He was not satisfied with three stab wounds in the deceased’s back. The time gap when he followed Mr Anab to the neighbour’s house could have been a moment to gather his senses. Instead, it became a launching pad for the horror that followed. In that moment, the accused declared that he will now go and finish her off. True to his word, he then went to execute his horrid promise. Counsel for the State rightfully characterised this graphic cutting of the throat as an act that resembles cutting the throat of a goat. Furthermore the cut to the deceased’s neck was 11 cm in length. This level of brutality is an aggravating factor.

[14]      What further exacerbates the offense is that it occurred in a domestic setting, as the deceased was the girlfriend to the accused. The senseless killing

of women by their partners has become all too regular in our country. This is despite the plethora of cases where-in our courts echoed the seriousness murder perpetrated in a domestic domain. In S v Bohitile[5] Smuts AJ (as he then was) said the following:

‘The prevalence of domestic violence and the compelling interest of society to combat it, evidenced by the recent legislation to the effect, required that domestic violence should be regarded as an aggravating factor when it came to imposing punishment. Sentences imposed in this context, whilst taking into account the personal circumstances of the accused and the crime, should also take into account the important need of society to root out the evil of domestic violence and violence against women. In doing so, these sentences should reflect the determination of courts in Namibia to give effect to and protect the constitutional values of the inviolability of human dignity and equality between men and women. The clear and unequivocal message which should resonate from the courts in Namibia was that crimes involving domestic violence would not be tolerated and that sentences would be appropriately severe.’

[15]      Counsel for the State also emphasised the element of public interest in offenses of this nature by referring to S v Van der Westhuizen[6] where Liebenberg J explained it at para 30: 

‘Turning to the interest of society, there could be no doubt that it would be expected from this court to pay attention to the seriousness of the crime and the preceding circumstances which led to the commission of the offence. In the recent past society has been horrified by the wave of so-called ‘passion killings’ reported in the media virtually on a daily basis where, mostly women engaged in a romantic relationship, are killed at will and the killer thereafter commits suicide or attempts to do so, as in this instance. The present killing and horrific circumstances under which it was committed evoked wide outrage from society and must be accorded a large measure of recognition when sentencing in crimes of this nature. Although the court should guard against satisfying public expectation, it should not close its eyes for what would be in the public interest when sentencing the accused in circumstances where retribution is called for.’

[16]      I fully endorse the sentiments expressed in this regard, as Namibian women are still not safe and are still not spared, not in the bigger towns and not in the rural communities. It is a sad reflection on us that gender based violence infiltrated even the small farming community of Houtsputz in the Gobabis area.

[17]      Counsel for the State submitted that the accused was not remorseful as he did not testify to that effect under oath. He also argued that the guilty plea should not be regarded as remorse as the evidence against the accused left him with no other alternative.  On the other hand, is the accused’s contention that he is remorseful and that he would have personally apologised if the deceased’s family were present in court. It is true that the current travel restrictions in the country deprived him of that. But there was nothing that prevented him from taking the stand and giving testimony to that effect under oath.  Though credit will be given for the guilty plea, it also has to be said that it was not a situation wherein the accused fully took the court into his confidence. That is because the guilty plea was limited insofar as it did not spell out the complete details of his actions. These considerations diminishes the weight of the guilty plea as a mitigating factor to some extent.

[18]      I briefly move to the second count of assault with the intent to do grievous bodily harm, which took place during 2016, approximately two years prior to the murder. It occurred between the same parties. In this instance the deceased was hit by the accused with the blunt side of an axe. Again, the incident was preceded by the consumption of alcohol by the parties. The accused wanted to go home and the deceased refused. For the expression of her will, the deceased was hit with an axe, directed towards her head. This axe, so the witness testified, is one that is ordinarily meant to chop wood. Even though he used the blunt side of the axe, it could have inflicted much greater injury, than the mere swelling and small cut that it caused in this incident.

[19]      Counsel for the accused attempted to tone it down by arguing that it was only a once-off incident, implying that it was not a habitual occurrence.  The court disagrees with counsel for the accused on this point. The deceased’s father attested that whenever the accused and his daughter drink, they would argue. This indicates that the couple had been engaged in the unhealthy cocktail of alcohol, arguments and physical fights. In addition, although it was a single instance of physical violence, it does not diminish the severity and unlawfulness of the act. One act of violence is already one too many. Moreover, this incident of physical violence preceded the murder, which in fact shows that the domestic violence between them was not a once-off incident. If it was, the deceased would have been alive today. In my view, count 2, also calls for direct imprisonment.

[20]      I return to count 1. Though the court is mindful that the accused was provoked by the deceased’s words that she deliberately infected him with a sexually transmitted disease, she did not deserve the cruel death wherein he was first stabbed and her neck was slit, as if she was an animal. The inherent serious nature of the offense, the gravity of the heinous murder plus the societal interest outweigh the factors in mitigation of sentence.  It requires nothing less than a lengthy term of imprisonment.

[21]      The court is also cognisant that the accused was arrested on the date of the murder and has been incarcerated since. Thus, he has been in custody for a period of approximately 2 years.

[22]      When imposing sentences for more than one crime, a court is also to be mindful of the cumulative effect of the sentences. In this regard I consider it appropriate to order that the sentence on count 2 be served concurrently with the sentence on count 1.

[23]      In the result, I find the following sentences appropriate:

Count 1: Murder (direct intent) read with read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 – 32 years’ imprisonment.

Count 2: Assault with the intent to cause grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 – 1 year’ imprisonment

In terms of s 280(2) of Act 51 of 1977 it is ordered that the sentence of count 2 be served concurrently with the sentence imposed on count 1.

__________________

C CLAASEN

JUDGE

APPEARANCES:

STATE:                                M Olivier

Office of the Prosecutor-General,

Windhoek

ACCUSED:                         N B Tjituri

                                            Instructed by Directorate: Legal Aid

Windhoek