CASE
NO.: CC 05/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

IMMANUEL
KASHALA Accused

CORAM: DAMASEB,
JP

Heard
on: 26 October 2005

Delivered
on: 27 October 2005

______________________________________________________________________________

SENTENCE

DAMASEB, JP: Mr.
Immanuel Kashala, I found you guilty of a very serious offence. The
difficult task facing the Court now is to impose a sentence. You
killed a very young lady who was still in the prime of her life. You
have chosen to conceal the motive for your crime; and in that way you
chose not to take the Court in your confidence and in your own words
reveal why you did what you did. It is your right to do so of course,
but that has a bearing on the Court’s ability to carefully examine
your conduct and to arrive at an appropriate measure of sentence.

In sentencing you I must have
regard to what is known as the triad of sentencing: i.e. the
seriousness of the crime, your personal circumstances and the
interests of society.

I must tell you at once that
the crime you committed is a very serious one.

You killed the deceased in the
most brutal way by stabbing her 35 times. It is clear from the proven
facts that you were experiencing some problem with your sexual drive
and held the deceased responsible for that.

The post mortem report tells a
terrible tale of how the deceased died. You were so determined to
kill this woman. Violence against women is on the ascendancy and
shows no sign of abating. Violence against women, and especially in
relationships, is particularly disturbing because women are often not
able to defend themselves against the perpetrators of such violence.
Society therefore expects the Courts to act sternly against those who
engage in violence against women. What aggravates your crime is that
I sense in your conduct the macho impulse to avenge a perceived loss
of sexual drive. You harbored a misplaced sense of grievance against
the deceased for that and arrogated to yourself the right to end her
life, which is the most divine gift of all. That is clear from the
letters you wrote. You clearly are a danger to women and to society
at large. Society needs protection from you. What is more, you have
shown no remorse at all for your crime. It is all very well for those
convicted of crime to ask for mercy, as you have done through your
counsel. A plea for mercy is, in my view, incomplete without remorse.
The two are inseparable companions. Lack of remorse therefore
aggravates your crime.

On the other hand and as
properly submitted by your counsel, the Court should always consider
to blend its sentence with mercy as far as is humanly possible. I
must have regard to your personal circumstances in determining the
proper sentence for your crime. You have decided, as is your right,
not to testify under oath in mitigation of sentence. Your counsel
however referred to your personal circumstances from the Bar: you are
34 years old; you are a young man who has destroyed his future as a
result of his actions: your career as a teacher is certainly over.
You are a first offender and father of an 11 year old girl whose
mother is dead. Although given from the Bar I will accept that to be
the case. The sentence I impose has taken cognizance of that although
you have chosen not to take the Court in your confidence to say in
whose care your daughter is at the moment. Separating you from your
daughter is however inevitable in view of the seriousness of the
crime you have committed.

I have had regard to all the
relevant factors in aggravation and mitigation of sentence. The
rejection by the deceased appears to have affected you and therefore
I will treat that as an extenuating factor. The Court must show a
+perceptive understanding of the accused’s human frailties when
considering possible extenuating circumstances. See S v Sigwala
1967 (4) SA 566(A) at 571 D-E, cited with approval in S v Moses
1996 NR ( SC) 387 at 389 F- G. That extenuating factor and your
personal circumstances have persuaded me, as urged by your counsel,
to give you credit in the sentence I impose for the 2 years and 7
months already spent in prison awaiting trial. Accordingly, I
sentence you to 21 (twenty-one) years imprisonment.

______________

DAMASEB, JP

ON BEHALF OF THE
STATE: Ms IM Nyoni

Instructed By: Office
of the Prosecutor-General

ON BEHALF OF THE
ACCUSED: Ms P. Daringo

Instructed By:
Directorate of Legal Aid

THE
STATE versus IMMANUEL KASHALA

CC
05/2005

Damaseb,
JP

26
October 2005

MURDER

Meaning
of Confession discussed.

“Surrounding
circumstances” may qualify statement as confession.

Accused
convicted of murder

CASE
NO.: CC 05/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THE
STATE

and

IMMANUEL
KASHALA Accused

CORAM: Damaseb,
JP

Heard
on: 17-24 October 2005

Delivered on: 26 October
2005

JUDGMENT

DAMASEB. JP: The
accused is charged with murder. The charge sheet alleges that on or
about the 12^th of March 2003 and at or near the Nurses’
Home of Oshakati State Hospital, the accused unlawfully and
intentionally killed Mirjam Ndakuminina Haindongo, a female person.
The summary of substantial facts reads that on 12^th March
2003, the accused was with the deceased in her room at the Nurses’
Home of the Oshakati Hospital and that during an argument between
them, the deceased wielded a knife and warned the accused to stay
away from her. The accused disarmed her and in doing so sustained a
cut wound on one of his fingers. The accused thereafter assaulted the
deceased by stabbing her thirty-two times¹
(sic) with a number of knives and that the deceased died on the
scene; thereafter the accused stabbed himself three times.

The accused pleaded not guilty
and in his plea explanation in terms of s115²
stated that he has no further admissions to make except those made in
the reply to the State’s pre-trial memorandum³.
It is important that I at this stage refer to the accused’s
pre-trial memorandum as far as it is relevant to the merits of the
mater. It states:

“The
accused will tell the Honourable Court that he did not kill the
deceased. He does not know who killed the deceased. All he recalls is
that on 11 March 2003, he slept with the deceased at the nurses Home
in Oshakati where the deceased, who was his girlfriend was staying.
On the morning of 12 March 2003, the accused person left the room of
the deceased. He left the deceased alone in her room. It was around
07h20 when he left. Shortly after he had left, the deceased then
called him to return to her room. When the accused person got to the
room, the deceased was no longer alone; there was another male adult,
who is not known to the accused. Following an exchange of words, a
struggle ensued, between the unknown male and accused person, during
which the accused person was stabbed with a knife by the unknown
male. He lost consciousness, and only regained it when he found
himself in the hospital.

The
accused will tell the court that at the time he wrote the letters
mentioned in proceedings, he and the deceased had been having
problems in their relationship, and the day he went to sleep at the
room of the deceased, the two managed to resolve their differences.
He will further tell the court that he went to the room of the
deceased after she had called him to come, for purposes of discussing
their problems as a couple. It was when he returned the following
morning that he found her alone with another man.”

Before commencement of the
hearing of oral evidence, the accused made the following admissions
in terms of s 220 of the Criminal Procedure Act: “The accused will
not dispute the identity of the deceased in this matter. The accused
person will not dispute or raise any objections to the fact that any
injuries or such injuries were found on the body. And secondly the
accused person does not dispute that the letters were written by him,
and secondly there is no objection from the accused person on the
photo plan.”

The first witness to be called
by the State was Mrs. Johana Kefas, the magistrate who took down the
alleged confession from the accused in the presence of the official
court interpreter, Helvii Hamukoto. Hamukoto also testified and
confirmed that the accused made a confession to the magistrate in her
presence. I do not intend therefore to separately narrate the
testimony of Hamukoto, and contend myself merely by saying that she
corroborates Kefas in every material particular. Kefas testified that
in the confession she wrote down, the accused told her that he went
to the room of the deceased around 2 am on the 12^th March
2003. He slept in the deceased’s room but they had no sexual
intercourse; and he told the deceased he was still experiencing
erectile problems. The deceased then performed oral sex on him. In
the morning he left to go and study for exams but had to return to
the room of the deceased because he forgot his keys. He found the
deceased still in her room getting ready to go to work. On this
occasion, according to him, they spoke about an alleged boyfriend of
the deceased. A quarrel ensued. The deceased pushed him, he said, and
he fell. He pushed her too and she fell. The deceased then wielded a
knife and told him to stay away from her. He grabbed her and was cut
on the index finger in the process. He said that he then took a knife
from the deceased by force in order to ‘cut her’. The knife
missed and landed on the wall and broke⁴.
He then took a knife out of the pocket of his jeans and stabbed the
deceased once in her back and in the limbs. He said he could not
remember how many times he stabbed the deceased. He realized in the
process the deceased was about to die. He then stabbed himself with a
knife three times on the chest. He was then unconscious and only came
by in hospital whence he was discharged on 18 March 2003.

I had ruled that the statement
made to Kefas by the accused was freely and voluntarily made and thus
admissible. But is the statement a confession? A confession has been
defined as ‘an unqualified acknowledgement of guilt, the
equivalent of a plea of guilty before a court of law’. (R v
Becker 1929 AD 167 at 171; generally see: Hofmann & Zeffert,
The South African Law of Evidence 4^th edn. pp
208-212. The accused’s version during his trial was that (a) he
did not stab the deceased (b) that he does not know who killed the
deceased, and (c) that when he returned to the room of the deceased
later in the morning of the 12^th March, he found a
stranger in the room and that this stranger stabbed him as a result
of which he became unconscious. The statement to Kefas is damning: it
attributes the killing of the deceased to the accused and provides a
motive for the killing without any lawful excuse. The number of
wounds inflicted on the deceased, in my view, negatives any lawful
excuse such as self-defense. If regard is had to the letters written
by the accused before the death of the deceased, it is clear that he
had formed the intention to kill the deceased. The ‘surrounding
circumstances’ therefore point to the statement made to Kefas as
being nothing other than a confession in the sense of an unequivocal
admission of guilt. In my view, therefore, the statement has all the
attributes of a confession. (See: S v Mofokeng 1982 (4) SA 147
(T).)

The next witness to testify was
the pathologist, Dr. Yuri Varin who is the forensic medical officer
of the Namibian Police, Oshakati. The post-mortem findings of the
doctor are not in dispute. He testified that the cause of death was
multiple stabbing: ‘both sides pneumothorox, external bleeding’.
He explained this to mean that the deceased experienced collapsing of
the lungs and entry of air into the thoracic cage. The deceased had
altogether 35 wounds and cuts to her body. 18 of these wounds were
‘penetrating wounds’ to the thoracic cage (the upper portion of
the torso). Of the 18 wounds any single one of them was potentially
fatal, Dr Varin testified. His evidence remains uncontradicted.

The next witness to testify was
one Erastus Haindongo, a brother of the deceased. His evidence really
adds nothing to the State’s case. The only significance of it is
that he confirms finding the accused and deceased in the latter’s
room; both of them appearing to him to be dead. He also testified to
finding a Beretta pistol in the room of the deceased when he came to
remove the property of the deceased from her room on a later date. It
is he who made Ngeama aware of the finding of the pistol.

The next witness for the State
was Severus Ndjombala who was employed as a taxi driver by the
deceased at the material time. His testimony is that very early in
the morning of the 12^th March 2003 ( around 3 am) the
accused came to his abode and awoke him and asked him to go and drop
him at the Nurses’ Home at the Oshakati State Hospital, as the
accused wanted to go and see the deceased. He said that the accused
told him that he had to go and open up the door of the deceased as
someone had locked her in her room and that he had the spare key.
This witness testified that the accused was carrying an Okapi knife;
and that the accused said that he had the knife on him as he had
previously that night to scare off some people who were sitting under
a tree. Ndjombala testified that the accused put the knife in the
pocket of his trouser when he dropped of at the gate of the Nurse’s
home. In cross examination it was put to this witness that he was not
telling the truth about the knife. He was unshaken though and stuck
to the story.

The next witness was Josephine
Naambo Asino who was employed at the material time as a baby-sitter
by a lady who lived in room 6 just next to the room (8) of the
deceased. She testified that she remembers the morning that the
deceased died, although she refers to the 13^th of March.
She must be making an honest mistake as that date was, on the
undisputed facts, the 12^th March 2003. She knew the
deceased. She said that around 9h30 that morning she heard someone
calling out her name. She went out and saw the deceased standing in
her doorway. The deceased was dressed. She saw the deceased being
pulled back into the room. She did not see any other person at the
time. The deceased then asked her to go and call Julia Gerhard, which
she did. She says that the deceased was crying when she saw her.

The next witness for the State
was detective warrant officer Kaino Karen Shiimi.

She is stationed at the
Oshakati Hospital and had previously casually seen the deceased
around the hospital. She was on duty on the 12^th March
2003 when she received a report. She rushed to the Nurses’ home.
She found a female cleaner outside the block of flats where the
deceased lived. This cleaner directed her to the room of the
deceased. She proceeded to the room of the deceased and tried to open
the door but found it was locked. A security officer was by then also
at hand. Shiimi asked him to kick open the door. The security officer
did so. When the door was opened Shiimi says, she saw a female lying
on the floor with the face upwards, and a male lying on the bed. That
was in the room of the deceased. Shiimi testified that she also saw a
knife and a white rope on the floor in the room of the deceased. The
knife had blood stains. She also made a dock identification of a
steak knife with a black handle which she saw in the room of the
deceased. Other police officers then arrived in the meantime. She
testified that the female was naked from the waste down. Shiimi took
a towel to cover her. Her testimony was that the female was in a pool
of blood and appeared dead. She then touched the male lying on the
bed and established that he was still breathing. The male person was
then taken to the hospital. The witness made a dock identification of
the accused as the male person she saw in the room of the deceased on
the 12^th March 2003. She similarly made a dock
identification of a steak knife with a black handle as the one she
saw in the room of the deceased on the fateful day. Shiimi testified
that the reason for asking the security officer to kick-open the door
of the deceased room was because it was locked from the inside. She
says that she at the time peeped through the key-hole and saw that
there was a key inside the key-hole on the inside of the door. During
cross–examination Shiimi stuck to her story. It was put to Shiimi
that there was someone else at the scene that stabbed the accused and
the deceased. Her reply was that she does not know if indeed someone
else stabbed the accused and the deceased, but that the only people
she saw in the room when the door was forced-open on her
instructions, were the accused and the deceased.

The next witness for the State
was Julia Susane Gerhard. She lived in room 8 next to the room of the
deceased. The two rooms are directly opposite each other. She and the
deceased were work-mates. They worked in the same office. She also
knew the accused as the boyfriend of the deceased. She remembers the
12^th of March 2003. She woke up around 06h30 in the
morning to get ready for work. When she opened her door that morning,
she saw the deceased. They greeted each other. A few minutes later,
the deceased approached her again and gave her the office keys.
Shiimi saw the accused in the presence of the deceased that morning
before she went to work. A few hours later, Shiimi received a report
that the deceased wanted her to come to her urgently. This report she
received from Asino. She took off from work and rushed to the room of
the deceased. She heard screams as she approached the room of the
deceased. She found the room of the deceased open. She saw the
accused holding the deceased and stabbing her with a knife. She says
she looked right into the eyes of the accused as he was stabbing the
deceased. She testified that she was very much shocked by what she
saw and ran away to summon help. She found someone but he was not
interested to assist. She then ran to her place of work to seek help.
She went to make a phone call for help at the general stores, and
returned to the room of the deceased. Police officers arrived in the
meantime.

Shiimi testified that she knew
the accused well and that he had even once confided in her about his
problems with the deceased and she counseled him over the problem.
The accused said to her that the deceased no longer loved him. She
told him on that occasion to accept the reality. Shiimi testified
that it was not possible for a human being to gain entry or exit
through the window of the deceased’s room.

Under cross-examination Shiimi
testified that the door of the deceased’s room was not a
self-locking door. Nothing of note emerged during cross-examination,
and Shiimi stuck to the essence of her story.

The next witness for the State
was Sgt Elia Ngeama of the Namibian Police, Oshakati. He is the
investigating officer in the case. In the morning of 12 March 2003,
he rushed to Oshakati Nurses’ Home upon receiving a report. He got
to the scene of crime and found the deceased in the room; dead. There
were a lot of people outside the block of flats where the deceased
lived. He then called the scene of crime officers.

At the scene of the crime he
found knifes: two on the bed; and two on the floor. One was an Okapi
pocket knife. One kitchen knife was broken. The knifes were covered
in blood. Ngeama then removed the knifes as exhibits and made a dock
identification of them in Court. Ngeama took the corpse (deceased) to
the mortuary. Upon receiving information from Haindongo a few days
after the death of the deceased, Ngeama went back to the room of the
deceased to retrieve a Beretta pistol which he also made a dock
identification of in Court. He said when he saw the pistol, it was
covered in blood, and that he was unable to recover fingerprints from
the pistol. He, however, established as part of his investigation
that it was a pistol which had previously been stolen from another
person. As part of the investigation into the death of the deceased
Ngeama went to the room of the accused and found 7 letters on his
bed.

Ngeama testified that the jeans
trouser found in the room of the deceased belonged to the accused
because he found accused’s wallet in the trouser. He testified that
upon being charged, the accused told him that the pocket knife found
in the deceased’s room was his. The accused, when Ngeama confronted
him about the 7 letters, admitted to have written them. (The letters
were then admitted in evidence and appear in the schedule to this
judgment – the relevant portions appropriately highlighted).

When confronted in
cross-examination with the suggestion that the accused’s case is
that the letters had nothing to do with the present case, Ngeama
testified that he considered the letters as suicide notes.

When confronted in
cross-examination with the suggestion that the jeans trouser found in
the room of the deceased did not belong to the accused, Ngeama
persisted that it did and added that when he handed the jeans back to
the accused, he took it back as his property. In the trouser there
was also a wallet which the accused took as his property. At no stage
did the accused, Ngeama testified, state that those items did not
belong to him.

Under further
cross-examination, Ngeama testified that at no stage during the
investigation did the accused ever say to him that there was someone
else in the room of the deceased on 12 March 2003, and that this
person stabbed him and the deceased.

The next witness led by the
State, another Magistrate of Oshakati, Mrs. Helena Ekandjo, and the
official court interpreter, Helvii Hamukoto, were called to testify
about the circumstances in which the s 119 statement was taken
during which the accused is recorded as having said:

“I
am not guilty because it was the deceased who stabbed me first. She
was trying to kill me first.”

The gist of the evidence of
Ekandjo and Hamukoto is that during the s119 proceedings the accused
preferred to speak English and indeed uttered the words being
attributed to him. The accused’s counsel put it to them that the
accused in fact said that it was not him who stabbed the deceased and
that she was stabbed by a friend of hers; the same person who stabbed
the accused. The accused’s counsel further suggested that the
accused was not given the choice to speak in a language of his choice
and that he did not follow the proceedings as these were conducted in
English.

The two witnesses testified
that during the s119 proceedings the accused spoke in English, by
choice. From their evidence it is not clear if he was aware of the
presence of Hamukoto in the courtroom and that she could assist him
with translation if that were necessary. I must assume therefore that
he was not aware of the reason for Hamukoto’s presence in court. I
will further assume that he was not offered the opportunity to choose
a language of his choice for the conduct of the s119 proceedings.

The difficulty I have is what
prejudice the accused suffered as a result of the proceedings being
conducted in English? He speaks English and in fact taught in that
language as a teacher. He was at the time pursuing even more advanced
courses in teaching (in fact a Bachelors’ degree) conducted in the
English language. He in fact indicated during the s 119proceedings
that he would prefer the proceedings in the High Court to be
conducted in English. I see no prejudice that the accused suffered as
a result of the s119 proceedings being conducted in English. Be that
as it may, and in the view that I take of the matter overall, I do
not find it necessary to dwell at any length with the admissibility
of the s119 proceedings. I will assume that the accused said what he
says he said in the s119 proceedings, i.e. that it was not he who
stabbed the deceased but someone else.

At the end of the State’s
case the accused testified on his own behalf. He called no other
witnesses. His testimony is that he and the deceased had a
relationship. He stated that in the evening of the 11^th
March 2003, he was called by the deceased to her room. She wanted him
to come and open her as her door was locked. He had a spare key to
the room. He says he arrived there at around 22h00 pm. He slept
there for the night, he testified. They woke up in the morning. He
remembers seeing Julia Gerhard that morning in the passage of the
flat. He then left and as he was about to reach home, was called back
by the deceased on his mobile phone. He returned and found the
deceased in the room with another man. He does not know this man. (He
does not quite explain the reason for the deceased calling him back).
This man then asked him if he was still in love with the deceased and
if he slept in her room the previous night. He appeared to have
answered in the affirmative. The man then produced a firearm and the
two struggled over it. He testified that the deceased had gone out of
the room at the time. He says that while they were wrestling over the
gun with this stranger, he was stabbed several times on his body with
a knife. He testified that he thereupon lost consciousness and only
remembers coming by in hospital.

The accused admitted that he
was dropped by Ndjombala (the taxi driver) at the gate of the
hospital, but denies the story about the knife completely. He says
that Ndjombala must have mistaken the cell-phone he had, for a knife.
He also denied that Gerhard saw him stabbing the deceased, although
he could think of no productive purpose why Gerhard would lie against
him. He denies that the pocket knife found in the room of the
deceased was his. He also denied that the Bereta pistol was his. He
testified that at the material time he and the deceased were still
involved as lovers.

The accused also denied that he
ever confided his relationship problems with the deceased, to
Gerhard. He testified that all he said to her was that it was being
alleged that he had impregnated another lady, and that the deceased
was unhappy because of that. The accused was also asked to explain
the letters , considered by Ngeama to be suicide notes, and in
respect of which I am being urged by the State to draw the conclusion
that they were indeed suicide notes, prepared by the accused in
contemplation of taking the life of the deceased and then his own. If
I am able to do justice to the accused, his explanation of the
letters seems to be the following: firstly, the letters have nothing
to do with the present allegations of murder against him. He cant
remember when exactly he wrote the letters. The letters were
addressed to himself, expressing his problems through writing them.
He was, in the letters, comparing his problems at work and wanted to
use them in an examination he was going to write. (Kind of revision
notes it seems.) The “Meriam” referred to in the letters is a
reference to the deceased. When asked in-chief why he refers to the
deceased in the letters, he testified that it was because he had a
problem with her. In respect of letter 2 he was adamant that it was
not written on the 3^rd March 2003, but was intended to
refer to 3^rd March 2012. He also said something about
using that futuristic date to teach children about the future. As
regards the confession, he testified that the contents therein do not
reflect the true state of affairs and that he made it just after his
discharge from hospital and that, being still confused and unwell, he
just mentioned anything that occurred to him. The accused was very
evasive under cross-examination. He pretty much repeated in
cross-examination the answers he gave about the letters he wrote. He
admitted that he in fact approached Gerhard about the problems he was
experiencing with the deceased at some point, but that he did not go
to Gerard to help him solve the problem. He conceded in
cross-examination that Gerhard and he confided in each other. He even
stated that he once watched TV with Gerhard in her room in the
presence of her children. He was then asked to identify the person he
says stabbed him in the room of the deceased and really made a very
poor impression in dealing with that question. Similarly, he made a
very poor impression when asked whether he could ever mistake Gerhard
for another person; even suggesting that people are identical and
that he could even mistake his own child for someone else. He again
refuted the version of Ndjombala (the taxi driver) about the knife
and the time, but could not offer any reason why Ndjombala would seek
to incriminate him. He was adamant that when he wrote the letters he
and the deceased had patched up their differences.

The accused was given ample
opportunity to explain how the person who stabbed him and the
deceased could possibly have escaped if the room was locked from the
inside and no-one could exit through the window. He offered no
explanation and evaded the issue. He was also afforded the
opportunity to explain whether the confession to the magistrate was
made because he was forced by Ngeama to make the same, or whether he
said those things because he was unwell and confused and said
anything that occurred to him. He was also very evasive on the issue
and the court finds itself with no real explanation from him of the
circumstances and reasons why the statement was made.

The accused further testified
that he and the deceased had been to see an ‘herbalist’ (probably
a witch-doctor) to help them resolve the concerns the deceased had
about him impregnating another lady.

That was the case for the
defense.

The accused admitted he was in
the room of the deceased on the morning of the 12^th March
2003. The accused admitted to writing the letters. The letters are
indeed chilling and speak volumes about the state of mind of the
accused person around the time of the death of the deceased . I do
not find it necessary to analyze each of the letters. I have
highlighted the important portions of each of the letters for
emphasis. The letters really speak for themselves. It is in relation
to the letters that I had some of the most implausible explanations
ever given in a Court of law. It was extremely difficult to
understand what exactly the accused’s motivation was for writing
the letters. If I understood him at well, he seemed to suggest that
the letters were written by him as some kind of preparation for a
forthcoming examination; that they were written as an example of
problems that he experienced at work; and that they were intended to
be used as examples for lessons to be given by him to his students.

The accused said letter 2
marked “03.03.12 Wednesday” was not written on 12^th
March 2003. Although he could not remember when the letter was in
fact written, his explanation was that the date he referred to was a
future date in the year 2012. He was unable to explain why he had to
refer to a future date, which just happened to be the day of the week
on which 13 March 2003 fell. The accused’s explanations cannot be
reasonably possibly true. I reject it. I accept that it has been
established beyond reasonable doubt that the accused wrote that
letter on the day of the deceased’s death. He wrote that letter
before he went to the room of the deceased. That letter, together
with all the others, was written by the accused in contemplation of
the assault by him on the deceased. He intended to kill her, and then
himself. The letters were intended as a suicide note. The accused
clearly resolved to kill the deceased and then himself and set about
on the 12 March 2003 to put that plan into effect. They way the
letters were left on his bed (in a way that they could be easily
found) strengthens the view that they were intended as suicide notes
to be retrieved by his family or close associates and to provide an
explanation why he killed the deceased and then took his life. The
fact that in letter 5 he refers to his own “biography” and in
letter 7 about Meriam as if she does not exit clearly shows that he
had had the intention to kill the deceased and then himself. Ngeama’s
evidence was very telling of how he found the letters. That story of
Ngeama had never really been disputed.

The accused person’s version
that someone else was in the room of the deceased in the morning 12
March 2003 and stabbed him, and possibly the deceased, is a figment
of his imagination. The incontrovertible evidence of the State is
that the room of the deceased in which the deceased and the accused
were found, was locked from the inside when the deceased and the
accused were found by witness Shiimi. Although afforded ample
opportunity to explain how he and the deceased could be found in a
room locked from the inside without any opportunity of exit by a
third person from the window of the room of the deceased, the accused
was unable to give any explanation that could displace the version of
the State that there was no one else but the deceased and the accused
in that room that morning and that he (the accused) inflicted the
fatal wounds on the deceased. The statement by the accused to the
magistrate, which this Court already held to be admissible,
corroborates the version offered by the State witness Julia Gerard to
the effect that she found the accused holding the deceased and
stabbing the body of the deceased.

The only witness, whose
testimony places the accused at the scene of the crime and flagrante
delicto, and with the motive for the crime, is Gerard. As the
narrative shows, she says she saw the accused stab the deceased with
a knife around the area of the neck. She also testified that prior
to this incident of the 12^th March 2003, the accused had
confided in her that his relationship with the deceased was not going
well. She says she counseled him about that. It shows that the
accused was experiencing rejection by the deceased before her death.
Shiimi testified that she knows the accused well and could not have
mistaken him for someone else. In fact, she was very positive that
she saw the accused in the morning of 12^th March 2003
together with the deceased around the area of room 8; being the room
of the deceased. The accused and the deceased were together. That
much is confirmed by the evidence of the accused.

I accept that Shiimi is a
single witness as to the actual stabbing of the deceased by the
accused. I must treat her evidence with caution for that reason. (S
v Esterhuizen and Another 1990 NR 283 at 287 I – J et 288 A
–C). I am entitled to convict on the evidence of a single witness
if the evidence of the single witness is reliable and that the danger
of relying thereon is removed by other evidence led at the trial
which, beyond reasonable doubt, points to the guilt of the accused.
The accused’s version is that he did not kill the deceased. He
says someone else did, and that very person, on his version, not only
inflicted the fatal stab wounds on the deceased, but also stabbed the
accused. The admissions made by the accused in the presence of the
magistrate and Helvii Hamukoto stand in direct conflict with this
version of the accused. I had held that those admissions were freely
and voluntarily made. They therefore corroborate the version of
Shiimi that she saw the accused in the act of stabbing the deceased.
The accused was less than frank with the Court in many respects. He
denied that he had a knife with him the early morning of 12^th
March 2003 when the taxi driver went to drop him at the hospital.
The taxi driver insisted that the accused had an Okapi pocket knife
when he dropped him. A bloody Okapi pocket knife was found in the
room of the deceased by Ngeama and the probabilities are overwhelming
that it was one the knifes used to stab the deceased. The accused
denied that the Okapi knife belonged to him. Ngeama testified under
cross-examination that the accused owned up to the knife. Ngeama slso
found a broken kitchen knife in the room of the deceased. It is
really only a coincidence that in the confession the accused refers
to a broken knife? I think not. The version of the taxi driver that
the accused had a knife when he dropped him at the hospital is
corroborated by Ngeama. The accused is therefore telling a lie when
he says he never had a knife when he went to the room of the
deceased. The accused also denied that a male’s jeans trouser found
in the room of the deceased belonged to him. Yet, the unimpeached
evidence of Ngeama is that the jeans belonged to the accused. He
says so because the deceased admitted the jeans belongs to him and a
wallet which belongs to the accused was in it. According to Ngeama,
the accused took both the jeans and the wallet which was in it. (All
this was elicited from Ngeama in cross-examination.) The lies told
by the accused, in my view, are not explicable on any other basis
than that he wished to conceal what actually happened in the room of
the deceased in the morning of the 12^th March 2003. Such
lies go to strengthen the case of the prosecution that the accused,
with intent to kill the deceased, inflicted 35 wounds and cuts on the
body of the deceased in the morning of 12 March 2003, and that those
wounds and cuts caused the death of the deceased. That the accused
had the necessary intention to kill the deceased cannot be in doubt.
He inflicted 35 wounds and cuts on the body of the deceased. As Dr
Varin testified, 18 of these wounds were potentially fatal and anyone
of the 18 wounds could, by itself, have caused the death of the
deceased. That evidence is uncontroverted. The accused therefore
had the direct intent to kill the deceased.

Immanuel Kashala, I am
satisfied that the State has proved the charge of murder against you
and I convict you accordingly.

_______________

DAMASEB, JP

ON BEHALF OF THE STATE:
Ms IM Nyoni

Instructed By: Office
of the Prosecutor-General

ON BEHLAF OF THE
ACCUSED: Ms P. Daringo

Instructed By:
Directorate of Legal Aid

SCHEDULE OF LETTERS

Letter
1 (Undated)

“A
letter of apologies

I
would like to inform you that I did one of the mistake in your life.
Is said these from the bottom of my heart that Meriam I am sorry
because what I did to you is a character assassination and
deterioration of humanity. You were so kind and one whom I come to
know these days.”

Letter
2

“03.03.12
Wednesday

To
my parents

Sorry
for losing control, myself as from 21 February I notice a problem
with my “Manhood” (Penis) as it was not erecting. That day I
was told by Meriam to leave her room and then I went to sleep at
my friends at Oneshila, Foibe and Lucia. Luscia working at Namilk
near Oneshila Service. I told them my problems. Early in the morning
I woke up and I went back to Meriam. When I talked to her I told her
my problems.

Up
to now that I have lost my manhood and it is not erecting. Even if
you have notice very well in the evening before supper when I was
on the phone I was quarreling with Meriam Haindongo, asking her to
bring my manhood, if she does not want me to beat her.

Since
the 21 February up to the night of 11 March I am not very well at
all.

Meriam
said that she left me and I have accepted it, but I told her to bring
my manhood back before the 14 March. If the date comes and she
has not done it, I will let her see when we are going in to
one car on our way to Wandingoya’s village. How can you be with
impotent manhood while the person who has it is just quite, there is
not such a thing not at all.

From

IK
Kashala”

“Letter
3 (Undated)

Myself
I went to Meriam to ask her to return my manhood (penis) and if she
has not done that than that is what had happen. My life cover
contract of Old Mutual is at Standard Bank Oshakati because of a
study loan of Kapueya if you want to collect it ask Salome.

And
Meriam has my money N$3000.00 which I assisted her when she was
building her room at their house ask for it.

My
self I do not owe any person except N$500.00 of Nepela and N$1000.00
of Walde Kashala. Kapandu’s grandmother is owing me N$1000.00 ask
for it. The Old Mutual contracts which are here are of no use I
cancelled them. My car belongs to Kapueya and he must take car of
Ndapandula.”

Letter
4 (Undated)

“To
my colleague

I
am so sorry to departure from you unexpected for more details
Meme Laim Shilongo will tell you a little bit I did told her that I
do have a problem of my penis not erect I am so sorry meme by telling
you the story even I hide the main point.”

Letter
5 (Undated)

“By
biography

Myself
I do not have any honesty in my words say if some one really examine
me very well. What brought me in this situation is because I like
women very much and it seems they are the ones to course my down
fall. Do not leave to mention it in my biography please.’”

Letter
6 (Undated)

“My
bed and wardrobe is for Ndapandula the bricks which are there add
to the others which are at Kashala and build for my mother a
corrugated sheet dwelling with 2 rooms. The one room is for
Ndapandula my first born.

Take
care Tiyopo Naukosho, your namesake as well.

Myself,
this problem of mine I only told Lucia and Shetu my friend who’s
working at Windhoek his phone is this: 0812537721 he has been
encouraging me but it did not work. I also went to Social
Welfare to Natasha for counseling but it did not work I even told Dr
Shivute about the problem that I have but it did not work. I also
went to Professor Amaambo and he said I must go to room number 22
where my health passport is, the one which is in use.”

Letter
7 (Undated)

“Nepela
my friend that’s it. You use to tell me about my sex drive but it
seems I did not listen. My friend take those quotation and buy a
pounding machine, the small pounding machine is yours.

Mother
I am sorry for breaking your heart Rachel also did not wanted to be
given sympathies during the death of her children.

Rauna
is my beneficiary in my contracts help me some of the money and
give it to mom for her to look after Ndapangula and you
Ndapandula, orphan you no longer have a father. Study your
father was teacher.”