CASE
NO.: CC 06/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

GISELINDE
PAULUS SHATIWA Accused

CORAM: DAMASEB,
JP

Heard
on: 19 April 2006

Delivered
on: 19 April 2006

______________________________________________________________________________

SENTENCE

DAMASEB, JP:
Giselinde Shatiwa: You caused the death of your husband negligently.
I must now pass sentence on you. Violence in the home has become a
serious problem in our society. When it results in death it is even
more objectionable. Society expects of the Courts, therefore,
through the sentences they impose, to discourage this evil. The
violence you perpetrated was unnecessary and I do not want you, or
others, to gain the impression that it is acceptable.

You are a first offender and
quite advanced in age. You are the sole provider of a 17 year old
school-going child. You have shown genuine remorse for your
irresponsible behaviour in causing the death of the man towards whom
you entertained deep affection from what I was able to establish from
your evidence and demeanor in Court. You already spent about 3
months awaiting trial before you were let out on bail. I have also
carefully considered your other mitigating circumstances although I
do not propose to enumerate each one of them. They have all
influenced me in arriving at a sentence in this case. A retributive
sentence is therefore not what I have in mind in your case. I cannot
think of any productive purpose to be achieved by society in sending
you to prison. I accept that you have endured great emotional pain
as a consequence of what you did. For the remainder of your natural
life you will have to live with the thought that you caused the death
of your husband.

Your case calls out for mercy.
I have considered the submissions of both counsel that I consider
imposing community service. I do not know how that will affect your
affairs at home and, especially, the care you must provide to the
youngest child whilst also attending to domestic chores. I do not
propose therefore to impose community service. I have concluded that
a suspended sentence will serve as a sufficient deterrence to you.

I sentence you to 5 years
imprisonment wholly suspended for 3 years on condition that you are
not convicted of the offence of murder, culpable homicide or assault
with intent to cause grievous bodily harm during the period of
suspension.

______________

DAMASEB, JP

ON BEHALF OF THE
STATE: Ms S Miller

Instructed By: Office
of the Prosecutor-General

ON BEHALF OF THE
ACCUSED: Ms H Hitula

Instructed By:
Directorate of Legal Aid

CASE
NO.: CC 06/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THE
STATE

and

GISELINDE
PAULUS SHATIWA Accused

CORAM: Damaseb,
JP

Heard
on: 18 April 2006

Delivered on: 19 April
2006

JUDGMENT

DAMASEB. JP: [1]
The accused, an unsophisticated adult female, faces a single count
of murder. She is accused of intentionally causing the death of her
husband who was 72 years old at the time she is alleged to have
killed him. She was 63 years old at the time of the incident and the
duo had been married for 35 years. The charge reads as follows:

“[O]n or about 6
June 2005 and at or near Oshikulufitu in the district of Ombalantu
the accused did wrongfully, unlawfully and intentionally kill Tobias
Nashapi, an adult male human being”.

[2] In her plea in terms of
s112(2) of the CPA¹,
the accused, inter alia, states the following:

“I plea not
guilty to the charge of murder as aforesaid however I tender a plea
of guilty to the offence of assault with intent to do grievous bodily
harm and I admit the following:

I admit that on or
about the 6^th of June 2005, and at or near Oshikulufitu in
the district of Ombalantu I wrongfully and unlawfully and
intentionally assaulted Tobias Nashapi an adult male human being, by
hitting with a saw on the ankle of the right leg.

I admit that I
intended to cause the said Tobias Nashapi grievous bodily harm
alternatively that I was negligent and I foresaw that my action could
cause grievous bodily harm to Tobias Nashapi.

My aforesaid
actions were brought about by a quarrel between the late Tobias
Nashapi’s who is my husband and I where I indicated to him that I
was concerned about his coming home late on a constant basis and we
thereafter started quarreling.

I admit that as a
result of the aforesaid assault a serious wound was inflicted on the
right ankle of the said Tobias Nashapi.

I admit that the
said Tobias Nashapi died as a result of the wound so inflicted and I
further admit that the body of Tobias Nashapi did not suffer further
injuries whilst being transported to the mortuary.

I admit that in
assaulting the said Tobias Nashapi I caused him grievous bodily harm
however I admit that I did not intend to kill nor to cause the death
of the said Tobias Nashapi.

I submit that the
aforesaid admissions may be recorded as formal admissions in terms of
Section 220 of the Criminal Procedure Act 51 of 1977.” (sic)

[3] The medical evidence, led
through Dr Yuri Vasin, is that the deceased died of a 50mm wound
inflicted with a sharp object to the ankle of the right foot. The
wound resulted in excessive blood loss. According to the
pathologist, without immediate medical attention death would result
from such a wound within a ½ hour to an hour. The pathologist
did not rule out the possibility that the deceased’s life may well
have been saved if he received immediate medical attention.

[4] The only issue in this case
is whether the accused intended to cause the death of her husband.
Mrs Miller for the State submits that the State does not rely on
dolus diretus but on dolus eventualis. There is no
eye-witness to the admitted assault on the deceased.

[5] On 7^th June
2005, the accused gave a warning statement at the Outapi Police
Station. This was, by agreement, read into the record and received
as evidence. In it the accused stated that the deceased had left
home on 5^th June 2005 to see a female person by the name
of Johanna Kaluwapo. He did not return that day. When he had not
returned by the morning of the next day, she went in search for him
and met him on the way coming home. She later joined up with him in
his room and demanded to know where he slept the previous night. He
told her he slept at Johanna’s house. She addeds in the statement:

“I … entered
in his room and found him sitting on a bed with a panga on his right
hand … I took out the panga from his hand and threw it outside the
room as well as the axe which was in the room, I threw it outside.

…

I took a saw and
beat him on his right foot three times, I only came to see him
bleeding on the foot. I did this to him … to let him stay in the
house and to learn him a lesson not to sleep at other houses. I
decided to go to the kitchen but he followed me, I told him to stay …
I went to boil the water in a kettle put a bit of salt and came to
him, I took a cloth, put it in a boiled water and I used it to stop
the bleeding. But the bleeding doesn’t want to stop.” (sic)

[6] The State called two
witnesses in addition to the pathologist. The first was the
investigating officer: constable Marcellus Mwanyangapo of Outapi
Nampol. He went to the scene on the day of the incident, met the
accused who confirmed the stabbing and retrieved the saw, 25cm in
length and 10cm in width, with a sharp iron blade, used in the
commission of the offence. The saw was received in evidence. He
also identified the deceased’s body. He testified that the accused
told him that she ‘killed’ the husband by cutting him with a saw.
He was not cross-examined.

[7] The next witness was
Anna-Liese Bendeka. She is a neighbour of the accused. On the
fateful day, she testified, the accused came to her and asked her if
she could call the police as she had ‘killed’ her husband. The
witness could not assist as she had no ‘credit’ to make the call,
presumably from her cellphone. Nothing worthy of specific mention
emerged during cross-examination of her.

[8] I refused an application
for discharge in terms of s174 of the CPA as I thought that the State
had established that a) the assault had taken place with a
potentially dangerous weapon, raising the inference that the accused
intended the consequences of her action and that b) her explanation
of her state of mind at the time would be crucial in determining
whether or not she had the requisite intent to commit murder.

[9] The accused testified
under oath on her own behalf. She pretty much repeated under oath
what she said in her warning statement. In her viva voce
evidence under oath, she went a little bit further: she said that
when the deceased returned on the 6^th June 2006, she went
to his room to quarrel about the fact that he squandered the pension
moneys belonging to both of them on women and drink. She also added
that as she hit the deceased with the saw, she said: “These feet
will bring you trouble” or words to that effect. She confirmed
that upon realizing that the husband had died she raised the alarm
and stated to those to whom she had run, it appears for help, that
she killed her husband. It emerged during cross-examination that not
all was rosy in the marriage of the duo: the deceased had
extra-marital affairs (and this did not please the accused) and he
had previously assaulted her; in one instance, it appears, with the
help of a lover. In the way the State’s case was presented,
nothing turns on this though.

[10] The accused persisted
that when she hit the deceased with the saw, her intention was not to
kill. As she put it: “That is why I hit him on the foot. It is
only when God looked the other way that this caused his death.”
(Or words to that effect). She stated under further
cross-examination that she thought that the saw was less dangerous
than the panga or the axe. She conceded that in the latter years of
his life the deceased needed to support himself with a walking stick
and had some malaise in the left leg and walked with an uneasy gait.
It seems, from the evidence, that this was attributable to him being
hit by a train. I got the impression of a frail 72 year old man at
the time this incident happened.

[11] Under further
cross-examination, the accused testified that the saw she used
against her husband was normally used by him on “trees”. As it
was translated “to cut off (presumably saw off) branches of trees”;
and that, for that reason, the saw would be more dangerous and
harmful if used on humans. She was quick to add, however, that she
did not realize (or know) the saw would kill and that she was
surprised that her husband died from its use on him. She also
conceded that the saw was not the kind of object she would have left
her children to play with when they were growing up.

[12] I must point out at once,
apropos the comparison drawn in cross-examination between the
effect of the use of the saw on a tree and the effect of its use on
humans, that the evidence does not come anywhere close to suggesting
that the saw was used on the deceased in a fashion comparable to its
use on trees.

[13] To convict the accused of
murder on the basis of dolus eventualis, I must be satisfied,
beyond reasonable doubt, that when she inflicted the wound to the
deceased’s foot with the saw she:

1. 
   foresaw the possibility of the
   husband dying from that assault; and

   
   

2. 
   reconciled herself to that
   possibility.

   
   

[14] The test as to her
relevant mental state, is subjective, although the subjective mental
state may be inferred from the objective facts proved by the State.

(Generally, See C R Snyman
“Criminal Law” (4^th edn) p. 423)

Is this a case where I can
infer dolus eventualis from the proven objective facts?

[15] The weapon used in the
assault is no doubt a dangerous one. It was produced in Court and I
have already described its features. The accused was quite aware
that it could cause serious harm. In her admissions she actually
says so. She testified that she only wanted to inflict harm to his
foot so that he does not walk around and sleep at other people’s
homes.

[16] What troubles me in this
case is the way the weapon was used – which points to me more to
the conclusion that the accused’s dominant motive,
throughout, was to teach the deceased a lesson only that he will
remember in future. Why did she aim at the foot and not at his head
or neck, for example? Could the axe or the panga not have been used
to more deadlier effect? Why did she in fact first throw away those
2 weapons which so readily were available for use? She says that she
did not use the axe, or the panga, because either of those could
cause death. The test of her mental state is a subjective one, and
is not to be measured by the standards of a reasonable person. I am
not satisfied, beyond reasonable doubt, that the accused intended to
cause harm to the deceased foreseeing that death may result yet
reconciled herself to that risk. Her conduct subsequent to the
assault strengthens this conclusion. She went to boil water, added
salt to it and, using a cloth, attempted to stop the bleeding. She
raised the alarm and was quite candid about happened. She testified
to being shocked by the result that ensued. The charge of murder
cannot therefore be sustained by the proven objective facts.

[17] The accused offered a
plea of guilty in respect of assault with intention to cause grievous
bodily harm. The State rejects it and submits that at the very
least, the evidence establishes a crime of culpable homicide,
which is a competent verdict on a charge of murder.

[18] In answer to a question
from the Court, the accused said that she used a saw, instead of the
knob-kierie, because she thought it was more dangerous than the saw.
I find this difficult to accept and reject it as reasonably possibly
true. In order to convict the accused of culpable homicide,
the unlawful killing must be accompanied by negligence, which is
established if:

1. 
   the reasonable person in the
   same circumstances would have foreseen the possibility of her
   conduct causing death;

   
   

2. 
   that a reasonable person would
   have taken steps to guard against the possibility of death; and

   
   

3. 
   her conduct differed from the
   conduct expected of the reasonable person.

   
   

The test is an objective one.
(See: Snyman op cit p.209)

[19] In my view any reasonable
person would have foreseen that an injury which inflicts pain of the
nature which forces the victim not the walk around can be
life-threatening. A reasonable person who only wants to teach
another a lesson would, in the circumstances of this case, have used
the knob-kierie or some other less dangerous weapon to inflict pain,
and in this way guard against the possibility of death: in that
respect the conduct of the accused deviated from that of a reasonable
person such as one would find in Oshikulufitu village.

[20] Accordingly;

The accused is acquitted on the
charge of murder; but is convicted on the competent verdict of
culpable homicide in respect of her husband Tobias Nashapi, an adult
human being.

_______________

DAMASEB, JP

ON BEHALF OF THE STATE:
Ms S Miller

Instructed By: Office
of the Prosecutor-General

ON BEHLAF OF THE
ACCUSED: Ms H Hitula

Instructed By:
Directorate of Legal Aid