NO. CC 17/2006
THE HIGH COURT OF NAMIBIA
the matter between:
J.P.:  Madhimbilo Tjatendela, I found you guilty of
murder with direct intent to kill a woman with a three year old baby.
I think you are a scoundral of the worst kind imaginable. You
intentionally killed a woman carrying a three year old baby on her
back. She probably felt safe in your company, and you left a
helpless and innocent child for dead in the bush late at night. You
represent a very serious threat to society, Mr Tjatendela.
were also prepared to take the risk of playing an elaborate hoax on
this Court. First admitting to strangling the deceased, although you
gave an explanation for it, but completely disowning that when you
came to testify on your own behalf. Even the warning that whatever
you said was captured on tape and can be played back to confirm what
you said in this Court, did not even deter you. That you can tell a
lie to get yourself out of trouble is therefore a moot point. Your
conduct shows utter contempt for this Court and its dignity, and you
have not shown any remorse for your actions. Instead, you decided to
mislead the Court in a vain attempt to safe your skin.
do have regard for your personal circumstances. You are a first
offender, and a man of very low social status. You have had no
formal education. You are thirty years old, married with three kids,
the youngest of whom is three years old. These kids don’t go to
school. Your wife is unemployed. You have been in custody since
arrest. Your conduct in this case, however, is such that I must
impose a retributive sentence on you to keep you away from society
for a very long time.
accordingly sentence you to 38 years imprisonment.
BEHALF OF THE STATE Ms Miller
by: Office of the Prosecutor-General
BEHALF OF THE ACCUSED Ms Kishi
by: Directorat of Legal Aid
CASE NO. CC 17/2006
IN THE HIGH
COURT OF NAMIBIA
In the matter between:
CORAM: DAMASEB, J.P.
Heard on: 2006.05.11
Delivered on: 2006.05.11
DAMASEB, J.P.:  The
accused stands charged with three counts. Count one: murder. Count
two: rape and, count three: attempted murder.
 Count one: that on or about
the 9th of October 2005 and at or near Oshanaputa village
in the district of Outapi, the accused did wrongfully, unlawfully and
intentionally kill Eunike Tjitana, a female person. Count two: on or
about 9 October 2005 and at or near Oshanaputa village in the
district of Outapi, the accused hereinafter
called the perpetrator, did
wrongfully, unlawfully and intentionally commit or continue to commit
a sexual act with Eunike Tjitana, hereinafter called the complainant,
by inserting his penis into the vagina of the complainant while
applying physical force, and or threatening to kill the complainant.
Count three: that on or about the 9th of October 2005 and
at or near Oshanaputa village in the district of Outapi, the accused
did wrongfully, unlawfully and intentionally assault Erastus Shikongo
and strangled him with intent to murder him.
 The accused hails from
Oshanaputa village in the district of Outapi in the northern part of
Namibia. His native tongue is Otjizemba. Before commencing
proceedings, I satisfied myself that he also understands the
Otjiherero language, which has the same roots as his native tongue.
When thus satisfied, the proceedings commenced and throughout the
proceedings were interpreted for him in the Otjiherero language and I
was satisfied that he followed the proceedings fully.
 When called upon to plead,
speaking through the interpreter, the accused pleaded as follows:
Guilty on count one, which is murder, and not guilty on counts two
and three. And in the plea explanation in terms of s 112, in regard
to the guilty plea, he said that
he strangled the deceased
person because she forced him to have sexual intercourse with her,
and that he did not wish to do so because he was working for the
husband of the deceased. In the event, I entered pleas of not guilty
in respect of counts one to three.
 The first witness to
testify was Dr Aneline Hatutale. The high watermark of this
witness’s testimony is that the minor child, who is the subject of
the indictment, in respect of count three, had several scratch marks
on both sides of the neck. Scratches which, in her opinion, could
have been caused by a rough object such as a robe or a cord. She did
not exclude the possibility that those scratches could have been
caused by human nails.
 The next witness was the
investigating officer, Sergeant Erastus Uunona of the Outapi police.
He was the one who reported at the crime scene with a colleague. The
date was given to be about the 10th of October; and he
arrived at the scene at about 09:30 in the morning. At the reported
scene of crime, he came upon a female body lying in the bush. He
observed marks on the ground suggestive of a struggle. The
deceased’s skirt was not properly on and it was lifted up. He
observed abrasions on her neck and blood was coming out of her noise.
From the appearance of the scene and the clothing of the deceased,
this witness formed the opinion that the deceased was
raped. He referred the Court
to the photographic evidence to support that assertion.
 He had photos taken of the
scene of crime, including of the deceased. While at the scene, he
received reports of a possible suspect and where he could possibly
be. After searching for the suspect, following tracks, they
eventually isolated a search area in a watery place full of reeds.
He and others eventually arrested the accused at that watery place,
while he was hiding in the water. Uunona testified that he arrested
the accused; told him why he was arresting him, and took the accused
to the police station.
 At the police station,
witness Uunona said he found a three-year old boy known as Erastus
Shikongo. It is common cause that this boy is the son of the
deceased. The boy had abrasions on the neck and was swollen in that
area. Uunona then went to the accused, informed him of his rights
and took a warning statement from the accused with the help of an
interpreter. This statement was taken on the 11th October
2005 at the Outapi police station, at 07:00 in the morning.
The accused was, amongst
others, reported as having said as follows:
“On Sunday 9
October 2005 at about 18:00, I was together with the deceased person
at the cuca shop unknown to me. I was selling my goat that was given
to me by the deceased’s husband. When I sold my goat I bought
beers, and we started drinking. The deceased then told me that her
husband does not sleep at night, because he suspects that the two of
us used to sleep together. We then decided to go home because we
stay in the same house. While we were on the way, the deceased asked
me to have sex with her in the bush. I refused by saying that her
husband will find out and he will be angry with me. She said that
she will tell her husband that I raped her. I got angry and I beat
her and strangled her neck with my hand. We walked some few steps
and I had sexual intercourse with her. I took her from behind
because that is what we are doing in our tradition. She was still
alive and I again strangled her neck and she died. I did not think
that she was dead, so I waited a while to see if she can wake up, but
she didn’t. So I realised that I killed her. So I went. I left
the deceased there and her son. I did not touch the boy at all. I
just went home, took my belongings so that I go to our house. I went
to hide in the grass in (indistinct), it is where the police found
That is the warning statement
that was taken from the accused person.
 In cross-examination,
Uunona testified that he properly informed the accused of his right
to legal representation, including
that one could be provided at
State’s expense, and that this was before the taking of the warning
statement. That much is however not recorded in the body of the
warning statement. Uunona said that he did not do so because the pro
forma form they use makes no allowances for that.
 I am not satisfied by this
explanation for the failure to record such an important detail. But
I have to, in the overall context of the case, see if the accused was
prejudiced in any way by the failure to properly have explained to
him his right to legal representation at Government expense, if
necessary. Although, as I conclude, such failure indeed took place.
 In cross-examination, it
was put to Uunona that the accused denied having sex with the
deceased or that he strangled her twice, implying that he strangled
her only once. Uunona confirmed that throughout the accused denied
harming the minor boy and said to him that the boy was on his
mother’s back when they were struggling and the boy may have been
injured in that process.
 The next witness was
Detective Sergeant Shipiki, the scene of crime officer. He prepared
the photo plan which was led into evidence. His evidence was that he
never spoke to the accused, but
confirmed that Inspector
Maritshane spoke to the accused through an interpreter at the scene
of the crime.
 The next witness was
Constable Sebastian Kazondjou. His mother tongue is Otjiherero but
he understands Otjizemba, the native tongue of the accused.
Kazondjou assisted in the translation, when the accused’s warning
statement was taken, and also when the pointings-out were done. He
confirmed that he signed the certificate confirming that he
translated to the accused properly, and maintained that the accused
understood everything that took place when the statement was taken
and read back to him in Otjiherero, and thereafter placed his right
 The next witness was
Inspector Marcellus Maritshane of Outapi police, a commissioned
officer. He testified that he was not connected with the
investigation of the case and presided over the pointing-outs by the
accused, with the assistance of an interpreter as aforesaid. The
thrust of his evidence was that the accused took them to the scene of
crime and pointed out various spots where the assault on the deceased
took place. He too confirmed that the deceased also admitted to
having sex with the deceased. In cross-examination, of this witness
it was not denied that the accused admitted to strangling the
deceased. Sexual intercourse was denied in terms by counsel.
 The next State witness was
Her Worship, Magistrate Iyambo, stationed at Outapi. She took the
alleged confession from the accused and, prior to that, his plea in
terms of s 119. What emerged in cross-examination of her, is that
she took the plea of the accused, after it became apparent that he
wished to engage a legal practitioner at State’s expense. The
magistrate was aware of that election when she also took his
purported confession. I consider that that was irregular. In her
position, she ought to have known better. The plea in terms of the s
119 proceedings and the purported confession following it, therefore,
stand to be excluded because of the prejudice to the accused on
account of the fact that his right to legal representation was denied
to him, when his election to have a lawyer represent him was
communicated to the magistrate.
 The next State witness to
testify was the thirteen year old Eelu Selma. She and others found
the minor boy in the morning, on the 10th of October 2005,
whilst on their way to school, and took him along with them to their
school from where he was taken to hospital. This girl testified that
the boy told her and others that the mother was lying or sleeping in
the bush, but when tried to wake her, she did not respond. This
witness saw the scratch marks on the neck of the boy. In
cross-examination, she testified that the boy told her that somebody
scratched him, but he did not know who it was.
 The minor child, Erastus
Shikongo (three years old) was next called, but turned out not to be
a competent witness, after an enquiry to determine his competence.
His evidence was therefore not received.
 The next State witness to
testify was the teacher at Eelu Selma’s School. Her name is Iileka
Hilma. The minor child was brought to her by the children, who
includes Eelu Selma. She took the child to hospital. In
cross-examination she said the child told her the scratch marks on
the neck were caused by Madhimbilo, the accused in this case. She
says that she never knew the accused at the time, and never reported
what the boy told her to police. She conceded that that allegation
is not in the statement she gave to the police because she forgot to
 The next State witness to
testify was Silas Kontindi. He is the owner of the cuca shop. He
knows both the accused and the deceased. According to him, on the
10th of October 2005, the husband of the deceased came to
him to ascertain if the deceased, the minor child and the accused had
not been there. He confirmed to the husband that the three people
were there the previous evening, and left together. He also told him
that they had a goat with them and some cooked meat which they were
selling. The husband of the deceased then told him that they came
across the deceased’s body in
the bush. They then went
together. It was about 09:00 in the morning when they came to the
deceased’s body. Kontindi said he then went to report the matter
to the police.
 The next State witness was
Dr Yuri Vasin. He conducted the post mortem on the deceased. He
established the cause of death to be asphixiation. He did not find
abrasions or lacerations on the genitals of the deceased suggestive
of forced sexual intercourse. He took vaginal and other swabs from
the deceased and handed some to the police.
 At the end of the State’s
case, accused testified on his own behalf and, in a rather bizarre
twist, took the attitude that he did not kill the deceased, contrary
to the plea explanation that he gave in this Court. He testified
that he only saw the deceased at the cuca shop on the fateful day,
but never went with her. That is clearly in conflict with the
evidence of State witness Silas Kontindi, the owner of the cuca shop,
who saw them leave together.
 I find that no prejudice
had been occasioned to the accused in the way in which his warning
statement was taken and the pointings-out were conducted. Where
there was prejudice, I already said so; and that relates to the s 119
proceedings and the purported
confession. The accused, in
his warning statement and during the pointings-out, placed himself at
the scene of the crime of murder. That is also corroborated in
material particular by his plea explanation in this Court. He
however strenuously denied that he ever stated before me that he had
killed the deceased. This is quite incredible.
 The State has established
beyond reasonable doubt that the accused, by strangulation and
intending to do so, caused the death of the deceased and I convict
him of murder with dolus directus.
 The allegation of rape is
sought to be relied upon on the strength of the admissions made by
accused. The State took vaginal swabs. What had happened to those
was not explained. The doctor did not find abrasions or lacerations
suggestive of forced sexual intercourse on the genitals of the
deceased. The accused’s admissions in the warning statement and in
the pointings-out notwithstanding, I am not satisfied beyond
reasonable doubt that the State established that the accused raped
the deceased person. I accordingly acquit him on that count.
 There is no direct
evidence of the strangulation of the minor child by the accused.
Throughout, he denied that he caused harm to
the young child. The only
direct evidence linking him to the strangling of the boy was that of
the teacher Hilma. That is hearsay evidence of course, but elicited
in cross-examination and therefore receivable. For two reasons I
reject it: First, the explanation that the teacher forgot to tell
the police about so important a detail is so incredulous as to be
untrue. Second, the source of it is an incompetent witness whose
evidence would not have been admissible in any event. I therefore
acquit the accused on the count of attempted murder of the minor,
ON BEHALF OF THE STATE
Instructed by: Office
of the Prosecutor-General
ON BEHALF OF THE ACCUSED
Directorate of Legal Aid