Court name
High Court
Case number
CC 10 of 2006
Title

S v Ngoya (CC 10 of 2006) [2006] NAHC 20 (12 May 2006);

Media neutral citation
[2006] NAHC 20











SPECIAL
INTEREST”



CASE
NO. CC 10/2006



IN
THE HIGH COURT OF NAMIBIA







In
the matter between:







THE
STATE







and







JOSEPH
HAKOONDE NGOYA







CORAM: DAMASEB,
J.P.







Heard
on: 2006.05.12



Delivered
on: 2006.05.12



_______________________________________________________________



SENTENCE



[1]
DAMASEB, J.P.:
Mr Ngoya, I found you guilty and
convicted you of murder with direct intent to kill another human
being. You are a first offender, and you are married with your
second wife, after the first one had left you - which is the source
of the trouble you are in now. You have one child with your second
wife. You essentially fended for yourself until your arrest, by
ploughing your field, and looking after your cattle; and on your own
version you look after five children of other











relatives.
You have been in custody now for eight months since your arrest, and
you have parents; if I understood you properly both of whom are
blind and in respect of whom you have responsibilities. You also
stated that you contributed to the funeral expenses of the deceased,
and, although with the help of others, paid compensation of twelve
head of cattle to the family of the deceased. You are a young man of
thirty four years. Such are your personal circumstances.







[2]
Mr Ngoya, the crime you committed is very serious. You committed,
in my view, a murder most foul and heinous in the annals of Namibia’s
criminal history. As I found in my judgment - you sought out the
deceased in order to kill him. I must agree with counsel for the
State that you were after the deceased’s head; and you sought it
out and got it. Such conduct, Mr Ngoya, as counsel for the State
rightly submitted, cannot be tolerated in a civilised society. A
clear message must be sent out to all and sundry, that this Court
will not shirk in its responsibility to protect the public against
those who commit crimes such as you have committed. Those who may be
like-minded must know that when caught this Court will deal with
them.







[3]
You decapitated another human being causing his death, but you did
not stop at that: You went around displaying the head of a man you
had killed; which I consider an act of utter contempt and
desecration of the dead. Your crime, Mr Ngoya, is without precedent
and has offended the sensibilities of all right thinking and
law-abiding members of our community. You also chose to think out a
bogus defence to try and escape the consequences of your evil deed.
That you represent a serious danger to society is a moot point.







[4]
Retribution is the only answer for what you have done, and your
personal circumstances pale into insignificance compared to the
barbarity of your crime. You have shown no remorse for what you did.
Accordingly, Mr Ngoya, I sentence you to sixty years imprisonment.













DAMASEB,
J.P.







ON
BEHALF OF THE STATE Ms Miller



Instructed
by: Office of the Prosecutor-General







ON
BEHALF OF THE ACCUSED Mr Basson



Instructed
by: Directorate of Legal Aid



































































SPECIAL INTEREST”







CASE NO. CC 10/2006



IN THE HIGH
COURT OF NAMIBIA







In the matter between:







THE STATE







and







JOSEPH HAKOONDE NGOYA







CORAM: DAMASEB, J.P.







Heard on: 2006.05. 10



Delivered on: 2006.05.12



_______________________________________________________________



JUDGMENT



DAMASEB, J.P.: [1]
The accused is charged with murder in that upon or about 3rd
September 2006, and at or near Ongumi village in the district of
Eenhana, he did, wrongfully, unlawfully and intentionally kill Elias
Kahandja Shoombe, a male person. The











summary of substantial facts in
terms of Section 144 (3) (a) of the Criminal Procedure Act, 51 of
1977 reads as follows:







On the 3rd
of September 2005 at Ongumi village in the district of Eenhana the
accused informed the deceased’s wife that she should warn her
husband that once he meets the deceased someone will die. When the
accused later met with the deceased he stabbed the deceased with a
knife on the chest and severed his head from his body. The deceased
died as a result of the injuries inflicted by the accused. The
accused subsequently took the deceased’s severed head to the cuca
shop in the area and showed it to several people.”







[2] The accused pleaded not
guilty to the murder count in the indictment and, through his learned
counsel, made the following admissions in terms of Section 220 of the
Criminal Procedure Act: the identity of the deceased person; that
the severed head belonged to the deceased; the contents of the
post-mortem report in respect of the deceased; that the body of the
deceased did not sustain any injuries when removed up to when the
post-mortem was conducted; the contents of the photo plan although
reserving the right to challenge aspects thereof should the need
arise; and that he stabbed the deceased first with a traditional
knife, whereafter he dispossessed the deceased of a panga and used
the same to cut off the deceased’s head.











[3] Counsel for the accused, Mr
Basson, then stated in terms of s 115 of the Criminal Procedure, that
up to the point where the accused stabbed the deceased he acted in
private defence, but that at the point where he dispossessed the
deceased of the panga and cut off his head, he was blinded by anger
to such an extent that he did not realise what he was doing; that
he was not aware of his surrounding and did not realise he was
walking around with the head, and that the accused , in his defence
to the murder count, will rely on temporary non-pathological
incapacity.







[4] The first state witness who
testified was the investigating officer, sergeant Erastus Kamati, now
of Eenhana police station. He was stationed at Okongo police station
at the time. He received a report about the killing at Ongumi
village and went there with Constable Iyambo. This was at about 21:30
in the evening of 3rd September 2005. They went to the
homestead of the headman, Ndailikana. When they reached there one
Louisa Lamoth pointed out a headless body to them. They found the
head in a bag. A panga was leaning on that bag and the accused came
forward to own up to the deed. Kamati said that he then warned the
accused of his rights and told him that he was under arrest,
whereupon the accused said that he killed the deceased over a love
affair with his wife which took place in











2003. He then took the accused
into custody and the next morning returned to the scene with him.







[5] On the scene, Kamati
testified, he observed the footprints of the accused and those of the
deceased. He was able to do so from observing the shoe prints of the
deceased and the boots of the accused - both of which he saw. He
said that he further observed that from where the two met, the
deceased was retreating followed by the accused; and that the
deceased’s backward movements were towards the homestead of the
headman. The accused’s backward movements, Kamati testified,
stretched for about thirty metres. (I need to add in passing that
Kamati did a full measurement of the various points at the scene of
the crime based on his observations.)







[6] Kamati also testified that
the accused pointed out to him the traditional knife hidden in the
traditional fence of the headman’s homestead, meaning it was not
lying around the scene of crime, or around where the body of the
deceased lay. The accused also told him, he said, that the knife was
used to stab the deceased. According to Kamati the panga belonging to
the accused was found near the spot where the accused and the
deceased originally met up and the scuffle between them commenced.
Kamati testified that he observed a cut wound on the lower part of
the accused’s neck - which the accused







said was inflicted by the
deceased. The accused was then taken to hospital for treatment and
thereafter charged.







[7] In cross-examination Kamati
said that when the accused came forward to own up to the deed he was
in a ‘good condition’ and cooperative, and that the accused said
he killed the deceased over a love affair. Kamati denied the
suggestion that the accused told him, on the spot he first took him
into custody, that he was cut with a panga by the deceased. He
testified that he did not even see the cut wound on the accused at
that point in time, and only took notice of it much later when the
accused told him.







[8] Kamati persisted that on
the night he arrested the accused the accused did not mention that
there was a fight between him and the deceased. When put to him that
the accused did in fact tell him that he was defending himself
against the deceased, Kamati denied being told as much by the
accused. Kamati also confirmed that the accused told him that his
panga- later found to be bloodless- was found at the place where the
two initially started to wrestle some distance away from where the
accused eventually killed the deceased. He also testified that the
accused told him that after the panga of the accused fell, the
deceased tried to cut the accused- at which point the accused took
out his traditional knife and stabbed the deceased. Kamati also







testified that the accused
pointed out to him his shoeprints at the scene of the crime from
which he also came to the conclusion that the accused was pursuing
the deceased after they initially met up, while the deceased was
retreating.







[9] It was suggested to Kamati
in cross-examination that at some stage the accused was running away
from the deceased who was cornered by the deceased against the
traditional fence of the homestead of the headman Ndailikana. Kamati
stated that according to his observation the converse was the case;
that is, the accused had cornered the deceased against the
traditional fence. Kamati further testified in cross-examination
that when he formally charged the accused the latter refused to
divulge further details about the incident to him. I need to observe
at this point that it was clear from Kamati’s evidence that none of
the eye witnesses (whose evidence I shall deal with presently) told
him the identity of the person who screamed for help as between the
accused and the deceased.







[10] Under questioning by the
Court Kamati satisfactorily described the manner in which he came to
the conclusion that the deceased was moving backwards pursued by the
accused after the duo initially met up near the headman’s
homestead.











[11] The next witness to
testify was detective sergeant Cloete, the scene of crime officer,
who took pictures of the scene of crime. He prepared the photo plan
and took the measurements of the distances between various points at
the scene of the crime. He gave a detailed description of the photo
plan which was then admitted in evidence. He was cross-examined
extensively on behalf of the accused. Under questioning by the
Court, Cloete testified that while at the scene of the crime he could
-placing himself at the spot where the two eye witnesses allegedly
stood- clearly see the areas around which he was told the deceased
and the accused met up and had a scuffle. He stuck to this version
even in cross-examination.







[12] The next witness to
testify was the forensic pathologist, Dr Armando, a Cuban national
who works in Namibia. This witness was extremely inarticulate and it
was very difficult to follow his evidence. His post-mortem report
was however admitted in evidence by agreement. Having regard to his
written post-mortem report and his rather garbled viva voce
evidence, I found the following established: That the head of the
deceased was cut off; that about two centimetres of the lower lip of
the deceased was also cut off; that the cause of death was internal
bleeding due to the cutting off of the head by the neck; and that the
spine of the deceased had been cut off. Dr Armando testified that he
observed a cut wound to the right armpit (or







axilla) of the deceased which,
it is common cause, was inflicted with the traditional knife but was
not the fatal wound. Dr Armando testified that in his opinion the
cutting off of the head was done with a very hard and heavy weapon,
and said it was consistent with the exhibit - being the panga -
displayed in Court as belonging to the deceased. He said that it was
more than likely that the severing of the head was done with the
panga instead of the traditional knife both of which he saw in
evidence. He also said that the cutting on the nose and the lip were
consistent with having been done with the traditional knife. (This
is significant in view of the fact that, as it will later appear, the
accused’s version is that he bit off with his teeth the lower lip
of the deceased. It is also further significant because it is in
contrast to the version of one of the minor witnesses, although
somewhat backtracked, that the head was cut off with a traditional
knife.) The doctor was firm in his professional opinion that the
cutting off of the head must have been done from the front and not
from the back.







[13] The next witness who
testified was inspector Elsalvador Ndeuyama, a commissioned officer
based at Okongo police station. He was the station commander at the
time of the incident and took the purported confession from the
accused. He said he had no











connection with the
investigation of the case. The voluntariness of the purported
confession was not placed in dispute although it was clearly



pointed out by Mr Basson on
behalf of the accused that aspects of it would be challenged. The
accused, in that purported confession, said the following, amongst
others: On Saturday 3 September 2005 at about 17:00 at Ndailikana
Moses’ mahangu field I meet Elias Shoombe. I greeting him then he
greeting me too. Then I asked him, Elias Shoombe, why are you
forcing my wife while you are also having your wife? Then he raised
his panga against me. I told him that I also have my panga, and the
deceased said if so we will kill each other today. Then he cut me
with his panga from left finger to my neck. I took my panga throws
to him then it fell to the ground. I ran away then he blocked me
against the fence. I came closer to him then I stabbed him with a
traditional knife on his right ribs. After I stabbed him I put him
down. I then managed to take the panga from him and the same panga I
used to cut off his head. I took the head with me to the cuca shop.
From the cuca shop I went home with it. I put it in the bag with the
intention to take it to the police station at Okongo. Then I decided
to take it back to the body. From there someone phoned the police
and then the police came and take me with the deceased to the
station.’’ (sic)















[14] In cross-examination Mr
Basson said that the accused agrees with most of the statement but
that one or two things are missing. Mr Basson focussed on paragraph
four of the statement which reads: “I



took the head with me to the
cuca shop. From the cuca shop I went home with it, and I put it in
the bag with the intention to take it to the police station at
Okongo.
Mr Basson continued, and I quote (at page 101 of the
running record: “Now the accused person’s instructions are,
that when he got home he realised he had this head and he said he put
it in the bag because now take it to the police station and then he
decided no let me take it back to the body where he was going to wait
for the police.”
Mr Basson continued, now is it possible
that you had



shortened the accused
person’s version, I mean is it possible that the accused person
could have said, when I realised at home that I have the head I put
it in a bag and wanted to take it to the police station but
thereafter I decided to take it back to the body.
I mean you
just said, then I decided to take it back.
‘’ He did not
tell me that he did not say that to me’’
, Ndeuyama answered.







[15] From the above quotations
the following becomes apparent: the accused confirms he made a
statement to Ndeuyama. That he agrees with what is in the statement
except that it excludes a reference to the fact that he only became
aware at home that he was carrying the head with him. Nowhere in
that statement, however, is there any reference







to the fact that the accused
blacked-out when first struck by the deceased.







[16] The next witness to
testify was Antonius Ipuakena, a court interpreter who translated
from English to Oshiwambo and vice versa when the purported
confession statement was made. He confirmed that the purported
confession was taken by Ndeuyama from the accused, with him acting as
interpreter, and that he indeed accurately translated. Not much
emerged in cross-examination of him, and he specifically denied that
there was any possibility that the things the accused said were
excluded from paragraph (4) of the statement.







[17] The next witness who
testified was the wife of the deceased, one Lovisa Reinoldt. She
said that when the accused met her on the 3rd of September
2005 at the cuca shop, he asked her whether the deceased had gone to
report him to the traditional authorities, and that if the two of
them meet somebody will die. She said that the accused was carrying
a panga and a traditional knife at the time. She was able to make a
dock identification of both weapons. She testified that the accused
returned not long afterwards and was carrying something in his hand,
and told her it was the head of her husband whom he said that if they
meet someone will die. She ran away in fright and said she never
really saw the head. She testified that when the accused







returned with the thing he said
was a head he was ‘normal as he used to be.’ She testified that
the accused at that point was going in the direction of his house.
She then raised the alarm. She later went to



the place where the body of the
deceased was, and was able to identify his remains from the clothes
and shoes. She testified that the accused later came where the body
was but this time carrying a bag although she could not tell what was
in it. She testified that the accused said that it was the head of
the deceased, and that he was taking it to the police station. She
testified that the accused was told that the police had already been
called for, and he remained there.







[18] Lovisa Reinoldt also
testified that around 17th August 2005 she found the
accused with a panga at their house. She confirmed that the in 2003
deceased had an adulterous relationship with the accused’s wife,
and that the matter was taken to the traditional authorities and
resolved in January 2005 when all compensation due by the deceased to
the accused had been paid. She added “so they gave each other
peace and it was like the matter was solved. I don’t know how it
restarted again.”
She testified that her husband was turning
58 years when he died. In cross-examination Reinoldt testified that
the deceased had at some point in the past beaten her with a panga-
once on the forehead and on the arm on another occasion. She said
the deceased, when angry, could ‘chop with a panga.’ With







this she seemed to confirm the
general reputation that the deceased had for the use of a panga
against others as suggested on behalf of the accused.







[19] In further
cross-examination it was put to Reinholdt that the death threat
against her husband to which she testified, was never made by the
deceased. She insisted it was made and also persisted that the
accused looked ‘normal’ when he came with the head to the cuca
shop, although she said carrying around a head is not normal and that
it was the reason she ran away out of fear. It was then put to her
that the accused denies that he was aware that he was carrying a head
and that when carrying that head he did not know what he was doing.
She expressed doubt if that were the case. It was even put to her
that the accused cannot even dispute that a conversation about the
head took place, as he was not aware of what he was doing. When the
Court sought clarification, Mr Basson on behalf of the accused, said:
“He is not in a position to dispute whether he did mention
anything to the people that was at the cuca shop because he does not
even realise he was carrying that head.”







[20] In cross-examination of
Reinholdt Mr Basson sought to make her admit that the accused
behaved, or appeared, abnormal when he returned with the head. She
persisted that he looked normal.







[21] The next witness to
testify was Ngoshi Ndailikena, the headman of the Ongumi village
where the alleged offence took place. He confirmed the adulterous
relationship between the deceased and the accused’s wife and that
eventually, the deceased having paid compensation to the accused, the
matter was resolved. He confirmed that the adulterous relationship
was exposed by the wife of the deceased. This witness - who is the
headman of the area - said that after the wife of the deceased left
the common home following the exposure of the adulterous relationship
with the deceased, the accused took in another wife. The headman
stated that the accused and his adulteress wife were no longer
married and no longer together. He went as far as to say that the
adulteress wife, when she returned eventually, was pregnant. In
context, it was clear that this pregnancy was not that of the
deceased or of the accused. This testimony was not challenged in
cross-examination. (And as for failure to cross-examine, I refer to R
v M
1946 AD 1023 at 1027; R v Katsa 1957 (2) SA 191 E; and
Small v Smith 1954 (3) SA 434 (SWA) at 438 F where it was
said:







It is in my
opinion elementary and standard practice for a party to put to each
opposing witness so much of his own case or defence as concerns the
witness. It is grossly unfair and improper to let a witness’s
evidence go unchallenged in cross-examination and afterwards argue
that he must be disbelieved.”







This is very significant,
because central to the accused’s case is the assertion that he was
emotionally hurt by the adulterous relationship. Now, not only is
the version that he was aware of another adulterous relationship
between the deceased and the former wife unconvincing; that is
following the incident in 2003- but it throws grave doubt on the
depth of emotional hurt he felt on or about 3 September 2005 because
of the adulterous relationship.







[22] Under further
cross-examination of the headman it was elicited from him that he
became aware, through his wife (as he was in Windhoek at the time),
of the complaint laid by the deceased against the accused for wanting
to hit the deceased with a panga and that (the headman’s wife)
referred the complaint of the deceased to the junior headman in the
absence of her husband; and that the accused refused to cooperate
with the junior headman in respect of the complaint against him.
This complaint was reported, according to the headman, in the same
month that the deceased was killed. I grant this is hearsay evidence
-but it was elicited in cross-examination. Therefore, although
hearsay, the existence of a complaint against the accused to the
authorities by the deceased around the time of the killing was
confirmed by the headman who testified that when he returned from
Windhoek in August of 2003, he was informed of such











a complaint by his wife: See R
v Bosch
1949 (1) SA 5489, De Klerk v Sagoti 1943 EDL 44 in
support of the following proposition in Hoffman



& Zeffert, The South
African Law of Evidence
(4th edn) page 458-59, where
the following is said:







If a
cross-examiner succeeds in eliciting inadmissible evidence which
would ordinarily be inadmissible he is not entitled to object to its
being received. The principle applies whenever the witnesses’
reply is a legitimate answer to the question whether the
cross-examiner expected it or not.”







[23] The next witness was a ten
year old girl, Elizabeth Ndailikana, the daughter of the headman. She
and her elder sister Ndilimeke, were the only two eye- witnesses to
the fight between the accused and the deceased. I duly admonished
her to tell the truth, as I was, after an enquiry, not satisfied that
she was capable of taking the oath. She is in Grade 5, can read and
write and knows both the deceased and the accused as they both hailed
from her village. She says that the accused used to come to their
home. She said that she knew the deceased was dead because his head
was cut off by the accused; and that she saw it. On the 3rd
of September, she said, she was with her sister outside the home
washing clothes. They were near the zinc room sometime that afternoon
when she saw the accused and the deceased both lifting up their
pangas. She could not make out what they were talking about, but she
saw the accused throw down the







deceased. Before that, she
said, “the deceased was walking, moving backwards and Mr Ngoya was
following him”. She testified that when



the deceased fell he landed on
his back and the accused sat on his stomach and started cutting the
deceased with a traditional knife on the neck; and that he cut off
the head and went with it in the direction of the cuca shop but kept
looking behind.







[24] Elizabeth testified that
when she saw the accused and the deceased, they had pangas. She says
that she also heard the deceased cry out for help as she knew his
voice, and that he spoke with difficulty (not properly). She also
testified that she was able to observe the events through the fence
of their homestead; a fence which, in traditional Oshiwambo fashion,
was made using sticks. The Court had the opportunity through the
display of the close- up pictures in the photo plan to look at this
traditional fence to confirm Elizabeth’s version that she was able
to see what transpired beyond the fence.







[25] In cross-examination,
Elizabeth denied the suggestion that the person who cried out for
help was the accused and insisted it was the deceased. Asked why she
did not mention that in the police statement, she said she was not
asked about it. She also testified that when the deceased and the
accused first met they pushed each other,







both holding pangas. She says
that she did not see the deceased hit the accused with a panga, but
that she, however, saw the accused



throw his panga in the
direction of the deceased, but missed- this being the point where
the deceased was retreating from the accused in a backward movement
whilst facing the accused. Elizabeth testified that at some point
the deceased and the accused went behind the hut of their homestead
and that she could not see what was happening although she heard a
sound of beating but could not tell who hit who. Although pressed
hard Elizabeth throughout maintained that she was able to clearly see
what the deceased and accused were doing, and added, for good
measure, that she even at one point peeped through the fence to see
more clearly what was happening. Towards the end of her
cross-examination, she conceded that she was not sure if the
deceased’s head was cut off with the traditional knife.







[26] The next witness was
Justina Simon who also hails from Ongumi village. She knows both the
accused and the deceased; the accused being her son in law and the
deceased her uncle. Her attention was directed to the events of the
3rd of September 2005. She testified that on that day she
went to the cuca shop of one Hilaria Kashunga and found the accused
there. She either found or met the wife of the deceased there too.
She testified that the deceased’s wife came to the







cuca shop with the former wife
of the accused. (It is significant again to point out that there is
a reference here to the ‘former wife’ of the



accused, implying that the two
had not considered each other as husband and wife, or did not live
together as husband and wife, at the material time.) Simon testified
that the accused then said to the wife of the deceased, “Kwanyoka,
is it me your husband is taking to the traditional court, does he
know what he did?” She said that the accused then added that if he
and the deceased meet the mother of one of them will ‘wear black
clothes’: an apparent Oshiwambo expression which was clarified to
mean that one of them will die. According to Simon the deceased
thereafter left and came back later carrying a head she identified as
that of the deceased. She testified that she started crying upon
seeing the uncle’s head. She testified that the accused also said
that somebody must go to the body at Ndailikana’s house before the
body is eaten by the dogs. The accused then left, she said. She and
others then went to Ndailikana’s house and found the body of the
deceased. She testified that when the accused came to the cuca shop
with the head, he looked his normal self. She stuck to that version
even in cross-examination. She testified that when she went with
others to the body of the deceased she saw the panga belonging to the
deceased, and that the panga had blood on it. The accused later came
back carrying the head in a bag











wearing fresh clothes and no
longer talking too much as he did when he came to the cuca shop with
the head.







[27] The next witness to
testify was Ndilimeke Ndailikana, the daughter of headman Ndailikana.
She is thirteen years of age and is in Grade 7, and also knows both
the accused and the deceased. On the 3rd September 2005
she also saw the accused and deceased near their homestead. She
confirmed seeing the deceased moving backwards followed by the
accused, both lifting their pangas. She later heard the sound of
somebody being beaten although she could not make out whom. She
confirmed that in addition to the panga the deceased had a kierie and
the accused a traditional knife. The next thing she saw was the
accused walking away carrying a head and looking back several times.
She also testified that at some stage she heard the deceased cry out
for help. She was washing clothes at the time of the incident.







[28] In cross-examination
Ndilimeke initially denied that her sister was also washing clothes
but said later that the sister too was washing clothes. She
testified that she did not see everything that Elizabeth saw and gave
as the reason for this the fact that at some point she went to hang
clothes and Elizabeth was peeping through the fence at the time.
When pressed why she did not tell the police in her







statement that the person who
screamed for help was the deceased, she said she forgot, but denied
that it was the accused who screamed for help. She also testified
that she saw the accused throw a panga in



the direction of the deceased
but missed, and that the accused still had a traditional knife at the
time. She testified that after the accused’s panga fell, the
deceased still had his panga lifted up while the accused wielded a
traditional knife.







[29] At this point in time, I
need to make a brief observation about the testimony of these two
young girls: Quite clearly the version that it is the voice of the
deceased that they heard screaming for help must be taken with a
pinch of salt. I say so because the very person who one would have
expected to record such a statement, being Kamati, had no knowledge
of that being said to him. In the context of the evidence overall,
however, I do not consider that to be a very crucial aspect of this
case. In evaluating their evidence I am left with the impression of
two young girls trying their best to recollect and recount as best
they could what they saw and heard , in a court room environment
which quite clearly they were not accustomed to and did not look
comfortable in. Their versions are not identical and have some
discrepancies- a clear sign, in my view, that they were not couched.
I take the view that their versions are overall logically consistent
with each other.







[30] Next the State handed up
the s119 proceedings by agreement, containing a plea taken from the
accused on 17th November 2005 in terms of which the
accused pleaded:







not guilty
because I just met the deceased on the road greeted him and asked him
one question. Why you forced my wife you also have your wife? Upon
that the deceased attacked me with a panga and chopped me on the left
side of the neck. I ran away on the fence side. The deceased
followed me, pushed me against the fence and aimed to stab me again
so I stabbed him in self defence.”
(sic)







[31] At the end of the state’s
case, the accused testified but called no other witnesses. He
testified that in 2003 the deceased had an adulterous relationship
with his wife; a relationship which was exposed by the deceased’s
wife. At the time that the illicit relationship happened, he was
away from home. He became aware of it when he came back. He
testified that his wife had in fact left the common home because of
this relationship. He testified that the matter was then reported to
the headman Ndailikana. According to the accused, the deceased was
adjudged guilty and made to compensate him - which the deceased did.
(The matter was therefore considered settled, although I get the
impression that the accused implied that he had not forgiven the
deceased for the adultery.) According to the accused,











on 3rd September
2005, he met up with the deceased near the household of the headman
and wanted to know of him why he was ‘forcing his wife when he had
his own wife’. The deceased then raised a panga against him and
cut him on the neck, whereafter he said to the deceased: ‘why are
you raising your panga at me when you are the one who slept with my
wife?’ He testified that he was angered by this, for the same man
who had done wrong to him by sleeping with his wife now cut him with
a panga. He also added that he was afraid because he knew ‘the
deceased cuts people with pangas’.







[32] The accused seemed to
accept in his evidence that the deceased moved backwards after he cut
him (the accused). He said he then wanted to cut the deceased but
his panga fell, whereupon he retreated. The expression he used in
evidence was ‘to run away from the deceased’. He testified that
he retreated towards the fence of the homestead wanting to escape by
climbing through it into the homestead. His panga having fallen, he
still had his traditional knife with him when he was cornered near
the traditional fence of the homestead by the deceased who was still
raising his panga wanting to cut him. At that point he stabbed the
deceased with the traditional knife in the right ribs which, as we
now know, was under the armpit of the right hand of the deceased. He
said that during the fight he also bit off with his teeth the
deceased’s lower lip. The accused







testified that he realised when
he got home that he was carrying the head of the deceased, whereafter
he returned to the spot where the body was and was arrested by the
police.







[33] He testified though that
when he returned to the cuca shop with the deceased’s head people
started running away from him, and that he thought that they must be
running away because of the head he was carrying; this being before
he got home. The accused stated that he had no intention to kill the
deceased and that he does not know how it came about for him to kill
him. As for making a statement to the police, he testified that he
recalls some things only about it. He says that he does not remember
cutting off the head of the deceased but remembers that he at some
point dispossessed the deceased of his panga. He came to the
conclusion that he must have cut off the head of the deceased because
when he came home he realised he had it in his hand. He also
testified that after the incident he was confused throughout until he
appeared in Windhoek during the pre-trial hearing from which point
onwards only he came back to his senses in the sense of being able to
‘make out directions’. He repeatedly stated that when he made
the statement to the police he was in a confused state of mind.















[34] In cross-examination the
accused said that the deceased had compensated him after the
adulterous relationship, and that the



deceased had no reason to be
angry with him. He also suggested in cross-examination that after
the 2003 adultery was resolved, the wife of the deceased told him
that the deceased still continued the illicit liaison with his wife.
This led him to confront the deceased again. This appears to have
been, on his version, the reason why around 17th of August
he was at the homestead of the deceased-an accusation which the
deceased denied, and the matter ended up with them peacefully sitting
down to have a drink. (I also need to point out that this version
was not raised in cross-examination of the wife of the deceased and
is inconsistent with the evidence of the wife of the deceased who has
no resolution of it.







[35] The accused also
testified that when on 3rd September 2005 he met up with
the deceased he was angry with the deceased. He denied uttering the
death threats against the deceased at the cuca shop before meeting
the deceased. He stated further in cross-examination that just
before he stopped being aware of the events around him, i.e. during
the fight with the deceased, he and the deceased fell to the ground.
He then held the deceased down on the ground in a prostate position.
While the deceased lay in that position (which he described in Court)
he dispossessed the deceased of the panga. The traditional







knife was lying next to them at
that point in time. All this happened close to the traditional fence
of the headman Ndailikana’s homestead. The accused stated that at
that stage he was sitting on top of the



deceased, and that he did not
observe the accused carrying any other weapon on him. From that
point onwards he testified, he does not remember what happened.







[36] As regards the s119
plea, the accused stated that he does not recollect what he said
because he was confused at the time. The accused denied that on 3rd
September 2005 he was looking for the deceased. He admitted though
that he met the wife of the deceased and Justina Simon at the cuca
shop before he met up with the deceased near the homestead of headman
Ndailikana. When questioned about the blackout he says he suffered
whilst fighting with the accused, the accused stated that it was the
first time that he had such an experience.







[37] I will now briefly
summarise the legal principles governing private defence insofar as
they are relevant to the facts of the present case. A person is
perfectly entitled to act in private defence even if he was the
original aggressor. If the person first attacked reacts by using
disproportionate force out of kilter with the danger or harm
presented by the original aggressor, the victim of such an attack is
entitled to a







pre-emptive strike in order to
avert imminent harm to him. The victim of an attack acts unlawfully
if he attacks the aggressor when the attack on him is already over
and the threat of injury discontinued.



The victim of an attack may
ward off an attack even by killing the attacker even if it is not his
life which is endangered but a lesser interest such as his physical
integrity. According to Snyman, Criminal Law, 4th edition at
p106:







only if there
is an extreme discrepancy between the threatened and the protected
interest does the right to act in private defence fall away.’’







Only if it is possible in the
circumstances and in that way avoid killing an attacker does the duty
to flee upon the victim of an attack arise. The victim of an attack
is, however, not required to expose him self to any danger by fleeing
or using a less dangerous method in defence. If a victim of an
attack, in response to a potentially fatal attack, uses an equally
potential fatal method in own defence, the original aggressor does
not act in true private defence by killing the victim in order to
ward off the victim’s defensive attack. Further, as stated by
Snyman op cit at page 112 (and I agree):







a person who
suffers a sudden attack cannot always be expected to weigh up all the
advantages and disadvantages of her defensive act and to act.’’











[38] In the present matter the
accused relies on non pathological incapacity at the time that he
inflicted the fatal blow cutting off the head of the deceased. It is
important for me, therefore, to set out the



scope of this defence before I
proceed to discuss and analyse the evidence. A helpful discussion of
this subject is to be found in Snyman op cit at pp 163 -176, and the
authorities there collected. First, if an accused is found by a
Court to have suffered from a non pathological incapacity at the time
of the commission of the offence, he must be acquitted. A
non-pathological incapacity needs not be established by expert
medical evidence and need not arise from a mental disease. To quote
from Snyman op cit at p165:







the cause may
perhaps be what can be called “emotional collapse”, “emotional
stress”, “total disintegration of the personality”, or it may
be attributable to factors such as shock, fear, anger or tension.
Such a condition may be the result of provocation by a wife or
somebody else, and the provocation may in turn be linked to physical
or mental exhaustion resulting from insulting behaviour towards X
over a long period, which increasingly strained his powers of self
control until these powers eventually snapped - a condition which is
sometimes present in an unhappy marriage which is on the point of
disintegrating. Intoxication may also be a cause of the inability.
The inability may furthermore be the result of a combination of
factors such as provocation and intoxication. Different
psychiatrists or judges may use different expressions to describe the
cause of X’s incapacity, but the exact description for the cause,
of the condition is not important.







What is important
is not the cause of the inability or the description of this cause
but the inability itself.”







[39] The State bears the onus
to disprove the defence of non pathological incapacity beyond all
reasonable doubt. But the accused must lay a foundation sufficient
to create a reasonable doubt for the State to disprove it. I can do
no better than once again refer to the following observations of
Snyman op cit at page 166 (with which I agree):







The Court will
approach this defence with great care and scrutinize the evidence
with great caution. The chances of X’s succeeding with this
defence if he became emotionally disturbed for only a brief period
before and during the act, are slender. It is significant that in
many of the cases in which the defence succeeded or in which the
Court was at least prepared to consider it seriously, X’s act was
preceded by a very long period-months or years-in which his level of
emotional stress increased progressively. The ultimate event which
led to X’s firing the fatal shot can be compared to the last drop
in the bucket which caused it to overflow. When assessing the
evidence, it should be borne in mind that the mere fact that X acted
irrationally is not necessarily proof that he lacked the ability to
direct his conduct in accordance with his insights into right and
wrong. Neither does the mere fact that he cannot recall the events
or that he experienced a loss of memory, necessarily afford such
proof. Loss of memory may for example be the result of
post-traumatic shock which arises in X as a defence mechanism to
protect











him from the
unpleasantness associated with the recalling of the gruesome events.”







[40] Now, armed with this
understanding of the law, I will proceed to analyse the evidence in
this matter. The evidence of Lovisa Reinholdt and Justina Simon that
the accused expressed the intention to kill the deceased was not
shaken in cross-examination, nor has it been contradicted by any
other evidence led in the trial. They were very satisfactory
witnesses in every respect. Reinholdt even gave evidence which was
not complimentary of her deceased husband, such as what appears to
have been his reputation for violence, and the fact that he on
occasion assaulted her with a panga. Because of their affinity to
the deceased, Mr Basson has asked me to reject the testimony of
Reinholdt and Simon about the alleged death threat uttered by the
accused before he met the deceased on the day of the killing. I do
not share that view. What strengthens their version is the fact
that, according to Reinholdt, the threat was preceded by reference to
a complaint laid against the accused by the deceased. This shows to
me that the accused harboured anger towards the deceased at the point
in time. The fact that, in the case of Reinholdt, she says the
accused said he will kill the deceased while Simon says he used an
idiomatic Oshiwambo expression, is also neither here nor there. The
message remains the same and there can be no doubt about what was







intended. In fact, it
displaces any possibility that these two witnesses rehearsed their
evidence.







[41] Central to the accused’s
case is the suggestion that the deceased (not he) was the initial
aggressor, and that he initially acted only to ward off a murderous
attack on him by the deceased. That version cannot be reasonably
possibly true for the following reasons: As I found, the accused was
out looking for the deceased in order to kill him. When the two met,
according to the evidence of Detective Sergeant Erastus Kamati,
corroborated by the two minor witnesses and in fact admitted by the
accused (which I accept as the truth beyond reasonable doubt), the
deceased was retreating pursued by the accused after they met up. It
is not in dispute that the accused had two dangerous weapons on him
at the time. I can come to no other conclusion then that the
deceased must have been in fear for his life and would in no doubt
have been perfectly entitled to act in private defence in accordance
with the principles of the law that I set out earlier. The
uncontested evidence too is that the weapon used to kill the deceased
belonged to the deceased. The accused’s weapon fell at point “D”
as shown on the sketch plan - a distance from where the deceased was
killed and was in fact found. What this means is that the accused
had taken the panga belonging to the deceased from him











(when the deceased was unarmed)
and the fatal blow or blows were inflicted.







[42] I am satisfied beyond
reasonable doubt that the accused was not in any way acting in
private defence when he killed the deceased. In fact, on the
accused’s own version, it was the wound to the axilla which was
inflicted in self defence. The issue is whether he suffered a non
pathological incapacity of such kind as to deprive him of the
criminal intent necessary to have committed the crime charged? Quit
clearly, the accused was angered by the fact that the deceased went
to report him to the authorities as a result of the fact that he had
come to cause some trouble at the deceased’s house in August 2005.
It is difficult for me to say, on the evidence, what the cause of his
going to the deceased’s house was at that point in time. The
accused suggests that it was as a result of a further report that he
had received from the wife of the deceased that the adulterous
relationship was continuing. But as I already stated in summarising
the evidence, there is evidence which points to the fact that an
intimate relationship did not exist between the accused and the
adulterous wife at that point in time. On the evidence, he in fact
lived with another woman. And as I earlier stated, that throws grave
doubt on the depth of emotional hurt he must have felt about the
adulterous relationship.











[43] The defence of
non-pathological incapacity cannot be had for the mere say- so of an
accused person. There must be cogent evidence revealed during the
evidence before a Court can find such a defence in



favour of an accused person.
The reason is obvious: it is such an easy defence to put forward and
one it would be very difficult for the State to disprove; yet it
remains the State’s duty to disprove it beyond reasonable doubt if
the evidential foundation for it has been laid.







[44] On my interpretation of
the evidence, the accused relies on the following as the evidential
foundation for the defence in the present matter: The adulterous
relationship between the wife and the deceased which he never saw
himself and became aware of through rumours circulating, but
eventually owned up by the deceased after being exposed by the
deceased’s wife. When it happened in 2003 he was not in the
village. The headman of the area got involved and the matter was
settled and the deceased compensated the accused. On the accused’s
version, the payment of compensation was evidence that the deceased
regretted breaking up his home, and he accepted that. The wife who
had left the village and the common home since the adultery then
returned although not to the common home. The former wife upon
return stayed at his aunt’s house while in the meantime he lived
with another woman whom he described as his second wife. He never
forgave the deceased for breaking up his home,







and, subsequent to the initial
adultery being exposed and settled as aforesaid, he again learned
from the wife of the deceased that the deceased had again visited the
deceased’s wife at the house of the



aunt. I have already expressed
grave doubt about this. Before the killing he spoke to the deceased
about the adulterous relationship, and the matter was settled and the
two drank what was called a traditional ‘whisky’ together.







[45] After this visit the
deceased laid a complaint against the accused with the traditional
authorities and that complaint was pending on the 3rd of
September 2005. The accused never really forgave the deceased for
breaking up his marriage when, by off chance according to him he met
the deceased near headman Ndailikana’s homestead on 3rd
September 2005, and asked him ‘why are you forcing my wife if you
have your own wife?’ (The curious thing about this is that on the
accused’s version the matter was settled.) Be that as it may, when
he thus asked the deceased the latter raised his panga and cut him on
the lower neck. He then asked the deceased who was retreating still
facing him, ‘why do you cut me with a panga when you are the one
who slept with my wife?’ Some scuffle ensued and he thrust his
panga at the deceased but missed and the panga fell. He then stabbed
the deceased with a traditional knife and dispossessed the











deceased of his panga and from
that point onwards remembers nothing until he got home and realised
he was carrying the head.







[46] On the accused’s version
in-chief therefore - although he was unable properly to explain it to
the Court when the latter questioned him, the last thing he remembers
is when he dispossessed the deceased of the panga. He cannot
therefore remember how the cutting off of the head happened.







[47] It is common cause that
the cause of death was the severing of the head from the body of the
deceased. Under questioning the accused confirmed that he in fact
met the deceased’s wife and Reinholdt at the cuca shop where and
when they say he met them, although he denies he uttered the death
threats against the deceased. It is also clear that he met up with
the deceased after he met these ladies. The questioning of the
accused made it clear that he is able to recollect that when he came
to the cuca shop with the severed head of the deceased, those present
there ran away. As the evidence has shown he was even able to
recollect exactly where these people stood, i.e. next to a water
place (or a tap) near the cuca shop. He was also able to recollect
that the people must have run away from him because of the head he
was carrying; and he was able to recollect that at that point he was
going towards his house which was not far from







the cuca shop. This, in sharp
contradiction to his foundational version that it was only when he
got home that he realised that he had



a head in his hand and that, as
he put it, he must have caused trouble to the deceased.







[48] I am compelled by the
weight of the evidence in this case to accept the State’s version,
established beyond reasonable doubt, that the accused’s version of
complete memory loss due to anger, when the killing took place, is a
fabrication. I reject it not only as not reasonably possibly true,
but false beyond reasonable doubt. I observed the accused in the
witness box and he made a very poor impression on me. He had a stock
response whenever any uncomfortable question was asked: that he
could not remember directions and was in a confused state until he
appeared at the pre-trial hearing in Windhoek. He was able, however,
to give very clear details about the events, people and other
incidents during the period after the killing and his appearance at
pre-trial in Windhoek. The record is replete with examples of those
and some of them I have already referred to and do not find it
necessary to regurgitate here.







[49] I need to mention only
that he was able to remember who arrested him, where he slept, that
he ate on the night of the arrest, and that at some point he was
taken to Windhoek. What is more, not







only was his evidence
contradictory and unsatisfactory as to how he became aware that the
weapon used to decapitate the deceased



belonged to the latter, but he
made it clear that he was aware of that fact immediately after the
killing: on his version in fact, when he came back to the body of the
deceased with the head. That cannot support his general refrain that
he was in a confused state after the incident until he appeared at
pre-trial in Windhoek.







[50] It is not clear from the
accused’s version at what point he says he snapped. It cannot be
expected of the State to do no more than prove that before and after
the attack on the deceased, the accused appeared no different from
his normal self, unless there was other cogent evidence which the
State would have been specifically expected to deal with; such as
any evidence of previous emotional breakdown laying the foundation
for a sudden emotional breakdown. The accused’s own version
initially was that just before the cutting off of the head must have
taken place, he got a black-out and only came to his senses when he
got home and found himself holding the head of the deceased; yet he
testified later on that when he came to the cuca shop with the head
people started to run away and at that stage he realised that they
were running away from him because of the head he was holding. The
accused’s version that he snapped just before the killing and only
came to his senses when he reached home is thus not







only reasonably possibly true,
but false beyond reasonable doubt and stands to be rejected.







[51] What adds to the accused’s
woes is the fact that at no stage prior to it being raised in this
Court did he ever give any indication that he had a complete loss of
memory due to anger at the time, or just before, he killed the
deceased. He always maintained that he acted in self-defence after
confronting the deceased about the affair and then being struck first
by the deceased. The defence of non-pathological temporary
incapacity is therefore an afterthought; and I reject it.







[52] In the result, Mr Joseph
Hakoonde Ngoya, I find you guilty of the crime of murder with dolus
directus
.

































DAMASEB, J.P.















ON BEHALF OF THE STATE
Mrs Miller



Instructed by:
Office of the Prosecutor-General







ON BEHALF OF THE DEFENCE
Mr Basson



Instructed
by: Directorate of Legal Aid