Court name
High Court
Case number
CC 5 of 2008

S v Kashamba (CC 5 of 2008) [2009] NAHC 44 (08 April 2009);

Media neutral citation
[2009] NAHC 44

The State v Gerald Kashamba

CASE NO.: CC 05/ 2008


In the matter between:





Heard on: 23 - 26 February 2009; 02 – 05 March 2009; 20 March

Delivered on: 03 April 2009


[1] In this matter the accused is charged in the main count with
Murder, alternatively contravening section 38(1)(l) of Act 7 of 1996
– Negligent discharge or handling of a firearm.

[2] Accused pleaded
not guilty on the murder charge and guilty on the alternative,
setting out the basis of his guilty plea in an accompanying plea
explanation prepared in terms of section 112(2) of the Criminal
Procedure Act, Act No. 51 of 1977 (the Act). The State however
declined the plea and proceeded on the main count.

[3] The accused’s defence was conducted by Mr. Makando on
instruction of the Directorate: Legal Aid while Mr. Shileka appeared
for the State.

[4] The murder charge preferred against the
accused refers to an incident on the 8
of September 2007 in Rundu, during which Laurentia Kashamba, the
accused’s wife (the deceased), died as a result of a single gunshot
wound. Accused in his plea explanation admitted having wrongfully,
unlawfully and negligently discharged a firearm namely, a CZ pistol
with serial number: 142556 that caused the death of Laurentia
Kashambo. It was further explained that during a physical struggle
between the accused and the deceased for possession of the firearm, a
shot fired accidentally, fatally wounding the deceased. Accused
denied having had any intention to discharge the firearm. He further
stated he was
‘more than convinced’
that the time when the pistol
discharged, it
‘should have been’
pointing in the direction of the
bedroom wall; and that the deceased was actually struck by a
ricocheting bullet.

[5] It is common ground that at the time of the incident, the
accused was a police officer with the rank of warrant officer and the
deceased the principal of a school in Rundu. They resided in a three
bedroom house that was shared with other family members i.e. the
deceased’s niece, Siwombe Napemba who slept in the dining room;
Mutusha Kashamba, a 17 year old boy, and Max, a grandchild of the
couple who also slept there on that evening. The accused and the
deceased were sleeping in the main bedroom while the two boys were
sleeping in the outbuilding.

Furthermore, it was not
disputed that the deceased earlier in the day left the common home at
16:00 to attend a memorial service by which time the accused had not
yet returned home from work. Upon his return at 18:00 the accused
enquired about the whereabouts of the deceased and soon thereafter,
he went out for the evening. The deceased returned home at 22:00 and
retired to bed at midnight while the accused came home at around

[6] The State called several witnesses, mostly police officers, who
described to Court the events following the shooting incident. There
were no eye-witnesses called by the State and the only person able to
explain the events preceding the shooting incident, is the witness
Siwombe Napemba (Ruve), who at the time, was asleep in her bedroom.

[7] Napemba told the court that she opened the
back door for the accused upon his return where after he proceeded to
the main bedroom while she went to hers, closing the door of her
bedroom. All she could hear was the accused sounding angry when
asking the deceased about the food they had for dinner and she
expected them to start quarrelling. Napemba then opened her bedroom
door to hear what was being said. She was unable to hear any further
discussion between the accused and the deceased and as no quarrel
started, she again closed her bedroom door. She fell asleep but was
after about 15 minutes woken by a sound as if something fell. Soon
thereafter the accused entered her bedroom saying:
you please go to my room, I have done wrong to your name sake.”
(The witness and the deceased were both
known by the name “Ruve”). They entered the main bedroom
together where the deceased was found lying on her back on the floor
next to the bed. She observed an open wound on the deceased’s left
arm from which she was bleeding. Unable to wake the deceased,
Napemba went out to call Mutusha, whereafter they returned to the
main bedroom. Mutusha and the accused again tried to wake the
deceased, but got no response from her. The accused then used his
mobile phone and made a phone call to a police officer, to whom
Napemba heard the accused say that the officer had to come and see
what he had done to his wife, and that she did not want to wake up.
They then tried to place the deceased onto a blanket in order to
carry her to the accused’s vehicle, but without success. Shortly
thereafter the first police officer arrived and Napemba and Mutusha
left the room.

In cross-examination Napemba replied that the
accused appeared shocked after the incident.

When asked who normally had possession of the fire-arm in question,
Napemba said that she had never seen the deceased with it and that
the accused, as the owner, always had possession thereof.

[8] Matusha in all respects confirms what Napemba related to the
Court. As regards possession of the firearm in question, he was
unaware that a firearm was kept in the house and had only seen the
accused in the past with a different firearm.

[9] Evidence was given by several police
officers, who were summoned to the scene after the incident and the
first of them to arrive was Inspector Nawaseb. According to him he
received a phone call from the accused at about 02:27 requesting him
to come to the accused’s house saying
“I killed my wife. I made a big mistake”.

Upon his arrival he entered the main bedroom and found the deceased
lying on the floor between the bed and the wall. He examined the
body for any sign of life but detected none. He noticed a CZ pistol
on the bed, which he then removed for safety reasons. Inspector
Tsuseb, warrant officer Elijah (now deceased) and warrant officer
Kavindja also arrived, the latter from the Scene of Crime Unit.
After Insp Nawaseb made certain pointing out, w/o Kavindja took over
and after he had finished photographing the scene, the corpse was

According to Insp Nawaseb the accused appeared to
be in shock and acted out of character. It was decided to take him to
the hospital for treatment. Insp Nawaseb and w/o Elijah later
fetched the accused from the hospital and took him to the police
station where he was asked whether he could explain what had
happened. After being informed that he was not compelled to give an
explanation he responded by saying:
I can recall is that my wife asked me why I was so late? This
resulted into a quarrel between me and my wife. I don’t know how I
got hold of the firearm and the next moment I just heard a bang/noise
of a bullet and my wife fell from the bed. I wanted to scare her.”

Accused still did not appear to be well and it was decided to
discontinue the questioning where after the accused was taken to the
charge office.

[10] W/o Kavindja
photographed the scene as pointed out to him by Insp Nawaseb, from
which he compiled a photo plan that was handed in (Exh H). He
furthermore did a gunshot residue ‘test’ (GSR) on the hands of
both the deceased and the accused which, together with the firearm,
were sent for forensic analysis to Windhoek. The ‘test’ referred
to was the collecting of gunpowder particles from the hands of
accused and the deceased. W/o Kavindja furthermore explained that he
found a spent casing, as well as a spent projectile, on the floor of
the main bedroom. He decided to check the walls of the bedroom for
any sign that it was hit by the projectile or a fragment thereof. He
could find no new marks on the walls and disagreed, when put to him
in cross-examination that the bullet ricocheted from the wall.

[11] William Nambahu
is a chief ballistic scientist in the employ of the National Forensic
Science Institute, Windhoek and his testimony evolves around the
testing and examination of exhibits handed in at the Institute by w/o
Kavindja. These were 1 x 9mm pistol (serial no. 142556); 1 x pistol
magazine; 1 x spent case; 1 x spent projectile; 14 x bullets; 4 x
containers with gunshot residue (GSR). An analysis of the
aforementioned exhibits revealed that the spent projectile and case
(found on the scene), were fired from the pistol with serial no.
142556, which is the same firearm found on the bed by Insp Nawaseb.
As regards the gunshot residue collected from the hands of accused
and the deceased, no residue was chemically detected on any of the
exhibits received.

Mr Nambahu was extensively cross-examined
by Mr Makando on the spent projectile he had received and
specifically whether it had signs of having hit a hard object like a
wall. He made a distinction between a bullet that ricochets and one
that bounces off a hard object – in the first mentioned, he
expected the projectile to be flattened at a specific angle while the
second, should be flattened at the top. Upon examination of the
projectile delivered to him, he could find no signs that it had made
contact with a hard object after being fired.

[12] Elizabeth Kaundja is a professional nurse and was on duty at
Rundu State hospital when the accused was brought in for treatment.
He appeared to be sick and suffered from high blood pressure, for
which the doctor gave a prescription. After it was administered the
accused slept a while and when he woke up, his condition appeared

[13] The State further
called two family members, whose testimony did not take the issues in
dispute any further.

Shinimbo Napemba is a
cousin of the deceased who stayed with her and the accused from 1992
– 2003. On that fateful night she was at home in Rundu and was
only afterwards informed of what had happened at the deceased’s
house. During her earlier stay with the deceased, she never saw the
deceased in possession of a firearm, nor is she aware of an incident
in which the couple’s last born was almost struck by a bullet fired
from a firearm handled by the deceased.

The other witness is
Mbereshu Mudi, also a cousin of the deceased. She only arrived at
the scene later and insisted on seeing the deceased’s body before
it was taken away. According to her, she and the deceased had a very
close relationship and she had never before seen the deceased in
possession of a firearm. She also had no knowledge of an incident in
which the deceased fired a firearm at Grootfontein. Although she did
refer to an incident when the deceased was shot in the leg, she did
not mention the circumstances in which it happened, other than
stating that the deceased was living in an abusive relationship. She
did not explain on what grounds she had come to that conclusion and
whether this was conveyed to her by the deceased or anyone else.
This obviously amounts to inadmissible hearsay evidence and must be

[14] The evidence
of constables Joseph and Dien merely refer to the time when they were
called to the hospital to guard over the accused whilst he was
receiving medical treatment. Cst. Joseph later on transported the
deceased from the house to the hospital where a medical doctor
certified her as dead and the corpse was thereafter taken to the
morgue. During transportation of the body it did not sustain any
further injuries. Cst. Dien stated that at the hospital he observed
the accused crying.

[15] Kanyetu Nandjira
is the youngest sister to the deceased who attended a memorial
service with the deceased earlier that evening. In the early hours
of the following day she learned of the passing of her sister. The
relevance of her evidence does not lie in the events which took place
at the accused’s house that morning, but rather of two previous
incidents during 1992 and 1993 respectively.

The first incident
played out during 1992 when the witness was staying with the accused
and the deceased in their house in Rundu. One night when the accused
returned home he went to the main bedroom where the deceased was and
after a while the deceased came into the lounge, followed by the
accused. She heard the accused saying to the deceased:
is a smell of your husbands in the room. You must be careful, I will
kill you.”
Nandjira then stood up
from where she and another old lady were sitting across the lounge to
see what was happening when a shot rang out, the bullet grazing
passed her breaking the window. The deceased ran outside, followed
by the witness and the old lady from where they went to the house of
one Shinimbo, where they spent the night. They returned the
following morning. Nothing came from this as the incident was not
reported to the police.

The second incident was narrated
to the witness by the deceased during 1993, when the witness was no
longer staying with the family but only came to visit. On this
occasion a shot was allegedly fired inside the house at night by the
accused, where after the deceased woke the witness and reported to
her what had happened. Although unaware of what had happened,
Nandjira in the morning, started looking for any sign of the shooting
and then noticed that the toilet door was hit. Again, this incident
was not reported to the police. She also stated that she had never
seen the deceased with a firearm and she is unaware of any incident
during 1990 in Grootfontein, when a shot was fired by the deceased,
almost hitting her youngest child.

Nandjira furthermore, for purposes of this trial, pointed out to
warrant officer De Celestino certain points relating to the two
incidents testified about by her. These are contained in a photo
plan compiled by him on 23 November 2007 at the request of detective
warrant officer Simbwae, the investigating officer. (Exh N) The
photos depict the lounge where the alleged shooting took place during
1992 as well as the window pane which was broken when hit by the
bullet. It further contains two photos showing a mark on a door
which Nandjira testified about as the mark she found the morning
after the alleged shooting in 1993.

[16] The post mortem
report handed in by agreement (Exh E), was compiled by the late Dr
Shangula and due to her passing, the State called Dr Vasin in order
for him to comment on the report. He testified that he could not go
into any detail as he had not written the report, but said it was a
single gunshot injury where the projectile travelled from
to right
from the left arm pit,
entering the thoracic cage on the posterior aspect of the body; with
the exit wound on the exterior aspect of the right upper arm. This
evidence was not disputed and is consistent with the findings noted
in the report.

[17] Accused was the
only defence witness. He started off by testifying about an incident
which happened in Grootfontein in 1990, during which the deceased had
fired a shot from outside their house into the bedroom in which the
accused and their youngest child were, causing them to flee to
another room. Despite the matter being reported to the police by
their neighbours, no formal charges were laid.

Deceased was transferred to Rundu during 1991
while the accused and the children remained behind in Grootfontein
until April 1992 when the accused was also transferred there.
According to the accused he took
of the house in September 1991 and when an inspector of the Ministry
of Works, Transport and Communication inspected the house, the
already broken window pane and damaged door were pointed out to the
inspector. Accused denied that these were damaged by him and he was
unaware of any incident when the deceased had to flee from the house
seeking shelter. To him, this was all made up by the deceased’s
family. He was also unaware of an incident where the deceased was
shot in the leg and specifically instructed the investigating officer
to investigate these rumours. He furthermore disputed the evidence
of the witness Nandjira that she had been staying with them during
1992 and particularly, that he had fired any shot that grazed past

The accused’s evidence is that the firearm in
question was in possession of the deceased already since
2000 and he referred to a time when she came with it to Aus when
visiting him there in 2004. He explained that he gave her the firearm
because of the volatile situation in the Kavango Region at the time
and that the deceased was also travelling to the farm regularly.

Regarding the events leading up to the killing of
his wife, accused said that after he came from work
day, he changed clothes where after he went to Omushare Lodge where
he met his cousin. After one beer they proceeded to a shebeen at
Ndama where they remained until between 01:00 - 02:00 before
returning home. He was let in by Napemba (Ruve) and went to the main
bedroom where he found the deceased still awake. She started
questioning him on his whereabouts and accused him of returning from
a lady called Elma, a cousin of the deceased and a close friend of
the accused. He said the deceased then went up to the wardrobe from
where she took the firearm and demanded that they should go to where
the accused had come from.

They started quarrelling,
during which the accused reminded the deceased about the shooting
incident in Grootfontein when she had nearly killed their child. He
asked her to surrender the firearm but she refused, where after he
grabbed her hand holding the firearm, in an attempt to wrestle it
away from her. Accused said he accidentally touched the trigger and
a shot fired. At that stage the accused was standing on the right
hand side of the deceased while she stood with her left side facing
the bedroom wall. He had pulled her on her right arm while the
firearm was pointing in the direction of the wall. In his evidence
in chief the accused was adamant that the bullet ricocheted from the
wall, thereafter hitting the deceased. When the deceased collapsed,
he got hold of her and made her lie down on the floor, where after he
went to call Napemba. He said he then became confused and tried to
call an ambulance and Insps. Tsuseb and Nawaseb. He recall having
been at the hospital; w/o Kavindja lifting something from his hands;
and him being taken to the police station where Insps. Elijah and
Nawaseb questioned him. He can recall having been asked what had
happened, but not what his reply was on these questions because he
was not feeling well. Because of that they did not question him any
further. The next day he was formally charged and when his warning
statement was taken down, he elected to remain silent.

[18] The facts which
are common cause are that the accused pulled the trigger of the
firearm (Exh 1); the deceased was struck by a single bullet fired
from the said firearm as reflected in the post-mortem report (Exh E);
that the deceased died as a result of the gunshot wound; and lastly,
that the accused and the deceased were alone when the latter was

[19] In order for the
State to secure a conviction on a charge of murder, it has to prove
beyond reasonable doubt that the accused acted with the required
when he fired the shot namely, that
he had the intent to kill. Alternatively, if unable to do so,
whether the accused then should be convicted of culpable homicide or
any of the competent verdicts under section 258 of the Act.

[20] What is clear from the evidence is that the
only person able of testifying about what happened between the
accused and the deceased on that fateful night, is the accused and
that the State case is entirely based on circumstantial evidence.
Therefore, in considering whether the accused indeed committed the
crime of murder, this Court is required to draw inferences from the
proved facts and along the lines set out in the well known case of
v Blom
1939 AD 188 at 202-3.

[21] It is common
cause that the accused at different stages that night after the
shooting incident, made certain reports to different people about
what had happened. Except for the time when he was taken to the
police station by Insps. Elijah and Nawaseb and asked to explain what
had happened, the accused made the other statements spontaneously and
out of his own free will.

The first report he had made was shortly after the
incident when he called
Napemba while
saying that he had
“done wrong” to
her namesake. The only reasonable meaning that can be ascribed to
these words is that the accused had
something which he perceived to be
Despite accused saying during his evidence in chief that he was
confused the
time he called Napemba, he confirmed in cross-examination that he had
said those words.

Regarding what he had told Insp Nawaseb over the
phone the accused said (in chief) that he could not recall having
said to the inspector that he wanted to
his wife or that he had killed
his wife; however, in cross-examination
he admitted having told the inspector that he had killed his wife,
but added that he at that stage was
and even crying.
Still during cross-examination he added that he had told Insp.
Nawaseb to come to his wife
“as she
sustained injuries”.
This was
clearly new evidence and neither had it been put to Insp. Nawaseb
when he testified. When asked to explain, accused replied that he
was confused at the time. According to Insp. Nawaseb the accused had
also said that “
he had made a big
which was not disputed.
This latter part of the report is consistent with what he had told
Napemba shortly after the incident took place i.e. that he had

The report made by the accused to Insps. Nawaseb and Elijah followed
after the accused had been informed that he was not compelled to
inform them about what had happened, where after he mentioned about
being asked by the deceased why he came home that late; this erupted
into a quarrel; he didn’t know how he got possession of the
firearm; a shot fired and his wife fell from the bed; he wanted to
scare her. He could recall the officers saying that he did not
appear normal and therefore they stopped questioning him and left.
Accused testified that in the morning when he was asked whether he
wanted to make a statement he declined, because he was still
confused. In cross-examination accused stated that he could not
recall having said to Insp. Nawaseb what he had testified about and
whether it was at all said by him.

[22] These statements
made by the accused are self incriminating and it would therefore be
of importance to view and consider them in context. Those State
witnesses, who observed the conduct of the accused that night, are
all in agreement that he acted out of character and appeared to have
been in shock; which explains the decision to have him taken to
hospital for treatment. I do not believe that there is evidence to
find otherwise and when regard is had to the circumstances
surrounding the shooting incident in which his wife had died in his
presence, it seems to me quite natural for someone to go into shock
under those circumstances. It does not however mean to say that,
because the accused was in a state of shock, the Court therefore must
completely disregard everything he had said from the time he went
into shock; or that he was incapable of appreciating the situation he
was in or unable to communicate and express himself comprehensively.
Unless there is satisfactory and reliable evidence to the contrary,
it does not automatically follow as a consequence of someone who is
in shock. It therefore remains for the Court to determine what
weight, if any, has to be given to the self incriminating admissions
made by the accused in the circumstances.

[23] To complicate
matters even further the accused, on a question put to him by the
Court about his state of sobriety when he returned home that night,
replied that he was intoxicated (
bit drunk”).
This prompted a
question by the State whether he was só drunk that he did not know
what he was doing, to which he replied that he was not all that drunk
and could remember
“some things”,
referring to the shooting incident.

[24] Accused did not
really dispute that he had made any of the statements testified about
by the State witnesses and in cross-examination he said that after
the shot fired, he was unable to recall anything. This
notwithstanding, he
confirmed in
cross-examination that he told Napemba that he had
as well as that he told Insp. Nawaseb
that he had
killed his wife.
As for the rest, he said it was possible that he could have said it
as he was unable to recall. Neither one of these two witnesses were
shown to be untruthful during cross-examination, on the contrary, the
accused, on certain aspects of their evidence, relied on their
testimony to support the accused’s version i.e. that he appeared to
be in shock. Their evidence was largely corroborated by the accused
himself. Despite the accused’s allegation that the deceased’s
family fabricated the evidence against him, there is absolutely
nothing to show that either Napemwa or Insp. Nawaseb was part of such
a conspiracy. They testified in an honest and forthright manner and
gave credit to the accused where it was due. I therefore, can find
no reason why this Court should not rely on their evidence and
accordingly find the accused to have uttered the words testified on
by both State witnesses.

[25] When considering
the accused’s narrative of what happened after the shooting
incident, it is quite clear that he recalls much more than what he at
first was willing to admit. For instance, he gave a detailed account
of the deceased’s position immediately after the shot fired and how
he placed the firearm on the bed in order to catch the falling
deceased; the position in which he laid her down; his exact words to
Napemwa; the phone calls he made, first to call an ambulance to which
there was no response, and thereafter to Insps. Tsuseb and Nawaseb
and what he had told the latter; that he took the car keys from the
table and turned the vehicle around; that he observed the neighbours
looking on from their yard and one police officer was among them;
that he started crying; at the hospital w/o Kavindja took something
from his hands; that he was guarded by police officers; and how
Insps. Nawaseb and Elijah later took him to the police station where
he was questioned.

The version of the accused relating to what
the shooting incident is not only coherent, but also corroborates the
evidence of the two State witnesses and the only evidence where the
accused tried to distance himself from, concerns the admissions he
had made to the witnesses.

[26] In S
v Shikunga and Another,
1997 NR 156
(SC) at 177I the Court, after having considered several judgments of
the Appellate Division of the Supreme Court of South Africa regarding
an extra-curial statement of an accused, applied the same principle
to this jurisdiction namely, that once an extra-curial statement of
an accused is adduced in evidence, it must be viewed and valuated in
its entirety, inclusive of assertions and explanations favourable to
the maker. (
R v Valachia and Another,
1945 AD 826 at 837;
S v Nduli and
1993(2) SACR 501 (A) at 505

The Court then quoted
with approval the sentiments expressed in
v Nduli and Others, (supra)
at 505g:

statement made by a man against his own interest generally speaking
has the intrinsic ring of truth; but his exculpatory explanations and
excuses may well strike a false note and should be treated with a
measure of distrust as being unsworn, unconfirmed, untested and self

This principle will not only apply to recorded
statements, but as in this case,
also to
oral statements. These statements should not be viewed in isolation
but together with the rest of the evidence.

[27] This brings me to
the accused’s evidence concerning the discharging of the firearm.
It is common cause that the bullet entered the deceased’s left arm
pit, went through the chest and exited on the right upper arm. From
the trajectory of the projectile it is possible to say that the
deceased’s left arm must have been raised, exposing the armpit the
time the shot was fired; and that it was fired from the deceased’s
left side, unless there is evidence to prove otherwise.

The accused explained and demonstrated his and the
deceased’s positions and actions immediately prior to and during
the discharge of the firearm and according to him they were both
standing side by s
ide with accused on her
right side, and deceased facing the wall. She held the firearm in
her right hand while he had placed both his hands over hers; trying
to wrestle the firearm from her, at which stage it fired. It is the
accused’s testimony that the deceased was struck when the bullet
ricocheted from the wall. When it was put to the accused in
cross-examination that, had it been like he explained, the entry
wound could not have been on the left
of the body but on the front
as the deceased was facing the wall, he explained this by saying that
because one is able to turn one’s head, the deceased stood
sideways, with
only her face turned towards the wall. This implies that the
deceased was looking to her left side,
from the accused standing on her
immediate right, while wrestling with him to maintain possession of
the firearm. With regard to the position of the entry wound, accused
demonstrated how the deceased had raised her left arm above her head
the moment the shot fired. However, bearing in mind that she was
busy resisting the accused from disarming her, it seems to me an
unusual position for her to have her arm in, as one would expect of
her to use
both her
hands in the struggle.

[28] The first time
that the ricocheting of the bullet was mentioned by the accused is
when the section 112(2) statement was read out in Court. At no
earlier stage did he make mention thereof to any of the police
officers on the night of the incident or to the investigating officer
to investigate such a possibility and when asked why he failed to
inform the investigating officer, he replied that he was not
afterwards taken to the scene, nor was he asked about it by the
investigating officer. I find the accused’s reply surprising,
because he did, according to himself, request the investigating
officer to investigate other aspects of his defence relating to the
incident in Grootfontein, as well as the damage done to the house
when they moved in during 1992. Now, if the accused deemed it
important to have those issues investigated, why did he not at least
raise the ricocheting of the bullet earlier or had that possibility
investigated? After all, it forms the pinnacle of his defence!

At the commencement of the proceedings the accused
stated (in the section
112(2) statement)
that he was
“more than convinced
that…the firearm…was discharged causing the shot to hit the wall
and thereafter (ricocheted) to cause the fatal wound.”

From the manner in which it is framed, it is clear that there is
some degree of uncertainty in the accused’s mind as to what
actually happened. This is also evident in a question put to Mr.
Nambahu in which it is stated that the accused
the shot penetrated the wall.”
took it a bit further in his testimony and said that the bullet
ricochet, without saying why he was certain of that fact. It was
only during cross-examination that the accused said that he actually
saw the
bullet hit the wall. That certainly raises the question why would he
then at the beginning of the trial still speculate over such
possibility if he
it for a
that the wall was hit; and why was that not mentioned in his
evidence? His excuse for not having been asked is unsatisfactory and
unconvincing especially in the light of him claiming to have told his
counsel that he saw dust coming from the wall.

[29] W/o Kavindja’s
evidence is clear that he, upon finding the spent projectile on the
floor, checked the walls of the bedroom for fresh marks but found
none. He therefore disputes the accused’s claim that the bullet
ricocheted from the wall.

[30] The answer to the question whether the bullet ricocheted or
not seems to lie in the appearance of the spent projectile found
lying on the bedroom floor. The evidence of Mr. Nambahu is clear
that upon his inspection of the spent projectile, he found no sign on
it that it had ricocheted but instead, he found that it was identical
to a projectile that was fired into a soft body like water. He went
on to say that had the projectile hit a hard surface, it would be
expected to have damaged the projectile. In the absence of any sign
of damage to the projectile, he was certain that it did not hit a
hard object like a wall. Thus, he disagreed with the accused’s
contention that the bullet first hit the wall before it struck the

[31] No scientific evidence refuting Mr. Nambahu’s version was
led by the defence and neither was it shown that he was an unreliable
witness. That a projectile fired from a firearm into a hard surface
will show signs of damage, seems logical to me and does not require
any form of expertise to make such observation. The accused himself
had a look at the spent projectile and found no sign of damage on it.
Therefore, Mr. Makando doubting Mr. Nambahu’s practical experience
as regards the appearance of projectiles fired into hard objects
simply has no merit.

[32] Having given proper consideration to the version of the
accused regarding the discharging of the firearm, I have come to the
conclusion that the deceased could not have been struck by the bullet
in the manner described by the accused and that his evidence in that
regard stands to be rejected. I have also considered other
possibilities, including that the deceased might have inflicting the
injury to herself but then, why would the accused implicate himself
by saying that he handled the firearm? Now, after excluding the
aforementioned possibilities, all that remains is the possibility of
the accused having fired the fatal shot at the deceased.

When regard is also had to what the accused said
to the two State witnesses shortly after the incident namely
that he had
that he
his wife and made a big
that he
“got hold of the firearm”
and just wanted
“to scare her”,
one seems bound to come to only one conclusion and that is that the
accused handled the firearm and fired a shot at the deceased,
wounding her fatally. In order for the Court to draw the inference
that it was indeed the accused who had fired the shot, it (i) had to
be consistent with the proved facts and (ii) it should reasonably
exclude all other inferences. (
R v

[33] This Court is
alive to the fact that no onus rests on the accused to convince the
Court of the truth of any of the explanations he had given even if
that explanation is improbable, unless it is satisfied that it is not
only improbable, but false beyond reasonable doubt.(
v Difford
1937 AD 370 at 373) It was
also said that the test remains, whether there is a reasonable
possibility that the accused’s evidence may be true and in applying
that test, the Court need not even believe his story. It is
sufficient if the Court is satisfied that there is a reasonable
possibility that it may be substantially true. (
v Jaffer
, 1988(2) SA 84 at 89D)

[34] The accused himself was not an impressive witness. He
contradicted himself several times when attempting to explain what
transpired on that fateful night, and adapted his evidence whenever
he found himself in a tight spot under cross-examination viz. the
positions he and the deceased were in when the shot was fired; the
bullet ricocheting from the wall; and the extent of the reports he
made subsequent thereto. I am further satisfied that these
discrepancies cannot only be ascribed to the accused going into shock
after the incident, therefore, because any (other) reasonable
explanation is lacking, it could only mean that the accused invented
some aspects of his evidence as he testified.

[35] This is evident from the manner in which the
accused in his testimony tried to distance himself from having had
possession of the firearm at the time. None of the State witnesses
who had close relationships with the deceased
saw the deceased in possession of the firearm and the accused’s
reasons why he had given the firearm to his wife, is unconvincing.
Neither was there any reason for the deceased that evening to resort
to the use of the firearm even if she had access to it where it was
kept in the bedroom. Napemba heard the accused raising his voice at
the deceased and expected an argument to start but this never
happened. Even after opening her bedroom door she did not hear the
accused and deceased quarrel as he now claims. If the deceased was
aggressive as the accused says, then Napemba must have overheard the
argument. Furthermore, as was correctly in my view argued by the
State, from the manner in which the deceased was dressed, it does not
appear that she was about to leave the house. The accused’s
explanation on the point that the deceased would still have dressed
herself, I also find unconvincing. It certainly tends to show the
accused’s awareness of guilt and his intention to hide certain
information from the Court. It also explains the contradictions in
his version of the events that took place that night.

[36] The number of independent circumstances
present in this case should not be considered individually but its
cumulative effect must be considered. These circumstances point to
the same conclusion and as it was stated in
Siambango vs. The State
Case No. CA
98/99 (unreported) delivered on 23 January 2002 at p. 29:

is of the utmost importance to bear in mind that, where a number of

point to the same conclusion there is not the sum of the simple
probabilities of those circumstances, but it is the compound result
of them”.

[37] Having duly
considered the accused’s evidence regarding the circumstances under
which the firearm was discharged; as well as the circumstantial
evidence related thereto, I am satisfied that not only is the
accused’s evidence improbable, but false beyond reasonable doubt
and thus, it is rejected to that extent. The Court therefore finds
that the accused fired one shot at the deceased which led to her

[38] In Hoffmann & Zeffertt, 4th
Edition at p602 the learned authors discuss the view taken by South
African courts when considering the circumstantial effect of an
accused giving false evidence. In his dissenting judgment Malan JA,
R v Mlambo 1957
(4) SA 727 (A) at 738B-D said:

an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime or even,
perchance, escaping conviction altogether and his evidence is
declared false and irreconcilable with the proved facts a court will,
in suitable cases, be fully justified in rejecting an argument that,
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as if he had done so.”

It was however submitted that full effect should
be given to the words
“in suitable
and then the learned authors
continue at p603:

instance in which the dictum can be applied could be found in the
facts of Mlambo’s case: if an accused has killed someone in an
unlawful assault, and, if the accused alone is in a position to
explain the circumstances of the fatal assault, and if he gives an
account that is rejected as false, then the court can draw an
inference that the accused committed the assault with the intent to
kill rather than with a less serious form of mens rea. Everything
depends on the facts of each case; but in a criminal case, the
evidence of an accused may form an essential part of the entire
evidentiary material. Its acceptance or rejection can be decisive as
to whether he is to be acquitted; or, if he is acquitted on the main
charge, whether he has to be convicted of a lesser offence. If an
accused does not give evidence, or if his testimony is rejected as
false, the court is deprived of the assistance of what could have
been important information. A proper application of the Mlambo
dictum merely signifies that an accused cannot complain if, because
of his falsehood, the trier of fact does not give him the benefit of
the doubt in this context, that he killed the deceased
intending to kill him or that he killed him with a lawful purpose.
The first and second rule in R v Blom apply to the weighing up of all
the material evidentiary factors which include this factor.”

See: S v Rama,
1966 (2) SA 395 (A);
S v Engelbrecht,
1993 NR 154 (HC)

[39] The Court, having rejected the accused’s
evidence regarding the shooting incident, does not have the benefit
of reliable evidence on the subjective state of mind of the accused,
in other words, to determine what was going on in his mind the time
when he fired the shot. (
S v Mokeng,
1992 NR 220 (HC)) In deciding that,
the Court considers objective factors such as the type of weapon or
instrument used; at which part of the victim’s body was the assault
directed; and the nature of the actual injury sustained by the
victim. (
S v Beukes 1988
(1) SA 511 (A)) From these indicators the Court will then draw
certain inferences.

Although the onus is on the State to prove beyond
reasonable doubt that the accused acted with intent, it does not
require of the State to prove that he had acted with
as it is trite law that “a
person has the necessary intention to kill if he appreciates that the
injury which he intends to inflict on another may cause death and
nevertheless inflicts that injury reckless whether death will ensue
or not.”
v Mini,
1963 (3) SA 188 (A) at 190B)
Intent thus, in the form of
will suffice.

[40] When applying the aforementioned principles
to the present facts, regard is had to the weapon used being a 9 mm
pistol which was fired at close range into the upper body of the
deceased, with fatal consequences. The only reasonable inference to
draw from these facts in my view is that, if the accused did not act
with direct intent then at least he must have foreseen that his
action could result in death but that notwithstanding, fired the
fatal shot. Such a finding is consistent with the accused’s
statement shortly thereafter, namely, that
have wronged; I killed my wife; I wanted to scare her.”

The latter forms part of the statement the accused had made at the
police station and already then did he say that he did not know how
he got possession of the firearm, contrary to what he later on
testified, then giving a detailed account of what, according to him,
happened. The Court however did not believe him.

[41] In my view the Mlambo dictum
finds application to the present facts
and the accused cannot complain if he is not being given the benefit
of the doubt and is convicted of murder even though he might not have
intended to kill. However, when considering all the facts as well as
the circumstantial evidence of the shooting, I am unable to find that
the accused acted with direct intent, as that is not the only
reasonable inference to draw from the proved facts. I am convinced
that the accused committed the offence of murder, acting with intent
in the form of
dolus eventualis
that was proved beyond reasonable doubt.

[42] In the result:

Main count – Murder: Guilty

Alternative count – C/s 38(1) (1) Act 7 of 1996 – Negligent
discharge of a firearm: Not guilty



Adv. R. Shileka

Instructed by: Office
of the Prosecutor-General

S.S. Makando

Instructed by:
of Legal Aid

CASE NO.: CC 05/2008



In the matter between:





Heard on: 07 April 2009

Delivered on: 08 April 2009



Gerald Kashamba, you stand convicted of murder in that on 8
September 2007 at Rundu, you have unlawfully killed your wife by
shooting her with a firearm. We are now at the stage where this
Court has to consider what suitable punishment to impose on you
today. It is indeed no easy task and requires the weighing up of all
factors relevant to sentencing; to find the right balance between
them, without over or under emphasising any one of them.

[2] The factors
referred to are the personal circumstances of the accused, the crime
and the interests of society. Sufficient weight has to be given to
each factor while at the same time the Court is enjoined to consider
the element of mercy.
v Zinn

1969 (2) SA 537 (A);
v Khumalo

1973 (3) SA 697 (A).

The Court

must be mindful of the objectives of punishment and must endeavour to
strike a balance between the interests of the accused, the interests
of society and the crime in relation to the objectives of punishment
namely, prevention, deterrence, reformation and retribution. The
personal circumstances of the offender play an important role and
must not be overlooked, because it is ultimately the accused that
must be punished for the crime committed. Because the personal
circumstances of people differ as well as the facts of each case
being unique, sentences for similar offences will differ.
v Tjiho

1991 NR 361 (HC)

[3] The personal circumstances of
the accused were placed on record under oath by the accused himself
and these are the following: Accused at the age of 51 years is a
first offender; he completed grade 12 and has for his whole life been
a police officer, currently holding the rank of warrant officer; he
has been suspended since his arrest in 2007 with the subsequent loss
of income; an inevitable consequence of his conviction will be his
dismissal from the police, with no prospects of ever being
reappointed; he is in custody since his arrest on 8 September 2007;
he has two daughters currently studying at the Politech and UNAM in
Windhoek respectively; he is not certain where the money comes from
to cover their tuition fees; his youngest son is being cared for by
friends; accused and the children suffer emotionally since the
incident to the extent that the accused has become depressive for
which he received treatment in Windhoek. The accused has been
tormented by the thought of having lost his wife and he believes that
he will suffer for some time to come. He stated that he has remorse
and preyed the Court to show mercy on him and for the deceased’s
family to forgive him.

[4] Judging from the accused’s
personal circumstances placed before the Court as well as the praise
given to him by his immediate superiors, one is able to see that the
accused prior to the incident, was a person who had built up a career
within the police force from where he was able to support and
maintain his family quite comfortably. The deceased obviously, being
a principal, equally contributed to the life style they managed to
attain. Part thereof was the accused’s farming activities on
communal land where he hopes to return to one day.

[5] The situation in which the
accused and his children find themselves in at present must be
extremely difficult, for not only have the children lost their
mother, but their father was the cause thereof and in all likelihood
was due to be sent to prison. Not only are they to suffer from the
loss of love and affection between parents and children, but suddenly
their own futures were plunged in uncertainty concerning their
tertiary studies and there was also no family life to speak of.

[6] This Court is very sensitive to
the distress and hardship caused to family, friends and relations of
the accused who suffer a great deal due to the misdeed of the
accused; but alas, it is something which is an inevitable consequence
of crime and where the accused is sent to prison, it is a penalty he
has to pay and something those affected thereby unfortunately, have
to deal with. Although difficult times are lying ahead for the
accused as well as his children and other family members, I do not
believe that it cannot be overcome over a period of time. The two
girls who are currently studying have financial assistance from their
mother’s estate which should enable them to complete their studies.
As for the accused, it is a well known fact that counselling
facilities are available to inmates in prison from which the accused
can benefit should a custodial sentence be imposed.

One cannot but feel
deeply for the children of the accused, regrettably, one cannot allow
sympathy for them to deter one from imposing the kind of sentence
dictated by the interests of justice and society.

[7] The accused
testified that he regretted what has happened and preyed for the
Court’s mercy. Except for telling the Court how devastated he was
about what had happened, he did not express himself about feeling
remorse. It has been said that in order for remorse to be a valid
consideration in sentencing, the penitence must be sincere and the
accused must take the Court
into his confidence otherwise the Court would not be able to
determine the genuineness of the contrition the accused claims to
have. (
v Seegers

1970 (2) SA 506 (A) at 511 G-H)

The accused
throughout the trial denied any wrongdoing on his side and tried to
put the blame on the deceased for creating
contributing to the situation which led to her death. I have no
doubt that the accused has regrets about what had happened, but that
is far from genuine contrition for the wrong he has done. Thus, the
accused’s so called ‘regret’ should carry very little if any
weight in mitigation of sentence.

Regarding the crime committed, murder is seen to be very serious
and would normally attract severe punishment, for someone has been
robbed of his or her life; a fundamental right enshrined in our
Constitution. In the present case the accused has robbed his
children of having a mother who could love and support them in life;
family members who clearly showed their respect and affection for the
deceased; and the community’s loss of a professional and productive
member from its ranks; someone who has dedicated herself to society
as principal of a school in that region and as such, involved herself
in the education of our children. One can therefore understand why
the death of the deceased caused a row in that community and why it
was widely reported on in the media.

On that fateful night the accused had turned a firearm on his own
wife, someone who was unarmed and defenceless against him. This
happened in the safety of their home, where he as

was supposed to protect his family and not subject them to domestic
violence and put their lives at risk. Unfortunately that night he
took it too far and killed his wife by firing a shot at her with his
firearm; killing her instantly. From the evidence of Napemba it is
clear that the circumstances certainly did not require the use of any
force against the deceased who by then, had already been in bed.
From what Napemba could hear, the accused was dissatisfied about the
food that had been prepared for dinner, causing the accused to raise
his voice against the deceased. The Court has rejected the accused’s
version of what followed thereafter and will never know the truth of
what actually happened between him and the deceased that night.

In my view the circumstances surrounding the death of the deceased
in this case bear testimony to the extent of the violence and abuse
perpetrated against women and children in the family structure in
this country and which, I am ashamed to say, we have now become
accustomed to. It is unthinkable that any right minded person will
deliberately fire a shot at one of his family members for any reason
other than in self defence. I cannot for purposes of sentencing
disregard the evidence of the deceased’s sister Kanyetu Nandjira,
who testified about two previous incidents in the past where the
accused fired shots inside the house during arguments between him and
the deceased. On one such occasion the bullet grazed past the
witness, breaking a window pane while on the second, it slammed into
a door. It seems to me that the accused has a history of resorting
to the use of firearms to assert himself during quarrels with the
deceased and the shooting of the deceased that night is testimony

Accused, being a police officer with the rank of warrant officer
and a well respected member of the police force, was not only under a
duty to uphold the law and generally protect members of society, but
these principles also applied to himself within the context of his
own family. He clearly not only betrayed his family but also the
community, especially his superiors who held him in high esteem and
who could not believe that the accused would commit such crime. The
fact that the accused is a police officer might have been the reason
why the previous shooting incidents were never reported to the police
and acted upon. He clearly showed no respect for the law within the
parameters of his own home which sadly, was thé place where his
family could feel safe and enjoy family life.

The circumstances under which the
accused killed his wife, in my view, are aggravating and weigh
heavily against him when it comes to sentencing.

Serious crimes like murder, rape and robbery top the list of crimes
daily committed callously and with impunity throughout Namibia and
with absolute disregard to the rights of those who are peaceful and
orderly in society. The courts through its decisions and sentences
must uphold law and order in society and demonstrate its disapproval
of those who threaten the fabric of society, lest the general
populace will lose faith in the legal system and take the law into
their own hands. The circumstances surrounding the death of the
deceased were not well received by the community and led to protests
aimed at not having the accused admitted to bail.

Although the Court
is under a duty to serve the public interest
it must be mindful that public expectation is not synonymous with
public interest and the courts should not give in to the expectations
of society and impose sentences which society deems just. The courts
must safeguard their independence and have to consider sentences in
accordance with well established principles applicable to sentencing
and of which public interest is but one factor to be taken into

In the present case the Court will have regard to the community’s
expression of condemnation of the accused’s act not only for having
killed his wife, but also, for having taken away from society a
person who had played an important role in the community as the
principal of a school.

When considering what sentence will be just, regard is had to the
objectives of punishment namely, prevention, deterrence, reformation
and retribution and the circumstances of each case will largely
determine which of these deserve emphasis. Given the current levels
of violence and serious crimes committed currently in this country,
it seems to me that the emphasis should be on deterrence and
retribution. Although standing before this Court today as a first
offender, the accused has to be punished for what he has done and the
sentence he today receives must serve as deterrence to him and a
warning to likeminded criminals that they will be severely dealt with
by the courts if they indulge in committing serious crimes.

Each factor relevant to sentencing must be given its weight and
balance, the one against the other. It however does not mean that
each factor need to be given equal weight as situations can arise
where it becomes necessary to emphasise one at the expense of the
other. See:
v Van Wyk
NR 426 (HC)

[16] There
appears to be a general perception that where the offence of murder
is committed with intent in the form of
then that

is a mitigating factor however, the phrase
as such, has nothing to do with mitigation and is merely a legal
expression to indicate that an accused had a certain form of intent.
Mitigation lies in the fact that the accused did not have direct
intent to kill. (
v de Bruin en ‘n Ander

1968 (4) SA 498 (A) at 505;
v Joseph Gariseb and Another

unreported delivered on 24.10.2006)

Therefore, it is
not necessarily a consequence that in all cases where the accused had
to kill but intent in the form of

that this fact would constitute a mitigating factor; as all will
depend on the facts of each particular case. In the present case the
Court rejected the accused’s evidence and convicted him after
drawing certain inferences from the proved facts i.e. that the
accused had intent in the form of
I do not deem it proper in these circumstances to find that
therefore, it must be seen to be a mitigating factor for purposes of

[17 It is trite that the period an
accused spends in custody, especially when it is lengthy, is a factor
which normally leads to a reduction in sentence. I shall accordingly
take into account the period of time the accused had spent in custody
since his arrest on 8 September 2007 and ameliorate the sentence

Although the accused’s personal circumstances may not be
overlooked which include factors such as him being a first offender;
and that he is awaiting trial for the past year and seven months, I
have come to the conclusion that the gravity of and the circumstances
under which the murder was committed as well as the interests of
society in this particular crime, overshadow his personal
circumstances and that a lengthy custodial sentence is called for. I
am not persuaded by the submissions of defence counsel that the
circumstances of this case justify the imposition of a suspended
sentence and when regard is had to the personal circumstances of the
accused, especially his age, I do not believe that a partly suspended
sentence as deterrence, will serve any purpose.

In the result, Gerald Kashamba, you are sentenced as follows:

years imprisonment.

In addition the Court makes the
following orders:

  1. In terms of section 10 (6) of the
    Arms and Ammunition Act, Act 7 of 1996 the accused is declared
    unfit to possess a firearm for a period of 5 years, which period
    will only take effect after the accused had served the sentence
    imposed in this case.

  2. In terms of section 35 (1) of the
    Criminal Procedure Act, Act 51 of 1977 exhibits 1 – 5 are
    forfeited to the State.



R. Shileka

of the Prosecutor-General

S.S. Makando

Instructed by:

Directorate: Legal Aid