SHIVUTE: A.J.

[1] The accused stands charged with two counts namely: murder, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003, and defeating or obstructing or attempting to defeat or obstruct the course of justice alternatively violating a dead human body.

The allegation in respect of the first count is that upon or about 10 June 2007 and at or near Oshakati in the district of Oshakati the accused did unlawfully and intentionally kill Enatu Mwegatya Uulumbu, an adult female person.

As for the second count it is alleged that in that upon or about 10 June 2007 and at or near Oshakati in the district of Oshakati the accused did unlawfully and with intent to defeat or obstruct or attempt to defeat or obstruct the course of justice set alight a hut/structure in which Enatu Mwegatya Uulumbu or her deceased body was, causing the body to become charred.

Whereas such act was perpetrated whilst the accused knew or foresaw the possibility that:

1. His conduct may frustrate or interfere with police investigation into the disappearance and or death of the deceased; and or

2. His conduct may conceal the death and/or may destroy the physical evidence of an assault perpetrated on the deceased; and/or

3. His conduct may protect him from being prosecuted for a crime in connection with the assault, disappearance and/or death of the deceased.

Wherefore the accused is guilty of the crime of defeating or obstructing or attempting to defeat or obstruct the course of justice.

Alternative charge to count 2:

As far as this count is concerned, it was alleged that upon or about 10 June 2007 and at or near Oshakati in the district of Oshakati the accused did unlawfully and intentionally physically violate the dead human body of Enatu Mwegatya Uulumbu by setting it alight and thereby causing it to become charred.

[2] Mr. Uirab from Legal Aid Directorate appears on behalf of the defence and Mr. Sibeya appears on behalf of the State.

[3] When the indictment was put to the accused Mr. Uirab objected to the first count on the indictment in terms of Section 85 (1) of the Criminal Procedure Act,Act 51 of 1977 on the grounds that:

1. The charge does not set out an essential element on the relevant offence.

2. That the charge does not comply with the provisions of the Act relating to essential of the charge.

3. That the charge does not contain sufficient particulars of any matter alleged in the charge; hence the charge is vague and embarrassing as it does not indicate the manner in which the accused killed the deceased and that the defence is not in a position to prepare its defence properly.

[4] Mr. Sibeya in reply urged the court to dismiss the objection because the defence did not lodge a notice as required by the Act; that the docket was long disclosed to the defence, that the charge contained all the essentials as it set out the place, the date, the year the offence was committed and the particulars of the charge. In addition to the indictment the defence was provided with a summary of substantial facts and the summary of substantial facts amplifies or states how the offence was committed.

[5] The Court dismissed the objection as it was not well founded and secondly the defence did not give notice to the state setting out the basis of their objection as required by the first proviso in section 85(1) of Act 51 of 1977.

[6] The accused pleaded not guilty to both counts and to the alternative to the second count.

In terms of section 115 Act 51 of 1977 the accused disputed having had the requisite intention to kill the deceased in respect of the first count.

However, he made formal admissions in terms of section 220 Act 51 of 1977 that he struck the deceased twice with a knobkierie in the chest.

In respect of the main charge on the second count the basis of the accused’s defence was that he wanted to destroy his house including the hut. His intention was not to attempt or to obstruct or defeat the course of justice.

Accused admits in terms of section 220 Act 51 of 1977 that he set the house on fire to destroy the whole house. In respect of the alternative charge it is not denied that the accused had an intention to violate the dead body.

[7] After the plea explanation the State submitted the following documents by agreement:

a) The State’s pre trial memorandum which was marked as exhibit ‘A’.

b) The accused’s reply to the State’s pre trial memorandum which was marked as exhibit ‘B’.

c) Proceedings in terms of section 119 Act 51of 1977 which was marked as exhibit ‘C’ and;

d) Scene of Crime photo plan which was marked as exhibit ‘E’.

In terms of the accused’s reply to the plea trial memorandum the following were not in dispute:

1. Accused admits that he set the hut/structure alight.

2. The identity of the deceased.

3. The admissibility and contents of the postmortem examination of the deceased’s body.

4. That the deceased’s body did not sustain any wound or injury during transportation from the scene until the time of the postmortem examination was conducted;

5. The admissibility and contents of the warning statements;

6. The admissibility and contents of the magistrate’s Court proceedings including the proceedings in terms of section 119 Act 51 of 1977.

7. That at the time of the deceased’s death the accused was married to the deceased in accordance with the law or custom;

8. That at the time of the deceased’s death the accused and the deceased lived together in a relationship in the nature of marriage;

9. That at some stage in the past the accused was employed by the Namibian Police as a police officer;

10. That on 10 June 2007 the accused hit the deceased with a knobkierie or other object;

11. That on 10 June 2007 the accused set alight the hut/structure in which the deceased was and thereby caused her body to be charred.

[8] The following were put in dispute:

1. The accused disputed that his intention was to kill the deceased as it was an accident;

2. The accused disputed that his intention was to defeat the course of justice as he only wanted to destroy the house and the accused hit the deceased so that she could leave the bedroom in order for the accused to set the whole house alight.

[9] When the accused appeared in the Magistrate Court, a plea was taken in terms of section 119 Act 51 of 1977 and he pleaded guilty to the charge. The Court applied section 112 (1) (b) Act 51 of 1977. The following were questions and answers.

Q- Are you forced to plead guilty to the charge?

A- No.

Q- Why are you pleading guilty to the charge?

A- I am pleading guilty to the charge because I assaulted a person which led to her death and I later burnt her inside the hut.

Q- Whom did you assault?

A- Enatha Nekulu Uulumbu.

Q- Is he a male or female?

A- A female person.

Q- With what did you assault her?

A- I assaulted her with a walking stick and that stick has (sic) two heads.

Q- Where on her body did you assault her?

A- I assaulted her on her chest.

Q- How many times?

A- It was two times.

Q- What happened to her after you assaulted?(Sic).

A- After I beat her because when I beat her she was sitting in her bed, she just fell on the bed and I then left outside the room and I left her inside the room. Then I stayed outside for about 15 minutes. I came inside the room to see how she was. I touched both her arms but I observed that she was already dead. Because I have decided already, I decided to burn my house (sic).

I took paraffin and sprayed it inside the room and the grasses which is on the hut; I took a match and set the room on fire. After seeing that the fire lighted up I went to the cemetery near our field. The time I set fire on the hut the deceased was still inside the room. From there I stayed there for about 15 minutes then the police came towards our house I then left walking going to Oshakati (sic).

I came to Oshakati and went in a certain house where I was found by the police on Sunday. Because I arrived early in the morning, I wanted to wait until the next morning to go and report myself to the police, but before that the police came to arrest me. I did not know the name of the house owner but I only know the boys who lived there. My friends are Sondag and the lady who also came there Ndeshipanda Mwaamekange.

Q- Who is the deceased to you?

A- She is my wife.

Q- Did you assault and kill Enatha Nekulu Uulumbu on the 9/6/07 at or near Uukwedhidhi village in the district of Oshakati?

A- Yes.

Q- It is alleged that you intentionally kill her?

A- It was not my intention to kill the deceased but it was only that there were many things that happened before. I informed her that I will leave but I must burn my house. She said she was not going to leave her property behind. I started pulling her after we quarreled but she refused to come out of the room. When I was pulling her I fell to the ground and hurt myself on the head. From there I took a stick and beat her but my intention was not to kill her. But now people might think that I am defending myself now. What I am saying is correct (Sic).

Q- Did the deceased do anything to you?

A- No but she has been using bad words towards me.

Q- Did you know that to assault a person with a stick might cause injury or death to that person?

A- Yes I know, but I did not know as my mind left me.

Q- Did you also know that to set fire on the room where a person is might cause injury or death to that person?

A- Yes but on that date I was not aware as I was out of my mind.

Q- Why did you assault the deceased and set fire on the room where she was?

A- It was because she said I am also sick. That is all but there were many things which happened before.

[10]The Court then entered a plea of not guilty in terms of section 113 Act 51 of 1977. The accused was warned that the facts he admitted so far would still stand as proof to such allegations.

[11] In terms of the photo plan, photo 2 is of particular importance because point B indicates the place where the deceased was allegedly found; photo 1 point A indicates a house at Uukwedhidhi village which was destroyed by fire;

Photo 3 indicates a close up of point B in photo 2. Photos 4-6 display the remains of the house and damage allegedly caused by fire.

[12] There are no eye witnesses called by the State to testify about what exactly transpired which resulted in the death of the deceased. However the State called several witnesses including the two neighbours, the deceased’s mother, police officers and the medical doctor.

[13] The first witness called by the State was Doctor Yuri Vasin to comment on the report on a medico–Legal post–mortem examination because Doctor Sandra Perera who conducted the post–mortem and compiled the report had in the meantime returned to her country of origin.

According to the post–mortem findings in the medical report the body was completely incinerated. The doctor made further findings as follows:

• Exposed muscles were ruptured.

• Exposed abdominal and tornaie visceras.

• Skull and large bones fractured by heat.

• All visceras were charred.

• That the cause of death was burning.

Dr. Vasin observed during cross–examination that since the body was completely incinerated or charred it was not possible for the doctor who conducted the postmortem to determine the cause of death.

[14] The second witness called by the State was Sgt. Seth Tsuseb. He testified about a matter which is not in dispute namely, that the body did not sustain injuries during transportation up to the point of post-mortem examination.

[15] The third witness called by the State was Beata Amweenye, a neighbour to the accused. She testified that on 09 June 2007 at about 18H00 she was with her sister Albertina Asser at the accused’s place. Whilst they were talking to the deceased, the accused came. The accused was not happy to see them there because earlier on there were already people who came to his house enquiring about a stolen goat. He asked the witness and her sister why they were standing at his house. He warned them not to come to his house anymore or to draw water from there. After the witness and her sister were warned by the accused they both left.

[16] In the evening around 19H00 the accused passed at the witness’s place. The witness and her sister Albertina were the only occupants at their house. The accused allegedly threatened to kill them if they went inside his yard. The witness and the accused exchanged some words thereafter the accused left.

After some time the deceased came to the witness’s house and the witness narrated to the deceased what transpired between them and the accused.

After that the deceased went back home. At midnight the witness heard a sound which sounded like gunshots. The sound went on three times. The witness and her sister woke up and went outside to investigate what was going on. They observed that the accused’s house was on fire and they saw police cars. They then decided to go to the accused’s place. They did not find the accused there. However, it came to their knowledge that the deceased was burned in the house. According to this witness, the accused and the deceased were the only two people who were staying in their house. Constable Mbamba asked the witness whether she knew the name of the deceased and the witness identified the deceased as Enatha Uulumbu.

[17] The next witness called by the State was Albertina Asser a sister to Beata Amweenye. Her evidence corroborated the evidence of Amweenye and it is not necessary for the Court to repeat it. However, when Mr. Uirab cross–examined the two witnesses on behalf of the accused, he disputed that the accused threatened to kill the two witnesses if they happened to go to his house. Instead it was suggested to the witnesses that the accused said if they went to his house he would injure them or cause some problems to them as they allegedly insulted him. Both witnesses maintained that the accused threatened to kill them should they happen to go to his house.

[18] The fifth witness called by the State was Beata Kandjeke the mother to the deceased. She testified that the accused and the deceased were married to each other. After they got married they separated for a while because of the fight, the accused used to beat the deceased. However, after sometime they reconciled, and stayed as husband and wife.

The witness testified further that the day preceding the death of the deceased, the deceased spent a night at the witness’s house. The accused also visited the witness’s house and informed the deceased about the people who allegedly came to their house looking for a stolen goat. The discussion took place in the witness’s presence.

After the discussion the accused left and the deceased only went back home in the afternoon.

On 10 June 2007 the witness was informed about the death of the deceased that she was burned in the house. It was put to the witness through cross-examination that the deceased was HIV positive and that she was sickly. The witness responded that she was not aware of the deceased’s HIV status and that the deceased was not sickly.

[19] The last witness called by the State was Constable John Kandjimi Mbamba, the investigating officer in this matter. It is his testimony that on 10 June 2007 at about 02H00 early in the morning he received a report of a person who was burned in the house at Uukwedhidhi village. Upon receiving the report he went with constable Shapaka to the scene. They found the fire had already been extinguished. They observed a human body of a female which was burned beyond recognition except the breasts which were visible. The body was identified as that of Enatha Uulumbu. It was loaded in a police van which he was driving and it was taken to Oshakati mortuary. The body did not sustain any further injuries during transportation.

[20] On 10 June 2007 the accused was arrested at a certain house in Oshikango location, Oshakati West. He was taken to the police station for interrogation. The witness explained to the accused of his rights to legal representation and the right to remain silent. The accused responded that he would conduct his own defence and that he would like to give an explanation. He explained to the witness what happened, and in addition he gave a warning statement in which he repeated what he told the witness, except for some differences to which I will revert later.

[21] The accused in his warning statement stated that the deceased had wounds between her legs. When he went to look for the deceased at her mother’s house, the deceased was sick and that was the reason she spent a night at her mother’s house. He further stated that whilst they were at home he left the bedroom to go and check if the wife had cooked since he had not eaten for three days. He did not find any food at the kitchen and he went back to the bedroom. He then asked the deceased why she did not cook and whether she did not know that he did not eat for some days or whether she wanted him to die from hunger.

[22] The deceased responded that if he, the accused died she would not care. And that she did not care about him. The accused asked the deceased whether she wanted him to die from hunger? The deceased commented if she was sick did the accused not think that he would also get sick. He then told the deceased that he would get sick if the deceased had infected him with the disease. The deceased then said she didn’t mind what he was looking for when he went to her.

The accused then told the deceased that if it was like that he was going to burn the house, to which she responded that the accused could do what he wanted. The accused ordered the deceased to leave the room, she refused. He took the matches and again ordered her to leave the room. The deceased told the accused that she was not going to leave the room if he wanted to burn the house he could burn her as well together with her property. At that stage the deceased was sitting on the bed. The accused held her by the arm in order to pull her out of the room, the deceased pushed the accused and he fell down on the door of the sleeping room and injured himself on the back of his head.

[23] The accused questioned the deceased again whether she was not going to leave the room, she sat again on the bed. The accused stood up, he took his knobkerrie and beat the deceased twice on the left side of the chest and she fell down. I pose to observe that this part of the statement appears to be inconsistent with what the accused first told the investigating officer, because according to constable Mbamba, the accused told him that he took the walking stick which had a knob and it looked “almost like a knobkierie”. And that he beat the wife on the breasts. Mbamba continued to inform the court of what he was allegedly told by the accused to the effect that after the deceased fell down on the bed, he again assaulted her on the part where he beat previously with the same walking stick. When she was allegedly beaten on the second occasion she was lying on the bed. The accused went outside and stayed for about five (5) minutes. He went back to the room held her arm and checked if she was moving. He checked her eyes, she was not moving and he realized that she was dead. From there he decided that he would not leave his house, since there was a bottle of paraffin which they were using he took it and started to pour the paraffin on the sheets which were in the room. The deceased’s body was still on the bed. He then went outside, took the grass from one of the huts and took matches. Thereafter he set the house alight. When he saw that the house was on fire he went to sit in the cemetery.

[24] Whilst at the cemetery he saw the police and people from Municipality coming to extinguish the fire, he left the cemetery and went to Oshikango location in Oshakati where he stayed there until he was found by the police.

It was the accused’s intention to go and report to the police that he was the one who burnt the sleeping room where his wife was.

[25] Constable Mbamba testified further that after he arrested the accused, he asked him concerning the whereabouts of the knobkierie which was used to kill the deceased to which the accused said he left it at the place where the incident happened. When the witness went back to the scene he observed that every - thing was burned.

[26] The accused was the only witness for the defence, what he stated next is similar to the warning statement except for the variations and because of the importance of his testimony I will present it at some lengthy albeit at the risk of perhaps being repetitive.. He started off by testifying that he was employed by the Namibian Police from 1995 to 2002 in the Special Field force and prior to that he was a member of People’s Liberation Army of Namibia (PLAN). During his career as a soldier and a police officer he had come across dead people and he was required to determine whether they were dead or alive. He would normally check if the body was cold; whether the veins were working i.e. if there was blood flow; check the eyes, and pulse on the neck as well as on the hands. He further testified that when he was a soldier in the PLAN he was given first aid training in medicine at Tobias Hainyeko Training Centre in Lubango, Angola. He had encountered injured or deceased guerilla soldiers. He had declared some of his colleagues dead in the battle field.

[27] He went on to say that the deceased was his wife who got married to him in 1991. At the time of her passing they were still married to each other. On 09 June 2007 people came to his house asking about his wife and inquired about a lost goat. His wife was not at home by then. He decided to go to Otuwala village at his mother-in-law’s house where his wife spent a night. Upon his arrival there he found his wife lying. She appeared to be sick. After talking to his wife he left before his wife, but he did not go straight home. He passed at his neighbour’s place and around 18H00 to 19H00 he left his neighbour’s house for his house. When he arrived at his house he found his wife in the company of Beata and Albertina, the two state witnesses whose evidence had already been referred to. He found them at the entrance and asked them what they were looking for at his house since they accused him of stealing a goat. Beata and Albertina were allegedly in the company of a woman and a boy who were looking for the stolen goat. Albertina, Beata and the deceased’s wife allegedly insulted the accused, they were saying the place where the accused’s house was, did not belong to him and that the house did not belong to the accused. The accused chased Albertina and Beata to leave his place. He warned them not to come to his place anymore or to draw water from the tap which was at his place.

[28] His wife went in the house and he also went in the house. The house consisted of zinc plate rooms and some huts. It belonged to both of them. Whilst the accused was in the room he changed clothes and left for his neighbour’s house in order for him to “cool down and to visit”. On his way to the neighbour’s house he passed at Beata and Albertina’s house. He warned them again not to go to his house otherwise they would cause him problems. At that stage he was not angry.

[29] He stayed at his neighbour’s house until about 20H00 to 21H00. He then went home in their bedroom. He did not talk to the deceased instead he went to the kitchen to check if there was food for him. He discovered that there was no food prepared for him. He was hungry and inquired from his wife why she did not cook, was it because she was sick or did she want him to die from hunger. The wife told him that she did not care because he was also sick. He then said if he was sick he was infected by her, they started to quarrel. The accused suggested that they should just separate and when they separate nobody would remain in the house as he was going to burn the house down. The deceased responded that if he wanted to burn the house he should do what he wanted. He reminded her that he was serious with the idea of burning the house.

[30] He told her to leave the house because he wanted to burn the house. She said she would not leave the room; he could burn it whilst she was still there. By that time she was still lying on the bed. The accused tried to remove his wife by pulling her on the arm. He pulled her behind him near the bed; there was a pole she held the pole and it looked as if she was pushing him. He fell down and injured himself against the door and after he fell down the deceased went back to the bed. He took one stick; it was a walking stick which had two heads. According to his estimation the stick was about 1.5 m long its head was almost the size of the accused’s fist or the size could be bigger as the head of the microphone (i.e. 3.5 cm thick when the microphone was measured). The deceased was by then seated on the bed. He stabbed her twice with the walking stick. He was holding the stick with both hands. The version that the accused stabbed the deceased twice continuously with the stick is inconsistent with what he said in the warning statement that he stabbed the deceased and fell down and whilst she was lying he again stabbed her at the same place he stabbed earlier. It was the intention of the accused to injure the deceased for her to get pain and leave the room.

[31] After he stabbed the deceased on the left side of the chest he went outside for some time may be 15 minutes. The 15 minutes version is not consistent with the five minutes he mentioned in his warning statement.

When the accused came back to the room he found the deceased lying on the bed. He checked her arms but was just going down. He took off the sleepers which she was wearing; touched the body again, the body was just cold. He checked the eyes, but the eyes were not moving at all; checked the pulse but there was no sign of blood flow. After he made all the checking he realized that she was dead and he decided to burn the house. He took a container of paraffin and poured the paraffin on the grass set it alight and threw it in the room. The deceased by then was still in the room. Thereafter he went to sit in the cemetery. Whilst in the cemetery he could see people from the municipality and the police going to or at his house extinguishing the fire. From the cemetery the accused went to a certain house at Oshikango location, Oshakati West. His intention was to stay there until he had gone to the police station to report. However, before he could go to the police station constable Mbamba came and arrested him. The accused wanted to report himself on a Monday, two days after the incident leading to his prosecution.

[32] It is a version of the accused that when he assaulted the deceased he did not know that she would die because the intention was not to kill her. Before the incident he had previously assaulted people with a knobkierie but they never died especially when he was young he used to fight with other boys.

He further testified that on the day of the incident he had no watch and that when he said he went outside for about five minutes or about ten to fifteen minutes he was just estimating.

[33] He vehemently denied that he threatened to kill Albertina and Beata prior to this incident as he just warned them. He further stated that he had no intention to kill that day and if his wife had complied with what he was telling her, he could not have burned the house.

[34] It was further the testimony of the accused that on that fateful day he had no firearm, it was not his intention to interfere or obstruct or defeat the cause of justice. He had no intention to interfere with the police investigations. It was not his intention to violate the dead body. His intention was only to burn the house. Through cross-examination he stated that the walking stick which he used to kill the deceased got burned as it was in the room. He knew the stick could be used as evidence. When the accused was confronted about his medical training in cross–examination he stated that he was not issued with any certificate. He also disputed the fact that he never instructed his lawyer that he said he would injure Beata and Albertina.

It was his version that when he went to the room his wife appeared to be sick but he could not tell as to how serious she was. The deceased was stabbed on the left side of the chest under the breast. He was holding the stick on the knob and the side which stabbed the deceased was not as big as the knob of the stick but the other end that was smaller and sharp.

[35] It was submitted on behalf of the State that the accused did not undergo any training to determine whether a person was or to declare a person dead. The State argued that the version of Constable Mbamba as informed by the accused that, the accused assaulted the deceased with a knobkierie and she fell down on the bed; that the accused again assaulted her whilst she was in a helpless state, should be accepted as such as it was not disputed by the defence through cross–examination. The accused by saying that he assaulted the deceased twice continuously is an afterthought and it should not be accepted. Therefore, so it was argued, the accused should be convicted of murder.

[36] Counsel for the defence submitted that although there were some minor contradictions in the accused’s evidence these did not amount to inconsistences and were not material. He further submitted that even if it is accepted that the accused threatened to kill Beata and Albertina in the evening, this does not mean that the accused had an intention to kill the deceased. However, the defence maintained that the accused never threatened to kill the two witnesses.

Mr. Uirab argued further that the only evidence regarding what transpired at the time of the deceased’s death is the version of the accused and such version was also relied upon by the State when preferring charges against the accused. Therefore so counsel submitted, the accused’s story should be accepted to represent the factual aspects of the case. The State did not prove the intention to kill and the accused should be convicted of a lesser offence of culpable homicide, so he further argued.

[37] As far as the second count is concerned it was argued on behalf of the accused that the accused’s conduct was not consistence with a person who wanted to defeat or obstruct the cause of justice, or and an attempt thereof. The State had failed to prove the second main charge and had only proved the alternative, so it was submitted.

[38] As far as the murder charge is concerned the State case rests solely on circumstantial evidence as none of the witnesses witnessed the killing of the deceased. However, there are a few issues to be considered; whether the deceased died before the house was burned or whether she died when the house was burning and whether the accused had the requisite intention to kill the deceased or whether he was negligent in killing the deceased.

[39] From the testimonies of the witnesses called by the State, there is no evidence indicating at what stage the deceased met her death apart from the medical evidence adduced by the State. Although the cause of death was indicated on the post-mortem as “burning incinerating body”; the chief post mortem findings indicates that the body was completely incinerated. This evidence was corroborated by the testimony of constable Mbamba who transported the remains of the deceased that the body was completely charred. There is no indication on the post-mortem report or from any other source of how the course of death was determined. If the body was burned beyond recognition, as if to compound the problem Dr. Vasin as already noted, testified that since the body was charred there is a possibility that the cause of death could not be determined. I am unable to make a finding what the cause of the deceased’s death is.

The accused testified that he assaulted the deceased with a knobkierie or walking stick and that the deceased died before he burned the house. Since there is no evidence contradicting the version of the accused that the deceased died before the house was set on fire, it can be accepted as a fact that the deceased died before the house was burned.

[40] The accused testified that he beat or stabbed his wife with a walking stick twice, she fell down. This evidence conforms to what the accused stated in his warning statement. However, constable Mbamba stated that apart from the accused stating in his warning statement, accused had told him that he first assaulted the deceased with a stick once and she fell down. He allegedly assaulted her again while lying down and she died. This version is denied by the accused, the alleged source of the version told by constable Mbamba. The accused’s version appears to be more probable than that of constable Mbamba since it is in consistent with what the accused told the magistrate during the proceedings in terms of section 119 Act 51 of 1977 and what he said in his warning statement. Although the fact that he has been consistent does not mean that he is telling the truth, he is the only person who witnessed what happened.

[41] There is evidence from Beata and Albertina that prior to this incident the accused had threatened to kill Albertina and Beata should they come to his house again. This version was disputed by the defence. Beata and Albertina gave their evidence in a straight forward manner, their testimonies corroborated each other. This Court regards them to be truthful witnesses, the court has no reason to doubt their credibility and that what they testified is what actual transpired. Therefore their version is accepted.

Now could it be said that since the accused had threatened to kill Beata and Albertina, he intentionally killed the deceased?

[42] It will be recalled that the accused pleaded guilty in terms of section 119 Act 51 of 1977. He was asked, in terms of section 112 (1) (b) Act 51 of 1977 as to whether it was his intentions to kill the deceased. He stated that he had no intention to kill the deceased. He was further asked whether he knew that to assault a person with a stick might cause injuries or death to that person to which he responded in the affirmative, and that his mind “had left him”. By answering in the affirmative does this prove his intention to kill?

[43] It is trite law that no onus rests on the accused to convince the court of the truth of any explanation he had given and even if that explanation is improbable, the Court may not convict unless it is satisfied that it is beyond any reasonable doubt false. S v Difford 1937 AD 370 at 373.

The test is not whether the court believes the accused’s story but whether it thinks there is a reasonable possibility that it may be substantially true. S v Kubeka 1982 (1) SA 534 (w) at 537.

[44] The accused’s evidence is not without any discrepancies with regard to what transpired when he killed the deceased, whether he first assaulted her once and she fell down or whether he assaulted her twice continuously, fell and died. Apart from this contradiction there are other discrepancies in the accused’s version. However all these did not relate how the deceased was killed and are not material to establish the intention of the accused.

The Court needs to assess whether the State has proved its case beyond reasonable doubt when measured against an accused’s conflicting evidence. The Court should measure the totality of evidence in its approach and not in isolation. In S v M 2006 (1) SACR 135 (SCA) at 183 n – 1) it was stated:

“….but by assessing properly whether in the light of the inherent strengths, probabilities and improbabilities on both sides, the balance weighs so heavily in favour of the State that any reasonable doubt about the accused’s guilty is excluded”.

[45] To prove the intention of the accused to kill, the Court needs reliable evidence on the subjective state of mind of the accused, in order to determine what was going on in the mind of the accused when he assaulted the deceased. To come to such conclusion the Court has to consider objective factors such as the type of weapon or instrument used, at which part of the body of the victim was the assault directed to and the nature of the actual injury sustained by the victim. S v Beukes 1988 (1) SA 511 (A). The Court will then draw inferences from these indicators.

The fact that the onus of proof lies with the prosecution throughout to prove the guilt of the accused beyond reasonable doubt that the accused had acted with intent, it is not required from the State to prove that he had acted with dolus directus, 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” S v Mini 1963 (3) SA 188 (1) at 190B.

[46] When applying the above stated principles to the facts of the present case, regard had to be given to the walking stick used. The deceased was stabbed twice with the walking stick. Unfortunately the Court did not have the benefit to look at the object used as it was left to be destroyed by fire according to the accused’s version. The size of the stick is not something that the court could objectively observe. The measurements were gleaned from the accused’s estimation of the size of the knobkierie. The accused described the knob of the walking stick to be more or less the size of his fist or bigger as the head of the microphone which is about 3–5 cm. The stick itself was about 6cm wide. It is the accused’s version that the deceased sustained a lump or the place where she was stabbed became dark.

[47] One should have regard to the version of the accused that the deceased was sick or sickly with some wounds at her private parts. Although this version was denied by the accused’s mother, the accused was in a better position to observe the deceased. Perhaps one should also pose a question whether death would normally result if a person is assaulted twice with a walking stick of the size described by the accused? My view is that there is no evidence to support the findings answering the question in the affirmative.

[48] As far as the second count is concerned, it is clear that after the accused killed the deceased, he set the house on fire whereby the body of the deceased was burned beyond recognition and the object used to assault the deceased was destroyed. Because the body was completely charred it was not possible to determine the cause of death, according to Dr. Vasin as already observed. It was also not possible to see the object used to kill the deceased as it was completely burned and the police were not able to conduct a proper investigation. The accused is not just an ordinary person; he was a police officer who knows that an object used in the commission of the offence ought to be preserved to facilitate the investigation. He knew very well that if the deceased’s body and the object used to kill the deceased are destroyed completely then the police will not be in a position to conduct proper investigations and that is what exactly happened. It is also an undisputed fact that the deceased’s body was violated. But seeing that the main count had been proved the alternative falls away.

[49] When considering the totality of the evidence, it is clear that to determine what transpired when the deceased died, one has to rely on the evidence of the accused as there is no scientific or other evidence contradicting that of the accused. My conclusion on this aspect of the case is that although the accused’s evidence is not perfect, it could reasonably be possibly true. When applying the aforementioned approach to the facts before me a walking stick if used to assault a person the way it is alleged to have happened, in normal circumstance would not result in death, so as to draw an inference that when the accused hit the deceased twice with a stick had intended to kill her. Therefore, the State had failed to prove beyond reasonable doubt that the accused acted with intent in form of dolus directus or dolus eventualis and that he is guilty of the offence of murder. However, the State had in my view established that he had acted negligently, which finding lies in the fact that despite his knowledge that the deceased was sickly he proceeded to assault her with a walking stick not only once but twice on a sensitive area of the body. A reasonable person with knowledge of the possibility in these circumstances would have foreseen the possibility that by stabbing the deceased with a walking stick in the chest the deceased might die, and would have guarded against the possibility. The accused’s negligence resulted in the unlawful, causing of death of another human being.

[50] In the result, the Court arrives at the following verdicts.

Count 1: Not guilty of murder.

Guilty-culpable homicide.

Count 2: Guilty –main count, Defeating or obstructing the course of justice.

_________________________________(Signed)

SHIVUTE, A.J.

ON BEHALF OF THE STATE          Adv. O. Sibeya

Instructed by:                                  Office of the Prosecutor-General

ON BEHALF OF DEFENCE            Mr. B. Uirab

Instructed by:                                  Directorate: Legal Aid