CASE
NO.: CC 03/2009

IN
THE HIGH COURT OF NAMIBIA

In the matter
between:

THE
STATE

versus

MATHEUS
KAZONDJOU

CORAM:
SIBOLEKA,
J

Heard on:
2010 March 17; 19; 23; 26; 31 &

2010
April 01;

Delivered on:
2010 April 09

________________________________________________________________________

SENTENCE:

SIBOLEKA, J

[1] After
his plea of guilty, the accused has been convicted on the following
six crimes: Murder, Robbery with aggravating circumstances,
Housebreaking with intent to steal and theft, Possession of a firearm
without a license, Possession of ammunition without
being in possession of an arm capable of firing such ammunition, and
Malicious damage to property.

[2] It
is now the task of this Court to impose a sentence which is suitable
in the circumstances. In this endeavor I am alive to what has become
known as the triad, consisting of the crime, the offender, and the
interests of society. (See State
v Zinn
1969 (2) SA 537).

[3] I will first
start with the personal circumstances of the accused.

[4] In mitigation
of sentence submitted by his counsel, the accused is now 34 years
old. He was 27 years at the time of the incident, not married, no
children and has no formal education.

[5] His father
passed away while he was still a young boy and as a result he grew up
without a father figure. His mother and elder sister are still
alive. As a result of difficult living conditions, he left his home
village in 1996 to look for work. His first job was that of a
herdboy at Aminus where he earned N$150,00. Between 1997 and 2003
the accused worked as a mechanic at Gobabis earning N$200,00 per
month.

[6] The accused
does not have any earthly possessions of any kind, and is therefore
not in a position to compensate Gabriel Katuuo for the one cow he has
shot and killed.

[7] Accused
pleaded guilty to all six counts, a conduct generally seen as
remorseful of what had happened. He is a first offender and has
spent four years and two months in custody awaiting for trial and
finalization of this matter. He regrets his actions and is
continuously asking for forgiveness for the grief he has caused to
the family of the deceased.

[8] The
circumstances leading to the death of the deceased are as follows:

[9] The accused
was looking for work in Otjinene when he met Gabriel Katuuo, the
grandson of the deceased. They went together to the latter’s
home at Hamutuue Village. It was during the opening of schools and
Gabriel Katuuo was busy preparing for the departure of his school
children. There was no time to discuss the details of the work the
accused was looking for.

[10] Gabriel
transported his children to far away places such as Gobabis, Windhoek
and Drimiopsis. Before he left, he assigned the accused to look
after the homestead, all animals, cattle, goats and sheep. This
request also included looking after the deceased, an 80 year old
lady.

[11] Accused and
the deceased were the only two people that Gabriel Katuuo left at his
homestead.

[12] The deceased
owned most of the cattle at this homestead ± 280 to 300 in
number. She helped to manage the homestead and to sell some of the
animals in the absence of Gabriel Katuuo, for the upkeep and
maintenance of the homestead.

[13] Although the
deceased was Gabriel Katuuo’s grandmother he called her his
mother, because from infanthood (babyhood) she was the only one who
attended to him round the clock like his biological mother would have
done. The deceased grew him up till adulthood.

[14] During the
period he was looking after the homestead, the accused broke into
Gabriel Katuuo’s house. While inside the house he forced the
gun cabinet open, took out an 8.57 mauser rifle with ammunition. He
then proceeded to the deceased’s house. He found her in the
sitting room seated on the sofa. He shot her once in the chest as a
result of which she died. At the time of the shooting the deceased
was unarmed and did not provoke the accused in any way. Accused
dragged the deceased’s body into the bedroom, placed it there
and locked the door.

[15] Accused took
the mauser rifle and shot Gabriel Katuuo’s cow dead. He then
went into the veld and threw away the keys of the deceased’s
bedroom, and hid the mauser rifle. The police had to break the door
of the deceased’s bedroom in order to remove the corpse. The
community rounded up the accused and took him to the police station
where he was arrested. The accused showed the police where he threw
the keys and hid the mauser rifle.

[16] The deceased,
Claudia Munejanda was shot and killed in her own house for no
apparent reason. The police also found the deceased’s Eveready
radio in the accused’s possession. That being the case these
circumstances places the murder of the deceased in the category of
those senseless murders in this country. No reason exists why the
accused shot and killed the deceased in her own house, and none has
been advanced whatsoever.

[17] Every law
abiding citizen is shocked to the core at the rate of murders of
defenseless women. There is undoubtedly a wide spread outrage of
these murders in our society. That is why the community in this
matter decided to roundup the accused and take him to the police
station to face the full wrath of the law.

[18] Our courts
cannot turn a blind eye at that outrage, otherwise they risk
encouraging the breakdown of law and order, and communities taking
the law into their own hands.

[19] The
mitigating factors in favour of the accused are far insufficient to
be regarded as retribution for the wrong that is so revulsive, when
regard is had to the fact that the deceased was shot and killed in
cold blood in her own house.

[20] In
R
v Karg
1961 (1)SA 231 A at 236 B the following was said:

“It
is not wrong that the natural indignation of interested persons and
the community at large should receive some recognition in the
sentences that courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are
too lenient, the administration of justice may fall into disrepute
and injured persons may incline to take the law into their own
hands.”

[21] Crimes such
as murder generally attract custodial sentences with an emphasis on
the specific and general deterrence factor. This calls for an
assessment of the accused as an individual and the mitigating factors
found to be present against the gravity of the offence and the
legitimate interest of society.

[22] When
one looks at the crime rate in our country and the need to curb it
the observation made by the Court in Staat
v Matolo en Ander 1998
(1) SACR 206 OPD are of great assistance:

“In
cases like the present the interests of society is a factor which
plays a material role and which requires serious consideration. Our
country at present suffers an unprecedented and unacceptable wave of
violence, murder, homicide, robbery and rape. A blatant and flagrant
want of respect for the life and property of fellow human beings has
become prevalent. The vocabulary of our courts to describe the
barbaric and repulsive conduct of such unscrupulous criminals is
being exhausted. The community craves the assistance of the courts;
its members threaten, inter alia, to take the law into their own
hands. The courts impose severe sentences, but the momentum of
violence continues unabated. A court must be thoroughly aware of its
responsibility to the community and by acting steadfastly,
impartially and fearlessly announce to the world in unambiguous terms
it utter repugnance and contempt conduct.”

[23] Given the
personal circumstances of the accused, the gravity of the offences,
the legitimate interest of society and the emphasis on the general
deterrence factor, the sentence of the Court is as follows:

[24] Count 1:
Murder: - Thirty five (35) years imprisonment.

[25] Count 2: For
the crime of Robbery in aggravating circumstances in the stealing of
N$200,00 cash and an Eveready radio of the deceased: - Twelve (12)
years imprisonment.

[26] Count 3: For
the crime of Housebreaking with intent to steal and theft involving a
safe and a 8.57 mauser rifle serial number 115674 and an unknown
amount of ammunition of Gabriel Katuuo: - Two (2) years
imprisonment.

[27] Count
4: Possession of a firearm without a license: - Twelve (12) months
imprisonment.

[28] Count 5:
Possession of ammunition without being in lawful possession of an arm
capable of firing such ammunition: Six (6) months imprisonment.

[29] Count 6:
Malicious damage to property involving the shooting to death of a cow
belonging to Gabriel Katuuo: Two (2) years imprisonment.

[30] And in Count
2: Seven (7) years is to run concurrently with the sentence of
thirty five (35) years in Count 1.

[31] It
is further ordered that Counts 3,4,5 and 6 are to run concurrently
with the sentence
of 35 years in Count 1.

[32] In terms of
section 34(1)(a) of the Criminal Procedure Act 51 of 1977, it is
ordered that the safe (gun cabinet) and the 8.57 mauser rifle, serial
number 115674 be handed back to the lawful owner; Gabriel Katuuo.

_________________

SIBOLEKA,
J

ON BEHALF OF
THE STATE: ADV. NDUNO

INSTRUCTED
BY: THE OFFICE OF THE

PROSECUTOR-GENERAL

ON BEHALF OF
THE ACCUSED: MR. KAVENDJII

INSTRUCTED BY:
LEGAL AID