CASE NO.: CC 21/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

JOHANNES HAUFIKU NDIWAKALUNGA

CORAM: LIEBENBERG, J.

Heard on: 31 March; 11 April 2011.

Delivered on: 26 May 2011.

SENTENCE

LIEBENBERG, J.: [1] The accused appeared in this Court
on charges of murder and robbery with aggravating circumstances, to
which he pleaded guilty. The Court was satisfied that the accused
admitted having committed the offences charged, and convicted him on
his pleas of guilty. The matter was thereafter postponed to the 11^th
of April 2011 for evidence in aggravation and sentence. However, on
that day the Court was informed that the accused in the mean time had
escaped from police custody. Accused was apprehended shortly
thereafter and during his subsequent appearance the accused was
represented by Ms. Mainga, standing in for Ms. Nathaniel-Koch.
Ms. Mainga informed the Court that leave was sought to make
further admissions in mitigation as the accused’s erstwhile
counsel allegedly failed to do so in her submissions. It was said
that the accused (still) elected not to give evidence in mitigation.
In addition thereto, the State also sought leave to lead evidence in
aggravation. Leave was granted in respect of both applications.

[2] It seems necessary at this stage to make certain observations on
the statement filed by defence counsel in mitigation. The statement
is styled “ADDITIONAL STATEMENT IN TERMS OF SECTION 112 (2)
OF THE CRIMINAL PROCEDURE ACT, ACT 51 OF 1977” and is
signed by the accused. The statement contains a detailed exposition
as to why the accused was upset with the deceased and what was meant
when earlier submitted that the deceased made his life unbearable
(“hell”).

[3] When pointed out to counsel for the defence that it would be
irregular to receive any “additional statement” made in
terms of s 112 (2) of the Criminal Procedure Act 51 of 1977 in which
the accused’s plea is explained after he had already
been convicted, Ms. Mainga agreed and explained that the
statement was incorrectly styled; as it was meant to be a statement
of the accused in mitigation and in which he sets out the
circumstances that gave rise to him committing the offence. It is on
that basis that the statement was received. I shall return to the
content thereof later herein.

[4] In the two charges on which the accused pleaded guilty it was
alleged that on the 8^th day of December 2009 at
Mweshipandeka Senior Secondary School, Ongwediva, the accused
unlawfully and intentionally killed Gottfried Kamushisheni Ashipala
and thereafter unlawfully robbed the deceased (in aggravating
circumstances) from the items listed in the annexure to the
indictment which, inter alia, included a laptop computer;
cellular phone; N$2 720 in cash; a vast quantity of clothing; shoes
and other personal items, all being the property of the deceased.

[5] Ms. Nathaniel-Koch, then appearing for the accused, handed
in a statement in terms of s 112 (2) of Act 51 of 1977 in
amplification of both pleas, which verbatim reads:

“… I
hereby state that on the 8 December 2009, I went to the house of my
teacher Gotfried Ashipala with the intention to kill him. I was upset
with him because he used to threaten me that he would make my life
hell. When I arrived at his house I had the panga with me and asked
him for a sleeping place. He agreed to accommodate me and gave me a
bed. After watching TV and taking a bath Mr. Ashipala went to bed
first and I followed soon afterwards. At about three in the morning
(3:00 AM) I woke up and whilst he was still asleep, and I slipped out
of bed and took panga. At three thirty (3:30 AM) I started to hack
him, cutting him twice in the head, whilst he was still fast asleep.
He was lifting up his arms in the air and making sounds, so I took a
plastic bag and put it over his head. I also held his nose shut
inside the plastic bag. He was struggling a lot, almost overpowering
me, I again took the panga and cut his throat. As blood was coming
out of his throat, I covered the throat with plastic until he was no
longer moving. I then put a pillow on his head. Afterwards I stole
items and money and left. The items I stole are listed in the
Annexure attached to my plea on Count 2.” (sic)

[6] It is common cause that the accused in 2009 was eighteen years
and seven months old and a pupil at Mwesipandeka Senior Secondary
School when committing the offences. Although no documentary proof of
the accused’s age was presented to the Court, his Voter
Registration Card reflects his birth date as 24 April 1991, making
him twenty years of age at this stage. According to the post-mortem
report death was caused by ‘chopping’ (sic) and it is
evident from the report that the deceased had two distinct cut wounds
on the head, 5 and 8cm long, respectively, causing a depressed
fracture of the skull on the right temporal area and bleeding in the
brain. The third wound is a lesion of the trachea (cut wound on
throat) 9cm long and 3cm wide. From the photo-plan compiled by
Sergeant Taukuheke of the crime scene, one is able to see the wounds
inflicted to the deceased’s head and throat, showing gaping
wounds. The plastic bag the accused had pulled over the deceased’s
head is also visible and judging from the blood smears on the wall
above the bed, it would appear that the deceased had put up
resistance before he succumbed.

[7] Accused elected not to give evidence in mitigation and Ms.
Nathaniel-Koch, submitting on behalf of the accused,
contending that the motive behind the killing was that the deceased,
a teacher at the school, earlier refused to hand over to the accused
his school report for the September exams when requested, as the
accused needed same to register with UNAM. He believed that the
deceased was wilful, not wanting the accused to further his studies.
This made the accused angry because without the report he could not
enrol with UNAM. It was contended that this largely affected the
accused’s reasoning. He thereafter went to the village of his
grandmother with whom he had been staying, and after concluding that
the only option was to kill the deceased, he returned with a panga
the next day. It was furthermore explained that the accused looked up
to the deceased as a father figure; hence, it was said, so much
bigger his disappointment when he was refused his school report by
the very same person. After committing the crimes in question he
returned to his grandmother’s home where he was arrested the
following day. Some of the loot was recovered from his sleeping hut
whilst the rest and the panga were found elsewhere hidden in the
homestead.

With regard to the motive behind the killing, the Court inquired into
the reason why the accused, when planning the murder, simultaneously
decided to rob the deceased of his possessions, if this whole
incident evolved around the exam results. The accused (through his
counsel), however, was unable to advance any convincing explanation.

[8] Diverging reasons for the murder were advanced by the accused in
his “additional submissions”, namely, that soon after he
enrolled at Mweshipandeka Senior Secondary School in 2008, the
deceased started inviting him over to his room at the school hostel.
Occasional visits followed and the deceased subsequently bought the
accused clothes and also gave him money. In August of that year the
deceased made a love proposal and they entered into a sexual
relationship. Although the accused was not initially interested, he
said the deceased started threatening him and made financial and
other promises to him. In April 2009 the accused ended this
relationship whereafter the deceased started accusing him of theft of
money, which led to the accused’s expulsion from the hostel. He
was forced to live with his grandmother at Endola and experienced
problems arriving at school in time – which again, led to
further confrontation between him and the school principal. The
situation described by the accused is one where the deceased picked
on him and where the school principal, despite being aware of the
accused’s predicament, would support the deceased instead.

[9] Regarding the school report, it was said that his class teacher,
a certain Mr. Nelumbu, refused to hand him the report and referred
him to the deceased – and so would the principal when
approached for help by the accused. The deceased thereafter
approached him saying that if they could have sexual intercourse, he
would give the accused his school report and a laptop. Because he was
desperate he agreed but nothing was thereafter given to him as the
deceased wanted them to revive their relationship, which the accused
refused. According to the accused the deceased, for reasons unknown,
refused him to write the Biology paper during the year-end exams and
only after the intervention of the principal, he was permitted to do
so. The accused then felt that the deceased stood between him and a
future and decided to eliminate him whenever the opportunity arose.
When called by the deceased on 8 December 2009, saying that he had a
surprise for the accused, he saw this as an opportunity to carry out
his plan. When the deceased touched him whilst in bed that night,
accused decided to execute his plan to “regain his
independence.”

The accused sees himself at this stage of his life, as
psychologically confused and in need of counselling. He also regrets
not having dealt with the situation differently and extends his
apology to the family of the deceased for the loss and hardship he
caused them.

[10] The subsequent reasons advanced by the accused’s counsel
in mitigation differ substantially from what his erstwhile counsel
submitted and the reason for this, it was said, is because his first
counsel omitted to convey this to the Court. It was also said that
the accused “thought he would get the chance to narrate this to
the Court himself” and that his first counsel did not follow
his instructions. This statement is not supported by what earlier
transpired in Court. Firstly, it was stated in no uncertain terms
that the accused elected not to give evidence in mitigation;
neither when represented by Ms. Nathaniel-Koch, nor when later
represented by Ms. Mainga. Thus, on both occasions the accused
declined to give evidence in mitigation and opted, through his
counsel, to only make submissions. The accused is conversant in the
official language and I am satisfied that he fully understood Court
proceedings. Hence, had these allegations been true, the accused, in
the circumstances, most likely would have brought it to the attention
of the Court – which was not the case. Secondly, the latter
reasons advanced, explaining the commission of the crime, are much
more serious than what was initially stated. I can think of no reason
why his erstwhile counsel would wittingly withhold such crucial
information from the Court and why from the outset, did this not form
the basis of the plea explanation; or why it was not raised in
mitigation in the first place. The motive behind the killing was at
first stated to be that the deceased refused to give the accused his
school report; which in the second explanation, largely faded away
and was substituted with the alleged pressure exerted on the accused
as a result of the terminated relationship.

[11] I am not persuaded by the explanation advanced by the accused’s
counsel that his erstwhile legal representative is solely responsible
for the contradicting versions, as this, in the absence of his former
counsel, has the making of an afterthought. Neither of these
explanations was given under oath that could be tested through
cross-examination; nor does it explain the accompanying robbery which
the accused admittedly planned in advance. Although the Court
cannot completely ignore the submissions made by the accused or
adjudge it to be false, it should for the reasons set out in this
judgment, be given little weight.

[12] Mr. Lisulo, appearing for the State, in view of the
initial submissions made on the accused’s behalf, decided to
call the school principal in order to get clarity and perspective on
the alleged refusal by the deceased to hand over to the accused his
school report. In addition he also called the deceased’s mother
who testified about the financial assistance she and her family
received from the deceased and the hardship brought onto her family
as a result of the deceased’s death.

[13] The principal at Mweshipandeka Senior Secondary School in 2009
was Mr. Kemanya. In his testimony he described the deceased as a
brilliant, diligent and hard working teacher who lectured the grade
11 and 12 pupils; whose death was a loss to the school and the
teaching fraternity in general. As regards the allegations that the
accused’s results were withheld by the deceased for no reason,
Mr. Kemanya testified that it was not the school’s policy to
withhold results and that this would only happen if a pupil failed to
return books to the school at the beginning of the year, but not in
the middle of the year as they were mindful that pupils needed their
results to apply for employment. He denied that it was brought to his
attention that the deceased withheld the accused’s results as
alleged by the accused. He was aware that the accused at some stage
was expelled from the school hostel; which came as a result of
several incidents of theft where the accused was pointed out as the
culprit by fellow learners. This resulted in the accused having to
find alternative accommodation away from school, up to the stage
where it was decided to re-admit him to the hostel after the accused
lodged a complaint with the local office of the Ministry of Gender
Equality, who thereafter wrote a letter to the effect that the
accused should be re-admitted. This was in September 2009 and
according to Mr. Kemanya, one of the reasons why the accused was
allowed back into the hostel, was because the academic year had
almost come to an end.

[14] He further testified that the accused displayed behavioural
problems at school and was part of a group of learners in one class
who caused the teachers headaches; which conduct was tolerated
because of their expected departure at the end of the academic year.
After the accused wrote his final exams he headed for home.

[15] In cross-examination Mr. Kemanya explained that because the
accused stole from others, the teachers realised that the accused had
very little clothes to wear whereafter they among themselves, bought
the accused school uniforms and shirts. Stealing from other learners
then stopped, but soon thereafter continued and it again involved the
accused. Mr. Kemanya refuted defence counsel’s contention that
it was only the deceased who would complain and report the accused
about incidents of theft; that the accused had approached him in
connection with his results; and that he refused the accused
admission to school whenever he arrived late. As regards the
allegation that the accused was refused to write the Biology paper,
Mr. Kemanya explained that he was not at all refused to sit the exams
but was merely advised that he should write the exams at a different
(lower) level.

He furthermore said that the Counselling Committee of the school
interviewed the accused (as a result of the problems experienced with
him) and summoned his biological father to school in order to try and
strengthen his relationship with the accused, but this,
unfortunately, never happened. The school also engaged the accused’s
guardian (an uncle) to address the problems encountered with the
accused at school.

[16] From Mr. Kemanya’s evidence a completely different picture
from the one painted by the accused emerges; one in which the accused
is shown not to be as innocent as he tried to portray himself as a
victim before this Court. It would appear from the evidence adduced
that the material and emotional problems experienced by the accused,
could have contributed to his behavioural problems at school and that
any assistance provided to him in that regard did not bring about
much (if any) positive change.

[17] I have given due consideration to call for a pre-sentence report
prepared by a social worker, but decided against doing so for the
following reasons: The accused is currently twenty years of age and
the reasons advanced by him for having killed the deceased were
personal in nature and had not been discussed with anyone else
before, who might shed more light on the motive behind the killing.
Thus, what would have been reported on by the social worker, in all
probability, would have been a mere repetition of what has already
been stated in Court on his behalf. The accused’s personal
circumstances at home were extensively dealt with by his counsel in
mitigation and I am satisfied that when considered together with the
evidence of Mr. Kemanya, that there is sufficient information before
the Court for purposes of sentencing.

[18] In its determination of what punishment in
the circumstances of this case would ‘fit
the accused as well as the crime, be fair to society, and be blended
with a measure of mercy according to the circumstances’¹,
the Court must have regard to the triad
of factors referred to in S
v Zinn²and
S v Tjiho³,
namely the personal circumstances of the accused,
the offence and the interests of society. In sentencing the accused
in this case I shall further endeavour to strike a balance between
these factors and not to over- or under emphasise any one of them. It
has however been said that often it is a difficult task to balance
these principles and to apply them to the facts; and the duty to
harmonise and balance does not imply that equal weight must be given
to the different factors, as a situation may arise where justice
dictates that one factor is emphasised at the expense of the other.⁴
The Court at the same time must be mindful of the
objectives of punishment, namely, prevention, deterrence,
rehabilitation and retribution. It is a well-established principle
that in serious cases deterrence and retribution comes to the fore
and that rehabilitation plays a lesser role. That would mainly depend
on the particular circumstances of the case.

[19] The accused’s personal circumstances, as placed before the
Court from the Bar, are the following: He is currently twenty years
of age and was eighteen years and seven months old when committing
the offences he now stands convicted of. After losing his mother at a
young age, he was raised by his maternal grandmother with whom he had
been staying up to his arrest. Counsel submitted that the accused was
raised in a much protected environment in which he was not required
to take his own decisions; hence he was not ‘exposed to life
outside with its elements.’ Because of that, so it was argued,
he perceived the situation where the deceased refused to hand him his
school report as ‘making his life hell’ which made him
angry and act in the manner he did. Because the accused did not
testify in mitigation, thereby forfeiting the opportunity to explain
to the Court his emotions at the relevant time and to what extent
this impacted on his decision to kill the person responsible for
making his life miserable, I find it difficult, if not impossible, to
exactly gauge the accused’s state of mind and moral
blameworthiness on the scanty information placed before the Court –
this despite the diverging information placed before the Court
subsequently.

[20] This notwithstanding, I find the reasons advanced on the
accused’s behalf, considered together with the evidence of the
principal Mr. Kemanya, implausible. I am not persuaded by the
argument that the protected environment in which the accused grew up,
in any way, contributed to his decision to murder his teacher for
refusing to hand over his exam results. Having successfully
progressed up to grade twelve, I have little doubt in my mind that
there must have been times when the accused experienced similar or
even bigger challenges than what he has encountered in this case; and
which he had to overcome without eliminating the problem by killing
someone. One such incident is where he on his own volition approached
the Ministry of Gender Equality for assistance after his expulsion
from the school hostel.

[21] I have alluded to the allegations of sexual abuse by the
deceased and the weight to be given thereto. Although these
allegations are obviously more serious in nature, there was no reason
why the accused, after having finished school, returned to the home
of the deceased for whatever reason and when going there, he did so
by choice. By then the alleged relationship had been terminated and
the accused must have realised that the deceased had no control over
the results of the final external examination written by the accused.
Thus, there were no longer any reasons for taking the life of the
deceased.

[22] There was no explanation forthcoming as to any alternative
solutions the accused considered besides killing the deceased; and
what steps were taken in order to materialise such alternatives.
There can be no doubt that alternative solutions were indeed
available to the accused; and in the circumstances one could have
expected from him to either have approached another teacher or the
school principal to come to his rescue; or call upon his grandmother,
the one responsible for his upbringing and whom he could trust and
rely on, to assist him. He could equally have made a report about the
sexual abuse to the same persons at the Ministry of Gender Equality
whilst lodging his complaint. Instead, he resorted to violence and
decided to brutally kill a fellow human being in the sanctity of his
own home for no apparent reason.

[23] The alleged motive behind the murder cannot be viewed in
isolation and regard must also be had to the accompanying robbery.
The accused in his plea explanation admitted that he had already
formed the intention to rob the deceased before leaving his
grandmother’s home; the same time when he decided to commit the
murder. Thus, when he left home he had already planned the commission
of both offences well in advance, and for that purpose fetched the
panga from his grandmother’s house in the village. This is an
important factor seriously detracting from both motives advanced by
the accused for having murdered the deceased. As stated, in my
opinion, the reasons advanced by the accused in mitigation, should be
given little weight for purposes of sentence.

[24] From the facts, the alleged motive for the killing of the
deceased appears to be nothing more than a mere afterthought. This
conclusion is fortified by the fact that the accused approached the
deceased earlier that day, asking for a place to sleep over for one
night. It seems highly unlikely that the deceased would have offered
the accused a place to sleep over in circumstances where they were
not on good terms as alleged by the accused. In the light of the
divergent reasons given by the accused explaining his staying over at
the deceased’s house that night, the Court is in doubt as to
the truth concerning the circumstances under which the accused was
permitted to stay over. Be that as it may, the accused under false
pretences made his way into the deceased’s house in order to
kill and rob him.

[25] The accused is a first offender and prior to
his escape, was in custody since his arrest, a period of one year and
four months. These are mitigating factors weighing heavily with the
Court when determining what sentence in the circumstances, would be
suitable. It would appear that the accused – if he can be
believed on this point – intends furthering his studies; an
important factor the Court must have regard to when considering the
objectives of punishment – particularly as far as it concerns
reformation, as the accused is still very young, thereby increasing
the prospects of reformation. Regarding the accused’s
intentions to further his studies, it does not mean to say that he
would be unable to do so in the event of a custodial sentence being
imposed, for it is well-known that prisoners desirous of studying
whilst serving their sentences, are allowed to do so and receive the
necessary assistance from the prison authorities (as far as this is
possible). Although this might not be readily achieved, it is not
something beyond the accused’s reach. The reintegration of a
young offender into society would, to a certain extent, depend on the
offender’s academic qualification; hence the need to afford
that person the opportunity to further his or her studies. Although
the circumstances whilst in detention not being ideal to achieve that
aim, these are factors of limited value. See: Director
of Public Prosecutions, Kwazulu-Natal.⁵

[26] Despite the accused’s young age, he made himself guilty of
serious offences, particularly when regard is had to the
circumstances in which these were committed. Not only did he plan the
commission of the crimes well in advance, but even collected a panga
from his grandmother’s home in order to execute his utterly
evil plan. He thereafter conned his way into the deceased’s
home and abused the trust and hospitality of the deceased, solely
with the intention of killing him in his sleep soon thereafter. He
unexpectedly at the stage when the deceased was asleep and as such
vulnerable, attacked him with the panga and directed two blows to the
head. Although the accused did not explain where from he got the
plastic bag which he pulled over the deceased’s head in order
to suffocate him, he most likely brought it with him when entering
the deceased’s bedroom. Again, this is something that he must
have planned in advance. The severe force behind the blows directed
at the deceased’s head can be inferred from the depressed skull
fracture. The injuries inflicted did not result in immediate death
and the accused thereafter pulled the plastic bag over the deceased’s
head; but when he encountered some resistance, he picked up the panga
and struck the deceased once on the throat whereafter he died on the
spot. After covering the deceased’s face with a pillow he
proceeded collecting the deceased’s possessions and then
returned home. The stealing of the deceased’s property was
certainly not borne out by need (as the accused was cared for by his
grandmother), but greed. I take into account that the stolen property
was recovered – however, it is no longer of any significance to
the deceased who has paid with his life for the accused’s
rampage.

[27] When regard is had to the age of the accused
and the circumstances in which the crimes were committed, one is
shocked when realising how calm and calculated the accused’s
actions were when committing these horrendous and barbaric crimes;
add thereto the accompanying brutality thereof. This reflects
adversely on the character of the accused and it seems to me that
this is one of those cases where the accused, despite his young age
and background, acted like an ‘ordinary’ criminal.⁶
In Director of Public
Prosecution (supra) at 249i-j (para
[9]) the South African Supreme Court of Appeal held that the accused
in that case (an eight year old girl who arranged the murder of her
grandmother and in which she played an active role), “…in
spite of her age and background, acted like an ‘ordinary’
criminal and should have been
treated as such”.

[28] In cases like the present the Court, in sentencing, must be
mindful of the youthfulness of the offender; yet, it must also be
alive to the moral blameworthiness of the offender, having acted no
different from the ordinary (adult) criminal when committing these
heinous crimes.

[29] The sentence that needs to be imposed in a case as the present,
in my view, seems to lie somewhere between those sentences ordinarily
imposed on adult criminals for murder and robbery; and the more
lenient sentences usually imposed on young offenders whose moral
blameworthiness, as a result of their youthfulness, is considered by
the courts to be substantially less. Guided by the circumstances of
any particular case the court, in following this approach in
sentencing, will be able to determine a sentence that sufficiently
recognises the youthful age of the offender, but at the same time,
reflects the seriousness of the crime and indignation of society. To
this end the sentence would be well-balanced; not over- or under
emphasising any of the factors relevant thereto.

[30] In the Director
of Public Prosecution case (supra),
it was held that even in the case of a juvenile offender, the
sentence imposed must be in proportion to the gravity of the offence⁷
and at 254e-f the following is said:

“In
Brandt⁸
and
Kwalasa⁹
the
Court reiterated that proportionality in sentencing juvenile
offenders was required by the Constitution. Of course,
proportionality in sentencing is not meant to be done in the sense of
an ‘eye for an eye’ as was cautioned by Harms AJA in a
dissenting judgment in S
v Mafu¹⁰
where
he noted that proportionality does not imply that punishment be equal
in kind to the harm that the offender has caused.”

I respectfully endorse these sentiments.

[31] Given the circumstances of this case, I am of the view that
society expects from the Court to show its disapproval and
indignation of crimes as the present through the imposition of
suitable sentences. In this instance the brutal killing of a teacher
who died at the hands of one of his former pupils sent shockwaves
through the community. The deceased was a productive person,
fulfilling an important task as educationist in the school where he
lectured. Society in general depends heavily on the teaching
profession to educate its children in a developing country such as
Namibia and the vacuum left by a single qualified teacher would not
only be felt by those who had been working directly with the deceased
in this instance, but also by the wider teaching fraternity. At the
same time it would generally be in the interest of society that a
message should go out to its younger members that they are equally
required to respect the law and the rights of others and will be held
accountable for their misdeeds.

[32] When regard is had to the objectives of punishment the young age
of the accused on the one hand remains a crucial factor; whilst on
the other side is the seriousness of both offences which equally must
be given sufficient weight in sentencing. Although I realise that the
accused is still young and the prospects of rehabilitation being
good, I cannot ignore the fact that a brutal and senseless murder was
committed. Mindful of the rule that children should as far possible
not be sent to prison, I am furthermore of the view that the present
circumstances are exceptional and that the accused cannot escape a
custodial sentence as the aggravating circumstances outweig his
personal circumstances by far.

[33] I am furthermore mindful of the accused
having pleaded guilty and expressed remorse – albeit through
his counsel. It is often said that in order for remorse to be a valid
consideration in sentencing, it must be genuine and the accused has
to take the court fully into his confidence by giving evidence.
Unless this is done, the court would not be in a position to
determine the genuineness of the alleged contrition. A plea of guilty
in itself should not be seen as a sign of remorse and as such as a
mitigating factor unless accompanied by genuine and demonstrable
expression of contrition by the accused. The reason for this is that
in an instance where the accused has no viable defence, the mere fact
that he then pleads guilty in the hope of being able to gain some
advantage from his plea, should not receive much weight in
mitigation.¹¹
In this case the accused did not take the Court
into his confidence by personally expressing any remorse, and in my
view, little weight should be given to the submissions made from the
Bar on his behalf in this regard.

[34] Whereas both crimes were committed at the same time and the
murder and subsequent robbery as to motive being directly connected,
the Court will make appropriate orders to avoid the possibility of
the accused being punished twice on the same facts, generally
referred to as ‘double jeopardy’. Regard will also be had
to the period the accused had spent in custody awaiting trial, as the
Court is enjoined to do.

[35] In the premises, I am convinced that in the circumstances of
this case, the following sentence is appropriate:

Count 1: Murder – Twenty (20) years’ imprisonment,
three (3) years’ of

which suspended for five (5) years on condition that the accused is
not convicted of the offences of murder or culpable homicide
involving an assault, committed during the period of suspension.

Count 2: Robbery (with aggravating circumstances) – Ten
(10) years’

imprisonment.

In terms of s 280 (2) of Act 51 of 1977 it is ordered that half the
sentence imposed in count 2 must be served concurrently with the
sentence imposed in count 1.

It is further ordered that a copy of this judgment be sent to the
Head of Prison where the accused will serve sentence and same to be
handed to the social worker of that institution with the view of
counselling being provided for the accused.

________________________

LIEBENBERG, J

ON BEHALF OF THE ACCUSED Ms. R. Nathaniel-Koch

Instructed by: Directorate: Legal Aid

ON BEHALF OF THE STATE Mr. D. Lisulo

Instructed by: Office of the Prosecutor-General