Court name
High Court
Case number
60 of 2007
Title

S v Ihuwa (60 of 2007) [2012] NAHC 152 (20 June 2012);

Media neutral citation
[2012] NAHC 152
Coram
Damaseb JP





IN THE HIGH COURT OF NAMIBIA






CASE
NO.: CC 60/2007





IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








VAINO
IHUHWA
….........................................APPLICANT








and








THE
STATE
…...........................................RESPONDENT











CORAM:
DAMASEB, JP











Heard on: 18
June 2012







Delivered on:
20 June 2012









APPLICATION
FOR LEAVE TO APPEAL









DAMASEB,
JP
:
[1]
The applicant for leave to appeal was convicted by Manyarara, AJ on
two counts:








  1. Murder; and



  2. Attempted murder








[2] He was sentenced to 25 years
on the murder count and to 10 years on the attempted murder count,
the latter to run concurrently with the sentence of 25 years in
respect of the murder count. He seeks to appeal against sentence only
in respect of count 1 and against conviction and sentence on count 2.







[3] He is out of time and
therefore applies for condonation and the State, correctly in my
view, does not oppose the application for condonation.







State’s concession



[4] Mrs
Verhoef for the State concedes, again, correctly, that the learned
trial judge’s questioning on the second count (attempted
murder) of the accused in terms of s.112(1)(b) of the Criminal
Procedure Act (CPA)
1
was deficient
and that the answers given by the accused did not exclude a potential
defence such as self-defence. Mrs Verhoef agrees that there are
reasonable prospects the Court of appeal may come to the conclusion
that the trial judge erred in entering a guilty plea based on the
answers of the accused instead of entering a not guilty plea in terms
of s.113.







[5] Mrs Verhoef, if I understand
her correctly, does not however concede that in respect of sentences,
on both counts, the learned trial judge misdirected himself.



Main issue arising



[6] Manyarara
AJ gave a reasoned judgment on sentence. It emerges

from the
learned judge’s summary of the surrounding circumstances that
the applicant stabbed the deceased three times with a knife he had
taken along with him to the deceased’s home to confront her and
the complainant (in respect of the attempted murder count)in
connection with their taunting him that his wife was pregnant by
another man.







[7] Mr Ipumbu for the applicant
has argued that the learned judge misdirected himself in
over-emphasising the interests of society and down-played the
personal circumstances of the accused. He argued that the common
cause facts demonstrate that the murder was not pre-meditated and
that the deceased swore at the accused before he stabbed her. Mr
Ipumbu ignores the admitted fact that the applicant took the
conscious decision to go to the deceased’s home with a knife.
He stabbed her not once, or twice, but three times. As the learned
judge said;







Your
anger erupted and you pushed her off her chair. When she rose you
produced a kitchen knife you had brought with you. When she saw the
knife she turned, but you stabbed her in the back and withdrew the
knife stabbed her again and with drew the knife. Stab her yet again
and withdrew the knife as she ran out of the house.”











[8] This Court
has repeatedly lamented the fact that it has become fashionable for
people to settle disputes and misunderstandings with violence.
Violence is endemic in this society as the many reported and
unreported judgements show. The Courts have the duty to stem that
violence. If the trial judge considered
that
as deserving
of greater consideration than the personal circumstances of the
applicant, including the fact that he had paid compensation to the
deceased’s family and contributed to the funeral costs, he was
entitled to do so. The fact that I might have given greater weight to
the latter factor is no warrant for the suggestion the trial judge
was wrong. It was a matter in the court’s discretion. I find no
misdirection and the sentence imposed does not, in my experience,
induce a sense of shock. I am satisfied that another Court will not
come to a different conclusion. Application for leave to appeal the
sentence on count 1 is refused as there are no prospects of success
on appeal.







Count 2



[9] In view of
the State’s concessions that are properly made, leave to appeal
is granted in respect of count 2. The view that the trial Court took
of the seriousness of that offence is so inextricably linked to the
facts it found proved to justify a finding of attempted murder. It
must follow that if the conviction on count 2 is set aside and a new
trial held, the trial court might find that the facts proved (or
admitted) might not warrant a conviction for attempted murder but a
lesser offence. It defies logic to suggest that in such a case the
sentence imposed in respect of the attempted murder count should
stand. Refusing leave to appeal against the sentence on count 2,
while granting leave to appeal against the conviction, is not a path
that leads to justice. I will therefore grant such leave.







[10] I make the following order:








  1. Condonation for the late filing
    of leave to appeal the conviction and sentence on count 2 is
    granted;



  2. Leave to appeal against sentence
    of 25 years on count 1 (murder) is refused;



  3. Leave to appeal against
    conviction and sentence on count 2 (attempted murder) is granted.



















__________________



DAMASEB, JP



ON BEHALF OF THE APPLICANT: MR
T IPUMBU






OF: TITUS IPUMBU LEGAL
PRACTITIONERS








ON
BEHALF OF THE RESPONDENT: MRS A VERHOEF







INSTRUCTED
BY: OFFICE OF THE PROSECUTOR-GENERAL



1No.
51 of 1977