IN
THE NORTHERN DIVISION OF HIGH COURT OF NAMIBIA

HELD
AT OSHAKATI

CASE NO.: CC
09/2011

In
the matter between:

THE
STATE

And

NDAWEDWA
IMMANUEL SHUUDENI
…................................................ACCUSED

CORAM:
TOMMASI J

Heard
on: 11 – 16 & 18, 19-20 June & 02 July 2012

Delivered
on: 03 July 2012

JUDGEMENT

TOMMASI J:
[1] The accused herein was indicted for having unlawfully and
intentionally killed Muyenga Hausiku (Hausiku) and Philip Angula
(Angula) and attempted to kill Maria Eino Cuse (Maria) on 30 May 2009
at the farm Sihitikera, situated in the district of Rundu, by
shooting them with a 308 rifle. The accused was further indicted for
having possessed the said rifle which he had used to shoot at the
three persons and ammunition to wit 4 live bullets in contravention
with the provisions of section 2 and 33 of Act 7 of 1996
respectively. The accused pleaded not guilty to all the charges and
gave no plea of explanation.

[2] It was not
disputed by the accused that he shot Hausiku, Angula and Maria with a
308 rifle on 30 October 2009. It was further not disputed that
Hausiku and Angula died as a result of the gunshot wounds they
sustained and that Maria sustained a superficial flesh wound to her
left elbow. The only issues in dispute were whether the accused had
acted unlawfully and intentionally. The State therefore bore the onus
to prove beyond reasonable doubt that the accused had acted
unlawfully and intentionally.

[3] The State
called three witnesses namely, Erastus Nankankwe (Erastus), Maria
Eino Cuse (Maria) and Lazarus Jorman, also referred to as Nakushe
(Lazarus) who were present on the farm on 30 October 2009.

[4] The evidence
revealed that the accused was the foreman on the farm Sihitikera and
lived there with his wife and children in a homestead consisting of
two huts and one half built hut, which they referred to as the open
hut. Hausiku, who was married to Maria, and Lazarus were coworkers on
the farm. They also resided on the farm. Angula and Erastus were
living in the Northern part of the farm but were not employed by the
owner of the farm.

Count 1 and 2 –
Murder of Hausiku and Angula

[5] There were no
eyewitnesses to the shooting of Hausiku and Angula. The accused is
the only person who knows what happened at the time he shot and
killed Hausiku and Angula. Erastus was the only State witness who was
present immediately prior to the shooting.

[6] Erastus
testified that he arrived at the homestead of the accused together
with the late Angula at around 17H00. They found the accused, Hausiku
and Lazarus under the open hut drinking beer. They joined the others
drinking beer which they bought from the accused.

[7] At some stage
after their arrival an argument erupted between Lazarus and Hausiku
although he could not tell what the argument was about. It transpired
during cross-examination that Hausiku and Lazarus were not arguing at
the place they were drinking but some distance from there. Lazarus
denies that such an argument took place. During cross-examination
Erastus agreed that the accused had locked the gates and that someone
(he could not say with certainty who it was) opened the gates for the
late Hausiku and Lazarus to re-enter the homestead of the accused. He
confirmed during cross-examination that Lazarus’s shirt was
torn when he returned with Haufiku.

[8] He testified
that upon the return of Hausiku and Lasarus, the accused was irked by
something Angula had said. The accused then informed them that he was
going to fetch a gun and that he was going to kill all the people in
the hut. He thought the accused was joking. The accused got up and
left. Lazarus informed Angula that they should leave after the
accused mentioned that he will be fetching a fire-arm. He decided to
run away and left Hausiku, Lazarus and Angula behind. He did not see
Maria at this stage. He however confirmed that she was present but
had left.

[9] As he was
running away, he heard one gunshot being shot into the air. He also
heard the accused calling Angula and Hausiku’s name and asking
them where they were. In between calling their names he would hear a
gun shot. The accused also called his name but he did not reply for
fear that he will be shot. He heard a total of four gunshots. The
witness was unable to clarify how he could hear that one shot was
fired into the air.

[10] He testified
that he got lost but eventually found his way to Hausiku’s
house. He left the farm and went to sleep elsewhere and only returned
the next day. He did not observe any fight or any quarrel between
Hausiku and the deceased, nor did he hear Hausiku threatening to kill
the accused or saw Hausiku with a bow and arrow. He denied that
Hausiku left the scene at the stage prior to the shooting. He frankly
admitted that he had consumed too many beers that evening that he was
drunk and that all those present were drunk including the accused.

[11] The State
called Lazarus Jorman. He testified that he was sitting under a tree
with the late Hausiku on that day and they were drinking beers from
midday to sunset. He testified that Maria came to sit with them from
time to time. They purchased beer from the accused who was inside his
homestead. He testified that he did not know Angula or Erastus and he
did not see them at the farm or inside the homestead of the accused
that day. He left Hausiku around sunset and went to sit under a tree
close to his homestead and continued drinking beer which he bought
from the accused. He could not see what was happening inside the
homestead of the accused from where he was sitting neither did he see
Hausiku and other people drinking although he continued to enter the
homestead of the accused to buy beer. He testified that he did not
quarrel with Hausiku although he recalled that Hausiku came to his
hut to ask him if he took his tobacco. He later heard two gunshots
and the accused came to inform him that he had killed Hausiku. He
went with the accused and accompanied him to report the matter to the
police. He however stopped on the way due to the fact that he was
unable to continue the walk. The accused did not inform him what had
transpired.

[12] The members
of the Criminal Investigation Unit together with other members of
Serious Crime Unit visited the farm and they testified that they
found the two bodies of the deceased. The body of Hausiku was found
under the open hut and Angula’s body was found some distance
near the water pump. Sergeant Kavara testified that he made the
following observations: Hausiku had a bullet wound on his right chest
and Angula on his left chest; in both cases the bullet entered in
front and exited the back of their bodies. (These findings were
confirmed by the post mortem report); blood stains in the sands
leading from the place they found the body of Angula up to the open
hut; a dead dog in the court yard of the accused which also appeared
to have been shot; a gunshot wound on the left elbow of Maria Cuse;
and three spent cartridges and one live bullet on the ground
approximately 6 steps from where the body of Hausiku was found. He
concluded, based on his observations that Angula was shot under the
open hut but died approximately 30 steps from the point where he was
shot. He further concluded that the point where they found the spent
cartridges was the place the accused was standing at the time he
fired the shots. He did not observe any bow and arrow in the vicinity
of Hausiku’s body.

[13] The accused,
at the pre-trial stage disputed that he acted unlawfully when he
killed Hausiku. In his reply to the pre-trial memorandum of the State
the following was stated:

“I was acting in self
defence, as the deceased threatened to murder me with the traditional
bow and arrows.”

He disputed that
he intentionally killed Angula and it was formulated as follow:

“I was
aiming at
Muyenga Hausiku and I was not even aware of the presence of Philips
Angula as it was dark.”

The accused
pleaded guilty to two counts of murder and one count of attempted
murder in the district court in terms of section 119 of the Criminal
Procedure Act 51 of 1977 and gave the following explanation:

“Why
I am saying I am not guilty is because there was someone (Lazarus)
went to sleep and then a certain Hausiku came and then they started
fighting there. And after the fight between Lazarus and Hausiku
stopped, he came back and I locked him outside because he was drunk,
because every time he was drunk he fought with people. Then he was
struggling with the gate and a boy opened the gate for him and he
came to me and asked me what did I say. I am not disputing that I
shot all the people but I did not do it intentionally it was caused
by Hausiku and I did not want to shoot him. He threatened that he
would go home and get his traditional bows and arrows to come and
shoot me, I shot one bullet in the air and the second one I shot at
the deceased it was just one bullet which struck the two. (sic)”

The record of
these proceedings was handed in by agreements.

[14] The accused
when he arrived at the police informed Sergeant Meriam Paulus that he
committed a crime on the farm. She testified that the accused made
the following statement to her. He had a quarrel with Hausiku who
refused to take N$50.00 of his salary which the accused had offered
him. Hausiku insulted and threatened to kill him. Hausiku shot two
arrows in his direction. When Hausiku was about to shoot the third
arrow, he started running. Hausiku chased him around the house and he
entered his house to fetch the rifle. The accused fired one shot at
Hausiku who died on the spot and the same bullet killed another man
whose identity was not known to him. This version differed from the
one that was put to the witnesses.

[15] The accused
was interviewed by Sergeant Haimbili. He informed him that he had an
argument with the others at the farm and he decided to shoot the two
of them namely Hausiku and Angula with the 308 rifle. The accused
further informed him that whenever they were drunk they would
threaten him with bows and arrows. He stated that he was fed-up with
their threats and decided to end their lives before they end his.

[16] The
admissibility of these statements was not disputed and the police
testified that they had properly warned the accused and advised him
of the constitutional rights.

[17] Counsel for
the defense argued that the State witnesses contradicted themselves
as to the sequence of events. The main contradiction between the
evidence of Lazarus and Erastus related to whether Lazarus was
present shortly before the accused went to fetch the fire-arm and
whether there was an argument between Lazarus and Hausiku. Maria
confirms that Lazarus was present at the homestead at the time she
left. Lazarus’s version that he did not see Angula and Erastus
and that he was not present in their company under the open hut that
evening is not credible as the undisputed evidence places Angula at
the scene. This witness appeared to have been reluctant to place
himself near the scene of the crime and fail to fully take this Court
into his confidence. His evidence therefore was of little assistance
to this Court. A further discrepancy relate to the time of arrival of
Erastus in my view this discrepancy is not material.

[18] Although
Erastus admitted being drunk, he could recall sufficient detail of
what transpired that evening. Erastus’s evidence in respect of
the number of shots that was fired, was however not reliable. From
the spent cartridges found one can safely infer that the accused had
fired three shots. Despite the defects in the evidence of Erastus, I
am satisfied that he was a credible witness with no apparent bias in
respect of the accused. From the evidence presented by the State the
Court may conclude that the accused expressed an intention to shoot
and kill the persons present under the open hut, he in fact shot and
killed two persons in the vicinity of the open hut. In addition
hereto the accused had admitted to sergeant Haimbili that he got “fed
up” with being threatened and decided to end their lives
before they end his. Erastus was adamant that none of the persons
present was armed and that Hausiku did not leave the open hut to
fetch his bow and arrow. No bow and arrow was found by the police in
the vicinity of Hausiku’s body. There was credible evidence
that the accused was aware of the presence of Angula under the open
hut. Maria testified that she was the first one shot and this negates
the plea explanation given in the district court by the accused when
he stated that he shot one warning shot in the air.

[19] The evidence
of Erastus stands uncontroverted. The accused opted to exercise his
constitutional right to remain silent. In S v AUALA 2010 (1) NR
175 (SC) Matabanengwe AJA at page 181 I -182 A, cited with
approval the following passage in S v Boesak 2001 (1) SA 912 (CC)
(2001 (1) SACR 1; 2001 (1) BCLR 36):at 923 E- F

“The fact that an
accused person is under no obligation to testify does not mean that
there are no consequences attaching to a decision to remain silent
during the trial. If there is evidence calling for an answer, and an
accused person chooses to remain silent in the face of such evidence,
a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation to prove the guilt of the
accused. Whether such a conclusion is justified will depend on the
weight of the evidence.”

[20] The evidence
presented by the state was sufficient to call upon the accused to
answer and his silence under these circumstances is a factor this
Court has to take into consideration. The extra curial
statement made to sergeant Haimbili although he was put to the
witness that he did not make such a statement, called upon the
accused to refute that he made such a statement under oath.

[21] The various
statements made by the accused cannot simply be ignored. In S
v Shikunga and Another 1997 NR 156 (SC) the
Court held that that an extra-curial statement of an accused, once
adduced in evidence, had to be viewed and evaluated in its entirety,
inclusive of assertions and explanations favourable to the maker.
However, the fact that such a statement was not made under oath,
detracted very much from the weight to be given to those portions
which favoured the author. His exculpatory explanations and excuses
might well strike a false note, and had to be treated with
a measure of distrust. The accused’s
exculpatory statement that he did not know that Angula was present is
not supported by the evidence adduced by the state.

[22] Both Maria
and Erastus testified that Angula was in company of Haufiku sitting
under the open hut. Both testified that accused was also present.
Erastus testified that Angula was present at the time accused left to
fetch the rifle. The accused in his reply to the
State’s pre-trial memorandum stated that he was aiming to shoot
Hausiku. It is interesting to note that the word “aim”
was used despite the fact that the accused in the same
document also stated that it was dark. A reasonable conclusion would
be that the accused fired three shots and aimed that in the direction
where Hausiku and Angula were seated. The accused stated in the
district court that he fired two shots one in the air and one at
Hausiku which also killed Angula. The objective evidence informs this
Court that he fired 3 shots. This exculpatory statements by the
accused given the contradictions, strikes a false note and the Court
accordingly attached no weight to these admissions. The
explanations by the accused that he acted in self defense also
conflicts from one statement to the other. During proceedings in
terms of section 119 the accused stated that Hausiku would kill him
with a bow and arrow and in his reply to the State’s pre-trial
memorandum and in questions put to witnesses reflect that the accused
was not only threatened but that Hausiku was actually in possession
of the bow and arrow.

[23] Erastus
testified that the accused was drunk at the time and that his speech
was not in order. The accused at no time raised intoxication as a
defence and it is therefore not necessary for me to deal with this
issue save to say that the accused had sufficient presence of mind to
appreciate that he had committed a crime and to report same directly
after the shooting.

[24] Given the
evidence adduced and the accused’s failure to testify, this
Court can only conclude that the accused fired three shots in the
direction where Hausiku and Angula were sitting with the direct
intention to kill them. I am satisfied that the State proved beyond
reasonable doubt that the accused did not act in self defence and
that he had direct intention to kill Angula and Hausiku.

Attempted
Murder – Maria Eino Cuse

[25] The key and
only witness to this offence was Maria. She testified that she was
drinking with Hausiku, Lazarus, the accused and his wife under the
open hut inside the homestead of the accused from morning to the
evening. According to her Erastus and Angula joined them around
midday. I already indicated that the time of the arrival of Erastus
and Maria is not material to the issue at hand. Maria testified that
she only left the hut when it was dark to fetch money to buy more
beers. Counsel for the accused pointed out that there was discrepancy
in the evidence in chief and under cross-examination whether she went
on own or whether she was sent by Hausiku. This however has no
bearing on the issue whether or not Maria was shot by the accused.

[26] Maria further
testified that she left the late Hausiku, Erastus, Angula and Lazarus
sitting under the hut. When she returned to the homestead of the
accused she approached him in order to give him the money for beers.
When she was approximately one meter from the accused he shot her.
She fell down, got up and ran back to her homestead. She testified in
chief that she only heard one gunshot which was fired at her but
during cross-examination she confirmed her statement to the police
that the accused shot three times. She testified that she saw the
accused although it was dark but conceded during cross-examination
that she could not see whether the accused was having a firearm. She
further conceded that she was unable to say whether the accused could
see her; that she was confused at the time she was shot; and that she
was drunk at the time she went to collect the money. Despite these
unsatisfactory aspects, it was sufficiently proven that three shots
were fired. Her evidence that she was shot in close proximity of the
open hut was not disputed. It was further not disputed that the first
shot was the one which struck her.

[27] Maria
correctly conceded that she could not tell whether the accused saw
her. The accused is the only person who could say whether he could
see her or not. It is highly improbable that the accused would not
have been able to see a person who was as close as one step away from
him. The Court would be justified to conclude, in the absence of
evidence by the accused, that he saw a person and despite the fact
that he was aiming to shoot Hausiku. He nevertheless proceeded to
shoot. He reasonably foresaw the possibility that he might kill the
person who was approaching him and reconciled himself to the ensuing
result.

[28] I am
satisfied that the State proved beyond reasonable doubt that the
accused had intent to kill Maria (in the form of dolus eventualis)
and miraculously did not succeed to do so. The fact that she
sustained a flesh wound is immaterial given the weapon used and the
close proximity to her.

Contravention
of section 2 and 33 of the Arms and Amunition Act,

[29] The State
called the owner of the farm to give evidence in respect of the
firearm and five live bullets which she had stored on the premises at
the farm. She testified that she had employed the accused as a
foreman and gave him the keys to her house where the fire-arm and
ammunition was kept in order for him to remove it in case of an
emergency. She testified that she had never given the accused
permission to use the fire-arm in her absence. The police recovered
three spent cartridges and one live bullet on the ground within the
homestead of the accused and the fire-arm in the sleeping room of the
accused. The accused in his reply to the State’s pre-trial
memorandum denied unlawfulness as the rifle and ammunition were
placed in his care and under his control by his employer.

[30] Section 8 of
the Arms and Ammunition Act 7 of 1996 provides for certain
circumstances where a person is permitted to possess a firearm with
the consent of license holder. Section 8(1) (b) reads as follow:

“ Any person other
than a person under the age of 18 years or a disqualified person may,
with the prior
consent of the holder
of a licence to possess an arm, whether or not such consent was
granted in pursuance of an agreement of lease, and for such period as
such holder may permit, have such arm in his or her possession for
his or her lawful personal protection or benefit, including the
hunting of game or for
the purpose of keeping custody of the arm,
without holding any licence, provided-

(b) such person
has the arm in his or her possession in the immediate
vicinity of the licence holder or while on any land
belonging to or lawfully occupied by the licence holder.”[my
emphasis]

[31] The owner of
the farm had employed the accused in his capacity as the foreman and
had given him the keys to her house. This may be construed that the
license holder had given the accused consent for the sole purpose of
keeping custody of the fire-arm. Attached to the consent were two
conditions namely that the accused was not to use the fire-arm in the
owners absence and that he may remove it if there was an emergency.
This evidence was not challenged. There was no evidence that there
was an emergency which would have made it necessary for the accused
to have removed the fire-arm from the owner’s hut. If
therefore, it is found that the accused had removed the firearm from
where it was stored by the owner contrary to the conditions set by
the owner, there cannot be valid consent.

[32] The next
issue for consideration was whether the accused had removed the
fire-arm and ammunition from where he was supposed to have kept it in
safe custody. The fire-arm was retrieved from the sleeping hut of the
accused. During cross-examination of Erastus it was pertinently put
to him that accused went into his sleeping room and came out of his
sleeping room with the rifle and ammunition in order to protect his
family from the threat posed by Hausiku. There is thus sufficient
evidence to conclude that the accused had removed the firearm from
the sleeping hut of the owner and had kept it in his sleeping room
contrary to the express instructions by the owner. The accused in the
face of the evidence presented by the state failed to answer. There
was therefore no valid consent from the license holder.

[33] The accused,
having placed the fire-arm in his sleeping room had physical control
over it and it is evident that the accused had the intention to
exercise control over the firearm. The accused
was therefore in possession of the firearm which possession was
unlawful.

[34] Both counsel
submitted that it would be required of the State to prove that intent
in the form of dolus eventualis is
required for the offence. In S v MASEKA 1991 NR 249 (HC) O Linn J as
he then was, without deciding the issue was of the view that form of
mens rea required
would be dolus and not
culpa for a person to
be convicted of this offence. The accused was aware that the owner of
a fire-arm requires a license to possess a firearm. This was evident
from the fact that his defense counsel put it to the owner that the
accused requested a copy of her license. He was furthermore the
foreman on the farm who was entrusted with the safekeeping of the
fire-arm and given strict instructions under what circumstances it
should be removed and used. The state placed sufficient evidence
before the court to conclude that the accused under the prevailing
circumstance foresaw that he would be keeping the fire-arm unlawfully
and that he, despite his knowledge of this fact removed it without
obtaining valid consent from the owner. The accused was equally
called upon to answer as to what his subjective mindset was at the
time he decided to remove the fire-arm from the hut of the owner when
he placed the firearm in his room. This he failed to do. In the
absence of his testimony accused, the evidence of the State becomes
conclusive.

[35] I am
satisfied that the State has proven that the accused had possessed
the firearm in contravention of section 2 of Act 7 of 1996. The
fire-arm and the ammunition were kept together and the reasoning for
the possession of the firearm equally applies to the possession of
the ammunition. Having concluded that the accused was not in lawful
possession of the firearm which was proven capable of firing the
bullets, (the State handed the ballistics report into evidence by
agreement) it follows that the accused is also guilty of having
contravened section 33 of Act 7 of 1996.

In the result the
accused is found guilty on all five counts.

___________________________

Tommasi
J