S v Shikunga (SA 6 of 1995) [1997] NASC 2 (20 August 1997);
In the matter between
IMMANUEL SHIKUNGA
FIRST APPELLANT
and
THE STATE
FIRST RESPONDENT
Coram:
Mahomed CJ, et Dumbutshena, A.J.A, et Hannah A.J.A.
Heard on: 1996/04/23 and 24
Delivered on: 1997/08/20
JUDGMENT
Mahomed CJ
Before Strydom JP, in the court a quo, two persons appeared on a charge of murdering one Ian Scheepers ("the deceased") and a second charge of robbery of the deceased. The first accused
was Asser Singanda whom I shall continue to refer to as "the first accused". The second accused was Immanuel Shikunga, and I shall continue to refer to him as the "second accused".
killing the deceased was that he had acted in self-defence.
These submissions raise a number of issues. The constitutionality- of s 217(b)(ii)
. It is unnecessary for us to consider whether the learned Judge was bound by the decision of the (b)
10
High Court in the case of Titus. It is common cause that the Supreme Court is not so bound. The relevant question is whether the conclusion arrived at in the case of Titus was indeed correct.
Section 217(l)(b)(ii) of Act 51 of 1977 provides that:
that where the confession is made to a magistrate and reduced to writing by him,
the confession shall, upon the mere production thereof at the proceedings in question -(i)
(ii)
be presumed, unless the contrary is proved, to have been freely and
Relevant in this regard are the provisions of Articles 7 and 12 of the Constitution of Namibia.
14
Art icle 12(l)(f) protects an accused person from any compulsion to give evidence against himself
or herself.
The consequence which follows from the invalidity of section 217(l)(b)(ii)
During argument, the court raised with counsel for the second accused the issue as to whether
or not the conviction of the second accused could be upheld if there had been a constitutional
irregularity which had been committed during the course of the trial. Counsel for the second
accused contended that the decision of the trial court to admit the confession pursuant to the
provisions of section 217(l)(b)(ii) was a fatal constitutional irregularity which should vitiate the
conviction.
18 South African authority at common law A. General category:
circumstances which showed clearly that the conviction of the accused would inevitably have
followed even if the constitutional irregularity relied upon had not been committed. (This is
exactly what transpired in the present case. Although the confession was admitted in terms of
section 217(l)(b)(ii) the trial court was able to correctly justify the conviction of the second
accused without any reliance on the confession). There is however a competing consideration of
public interest involved. It is this: the public interest in the legal system is not confined to the
punishment of guilty persons, it extends to the importance of insisting that the procedures adopted
in securing such punishments are fair and constitutional and that the public interest is prejudiced
when they are not.
In S v Tuge 1966 (4) SA 565 (A) at 56SB the court articulated the test as follows: the question
is "whether, on the evidence and the findings of credibility unaffected by the irregularity or defect,
B. Exceptional category:
21 Canada
c onviction stands, on the merits.(77*e State vNaidoo 1962 (4) SA 348 (A) at 354D-H.)
United States
Jamaica
Australia
following terms at para 17:
The proper approach
Appliczrior. of :heproper approach 37
sober senses and without being unduly influenced thereto.
Sentence
Dolus directus can be described in the following way:
Intention in the form of dolus eventualis on the other hand can be said to exist:
"...when the accused does not mean to bring about the unlawful circumstance or to cause the unlawful consequence which follows from his or her conduct but foresees the possibility of the circumstance existing or the consequence ensuing and nevertheless proceeds with his or her conduct." (Original emphasis deleted) (Burchell and Milton (supra) at 24S)
Order
In Lhe rssuit the 30Deai of the second accused against his convictions and sentence is dismissed.
I Mahomed CJ
I agree:
E Dumbutshena AJA
I agree:
ON BEHALF OF THE FIRST APPELLANT:
ADV. H. GEIER
Instructed by:
LEGAL AID
ON BEHALF OF THE FIRST RESPONDENT:
ADV. D.F. SMALL
Instructed by:
Prosecutor-General