S v Oxurub (CC 12.96(2)) (CC 12.96(2)) [1996] NAHC 8 (08 May 1996);

found her sitting in a vehicle with another person namely Mr Moses Mabedi and the Court accepted his evidence to the effect that at- the time when you arrived on the scene he was talking to the deceased and there was no hugging or kissing and obviously no intercourse. You were not placed in a position by what you saw which would deprive a reasonable person or even any other person of their control over the situation. Your actual action as unfolded before Court in accordance with the State evidence as well as your own was that in the course of this situation leading up to the stabbing you basically contemplated every step. You knew what you were doing and you decided on going onto the next step. So this was not in that sense a crime of passion where you lost control and where it could even be said that any human being would have been so incensed by the situation which he came upon that he could not control himself or herself properly. When I consider this crime I do regard your relationship, the fact that you must have been emotional, as mitigation to some extent but not a factor of great weight as it may have been if it was a classical situation where husband or wife finds his partner in the act of adultery with another person.

You killed the deceased by stabbing. Stabbing has become and remains and is increasingly a method used by too many people in this society to settle their problems by getting rid of their adversary or someone else by using dangerous weapons such as a knife. The knife was not produced before this Court but the Court found that you lied about the knife and that the knife was probably much bigger, if the Court considers the medical evidence, as you alleged. The Court also found that the only reason for your lie regarding the knife was probably that it was a much bigger weapon. The crime was also on a person who was undefended. That means a young girl. There is no question whatsoever of self-defence of any sort in this case. That aggravates your crime.

As to the interest of society, this is linked to the nature
of this crime. Society legitimately cries out for deterrent
action by the Courts because of the phenomenon of continuous
and increasing violence in the country. The interest of
society will therefor not be served if you get a sentence
which is not of a nature which would deter yourself and
other people. Although the Court must also consider the
possibility of rehabilitation, the overwhelming aim should
be deterrence. I accept however, that you are a person who
can be rehabilitated and you can be a useful member of
society. Unfortunately throughout this trial and

particularly during the evidence in mitigation you repeatedly attempted to deceive the Court. You repeatedly told lies deliberately. To mention only some is that during the stage before conviction you, well-knowing that the deceased is dead and cannot controvert what you say, gave out that you had a wonderful relationship with this deceased. There were no quarrels between you. There were no assaults. You emphatically denied that. Here today at the stage of sentence you were confronted by allegations by witnesses who are not dead such as the deceased, but who are alive and who could corroborate to some extent that you

actually had a bad relationship for a substantial period of time with the deceased and that in fact you had actually assaulted her. You admitted in your own words, when confronted, that there were several assaults. Your excuse was that that was in the course of arguments and you further testified or admitted that this was by means of giving her a beating with a belt. Although you denied that you ever previously sat on the deceased with a knife in your hand when she was sleeping, the evidence before Court by Ida Skrywer is that you, in her presence, apologised for having done precisely that, namely sitting on the deceased with a knife and that is how the deceased saw you when she woke up out of her sleep. So although your counsel put it that you deny that you had ever done that, what was not denied and what was not controverted is Ida Skrywer's evidence that you actually apologised for that act. So on the available evidence I must accept that you on a previous occasion was sitting in a threatening position on the deceased. It was also not directly placed in dispute with the witness Ida Skrywer that on one occasion the deceased came to her and showed certain wounds. She had a wound on her head and she had a stab wound on her finger. That the deceased had such wounds was not disputed by you. I accept that the picture of an idyllic relationship drawn by you from the start was false and that you in fact had assaulted the deceased from time to time and that the use of a knife was not out of your mind.

You also tried to get away with lies when you told this Court that the Court should consider that you had already been in imprisonment for eight months. Eventually, when you were confronted with this lie, you said four months. As a matter of fact, it turned out to be in the region of two and a half months that you were in prison. So unfortunately when you say to the Court that you are sorry, that you have true regret and so on, that was accompanied by trying to deceive the Court about important and relevant facts. The fact that you were lying on several occasions detracts from the possibility of giving any weight to any regret that you may have. It seems to me that, although you may have regret that a person with whom you had a relationship has died, your greatest regret at.the moment is that you will probably face many years of imprisonment.

In all the circumstances it seems to me that the Court will be failing in its duty to society and to the victim if the Court does not impose a heavy sentence of imprisonment. I have seriously considered imposing on you a sentence of life imprisonment, but in view of some of the mitigating factors that I have mentioned I have decided not to impose life imprisonment. In the result the sentence that I impose on you is the following:

Seventeen (17) years imprisonment.