S v Veiko (Judgment) (CC 42/2008) [2009] NAHC 43 (07 April 2009);


Full judgment

CASE NO.: CC 42/2008



In the matter between:





Heard on: 01 – 03 April 2009; 06 April 2009

Delivered on: 07 April 2009


LIEBENBERG, A.J.: [1] The accused stands charged with the offence of Murder, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 in that he on the 1st of July 2007 in the district of Outapi unlawfully and intentionally killed one Wilbard Ndeshipanda Angala (the ‘deceased’).

[2] The accused pleaded not guilty on the charge but tendered a plea of guilty on Culpable Homicide, a competent verdict to the charge of murder. The State declined the guilty plea on the competent verdict and elected to proceed with the murder charge on the basis that the accused committed murder with intent in the form of dolus eventualis.

[3] It is common ground that the accused is a member of the Namibia Defence Force stationed at Windhoek and that the incident which led to the death of the deceased took place on the 1st of July 2007 at the house of the accused in Eemwandi village near Outapi. The reason why the accused was in the village was because he had arrived from Windhoek the previous day to attend a memorial service of a relative. It is furthermore not disputed that the deceased died of a single gunshot wound caused by a bullet fired from the accused’s licensed 9 mm calibre pistol which struck the deceased in the chest; the deceased having been the brother-in-law to the accused who resided at the village house of the accused.

[4] There are no eye witnesses and those witnesses called by the State to testify about the shooting incident were merely in the vicinity and did not witness the actual shooting by the accused. They are Amunyela Kahenge (Junias) the neighbour, a cousin by the name Naambo Amunyela and the accused’s wife Loide Feni Angala, the latter having no objection giving evidence for the State.

[5] Junias had spent the night at the accused’s house and in the morning he and the deceased went to sit at the traditional fire place also called “oshoto”. The deceased later on called the accused to join them where after they had a discussion over a goat until it was time for the deceased and Junias to fetch the donkeys from the field. It is common cause that there was no argument or ill feelings between any one of them prior to the incident and that when Junias and the deceased left, they parted ways with the accused amicably.

[6] According to Junias after he and the deceased had left the fire place they went through the gate used by motor vehicles; at which stage the accused was standing at the entrance of his bedroom. They had just passed the gate and while the deceased was walking in front of Junias, he heard a gunshot and next saw the deceased fall to the ground. The deceased got up but again fell down and died at the spot.

In cross-examination he explained that the deceased had reached the gate first and was waiting for him on the other side of the gate from where they proceeded to the field. He said the accused’s bedroom where they had left the accused behind at that point, was situated on their right side.

[7] The witness Amunyela at some stage that morning, also sat at the fire place but entered the kitchen before Junias and the deceased left. She only heard the shot and later on went to where the deceased was lying outside the home stead.

[8] Loide Angala testified that after Junias and the deceased went to fetch the donkeys, she and the accused stood up from the fire place and entered their bedroom. There the accused removed the firearm from under the pillow; removed the magazine and went to stand outside, facing the fire place. She almost simultaneously left the bedroom and was on her way to the bathroom when she heard a loud sound and thereafter she saw the accused staggering and falling down on the outside of the fence. She then alerted the accused to the fact that he had shot the deceased where after they rushed to where the deceased was lying and noticed blood on his shirt.

The evidence of this witness contradicts that of Junias to the extent that she saw him leaving through the main entrance and not the motor vehicle gate; also that she did not see him with the deceased the time the latter was staggering and falling down.

According to this witness the accused had a clear view of the gate from where he stood at the door of their bedroom and that he would have seen the deceased on the other side of the gate, had he been there. The gate referred to is the one through which motor vehicles enter into the homestead and has two corrugated iron sheets horizontally positioned, the one above the other, attached to it. A person of the deceased’s length therefore, would only be visible from above his shoulders.

[9] Detective warrant officer Samuel Ambunda is the investigating officer who visited the scene the day of the incident and after he had introduced himself to the accused and warned him in accordance with the judges’ rules, the accused directed him to the place where the deceased was lying under a temporary structure made of sticks and grass. He found a corpse and next to it, a firearm; a spent cartridge case and the accused’s firearm licence book. The accused then pointed out where he stood in front of his bedroom the time the shot fired and where the bullet hit the bottom half of the corrugated iron on the gate. W/o Ambunda took photos of the scene where after the accused was arrested and the corpse taken to Okahau.

[10] When the accused was formally charged later that same day he made a statement that was reduced to writing by w/o Ambunda (Exh G). Accused does not dispute having made the statement but only that part thereof does not correctly reflect what the accused conveyed to w/o Ambunda namely, where it reads that after the accused took his firearm he told the deceased to get away from there; where after the accused took aim at the place where the deceased was standing; and because he could not see the deceased, he pulled the trigger and fired one shot into the corrugated iron. During the recording of the statement w/o Ambunda himself did the translation from the Oshiwambo language into English and vice versa.

[11] W/o Ambunda also collected from doctor Sandra Perera a projectile retrieved from the deceased’s body during a post mortem; which he then handed in at the National Forensic Institute for examination together with the accused’s firearm and the spent cartridge case found at the scene.

[12] William Nambahu is a Chief Forensic Analyst employed at the National Forensic Science Institute with the necessary experience to examine and analyse firearms, cartridge cases and projectiles. He received for examination 1 x 9 mm pistol with serial no. 037704; 1 x 9 mm pistol magazine; 1 x 9 mm spent cartridge case; and 1 x 9 mm spent projectile. Upon analysis he found the following: that the pistol was capable of firing; the spent cartridge case was fired by the same pistol; and, that the spent projectile could not be analysed because there were too many “scratch marks” on it and as a result thereof, no identifiable grooves could be detected on it; therefore it has no evidential value. The scratch marks on the projectile are according to Mr. Nambahu, consistent with an instance where the projectile had made contact with a hard object like corrugated iron. It is not disputed that the spent projectile found lodged in the deceased’s body, was fired from the accused’s firearm.

[13] Warrant officer Jeremia Shipiki is a police officer attached to the Scene of Crime Unit and he visited the scene on 16 July 2007. After pointing out was made to him by w/o Ambunda and the accused’s wife, he compiled a photo plan and the accompanying key thereto (Exh J). From the point where the shot was fired from up to the point where the corrugated iron gate is, is a distance of 15,5 m; while the hole in the corrugated iron is situated 0,65 m above ground level. It is further common cause that the particular hole in the corrugated iron was caused by the bullet fired from the accused’s firearm on that day.

[14] Dr. Sandra Perera who performed the autopsy had in the meantime returned to her country of origin and was therefore not available to give evidence on the post mortem report she had completed. Instead, Dr. Vasin was called to comment on the report and of interest from his evidence is to note that the entry wound was on the right front of the deceased’s body and the trajectory of the bullet was downward and slightly to the left side. The bullet was lodged in the heart of the deceased. The medical evidence and the findings noted in the report were also not disputed.

[15] Accused was the only defence witness and his evidence prior to the shooting materially confirms what the State witnesses had said. He said that Junias and the deceased stood up from where they were sitting at the fire place in order to fetch the donkeys and the deceased waived him goodbye before exiting through the main entrance. Accused and his wife then entered their bedroom where accused took his pistol from under his pillow; removed the magazine and walked out of the room to check whether the firearm was safe. He was holding it with the barrel facing down at an angle of 45 degrees when he accidentally touched the trigger and a shot fired into the ground with the bullet thereafter hitting the corrugated iron on the gate. He was unaware that he had struck someone until his wife brought it to his attention where after they ran to where the deceased was lying, already dead. He told his wife to call the police and then built a shelter to protect the body from the sun.

As stated before, regarding the warning statement the accused denied having said certain things contained therein. He said that when his statement was recorded he was still in shock and did not read the completed statement himself before signing it. He said it was however possible that w/o Ambunda could have translated it to him but that he did not pay much attention thereto as he was still in shock.

In cross-examination the accused said that he was uncertain as to whether there was a bullet in the firing chamber and wanted to check on it, at which stage he accidentally touched the trigger. It was pointed out to the accused that his evidence differed from what he had stated in his plea explanation at the beginning of the trial namely, that the pistol was on his side and not under the pillow; that he pulled the trigger compared to accidentally touching it; and Junias and the deceased having left through the corrugated iron gate and not the main entrance. He explained that the statement setting out his plea on a lesser charge was then not correct as far as it concerns these issues.

[16] The State case entirely rests on circumstantial evidence as none of the witnesses who testified had seen the accused firing the pistol. Because it is not disputed that the accused handled a firearm which discharged a bullet that hit a corrugated iron and thereafter the deceased, the only issue for consideration is whether the accused acted with intent or otherwise and whether he foresaw the consequences of his actions.

[17] From the evidence of Junias, Naambo and Loide, it is clear that there was no reason why the accused would intentionally have fired a shot at the deceased and therefore lacks motive. They had parted ways amicably a few minutes before when Junias and the deceased stood up to fetch the donkeys and they thereafter went out of sight of the accused who, in the meantime, had entered his bedroom where he stayed for a while before going outside again.

The only incriminating evidence against the accused thus, is what is contained in the warning statement taken from him later that day and where he allegedly said that he told the deceased to move away and where after the accused fired at where the deceased was standing. Despite the accused denying having said that or acted in that manner, there is no other evidence supporting that version. All three State witnesses were within earshot of the accused and must have heard him telling the deceased to move away from the gate; especially Junias, who on his own account, must by then have been between the accused and the deceased. Yet, no one made any mention thereof and neither were they asked about it. It is also inconsistent with Loide’s evidence who had just passed the accused outside their bedroom on her way to the bathroom as she also did not see either the deceased or Junias at the gate. She only came to see the deceased after the shot rang out and by then he was not near the gate. This is confirmed by the photo plan according to which the deceased fell down 7,4 m from the gate when struck by the bullet.

[18] As regards informal admissions contained in the plea explanation of an accused person it was held that such admissions stand on the same footing as extra-curial admissions in that they are items of evidence against the party who made them, but which such party may contradict or explain away. S v Shivute 1991 NR 123 (HC)

From the present facts it is clear that, that part of the warning statement which incriminates the accused was not only disputed by the accused when giving evidence, but is also inconsistent with the evidence of the State witnesses. It was submitted by defence counsel that the statement in itself is contradictory where it reads that the accused was aiming at where the deceased was standing; while at the same time it reads that the accused could not see the deceased. I agree.

[19] I furthermore do not believe that any right minded person in a similar situation would fabricate evidence to his own detriment in a criminal case where he faces a charge of murder. In my view, this raises doubt as to the correctness of the interpretation done by w/o Ambunda when recording the statement alternatively, whether the accused was emotionally fit to give a statement at the time. Be that as it may, the accused in his evidence denied the correctness of these admissions contained in the statement and also, the proved facts do not support the self incriminating allegations contained therein. It therefore carries little to no weight at all.

[20] Junias is the only person able to describe the exact position of the deceased immediately before the latter was hit by the bullet however; his explanation is in more than one respect inconsistent with the evidence adduced regarding the trajectory of the bullet. This was conceded by the State. With regard to photos no. 1 and 5 of the photo plan (Exh J) one is able to see that the point from where the shot was fired (A); the corrugated iron gate (C) and the point where the deceased was found (D), are not in a straight line. Junias in his evidence did not say that the deceased had moved away from the spot once he was hit, only that the deceased fell down; got up and again fell down, thus it had to be at point D. According to him they had walked away from the gate a short distance with the homestead sitting on their right. This means that they had turned their backs on the gate as they walked. Now that certainly raises more questions than answers.

[21] Despite the angle at which the bullet hit the corrugated iron 0,65 m from ground level it would, according to Mr. Nambahu, have been possible for it to deflect at an ascending angle and hit someone walking beyond that point. That conclusion to me seems logical but what does not make sense is that once the bullet penetrated the body of the deceased just below the right side collar bone, one would not expect to find a downward trajectory and the bullet to lodge itself in the heart which is situated below the entry wound. There is no medical evidence suggesting that the bullet had hit a hard object like bone and again deflected after entering the deceased’s body. Furthermore, if they were walking away from the gate with their backs or right sides facing the gate, how was it possible that the deceased could have been hit on the front? These inexplicable inconsistencies between Junias’s evidence and the proved facts concerning the trajectory of the bullet certainly remain a mystery and cast doubt as to the correctness and reliability of Junias’s evidence on that point.

[22] His evidence is furthermore contradicted by the witness Loide on two material aspects namely, that he did not leave through the corrugated iron gate and was also not seen with the deceased the time the latter was hit by the bullet. Junias gave single evidence in respect of the shooting incident and when regard is had to the unexplained inconsistencies surrounding his evidence, it cannot in my view be said that his evidence was satisfactory in all material respects.

[23] What remains to be considered is the version of the accused and more specifically whether it is reasonably possibly true. It is trite law that no onus rests on the accused to convince the court of the truth of any explanation he had given and even if that explanation is improbable, the court may not convict unless it is satisfied that it is beyond any reasonable doubt false. (S v Difford 1937 AD 370 at 373)

The test is not whether the court believes the accused’s story but whether it thinks there is a reasonable possibility that it may be substantially true. (S v Kubeka 1982 (1) SA 534 (W) at 537)

Some discrepancies in the accused’s evidence compared to his plea explanation were disclosed; however, all these relate to the events preceding the actual shooting and are not material to establishing the guilt of the accused.

[24] What the Court needs to do is to assess whether the State’s case has been proved beyond reasonable doubt when measured against an accused’s conflicting version. The approach of the Court should be to measure the totality of the evidence, not in isolation, “…but by assessing properly whether in the light of the inherent strengths, weaknesses, probabilities and improbabilities on both sides the balance weighs so heavily in favour of the State that any reasonable doubt about the accused’s guilt is excluded.” (S v M 2006 (1) SACR 135 (SCA) at 183 h-i)

[25] When considering the totality of the evidence adduced and with regard to the discrepancies and improbabilities in the State case, I have come to the conclusion that the evidence of the accused, although not perfect, is reasonably possibly true.

[26] The State, solely relying on the warning statement, submitted that the accused had the required intention in the form of dolus eventualis and therefore he is guilty of murder. I was referred to Principles of Criminal Law: Jonathan Burchell (Revised 3rd edition) at p. 467 which reads:

In short, if the accused foresaw the consequences or circumstances in question not as a probable result of his act but considered that there was a possibility that they could result (and reconciled himself to this possibility), he had intention in the sense of dolus eventualis. On the other hand, if he did not actually foresee, but as reasonable man should have foreseen, the possibility of the consequences occurring, or circumstances existing, he lacked intention and, at most, will have been negligent. The view that foresight of the possibility of the consequences resulting from an accused’s act is sufficient for dolus eventualis is now firmly established in our law.”

[27] When applying the aforementioned approach to the facts in casu I am convinced that the State failed to show beyond reasonable doubt that the accused acted with intent in the form of either dolus directus or dolus eventualis and that he is guilty of the offence of murder. What (at most) has been established (and admitted by the accused), is that he had acted negligently as a result whereof a person had died.

[28] The accused at the beginning of the trial tendered a plea of guilty on the competent verdict of culpable homicide and in a statement prepared in terms of section 112 (2) of the Criminal Procedure Act, Act 51 of 1977, he admitted all the elements of that offence.

[29] Culpable homicide is the unlawful, negligent causing of the death of another human being. (Snyman: Criminal Law Second Edition at p.428)

The accused admitted the following:

  • That he caused the death of another person namely Wilbard Ndeshipanda Angala;

  • That he was negligent when he pulled the trigger of his firearm as he had failed to conduct a proper examination when checking the firing chamber of the firearm to ensure that there was no live bullet lodged in the chamber before pulling the trigger;

  • That the deceased died as a result of his negligent actions.

The admissions made by the accused clearly satisfy the definition of culpable homicide.

[30] The negligence of the accused lies in the fact that he failed to ensure that the firearm was safe before firing it, albeit intentionally or accidentally due to his negligent handling of the firearm. The shot was fired within the home stead where a number of people were present and moving about; and when these circumstances are subjectively considered; I am convinced that the reasonable man in these circumstances would have foreseen the possibility of the firearm discharging and that he would have acted differently, by taking precautionary measures to prevent such possibility. Thus, the accused failed to do what could and should have been done to prevent the occurrence of death. He therefore stands to be convicted accordingly.

[31] Although the accused was charged with the offence of murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003, it was conceded by the State that the said act does not find application to the facts of this case, except for the accused and the deceased having been related through marriage on his wife’s side and them staying in one house.

[32] In the result, the Court finds the accused on the charge of:

Murder – Not guilty

I.t.o. Section 258 Act 51 of 1977: on the competent verdict of Culpable

Culpable Homicide - Guilty




Instructed by: Office of the Prosecutor-General


Instructed by: Lorentz Angula Inc.