CASE NO.: CC 05/ 2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

GERALD KASHAMBA

CORAM: LIEBENBERG, AJ

Heard on: 23 - 26 February 2009; 02 – 05 March 2009; 20 March 2009

Delivered on: 03 April 2009

JUDGMENT

LIEBENBERG, AJ: [1] In this matter the accused is charged in the main count with Murder, alternatively contravening section 38(1)(l) of Act 7 of 1996 – Negligent discharge or handling of a firearm.

[2] Accused pleaded not guilty on the murder charge and guilty on the alternative, setting out the basis of his guilty plea in an accompanying plea explanation prepared in terms of section 112(2) of the Criminal Procedure Act, Act No. 51 of 1977 (the Act). The State however declined the plea and proceeded on the main count.

[3] The accused’s defence was conducted by Mr. Makando on instruction of the Directorate: Legal Aid while Mr. Shileka appeared for the State.

[4] The murder charge preferred against the accused refers to an incident on the 8^th of September 2007 in Rundu, during which Laurentia Kashamba, the accused’s wife (the deceased), died as a result of a single gunshot wound. Accused in his plea explanation admitted having wrongfully, unlawfully and negligently discharged a firearm namely, a CZ pistol with serial number: 142556 that caused the death of Laurentia Kashambo. It was further explained that during a physical struggle between the accused and the deceased for possession of the firearm, a shot fired accidentally, fatally wounding the deceased. Accused denied having had any intention to discharge the firearm. He further stated he was ‘more than convinced’ that the time when the pistol discharged, it ‘should have been’ pointing in the direction of the bedroom wall; and that the deceased was actually struck by a ricocheting bullet.

[5] It is common ground that at the time of the incident, the accused was a police officer with the rank of warrant officer and the deceased the principal of a school in Rundu. They resided in a three bedroom house that was shared with other family members i.e. the deceased’s niece, Siwombe Napemba who slept in the dining room; Mutusha Kashamba, a 17 year old boy, and Max, a grandchild of the couple who also slept there on that evening. The accused and the deceased were sleeping in the main bedroom while the two boys were sleeping in the outbuilding.

Furthermore, it was not disputed that the deceased earlier in the day left the common home at 16:00 to attend a memorial service by which time the accused had not yet returned home from work. Upon his return at 18:00 the accused enquired about the whereabouts of the deceased and soon thereafter, he went out for the evening. The deceased returned home at 22:00 and retired to bed at midnight while the accused came home at around 01:00.

[6] The State called several witnesses, mostly police officers, who described to Court the events following the shooting incident. There were no eye-witnesses called by the State and the only person able to explain the events preceding the shooting incident, is the witness Siwombe Napemba (Ruve), who at the time, was asleep in her bedroom.

[7] Napemba told the court that she opened the back door for the accused upon his return where after he proceeded to the main bedroom while she went to hers, closing the door of her bedroom. All she could hear was the accused sounding angry when asking the deceased about the food they had for dinner and she expected them to start quarrelling. Napemba then opened her bedroom door to hear what was being said. She was unable to hear any further discussion between the accused and the deceased and as no quarrel started, she again closed her bedroom door. She fell asleep but was after about 15 minutes woken by a sound as if something fell. Soon thereafter the accused entered her bedroom saying: “Could you please go to my room, I have done wrong to your name sake.” (The witness and the deceased were both known by the name “Ruve”). They entered the main bedroom together where the deceased was found lying on her back on the floor next to the bed. She observed an open wound on the deceased’s left arm from which she was bleeding. Unable to wake the deceased, Napemba went out to call Mutusha, whereafter they returned to the main bedroom. Mutusha and the accused again tried to wake the deceased, but got no response from her. The accused then used his mobile phone and made a phone call to a police officer, to whom Napemba heard the accused say that the officer had to come and see what he had done to his wife, and that she did not want to wake up. They then tried to place the deceased onto a blanket in order to carry her to the accused’s vehicle, but without success. Shortly thereafter the first police officer arrived and Napemba and Mutusha left the room.

In cross-examination Napemba replied that the accused appeared shocked after the incident. When asked who normally had possession of the fire-arm in question, Napemba said that she had never seen the deceased with it and that the accused, as the owner, always had possession thereof.

[8] Matusha in all respects confirms what Napemba related to the Court. As regards possession of the firearm in question, he was unaware that a firearm was kept in the house and had only seen the accused in the past with a different firearm.

[9] Evidence was given by several police officers, who were summoned to the scene after the incident and the first of them to arrive was Inspector Nawaseb. According to him he received a phone call from the accused at about 02:27 requesting him to come to the accused’s house saying: “I killed my wife. I made a big mistake”. Upon his arrival he entered the main bedroom and found the deceased lying on the floor between the bed and the wall. He examined the body for any sign of life but detected none. He noticed a CZ pistol on the bed, which he then removed for safety reasons. Inspector Tsuseb, warrant officer Elijah (now deceased) and warrant officer Kavindja also arrived, the latter from the Scene of Crime Unit. After Insp Nawaseb made certain pointing out, w/o Kavindja took over and after he had finished photographing the scene, the corpse was removed.

According to Insp Nawaseb the accused appeared to be in shock and acted out of character. It was decided to take him to the hospital for treatment. Insp Nawaseb and w/o Elijah later on fetched the accused from the hospital and took him to the police station where he was asked whether he could explain what had happened. After being informed that he was not compelled to give an explanation he responded by saying: “All I can recall is that my wife asked me why I was so late? This resulted into a quarrel between me and my wife. I don’t know how I got hold of the firearm and the next moment I just heard a bang/noise of a bullet and my wife fell from the bed. I wanted to scare her.” Accused still did not appear to be well and it was decided to discontinue the questioning where after the accused was taken to the charge office.

[10] W/o Kavindja photographed the scene as pointed out to him by Insp Nawaseb, from which he compiled a photo plan that was handed in (Exh H). He furthermore did a gunshot residue ‘test’ (GSR) on the hands of both the deceased and the accused which, together with the firearm, were sent for forensic analysis to Windhoek. The ‘test’ referred to was the collecting of gunpowder particles from the hands of accused and the deceased. W/o Kavindja furthermore explained that he found a spent casing, as well as a spent projectile, on the floor of the main bedroom. He decided to check the walls of the bedroom for any sign that it was hit by the projectile or a fragment thereof. He could find no new marks on the walls and disagreed, when put to him in cross-examination that the bullet ricocheted from the wall.

[11] William Nambahu is a chief ballistic scientist in the employ of the National Forensic Science Institute, Windhoek and his testimony evolves around the testing and examination of exhibits handed in at the Institute by w/o Kavindja. These were 1 x 9mm pistol (serial no. 142556); 1 x pistol magazine; 1 x spent case; 1 x spent projectile; 14 x bullets; 4 x containers with gunshot residue (GSR). An analysis of the aforementioned exhibits revealed that the spent projectile and case (found on the scene), were fired from the pistol with serial no. 142556, which is the same firearm found on the bed by Insp Nawaseb. As regards the gunshot residue collected from the hands of accused and the deceased, no residue was chemically detected on any of the exhibits received.

Mr Nambahu was extensively cross-examined by Mr Makando on the spent projectile he had received and specifically whether it had signs of having hit a hard object like a wall. He made a distinction between a bullet that ricochets and one that bounces off a hard object – in the first mentioned, he expected the projectile to be flattened at a specific angle while the second, should be flattened at the top. Upon examination of the projectile delivered to him, he could find no signs that it had made contact with a hard object after being fired.

[12] Elizabeth Kaundja is a professional nurse and was on duty at Rundu State hospital when the accused was brought in for treatment. He appeared to be sick and suffered from high blood pressure, for which the doctor gave a prescription. After it was administered the accused slept a while and when he woke up, his condition appeared stable.

[13] The State further called two family members, whose testimony did not take the issues in dispute any further.

Shinimbo Napemba is a cousin of the deceased who stayed with her and the accused from 1992 – 2003. On that fateful night she was at home in Rundu and was only afterwards informed of what had happened at the deceased’s house. During her earlier stay with the deceased, she never saw the deceased in possession of a firearm, nor is she aware of an incident in which the couple’s last born was almost struck by a bullet fired from a firearm handled by the deceased.

The other witness is Mbereshu Mudi, also a cousin of the deceased. She only arrived at the scene later and insisted on seeing the deceased’s body before it was taken away. According to her, she and the deceased had a very close relationship and she had never before seen the deceased in possession of a firearm. She also had no knowledge of an incident in which the deceased fired a firearm at Grootfontein. Although she did refer to an incident when the deceased was shot in the leg, she did not mention the circumstances in which it happened, other than stating that the deceased was living in an abusive relationship. She did not explain on what grounds she had come to that conclusion and whether this was conveyed to her by the deceased or anyone else. This obviously amounts to inadmissible hearsay evidence and must be disregarded.

[14] The evidence of constables Joseph and Dien merely refer to the time when they were called to the hospital to guard over the accused whilst he was receiving medical treatment. Cst. Joseph later on transported the deceased from the house to the hospital where a medical doctor certified her as dead and the corpse was thereafter taken to the morgue. During transportation of the body it did not sustain any further injuries. Cst. Dien stated that at the hospital he observed the accused crying.

[15] Kanyetu Nandjira is the youngest sister to the deceased who attended a memorial service with the deceased earlier that evening. In the early hours of the following day she learned of the passing of her sister. The relevance of her evidence does not lie in the events which took place at the accused’s house that morning, but rather of two previous incidents during 1992 and 1993 respectively.

The first incident played out during 1992 when the witness was staying with the accused and the deceased in their house in Rundu. One night when the accused returned home he went to the main bedroom where the deceased was and after a while the deceased came into the lounge, followed by the accused. She heard the accused saying to the deceased: “There is a smell of your husbands in the room. You must be careful, I will kill you.” Nandjira then stood up from where she and another old lady were sitting across the lounge to see what was happening when a shot rang out, the bullet grazing passed her breaking the window. The deceased ran outside, followed by the witness and the old lady from where they went to the house of one Shinimbo, where they spent the night. They returned the following morning. Nothing came from this as the incident was not reported to the police.

The second incident was narrated to the witness by the deceased during 1993, when the witness was no longer staying with the family but only came to visit. On this occasion a shot was allegedly fired inside the house at night by the accused, where after the deceased woke the witness and reported to her what had happened. Although unaware of what had happened, Nandjira in the morning, started looking for any sign of the shooting and then noticed that the toilet door was hit. Again, this incident was not reported to the police. She also stated that she had never seen the deceased with a firearm and she is unaware of any incident during 1990 in Grootfontein, when a shot was fired by the deceased, almost hitting her youngest child.

Nandjira furthermore, for purposes of this trial, pointed out to warrant officer De Celestino certain points relating to the two incidents testified about by her. These are contained in a photo plan compiled by him on 23 November 2007 at the request of detective warrant officer Simbwae, the investigating officer. (Exh N) The photos depict the lounge where the alleged shooting took place during 1992 as well as the window pane which was broken when hit by the bullet. It further contains two photos showing a mark on a door which Nandjira testified about as the mark she found the morning after the alleged shooting in 1993.

[16] The post mortem report handed in by agreement (Exh E), was compiled by the late Dr Shangula and due to her passing, the State called Dr Vasin in order for him to comment on the report. He testified that he could not go into any detail as he had not written the report, but said it was a single gunshot injury where the projectile travelled from left to right from the left arm pit, entering the thoracic cage on the posterior aspect of the body; with the exit wound on the exterior aspect of the right upper arm. This evidence was not disputed and is consistent with the findings noted in the report.

[17] Accused was the only defence witness. He started off by testifying about an incident which happened in Grootfontein in 1990, during which the deceased had fired a shot from outside their house into the bedroom in which the accused and their youngest child were, causing them to flee to another room. Despite the matter being reported to the police by their neighbours, no formal charges were laid.

Deceased was transferred to Rundu during 1991 while the accused and the children remained behind in Grootfontein until April 1992 when the accused was also transferred there. According to the accused he took possession of the house in September 1991 and when an inspector of the Ministry of Works, Transport and Communication inspected the house, the already broken window pane and damaged door were pointed out to the inspector. Accused denied that these were damaged by him and he was unaware of any incident when the deceased had to flee from the house seeking shelter. To him, this was all made up by the deceased’s family. He was also unaware of an incident where the deceased was shot in the leg and specifically instructed the investigating officer to investigate these rumours. He furthermore disputed the evidence of the witness Nandjira that she had been staying with them during 1992 and particularly, that he had fired any shot that grazed past her.

The accused’s evidence is that the firearm in question was in possession of the deceased already since March 2000 and he referred to a time when she came with it to Aus when visiting him there in 2004. He explained that he gave her the firearm because of the volatile situation in the Kavango Region at the time and that the deceased was also travelling to the farm regularly.

Regarding the events leading up to the killing of his wife, accused said that after he came from work that day, he changed clothes where after he went to Omushare Lodge where he met his cousin. After one beer they proceeded to a shebeen at Ndama where they remained until between 01:00 - 02:00 before returning home. He was let in by Napemba (Ruve) and went to the main bedroom where he found the deceased still awake. She started questioning him on his whereabouts and accused him of returning from a lady called Elma, a cousin of the deceased and a close friend of the accused. He said the deceased then went up to the wardrobe from where she took the firearm and demanded that they should go to where the accused had come from.

They started quarrelling, during which the accused reminded the deceased about the shooting incident in Grootfontein when she had nearly killed their child. He asked her to surrender the firearm but she refused, where after he grabbed her hand holding the firearm, in an attempt to wrestle it away from her. Accused said he accidentally touched the trigger and a shot fired. At that stage the accused was standing on the right hand side of the deceased while she stood with her left side facing the bedroom wall. He had pulled her on her right arm while the firearm was pointing in the direction of the wall. In his evidence in chief the accused was adamant that the bullet ricocheted from the wall, thereafter hitting the deceased. When the deceased collapsed, he got hold of her and made her lie down on the floor, where after he went to call Napemba. He said he then became confused and tried to call an ambulance and Insps. Tsuseb and Nawaseb. He recall having been at the hospital; w/o Kavindja lifting something from his hands; and him being taken to the police station where Insps. Elijah and Nawaseb questioned him. He can recall having been asked what had happened, but not what his reply was on these questions because he was not feeling well. Because of that they did not question him any further. The next day he was formally charged and when his warning statement was taken down, he elected to remain silent.

[18] The facts which are common cause are that the accused pulled the trigger of the firearm (Exh 1); the deceased was struck by a single bullet fired from the said firearm as reflected in the post-mortem report (Exh E); that the deceased died as a result of the gunshot wound; and lastly, that the accused and the deceased were alone when the latter was shot.

[19] In order for the State to secure a conviction on a charge of murder, it has to prove beyond reasonable doubt that the accused acted with the required mens rea when he fired the shot namely, that he had the intent to kill. Alternatively, if unable to do so, whether the accused then should be convicted of culpable homicide or any of the competent verdicts under section 258 of the Act.

[20] What is clear from the evidence is that the only person able of testifying about what happened between the accused and the deceased on that fateful night, is the accused and that the State case is entirely based on circumstantial evidence. Therefore, in considering whether the accused indeed committed the crime of murder, this Court is required to draw inferences from the proved facts and along the lines set out in the well known case of R v Blom 1939 AD 188 at 202-3.

[21] It is common cause that the accused at different stages that night after the shooting incident, made certain reports to different people about what had happened. Except for the time when he was taken to the police station by Insps. Elijah and Nawaseb and asked to explain what had happened, the accused made the other statements spontaneously and out of his own free will.

The first report he had made was shortly after the incident when he called Napemba while saying that he had “done wrong” to her namesake. The only reasonable meaning that can be ascribed to these words is that the accused had done something which he perceived to be wrong. Despite accused saying during his evidence in chief that he was confused the time he called Napemba, he confirmed in cross-examination that he had said those words.

Regarding what he had told Insp Nawaseb over the phone the accused said (in chief) that he could not recall having said to the inspector that he wanted to tease his wife or that he had killed his wife; however, in cross-examination he admitted having told the inspector that he had killed his wife, but added that he at that stage was confused and even crying. Still during cross-examination he added that he had told Insp. Nawaseb to come to his wife “as she sustained injuries”. This was clearly new evidence and neither had it been put to Insp. Nawaseb when he testified. When asked to explain, accused replied that he was confused at the time. According to Insp. Nawaseb the accused had also said that “he had made a big mistake” which was not disputed. This latter part of the report is consistent with what he had told Napemba shortly after the incident took place i.e. that he had wronged.

The report made by the accused to Insps. Nawaseb and Elijah followed after the accused had been informed that he was not compelled to inform them about what had happened, where after he mentioned about being asked by the deceased why he came home that late; this erupted into a quarrel; he didn’t know how he got possession of the firearm; a shot fired and his wife fell from the bed; he wanted to scare her. He could recall the officers saying that he did not appear normal and therefore they stopped questioning him and left. Accused testified that in the morning when he was asked whether he wanted to make a statement he declined, because he was still confused. In cross-examination accused stated that he could not recall having said to Insp. Nawaseb what he had testified about and whether it was at all said by him.

[22] These statements made by the accused are self incriminating and it would therefore be of importance to view and consider them in context. Those State witnesses, who observed the conduct of the accused that night, are all in agreement that he acted out of character and appeared to have been in shock; which explains the decision to have him taken to hospital for treatment. I do not believe that there is evidence to find otherwise and when regard is had to the circumstances surrounding the shooting incident in which his wife had died in his presence, it seems to me quite natural for someone to go into shock under those circumstances. It does not however mean to say that, because the accused was in a state of shock, the Court therefore must completely disregard everything he had said from the time he went into shock; or that he was incapable of appreciating the situation he was in or unable to communicate and express himself comprehensively. Unless there is satisfactory and reliable evidence to the contrary, it does not automatically follow as a consequence of someone who is in shock. It therefore remains for the Court to determine what weight, if any, has to be given to the self incriminating admissions made by the accused in the circumstances.

[23] To complicate matters even further the accused, on a question put to him by the Court about his state of sobriety when he returned home that night, replied that he was intoxicated (“a bit drunk”). This prompted a question by the State whether he was só drunk that he did not know what he was doing, to which he replied that he was not all that drunk and could remember “some things”, referring to the shooting incident.

[24] Accused did not really dispute that he had made any of the statements testified about by the State witnesses and in cross-examination he said that after the shot fired, he was unable to recall anything. This notwithstanding, he confirmed in cross-examination that he told Napemba that he had wronged as well as that he told Insp. Nawaseb that he had killed his wife. As for the rest, he said it was possible that he could have said it as he was unable to recall. Neither one of these two witnesses were shown to be untruthful during cross-examination, on the contrary, the accused, on certain aspects of their evidence, relied on their testimony to support the accused’s version i.e. that he appeared to be in shock. Their evidence was largely corroborated by the accused himself. Despite the accused’s allegation that the deceased’s family fabricated the evidence against him, there is absolutely nothing to show that either Napemwa or Insp. Nawaseb was part of such a conspiracy. They testified in an honest and forthright manner and gave credit to the accused where it was due. I therefore, can find no reason why this Court should not rely on their evidence and accordingly find the accused to have uttered the words testified on by both State witnesses.

[25] When considering the accused’s narrative of what happened after the shooting incident, it is quite clear that he recalls much more than what he at first was willing to admit. For instance, he gave a detailed account of the deceased’s position immediately after the shot fired and how he placed the firearm on the bed in order to catch the falling deceased; the position in which he laid her down; his exact words to Napemwa; the phone calls he made, first to call an ambulance to which there was no response, and thereafter to Insps. Tsuseb and Nawaseb and what he had told the latter; that he took the car keys from the table and turned the vehicle around; that he observed the neighbours looking on from their yard and one police officer was among them; that he started crying; at the hospital w/o Kavindja took something from his hands; that he was guarded by police officers; and how Insps. Nawaseb and Elijah later took him to the police station where he was questioned.

The version of the accused relating to what happened after the shooting incident is not only coherent, but also corroborates the evidence of the two State witnesses and the only evidence where the accused tried to distance himself from, concerns the admissions he had made to the witnesses.

[26] In S v Shikunga and Another, 1997 NR 156 (SC) at 177I the Court, after having considered several judgments of the Appellate Division of the Supreme Court of South Africa regarding an extra-curial statement of an accused, applied the same principle to this jurisdiction namely, that once an extra-curial statement of an accused is adduced in evidence, it must be viewed and valuated in its entirety, inclusive of assertions and explanations favourable to the maker. (R v Valachia and Another, 1945 AD 826 at 837; S v Nduli and Others, 1993(2) SACR 501 (A) at 505 f-h)

The Court then quoted with approval the sentiments expressed in S v Nduli and Others, (supra) at 505g:

“A statement made by a man against his own interest generally speaking has the intrinsic ring of truth; but his exculpatory explanations and excuses may well strike a false note and should be treated with a measure of distrust as being unsworn, unconfirmed, untested and self serving.”

This principle will not only apply to recorded statements, but as in this case, also to oral statements. These statements should not be viewed in isolation but together with the rest of the evidence.

[27] This brings me to the accused’s evidence concerning the discharging of the firearm. It is common cause that the bullet entered the deceased’s left arm pit, went through the chest and exited on the right upper arm. From the trajectory of the projectile it is possible to say that the deceased’s left arm must have been raised, exposing the armpit the time the shot was fired; and that it was fired from the deceased’s left side, unless there is evidence to prove otherwise.

The accused explained and demonstrated his and the deceased’s positions and actions immediately prior to and during the discharge of the firearm and according to him they were both standing side by side with accused on her right side, and deceased facing the wall. She held the firearm in her right hand while he had placed both his hands over hers; trying to wrestle the firearm from her, at which stage it fired. It is the accused’s testimony that the deceased was struck when the bullet ricocheted from the wall. When it was put to the accused in cross-examination that, had it been like he explained, the entry wound could not have been on the left side of the body but on the front as the deceased was facing the wall, he explained this by saying that because one is able to turn one’s head, the deceased stood sideways, with only her face turned towards the wall. This implies that the deceased was looking to her left side, away from the accused standing on her immediate right, while wrestling with him to maintain possession of the firearm. With regard to the position of the entry wound, accused demonstrated how the deceased had raised her left arm above her head the moment the shot fired. However, bearing in mind that she was busy resisting the accused from disarming her, it seems to me an unusual position for her to have her arm in, as one would expect of her to use both her hands in the struggle.

[28] The first time that the ricocheting of the bullet was mentioned by the accused is when the section 112(2) statement was read out in Court. At no earlier stage did he make mention thereof to any of the police officers on the night of the incident or to the investigating officer to investigate such a possibility and when asked why he failed to inform the investigating officer, he replied that he was not afterwards taken to the scene, nor was he asked about it by the investigating officer. I find the accused’s reply surprising, because he did, according to himself, request the investigating officer to investigate other aspects of his defence relating to the incident in Grootfontein, as well as the damage done to the house when they moved in during 1992. Now, if the accused deemed it important to have those issues investigated, why did he not at least raise the ricocheting of the bullet earlier or had that possibility investigated? After all, it forms the pinnacle of his defence!

At the commencement of the proceedings the accused stated (in the section 112(2) statement) that he was “more than convinced that…the firearm…was discharged causing the shot to hit the wall and thereafter (ricocheted) to cause the fatal wound.” From the manner in which it is framed, it is clear that there is some degree of uncertainty in the accused’s mind as to what actually happened. This is also evident in a question put to Mr. Nambahu in which it is stated that the accused “thinks the shot penetrated the wall.” Accused took it a bit further in his testimony and said that the bullet díd ricochet, without saying why he was certain of that fact. It was only during cross-examination that the accused said that he actually saw the bullet hit the wall. That certainly raises the question why would he then at the beginning of the trial still speculate over such possibility if he knew it for a fact that the wall was hit; and why was that not mentioned in his evidence? His excuse for not having been asked is unsatisfactory and unconvincing especially in the light of him claiming to have told his counsel that he saw dust coming from the wall.

[29] W/o Kavindja’s evidence is clear that he, upon finding the spent projectile on the floor, checked the walls of the bedroom for fresh marks but found none. He therefore disputes the accused’s claim that the bullet ricocheted from the wall.

[30] The answer to the question whether the bullet ricocheted or not seems to lie in the appearance of the spent projectile found lying on the bedroom floor. The evidence of Mr. Nambahu is clear that upon his inspection of the spent projectile, he found no sign on it that it had ricocheted but instead, he found that it was identical to a projectile that was fired into a soft body like water. He went on to say that had the projectile hit a hard surface, it would be expected to have damaged the projectile. In the absence of any sign of damage to the projectile, he was certain that it did not hit a hard object like a wall. Thus, he disagreed with the accused’s contention that the bullet first hit the wall before it struck the deceased.

[31] No scientific evidence refuting Mr. Nambahu’s version was led by the defence and neither was it shown that he was an unreliable witness. That a projectile fired from a firearm into a hard surface will show signs of damage, seems logical to me and does not require any form of expertise to make such observation. The accused himself had a look at the spent projectile and found no sign of damage on it. Therefore, Mr. Makando doubting Mr. Nambahu’s practical experience as regards the appearance of projectiles fired into hard objects simply has no merit.

[32] Having given proper consideration to the version of the accused regarding the discharging of the firearm, I have come to the conclusion that the deceased could not have been struck by the bullet in the manner described by the accused and that his evidence in that regard stands to be rejected. I have also considered other possibilities, including that the deceased might have inflicting the injury to herself but then, why would the accused implicate himself by saying that he handled the firearm? Now, after excluding the aforementioned possibilities, all that remains is the possibility of the accused having fired the fatal shot at the deceased.

When regard is also had to what the accused said to the two State witnesses shortly after the incident namely, that he had “wronged”; that he “killed” his wife and made a big “mistake”; that he “got hold of the firearm” and just wanted “to scare her”, one seems bound to come to only one conclusion and that is that the accused handled the firearm and fired a shot at the deceased, wounding her fatally. In order for the Court to draw the inference that it was indeed the accused who had fired the shot, it (i) had to be consistent with the proved facts and (ii) it should reasonably exclude all other inferences. (R v Blom)(supra).

[33] This Court is alive to the fact that no onus rests on the accused to convince the Court of the truth of any of the explanations he had given even if that explanation is improbable, unless it is satisfied that it is not only improbable, but false beyond reasonable doubt.(R v Difford 1937 AD 370 at 373) It was also said that the test remains, whether there is a reasonable possibility that the accused’s evidence may be true and in applying that test, the Court need not even believe his story. It is sufficient if the Court is satisfied that there is a reasonable possibility that it may be substantially true. (S v Jaffer, 1988(2) SA 84 at 89D)

[34] The accused himself was not an impressive witness. He contradicted himself several times when attempting to explain what transpired on that fateful night, and adapted his evidence whenever he found himself in a tight spot under cross-examination viz. the positions he and the deceased were in when the shot was fired; the bullet ricocheting from the wall; and the extent of the reports he made subsequent thereto. I am further satisfied that these discrepancies cannot only be ascribed to the accused going into shock after the incident, therefore, because any (other) reasonable explanation is lacking, it could only mean that the accused invented some aspects of his evidence as he testified.

[35] This is evident from the manner in which the accused in his testimony tried to distance himself from having had possession of the firearm at the time. None of the State witnesses who had close relationships with the deceased ever saw the deceased in possession of the firearm and the accused’s reasons why he had given the firearm to his wife, is unconvincing. Neither was there any reason for the deceased that evening to resort to the use of the firearm even if she had access to it where it was kept in the bedroom. Napemba heard the accused raising his voice at the deceased and expected an argument to start but this never happened. Even after opening her bedroom door she did not hear the accused and deceased quarrel as he now claims. If the deceased was aggressive as the accused says, then Napemba must have overheard the argument. Furthermore, as was correctly in my view argued by the State, from the manner in which the deceased was dressed, it does not appear that she was about to leave the house. The accused’s explanation on the point that the deceased would still have dressed herself, I also find unconvincing. It certainly tends to show the accused’s awareness of guilt and his intention to hide certain information from the Court. It also explains the contradictions in his version of the events that took place that night.

[36] The number of independent circumstances present in this case should not be considered individually but its cumulative effect must be considered. These circumstances point to the same conclusion and as it was stated in Kenneth Siambango vs. The State Case No. CA 98/99 (unreported) delivered on 23 January 2002 at p. 29:

“It is of the utmost importance to bear in mind that, where a number of independent

circumstances point to the same conclusion there is not the sum of the simple probabilities of those circumstances, but it is the compound result of them”.

[37] Having duly considered the accused’s evidence regarding the circumstances under which the firearm was discharged; as well as the circumstantial evidence related thereto, I am satisfied that not only is the accused’s evidence improbable, but false beyond reasonable doubt and thus, it is rejected to that extent. The Court therefore finds that the accused fired one shot at the deceased which led to her demise.

[38] In Hoffmann & Zeffertt, 4^th Edition at p602 the learned authors discuss the view taken by South African courts when considering the circumstantial effect of an accused giving false evidence. In his dissenting judgment Malan JA, in R v Mlambo 1957 (4) SA 727 (A) at 738B-D said:

“…if an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even, perchance, escaping conviction altogether and his evidence is declared false and irreconcilable with the proved facts a court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did not avail himself of the opportunity to mitigate the gravity of the offence, he should nevertheless receive the same benefits as if he had done so.”

It was however submitted that full effect should be given to the words “in suitable cases” and then the learned authors continue at p603:

“An instance in which the dictum can be applied could be found in the facts of Mlambo’s case: if an accused has killed someone in an unlawful assault, and, if the accused alone is in a position to explain the circumstances of the fatal assault, and if he gives an account that is rejected as false, then the court can draw an inference that the accused committed the assault with the intent to kill rather than with a less serious form of mens rea. Everything depends on the facts of each case; but in a criminal case, the evidence of an accused may form an essential part of the entire evidentiary material. Its acceptance or rejection can be decisive as to whether he is to be acquitted; or, if he is acquitted on the main charge, whether he has to be convicted of a lesser offence. If an accused does not give evidence, or if his testimony is rejected as false, the court is deprived of the assistance of what could have been important information. A proper application of the Mlambo dictum merely signifies that an accused cannot complain if, because of his falsehood, the trier of fact does not give him the benefit of the doubt in this context, that he killed the deceased without intending to kill him or that he killed him with a lawful purpose. The first and second rule in R v Blom apply to the weighing up of all the material evidentiary factors which include this factor.”

See: S v Rama, 1966 (2) SA 395 (A); S v Engelbrecht, 1993 NR 154 (HC)

[39] The Court, having rejected the accused’s evidence regarding the shooting incident, does not have the benefit of reliable evidence on the subjective state of mind of the accused, in other words, to determine what was going on in his mind the time when he fired the shot. (S v Mokeng, 1992 NR 220 (HC)) In deciding that, the Court considers objective factors such as the type of weapon or instrument used; at which part of the victim’s body was the assault directed; and the nature of the actual injury sustained by the victim. (S v Beukes 1988 (1) SA 511 (A)) From these indicators the Court will then draw certain inferences.

Although the onus is on the State to prove beyond reasonable doubt that the accused acted with intent, it does not require of the State to prove that he had acted with dolus directus, as it is trite law that “a person has the necessary intention to kill if he appreciates that the injury which he intends to inflict on another may cause death and nevertheless inflicts that injury reckless whether death will ensue or not.” (S v Mini, 1963 (3) SA 188 (A) at 190B) Intent thus, in the form of dolus eventualis will suffice.

[40] When applying the aforementioned principles to the present facts, regard is had to the weapon used being a 9 mm pistol which was fired at close range into the upper body of the deceased, with fatal consequences. The only reasonable inference to draw from these facts in my view is that, if the accused did not act with direct intent then at least he must have foreseen that his action could result in death but that notwithstanding, fired the fatal shot. Such a finding is consistent with the accused’s statement shortly thereafter, namely, that “I have wronged; I killed my wife; I wanted to scare her.” The latter forms part of the statement the accused had made at the police station and already then did he say that he did not know how he got possession of the firearm, contrary to what he later on testified, then giving a detailed account of what, according to him, happened. The Court however did not believe him.

[41] In my view the Mlambo dictum finds application to the present facts and the accused cannot complain if he is not being given the benefit of the doubt and is convicted of murder even though he might not have intended to kill. However, when considering all the facts as well as the circumstantial evidence of the shooting, I am unable to find that the accused acted with direct intent, as that is not the only reasonable inference to draw from the proved facts. I am convinced that the accused committed the offence of murder, acting with intent in the form of dolus eventualis that was proved beyond reasonable doubt.

[42] In the result:

Main count – Murder: Guilty

Alternative count – C/s 38(1) (1) Act 7 of 1996 – Negligent discharge of a firearm: Not guilty

____________________

LIEBENBERG, AJ

ON BEHALF OF THE STATE Adv. R. Shileka

Instructed by: Office of the Prosecutor-General

ON BEHALF OF DEFENCE Mr. S.S. Makando

Instructed by: Directorate of Legal Aid

CASE NO.: CC 05/2008

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

GERALD KASHAMBA

CORAM: LIEBENBERG, AJ

Heard on: 07 April 2009

Delivered on: 08 April 2009

SENTENCE

LIEBENBERG, A.J.: [1] Gerald Kashamba, you stand convicted of murder in that on 8 September 2007 at Rundu, you have unlawfully killed your wife by shooting her with a firearm. We are now at the stage where this Court has to consider what suitable punishment to impose on you today. It is indeed no easy task and requires the weighing up of all factors relevant to sentencing; to find the right balance between them, without over or under emphasising any one of them.

[2] The factors referred to are the personal circumstances of the accused, the crime and the interests of society. Sufficient weight has to be given to each factor while at the same time the Court is enjoined to consider the element of mercy. S v Zinn 1969 (2) SA 537 (A); S v Khumalo 1973 (3) SA 697 (A).

The Court simultaneously must be mindful of the objectives of punishment and must endeavour to strike a balance between the interests of the accused, the interests of society and the crime in relation to the objectives of punishment namely, prevention, deterrence, reformation and retribution. The personal circumstances of the offender play an important role and must not be overlooked, because it is ultimately the accused that must be punished for the crime committed. Because the personal circumstances of people differ as well as the facts of each case being unique, sentences for similar offences will differ. S v Tjiho 1991 NR 361 (HC)

[3] The personal circumstances of the accused were placed on record under oath by the accused himself and these are the following: Accused at the age of 51 years is a first offender; he completed grade 12 and has for his whole life been a police officer, currently holding the rank of warrant officer; he has been suspended since his arrest in 2007 with the subsequent loss of income; an inevitable consequence of his conviction will be his dismissal from the police, with no prospects of ever being reappointed; he is in custody since his arrest on 8 September 2007; he has two daughters currently studying at the Politech and UNAM in Windhoek respectively; he is not certain where the money comes from to cover their tuition fees; his youngest son is being cared for by friends; accused and the children suffer emotionally since the incident to the extent that the accused has become depressive for which he received treatment in Windhoek. The accused has been tormented by the thought of having lost his wife and he believes that he will suffer for some time to come. He stated that he has remorse and preyed the Court to show mercy on him and for the deceased’s family to forgive him.

[4] Judging from the accused’s personal circumstances placed before the Court as well as the praise given to him by his immediate superiors, one is able to see that the accused prior to the incident, was a person who had built up a career within the police force from where he was able to support and maintain his family quite comfortably. The deceased obviously, being a principal, equally contributed to the life style they managed to attain. Part thereof was the accused’s farming activities on communal land where he hopes to return to one day.

[5] The situation in which the accused and his children find themselves in at present must be extremely difficult, for not only have the children lost their mother, but their father was the cause thereof and in all likelihood was due to be sent to prison. Not only are they to suffer from the loss of love and affection between parents and children, but suddenly their own futures were plunged in uncertainty concerning their tertiary studies and there was also no family life to speak of.

[6] This Court is very sensitive to the distress and hardship caused to family, friends and relations of the accused who suffer a great deal due to the misdeed of the accused; but alas, it is something which is an inevitable consequence of crime and where the accused is sent to prison, it is a penalty he has to pay and something those affected thereby unfortunately, have to deal with. Although difficult times are lying ahead for the accused as well as his children and other family members, I do not believe that it cannot be overcome over a period of time. The two girls who are currently studying have financial assistance from their mother’s estate which should enable them to complete their studies. As for the accused, it is a well known fact that counselling facilities are available to inmates in prison from which the accused can benefit should a custodial sentence be imposed.

One cannot but feel deeply for the children of the accused, regrettably, one cannot allow one’s sympathy for them to deter one from imposing the kind of sentence dictated by the interests of justice and society.

[7] The accused testified that he regretted what has happened and preyed for the Court’s mercy. Except for telling the Court how devastated he was about what had happened, he did not express himself about feeling remorse. It has been said that in order for remorse to be a valid consideration in sentencing, the penitence must be sincere and the accused must take the Court fully into his confidence otherwise the Court would not be able to determine the genuineness of the contrition the accused claims to have. (S v Seegers 1970 (2) SA 506 (A) at 511 G-H)

The accused throughout the trial denied any wrongdoing on his side and tried to put the blame on the deceased for creating or contributing to the situation which led to her death. I have no doubt that the accused has regrets about what had happened, but that is far from genuine contrition for the wrong he has done. Thus, the accused’s so called ‘regret’ should carry very little if any weight in mitigation of sentence.

[8] Regarding the crime committed, murder is seen to be very serious and would normally attract severe punishment, for someone has been robbed of his or her life; a fundamental right enshrined in our Constitution. In the present case the accused has robbed his children of having a mother who could love and support them in life; family members who clearly showed their respect and affection for the deceased; and the community’s loss of a professional and productive member from its ranks; someone who has dedicated herself to society as principal of a school in that region and as such, involved herself in the education of our children. One can therefore understand why the death of the deceased caused a row in that community and why it was widely reported on in the media.

[9] On that fateful night the accused had turned a firearm on his own wife, someone who was unarmed and defenceless against him. This happened in the safety of their home, where he as pater familias, was supposed to protect his family and not subject them to domestic violence and put their lives at risk. Unfortunately that night he took it too far and killed his wife by firing a shot at her with his firearm; killing her instantly. From the evidence of Napemba it is clear that the circumstances certainly did not require the use of any force against the deceased who by then, had already been in bed. From what Napemba could hear, the accused was dissatisfied about the food that had been prepared for dinner, causing the accused to raise his voice against the deceased. The Court has rejected the accused’s version of what followed thereafter and will never know the truth of what actually happened between him and the deceased that night.

[10] In my view the circumstances surrounding the death of the deceased in this case bear testimony to the extent of the violence and abuse perpetrated against women and children in the family structure in this country and which, I am ashamed to say, we have now become accustomed to. It is unthinkable that any right minded person will deliberately fire a shot at one of his family members for any reason other than in self defence. I cannot for purposes of sentencing disregard the evidence of the deceased’s sister Kanyetu Nandjira, who testified about two previous incidents in the past where the accused fired shots inside the house during arguments between him and the deceased. On one such occasion the bullet grazed past the witness, breaking a window pane while on the second, it slammed into a door. It seems to me that the accused has a history of resorting to the use of firearms to assert himself during quarrels with the deceased and the shooting of the deceased that night is testimony thereof.

[11] Accused, being a police officer with the rank of warrant officer and a well respected member of the police force, was not only under a duty to uphold the law and generally protect members of society, but these principles also applied to himself within the context of his own family. He clearly not only betrayed his family but also the community, especially his superiors who held him in high esteem and who could not believe that the accused would commit such crime. The fact that the accused is a police officer might have been the reason why the previous shooting incidents were never reported to the police and acted upon. He clearly showed no respect for the law within the parameters of his own home which sadly, was thé place where his family could feel safe and enjoy family life.

The circumstances under which the accused killed his wife, in my view, are aggravating and weigh heavily against him when it comes to sentencing.

[12] Serious crimes like murder, rape and robbery top the list of crimes daily committed callously and with impunity throughout Namibia and with absolute disregard to the rights of those who are peaceful and orderly in society. The courts through its decisions and sentences must uphold law and order in society and demonstrate its disapproval of those who threaten the fabric of society, lest the general populace will lose faith in the legal system and take the law into their own hands. The circumstances surrounding the death of the deceased were not well received by the community and led to protests aimed at not having the accused admitted to bail.

Although the Court is under a duty to serve the public interest, it must be mindful that public expectation is not synonymous with public interest and the courts should not give in to the expectations of society and impose sentences which society deems just. The courts must safeguard their independence and have to consider sentences in accordance with well established principles applicable to sentencing and of which public interest is but one factor to be taken into account.

[13] In the present case the Court will have regard to the community’s expression of condemnation of the accused’s act not only for having killed his wife, but also, for having taken away from society a person who had played an important role in the community as the principal of a school.

[14] When considering what sentence will be just, regard is had to the objectives of punishment namely, prevention, deterrence, reformation and retribution and the circumstances of each case will largely determine which of these deserve emphasis. Given the current levels of violence and serious crimes committed currently in this country, it seems to me that the emphasis should be on deterrence and retribution. Although standing before this Court today as a first offender, the accused has to be punished for what he has done and the sentence he today receives must serve as deterrence to him and a warning to likeminded criminals that they will be severely dealt with by the courts if they indulge in committing serious crimes.

[15] Each factor relevant to sentencing must be given its weight and balance, the one against the other. It however does not mean that each factor need to be given equal weight as situations can arise where it becomes necessary to emphasise one at the expense of the other. See: S v Van Wyk 1993 NR 426 (HC)

[16] There appears to be a general perception that where the offence of murder is committed with intent in the form of dolus eventualis, then that per se is a mitigating factor however, the phrase dolus eventualis, as such, has nothing to do with mitigation and is merely a legal expression to indicate that an accused had a certain form of intent. Mitigation lies in the fact that the accused did not have direct intent to kill. (S v de Bruin en ‘n Ander 1968 (4) SA 498 (A) at 505; S v Joseph Gariseb and Another unreported delivered on 24.10.2006)

Therefore, it is not necessarily a consequence that in all cases where the accused had no direct intent to kill but intent in the form of dolus eventualis, that this fact would constitute a mitigating factor; as all will depend on the facts of each particular case. In the present case the Court rejected the accused’s evidence and convicted him after drawing certain inferences from the proved facts i.e. that the accused had intent in the form of dolus eventualis. I do not deem it proper in these circumstances to find that therefore, it must be seen to be a mitigating factor for purposes of sentence.

[17 It is trite that the period an accused spends in custody, especially when it is lengthy, is a factor which normally leads to a reduction in sentence. I shall accordingly take into account the period of time the accused had spent in custody since his arrest on 8 September 2007 and ameliorate the sentence accordingly.

[17] Although the accused’s personal circumstances may not be overlooked which include factors such as him being a first offender; and that he is awaiting trial for the past year and seven months, I have come to the conclusion that the gravity of and the circumstances under which the murder was committed as well as the interests of society in this particular crime, overshadow his personal circumstances and that a lengthy custodial sentence is called for. I am not persuaded by the submissions of defence counsel that the circumstances of this case justify the imposition of a suspended sentence and when regard is had to the personal circumstances of the accused, especially his age, I do not believe that a partly suspended sentence as deterrence, will serve any purpose.

[18] In the result, Gerald Kashamba, you are sentenced as follows:

20 years imprisonment.

In addition the Court makes the following orders:

1. In terms of section 10 (6) of the Arms and Ammunition Act, Act 7 of 1996 the accused is declared unfit to possess a firearm for a period of 5 years, which period will only take effect after the accused had served the sentence imposed in this case.

2. In terms of section 35 (1) of the Criminal Procedure Act, Act 51 of 1977 exhibits 1 – 5 are forfeited to the State.

____________________________

LIEBENBERG, A.J.

ON BEHALF OF THE STATE Adv. R. Shileka

Instructed by: Office of the Prosecutor-General

ON BEHALF OF DEFENCE Mr. S.S. Makando

Instructed by: Directorate: Legal Aid