CASE NO.: CC40/2008
IN
THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between:
THE STATE
and
MATHEUS AMBUNDA WILBARD
CORAM:
SHIVUTE, A.J.
Heard on: 15.06.2009 –
25.06.2009
Delivered on: 27.07.2009
JUDGMENT:
SHIVUTE: A.J.
[1] The accused stands charged with two counts namely: murder, read
with the provisions of the Combating of Domestic Violence Act, Act 4
of 2003, and defeating or obstructing or attempting to defeat or
obstruct the course of justice alternatively violating a dead human
body.
The allegation in respect of the first
count is that upon or about 10 June 2007 and at or near Oshakati in
the district of Oshakati the accused did unlawfully and intentionally
kill Enatu Mwegatya Uulumbu, an adult female person.
As for the second count it is alleged
that in that upon or about 10 June 2007 and at or near Oshakati in
the district of Oshakati the accused did unlawfully and with intent
to defeat or obstruct or attempt to defeat or obstruct the course of
justice set alight a hut/structure in which Enatu Mwegatya Uulumbu or
her deceased body was, causing the body to become charred.
Whereas such act was perpetrated
whilst the accused knew or foresaw the possibility that:
His conduct may frustrate or
interfere with police investigation into the disappearance and or
death of the deceased; and or
His conduct may conceal the death
and/or may destroy the physical evidence of an assault perpetrated
on the deceased; and/or
His conduct may protect him from
being prosecuted for a crime in connection with the assault,
disappearance and/or death of the deceased.
Wherefore the accused is guilty of the
crime of defeating or obstructing or attempting to defeat or obstruct
the course of justice.
Alternative charge to count 2:
As far as this count is concerned, it
was alleged that upon or about 10 June 2007 and at or near Oshakati
in the district of Oshakati the accused did unlawfully and
intentionally physically violate the dead human body of Enatu
Mwegatya Uulumbu by setting it alight and thereby causing it to
become charred.
[2] Mr. Uirab from Legal Aid
Directorate appears on behalf of the defence and Mr. Sibeya appears
on behalf of the State.
[3] When the indictment was put to the
accused Mr. Uirab objected to the first count on the indictment in
terms of Section 85 (1) of the Criminal Procedure Act,Act 51 of 1977
on the grounds that:
The charge does not set out an
essential element on the relevant offence.
That the charge does not comply with
the provisions of the Act relating to essential of the charge.
That the charge does not contain
sufficient particulars of any matter alleged in the charge; hence
the charge is vague and embarrassing as it does not indicate the
manner in which the accused killed the deceased and that the defence
is not in a position to prepare its defence properly.
[4] Mr. Sibeya in reply urged the
court to dismiss the objection because the defence did not lodge a
notice as required by the Act; that the docket was long disclosed to
the defence, that the charge contained all the essentials as it set
out the place, the date, the year the offence was committed and the
particulars of the charge. In addition to the indictment the defence
was provided with a summary of substantial facts and the summary of
substantial facts amplifies or states how the offence was committed.
[5] The Court dismissed the objection
as it was not well founded and secondly the defence did not give
notice to the state setting out the basis of their objection as
required by the first proviso
in section 85(1) of Act 51 of 1977.
[6] The accused pleaded not guilty to
both counts and to the alternative to the second count.
In terms of section 115 Act 51 of 1977
the accused disputed having had the requisite intention to kill the
deceased in respect of the first count.
However, he made formal admissions in
terms of section 220 Act 51 of 1977 that he struck the deceased twice
with a knobkierie in the chest.
In respect of the main charge on the
second count the basis of the accused’s defence was that he
wanted to destroy his house including the hut. His intention was not
to attempt or to obstruct or defeat the course of justice.
Accused admits in terms of section 220
Act 51 of 1977 that he set the house on fire to destroy the whole
house. In respect of the alternative charge it is not denied that the
accused had an intention to violate the dead body.
[7] After the plea explanation the
State submitted the following documents by agreement:
The State’s pre trial
memorandum which was marked as exhibit ‘A’.
The accused’s reply to the
State’s pre trial memorandum which was marked as exhibit ‘B’.
Proceedings in terms of section 119
Act 51of 1977 which was marked as exhibit ‘C’ and;
Scene of Crime photo plan which was
marked as exhibit ‘E’.
In terms of the accused’s reply
to the plea trial memorandum the following were not in dispute:
Accused admits that he set the
hut/structure alight.
The identity of the deceased.
The admissibility and contents of the
postmortem examination of the deceased’s body.
That the deceased’s body did
not sustain any wound or injury during transportation from the scene
until the time of the postmortem examination was conducted;
The admissibility and contents of the
warning statements;
The admissibility and contents of the
magistrate’s Court proceedings including the proceedings in
terms of section 119 Act 51 of 1977.
That at the time of the deceased’s
death the accused was married to the deceased in accordance with the
law or custom;
That at the time of the deceased’s
death the accused and the deceased lived together in a relationship
in the nature of marriage;
That at some stage in the past the
accused was employed by the Namibian Police as a police officer;
That on 10 June 2007 the accused hit
the deceased with a knobkierie or other object;
That on 10 June 2007 the accused set
alight the hut/structure in which the deceased was and thereby
caused her body to be charred.
[8] The following were put in dispute:
The accused disputed that his
intention was to kill the deceased as it was an accident;
The accused disputed that his
intention was to defeat the course of justice as he only wanted to
destroy the house and the accused hit the deceased so that she could
leave the bedroom in order for the accused to set the whole house
alight.
[9] When the accused appeared in the
Magistrate Court, a plea was taken in terms of section 119 Act 51 of
1977 and he pleaded guilty to the charge. The Court applied section
112 (1) (b) Act 51 of 1977. The following were questions and
answers.
Q- Are you forced to plead guilty to
the charge?
A- No.
Q- Why are you pleading guilty to the
charge?
A- I am pleading guilty to the charge
because I assaulted a person which led to her death and I later burnt
her inside the hut.
Q- Whom did you assault?
A- Enatha Nekulu Uulumbu.
Q- Is he a male or female?
A- A female person.
Q- With what did you assault her?
A- I assaulted her with a walking
stick and that stick has (sic) two heads.
Q- Where on her body did you assault
her?
A- I assaulted her on her chest.
Q- How many times?
A- It was two times.
Q- What happened to her after you
assaulted?(Sic).
A- After I beat her because when I
beat her she was sitting in her bed, she just fell on the bed and I
then left outside the room and I left her inside the room. Then I
stayed outside for about 15 minutes. I came inside the room to see
how she was. I touched both her arms but I observed that she was
already dead. Because I have decided already, I decided to burn my
house (sic).
I took paraffin and sprayed it inside
the room and the grasses which is on the hut; I took a match and set
the room on fire. After seeing that the fire lighted up I went to the
cemetery near our field. The time I set fire on the hut the deceased
was still inside the room. From there I stayed there for about 15
minutes then the police came towards our house I then left walking
going to Oshakati (sic).
I came to Oshakati and went in a
certain house where I was found by the police on Sunday. Because I
arrived early in the morning, I wanted to wait until the next morning
to go and report myself to the police, but before that the police
came to arrest me. I did not know the name of the house owner but I
only know the boys who lived there. My friends are Sondag and the
lady who also came there Ndeshipanda Mwaamekange.
Q- Who is the deceased to you?
A- She is my wife.
Q- Did you assault and kill Enatha
Nekulu Uulumbu on the 9/6/07 at or near Uukwedhidhi village in the
district of Oshakati?
A- Yes.
Q- It is alleged that you
intentionally kill her?
A- It was not my intention to kill the
deceased but it was only that there were many things that happened
before. I informed her that I will leave but I must burn my house.
She said she was not going to leave her property behind. I started
pulling her after we quarreled but she refused to come out of the
room. When I was pulling her I fell to the ground and hurt myself on
the head. From there I took a stick and beat her but my intention was
not to kill her. But now people might think that I am defending
myself now. What I am saying is correct (Sic).
Q- Did the deceased do anything to
you?
A- No but she has been using bad words
towards me.
Q- Did you know that to assault a
person with a stick might cause injury or death to that person?
A- Yes I know, but I did not know as
my mind left me.
Q- Did you also know that to set fire
on the room where a person is might cause injury or death to that
person?
A- Yes but on that date I was not
aware as I was out of my mind.
Q- Why did you assault the deceased
and set fire on the room where she was?
A- It was because she said I am also
sick. That is all but there were many things which happened before.
[10]The Court then entered a plea of
not guilty in terms of section 113 Act 51 of 1977. The accused was
warned that the facts he admitted so far would still stand as proof
to such allegations.
[11] In terms of the photo plan, photo
2 is of particular importance because point B indicates the place
where the deceased was allegedly found; photo 1 point A indicates a
house at Uukwedhidhi village which was destroyed by fire;
Photo 3 indicates a close up of point
B in photo 2. Photos 4-6 display the remains of the house and damage
allegedly caused by fire.
[12] There are no eye witnesses called
by the State to testify about what exactly transpired which resulted
in the death of the deceased. However the State called several
witnesses including the two neighbours, the deceased’s mother,
police officers and the medical doctor.
[13] The first witness called by the
State was Doctor Yuri Vasin to comment on the report on a
medico–Legal post–mortem examination because Doctor
Sandra Perera who conducted the post–mortem and compiled the
report had in the meantime returned to her country of origin.
According to the post–mortem
findings in the medical report the body was completely incinerated.
The doctor made further findings as follows:
Exposed muscles were ruptured.
Exposed abdominal and tornaie
visceras.
Skull and large bones fractured by
heat.
All visceras were charred.
That the cause of death was burning.
Dr. Vasin observed during
cross–examination that since the body was completely
incinerated or charred it was not possible for the doctor who
conducted the postmortem to determine the cause of death.
[14] The second witness called by the
State was Sgt. Seth Tsuseb. He testified about a matter which is not
in dispute namely, that the body did not sustain injuries during
transportation up to the point of post-mortem examination.
[15] The third witness called by the
State was Beata Amweenye, a neighbour to the accused. She testified
that on 09 June 2007 at about 18H00 she was with her sister Albertina
Asser at the accused’s place. Whilst they were talking to the
deceased, the accused came. The accused was not happy to see them
there because earlier on there were already people who came to his
house enquiring about a stolen goat. He asked the witness and her
sister why they were standing at his house. He warned them not to
come to his house anymore or to draw water from there. After the
witness and her sister were warned by the accused they both left.
[16] In the evening around 19H00 the
accused passed at the witness’s place. The witness and her
sister Albertina were the only occupants at their house. The accused
allegedly threatened to kill them if they went inside his yard. The
witness and the accused exchanged some words thereafter the accused
left.
After some time the deceased came to
the witness’s house and the witness narrated to the deceased
what transpired between them and the accused.
After that the deceased went back
home. At midnight the witness heard a sound which sounded like
gunshots. The sound went on three times. The witness and her sister
woke up and went outside to investigate what was going on. They
observed that the accused’s house was on fire and they saw
police cars. They then decided to go to the accused’s place.
They did not find the accused there. However, it came to their
knowledge that the deceased was burned in the house. According to
this witness, the accused and the deceased were the only two people
who were staying in their house. Constable Mbamba asked the witness
whether she knew the name of the deceased and the witness identified
the deceased as Enatha Uulumbu.
[17] The next witness called by the
State was Albertina Asser a sister to Beata Amweenye. Her evidence
corroborated the evidence of Amweenye and it is not necessary for the
Court to repeat it. However, when Mr. Uirab cross–examined the
two witnesses on behalf of the accused, he disputed that the accused
threatened to kill the two witnesses if they happened to go to his
house. Instead it was suggested to the witnesses that the accused
said if they went to his house he would injure them or cause some
problems to them as they allegedly insulted him. Both witnesses
maintained that the accused threatened to kill them should they
happen to go to his house.
[18] The fifth witness called by the
State was Beata Kandjeke the mother to the deceased. She testified
that the accused and the deceased were married to each other. After
they got married they separated for a while because of the fight, the
accused used to beat the deceased. However, after sometime they
reconciled, and stayed as husband and wife.
The witness testified further that the
day preceding the death of the deceased, the deceased spent a night
at the witness’s house. The accused also visited the witness’s
house and informed the deceased about the people who allegedly came
to their house looking for a stolen goat. The discussion took place
in the witness’s presence.
After the discussion the accused left
and the deceased only went back home in the afternoon.
On 10 June 2007 the witness was
informed about the death of the deceased that she was burned in the
house. It was put to the witness through cross-examination that the
deceased was HIV positive and that she was sickly. The witness
responded that she was not aware of the deceased’s HIV status
and that the deceased was not sickly.
[19] The last witness called by the
State was Constable John Kandjimi Mbamba, the investigating officer
in this matter. It is his testimony that on 10 June 2007 at about
02H00 early in the morning he received a report of a person who was
burned in the house at Uukwedhidhi village. Upon receiving the report
he went with constable Shapaka to the scene. They found the fire had
already been extinguished. They observed a human body of a female
which was burned beyond recognition except the breasts which were
visible. The body was identified as that of Enatha Uulumbu. It was
loaded in a police van which he was driving and it was taken to
Oshakati mortuary. The body did not sustain any further injuries
during transportation.
[20] On 10 June 2007 the accused was
arrested at a certain house in Oshikango location, Oshakati West. He
was taken to the police station for interrogation. The witness
explained to the accused of his rights to legal representation and
the right to remain silent. The accused responded that he would
conduct his own defence and that he would like to give an
explanation. He explained to the witness what happened, and in
addition he gave a warning statement in which he repeated what he
told the witness, except for some differences to which I will revert
later.
[21] The accused in his warning
statement stated that the deceased had wounds between her legs. When
he went to look for the deceased at her mother’s house, the
deceased was sick and that was the reason she spent a night at her
mother’s house. He further stated that whilst they were at home
he left the bedroom to go and check if the wife had cooked since he
had not eaten for three days. He did not find any food at the kitchen
and he went back to the bedroom. He then asked the deceased why she
did not cook and whether she did not know that he did not eat for
some days or whether she wanted him to die from hunger.
[22] The deceased responded that if
he, the accused died she would not care. And that she did not care
about him. The accused asked the deceased whether she wanted him to
die from hunger? The deceased commented if she was sick did the
accused not think that he would also get sick. He then told the
deceased that he would get sick if the deceased had infected him with
the disease. The deceased then said she didn’t mind what he was
looking for when he went to her.
The accused then told the deceased
that if it was like that he was going to burn the house, to which she
responded that the accused could do what he wanted. The accused
ordered the deceased to leave the room, she refused. He took the
matches and again ordered her to leave the room. The deceased told
the accused that she was not going to leave the room if he wanted to
burn the house he could burn her as well together with her property.
At that stage the deceased was sitting on the bed. The accused held
her by the arm in order to pull her out of the room, the deceased
pushed the accused and he fell down on the door of the sleeping room
and injured himself on the back of his head.
[23] The accused questioned the
deceased again whether she was not going to leave the room, she sat
again on the bed. The accused stood up, he took his knobkerrie and
beat the deceased twice on the left side of the chest and she fell
down. I pose to observe that this part of the statement appears to be
inconsistent with what the accused first told the investigating
officer, because according to constable Mbamba, the accused told him
that he took the walking stick which had a knob and it looked “almost
like a knobkierie”. And that he beat the wife on the breasts.
Mbamba continued to inform the court of what he was allegedly told by
the accused to the effect that after the deceased fell down on the
bed, he again assaulted her on the part where he beat previously with
the same walking stick. When she was allegedly beaten on the second
occasion she was lying on the bed. The accused went outside and
stayed for about five (5) minutes. He went back to the room held her
arm and checked if she was moving. He checked her eyes, she was not
moving and he realized that she was dead. From there he decided that
he would not leave his house, since there was a bottle of paraffin
which they were using he took it and started to pour the paraffin on
the sheets which were in the room. The deceased’s body was
still on the bed. He then went outside, took the grass from one of
the huts and took matches. Thereafter he set the house alight. When
he saw that the house was on fire he went to sit in the cemetery.
[24] Whilst at the cemetery he saw the
police and people from Municipality coming to extinguish the fire, he
left the cemetery and went to Oshikango location in Oshakati where he
stayed there until he was found by the police.
It was the accused’s intention
to go and report to the police that he was the one who burnt the
sleeping room where his wife was.
[25] Constable Mbamba testified
further that after he arrested the accused, he asked him concerning
the whereabouts of the knobkierie which was used to kill the deceased
to which the accused said he left it at the place where the incident
happened. When the witness went back to the scene he observed that
every - thing was burned.
[26] The accused was the only witness
for the defence, what he stated next is similar to the warning
statement except for the variations and because of the importance of
his testimony I will present it at some lengthy albeit at the risk of
perhaps being repetitive.. He started off by testifying that he was
employed by the Namibian Police from 1995 to 2002 in the Special
Field force and prior to that he was a member of People’s
Liberation Army of Namibia (PLAN). During his career as a soldier and
a police officer he had come across dead people and he was required
to determine whether they were dead or alive. He would normally check
if the body was cold; whether the veins were working i.e. if there
was blood flow; check the eyes, and pulse on the neck as well as on
the hands. He further testified that when he was a soldier in the
PLAN he was given first aid training in medicine at Tobias Hainyeko
Training Centre in Lubango, Angola. He had encountered injured or
deceased guerilla soldiers. He had declared some of his colleagues
dead in the battle field.
[27] He went on to say that the
deceased was his wife who got married to him in 1991. At the time of
her passing they were still married to each other. On 09 June 2007
people came to his house asking about his wife and inquired about a
lost goat. His wife was not at home by then. He decided to go to
Otuwala village at his mother-in-law’s house where his wife
spent a night. Upon his arrival there he found his wife lying. She
appeared to be sick. After talking to his wife he left before his
wife, but he did not go straight home. He passed at his neighbour’s
place and around 18H00 to 19H00 he left his neighbour’s house
for his house. When he arrived at his house he found his wife in the
company of Beata and Albertina, the two state witnesses whose
evidence had already been referred to. He found them at the entrance
and asked them what they were looking for at his house since they
accused him of stealing a goat. Beata and Albertina were allegedly in
the company of a woman and a boy who were looking for the stolen
goat. Albertina, Beata and the deceased’s wife allegedly
insulted the accused, they were saying the place where the accused’s
house was, did not belong to him and that the house did not belong to
the accused. The accused chased Albertina and Beata to leave his
place. He warned them not to come to his place anymore or to draw
water from the tap which was at his place.
[28] His wife went in the house and he
also went in the house. The house consisted of zinc plate rooms and
some huts. It belonged to both of them. Whilst the accused was in the
room he changed clothes and left for his neighbour’s house in
order for him to “cool down and to visit”. On his way to
the neighbour’s house he passed at Beata and Albertina’s
house. He warned them again not to go to his house otherwise they
would cause him problems. At that stage he was not angry.
[29] He stayed at his neighbour’s
house until about 20H00 to 21H00. He then went home in their bedroom.
He did not talk to the deceased instead he went to the kitchen to
check if there was food for him. He discovered that there was no food
prepared for him. He was hungry and inquired from his wife why she
did not cook, was it because she was sick or did she want him to die
from hunger. The wife told him that she did not care because he was
also sick. He then said if he was sick he was infected by her, they
started to quarrel. The accused suggested that they should just
separate and when they separate nobody would remain in the house as
he was going to burn the house down. The deceased responded that if
he wanted to burn the house he should do what he wanted. He reminded
her that he was serious with the idea of burning the house.
[30] He told her to leave the house
because he wanted to burn the house. She said she would not leave the
room; he could burn it whilst she was still there. By that time she
was still lying on the bed. The accused tried to remove his wife by
pulling her on the arm. He pulled her behind him near the bed; there
was a pole she held the pole and it looked as if she was pushing him.
He fell down and injured himself against the door and after he fell
down the deceased went back to the bed. He took one stick; it was a
walking stick which had two heads. According to his estimation the
stick was about 1.5 m long its head was almost the size of the
accused’s fist or the size could be bigger as the head of the
microphone (i.e. 3.5 cm thick when the microphone was measured). The
deceased was by then seated on the bed. He stabbed her twice with the
walking stick. He was holding the stick with both hands. The version
that the accused stabbed the deceased twice continuously with the
stick is inconsistent with what he said in the warning statement that
he stabbed the deceased and fell down and whilst she was lying he
again stabbed her at the same place he stabbed earlier. It was the
intention of the accused to injure the deceased for her to get pain
and leave the room.
[31] After he stabbed the deceased on
the left side of the chest he went outside for some time may be 15
minutes. The 15 minutes version is not consistent with the five
minutes he mentioned in his warning statement.
When the accused came back to the room
he found the deceased lying on the bed. He checked her arms but was
just going down. He took off the sleepers which she was wearing;
touched the body again, the body was just cold. He checked the eyes,
but the eyes were not moving at all; checked the pulse but there was
no sign of blood flow. After he made all the checking he realized
that she was dead and he decided to burn the house. He took a
container of paraffin and poured the paraffin on the grass set it
alight and threw it in the room. The deceased by then was still in
the room. Thereafter he went to sit in the cemetery. Whilst in the
cemetery he could see people from the municipality and the police
going to or at his house extinguishing the fire. From the cemetery
the accused went to a certain house at Oshikango location, Oshakati
West. His intention was to stay there until he had gone to the police
station to report. However, before he could go to the police station
constable Mbamba came and arrested him. The accused wanted to report
himself on a Monday, two days after the incident leading to his
prosecution.
[32] It is a version of the accused
that when he assaulted the deceased he did not know that she would
die because the intention was not to kill her. Before the incident he
had previously assaulted people with a knobkierie but they never died
especially when he was young he used to fight with other boys.
He further testified that on the day
of the incident he had no watch and that when he said he went outside
for about five minutes or about ten to fifteen minutes he was just
estimating.
[33] He vehemently denied that he
threatened to kill Albertina and Beata prior to this incident as he
just warned them. He further stated that he had no intention to kill
that day and if his wife had complied with what he was telling her,
he could not have burned the house.
[34] It was further the testimony of
the accused that on that fateful day he had no firearm, it was not
his intention to interfere or obstruct or defeat the cause of
justice. He had no intention to interfere with the police
investigations. It was not his intention to violate the dead body.
His intention was only to burn the house. Through cross-examination
he stated that the walking stick which he used to kill the deceased
got burned as it was in the room. He knew the stick could be used as
evidence. When the accused was confronted about his medical training
in cross–examination he stated that he was not issued with any
certificate. He also disputed the fact that he never instructed his
lawyer that he said he would injure Beata and Albertina.
It was his version that when he went
to the room his wife appeared to be sick but he could not tell as to
how serious she was. The deceased was stabbed on the left side of the
chest under the breast. He was holding the stick on the knob and the
side which stabbed the deceased was not as big as the knob of the
stick but the other end that was smaller and sharp.
[35] It was submitted on behalf of the
State that the accused did not undergo any training to determine
whether a person was or to declare a person dead. The State argued
that the version of Constable Mbamba as informed by the accused that,
the accused assaulted the deceased with a knobkierie and she fell
down on the bed; that the accused again assaulted her whilst she was
in a helpless state, should be accepted as such as it was not
disputed by the defence through cross–examination. The accused
by saying that he assaulted the deceased twice continuously is an
afterthought and it should not be accepted. Therefore, so it was
argued, the accused should be convicted of murder.
[36] Counsel for the defence submitted
that although there were some minor contradictions in the accused’s
evidence these did not amount to inconsistences and were not
material. He further submitted that even if it is accepted that the
accused threatened to kill Beata and Albertina in the evening, this
does not mean that the accused had an intention to kill the deceased.
However, the defence maintained that the accused never threatened to
kill the two witnesses.
Mr. Uirab argued further that the only
evidence regarding what transpired at the time of the deceased’s
death is the version of the accused and such version was also relied
upon by the State when preferring charges against the accused.
Therefore so counsel submitted, the accused’s story should be
accepted to represent the factual aspects of the case. The State did
not prove the intention to kill and the accused should be convicted
of a lesser offence of culpable homicide, so he further argued.
[37] As far as the second count is
concerned it was argued on behalf of the accused that the accused’s
conduct was not consistence with a person who wanted to defeat or
obstruct the cause of justice, or and an attempt thereof. The State
had failed to prove the second main charge and had only proved the
alternative, so it was submitted.
[38] As far as the murder charge is
concerned the State case rests solely on circumstantial evidence as
none of the witnesses witnessed the killing of the deceased. However,
there are a few issues to be considered; whether the deceased died
before the house was burned or whether she died when the house was
burning and whether the accused had the requisite intention to kill
the deceased or whether he was negligent in killing the deceased.
[39] From the testimonies of the
witnesses called by the State, there is no evidence indicating at
what stage the deceased met her death apart from the medical evidence
adduced by the State. Although the cause of death was indicated on
the post-mortem as “burning incinerating body”; the chief
post mortem findings indicates that the body was completely
incinerated. This evidence was corroborated by the testimony of
constable Mbamba who transported the remains of the deceased that the
body was completely charred. There is no indication on the
post-mortem report or from any other source of how the course of
death was determined. If the body was burned beyond recognition, as
if to compound the problem Dr. Vasin as already noted, testified that
since the body was charred there is a possibility that the cause of
death could not be determined. I am unable to make a finding what the
cause of the deceased’s death is.
The accused testified that he
assaulted the deceased with a knobkierie or walking stick and that
the deceased died before he burned the house. Since there is no
evidence contradicting the version of the accused that the deceased
died before the house was set on fire, it can be accepted as a fact
that the deceased died before the house was burned.
[40] The accused testified that he
beat or stabbed his wife with a walking stick twice, she fell down.
This evidence conforms to what the accused stated in his warning
statement. However, constable Mbamba stated that apart from the
accused stating in his warning statement, accused had told him that
he first assaulted the deceased with a stick once and she fell down.
He allegedly assaulted her again while lying down and she died. This
version is denied by the accused, the alleged source of the version
told by constable Mbamba. The accused’s version appears to be
more probable than that of constable Mbamba since it is in consistent
with what the accused told the magistrate during the proceedings in
terms of section 119 Act 51 of 1977 and what he said in his warning
statement. Although the fact that he has been consistent does not
mean that he is telling the truth, he is the only person who
witnessed what happened.
[41] There is evidence from Beata and
Albertina that prior to this incident the accused had threatened to
kill Albertina and Beata should they come to his house again. This
version was disputed by the defence. Beata and Albertina gave their
evidence in a straight forward manner, their testimonies corroborated
each other. This Court regards them to be truthful witnesses, the
court has no reason to doubt their credibility and that what they
testified is what actual transpired. Therefore their version is
accepted.
Now could it be said that since the
accused had threatened to kill Beata and Albertina, he intentionally
killed the deceased?
[42] It will be recalled that the
accused pleaded guilty in terms of section 119 Act 51 of 1977. He was
asked, in terms of section 112 (1) (b) Act 51 of 1977 as to whether
it was his intentions to kill the deceased. He stated that he had no
intention to kill the deceased. He was further asked whether he knew
that to assault a person with a stick might cause injuries or death
to that person to which he responded in the affirmative, and that his
mind “had left him”. By answering in the affirmative does
this prove his intention to kill?
[43] 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.
[44] The accused’s evidence is
not without any discrepancies with regard to what transpired when he
killed the deceased, whether he first assaulted her once and she fell
down or whether he assaulted her twice continuously, fell and died.
Apart from this contradiction there are other discrepancies in the
accused’s version. However all these did not relate how the
deceased was killed and are not material to establish the intention
of the accused.
The Court needs to assess whether the
State has proved its case beyond reasonable doubt when measured
against an accused’s conflicting evidence. The Court should
measure the totality of evidence in its approach and not in
isolation. In S v M 2006 (1) SACR 135 (SCA) at 183 n – 1) it
was stated:
“….but
by assessing properly whether in the light of the inherent
strengths, probabilities and improbabilities on both sides, the
balance weighs so heavily in favour of the State that any reasonable
doubt about the accused’s guilty is excluded”.
[45] To prove the intention of the
accused to kill, the Court needs reliable evidence on the subjective
state of mind of the accused, in order to determine what was going on
in the mind of the accused when he assaulted the deceased. To come to
such conclusion the Court has to consider objective factors such as
the type of weapon or instrument used, at which part of the body of
the victim was the assault directed to and the nature of the actual
injury sustained by the victim. S
v Beukes 1988 (1) SA 511
(A). The Court will then draw inferences from these indicators.
The fact that the onus of proof lies
with the prosecution throughout to prove the guilt of the accused
beyond reasonable doubt that the accused had acted with intent, it is
not required from 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 (1)
at 190B.
[46] When applying the above stated
principles to the facts of the present case, regard had to be given
to the walking stick used. The deceased was stabbed twice with the
walking stick. Unfortunately the Court did not have the benefit to
look at the object used as it was left to be destroyed by fire
according to the accused’s version. The size of the stick is
not something that the court could objectively observe. The
measurements were gleaned from the accused’s estimation of the
size of the knobkierie. The accused described the knob of the walking
stick to be more or less the size of his fist or bigger as the head
of the microphone which is about 3–5 cm. The stick itself was
about 6cm wide. It is the accused’s version that the deceased
sustained a lump or the place where she was stabbed became dark.
[47] One should have regard to the
version of the accused that the deceased was sick or sickly with some
wounds at her private parts. Although this version was denied by the
accused’s mother, the accused was in a better position to
observe the deceased. Perhaps one should also pose a question whether
death would normally result if a person is assaulted twice with a
walking stick of the size described by the accused? My view is that
there is no evidence to support the findings answering the question
in the affirmative.
[48] As far as the second count is
concerned, it is clear that after the accused killed the deceased, he
set the house on fire whereby the body of the deceased was burned
beyond recognition and the object used to assault the deceased was
destroyed. Because the body was completely charred it was not
possible to determine the cause of death, according to Dr. Vasin as
already observed. It was also not possible to see the object used to
kill the deceased as it was completely burned and the police were not
able to conduct a proper investigation. The accused is not just an
ordinary person; he was a police officer who knows that an object
used in the commission of the offence ought to be preserved to
facilitate the investigation. He knew very well that if the
deceased’s body and the object used to kill the deceased are
destroyed completely then the police will not be in a position to
conduct proper investigations and that is what exactly happened. It
is also an undisputed fact that the deceased’s body was
violated. But seeing that the main count had been proved the
alternative falls away.
[49] When considering the totality of
the evidence, it is clear that to determine what transpired when the
deceased died, one has to rely on the evidence of the accused as
there is no scientific or other evidence contradicting that of the
accused. My conclusion on this aspect of the case is that although
the accused’s evidence is not perfect, it could reasonably be
possibly true. When applying the aforementioned approach to the facts
before me a walking stick if used to assault a person the way it is
alleged to have happened, in normal circumstance would not result in
death, so as to draw an inference that when the accused hit the
deceased twice with a stick had intended to kill her. Therefore, the
State had failed to prove beyond reasonable doubt that the accused
acted with intent in form of dolus
directus or dolus
eventualis and that he is
guilty of the offence of murder. However, the State had in my view
established that he had acted negligently, which finding lies in the
fact that despite his knowledge that the deceased was sickly he
proceeded to assault her with a walking stick not only once but twice
on a sensitive area of the body. A reasonable person with knowledge
of the possibility in these circumstances would have foreseen the
possibility that by stabbing the deceased with a walking stick in the
chest the deceased might die, and would have guarded against the
possibility. The accused’s negligence resulted in the unlawful,
causing of death of another human being.
[50] In the result, the Court arrives
at the following verdicts.
Count 1: Not guilty of murder.
Guilty-culpable homicide.
Count 2: Guilty –main count,
Defeating or obstructing the course of justice.
_________________________________(Signed)
SHIVUTE, A.J.
ON BEHALF OF THE
STATE Adv.
O. Sibeya
Instructed
by: Office
of the Prosecutor-General
ON BEHALF OF
DEFENCE Mr.
B. Uirab
Instructed by:
Directorate:
Legal Aid
S v Wilbard (Judgment) [2009] NAHC 77 (27 July 2009);