CASE NO.: SA 1/2000
IN THE SUPREME COURT OF NAMIBIA
In the matter between
DAVID SILUNGA APPELLANT
THE STATE RESPONDENT
CORAM: Strydom, C.J., O'Linn A.J.A. et ,
HEARD ON: 2000/10/11
DELIVERED ON: 2000/12/08
The appellant was convicted in the Court a quo on several
Contravention of section 1 of Act 75 of 1969 as amended -possession
of a firearm without a license.
Contravention of section 36 of Act 75 of 1969 - possession of
ammunition - to wit - two (2) shotgun cartridges.
He was sentenced as follows:
Sixteen (16) years imprisonment.
Eighteen (18) months.
Six (6) months.
Counts 2 and 3 were ordered to run concurrently with the sentence on
The appellant was represented at his trial by Mr. Christiaans.
The appellant applied for leave to appeal and condonation for the
late filing of his application for leave to appeal. The application
was refused by the trial judge, Gibson, J.
Subsequent to the dismissal of the application for leave to appeal by
the Court a quo, this Court granted leave to appeal against
both the convictions and sentences.
Mr. Christiaans appeared before us for the appellant at the request
of the Court. Ms. Schultz, appeared for the State.
THE QUESTION WHETHER THIS COURT HAD THE NECESSARY
JURISDICTION TO GRANT LEAVE TO APPEAL AGAINST CONVICTION AND
TO CONSIDER AND DECIDE ON SUCH AN APPEAL
After counsel had argued the appeal against both conviction and
sentence and whilst considering this judgment, I realized that the
order of this Court in so far as it granted leave to appeal not only
against sentence but also against conviction, may be a nullity in the
light of several authoritative decisions.
The essence of these decisions is that when an accused asks the trial
judge for leave to appeal against sentence as in this case and that
is refused, this Court has no jurisdiction to grant leave to appeal
also against conviction. If such leave is granted, the order
granting it is to that extent a nullity and consequently any order
made by this Court on appeal in pursuance of the order granting leave
to appeal against conviction, is also a nullity.
At the outset it is necessary to explain why this Court granted leave
to appeal also against conviction, however erroneous that decision
may have been.
When the accused applied to the Court a quo for leave to
appeal, the appellant was no longer assisted by a legal practitioner.
In his application, he repeatedly complained that the conviction was
wrong in that he did not have the necessary intention to kill and
that in the result, he should only have been convicted of culpable
homicide. He nevertheless asserted that he only wanted to appeal
against sentence. The Court a quo consequently treated the
application as an application for leave to appeal only against
sentence and then rejected the application for leave to appeal
The appellant then petitioned this Court for leave to appeal. The
judges who considered the petition, so I am informed, held the prima
facie view that the appellant in substance complained against
both conviction and sentence and that his application for leave to
appeal should have been dealt with by the Court a quo as an
application for leave to appeal against both conviction and sentence.
Furthermore, the prima facie view was that there were several
defects in the judgement of the Court a quo regarding
conviction which justified the granting of leave to appeal also
The point that the appeal against conviction was not properly before
this Court was not raised by any of the parties or their counsel.
This Court also failed to raise the point mero motu.
This Court consequently heard full argument on the merits of the
conviction as well as the sentence.
Notwithstanding the fact that the granting of leave to appeal against
conviction is a nullity, it would in my view, not be an exercise in
futility to consider the merits of the conviction, because the merits
can be decisive for this Court in deciding on the course to be
followed which would best serve the interest of justice.
So e.g. if there was merit in an appeal against conviction, this
Court may have considered postponing the final decision on the appeal
as it stands to give the appellant the opportunity to apply to the
Court a quo also for leave to appeal against conviction. If
leave is then granted by the Court a quo, the appeal to this
Court on both conviction and sentence can then be placed on the roll
for further hearing by this Court. If leave is not granted by the
Court a quo against conviction, then the appellant, if so
advised, can petition this Court for leave to appeal against
conviction. Such a course would obviously cause a long delay before
finality can be reached on the issue of the correctness of the
judgment of the Court a quo relating to conviction and
In the circumstances I embarked on a consideration of the merits of
the conviction as well as sentence in order to decide what course
should be followed. If this Court concludes that there is no merit
in an appeal against conviction, it would be a waste of time to
follow the course set out above.
MERITS OF THE CONVICTION
Mr. Christiaans contended that the appellant should only have been
convicted of culpable homicide on the murder charge but did not
contest the convictions on the two other charges. According to him,
the Court a quo should in the result only have imposed a
sentence of imprisonment, wholly suspended. Ms. Schultz on the other
hand supported the convictions and sentences on all the charges.
There was no dispute in the Court a quo in regard to the fact
that the accused had killed the deceased by shooting him with a
shotgun and that the accused was in the unlawful possession of a
shotgun and two shotgun cartridges.
The only dispute in the Court a quo in regard to the murder
charge was whether or not the State had proved beyond reasonable
doubt that the accused had the necessary intention to kill and if so,
did not act in self-defence, alternatively, exceeded the bounds of
self-defence well knowing that he was exceeding the reasonable bounds
of self-defence, alternatively at least foresaw the reasonable
possibility that he was exceeding the bounds of self-defence and
nevertheless proceeded, regardless of whether or not he was exceeding
the bounds of self-defence.
Gibson, J., the presiding judge at appellant's trial in the High
Court, motivated the convictions as follows:
"I do not accept therefor the accused's account of this
particular story. Neither do I accept the accused's account of a
quarrel before the shooting on the day of this particular incident.
The accused version is totally inconsistent with the evidence of
Abner Ingungula, who's evidence was reliable and believable. In my
view although suggestions were made that Abner might have missed the
conversation there really is no substance in it. As Abner indicated
the conversations took place a mere four metres away from him and
there was no particular noise to compete against any such quarrel he
couldn't have missed that quarrel.
However, the accused described an altercation earlier that day with
the deceased when he was on his way to look for the cattle. Well I
have great doubts about that story. I cannot rule it out altogether
because of the way in which, and the circumstances in which the
shooting is said to have occurred on the description of Abner
Ingungula. The attitude of the accused at the approach of the
deceased upon the deceased's arrival would appear to suggest a
resumption of an earlier unfinished business. According to Abner
Ingungula the accused called out to Absalom Sylvanus not to come near
him or else he will shoot. The fact that the accused was
apprehensive about the approach of the deceased towards him does tend
to suggest some animosity between the parties.
Why would the accused if, as Abner stated, these words were uttered
so calmly, why would the accused have been so anxious to stop the
deceased's approach unless there was something threatening before
him. Abner's description of the deased's approach was that in his
mind he merely thought the deceased was approaching to greet the
accused. So in itself there was nothing in the approach which could
give the impression of aggression on the part of the deceased.
However, it seems that such was the state of mind of the accused that
he immediately reacted to prevent that approach. It would seem
therefor from these facts that the accused may have believed in his
own mind that the deceased was approaching him in an aggressive mood
and therefor acted quite unreasonably to protect himself. However,
in electing to use a shotgun in the circumstances presented before
him the accused undoubtedly exceeded the bounds of reasonable
self-defence. The deceased was not armed with any weapon as he
approached the accused. So in firing the shotgun at the deceased the
accused not only exceeded the bounds of reasonable self-defence but
he did so grossly and immoderately. And given those circumstances
the accused foresaw in my view the possibility that the shot will
result in the death of the deceased, but, the accused, being reckless
to that consequence, fired nevertheless.
The accused is therefore found guilty of murder with constructive
intent, in count one. He is also found guilty of possession of a
fire-arm without a license in count two and unlawful possession of
ammunition in count three."
Mr. Christiaans relied heavily on a passage from the judgment for
submitting that the findings of the Court a quo supported a
conviction of culpable homicide, rather than murder. The passage
relied on by him for the conviction reads as follows:
"It would seem therefore from the facts that the accused may
have believed in his own mind that the deceased was approaching him
in an aggressive mood and therefore acted quite unreasonably to
According to Mr. Christiaans the aforesaid passage shows that the
learned judge "ruled that the accused believed that he was
acting in self-defence, but that the belief was unreasonable".
There is substance in this contention.
The learned trial judge unfortunately did not deal at all with the
correct legal approach when "self-defence" becomes an issue
in a trial of an accused on a charge of murder. She correctly dealt
with the issue of the accused's intention to kill and correctly held
that the accused had the intention to kill, at least in the form of
dolus eventualis. She apparently also held that the accused
may have acted in "self-defence", but that he had in any
event "not only exceeded the bounds of self-defence but did so
grossly and immoderately".
The Court thus correctly concluded the first leg of the enquiry -
where an objective test had to be applied.
However, before a conviction for murder could ensue, the Court had to
embark on the second leg of the enquiry where the test is subjective
in that it deals with the mens rea of the accused in relation
to the killing - more particularly the question of whether or not the
state had proved beyond reasonable doubt that the accused knew that
his action exceeded the reasonable bounds of self-defence,
alternatively foresaw the reasonable possibility that his action
exceeded the reasonable bounds of self-defence and nevertheless
proceeded, regardless of whether or not his action exceeded the
bounds of self-defence.
Where the State succeeds in proving this element, the verdict of
murder is justified. Where it fails to do so, but nevertheless
succeeds in proving that the accused acted recklessly or negligently
in not knowing that his action exceeded the bounds of reasonable
self-defence or in not foreseeing the reasonable possibility of his
action exceeding the reasonable bounds of self-defence, a verdict of
culpable homicide is justified.
A careful reading of the judgment leads to the conclusion that the
Court a quo never embarked on the aforesaid second leg of the
enquiry. As it stands, a verdict of culpable homicide was justified,
but not one of murder. The court thus misdirected itself in its
approach and reasoning. That however, does not mean that the appeal
would have succeeded and a conviction for culpable homicide
substituted for that of murder, if the appeal against conviction was
properly before this Court. In that event, this Court would have
been entitled to reconsider the evidence on record, including
findings of credibility of the judge a quo, to come to its own
conclusion regarding the correct verdict.
The question also arises as to whether or not the Court did not
misdirect itself when it failed to consider and to decide mero
motu to call Martha Mupetannie as a witness.
This person was originally brought to Court as a state witness
because she was on the scene when the fatal shooting took place and
apparently saw and heard what transpired immediately before the
shooting. It transpired at the hearing that she was probably in a
better position than the main state witness Abner Ingungula to have
seen and heard what happened. This appears from the following part
of the cross-examination of Abner by Mr. Christiaans:
"Q" Now on that particular day there at the cuca shop, can
you recall, was there a certain Martha Mupetannie also present?
A: Yes, my lady. She was there, this is a girl of age under 20.
Q: Was she also there?
A: Yes, she was outside there.
Q: Now, if she comes and tell the Court that there was in fact a
conversation, will she be lying?
A: My lady, that I would not know. If she would come and testify to
that effect, that is true. That is her version, because she was near
the accused David. That I will not dispute.
Q: Was he closer to them that you were?
Q: Now, after the shot was fired and you looked around and you saw
the deceased moving a few paces, you probably would not know when the
shot was fired, how the rifle was pointed and what happened when the
shot was fired, how the rifle was pointed and what happened there
between the two of them?
A: Correct my lady. I did not witness the actual shooting."
Notwithstanding the fact that Martha was in a better position than
Abner to see and hear what happened at the crucial stage, state
counsel, Ms. Duvenhage, closed the prosecution case without calling
Martha and offered her as a witness to the defence.
After the accused had testified, Mr. Christiaans indicated that he
intended to call Martha and said: "I think it is important that
she be called. She was also present and therefore I wish to call
Mr. Christiaans then informed the Court that Martha had been sitting
in Court for a short while when Mr. Andreas Shivute was testifying on
issues relating to whether or not he had given permission to the
accused to take the shotgun and had nothing to do with the events at
the cuca shop where the shooting took place. Counsel for the State
then indicated that she was unable to say when Martha was in Court.
Thereupon the presiding Judge said: "But this is very improper,
wasn't it? To let a witness remain during the proceedings and the
evidence before she gave evidence.". After considerable further
exchanges between the presiding Judge and Mr. Christiaans, the
presiding Judge said: "But anyway, call her and we will see
what we have got perhaps for new evidence.". Mr. Christiaans
retorted: "Then in that case, I will not call her.".
Mr. Christiaans persisted in his attitude notwithstanding that the
presiding Judge assured him that he could call the witness but that
her having been in Court at some stage may affect the weight of her
evidence. Mr. Christiaans then closed his case without calling
Martha. She was the only eyewitness who saw the actual shooting and
who probably heard what was said between the accused and the deceased
at that crucial stage.
This was a typical case where the presiding Judge, as administrator
of justice, should have considered calling the witness mero motu
to testify in accordance with section 167 read with section 186 of
the Criminal Procedure Act No. 51 of 1977
The need to follow the guidelines in S v van den Berg was
again emphasized in the recent decision of this Court in State v
In Katamba's case the Court also emphasized the Court's
constitutional duty also "to protect the fundamental rights of
victims" and in this regard "also to consider and give some
weight to the contemporary norms, views and opinions of Namibian
Any failure by a Court to follow the aforesaid approach, may deprive
the trial Court of the benefit of having heard all the available
relevant evidence and of considering such evidence and in addition,
deprives this Court on appeal of a complete record of the available
relevant evidence. Such failure by the trial Court may amount to a
misdirection or even an irregularity in the proceedings, causing
prejudice to either the State or the accused or the victim and as a
consequence a miscarriage of justice - necessitating a setting aside
of the verdict, with or without an order referring the matter back to
the Court a quo for the application of a proper procedure
and/or for reconsidering the verdict. In most instances of the
aforesaid failure, unnecessary and inexcusable delays will be caused
in reaching finality, which in itself undermines the administration
The decisions referred to adequately sets out the correct position,
but because of its importance, it is justified to repeat the
Sections 167 and 186 of the Criminal Procedure Act 51 of 1977
provide as follows:
S.167: "The Court may at any stage of criminal
proceedings examine any person, other than an accused, who has been
subpoenaed to attend such proceedings or who is in attendance at such
proceedings, and may recall and re-examine any person, including an
accused, already examined in such proceedings, and the Court shall
examine, or recall and re-examine, the person concerned if his
evidence appears to the Court essential to the just decision in
(My emphasis added.)
It is clear from the above that the first part of the section allows
a discretion, which must be judicially exercised but the
second part makes it mandatory to examine, or recall and re-examine
the person concerned, once the said evidence appears to the Court, in
the exercise of a judicial discretion, to be essential to
the just decision in the case.
S. 186: "The Court may at any stage of criminal
proceedings subpoena or cause to be subpoenaed any person as a
witness at such proceedings, and the Court shall so subpoena a
witness or so cause a witness to be subpoenaed if the evidence of
such witness appears to the Court essential to the just decision of a
(My emphasis added.)
This section as in the case of section 167, provides in the first
part for a discretionary power, but in the second part for a power
that is mandatory, once the evidence appears to the Court to be
"essential to the just decision in the case".
As pointed out in the v.d. Berg-decision, the above provisions
of the 1977 Act "are the equivalent of similar sections in the
Criminal Procedure Acts preceding Act 51 of 1977. The main
difference is that in Act 51 of 1977 the recalling and examining of
an accused person, once such person has testified for the defence is
spelled out, whereas in some earlier acts that had to be implied".
The role of the Courts in Namibia and South Africa in regard to
Criminal Procedure, is partly adversarial and partly inquisitorial
compared e.g. to the United Kingdom, where until now, the role has
been adversarial and the rest of the continent of Europe, where the
role is inquisitorial.
The aforesaid role was already succinctly stated in 1928 by the
Appellate Division of the South African Supreme Court where the
learned judge Curlewis, J.A., defined the position as follows:
"A criminal trial is not a game where one side is entitled to
claim the benefit of any omission or mistake made by the other and
the Judge's position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed by both sides.
A judge is an administrator of Justice, he is not merely a figure
head, he has not only to direct and control the proceedings according
to recognized rules of procedure, but to see that justice is done."
The manner in which Wessels, C.J., applied this approach in 1935 in
the decision of the Appellate Division of the South African Supreme
Court in R v Omar is instructive. He said:
"It is not necessary to hear Mr. Beardmore. In this matter the
attorney-general suggested to the presiding Judge in the court below
to call a witness after the case for the defence had closed. He
stated that the man he wished to have called had only been found in
the early hours of the morning and that he had not had the
opportunity of calling him at the proper time. The Judge exercised
his discretion under section 247 and called the witness, whose
evidence went to the merits of the case. It has been contended that
section 247 should be confined to those cases where there has been an
omission of a technical nature, not where the evidence goes to the
merits of the case. As I read the section it has exactly the
opposite meaning - namely to see that substantial justice is done, to
see that an innocent person is not punished and that a guilty man
does not escape punishment. That is why the section is in the widest
possible terms. If at any stage of the case the Judge thinks a
witness ought to be called he may use his discretion to call a
witness to give evidence, but when it appears that evidence is
essential to the proper decision of the case, then the Judge has no
discretion - he must call the witness. In these circumstances the
question must be answered in favour of the Crown."
It often happens that the prosecutor declines to call a witness
because that witness may contradict the whole or part of the state
case and the prosecutor do not wish to be in a position where he/she
cannot controvert the unfavourable part because the prosecution may
not cross-examine its own witness. Similarly, the defence may decide
not to call a witness as its witness, essentially for the same
reasons. These reasons are not necessarily based on the known or
suspected untruthfulness of the witness. The result may be that a
witness is not called who may have been able to tell the truth and
thus contribute to the Court's function to establish the truth.
In cases where both the prosecution and defence decline to call an
available witness, it may assist the Court in making a decision
whether or not to call the witness, if the Court is informed in
general terms what the nature of such evidence is going to be or if
the witness's statement is handed up for the Court's assistance by
Where however, there is sufficient evidence on record indicating that
the witness can assist the Court in its abovementioned function,
there can be no difficulty for the Court in exercising its discretion
in terms of section 186, to come to a decision.
In the instant case however, it cannot be said that the circumstances
were such that the Court was compelled to call the witness Martha
The appellant gave the following explanation in his testimony:
"My lady, when the deceased came to that cuca shop, he greeted
everybody there, including myself. … the deceased my lady was
leaning on a pole whereby he greeted me. I then said to him you
should not greet me. What you did to me in the morning, is enough. …
Then afterwards he answered me that what can I do to him? I then
also told him, there is nothing I can do to you, but you should not
come near to me. And while I was telling him not to get nearer to
me, he was get closer to me, very near closer to me. Then he was
pointing at me maybe with the intention of grabbing me. I then told
him that you should not come near to me, otherwise he would bring
problems to me. … Then the deceased said to me, what can you do to
me with your rifle? You with your rifle. … and while the deceased
was pointing at me, my lady, I then fired a shot that went to struck
him on his arm. But then I did not know where else on his body that
I struck him..."
Abner testified that he had heard the appellant say to the deceased
just before the shooting: "Come out, I will shoot you today".
This statement was not denied by the appellant under
cross-examination. The said words do not necessarily contradict
appellant's testimony about what was said immediately before the
shooting, but rather supplements it. I will accept consequently that
when appellant warned the deceased not to come nearer - he used words
to that effect - "come out - I will shoot you today".
It was common cause that the appellant shot the deceased with a
shotgun, a lethal weapon at a distance of 2 - 4 meters and/or paces
and that the appellant knew at all times that the shotgun was a
lethal weapon. It was also conceded that the deceased did not have
any weapon in his hand when he approached the appellant.
The defence of self-defence was only tentatively raised during the
appellant’s testimony as appears in the abovequoted passages from
the appellant’s testimony. The maximum threat appears to be
contained in the words: “Then he was pointing at me - maybe with
the intention of grabbing me.”.
At the section 119 proceedings - the appellant pleaded guilty to the
charge of murder and did not say or suggest that there was any form
of attack on him and that he was acting in self-defence or believed
that he was doing so. On the specific question - “Why did you
shoot the deceased?” the appellant answered: “I shot the
deceased because he was always accusing that my mother does always
have an affair with his father and also that all children of my
mother does not belong to my father.” The accused’s plea
explanation at his trial was not given by him but orally by his legal
representative Mr. Christiaans. There was no written explanation of
plea, by the accused himself as was the practice in the Namibian High
Court for many years. It is not proper for a plea explanation to be
given by the legal representative unless confirmed by the accused.
Presiding judicial officers should ensure that the above-stated
practice is adhered to.
The version of Mr. Christiaans, as given orally, did not amount to a
plea of self-defence. Mr. Christiaans said: “...the accused will
admit that he did in fact shot (shoot) the deceased and that that
shot killed the deceased. However, it was not his intention to kill
the deceased, but only to hurt him and to scare him away because the
deceased came towards him. And also because of threats earlier and
on that particular occasion he was under the impression that the
deceased was about to attack him.”
Whether Mr. Christiaans meant that the accused was under the
impression at the time of the shooting that the deceased was about to
attack him or whether he was under the impression on a previous
occasion is not clear. But unfortunately the presiding judge failed
to obtain any clarification from Mr. Christiaans or from the accused.
Furthermore she failed to obtain any confirmation from the accused
in regard to the plea explanation offered by Mr. Christiaans as was
the correct practice in the High Court.
In her judgment, the presiding judge did not mention the section
119-plea explanation. She apparently gave no consideration to the
important piece of evidential material which amounted to an important
This plea explanation was inconsistent with any defence of
self-defence. It was a strong indication that the appellant not only
did not act in self-defence, but knew full well that he was not
acting in self-defence. The accused at the time was not represented
by a legal representative, but any person -even without any schooling
- would have told the Court when pertinently asked why he had shot
the deceased, that he shot the deceased because he was attacked by
the deceased if that was the case. Furthermore, this appellant had
reached grade X at school and his failure to state that he was
attacked, cannot be excused on the ground of lack of schooling or
intelligence. To mention that he shot the deceased because he was
attacked would have been a natural and obvious response for any
person in his position.
His explanation amounts to a plea that he and his parents were
grossly insulted by the deceased on previous occasions and he wanted
to injure the deceased because of the aforesaid provocation. His
only real defence was consequently that he intended to injure and not
to kill and that he acted under provocation.
The Court misdirected itself by failing to give any consideration to
the section 119 proceedings. This misdirection is similar to the one
referred to in the recent decision of this Court in S v K.
In this case the misdirection favoured the appellant but there was
no prejudice to the state or to the interests of the victim as the
appellant was at any event convicted of murder.
In my view, the accused was correctly convicted of the crime of
murder. In the light of
the evidence and admissible evidential material, the accused intended
to kill at least, on the basis of dolus eventualis. He did
not act in self-defence and he knew it. Alternatively,
he grossly exceeded the bounds of self-defence and knew it. In the
further alternative, he foresaw the reasonable possibility
that he was exceeding the bounds of self-defence and proceeded
nevertheless - regardless of whether or not he was exceeding the
bounds of self-defence.
There is consequently no prospects of success for an appeal against
conviction if properly noted and prosecuted and it would therefore be
futile to follow the course suggested in Section B, supra.
D. THE SENTENCE
The approach of a Court of Appeal in regard to appeals against
sentence was again reiterated in the recent decision of this Court in
Andries Gaseb & 2 Others v The State. The Court stated:
“It is trite law that a Court of Appeal can only interfere with the
discretion of the trial Court regarding sentence on very limited
grounds, viz: When the trial Court has not exercised its
discretion judiciously or properly. This occurs when the trial Court
has misdirected itself on facts material to sentencing or on legal
principles relevant to sentencing This will also be inferred where
the trial Court acted unreasonably and it can be said that the
sentence induces a sense of shock or there exists a striking
disparity between the sentence passed and the sentence this Court
would have passed or if the sentence appealed against appear to this
Court to be so startlingly or disturbingly inappropriate as to
warrant interference by this Court."
If this Court had substituted a conviction for culpable homicide for
that of murder, this Court could have and would have interfered with
the sentence. But not only must the conviction for murder stand, but
there are no reasonable prospects of such an appeal
succeeding if properly noted and prosecuted.
The Court a quo did not misdirect itself on any matter
relating to sentence. The sentence of 16 years imprisonment for
murder does not appear to be unreasonable in the circumstances and
certainly not such that it induces a sense of shock, or can be said
to be startlingly or disturbingly inappropriate.
The same applies to the sentences imposed on the further two charges.
In the result:
1. The order of this Court granting leave to appeal against
conviction is declared a nullity.
2. The appeal against sentence is dismissed.
COUNSEL ON BEHALF OF THE APPELLANT: Adv. W.T. Christiaans
COUNSEL ON BEHALF OF THE RESPONDENT: Adv. S. Schultz