REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-CRI-APP-CAL-2024/00031
In the matter between:
ALFRED GAWANAB APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Gawanab v S (HC-MD-CRI-APP-CAL-2024/00031) [2025] NAHCMD 13 (24 January 2025)
Coram: Claasen J et Christiaan J
Heard: 4 November 2024
Delivered: 24 January 2025
Flynote: Appeal – Criminal law – Grounds of appeal to be formulated clearly and specifically – Obstructing course of justice – Concealing a dead body –
Court a quo committed no error in concluding that the said offence was proven – Appeal dismissed.
Summary: The appellant was convicted for obstructing the course of justice. The appellant and the deceased went to the veld to hunt. Late that night the appellant returned to the farmhouse without the deceased and said that the deceased was coming home with cattle.
Held that the appellant is the last person who had seen the deceased alive and he testified that the deceased died in his presence. In view of that, at best, the appellant must have foreseen the possibility of judicial proceedings that will ensue in connection with the death of the deceased and that his actions will impede on the proper collection of evidence and derail the course of justice.
Held further that the offence qualifies as serious in nature and there are no rules that a first offender, of a senior age, cannot be given a custodial sentence in a suitable case.
Held further that interference in sentencing is only justified where a trial court exercised its discretion to sentence improperly, which cannot be said about the sentence imposed herein.
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ORDER
The respondents point in limine is dismissed.
The appeal is dismissed.
The matter is regarded as finalised and it is removed from the roll.
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JUDGMENT
_______________________________________________________________
CLAASEN, J (CHRISTIAAN, J concurring)
Background
[1] The appellant was charged for murder and obstructing or defeating the course of justice in the Regional Court in the district of Keetmanshoop. After a trial he was acquitted of the first charge and convicted on the second charge. On 20 July 2023 he was sentenced to 5 years’ imprisonment of which 2 years were suspended for 5 years on the condition that the accused is not convicted of obstructing the course of justice committed during the period of suspension.
[2] The appellant is aggrieved by that outcome. He filed a Notice of Appeal against both the conviction and the sentence on 21 July 2023. During the appeal hearing, the appellant was represented by Mr Simataa, whereas Ms Iipinge represented the state.
Point in limine
[3] Counsel for the respondent raised a point in limine, contending that the appeal was filed late. The Notice of Appeal was filed a day after the matter was finalised which makes this an unfounded point and Counsel for the respondent has conceded that.
[4] Grounds of appeal
Several of the grounds of appeal overlap with one another, ostensibly phrased as alternative grounds, others are vague and others amount to conclusions by the drafter. The grounds of appeal were formulated with the notion that more is better and that grounds should be kept ‘open ended’ by prefacing it with a general contention that it is an ‘error in law and or the facts’. Suffice it to say, the strategy of a one ‘size-fits-all’ formula detracts from the ground being specific, where the issue at hand is not intertwined. It is prudent to remind legal practitioners what was said by our Supreme Court in Hindjou v The Government of the Republic of Namibia1 that:
‘To ramble through the whole judgment in the hope of finding something wrong or an error which leads to success of the appeal, is not in the interest of justice. It tends to waste the time of the parties and the court.’
[5] The drafting of the grounds herein calls for repetition of the gold standard for grounds of appeal namely that such grounds are to be formulated clearly and specifically.2 The rationale for that was explained in S v Kakololo3 that a notice of appeal serves to inform the trial magistrate in clear and specific terms what the grounds are on which the appeal is being brought, it serves to inform the respondent of the case it is required to meet, it crystallizes the disputes and determines the parameters within which the Court of Appeal will have to decide the case.
[6] In returning to the matter at hand, grounds of appeal that do not meet the abovenamed test will not be considered by this court whilst those that are recurrent will be combined. In respect of ground 1 the respondent’s view was that it was ambiguously formulated and we concur with that. Grounds 3 and 6 amounts to a mere criticism and conclusion by the drafter. In addition, counsel for the respondent has withdrawn ground 5 as well as the first part of ground 9.
[7] In ground 1.1, the appellant contends that the charge did not disclose an offence and in ground 1.2, he states that the charge lacked sufficient particulars. Ground 2 complains that it could not be concluded that the appellant had the required intention to defeat or obstruct the course of justice. In ground 4 the appellant is aggrieved that the court a quo rejected his evidence that he informed a certain Victoria Kauluma about the death of the deceased. In ground 4.1, the complaint is that the court a quo should have drawn a negative inference from the failure of the state to call witness Victoria Kauluma and in ground 4.2 the appellant is aggrieved that the court a quo did not regard the evidence of the said witness as ‘just and essential’ for the decision of the case.
[8] The last cluster of grounds, (ground 7, 8 and 9) deals with the sentence that was imposed. In ground 7 the appellant lists various aspects which the court a quo failed to consider or failed to adequately consider it for sentencing purposes. Ground 8 states that the court a quo misdirected itself by concluding that the deceased’s relatives endured pain as a result of the appellant’s conduct and ground 9 state that the appellant has been wronged by the court a quo’s overemphasis on the fact that the body of the deceased was decomposed when it was found.
The merits of the appeal.
[9] Both counsel for the appellant and counsel for the respondent filed heads of argument and each made brief oral submissions, to support their respective points.
[10] Both grounds 1.1 and 1.2 deals with alleged defects in the charge, alleging that the particulars are insufficient in that it did not inform the appellant of the manner in which his conduct obstructed and or defeated the course of justice and that the charge does not disclose an offence at all.
[11] Section 85 of the Criminal Procedure Act 51 of 1977, hereinafter referred to as ‘the CPA’ is instrumental and it reads as follows:
‘85 Objection to charge
…(1) An accused may, before pleading to the charge under section 108 object to the charge on the ground –…
Provided that the accused shall give reasonable notice to the prosecution of his intention to object to the charge and shall state the ground upon which he bases his objection: Provided further that the requirement of such notice may be waived by the attorney-general or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.
[12] The provision expressly covers, amongst others, situations wherein the accused is of the opinion that the charges proffered do not disclose an offence and where the charge does not contain sufficient particulars. The said provision thus afforded the appellant the option to formally object to the charges and request further particulars before pleading to the charges. The appellant was legally represented during the case in the regional court before he pleaded to the charge and during the complete trial proceedings. When probed about this during the appeal hearing, Counsel for the appellant conceded that he did not formally invoke the said section in the court a quo. For that reason it is an untenable argument to bring forth at this belated stage of the matter.4
[13] In any event, in looking at the charge, it leaves no room for a contention that it does not disclose an offence or that the appellant could not decipher the nature of the nature of the conduct in question. The charge depicted that the accused has on 9 July 2019 at farm Lahnstein, Matahohe unlawfully and with intent to defeat or obstruct the course of justice by concealing the body of the deceased after removing it from the scene.
[14] The prosecution used the verb ‘conceal’ which is defined5 as ‘stop someone or something being seen.’ The crux of the conduct is the question refers to a dead body being hidden. Logic dictates that to conceal a dead body may obliterate the features of a crime or, at minimum, disrupt the authorities’ duty to investigate the cause of death and in the process mislead the course of justice. In view of that this court is hard pressed to subscribe to the appellant’s belief that the charge allegation does not disclose an offence nor can it be said that the charge left the appellant in a position of not knowing what case he had to meet in the trial.
[15] The next ground of appeal deals with intent to commit the offence and avers that the court a quo erred in concluding that the evidence has proven intention. There is no doubt that intention is a required element for the said offence. It must also be said that any of the forms of intent is sufficient, be it direct intent, intent by the awareness of inevitability (dolus indirectus) or intent by the awareness of possibility (dolus eventualis) are present.
[16] We consider the material parts of the evidence before the court a quo to assess whether there is merit in this ground. It is common cause that during the early morning of 9 July 2019 the appellant and the deceased went to veld to hunt. The appellant returned to the house very late that night and did so without the deceased. State witness Venatius Pius Tulengepo testified that the appellant gave an explanation at the time for the absence of the deceased, namely that the deceased got off the vehicle and he was returning livestock home. Mr Tulengepo furthermore testified that the appellant washed the vehicle and his t-shirt that night. Furthermore that the appellant and a certain Pombili slaughtered an Oryx which was loaded with livestock and eventually the appellant drove to Rehoboth.
[17] Mr Tuleingepo attested that they (who remained on the farm) were waiting for the deceased to come home, but to no avail. Subsequently they called the neighbours to enquire if the deceased was perhaps there. When that yielded no results they telephoned Vicky, the farm owner, and reported the state of affairs. The next day Vicky called them on the farm and enquired if the deceased had shown up. They said no. She then said she called the police. On 11 July 2019 Vicky, the police and the appellant arrived on the farm. That evidence was not disputed during cross –examination of that witness.
[18] In short, the appellant’s version is that the vehicle had problems in the veld. Whilst he was busy at the bonnet fixing the vehicle he heard a shot. He went to the deceased who sat in the passenger seat. The appellant observed that the rifle was lying between the gears, pointing downward, but he did not notice that the deceased was injured.
[19] Once the vehicle started he drove further and along the journey the deceased pointed to his thigh. The appellant saw blood pouring and stopped the vehicle. He helped the deceased off the vehicle and tied his leg in order to slow down the blood loss. The appellant placed the deceased back in the vehicle and continued to drive. During the journey the deceased passed away. He offloaded the deceased under a tree. Once at the farmhouse the appellant washed the vehicle and his T-shirt and slaughtered an Oryx before driving to Rehoboth. He informed Vicky and she said that he should not say anything and that she will tell the police.
[20] In respect of the critical moment after death occurred the appellant testified that:
‘… I sat for a while and thought of what to do, and I thought to myself if I take him to the farm the people on the farm will attack me. And I decided to leave him there because I was scared.’6
[21] In support of this ground counsel for the appellant argued that his client reported the death to Vicky and his client assisted the police with finding the corpse. On the other hand the counsel for the state argued that the court a quo has not erred in rejecting the explanation by the appellant and argued that the appellant’s conduct that night has proven intent.
[22] The un-controvertible evidence is that the appellant outright lied to the persons at the farmhouse as to the status of the deceased on the fateful night, and brought them under the impression that the deceased will come home later whilst he knew the deceased has perished in his presence earlier in the day. He nonchalantly continued to wash his T-shirt and vehicle and slaughter an Oryx before departing for Rehoboth in the early morning hours. He did not report the death to the Namibian police at all. By the time that the body was discovered, it was two days after death and the process of decomposition had started.
[23] The corpse was discovered by one of the police officers deep in a riverbed, in a very bushy area, hidden under the branches. The long and short of the appellant’s version is that the deceased caused his own death in the vehicle, which explanation the court a quo accepted. Be that as it may, the reality is that the deceased could not have walked himself to a site deep in a riverbed and placed himself under the branches of a thick bush after he passed away. Additionally the police testified that when it came to searching the body the appellant became ‘totally confused’ as to the location of the corpse and did not pinpoint the location of the body. The police searched for the body, on their own, after they left the appellant in a police vehicle. There is no doubt that the court has not erred in concluding that these actions of the appellant has proven intent by the appellant to commit the offence.
[24] It has to be remembered that the appellant is the last person who had seen the deceased alive and he testified that the deceased died in his presence. In view of that, at best, the appellant must have foreseen the possibility of judicial proceedings that will ensue in connection with the death of the deceased and his actions will impede on the proper collection of evidence and derail the course of justice.
[25] The next ground revolves around the role of one Victoria Kauluma. The appellant complains that the prosecution or the court should have called her as a witness. The crux of appellant’s view in this regard appears to be that he informed the said Ms Kauluma and that makes him not guilty of the said offence. It must be said that it is peculiar and unclear under what law this person would have been justified to instruct the appellant not to report the death to the police or any other person.
[26] This court agrees with counsel for the respondent that the State is not under an obligation to call a witness if that will not further the State’s case. In the State’s version Mr Tulengepo testified that they called Ms Kauluma that same night to report that the deceased was missing and did not return with the appellant from the hunting excursion. He also testified that Ms Kauluma called back the next morning to enquire if the deceased had shown up at the farmhouse. That carries an inference that Ms Kauluma did not know about the ‘death’ of the deceased by the next morning. If the appellant had information contrary to that, that point had to be refuted in cross-examination. In S v Boesak,7 the court held the following:
‘… It is clear law that a cross-examiner should put his defence on each and every aspect which he wishes to place in issue, explicitly and unambiguously, to the witness implicating his client.’
[27] Additionally, even if the appellant eventually disclosed the death to Ms Kauluma that fact alone was not sufficient to displace the rest of the evidence on which the court a quo based its conclusion that the accused has committed the offence. That evidence has been referred earlier in this judgment and it serves no purpose to repeat it.
[28] Section 186 of the CPA provides that a court may subpoena a witness in a criminal proceedings ‘if the evidence of such witness appears to the court essential to the just decision of the case’. In Hiemstra’s Criminal Procedure on page 23-16 [Issue 9], the learned author explains that:
‘Section 186 is clearly divided into two parts, the first discretionary and the second mandatory. Although the discretion in the first part is wide, it has to be exercised judicially and in a limited manner.’ and ‘The second part of section 186 places a duty on the court to call the witness once the court deems the evidence essential to the just adjudication of the case. It is the judicial officer's responsibility to assess whether the evidence is essential. This assessment is the only consideration. Only if the court deems the evidence essential does the obligation to call the witness arise.’
[29] Usiku J has dealt with s 167 and s 186 of the CPA in Panduleni v S.8 In that matter it was stated that it is important to note that the two sections are not peremptory and therefore the court has a discretion to exercise which in turn depends on the circumstances of each particular case. It is indicative thereof that the discretion is one that is invoked sparingly. This instance does not strike this court as one where the court a quo can be said to have erred by not invoking s 186 of the CPA. If indeed this person was so crucial for the defense case it is strange that the appellant has not called the said person to testify in support of his version.
[30] Ground 7, 8 and 9 turn on the same issue namely whether the court a quo has erred in the imposition of the sentence. The principal thrust of the argument by counsel for the appellant was that the court erred in not giving the appellant a non-custodial sentence. In support of that the appellant listed the following aspects under appeal ground no. 7:
the appellant’s conduct was not intended to protect him from prosecution;
the police, with the assistance of the appellant, discovered the body of the deceased, two days after the deceased died;
no evidence was led as to the precise moment when the police was informed of the death of the deceased;
the appellant spend 1 year and four months’ in pre-trial incarceration;
the appellant is at an advanced age;
the appellant is a first time offender.
[31] Sentencing is a matter pre-eminently for the trial court and an appeal court would only be entitled to interfere with the sentence that the trial court imposed where the trial court has exercised its discretion improperly. 9
[32] This is a common law offence and the sentence on a conviction thereof is discretionary. In principle there can be no qualm that the offence qualifies as serious in nature. Furthermore, there are no rules that a first offender, of a senior age, cannot be given a custodial sentence in a suitable case. While it is laudable that counsel for the appellant has in his written heads of argument referred to 2 criminal review matters wherein fines were given, it does not help that he has not indicated the sentencing variables therein to determine if they are similar to the circumstances in this case.
[33] In general the course of justice encompass the various stages of the process of administering justice. In this matter the appellant has concealed a corpse and gave false information which left an impression that the deceased was going to come home. That did not happen and by the time the body was found it was partly decomposed. The court a quo has not erred by considering that the actions of the appellant have, amongst others, caused pain to the deceased’s relatives. The situation has caused the relatives to endure not knowing the whereabouts of their person, for a day or two; then deal with the loss of life and holding a funeral with a partly decomposed body. There can be no qualm that a decomposed body has negative implications for the proper collection of evidence and investigations in respect of the cause of death. In view of that the court a quo has not erred in sentencing by having due regard to the state of the deceased’s body when it was found.
[34] Having considered the reasons for sentencing this court finds that the court a quo has exercised its sentencing discretion properly. The court a quo has also balanced the term of imprisonment by suspending two years thereof conditionally. Accordingly the appeal court is not warranted to interfere with the sentence imposed herein.
[35] In the result, the following order is made:
The respondent’s point in limine is dismissed.
The appeal is dismissed.
The matter is regarded as finalised and it is removed from the roll.
________________
C Claasen
Judge
________________
P Christiaan
Judge
APPEARANCES:
APPELLANT: C Simataa
Directorate Legal Aid
Mariental
RESPONDENT: M Shilongo
Office of the Prosecutor-General
Windhoek
1 Hindjou v Government of Republic of Namibia and Another (SA 1 of 1996) [1997] NASC 1 (10 June 1997).
2 Rule 67(1) of the Magistrate’s Court Rules.
3 S v Kakololo 2004 NR 7 at 8F-9A.
4 HD and S (SA 13 of 2007) [2018] SC 6 (1 March 2018).
5 Waite M et al. Oxford Paperback Dictionary and Thesaurus 3rd ed. Oxford University Press p 180.
6 Appeal record page 145 line 2-5.
7 S v Boesak 2000 (3) SA 381 (SCA).
8 Panduleni v S (CC 19/2017) [2023] NAHCMD 379 (5 July 2023).
9 S v Van Wyk 1993 NR 426(SC) at 447G.
Cited documents 2
Act 1
| 1. | Criminal Procedure Act, 1977 | 1965 citations |
Judgment 1
| 1. | S v Panduleni (CC 19/2017) [2023] NAHCMD 379 (5 July 2023) | 1 citation |