S v Nawaseb (CC 12/2023) [2025] NAHCMD 203 (25 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 12/2023

In the matter between:

THE STATE

and

BARNABAS NAWASEB ACCUSED

Neutral citation: S v Nawaseb (CC 12/2023) [2025] NAHCMD 203 (25 April 2025)

Coram: CLAASEN J

Heard: 3-9 September 2024, 7 October 2024, 3-4 December 2024, 14 February 2025

Delivered: 25 April 2025

Criminal law – Housebreaking with intent to murder and murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003 – Accused fluctuated between accidentally injuring the deceased and self defense – Court rejected accused’s version that deceased attacked him as improbable and false – Not acted in self-defence and accused convicted of murder.

Summary: The accused was indicted in the High Court on a charge of housebreaking with intent to murder and murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003. He pleaded not guilty and offered a plea explanation that the deceased grabbed and held his testicles, which led him to hit her several times with an axe.

Held, that evidence should be evaluated in its totality and all evidence led should be accounted for.

Held further that: this court rejects the accused’s version of self defense not only as highly improbable, but also as false beyond any reasonable doubt.

Held further that: considering the established facts in respect of the type of object used, the part of the human body where it was directed, the actual injuries sustained and the accused’s behavior after the event, this court can safely infer that the accused intended to kill the deceased when he hit the deceased.

ORDER

Count 1: Housebreaking with the intent to murder and murder read with the provisions of the Combating of Domestic Violence Act 4 or 2003 –

The accused is found guilty of murder with direct intent.

JUDGMENT

CLAASEN J:

Introduction

[1] The accused has been charged with housebreaking with the intent to murder and murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003. It is alleged that during the period 20-21 December 2022 at Khorixas the accused unlawfully and intentionally broke into and entered the residence of Metisia Tanises by opening a window of the residence with the intention to murder her and then unlawfully and intentionally killed her.

[2] The accused pleaded not guilty to the charge. His legal representative gave a lengthy plea explanation, in terms of s 115 of the Criminal Procedure Act 51 of 1977 (‘the CPA’). The long and short thereof was that the deceased and the accused had an argument on 21 December 2022 and the deceased enlisted the assistance of the police to remove the accused from the deceased’s residence. Around midnight she came and fetched him. They returned to her residence and a quarrel erupted between them. He asked her for the door’s key but she said that she does not know where it was. He picked up an axe from the kitchen in order to break the padlock. She grabbed him on his pants and on his testicles, which caused him to hit on her head with the blunt side of the axe. After that he went to sleep at his sister’s house. He handed himself over to the police the next day.

[3] Various admissions were made in terms of s 220 of the CPA. The accused admitted the identity of the deceased and the place and date of her death. He admitted that he hit her several times with an axe, that she died because of such injuries, and that they were in a domestic relationship.

[4] At the start of the trial, several documents were received in evidence by agreement of the parties. Where necessary, particular reference will be made to such documents. Apart from that the parties also presented oral evidence.

Ms Nawases

[5] The state led several witnesses. The first state witness is Ms Daliana Nawases, a cousin of accused who resides in Donkerhoek in Khorixas. The accused arrived at her residence around 2 a.m. on the 21^st of December 2022 and requested to sleep there. She agreed to that. Once he was in bed the accused told her that ‘he killed’. She enquired whom has he killed. He said it was ‘Sussetjie’, the mother of his children. The next morning, they went to the accused's parental home and informed them about the accused's actions. Thereafter they went to the deceased's residence.

[6] At the deceased's home, the accused entered through a window, and Ms. Nawases followed. The accused used his cell phone’s light to illuminate the room. She saw the deceased lying on the bed, with blood on her face. Ms. Nawases exited the house through the window. The accused handed his son to her. The son was inside the house with the deceased. They returned to the accused's mother's house and left the child there.

[7] They proceeded to the police station and the accused entered the charge office. An officer to whom she referred to as ‘Souks’ asked the accused what has he done and whether he has killed. The accused replied to Souks that he had killed the deceased. They went back to the deceased’s house where the body was removed.

[8] Cross-examination focused on averments in the accused’s version, the most important which was that the accused denies telling the witness that he killed his girlfriend. The witness remained adamant in her evidence on this aspect. As regards her evidence that the accused told ‘Souks’ ‘he killed’, counsel for the accused postulated that his client’s version is that he merely told the officer that he and the deceased had a fight and he thinks the deceased died. Although the witness momentarily agreed to that contention, once it was pointed out to her that it amounts to a variance in respect of the accused’s words to ‘Souks’ in the police station, she reiterated that the accused uttered the words to which she referred to in her evidence in chief.

Dr Rutakuremberwa

[9] The next state witness was Dr Magnus Rutakuremberwa, currently a Senior Medical Officer at Opuwo State Hospital where he has been working since 2015. He obtained his degree in Medicine in 2009 and started practicing in 2010. He also completed basic training in other fields such as forensic medicine. He specifically referred to periodic training at the National Forensic Science Institute in Namibia and he described himself as the focal person for forensics at the Opuwo Police Mortuary, where he has been conducting post mortems since 2021.He conducted a post-mortem examination on the deceased’s body on 27 December 2022.

[10] He concluded that the cause of death was traumatic brain injury due to the severity of the skull fractures and associated brain damage. He opined that the injuries indicated significant force, with skull fractures that exposed the brain. He read the principal findings into the record, in the following terms:

1. left frontal lobe brain injury with hematoma,

2. left temporal depressed comminuted skull fracture,

3. left zygomatic bone fracture,

4. basal skull fracture extending to the sphenoid bone bilaterally, and

5. linear left parietal skull fracture extending to the saggital suture.

[11] Both counsel for state and counsel for the defense posed questions related to the accused’s version that he was grabbed and held by his testicles. Dr Rutakemberwa explained during cross-examination that once a person is hit with an axe on the head such a person is likely to be disoriented after a severe blow. In that vein he attested that it was improbable for the deceased to have continued holding the accused's testicles after the first blow. Dr Rutakuremberwa disagreed with the proposition that the accused used the blunt edge of the axe to inflict the injuries and opined that the injuries were more consistent with being caused by the sharp side of the axe. He reiterated that the force from the sharp edge of the axe did indeed penetrate the skull and cause damage to the brain.

Sergeant Beukes.

[12] Sergeant Sidney Beukes is a member of the Namibian Police, stationed at Khorixas. He was on duty on 20 December 2022. On that date the deceased made a domestic violence report against the accused at the police station.The witness and a fellow police officer went to look for the accused. Sergeant Beukes told the accused about the report and that the complainant did not want him at the house. They collected the accused and drive to the deceased’s place. Upon arrival they noticed that the accused’s belongings were packed and placed in the veranda. They transported the accused and his belongings to his mother's house.

[13] The next day the accused came to the police station with a relative. The accused admitted to assaulting his girlfriend, saying that she was not breathing and that he thought she was dead. Sergeant Beukes, along with Constable Murorua and the accused drove to the complainant's house. The door was locked from the inside. Sergeant Beukes entered through a window, which was closed but not locked. The deceased was lying on her right side on the bed, in a pool of blood. She had three open wounds on her left cheek. He noticed an axe near the bed. The deceased's daughter was sleeping next to her mother. He woke the child, covered her eyes and handed her over to the neighbours.

[14] He testified that he informed a colleague, Officer Haradoeb about the accused who reported injuring his girlfriend. He clarified that he did not expressly use the word ‘chopped’ as that is an impression he formed after seeing the axe and the injuries on the deceased.

Sergeant Haradoeb

[15] Sergeant Simon Haradoeb is stationed at the Khorixas Police Station. He was also one of the police officers who visited the scene on 21 December 2022. His evidence regarding the locked house, the deceased and the axe inside the house were largely common cause with that of Sergeant Beukes. The witness also saw blood spills on the curtains and floors, before he exited through the window.

[16] Sergeant Beukes told this witness about the accused who told him at the police office that he ‘chopped’ his girlfriend. As such sergeant Haradoeb wanted to talk to the accused. Sergeant Beukes pointed him to the police van. Once he saw the accused he explained his legal rights and asked the accused what happened. The accused did not want to talk at that moment. From there they transported the body to the Mortuary Assistant at the State Hospital.

Barnabas Nawaseb

[17] The defence called the accused to testify on his own behalf. Mr Nawaseb stated that on 21 December 2022 he and the deceased had an argument about money and he went to a shebeen. The police came to him. They informed him that the deceased reported to them that he treats her inappropriately and that she wanted him to be removed from her place. As such he, with the police, collected his belongings and the police dropped him off at his mother’s house.

[18] Around midnight the deceased knocked at his door. She begged for forgiveness and he decided to go back to her place. Once they were lying down at her place the deceased started the money argument again. He got up to leave, but the door was locked. He asked for they key but she denied knowing where it was.

[19] The accused went to the kitchen to fetch an axe to open the lock with that. The deceased pulled him. They ended up in the bedroom. Whilst she was seated on the bed she held him on the chest. She then grabbed his testicles, so much that he felt pain. He reacted by hitting her with the axe, more than once, but he can only recall the first blow. He said that he hit her in the face on the left cheek with the blunt side of the axe and that, at the time, he did not realise that it could injure her. Thereafter he exited through the window. At that stage she was seated on the bed and she was crying. He was questioned on why it has not occurred to him to exit through the window from the start. He replied that it was because she was holding him and he did not think of that.

[20] He went to the house of the first state witness, Ms Nawases. He told her that he was fleeing from an argument and needed a place to sleep. The next morning he and Ms Nawases went to his mother’s place. He told his mother that there was a ‘war’ between him and the deceased. He told her that the deceased grabbed him on his testicles and that he hit her. His mother told him to go and check on the deceased. Ms Nawases accompanied him. At the deceased’s place he climbed through the window. The deceased was laying on bed, covered with a blanket and she was not breathing. Thereafter he went to the police station.

[21] At the police station he told Sergeant Beukes that there was a fight and he accidentally injured her. Furthermore, that he had gone back to the deceased’s house in the morning and saw that he was not breathing. The police drove to the scene. He remained in the back of the police van. The door of house was locked. The police asked him for the key. He told them he could not find the key and exited through the window. The police charged him 24 December 2022.

[22] Cross-examination poked into various aspects of the accused’s version. The accused was asked about the whereabouts of the two minor children when the deceased pulled him and argued about money. He replied that they were sleeping in the house, as the argument was not a ‘loud noise.’ Counsel for the State expressed skepticism to the accused, by pointing out that, in spite of the accused being at the door he did not even attempt to hit or break the lock with the axe. The accused said that it was because he was grabbed by the chest and trouser. He conceded that if he had just put on the light he could have looked for the key and exited through the door.

[23] Counsel delved into the number of times that the accused hit the deceased with the axe. The accused answered that it can be three times as he saw three marks on her the next day, but reiterated that he can only remember the first hit. He conceded that he hit her hard, so that she can release her grip, and also that an axe is dangerous for a human being. It was put to him that he knew from hitting her with an axe she will have injuries. He agreed, but continued to say that he did not think that she can be seriously injured. He was confronted and asked for an explanation about just leaving his loved with injuries without taking her to the clinic. He replied that his testicles were in pain.

The issue to be decided

[24] The plea explanation denotes that the accused hit the deceased several times with the axe and that she died because of such injuries. During the accused’s evidence, on occasion, it appeared as if the accused’s version fluctuated between accidentally injuring the deceased or acting in self defense. However, that dichotomy was finally cleared in re-examination of the accused’s evidence and he remained with the version that he acted in self defense. As such this court should concern itself with the issue as to whether the version is reasonably possibly true and with the presence or absence of justification for the accused’s conduct when he hit the deceased with the axe.

Legal principles and evaluation of the evidence

[25] It is trite law that in criminal matters the onus rests on the State to prove the guilt of the accused beyond reasonable doubt. ¹ An accused is entitled to his/her acquittal if his/her version is reasonably possibly true. The said principles were explicated in S v Shackel as follows: ²

‘The court does not have to be convinced that every detail of an accused's version is true, if the accused's version is reasonably possibly true, in substance, the Court must decide the matter on acceptance of that version. Of course, it is permissible to test the accused's version against the inherent probabilities; but it cannot be rejected merely because it is improbable. It can only be rejected on the basis of inherent probabilities if it can be said that it will be so improbable that it cannot be reasonably possibly true.’

[26] Self-defence is available to any person who is a victim of an unlawful attack or the threat of an attack, but uses force to repel such attack.³ His or her action, of repelling an unlawful attack by use of force, is therefore lawful, provided that certain criteria are met. The requirements of private defence are as follows:

(a) The attack must be unlawful;

(b) The attack must be directed at an interest legally deserving of protection;

(c) The attack must be imminent but not yet completed.⁴

[27] It also has to be said that self-defence is determined objectively, in the sense that the act is judged in accordance with a generally applied criterion, i.e. would a reasonable man in the position of the accused have acted in the same way.

[28] Our courts have over the years stressed that a holistic approach is required by a trial court in the evaluation of the evidence. This principle was explained in S v HN⁵ as follows:

‘In its assessment of these conflicting versions of fact, the proper approach of the court in a case as the present is to apply its mind not only to the merits and demerits of the state and the defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt. … The respective versions should not be viewed in isolation and weighed up one against the other; but rather that the court must strive for a conclusion in its determination whether the guilt of the accused has been proved beyond reasonable doubt, when considering the totality of the evidentiary material.’

[29] It is now opportune to consider the evidence in order to ascertain whether the state has discharged the onus. Whilst it is true that there are no eye-witnesses to the actual hitting of the deceased, other than the accused, that does not mean that is all there is to it. It has been said earlier that all of the evidential material has to be considered.

[30] The accused pegged his case on his version that the deceased had gone to fetch him in the middle of night. He returned with her to her house. In summary, the material parts of his version is that once they were in bed, the deceased resumed their earlier argument. He went to the kitchen to get the axe to break the lock and exit the house. The deceased followed him to the kitchen and pulled him back into to the bed room. She grabbed him on his chest, then pants and then on his testicles. As a result of the pain in his testicles, he hit her with the axe. He did that several times, but he only remembered the first hit. There after he exited through the window and went to sleep at the house of the first state witness. He contended that he did not realise that it could injure her.

[31] It was not in dispute that the deceased had two minor children in the house that night, one aged four and one aged five. The court finds it unlikely that a mother would leave minors of that age alone, to fend for themselves in the middle of the night, whilst she walked to the deceased’ mother’s house to beg the accused to return to her house, a house from where he had him removed by the police earlier that same day. The accused, contends that once they were back at her house, there was an argument wherein the deceased pulled him from the kitchen. She held him on the chest, moved to his pants and grabbed his testicles. All this took place in a low noise level and they were ‘not really fighting.’ If that is to be believed, then it is absurd that he reacted to such a ‘modest’ argument by hitting the deceased several times with an axe.

[32] The accused claimed not to have remembered anything after the first hit. During cross-examination, he was asked whether the deceased was still holding on to his testicles, after the first, second and third blow, respectively. He answered that in the affirmative, which is contrary to not being able to remember what happened after the first hit. Additionally, when asked for an explanation for the ‘momentary’ memory loss, he had none.

[33] His evidence that the deceased continued to sit on the bed, after an onslaught in the face and on the head by an axe, is even more farfetched, regardless of it was with the blunt or sharp side. He also wants to court to believe he resorted to the axe to break the lock of the door in order to exit the house, but did nothing of that sort, at any stage that night. Not even when it all was over. Instead he exited through a window, which lead the court to find that there is no credence in his evidence that the resorted to the axe to open the lock of the door.

[34] It is not in dispute that the accused’s first port of call, after the incident, was to go to Daliana Nawases, a person he described and referred to as his ‘sister’. It must have been difficult for her to give this evidence in court against her relative. She testified that he told her that he killed ‘Sussetjie, the mother of his children’. It is evident that he volunteered that information without her prompting him at all. This court finds her to be a credible witness. She has no motive to give false evidence to incriminate the accused. She acted as a sounding board for the accused to get things off his chest after the incident that night. Therefore the court finds the accused’s evidence about not telling her he killed ‘Sussetjie’ untruthful.

[35] What is more, the court finds it peculiar that, if he had a justification at the time for injuring the deceased, he did not tell his sister about the portion of events that would exonerate him. It would have been the most natural inclination to include that part in their spontaneous conversation. He did not do so, which signifies that it did not exist at the time. This court agrees with counsel for the state that after the incident the accused did not tell a single soul that his testicles are sore, and that he needs to be taken for medical attention. He did not attest of that in evidence in chief nor was it put to any of the police officers during their cross-examination. This court regards his belated contention that he asked medical attention from a certain police officer Mubalo, in response to a question in cross-examination, as an afterthought.

[36] In turning to the question of intention in S v Garures⁶ it was held that intention is a state of mind which can be inferred from the circumstances of each case. In determining mens rea in a murder case, the court can look at the nature of the weapon used together with the position on the body where the injury was directed and the force used. Similar criteria were given in S v Links⁷ which added the nature of the actual injury sustained by the victim.

[37] In respect of the injuries and its location on the body, Dr Rutakuremberwa testified that the skull was fractured. He described three of the wounds as open chop wounds in the following dimensions, one of five cm long and two cm deep transverse in front of the left ear, one of five cm long and one cm wide above eye brow and one of six cm long, above the left ear extending towards the face.

[38] It is an opportune time to deal with the defense counsel’s condemnation of Dr Rutakuremberwa, who in oral testimony spoke of five wounds, but merely three wounds were recorded in the sketch attached to the postmortem report. That is a valid criticism, but it does not detract from the fact that there were indeed three open wounds on the face and head of the deceased, which remain clearly visible in the postmortem photo plan, exhibit ‘F’.

[39] Counsel for the defense also attacked Dr Rutakuremberwa’s evidence on account of him being a general practitioner and not being a forensic pathologist. If the court understood it correctly, counsel questioned whether Dr. Rutakuremberwa was qualified to make conclusions that it was unlikely that the deceased would have held on to the testicles after being hit by an axe on the head and that the injuries are inconsistent with her being hit by blunt side of an axe.

[40] Dr Rutakuremberwa has practiced medicine for more than ten years and has done basic training in forensic medicine. It is common that some of the rural areas may not have a specialist forensic pathologists in service to conduct autopsies. Counsel for the defense has not referred this court to an authority in this jurisdiction that a medical practitioner is precluded and not qualified to give an opinion about the cause of death and the surrounding circumstances. Nor has the defense discredited the evidence of Dr Rutakuremberwa with evidence to the contrary by another expert.

[41] In returning to probe the element of intention, it was not in dispute that the accused hit the deceased several times and it was in the face and on the head. It is evident from photo 16 and 17 in the photo-plan of the scene of crime, exhibit ‘E’ that it was a standard size axe. During cross-examination the accused conceded that he hit her hard and that an axe is dangerous for a human being. That is indicative of the knowledge and understanding of the severe consequences when it is used on a human body, regardless of whether the blows is directed with the sharp or blunt side. Furthermore, he testified that an axe is used to chop wood and it causes the wood to separate.

[42] In addition to that, the accused left the house, knowing that he assaulted his loved one with an axe. He carelessly went to sleep, without any attempt to seek medical attention for her. This supports what was said in S v Shikunga⁸that evidence of behavior after an event can serve as an indicator as to the state of mind at the event. Having considered the established facts in respect of the type of object used, the part of the human body where it was directed, the actual injuries sustained and the accused’s behavior after the event, this court can safely infer that the accused intended to kill the deceased when he hit the deceased. As such the court finds his denial of having intent to kill preposterous and false and finds that the accused acted with direct intent at the time.

[43] In the light of the totality of the evidence and on a careful evaluation of the evidence, this court rejects the accused’s version of self defense not only as highly improbable, but also as false beyond any reasonable doubt. That conclusion is inescapable on the murder allegations.

[44] Even if this court erred in not believing the accused’s version that his testicles were pulled by the deceased at the material time, it can safely be said that he exceeded the boundaries of self defense.

[45] In Mwanyekele v S⁹ the principle of proportionality was explained and it was stated that:

‘It is axiomatic that the act of defence may not be more harmful than necessary in order to ward off the attack but much depends upon the varying circumstances in each case in deciding the question whether the bounds of self-defence have been exceeded…’

[46] In the accused’s argument, the accused opted for an axe to ward of his girlfriend who pulled his testicles. He hit the deceased, was who sitting on the bed, several times in the face and head, thereby causing traumatic brain injury. That grossly exceeds the boundaries of proportionality and it cannot be justified in the circumstances.

[47] Although the accused was charged with housebreaking with the intent to murder, the court is not satisfied that the state has proven that the accused broke into house. Sergeant Beukes testified that upon arrival on the scene that morning the door was locked from the inside. The same observation was made by Detective Warrant Officer Kasanga who compiled the photo plan of the scene of crime, exhibit ‘E.’ Photo 22 shows the door was locked with a chain and a padlock on the inside. There was no evidence of any displacement of the door or windows at all. The high water mark for the State on the housebreaking element appears to be that the accused told Sergeant Beukes that he entered through the window of the deceased’s house, which piece of evidence did not survive cross-examination.

[48] Having considered the totality of the evidence this court is satisfied that the state has proven beyond reasonable doubt that the accused committed murder with direct intent.

[49] In the result, the accused is found guilty of murder with direct intent.

_____________

C Claasen

Judge

APPEARANCES:

FOR THE STATE: B Lilungwe

Of Office of the Prosecutor General

Windhoek

FOR THE ACCUSED: P Grusshaber

Directorate Legal Aid

Windhoek