Court name
Supreme Court
Case name
S v Koopman
Media neutral citation
[2001] NASC 3










CASE
NO: SA. 6/2000





IN
THE SUPREME COURT OF NAMIBIA





In
the matter between





LAURENTIUS
KOOPMAN APPELLANT





versus





THE
STATE RESPONDENT





CORAM;
Strydom, C.J.; O’Linn, A.J.A. et Manyarara, A.J.A.





HEARD
ON: 03/04/2001


DELIVERED
ON: 28/05/2001










APPEAL JUDGMENT













STRYDOM,
C.J.:
The appellant in this matter appeared before Hannah, J., on
a charge of murder. It was alleged in the indictment that on or
about the 8th April 1998 and at or near Blou-Wes in the
District of Keetmanshoop the appellant unlawfully and maliciously
killed one Clive Meyer. He pleaded not guilty to this charge and was
defended by Counsel. After evidence was heard the appellant was
convicted and sentenced to life imprisonment.





Thereafter
the appellant launched an application for leave to appeal against his
sentence. This application was unsuccessful. He thereupon
petitioned three Judges of this Court, who granted him leave to
appeal against both his conviction and sentence. The extension of
the grounds of appeal to also now include an appeal against the
conviction where no such application was launched and considered by
the Court a quo was a nullity. (See inter alia S v
Cassidy
, 1978(1) SA 687 (AD).) This was again confirmed by this
Court (per O’Linn, AJA) in the unreported case of David Silunga
v S.
, which judgment was delivered on 8 December 2000.





This
point was not taken by Counsel but was raised by the Court mero
motu
when the appeal was argued before us. Both Counsel, i.e.
Mr. Miller, who appeared amicus curiae, for the appellant, and
Ms. Lategan, who appeared on behalf of the State, accepted the law as
laid down in the above cases. However, as both Counsel prepared
themselves fully to argue the appeal on conviction as well as
sentence it was decided to follow the modus operandi set out
in the Silunga-case, supra.





In
the Silunga-case, supra, the grounds of appeal were, on
petition, also extended to include an appeal against the conviction
notwithstanding the fact that application for leave to appeal to the
trial court was limited to sentence. The Court nevertheless heard
argument on the conviction and was of the opinion that this was not
an exercise in futility as the merits could be decisive in deciding
which course the Court should follow which would best serve the
interest of justice. If the Court were of the opinion that there
was merit in the appeal against conviction then it would be necessary
to postpone all proceedings in order to regularize the appeal and to
obtain the necessary leave. This could cause a long delay. If the
Court were of the opinion that there was no merit in the appeal
against conviction it would not postpone the proceedings and could
then deal with the appeal against sentence and bring that to
finality. (See S v Langa and Others, 1981(3) SA 186 (AD), at
190A – 191A.)





Under
the circumstances I will first consider the merits of the conviction
and, depending on the outcome thereof, the appeal against sentence.





The
defence of the appellant was one of self-defence. The State was not
able to call any witness who saw how the trouble between the
appellant and the deceased started. The only witness called, who
was close to the scene of the fight, was Mr. Ambrosius Awaseb who
testified on behalf of the State. He stated that he knew both the
deceased and the appellant. He was busy loading goats on a
donkey-cart when he saw the appellant approach some distance away.
One Willem Titus and the deceased were with him. The deceased then
walked away from where he was standing with the witness and Titus.
At one stage Titus, who was assisting the witness with the loading of
the goats, drew the witness’s attention to the fact that the two
men, i.e. deceased and appellant, were fighting. Mr. Awaseb then
saw that the appellant was holding the deceased with his left hand in
front of the chest whilst the deceased was holding onto the arm of
the appellant. The witness also saw a knife in the right hand of the
appellant and he saw a dark spot on the T-shirt of the deceased. He
saw the appellant push the deceased whereafter the latter staggered
away for about 50 meters and then fell down. The witness did not
see any knife in the hand of the deceased or in the vicinity where he
had collapsed. Deceased and appellant were some 25 paces away
from him when Titus drew his attention to them. He subsequently saw
no injuries on the appellant. He furthermore described the two
persons as of the same height but said that the body of the appellant
was much bigger. He later qualified this statement by stating that
he could not say who was the stronger of the two. Counsel for the
defence put various statements to the witness from which it was clear
that Mr. Awaseb did not see what had happened between the appellant
and the deceased prior to his attention being drawn to the fight by
Mr. Titus.





The
appellant testified that he was on his way to the house of Mr. Awaseb
when he saw the deceased approach him. When they were about ten
paces away from each other the deceased started throwing stones at
him. In an attempt to dodge the stones the appellant tripped over
one of his shoelaces and fell down. The deceased stormed at him but
he managed to jump up. When he and the deceased were face to face
the latter hit him with a fist, butted him with his head and
strangled him with both hands. Thereafter he saw the deceased take
a knife from his pocket and open it with his teeth. Appellant said
that he then realized that the deceased was serious and that he was
going to injure him. The appellant then took out his knife, opened
it and tried to move the deceased’s hand away from his mouth to
prevent him from opening his knife. Appellant asked the deceased
what his intentions were and why he was fighting him. Deceased
however did not desist whereupon the appellant stabbed him. Even
then the deceased was still trying to open his knife and did not let
go of the appellant as a result of which the appellant again stabbed
the deceased. Appellant said that he was in shock and could not say
how many times he had stabbed the deceased. According to the
appellant he and the deceased had the same build although the
deceased was a little taller than he.





Detective
Sergeant Higoam was the first policeman on the scene. He testified
that at the scene lots of small flat stones were lying around. He
did not see any weapon in the area where the fight took place or
where the body of the deceased lay. He however candidly stated that
he was not really looking for any weapon. Sgt. Higoam was also the
person who arrested the appellant. This took place on a farm some
ten kilometres from where the deceased was stabbed. After the
appellant was warned according to Judge’s Rules and informed of his
right to legal representation he explained to the witness that the
deceased had attacked him by throwing stones at him and beating him
with fists and that that was the reason why he had stabbed the
deceased. He also told the witness that he threw his knife away.
Sgt. Higoam did not see any injuries on the appellant.





Sergeant
Coetzee was the investigating officer. He was at the scene of the
incident the same day where Sgt. Higoam handed the appellant over to
him. He in turn warned the appellant of his rights and the
appellant repeated to him the explanation that he gave to Sgt.
Higoam. Appellant also told him that he was hit in the face but the
witness did not see any marks or open wounds on his face. There was
however a scratch mark on his neck. This witness also testified to
the fact that the deceased was taller than the appellant but added
that the deceased was very thin, presumably meaning that the deceased
was of slender build.





There
was evidence that the appellant was under the influence of alcohol to
a certain extent. According to Awaseb the appellant, when he saw
him, was staggering a little and he was also talking a lot which was,
according to the witness, a sign that he was under the influence.
When Sgt. Coetzee saw him he got a strong smell of alcohol but the
appellant was steady on his feet and could speak. There was no
indication in the evidence of the appellant that the alcohol he
consumed played any role in the incident. This was, so it seems,
also the attitude of Counsel in the Court a quo and when the
matter was argued before us.





According
to a post-mortem examination, performed by Dr. Sugo, the deceased had
four stab wounds. One about the 3rd intercostal space
left, which went through the cardiac major blood vessel and caused
massive cardiac tamponade. This stab wound was a deep penetrating
wound, which was executed with severe, or strong force. This wound
also caused the death of the deceased. There were further two stab
wounds on the left upper chest of the deceased, as well as one on his
back. The doctor also found bruises on his face, right knee and
upper chest.





In
developing his argument before us, Mr. Miller stated that the finding
of the trial Judge that the appellant, when he stabbed the deceased,
at least acted with dolus eventualis regarding the death of
the deceased, is not in contention. What is in contention is
whether the State has proved beyond reasonable doubt that the
admitted act of stabbing the deceased was a wrongful act. Counsel
referred the Court to various decisions in which the approach of a
Court towards the evidence of an accused was discussed and set out.
It was further submitted that due to the Court a quo’s finding
that the deceased was the initial aggressor, and because there was no
evidence gainsaying that of the appellant, that the deceased was
armed and threatened to stab him, that the State had to stand or fall
by the evidence of the appellant.





Ms.
Lategan strongly supported the findings of the trial Court and more
particularly the Court’s finding that the deceased did not have a
knife when he and the appellant were fighting. Counsel submitted
that under the circumstances there was no basis for finding that the
appellant acted in self-defence.





It
seems to me that whether the appellant acted in self-defence when he
stabbed the deceased depends, to a great extent, on whether the Court
a quo’s finding that the deceased was not armed with a
knife, was correct. The trial Court found, correctly in my view,
that it was in all probability the deceased who started the fight.
There was evidence by the mother of the deceased, Mrs. Meyer, of some
bad blood between the appellant and the deceased and Awaseb testified
that at one stage the deceased left the group where he was standing
seemingly to confront the appellant. The Court also found that it
must be accepted that there were stones thrown by the deceased
followed by a head butting and a wrestling but found that this, by
itself, was no justification for the killing of the deceased.





I
agree with this finding by the trial Court. Although the throwing
of stones could be dangerous this came to an end once the parties
came face to face. As far as the body build of the respective
parties was concerned most of the descriptions by witnesses were that
the appellant, although shorter than the deceased, was the more
sturdily built of the two. Mention was also made by the appellant
that at one stage the deceased was strangling him with two hands.
However, under cross-examination he stated that the deceased held on
to his T-shirt and was attempting to strangle him by twisting the
collar with both hands. Also the butting with the head turned out,
under cross-examination, to have been without any effect as the
deceased only succeeded to hit the appellant on his hands. Up to
this stage the appellant seemingly did not harbour any fear of being
seriously injured by the deceased nor did he think that his life was
in danger because he testified that it was only after the deceased
took out a knife and tried to open it that he realized that the
deceased was serious and was going to injure him. The absence of any
injuries, except for a scratch on the neck, is further proof of the
fact that appellant was not in danger of serious injury and could
well cope with the situation. On his own evidence the appellant’s
action in stabbing the deceased can therefore only be justified if
the deceased himself was armed and threatened to use his knife.





Regarding
the approach of a Court in the evaluation of an accused’s evidence
and on the question whether the deceased was also armed with a knife
the Court-a quo stated as follows in its judgment:





There
is, of course, no onus whatsoever on the accused to establish that
the deceased was indeed armed with a knife. Even if his account that
the deceased had a knife is improbable the Court is not entitled to
convict unless it is satisfied beyond reasonable doubt that such
account is false. In considering this question I take account of
the following factors. Awaseb and the deceased’s mother testified
that they saw no knife. I see no reason not to accept their
evidence in this regard and had the deceased in fact had a knife I
think it likely that one or the other, if not both, would have seen a
knife. Further, no knife was seen by Sergeant Coetzee when he
inspected the place where the fight took place. Had the deceased
dropped it there when he was stabbed it is likely that it would still
have been there when the inspection took place. Anyone intent on
removing a knife from that place would in all probability also have
helped himself or herself to the cap referred to by Sergeant Higoam.
Another factor is the inconsistent description given by the accused
when giving evidence of how the deceased produced the knife. I do
not attach too much significance to this but it has to be thrown into
the balance with the other factors. Then there is the very telling
factor that the accused made no mention of the deceased being armed
with a knife when questioned by both police sergeants. Why mention
the stone throwing and the punch but omit the knife? The accused
was cross-examined about this and his answers were totally
unconvincing. He said that Coetzee said he must explain a little
bit so he explained a small part. To omit the central fact makes no
sense at all. Then he said he did not think about telling the
police about the knife. Why not? The answer to my mind is plain.
The story of the deceased having a knife is an afterthought invented
for the purpose of justifying his actions. I am satisfied beyond
reasonable doubt that the account of the deceased taking out a knife
is false.”








In
my opinion the reasoning of the learned Judge cannot be faulted and
it follows therefore that the appellant, when he stabbed and killed
the deceased, was not acting in self-defence. There can also be no
doubt that the appellant, when he did so, had the necessary intent to
kill the deceased. Mr. Miller in my opinion correctly conceded
this. It is clear from the medical evidence that the appellant
stabbed the deceased not once but four times. Three of these wounds
were on the upper left side of the chest of the deceased and the
stab, which caused the death of the deceased, was a deep penetrating
wound which was executed with severe force.





Under
the circumstances I am of the opinion that the appellant has no
reasonable prospect of success to appeal against his conviction and
it would therefore be a waste of time to send the matter back to the
trial Court to consider an application for leave to appeal in that
regard.





In
regard to sentence counsel were agreed that that was pre-eminently a
matter for the trial Court and that a Court of Appeal would only be
entitled to interfere with a sentence where the trial Court exercised
its discretion improperly. (See S v van Wyk 1993 NR 426 (SC)
at 447G.)





Mr.
Miller submitted that the trial Court misdirected itself in that it
overemphasized the previous convictions of the appellant at the
expense of other cogent mitigating circumstances. According to
Counsel the remark by the learned Judge, when he imposed the sentence
of life imprisonment, that it would be safer to leave it to the
prison authorities to decide whether it was safe for society for the
appellant to be released from custody also constitutes a
misdirection.





From
the judgment it is clear that the trial Court regarded the previous
convictions of the appellant as particularly aggravating. The
learned Judge stated that if the offence committed by the appellant
was seen in isolation, and bearing in mind the mitigating
circumstances accepted by the Court to have been present, he would
have considered a sentence in the region of 10 years imprisonment.
The Court however found that the previous convictions of the
appellant was of such a nature that it showed that the appellant had
a propensity for violence and that it was therefore necessary for the
Court to impose a sentence which would also serve as protection of
the public.





The
previous convictions of the appellant were indeed serious and most
relevant to the crime of which he was convicted by the Court a
quo.
In 1990 the appellant was convicted of assault with intent
to do grievous bodily harm. The weapon used was a knife and he was
given a suspended sentence of 6 months imprisonment. In 1991 the
appellant was convicted of stock theft and was again given a
suspended sentence. In the same year the appellant was convicted of
murder after the victim was killed by striking him with the handle of
a pickaxe over the head. He was also, on this occasion, convicted
of malicious damage to property and the sentence was ordered to run
concurrently with the sentence of 9 years imprisonment imposed for
the conviction of murder. Whilst out on bail on the present murder
charge, the appellant was again convicted and sentenced on a charge
of stock theft.





The
appellant testified in mitigation of sentence and stated that he was
released from prison during May 1996. From this it is clear that the
second murder was committed within two years after having served a
sentence of imprisonment for a similar conviction. Seemingly the 5
years the appellant spent in prison did not make much of an
impression on him and did not stop him from again resorting to a
dangerous weapon when he was provoked. The way in which he used
this weapon, by stabbing the deceased four times and once at least
with severe force, is further support for the finding of the trial
Judge that the appellant showed a propensity for violence and that it
was necessary to protect the public against him. It may be that the
trial Court in balancing the principles applicable to sentencing gave
more weight to the deterrent and retributive aspects of sentencing
but as was pointed out by Ms. Lategan this is sometimes unavoidable
and, depending on the circumstances, does not amount to a
misdirection (see S v van Wyk, supra, at p 448E). In S
v Tcoeib
, l996 (1) SACR 390 (NmS) at 397 f-i the following was
stated by Mahomed, CJ, when he discussed the constitutionality of a
sentence of life imprisonment, namely:






Even when it is permitted in
civilized countries it is resorted to only in extreme cases either
because society legitimately needs to be protected against the risk
of a repetition of such conduct by the offender in the future or
because the offence committed by the offender is so monstrous in its
gravity as to legitimize the extreme degree of disapprobation which
the community seeks to express through such a sentence. These ideas
were expressed by the Court in the case of Thynne, Wilson and
Gunnell v The United Kingdom
, 13 EHRR 666 at 669, where it
stated that:











Life sentences are imposed in
circumstances where the offence is so grave that even if there is
little risk of repetition it merits such a severe, condign sentence
and life sentences are also imposed where the public require
protection and must have protection even though the gravity of the
offence may not be so serious because there is a very real risk of
repetition…’.”








Although
the moral reprehension of the murder was to some extent tempered by
the fact that the deceased was the initial aggressor, the past
history of the appellant and the violent way in which he responded to
the attack on him, when it was not necessary, marked him as a
dangerous man.





As
to the effect of the sentence imposed, I also agree with Ms. Lategan
that the murder committed by the appellant was before the new Prisons
Act, Act No 17 of 1998, came into operation, and that in terms of the
provisions of the new Act the appellant will still have to serve his
sentence according to the provisions of the old Act, Act no 8 of
1959. Under Act 8 of 1959 it was generally accepted that life
imprisonment, although indeterminate, constitutes a period of 20
years imprisonment. (See S v Masala, 1968(3) SA 212 (AD) and
the evidence of Chief Superintendent Kleynhans of the National
Release Board given in S v Florin, an unreported judgment by
Teek, JP, delivered on 22 December 1999.)





In
my opinion there was also nothing wrong with the remark made by the
learned Judge a quo, that the prison authorities are in a
better position to decide that the appellant is no longer a threat to
the public and can be released. This is not an instance where the
Court imposed a sentence, which is longer than what is appropriate,
in order to counter any remissions, which the offender may receive,
in terms of the relevant prison legislation.





I
am therefore of the opinion that the appellant’s appeal against his
sentence cannot succeed and the appeal is dismissed.








(signed)
STRYDOM, CJ.








I
agree.











(signed)
O’LINN, AJA.











I
agree.








(signed)
MANYARARA, AJA.











/mv














COUNSEL
ON BEHALF OF THE APPELLANT: Adv. P.J. Miller





INSTRUCTED
BY: Messrs. Conradie & Damased





COUNSEL
ON BEHALF OF THE RESPONDENT: Adv. A. Lategan





INSTRUCTED
BY: Prosecutor-General