REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case No: CC 16/2009
In the matter between:
Neutral citation: S
v Waterboer (CC 16/2009)  NAHCMD 148 (4 June 2013)
Coram: SHIVUTE, J
Heard: 16 –
17 September 2010, 21 September 2010, 28 September 2010, 21 October
2010, 14 – 25 November 2011, 18 January 2012, 1 March 2012, 1 –
6 November 2012, 21 January 2013 and 28 March 2013.
Flynote: Evidence –
Credibility of accused as a witness – Self-defence and
intoxication – Accused abandoning these defences and
incriminating one of the State witnesses as the person who committed
the offence – Later on accused changing his version that he did
not know who committed the offence.
Summary: The accused
was charged with the murder of his romantic partner by stabbing her
with a knife and assault by threat of one of the State witnesses –
The accused put up two defences namely, self-defence and intoxication
and gave conflicting versions as to the stabbing of the victim –
The court found that because accused changed his defences and gave
conflicting versions this casts serious doubt on his version and
leads to unavoidable conclusion that his versions are a fabrication -
Accused is found to be an unreliable and untrustworthy witness –
Accordingly, the accused is found guilty of murder with direct intent
read with the provisions of the Combating of Domestic Violence Act 4
Flynote: Criminal law
– Assault by threat – Some elements of the offence
inspiring a belief that force is to be applied – Immediate
personal violence – Subjective test.
Summary: The accused
threatened the complainant that he should give way otherwise he would
stab the complainant – Complainant believed that the accused
was able to carry out his threats and released the deceased –
Court found that the accused who was armed with a knife had inspired
a belief that he was going to stab the complainant – The
complainant believed that the accused was capable of carrying out
this threats of violence towards him because he was armed at that
stage and he had also stabbed the deceased – In instant case
the test to be applied is subjective - One must have regard to the
complainant’s state of mind. The accused was found guilty of
assault by threat on second count.
In the result the accused
is found guilty and convicted as follows:
1st Count :
Guilty of murder with direct intent.
2nd Count :
Guilty of assault by threat.
 The accused faces an
indictment containing two counts namely murder read with the
provisions of the Combating of Domestic Violence Act 4 of 2003 and
Assault by threat to which he pleaded not guilty. Particulars of the
offences are as follows:
Count 1: Murder
It is alleged that on 31
March 2008 at the Omdel location in the district of Walvisbay the
accused did unlawfully and intentionally kill Katrina Theresia Van
Wyk an adult female.
Count 2: Assault by
It is alleged that on the
same date, same place in the district of Walvisbay the accused did
unlawfully and intentionally assault Bernhardt Aubeb by threatening
to stab him to death there and then whilst the accused had an open
knife in his hand thereby causing the said Bernhardt Aubeb to believe
that the accused intended and had the means forthwith to carry out
 Mr Ujaha represented
the accused on the instructions of the Directorate of Legal Aid while
Ms Wantenaar appeared on behalf of the State.
 The accused raised a
plea of self defence in respect of the first count. He made the
following admissions in terms of s 115 read with s 220 of the
Criminal Procedure Act 51 of 1977. He admitted the date being 31
March 2008, when the incident took place, the place being Omdel
location Hentiesbay in the district of Walvisbay, and that the cause
of death is as per the Post-mortem Report, Exhibit “E”
and, the identity of the deceased. However, he denied each and every
allegation in respect of the second count.
The evidence may be
summarised as follows:
 Fillepine Geises was
the first witness called by the State. Her testimony is that on 31
March 2008 she observed the deceased locking the door to her house.
Whilst she was at the door she was approached by the accused. She
opened the door and both entered into the house. After an hour she
heard the deceased screaming. The deceased came out of the house
having a stab wound on her right arm. The accused was following her
armed with a knife. The deceased ran around her and Aubeb. The
accused was chasing her. He grabbed her by the arm and pulled her at
the back of the house. When the deceased came back, she was bleeding
from her neck. The deceased ran towards the direction of the
hospital. Witnesses also ran away. The witness and the deceased were
staying at the same residence. The witness was residing in the main
house and the deceased was residing in one of the shacks located in
the yard of the main house.
 It was put to the
witness that if the witness had seen the accused chasing the deceased
with a knife, she was supposed to state it in her statement to the
police. The witness replied that she was telling the truth that she
saw the accused chasing the deceased whilst he was armed with a
It was further put to the
witness that the accused never chased the deceased whilst armed with
a knife. The witness replied that she saw him doing so.
 It was put to the
witness that during the fight inside the shack, the deceased pulled
and pushed the accused first; she picked up the knife; the accused
was struggling and in the process the deceased was stabbed. The
witness responded that she would not know what transpired inside the
shack. She only heard the deceased screaming.
 Hafeni Shonena, a
neighbour to both the accused and the deceased, testified that the
accused and the deceased were in a romantic relationship. Their
relationship had a lot of problems because the accused suspected the
deceased of having had affairs with other men and the, accused used
to go to the witness to ask for advice regarding their relationship.
 On 31 March 2008
between 09h00 and 10h00, the accused passed at Shonena’s
cucashop on the way to the deceased’s house. He was in a hurry.
The witness followed the accused and saw the accused and the deceased
at the door of the shack. Shonena went to the first witness who was
washing at the main house. The accused and the deceased went inside
the shack. They started to quarrel. Shonena went to the shack where
the accused and the deceased were. The deceased was sitting on the
bed and the accused was standing asking the deceased why she was
going out with a young boy. After they had exchanged some words, the
witness advised the accused not to fight the deceased. The accused
seemed to have understood and promised the witness that he would not
 Whilst he was at his
place, he heard a woman screaming. The witness went back to the shack
where he left the accused and the deceased. He found the accused
having a knife in his hand and he wanted to stab the deceased on the
neck. The witness asked the accused what he wanted to do. The accused
said that he was just scaring the deceased and that he would not stab
 The witness
telephoned the police twice and reported that the accused was at his
girlfriend’s place and that he wanted to stab her. The police
promised to come. Whilst the witness was phoning the police, the
deceased came out of the shack saying: 'Waterboer why are you
stabbing me?' The accused was following the deceased and she went to
get assistance from the lady who was washing (the first witness).
When the accused was following the deceased he was holding a knife in
 There was another
man outside and he inquired from the accused why he wanted to stab
the deceased. The accused told the man that he should leave the lady
alone because he was putting himself into trouble. The witness
observed the deceased bleeding from the arm. The man to whom the
witness referred to earlier wanted to grab the knife from the accused
and the accused warned him to get out of his way or else he would
stab him. The man who was helping the lady who was washing and the
lady ran away. The witness wanted to get the knife from the accused
and the accused warned him and threatened to stab him if he did not
leave him alone. The witness told the accused not to put himself into
trouble by stabbing the deceased. The accused grabbed the deceased.
The deceased again asked the accused why he was grabbing her. The
accused told the deceased: 'Today I will stab you to death'. The
accused pulled the deceased by the neck and pulled her between the
shack and the main house in the corner. He again stabbed the deceased
quickly and then broke the knife's handle while the knife was stuck
in her neck. The accused ran away with it.
 The witness went to
look for transport to take the deceased to the hospital. The deceased
was bleeding and was trying to stop the blood with a face cloth. She
started to bleed from the mouth as well as from the nose. She
collapsed and took a deep breath and died. The knife was still stuck
on the right side of her neck. The witness informed the police that
the deceased was no more. The people who were in the car that was
supposed to take the deceased to the hospital went to inform the
nurse. The nurse came and confirmed that the deceased was dead.
 It was put to the
witness that he was never inside the shack. The witness replied that
he was there. It was again put to the witness that there was no such
conversation between the accused and the deceased as he testified.
The witness responded that the conversation took place. It was
further put to the witness that counsel's instructions are that the
stabbing of the deceased in the neck took place inside the shack. The
witness replied that it took place outside and he witnessed it.
Counsel for the accused put it to the witness that he was under the
influence of alcohol because he drunk 8 nappies of Owambo
liquor. The witness responded that the accused did not appear to be
under the influence of alcohol. His movement and they way he spoke
did not show that he was drunk. He was also very strong because he
was able to pull the deceased.
 Engeline van Wyk
testified that she is a daughter to the deceased. The deceased and
the accused were involved in a romantic relationship. However, their
relationship was a violent one. They used to fight and the accused
used to beat the deceased. At one stage the deceased ran to her with
a swollen foot because, the accused assaulted her with a brick. The
deceased opened a case against the accused and she withdrew it. One
day the deceased was at the witness' house when the accused came
looking for her. The witness refused the accused entry and the
accused broke the door forcing it to open. When he entered the house
he assaulted the deceased and removed her from the house by force. He
was threatening to kill her. The witness testified that she was at
work at the time her mother was killed. It was put to the witness
that the deceased was trying to stab the accused. During the struggle
the deceased was stabbed. The witness replied that she did not
believe it. It was further put to the witness that Shonena was the
person whom the accused referred to as a young boy having an affair
with the deceased. The witness replied that it was not true.
 Bernhardt Aubeb, the
complainant in the second count, testified that on 31 March 2008 he
was on his way to Shonena’s cucashop when he was called by
Fillipine who was washing her blanket. She requested him to assist
her to spin her blanket. Whilst there, he heard noise from the shack.
The deceased was screaming. She came running from the shack and she
went behind him and held him. The accused came after her armed with a
knife. He stopped the accused and reminded him that he was warned by
the police not to come to the deceased. The accused said the witness
should give him the way otherwise he would stab him too or take him
along. The accused came close to the witness and the deceased. The
witness let go off the deceased because he believed the accused would
stab him. When the accused approached them he was violent. The
deceased was bleeding from a hand. The witness stopped a car. The
accused grabbed the deceased and went to the back of the house
between the house and the shack.
 The witness was
talking to the man in the car. After he finished talking to the man,
he saw the deceased running to the main gate. She was bleeding from
the mouth. The accused was following her. However, he turned and went
to the opposite direction.
cross-examination the witness was asked whether the accused merely
told him to move out of his way, and that he did not threaten or
approach him in an aggressive manner. The witness replied that the
accused was not aggressive but the deceased came out bleeding and he
had a knife in his hand that was the reason the witness concluded
that the accused wanted to harm him. The witness was further asked
whether the accused waved the knife against him. The witness
responded that he did not wave the knife against him but the accused
said if the witness is not out of his way he would stab him too.
 After witness Aubeb
finished testifying, the matter stood down. Upon resumption, the
accused decided to terminate the services of his legal
representative, and Mr Ujaha withdrew as an attorney of record.
 Mr Wessels was
instructed by the Directorate of Legal Aid to represent the accused.
Mr Wessels brought an application in terms of s 167 of the Criminal
Procedure Act 51 of 1977 to recall three witnesses due to the fact
that the accused insisted on changing his defence and counsel wanted
to put the new version to the witnesses. The application was granted
 Mr Wessels made
formal admissions on behalf of the accused in terms of s 220 Act 51
of 1977 as follows.
'(a) I admit that I was
warned by the police to stop abusing my girlfriend Katrina Theresia
Van Wyk and to stop beating her. This warning was given to me on 17
(b) I admit that the
second warning was extended to me on 18 March 2008.'
 Mr Bernhard Aubeb
was recalled. It was put to him that the deceased called the accused
whilst she was standing at the window of the shack saying: 'Waterboer
come and help me.' The witness replied that she did not hear the
deceased calling the accused. It was further put to the witness that
there was an Oshiwambo speaking man who came out of the shack during
the process. The witness said he did not see the man. It was again
put to the witness that the accused entered the house and was grabbed
by the deceased around his body whilst she was screaming for help.
The accused assisted the deceased to move out of the house, and at
that stage the deceased was bleeding heavily. The witness replied
that he did not witness the accused assisting the deceased or the
deceased holding the accused.
 It was counsel’s
instructions that the accused person was planning to take the
deceased to the hospital but witness Geises shouted that the accused
had stabbed the deceased. After hearing the allegation, the accused
person ran to the police station. The witness responded that he did
not hear Geises uttering those words and he did not see the accused
running to the police station.
 It was put to Ms
Geises who was also recalled that during cross-examination earlier on
it was put to her that the accused did not intentionally injure the
deceased but the deceased was fatally injured inside the shack in the
course of a physical fight between the accused and the deceased. The
deceased was the one who called the accused to help her and at the
same time the door was open, an Oshiwambo speaking person came out of
the shack before the accused entered. The witness replied that she
did not hear the deceased calling the accused for help and that it
was not correct that Shonena, the Oshiwambo speaking person, left the
shack before the accused entered. The accused person was in the room
and Shonena joined him. At the time the deceased was injured, the
accused was the only person who was in the room with the deceased.
The witness was asked whether she saw the accused coming out of the
room assisting the deceased. The witness answered that the accused
was the one who was chasing the deceased out of the shack. It was
again put to the witness that after the witness shouted that the
accused stabbed the deceased, the accused ran to the police. The
witness responded that she did not utter those words and she did not
see the accused running to the police station.
 The defence wanted
Mr Shonena to be recalled. However, the police were unable to locate
Mr Shonena. .
 The accused was
placed on his defence and called no witnesses. The accused testified
that on 31 March 2008 he visited his nephew’s place. They were
drinking. He was not certain how much he drank but he consumed a lot
of beverages namely one bottle of 750 ml Clubman and about four
beers. At around 11h00 in the morning he went to his aunt’s
house at Henties Bay. Whilst he was there, he heard the deceased
screaming through the window calling 'Waterboer come and help me.'
The accused inquired why the deceased was calling him because she had
reported him to the police the previous day. She insisted that the
accused should go and help her. When the accused was entering the
premises, he saw Shonena, the state witness, running out of the
 When the accused
entered the house the deceased came towards him crying for help. She
held him around his body and the accused felt that she was warm. The
accused pushed her away. He saw that the deceased was covered with
blood. He assisted her by holding her and took her outside the house
in order for him to get a taxi to take her to the hospital. At the
time he went to the deceased’s shack he did not see witnesses
Geises and Aubeb, because they were not on the premises. He only saw
Geises and Shonena standing on the premises making phone calls at the
time he was taking the deceased out of the house. When the accused
led the deceased out of the house the deceased screamed loudly. He
then left her and proceeded to the police station. The accused
testified further that he abandoned the deceased because Geises and
the others had a grudge against him in the past and he thought that
they would falsely accuse him. That was the reason why he decided to
report himself to the police. This version is contrary to what was
put to state witnesses Geises and Aubeb that the accused ran away to
the police station because Geises had shouted that the accused
stabbed the deceased.
 Due to the fact that
the accused was allegedly giving conflicting instructions to his
counsel, Mr Wessels decided to withdraw as attorney of record. Mr
Uirab was appointed to represent the accused. However, due to the
fact the he allegedly received conflicting instructions again he also
withdrew as an attorney of record.
 After Mr Uirab
withdrew, the accused indicated that he was going to conduct his own
defence and that he was not going to add anything to his testimony.
It was put to the accused that when he went to the deceased’s
shack he accused her of sleeping with young boys. The accused replied
that it was a lie. It was put to him that according to his
instructions to Mr Ujaha, the deceased had a relationship with
Shonena. The accused said it was not his instructions but, whenever
he went to the deceased’s house he would find Shonena on the
deceased’s bed. As to the question whether he was a friend to
Shonena the accused said he did not know Shonena and that they were
not friends. He did not discuss with Shonena issues concerning his
love life. It was put to the witness that Geises heard the deceased
screaming inside the shack and when she came out she was bleeding and
the accused was chasing her. The accused responded that, that was a
 The accused was
asked as to who stabbed the deceased. He replied that he did not know
and that he did not see a knife. It was further put to the accused
that his instructions were that the deceased started to push and pull
the accused and that she picked up the knife, the accused was
struggling and in the process the deceased was injured. The accused
answered that he did not observe that, that was according to Mr
Ujaha. It was further put to the accused that in the Magistrate’s
Court he pleaded not guilty and the accused admitted that he stabbed
the deceased but had no intention to kill her and that he was heavily
intoxicated. The accused replied that he was told by the police when
he was in custody that he did not kill the deceased. That was what he
told his legal representative in the Magistrate’s Court.
Counsel for the State argued that the accused raised a defence of
self-defence, in the same vein he also stated that he was under the
influence of intoxicating liquor. Instructions were put to witnesses
that the accused drank 8 nappies of
Owambo liquor and then he turned around and gave instructions that he
drunk a bottle of 750 ml of Clubman and lots of beverages.
Thereafter, he shifted to a defence of total denial and implicated
Shonena to have stabbed the deceased. It is doubtful if the accused
had drunk intoxicating liquor that morning considering conflicting
instructions he gave to his lawyers. Shonena was also adamant that
the accused did not appear to be drunk. The accused denied the
presence of Geises and Aubeb but he told his counsel to recall them
and put instructions to them. Counsel for the state submitted that
the state had proved its case beyond a reasonable doubt because the
accused stabbed the deceased to death after he threatened to kill her
 On the other hand
the accused argued that he is not guilty because he did not commit
such a deed. The accused submitted that he did not agree with what
his legal representative Mr Ujaha said that he stabbed the deceased.
All the statements given by the witnesses were wrong. The first and
second witnesses for the State were not telling the truth and were
not present. Aubeb told a lie by saying the accused threatened him as
the accused never saw him on the day in question. The accused argued
again that he never stabbed the deceased because he did not set his
foot on the deceased’s premises. All what the state witnesses
said was a fabrication.
 Having summarised
the evidence and submissions by both the State and the defence, I
will now proceed to consider whether the State has proved its case
beyond a reasonable doubt in respect of both counts. I propose to
deal with the count of murder first.
 The accused’s
version in amplification of his plea of not guilty when he pleaded in
terms of s 119 of the Criminal Procedure was that: 'Accused will
admit he stabbed the deceased with a knife but had no intention to
kill her. According to him at the time he was heavily intoxicated.'
However, when the accused pleaded in this court, he raised a defence
of self defence.
 During the trial the
accused terminated the services of his initial legal representative.
He was provided with another counsel by the Directorate of Legal Aid.
When the second counsel came on board, the accused instructed him to
put another version to the witnesses concerning his defence. As a
result and as mentioned before, two of the witnesses were recalled
and it was put to them that the accused was called by the deceased to
help her. Before the accused entered the deceased’s room an
Oshiwambo speaking person by the name Shonena came from the
deceased’s room. When the accused entered he found the deceased
already injured because she was bleeding. This version was disputed
by both witnesses.
 Strangely enough
when the accused was placed on his defence, he testified that at the
time he went to the deceased’s shack he did not see State
witnesses Geises and Aubeb because they were not on the premises. He
only saw Geises and Shonena at the time he was taking the deceased
out of the house. This version was contrary to the earlier one that
before he entered the deceased’s room he saw Shonena emerging
from there. Again the reason for Geises and Aubeb's recall was for
the accused to put his version to these witnesses concerning the
allegation that the accused saw Shonena running out of the deceased’s
room before the accused entered. It is evident from the record that
the accused was giving conflicting versions and as a result his
second counsel withdrew. As mentioned before, the third counsel was
appointed but he too withdrew for the reasons stated already.
 In cross-examination
the accused was asked as to who stabbed the deceased to death and he
replied that he did not know who stabbed the deceased and that he did
not even see the knife that was used to stab the deceased. The
version given by the accused that he did not see the knife is
contrary to the earlier version that was put to the State witness
Geises that during the fight inside the shack, the deceased was the
one who pulled and pushed the accused first, and picked up the knife,
that the accused was struggling and in the process the deceased was
stabbed. It is obvious that the accused has changed from one defence
to another and it is not all too clear which defence he is raising.
 Although the accused
raised the defences of self defence and intoxication, I do not even
intent to discuss the defences raised because they are neither here
nor there as the accused in his latest version testified that he did
not know who stabbed the deceased.
 As already noted,
State witness Geises testified that the accused and the deceased
entered the deceased’s shack. After an hour the deceased came
running from the shack bleeding on the hand. The accused was running
after her armed with a knife. The deceased sought protection from her
and Aubeb. The accused dragged the deceased at the back of the house
and when the deceased came back she was bleeding from her neck. The
version of Geises was corroborated by Aubeb in some respects namely
that the deceased came running from the shack bleeding and that the
accused was chasing her armed with a knife. The deceased sought
protection from them but the accused grabbed her and pulled her to
the back of the house.
 The version of the
two witnesses above was corroborated by Shonena’s version.
However, Shonena’s version went further that he saw the accused
threatening to stab the deceased with a knife inside the shack. It
was Shonena’s version that after the deceased ran out of the
shack, when the accused grabbed her whilst he had a knife in his
hand, the deceased asked the accused why he was grabbing her. The
accused threatened to stab the deceased with a knife to death.
Shonena further witnessed the accused stabbing the deceased on the
neck when she was pulled to the back of the shack in a corner between
the main house and the shack.
 The versions of the
three state witnesses who witnessed the event pointed to the accused
as the person who stabbed the deceased with a knife. Although the
accused indicated that his intention was just to scare the deceased
when advised by Shonena not to stab the deceased, it is clear that
the assurance amounted to empty words meant to fool the witness.
 The account that the
accused did not know who stabbed the deceased is highly improbable.
The accused by changing his defence and giving conflicting versions
as to how and who stabbed the deceased cast serious doubt on his
version and leads to unavoidable conclusion that his versions are a
fabrication. This is also an indication that the accused is an
unreliable and untrustworthy witness.
 There is
overwhelming evidence that the accused is the one who stabbed the
deceased. The State witnesses corroborated each other in this regard.
Medical evidence revealed that the deceased had sustained a wound on
the arm and neck. According to the medico-legal post-mortem
examination the cause of death was severe haemorrhage – blood
loss – hypovolemia; brain and generalised anoxia, due to the
total penetrating stab would on the left side of the neck. The
accused's evidence that it was Shonena who killed the deceased is
false and is rejected.
 There is
overwhelming probability that the accused killed the deceased because
of sheer jealousy as she did not wish to continue with the
relationship and he accused her of having romantic relationship with
 I have no reason to
doubt the State witnesses’ version. They corroborated each
other in material respects and I found them to be reliable witnesses.
I am therefore satisfied that the State had proved its case beyond a
reasonable doubt in respect of the first count and I found the
accused guilty of murder. As to the form of intention, there is ample
evidence that the accused had threatened to stab the deceased to
death and indeed carried out the threats. He stabbed her on a
sensitive part of the body, namely the neck. I am of the opinion that
he had direct intent to kill the deceased.
 Coming to the second
count, there is evidence from Shonena and Aubeb that the accused
threatened to stab Aubeb whilst chasing the deceased armed with a
knife. Aubeb believed that the accused was able to carry out his
threats against him and also hurt him too because he saw the deceased
bleeding. There is no evidence contradicting the version of the State
as far as this count is concerned. I am therefore satisfied that the
accused by threatening to stab Aubeb whilst armed with a knife had
inspired fear in his mind and he rightly believed that the accused
was able to carry out his threats of personal violence as it was
evident that the accused was a violent man who had already stabbed
the deceased. In the instant case, the test to be applied is
subjective and one must have regard to the complainant's state of
mind. The mere denial that the accused did not threaten to stab the
complainant is rejected. For all the above reasons, I am satisfied
that the State has proved its case beyond a reasonable doubt and the
accused is found guilty of assault by threat.
 In the result the
accused is found guilty and convicted as follows:
Guilty of murder with direct intent read with the provisions of the
Combating of Domestic Violence Act 4 of 2003.
Guilty of assault by threat.
N N Shivute
STATE : Ms Wantenaar
Office of the
ACCUSED: In Person