REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CA 27/2013
In the matter between:
Pieters v State (CA 27-2013)  NAHCMD 198 (17 July
Coram: UEITELE J
and UNENGU AJ
Heard: 17 June
Delivered: 17 June
Reasons released on:
17 July 2013
Procedure – Sentence – imposition of - factors to be
taken into account – Sentence – Direct imprisonment –
Appellant convicted of culpable homicide read with the Domestic
Violence Act 4 of 2003 – Sentence confirmed but suspended for 5
appellant was sentenced to 18 months imprisonment after she was
convicted of culpable homicide read with the Domestic Violence Act, 4
of 2003. In appeal, Court finds the appellant to be the victim than
the abuser in the domestic relationship with the deceased. The court
misdirected itself by over-emphasising the heinousness of the crime
failing to consider the facts of the matter and the circumstances
under which the crime was committed. Sentence of 18 months
imprisonment confirmed but suspended for 5 years conditionally.
In the result and for the
aforesaid reasons, I confirm and stand by the order made by this
Court on the 17 June 2013, to wit: ‘The appeal succeeds, as the
sentenced imposed in the court below is confirmed but suspended for 5
years, on condition that the appellant is not found guilty of
culpable homicide committed during the period of suspension.
UNENGU AJ (UEITELE J
 This appeal served
before us on 17 June 2013 and after listening to submissions from
counsel for the appellant and the respondent, we upheld the appeal by
confirming the sentence imposed by the court below, but suspended the
whole sentence for a period of 5 years on condition that the
appellant is not found guilty of culpable homicide committed during
the period of suspension and indicated that we shall provide reasons
at a later stage. What follows hereunder are the reasons why we
allowed the appeal suspending the sentence as a whole.
The appellant (who was the accused in the court a
was charged with culpable homicide read with the provisions of the
Domestic Violence Act, 2003
(the Act), in the
Regional Court sitting at Rehoboth.
She pleaded guilty to the charge against her and was convicted as
charged pursuant to a statement
handed in on her behalf
by Mr Christians who represented the appellant during the trial.
 Thereafter, the court
below, after listening to submissions from the legal representative
of the appellant, and the public prosecutor acting on behalf of the
State, the respondent in this appeal, sentenced the appellant to 18
months direct imprisonment.
 The appellant is now
appealing against that sentence by the Regional Court magistrate on
the following grounds:
That the learned Magistrate erred and/ or misdirected herself by
imposing a sentence of direct imprisonment which sentence is
shockingly and disturbingly inappropriate under the circumstances.
That the Learned Magistrate further erred and/or misdirected herself
by not considering imposing a totally suspended sentence or fine
under the circumstances.
By not balancing the personal circumstances of the Appellant and the
circumstances of this particular case against the seriousness of the
offence of Culpable Homicide in general.
That the learned Magistrate erred and/or misdirected herself by over
emphasizing the interest of the community and prevalence of the
offence of Culpable Homicide in general.’
It is trite law that punishment is a matter for the discretion of the
trial Court, which an appeal Court should not interfere with if such
discretion was properly and judicially exercised by the trial Court.
this principle of law has been stated and quoted time and time again
both by this jurisdiction and in South Africa.
In S v Rabie
Holmes, JA said:
every appeal against sentence, whether imposed by a magistrate or a
judge, the Court hearing the appeal-
be guided by the principle that punishment is pre-eminently a matter
for the discretion of the trial court.
should be careful not to erode such discretion, hence the further
principle that the sentence should only be altered if the discretion
has not been judicially and properly exercised’.
concluded and said: ‘punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to the circumstances.’
Similarly, Holmes, JA cautioned that
one should guard against
allowing the heinousness of the crime to exclude all other relevant
considerations. What is needed is a balanced and judicial assessment
of all factors. Needless to say that the guidelines laid in the
matter of S
v Rabie above,
have been followed and are still followed in many cases.
 Coming back to this
appeal, a brief survey of the facts has to be made to understand what
transpired in the court below and why an effective imprisonment was
imposed on the appellant. But before that, I must mention that the
State’s case is hanging on a thin thread due to the fact that
the State did not place sufficient facts before the Regional Court
other than the evidence contained in the Section 112(2) statement
which was handed in by the appellant which reads as follows:
I.T.O. ACT 51 /77 112 (2)
am the accused in this matter.
plead guilty to a charge of Culpable Homicide.
admit that on or about 10 September 2011 at or near Farm Tweerivier
in the district of Rehoboth I unlawfully caused the death of Petrus
Kastoor by stabbing him with a knife once.
deceased was my common law husband of the past 4 years prior to the
incident. He assaulted me every time he was intoxicated. The marks I
still bear today on my face and body are testimony to that. On the
day of the incident he was intoxicated again and wanted to assault
me again. I avoided him all the time but at one stage he cornered me
inside the house and started beating me. I took a knife and stabbed
him on his arm and upper chest. The wounds were not serious and I
ran out of the house. He still chased me around and a certain Steven
told me to put down the knife. I told him that the deceased will
kill me if I did. However, later on I put the knife inside the house
and left for Rehoboth. When I went through the river, on my way to
Rehoboth he came running behind me and I then realized that he had a
knife with him. He stabbed me and I blocked the knife with my arm
and got cut. I then grabbed hold of the knife and wrestled it from
his hand whereby my fingers were cut open. He then grabbed me around
my neck and started to strangle me. I then had no option but to stab
him. I did not even notice where I stabbed him but it was only once
where after he let go of me. He also had an open wound on his
forehead where he fell while chasing me. It was not my intention to
kill but only to get him away from me but unfortunately the blow
seemed to be fatal but I had no other choice since he was on top of
me and strangling me.
know it is an offence to cause somebody’s death negligently
and that I could be punished for it.
I am very sorry for what I did and promise never to do such a thing
The State seemed to be in agreement with the contents of the
statement handed in on behalf of the appellant and as such accepted
the version of the appellant as the true version of the events which
preceded the stabbing of the deceased. The court was also satisfied
with the contents of the written statement and without further ado,
convicted the appellant of the offence of culpable homicide, even
though the court had a discretion to put questions to the appellant
for clarification in case the magistrate had some doubts about the
blameworthiness of the appellant concerning the offence she was
 The magistrate,
during sentencing was supposed to consider the facts placed before
court as per the written statement handed in by the appellant.
 That written
statement, if carefully considered, the magistrate would have
realized that there are a lot of mitigating factors contained
therein. She informed the court that the deceased assaulted her every
time he was drunk during the past 4 years they lived together as
husband and wife. That on the fateful day, the deceased was again
intoxicated and started the fight. She avoided him all the time but
the deceased cornered her and started beating her. She took a knife
stabbed the deceased on the arm and upper chest.
 She, however,
managed to run out of the house, leaving the deceased in the house.
After running out of the house the deceased chased her around. A
certain person named Steven persuaded her to put down the knife. She
later put the knife in the house and decided to go to Rehoboth away
from the deceased. But, the deceased followed her and when he tracked
her down and again started fighting with her. This time, the deceased
had a knife with him, which he aimed to stab the appellant with that
knife. She blocked the stabbing with her arm (she got cut in the
process) and managed to wrestle the knife from the deceased (her
fingers were cut open in the process of wrestling the knife from the
deceased), the deceased still overpowered her and was busy throttling
her, it is in the process of the decease throttling her that she
 In these
circumstances, in my view, the appellant was the victim rather than
the aggressor. Both the public prosecutor and the legal practitioner
for the appellant, in their submissions for sentence in the court
below, urged the magistrate to impose a wholly suspended sentence,
but the magistrate ignored their proposal.
 In her judgment on
sentence the magistrate remarked that it was common cause that the
offence the appellant was convicted of, was a serious offence, that
the court must not lose sight of the fact that these types of crimes
are now on the increase within Namibia as a country. Further, the
magistrate was of the opinion that sentences imposed by courts do not
have deterrent effects enough to deter the would be offenders, she
therefore, expressed the view that it was hard time that cases like
the present, are dealt with swiftly so as to ensure that killings,
for whatever reasons, are not being repeated.
 The magistrate went
further and pointed out that a clear message must be sent out
(through the sentence on the appellant) in order to ensure that those
who may be tempted to take the law into their own hands are
I agree. Generally, the statement of the magistrate, as indicated
above, should be the norm. But, there are always exceptions to the
rule. The facts in this appeal are such that the magistrate should
not have placed more emphasis on the seriousness of the crime the
appellant was convicted of at the expense of the circumstances in
which the crime was committed. Punishment should fit the criminal as
well as the crime, be fair to society and be blended with a measure
of mercy according to the circumstances.
 When regard is had
to the circumstances and the facts of this case, I am of the view
that the punishment imposed on the appellant does not fit the
appellant as the criminal. What happened is that the magistrate
overemphasized the heinousness of the crime and excluded the other
relevant considerations like the blameworthiness of the appellant in
the matter, her personal mitigating factors and the fact the she was
abused by the deceased, that she had done what a reasonable person
would have done in the circumstances, (that is by trying to get away
from the deceased) and yet the deceased pursued her with a clear
intent of hurting her. In the circumstances I am of the view that the
magistrate misdirected herself on the facts and on the law.
 As indicated
previously in this judgment, the appellant is attacking the sentence
on four grounds. All these four grounds, which I do not intend to
repeat, are suggesting that the magistrate misdirected herself to the
main principles applicable to sentencing.
 Ms Ndlovu who argued
the appeal on behalf of the respondent experienced some difficulties
in justifying the direct imprisonment imposed by the court below.
This was due to the facts of the matter and the circumstances under
which the crime was committed. In my view, the sentence imposed is
startlingly inappropriate, in the circumstances, it induces a sense
of shock and there is a striking disparity between the sentence
imposed by the magistrate and that which would have been imposed by
this Court. That being the case, this Court has a reason to interfere
with the sentence imposed in the trial court.
 In the result and
for the aforesaid reasons, I confirm and stand by the order made by
this Court on the 17 June 2013, to wit: ‘The appeal succeeds,
as the sentence imposed in the court below is confirmed but suspended
for 5 years, on condition that the appellant is not found guilty of
Culpable Homicide committed during the period of suspension.
APPELLANT: WT Christians
RESPONDENT: EN Ndlovu
Office of the