Court name
High Court Main Division
Case number
CC 23 of 2008
Title

S v Ngatjizeko (CC 23 of 2008) [2013] NAHCMD 167 (18 June 2013);

Media neutral citation
[2013] NAHCMD 167
Coram
Ndauendapo J












REPORTABLE





REPUBLIC
OF NAMIBIA


IN
THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





SENTENCE





Case
No: CC 23/2008





In
the matter between:





THE
STATE





and





NATANGWE
IPINGE NGATJIZEKO
...................................................................ACCUSED





Neutral
citation:
State v Ngatjizeko (CC 23/2008) [2013] NAHCMD
167 (18 June 2013)






Coram: NDAUENDAPO,
J



Heard: 18 April
2013



Delivered: 18 June
2013
















Flynote:
Criminal law — Sentence — Diminished criminal
responsibility — Lack of remorse — Son of the deceased —
Aggravating





Summary:
The accused was convicted of murder with dulus directus —
Court found that he acted with diminished criminal responsibility
which is a mitigating factor. The murder was premeditated; the
accused has not shown any remorse first offender and spent 6½
years in custody. The accused is the biological son of the deceased
and that is aggravating. Sentenced to 40 years imprisonment.


______________________________________________________________________


ORDER


______________________________________________________________________





1.
The accused is sentenced to a term of imprisonment of 40 years on
count one


2.
One month imprisonment on count two. It is ordered that the sentence
in count two will run concurrently with the sentence in count 1.


______________________________________________________________________


JUDGMENT


______________________________________________________________________





NDAUENDAPO
J
[1] This court convicted the accused of murder with dolus
directus
read with part 1 and part 3 of Act 4 of 2003. He was
acquitted on robbery with aggravating circumstances but, found guilty
of theft of N$20.





[2]
According to the summary of substantial facts the accused, who was
born on 10 July 1979, is the biological son of the deceased. The
latter resided at Erf number 7463, Shandumbala in Katutura in the
district of Windhoek.


On
an unknown date prior to Sunday 17 December 2006 the accused
travelled from Walvis Bay to Windhoek with the intention to kill the
deceased. On 17 December 2006 and at the residence of the deceased
the accused boiled water and poured it over the body of the deceased
and he fractured some of her ribs. He also stabbed her several times
with at least two knives. The deceased died on the scene due to the
injuries sustained. Before he left the scene the accused took N$20.00
cash money which was the property of or in the lawful possession of
the deceased.’








[3]
It is now my duty to sentence the accused for the crimes he
committed. In terms of our law there are three factors to be taken
into account, namely:





(a)
The personal circumstances;


(b)
The nature of the crimes; and


(c)
The interest of society.





(See:
S v Zinn 1969 (2) SA 537 (A) AT 540G)





[4]
At the same time the sentence to be imposed must satisfy the
objectives of punishment which are:





(i)
The prevention of crime;


(ii)
Deterrence or discouragement of the offender from re offending and
would be offender;


(iii)
Rehabilitation of the offender;


(iv)
Retribution — thus, if the crime is viewed by society with
abhorrence, the sentence should also reflect this abhorrence.





In
S v Rabie 1975 (4) SA 855 at 862 G-H the Court held that:





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





[5]
PERSONAL CIRCUMSTANCES





The
accused is 33 years old and his father is a Minister of Safety and
Security. His parents were not married. The deceased went into exile
in 1980 when the accused was one year old. He stayed in Kwanzazul
refugee camp in Angola. The deceased left him in the camp and went to
India.





In
September 1990 the accused returned to Namibia at the age of 11 years
old. He was found by his sister, at a place in Oshakati who brought
him to Windhoek where he met the deceased in December 1990. He could
not live with the deceased. He stayed with his father and visited the
deceased from time to time.





The
accused attended grades 6 and 7 at the People’s Primary School
in Katutura. He was then sent to Martin Luther high School in Omaruru
where he completed grades 8, 9 and 10. In 1997 he returned to
Windhoek and attended Concordia College where he completed grades 11
and 12.





In
1999 he enrolled at the University of Namibia for a Bsc degree. He
abandoned his studies in the second year. The deceased then found a
scholarship for him and he went to the Czech Republic to study
economics. He failed his first year due to the language problems. In
March 2002, he returned to Namibia. He started smoking cannabis and
drinking heavily.





In
2003 he enrolled at the Polytechnic of Namibia where he studied media
and broadcasting. He did not write exams in that field and he changed
to electrical engineering. Three months later he abandoned his
studies due to drinking and smoking. In 2004 he joined the Namibian
Defence Force and whilst in the force he was arrested for possession
of cannabis. In October 2004 the accused absconded and left for
Zimbabwe, for no apparent reason, without a passport and entered the
country illegally. He was caught stealing and was jailed for 11
months. In September 2005 he was deported back to Namibia. He
continued with his drinking and smoking habits and he got more and
more attracted to cannabis. He was unemployed and started stealing to
maintain his drug habit. He stole cell phones from his father, sold
them bought a bus ticket to Cape Town. In Cape Town settled in
Philippi Resettlement, where a large number of rastafarians reside.
He got arrested for trespassing and on immigration charges. He was
deported back to Namibia in 2006. Back in Namibia he continued
drinking heavily and abusing drugs, and was staying at his aunt’s
house as he feared for the deceased. He started believing that the
deceased was be-witching him, that she could read his mind and
causing him problems. He stole some items from his aunt’s house
and he was kicked out of the house and moved to Walvis Bay. He
returned to Windhoek seven days before the he killed the deceased. He
has no children and he has been in custody for 6½ years.
According to his counsel the accused is rehabilitated and has
converted to Islam.





[6]
Nature of the crime





There
is no doubt that murder is a serious crime which calls for severe
punishment. The deceased suffered 2nd and 3rd
degree burn wounds and according to the doctor, the water had to boil
more 100 celsius in order to cause such injuries.


She
was stabbed 39 times and also sustained defence wounds on the fingers
in both hands. She suffered ribs fracture, liver, kidney and lung
ruptures. She died in the most gruel manner imaginable. A she was
being stabbed, she cried for help from the neighbour and the accused,
as counsel for the state put it: ‘had the audacity to step on
her face with his feet to make sure she was dead’. She was a
defenseless and innocent human being who died at the hands of her own
son. The conduct of the accused was truly diabolic and unforgivable.
The sheer savagery of this crime boggles the mind.





The
sentence to be imposed must fit the true nature and seriousness of
the crime. Every person’s right to life is entrenched in our
Constitution. You deprived the deceased, somebody who had a special
place for you in her heart, of her enjoyment to life.





[7]
The accused was the blue eye boy of the deceased. His parents tried
their level best to ensure that he got educated. They sent him to
some of the best schools in the country. They enrolled him at Unam,
Polytechnic, and the Namibian Defence force. His father testified
that he is “baffled” by the actions of the accused.
Before she died, the deceased told him that the accused was obedient
and she had a special place for him in her heart. What turned an
obedient and very intelligent young man into a murderer of his own
mother remains a mystery.








[8]
The murder was clearly premeditated. The accused in his confession
stated that when he arrived from Walvisbay two weeks before the
killing he had the intention to kill the deceased. He brought a knife
along for the sole purpose of killing the deceased with. He boiled a
pot full water on the stove and after the water boiled, he took the
boiling water, walked towards the unsuspecting deceased who was
sitting in the sitting room and poured it on her. He then took out a
knife from his pocket and stabbed the deceased several times, mostly
on the chest and the neck, the most vuneral part of the body. He
continued stabbing her and only stopped after he injured himself in
the hands. When deceased who was lying on the floor screamed for help
from the neighbor the accused step with his feet on her face and she
went silent-dead.





Interest
of society





[9]
The brutality of this crime evoked huge public outcry and
condemnation and in my view justifiably so. Violence against women,
the most vulnerable member of our society, continues unabated. The
courts are trying their level best to impose severe sentences to send
a clear message that murderers will be dealt with severely. High
levels of crime invariably result in the public demanding that ever
more sever sentences be imposed on perpetrators of these crimes.





In
S v Motolo en andre 1998
(1) SACR 206 OPD the court held that:





In
case like the present the interest of society is a factor which plays
a material role and which requires serious consideration. Our country
at present suffers an unprecedented, uncontrolled and unacceptable
wave of violence, murder, homicide, robbery and rape. A blatant and
flagrant want of respect for the life and property of fellow human
beings has become prevalent. The vocabulary of our courts to describe
the barbaric and repulsive conduct of such unscrupulous criminals is
being exhausted. The community craves the assistance of the courts,
its members threaten, inter alia, to take the law into their own
hands. The courts impose severe sentences, but the momentum of
violence continues unabated. A Court must be thoroughly aware of its
responsibility to the community and by acting steadfastly,
impartially and fearlessly announce to the world in unambiguous terms
it utter repugnance and contempt of such conduct.”





Submissions
by counsel for the state
:





[10]
She submitted that despite the heinousness of the crime the accused
has not shown any remorse for the killing of his own mother, despite
his claim that he is rehabilitated and has converted to Isam. He has
not tender any apology and he has shown a high level of arrogance and
given the defence he proffered the accused was imbued with the
responsibility of taking the court in his confidence and tell the
court what had happened. He failed to do that.





She
further submitted that not much weight should be attached to the fact
that the accused was suffering from diminished criminal
responsibility because the accused did not testify and the court does
not have evidence from the accused to weigh that up with the
psychiatric reports.





Submission
by counsel for the accused





Counsel
for the accused submitted that the evidence by the psychiatrist that
the accused was suffering from diminished criminal responsibility was
presented by expert witnesses called by the state and that evidence
remains unchallenged and the court is duty bound to take that into
account.








[11]
The court has taken into account the personal circumstances of the
accused and that at the time he committed the offence he suffered
from diminished responsibility.





The
abuse of cannabis and alcohol clearly played a role in the actions of
the accused. Dr Mtoko testified that the accused suffered from
diminished criminal responsibility when he committed the offence, but
he knew that he was killing his mother. In determining the precise
weight to be attached to the accused defence of diminished criminal
responsibility it is revealing to consider the remarks of Nugent JA
in Director of Public Prosecutors, Transvaal v Venter 2009 (1) SACR
165 (SCA)


At
para 65 where he said ‘diminished criminal responsibility is
not a pathological condition but ‘a state of mind varying in
degree that might be brought about by a variety of circumstance [such
as] the effects of alcohol and drugs, jealousy, distress,
provocation….[which ] have always been matters to be taken
account of in mitigation and concludes that nothing is altered when
these circumstance are brought together under a label’.





The
accused is a first offendender and the court takes into account that
has spent over 6 years in prison.





The
accused has not shown any remorse. More than six years have passed
since he committed the gruesome murder and he has not expressed any
remorse whatsoever. That is aggravating in my view.





[12]
The accused is the son of the deceased and in terms of the Domestic
violence Act 4 of 2003 that is a aggravating and what Smuts AJ (as he
then was) said


In
S v Bothile 2007 NR 1
137 Smut AJ is apposite
he said the
following:

















The
prevalence of domestic violence and the compelling interest of
society to combat it, evidenced by the recent legislation to the
effect, required that domestic violence should be regarded as an
aggravating factor when it came to imposing punishment. Sentences
imposed in this context, whilst taking into account the personal
circumstances of the accused and the crime, should also take into
account the important need of society to root out the evil of
domestic violence and violence against women. In doing so, these
sentences should reflect the determination of courts in Namibia to
give effect to and protect the constitutional values of the
inviolability of human dignity and equality between men and women.
The clear and unequivocal message which should resonate from the
courts in Namibia was that crimes involving domestic violence would
not be tolerated and that sentences would be appropriately severe.





In
the result, after taking into account all the relevant factors I
consider the following sentence to be appropriate.





1.
The accused is sentenced to a term of imprisonment of 40 years on
count one


2.
One month imprisonment on count two. It is ordered that the sentence
in count two will run concurrently with the sentence in count one.



























































________________________________


G
N NDAUENDAPO


JUDGE









APPEARANCES











THE STATE: Ms Moyo



Of Office Of
Prosecutor General























ACCUSED: Mr Wessels



Instructed by Legal
Aid