Court name
High Court Main Division
Case number
CC 13 of 2013
Title

S v Namweya (CC 13 of 2013) [2013] NAHCMD 333 (14 November 2013);

Media neutral citation
[2013] NAHCMD 333
Coram
Shivute J











REPORTABLE



REPUBLIC OF NAMIBIA



HIGH
COURT OF NAMIBIA MAIN DIVISION



WINDHOEK







Case No: CC 13/2013






THE STATE







Versus







TOBIAS NAMWEYA







Neutral citation: S
v Namweya
(CC 13/2013)[2013]NAHCMD 333 (14 November 2013)







Coram: SHIVUTE, J







Heard: 04 –
08 November 2013



Delivered: 14
November 2013







Fly note: Criminal
Procedure - Evidence- Failure by accused to testify – Accused
not under obligation to testify in his defence – State led
direct incriminating evidence against accused - Not appropriate case
for accused to safely opt to exercise his right to remain silent –
Incriminating State evidence – Calling for an answer –
Failure to answer in the face of the weight of uncontradicted
evidence – Court may safely conclude that such evidence -
conclusive to warrant conviction.




Summary: Criminal
Procedure – Evidence – Failure by accused to testify in
his defence – Although the accused is not under any obligation
to testify in his defence, the State had led direct evidence
incriminating the accused. This is not an appropriate case where the
accused can safely opt to exercise his right to remain silent.
Incriminating State evidence calls for an answer from the accused.
Failure to answer in the face of the weight of such uncontradicted
evidence the Court may safely conclude that such evidence is
conclusive to warrant the accused's conviction.







Fly note: Criminal
law - Assault with intent to do grievous bodily harm – Nature
of harm not necessarily important – For the crime is not actual
causing grievous bodily harm - Essential element – Intention to
cause grievous bodily harm.







Summary: Criminal Law
– Assault with intent to do grievous bodily harm- Nature of
harm is not necessarily important – for the crime is not actual
causing grievous bodily harm. The essential element is the intention
to cause serious injuries and not the actual injuries that had been
caused.






VERDICT










1st
Count: Guilty of murder with direct intent.



2nd
Count: Guilty of assault with intent to do grievous bodily harm, read
with the provisions of the Combating of Domestic Violence Act 4 of
2003.



3rd
Count: Guilty of assault with intent to do grievous bodily harm.









JUDGMENT













SHIVUTE J:







[1] The accused appeared
before me on an indictment containing one count of murder and two
counts of assault with intent to do grievous bodily harm.



In respect of the 1st
Count, namely Murder, the State alleges that on 20 September 2009 at
Okahandja Park in the district of Windhoek the accused did unlawfully
and intentionally kill Monika Wilhelm, an adult female (the
deceased).



In relation to the 2nd
Count, Assault with intent to do grievous bodily harm read with the
Combating of Domestic Violence Act 4 of 2003, it is alleged that on 9
September 2009 at Okahandja Park in the district of Windhoek the
accused did unlawfully and intentionally assault Peneyambeko Nangula
Tobias by beating her with fists in her face or hitting her with a
stone on her head and body, pulling out her hair with intent to do
the said Peneyambeko Nangula Tobias grievous bodily harm.



The particulars of the
3rd Count, Assault with intent to do grievous bodily harm,
are that on 9 September 2009 at Okahandja Park, in the district of
Windhoek the accused did unlawfully and intentionally assault Monika
Wilhelm by beating her with fists and/or a stone in the face and over
her body with intent to do the said Monika Wilhelm grievous bodily
harm.



[2] The accused pleaded
not guilty to all charges. Mr Eixab appeared for the State and Mr
Mbaeva appeared for the accused on the instructions of the
Directorate of Legal Aid.



[3] The State’s
case can be summarised as follows:



Wilhelmina Kaimbi a
community leader and activist of Okahandja Park in the district of
Windhoek testified that on 9 September 2009 she was approached by the
deceased who reported to her that she and Peneyambeko Nangula Tobias
were assaulted by the accused. The deceased wanted the witness to
take her to the hospital. The witness observed injuries on the head
and upper lip of the deceased and she was bleeding. The deceased was
frightened.



[4] On 10 September 2009
the witness met with Peneyambeko Nangula Tobias. She observed
injuries on her head and a swollen eye. Ms Tobias reported to her
that she and the deceased were assaulted by the accused and he also
threatened to kill them.



[5] Ms Kaimbi continued
to tell the Court that on 20 September 2009 she received a phone call
that the deceased had been killed. Upon receiving the information,
she went to the scene of crime and observed the deceased lying
already dead and the accused locked up in a police van.



[6] Gotlieb Matheus
Shangeshapwako testified that the deceased in this matter was his
wife and she was staying with him at Okahandja Park. On 9 September
2009 at around 16h00 whilst he was sleeping at home his nephew Dan
Mwatinghimunhu Mwanyekange woke him up and reported to him that his
wife was assaulted by the accused. Shortly afterwards the deceased
came to the room. She was bleeding. She sustained injuries on the
left side of her head and the face as well as on the upper lip. When
he went outside the room, he saw Ms Tobias crying and she had a wound
on her head that was bleeding. The witness took the deceased and Ms
Tobias to Katutura Hospital. Both ladies had their wounds stitched
and they were told to go for regular dressing. After the witness came
back from the hospital with the two victims, the accused came to the
witness’ house and he was aggressive. The witness demanded the
money he spent to take the two victims to the hospital from the
accused but instead the accused threatened to assault him. The
witness ordered the accused to leave his house and the accused left.



[7] The witness
continued to testify that on 20 September 2009 whilst he was at work
around 16h00 he received a telephone call from his neighbour
informing him that the deceased was killed. However, in the morning
before the deceased was killed she telephoned the witness and
reported that the accused was threatening to kill her.



[8] Dan Mwatinghimunhu
Mwanyekange testified that he is a resident of Okahandja Park. He has
known the accused as an ex-boyfriend of Ms Tobias. On 9 September
2009 whilst he was at home he heard a commotion going on outside. He
checked and observed people fighting at Ms Tobias' place. When he
went outside he found the deceased bleeding from the head. The
accused was walking away. Ms Tobias was also bleeding. The witness
took some bandages and covered the injuries on the deceased’s
head. The deceased had injuries on the head and on the upper lip.
She was in pain because she was crying. Since it was time for the
witness to go to work, he reported the incident to his uncle, the
deceased’s husband, who was sleeping inside the house.



[9] On 20 September 2009
whilst the witness was at work, he received a telephone call from the
deceased who reported to him that the accused was making death
threats towards her.



[10] Peneyambeko Nangula
Tobias testified that she was a girlfriend to the accused. However,
by 9 September 2009 she had already ceased to be his girlfriend. On
9 September 2009 the accused came to her house. The witness inquired
from the accused why he kept on coming to her house if the accused
had already told her that he did not love her anymore and that their
relationship had ended. The accused threatened the witness by saying
that he would not let her live on this earth; that he would beat her
and kill her. Whilst the accused was still at the witness’
house the deceased came and the witness reported to the deceased what
had transpired. The witness told the accused that she also did not
want him anymore. It was at that stage that the accused slapped the
witness on her face. The deceased told the accused not to assault the
witness.



[11] The accused turned
onto the deceased. The witness closed the door because at that stage
the accused and the deceased were at the entrance of the house.
Whilst the witness was in the room she heard people shouting that the
deceased had fallen down. The witness went outside and found the
deceased lying on the ground bleeding from the head and around the
mouth. The accused turned towards the witness, pulled her hair and
beat her with a stone which he used to assault the deceased. The
accused did not throw the stone at her. Instead, he was holding it in
his hand whilst he was assaulting her. The stone was as big as the
accused’s palm of his hand. The witness was assaulted on her
head and on the right side of her cheek. She was bleeding. She and
the deceased were taken to the hospital by the deceased’s
husband and both received stitches and used to go for dressing at the
clinic. After the deceased, her husband and the witness returned
from the hospital, the accused came to the deceased’s place.
The deceased’s husband asked for the money he used to take the
two victims to the hospital, but the accused threatened to assault
the deceased’s husband the way he, the accused, assaulted the
deceased and the witness. The accused was aggressive. In the morning
of 20 September 2009, the witness told the deceased that they should
go and hide because the accused had been threatening to kill her and
the deceased. The witness went to hide. At the time the deceased was
killed she was not present.



[12] Kaino Wilhelmina
Shipingana testified that on 20 September 2009 in the afternoon she
was at the deceased’s house celebrating the deceased’s
birthday. Whilst there, the accused whom she had known before this
incident arrived at the deceased’s house. The accused asked
the deceased where Nangula Peneyambeko Tobias was. The deceased told
the accused that she did not know where Ms Tobias was. The accused
walked towards the deceased, drew a big knife from his jacket and
told the deceased that he was going to kill her. At that stage the
deceased was seated. The accused stabbed the deceased several times
with that knife on the chest and her back. Whilst the accused was
stabbing the deceased, she did nothing apart from blocking the knife
with her arms. After the accused stabbed the deceased, he licked the
blood from the blade of the knife and walked away smiling. After the
accused walked away, the witness saw witness Laban Neshuku following
the accused. It was put to the witness in cross-examination that the
accused did not lick the knife as he was not a cannibal. The witness
maintained that she saw the accused licking blood from the knife. It
was further put to the witness that the witness was in a state of
shock and she could not have looked at his face. The witness was
adamant that she saw the accused. She knew the accused before this
incident as she used to see him walking around the location and the
accused knew her.



[13] Laban Neshuku, a
police officer in the Namibian Police Force, testified that the
deceased was his neighbour. He also knew the accused by seeing him in
their residential area. On 19 September 2009 the witness was
approached by the deceased and Ms Tobias who requested him to protect
them because they were assaulted by the accused and the accused was
still making death threats towards them. The witness stayed with the
two women until the time he escorted them to the deceased’s
place and told them to lock whilst inside the house. The witness
reported the matter to a Warrant Officer Haipinge.



[14] The following day
the witness went to the deceased’s house to see how they were
doing. The witness stayed with the deceased and Ms Tobias on 20
September 2009 until the afternoon when the witness went to watch
television. In the afternoon before the witness went to watch
television, he saw the accused walking around the location but he was
very far from him. Around 17h00 Ms Tobias left them. Whilst the
witness was watching television, he was informed by a neighbour, one
Shakuno, that the accused was busy stabbing the deceased. The witness
went outside and saw the deceased on her way to his (witness’)
house. The accused was busy inflicting the last stab wound on her
back. The witness only observed the accused stabbing the deceased
once on her back and she fell down near the witness’ house.
After the accused stabbed the deceased on her back he stuck the knife
into the ground and walked away. The witness went back to his house
to collect his service firearm and handcuffs in order to arrest the
accused. He followed the accused and told him to stop and surrender
the knife that he was carrying but the accused did not comply with
the order. The witness fired warning shots but still the accused did
not comply. Eventually the witness grabbed the accused, disarmed him
of the knife and managed to arrest him. After the accused’s
arrest he was taken back to the scene. They found the deceased
already dead. The witness identified Exhibit “1” as the
knife that was used to stab the deceased and recovered from the
accused. At the time the witness was following the accused he never
lost sight of him.



[15] Kornelia Fotolela
Hangula testified that she knew the accused as well as the deceased
because they were staying in the same location. The witness further
testified that during September 2009 she was approached by the
deceased who was bleeding from the head and had a swollen eye and
reported to her that she was assaulted by the accused. The deceased
came to report to the witness because the witness is a community
leader. The witness took the deceased to the police station and left
her there. On 20 September 2009 she saw the accused walking waving a
knife and he was walking backwards. Members of the community were
following him and he was telling them that whoever wanted to die
should come and apprehend him. The witness also saw the deceased
lying in a pool of blood motionless and some people who were crying.
The witness called the police. When the police arrived they found the
accused already apprehended by police officer Neshuku.



[16] It was put to the
witness that she was mistaken about the accused’s identity and
that it was not the accused she saw. The witness replied that she
could not be mistaken about the accused’s identity because the
accused was her good friend. At one stage the accused assaulted one
Peneyambeko, a different person from Ms Tobias and accused went to
hide at the witness' house.



[17] Gothardt Gaseb
testified that during 2009 he was a police officer and on 20
September 2009 he was on duty. Whilst on duty, he received a report
of murder at Okahandja Park. Upon the report, he drove to the scene
of crime. He found a female body lying in a pool of blood. He was
given a knife that was used to kill the deceased and booked it in as
an exhibit. The witness identified Exhibit “1” as the
knife he was given at the scene of crime.



[18] Doctor Yuri Vasin
explained the post-mortem report that was conducted by Doctor Estrada
who had since returned to his country of origin. According to the
post-mortem examination, the chief post-mortem findings were as
follows:



Cutting and perforating
wound; perforation of right anicle and left inferior lung lobe;
hemothorax of 600ml; pale liver and kidneys.



The cause of death was a
stab wound on the chest. The post-mortem report was produced in
evidence as an exhibit. In total the deceased sustained seven stab
wounds. The doctor who conducted a post-mortem examination had also
observed an old wound that was healing on the deceased’s head
and a small left parietal subjugalal haemorrhagic infiltrate that was
2 x 1cm on the deceased’s head as well.



[19] The state submitted
the following documents with the consent of the defence namely:



(a) An affidavit in terms
of s 212 (7) Act 51 of 1977 by Warrant Officer Alfred Obed Haraseb
indicating that he is the one who removed the deceased’s body
from the scene of crime to the mortuary. On 21 September 2009 he
identified the body to the doctor who performed the post-mortem
examination. He further stated that the body did not suffer further
injuries from the scene of crime to the mortuary. The affidavit was
marked as Exhibit “C”.



(b) A medical report in
respect of Peneyambeko Tobias marked as Exhibit “D”.
According to Peneyambeko Tobias’s medical report, she had a
laceration below the eye and a laceration at the back of her head.



That was the summary of
the State case.



[20] The accused person
exercised his right to remain silent. He called no witnesses and
closed his case.



[21] Counsel for the
State argued that with regard to the first count of murder it is
clear that the deceased died as a result of stab wounds that were
inflicted on her body. During the trial the defence raised the issue
of mistaken identity of a person who inflicted those stab wounds on
the deceased. The eye witness Shipingana who was with the deceased
testified that it was the accused who stabbed the deceased to death.
Her evidence was corroborated by police officer Neshuku who witnessed
the accused inflicting a stab wound on the deceased’s back.
Neshuku arrested the accused and retrieved the knife that was used to
stab the deceased. Kornelia Fotolela Hangula also saw the deceased
lying in a pool of blood and at the same time she saw the accused
waving the knife. She further testified that she could not be
mistaken about the accused’s identity. Although the evidence
regarding the identity of the accused should be approached with
caution, counsel for the State argued that the identity was not an
issue in this matter. Counsel further argued that the accused had
threatened to kill the deceased before the incident and when he
stabbed her to death he first told her that he was going to kill her.
Therefore, the court should convict the accused as charged because he
had the required intention which is direct intent.



[22] With regard to the
two counts of assault with intent to do grievous bodily harm, counsel
argued that the state had proved its case beyond all reasonable
doubt. The post-mortem report showed that when the doctor conducted
a post-mortem examination on the deceased’s body he observed a
wound that was in the process of healing on the deceased’s
head. Counsel argued that the accused had the intent to cause
serious injuries on the two women. This can be inferred from the type
of weapon used.



[23] Counsel for the
State criticised the accused for having decided to remain silent in
the face of the evidence led by the State establishing a prima
facie
case. Counsel contended that in the absence of the evidence
contradicting the evidence of the State witnesses, the State case
becomes conclusive. Counsel submitted that the State had proved its
case beyond all reasonable doubt in respect of all counts and the
court should find the accused guilty as charged. Counsel referred me
to the matter of S v Katari 2006 (1) NR 205 which states as follows
of which I have taken into consideration:



''When
the state has established a prima facie case against an accused which
remains uncontradicted, the Court may, unless the accused's silence
is reasonably explicable on other grounds, in appropriate
circumstances conclude that the prima facie evidence has become
conclusive of his or her guilt.''



[24] On the other hand,
counsel for the defence argued that the State had failed to prove the
charges against the accused. Concerning the second count of assault
with intent to do grievous bodily harm, counsel contended that the
doctor did not explain the extent of the injuries sustained although
there were allegations that the complainant was bleeding. The stone
that was allegedly used was not produced in court. In respect of the
third count, counsel argued that the doctor testified that there were
minor injuries on the deceased’s head. In the absence of the
stone that was used, counsel submitted that the accused person can
only be convicted of common assault. Counsel argued that there has
been a mistaken identity as it was not the accused who committed the
three counts. He criticised the testimony of Shipingana who said the
deceased fell at her house that was contradicted by the testimony of
Neshuku that the deceased fell near Neshuku’s yard. According
to counsel these are material contradictions. Furthermore, counsel
argued that the accused did not lick the blood from the blade of the
knife as was alleged by Shipingana. If Shipingana saw the accused
licking the blood from the knife’s blade why was he not seen by
Neshuku? Instead Neshuku saw the accused stabbing the knife on the
ground. Because the two witnesses who alleged to have been at the
scene of crime did not see the same thing it cannot be said without
doubt that it was the accused who inflicted the injuries on the
deceased. Furthermore, counsel argued that the fact that the accused
was seen with a knife did not necessarily mean that the accused was
the person who killed the deceased. Counsel argued that after all no
fingerprints were lifted from the knife and no identification parade
was held. Because of the aforesaid arguments counsel urged the court
not to convict the accused as the State had allegedly failed to prove
its case beyond a reasonable doubt.



[25] That the deceased
was killed with a knife is not an issue. The issues for determination
is whether the State had proved beyond reasonable doubt that it was
the accused who killed the deceased on 20 September 2009 and whether
he has also assaulted the deceased and Ms Tobias on 9 September 2009.
Furthermore, if it is found that the accused has assaulted Ms Tobias
and the deceased, the court should also resolve whether the accused
did so with the intention to cause grievous bodily harm to the
persons.



[26] When the deceased
was attacked by her killer there was an eye witness Ms Shipingana who
described how the deceased was stabbed with a knife several times.
Before the assailant attacked her he told her that he was going to
kill her. Ms Shipingana testified that the person who stabbed the
deceased with a knife was the accused. It was not her first time to
see the accused; she knew him before this incident. Her evidence was
corroborated by the testimony of Mr Neshuku who saw the accused
effecting his last stab on the deceased’s back. Apart from the
evidence of the two witnesses, the accused was seen by Ms Hangula at
the scene waving a knife. Neshuku effected an arrest on the accused
and confiscated the murder weapon from the accused immediately after
the fatal assault on the deceased. All these witnesses knew the
accused before this incident. Ms Hangula testified that it was
impossible for her to be mistaken about the accused’s identity
because the accused was her good friend who even spent a night at her
house when he was hiding after he had assaulted a certain woman who
is not involved in this case. The accused was known by the witnesses.
Therefore, there was no issue of mistaken identity and it follows
that there was no need to hold an identification parade. Counsel for
the defence argued that Shipingana and Neshuku’s testimonies
should not be believed, because they allegedly contradicted each
other concerning the point where the deceased fell down after she was
stabbed. Neshuku’s evidence was collaborated by the testimony
of Hangula that the deceased fell down at Neshuku’s place. It
is therefore my finding that Shipingana could have been mistaken as
to the point where the deceased fell down as she testified that she
was very much terrified when she saw the deceased being stabbed.
Furthermore, I do not agree with counsel for the defence’s
argument that the contradictions he pointed out were material. Where
the deceased fell after she was stabbed is certainly not at all
material to the determination of the real issues I have identified
above.



[27] Although the accused
is not obliged to give evidence, I am of the view that this is not an
appropriate case where the accused can safely opt to exercise his
right to remain silent. Direct evidence had been led that
incriminated the accused and this evidence calls for an answer. There
was no evidence placed before me contradicting the version of the
State apart from counsel for the defence putting questions to the
State witnesses that they were mistaken about the identity of the
person who committed the crimes and the bold denial that it was not
the accused who committed these offences. However, the State refuted
this bare denial with credible evidence. In the face of the weight of
such direct evidence that has not been contradicted, the Court may
safely conclude that such evidence is conclusive to warrant the
accused’s conviction. I am therefore satisfied that it was the
accused who stabbed the deceased to death. The accused had stabbed
the deceased for no apparent reason. He directed most of the injuries
on the vulnerable part of the body namely the chest. The accused
inflicted seven stab wounds with a lethal weapon. Before the accused
inflicted the injuries on the deceased, he declared his intention to
kill the deceased and he indeed executed his intention and this
rendered him to be guilty of murder with direct intent. I convict him
as charged on the first count.



[28] As for the two
counts of assault with intent to do grievous bodily harm, both the
deceased and Ms Tobias were assaulted with a stone by the accused.
There was no mistaken identity concerning the culprit because the
accused was well known by Ms Tobias as they had an intimate
relationship that had ended before these incidents and it is clear
from the evidence that their relationship was the root cause of these
incidents. I am therefore satisfied that there is no way Ms Tobias
can be mistaken about the accused’s identity. All the injuries
inflicted on Ms Tobias and the deceased were directed on their heads
and around their faces. Both women were bleeding and they both
sustained swollen eyes. When the doctor was conducting a post-mortem
report an old wound that was in the process of healing was observed
although the post-mortem examination was conducted 11 days after the
initial assault. This is an indication that the deceased suffered
serious injuries when she was assaulted by the accused. The accused
had threatened to kill Ms Tobias before he assaulted her by telling
her that he would beat her up and he would not allow her to live on
this earth. Although Ms Tobias suffered lacerations below the eye
and at the back of her head, for the court to determine the accused’s
intention when he assaulted his victims the court has to infer it
from the circumstances of the assault which include the following:



(i) The instrument used
to inflict the injuries;



(ii) The part of the
body on which those injuries were directed;



(iii) The application of
force in the assault, and



(iv) The
nature of injuries.



The nature of the
injuries suffered may be taken into account but the nature of harm is
not necessarily important for the crime is not actual causing
grievous bodily harm but the essential element is the intention to
cause grievous bodily harm. Even slight injuries could constitute an
assault with intent to do grievous bodily harm. What the state needs
to prove is the intention to cause serious injuries and not the
actual injuries that had been caused.



[29] Having considered
the nature of weapon used, the application of force, parts of the
bodies on which the injuries were directed, I am satisfied that it
was the accused’s intention to cause grievous harm to the
deceased and Ms Tobias when he assaulted them. The state has proved
its case beyond a reasonable doubt in respect of the second and third
counts and the accused is convicted accordingly.



[30] In the result the
accused is found guilty as follows:



1st
Count: Guilty of murder with direct intent.



2nd
Count: Guilty of assault with intent to do grievous bodily harm read
with the provisions of the Combating of Domestic Violence Act 4 of
2003.



3rd
Count: Guilty of assault with intent to do grievous bodily harm.























----------------------------------



N N Shivute



Judge











































































































































































APPEARANCES







STATE :
Mr Eixab



Office of the
Prosecutor-General







ACCUSED: Mr
Mbaeva



Instructed by
Directorate of Legal Aid