Court name
High Court Main Division
Case number
CC 19 of 2013

S v Marcus and Another (CC 19 of 2013) [2015] NAHCMD 177 (08 March 2015);

Media neutral citation
[2015] NAHCMD 177
Liebenberg J




Case no: CC 19/2013

DATE: 03 AUGUST 2015


In the matter between:



NO 1

NO 2

Neutral citation: S v Thomas (CC
19-2013) [2015] NAHCMD 177 (3 August 2015)


Heard: 20; 23; 28 – 29 July

Delivered: 03 August 2015

Flynote: Criminal procedure - Trial -
Mental state of accused - Provision in s 79(1)(b) of Criminal
Procedure Act 51 of 1977 that Court obliged to have at least two
psychiatrists appointed where death sentence a possibility no longer
obligatory - Court holding, however, that present case serious enough
to warrant such order.

Summary: The accused had been referred
for psychiatric observation in terms of s 77 (1) of the Criminal
Procedure Act 51 of 1977 and reported on in terms of s 79 of the Act.
The conclusion reached by the constituted panel was that the accused
is unfit to stand trial in that he suffers from a neurocognitive
disorder. In view of dissenting findings in the reports issues and
relied upon when making the finding, the evidence of three members of
the panel was heard from which the court concluded that without
neuropsychological tests the conclusion reached by the panel was
premature. There were furthermore indications that the accused might
not have been criminally responsible for his actions and it would be
prudent to also have him examined in terms of s 78 (2) of the Act.
Whereas the accused had been examined by only one psychiatrist the
court now has a discretion to invoke the provisions of s 79(1)(b) of
the Act. This will depend mainly on the seriousness of the case and
where the consequences for the accused are serious. The court found
the present circumstances to be such that it warranted an order that
the accused be re-examined by a panel of two psychiatrists.


1. It is directed in terms of ss 77 (1)
and 78 (2) of Act 51 of 1977 that in respect of Marcus Kevin Thomas
his capacity to understand court proceedings so as to make a proper
defence and his criminal responsibility be enquired into and reported
on in accordance with s 79 (1)(b) of the Act.

2. The Medical Superintendent of the
Windhoek Central Hospital is directed to constitute a different panel
to conduct the enquiry and to be reported on by a psychiatrist
appointed by him and to identify and contract the services of a
neuropsychiatrist not in full-time service of the State as provided
for in s 79 (1)(b)(ii) of the Act.

3. A copy of the evidence given by Dr
Mthoko, Ms Nangolo and Ms Balzer, together with a copy of this
judgment, to be submitted to the Medical Superintendent of the
Windhoek Central Hospital.

ACT 51 OF 1977


[1] The accused were indicted on
charges of murder; robbery with aggravating circumstances; several
contraventions under the Arms and Ammunition Act 7 of 1996; and
defeating or obstructing, or attempting to defeat or obstruct the
course of justice. They pleaded not guilty on all counts. With the
commencement of the trial on 03 November 2014 the accused persons
were not in attendance and it was brought to the court’s
attention that accused no 1 attempted to escape from the Windhoek
Central Correctional Facility, where they had been detained pending
finalisation of the trial. It was further reported that accused no 1
sustained injuries and was under medical observation, also that he
was being examined by a specialist medical practitioner.

[2] On 07 November 2014 a letter
addressed to the Office of the Prosecutor-General, purporting to be a
medical report compiled by Dr Hasheela Toivo in respect of Thomas
Marcus (hereinafter the accused unless stated otherwise), was
received into evidence by agreement (Exh ‘A’). The past
medical history of the accused in this report reflects that on 03
November 2014 he was treated at the Katutura State Hospital for mild
head injury which was sustained when he fell from a wall while trying
to escape, where after he reportedly suffered a brief episode of loss
of consciousness. He had further sustained multiple minor lacerations
over the plantar aspects of both hands which were stitched up under
local anaesthesia. Upon his return to the hospital two days later he
was complaining that he could not stand or sit for long periods; that
he had a severe headache and him paining over his whole body. He
further complained of tunnel vision.

[3] Based on the history of loss of
consciousness a CT-Scan of the brain was done which did not
demonstrate any traumatic changes or abnormalities. With regard to
the accused’s central nervous system no abnormalities were
detected and he was assessed to have sustained a mild head injury. It
was recommended that if the symptoms persisted the accused had to be
referred to a neurologist. Besides given painkillers for the
headache, he received no other medical treatment.

[4] On 07 November 2014 the accused
persons were asked to plead and after informing the court that they
understood the charges preferred against them, they pleaded not
guilty on all counts. When the trial commenced on the 11th of
November 2014 and during the testimony of the third witness for the
State, Mr van Rensburg, the erstwhile legal representative of the
accused sought an adjournment and upon their return to court the
following day, informed the court that he had received instructions
to plead guilty on all charges. However, counsel further stated that
during consultation it appeared to him that the accused did not
comprehend what counsel conveyed to him and that the facts forming
the basis on which he was willing to plead guilty, differed
substantially from his earlier instructions. Although the State
initially opposed the application to have the accused referred for
psychiatric observation, it changed course and was of the view that
in the circumstances it would be best to have the accused referred
for examination.

[5] In the light of facts presented to
court from the Bar by the accused’s legal representative
pertaining to the accused’s state of mind, considered together
with findings set out in the medical report, the court was satisfied
that a basis had been laid from which it would appear that the
accused is by reason of mental defect not capable of understanding
the proceedings so as to make a proper defence and accordingly,
directed in terms of s 77 (1) of the Criminal Procedure Act , 51 of
1977 (hereinafter the Act) that the matter be enquired into and
reported on in accordance with the provisions of s 79 of the Act.

[6] A report issued by Dr Mthoko, a
registered psychiatrist in full-time employment of the State at the
Psychiatric Department of the Windhoek Central Hospital, was handed
into evidence and reflects that the period of observation was from 10
March to 16 April 2015. The report further reads that during the
enquiry, psychiatric interviews were conducted with the accused; a
physical examination and computerised tomography (CT-scan) was done;
he was interviewed by a medical social worker and observed by ward
psychiatric nursing staff. Assessment by an occupational therapist,
Ms Balzer and a clinical psychologist, Ms Nangolo, also formed part
of the examination.

[7] For a proper understanding of the
clinical reports obtained during the examination, it seems necessary
to quote the following from the report of Dr Mthoko:

‘During observation period,
Markus Kevin Thomas had impairment in cognitive performances. He knew
who he is, but did not know the day or year. He struggled to recall
events in his life that took place prior to the crime. He struggled
to recall information that was given to him; only after a long period
of time, after much repetition did he remember something. He did not
recognise that he has memory problems. During assessment he kept on
repeating “I am not stupid, I am smart”.

Memory problems was accompanied by
slowed information processing as identified by slowed response time.
He had problems initiating problem-solving strategies. He struggled
with abstract reasoning. He had noticeable word-finding difficulty,
and had problem following instructions.

CT brain is within normal limits.’

In conclusion the constituted panel
unanimously found that the accused suffers from a neurocognitive
disorder and that he, at the time of writing the report, was not fit
to stand trial.

[8] Ms Verhoef, appearing for the
State, intimated that it would appear from reports filed by the
clinical psychologist and the occupational therapist, which reports
were relied upon when coming to the above conclusion, that the
examination in certain aspects was lacking. In view thereof the court
ordered in terms of s 77 (3) of the Act that Dr Mthoko, Ms Nangolo
and Ms Balzer, who have enquired into the mental condition of the
accused and prepared reports thereanent, be called to give oral
evidence and elucidate their respective findings.

[9] During her testimony Dr Mthoko
explained that a neurocognitive disorder is not a mental illness, but
a mental defect which, in the present instance, was caused by a
suspected head injury. The history of a head injury was provided by
the accused himself and confirmed from medical records relating to
the medical examination performed on the accused on 05 November 2014.
Dr Mthoko explained that, with a history of falling and the findings
from the assessment, she had come to the conclusion that the accused
is suffering from a neurocognitive disorder. She was further of the
opinion that this was a consequence of the fall and not something the
accused had suffered from prior thereto. The findings from the
assessment, in her view, were consistent with findings of a head
injury and added that, although the CT-scan was within normal limits
and did not show any brain injury as such, there are certain injuries
which can affect the cognitive functions which cannot be detected by
the CT-scan; therefore, it does not exclude the possibility of injury
to the brain. With regard as to whether or not the injury would only
be temporary or permanent, Dr Mthoko said that the prognosis would
depend on several future assessments and in order to say whether
there is any improvement in the condition, he should be re-assessed
one year after the injury. During this period no treatment or
medication is required as only time will tell whether or not there
has been any improvement in the accused’s mental condition.

[10] In cross-examination by the State,
Dr Mthoko was probed on the report of the clinical psychologist, Ms
Nangolo, who in conclusion of her assessment stated the following:

‘In conclusion, Marcus’
personality is within the normal reactionary range. The evaluations
conducted on Marcus, however indicated significant levels of anxiety
which he may be experiencing. There was no indication of brain
impairment noted from the test results. The only significant
correlations between the tests was with regards to his high level of

The standardized testing indicated that
his intelligence and level of reasoning fell within a normal range.
However, the clinical interviews, patient observations and clinical
impression indicated some level of deficits with regards to both
patient’s short-term and long-term memory of events. Based on
the aforementioned it is recommended that a comprehensive
neurological exam be conducted in order to establish the extent to
which the patient’s memory may be impaired.’ (My

[11] When asked whether any
consideration was given to the clinical psychologist’s
recommendation to have a neurological examination done on the accused
to establish the extent of his memory impairment, Dr Mthoko explained
that ‘He needs a neuropsychological assessment or
neuropsychiatric assessment’ but, notwithstanding, expressed
the opinion that she was unable to see what a neurologist would be
able to detect as there was no neurological deficit. As for the
availability of a neuropsychologist in Namibia she was uncertain as
to whether there is any registered neuropsychologist in Namibia. What
is evident from Dr Mthoko’s testimony is that, had a
neuropsychologist been available, she would have referred the accused
but, because such services are not available in Namibia (according to
her knowledge) the panel’s findings are based only on what they
got from their assessments. It seems to me that this was a material
shortcoming in the enquiry, particularly where both Ms Nangolo and Dr
Mthoko were of the opinion that a neuropsychological assessment was
required, though such test, according to the latter, would only have
been supplementary.

[12] Had these tests been done, it
would have established whether there was any brain damage and if so,
the extent thereof. Without these tests, as testified by Dr Mthoko,
they (she and the panel) were obliged to conclude only from the
symptoms, that the manner in which the accused presented himself
during the observation period was due to a brain injury. The accused
was assessed and found to have poor memory; a short attention span
and experienced difficulties in the comprehension and following of
instructions. When asked whether the accused, according to her
observations, was genuine in his presentation, she excluded the
possibility of malingering and said interviews with the accused
covered general issues, and not only matters relating to the charges
he is facing. The sincerity thereof, with respect, seems to me to lie
in the eyes of the beholder. According to Dr Mthoko the accused’s
memory of incidents which happened in the past is still intact, but
it takes time for him to trace that information from his memory. In
other words, he has difficulty in recalling the events. With regard
to events before the injury, Dr Mthoko further expressed the opinion
that his memory ‘is supposed to be there’.

[13] Bearing in mind the little
information about the accused’s past which could be elicited
from him during several interviews conducted by members of the panel,
this seems to militate against a finding that the accused’s
memory of events before the injury is still intact. There is also
evidence about the accused having given different versions about his
background which could possibly be explained by either him
consciously giving contradicting information in which instance he
malingers, alternatively, an unwillingness to disclose the
information, or that it is indeed due to a mental defect. He was
unable to narrate the level at school he had progress up to or the
name of the school he had been attending. Though Dr Mthoko was of the
view that the accused was not malingering, she however could not
completely rule out such possibility. In her view the accused is
currently unable to give a clear history of things that had happened
i.e. there is no flowing of information.

[14] In the light of the criminal
proceedings instituted against the accused and the seriousness of the
charges he is currently facing, it might become necessary (when found
fit to follow court proceedings), to decide whether the accused was
also criminally liable at the time he allegedly committed the said
crimes. Though the psychiatric report under consideration was only
prepared in respect of the accused’s capacity to understand
court proceedings and to make a proper defence as provided for in s
77 (1) of the Act, it seems to me that evidence about some level of
deficits with regard to both the accused’s short-term and
long-term memory of events, as was testified by the clinical
psychologist, cannot simply be ignored and the full extent thereof
must be determined in order to decide as to whether or not the
accused is fit to stand trial. In my view, this in itself, would be
sufficient reason to have the accused re-evaluated.

[15] Despite the scant information
about the accused’s past as furnished by himself, one factor
that was given considerable weight in the assessment of Ms Blazer,
the clinical psychologist, is the comparison drawn between the
accused having progressed up to university level, opposed to the way
he presented himself and was functioning during the observation
period. According to her it was not matching as he is currently
functioning at a much lower level. Because of the disparity between
the two levels, considered together with a history of falling and the
accused not showing classic symptoms of mental illness, Ms Balzer
concluded that the only explanation could be that brain damage
occurred during the fall. She further reasoned that because the
injury (‘accident’) only occurred after the crime, the
accused would be rendered accountable for his actions.

[16] What is evident from the
conclusion reached in the end by the panel is that, in the absence of
any mental illness, considerable weight was given to the manner in
which the accused now presented himself and, when compared to the
accused having had the mental capacity to attend university, it was
concluded that he must have sustained brain injury during the fall.
Without any physiological proof supporting the inference drawn, it
would appear to me that there was insufficient facts available from
which such conclusion could be drawn and, objectively viewed, that
more weight was accorded to the history of falling than what it
deserved. In my view the circumstances of the case are such that it
necessitated testing by a neuropsychologist or neuropsychiatrist to
determine the extent of a brain injury, or whether it indeed
presented itself. The need to have further tests done, in my view,
should not readily have been disposed of simply because such
specialised services are not available in Namibia. When it became
necessary to draw on professional expertise outside the borders of
this country, more should have been done to obtain same from

[17] The importance to determine
whether or not the accused is fit to stand trial cannot be
over-emphasised and more so when regard is had to the seriousness of
the crimes for which the accused is charged. The delivery of justice
should not be ham shackled by financial constraints and, given the
circumstances which presented itself during the psychiatric
evaluation of the accused, this seems to me to be an instance where
more effort should have been made to obtain the required specialised
neurological services to assist in the determination of the mental
capacity of the accused, and whether or not he is fit to stand trial.

[18] I have for the aforesaid reasons
come to the conclusion that the unanimous finding reached by the
constituted panel that the accused is not fit to stand trial was
premature, and that this conclusion could not have been reached
without the proper assessment of the accused by either a
neuropsychologist or neuropsychiatrist. In addition, whereas
according to the evidence presented, the neurocognitive disorder the
accused is alleged to suffer from is not likely to be permanent, it
would not, against this background, be in the accused’s best
interest if this court resorts to the provisions of s 77 (6) of Act
51 of 1977 and direct that he be detained in a mental hospital or
prison pending the signification of the decision of the State
President, without the assurance that he, at present or in the near
future, is indeed unfit to stand trial.

[19] In his address Mr Karuaihe
strenuously argued that the finding was unanimous and without any
evidence to the contrary having been presented to court, there was no
basis on which the court could order a re-evaluation of the accused.
For the reasons already stated herein, I find no merit in counsel’s
contention and nothing further needs to be said in this regard.

[20] Whatever the outcome of these
proceedings, it will have some bearing on the position of accused no
2. It is for that reason that Mr Kaumbi submitted that if a
re-evaluation of the accused is ordered, then this should be
finalised within a definite period of time. Though mindful that under
Article 12 (1)(b) of the Namibian Constitution the accused are
entitled, as of right, to a fair trial which must take place within a
reasonable time, the circumstances in this case, unfortunately, are
such that there could be no fair trial to either of the accused
without a proper and reliable finding as to whether or not accused no
1 is fit to stand trial, or is found liable for the crimes alleged to
have been committed by him and his co-accused. This, despite the
accused persons having been in detention since their arrest in 2011.

[21] Section 79 (1)(b) of the Act
provides for instances where the accused is charged with an offence
for which the sentence of death may be imposed, or where the court in
a particular case so directs, that the enquiry directed by the court
under s 77 (1) or 78 (2) be reported on –

(i) by the medical superintendent of a
mental hospital designated by the court, or by a psychiatrist
appointed by such medical superintendent at the request of the court;

(ii) by a psychiatrist appointed by the
court and who is not in the full-time service of the State; and

(iii) by a psychiatrist appointed by
the accused if he so wishes.

[22] In S v Hansen 1994 NR 5 (HC) at 7
C-D the court as per Strydom JP (as he then was), considered the
purview of s 79 (1)(b) after the abolishment of the death penalty by
the Namibian Constitution and stated:

‘… (T)here is no instance
where this Court is obliged to follow this procedure and this
procedure shall only be followed where this Court, for certain
reasons, may direct that it be followed. It is therefore this Court
which must decide whether to accept this report …., or on the
application of the defence, to again refer the accused for further
observation according to the provisions of s 79 (1)(b).’

And further at 7E-F:

‘(I)t seems to me that cases
where the Court will direct this procedure to be followed, will
invariably be cases where the case itself is serious and where the
consequences are serious for a particular accused.’

I respectfully endorse these

[23] What is clear from the Hansen case
is that though it might be unusual to refer an accused twice for
psychiatric observation, there may be circumstances compelling the
court to exercise its discretion to invoke the provisions of s 79
(1)(b) of the Act, by having the accused examined by two
psychiatrists instead of one, even if the accused had already been
examined and reported on by a single psychiatrist. Obviously, this
would mainly depend on the facts of each case.

[24] After due consideration of the
evidence adduced relating to the psychiatric report submitted in
respect of accused no 1, as well as the unfortunate position accused
no 2 finds himself in as a co-accused, I have come to the conclusion
that this is an instance where the court should exercise its
discretion in favour of a directive that the provisions of s 79
(1)(b) of Act 51 of 1977 must be followed. In view of evidence that
the accused is required to undergo neuropsychological tests, there
seems to be a particular need for a psychiatrist who has specialised
in that field of science. The court will then make an order to that

[25] I have already alluded to the
possibility that from the evidence presented about the accused’s
long-term memory loss, there seems to be strong indications that the
accused might also have suffered from a mental defect rendering him
incapable of appreciating the wrongfulness of his actions, or acting
in accordance with an appreciation of the wrongfulness thereof. This
would justify an expansion of the enquiry to also include an
examination in terms of s 78 (2) whereby the criminal responsibility
of the accused is assessed. The court in this regard should follow a
cautious approach and rather found to have erred on the side of
caution, if nothing material arises from the examination.

[26] In the result, the court makes the
following order:

1. It is directed in terms of ss 77 (1)
and 78 (2) of Act 51 of 1977 that in respect of Marcus Kevin Thomas
his capacity to understand court proceedings so as to make a proper
defence and his criminal responsibility be enquired into and reported
on in accordance with s 79 (1)(b) of the Act.

2. The Medical Superintendent of the
Windhoek Central Hospital is directed to constitute a different panel
to conduct the enquiry and to be reported on by a psychiatrist
appointed by him and to identify and contract the services of a
neuropsychiatrist not in full-time service of the State as provided
for in s 79 (1)(b)(ii) of the Act.

3. A copy of the evidence given by Dr
Mthoko, Ms Nangolo and Ms Balzer, together with a copy of this
judgment, to be submitted to the Medical Superintendent of the
Windhoek Central Hospital.




STATE A Verhoef

Of the Office of the
Prosecutor-General, Windhoek.

ACCUSED NO 1 M Karuaihe

Instructed by Karuaihe Legal



Instructed by Kaumbi Inc.