Court name
High Court Main Division
Case number
CC 12 of 2012
Case name
S v Hange
Media neutral citation
[2015] NAHCMD 90
Liebenberg J




Case no: CC 12/2012

DATE: 16 APRIL 2015


In the matter between:




Neutral citation: S v Hange
(CC12-2012) [2015] NAHCMD 90 16 April 2015)


Heard: 14 April 2015

Delivered: 16 April 2015

Flynote: Sentence – Murder –
Accused acting with direct intent – Accused in domestic
relationship with deceased – Personal circumstances and
interests of accused considered – Accused first offender –
Accused being in custody for period of three years and seven months
leading to reduction in sentence – Remorse – To be valid
consideration and accused must take court in his confidence –
Gravity of offence and legitimate interests of society outweigh
circumstances of accused – Custodial sentence inevitable.

Summary: The accused was convicted of
having acted with direct intent when killing the deceased with whom
he was in a domestic relationship and from which one child was born.
The accused is a first offender and maintains his mother and minor
cousin. He is 27 years of age and after cognisance was given to his
personal circumstances the court concluded that the imposition of a
custodial sentence is inevitable. The period of three years and seven
months the accused spent in custody awaiting trial will lead to a
reduction in sentence. The gravity of the offence and the legitimate
interests of society dictate that deterrence and retribution as
sentencing objectives must be emphasised and that a lengthy custodial
sentence is required. The accused sentenced to 32 years’


The accused is sentenced to 32 years’

It is further ordered that in terms of
s 34 (1)(c) of Act 51 of 1977, Exhibits ‘1’ and ‘2’
are declared forfeited to the State.



[1] The accused, currently aged 27
years, stands convicted of the offence of murder, read with the
provisions of the Combating of Domestic Violence Act, Act 4 of 2003,
in that he unlawfully caused the death of the deceased with whom he
was in a domestic relationship, as defined in the Act. Proceedings
have now reached the stage where the court must pass sentence.

[2] The accused did not give evidence
in mitigation of sentence and his personal circumstances came on
record from the Bar. The accused is single and maintains his mother,
a cousin aged 7, and his own child born from the relationship with
the deceased, now 6 years of age. The accused grew up with his uncle
and after having failed grade 10, he took up employment. At the time
of his arrest he was employed by a security company in Windhoek. The
accused instructed his counsel, Mr Ujaha, to submit on his behalf,
that he was very sorry for the loss of his girlfriend, the deceased,
something that was very painful to him. It was also submitted that
the fact that he did not mitigate in person or give evidence under
oath, should not be seen as him not taking the court into his
confidence. Counsel further prayed for mercy to be shown and for the
court not to impose a sentence that would totally break him, but
rather to give him a second chance in life and impose a partly
suspended sentence. The seriousness and prevalence of the offence is
acknowledged, though.

[3] Mr Eixab, to the contrary, argued
that the seriousness of the offence and its prevalence, considered
together with the aggravating circumstances under which it was
committed, justify the imposition of a lengthy custodial sentence.
Furthermore, whereas the accused had shown no mercy to his victim he
is not deserving of any mercy shown to him; neither did the accused
show any remorse, something he should have done shortly after
committing the offence.

[4] The unlawful killing of another is
undoubtedly a very serious crime, especially where the offender had
been acting with direct intent as the accused did in the present
instance. Whereas the court has rejected the version of the accused
that the deceased attacked him with a knife and cut his throat where
after he merely pushed her away from him, the circumstances leading
up to the death of the deceased, remain unknown. That evidence by the
accused is inconsistent with the rest of the evidence and was
rejected as improbable and not possibly true. Based on circumstantial
evidence, the court found the accused to have inflicted multiple
injuries to the body of the deceased, of which a cut wound to the
neck and blunt trauma to the head, were fatal. Other injuries to the
body, inclusive of strangulation marks on the neck, were also
present. As regards the accused, it was found that the incised wounds
to his neck were self-inflicted and as such, consequential upon an
appreciation of his guilt.

[5] What is common cause is that the
accused arrived at the house of the deceased, where after the
deceased was heard telling the accused that she was no longer
interested in a relationship with him and that he must leave. I
interpose here to remark that there is conflicting evidence as to
whether or not the deceased and accused were still in a relationship
at the time of her death, though in terms of the Combating of
Domestic Violence Act, Act 4 of 2003 they are deemed to have been in
a domestic relationship as a child had been born from this
relationship (s 3 (2)). Shortly after his arrival, cries for help
were heard coming from the house and the accused and deceased were
found locked up inside the bedroom. After the accused was persuaded
to come out of the room it was established that the deceased had
died. What is evident from the nature of the injuries is, that it was
not inflicted by means of a single stab or blow to the body, but was
caused due to multiple stabbings with a knife to the upper-body, and
the application of severe force to the head. In addition, signs of
manual strangulation were present. From the evidence presented it was
clear that the time the brother of the deceased left the house, the
door leading to the bedroom, was open, but found locked with a chain
upon his return shortly thereafter. This could only mean that the
accused prevented the deceased from escaping, where after he only
opened the door when she had died. In circumstances where the accused
had trapped the deceased inside the bedroom and made use of a lethal
weapon such as the knife used in this instance, and given the extent
of force exerted to the person of the deceased, it is clear that she,
being a woman, stood no chance to defend herself against such brutal

[6] That being the circumstances, it
places the murder of the deceased in the category of senseless
murders committed against the most vulnerable in society – an
evil and viciousness that has become the fate of too many innocent
people in our society. In this instance the deceased had the right to
terminate her love relationship with the accused without paying
dearly with her life. The effect of so-called ‘passion
killings’ on society is evident from public outcries due to the
high number of incidents reported in the media virtually every day.
Incidents where spouses and love partners in a domestic setting are
unable to sort out differences among themselves, and then become part
of statistics of horrendous murders or other crimes committed against
them. The present case is no exception of an instance where jealousy
and self-righteousness was upper-most in the mind of the accused who
simply ended the life of the deceased as of right – a right he
was never entitled to and which is enshrined in the Constitution. The
accused’s unsuccessful attempt to commit suicide by cutting his
own throat evokes little sympathy with the court because, had he
conducted himself in the first place as a civilised person, none of
this would have happened. The termination of love relationships and
even marriages, unfortunately and sadly so, is part of daily life and
how difficult it might be – for some more than for others –
the solution lies not in the taking of a life or revenge, in whatever
way. The accused has therefore not only failed his minor child by
killing his mother, he has failed society.

[7] Every law abiding citizen is
shocked to the core at the rate of murders and rapes committed in
this country, especially of defenceless women and the vulnerable in
society, and the brutality and callousness that accompany them. There
is undoubtedly wide-spread outrage against these murders in our
society to which the courts cannot simply turn a blind eye, lest
communities may start taking the law into their own hands in an
attempt to restore law and order. It is therefore imperative that
sufficient consideration be given to the indignation of interested
persons and the community at large, and be reflected in the sentences
that courts impose’ (R v Karg 1961 (1) 231 (AD)).

[8] The court fulfils the important
function of applying the law in the community and to maintain law and
order. It must further promote respect for the law which is normally
done through its decisions and the imposition of sentence. In
sentencing, the sentence imposed must reflect the seriousness of the
offence and provide just punishment for the offender, while at the
same time, taking into account his/her personal circumstances. The
feelings and requirements of the community, the need for protecting
society against the accused and other potential offenders, must
equally be considered. Though each of the elements of punishment is
deserving of consideration when it comes to sentence, they need not
be accorded equal weight, and where justified by the circumstances of
the case, one may be emphasised at the expense of others –
provided that in the end the sentence is well-balanced in the
circumstances of the case.

[9] In the present instance the accused
did not take the court into his confidence by placing the true facts
before court – instead he fabricated evidence designed to
escape justice. When afforded the opportunity to express his feelings
on oath he declined, and opted to do so through counsel. It is trite
that penitence is an important consideration at the stage of
sentence, however, in order to be a valid consideration the court
must be satisfied that the accused’s penitence is sincere and
for that, the accused must take the court fully into his confidence.
This the accused in the present instance failed to do – despite
his assertion to the contrary. He disputed during the trial the
evidence of the deceased’s mother, Priscilla, that he had
phoned her after the incident asking for her forgiveness. Other than
his assertion that he was sorry for the loss of his girlfriend, he
has shown no remorse for the pain and hardship he has caused the
family of the deceased. It seems to me that he rather sees himself as
the unfortunate victim of circumstances; hence, any feelings of
remorse the accused might harbour, loses weight due to the lack of
sincerity. Accordingly, I do not consider this to be a mitigating

[10] The accused’s acceptance of
his responsibility towards his dependants is a valid consideration
when it comes to sentencing the accused. However, the interests of
justice and society often dictate in cases involving serious crime
that the only suitable punishment is a lengthy custodial sentence. In
these cases, sympathy for the accused’s family, upon whom
unhappiness and distress has been brought through the accused’s
misdeeds, should not be allowed to deter the court from imposing the
kind of sentence dictated by the circumstances of the case. The
extent to which each of these persons would be affected by any
custodial sentence imposed, were not placed on record, from which I
infer that they will manage without any assistance from the accused.
Suffice it to say that none of them had been living in with the

[11] The accused is a first offender
who had been in custody awaiting finalisation of his trial for a
period of three years and seven months, a factor that usually leads
to a reduction in sentence, especially when the detention period is
as lengthy as in this instance (S v Kauzuu 2006 (1) NR 225 (HC)).

[12] I turn next to consider the
objectives of punishment. When regard is had to the current levels of
violence and serious crimes committed in this country, it seems
proper that, in sentencing a crime such as murder, the emphasis
should be on retribution and deterrence: deterring the accused and
other likeminded persons. It is therefore not uncommon to find that
in cases of murder, custodial sentences are generally imposed with
the emphasis on the specific and general factor. The severity of the
sentence will obviously be determined by the circumstances of the
case, which calls for the proper assessment of the accused as an
individual and the mitigating factors found in his favour, opposed to
the gravity of the offence and the legitimate expectations of

[13] Applying the aforementioned
principles to the present circumstances, it seems evident that the
mitigating factors in favour of the accused are far insufficient to
be regarded as retribution for the wrong he has done. Though mindful
that he is a first offender; employed with dependants; and awaiting
trial for a substantial period of time, sight should not be lost of
the gravity of the offence in which a young mother was brutally
killed for no apparent reason other than jealousy. Concomitant
circumstances are that the accused denied guilt and portrayed himself
as the victim throughout the trial in the face of overwhelming
evidence to the contrary; neither has he shown any remorse. Against
this backdrop I am not persuaded that this is an instance where the
accused deserves mercy and where a partly suspended sentence would be
appropriate. The interests of the accused simply do not measure up to
the gravity of the offence and the legitimate interests of society
and in order to give effect to the factors of deterrence and
retribution, the imposition of a lengthy custodial sentence becomes
inevitable. Rehabilitation is accordingly a lesser consideration
which, in the present circumstances, can only take place in prison.

[14] In the result, the accused is
sentenced to 32 years’ imprisonment.

[15] It is further ordered that in
terms of s 34 (1)(c) of Act 51 of 1977 Exhibits ‘1’ and
‘2’ are declared forfeited to the State.





Of the Office of the
Prosecutor-General, Windhoek.


Instructed by Diedericks Inc. (In
association with Nambahu Associates), Windhoek.