STATE vs POSTRICK
& 4 OTHER
attempted murder and assault. Accused members of Nampol attached to
Crime Prevention Unit along Zambezi river.
pleas of jurisdiction raised. (1) Court does net have jurisdiction to
hear and adjudicate the murder count as the state could not prove
beyond reasonable doubt where the deceased was killed.
that in respect of murder that in the light of the prosecution's
failure to prove where the harmful effect or consequence was felt and
murder being a result crime this Court had no jurisdiction in respect
of the murder charge.
This Court had no jurisdiction to hear and adjudicate the
murder count -Shots fired when complainant already
Zambia side. Submitted
only Zambian Court had
Substantial, if not all elements of attempted murder occurred within
Namibian borders, but effect felt in Zambia as the State of alarm
occurred there. Therefore, this Court had jurisdiction to hear and
adjudicate upon the charge of attempted murder, albeit concurrent.
in respect of an attempt to commit murder that the substantial
elements thereof were completed within the Namibian boundaries
notwithstanding that the harmful effects were felt across the border,
this Court has jurisdiction albeit concurrent.
Accused acted recklessly by firing at or in the vicinity of the canoe
in breach of the specific precautionary or safety instructions issued
relied on provisions of Section 49 of CPA 51/77
Accused fired recklessly at or in vicinity of
canoe. Therefore attempted to kill the complainant. Actual
intent was to effect an arrest of fleeing complainant. - indemnified
by Section 49(1) possibly (2)
charge - negligent handling of firearm i.t.o. Section 39(1)(j) of Act
75/69 - Held:
Acted lawfully in the execution of their duties thus did not
negligently use or handle the firearms.
NO. CC 64/94
THE HIGH COURT OF NAMIBIA
the matter between
The 5 accused, Postrick Mwinga 34 years; Richard Sibiho 35 years;
Brian Nyoka Salushando 55 years; Clement Nchindo 42 years, and
Boniface Simasiku 34 years, all male persons and of Namibian
Nationality, were initially charged with 4 counts to wit one of
in that on or about 9 July 1992 and at or near Katima Mulilo in the
district of Eastern Caprivi the accused unlawfully and intentionally
killed Mufalo Sikwibele, a male person; one of attempted
alternatively contravening section 39(1) (j) of Act 75 of 1969
(negligent handling of fire-arm) , in that in
of the main count, on or about 9 July 1992 and at or near Katima
Mulilo in the district of Eastern Caprivi the accused unlawfully and
intentionally attempted to kill Samutumwa Samutumwa by shooting at
him with fire-arms, and in respect of the alternative count that the
accused unlawfully did by the negligent use, handling or placement of
fire-arms, injure another person or expose the life or limb of such
person to wit Samutumwa Samutumwa to danger; and two counts of
assault in that on or about 9 July 1992 and at or near Katima Mulilo
in the district of Eastern Caprivi the accused did wrongfully and
unlawfully assault Deric Musiba Lusitani in respect of count 3
Cletius Namaya in respect of count 4 both male persons by beating
them with an oar and hitting them with a rubber cane.
the accused pleaded not guilty to all the charges Mr Heathcote who
appeared for them raised a special plea of jurisdiction to the charge
sheet as amplified by
the State's Further Particulars in respect of count 1 in that
"whereas the State does not know whether the bullets struck the
deceased on the Namibian or Zambian side of the river and the
allegation that the deceased died in Zambia, the High Court of
Namibia does not have jurisdiction to hear and adjudicate the murder
count and/or that the murder count does not disclose an offence."
This point _in limine
was opposed by
Miss Winson for the prosecution. Nonetheless, the point was upheld on
the basis of the underlying principle that this Court has no
extra-territorial jurisdiction conferred upon it either by
statute or the common law to hear a murder case committed
of Namibia or like in the instant matter where the prosecution cannot
prove where the harmful effect or consequence was felt, i.e. where
the bullet struck the deceased and the death occurred.
a close study of some of the relevant authorities on this point, I am
of the opinion that this Court "... may exercise jurisdiction
where either the substantial elements of the offence or the harmful
effect thereof occurred within its territorial boundaries" like
in cases of attempted murder and murder respectively.
it is appreciated that territorial jurisdiction over a 'result crime'
does not depend on acts done by the offender in England but on
consequences which he causes to occur in England, I see no ground for
holding that an attempt to commit a crime which, if the attempt
succeeded, would be justifiable in England, does not also fall within
the jurisdiction of the English Courts, notwithstanding that the
physical acts intended to produce the proscribed consequences in
England were all of them done abroad." See S
1985(1) SALR 556 at 560 etc.
the converse is also applicable where in respect of an attempt to
commit murder the substantial elements thereof were completed within
the Namibian boundaries notwithstanding that the harmful effects were
felt across the border, this Court will have jurisdiction, albeit
concurrent. Murder is a 'result crime' as opposed to theft
is a continuous crime. To commit murder apart from the other
essential elements one must manifest the intent into the deceased's
death. Compare S
633 at 637.
was unable to find nor was I referred to any treaty between Namibia
and Zambia conferring jurisdiction upon this Court to hear a murder
charge committed across the Namibian Borders within Zambia, or in
instances where there exists geographical limitation on where the
described conduct of the offender takes place or where its harmful
consequences take effect. In the light of the enormous practical
legal implications involved and problems encountered in
cross-river-border crimes, especially murder as evident from this
case and those which served before this Court in the past, I
consider that it would require to be enacted by Parliament to confer
jurisdiction, albeit concurrent on this Court in the interest of
justice in so far as not to negate the objective of criminal law in
protecting the public and punishing the wrong-doer(s) and so
hopefully, prevent criminals from, literally getting away with
murder in similar situations. In the absence of a Namibian Supreme
Court decision or directives in this regard, I urge the Namibian
Parliament to make use of its plenary power to empower this Court to
hear and adjudicate upon, for example murder, etc committed in
circumstances similar to those in this matter.
Winson applied for leave to substitute count 1
another one to wit, attempted murder in that on or about 9
1992 and at or near Katima Mulilo in the District of Eastern
Caprivi, the accused unlawfully and intentionally attempted to kill
Mufalo Sikwibele a male person, by shooting at him with fire-arms.
This substitution was allowed as sought but on account of some
oversight this charge was not put to the accused and they did not
plead to it.
Winson nevertheless submitted that a conviction of attempted murder
was a competent verdict to a charge of murder and on the strength of
that this Court may entertain the charge although it was not put to
the accused and they did not plead to it. I do not agree with this
submission. I ruled that this Court had no jurisdiction to hear and
adjudicate upon the murder charge. The effect thereof was that the
murder charge was quashed. Consequently there was no murder charge
against the accused before me. The substituted charge of attempted
murder was not put to the accused and they did not plead to it. The
effect thereof was that the accused were not properly arraigned on
this charge and consequently it was not part of the lis
before me. It follows then that no competent verdict can follow from
a charge which does not exist or which was not before the Court.
Therefore I cannot hear or adjudicate upon it, as it fell away. In
any event my finding in respect of the attempted substituted charge
of attempted murder does not have the effect that the accused are
found not guilty and it is thus open to the prosecution to, as it
were, re-charge the accused in a proper manner.
now proceed to deal with the second count of attempted murder upon
Samutumwa Samutumwa as well as the alternative charge.
evidence led by the prosecution shows that the accused were members
of Nampol and officers of a Crime Prevention Unit tasked to combat
crime along the Zambezi river on the Namibian side.
complainant, Samutumwa Samutumwa testified that on that particular
day in question he ferried the two complainants in counts 3 and 4,
Lusitani and Namaya respectively in his canoe illegally across the
Zambezi river and off-loaded them on the Namibian bank.
his way back and while on the Zambian side of the river he heard
persons calling him back, shouting "Come back, come back,"
whereupon shots were fired upon the canoe. The complainant was at
that stage with his friend Mufalo Sikwibele, the deceased in the
murder charge which was quashed. Upon hearing the shots the two of
hem took cover by lying down in the canoe. The canoe was hit by
bullets and his friend Sikwibele was hit on the forehead and died as
a result thereof. According to the witness some of the bullets hit
the river bank on the Zambian side which caused the people to flee
for cover. The complainant is in some respects corroborated by
Cletius Namaya, complainant in count 4.
witness' brother, Obby Samutumwa testified that on the
and time in question he was standing on the riverbank on the Zambian
side when he saw a group of persons on the riverbank on the Namibian
side. He observed how one group of these persons beat the two
persons taken across by his brother and the other group shooting at
his brother's canoe. According to him the shots were fired when the
canoe was on the Zambian side of the river.
Smith of Nampol was the Commander of the Crime Prevention Unit to
which the accused belonged. He told the Court that on the day in
question the accused were on border patrol along the Zambezi river.
According to him the accused had specific instructions not to shoot
warning shots in the air for fear of hitting people on the other
side of the river or to shoot in the vicinity of a canoe or boat,
also for fear of ricochetting bullets hitting the person(s) therein,
but to shoot in the water in their immediate vicinity.
to Inspector Kaundu who was also a Commander of the accused and the
investigating officer, D/W/O Mulimina, both of Nampol, the
accused after initial denials, admitted to them that accused 2
to 5 fired but could not tell who fired at the canoe.
to Inspector Kaundu all four magazines issued to the four accused on
that particular day had some rounds in them missing. This
corroborates the fact that accused no. 2 to 5 indeed fired with
their rifles on the day in question. In the light of this and on
the conspectus of the evidence only one reasonable inference can be
drawn namely that the four accused fired with their rifles at the
river at or in the vicinity of the canoe as described by the eye
witnesses. This conclusion is strengthened by the fact that one or
more bullets hit the boat of which one hit and killed the person,
Sikwibele, who was in the canoe with Samutumwa Samutumwa.
State witnesses made a good impression on me and gave their evidence
in a frank and candid manner. I have no perceivable reason to doubt
the veracity of their story and none was pointed out to me. I
therefore accept their versions as the truth of what transpired at
the riverbank and at the police station as testified to by all the
witnesses respectively. The discrepancies in their evidence
especially between Obby Samutumwa and Namaya as to what the accused
did at the time of the assault and shooting at the riverbank is not
material and of no consequence.
now proceed to consider the question whether or not the accused are
guilty of the crimes charged in respect of the second count, and if
so on what basis.
leaves no doubt in my mind that the accused's actual intention was
to effect an arrest of the persons who were illegally crossing the
border in the canoe and not to kill them. But that is not the end of
the matter. The accused are charged on the basis that they acted
with a common purpose.
evidence has shown that in their pursuit to effect an arrest the
accused were all present at the river; four of them no's 2 to 5
opened fire with their rifles at or in the vicinity of the canoe
containing the complainant Samutumwa Samutumwa, contrary to specific
safeguarding instructions and thus made common purpose by actually
firing in the manner they did and so associated themselves with the
unlawful conduct of being reckless as to whether or not their
actions may have fatal consequences.
the position of accused no. 1 is different. Though
he was the
leader of the accused he was not armed and thus
participate in the actual shooting. There is no
evidence that he
associated himself with the reckless
shooting by giving the order
to open fire. The fact that he
lied about the shooting to his
superiors is non
his guilt in respect of the shooting. It can be seen as
attempt to protect his fellow officers. In
it cannot be said that he formed common purpose with those who
opened fire at the time or ex
1989(1) SA 687 (AD).
the common law, the four accused who opened fire can be held liable
for attempted murder even if the complainant was uninjured. By
firing at or in the vicinity of the canoe in breach of the specific
precautionary or safety instructions issued to them the accused did
an act in furtherance of the legal intent,
namely that of recklessness. All the substantial elements of
the crime of attempted murder were completed on the Namibian side.
In the circumstances the prosecution succeeded beyond reasonable
doubt in proving that the four accused acted recklessly and thus
attempted to kill the complainant.
Burchell and Hunt, SA Criminal Law and Procedure, 1983 Vol 1 p.456.
Heathcote submitted that in the event of a finding that the accused
acted recklessly and therefore attempted to kill the complainant
then the accused rely on the provisions of section 49 of the
Criminal Procedure Act 51/77, which provides as follows:
If any person authorised under this Act to arrest or to
assist in arresting another, attempts to arrest such
person and such person -
this attempt and cannot be arrested without the application of
when it is clear that an attempt to arrest him is being made, or
resists such attempt and flees,
person so authorized may, in order to effect the arrest, use such
force as may in the circumstances be reasonably necessary to
overcome the resistance or to prevent the person concerned from
Where the person concerned is to be arrested for
offence referred to in Schedule 1 or is to be arrested on the ground
that he is reasonably suspected of having committed such an offence,
and the person authorized under this Act to arrest or to assist in
arresting him cannot arrest him or prevent him from fleeing by other
means than by killing him, the killing shall be deemed to be
defence in terms of section 49 was neither raised by the accused at
the beginning of nor during the trial, but during counsel's
argument. In the premises, Miss Winson submitted that the accused
could not rely on the indemnity provided by this section. I cannot
agree with this submission, because in my opinion, such an approach
would be a simplistic or formalistic view of the protection afforded
by section 49.
instances where the accused fails, to raise self defence, but the
evidence led proves that the accused acted in legitimate
self-defence or justifiable homicide, surely the Court is entitled
to bring out a finding in favour of the accused. The failure of an
accused person to raise a defence when he may fairly be expected to
do so must not be confused with non-discharge of the onus. I can
hardly imagine the Court doing otherwise, because the accused failed
to raise the defence at or during the trial. The Court cannot ignore
the facts led if these prove that the accused are indemnified by the
provisions of section 49. Such a failure on the part of the Court
would amount to a travesty of justice.
burden of proof rests on the accused to show on a balance of
probabilities that they are protected by section 49 of the Act.
1949(3) SA 293(A).
to my mind, does not mean that the accused must testify or lead
evidence to discharge this onus. This burden can be discharged by
the evidence led by the prosecution. The evidence led by the
prosecution in casu
provides ample proof in favour of the accused that: The complainant
committed a crime in the presence of the accused by illegally
crossing the border between Namibia and Zambia ferrying persons in
his canoe to Namibia, and when the accused called him back to effect
an arrest he fled across the border into Zambia whereupon the
accused opened fire as they were entitled to effect an arrest by
virtue of the nature of their duties. Moreover, the accused did not
act on a suspicion that the accused have committed a crime.
v Du Toit and Another
1983(4) SA 626(A) at 632H and 637D; and section 40(1)(a) and (b)
of Act 51/77.
virtue of the sentences imposed in the magistrates' Courts as
evident from the review matters which come before this Court, the
crime of illegal crossing the border into Namibia falls under
schedule 1 of the Criminal Procedure Act no 51/77, as one "the
punishment where for may be a period of imprisonment exceeding six
months without the option of a fine." Section 10(3) of the
Immigration Control Act No 7/93 stipulates that a person who
illegally enters Namibia shall "on conviction be liable to a
fine not exceeding
to imprisonment for a period not exceeding five years or to both
such fine and such imprisonment ..."
the premises, I am satisfied that not only did the prosecution prove
beyond reasonable doubt that the accused's conduct was reckless by
firing at or in the vicinity of the canoe and therefore attempted to
kill the complainant, but also proved that the accused's actual
intent was to effect an arrest of the fleeing complainant. It
appears on a review of all the evidence that the accused bona
believed that the law of the land permitted them to do what they
did, and are therefore entitled to an acquittal.
v De Blom 1977
the circumstances the four accused are indemnified by section 49(1)
and in the light of such immunity they cannot be convicted of
attempted murder as charged.
v Nel and Another
accused are in the alternative charged with the negligent handling
of a fire-arm in terms of section 39(1)(j)
of Act 75
reads as follows:
person who fails to safeguard or to take reasonable steps to
safeguard an arm in his lawful possession when such arm is not
carried on his person or is not under his direct control; .... shall
be guilty of an offence."
have ruled in respect of the main count of attempted
murder that although the accused acted recklessly in firing at or in
the vicinity of the canoe they were indemnified by section 49 of the
Criminal Procedure Act. This in effect means that they acted
lawfully. In essence, this finding disposed of the alternative count
as well. Therefore the handling of the firearms must ipso
have been lawful.
evidence has established the fact that the accused properly fired
with the intention to effect an arrest of the fleeing complainant.
In the circumstances the accused did not act negligently when they
opened fire. They acted lawfully in the execution of their duties to
prevent crime along the Zambezi river and can therefore not be
convicted of the negligent use or handling of firearms.
in respect of this count, I would briefly like to deal with Mr
Heathcote submission that even if it was found that the prosecution
succeeded in proving the crime of attempted murder, then this Court
had no jurisdiction to hear and adjudicate upon this charge because,
when the accused opened fire the complainant was already within the
Zambian side. According to Mr Heathcote only the Zambian Court has
jurisdiction and supported his submission with reference to S
supra at 662D-H wherein Lord Diplock and Lord Keith of Kinkel's
approach in Treacy
v Director of Public Prosecutions
110(HL) were quoted and discussed at pp.916H-J and 937J - 938A and
939L - 940B:
it is appreciated that territorial jurisdiction
over a 'result crime' does not depend on acts done by the offender
in England but on consequences which he causes to occur in England,
I see no ground for holding that an attempt to commit a crime which,
if the attempt succeeded, would be justifiable in England, does not
also fall within the jurisdiction of the English Courts,
notwithstanding that the physical acts intended to produce the
proscribed consequences in England where all of them done abroad."
Keith of Kinkel observed at p.937j-938a:
criminal law has consistently adopted the approach, in
cases involving a foreign element, that, where an act done
abroad has resulted in harmful consequences in England,
the actor may be tried by an English Court."
continued at p.939h-940b:
my opinion it is not the present law of England that an offence is
committed if no effect of an act done abroad is felt there, even
though it was the intention that it should be. Thus if a person on
the Scottish bank of the Tweed, where it forms the border between
Scotland and England, were to fire a rifle at someone on the English
bank with intent to kill him, and actually did so, he would be
guilty of murder under English law. If
fired with similar intent but missed his intended victim, he would
be guilty of attempted murder under English law, because the
presence of the bullet in England would be an intended effect of his
act. But if he pressed the trigger and his weapon misfired, he would
be guilty of no offence under the law of England, provided at least
that the intended victim was unaware of the attempt, since no effect
would have been felt there. If,
the intended victim were aware of the rifle being pointed at him,
and was thus put into a state of alarm, an effect would have been
felt in England and a crime
have been committed there. The result may seem illogical, and there
would appear to be nothing contrary to international comity in
holding that an act done abroad intended to result in damage in
England, but which for some reason independent of the actor's
volition had no effect there, was justifiable in England. But if
that were to be the law, I consider that it would require to be
enacted by Parliament."
careful reading and study of these passages brought me to the
conclusion that so far as an inchoate crime is concerned, for
example attempted murder, unlike a result crime e.g. murder, the
Court in whose jurisdiction the substantial elements of the attempt
took place or were completed may have concurrent jurisdiction.
the case _in casu
i.e. in the form of the legal intent and the actus
i.e. the actual firing occurred within the Namibian borders. That
means that the substantial, if not all the elements of the crime of
the attempt to kill occurred within the Namibian borders. The fact
that the complainant who was within the Zambian boundaries was aware
of the attempt against his life and thus put under a state of alarm
also gives the Zambian Courts jurisdiction to hear and adjudicate
upon the crime against the accused since the effect has been felt
there. Therefore, I am of the opinion that this Court has
jurisdiction to hear and adjudicate upon the charge of attempted
murder and can assume jurisdiction ;
finally now turn to deal with counts 3
of assault. In the absence of complainant, Lusitani in respect of
count 3, only the evidence of complainant Namaya in respect of count
testified that on the morning of 9 July 1992 he and Lusitani left
for the Zambezi river for a wash. There they met some one who took
them across to Zambia for a visit as they were never there before.
After their day's sojourn into Zambia they decided that afternoon to
return to Namibia and they were brought back in a canoe. There can
be no doubt that the person who brought them back was Samutumwa
Samutumwa. After the two complainants were off-loaded on the
Namibian side, Namaya saw the accused shouting at the occupants of
the canoe "come back, come back" and thereafter four of
the accused opened fire at the canoe.
the shooting the accused turned to the two complainants Lusitani and
Namaya and assaulted them with an oar. It seems that accused no. 1
did most of the beating while the rest held the complainants. The
witness however said that some of the accused assaulted them while
the others held them down. The complainants were beaten all over the
body, but not on their heads. When the oar with which they were
assaulted broke, the complainants were then taken to the police
station where the accused decided to whip the complainants instead
of laying charges of illegal border crossing. Here at the police
station again, it seems that accused no. 1 played a major role in
the beating. Namaya testified that the rest of the accused held the
complainants' hands and feet while accused no. 1 lashed each
complainant five cuts with a black rubber cane on the buttocks.
Apart from sore and swollen buttocks the complainants did not
sustain any wounds or injuries. The reason for the assaults appear
to be the illegal border crossing.
mentioned before, the State witnesses made a good impression on me,
especially Namaya. He was honest and gave his evidence in a frank
manner. His story and the manner in which he related it has quite a
ring of truth about it. Moreover, he is to some extent corroborated
by Obby Samutumwa, who testified that he saw one group of the
accused assaulting the two complainants while the other group fired
at his brother's canoe.
discrepancy between these two witnesses namely that according to
Namaya, four of the accused fired at the canoe and all five
assaulted them and that of Obby namely that one group assaulted the
complainants and the other fired at the canoe is of no consequence,
especially when regard is had that Obby was far off on the other
side of the river. Moreover, the events or what was happening on the
scene kept on changing and it is quite possible that different
things happened at different intervals, the one witness observing
some and not others. And that does not make them liars or render
their evidence false as to reject it.
accused were indicted on common assault in respect of these charges.
Miss Winson submitted that a conviction of assault with the intent
to do grievous bodily harm would be
a competent one, if I understood her correctly.
accused pleaded not guilty to the charges of common assault. The
prosecution did not withdraw the common assault charges against the
accused, nor were they charged with assault with the intent to do
grievous bodily harm. What Miss Winson submitted amounts to the
Court substituting a lesser charge with a more serious one. The
accused were arraigned for and pleaded to common assault and not
assault with the intent to do grievous bodily harm. This Court is
not competent to now find the accused guilty of assault with the
intent to do grievous bodily harm. If the Court were to do that such
a finding would be an irregularity plainly prejudicial to the
accused. The offence of assault with intent to do grievous bodily
harm is a different crime altogether and if the prosecution wanted
to charge the accused therewith, then the prosecution was entitled,
before the accused pleaded, to have withdrawn the common assault
charges and charged them with assault with intent to do grievous
1947(4) SA 433(OD), R
1948(1) SA 594(OD) and Hiemstra, Suid-Afrikaanse Strafprosereg, IV
ed. at 213 .
Lusitani, complainant in count 3 did not testify I am satisfied that
Namaya, complainant in count 4 was a competent eye witness to the
assault upon Lusitani by the accused. And on that basis the accused
should also be convicted of assault in respect of count 3.
accused as police officers were not entitled to direct any corporal
punishment upon the complainants. The decision by the accused to
rather give the accused five cuts and the subsequent thrashing was
unlawful and in conflict with article 8 of the Namibian
Constitution, which reads
The dignity of all persons shall be inviolable.
(a) In any judicial proceedings or in other proceedings before any
organ of the State, and during the enforcement of a penalty, respect
for human dignity shall be guaranteed.
No persons shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment."
also Attorney-General, Namibia, ex parte: In re-Corporal Punishment
by Organs of the-State 1991(3) p.76 (NMSC) .
satisfied that the prosecution has succeeded beyond reasonable doubt
in proving that the accused formed common purpose when they jointly
decided to give each complainant 5 cuts and also assaulting them in
the manner they did first at the riverbank and thereafter at the
the result the accused are:
Discharged in respect of count 1;
found not guilty in respect of the main and alternative
in respect of count 2; but 3. found guilty of common assault in
respect of counts 3 and 4.