Court name
High Court
Case name
S v Gurisam
Media neutral citation
[1994] NAHC 14












1994/19/23


THE
STATE vs STANLEY GURISAM



Muller
A.J.



CRIMINAL
LAW
MURDER



Deceased
found with knife
in
his hand - knife of deceased compatible with fatal wound - knife of
accused not.



State
failed to prove beyond reasonable doubt that accusedcaused
fatal stabwound and to exclude that fatal woundcould
have been self inflicted by deceased during struggle.Accused found
not guilty and discharged.






CASE
NO. CC118/94











IN
THE HIGH COURT OF NAMIBIA















In
the matter between









THE
STATE



versus


STANLEY
GURISAM








CORAM: MULLER,
A.J.











Heard
on: 1994/10/20,25; 1994/11/23 Delivered on: 1994/11/23








JUDGMENT



MULLER,
A.J.
:
The accused was charged of the murder of Stefanus Maans in respect of
the incident that occurred on the 12th February 1994 in Otjiwarongo.








Mr
Makando represented the State and Mr Mtopa defended the accused,
instructed by the Legal Aid Board.






The
accused pleaded not guilty and a written plea explanation in terms of
section 115 of the Criminal Procedure Act 1977 was handed in which
reads as follows:











"The
accused denies that he unlawfully and intentionally killed one
Stefanus Maans on the 12th February 1994 on the following grounds:




  1. That
    the deceased threatened, harassed and provoked the accused.



  2. That
    the deceased attacked the accused first and the accused in response
    to that attack attacked that deceased in self-defence.



  3. That
    in the struggle or fight that ensued the accused did not intend to
    kill the deceased when the deceased suffered fatal injury."







The
evidence presented to this Court except for the crucial incident do
not differ much between the State and the Defence. It is fairly
common cause what happened during the course of the day until the
time that the deceased and the accused met each other at the specific
bottle store in which vicinity the alleged stabbing occurred.






The
State presented the evidence of Dr Tietz, who conducted the post
mortem on the body of the deceased as well as that of Baren Camm,
Charles Meintjies, John Fisch and two police officers, namely
Constable Hoeb and another police officer, Mr Goagoseb.






The
accused testified under oath and called one witness, his elder
brother namely John Evans Gawaseb.






I
shall refer in the first instance to the medical evidence of Dr
Tietz. The post mortem was conducted by Dr Tietz on the 15th February
1994 on the body of the deceased and he observed the following
wounds. There was one penetrating

wound above the left clavicle and a further penetrating wound just to
the left side of the chest in line with left nipple and a further
wound which was not much more than a scratch on the right hand side
of the chest. The second wound was the most serious wound and was in
fact the fatal wound which caused the death, which was described by
the doctor as a penetrating wound into the heart. This wound also cut
through one of the ribs which is an indication of the force he used
on the object which penetrated the chest of the deceased. The doctor
had the opportunity to observe the exhibits namely EXHIBITS 2 and 3,
which were two knives. EXHIBIT 2 is a flimsy sort of knife which can
be described as a vegetable knife normally used to skin vegetables
whilst EXHIBIT 3 is a heavier type of pocket knife which locks when
it is opened and with a very sharp point. According to the doctor it
is very unlikely that EXHIBIT 2, the vegetable knife could have
caused a fatal wound in the chest of the deceased which penetrated
his heart and could have penetrated through the rib which was
severed. On the other hand, the doctor found it possible and probable
that the wound was caused by an object similar as EXHIBIT
3.
It is common cause that EXHIBIT 3 was the knife which belonged to the
deceased which he had and used in threatening people earlier that
morning, and which was eventually found in his hand or next to his
hand where his body was found. According to the doctor, if the
deceased received immediate medical attention where cardiac surgery
was immediately available he could possibly survived, otherwise not.
The doctor also commented in respect of information given to him on
the possibility that either of the wounds could have been

self-inflicted and he described it as highly unlikely that the fatal
wound and the wound could have been self-inflicted. This observation
and opinion he attempted to motivate by describing that the person
who had a knife in his own right hand or left hand would have found
it difficult to inflict those wounds and in particular the fatal
wound. It was however not covered with the doctor in his evidence
whether self-inflicting could also have meant inflicted in the course
of a struggle by the deceased having his knife in his own hands and
when a struggle occurred in respect of that knife. Consequently, I do
not know whether such a possibility would have been excluded by the
doctor. I shall deal with the way the witnesses described that the
wounds were inflicted when I deal with the respective evidence.









One
of the State witnesses, namely the first witness, Baren Camm
described to the Court how he and the deceased went on the particular
morning to look for a person called Boeta. The deceased and this
Baren Camm were apparently friends. The purpose of the visit to Boeta
was that the deceased wanted money which Boeta apparently owned him.
When they met Boeta the deceased was only handed N$10 which didn't
satisfy the deceased and he promised to get Boeta. The two then
walked further and met Boeta again. They also met the accused and
another friend of the accused. When Boeta was again asked for more
money the deceased got cross and wanted to fight Boeta. He ran away.
The deceased then asked the accused and his friend who wanted to help
boeta. They denied that they wanted to be involved in any way but the
deceased was cross and, in the words of Camm, he just wanted to
fight. He tried to restore peace and asked the deceased to leave them
alone. At a later stage the deceased and Camm went to the bottle
store called Camaro's bottle store which is actually a shebeen, if I
understand the evidence correctly. There they saw two persons sitting
in a motor car who were Charles Meintjies and John Fisch. According
to Camm they talked to these people and he was sent into the shebeen
to buy wine. Camm didn't see how the incident occurred between the
deceased and the accused, because when he came out of the shebeen, he
encountered the brother of the accused, which he then thought was his
cousin at the gate and was accused by this person that they were
worrying his cousin. This person wanted to search him for a knife. In
the process a fight ensued between the two of them. Afterwards they
apparently made peace and together helped Fisch pushing his motor
car. According to Camm, he was told by Meintjies and Fisch what had
happened outside, namely that the accused hit the deceased with a cap
on his chest whereafter they saw blood. Camm started looking for the
deceased, didn't find him, and eventually met police officer,
Constable Hoeb, with whom he went to the place where the deceased was
found and to the place where the accused and his brother lived.






During
cross-examination Camm conceded to questions put by Dr Mtopa that
earlier that day the deceased threatened an old man with a knife.
Although he denied that the person was robbed, this was apparently
what happened because this old man was waiting at the
charge office when they eventually arrived there after the
stabbing incident. He also confirmed that the deceased had a knife
and that it was EXHIBIT 3 which he used the morning and used to
threaten the deceased and to threaten Boeta and later the accused
that day.






Charles
Meintjies and John Fisch virtually gave identical evidence. Their
version to the Court was that they were sitting in the car that Fisch
drove, approximately in front of the shebeen, parked under the tree.
This was their lunch hour but they denied that they were drinking, or
came there to drink or buy liquor. According to them the deceased and
Camm arrived there, he talked to them and in particular to Meintjies
where they were sitting in the car with Fisch behind the steering
wheel. They differed in their evidence in respect of where the
deceased first came to stand while talking to them, whether it was on
the driver's side or the passenger's side, but mainly their evidence
were the following, namely that the person, Camm, walked forward to
the shebeen while the deceased talked with Meintjies at the car.
According to both of them the accused and his brother then arrived,
walked past the car, whilst the elder brother walked towards the
shebeen where Camm went. The accused approached the deceased and the
deceased also walked forward and they met each other somewhere in the
vicinity of the left front corner of the car. It is clear from their
evidence that they had an unobstructive view to see what occurred
between the two, namely the deceased and the accused.



Both
of them described the incident in exactly the same manner, namely
that there was no struggle or argument between the two persons,
although, according to Meintjies, the accused and deceased spoke to
each other, but he couldn't hear what they said. The deceased was
unarmed while the accused had EXHIBIT 1, a blue cap in his right hand
with which he hit the deceased three times in the same place on the
left hand side in the deceased's chest. Neither of them saw any
weapon of knife in either hand of the accused. According to Meintjies
he said when this occurred, which he described as "one and a
half yards from me, next to me, I saw blood". The description of
Fisch was that when the deceased was beaten on the left side of the
chest, blood spurted and the deceased ran and the accused picked up a
stone. They apparently then drove away because they were afraid that
their car may be hit in any stone throwing that might have occurred.
Meintjies was not certain when the car was started. In his evidence
it appeared that the car may have been started even before the
stabbing occurred. He said, when the car was started accused came and
just beat him on the chest. In any event, they apparently drove off.
They said they drove directly home.









The
evidence of the police officers were the following. Sergeant Hoeb
testified that he was on duty that particular day, which was a
Saturday, 12th February 1994 and whilst patrolling in his car he had
a radio call and a report of an assault case which led him to this
particular Camaro's Bottle Store. He was taken to a man lying on
his stomach some block and a half from the bottle store. He said I
saw that he had an open pocket knife in his hand. This was EXHIBIT
3.
He
discovered that this person didn't have any pulse any more and was
already dead. Warrant Officer Goagoseb was informed of the incident
and he arrived later and also took photos. On his way Sergeant Hoeb
met Camm which he picked up and who also told him about the fight
between the deceased and the accused and he was shown where the
accused lived. When they arrived at the house the brother was
apparently aggressive and they had to calm him down. He also found
EXHIBIT
2,
the
kitchen knife at this house when it was handed over to him by the
accused, and the accused also explained to him that he had already
washed the knife. He also confiscated other objects like the
sunglasses which apparently belonged to the deceased which was found
near the scene where the body of the deceased was found. He also
conveyed the body then further to the mortuary where it was handed
over. According to him, he found the knife, EXHIBIT
3,
firmly
in the hand of the deceased and it was open. Certain words were
uttered by the brother of the accused at his house, namely words to
the extent of "he got what he was looking for". Sergeant
Goagoseb confirmed that he was the person who took certain photos at
the scene particularly where the body of the deceased was found and
according to him a knife was found near the right hand of the
deceased, which also appears on EXHIBIT
G7.
According to Warrant Officer Goagoseb it was not difficult to find
the body of the deceased, because he followed blood spots, which he
described as blood that spurted, up to the place where the deceased
apparently went over a fence and was found




lying
on his stomach. According to him the sunglasses was full of blood
and he also examined the knife and found it open and full of blood.









The
accused testified and described how he went alone that morning to
town to look for a video cassette for his friend. In town he met
Camm and the deceased. The accused testified, and I have to accept,
that he was only living in Otjiwarongo for a few months before the
incident occurred and didn't know the people and apparently not the
town very well. He didn't know the deceased at all. He also
confirmed that money was asked from him when he bought a cooldrink.
He handed the change of approximately N$3,20 over to Camm and the
deceased. He then went home and met Boeta on the way. They walked
towards Boeta's house. Boeta was carrying groceries and at his house
he wanted to wash himself but then Camm and the deceased arrived
there. They asked for Boeta and asked him for money which Boeta
apparently owed, or which he described it as "which one owed
the other". The deceased wasn't satisfied and the deceased took
out his knife with which he threatened Boeta, whereupon Boeta jumped
over the fence and ran away. The accused also identified this knife
in the hands of the deceased as EXHIBIT 3. They were followed by
deceased and Camm and he wanted to stab Boeta. Unfortunately
apparently, for the accused he intervened and this then directed the
attention of the deceased towards him because the deceased thought
he was taking Boeta's side, and he also was chased by the deceased
with the open knife. They ran away and apparently got separated.



The
accused ran home where he reported the incident to his brother and
he apparently wanted to lay a charge. The two persons, who were
known to his brother, of which Camm was apparently the brother of
his girlfriend. Accused's brother John, who was busy working on the
geyser in the roof when he heard the story, decided that they should
rather go and first talk to these two people. They found them at
Camaro's Bottle Store, namely the deceased and Camm, who were
sitting in front of the bottle store. He didn't see Charles
Meintjies or Fisch, although there may have been a car parked in the
vicinity. When they approached Camm and the deceased they stood up
and came towards them. The deceased said something to the effect of
"here comes the cunt's child again", referring apparently
to the accused. According to the accused he walked a bit forward,
and then saw that the deceased was coming to them with an open
knife, which was again identified as EXHIBIT
3.
The
deceased also picked up a stone and threw a stone at the accused,
which he ducked and which missed him. The deceased stormed forward
and lost his balance and in the process, according to the accused,
he grabbed his hand which had the knife from behind him and they
apparently struggled over possession of the knife. He said at that
stage he was scared for his life and he also saw blood on the body
of the deceased in the vicinity of his chest and neck. The deceased
then apparently reversed somewhat, the accused picked up his cap
which he lost in the process, but then the deceased stormed at him
again, and according to him, he then took his knife, EXHIBIT
2,
from
his pocket and stabbed at the deceased. According to him, he
stabbed him on the right hand side of





his
chest, that's in the vicinity of the third wound which was described
by the doctor as not more than a scratch. He said he did so because
he anticipated that he will be stabbed by the deceased and he
defended himself and didn't intent to stab him or kill him or injure
him. He apparently ran home to his brother's place but in the
process while he was struggling with the deceased his brother also
had a struggle or a fight with Camm. He confirmed that he washed the
knife and handed it over to the police officer and also the cap. The
accused, when confronted by Mr Mkando with the evidence of Fisch and
Meintjies, who testified that they saw clearly that there was no
struggle before the deceased was hit or stabbed on his chest, asked
the question, namely that if they say so they must also have seen
the blood on the cap. I shall deal with this aspect later.






The
evidence was concluded after the postponement this morning when John
Gawaseb, the brother of the accused testified. He confirmed that he
was working at home at approximately 12:45 when the accused arrived
there and complained about the chase and the attempt to stab him by
the deceased. He also noticed, when he got down from the roof, that
the accused was tense and out of breath. On the description of the
two people he suspected who it was and then accompanied his younger
brother, the accused, to talk to these men and to make sure that it
wasn't just a story told by the accused which wasn't true, before
any charge was laid. John handed in a rough sketch which assisted
the Court to understand the set-up around the bottle store.
According to him, when they arrived there from the direction of
Point 7 on the plan, a car, which he described as a white Cressida,
was parked at the main gate of the premises at Point 8. They walked
in the street and he noticed that Meintjies approached the car,
coming from the bottle store with plastic bags containing what was
probably liquor. Meintjies got into the car on the passenger side.
He couldn't recognise through the tinted windows who the driver was,
but noticed a person behind the steering wheel. Meintjies asked him
what are you, who are not drinking, doing here, meaning that John
was a person who does not drink, and asked him what he was doing in
the vicinity of the bottle store. According to him, when Meintjies
got into the car, the driver took off and he drove away. This
occurred before any incident occurred between the two of them and
the deceased and Camm. When the car drove off they walked further in
the direction of the bottle store and was approached by the
deceased, who apparently stormed at the accused with an open knife
in his hand. He intervened and separated them and according to him
it appears that his brother, the accused was a bit cocky, but he
sent him away and he was under the impression that he ran away.








He
then concentrated on Camm which he saw putting his hand in his
pocket and suspected that he also had a knife. They struggled and
even fought and eventually Camm let him look into his pockets and he
found that he didn't have a knife. He doesn't know what happened to
the other two, the accused and the deceased, but later found his
brother on the way home walking in the same direction as they came
when they approached the bottle store. In the mean time after
his fight with Camm, they apparently made peace and they also helped
another person to push a motor vehicle. He also described how the
police arrived at his house, stopped a distance from the house and
shouted at him to which he retaliated saying he is not a dog to be
shouted at. When the police approached them, he noticed Camm sitting
in front of the police vehicle and he then said "he got what he
was looking for", referring to Camm, which he thought laid a
charge against him for the fight between the two of them. He was
also apprehended together with the accused and taken to the police
station. According to him, his brother handed EXHIBIT 2, which was
his own kitchen knife, to the police, that's the one that he used to
stab the deceased. He also identified EXHIBIT 1 as the cap which his
brother, the accused, had on that day, and had on after the incident
and which was handed over to the police at the police station.
According to him there was no blood on the cap that he noticed and
said that there was no opportunity for the accused to wash the cap.
It was on his head and not wet.








That
concluded the evidence presented in this Court. Arguments were
addressed on the basis of provocation, self-defence, lack of
mens
rea
,
that's the intent to kill, or whether such intent was proved.






The
evidence before me presents me with a severe difficulty which I
believe the State didn't overcome and consequently didn't prove
beyond reasonable doubt that the accused murdered the deceased. It
is common cause that the deceased was a trouble maker on that
particular day. He was spoiling for a fight. He carried a knife
which is according to my observation of EXHIBIT
3
a
vicious object, a dangerous weapon. This knife he already used early
that morning to apparently rob an old man. Then he didn't hesitate
to also use that knife to threaten Boeta and later the accused.
There's no doubt that EXHIBIT
3
was
during all relevant times in the possession of the deceased. There
is no other evidence in respect of EXHIBIT
2
than
that that weapon was in the possession of the accused and no other
knife. It is clear from the evidence that the two different
versions, namely that of the State witnesses Meintjies and Fisch and
that of the accused, supported to a certain extent by his brother,
are irreconcilable.








The
one version excludes any possibility of the other. Mr Mkando
submitted that Fisch and Meintjies were independent persons, not
related to the deceased or the accused. But I have a very big
problem with their evidence. On their version there was no struggle
before the deceased was hit by the accused with a cap in his hand,
apparently with a knife concealed in it. The deceased walked forward
towards the accused and then stood still with his hands along his
thighs. This is certainly not in line with his behaviour during the
course of that day. It is further common cause that the deceased was
drunk, angry and ready for a fight during the course of that day and
that he carried a knife which he didn't hesitate to take out and use
to threaten people.









According
to Meintjies and Fisch they didn't see any weapon in the hands of
the accused. They only, but clearly, saw him hitting the deceased on
his chest in the vicinity where the wounds were found eventually.
Both saw blood. It was even described as blood spurting from the
wounds. This is also supported by what Sergeant Goagoseb found and
the doctor, according to the type of the wounds and in particular
the fatal wound, namely a stab wound directly into the heart of the
deceased. There is no evidence that the cap was ever washed, on the
contrary, according to John's evidence, it couldn't have been done,
when taking the period of time into consideration and the accused
had it on his head. There can be no possibility, in my opinion, that
three stab wounds could have been caused by a knife concealed in the
cap and with blood spurting from the wounds without any drop of
blood on the cap. That is clearly not possible. What does this mean?
This indicates that Fisch and Meintjies may not have seen what
happened, and that the evidence of the accused and John may be
correct that they were not there at the time. A further problem that
I have with their evidence, is that their version doesn't account
for the deceased's knife which was found in his hand full of blood.
It is clearly improbable that the accused would have taken out his
knife only when he ran away after he had been stabbed.









On
the other hand, I have to consider the evidence of the accused,
which I must say, didn't make a bad impression on me even
considering the circumstances of tension that he was in as a person
standing trial for a serious offence, and his brother who made a
very good impression on me, whom I believe, testified
honestly, directly and clearly about the events of that particular
day. Here we have a situation where a trouble maker continued to
harass people and tried even to stab the accused. Nobody can fault
what he did by going to his brother and complain to him. It is also
understandable what his brother did by saying let's rather clear up
the situation and find out what actually happened before we take the
matter further, because he knew the people.









That
brings me to their version of what happened at Camaro's Bottle
Store. I believe that John is probably right and correct in his
evidence that the Cressida drove off before the incident occurred.
I've already referred to the hesitation of Meintjies in his evidence
about when the car was started. If I accept their version and reject
that of Meintjies and Fisch I have to determine whether the accused
inflicted the stab wounds which eventually caused the death of the
deceased. John could have, but didn't attempt to support his
brother's evidence of the crucial incident. That supports my relief
that he innocently tried to testify what actually happened that day.
So we are back to the evidence of the accused of what happened.








To
some extent he is supported by John in the sense that the deceased
stormed at the accused with an open knife and he then intervened but
after that concentrated on Camm. That also coincides with Camm's
evidence that the two of them had a fight and even Camm didn't see
what happened between the accused and the deceased. What happened
further between the deceased and the accused have to be evaluated on
the accused's evidence and other supporting evidence if there are
any. According to the accused, when the stone was thrown at him and
the deceased lost his balance, he grabbed him from behind, grabbed
the hand which had the knife in and that they struggled with the
knife.









I
know, and that was submitted by Mr Mkando, that the doctor excluded
as highly unlikely that the wounds of the deceased were
self-inflicted. However, for the reasons that the doctor gave, it is
clear to me that the doctor considered that question to be wounds
inflicted by a person himself by stabbing himself. I agree that is
probably unlikely but self-inflicted wounds in the sense that the
knife held by the person himself in a struggle could have caused the
wounds, doesn't seem to me to be so unlikely.






The
accused testified that he saw blood on the deceased and that there
was then some sort of interval before he was attacked again and in
which incident he then used his own knife, and I'll come to that a
bit later. But according to John's evidence and the accused's
evidence the deceased had his knife which is a sharp object, open in
his hand. I can't exclude the possibility that some of the wounds in
that struggle may have been caused during that struggle by the
deceased's own knife. There is some support for this possibility
namely that the deceased was found with the same knife in or near
his hand and the knife was full of blood. No other version provides
for such possibility than the one of the accused namely that the
deceased's knife was probably used and caused the wounds in the
struggle or even that he accidentally in that struggle stabbed the
deceased.









In
respect of the other wound, the accused testified that he inflicted
the wound on the right hand side. He may lie about that and may take
the chance to select that injury because the doctor said that was
not much more than a scratch. I do not know, but what I do know is
that in all probability, and as the doctor said, it is highly
unlikely that EXHIBIT 2, namely the knife that the accused had,
could have caused the fatal wound, because that flimsy knife could
not have penetrated the rib, severed it and went in so deep into the
heart without breaking. So, with the physical evidence of the
knives, there is a large extent of support for the version of the
accused, and as I have mentioned, I cannot accept the evidence of
Meintjies and Fisch in the light of the cap which didn't have any
blood on it and we know that the blood spurted. It even caused a
trail which could be followed by Warrant Officer Goagoseb.






In
all the circumstances I must entertain, and I do entertain, serious
doubts of whether the accused caused the fatal wound and injuries to
the deceased. He may have stabbed him, he may have scratched him
with his knife, he may not have been in such a danger as to be
justified to use a knife, but without knowing which stab wound
caused the death and without being able to exclude the possibility
that the deceased may have been stabbed in that struggle by himself
with his own knife, I cannot convict the accused on this charge.
I have also considered the possibility of convicting him
for stabbing once at the deceased of the offence of assault with the
intent to do grievious bodily-harm, but I also have doubts whether
that has been proved.









In
the circumstances the accused is found not guilty and is acquitted.





FOR
THE STATE









FOR
THE DEFENCE Instructed by


MR
S.S. MAKANDO









DR
A.M. MOTOPA Legal Aid