NO.: CC 40/94
STATE versus RODERICK MORKEL
defence tactic, particularly where an accused is represented by
experienced counsel, not to give a plea explanation and to tell the
Court that the defence case will be put to the state witnesses,
"when and if necessary", criticised.
approach in R
v De Villiers,
1944 AD SALR, 4 93 at 508, per Davis A.J.A. on circumstantial
NO. CC 40/94
THE HIGH COURT OF NAMIBIA
the matter- between THE
MORKEL CORAM: O'LINN, J.
1994.09.13, 1995.05.09 + 10,
- 10, 1995.12.06 - 08, 1996.02.12, 1996.03.27 + 28, 1996.04.03
The main charge against the accused is that he, a 37 year old male of
Namibian nationality, committed the crime of murder in that on or
about 1st June 1993 and at or near Khomasdal in the district of
Windhoek the accused unlawfully and intentionally killed Gerhardus
Jacobus van Wyk, a male person.
alternative charge against the accused is that he wrongfully,
unlawfully and by the negligent use of a firearm injured Gerhardus
Jacobus van Wyk or exposed the life or limb of the said Van Wyk to
the State's summary of substantial facts attached to the
in terms of section 144(3) (a) of the Criminal
Act 51 of 1977 the State further alleged and I quote:
Tuesday 1st June 1993 at approximately 23:00 the deceased and other
people were out the house of the accused in Khomasdal. Accused
arrived there and called the deceased into one of the bedrooms. There
the accused grabbed the deceased by the shirt and an argument ensued
between them about money which the deceased owed the accused. The
accused shot the deceased with a firearm. The deceased ran out of the
room and accused left the house. The deceased was taken to the
hospital where he died shortly afterwards as a result of a gunshot
wound through the abdomen. The accused pleased not guilty to both the
main and the alternative charge."
accused was represented throughout the trial by experienced counsel.
At first Mr Botes appeared, instructed by an attorney. In the course
of the trial the instructing attorneys withdrew because insufficient
funds were provided. Thereafter Mr Dicks was instructed by the Legal
Aid Board to appear for the accused. Ms Lategan appeared for the
State throughout the trial.
accused pleaded not guilty to the charges and Mr Botes, on behalf of
the accused, gave the following as his explanation of plea:
accused's pleas of not guilty on both charges are in accordance with
my instructions. My Lord, the accused places all the elements of each
and every crime in dispute and without derogating from the generality
of the plea the accused specifically denies that he shot the deceased
on the evening in question. The rest of the defence will be put to
the State witnesses when, and if necessary."
is of some importance at the outset however to elaborate
how the defence was developed in the course of the trial. It is
significant that the plea was a blank denial. There was not the
slightest indication of the defence of self-defence or of accident.
There was no indication whatsoever of whether or not the accused was
even present in the room of the house where the deceased was shot,
notwithstanding the fact that accused was the lessee and occupier of
that house and as such in control of that house.
tactic of the defence at that stage was clearly not to co-operate in
defining the real issues in dispute and to put the rest of defence
to the State witnesses, "when and if necessary". This
tactic gives rise to the suspicion that the defence did not want to
bind it to a certain line of defence but would decide on the defence
or even develop the defence in the course of the trial as defects in
the State's case emerges and as it becomes clear who of the
contemplated State witnesses in fact appear to testify.
must be kept in mind that the accused, when confronted by the police
approximately two weeks after the incident, had made use of his
prerogative to remain silent and said that he prefers to make his
statement in court. When he however first appeared in the
magistrate's court on a charge of murder for the purpose of pleading
in the section 119 proceedings he pleaded not guilty but again
declined to disclose any particulars of his defence.
when Dr Liebenberg, who conducted the post-mortem examination on the
deceased, was cross-examined by Mr Botes he did not put to Dr
Liebenberg what his instructions were as to the precise manner in
which the shot that hit the deceased, was fired.
Liebenberg in evidence-in-chief had already said that it would have
been impossible for the deceased to have fired the shot if he held
the handgun in his right hand. When asked by the State counsel about
the possibilities if the deceased had the handgun in his left hand,
Dr Liebenberg said, "Once again it is extremely difficult, not
impossible but not at all comfortable."
Liebenberg then demonstrated on a model by forcibly pushing the
model's hand backwards into a position from which a shot could have
been fired and the doctor reiterated, "I will just repeat, it
is very uncomfortable, yes." To this evidence Mr Botes directed
the following cross-examination and I quote from the record, page
Dr Liebenberg, you just now showed us that it is possible that a
person who is for one reason or another holding the gun or the
firearm in his left hand and force be supplied on that hand, as you
have done yourself on the Court Orderly, that that wound could have
"So let's take it from there. Therefore if, for one reason or
another, the deceased took out a firearm with his left hand, the
person who was standing in front of him took the hand and, here, to
just get the firearm away from pointing in his direction with force,
you will say it's possible that that wound could have been inflicted
in that manner?"
at this stage the defence did not indicate unequivocally that the
case of the accused was that the deceased at the time held the
handgun in his left hand, pointed the pistol at the accused and then
forced the hand of the deceased upwards and away from him into the
position to the left of the deceased's left flank from where the
shot went off which penetrated the deceased's chest at the lateral
left thorax and exited at the lateral left flank. It is noteworthy
that Mr Botes at this stage restricted himself to force being
of the deceased.
an opening was now left in the State's case which could be latched
on by the defence, should the defence have no other option in the
light of further developments in the case.
main development apparently awaited was whether Alfredo Slinger
would testify, who, to the knowledge of the accused was the only
person in the room when the deceased was shot, apart from the
accused and the deceased and who, as the accused later testified, he
assumed had seen what had happened.
the evidence of Slinger, a persistence in a blank denial would have
sufficed because then not only could the deceased have shot himself
but Slinger could have shot the deceased with the accused not even
present in the room.
following events are significant.
the conclusion of the evidence of the second State witness, Helmuth
Dyers, Ms Lategan on behalf of the State asked for a postponement on
the ground that two relevant State witnesses had failed to attend
court notwithstanding that subpoenas had been served on them in
Walvis Bay. These witnesses were Alfredo Slinger and Stephen
Humphries. Ms Lategan called Sergeant Minnies. Sergeant Minnies
testified that when he served the subpoena on Slinger, Slinger
refused to sign the receipt of the subpoena as requested and said to
him that "people in Walvis Bay said to him that they will burn
down their house and all that kind of things." Sergeant Minnies
further testified, "My Lord, he was very honest with me because
he then said that maybe his mother would suffer if he comes to
court." The Court indicated that it was prepared to issue
warrants of arrest for the defaulting State witnesses on the
assumption that there is no objection from the defence. Mr Botes
then indicated that he opposed the application for postponement. Mr
contended that Slinger could not take the case further because
according to information in a State file made available to him
Slinger, "was asleep until the time that the shot was fired."
The Court rejected the objection of Mr Botes and granted warrants of
arrest for Slinger and others and postponed the hearing to an agreed
date, being 13th and 14th September 1995. Mr Botes's allegation that
with the information available to him Slinger, "was asleep
until the time that the shot was fired", was a
misrepresentation of the information contained in the police docket.
witnesses did turn up to testify on the adjourned dates of trial
without the need to execute the warrant of arrest. When Slinger
testified on 9th May 1995, he was asked by the Court to explain why
he was not present in Court on 10/03/94 to testify. He said,
"Because I was afraid of him." He further explained that
he was afraid of the accused, that he will be hurt if he testified
against him in court. When asked on what he based the belief he
said, "Because all of them say he was the one who shoot for
Gerrie and then he will also shoot me." On further examination
by Ms Lategan about who had threatened him he said, "It's his
friends who are in Walvis Bay." He said he knew them only on
their nicknames and one of them, one "Slice" even
threatened him the weekend before he came to testify. When asked why
he went to Cape Town instead of coming to court he said, "A lot
of his friends warned me and threatened me." He also explained
that his mother had persuaded him to return to Namibia and to
testify in the trial. When asked whether he was still afraid of the
accused and the people of Walvis Bay he answered in the affirmative.
He said he did not feel safe in Walvis Bay but it would not be good
to stay at another place because his parents are staying in Walvis
Bay. Mr Botes did not contest the allegations of intimidation at
resumption of the trial on 7/11/95 after adjournment from 10/5/95
the Court was informed that the attorneys and counsel of record
then applied for a postponement to make further arrangements for
legal representation. Before this application was disposed of the
recorded a further complaint of intimidation. Ms Lategan called
Stephen Humphries, already referred to supra,
who testified that a friend of the accused, one Clydie Noble, on or
about 4th to 5th of April shot twice at him with a handgun whilst
Noble was sitting in a vehicle next to the accused. He believed the
attack related to his expected evidence in the trial against the
accused because when he fled Noble still said, "You will see,
you are also testifying against my 'bra'", which means "my
friend". According to the witness, Noble accused him of having
insulted his mother but that accusation, according to Humphries, was
a total lie. In cross-examination by the accused, with the
assistance of the Court, Humphries admitted that the accused himself
had never personally threatened him.
resumption of the trial on 8/11/95 accused was now represented by Mr
Dicks, on instructions of the Legal Aid Board. Accused testified to
the effect that Noble fired at Humphries with a gas pistol. This was
never put to Humphries by the accused when Humphries testified.
According to the accused he actually attempted to mediate between
the accused and Clyde Noble. He admitted that Noble knew that
Humphries was a State witness but denied the State's contention that
he, the accused, used other people such as Noble to intimidate the
witnesses. Humphries, on recall, insisted that Noble had used a
handgun firing real bullets and not a gas pistol. Mr Dicks was
allowed to further cross-examine Humphries. When he put to Humphries
that he, Humphries, and Noble had a long-standing argument
replied, "We don't speak because he is a gangster." This
did not give a decision or make any order on the State's complaint
primarily because the Court was told that the matter was being
the Walvis Bay Police and there was an urgent need, in view of all
the delays and postponements, to proceed
the merits of the case. However in retrospect and considering all
it appears a strange coincidence that the accused was present when
one of his friends, called a gangster by Humphries, was in the
company of this friend when the friend suddenly shot at a known
State witness shortly before that witness was expected to testify
against the accused. Yes, it was admitted by Humphries that there
was an attempted intervention by the accused but it is possible in
all the circumstances that the intervention was a mere purported
intervention and that the accused after being severely warned
the Court at an early stage of the trial
to interfere or intimidate State witnesses, would have been careful
not to be seen as directly interfering or intimidating.
accused obviously also knew that Slinger
a younc person,
of age, and very vulnerable These incidents of intimidation must
seen agains the background of a very grave and
continuing crimin; activity of dealing in drugs such as Mandrax
and Cannal conducted by the accused as the leader and with persons
Plaatjies and Slinger involved 'with the accused
seems quite clear that the tentacles this illegal business
extended at least to Walvis Bay w
accused had several associates and accomplices. The main illegal
activity in Windhoek seems to have been conducted from the premises
at Erf 2672, J James Street in Khomasdal, a residence leased,
occupied and controlled by the accused at the time of the incident
and where he was resident at the time of the incident. It was in the
room of this residence that the deceased was fatally shot during the
evening on 1st June 1993. When Slinger was recalled at the end of
the trial and unexpectedly asked by the Court, "Why didn't you
want to testify if according to you he killed your friend?"
Slinger replied without hesitation, "Firstly, Your Honour, I
mean I was also afraid of him." The accused was out on bail at
all the relevant stages during the trial. I have no doubt that
Slinger was afraid of the accused at all relevant times and that the
accused and his friends capitalised on this fear throughout the
trial. I am also convinced that particularly Slinger was intimidated
by the friends of the accused from the beginning with a view to
either prevent him from testifying or, in the alternative to deter
him from incriminating the accused should he testify. The only
reason why he was intimidated was obviously because they expected
him to speak the truth and knew that the truth was against the
the end of the day however Slinger did testify. The main consequence
of him testifying were however that:
The accused was now irrevocably placed in the room at the time of
the shooting and was undeniably involved in an argument about
money owed to him by the deceased when the shot went off. The
accused at least could not any longer plead ignorance of the
incident or remain silent;
possibility that Slinger had shot the deceased fell away and now
there remained only two possibilities, namely that the accused had
shot the deceased or that the deceased had shot himself;
the possibility that the deceased had removed the handgun from the
room after the shot was fired was completely eliminated. This is
also because according to Dr Liebenberg's post-mortem report the
wound of the deceased was such that he would have probably
collapsed within 15 minutes. The only possibility that remained
however was that either the accused removed that handgun from the
room or one of his friends and accomplices in the house did so,
whether on his or her own initiative or on behalf of and at the
request or on the instruction of the accused.
is now apposite to deal in more detail with the evidence of Slinger.
According to Slinger he, on that day, telephoned the accused and
asked whether he could stay over at the house of the accused and the
accused agreed. After his arrival he used Mandrax with dagga
(Cannabis) which he bought at the house. At the time there were a
number of other people at the house including Stephen Humphries,
Rene Plaatjies, Rodney Shanigan, Douglas McClune and the deceased.
These persons also used Mandrax with dagga.
he found the deceased at the house that day the deceased was not
staying there at the time although he was aware that the deceased
had stayed there previously. After he and Rodney had finished
preparing some food for those present and had given them some food,
they watched a film with the name "PS, I love you" but
after watching it for some time he had a bath and went to a bedroom
and slept on a mattress on the floor.
he was dozing, he heard the voice of the accused and the deceased
engaged in an argument in the room.
to Slinger, the accused wanted to know when he would get his money
and the deceased promised "the following day." Accused
however said that the deceased has been taking him for a "cunt"
for a long time and he wanted his money. The deceased reiterated
that he would get the money from Stephen Humphries, also known as
"Toelie" the next day and would then pay the money owed to
to Slinger, the deceased was standing in the corner of the room and
the accused was confronting him, standing in front of the deceased
with his back towards Slinger who was lying on his left side on the
mattress looking in the direction of the deceased and the accused.
The accused had in the course of their aforesaid argument grabbed
the deceased's shirt with his one hand broadly in the area below the
collar. Slinger did'not know whether the accused used his left or
his right hand. The accused during this time and by means of this
hold repeatedly pushed and/or bumped the deceased's upper body
against the cupboard and as a result the sound or noise was that of
a person being bumped against a wooden cupboard.
suddenly Slinger heard the noise of a shot from a firearm, but he
did not see any firearm. The report of the shot came from the
direction of the position of the accused and the deceased.
then jumped up and ran out into the passage and the lounge. He was
crying and the people in the lounge stopped him. He noticed the
deceased following him out of the room but saw the deceased running
past him then stopping at the outside of the front door where he
asked that someone must help him. However then he started running
around the corner and eventually collapsed in front of an
outbuilding in the yard where the deceased attempted to solicit
assistance before he collapsed. From there the deceased was carried
into the kitchen through the back door and there placed on a
mattress by some of those present.
noticed that the deceased was bleeding from his side and that when
he leaned against the glass panels of the front door, blood spots
were visible on these panels. The deceased was later carried into
the kitchen from the outbuilding where he sought help and was placed
on a mattress in the kitchen.
seeing the deceased lying in the kitchen, quiet and with his eyes
closed, Slinger went across the street to another house
where there was a telephone and where he obtained leave to use the
telephone to summon an ambulance. He phoned and requested an
ambulance and the person on the receiving end promised to send an
ambulance. The ambulance arrived and the deceased was loaded onto
the ambulance in the presence of Slinger and others.
left the premises later that night. At no stage however did he see
the accused again in or outside that house after he left the accused
behind in the room where the shot was fired.
questions by Ms Lategan Slinger affirmed that the deceased told him
what was the nature of the money owed by the deceased to the accused
but the defence objected to such evidence as hearsay and the Court
upheld the objection. Slinger however testified that he knew that
the people staying at the house were selling Mandrax and dagga for
the accused. The accused himself supplied some buyers with the
Mandrax and dagga and they paid over the money to him. He himself at
times sold some Mandrax and dagga to persons in the yard of the
house, when he was requested by others staying in the house to do
to Slinger, the money owed by the deceased to the accused was for
the sale of Mandrax and dagga on behalf of the accused because he
knew that the deceased was also selling Mandrax and dagga for the
Ms Lategan asked Slinger what was the attitude of the accused and
the deceased towards each other as manifested in that room at the
time of the incident he said: "The deceased plead and say he
will give him the money the following day", but the deceased,
"does not want to understand anything."
cross-examination by Mr Botes, Mr Botes suggested that the deceased
could have become aggressive because he had also taken Mandrax and
dagga that day.
Slinger conceded that a person's mood can change as a result of the
intake of these drugs and that the effect differs from person to
person, when asked by the Court whether he saw the deceased become
aggressive at any stage that day, Slinger replied: " No, he was
not such a type of person."
suggestion that the accused instructed counsel that Gerrie had once
assaulted a person with a knife was put to Slinger, but Slinger
denied knowledge of such an incident. This suggestion was never
again raised in the course of the trial, not even by the accused in
Slinger in cross-examination admitted that he obviously doesn't know
what was said before he awoke from his slumber but that he can
recall what was said "from that point when they were in the
corner." He did not know whether the deceased had asked the
accused's permission for Humphries, (Toelie) to sleep in the house
case of the defence as put to Slinger was briefly as
night the deceased asked the accused for permission for Toelie to
sleep. Accused asked the deceased how he indeed could ask him for
sleeping place for another friend of his "without him repaying
the money that he owes the accused." Accused was not satisfied
with the promises made and was indeed angry. He indeed took the
deceased in front of the chest high up (does not say with which
hand) and once or twice pushed him against the cupboard in the
corner." The accused inferred that the deceased must have seen
that the accused was not satisfied. The deceased then just said:
"Nou maar vat so" in Afrikaans. (i.e. "now then take
this"). Slinger denied that he ever heard such words uttered by
was put to Slinger, "Certainly you as you already testified
that there was a lot of words spoken which you cannot even remember
correctly, or recall correctly, is that so, Mr Slinger?" It
must be noted that Slinger up to that stage had never admitted that
there were a lot of words spoken which he could not remember
correctly, or recall correctly. Slinger however firmly replied:
"There could be but that
moment I woke up as I give my statement, it's what happened."
(My emphasis added).
denied that he ever heard the deceased using such words, but
conceded that it could have been said but that he didn't hear it.
deceased, according to the accused, at that stage "drew a
firearm from his clothing, somewhere here at
with his left hand; the accused did not realise at that stage or
even afterward whether it was a pistol or a revolver, he just saw
that it was a firearm; the accused then because he realised it was a
firearm, grabbed with both his hands the arm, the
front part of the arm,
of the left arm of the deceased, just to get the firearm away from
him; and he just tried to push it away; it happened very quickly and
then the shot rang out." (My emphasis).
conceded that it may have happened like that but he didn't know.
Botes however put it to Slinger that he would have seen it if the
accused who is right-handed, had pulled out a pistol with his right
hand as could be expected from a right-handed person according to Mr
Botes, and pulled the trigger. Slinger agreed to this proposition.
It was also put by Mr Botes that if the deceased took out the pistol
with his left hand, it would also have been obscured from sight from
the position where Slinger was lying at the time. Slinger also
agreed to this proposition.
will be seen that up to this stage Mr Botes had not actually
demonstrated to the witness and to the Court how the pushing away
was done. He contended himself with a very vague gesture of pushing
away, however accompanied with a firm statement that the accused had
grabbed the deceased with both his hands on the "front part of
the left arm" and attempted to push the forearm holding the
firearm away from him.
was certainly nothing at all of the later developed defence that the
accused grabbed the left wrist of the deceased with his left hand,
grabbed the deceased's elbow with his right hand and forced the
deceased's elbow to the left and up to the level of the deceased's
left ear so that the point of the firearm was pointing downwards
towards the deceased's left flank.
in re-examination when Ms Lategan reopened the issue of the grabbing
of the deceased's forearm did Mr Botes intervene and attempted to
correct his previous statements and demonstration during
cross-examination by saying, "May I just clarify. Your Worship
I have showed here and here, so it's here, the front
part the arm, the hands,
so I just don't
want that, only on the arm."
Here the Court formed the impression that the grabbing was not only
on the front part of the arm, but actually on the left hand
as suggested by Mr Botes when cross-examining Dr Liebenberg.
the Court attempted to clarify the position further, Mr Botes stated
that the accused with one hand held the deceased's upper
the elbow. Unfortunately for Mr Botes and the defence the statement
by Mr Botes in his main cross-examination was unequivocal insofar as
it stated that the accused had grabbed the deceased with both hands
on the front part of the deceased's left arm.
in response said that he did not see such a movement.
was also no sign yet of the very specific defence allegation
developed when the accused testified, that the deceased actually
lifted his shirt, which was not tucked into his trousers, with his
right hand and then pulled out the firearm from the inside of his
trousers where it had been kept at a point in the middle
of the trousers without the help of a holster. It seems that the
allegation that the deceased had actually used his right hand to
pick up his shirt was developed to counter the uncontested and
overwhelming State evidence that deceased was right-handed and the
State argument based on that fact that it was extremely unlikely
that the deceased would have pulled out a pistol with his left hand.
Similarly, the allegation that the pistol was in the centre of the
front of the trousers, was developed to meet the argument that the
handle of the pistol would probably have been placed inside the
trousers in a manner where the butt would have pointed to the right
so that it would be easily accessible to the deceased's right hand
and if it was placed inside the trousers at the side of the
deceased's body it would have been much more awkward and
uncomfortable for the deceased to have grabbed the butt of the
firearm with his left hand to shoot the accused.
must remark at this stage that when Mr Botes pertinently put it that
the pistol was taken from the side of the body of the deceased the
Court got the impression that the side that he pointed to was the
right-hand side of the body of the deceased. However this was not
clarified on the record and the Court may err in this respect. What
is beyond all doubt that the allegation was that the pistol was
taken from the side of the body and not from the centre front of the
pause here to comment that the words "vat so", take this
in English, could not be equated with a mere threat to shoot but
rather as words manifesting the deliberate act of actually shooting
or on the verge of shooting. The question then arises immediately
why did the deceased not shoot the accused? Why would there have
been time for the accused to react by grabbing the wrist of the
deceased and why would the shot only go off after the accused had
grabbed the forearm and/or elbow of the deceased and had forced it
into the most awkward position pointing at the left flank of the
deceased. One must assume for the purpose of this argument that the
accused was not at all prepared for such an action by the deceased,
an 18 year old boy with whom he never had any problems before. In
the case of a driver of a motor vehicle faced with a sudden
emergency, the accepted reaction time would have been 1-2
seconds. It follows that in a sudden emergency, which according to
the accused was created by the deceased, the reaction time of the
accused would not been less than in the case of the driver of a
motor vehicle facing a sudden emergency, more so because the
accused, according to his own averments, was already in a state of
anger at the time.
Botes put it to Slinger that the accused after the shot went off,
was totally confused "for
a few seconds.
" Slinger was unable to comment on this proposition. I pause
here to remark however that when the accused later testified, he
claimed that he was confused for the rest of that night and also the
next day. Whenever he was asked why he had not followed a certain
course of action, which one would have expected of an innocent
person, the only or at least one of the excuses were the he "was
Botes also put it that a confused state reigned in the house after
the shot and Slinger readily agreed.
Botes put to Slinger: "After awhile he (i.e. the accused) also
stood up and went outside." Slinger said that he knew nothing
about this. It was put to Slinger that when accused saw that the
deceased had gone to the back of the house, apparently to look for
help, he then realised the deceased had been hit. He then went to
his bedroom, unlocked the door with a key he had and telephoned an
ambulance." Slinger said that he does not know about this.
accused's allegation that he called an ambulance from his room
stands alone and is uncorroborated, whereas the fact that Slinger
phoned for an ambulance and got a positive answer is uncontested and
corroborated. It is also strange that the accused would phone an
ambulance but avoid coming near his fatally wounded so-called
Dyers testified Botes wanted to create the impression
the accused followed the deceased outside the house, was present with
other people outside the house to lend a helping hand wherever
possible and re-entered the house on several occasions. That the
accused re-entered the house was also put to Slinger. However when
the accused was asked later at the inspection in loco
to point out his movements he indicated that he neither left the
house, nor re-entered it at any stage before he left for his mother's
house that night.
it serves some purpose to consider why the accused at the inspection
now completely repudiated what was put before, namely that he on more
than one occasion went in and out of the house.
plausible explanation appears to be the following. At the inspection
Mr Slinger when he was pointing out the movements of the deceased,
how he followed to the outside and how other people in the house
followed the deceased outside, Slinger said that the people from the
house following the deceased said "Spike (i.e. the accused) shot
Gerrie." At that moment the Court said in the presence of the
accused and his legal representative that although this appears to be
hearsay it would depend on whether or not the accused was also
outside at the time so that he could have heard this allegation and
if that is so, he would have been expected to react to such an
allegation if he had not shot Gerrie and if he was innocent. It may
be, and I make no final or definite finding on that, that it is then
when the accused decided it is safer to say chat he never left the
after the shooting incident, up to and until he left the house to go
to his mother's house. Be that as it may, here is another serious
discrepancy which demonstrates how easily the accused switched from
the one statement of fact to the other, depending on what seems
appropriate for the particular occasion or crisis which arose.
Botes put it that when the accused came out of his bedroom, people in
the house asked him for a mattress, apparently for the body of the
injured deceased to be placed on this mattress. Slinger could not
Botes then put it to Slinger that when the accused later saw the
arrival of the ambulance and the deceased being loaded into the
ambulance, that "he
then went into his room,
and he then proceeded to his mother's house." Slinger replied:
"It could happen because I don't know what happened to him."
Botes was even more emphatic and unequivocal in a further statement
put to Slinger as part of the case of the accused and I quote: "After
the deceased was loaded into the ambulance, the ambulance left, then
he again went into his house
and it was only
that he put
on his jacket
because he wanted to leave the premises to go to his mother."
(See record p. 45, lines 25 - 29). (My emphasis).
must be noted that the issue of 'when and where the deceased put on a
jacket or a coat gained in significance when Rene Plaatjies testified
that when the accused arrived
the house that evening he could see that accused had a pistol stuck
in front on the inside of his trousers. On behalf of the defence it
was put to him, and later confirmed by the accused in his evidence,
that the accused never had a firearm, that when he came into the
house he wore a leather jacket and when he left later that evening
he still wore his leather jacket. However at the inspection in loco
accused at first said that he went to his room after the arrival of
the ambulance, he "again put on his jacket" before he
left. When the Court queried this statement he then said that he
made a mistake and that he still had on his jacket and he only left.
When recalled after the inspection in loco
the accused failed pathetically to explain the mistake or the slip
of the tongue or his contradictions regarding the jacket.
accused testified on the merits he said that he arrived that night
with a Katutura taxi. He wore a black jean, a white polo neck
T-shirt and a black leather jacket with a zip in front. Inside the
lounge he found Herkies, Toelie, Rodney, Rene and Gerrie. Herkies
was the nickname of Helmuth Dyers.
asked Rene Plaatjies, Renny "How's it?" and then Rene said
"Okay." Then Gerrie the deceased stood up and said,
"Spike, I want to speak to you." He thought that Gerrie
wanted to speak to him about the money he owed him. They walked down
a passage and entered a' room and then the accused said: "Speak."
Then Gerrie said he was looking for a sleeping place for
Toelie, which was a nickname for
Humphries. He then said to Gerrie: "I
you come to pay me - give my money back."
then grabbed the deceased in front of his chest, near but below the
collar, bumped him against a wardrobe and said: "Don't take
me for a cunt."
accused demonstrated how he grabbed the deceased with both
hands and bumped him repeatedly
against the cupboard.
interpose to point out that accused now alleged that he grabbed with
hands, previously the clear impression was with one
hand. Now the banging was repeatedly,
not once or twice as put by Mr Botes in cross-examining Slinger.
was probably appreciated that one or at most two bumps would not be
convincing as reasons for the deceased, an 18 year old, to shoot
his superior, the 37 year accused.
let's proceed. According to the accused the deceased then said:
"Spike, if it is like that, take that." (Mr Dicks
corrected the interpreter by saying the word was "this",
not that. That is "take this", not "take that."
The deceased put his hands down and lifted his shirt with his right
hand. The accused then demonstrated that the shirt was lifted more
to the right-hand part of the lower body. This was the first time
that we heard that the deceased "put his hands down", but'
still it was not explained from where he was putting his hands down.
Now also the accused put in
mouth of the deceased more words than before, namely "Spike, if
it is like that", preceding the words "take this."
The case as put to Slinger was also that the act of pulling out the
firearm was accompanied by the words "vat so", in English
"take this." Now however two further stages followed on
the words "take this", namely the lowering of the
deceased's hands from somewhere and the lifting of the deceased's
shirt with his right hand and only then was a firearm pulled out.
Dicks at this stage put it to the accused: "Did he take the
shirt with his right hand in the middle or to the one side of his
waist and the accused now answered: "In the middle." The
question was partly leading. The accused now also demonstrated that
the shirt was picked up in the middle of his waist and pulled
upwards and with his left hand he took out a firearm. The accused
then grabbed the deceased's left arm and demonstrated how it was
done. Mr Dicks put the following description on record: "He
took the deceased's left wrist with his left hand, with his right
hand he grabbed the deceased's left elbow and in an upward motion he
pushed the elbow approximately level with the ear of the deceased
and the deceased's left hand ended up below his left armpit."
accused now also ventured the following explanation: "The
deceased was shorter than me and it was easy and I pushed him."
accused said in the process the shot went off and he "jumped
back." His counsel Mr Dicks then said: "I
fell back" and the accused repeated after his counsel: "I
fell back." On a question by the Court the accused now said: "I
fell back on the ground."
then ran out in the order of Slinger first, Gerrie the deceased
second and then the accused third.
to the accused he saw the deceased going out the front door, then to
the outbuilding where he solicited help. He then noticed that the
deceased's upper body was bent and that he was injured. The accused
went to his own bedroom in the house and phoned an ambulance. When
he emerged from the room people asked him for a mattress and he gave
them permission to take one out of the third bedroom.
did not see the deceased lying in the kitchen before he was
eventually removed to the hospital by ambulance.
asked by the Court why he did not go to the deceased he said: "My
Lord, that time I was confused and I never hear, it was the first
time to hear a shot like that." The Court then said: "But
so much the more, one would expect that you would, if there was a
possible accident, that you would be curious to see whether the man
was actually hit and how he was hit." The accused replied: "My
Lord, I don't
want to see the man on that stage because he was my friend."
question that must immediately be' posed is: "Is this absurd
answer that of an honest and innocent person or does it reflect a
to the accused he left the house to tell his mother about the
incident as soon as he saw the deceased being loaded into an
ambulance. Later that night his friends and associates including
Rodney, Douglas and Rene, visited him at his mother's house and
informed him that Gerrie had died. They then walked back together to
his house, that is there the incident took place.
home he went to his room and there waited until 06:00 to 07:00 for
the police to arrive. He could not sleep because he was unhappy.
Rene, Rodney, Douglas and Bennie were in the house with him.
by the Court whether he told these friends and associates what had
happened he said "no." Asked "why" he said: "The
deceased Gerrie was my best friend and on that time I don't want to
say anything or talk anything. I was just staying in my room and
sleeping, lying in my room. " The Court then said, and I quote
from page 383, lines 29 to 384, line 7:
I must tell you, Mr Morkel, that one would have expected that on
that occasion when you were there with your friends you would have
told them the obvious thing, namely if that is what happened, that
the deceased suddenly pulled a pistol and when you tried to wrest it
from him or push it away an accident happened, a shot went off and
he shot himself. Now I put it to you that that seems to be what one
would normally have expected of a person in your position. What do
you say to that, Mr Morkel?"
accused replied: "My Lord, on that stage I was in a kind of a
situation but I can't explain to the Court how it was."
accused admitted that although he was told one or two days after the
incident that Sergeant Minnies was looking for him, the first time
he went to the police was on 15th June, that is about 15 days after
the incident. He also said that he stayed mostly at the house of his
mother during this period. It must be mentioned here that according
to uncontested evidence of Plaatjies, the girlfriend of the accused
and the accused's child remained at that house but the accused did
he, the accused, arrived at the police station he was interviewed by
Terblanche, another policeman and asked where the firearm was with
which the deceased was shot. His answer was: "Gerrie's got the
gun, he know about the gun" and "he must know where it is
because I don't have a gun." Again the answer was absurd and
evasive because Gerrie was dead and could not say what happened to
the gun after his death. Only the accused could say that because the
accused was the last person to leave the room where Gerrie was shot
and it was not, and could not be seriously contended that the
wounded Gerrie or Slinger had taken the firearm out of the room
where the shot was fired.
asked about the questions by Terblanche and Minnies about what
happened to the firearm with which the deceased was shot the accused
gave a sequence of evasive answers before he acknowledged that he
was asked what happened to such firearm and had said that he did not
another stage he denied that he said that the deceased had a pistol
and even motivated this answer as follows: "My Lord, I say I
didn't have a pistol and I never say that the deceased have got a
pistol because I said I will not make any statement."
only sensible reason why the accused on the night after the incident
left early, and after returning again left between 06:00 and 07:00
and why he did not go to the police earlier was because he did not
want to be confronted before the firearm was disposed of and a
plausible story could be concocted. Once his friends, particularly
Plaatjies, agreed to tell the police the concocted story he could
afford to wait to see whether the lie was swallowed by the police.
was noticeable that although in the accused's evidence-in-chief
several allegations made by the State witnesses Slinger, Helmuth
Dyers and Rene Plaatjies were placed in dispute but at no stage did
the accused repeat what was put to Slinger by Mr Botes regarding the
jacket and when and where the accused had put on the jacket. It
appears that the defence at the stage when the accused testified, no
longer wished to testify that the accused went into his room to
collect or at least did collect his jacket from the room before he
left for his mother's house or that he "only then put on his
jacket", because it was common cause that there was no
opportunity for discarding his jacket between arrival and the
shooting incident. If the accused arrived at the house already
dressed in black jacket, 'jeans and polo shirt there was no purpose
in going to his room to collect his jacket before he left unless of
course there was evidence or
explanation that after the shooting he first went into his room to
take off his jacket and then in turn to put it on again before the
left the house for his mother's house. There was no such
explanation. No wonder that at the inspection in loco
the accused first stated that he went into the room to again put on
his jacket, then explains it was a mistake and that in fact he did
not put on any jacket in that room but merely left with a jacket
that he had on from the beginning. He could not explain to the Court
how the mistake or slip of the tongue came about.
cross-examining Dyers who had testified that the accused had gone
into his room once or twice after the shooting and then came out
dressed in a coat, (in Afrikaans Dyers referred to a "jas",
which is the equivalent of coat and which is not a jacket). Mr Botes
then referred to Dyers allegation about a coat, but notwithstanding
that Dyers had twice explained that accused put on a coat, Mr Botes
misrepresented his evidence by saying that he had said the accused
put on a jacket. The interpreter then mistakenly translated the
question to the witness using the Afrikaans term "jas" and
when the witness said yes - she gave as accused's answer - "That's
correct, My Lord", which referred to his answer that it is
correct that it was a "jas" but which on the record it now
appeared as if the witness agreed that it was a "jacket",
which he never did. The fact that thereafter the witness used the
term "jacket" is obviously not because he conceded that
the accused put on a jacket and not a coat, but merely because he
began to assume that the correct term for the term "jas"
in Afrikaans is "jacket" in
further written submissions by Mr Dicks at the invitation of the
Court about this aspect of the record, Mr Dicks submitted that there
was some confusion. As a result of this submission the Court
reluctantly recalled Dyers to ask him what is it that he told the
Court. It was quite clear from his answers that according to him he
told the Court throughout that the accused had put on a "jas",
the correct translation of which is "coat". He was also
asked but what in fact did he see the accused put on that night
after he'd gone to his room and came out again. He unhesitatingly
stated that he put on a coat, in Afrikaans a "jas".
only reasonable inference from the aforegoing evidence is that the
accused did put on either a jacket or an overcoat in that room after
the shooting incident and that his last attempted denial is a
the light of the aforesaid contradictions and lies, read together
with the evidence of Dyers and Plaatjies and considering the motive
of the accused for the lies and contradictions, as well as the
probabilities, I accept the evidence of Dyers that accused put on a
coat after the shooting and before he left the house and the
evidence of Plaatjies that accused had not arrived at the house that
night clad in a black leather jacket.
reason for putting on a coat and the accused's
effort to deny it, is indicative of a guilty
relating to the coat. In the absence of an explanation by the accused
the only reason for this lie which springs to mind is that the
accused put on a coat to conceal the taking out of the house of the
firearm with which the deceased was shot. This fits in with the
probability that the accused was the person who removed the firearm
from the room where the deceased was shot. The possibility that one
of the associates or friends removed it, whether on their own
initiative as suggested by Mr Dicks, or on behalf of the accused is a
possibility, but in the particular circumstances not a reasonable
one. It was the accused who knew precisely what happened in the room
because he was a participant and witness and the last person to leave
the room. He had not only the best opportunity, but the motive to do
so because he obviously knew the implication of the discovery by the
police of the exhibit. On one of the questions by the Court he for
instance admitted that he knew that the police could find
fingerprints on a firearm should they retrieve it. His assertion that
he did not see whether the weapon fell down on the floor from the
hand of the deceased, never went back to the room after the shot and
never made any enquiry about the whereabouts of the firearm, can only
be explained by the fact that he knew that the firearm was not left
in the room or removed by any other person because he removed it
himself. His total inability to give a plausible explanation for this
failure supports this inference. ( See e.g. the record p. 622, line
13 to 624, line 8) . The fact that he left the house as soon as the
deceased was removed by ambulance and again gave an absurd
explanation for his hurried departure, further
accused explained in cross-examination that he had no time to discuss
the incident with his friends and colleagues before he left. When it
was put to him by the Court that the time was his own he could use it
as he liked, he replied: "My Lord, on that stage I feel I must
go to my mother's house." When asked why he did not tell his
friends and associates when he returned later that night, he said:
"Yes, I was confused at the time." When asked why he didn't
tell the police he said he did not trust them. When he was asked why
he did not tell his friends the morning after the incident he said:
"Because I was still confused and I just trust my mother and I
just told my mother." Ms Lategan then said, "Do you want to
say that you did not trust your friends to tell them what happened
there", he replied: "Yes." The Court then asked the
accused, "But why would you not be able to tell the truth to
your friends who were with you in the house and who must have been
worried about what happened to the deceased, why could you not tell
them the truth?" The accused replied: "Because we didn't
talk about that, My Lord." When told that that was not the point
and the question repeated, "why didn't you tell them what
happened," he said: "Because I want to talk to my mother."
When asked by Ms Lategan: "Did your friends in fact ask you what
happened there in the room between you and the deceased?" he
replied: "After the incident on that day I don't know what's
happened but I know' that I didn't tell them what happened."
of course one of the reasons for not telling them was because, just
as in the case of the firearm about which he made no enquiries, he
knew full well what happened and he knew that they knew.
important further indicator that the accused was the person and had
shot the deceased and not vice
was that the accused followed the deceased out of the room, without
knowing whether the deceased who according to him, wanted to shoot
him, was wounded or still armed. The accused when confronted with
this problem, again failed to give any comprehensible answer.
this totally unsatisfactory, improbable and prima
dishonest explanations of the accused, the other big dispute between
the State witness Plaatjies and the accused must be considered.
testified that when he notified the accused later in the evening that
Gerrie had died and wanted to know what is now going to happen, the
accused told him that they should not tell the police that the
deceased was shot in the house or by him. They should tell the police
that the deceased came running from the street to the front door and
that they found him there already wounded.
in fact the next day made such a statement to the police, but on the
same day on the' way to the police station, retracted the statement
and told them that his first statement was a lie because he
feared for his life.
then told the police the truth, namely that the deceased was shot in
a bedroom of the house.
averments by Plaatjies are corroborated by the fact that although the
deceased had a fatal wound, with the exit lower than the entrance
wound and that there must have been substantial bleeding, no
bloodstains were found in the house. No empty shell was found in the
house and obviously not the bullet that exited the body of the
deceased in that room. Nothing was found, notwithstanding a thorough
search in the house. It is probable that any indication of a shooting
inside the room was carefully removed so that the next morning when
the police arrived they would not find the slightest indication that
the deceased had been shot in the room of the house. That would have
been in line with the concocted story that the deceased was shot
elsewhere and came running to the front door of the house already
was also a young man of 24 years of age. The accused, 37 years old,
tall and athletically built, clearly was a leader and dominant
personality in the group of smugglers. Plaatjies and the others were
not in the room where the shooting took place and could only have
heard what happened there from either Slinger or the accused himself,
or both. It is highly improbable that Plaatjies or anyone of the
others would have taken the initiative to tell the police the false
story. The accused was primarily the interested party. It was for him
to give an explanation and to decide on tactics.
I compare the Plaatjies' version with the stories told by the
accused, then I have no hesitation in accepting the evidence of
Plaatjies on this point as true and that of the accused as false.
the allegation by Plaatjies that he saw when the accused arrived that
evening, the butt of a revolver or pistol protruding from the top of
the belt of the accused, deserves more caution. Plaatjies only
mentioned this in his second written statement to the police. He was
not very convincing when cross-examined by Mr Dicks as to the reason
or reasons for not mentioning this aspect before in his first written
Dicks was also relatively effective to show that the accused arrived
after darkness had set in and not at about 18:00 when there was still
light from the sun. He also made some other points such as that the
main gate of the yard was open and that the dogs could therefore move
in and out into the street.
it is clear that the light inside the house would have given some
illumination outside the front door if the accused arrived later than
the estimate of Plaatjies.
the inspection in loco
it was also seen that a high streetlight was situated near the
entrance to the small entrance gate and that its light w6uld
certainly have sufficiently illuminated the area from the street to
the front door of the house for Plaatjies to have been able to see
the butt of a revolver or pistol protruding from the trousers of the
accused when he entered the yard on his way to the front door,
provided the said streetlight was functioning properly at the time.
Although the accused at the inspection in loco
alleged that the light used to flicker and go off at the time of the
incident, there was no evidence that the light did not function at
the time when he entered the yard.
would have expected that the accused would have mentioned such an
important fact in his first written statement to the police and that
if he did so, the policeman taking down the statement would not
easily have failed to write down such an important allegation.
this criticism is the fact that the original allegation by the
accused that he wore a leather jacket that zipped close and that
Plaatjies would therefore not have been able to see the butt of a
pistol or a revolver protruding, even if he had one. This evidence by
the accused was contradicted by the accused and his legal advisers as
already analysed and discussed supra.
have also shown in the discussion supra
that the accused must have removed the firearm after the shooting. He
would only have removed it if he had brought it there. If he brought
the pistol or revolver with him then he could have had it readily
accessible for quick use, probably stuck on the inside of the
trousers with the butt either covered by his shirt or protruding.
accused could not have obtained the firearm from anyplace
inside the house after his arrival and before the shooting, because
there was a continuing movement after the accused's arrival at the
house in the course of which the accused took the deceased from the
lounge into the bedroom where the shot was fired.
or not the accused or the deceased had the firearm, the probability
is that it was stuck on the inside of the trousers with the butt
protruding above the trousers.
is probable in the circumstances that Plaatjies saw the butt of a
revolver or pistol protruding. It is however not necessary for the
purpose of the judgment to find positively that that was proved
beyond reasonable doubt, because it can be inferred beyond
reasonable doubt from all the evidence, the probabilities, the
inconsistencies, contradictions and proved lies by the accused that
the accused is the person who brought the weapon into the house and
who again took it out after shooting the deceased.
also testified in favour of the accused where he alleged that the
accused was under the influence of liquor when he arrived. The
accused denied this. But on the evidence as a whole he was in a
belligerent which could have had as one of its causes that he was
under the influence of liquor.
accused in his evidence admitted that he and his friends were
selling dagga and Mandrax but denied emphatically that the deceased
was also selling Mandrax and dagga on his behalf. He averred that
the deceased owed him this money for a long time as a result of a
loan. He could not say when he had granted the loan. He said Gerrie
always had money, but he could not say why, if that is so, Gerrie
did not pay him.
only did Slinger give unchallenged evidence that Gerrie, the
deceased, also sold Mandrax and dagga on behalf of the accused, but
the defence witness R Galant in cross-examination stated
unequivocally that the deceased traded in dagga and Mandrax before
he passed away and did so together with the accused, Rene, Herkies
and Plaatjies and that this smuggling took place at the house of the
accused where the incident took place. When Ms Lategan in
cross-examination asked him whether he "would be surprised to
hear that the accused told the Court under oath that the deceased
didn't smuggle", he replied: "It will surprise me."
the time the accused testified the evidence from Dyers, Slinger and
Plaatjies were overwhelming that the house where the incident took
place was a centre in Windhoek from which the accused and they,
dealt in Mandrax and dagga. Although the defence from the beginning
objected to this evidence, the Court overruled the objections and
held that the evidence was relevant and admissible.
evidence related to the setting i'n
which the alleged murder took place, it explained to some extent the
relationship between the accused, the witnesses and
threw light on the motive for shooting the deceased, helped to
explain why there was a conspiracy to mislead the police and who
initiated the plan. The Court was satisfied that the evidence about
illegal trading in Mandrax and dagga where the deceased was shot
referred to illegal conduct continuing at the time of the incident
and not necessarily to conduct on other occasions. The relevance is
not in order to show that the accused is a person of bad disposition
and must therefore be guilty of the crime charged; when the accused
testified it became common cause that the accused and others
smuggled Mandrax and dagga. Accused even could not truthfully
explain why the aforementioned persons were staying at his house.
Defence counsel, after arguing that the evidence was inadmissible,
nevertheless gave as an explanation for the disappearance of the
pistol the type of person who were in the house, suggesting their
involvement in illegal activities. Surely if it was relevant for the
defence to show that the argument between the accused and deceased
was about a loan unpaid, then it was relevant for the State to show
that it was about money not paid over to the accused for selling
drugs on his behalf.
is not necessary to elaborate further on the issue of admissibility.
For the purpose of deciding why the deceased was shot, the fact is
that like the other occupants, the deceased also sold Mandrax and
dagga on behalf of the accused and that the deceased owed the
accused money not for a loan but for withholding monies received
from Mandrax and dagga. The evidence of the accused that the
deceased never sold Mandrax and dagga is against the evidence also
of the defence witness. The evidence of the accused on this point
was vague and unconvincing. His protestation that the deceased, an
18 year old youth, was his best friend, was ludicrous. He never
assisted his friend after he was shot. He did not go near him or
follow him to the hospital. He did not assist the police to find the
weapon or otherwise, to establish the truth about the death of his
friend. When accused assaulted the deceased in anger, he did not
conduct himself as a friend, but rather acted like a drug lord
imposing discipline on his inferiors.
accused in general fared hopelessly in cross-examination and on
questions put by the Court.
saying that he had an argument with the deceased about the money he
was asked: "And what did the deceased argue on his side back to
you, what did he say back to you about the money?" Accused
replied: "He didn't say anything. All what he say is 'take
this' and what I
saw it was a revolver."
So again the impression is left, the words "take this" and
then the revolver was there. Not now a lowering of arms from
somewhere, where the deceased is busy with something, then a picking
up of his shirt with the right hand and then a grabbing of a
to the one version by the accused, when they entered the room, he
said: "How's it - hoe is dit." And the deceased now said:
"Praat nou klaar!" which in English is "finish
speaking!" That the deceased would have almost
the accused - "finish speaking!" is totally-improbable and
clearly a fabrication.
this stage there was another significant slip of the tongue by the
accused. Although he initially said that things happened so fast
that he could never see whether the firearm was a pistol or a
revolver, he now slipped twice in succession when he said: "My
Lord, he said take that and the time when I saw the firearm, the
revolver...." "All that he say is take this and what
I saw it was a revolver.
" (See record p. 441).
must be remembered that the accused admitted when recalled by the
Court that he knew the difference between a pistol and a revolver.
(See record pp. 621, line 31 to 622, line 12) .
few other aspects of the evidence of Dyers and the defence stand on
that, need be mentioned. According to Dyers, he was one of the
persons who sold Mandrax and dagga for the accused.
the evening of 1/6/93 the accused entered the lounge where he and
others were watching TV and where the deceased was also present. The
accused entered, grabbed the deceased in front of the chest and took
him along the passage to a bedroom at the end of the passage on the
right-hand side. About 3-5
minutes later a shot rang but and the deceased came running out of
the room and went outside the house. About 3-4
minutes later the accused followed and entered the lounge where
Dyers and Stephen Humphries, known by the nickname of Toelie, were
at the time. The accused said to Humphries "give me my money."
Humphries said: "What money?" The accused did not answer.
Dyers then said to the accused that Toelie does not owe him any
money or anything.
Botes cross-examined Dyers and put it to him that it was actually
the deceased who asked to talk to the accused when the accused first
came into the house. He denied that the accused had grabbed the
deceased in front of the chest or that he had pushed or dragged the
deceased into the aforesaid bedroom.
Botes repeatedly put to Dyers that the deceased had gone outside the
house and re-entered several times and never saw Dyers and Humphries
in the lounge. He actually asserted they were not there and he spoke
to any of them about money.
insisted that he and Humphries were in the lounge when the accused
spoke to them about the money.
pointed out supra
in this judgment the accused later repudiated that he was in and out
of the house several time before he left for his mother's house. One
of the suggested reasons relied on for disputing Dyers's evidence
about the conversation about the money, being that he was in and out
of the house and that Dyers and Humphries were not seen in the
lounge, therefore fell away.
is noteworthy that here again the accused at the
inspection in loco
repudiated his whole stand regarding the presence of Dyers and
Humphries in the lounge after the shooting and this appears from
Exhibit J which is a record of the inspection. Paragraph 10
accused then went to the lounge from where he saw that the deceased
was being loaded into the vehicle of the lady living across the
street. The ambulance then arrived and the deceased was loaded into
it. According to the accused, Helmut Dyers and one other person were
in the lounge at that stage."
did not know that according to Slinger the deceased Gerrie had
promised the accused that he would get the money from Humphries the
next day to repay the accused. It is a strange coincidence that
Dyers testifies that accused after the shooting, confronted
Humphries in the lounge to ask for his money. There is no reason to
believe that Dyers sucked this out of his thumb. Slinger's evidence
about Gerrie's promise, was the obvious reason why the accused then
demanded his money from Humphries.
stuck to his guns on this and other issues. I have no doubt that he
was telling the truth on this and other issues and that the accused
was again telling lies insofar as he disputed the evidence of Dyers.
fact that the accused demanded the money from Humphries, known as
Toelie, shortly after the deceased was shot shows the belligerence
of the accused at* the time and his obsession with collecting his
defence witnesses Galant, Abrahams and Paramore did not really
assist the defence. Galant as I have shown repudiated the evidence
of the accused in regard to the accused's denial that the deceased
was selling Mandrax and dagga for him. Paramore's evidence that
Gerrie had broken into his gambling machines some years ago, but
that there was no prosecution and that one Gerhardus and one Ou Boet
had reimbursed his losses within three days after the event, was no
corroboration of the accused's allegation that the deceased had
borrowed money from him.
as Galant was called to testify about certain conversations with
Plaatjies indicating malice towards the accused, this evidence was
vague, full of contradictions and a dismal failure to attack the
credibility of Plaatjies.
defence did not call any of the friends of the accused who were
present at the house of the accused on the date of the incident.
remains is to highlight some of the points made in the evidence of
Dr Liebenberg who had done the post-mortem examination.
main findings was that the deceased had died as a result of a shot
wound through the abdomen. She gave the following details:
fatal shot wound: Entrance lateral left thorax, a 8cm central round
wound, with powder blackening up to 15mm around the central wound,
with a wide collar of bruising. From here a shot wound tract
downward to the right, through the 9th rib left lateral, grazing the
left lower lobe edge, through the left diaphragm, shattering the
spleen and rupturing the left renal vein, in and out of posterior
wall of the stomach, lacerating the duodenum and through the
abdominal wall of the right hypochondrium. Exit: 10mm round wound
lateral right flank, with omentum prolapsing.
vertical distance between the entrance and exit wound was 14 0mm."
Dr Liebenberg elaborated on her evidence on her report in her viva
evidence and there are a few aspects that need to be briefly
asymmetrical form showed that the muscle was not at a 90° angle
towards the skin, it was held aslant and the widest part of the
powder blackening, that means the part upward from the central
wounds, shows towards the body of the gun. Towards the body of the
firearm the stock and barrel would be closest to the widest part of
powder blackening. So in relation to the wound in this body and
according to the schematic sketch I've drawn up, if I may show on
myself, the angle of the weapon in relation to the body would have
later explained the shot shattered the 9th rib on the left, so some
amount of deflection could have happened but put together with the
entrance wound shape and figuration she concluded that the tract was
downwards from the start.
her opinion the firing of a shot from a position demonstrated to
her, at that stage when she originally gave evidence, it would
have been extremely difficult, not
but not at all comfortable if the deceased was the person holding
the firearm and if he held it in his left hand. Then as far as
holding it in his right hand she said that that is so uncomfortable
that this happening was negligible. She also said that the deceased,
in view of the bleeding of the spleen which was ruptured would have
fainted within 10 to 15 minutes.
when Dr Liebenberg was recalled she further elaborated on her
previous evidence and at this stage she now had a proper
demonstration of the accused's case of how the wound was
self-inflicted actually by the deceased.
not necessary to go into all the questions and answers. The fact
remains that in sum she was of the opinion that although
inconvenient or very difficult, it was reasonably possible that the
wound could have been inflicted as demonstrated on behalf of the
said that the difference in height between the entrance wound and
the exit wound was 14 cms and that there was definitely, the pistol
or the revolver must have been held at an angle at the moment that
the shot was fired. However apart from that fact she could not say
to what extent the direction would have been deflected because of
the fracture of the rib by the bullet and concluded that what could
however be said is that at the moment of firing it was held at a
slant, with other words at some angle pointing downwards. She also
said that from her inspection of the exit wound the weapon used must
have been anything from an 8mm to a 9mm and that in her opinion,
when the bullet exited the body of the deceased, it still had quite
a lot of power and it was a forceful exit. One would therefore have
expected that* the bullet would have exited in the room where the
deceased was shot and should have been found there but, according to
the police, the next morning everything was clean and nothing of
this nature was found.
was also asked about the characteristic of a person who is
right-handed or left-handed and she explained that phenomenon as
follows and I quote: "Apparently I don't know if it's
genetically inherited but it has to do with a specific structure and
function of the brain lobes where in a left-handed person the right
hemisphere dominates over the left hemisphere in that specific
aspect whereas in right-handed people it's the other way around."
the argument was raised and considered whether if the pistol was in
the centre of the body of the deceased and the deceased tried to
grab it with his left hand, whether that would have been awkward or
possible or reasonably possible. On cross-examination by Mr Dicks
and his demonstration of how deftly he could do such a movement
himself she conceded that it may be that it is not that difficult.
The Court's impression however is that even to have done that, to
take out a pistol in the centre of your body with your left hand
when the butt points to the right would be an awkward movement and
you would actually have had to twist your wrist to take a pistol in
that position. Then of course it must be remembered that, as I've
shown in the analysis of the evidence, that this position of the
pistol in the centre of the body was an afterthought and totally
inconsistent with the original allegation by Mr Botes on behalf of
a few remarks can be made lastly about Slinger's evidence. Because
of the intimidation with which I have dealt in the judgment the
thought came up whether Slinger was not so scared of the accused
that although he saw a weapon he did not want to tell the Court that
because he did not wish to be the cause of the accused being
incriminated and perhaps convicted. However, on proper consideration
I have come to the conclusion that there is no good reason to really
doubt the evidence of Slinger that in fact he did not see a firearm,
either in the hands of the deceased, or in the hands of the accused.
Here again it appears to be common cause, also confirmed at the
inspection in loco, that the accused at the time of the shooting was
actually crowding the deceased and was very near to the body of the
deceased. He was not standing at arm's length. That was at least the
assertion of Slinger. Now it is also common cause that the accused
is a substantially larger person than the deceased with a relatively
athletic build whereas the deceased was described by Dr Liebenberg
as an adolescent boy, 18 years of age, 1.72m high and 51kg weight.
He must have been dwarfed by the accused who was, according to the
doctor's measurement here in court, 1.86m.
Dicks argued throughout that it was possible for Slinger not having
seen the weapon, even if it was a fairly heavy calibre because you
do find heavy calibres which are not
big in size and he produced to the Court for the Court's inspection
a .38 special with a rather short barrel. Now this type of weapon is
also well-known to the Court and I have no hesitation in agreeing
with Mr Dicks that a firearm of that type is not necessarily very
large and it would be not impossible for a person to hold that
weapon in his hand without much of it protruding. Now if the accused
for instance had the weapon and he took it out of his belt in a
sudden movement and pushed it against the body of the deceased,
close to him, with his hand holding the weapon in front of his
chest, the witness Slinger would not necessarily have seen it.
is obvious however that if the deceased had the pistol and if his
pistol hand was forced to the side and upwards so that his elbow is
to the left and at the same height as his ear, then it becomes
rather unlikely that Slinger would not have seen that if there was
such a movement. What possibly happened here is that the pistol was
pushed by the accused more or less against the body of the deceased
and that the deceased then made an evasive action and with that
attempted movement of the body the barrel was moved into a position
posterior on his left flank whilst slightly downwards when the shot
was fired by the accused. Now the fact that the shot could have been
fired in the way presented by the accused and that that may be
reasonably possible taken in isolation, the question is whether in
the light of all the facts and circumstances, that was a 'reasonably
possible conclusion of what had happened.
have no doubt whatsoever that with certain qualifications which
appears from my analysis, the evidence of the State witnesses in
substance must be accepted and that of the accused rejected insofar
as it differs from that of the State witnesses.
this conclusion I must stress again that almost every aspect of the
accused's conduct after the shooting, was not consistent with that
of an innocent person but rather that of a guilty mind.
must also refer to a well-known decision relating to circumstantial
evidence. I must point out that this whole case does not depend
solely on circumstantial evidence but on credible and very
meaningful other facts. But it is so that as to the final
consideration of whether or not the accused shot the deceased some
circumstantial evidence is part of the totality of evidence and the
test for such evidence should therefore be considered, even if the
whole of the evidence does not consist of circumstantial evidence. I
refer here to a passage quoted in the Appellate Division in R
v De Villiers,
1944 AD SALR at 493, at 508 where the learned judges of appeal, per
Davis, A.J.A., quoted from Best, On Evidence (5th ed. 298) with
approval, and this passage reads as follows:
to speak of greater number; even two articles of circumstantial
evidence - though each taken by itself weigh but as a feather - join
them together, you will find them pressing on the
with the weight of a millstone It
of the utmost importance to bear in mind that, where a number of
independent circumstances point to the same the probability of
the justness of that conclusion is not the sum of the simple
probabilities of those circumstances, but is the compound result of
when I therefore consider this approach and consider what the Court
found as acceptable evidence and what the Court found to be false
evidence by the accused, I have no doubt that the only reasonable
inference is that the accused on that particular night shot the
the accused did not explain why he shot the deceased because the
defence tactic was one of all or nothing. Theoretically it may be
that the accused wanted to threaten the deceased, wanted to scare
him and that a shot went off accidentally, but in the light of the
accused's evidence, the defence here before Court, I cannot regard
that possibility as a reasonable possibility and decide in favour of
the accused on that basis.
the finding that the accused did shoot the deceased and without any
other explanation, I am constrained to also find that the shooting
was intentional, in that the accused must at least have foreseen and
did foresee the reasonable possibility of death resulting from such
a shot wound and either reconciled himself to this possibility or
continued, reckless as to whether the deceased would die or not.
Mr Morkel, you are found guilty on the main charge of Murder.
1994.09.13, 1995.05.09 + 10,
- 10, 1995.12.06 - 08, 1996.02.12, 1996.03.27 + 28, 1996.04.03
Delivered on: 1996.04.03
Morkel, it is now time to impose an
sentence on you for the crime you have committed. When imposing
sentence the Court must consider the aims of retribution, deterrence
and rehabilitation. The Court must also be merciful when mercy is
justified. Some judges have stated that mercy and not a sledgehammer
is a concomitant of the function of imposing sentence. At the same
time the same judges have made it clear from time to time that mercy
does not imply maudlin sympathy. The Court normally goes about the
task of sentencing by considering the personal circumstances of the
accused, the nature and gravity of the crime he or she has committed
and the interest of society.
are a few remarks I need to make at this point in time in the
history of Namibia and that is that the interest of society,
particularly the victims of crime and the potential victims, need
new emphasis so that at least it is balanced with the interest of
the accused and/or convicted persons. To put it another way, the
fundamental rights of the law-abiding citizen need new emphasis and
must at least be balanced with that of the accused and convicted
persons . We know that the Namibian Constitution does not allow a
murderer to be sentenced to death. The fundamental rights, even of
every murderer, however grave his or her crime, are protected by our
Constitution. It is also claimed from time to time in the Courts of
Law that a convicted person still retains his absolute right to
dignity, whatever his or her crime. But the law-abiding citizens and
victims of crime certainly also have a fundamental right to life, to
dignity, to peace and tranquility and to the security of person and
a person is convicted, for instance, of the crime of murder, that
person has destroyed all the aforementioned fundamental rights of
the victim and has done so without a fair trial, without any respect
for the life and dignity of the victim and without mercy. All organs
of Government, including the Courts, are duty-bound by Article 5 of
the Namibian Constitution to protect the fundamental rights of all
persons. The law-abiding citizens are certainly at least as
important a part of society as are accused persons or convicted
persons. The question is, how can the Court protect the law-abiding
citizens and the victims of crime in
times of escalating crime? It seems that the only weapon available
to the Courts is to mete out punishment which has the potential of
deterring the convicted person and like-minded persons from
committing such crimes in future and when necessary, to permanently
remove them from society. Society must also feel that a convicted
person will be given a sentence which is of such a nature that such
person will also feel some of the pain inflicted on the victim. The
aim of retribution remains important if the Courts wish to avoid
vigilante justice and eventual anarchy. Furthermore, if the aims of
retribution and deterrence are not given the necessary weight,
society will lose confidence in the system of justice and that is
not in the interest of any person and any democracy. To give
considerable weight to the aim of retribution, does not lower the
Court to the status of the criminal, as is often claimed, because
the Court on behalf of society, imposes its sentence only in the
course of a fair trial. This is the complete antithesis of the
conduct of the criminal. Obviously the aim of rehabilitation remains
an important consideration when imposing sentence.
now return to consider firstly the personal circumstances of the
accused placed before the Court.
accused, according to his counsel, is now 40 years of age and he was
37 years at the time of the murder. He was born in South Africa and
after studying at various places he attained the qualification of
what was known as standard nine. The accused's mother was a
teacher for the best part of her life. The accused is therefore not
a person without education and is not a person who had an extremely
bad start in life. The accused also did various jobs from time to
time but did not complete his apprenticeship studies as a fitter and
turner and decided to become a fisherman so that he could earn much
more money. He also at some time in his life did jobs such as a
painter for a short period of time. The accused is still unmarried
but he claims to have three children with two separate mothers. Two
of the boys are living with the one mother and the_ other daughter
with another mother. It is said that the accused had to the best of
his ability at times maintained to some extent some of these
children. The accused's mother died at the end of 1995 and
apparently his father is still alive and living in Cape Town.
is the picture of his personal circumstances painted on his behalf
by his counsel and on his instructions. What must also be taken into
consideration and which is of much greater importance is that the
accused is not a first offender. The accused was convicted in
Bellville in the Cape in 1987 of the possession of a dangerous
weapon. In that case it was a knife and he was sentenced then to R60
or 30 days imprisonment. But then, only the following year and that
is on 19th August, 1988 he was convicted of a serious housebreaking
with the intention to steal and theft where he broke into a premises
and stole cash and other goods to the value of $2 342. On that
occasion he was sentenced to 4 years imprisonment of which 18 months
were suspended for 5 years on condition that he is not again found
guilty of the
of housebreaking with intent to steal and theft.
the time when the accused shot and killed the young man by the name
of Gerhardus Jacobus van Wyk, the accused was engaged in other
illegal activities, namely the leader of a group of persons who were
engaged in buying and selling Mandrax, cannabis (that is dagga) or
mixtures of that. And as the Court found in the course of the
judgment on conviction these activities included areas such as
Walvis Bay and not only Windhoek. The Court found that the accused
had shot the deceased with either a pistol or a revolver. This
pistol or revolver was never found and as the Court found the
accused must have removed and hidden the murder weapon. The fact
that he used a firearm and the fact that his own evidence and that
of the State was that he did not have a licence for any firearm,
shows that at the time of this murder, in addition to being involved
in illegal drug dealing, he was again carrying a dangerous weapon
and in this case a revolver or a pistol.
personal circumstances of the accused do not justify a merciful
approach towards the accused. The accused, up to this moment, has
shown no remorse, no contrition whatever for the deed he had done.
The accused made use from the beginning of his fundamental right to
remain silent. At no stage did he co-operate with the police, at no
stage was he open with this Court. Even at the time of plea the
Court was informed by his counsel that his defence would appear from
time to time as may be necessary and would appear from
cross-examination. According to the evidence accepted by the
Court the accused, after the commission of the crime, removed
himself from the scene, he removed the murder weapon and he
conspired with his friends to mislead the police to defeat the ends
of justice by telling them a false story, namely that the deceased
had arrived at his, the accused's house, already wounded elsewhere.
And it was significant that some further attempts must have been
made to fit in with this attempt to mislead the police and to defeat
the ends of justice. There was actually no blood marks or any other
indication of the shooting found in the house, although the deceased
had a very severe gunshot wound which entered his body on the one
side and exited on the other side. So the probability is that there
was a concerted effort to also destroy all signs of the crime to fit
in with the fabricated story that the deceased had arrived at that
house already mortally wounded.
must be clear from these circumstances that there is nothing there
justifying a finding that there are mitigating circumstances. As a
matter of fact, these other factors are all or mostly of an
aggravating nature. The fact that a 4 year sentence did not deter
the accused from committing crime, the fact that a partly suspended
sentence did not assist him to rehabilitate himself, are important
factors counting against the accused.
must now look at the crime committed. The facts of that crime appear
more fully from the judgment on conviction and it is unnecessary to
repeat all of them. It seems, however, that when the deceased
was shot, the deceased was a youngster of 18 years of
age. The accused, as is obvious, is a much taller person,
well-built. The deceased at the time of the shooting pleaded with
the accused to allow him to repay him an amount of money claimed by
the accused but the accused did not want to listen. He was angry and
proceeded with an assault on this young man which culminated in the
shooting. If the accused had any reason to be angry, as he might
have had, it would have sufficed if he assaulted the deceased by
giving him a few blows with an open hand. I am not saying that would
have been .justified but it could be understood. Instead, this
pleading and frail young man was deprived of his right to life with
a deadly weapon, either a pistol or a revolver.
I look at the nature of the crime there is one important factor in
favour of the accused. Mr Dicks for the accused argued that this
crime of murder was not premeditated. With that is meant not that
the killing was not intentional at the time of the shooting, but
that there was no previous planning. That is always a very important
factor to consider when considering the gravity of the particular
crime. This is not a case where the accused went out on a mission to
rob or rape and was prepared to kill, if necessary. The position
appears to be that although the accused carried an unlicensed
dangerous weapon with him, he must have been angry and his assaults
on the spur of the moment culminated in shooting.
the Court was not assisted by any openness from the side of the
accused in the sense that he failed to tell the Court that, for
instance, he never intended or planned to shoot the person and that
it happened on the spur of the moment. But it seems that there are
no factors whatsoever to detract from the probability that the
shooting of the deceased was on the spur of the moment and not
premeditated in the sense of prior planning, prior and advanced
consideration. The crime is nevertheless a brutal and cowardly one.
The accused snuffed out the life of this young person who was
probably involved with him in the illegal activity of drug dealing.
is therefore clear to this Court that it would fail in its duty, it
would fail in its need to attempt by its sentence to deter the
accused, to make the accused also feel some of the pain, not all the
pain, but some of the pain suffered by the victim, should the Court
not impose a heavy sentence. The consideration of rehabilitation
does not justify any big or great deduction in a sentence that a
Court would otherwise have imposed and this is because the accused
is not a first offender, he is not a very youthful person, he is not
a juvenile and he had a very good opportunity to consider his future
lifestyle when he was in prison and part of his sentence was
suspended. If that did not help him in the period 1988 to 1990, I do
not see how, for instance, a partly suspended sentence would be
justified. If I did not find or if I could not find that this
particular murder was not premeditated in the sense I have
explained, then I would have had no hesitation to impose on the
accused the sentence of life imprisonment. However, mainly as a
result of the fact that it has not been
that the crime was premeditated, I have decided that it will be
appropriate in this particular case not to impose life imprisonment
but nevertheless a long fixed term of imprisonment.
the result I sentence you to twenty (20) years imprisonment.
BEHALF OF .THE STATE:
BEHALF OF THE ACCUSED: (1994.03.10 - 1995.10.06) Instructed by:
BEHALF OF THE ACCUSED: (1995.11.08 - 1996.05.14) Instructed by:
L C BOTES
Van Wyk & Partners