NO.: CC 16/2007
THE HIGH COURT OF NAMIBIA
the matter between:
on: 07 - 08 May 2007
on: 09 May 2007
 The accused was charged with the murder of Josephina Mwadina
Johannes by stabbing her with a knife on 17 September 2005. He
pleaded guilty to the charge and confirmed a plea explanation in
terms of s 112(2) handed in by Ms Kishi who appeared for him,
instructed by the Directorate of Legal Aid. In the plea explanation
he admitted that he pleads guilty to the charge of murder on the
basis of dolus
He further admitted that he stabbed her with a knife in the chest
causing her death.
Ms Jacobs on behalf of the State accepted the plea and he was
convicted of murder.
No previous convictions were proved.
The accused testified in respect of mitigation. He related his
personal circumstances. He is now 38 years old and has a mother that
he estimates to be 60 years old. He is married in terms of the common
law and has 5 children ranging in age from 15 to 3 years. Except for
the youngest, the others attend school. He earned money from making
traditional baskets and constructing roofs for houses to the extent
of N$600-N$800 per month. His wife is unemployed and if he is send to
prison, he does not know who will look after them. He spent one year
and a month in prison.
The accused also told the Court what happened when he stabbed the
deceased. It happened in a shebeen and he intervened in an argument
between the deceased and another lady in order to stop the argument.
She was drinking and he was sober. The deceased threw him with water
and then with the glass, which injured his thumb. He then used his
Okapi knife and stabbed her. He does not feel good about what he did
and pleaded for a fully suspended sentence.
The State called Simon Jason who was also at the shebeen that
evening. He confirmed the argument between the deceased and another
lady. According to him the accused hit the deceased with a piece of
wood and when this witness took it away, he just took another piece
of wood to hit her again. He was stopped by the witness who held his
arm. He had an open knife in his trousers’ pocket with which he
stabbed the deceased twice. He admitted that the deceased threw water
from a glass on the accused. The witness assisted the deceased who
later died in the hospital. The witness said he saw that the
accused’s knife was an Okapi knife. The knife that was used to stab
the deceased, Exhibit 1, is an Okapi knife.
Dr Armando Ricado did the post
examination of the deceased and found 3 stab wounds, of which one
entered her body between the 6th
ribs and penetrated her heart. This wound caused her death. The other
wounds were not fatal. The doctor said that Exhibit 1 could possibly
have caused the stab wounds.
Ms Kishi conceded the seriousness of the offence and that society
would expect that the accused should be punished, which punishment
would include imprisonment, but asked that part thereof be suspended.
She also submitted that there was some provocation when the deceased
threw water on the accused and that he showed remorse by pleading
guilty and not wasting the Court’s time.
Ms Jacobs argued that the accused’s personal circumstances are not
so significant that it can ever overshadow the crime and the
interests of society. She submitted that a severe sentence of at
least 15 years imprisonment would be the only proper punishment for
In considering what an appropriate sentence for the accused should
be, the Court considers the elements of retribution, prevention,
deterrence and reformation or rehabilitation and attempts to
incorporate a combination thereof in the sentence to be imposed.
Furthermore, a balance of the circumstances relating to the accused,
the crime and society, coupled with a blend of mercy is the aim that
the Court’s attempts to achieve when imposing an appropriate
1969 (2) SA 537 (A) and S
1975 (4) SA 855 (A)).
I have considered all the interests mentioned, as well as the
appropriate elements applicable to punishment of an accused. It
cannot be ignored that a living person who most probably also had
dependents, died because of the conduct of the accused. If the water
thrown on him constitutes provocation, it is so negligible and
definitely did not call for the accused’s brutal and severe
retaliation. I have my doubts though, because according to Jason, the
accused did much more than he was prepared to tell the Court; he hit
the deceased with a piece of wood and when Jason took it away he took
another piece of wood to continue this assault. When he was stopped,
he took a knife which was already open and stabbed the deceased not
once, but 3 times. He directed at least 2 stabs at her chest, a
vulnerable part of her body. I have no doubt that he intended to kill
her as he pleaded. His plea on the basis of dolus
was accepted and he was convicted accordingly.
I have dealt with the nature of the offence and accept that society
would expect that a person who committed murder in that manner would
be severely punished. Although I have considered his personal
circumstances, I agree with the State that the only suitable
punishment for the accused is a long term of imprisonment. Such
sentence would serve all the elements that I have referred to. I
shall suspend part of that sentence in the hope that he will be
rehabilitated and to prevent him from committing such serious offence
The accused is sentenced to 18 years imprisonment of which 5 years
are suspended for a period of 5 years on condition that the accused
is not convicted of murder or of culpable homicide where a dangerous
weapon is used, committed within the period of suspension.
BEHALF OF THE STATE: MS H. JACOBS
BY: OFFICE OF THE PROSECUTOR-GENERAL
BEHALF OF THE DEFENCE: MS F. KISHI
BY: DIRECTORATE OF LEGAL AID