Court name
High Court
Case number
CC 25 of 2007
Title

S v Sezuni (CC 25 of 2007) [2008] NAHC 91 (22 September 2008);

Media neutral citation
[2008] NAHC 91

















CASE
NO.: CC 25/2007



SUMMARY











THE
STATE v ALFRED SIMASIKU SEZUNI











MULLER,
J








22
September 2008








  • Criminal
    proceedings



  • Charges:
    1. Murder





  1. Importation
    and/or possession of a machine gun, to wit an AK 47 from Zambia into
    Namibia ( s 29(1)(a) of Act No 7 of 1996)



  2. Possession
    of ammunition without a licence (s 33 of Act No 7 of 1996).





  • Accused
    plea guilty to all 3 charges not accepted in respect of charge 1
    murder. Accused convicted on charges 2 and 3.



  • Trial
    proceeded in respect of murder charge. Evidence consisted of oral
    evidence by State witnesses and accused, as well as a) record of s
    119 proceedings (CPA) and b) two written statements –
    “confessions” by accused handed in by State without
    objection by defence;



  • Evidence
    of State witness accepted and that of accused analysed, against
    statements made during the s 119 proceedings, with reference to S v
    Hubert Shikongo & 2 Others , Case No SA 3/1999, and 2
    conflicting statements by accused;



  • Accused
    found guilty of murder on basis of
    dolus
    directus

    on 28 July 2008;



  • Sentence
    on 19 September 2008;



  • Evidence
    of accused and 2 witnesses in mitigation considered;



  • Evidence
    by wife of deceased, called by State in aggravation considered;



  • Statements
    made by deceased, which would normally be hearsay, considered to
    establish the state of mind of accused. However, such evidence only
    to be accepted if accused is a credible witness. Accused not found
    to be a credible witness in respect of the what deceased said of did
    without corroborating evidence;



  • Corroboration
    of accused in respect of what deceased said to him limited to one
    day, 28 February 2005 with corroboration by 2 other witnesses.
    Existance limited provocation accepted.



  • Factors
    relevant of sentence and approach of Court confirmed of sentence
    discussed to imposing. (
    S
    v Zinn

    1969 (2) SA 537 (A);
    S
    v Rabie

    1975 (4) SA 855 (SA);
    S
    v Tjiho

    1991 NR 361;
    S
    v Victor Musweu

    unreported judgment of 17 October 2007, Case No CC 01/2007).



  • Elements
    of retribution, prevention or deterrence and reformation or
    rehabilitation discussed and confirmed;



  • Not
    possible to strike a balance between the relevant factors. Such
    factors does not imply that it should carry equal weight. Personal
    circumstances of accused outweighed by other factors. S v van
    Wyk1993 NR 426 (HC) at 448 D-E followed.



  • Importation
    of AK 47 from Zambia for purpose to kill the deceased Sentence a
    custodial sentence to be imposed to run consecutively to sentence on
    murder conviction.



  • Sentence
    imposed:





  1. for
    murder – 26 years imprisonment



  2. for
    s 29(1)(a) Act No 7 of 1996 conviction of AK 47 – 6 years
    imprisonment



  3. for
    s 33 Act No 7 of 1996 conviction of ammunition – 1 year to run
    concurrently with sentence on second conviction.



  4. accused
    declared unfit to possess a firearm for 5 years after completion of
    his sentences;



  5. forfeiture
    to State of AK , ammunition and other exhibits relating to the AK
    47.




















CASE NO.: CC 25/2007


IN
THE HIGH COURT OF NAMIBIA






In the matter between:








THE
STATE









and








ALFRED
SIMASIKU SEZUNI ACCUSED








CORAM: MULLER,
J








Heard
on: 16 September 2008





Delivered
on: 19 September 2008










SENTENCE



MULLER, J.:
[1]
On
28
July
2008 the accused was convicted of murder on the basis of
dolus
directus

on the first charge. Previously, on 03 June 2008 the accused had been
convicted on charges 2 and 3, namely of contravening s 29(1)(a) and s
33 of the Arms and Ammunition Act, No 7 of 1996 by the unlawful
importation of and/or possession of a machine gun, to wit an AK47 and
the unlawful possession of ammunition, respectively.







[2] The
case was postponed until 16 September 2008 for the purpose of
sentence. Mr Karsten still represented the accused on the
instructions of the Directorate of Legal Aid and Mr Shileka appeared
for the State. The reason for this postponement was to afford the
accused the opportunity to obtain the evidence of witnesses to
testify in mitigation of sentence.







[3] Apart
from the evidence of the accused himself, two other witnesses were
called by the defence to testify in mitigation of sentence, namely Ms
Mary Mabuku and Mr Eugene Sanduna.







[4] In
his testimony the accused dealt with his personal circumstances, as
well as the attitude of the deceased towards him since he lost a head
of cattle, until the time when he shot the deceased. The accused also
told the Court how he felt before the incident and thereafter. The
accused’s personal circumstances are the following:








  1. he
    is now 31 years old, 27 years at the time when the offence was
    committed;



  2. he
    is married and has two young children of a month and 3 months old,
    respectively. The children have different mothers;



  3. He
    used to maintain his own wife and child and since October 2004 he
    provided the mother of the other child with N$150.00 per month. His
    wife was not employed and the accused was the sole breadwinner;



  4. At
    the time he was employed as a farm labourer at Katima farm where the
    deceased was the foreman and he earned N$400 per month with rations;



  5. He
    has a clean record;



  6. He
    feels very “bad” about what happened and concedes that
    he acted wrongly and must be punished for his deed. He accepts that
    he will receive a direct custodial sentence. He also feels “bad”
    about the loss that the deceased’s family suffered because of
    his deed; and



  7. He was already spent more
    than three years in custody since the shooting of the deceased.








[5] The
accused testified that because of the deceased’s attitude
towards him after the loss of the head of cattle, he did not feel
“okay”. Without his salary he was in a difficult position
to maintain his family. He testified that he approached Ms Mabuku,
the labour inspector on 28 February 2005 and explained his problems
to her, namely that the deceased refused to pay his salary. After Ms
Mabuku managed to stop the vehicle of the deceased, the latter was
confronted by Ms Mabuku. The deceased enquired why the accused was
there and Ms Mabuku then continued with a discussion in respect of
the accused’s complaint that he was not paid. The deceased
replied that the accused did not work properly and lost cattle. After
a discussion in that regard, the deceased said that he
“will
kill (the accused) and bury him on the tarmac”
.
Ms Mabuku cautioned the deceased not to get angry, but the deceased
repeated his threat to kill the accused. That made the accused to
feel not “
okay”.
The deceased then drove off. During cross-examination the accused
mentioned that the deceased also called him a
“baboon”
in the sense that he
“will
just kill this baboon.

Because of the attitude of the deceased and threats made by him, the
accused and Ms Mabuku went to the charge office to lay a charge
against the deceased. It is not exactly clear what the charge was.
The accused, however, felt that because the police failed to follow
up the complaint that evening, he had no option than to obtain the AK
47 to force the deceased to pay his money. This he did the next
morning. The accused had problems to explain his previous statements
to the magistrate, the first exonerating himself and blaming
everything on another person (Shaft) and the second in which he
related what occurred, but blamed it on the deceased because of the
attitude of the deceased towards him. He also had problems to explain
what he said in the s 119 proceedings in his statement, namely that
he obtained the AK 47 on 25 February 2005 and in his statement of 05
March 2005 that he already obtained it in November 2004. The
degrading remarks made by the deceased in calling him a
“baboon”
or
“kaffir”
are
also not very clear. In his statement of 05 March 2005 the accused
stated that already at the time when he lost the head of cattle the
deceased threatened to kill him and he repeated this on at least
three occasions. According to his statement of 05 March 2005 the
accused’s complained about
“ill
treatment and offending words said to me by Jack”,
even
before he went to fetch the AK 47 in Zambia. In his statement he did
state that the deceased threatened to kill him and
“that
he does not care about baboons.”
Nothing
was
said
in
this statement about
“kaffir.”
The accused further stated:
“Hearing
this words that’s when I made up my mind to shoot him”
.
In cross-examination the accused responded to a question of why did
he murder the deceased, by saying that he was angry because the
deceased did not want to pay him his money and called him a
“baboon”.
In his evidence in mitigation he did not mention that he was called a
“kaffir”,
which is regarded as a racially degrading word.







[6] The
labour inspector, Ms Mary Mabuku told the Court that the accused
approached her on 27 February 2005, but because she was not available
he was asked to return the next morning, which he did. On 28
February 2005 he informed her about the deceased refusing to pay his
salary. She drove with the accused to the deceased’s farm. The
deceased, was found driving a vehicle. After attempting to stop the
deceased, she eventually met him at Caprivi College of Education.
When she got out of the car, she talked to the deceased about the
accused’s salary. However, when the deceased saw the accused,
he became angry and threatened to kill and bury the accused and then
shoot himself. He repeated this and used words like
“kaffir,
baboon

and you black
people are destroying my animals.”

The deceased then drove off and Ms Mabuku and the accused drove to
the police station to lay a charge, mainly because of the deceased’s
threat to kill the accused. The statement that she made at the time
to the police was discussed with her in Court and it was pointed out
words like
“baboon”
and
“kaffir”
do
not appear therein. She admitted it, but said that although she did
mention it, the police officer omitted it. In a later statement, made
more than a year later, she apparently stated that these words were
used.







[7] Eugene
Sunduna testified that he was driving with the deceased on 28
February 2005 when they were stopped by Ms Mabuku and the accused.
According to him Ms Mabuku discussed the complaint with the deceased,
who was angry and aggressive. He testified that the deceased
threatened to shoot the accused and bury him. He also testified that
the relationship between the deceased and the workers was usually
“okay”.
According to him the deceased used to get angry and swore at workers
when they made mistakes, whereafter he calmed down, in particular
after Mr Rocher, the owner of the farm, talked to him. In respect of
the oppressive words, he only mentioned that the deceased said to Ms
Mabuku that once the accused has left there he would
“kill
the baboon.”

Eugene testified that he was paid the end of February 2005, but the
accused not.







[8] The
State called the wife of the deceased, Mrs Erasmus. She testified
that she is currently employed at Otjiwarongo where the minor child,
Jaydee, born of the marriage between her and the deceased on 25 May
2001, will start attending school next year. At the time she was
employed in Katima Mulilo and lived with her husband at Katima farm.
Currently herself and the minor child are dependent on her salary.
She testified that the deceased and the minor child had a very good
relationship and his death is a loss to the minor child, who now has
to grow up without a father. The child needs therapy because of his
loss. She does not know the accused and was not aware of any salary
or other dispute between the deceased and the accused. She accepts
that the accused‘s family is also facing financial difficulties
due to the maintenance that the accused used to provide to his
dependents as breadwinner. She knew about the cattle that got lost.
According to her, her husband was a
“soft
guy”

and would give everything to his friends, even his life.







[9] In
considering what an appropriate sentence for the accused should be,
the Court considers the elements of retribution, prevention or
deterrence, 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(s)
committed, and the interest of society, coupled with a blend of
mercy, where appropriate, is the aim that the Court attempts to
achieve when imposing a suitable sentence. (
S
v Zinn
1969(2)
SA 537 (A);
S
v Rabie

1975 (4) SA 855 (A);
S
v Tjiho

1991 NR 361;
S
v Victor Musweu,
Case
No.: CC 01/2007, an unreported judgment delivered on 17 October
2007).







[10] The
element of retribution should not be over-emphasised, but cannot be
ignored. The offender should experience by the sentence imposed on
him that he is punished. From the side of the offender, it has been
said, that retribution amounts to the atonement for his crime through
the punishment he receives. Form the side of the community, it
amounts to an “emphatic denunciation” of the offender and
his crime and the infliction of pain to the degree he deserves. By
serving his sentence it is regarded that his debt to society has been
paid. (
du
Toit

Straf
in Suid Afrika

– 1
st
edition, page 108). If the punishment is too lenient the accused is
not “hurt”, as the element of retribution had been
described.
In
S v Ndlovu

1969 (2) SA 23 (R), Young J said:







The
object of punishment is to hurt him sufficiently to prevent him from
committing a similar offence.”







The
elements of prevention or deterrence touches on both the community
and the accused. The accused has to be deterred from committing a
similar offence again and members of society are made aware of the
sentence imposed for this type of offence and cautioned to refrain
from committing a similar offence. To summarise, the accused has to
be prevented to repeat this type of offence and the sentence should
deter others from committing such an offence.







Finally,
the rehabilitation element should be considered, namely that the
possibility exists that the accused may be rehabilitated in prison
and become a useful citizen after his release. The weight of this
element of course depends on the human material, namely the accused
himself.
(S
v Victor Musweu,
supra,
page 6-7).







[11]
Mr Karsten referred to the accused’s version of how badly he
was treated by the deceased, namely that because he lost cattle, he
was humiliated, had to do inferior work, was not paid and his
personal belongings (including documents) were taken away, he was
insulted and his life was threatened. As a result of this behaviour
on the part of the deceased and despite the accused’s efforts
to resolve this dispute with the deceased by trying to involve the
farm owner, the police, or even a labour inspector, did not produce
any result, the accused had no other option than to obtain the AK 47
and force the deceased at gun point to pay him. This type of conduct
by the deceased would normally have a mitigating effect by reducing
the perpetrator’s moral blameworthiness.







[12] What
was said by a deceased person would normally constitute hearsay. It
is trite that in order to show the state of mind of the person, such
evidence may be admissible. However, the accused must be a credible
witness in that regard.







[13] In
this particular case the Court is confronted with the unique
situation where the accused made a voluntary statement before
magistrate on 02 March 2005 in which he totally exonerated himself
and blamed everything on another person, Shaft. In that statement all
that he now says involving the conduct of the deceased towards him,
was in fact what Shaft experienced and which led Shaft to take the
law into his own hands and shoot the deceased. Three days later, on
05 March 2005 the accused made another voluntary statement before the
same magistrate in which he then involved himself and incriminated
himself. In that statement he related the alleged behaviour of the
deceased towards him, which eventually led to his obtaining of the AK
47 and the shooting of the deceased. Furthermore, the accused made a
statement before the magistrate in the s 119 proceedings in which he
said he obtained the AK 47 already on 25 February 2005, three days
before the incident in which the deceased allegedly threatened to
kill him and calling him names in front of the labour inspector,
which caused him to lay a charge at the charge office. In his own
statement before the magistrate on 05 March 2005 the accused made the
situation even worse. In that statement he said he already obtained
the AK 47 in November 2004 in Zambia for the purpose of carrying out
his plan to kill the deceased. These allegations were put to him,
during his evidence in mitigation on sentence, but he could not
recall what he said in either statement.







[14] The
problem that faces the Court, is whether the accused can be regarded
as a credible witness in respect of what occurred between him and the
deceased, as well as the behaviour of the deceased towards him.
Nobody else was present or called to testify what happened or what
the deceased said or did until 28 February 2005. If the accused
already obtained the AK 47 in order to shoot the deceased, the events
of 28 February 2005 could not have been the cause for him to resort
to such a drastic measure. Another factor to be considered, is if he
obtained the AK 47 to shoot the deceased
before
the end of the month,
he
did so at the time when he was not certain whether he would be paid
or not. I have earlier herein referred the effect of this type of
behaviour of the deceased or the accused’s state of mind, but
that is clearly dependent on whether the accused can be believed or
not. Having regard to statements made by the accused, the time factor
of obtaining the AK 47 and fact that he carried out his plan the very
next day, I do believe that without corroboration by other plausible
evidence that what the accused wants the Court to accept in
mitigation, is the truth and influenced his state of mind.







[15] In
the light of the testimony of Ms Mabuku and Eugene I shall accept
that there was some provocation, but limited to the 28 February 2005.
Although accused’s retaliation was immensely out of
proportion, I do accept that the conduct of the deceased on that day
did to some extent influence the accused’s state of mind. In
this regard I accept that there was some disagreement between the
deceased and the accused because of the loss of cattle and that he
was not paid for February 2005, while his co-workers were. The
accused himself acknowledges that he should not have acted in the way
he did and that he has accepted that he will suffer the consequences
of his deed. Unfortunately his family will also so suffer these
consequences.







[16] What
aggravates the situation is that the accused’s action did not
only deprive his own family of the maintenance and support relied on
by them, but caused the deceased’s son to grow up without a
father and his wife to carry the burden of supporting herself and her
son from only her salary. The accused’s actions are directly to
blame for this. What is further aggravating, is the fact that the
killing of the deceased, was not done on the spur of the moment. It
was carefully planned and premeditated. He went to Zambia to obtain a
machine gun, returned with it, oiled it, and hid it until he could
use it. After shooting the deceased he hid it again and went to Choto
where he spent time his girlfriend, not his wife. I have already
referred to the personal circumstances of the accused, which I
accept, as well as the fact that he did show remorse, that he already
spent three years in custody and that there was some provocation,
although limited to 28 February 2005. The community expects that a
Court should pass a suitable sentence to deter not only the accused,
but also members of the community. The accused committed a hideous
and premeditated murder. The personal circumstances of the accused do
not weigh up to the seriousness of the offence he has committed in
the manner in which he had planned and executed his plan to commit
it. It is not always possible to strike a balance between the factors
of the well known triad, referred to before, namely the accused,
society and the crime. In
S
v van Wyk

1993 NR 426(HC) Ackerman AJA dealt with the weight to be attached to
these factors as follows on page 448D-E:







“As
in many cases of sentencing the difficulty arises, not so much from
the general principles applicable, but from the complicated task
trying to harmonise and balance these principles and to apply them to
the facts. The duty to harmonise and balance does not imply that
equal weight or value must be given to the different factors.
Situations can arise where it is necessary (indeed it is often
unavoidable) to emphasise one at the expense of the other.”







[17] I
have considered the examples of sentences imposed by this Court in
the past as suggested by the State, as well as the applicability
thereof. However, such sentences are mere guidelines and each case
should be determined on its own merits as far as sentencing is
concerned. In the circumstances an appropriate sentence for the
conviction of murder with
doulus
directus,

after taking all the relevant factors as mentioned into
consideration, should involve a long term of imprisonment.







[18] In
respect of the accused’s conviction on the second charge,
namely the importation of a machine gun, to wit, an AK 47 from Zambia
into Namibia and the unlawful possession thereof, the penalty of that
offence is a period of imprisonment not exceeding 25 years. (
S
v Likuwa

1999 NR 151 (HC)). The accused imported the AK 47 into Namibia to
kill the deceased. His version that he only wanted to use the AK 47
to force the deceased to pay him, is clearly untruthful. In his
previous statements, referred to earlier, he stated he wanted to kill
the deceased. That was the plan that he had. The fact that he
disguised himself when he approached the deceased on the morning of
01 March 2005 negates any inference that he only wanted to confront
the deceased to pay him his salary. Why would he then wear mask? In
its judgment on the merits the Court accepted the testimony of the
State witnesses that there was no discussion about payment of money
before the shooting. The accused wanted to kill the deceased and used
the AK 47 that he imported for that purpose. Direct imprisonment on
the second conviction is the only appropriate sentence, which should
be served consecutively (after) the sentence imposed for murder.







[19]
In respect of the third conviction, the State conceded that the
sentence to be imposed for that conviction may run concurrently with
the sentence for the second conviction. The penalty provision for
this offence is one of a fine not exceeding N$40 000.00 or
imprisonment not exceeding 10 years, or both.







[20] In
the result the accused is sentenced as follows:








  1. on
    the conviction of murder –
    26
    years imprisonment
    ;



  2. on
    the second conviction –
    6
    years imprisonment;



  3. on
    the third conviction –

    1 year imprisonment
    ,
    which sentence shall run concurrently with the sentence on the
    second conviction;



  4. the
    accused is declared unfit to possess a firearm for a period of 5
    years, commencing from the date that the accused completes his
    sentence; and



  5. the
    AK 47 and Magazine (
    exhibit
    1
    )
    and Ammunition (
    exhibit
    3
    ),
    spent cartridges (
    exhibit
    4
    ),
    the Rifle Butt and Bayonet (
    exhibits
    5 and 7)
    handed in as Exhibits during the trial, are declared forfeited to
    the State.
















__________



MULLER, J











ON BEHALF OF THE STATE:
MR R. SHILEKA











INSTRUCTED BY:
OFFICE OF THE PROSECUTOR-GENERAL















ON BEHALF OF THE
ACCUSED: MR L. J. KARSTEN











INSTRUCTED BY:
DIRECTORATE OF LEGAL AID