THE HIGH COURT OF NAMIBIA
NO. CC 02/2010
the matter between:
SIMPSON A J
SIMPSON A J.
is charged with the offence of
murder, the offence with of
assault with intent to do grievous
bodily harm, the offence of
assault by threat and also the offence
of defeating or
obstructing or attempt to defeat or obstruct the
The facts in this matter are as follow:
Deceased and the Accused had a domestic relationship prior
death of the Deceased.
On the evening of 05 June 2009 and at the Gemeente Settlement
the district of Windhoek the Accused was searching around for
Deceased. Upon being directed to a shack the Accused armed
knife or a sharp object, barged into his shack and started
attack the Deceased who was inside this shack.
When one of the Witnesses, that is Michael Gorbartjof, tried to
come to the assistance of the Deceased, the Accused stabbed him
on his arm where after the attacked on the Deceased continued.
During the attack, the Accused stabbed the Deceased, jumped on her
head, throw her body on the ground, hit her head against
motor vehicle and also against the ground, hit her on her head
a brick, pulled her body around and hit her with fists.
At some stage a Witness, Magret Gawanas, tried to assist the
Deceased and the Accused then threatened to stab Magret
and also chased her around.
The Deceased died on the scene as a result of head injuries. The
Accused then fled the scene and disposed of the knife or sharp
object and he also tried to discard or cleaned the clothes that
wearing during the attack on the Deceased.
These facts that I now read through in this Judgment is a
that was given by the State, the summary of substantial
The Accused pleaded not guilty in this matter and denied all the
allegations against him.
The State called several Witnesses to prove its case whereby the
defense also called the Accused and the sister of the Accused in
It is common cause that on 05 June 2009 the Deceased was
It is also common cause that this happened during night
is common cause that the cause of death was head
injuries this is
as per the post mortem report and the evidence
that was adduced
by Doctor Simasiku Kabanje.
It is common cause that the Deceased collapsed at the corner of
Shangai and Zedekia Ogambo Street.
It is common cause that the Deceased sustained bruises,
It is also common cause that the Complainant in the assault with
intend to do grievous bodily harm,
Michael Gorbartjof was stabbed with an
object on the arm.
How these injuries were brought about is to be pointed out by the
Witnesses called during the trial.
Now this will sound like a repetition but the Court will describe
each and every Witness that testified to point out the
discrepancies and the differences that they testified about.
The State called the scene of crime officer Sergeant Sisami who
testified that the points were pointed out by Magreth Gawanas.
points were being the room from where the Deceased and a
Michael Gorbartjof came from, the same room which the
entered. Also the points as to where the Deceased were
and assaulted. Also
the points as to the bloodstains or
the blood marks as well as
the points where the Deceased
collapsed. Sergeant Sisamu
testified that these points were
pointed out by Magret Gawanas.
The State then called Erna De Klerk the mother of the Deceased, who
testified that she identified the body. This Witness also testified
that the Deceased was the girlfriend to the Accused but
month before her death.
This Witness testified that she was together with her daughter the
Deceased at a shebeen. After a while the Deceased had a call and
sometime later a sms. This was a friend
of the Deceased
wanting her to visit her. This Witness testified
that she then
halfway the Deceased to her friend’s house.
After a while this Witness received a call and was told to come to
Gemeente Resettlement where her child the Deceased was laying.
This Witness Erna De Klerk then went to where the Deceased was
The State then called Bernice Adams who testified in clear
how she witnessed the incident.
She testified that at the time of the incident she stayed at
Residence 124, Zedekia Ogambo Street,
together with her
On 05 June 2009 she was with her boyfriend and her two kids in
their room. And at about 21h00 and 22h00, they were listening to
At some point someone came knocking at the door it sound like a
banging, someone trying to get in. This person was looking for
Jamis. The boyfriend then responded, that is now Edward Fish,
responded that there was
no person with such name staying in
that room. The person
This Witness also testified that this person then went to the ghetto
next to their room. She heard him entering the room, heard him
pulling someone out whereby she heard Jamis screaming.
This Witness then testified that she looked through the windows and
she could she two people at the fence. She testified that the
visibility was good. The girl that was beaten, was Jamis and the
that was beating her was her boyfriend Boetie. Jamis, being
Decease and Boetie being the Accused. Whilst looking this
that is Bernice Adams, heard a voice from next door
will speak now in Afrikaans as the words came out
los die kind, sy bloei" being translated as "Boetie leave
she is bleeding.
This Witness testified that she did not recognize the person who
said" leave her she is bleeding". But she testified that it
This Witness also testified that she saw the Accused beating the
with the hands. TheAccused then dragged the
to the tree, whereby he beat her. As the Deceased fell,
Accused tried to pick up a brick and he wanted
to beat her
with the brick. She then further testified that a
came to stop the Accused and then he try to stab
her (the said
Magret). The Accused then beat Jamis with a brick
on the face.
She testified that the Accused had a knife,
but she could not
This Witness, that is Bernice Adams, then also saw the Accused
hitting the Deceased with a brick on the face. The Deceased try
walk and fell down. She then saw the Accused being on top of
Deceased. The Accused took the Deceased by the head and beat
her onto the ground. The Accused stood up and he walked back,
he again came back and jumped on her head with both feet.
The Accused then approached this Witness to ask for a face cloth.
When he did not get a face cloth he went back to the Deceased
jumped on her head again for the second time.
The Accused then picked up the Deceased by the legs and carried her
out. The head was hanging downwards. The Accused put the Deceased
next to a car that was parked in the yard. At the car he
not pick her and she fell down and the Accused again
The Accused then pulled her to the street, whereby he jumped on her
head again. He pulled her by the legs until the corner of the
As this Witness then testify the two guys then started chasing the
Accused, whereby one of them was the boyfriend of this Witness,
The State then called Edward Fish who testified that on 05 June
2009, he was in his room and heard a noise coming from outside
then heard rough knocks on the door, kicking the
the name Jamis.
This Witness then answered that there is no such person with
name staying there. This person then went to a ghetto next
their room room. He kicked the door open and he entered.
The girl then came out screaming. This Witness then stated that he
saw the Accused and the deceased fighting outside. They were
the tree in front of the ghetto. He saw the girl, that is now
Deceased, was stab bed in the back. He stated he do not know
was used to stab the Deceased with. The Accused then
picked up a
brick and hit her on the face, the Deceased then fell
happened under the tree. He stated that the visibility
The Accused picked up the girl (the deceased) and then
The Accused then came looking for a face cloth.
The Accused then went back to the Deceased, sat on top of her,
start hitting her head on the ground.
The Accused jumped on top
The Accused then picked the Deceased up by the legs and carried her
outside the gate. This Witness Edward Fish then further
that he did not see what happened further as he went
his room to lock the room because there were two
children or two
kids inside. After locking the room he observed
that the Deceased
and the Accused was outside in the road.
The Accused tried to pick up the Deceased but she fell. The Accused
then pulled the Deceased to the
direction of Shangai Street. He also hit the girl on the trunk of a
This Witness and another person then chased the Accused with
until he then ran away through the river.
The State then called Michael Gorbartjof, also the Complaint in the
assault matter. He testified that on 05 June 2009 he was
with the Deceased, on the night when she was killed.
together in the shack, also called the ghetto. Whilst
someone came and kicked the door open. This person
drew a knife from his pocket and then struck one blow in
direction. After this Witness was struck, he fell on the bed and
person then stormed the Deceased. As the Witness testified
then grabbed this person from behind. Whilst he tried to lock
person from behind, the Complainant was stabbed on the
This Witness then left and went to their house. This person that
was kicking open the door of the ghetto, is the Accused before
Court he was identified also by Michael Gorbartjof.
This Witness testified that the Deceased was weanng a white
and a black skirt.
The State then called Magreth Gawanas, the same person who
pointed out the scene to the police.
This Witness testified that she went to Blue Note and the Accused
was standing in the door. After being at Blue Note, this Magret went
back home. Whilst in the room, the Accused came, whereby he asked
where Jamis IS. She
told him she do not know the
whereabouts of Jamis.
This Witness further testified that Seun, that is also then Michael
Gorbartjof, came there and went into the yard of Erf 124. Magret then
testified that she saw Jamis together with Seun, Michael
in the ghetto. After a while the Accused came
knocking at the
door. She told him that it is the wrong door.
Serolda then called
the Accused to point out as to where Jamis
The Accused to pushed the ghetto door
open and pulled Jamis.
According to this Witness, Seun, that is now Michael Gorbartjof,
pulled Jamis away from the Accused. The Accused then stabbed
Michael Gorbartjof on the left hand. According to this Witness,
Accused pulled a knife from his waist. Magret then saw the
pulling the Deceased out and started beating her. He
beat her and
then stabbed her on the back. The
pulled her up to where the stones are and then
banged her head
against the stone.
This Witness then tried to pull the Accused away from the
when the Accused then drew a knife, what was also
described as an
Okapi, and she move back.
The Accused then took the Deceased to the place where there were
stones, but not the same place, it was a different place, and also
beat her against the stones. The Accused then ran around asking
This Witness testified that she found the Accused with the
in the yard of Erf 123. He held her up high, but when
he saw the
Witness, Magret, he threw her down and then chased
with a knife. He also uttered the words "I will not
you. "That is referring now to Magret Gawanas. "I will
return for you" Magret then ran to
her sister’s room. They then
watched the commotion from the
window of the sister's room.
The Accused then removed the jersey from the Deceased and
out from Erf 123. He carried her out to the road that is,
Ogambo Street. He grabbed her on her legs and pulled
her by the
legs until the junction of Zedekias Ogambo Street and
Street. He then took a stone and threw it on the head of
Deceased. According to this Witness he also stabbed the
twice on her left eye.
According to this Witness, there was light and also indicated that
Deceased was wearing a white jersey with a black skirt. According to
this Witness, the Deceased was dragged on a tar road.
The State then called Lucia Gawanas who testified that on the
of 05 June 2009 her sister Magret came running to her room
that Boetie stabbed Jamis. When she opened the door,
running behind Magret. This Witness testified that
through the window and saw the Accused carrying the
his shoulders. This Witness also testified that there
light to see the events. She also testified that she saw the
dragging the Deceased on one leg on the tar road.
The State then called Serolda Gomachas. This Witness testified that
she was sitting in the room with a certain Banda and Henry when they
heard a noise from outside. They went out to look what was going on.
They then started screaming as the Accused was
kicking the Deceased. This Witness and Magret then
ran to the
next yard and try to stop the Accused from beating the
This Witness also testified that the Accused threatened
and Magret. He said" do you also want?"
According to this Witness, the Accused threw the Deceased down next
to her door and chased Magret. The Accused returned,
the Deceased and threw her head against the vehicle
parked in the yard. This Witness and Banda stopped the
The Accused then said that he will take Jamis to the
The Accused then dragged the Deceased from the vehicle
up to the
outside of the yard. He held her on the leg and dragged
Witness testified that at the corner, the Accused jumped
the head of the Deceased.
The State then also called the doctor who conducted the post-
mortem examination who testified that the cause of death was
head injuries. The doctor also pointed out the injuries on the
different parts of the body.
That was basically the evidence that was adduced by the State.
On the other hand, the Accused testified that he went to Serolda to
look for the Deceased. He then went to the shack, where he
the voice of the Deceased. He
then knocked and then
opened the door. Michael Gorbartjof came
running out of the
room. The Deceased also came running out of
the room. The
Accused further testified that the Deceased ran up to the
of Zedekia Ogamb and Shangai Street where she fell down.
the Accused wanted to approach the Deceased, a group of men
appeared and threw bottles
and stones at him. The
ran away. The Accused stated that the visibility was
not good as it
was dark. The
Accused stated that he never assaulted,
beat or kicked or stab
alleged in the indictment.
The defence then called the sister of the Accused, Vivian Mbanga,
who testified that on 05 June 2009,
the Accused was together
the Accused’s room.
The purpose of this evidence is to counter the evidence before
Court that the Deceased was together with the mother of the
Deceased the whole day on 05 June 2009.
That was basically the evidence adduced by the defence.
It is clear from the evidence adduced by the State,
that there are
several Witnesses who
testified as to the incident on the faithful
It is also clear that there are
differences from the Witnesses
as to how many times the Accused
beat the Deceased, as to how
many times the Accused picked up the
Deceased, as to how many
times the Deceased fell on the ground.
Also how many times,
where on the scene the Deceased was
stabbed and also how many
times and where did the Accused jumped
on the head of the
It is quite clear
that there are indeed discrepancies, but these
of not such a nature that will discredit the States
case in its
The evidence is, by
the State Witnesses is clearly overlapping each of one another's
evidence. The evidence is clear from the photo
plan, as well
as the post-mortem
report that the Deceased
sustained severe injuries all over her
Furthermore the evidence of the State Witnesses is of such a
that each Witness clearly testified that the visibility or the
lumination was good. The Accused could be identified positively
by these eye Witnesses.
The defence indicated during cross-examination as well as during
evidence-in-chief that there were no drag marks visible on the
photos and this was also confirmed by the crime of scene officer.
It was however stated by the State Witnesses, that the Deceased was
dragged on the tarred road.
It is also pointed out by the defence, that there were discrepancies
in the statement, that is now specifically the statement of Edward
Fish, the police statement, and the evidence that he gave in Court.
I must also point out that the police statement of a Witness is
merely to guide a Prosecutor in prosecution to determine if a
is to made out against an Accused or on what charges an
needs to be charged. An Accused may omit to say anything
the police, but will testify on those important issues in
hereby refer to S
v Bruinders South
African Criminal Law Report
The defense also adduced evidence and also during cross-
examination of State Witnesses that it was dark.
The defense also adduced evidence and also during cross-
examination of the State Witnesses, that the Accused is left
handed and it would be impossible for him to stab someone with
the hand that he is not writing with. But the Court must just
point out that no evidence was adduced that the Accused has a
handicap or was impossible for him to use his right hand as he is
left handed , nor was there any such observation by this Court
that the Accused has a handicap.
It is indeed so that the sister of the Accused came to testify that
the Accused was the whole day together with the Deceased, and
that is contrary to the mother of the Deceased who testified that
she was together with her daughter the whole day. The Court
also just point out that this incident did not happen during
daytime; so the counter that was there between these two
Witnesses is irrelevant because the incident occurred during
So when the Accused also testified, he stated that the State
Witnesses, that is Bernice Adams, Magret Gawanas, Lucia
and Edward Fish were not friend of the Deceased. And
if that is
indeed the case, the Court can say that these State
impartial or Witnesses who does not have any
involvement in this
if these Witnesses are impartial
Witnesses, the Court does not
see any reason why they will come
to Court and lie to this Court
as to the incident.
Several Witnesses came to testify that they could see the incident
the visibility is very good and also the lumination. That is viz a
viz the evidence of the Accused who testified it was dark. This
evidence of the Accused is then outweighed by the evidence of the
State Witnesses with regard to the lumination.
So with regard to the count of murder, it is quite clear that the
Witnesses testified as to how the Deceased was assaulted, stabbed
and kicked by the Accused. And
the Court is convinced that the
State indeed proved its case
beyond reasonable doubt with regard
to this count. The Court
therefore find Accused guilty on murder
on count 1.
With regard to count 2 also, Michael Gorbartjof clearly testified as
to how the injury was sustained on his arm. And this was in the
process when he tried to assist the Deceased not to be injured.
Witness also clearly testified that he went to the hospital and
there was no problem between him and the Deceased, as well
him and the Accused. Therefore the Court is also
the State indeed proved its case beyond reasonable
doubt on count
2; that is assault with intend to do grievous bodily
Michael Gorbartjof. Accused you are therefore also found
on the offence of assault with intend to do grievous bodily
With regard to count 3 that is assault by threat, it is quite clear
that this Witness Magret Gawanas was chased with a knife, as she
also describe it as an Okapi knife, by the Accused. It also clear
from Lucia Gawanas, that the Accused chased Magret Gawanas
wanted to stab her with the knife. And all the elements as to
aspect is indeed clear to this offence. However there is one
that was not placed before this Court, that the
is Magret Gawanas, had to believe that the
Accused intended to
carry out this threat. And the failure to put
this element, the
believing that the Accused intend to carry out
this threat the
Accused, the Court cannot find beyond any doubt
that the threat
was indeed carried out. So
on count 3 assault by
threat Accused is found not guilty.
I can just add, the same events that occurred with Magret
also occurred with Lucia Gawanas as she testified, that
her sister Magret Gawanas, were chased by the Accused
wanted to stab them. And even with Lucia Gawanas there
no believe put before this Court that the Accused wanted to
out his threat.
With regard to count 4 that is defeating or obstructing or attempt
to or defeat or obstructing the cause of justice, it is clear from
the evidence of the State that is Edward Fish as well the Accused
person that he was, stones were thrown at him and then he ran
away into the river. And because of this it is quite clear that
Accused person never returned himself or gave himself up to
police to report the incident.
there is no evidence
before this Court that the Accused try to
conceal or destroy any of
the evidence with regard to this
incident. And it is the duty of the
State to prove all the
elements of the offence before a person can
be convicted. So with
regard to count 4
is defeating or
obstructing the cause of justice, the Accused is
also found not
BEHALF OF ACCUSED MR
BEHALF OF ACCUSED : MR
OF LEGAL AID