Court name
High Court
Case number
CC 29 of 2010
Case name
S v Kamati
Media neutral citation
[2011] NAHC 296
Judge
Tommasi J














NOT REPORTABLE




CASE NO.: CC
29/2010






IN
THE HIGH COURT OF NAMIBIA


HELD
AT OSHAKATI


In
the matter between:


THE
STATE


versus


LUKAS
HANGULA KAMATI

…..............................................................ACCUSED






CORAM:
TOMMASI J



Heard on: 20 –
26 September 2011



Delivered on: 29
September 2011








SENTENCE



TOMMASI J:
[1] The accused was convicted of murder and attempted murder. On 6
October 2008 the accused murdered David Valomboleni by hitting him
several times with a panga. At the same time he also hit Lukas
Bonofatius with the panga several times. The latter was fortunate to
survive the attack.








[2] The Court is
now tasked to sentence the accused. In doing so this Court must
consider the offender, the offence, the interest of society and also
the aims and objectives of sentencing.








[3] The background
to the commission of the offence can be gleaned from the accused’s
reply to the State’s pre-trial memorandum, the statement made
by the accused in terms of section 112(2), the evidence led by the
State in aggravation, the Report on a Medical Legal Post-Mortem
examination and photo plan which were handed into evidence; and the
personal circumstances placed before Court by counsel for the
accused.








[4] The accused is
32 years old, single and does not have any children. The highest
grade he completed was grade 4 and worked as a domestic worker for
the owner of the cuca shop where the incident occurred. He
came from a different region looking for employment in order to
support his ageing mother. He is a first offender and has spent two
years and eleven months in custody awaiting trial.








[5] The accused
formed a relationship with Wilemina Amadhila which lasted only for
three days and ended when her son Lukas Bonofatius instructed the
accused to leave his mother’s house. Lukas testified that he
did not want his mother to have a relationship with the accused. One
gains the impression from the evidence of Lukas that the idea to
chase the accused from his mother’s house was not with her
approval. Lukas was approximately 17 years old and the accused 29
years old at the time. Although this could not have been pleasant for
the accused, he complied with the instructions and left the house.








[6] The accused
met Lukas the next day at the gate of the kraal and called him. Lukas
refused to approach the accused because he was having a panga and he
feared that the accused may attack him given the fact that he chased
the accused from his mother’s house. Lukas went to his home and
the accused did not pursue him. One cannot infer from the facts that
the accused indeed intended to do him harm although Lukas cannot be
blamed for believing this.








[7] The following
day the accused met Lukas again and this time he was in the company
of his friend, the deceased. The deceased wanted to know from the
accused why he had ambushed Lukas with a panga the previous day. It
is not clear what transpired on this occasion. Lukas testified that
the accused ran away as the deceased “wanted” to
fight with him. Lukas further confirmed that he informed the deceased
that the accused ambushed him the day before and this angered the
deceased. By this time there was already tension between the accused
and Lukas. I find it unlikely that Lukas had nothing to do with the
altercation between the deceased and the accused given the fact that
he was solely responsible for fueling the anger of the deceased.








[8] The next day
the deceased and Lukas found the accused at the cuca shop
where his mother was present serving drinks. The deceased started
questioning the accused again about the ambush incident whilst the
accused ignored him. At some point Wilemina, requested the deceased
to stop questioning the accused. The accused instructed Lukas and the
deceased to leave the cuca shop. Lukas left but the deceased
refused. Lukas later returned ostensibly to fetch his friend, the
deceased. The accused, who had ignored the deceased up to this point,
took his panga out from underneath his shirt and started hitting the
deceased with it. Lukas wanted to run away but the accused cut him
with the panga on his neck. When Lukas fell, the accused continued
hitting him with the panga. Wilemina was still behind the counter.
The deceased and Lukas ended up behind her. The accused pushed
Wilhemina outside to avoid injuring her and continued to hack the
deceased and Lukas with the panga whilst they were already down on
the ground. The accused thereafter ran away.








[9] The deceased
died at the spot whilst Lukas was recovered after being hospitalized
for 6 months. The deceased suffered no less than five chop wounds.
The two most severe of these wounds were administered to his head and
arm. The chop wound on the head penetrated the scull and severed
several blood vessels. The arm of the deceased was almost completely
severed. Lukas suffered two blows to his left hand which completely
amputated his thumb and hacked away a part of his palm. These wounds
caused him to lose the use of this hand. Apart from these injuries he
also sustained chop wounds to his neck, head, arms, right hand and
leg. Lukas testified that he used his arms and curled up to block the
blows which were directed at his head. The accused clearly hacked at
both the deceased and Lukas with considerable force.








[10] The conduct
of the deceased and Lukas was meant to provoke some response from the
accused. It was common cause that the accused applied some measure of
restraint by trying to ignore the deceased. This Court cannot ignore
the fact that the accused is an unsophisticated person who was
publicly taunted, ostracized and humiliated by the deceased and I
strongly suspect, by Lukas.








[11] The accused,
in response to the conduct of the two young men, armed himself with a
panga in order to defend himself in the event of another incident. He
thus anticipated that a further incident may occur and armed himself
with a weapon capable of inflicting serious injury. When he became
angry his earlier intent to defend himself gave way to a murderous
rage which resulted in an attack on two unarmed young men. Although
the accused pleaded guilty to murder and attempted murder with dolus
eventualis
as the form of mens rea, it cannot be said that
the accused did not entertain the idea of causing harm to the two
victims herein beforehand. It was further evident that the accused
had sufficient composure during the attack to remove Wilhemina out of
harm’s way and deliberately continued his brutal attack on the
deceased and Lukas who were already down on the ground.








[12] It is human
nature to respond to provocation and everyone has a threshold to be
reached. Having said this it does not mean that violent responses to
provocation can be tolerated in a civilized society. The values of
our society demands that there must be a balance between the nature
of the provocation and the response thereto before one’s
conduct can be seen as less blameworthy or to mitigate the offense
committed. Counsel for the accused reminded me that the Court must
have a “perceptive understanding of the accused’s
human frailties, balancing it against the evil deed
”. I am
alive to the fact the conduct of the deceased and Lukas was meant to
provoke some response from the accused but his response to the
relative trivial verbal provocation herein was exaggerated and his
conduct can only be described as barbaric. The impact of the
provocation on the moral blameworthiness of the accused must be
viewed against those factors that increase the blame that can be
attributed to the accused. Most people are subjected to some
provocation from time to time and the sentence imposed by this Court
must encourage would be offenders to choose a different response to
trivial provocation.








[13] Counsel for
the accused submitted that the accused had shown remorse for killing
the deceased and injuring Lukas Bonofatius. The value of remorse is
that it is an indication that the offence would not be repeated.
Counsel for the State referred the Court to S v SEEGERS 1970 (2) SA
506 (A) where Rumph J stated the following:



Remorse,
as an indication that the offence will not be committed again, is
obviously an important consideration, in suitable cases, when the
deterrent effect of a sentence on the accused is adjudged. But, in
order to be a valid consideration, the penitence must be sincere and
the accused must take the Court fully into his confidence. Unless
that happens the genuineness of contrition alleged to exist cannot be
determined.”













[14] I am not
completely convinced that the accused displayed sincere remorse. The
accused pleaded not guilty in the district court and stated that he
defended himself. He re-stated this in his reply to the State’s
pre-trial memorandum by stating that he was attacked by the deceased
and Lukas Bonofatius with pangas. It was only in the face of the
overwhelming evidence that the accused changed his plea to guilty.
There is thus not much weight this Court can attach to the statement
of remorse made by counsel of the accused from the bar. Personal
deterrence and rehabilitation must make way for other considerations
such as prevention, general deterrence and retribution, given the
brutality of the attack and the violent response of the accused to a
relatively trivial provocation.



[15] The brutality
displayed by the accused in this case has become commonplace. The use
of weapons such as pangas and knives are preferred weapons for these
crimes. This Court has over the years increased the sentences for
violent crimes in an effort to deter other offenders with seemingly
little effect. The message to other would be offenders however should
be that offences of this nature will steadfastly be dealt with in the
same manner. Lengthy custodial sentences further serves to protect
society from violent offenders. This was a senseless attack which
took the life of a 24 year old young man and mutilated another. The
community would expect of this Court deal firmly with the accused.








[16] Having
considered all of the above factors this Court is of the view that
the following would be an appropriate sentence:



Count 1 30 years
imprisonment



Count 2 10 years
imprisonment



It is further
ordered that eight years of the term of imprisonment imposed in
respect of count 2 shall run concurrently with the sentence imposed
in count 1.













________________


Tommasi
J




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