Court name
High Court
Case number
11 of 2011

S v Shangemwene (11 of 2011) [2012] NAHC 240 (20 August 2012);

Media neutral citation
[2012] NAHC 240
Tommasi J


CASE NO.: CC 11/2011



the matter between:





on: 3, 4, 23 & 27 July 2012;

on: 20 August 2012


The accused was convicted of murder and robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure Act,
1977 (Act 51 of 1977).

The accused on 20 November 2010, whilst carrying a knife in his
pocket, walked into a
shop during the afternoon
hours and found Saara Heita alone. Saara, a grade 12 pupil, was
helping out a neighbor at the
shop. The
neighboring shop owner testified that she heard the screams of Saara
and this must have been when the accused had confronted her with the
knife which he pulled out of his pocket. She tried to ward off the
attack but the accused stabbed her in her neck; slit her throat and
threw her down on the ground. He took coins amounting to N$33.00 from
the counter and left the shop. When he came out the community members
gave chase and managed to apprehend him. The community members
severely assaulted the accused and reluctantly handed him over to the
police together with the knife which they found on him.

Saara was only 20 years old when her young life was brutally ended.
Her 71 year old grandmother testified that she was a retired nurse
and Saara was living with her at the time of her death. She had
invested in her school fees and general maintenance. Saara was the
one assisting her. She had every reason to believe that Saara would
be the one who would take care of her financially once she had
completed her studies. She testified that Saara’s death had
plunged her into poverty as she had to carry all the funeral costs.
She indicated that she would forgive the accused as she is a

The accused testified that his mother was living in Angola and his
father had passed away. He does not know where he was born but
recalled growing up in the house of his uncle. He went to grade 1 in
the village where grew up and he appears to have had a normal
childhood. He is not married but has one child and he is not sure who
is looking after the child. The accused expressed genuine remorse for
his deed and apologized in open court to the grandmother and the
family of Saara. He testified that he was not healthy but did not
want to disclose the details of his ill health. He has been held in
custody since November 2010 whilst awaiting his trial. The accused is
27 years old.

The accused has been convicted of two serious offences i.e murder and
robbery with aggravating circumstances. Although these two offences
are closely linked in terms of motive they form two separate and
distinctly different offences. It is well established that the Court
has to consider the offender, the offence and the interest of society
when sentencing an accused. At the same time the Court has to bear in
mind the objectives of punishment and consider the weight to be
attached to each factor placed before the Court in mitigation and in

The accused pleaded guilty to the offence of murder and had shown
genuine contrition for killing Saara. He has one child but he was not
entirely able to perform his duties as a father given the fact that
he has been serving a sentence for a previous offence committed. He
also appears not to have very close family ties. I shall accept that
the accused suffers ill health as same was not contested. I have,
however, reason to believe that he will have access to proper medical
care in prison. The accused has been held in custody from the date of
his arrest which is a period of 1 year and 9 months and it is trite
that the period spent in custody awaiting trial would lead to a
reduction in sentence.

The accused is, however, not a first offender. He was convicted twice
of theft during 2007 and of housebreaking with intent to steal and
theft on 4 August 2010. He was sentenced to 12 months imprisonment of
which 6 months were suspended for a period of five years on condition
that the accused is not convicted of housebreaking with intent to
steal and theft committed during the period of suspension. The
accused served three months imprisonment and was released on 3
November 2010. These previous convictions are relevant to the charge
of robbery which he committed on 20 November 2010, the same month he
was released from prison. As was argued by counsel for the State, the
accused graduated from petty theft to robbery. Although the accused
had shown contrition for having taken the life of the deceased no
such contrition was evidenced in respect of the robbery he had
committed. The accused in all probability, knowing that there was a
suspended sentence hanging over his head in respect of the
housebreaking with intent to steal and theft, decided to fabricate a
story that he was in a relationship with the deceased, thus adding
insult to injury to the family of the deceased. The Court has to
consider his propensity to commit crimes of which dishonesty is an
element when considering an appropriate sentence for robbery. The
accused, in view of this pattern, has not responded well to sentences
aimed at encouraging him to reform.

The State applied to this Court to put into operation the suspended
sentence imposed by the district court of Ondangwa. The Court was
however not placed in possession of sufficient evidence in this
regard. This Court is not in a position to determine whether the
matter was reviewable and if so whether the conviction and/or
sentence were interfered with on review or whether such an
application was not already brought before the sentencing court. The
State if it so wishes could approach the sentencing court to put the
suspended portion of the sentence into operation.

The murder committed by the accused was brutal and perpetrated
against a vulnerable unarmed young woman. I have to look no further
than the respons of the community on the date in question. Members of
the community took the law into their own hands showing frustration
and anger toward a perpetrator of a violent crime. It was the
intervention of the police that saved the life of the accused. I wish
to state in no uncertain terms that the Court in no way condones such
vigilante action. I can, however, understand the anger and vengeful
feelings of that community. The senseless killing of a young woman in
broad daylight at a place of business disturbed the tranquility and
peace of that community. The Courts have to recognize the feelings of
the community but should guard against having those feelings of
righteous anger cloud its judgment
Life is precious and therefore deserving of protection. Whilst Saara
had lost her life, the lives of many others may be saved if deterrent
sentences are imposed. Our Courts have expressed itself on numerous
occasions in respect of violent crimes and ruled that under such
circumstances the personal circumstances and consideration of reform
should receive less weight and more emphasis should be placed on
deterrence and retribution.

The Court takes into consideration that the accused stole only coins
in the sum of N$33.00. This Court was not given an explanation as to
why the accused decided to rob the
shop. The Court, however, may
infer from the facts that the accused, having recently been released
from prison, decided to revert to stealing from others as a means of
income. Robbery in itself is considered by the Courts as a serious
crime. In
S v
, Maritz, J, as he then was,
cited with approval the following from
v Myute and Others; S v Baby

Magistrates should never lose sight
of the fact that robbery is a most serious crime. The offence
consists of the two elements of violence and dishonesty. Normally an
individual can avoid situations which lead to violence and the danger
of his being assaulted by taking the necessary precautionary
measures. Similarly he can take steps to guard against his property
being stolen. It is, however, a different matter when it comes to
robbery. The victim cannot take precautions against robbery. In his
day to day living he visits friends, goes to work and goes shopping.
This is usually when robbers strike. Robbers often roam the townships
in gangs, attacking innocent people, depriving them of their property
and almost invariably injuring the victims, sometimes seriously. The
persons robbed are more often than not women or elderly people who
cannot defend themselves. It must also be remembered that robbery is
always a deliberately planned crime.”

this matter the Court once again expressed its concern for the
wave of crime
reaffirmed its determination to combat it by imposing deterrent

A further important consideration for the Court to take into account
is the approach the Court should follow when an accused is convicted
of both murder and robbery i.e. when the victim of the robbery died.
S v
the Court held that the
accused convicted of robbery and murder must be sentenced on the
count of robbery as if he had not been convicted on the count of
murder and was not in jeopardy of such a conviction in future; and
that the risk of double jeopardy should be addressed adequately by
directing that the sentences (or portions thereof) should be served

I can only echo what Maritz J, as he then was, stated in
v Paulus, supra

Of course, punishment should be
individualised. The background, character, capacity to be
rehabilitated, motives and other personal circumstances of the
offender deserve careful consideration and will always remain an
important factor in the formulation of an appropriate sentence. Our
penal system is, however, not only offender orientated. It also
requires an assessment of the specific nature and the seriousness of
the offence; of how best to serve the interest, prevalence of the
offence, compensation of the victim and, in general the objectives of
punishment in modern society.”

Having carefully considered all of the above stated I am of the view
that the following sentence would be appropriate:

The accused is sentenced as

Count 1 – Murder: 30
years imprisonment

Count 2 – Robbery 10
years imprisonment

In terms of section 280 (2) of
Act 51 of 1977 it is ordered that five years of the sentence imposed
on count 2 be served concurrently with the sentence imposed on count




Instructed by:
Office of the Prosecutor-General


by: Directorate of Legal Aid

R v Karg 1961 (1) SA 231 (A)

Unreported case, Case no CA114/98 delivered on 28 March 2000

1985 (2) SA 61 (CkS) at 62 D – G)

2006 (1) NR 1 (SC)