silunga v the state

8/8/2019 Silunga v The State

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CASE NO.: SA 1/2000

IN THE SUPREME COURT OF NAMIBIA

In the ma tter between

DAVID SILUNGA APPELLANT

And

THE STATE RESPONDENT

CORAM: Strydom, C.J., O'Linn A.J.A. et , Manyarara A.J.A.

HEARD ON: 2000/10/11

DELIVERED ON: 2000/ 12/ 08

_____________________________________________________________________________

APPEAL JUDGMENT

_____________________________________________________________________________

O'LINN, A.J.A.:

A. INTRODUCTION

The a pp ellant wa s c onvic ted in the Court a quo on severa l cha rge s being:

1. Murder

2. Contravention of section 1 of Act 75 of 1969 as amended -

possession of a firea rm without a lice nse.

3. Contravention of section 36 of Act 75 of 1969 - possession of

amm unition - to w it - two (2) shotg un c artridge s.



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He w as sentenc ed as follow s:

1. Sixteen (16) years imp risonment.

2. Eighteen (18) m onths.

3. Six (6) months.

Counts 2 and 3 were ordered to run c onc urrently with the sente nce on c ount 1.

The appellant wa s rep resented a t h is tria l by M r. Christiaa ns.

The app ellant a pp lied for lea ve to ap pe al and c ondona tion for the late filing o f

his app lic a tion for lea ve to a ppea l. The applic at ion wa s refused by the trial

judge, G ibson, J.

Subseq uent to the d ismissa l of the applic a tion fo r lea ve to appea l by the Co urt

a quo , this Court granted leave to appeal against both the convictions and

sentences.

Mr. Christiaans appeared before us for the appellant at the request of the

Co urt. Ms. Sc hultz, appea red for the Sta te .

B. THE QUESTION WHETHER THIS COURT HAD THE NECESSARY

JURISDICTION TO GRANT LEAVE TO APPEAL AGAINST CONVICTION

AND TO CONSIDER AND DECIDE ON SUCH AN APPEAL



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After counsel had argued the appeal against both conviction and sentence

and whilst considering this judgment, I realized that the order of this Court in so

far as it granted leave to appeal not only against sentence but also against

c onvict ion, may be a nullity in the light of seve ra l authorita tive d ec isions.

The e ssenc e o f these d ec isions is tha t when a n ac c used asks the tria l judge fo r

lea ve to appea l aga inst sente nce as in this case a nd tha t is refused , this Court

has no jurisd ic tion to grant leave to a ppe a l a lso aga inst c onvict ion. If such

leave is granted, the order granting it is to that extent a nullity and

consequently any order made by this Court on appeal in pursuance of the

order granting leave to appe al aga inst c onvict ion, is also a nullity.1

At the outset it is necessary to explain why this Court granted leave to appeal

a lso a ga inst convict ion, howe ver erroneous tha t dec ision ma y have b een.

When the accused applied to the Court a quo for leave to appeal, the

appellant wa s no longe r assisted by a legal prac titioner. In his app lic a tion, he

repeatedly complained that the conviction was wrong in that he did not have

the necessary intention to kill and that in the result, he should only have been

c onvicted o f c ulpab le homic ide. He nevertheless asserted tha t he only wa nted

to appea l aga inst sente nce. The Court a quo consequently treated the

application as an application for leave to appeal only against sentence and

then rejected the a pp lication for leave to a pp ea l ag ainst sentenc e.

1 S v Absalom , 1989(3) SA 154 (AD) a t 162B - 166D

S v Tsedi , 1984(1) SA 565 AD

S v Cassidy , 1978(1) SA 687 (AD)S v Go pa l , 1993(2) SACR 584 (AD) a t 585 c - d



4

The appellant then petitioned this Court for lea ve to a ppea l. The judge s who

considered the petition, so I am informed, held the prima facie view that the

ap pe llant in substanc e c omplained ag ainst bo th co nvic tion and sentenc e and

that his application for leave to appeal should have been dealt with by the

Court a quo as an a pp licat ion for lea ve to a pp ea l ag ainst bo th co nvic tion and

sentenc e. Furthermore, the prima facie view was that there were several

defects in the judgement of the Court a quo regarding conviction which

justified the g ranting of leave to a ppea l also a ga inst c onvic tion.

The p oint that the a ppea l aga inst c onvict ion was not p rop erly be fore this Court

wa s not raised by any of the p arties or their counsel. This Co urt a lso fa iled to

ra ise the p oint mero mo tu .

This Court c onseq uently hea rd full argum ent on the m erits of the c onvic tion as

we ll as the sentenc e.

Notwithstanding the fact that the granting of leave to appeal against

conviction is a nullity, it would in my view, not be an exercise in futility to

consider the merits of the conviction, because the merits can be decisive for

this Court in dec id ing o n the c ourse to be fo llow ed which wo uld best serve the

interest o f justice2.

So e .g. if there was me rit in an a ppea l aga inst c onvict ion, this Court may have

considered postponing the final decision on the appeal as it stands to give the



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appellant the opportunity to apply to the Court a quo also for leave to appeal

aga inst co nvic tion. If lea ve is then grante d b y the Co urt a quo , the ap pea l to

this Court on both co nvic tion and sentenc e c an then be plac ed on the roll for

further hea ring b y this Court. If lea ve is not g ranted by the Court a quo against

c onvict ion, then the a ppellant, if so a dvised , ca n petition this Court for lea ve to

appea l aga inst co nvic tion. Suc h a co urse would ob viously c ause a long d elay

before finality can be reached on the issue of the correctness of the judgment

of the C ourt a quo relating to c onvic tion a nd sentenc e.

In the circumstances I embarked on a consideration of the merits of the

conviction as well as sentence in order to decide what course should be

follow ed . If this Court c onc lude s tha t there is no merit in an a ppea l aga inst

c onvic tion, it wo uld be a wa ste o f time to follow the c ourse set out ab ove.

C. MERITS OF THE CONVICTION

Mr. Christiaa ns c ontend ed that the a pp ellant should only have be en c onvic ted

of culpable homicide on the murder charge but did not contest the

c onvic tions on the two o ther c harges. Ac cording to him, the Court a quo

should in the result only have imposed a sentence of imprisonment, wholly

suspend ed . Ms. Sc hultz on the other hand suppo rted the c onvict ions and

sente nces on a ll the c harge s.

2 Sta te v Langa & O thers, 1981(3) SA 186 AD, at 190 A - 191 A.



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There w as no d ispute in the Court a quo in rega rd to the fac t that the a cc used

had killed the d ec ea sed by shooting him w ith a shotgun and that the ac c used

was in the unlawful possession of a shotgun and two shotgun cartridges.

The only dispute in the Court a quo in regard to the murder charge was

whethe r or not the State had proved be yond reasona ble doubt tha t the

accused had the necessary intention to kill and if so, did not act in self-

de fence, alternatively, exc eed ed the b ounds of self-de fence w ell know ing that

he was exce ed ing the rea sona b le bound s of self-defenc e, alternatively at least

foresaw the reasonable possibility that he was exceeding the bounds of self-

defence and nevertheless proceeded, regardless of whether or not he was

excee ding the bo unds of self-de fence.3

Gibson, J., the p residing judg e a t a ppellant's tria l in the High Court, mo tivated

the c onvict ions as follow s:

"I do not accept therefor the accused's account of this particular

story. Neither do I ac c ep t the ac c used 's ac c ount of a q uarrel

befo re the shoo ting on the da y of this pa rticular inc ident. The

accused version is totally inconsistent with the evidence of Abner

Ingung ula , who 's evidence wa s reliab le and b elieva b le. In my view

although suggestions were made that Abner might have missed

the c onversation there rea lly is no substa nc e in it. As Ab ner

3 Criminal Law, by C R Snyman, 3rd ed . 102, point 5 up to end of p oint 6, p . 106;

S v Beukes & An , 1988(1) SA 511 AD at 522 B - G;S v Va n Wyk, 1993 NR 426 a t 439 B - 442 H;

S v Naftali, 1992 NR 299 a t 303 F - 304 ES v Shimooshili, NmHC, 30/10/ 92, unrepo rted ;

Raymo nd Landsberg v The Sta te,S v Whitham , NmHC, 17/09/1992, unrep orted



7

indicated the conversations took place a mere four metres away

from him a nd there w as no p artic ular noise to c ompe te a ga inst a ny

such quarrel he c ouldn't have m issed tha t q uarrel.

However, the accused described an altercation earlier that day

with the deceased when he was on his way to look for the cattle.

Well I have grea t do ubts about tha t story. I c anno t rule it out

altoge ther bec ause o f the way in which, and the c irc umstance s in

which the shooting is said to have occurred on the description of

Abne r Ingungula. The attitude of the ac c used a t the app roa c h of

the deceased upon the deceased's arrival would appear to

suggest a resump tion of an earlier unfinished business. Ac c ord ing

to Abne r Ingungula the ac c used called out to Absalom Sylvanus

not to c om e nea r him or else he will shoo t. The fac t tha t the

ac c used wa s ap prehensive a bo ut the ap proac h of the d ec eased

towards him does tend to suggest some animosity between the

parties.

Why would the accused if, as Abner stated, these words were

utte red so c a lmly, why would the a c c used have been so a nxious to

stop the deceased's approach unless there was something

threatening before him. Abner's desc rip tion of the dea sed 's

approach was that in his mind he merely thought the deceased

wa s ap proa c hing to greet the ac c used . So in itself there wa s

nothing in the approach which could give the impression of



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agg ression on the pa rt of the dec ea sed . How eve r, it seems tha t

such was the state of mind of the accused that he immediately

rea c ted to p revent that ap proac h. It would seem the refor from

these facts that the accused may have believed in his own mind

that the deceased was approaching him in an aggressive mood

and therefor acted quite unreasonably to protect himself.

However, in electing to use a shotgun in the circumstances

presented before him the accused undoubtedly exceeded the

bound s of rea sona b le self-defenc e. The de c ea sed w as not a rmed

with any wea po n as he ap proac hed the ac c used . So in firing the

shotgun at the deceased the accused not only exceeded the

bounds of reasonable self-defence but he did so grossly and

immoderate ly. And given those c irc umstanc es the ac c used

foresaw in my view the possibility that the shot will result in the

death of the deceased, but, the accused, being reckless to that

consequence, fired nevertheless.

The ac c used is therefore found guilty o f murder with c onstruc tive

intent , in count one. He is a lso found guilty of p ossession of a fire-

arm without a license in count two and unlawful possession of

ammunition in count three."

Mr. Christiaans relied heavily on a passage from the judgment for submitting

that the findings of the Court a quo supported a conviction of culpable

hom ic ide, ra ther than murder. The p assage relied on by him for the co nvic tion

reads as follow s:



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"It would seem therefore from the fac ts that the a c cused ma y have

be lieved in his own mind that the de c ea sed wa s ap proac hing him

in an agg ressive m ood and therefore ac ted quite unrea sonably to

prote c t himself."

According to Mr. Christiaans the aforesaid passage shows that the learned

judg e "ruled that the a c c used be lieved that he was ac ting in self-de fence, but

tha t the be lief was unrea sona b le".

There is sub sta nc e in this c ontention.

The lea rned tria l judge unfortunate ly did not d ea l a t all with the c orrec t leg al

approach when "self-defence" becomes an issue in a trial of an accused on a

c harge of murder. She c orrec tly dea lt with the issue o f the a c c used 's intention

to kill and c orrec tly held tha t the ac c used had the intention to kill, at least in the

form o f dolus eventualis . She app arently also held that the a c c used ma y have

acted in "self-defence", but that he had in any event "not only exceeded the

bound s of self-defenc e b ut d id so g rossly and imm od erate ly".

The Court thus correc tly conc luded the first leg o f the e nquiry - where an

ob jec tive test had to b e a pp lied.

However, before a conviction for murder could ensue, the Court had to

embark on the second leg of the enquiry where the test is subjective in that it

deals with the mens rea of the accused in relation to the killing - more



10

particularly the question of whether or not the state had proved beyond

reasonable doubt that the accused knew that his action exceeded the

reasonable bounds of self-defence, alternatively foresaw the reasonable

possib ility tha t his ac tion exceed ed the reasona ble b ound s of self-defenc e a nd

nevertheless proceeded, regardless of whether or not his action exceeded the

bounds of self-defence.

Where the Sta te suc c eeds in p roving this element, the verdict of m urder is

justified . Where it fails to d o so, but neverthe less suc c eeds in proving tha t the

accused acted recklessly or negligently in not knowing that his action

exceeded the bounds of reasonable self-defence or in not foreseeing the

reasonable possibility of his action exceeding the reasonable bounds of self-

defence, a verd ic t of c ulpable hom icide is justified .

A c areful rea ding of the judg ment lea ds to the conc lusion tha t the C ourt a quo

neve r embarked on the a foresa id sec ond leg of the enquiry. As it stands, a

verdict o f culpa b le homic ide wa s justified , but not one of murde r. The court

thus misd irec ted itself in its approa c h and rea soning . Tha t however, does not

mean that the appeal would have succeeded and a conviction for culpable

homicide substituted for that of murder, if the appeal against conviction was

prop erly be fore this Court. In tha t event, this Court wo uld ha ve b een entitled to

rec onsider the evidenc e on rec ord, inc lud ing findings of c red ib ility of the judge

a quo , to c ome to its own c onc lusion rega rding the c orrec t verdic t.



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The question a lso a rises as to whether or not the Court did not m isd irec t itself

when it failed to c onside r and to d ec ide mero motu to c all Ma rtha Mup eta nnie

as a witness.

This person wa s origina lly brought to Court as a sta te witness bec ause she wa s

on the scene when the fatal shooting took place and apparently saw and

hea rd what transpired immed ia tely befo re the shoo ting. It transpired a t the

hearing that she was probably in a better position than the main state witness

Abne r Ingungula to ha ve seen a nd hea rd w hat ha pp ened . This ap pe ars from

the follow ing part of the c ross-examination o f Abner by Mr. Christiaa ns:

"Q" Now on that partic ular da y there at the c uca shop , c an you

rec a ll, wa s there a c ertain Martha Mupe tannie a lso p resent?

A: Yes, my lad y. She was the re, this is a girl of age und er 20.

Q: Was she a lso the re?

A: Yes, she was outside the re.

Q: Now, if she c om es and tell the Court tha t there wa s in fac t a

c onversa tion, will she be lying?

A: My lad y, tha t I wo uld not know. If she would c om e and

testify to tha t e ffec t, tha t is true. Tha t is her version, because

she was nea r the a cc used David. Tha t I will not d ispute .

Q: Was he c loser to them tha t you we re?

A: Yes.

Q: Now, afte r the shot wa s fired and you looked around and

you saw the d ec eased moving a few p ac es, you proba bly

would not know when the shot was fired, how the rifle was



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pointed and what happened when the shot was fired, how

the rifle was pointed and what happened there between

the two of them?

A: Correc t my lady. I d id not witness the ac tua l shoo ting."

Notwithstand ing the fa c t tha t Ma rtha wa s in a be tter position tha n Ab ner to see

and hea r wha t hap pe ned at the c ruc ial stag e, sta te c ounsel, Ms. Duvenhag e,

closed the prosecution case without calling Martha and offered her as a

witness to the d efenc e.

After the accused had testified, Mr. Christiaans indicated that he intended to

c a ll Ma rtha and sa id: "I think it is important tha t she be ca lled . She was a lso

present and therefore I wish to ca ll her.".

Mr. Christiaans then informed the Court that Martha had been sitting in Court

for a short while when Mr. And reas Shivute was testifying on issues relat ing to

whether or not he had given permission to the accused to take the shotgun

and had nothing to do with the events at the cuca shop where the shooting

too k p lac e. Counsel for the Sta te then indica ted tha t she wa s unab le to say

when Martha w as in Court.

Thereup on the p residing Judge sa id: "But this is very imp roper, wasn't it? To let

a witness remain during the proceedings and the evidence before she gave

evidenc e.". After c onsiderab le further excha nge s betw een the presid ing

Judg e a nd Mr. Christiaa ns, the p residing Judg e sa id: "But anywa y, c a ll her and



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we w ill see wha t we have go t perhap s for new evidenc e.". Mr. Christiaans

retorted : "Then in tha t c ase, I will not c a ll her.".

Mr. Christiaa ns persisted in his a ttitud e no tw ithsta nd ing tha t the presiding Judge

assured him that he could call the witness but that her having been in Court at

some sta ge m ay affec t the we ight o f her evidence. Mr. Christiaans then c losed

his c ase without ca lling Martha . She was the only eyewitness who saw the

ac tual shooting and w ho proba bly hea rd w hat wa s said between the ac c used

and the dec eased at tha t c rucial stag e.

This wa s a typ ica l ca se w here the p residing Judge, as administrator of justice,

should ha ve c onsidered c a lling the witness mero mo tu to testify in ac c ordanc e

with section 167 read with section 186 of the Criminal Procedure Act No. 51 of

1977

The ne ed to fo llow the g uide lines in S v va n d en Berg wa s aga in emphasized in

the rec ent dec ision of this Court in Sta te v K 4 .

In Katamba's case the Court also emphasized the Court's constitutional duty

also "to protect the fundamental rights of victims" and in this regard "also to

c onsider and g ive some weight to the c onte mp orary norms, views and op inions

of Na mibian soc iety".5

4 S v K, 2000(4) BCLR 405 NmS 426 C - E

S v V.d . Berg, 1995(4) bc lr 479 Nm a t 523 A - 531 A also reporte d in 1996(1) SACR19 a t 63g - 72 c and the dec isions refe rred to therein.

5 IBID , 419 D and the dec isions refe rred to in footno te 9 of the report.



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Any failure b y a Court to follow the a foresaid a pp roa c h, may d ep rive the trial

Court of the bene fit of having heard a ll the availab le relevant evide nce a nd o f

considering such evidence and in addition, deprives this Court on appeal of a

c omplete rec ord of the availab le releva nt evide nce . Such failure b y the trial

Court may amount to a misdirection or even an irregularity in the proceedings,

c ausing p rejudice to e ither the Sta te o r the a c c used or the vic tim and as a

consequence a miscarriage of justice - necessitating a setting aside of the

verdict, with or without an order referring the matter back to the Court a quo

for the a pp lic ation of a prope r proc ed ure a nd/ or for rec onside ring the ve rdict.

In most instances of the aforesaid failure, unnecessary and inexcusable delays

will be caused in reaching finality, which in itself undermines the administration

of justice.

The d ec isions referred to adeq uately sets out the c orrec t p osition, but b ec ause

of its importanc e, it is justified to rep ea t the follow ing aspec ts:

(i) Sec tions 167 and 186 of the Crimina l Proc ed ure Ac t 51 of 1977

provide as follow s:

S.167: "The Court ma y a t any sta ge of c riminalproceedings examine any person, other than an

accused, who has been subpoenaed to attend

such proceedings or who is in attendance at such

proceed ings, and ma y rec all and re-exam ine a ny

person, including an accused, already examined

in such p roc eed ings, and the Court sha ll examine,

or recall and re-examine, the person concerned if

his evidenc e a ppea rs to the Court essential to the

just dec ision in the c ase."

(My emphasis added.)



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It is clear from the above that the first part of the section allows a discretion,

which must be judicially exercised but the second part makes it mandatory to

examine, or recall and re-examine the person concerned, once the said

evidence appears to the Court, in the exercise of a judicial discretion, to be

essent ial to the just d ec ision in the case.

S. 186: "The C ourt ma y at any sta ge o f c riminal

proceedings subpoena or cause to be

subpoenaed any person as a witness at such

proceedings, and the Court shall so subpoena a

witness or so cause a witness to be subpoenaed ifthe evidenc e o f such witness appea rs to the Co urt

essent ial to the just d ec ision of a c ase."

(My emphasis added.)

This sec tion as in the case o f sec tion 167, provides in the first p art for a

discretionary power, but in the second part for a power that is mandatory,

once the evidence appears to the Court to be "essential to the just decision in

the c ase".

As pointed out in the v.d. Berg -decision, the above provisions of the 1977 Act

"are the equivalent of similar sections in the Criminal Procedure Acts preceding

Ac t 51 of 1977. The m a in d ifference is tha t in Act 51 of 1977 the rec a lling and

examining of an accused person, once such person has testified for the

defenc e is spelled out, whereas in som e earlier ac ts tha t ha d to be imp lied ".

(ii) The role of the Courts in Namib ia and South Afric a in reg ard to

Criminal Procedure, is partly adversarial and partly inquisitorial

compared e.g. to the United Kingdom, where until now, the role



16

has be en a dversarial and the rest of the c ontinent o f Europ e,

where the role is inquisitorial.

The a foresa id role was a lrea dy suc c inc tly sta ted in 1928 by the Appella te

Division of the South Afric an Suprem e Court where the learned judg e Curlew is,

J.A., de fined the position a s follow s:

"A c riminal tria l is not a ga me where one side is entitled to c laim the

benefit of any omission or mistake made by the other and the

Judge's position in a criminal trial is not merely that of an umpire tosee tha t the rules of the g ame are ob served b y both sides. A judg e

is an administrator of Justice, he is not merely a figure head, he has

not only to direct and control the proceedings according to

rec og nized rules of p roc ed ure, b ut to see tha t justice is done ."6

The manner in which Wessels, C.J., ap p lied this approa ch in 1935 in the dec ision

of the Ap pella te Division of the South Afric an Sup rem e Court in R v Omar is

instructive. He said:

"It is no t nec essary to hea r Mr. Bea rdmo re. In this matte r the

attorney-general suggested to the presiding Judge in the court

be low to c all a w itness afte r the c ase for the de fence had c losed .

He stated that the man he wished to have called had only been

found in the early hours of the morning and that he had not had

the op portunity of ca lling him at the prope r time. The Judge

exercised his discretion under section 247 and called the witness,

who se evidenc e went to the merits of the ca se. It has be encontended that section 247 should be confined to those cases

whe re the re ha s been an o mission of a tec hnica l na ture, not where

the evidenc e goes to the merits of the c ase. As I rea d the sec tion it

has exactly the opposite meaning - namely to see that substantial

justice is done, to see that an innocent person is not punished and

tha t a g uilty man do es not esc ape punishment. Tha t is why the

sec tion is in the widest possible terms. If at any sta ge o f the c ase

the Judge thinks a witness ought to be called he may use his

discretion to call a witness to give evidence, but when it appears

that evidence is essential to the proper decision of the case, then



17

the Judge ha s no d isc retion - he must ca ll the witness. In these

circumstances the question must be answered in favour of the

Crown."7

It often happens that the prosecutor declines to call a witness because that

witness ma y contrad ic t the whole or pa rt of the state c ase a nd the p rosec utor

do not wish to be in a position where he/she cannot controvert the

unfavourable part because the prosecution may not cross-examine its own

witness. Simila rly, the d efe nc e m ay dec ide not to c a ll a witness as its witness,

essentia lly for the same rea sons. These rea sons a re not nec essarily based o n

the known or suspec ted untruthfulness of the w itness. The result may be tha t a

witness is not called who may have been able to tell the truth and thus

c ontribute to the Court's func tion to estab lish the truth.

In c ases where bo th the p rosec ution a nd d efenc e d ec line to c all an a vailab le

witness, it may assist the Court in making a decision whether or not to call the

witness, if the Court is informed in general terms what the nature of such

evidenc e is go ing to be o r if the witness's sta tem ent is hande d up for the C ourt's

assista nc e b y consent .

Where however, there is sufficient evidence on record indicating that the

witness can assist the Court in its abovementioned function, there can be no

7 R v Omar, 1935 AD 230 See a lso

R v Kubeka , 1953(3) SA 691 (T) a t 695 G, the judg ment of Ramsbottom , J.

R v Hongwa ne, 1982(4) SA 321 at 323 A - 324 C

S v von Mo lendo rf, 1987(1) SA 135(T) at 149 B - 151 H

R v Beck , 1949(2) SA 626(N)

S v Dawid, 1991(1) SACR, 375 NmHC at 381d - 383c

S v d u Raan , NmHC 22/9/1994, unreported

Duminy v The Sta te , NmHC, 12/11/ 92, unrepo rtedS v Kwant, NmHC, 26/ 10/ 1994, unrep orted



18

d iffic ulty for the C ourt in exercising its d isc ret ion in terms of sec tion 186, to c om e

to a de c ision.

In the instant case however, it cannot be said that the circumstances were

such that the Court w as c ompe lled to c all the w itness Ma rtha Mupeta nnie.

The app ellant g ave the fo llow ing explana tion in his testimony:

"My lady, when the deceased came to that cuca shop, hegreeted everybody there, including myself. … the deceased my

lad y was lea ning on a po le whereb y he greete d m e. I then said to

him you should not g ree t me. What you d id to me in the morning, is

enough. … Then afte rwa rds he answered me that w hat c an I do to

him? I then a lso to ld him, there is nothing I c an d o to you, but you

should not c om e nea r to me. And w hile I wa s telling him not to get

nearer to me, he was get closer to me, very near closer to me.

Then he wa s po inting a t me m ayb e w ith the intention o f grab bing

me. I then told him that you should not c ome near to me,

othe rwise he would b ring prob lem s to me. … Then the d ec ea sed

said to m e, what can you do to me w ith your rifle? You with yourrifle. … and w hile the d ec ea sed wa s pointing a t me , my lad y, I then

fired a shot tha t we nt to struck him on his arm. But then I d id not

know where e lse o n his bod y tha t I struck him..."

Abner testified that he had heard the appellant say to the deceased just

befo re the shoo ting: "Come out, I will shoo t you tod ay".

This sta teme nt wa s not d enied by the a ppellant under c ross-examination. The

said words do not necessarily contradict appellant's testimony about what was

sa id immed ia tely befo re the shoo ting, but ra ther supp lements it. I will ac c ep t

c onsequently that when a pp ellant w arned the de c eased not to c ome nearer -

he used wo rds to tha t effec t - "c om e out - I will shoo t you to day".



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It wa s c ommon cause tha t the a pp ellant shot the d ec ea sed with a shotgun, a

lethal weapon at a distance of 2 - 4 meters and/or paces and that the

appellant knew a t all times tha t the shotg un wa s a letha l weapon. It wa s also

c once ded that the dec eased did not have a ny weap on in his hand w hen he

ap proac hed the a pp ellant.

The d efenc e of self-defenc e was only tenta tively ra ised during the ap pellant’ s

testimony as appears in the abovequoted passages from the appellant’s

testimony. The ma ximum threa t ap pea rs to be conta ined in the wo rds: “ Then

he wa s po inting a t me - ma ybe w ith the intention of g rab bing me .” .

At the sec tion 119 proc eed ings - the ap pe llant p lea de d guilty to the c harge o f

murder and did not say or suggest that there was any form of attack on him

and that he w as ac ting in self-defenc e or believed that he w as do ing so. On

the specific question - “Why did you shoot the deceased?” the appellant

answered : “ I shot the de c ea sed be c ause he wa s always ac c using that m y

mother does always have an affair with his father and also that all children of

my mo ther do es not belong to my fathe r.” The ac c used ’s plea explana tion at

his trial was not given by him but orally by his legal representative Mr.

Christiaa ns. There wa s no written explana tion of plea , by the a c c used himself

as wa s the p rac tice in the Nam ibian High Court for ma ny years. It is not p rop er

for a p lea explana tion to b e g iven b y the leg a l rep resenta tive unless c onfirmed

by the a cc used . Presid ing jud ic ia l office rs should ensure tha t the above -sta ted

prac tic e is ad hered to.



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The version of Mr. Christiaa ns, as g iven o ra lly, did not a mo unt to a p lea of self-

defenc e. Mr. Christiaans sa id : “ ...the ac c used w ill admit tha t he did in fac t

shot (shoo t) the dec ea sed a nd tha t that shot killed the dec ea sed . How eve r, it

wa s not his intention to kill the dec ea sed , but only to hurt him and to scare him

aw ay bec ause the dec ea sed c am e towa rds him. And also bec ause of threa ts

earlier and on that particular occasion he was under the impression that the

dec eased wa s ab out to a ttac k him.”

Whether Mr. Christiaans meant that the accused was under the impression at

the time o f the shooting that the d ec ea sed wa s ab out to a ttac k him or whether

he was under the imp ression on a previous oc c asion is not c lear. But

unfortunately the presiding judge failed to obtain any clarification from Mr.

Christiaans or from the ac c used . Furthermore she failed to ob ta in any

c onfirma tion from the a c c used in regard to the p lea explana tion offered b y Mr.

Christiaans as wa s the c orrec t p rac tice in the High Co urt.

In her judgment, the presiding judge did not mention the section 119-plea

explana tion. She ap pa rently gave no c onside ration to the imp ortant p iec e of

evidential ma terial which am ounted to an imp ortant a dm ission.

This p lea explana tion wa s inconsistent with any d efenc e o f self-defence. It wa s

a strong indica tion tha t the ap pe llant no t only did not a c t in self-defenc e, but

knew full we ll tha t he wa s not a c ting in self-defenc e. The ac c used a t the time

was not represented by a legal representative, but any person -even without

any sc hooling - would ha ve to ld the Court w hen p ertinently asked w hy he ha d

shot the d ec eased , that he shot the d ec eased be c ause he w as atta c ked by



21

the dec ea sed if tha t was the c ase. Furthermore, this app ellant ha d rea c hed

grade X at school and his failure to state that he was attacked, cannot be

excused on the g round of lac k of sc hoo ling o r intelligenc e. To mention tha t he

shot the de c eased bec ause he w as atta c ked would have b een a natural and

obvious response for any person in his position.

His explanation amounts to a plea that he and his parents were grossly insulted

by the d ec ea sed on p revious oc c asions and he wa nted to injure the d ec ea sed

bec ause of the afo resa id p rovo c at ion. His only rea l defence wa s c onseq uently

that he intended to injure and not to kill and that he a c ted under provoc ation.

The Court m isdirec ted itself by fa iling to give a ny c onsideration to the sec tion

119 proc ee d ings. This misd irec tion is similar to the one refe rred to in the rec ent

decision of this Court in S v K 8 . In this c ase the misd irec tion favo ured the

appellant but there was no prejudice to the state or to the interests of the

vic tim a s the app ellant w as at a ny event convic ted of murder.

In my view , the ac c used wa s c orrec tly co nvic ted of the c rime of murder. In the

light of

the evidence and admissible evidential material, the accused intended to kill

at least, on the basis of dolus eventualis . He did not ac t in self-defenc e and he

knew it. Alternatively,

8 S v K, BCLR 2000(4) 405 (NmS) at 423 I - 424 D.



22

he grossly exc eede d the b ound s of self-defence and knew it. In the further

alternative, he foresaw the reasonable possibility that he was exceeding the

bounds of self-defence and proceeded nevertheless - regardless of whether or

not he wa s exceeding the bo unds of self-de fence.

There is c onseq uently no p rospe c ts of suc c ess for an appea l against c onvict ion

if prope rly noted and prosec uted and it would therefore be futile to follow the

c ourse suggested in Sec tion B, supra .

D. THE SENTENCE

The app roa c h of a Court of App ea l in regard to ap pe als ag ainst sentenc e was

aga in reiterated in the rec ent dec ision o f this Court in And ries Ga seb & 2 Others

v The Sta te . The Court sta ted :

“It is trite law that a Court of Appeal can only interfere with the

discretion of the trial Court regarding sentence on very limited

grounds, viz : When the t rial Court has not exerc ised its d isc ret ion

jud iciously or properly. This oc c urs when the tria l Court has

misdirected itself on facts material to sentencing or on legal

p rincip les releva nt to sentenc ing This will a lso b e inferred where the

trial Court acted unreasonably and it can be said that the

sentence induces a sense of shock or there exists a striking disparity

be tween the sentenc e p assed and the sentenc e this Court wouldhave passed or if the sentence appealed against appear to this

Court to be so startlingly or disturbingly inappropriate as to warrant

interference by this Court."9

If this Court had substituted a conviction for culpable homicide for that of

murder, this Court could have and would have interfered with the sentence.

9 And ries Ga seb & 2 O v The Sta te , de livered on 09/ 08/ 2000, unrep orted , (NmS)



23

But not only must the c onvic tion for murder stand , but the re a re no rea sona b le

prospe c ts of such an a pp ea l

succ eed ing if prope rly noted and prosec uted .

The Co urt a quo d id not m isdirec t itself on any ma tte r relating to sente nc e. The

sentence of 16 years imprisonment for murder does not appear to be

unreasonable in the circumstances and certainly not such that it induces a

sense o f shock, or can be sa id to be sta rtling ly or disturbing ly inapprop riate .

The same app lies to the sentenc es imp osed on the further two c harges.

In the result:

1. The orde r of this Court granting lea ve to appe al aga inst

c onvict ion is dec la red a nullity.

2. The appea l aga inst sentenc e is d ismissed .

(signe d) O’LINN, A.J.A.

I ag ree.

(signed) STRYDOM, C.J.

I ag ree.

(signe d) MANYARARA, A.J.A.

/mv

COUNSEL ON BEHALF OF THE APPELLANT: Adv. W.T. Christiaans



24

(Legal Aid)

COUNSEL ON BEHALF OF THE RESPONDENT: Adv. S. Sc hultz

(Prosecutor-General)

silunga v the state

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