CASE NO.: CC 11/2009
IN THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between:
THE STATE
and
NDAFAPAWA JOHANNES
CORAM:
LIEBENBERG, A.J.
Heard on: 16.10.2009; 13.11.2009
Delivered on: 13.11.2009
_____________________________________________________________________
SENTENCE
LIEBENBERG, A.J.:
[1] The accused was convicted of murder in circumstances
where she acted with dolus eventualis when throwing a burning (self-made) paraffin
lamp on the deceased, resulting in his body catching fire and his subsequent demise.
The Court today has to decide what suitable punishment it has to impose.
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[2]
In considering what an appropriate sentence for the accused would be, regard
must be had to the main principles applicable to sentencing as well as the main
purposes of punishment as referred to in S v Khumalo and Others, 1984 (3) SA 327
(A), namely, prevention, deterrence, reformation and retribution.
Furthermore, in sentencing, the Court strives to strike a balance between the
circumstances relating to the accused (relevant to sentencing), the crime committed
and the interests of society, coupled with a blend of mercy.
These factors are
generally referred to as the triad (S v Zinn, 1969 (2) SA 537 (A)). See also: S v Rabie,
1975 (4) SA 855 (A).
[3] It is trite that when the court attempts to harmonise and balance these principles
with the facts of the case, equal weight need not be given to the different factors, as
the circumstances of a case may dictate that one or more factor(s) be emphasised at
the expense of others (S v Van Wyk, 1993 NR 426 (HC)).
[4] The accused gave evidence in mitigation and her personal circumstances are the
following: She is currently 56 years of age and the mother of eight children of whom
four are deceased. She has no contact with the two elder children; while her two
youngest children, aged 17 and 14 years respectively, reside with family members as
the accused is not financially capable of maintaining them. Accused resides with her
elderly mother in the village where they, in addition to the latter’s pension, make a
living from subsistence-farming.
Accused has three of her grandchildren whose
respective ages are 4, 3 and 1 year in her custody and does not receive any
maintenance for any one of them; neither from their parents, nor from the State in the
form of a grant. The mother of two of the children is deceased while the other one
was abandoned by the mother who resides in Windhoek.
[5] As regards her mother’s health and care, accused said that her mother is sickly
and frail and thus, has become more dependent on her for assistance. Accused
expressed her concern over her mother and grandchildren should a sentence of
imprisonment be imposed as this will leave them destitute with no one to care for
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them during her absence. The court is the upper-guardian of all minor children and in
view of the evidence given by the accused relating to the circumstances surrounding
her three grandchildren, the Court requested a social worker’s report with specific
reference to the said children.
[6]
A report was prepared by the Principal Social Worker at Engela, Ms. Dorothy
Okatch which in material respects confirms the accused’s evidence regarding her
personal circumstances. What is clear from the report is that the accused is the only
surviving adult relative to the minors in her care and it would appear that there are no
prospects of someone else who could stand in for her during her absence and take care
of the minor children as well as her elderly mother with whom they are staying. It is
further evident that should the Court impose a sentence that would sever the accused
from her dependants, then the latter, undoubtedly, would suffer severely as a result
thereof. As far as it involves the children, the situation is not completely hopeless as
they, according to the report, could be put up at the SOS Children’s Home at
Ondangwa during her absence; however, as regards her mother, there appears to be no
alternative. This obviously complicates matters surrounding the accused’s personal
circumstances even further.
[7] However, the Court is satisfied that now that a social worker from the Ministry of
Health and Social Services has been involved in this case and is aware of the difficult
circumstances under which this family is trying to make a living, that the relevant
officials would actively involve themselves and the relevant organs of State to bring
about a notable improvement in this untenable situation. What should have happened
at the time when the accused took her grandchildren under her care, was that
proceedings under the Children’s Act, 1960 (Act No. 33 of 1960) should have been
instituted as these children were ‘children in need of care’ as defined in the act. I
assume this did not happen due to ignorance on the part of the accused. However,
there appears to be no reason why such proceedings cannot still be instituted and if
the children are placed in foster care, the foster parent(s) or institution where they
would be placed, would then be entitled to a State grant for their maintenance.
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[8]
The accused in mitigation testified that she had remorse for having caused the
death of a human being and that she, from the outset, accepted responsibility for her
misdeed and informed her counsel accordingly; hence her offer to plead guilty to the
competent verdict of culpable homicide, which the State declined. The reason why
she to date had not apologised or expressed contrition to the deceased (whilst still in
life) or to his family, she said, was because the deceased’s wife explicitly forbade her
to visit the deceased in hospital; furthermore, that she was threatened by the family
and therefore decided to move out of the village. It is common cause that after the
deceased died, family members of his approached the deceased’s mother with the
view of claiming compensation from the accused’s family in accordance with their
culture; and that they were told that a period of three years was required for the family
to raise the money. However, according to the deceased’s widow who testified, no
money has been received to date.
[9]
I do not believe that too much must be read into the accused’s failure to
apologise to the deceased or his family; or her failure to compensate the deceased’s
family financially for the loss they have suffered.
[10] Firstly, although the Court is entitled to draw inferences from the proved facts,
it is faced with the opposing versions of the accused and that of the deceased’s widow
as regards previous contact between the two, and whether the accused has had any
opportunity to apologise or not. In the circumstances it would appear that, since the
date of the incident, there were indeed opportunities during which the accused could
have approached the deceased’s wife to express her remorse if she wanted to.
However, in my view, that does not mean that therefore, the Court should give little
weight to her testimony that she had remorse for what she has done. She testified that
she had told her previous counsel from the beginning that she was responsible for
having killed the deceased and therefore offered a plea, albeit on the lesser offence of
culpable homicide, which is not disputed. What needs to be determined is whether
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her contrition is sincere and whether it is only an afterthought following her
conviction with the view of finding favour with the court before sentencing. I am
mindful of, and in respectful agreement with the remarks made by Maritz, J (as he
then was) in The State v Willem Swartz and Others, (unreported) Case No. CC
109/1999 delivered on 28.09.2000 namely, the sooner after the commission of a crime
remorse is expressed, the more genuine the expression thereof will fall on the ears of
the Court. But, in my respectful view, this must be considered in the circumstances of
the case, as it might not always be appropriate or possible for the accused person to do
so.
For instance, in the present case I do not believe that it would have been
appropriate for the accused to have visited the deceased in hospital soon after the
incident, with complete disregard to his feelings or that of his family. After all, she
was the cause for him lying in hospital. In the circumstances, thát might have done
more harm to the already tense relationship between the two families, than good.
With regard to the evidence given by the deceased’s wife, it is clear that there still
exists a hostile relationship between the accused and the family of the deceased and it
does not appear to me that it would
have changed, should the accused have
apologised.
[11] Therefore, the fact that the accused only expressed her remorse in mitigation of
sentence and not sooner, does not necessarily mean, that her contrition is not genuine.
Besides her evidence to that effect, there are also other indicators showing that she
has genuine remorse for having caused the death of the deceased.
[12] Secondly, when regard is had to the financial circumstances the accused was in
at the time the crime was committed and even until today, it is clear that the accused
had never been in a position to financially compensate the deceased’s wife and
family. This is evident from the request made by the accused’s mother for payment to
be deferred for three years. The accused (and her family) has never denied their
responsibility towards the deceased’s family, but was simply until now not in the
position to make any payment. Therefore, it cannot be seen as indicative of the
absence of remorse on the part of the accused.
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[13] The crime committed by the accused, undoubtedly, is very serious and must be
considered in context with the circumstances in which it was committed. Although
the Court found that, when the accused acted by throwing the lamp at the deceased,
she was not under extreme provocation, the Court was satisfied that, viewed
objectively, the accused had reason to be angry for being called a thief in public.
However, I hasten here to say that there is no justification for the manner in which the
accused acted in the situation and she worsened matters by refusing to leave the
premises. But, for purposes of sentence, provocation is regarded as a mitigating
factor because the crime was committed impulsively, and therefore regarded to be
morally less blameworthy than one committed with premeditation.
The accused
clearly did not visit the deceased’s cuca shop to pick a fight with him, but went there
for drinking when confronted and accused by the deceased for being a thief; and,
when the sales lady brought the burning lamp outside, accused immediately grabbed it
from her and threw it at the deceased, acting on the spur of the moment.
[14] The Court on the other hand, is mindful of the fact that people in any society, on
a daily basis, encounter situations in which they are angered, humiliated or provoked,
but have to control their emotions without yielding to the urge of taking the law into
their own hands and punish their wrongdoers. Although one might feel for the
accused in the circumstances, her uncontrolled conduct, as testified on during the trial,
however, cannot be condoned by the Court; who also has a duty to uphold the law and
protect other law abiding citizens living in an orderly society.
[15]
The Court in its judgment earlier explained why it regarded the lamp used
against the deceased as a dangerous weapon, which in fact, turned out to be lethal.
According to the medical reports the deceased sustains second and third degree burns
over 90% of his upper-body. I pause here to consider Mr. Uirab’s submission that the
report states that the burns were over 70% of the body and not 90% as indicated by
the Court earlier. I find myself unable to agree with Mr. Uirab’s contention that the
figures indicated on the report are ‘70’ and not ‘90’, especially on page 2 of the report
where it is more legible than on the first page. Be that as it may, it would make no
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difference in sentencing whether the deceased died of 70% or 90% burns on his
upper-body. Suffice it to say that these were extensive injuries and there can be no
doubt that the deceased was in severe pain for a substantial period of time and died a
painful death, twenty-two days later.
[16] Although the circumstances of the case differ from the ‘ordinary’ murder cases
tried in our courts which involve weapons like fire arms and knives, the outcome is
exactly the same, namely, an innocent life has unnecessary been wasted. In my view,
this case is just another example of how little value is attached to human life
nowadays, where some people in society live their lives as if there are no laws in
Namibia; or with complete disregard thereto, as well as for the fundamental rights of
their fellow Namibians. This unfortunate incident would not have happened, had the
accused simply left the premises as she was requested to do; but instead, she decided
to ‘punish’ the deceased for humiliating her in public and threw the burning lamp at
him the moment it became possible. It is common cause that when the deceased’s
body caught fire, the accused did not try to assist in extinguishing the flames but
simply walked away; which she explained, was because she went into shock. In the
circumstances the explanation seems reasonable.
[17] The interest of society is an important factor and should not to be overlooked or
given insufficient consideration when sentencing because in cases involving serious
crimes, like the present, where a life has gone wasted, society’s sense of outrage and
the deterrence of the offender and other potential offenders deserve considerable
weight. On the other hand, the personal circumstances of the offender equally play an
important role and must not be ignored. What is required is to weigh the personal
circumstances of the accused against the interests of society and to find a balance
between the respective interests. It is in the interest of society that the offender
receives appropriate punishment which is neither too severe nor too lenient, lest the
administration of justice will fall in disrepute (S v Di Blasi 1996 (1) SACR 1 (A) at
10f-g). The sentence imposed should also serve as deterrence, individually as well as
in general; although an accused should not be made the scapegoat of other criminals.
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[18] Mr. Uirab contended that given the exceptional circumstances of the case, the
Court should consider alternative punishment such as a fine or a totally suspended
sentence. He relied on the accused’s evidence that she stands to inherit from an uncle
of hers which would enable her to pay a fine. Other than this bold assertion there is
nothing on record as regards the amount the accused stands to inherit or when this
will happen and whether the Court can rely on the assertion for purposes of sentence.
That notwithstanding, I do not believe that monetary punishment is suitable in cases
involving serious crimes like murder, rape or robbery which usually warrant custodial
sentences.
[19] In this case the accused stands convicted of murder, and although she acted with
dolus eventualis, I am respectful of the view that, given the seriousness of the crime
and the circumstances in which it was committed, a custodial sentence would be
proper. The accused did not act with direct intent and whether her acting with dolus
eventualis should be regarded a mitigating factor, will mainly depend on the facts (S v
de Bruin en ‘n Ander 1968 (4) SA 498 (A); S v Joseph Gariseb and Another
(unreported) (HC) delivered on 24.10.2006). After having given due consideration to
the circumstances of the case i.e. the accused having been provoked and her acting on
the spur of the moment, the Court is satisfied that her intent in the form of dolus
eventualis is indeed a mitigating factor.
[20]
When full regard is had to the extenuating and aggravating factors present in
this case, then it becomes no easy task to decide what an appropriate sentence would
be, especially because of the compelling circumstances of those persons dependent on
the accused, from whom they make a living. In the end, the Court has come to the
conclusion that the only sentence to be imposed upon the accused today that would
reflect the personal circumstances of the accused, the seriousness of the crime
committed and the interests of society, is a custodial sentence which is partly
suspended.
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[21] The effect of the sentence imposed upon the accused today, undoubtedly, will
have a drastic effect on the lives of those dependent on her for their daily care;
however, that is inevitable and unfortunately is one of the consequences of crime.
The effect of the sentence imposed could, to some extent, be ameliorated by the
involvement of State social workers who could place the children at a place of safety
or in foster care and provide support for the children as well as the accused’s elderly
mother during her absence. The social worker involved in this case is urged to
instantly report the circumstances surrounding the accused’s dependants to the
Ministry of Gender Equality and Child Welfare for their immediate action and for her
own ministry to provide the necessary support to the accused’s elderly mother as far
as possible.
[22] In the result, the accused is sentenced as follows:
Twelve (12) years imprisonment of which half is suspended for five years on
condition that the accused is not convicted of murder or culpable homicide
involving an assault, committed during the period of suspension.
[23]
It is furthermore ordered that copies of this judgment to be forwarded to the
relevant offices of the Ministry of Health and Social Services; and the Ministry of
Gender Equality and Child Welfare for their notice and action.
__________________________
LIEBENBERG, A.J.
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ON BEHALF OF THE STATE
Adv. R. Shileka
Instructed by:
Office of the Prosecutor-General
ON BEHALF OF DEFENCE
Mr. B.M. Uirab
Instructed by:
Directorate: Legal Aid