s v jamen p gaoseb and joahasel gamaseb. judgm cc 19 - 2010. liebenberg, j 22 feb 2011

8/7/2019 S v Jamen P Gaoseb and Joahasel Gamaseb. Judgm CC 19 - 2010. Liebenberg, J 22 Feb 2011

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Reportable

CASE NO.: CC 19/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

JAMEN PETRUS GAOSEB

JOAHASEL GAMASEB

CORAM: LIEBENBERG, J.

Heard on: February 14; 15; 18; 2011.

Delivered on: February 22, 2011.

JUDGMENT

LIEBENBERG, J.: [1] The accused, both adult males, stand charged on two

counts, namely, (1) murder; and (2) housebreaking with intent to rob and robbery,


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with aggravating circumstances as defined in s 1 of Act 51 of 1977. They pleaded not

guilty to both charges. In count 1 it is alleged that the accused persons during the

period 15 16 October 2005 at or near Otavi in the district of Grootfontein,

unlawfully and intentionally killed Ruth Elfriede Will (hereafter referred to as the

deceased), an eighty-one year old female. Count 2 refers to the same period and

place and it is alleged that the accused, unlawfully and intentionally, broke in and

entered the house of the deceased, with intent to rob, and did unlawfully and

intentionally force the deceased into submission by physically assaulting her with

unknown objects on the face and body fracturing her ribs; by tying her hands and feet;

and smothering her, with intent to steal from her the goods listed in the Annexure. As

regards the aggravating circumstances present, it is furthermore alleged that

dangerous weapons were used during or after the commission of the crime, and that

grievous bodily harm was inflicted to the person of the deceased.

[2] Mr.Shakumu, instructed by the Directorate: Legal Aid, appeared on behalf of

both accused, whilst Mr. Lisulo, appeared for the State.

[3] Both accused filed plea explanations in writing in terms of s 115 of the Criminal

Procedure Act, 1977 (Act 51 of 1977), hereafter referred to as the Act. The same

plea explanation was tendered by both the accused and because of the extensive

explanations advanced by both accused; I deem it necessary to quote the statement in

extenso (spelling/grammatical errors corrected):

I [the] undersigned

JAMEN PETRUS GAOSEB

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Do hereby state as follows:

1. I am the First Accused before this Honouable [Court] and stand charged on a

count of murder (referred to as Count 1 on the indictment) and housebreaking

with intent to rob and robbery with aggravating circumstances (referred to as

Count 2 on the indictment).

2. I understand the charges against me and plead not guilty to both counts. The

basis of my defence are as follows:

a) On 15 October 2005, [at] around 22h00 and at or near Otavi in the district of

Grootfontein, [I] went to the house of Ruth Elfriede Will, an elderly woman

whose age I dont know, but estimate same to be in the region of 81 (the

deceased herein). I was accompanied by Mr. Johansel Gamaseb, who is the

second accused in this matter [and] who was also employed by the deceased at

some point before he resigned. I resigned on a Friday, around 15 October 2005

while the second accused resigned few months earlier. The farm in issue is farm

Gaidaus.

b) On that day of 15 October 2005, which is the day I resigned from the employ of

the deceased, I decided to break into the house of the deceased at night while she

is asleep and steal money; although I did not know whether there was money kept

in the house. I did not carry out the plan on that day.

c) The next day, which was [the] Saturday of 16 October 2005 and [at] around

22h00, myself and the second accused went to the house of the deceased, broke

open a small window and entered the house. She was still asleep. We have not

switched any lights on.

d) We continued looking for the money in her cupboards and drawers. We could

not find anything. We then decided to take items such as clothes and linen, which

I cannot describe with precision as it was dark, but I can confirm that they meet

the description of the items contained in Annexure A to the [indictment].

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When we were about to leave the house, she must have heard us and woke up.

We feared that she might call the police or scream for help. We decided to tie

her legs to her arms and also blindfolded her. There was a scuffle but we did not

beat or, put otherwise, assault her. We ensured that she could breath and left her

nostrils exposed to air. We only blindfolded her and tightened her mouth. We

also did not know that by doing so, she might die.

e) We then left the house and were arrested the next day.

f) In summary, I admit having caused the death of the deceased but my conduct was

not intentional. I also admit having broken into the house of the deceased but

state that, at the time we stole the said items, we did not use any force nor

demanded anything from the deceased. By the time she woke up, we had already

completed the said theft.

FORMAL ADMISSIONS (S 220)

I FURTHER ADMIT THE FOLLOWING:

a) That the deceased was [an] 81 years old female who farmed at Gaidaus farm in

the district of Grootfontein.

b) That on or about 15 October 2005 I entered into the house of the deceased (Ruth

Elfriede Will).

c) That I tied her legs and arms and blindfolded her eyes and [covered] (folded)

her mouth with a piece of cloth.

d) That I took some clothes from her house although I cannot describe such items

with precision.

e) That she (Ruth Elfriede Will) is deceased although I have no knowledge of the

cause of her death.

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Dated at Oshakati on this 14th day of February 2011.02.15

(Emphasis provided)

Accused no. 1 was unable to sign the statement and instead, appended his thumb print

thereto, at the end of the statement.

[4] The plea explanation filed on behalf of accused no. 2, as regards para 1 and 2(a),

is identical to that of the first accused, except for the change of names and where

reference is made to the co-accused. The following appears at para 2 (b) where

reference is made to the statement of accused no. 1:

His statement was read to me and I understand the contents thereof. I also confirm

the truthfulness of the contents as it relates to me and the events that transpired on

Saturday, 16 October 2005 [at] around 22h00 at the house of the deceased. I

therefore pray that the contents of his statement under paragraphs (a) to (f) be read

as if specifically incorporated in my statementmutatis mutandis.

The formal admissions made in terms of s 220 are also identical to that of accused

no.1. Second accused equally appended his thumbprint to the statement.

[5] After submitting the statements to Court, the Court confirmed with both accused

whether the contents of the statements were correct; whether it was in accordance

with their instructions to their counsel; and whether it was their thumbprints appearing

on the statements, respectively. Both accused confirmed that to be the case.

[6] The following documents were then handed into evidence by agreement: The

States Pre-Trial Memorandum and the Reply thereto; minutes of the Pre-Trial

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Review Conference dated 25 October 2010 between the State and defence counsel;

three photo plans relating to the crime scene, the autopsy performed on the deceased,

and the route between the deceaseds farmstead and Saamstaan township, an informal

settlement in Otavi where the accused were eventually arrested. A sketch plan and

accompanying key of the layout of the deceaseds house; and, the original record of

proceedings conducted in the district court, Otavi, including the section 119

proceedings. A post-mortem examination was conducted on 18 October 2005 by Dr.

Shangula at the State mortuary, Windhoek and her findings were documented in a

report, handed into evidence under cover of an affidavit deposed to in terms of s 212

(4) of the Act. I pause here to observe that Dr. Shangula in the mean time has passed

away. The content of the documents referred to above, will be discussed hereinafter,

where relevant.

[7] In view of the comprehensive plea explanations given by the accused persons

and accompanying admissions; as well as the documents admitted into evidence by

agreement, the State called only two witnesses viz. Mr. Wolfgang Falk, the first

person on the scene, and the deceaseds son, Mr. Klaus Will. For the defence, only

accused no. 1 gave evidence.

[8] Mr. Falk, a neighbour to the deceased, testified that on the morning of 16

October 2005 he received a phone call from another neighbour in connection with a

report made by one of the workers on the deceaseds farm. He decided to go there

and upon his arrival, he observed a broken windowpane, giving access to one of the

rooms (used as a store room), inside the house. As there was no response to his

calling, he climbed through the broken window and in the main bedroom, which

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obviously had been ransacked, stumbled upon the deceased lying on the bed with her

hands and legs tied together. She had something like a stocking (it turned out to be a

night dress) pulled tightly over her head, completely covering the head. He felt for a

pulse on the neck but could find none. The body was cold and rigor mortis had set in.

He tried to contact the police over the fixed phone in the deceaseds house but was

unable to do so, as the lines were cut. The police did eventually arrive later that same

morning.

[9] Mr. Will said that he returned his mother, who was 81 years of age, to the farm

the previous weekend and whilst there, he personally handed over to first accused, his

salary. The deceased had been living alone on the farm for about ten years. He said

he returned to Windhoek on the Sunday (of the previous weekend), leaving his mother

behind on the farm with accused no.1 and another worker, in the employ of someone

renting grazing from the deceased. After being informed of his mothers death he

returned to the farm and found the bedroom in a state of disarray with clothes lying

around, the wardrobe doors open and the safe forcefully opened. He realised that his

mothers pistol, linen and some groceries were removed; of which some were

subsequently recovered; which he later on identified at the police station. Mr. Will

was not able to give an estimated value of the stolen goods. He elaborated on his

mothers health at the time and concluded that she was in ill health, suffering from

high blood pressure and under medication for a heart condition. She had a pacemaker

implanted some three years prior to her death and regularly had to go to Windhoek for

a medical check-up. The post-mortem report confirmed that the deceased was having

a pacemaker of the heart.

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[10] The State hereafter closed its case and counsel for the defence then brought an

application in terms of s 174 of the Act. The application was summarily dismissed

and the accused put on their defence. First accused elected to testify whilst the second

accused elected to remain silent and had no witnesses to call. I have earlier indicated

that reasons for the Court ruling would be given in the judgment; however, in the light

of the comprehensive plea explanation and accompanying admissions made by the

accused persons, read with the post-mortem report admitted into evidence, I do not

deem it necessary to deal with the application in any detail. Suffice it to say, that the

Court was satisfied that a prima facie case had been made out against both the

accused, on which they had a case to answer. It must be borne in mind that each case

must be considered on its own merits and circumstances and that the court

considering the application, has a discretion to acquit the accused at the close of the

State case (S v Nakale and Others, 2006 (2) NR 455 (HC)).

[11] The evidence of accused no. 1 amounts to the following: When paid his

fortnightly salary by the deceased on Friday, 15 October 2005, accused no. 1 was

dissatisfied because the deceased deducted a loan or an advance on his salary, from

his monthly pay. He left the same day for Otavi, where he also has a home. There he

met with his co-accused the next day (16th) and together they decided to return to the

deceaseds farm where they would steal money from her the money she earlier

refused to give him. They arrived on the farm at around 22h00 and gained access by

breaking the windowpane of the store room from where they proceeded to the

deceaseds bedroom, where they found her asleep. By then he had already cut the

telephone lines in the lounge with a knife he had on him. They switched on the bed-

lamp and started looking for money, but as there was none to be found (except for the

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N$4-80 in the safe), they started collecting things from the room like blankets; linen;

curtains and other stuff he was unable to recall. They broke open a safe in the

bedroom with a screwdriver (one they brought along), from which they took a small

pistol and the cash. He said that through all this the deceased did not wake up. This

only happened as they were about to leave the room, and as she started screaming,

they used a petty-coat (night dress) which was pulled over her face (and tied on the

back of the head). He said he made sure that the holes in this garment were

positioned (over the nose) in such a way that the deceased could still breath. It was

however pulled tightly over her mouth, preventing her from screaming. Although

there was a scuffle between them, as the deceased had put up resistance, he denied

that she was harmed in any way. When asked to explain the bruises visible on the

deceaseds body as depicted in Exhibit F, photo 8, he said that these could have

been caused at the time when they tried to hold her hands down, when covering her

face. Her hands and feet were thereafter tied together with a string of wool. She

stopped screaming after she was muzzled, and although she was moving her arms

attempting to free herself, she was unsuccessful. Regarding the position of the

deceased at the time when they left the room, the accused said that she was lying in

the same position on the bed, as depicted in photos 4 6 of Exhibit F. In other

words, she was found dead in the same position than what they had left her in i.e.

lying on her left side with her head covered, and her hands and legs tied together on

the front.

They loaded everything onto two bicycles they had come with and returned to Otavi.

They were arrested in Otavi the following day after the police tracked them down.

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[12] In cross-examination it became evident that the accused persons acted with

common purpose from the planning stages and throughout the commission of the

crime. This aspect of accused no. 1s evidence supports each accuseds plea

explanation and was also not challenged by second accused during the trial.

Accordingly, I find that the accused persons, when deciding to go to the farm of the

deceased with the intention of committing a crime, and all subsequent acts taken by

them in achieving their aim, have throughout, acted with common purpose.

[13] The accused only admitted having stolen from the deceased after tying her up,

but disputed having had the intention to kill; either in the form ofdolus directus or

indirectus. It was argued on their behalf that, because the cause of death could not be

medically determined, that therefore, there was no causal link between their conduct

and the deceaseds death. This aspect will be discussed in more detail later.

[14] Both accused, have offered pleas of guilty on the offence of culpable homicide,

a competent verdict on a charge of murder. By inference, this would imply that they

have acknowledged that death ensued as a result of their negligence; despite the cause

of death not being determined during an autopsy performed by Dr. Shangula on the

deceaseds body. Although the actual cause of death is unknown and not within the

accused persons knowledge, they were entitled to make this admission because they

had legal representation. Their legal representative, undoubtedly, would have advised

them of the consequences when tendering a plea of guilty on a lesser offence and

making incriminating admissions about facts outside their knowledge; thereby

accepting and admitting that there is a connection between their actions and the

ensuing death of their victim. In principle there can be no objection against such

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practice, as accused persons and legal representatives often admit facts not within

their personal knowledge: because, for example, they know that the State could prove

it without difficulty i.e. laboratory results of samples taken.

[15] Where the State in the present case is not in the position to prove the actual

cause of death, could the accused (through counsel), lawfully, still have made the

admissions (pertaining to causation) as they did? I believe they could as long as it is

supported by evidence based on proved facts. I shall therefore approach the

admissions made by the accused persons on that point, with full regard to all the

evidence adduced.

[16] In view of first accuseds evidence, that during the whole incident no physical

harm was done to the deceased, except for holding her on her hands whilst tying her

up, it would, at this juncture, require proper scrutiny of the post-mortem report, in

order to see what injuries were inflicted (if any), and the nature thereof. Dependent

on that finding, the Court would be entitled to draw inferences, but only after

satisfying the two cardinal rules of logic referred to in R v Blom1, namely:

(1) The inferences sought to be drawn must be consistent with all the proved facts.

If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference

from them save the one to be drawn. If they do not exclude other reasonable

inferences, then there must be doubt whether the inferences sought to be drawn

is correct.

1 1939 AD 188.

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[17] From the Medico-Legal Post-Mortem Examination report compiled on 18

October 2005, by the late Dr. Shangula, on the body of Ruth Elfriede Will, the

following appears:

The chief post-mortem findings are:-

Bruises on the chin and jaw margin;

Bruises of both orbitals;

Fractured ribs left side of the thoracic cage;

Body with putrefaction2;

Atherosclerotic changes of the coronary arteries and aortha;

Kidneys with glandular surfaces;

A pace-maker of the heart;

Flaccid body.

Cause of death:-

Undetermined at autopsy;

Decomposed body.

[18] Other significant observations made on the body are the following:

External appearances:- both eye orbitals swollen and red, like a hematoma; three

bruises on and above the lower jaw, on both sides of the face; swollen lips; marks

(depressions) on the right wrist; hypostasis3 on the left lateral side; the skin slips off

2 Decay with a foul smell.3 Settling of fluid in an organ or other part of the body as a result of poor circulation.

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easily on touch; bruises like bleeding on the frontal and left parietal and temporal

area; there were no bruise marks on the skin of the neck.

Internal appearances:- the left thyroid gland showed bruise-like marks; rib fractures

on left side, T4 T8 fractured; haemorrhage on the posterior surface of the

oesophagus4; lungs and heart with putrefaction; left coronary only sixty percent

patent; extensive plaques embedded in the ascendance and peritoneal aspect of the

aorta; and empty stomach.

[19] Despite, according to accused no.1, of their intentions not to cause any physical

harm to the deceased, he conceded that the bruises visible on the deceaseds face as

depicted in the photo plan, could have been inflicted whilst she was resisting their

effort to pull the garment over her head and fastening it tightly over her mouth,

preventing her from screaming. He claims that, besides tying the deceaseds hands

and feet together, no further harm was done to her. This explanation, however, is

inconsistent with findings that both eye orbitals were swollen with signs of a

hematoma; bruises like bleeding on the head; bruise marks on the left thyroid gland;

and particularly, the fracturing of the ribs. The presence of these injuries is significant

of an assault perpetrated on the deceased; exceeding the degree of force allegedly

applied by the accused persons when tying up the deceased. Judging from the

fractured ribs, it would appear that, at least, moderate force was applied to the upper

body; and as for the head injuries and bruising of the thyroid gland, this equally points

at blunt trauma directed at the head and throat, respectively. The exactquantum of

that force, however, is unknown.

4 Gullet.

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[20] It seems highly unlikely that the totality of these injuries would have been

inflicted during the stage when the deceased was held on her hands whilst being

blindfolded even in circumstances where she had put up resistance. Hence, it seems

to me, based on the nature of the injuries observed on the deceaseds body during a

post-mortem examination, inevitable to come to the conclusion that an assault, during

which (at least) moderate force was applied to different aspects of the deceaseds

body, was committed by the two accused persons. When applying the two cardinal

rules of logic referred to in the Blom case(supra), this is the only reasonable inference

to draw from the proved facts. I accordingly reject the evidence of accused no. 1 as

far as it is in conflict with this finding and accordingly find that the accused, acting

with common purpose, unlawfully assaulted the deceased, inflicting the injuries as

noted in the post-mortem report.

[21] I now turn to consider whether there is a causal link (nexus) between the assault

and subsequent death of the deceased. This is generally referred to as causation. In

materially defined crimes like murder and culpable homicide, the State must prove

beyond reasonable doubt that there is a causal link between the accuseds act and the

prohibited situation i.e. his victims death. The courts have laid down certain broad

principles regarding the determination of a causal link, and confirmed that two

requirements must be met: (i) whether there was a factual causation; and (ii) whether

there was a legal causation (S v Daniels en n Ander)5.

[22] In order to establish whether an accused persons act is a factual cause of the

deceaseds death in a specific case, all the relevant facts and circumstances of that

case must be investigated, and the court must decide, with the aid of its own5 1983 (3) SA 275 (A).

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knowledge and experience, whether the deceaseds death flowed from the accuseds

conduct. Once concluded that there is indeed a factual cause of the situation (death),

it is useful to apply a formula known as condition sine qua non, to check whether the

conclusion reached, is correct. This formula requires answering the question: what

would have happened if the accused persons conduct had not taken place; would the

result (death) nevertheless ensue? It must be remembered that this is a checking

formula or theory, and not a test. InSnyman: Criminal Law6the learned author says:

One first decides on the strength of all the facts whether the conduct is the cause of

Ys death, and only after concluding that it is, does one declare that the conduct was

a conditio sine qua non of death. One cannot determine whether the conduct is a

conditio sine qua non of the result before deciding that there is a causal connection.

[23] It would obviously require thorough investigation to reveal all the facts

relevant, and through ones (own) knowledge and experience, this would lead one to

conclude that one situation flows from another.

[24] When determining, in the present case, whether the actions of the accused

persons have caused the death of the deceased, regard must be had to the absence of

medical evidence regarding the cause of death which, as would appear from the post-

mortem report, was not determinable because of decomposition of the body that had

set in, prior to the autopsy being performed. Because of this phenomenon (the exact

cause of death not being determined), Mr. Shakumu argued that, in the circumstances,

a causal connection could not be made between the actions of the accused persons and

6 Fourth Edition at 77.

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the deceaseds death; therefore, the Court cannot convict on either murder or culpable

homicide.

[25] I do not agree. Had that been the case it would create the illogical and

intolerable situation that, where someone kills another and disposes of the body in

such a manner that it afterwards becomes impossible to determine the exact cause of

death, then he/she cannot be convicted of murder. Murder is the unlawful and

intentional causing of the death of another human being irrespective of the manner

employed, and what the actual cause of death was. A conviction on a charge of

murder will be secured if the State proves: (a) causing the death (b) of another person

(c) unlawfully and (d) intentionally.7 In the absence of evidence as to the actual cause

of death, the court would be required to consider the circumstantial evidence and

proved facts; from which it may draw inferences in its endeavour of ascertaining, on

the facts, whether the deceaseds death was a consequence of the accused persons

actions or not.

[26] The Court has already concluded hereinbefore that an assault was perpetrated

on the deceased; and from the wounds it was clear that, besides from covering the

deceaseds head and tying her hands and feet, force was applied to the upper body.

What the exact nature and extent of the force was, is unknown; however, it was

enough to fracture several ribs and cause internal bruising of the throat (thyroid

gland), haemorrhage on the posterior surface of the gullet, and several bruises on the

face and head in the temporal area. The tying together of the hands and feet

prevented the deceased from moving; something confirmed by accused no. 1, who

said that the deceased, when found dead the following day, was lying in the exact7Snyman (supra) at 421

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same position than when they had left the previous night. The deceaseds head was

covered with a nightdress, pulled over her head and tightly fastened over the mouth,

preventing her from screaming any further. Accused no. 1 testified that it was tightly

tied over the mouth, but not over the nose, allowing the deceased to breath freely.

Exactly how this was achieved bearing in mind that it was tight over the mouth

accused was unable to explain. He also claimed to have taken precautionary measures

by positioning the nightdress over the deceaseds face, in such a way that airflow was

not impaired as she could breathe through holes in the night dress. The garment,

unfortunately, is not before us so that the Court could make its own observations on it.

[27] I pause here briefly, to consider the evidence of accused no. 1 pertaining to the

covering of the deceaseds head and that she, according to him, could still freely

breathe thereafter. The evidence of Mr. Falk was that the garment wasvery tight and

covered the whole head, which evidence was not challenged. That the whole face was

covered is evident from photos 4 6 of Exhibit F. Photo 6 depicts a front view of

the deceased when found with the garment covering her face; from which it is clear

that there are no holes visible in the garment. It might be that accused no. 1 referred

to the fabric itself which is unlikely, for he specifically positionedthe holes in such

a way that the deceased could breathe. For reasons giveninfra, I do not find accused

no. 1 to have been honest in all aspects of his testimony; and, judging from the

differences between what he initially said, and what he later on testified, it seems

inescapable to conclude that his testimony was rather self-serving and not in all

material respects, the truth.

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[28] Although one would not be able to say on the facts before the Court that the

garment was so tightly tied around the head that it completely prevented the deceased

from breathing; it is, however, clear that it must have caused some degree of

obstruction in the deceaseds breathing. When considered together with the condition

of poor health the deceased was in at the time, this could have contributed to her

eventual death. There is a material difference between the observations made on the

deceased by each accused, during the time when they were still on the scene.

According to accused no. 1 she was still alive and trying to free herself; whereas

second accused, during the s 119 proceedings, told the court that the deceased died

in our presence and we left her there. When testifying, first accused did not

challenge the correctness of those proceedings and until shown otherwise on a balance

of probabilities, an admission is prima facie proof (against its maker). Thus, on

accused no. 2s version the deceased died soon after she was tied up with her face

covered. That would be consistent with the (same) lying position the deceased was

found in the next morning. The proximity between the assault and ensuing death is a

material factor when deciding factual causation; and from what second accused said,

death ensued soon after they had put the deceased out of action.

[29] I have already alluded to the deceaseds advanced age and that she was in ill

health. Her son described her as a very sickly person, suffering from her heart and

high blood pressure; which is confirmed by the fact that she had a heart pace-maker

implanted about three years before her death. In view of her poor health, what are the

chances that the deceased died of natural causes? That, in my view, would be mere

speculation, as there is no evidence before the Court to support such allegation and

the Court cannot base its decisions and findings on conjecture. The fact that the

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deceased suffered from a heart ailment does not justify a conclusion that therefore,

she must have died from natural causes.

[30] When the Court considers the extent of the assault perpetrated on the deceased;

her advanced age and her being of poor health; that she was securely fastened to such

an extent that she could not move any of her limbs; that she had fractured ribs and

was left behind (on first accuseds version) helpless with a garment tightly pulled over

her head and most probably impairing her breathing; the only reasonable conclusion

to reach in these circumstances is: that where there is insufficient proof to conclude

that a single factor had independently caused the deceaseds death i.e. suffocation, the

influence and effect of each of these factors jointly contributed to, and resulted in

death.

[31] I accordingly find that the conduct of the accused, who throughout acted with

common purpose, have caused the deceaseds death. Thus, when applying the

formula to this finding, it can be said that their conduct was a condition sine qua non

of the death of the deceased.

[32] Once the court determines that there is factual causation that is not the end, as

the court in its investigation into the existence of a causal link, must still investigate

legal causation; the application of some criterion which would limit the wide ambit of

factual causation and the operation of the conditio sine qua non theory. Legal

causation is described by Snyman (supra) at 79 as follows:

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it must be clear that the act is not merely a factual, but also a legal cause of the

situation. This means that the act must qualify as a cause of the forbidden result not

only to the criteria of natural science or ones ordinary experience, but also to the

criteria applied by the law. The legal criteria are narrower than those applied to

determine factual causation; they are based upon normative value judgments or

policy considerations, on questions such as whether it is reasonable or just to regard

the act as a cause of the forbidden situation. Only an act which is a factual cause of

the situation can qualify as a legal cause thereof.

From the courts point of view it is accepted that a finding of causation rests upon

both factual and legal causation.8 It had been said that the overriding consideration in

the determination of legal causation, where an act was found to be a factual cause of

the prohibited situation (i.e. death), is the demands of fairness and justness. When

ascertaining what would be a fair and just conclusion, the court may have regard to

different theories of legal causation, of which the following are the most important

ones: the individualisation theory9; the theory of adequate causation10; and the

critetion ofnovus actus interveniens.11

[33] The Court has already found that there was no single/direct/substantive act

which resulted in death and which therefore could be singled out as the legal cause. It

found that there was adequate relationship between the accused persons conduct and

death of the deceased. The coincidences of different factors were such that death

could be expected; conduct for which the accused should be held accountable.

8S v Daniels 1983 (3) SA 275 (A) at 325A, 331C-D; S v Mokgethi 1990 (1) SA 32 (A) 39-40.9 Where only one single act or condition is singled out as the legal cause.10

Snyman (supra) at 81 where an act is a legal cause of a situation if, according to human experience,in the normal course of events, the act has the tendency to bring about that type of situation.11 A new intervening event.

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Furthermore, there is no evidence pointing towards a new intervening event (novus

actus interveniens).

[34] Therefore, I am satisfied that the conduct of the accused persons on the night in

question, is both the factual and legal cause of the death of the deceased in this case,

and that there is a causal link between their conduct and the deceaseds death. I

accordingly so find.

[35] Having found that the accused have caused the death of another human being it

remains to be considered whether their conduct was unlawful and intentional. There

can be no doubt that their actions were unlawful. To constitute murder it had to be

proved that the accused acted with intent either in the form ofdolus directus or

dolus eventualis or, whether they lacked intent and caused the deceaseds death

negligently; an instance in which they would only be guilty of culpable homicide.

[36] Mr.Lisulo, for the State, argued that on the facts, the Court should find that the

accused acted with direct intent (dolus directus) when assaulting the deceased;

alternatively, that they foresaw the consequences of their conduct and stood reckless

thereto (dolus eventualis). Mr.Shakumu, on the other hand, argued that the accused

should only be convicted of assault. His submission was based on the assumption that

the State failed to establish a causal link between their conduct and the death of the

deceased. With causation duly established, this argument is without merit.

[37] It was submitted on behalf of the accused persons that they did not act with

direct intent; because, if they had the intention of murdering the deceased there and

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then, they could easily have strangled or killed her in another manner but instead,

they decided to tie her up. There seems to be merit in this argument and there is

nothing evident from the manner in which they committed the assault on the deceased

that they had acted with direct intent to kill.

[38] Did the accused, however, when they so acted, and without that being their

main aim, subjectively foresee the possibility that, from their conduct towards the

deceased in order to achieve stealing from her, death may ensue; and reconciled

themselves with this possibility? Here the test is purely subjective and the Court must

determine what the states of mind of the accused were at the time when they

perpetrated the assault on the deceased.

[39] In this regard Ackermann, AJA inS v Van Wyk12stated:

The State is, from the nature of things, seldom able to offer direct evidence of the

accuseds state of mind at the time of assaulting the deceased and must therefore rely

on inferences to be drawn from the circumstances of the assault (including its nature

and duration), the nature of any weapons used and the nature, position and extent of

the injuries inflicted. These must in turn be weighed up against any other

circumstances (such as the consumption of drugs or alcohol) which may indicate that

the accused did not foresee the consequences of his actions. This does not involve

any piecemeal assessment or process of reasoning. All the relevant facts which bear

on the accuseds state of mind and intention must be cumulatively assessed and a

conclusion reached as to whether an inference beyond reasonable doubt can be

drawn from these facts that the accused actually considered it a reasonable

12 1992 (1) SACR 147 (Nm) at 161d-g

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possibility that the deceased could die from the assault but, reckless as to such fatal

possibility, embarked on or persisted with the assault. (Emphasis provided)

[40] From accused no. 1s testimony it is clear that he indeed foresaw that death may

ensue when he pulled the garment over the deceaseds head; and therefore positioned

the holes in the garment in such a way over the nose, to ensure that the deceased

could still breathe. However, as stated earlier herein, there were no visible holes in

the garment and therefore, the alleged precautionary measures taken, are simply not

true; it rather has the appearance of an afterthought. The manner in which the

garment was found tightly pulled over the head also contradicts accuseds version that

it was loosely across the nose. It seems highly unlikely that the garment as he

claimed was taut across the mouth but not across the nose, immediately above. It is

neither evident from the photos; nor has the accused satisfactorily explained

otherwise.

[41] There is a material difference between the initial reasons advanced by the

accused persons as to why the deceased was tied up with her head covered, and the

testimony of accused no. 1. To the magistrate both materially gave the same

explanation i.e. that they tied the deceased in order to steal from her. This

explanation is also consistent with what is stated in their reply to the States Plea-trial

Memorandum namely, that the deceased was first tied up before they took the goods.

Accused no. 1 gave conflicting versions when asked to explain why the deceaseds

head was covered, by first saying that it was so that she could notrecognise him;

however, afterwards he said that the deceased would have been able to recognise him

(when she woke up) because the bed-lamp was on. On inquiring as to the reason for

covering her face only afterhe was probably identified by the deceased, he said that

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he did not want her to see him again, when taking the stolen items. There is simply

no logic in this explanation, which is also contradictory to the plea explanation given

at the beginning of the trial when they said that they were unable to describe the items

they tookas it was dark. It would have made sense had they first put the deceased out

of action and covered her face in darkness, preventing her from identifying them,

before starting their search for money. That, however, would imply that the

deceaseds head was covered in circumstances where it was notpossible to make the

observations on the fabric pulled over the deceaseds head; neither to position it over

the nose as described by first accused.

[42] It was furthermore accused no. 1s evidence that they switched on the light

when they entered the bedroom, whereafter they searched for money; broke open the

safe and took the items without waking the deceased. It was only upon leaving the

room that she woke up and they then decided to tie her up. I find this explanation

highly improbable because, judging from the state the room was found in the next

morning, with drawers and items lying around on the floor after being rummaged, as

depicted on the photos, I am not convinced that all this took place in absolute silence

and without waking the deceased especially where they had to forcefully open the

safe, standing in the same room. In the circumstances, it would rather appear that, in

order to achieve this, they first had to tie up the deceased and cover her head as

admitted when giving their pleas in terms of s 119 before rummaging the room.

[43] When assessing the contradictions and improbabilities in the evidence of

accused no. 1, as regards their conduct once inside the house and the sequence of

events which took place thereafter, the inescapable conclusion that one reaches is, that

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first accused did not speak the truth and deliberately tried to mislead the Court by

fabricating evidence, whereby he attempted to prevent the Court from establishing the

truth. This Court must therefore be cautious in its evaluation of his evidence and little

weight (if any) should be given thereto where uncorroborated and in conflict with

reasonable inferences this Court is capable of drawing from the proved facts.

[44] Besides tying up the deceased and covering her face, she was also assaulted. I

have already dealt with the extent of the injuries inflicted during the assault supra and

there is no need to repeat what was stated earlier herein. From the injuries sustained,

the broken ribs appear to have been the most serious injury; and a factor to be taken

into account when adjudging whether the possibility of death ensuing, was foreseen

by the accused persons. Another crucial factor is the age and accompanying

vulnerability of the deceased. Both the accused persons had worked for the deceased

and therefore would have been familiar with her circumstances. Notwithstanding, it

cannot be said that therefore, they also knew about her medical condition. However,

it is common knowledge that with aging, the human body becomes weaker and there

is no reason to believe that a different situation prevailed in the present case. The

deceased was eighty-one years of age and moreover sickly. Whereas both the accused

had been in her employment, either at the time of the incident, or shortly before, they

must have made their own observations on the strengths of the deceased and her

vulnerability. There can be little doubt that the deceased was at a vulnerable stage of

her life and in all probability, prone to readily succumb, in circumstances which may

not necessarily pose a threat to a younger and healthy person. This is a factor the

accused persons, subjectively, must have appreciated.

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[45] Against this backdrop, the deceased was tied up with a garment tightly tied

around her head and left behind alone, incapable of freeing herself from the

uncomfortable position she was in. By leaving the deceased injured and helpless (on

first accuseds version), this definitely posed a risk to her life. By tying her up and

cutting the telephone lines, the accused effectively preventing the deceased from

obtaining assistance after the assault if she at all was capable thereof and thus

increased the risk of death. InS v Chimbamba and Another13 at 808H-809A the

following was said:

Applying general principles, there can be no doubt at all that the crime of murder is

committed if a person in need of assistance is intentionally prevented from obtaining

it and in the result dies, or dies earlier than he or she would otherwise have done.

This, however, is a quite separate and distinct basis of liability from that relied upon

in the indictment and no amendment of the indictment was applied for at any stage in

the proceedings. It is unthinkable that an accused person should be found guilty of

murder on a basis which has never been raised. (Emphasis provided)

In casu, it was not alleged by the State in the indictment that the murder, for which

the accused persons stand charged, is (also) based on the fact that the accused persons

prevented the deceased from obtaining assistance. The reason, I believe, lies therein

that the time of death is unknown and that second accused in his s 119 plea

explanation said that the deceased died whilst they were still inside the room. In this

regard the present facts although otherwise very similar to the Chimbamba case,

differ materially and do not assist the State.

13 1977 (4) SA (R.AD)

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[46] In view of what is stated above, can it be said that both accused who have

acted in concert throughout foresaw that death may reasonably ensue? Putting it

differently, did the accused persons subjectively appreciate that there is a reasonable

possibility that death will ensue? There can be little doubt that the accused manifested

a reckless indifference as to the well-being of the deceased. When cumulatively

assessing all relevant facts, which bear on the accused persons states of mind and

their intention when entering the deceaseds house and the subsequent assault

perpetrated on her, the question must be answered in the affirmative. They indeed

foresaw the reasonable possibility of death ensuing and associated themselves with

that possibility. Accordingly, both accused stand to be convicted of murder with

intent, in the form ofdolus eventualis.

[47] I turn to consider the charge in count 2, namely, housebreaking with intent to

rob and robbery. It is common cause that the accused persons unlawfully gained

access into the house by breaking a window with intent to commit a crime. They

knew that the deceased was at home and must have foreseen that there was a

reasonable possibility of her putting up resistance when becoming aware of their

presence. This is something they must have appreciated prior to their departure to the

farm. That they anticipated resistance seems to be fortified by their decision to cut the

telephone lines even before entering the bedroom. The anticipated resistance may

also explain why they carried a knife with them. Despite accused no. 1s testimony

that they only intended stealing, the Court is satisfied that they went to the deceaseds

farm with the foresight that they may reasonably encounter resistance, but associated

themselves with such possibility and proceeded entering the house on that basis.

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That, on the basis ofdolus eventualis, constitutes the crime of housebreaking with

intent to rob.

[48] It is common cause that the deceased was forced into submission and her

property stolen. This Court, for reasons set out hereinbefore, already found first

accuseds evidence that they had only tied up the complainant aftertaking the stolen

items, as highly improbable and as such, unreliable.

[49] The definition of the crime of robbery as defined bySnyman (supra) at 506 is:

(T)heft of property by unlawfully and intentionally using

(a) violence to take the property from somebody else or

(b) threats of violence to induce the possessor of the property to submit to

the taking of the property.

[50] I shall briefly discuss the arguments advanced by Mr.Shakumu as to why, in his

view, robbery was not committed.

Firstly, that although bruises are visible on the deceaseds face, it cannot, in the

absence of expert evidence be found that these came as a result by the application of

force by the accused persons. With this argument sight is clearly lost of first

accuseds explanation of the facial injuries, namely, that they could have been caused

when they held the deceased on her hands and tried to cover her face. The required

violence may be slight and the mere holding of her hands, in these circumstances, was

sufficient to constitute an assault on a charge of robbery; more so where serious

injuries, such as broken ribs, were inflicted.

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Secondly, that the crime of robbery required a form of resistance on the part of the

victim against the taking of the property, and in casu, there is no evidence that the

accused made demands that the deceased should release the property and that she

resisted. In other words, the violence did not precede the taking. This argument is

based on the evidence of first accused. With respect, I find this contention stupefying.

There was no need for the accused persons to make any demands as they eliminated

any possible intervention on the deceaseds part by tying her up, even before she

could do anything; and, as already stated, she hadput up resistance! The accused

tried to create the impression and that is what was argued that the crime of theft

was already completed when they turned back to tie up the deceased. At that stage

they were carrying the loot and were still inside the same room from where they took

it. In order to tie her up, they certainly had to put it down and only carried it outside

aftertying up the deceased. Furthermore, it seems highly unlikely that the groceries

they admitted having taken, was part of the loot found in the bedroom. Thus, some

items must have been taken from elsewhere in the house on their way out something

accused no. 1 was not willing to admit and unable to explain. Why would that not

constitute robbery, one may ask?

[51] It should be noted that the general rule that the violence must precede the

taking, must be qualified, and in this regard the learned authorSnyman14 (supra)

states:

(R)obbery may in certain circumstances be committed even though the violence

follows the completion of the theft. This will be the case if, having regard to the time

and place of Xs act, there is such a close link between the theft and the violence that

14 p 508.

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they may be regarded as connecting components of one and the same action. Thus in

Yolelo15X was found in possession of Ys property before he could leave Ys house.

Xs ensuing assault on Y was regarded as so closely connected with the process of

taking the property that X was convicted of robbery.

[52] I find counsels approach artificial and without merit. The accused persons

entered the house with the intention of robbing the deceased and thereafter used

violence to overcome any resistance from her side. Even on the version of the

accused which the Court found to be improbable the taking of the goods and the

ensuing assault are so closely connected, that it satisfies the definition of robbery.

The Court is accordingly satisfied that the offence of housebreaking with intent to rob

and robbery was proved beyond reasonable doubt.

[53] Second accused opted to remain silent, which was his Constitutional right;

however, his decision is not without consequence.

In S v Katari,16Maritz, J (as he then was) made the following remarks, which seem

worthwhile restating:

It is trite that an accused cannot be compelled to give evidence against himself (art

12(1)(f) of the Namibian Constitution) and has the right to be presumed innocent

until proven guilty according to law (art 12(1)(d) of the Constitution). The

entrenchment of those rights does not mean that an accused's election to remain

silent in the face of incriminating evidence against him is without consequence in the

overall assessment of the evidence by the court. In Osman and Another v Attorney-

15 1981 (1) SA 1002 (A).16 2006 (1) NR 205 (HC) at 209I-210D

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General, Transvaal1998 (4) SA 1224 (CC) (1998 (2) SACR 493 at 501b-d) Madala

J said the following in this regard (at 1232E-G):

'[22] Our legal system is an adversarial one. Once the prosecution has

produced evidence sufficient to establish a prima facie case, an accused who

fails to produce evidence to rebut that case is at risk. The failure to testify

does not relieve the prosecution of its duty to prove guilt beyond reasonable

doubt. An accused, however, always runs the risk that absent any rebuttal,

the prosecution's case may be sufficient to prove the elements of the offence.

The fact that an accused has to make such an election is not a breach of the

right to silence. If the right to silence were to be so interpreted, it would

destroy the fundamental nature of our adversarial system of criminal

justice.'

And further at 210F-G:

When the State has established a prima facie case against an accused which

remains uncontradicted, the court may, unless the accused's silence is reasonably

explicable on other grounds, in appropriate circumstances conclude that the prima

facie evidence has become conclusive of his or her guilt (see S v Scholtz 1996 (2)

SACR 40 (NC)).

See also: Schwikkard, Van der Merwe: Principles of Evidence, Second Ed. at 30 9(p

510 513.

[54] In casu, second accuseds failure to respond to the self-incriminating

admissions made in the s 119 proceedings; his plea explanation at the start of the trial

and the admissions contained therein; as well as the undisputed evidence of the first

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accused, in my view, sufficiently constitutes prima facie evidence, justifying a

conclusion that there is sufficient evidence to convict him on both charges.

[55] Aggravating circumstances, as defined in s 1 of the Act, in relation to-

(a) any offence, whether under the common law or a statutory provision, of

housebreaking or attempted housebreaking with intent to commit an offence,

means-

(i) the possession of a dangerous weapon ;or

(ii) the commission of an assault or a threat to commit an assault, by the

offender or an accomplice on the occasion when the offence is

committed, whether before or during or after the commission of the

offence;

(b) robbery or attempted robbery, means-

(i) the wielding of a fire-arm or any other dangerous weapon;

(ii) the infliction of grievous bodily harm; or

(iii) a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is

committed, whether before or during or after the commission of the

offence; (Emphasis provided)

From the above quoted definition it is abundantly clear that in respect of count 2, the crime

was committed with aggravating circumstances, as defined in the Act. I accordingly so find.

[56] In the result, the Courts verdict is:

1. Count 1 Murder : Both accused: Guilty

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2. Count 2 Housebreaking with intent to rob and robbery (with

aggravating circumstances): Both accused: Guilty

____________________________

LIEBENBERG, J

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ON BEHALF OF BOTH ACCUSED

Instructed by: Directorate: Lega

ON BEHALF OF THE STATE M

Instructed by: Office of the Prosecutor-General

34

s v jamen p gaoseb and joahasel gamaseb. judgm cc 19 - 2010. liebenberg, j 22 feb 2011

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