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REPUBLIC OF NAMIBIA

Reportable

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: CC 2/2012

In the matter between:

STATE

and

GREGORY KANGANJERA ACCUSED

Neutral citation: S v Kangandjera(CC2-2012) [2016] NAHCMD 190 (30 June 2016)

CORAM:NDAUENDAPO J

Heard:9 - 13and 17 June2014

Delivered:1 July 2016

Flynote:Criminal Law–Charged with Murder-Assault-Defeating and obstructing or attempting to defeat or obstruct the course of justice-Circumstantial evidence-Totality of evidence – Guilty of murder with dolusdirectus – Assault – Attempting to defeat or obstruct the course of justice.

Summary: On the evening of 13 November 2010, the accused and his friends MannetjieIpinge and Neffie were at Mafia bar. The illumination at the bar was good as there were lights inside and street lights outside the bar. State witnesses who were present at the bar testified that, the deceased, who was the accused’s girlfriend was dancing with another man, one IpuleniNatangwe inside the bar when the accused arrived. The accused infuriated by what he saw, grabbed the deceased by her arm and pulled her outside the bar and tripped her. He then assaulted, IpuleniNatangwewho fled the scene. The accused then turned to the deceased, slapping and kickingher on the ribs. Later that evening he was assisted by his nephew Jacob Kanganjera to carry the deceased home from a riverbed where she had been lying. The next day, the deceased was seen bedridden in the accused’s room with a swollen face and blue marks on her arms. Upon confrontation by one of the witnesses as to the state of the deceased person, the accused did not deny that he was responsible for the same. A few days after she was seen bedridden, her body was discovered under a tree with a rope around her neck and another piece of rope wrapped around a branch of a tree.It was also testified that the accused had redirected MannetjieIpinge to search for goats in a different direction. The direction which the accused told MannetjieIpinge not to go, was the direction where the body of the deceased was found. According to the evidence by the doctor, the injuries sustained by the deceased were fractured ribs on both sides and scars on the body which looked like she was dragged on the ground. According to the doctor, these injuries would have made it very painful for the accused to move, let alone climb a tree and tie a rope around it. Furthermore the doctor testified that the rope around the deceased’s neck was horizontal, which indicated that she was strangled. The police officers testified that the robe around the tree was not tied to the tree, but wrapped around a branch. In light of the totality of this evidence, the court rejected the accused version, in that the deceased escaped through their bedroom window, climbed the tree, tied the rope around the tree and hanged herself.

Held, that the State’s case was based on circumstantial evidence.

Held, that where the court has to draw inference from circumstantial evidence, two cardinal principles have to be satisfied firstly, that the inference sought to be drawn must be consistent with all the proven facts. If it is not, then the inference cannot be drawn.

Secondly, that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. It they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.

Held, that evidence must be carefully distinguished from conjecture. There can be no inference unless there are objective facts from which to infer the other facts which are sought to be established.

Held, thathaving regard to the totality of the evidence the only inference to be drawn is that the accused strangled the deceased and then staged a scene as if the she had committed suicide.

Held,that the guilt of the accused was proven beyond a reasonable doubt.

Held, that in the result, the accused is found guilty of murder, assault and attempting to obstruct or defeat the course of justice.

ORDER

The accused is found guilty of murder with dolusdirectus, assault and attempting to defeat or obstruct the course of justice.

JUDGMENT

NDAUENDAPO, J:

[1]The accused was arraigned in this Court and charged with the following counts: (a) murder, (b) assault and (c) defeating or obstructing or attempting to defeat or obstruct the course of justice.

[2]The allegations on the murder count is that the accused unlawfully and intentionally killed his girlfriend. On the assault charge the State alleges that he unlawfully and intentionally assaulted IpuleniNatangwe by slapping him. The allegations on defeating or obstructing or attempting to defeat or obstruct the course of justice are ‘that during the period 13 – 18 November 2010 and at or near Groot Aub in the district of Rehoboth the accused did unlawfully and with intent to defeat or obstruct the course of justice:

  1. Tie a rope around the neck of the deceased and tree branch and thereby staged a suicide scene; and/or
  2. Report to the police and/or other people that the deceased committed suicide;

Whereas these acts were perpetrated whilst the accused knew or foresaw the possibility that:

  1. His conduct may frustrate or interfere with police investigations into the disappearance and/or death of the deceased; and/or
  2. His conduct may conceal the death and/or may destroy the physical evidence that he assaulted the deceased and strangled her to death; and/or
  3. His conduct may protect him from being prosecuted for a crime in connection with the assault, disappearance and/or death of the deceased.’

The accused pleaded not guilty to all counts. He explained that the basis of his defence will become apparent during the trial. The State was represented by Mr. Khumalo andthe accused by Mr.Kaumbi.

THE STATE’S CASE

[3]Anna Maria Jantjies testified that on 13 November 2010 she was at Mafia bar. Whilst there, she saw the deceased dancing with a male person inside the bar and then she saw the accused person coming inside the bar, grabbed the deceased on the arm and took her outside. Whilst outside, she saw the accused tripping the deceased from behind and she fell to the ground. She also saw the accused slapping the deceased and the accused was very angry. It was put to her during cross-examination that she could not clearly see what she testified about as it was dark. She replied that there were lights at the scene which enabled her to see clearly what transpired.

[4]Bethuel Willie a friend of the accused, testified that he was also at Mafia bar on 13 November 2010. Whilst there, he saw a man running out of the bar and he then saw the accused slapping the deceased.

[5]Josef MannetjieIpinge testified that on 13 November 2010 he was at Mafia bar. The accused was also there drinking overmeer wine. He testified that he observed the accused slapping, beating and kicking the deceased. Later, he left Mafia bar and went home. Later that night the accused arrived at the house and asked him and one Neffie to come and assist him to carry the deceased who was lying in a riverbed. When they arrived at the riverbed, he observed that the deceased was lying naked. The accused shouted, “Pick up the fucken dog”. They failed to lift her up as she was heavy and the accused instructed them to go and get a wheel barrow. They did not return back to the riverbed with the wheel barrow as the accused had been aggressive and wanted to beat them.The next day he went to the accused’sroom and saw the deceased lying on the bed with a swollenface. Later the accused asked them to lock him inside the room together with the deceased whilst they went to charge his phone at Groot Aub. When they returned, they found the accused outside talking to aunt Dafie. The accused then asked them whether they had not seen Loretha in the location and they said no. He further testified that the accused also told them when they were looking for goats they must not look in a certain direction and later when the body of the deceased was found, it was found in the direction where they were told not to look for the goats.

[6]Jacob Kangandjera, the nephew of the accused,testified that he was also at Mafia bar on 13 November 2010.He saw the accused slapping the deceased. Later that night whilst at home, the accused came there and asked him to go and assist him in carrying the deceased as she was lying in a riverbed. They assisted in carrying the deceased up to the house of the accused. The next day he went back to the accused’s house and saw that the deceased was lying in bed not talking and her eyes swollen. The accused asked them to go and charge his phone at Groot Auband asked them to lock them inside the room.

[7]Maureen Sauer, a neighbor to the accused, testified that on 14 November 2010 she went to the accused’s room to get a cooking pot. There, she saw the deceased lying on the bed. Her whole face was swollen, she was half covered and she could see her arms had blue spots. She called out “Loretta, Loretta!”(Referring to the deceased) but there was no answer. She was shocked and scared by seeing the deceased in that state. Later when she saw the accused, she asked him: “how could you assault someone’s child like that, if her mother sees her like this, she will be hurt” and the accused replied: “that is true zali”.

[8]Joseph Tokwe testified that he was at Mafia bar on 13 November 2010. He saw the accused arguing with a man who later ran away. He also saw the accused slapping the deceased. The next day whilst at the accused’s house, he saw the deceased lying in bed with a swollen face and marks on her shoulders. Later, as they were about to leave for Groot Aub, the accused who had two keys, gave them one and asked them to lock him and the deceased inside the room. When they returned, they found the accused outside the room and he told them that the deceased had jumped out of the window. He also testified that from his observation of the deceased earlier that morning, she was in pain and not in a position to have jumped out of the window.

[9]KoosEiman, a pastor and a community leader, testified that on 18 November 2010 he was called to the scene where the deceased’s body was discovered. The body appeared to be very dark and was very swollen on the head. He also saw a rope around her neck and a piece of rope on a branch of a tree which was not fastened and was just hanging over the tree.

[10]Helena Williams testified that she was also at Mafia bar on 13 November 2010. She saw the accused attacking and slapping a man. She also observed how the accused repeatedly kicked the deceased over her whole body. She testified that no one stopped the fight as they were afraid of the accused who was very aggressive.

[11]JamailTheunissen, a nephew of the deceased,testifiedthat he was also at Mafia bar on 13 November 2010. He testified that the accused found another man (who was later identified asNatangwe) inside the bar, beat him there, and then brought him outside and continue beating him until he ran away. He then saw the accused assaulting and kicking the deceased as she lay on the ground. He heard the accused shouting: “I would kill somebody and go to jail and come back!”

[12]Reinhardt !Hoaseb testified that on 13 November 2010 he was at Mafia bar. Whilst there, he saw the accused going inside the bar and coming out with a man, holding the man on the neck. He then saw the accused slapping and kicking the man who then ran away. The accused then returned to the deceased, slapped and kicked her to the ground and continued kicking her whilst on the ground. He could clearly see what was happening as there was light from the lamppost outside and also light from inside the bar. He told the court that the deceased fell on her back and the kicking were directed at the ribs. I pause to observe that this piece of evidence is corroborated by the findings of Dr. Salas who testified that the deceased’s ribs were fractured on both sides.

[13]Ricky Garoeb,a member of the Namibian Police Force, testified that on 18 November 2010 he was on duty and received a message about a body that was found at Verdruk. He proceeded to the scene where the body was found. He observed that the body was lying on her back. There were marks on her face, legs, arms and the eyes were swollen. He testified that he could see that she was beaten and put there. There was a rope around her neck which was nicely tied and another one on the tree which was not tied. He testified that an impression was created that she hanged herself, but that was not the case because the tree was a big tree with strong branches. The height was more than twometres. The branch on which the rope hung was one and half metres off the ground. The deceased was less than one and half metrestall and according to him there was no way that she could have climbed that tree to put the rope on the tree and to have committed suicide.

[14]Matheus Mwahafa, a member of the Namibian Police Force, also attended the scene where the body was found. He corroborated the evidence of Garoeb. He further testified that the rope around the neck of the deceased was cut and not torn. The rope on the tree appeared to have been just put there by a tall person. He testified that it was a tall tree and difficult to climb because it was straight.

[15]Niilo David discovered the body lying in the field. He went to inform the members of the community, who later arrived at the scene.

[16]Daniel Profasio testified that he was at Mafia bar on 13 November 2010. He saw the accused quarrelling with someone and he looked upset and about to fight.

[17]Stanley Awarab is a police officer who also attended the scene where the body was found. He observed that the body was swollen and had bruises. There was a rope tied tightly around her neck, the rope appeared to have been cut as it had a clean line. On the tree he saw a similar rope which was not tightly fastened, ‘it was just wrapped around the tree’.

[18]Levies Coetzee, a police officer,also attended the scene and took photographs and drew a sketch plan which was produced in court as exhibit “L”. He observed that the body had bruises and swollen eyes. He testified that the rope around the neck appeared to be cut and tight but the one on the tree was loose and wrapped around the branch.

[19]Dr. Raul Salas was a medical officer at the Windhoek central hospital. On 19 November 2010 he conducted an autopsy on the body of the deceased and compiled a medical report. The chief post-mortem findings were, inter alia, multiple scars on all sides of the body, scars in the pupils of the eyes, blood loss in the head, bleeding in the upper part of the brain, multiple fractures on both sides of the ribs (four on the right and three on the left), scar on the neck which was horizontal, and according to him the cause of death was strangulation. The doctor also testified that he saw a single piece of rope tied around the neck of the deceased which was horizontal. The doctor testified that the significance of both the scar on the neck and the rope around the neck being horizontal is that somebody tied the rope around her neck and strangled her. He further testified that if the deceased had attempted to commit suicide with the rope, the rope would have been vertical. The doctor further testified that the contusions on her body showed that she was either dragged on the ground or that a person inflicted those injuries, ‘she was first beaten and dragged’, said the doctor. He further testified that the fractures on both ribs were caused by external objects and somebody must have hit her with an external object. The doctor also testified that a person with those fractures on the ribs, four on the right and three on the left, would not have been mobile neither would she had been in a position to raise her arms and put a rope on a tree because she would have been in severe pain.