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THE STATE
and
CORAM: LIEBENBERG, J.
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,
2
guilty to both charges. In count 1 it is alleged that the accused persons during the
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
dangerous weapons were used during or after the commission of the crime, and that
[2] Mr. Shakumu, instructed by the Directorate: Legal Aid, appeared on behalf of
[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
“I [the] undersigned
1. I am the First Accused before this Honouable [Court] and stand charged on a
2. I understand the charges against me and plead not guilty to both counts. The
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 don’t know, but estimate same to be in the region of 81 (the
second accused in this matter [and] who was also employed by the deceased at
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
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
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
a) That the deceased was [an] 81 years old female who farmed at Gaidaus farm in
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’)
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
(Emphasis provided)
Accused no. 1 was unable to sign the statement and instead, appended his thumb print
[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
“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
The formal admissions made in terms of s 220 are also identical to that of accused
[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
[6] The following documents were then handed into evidence by agreement: The
State’s Pre-Trial Memorandum and the Reply thereto; minutes of the Pre-Trial
6
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 deceased’s 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 deceased’s house; and, the original record of
proceedings conducted in the district court, Otavi, including the section 119
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
agreement, the State called only two witnesses viz. Mr. Wolfgang Falk, the first
person on the scene, and the deceased’s son, Mr. Klaus Will. For the defence, only
[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 deceased’s 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
7
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 deceased’s 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 mother’s 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
mother’s 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
mother’s 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
[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
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
[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
deceased’s 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
deceased’s 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
9
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
deceased’s 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.
10
[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. 1’s evidence supports each accused’s 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 of dolus 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 deceased’s 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
deceased’s 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
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
11
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
[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 made by the accused persons on that point, with full regard to all the
evidence adduced.
[16] In view of first accused’s 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
“(1) The inferences sought to be drawn must be consistent with all the proved facts.
(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.
12
October 2005, by the late Dr. Shangula, on the body of Ruth Elfriede Will, the
following appears:
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.
13
easily on touch; bruises like bleeding on the frontal and left parietal and temporal
Internal appearances:- the left thyroid gland showed bruise-like marks; rib fractures
oesophagus4; lungs and heart with putrefaction; left coronary only sixty percent
patent; extensive plaques embedded in the ascendance and peritoneal aspect of the
[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 deceased’s 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 deceased’s 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
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 exact quantum of
4
Gullet.
14
[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 deceased’s body during a
which (at least) moderate force was applied to different aspects of the deceased’s
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
[21] I now turn to consider whether there is a causal link (nexus) between the assault
materially defined crimes like murder and culpable homicide, the State must prove
beyond reasonable doubt that there is a causal link between the accused’s act and the
prohibited situation i.e. his victim’s 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
[22] In order to establish whether an accused person’s act is a factual cause of the
deceased’s 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 it’s own
5
1983 (3) SA 275 (A).
15
knowledge and experience, whether the deceased’s death flowed from the accused’s
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 person’s conduct had not taken place; would the
formula or theory, and not a test. In Snyman: Criminal Law6 the learned author says:
“One first decides on the strength of all the facts whether the conduct is the cause of
Y’s 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 one’s (own) knowledge and experience, this would lead one to
[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.
16
the deceased’s 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 deceased’s 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
deceased’s 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 exact
7
Snyman (supra) at 421
17
same position than when they had left the previous night. The deceased’s 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 deceased’s 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 deceased’s head and that she, according to him, could still freely
breathe thereafter. The evidence of Mr. Falk was that the garment was very 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 positioned the holes in such
a way that the deceased could breathe. For reasons given infra, 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
[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 deceased’s 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
accused no. 2’s 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 deceased’s 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
19
deceased suffered from a heart ailment does not justify a conclusion that therefore,
[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 accused’s 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 deceased’s 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 deceased’s death. Thus, when applying the
formula to this finding, it can be said that their conduct was a condition sine qua non
[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
“…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 one’s 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
the act as a cause of the forbidden situation. Only an act which is a factual cause of
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
[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.
8
S 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.
21
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 deceased’s 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 of dolus directus or
dolus eventualis – or, whether they lacked intent and caused the deceased’s death
[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
[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
22
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
[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
“The State is, from the nature of things, seldom able to offer direct evidence of the
accused’s 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 accused’s state of mind and intention must be cumulatively assessed and a
drawn from these facts that the accused actually considered it a reasonable
12
1992 (1) SACR 147 (Nm) at 161d-g
23
possibility that the deceased could die from the assault but, reckless as to such fatal
[40] From accused no. 1’s testimony it is clear that he indeed foresaw that death may
ensue when he pulled the garment over the deceased’s 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 accused’s 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 State’s 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 deceased’s
head was covered, by first saying that it was so that she could not recognise 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 after he was probably identified by the deceased, he said that
24
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 took as 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
deceased’s head was covered in circumstances where it was not possible to make the
observations on the fabric pulled over the deceased’s head; neither to position it over
[42] It was furthermore accused no. 1’s 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.
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
25
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
[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 accused’s 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
“Applying general principles, there can be no doubt at all that the crime of murder is
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
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,
13
1977 (4) SA (R.AD)
27
[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
assessing all relevant facts, which bear on the accused persons’ states of mind and
their intention when entering the deceased’s 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
[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
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. 1’s testimony
that they only intended stealing, the Court is satisfied that they went to the deceased’s
farm with the foresight that they may reasonably encounter resistance, but associated
themselves with such possibility and proceeded entering the house on that basis.
28
That, on the basis of dolus 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
accused’s evidence that they had only tied up the complainant after taking the stolen
[49] The definition of the crime of robbery as defined by Snyman (supra) at 506 is:
[50] I shall briefly discuss the arguments advanced by Mr. Shakumu as to why, in his
Firstly, that although bruises are visible on the deceased’s 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
accused’s 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
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 deceased’s part by tying her up, even before she
could do anything; and, as already stated, she had put 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
after tying 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
[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 author Snyman14 (supra)
states:
follows the completion of the theft. This will be the case if, having regard to the time
and place of X’s act, there is such a close link between the theft and the violence that
14
p 508.
30
they may be regarded as connecting components of one and the same action. Thus in
Yolelo15 X was found in possession of Y’s property before he could leave Y’s house.
X’s ensuing assault on Y was regarded as so closely connected with the process of
[52] I find counsel’s 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
[53] Second accused opted to remain silent, which was his Constitutional right;
In S v Katari,16 Maritz, 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
31
General, Transvaal 1998 (4) SA 1224 (CC) (1998 (2) SACR 493 at 501b-d) Madala
'[22] Our legal system is an adversarial one. Once the prosecution has
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
justice.'”
“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
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.
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
32
“(a) any offence, whether under the common law or a statutory provision, of
means-
offence;
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.
____________________________
LIEBENBERG, J
34