CASE NO.

: SA 1/2000

IN THE SUPREME COURT OF NAMIBIA

In the matter between

DAVID SILUNGA APPELLANT

And

THE STATE RESPONDENT

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

HEARD ON: 2000/10/11

DELIVERED ON: 2000/12/08

_____________________________________________________________________________

APPEAL JUDGMENT

_____________________________________________________________________________

O'LINN, A.J.A.:

A. INTRODUCTION

The appellant was convicted in the Court a quo on several charges being:

1. Murder

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

possession of a firearm without a license.

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

ammunition - to wit - two (2) shotgun cartridges.

 2

He was sentenced as follows:

1. Sixteen (16) years imprisonment.

2. Eighteen (18) months.

3. Six (6) months.

Counts 2 and 3 were ordered to run concurrently with the sentence on count 1.

The appellant was represented at his trial by Mr. Christiaans.

The appellant applied for leave to appeal and condonation for the late filing of

his application for leave to appeal. The application was refused by the trial

judge, Gibson, J.

Subsequent to the dismissal of the application for leave to appeal by the Court

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

sentences.

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

Court. Ms. Schultz, appeared for the State.

B. THE QUESTION WHETHER THIS COURT HAD THE NECESSARY

JURISDICTION TO GRANT LEAVE TO APPEAL AGAINST CONVICTION

AND TO CONSIDER AND DECIDE ON SUCH AN APPEAL

 3

After counsel had argued the appeal against both conviction and sentence

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

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

conviction, may be a nullity in the light of several authoritative decisions.

The essence of these decisions is that when an accused asks the trial judge for

leave to appeal against sentence as in this case and that is refused, this Court

has no jurisdiction to grant leave to appeal also against conviction. If such

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

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

order granting leave to appeal against conviction, is also a nullity.1

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

also against conviction, however erroneous that decision may have been.

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

appellant was no longer assisted by a legal practitioner. In his application, he

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

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

convicted of culpable homicide. He nevertheless asserted that he only wanted

to appeal against sentence. The Court a quo consequently treated the

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

then rejected the application for leave to appeal against sentence.

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

S v Tsedi, 1984(1) SA 565 AD
S v Cassidy, 1978(1) SA 687 (AD)
S v Gopal, 1993(2) SACR 584 (AD) at 585 c - d
 4

The appellant then petitioned this Court for leave to appeal. The judges who

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

appellant in substance complained against both conviction and sentence and

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

Court a quo as an application for leave to appeal against both conviction and

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

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

justified the granting of leave to appeal also against conviction.

The point that the appeal against conviction was not properly before this Court

was not raised by any of the parties or their counsel. This Court also failed to

raise the point mero motu.

This Court consequently heard full argument on the merits of the conviction as

well as the sentence.

Notwithstanding the fact that the granting of leave to appeal against

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

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

this Court in deciding on the course to be followed which would best serve the

interest of justice2.

So e.g. if there was merit in an appeal against conviction, this Court may have

considered postponing the final decision on the appeal as it stands to give the
 5

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

against conviction. If leave is then granted by the Court a quo, the appeal to

this Court on both conviction and sentence can then be placed on the roll for

further hearing by this Court. If leave is not granted by the Court a quo against

conviction, then the appellant, if so advised, can petition this Court for leave to

appeal against conviction. Such a course would obviously cause a long delay

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

of the Court a quo relating to conviction and sentence.

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

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

followed. If this Court concludes that there is no merit in an appeal against

conviction, it would be a waste of time to follow the course set out above.

C. MERITS OF THE CONVICTION

Mr. Christiaans contended that the appellant should only have been convicted

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

convictions on the two other charges. According to him, the Court a quo

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

suspended. Ms. Schultz on the other hand supported the convictions and

sentences on all the charges.

2 State v Langa & Others, 1981(3) SA 186 AD, at 190 A - 191 A.

 6

There was no dispute in the Court a quo in regard to the fact that the accused

had killed the deceased by shooting him with a shotgun and that the accused

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

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

whether or not the State had proved beyond reasonable doubt that the

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

defence, alternatively, exceeded the bounds of self-defence well knowing that

he was exceeding the reasonable bounds of self-defence, alternatively at least

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

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

exceeding the bounds of self-defence.3

Gibson, J., the presiding judge at appellant's trial in the High Court, motivated

the convictions as follows:

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

story. Neither do I accept the accused's account of a quarrel

before the shooting on the day of this particular incident. The

accused version is totally inconsistent with the evidence of Abner

Ingungula, who's evidence was reliable and believable. In my view

although suggestions were made that Abner might have missed

the conversation there really is no substance in it. As Abner

3 Criminal Law, by C R Snyman, 3rd ed. 102, point 5 up to end of point 6, p. 106;
S v Beukes & An, 1988(1) SA 511 AD at 522 B - G;
S v Van Wyk, 1993 NR 426 at 439 B - 442 H;
S v Naftali, 1992 NR 299 at 303 F - 304 E
S v Shimooshili, NmHC, 30/10/92, unreported;
Raymond Landsberg v The State,
S v Whitham, NmHC, 17/09/1992, unreported
 7

indicated the conversations took place a mere four metres away

from him and there was no particular noise to compete against any

such quarrel he couldn't have missed that quarrel.

However, the accused described an altercation earlier that day

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

Well I have great doubts about that story. I cannot rule it out

altogether because of the way in which, and the circumstances in

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

Abner Ingungula. The attitude of the accused at the approach of

the deceased upon the deceased's arrival would appear to

suggest a resumption of an earlier unfinished business. According

to Abner Ingungula the accused called out to Absalom Sylvanus

not to come near him or else he will shoot. The fact that the

accused was apprehensive about the approach of the deceased

towards him does tend to suggest some animosity between the

parties.

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

uttered so calmly, why would the accused have been so anxious to

stop the deceased's approach unless there was something

threatening before him. Abner's description of the deased's

approach was that in his mind he merely thought the deceased

was approaching to greet the accused. So in itself there was

nothing in the approach which could give the impression of

 8

aggression on the part of the deceased. However, it seems that

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

reacted to prevent that approach. It would seem therefor from

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

that the deceased was approaching him in an aggressive mood

and therefor acted quite unreasonably to protect himself.

However, in electing to use a shotgun in the circumstances

presented before him the accused undoubtedly exceeded the

bounds of reasonable self-defence. The deceased was not armed

with any weapon as he approached the accused. So in firing the

shotgun at the deceased the accused not only exceeded the

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

immoderately. And given those circumstances the accused

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

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

consequence, fired nevertheless.

The accused is therefore found guilty of murder with constructive

intent, in count one. He is also found guilty of possession of a fire-

arm without a license in count two and unlawful possession of

ammunition in count three."

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

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

homicide, rather than murder. The passage relied on by him for the conviction

reads as follows:
 9

"It would seem therefore from the facts that the accused may have

believed in his own mind that the deceased was approaching him

in an aggressive mood and therefore acted quite unreasonably to

protect himself."

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

judge "ruled that the accused believed that he was acting in self-defence, but

that the belief was unreasonable".

There is substance in this contention.

The learned trial judge unfortunately did not deal at all with the correct legal

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

charge of murder. She correctly dealt with the issue of the accused's intention

to kill and correctly held that the accused had the intention to kill, at least in the

form of dolus eventualis. She apparently also held that the accused may have

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

bounds of self-defence but did so grossly and immoderately".

The Court thus correctly concluded the first leg of the enquiry - where an

objective test had to be applied.

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

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

deals with the mens rea of the accused in relation to the killing - more
 10

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

reasonable doubt that the accused knew that his action exceeded the

reasonable bounds of self-defence, alternatively foresaw the reasonable

possibility that his action exceeded the reasonable bounds of self-defence and

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

bounds of self-defence.

Where the State succeeds in proving this element, the verdict of murder is

justified. Where it fails to do so, but nevertheless succeeds in proving that the

accused acted recklessly or negligently in not knowing that his action

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

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

defence, a verdict of culpable homicide is justified.

A careful reading of the judgment leads to the conclusion that the Court a quo

never embarked on the aforesaid second leg of the enquiry. As it stands, a

verdict of culpable homicide was justified, but not one of murder. The court

thus misdirected itself in its approach and reasoning. That however, does not

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

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

properly before this Court. In that event, this Court would have been entitled to

reconsider the evidence on record, including findings of credibility of the judge

a quo, to come to its own conclusion regarding the correct verdict.

 11

The question also arises as to whether or not the Court did not misdirect itself

when it failed to consider and to decide mero motu to call Martha Mupetannie

as a witness.

This person was originally brought to Court as a state witness because she was

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

heard what transpired immediately before the shooting. It transpired at the

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

Abner Ingungula to have seen and heard what happened. This appears from

the following part of the cross-examination of Abner by Mr. Christiaans:

"Q" Now on that particular day there at the cuca shop, can you

recall, was there a certain Martha Mupetannie also present?

A: Yes, my lady. She was there, this is a girl of age under 20.

Q: Was she also there?

A: Yes, she was outside there.

Q: Now, if she comes and tell the Court that there was in fact a

conversation, will she be lying?

A: My lady, that I would not know. If she would come and

testify to that effect, that is true. That is her version, because

she was near the accused David. That I will not dispute.

Q: Was he closer to them that you were?

A: Yes.

Q: Now, after the shot was fired and you looked around and

you saw the deceased moving a few paces, you probably

would not know when the shot was fired, how the rifle was
 12

pointed and what happened when the shot was fired, how

the rifle was pointed and what happened there between

the two of them?

A: Correct my lady. I did not witness the actual shooting."

Notwithstanding the fact that Martha was in a better position than Abner to see

and hear what happened at the crucial stage, state counsel, Ms. Duvenhage,

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

witness to the defence.

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

call Martha and said: "I think it is important that she be called. She was also

present and therefore I wish to call her.".

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

for a short while when Mr. Andreas Shivute was testifying on issues relating to

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

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

took place. Counsel for the State then indicated that she was unable to say

when Martha was in Court.

Thereupon the presiding Judge said: "But this is very improper, wasn't it? To let

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

evidence.". After considerable further exchanges between the presiding

Judge and Mr. Christiaans, the presiding Judge said: "But anyway, call her and
 13

we will see what we have got perhaps for new evidence.". Mr. Christiaans

retorted: "Then in that case, I will not call her.".

Mr. Christiaans persisted in his attitude notwithstanding that the presiding Judge

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

some stage may affect the weight of her evidence. Mr. Christiaans then closed

his case without calling Martha. She was the only eyewitness who saw the

actual shooting and who probably heard what was said between the accused

and the deceased at that crucial stage.

This was a typical case where the presiding Judge, as administrator of justice,

should have considered calling the witness mero motu to testify in accordance

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

1977

The need to follow the guidelines in S v van den Berg was again emphasized in

the recent decision of this Court in State v K4.

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

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

consider and give some weight to the contemporary norms, views and opinions

of Namibian society".5

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

S v V.d. Berg, 1995(4) bclr 479 Nm at 523 A - 531 A also reported in 1996(1) SACR
19 at 63g - 72 c and the decisions referred to therein.
5 IBID, 419 D and the decisions referred to in footnote 9 of the report.
 14

Any failure by a Court to follow the aforesaid approach, may deprive the trial

Court of the benefit of having heard all the available relevant evidence and of

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

complete record of the available relevant evidence. Such failure by the trial

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

causing prejudice to either the State or the accused or the victim and as a

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

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

for the application of a proper procedure and/or for reconsidering the verdict.

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

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

of justice.

The decisions referred to adequately sets out the correct position, but because

of its importance, it is justified to repeat the following aspects:

(i) Sections 167 and 186 of the Criminal Procedure Act 51 of 1977

provide as follows:

S.167: "The Court may at any stage of criminal

proceedings examine any person, other than an
accused, who has been subpoenaed to attend
such proceedings or who is in attendance at such
proceedings, and may recall and re-examine any
person, including an accused, already examined
in such proceedings, and the Court shall examine,
or recall and re-examine, the person concerned if
his evidence appears to the Court essential to the
just decision in the case."
(My emphasis added.)
 15

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

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

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

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

essential to the just decision in the case.

S. 186: "The Court may at any stage of criminal

proceedings subpoena or cause to be
subpoenaed any person as a witness at such
proceedings, and the Court shall so subpoena a
witness or so cause a witness to be subpoenaed if
the evidence of such witness appears to the Court
essential to the just decision of a case."
(My emphasis added.)

This section as in the case of section 167, provides in the first part for a

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

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

the case".

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

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

Act 51 of 1977. The main difference is that in Act 51 of 1977 the recalling and

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

defence is spelled out, whereas in some earlier acts that had to be implied".

(ii) The role of the Courts in Namibia and South Africa in regard to

Criminal Procedure, is partly adversarial and partly inquisitorial

compared e.g. to the United Kingdom, where until now, the role
 16

has been adversarial and the rest of the continent of Europe,

where the role is inquisitorial.

The aforesaid role was already succinctly stated in 1928 by the Appellate

Division of the South African Supreme Court where the learned judge Curlewis,

J.A., defined the position as follows:

"A criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other and the
Judge's position in a criminal trial is not merely that of an umpire to
see that the rules of the game are observed by both sides. A judge
is an administrator of Justice, he is not merely a figure head, he has
not only to direct and control the proceedings according to
recognized rules of procedure, but to see that justice is done."6

The manner in which Wessels, C.J., applied this approach in 1935 in the decision

of the Appellate Division of the South African Supreme Court in R v Omar is

instructive. He said:

"It is not necessary to hear Mr. Beardmore. In this matter the

attorney-general suggested to the presiding Judge in the court
below to call a witness after the case for the defence had closed.
He stated that the man he wished to have called had only been
found in the early hours of the morning and that he had not had
the opportunity of calling him at the proper time. The Judge
exercised his discretion under section 247 and called the witness,
whose evidence went to the merits of the case. It has been
contended that section 247 should be confined to those cases
where there has been an omission of a technical nature, not where
the evidence goes to the merits of the case. As I read the section it
has exactly the opposite meaning - namely to see that substantial
justice is done, to see that an innocent person is not punished and
that a guilty man does not escape punishment. That is why the
section is in the widest possible terms. If at any stage of the case
the Judge thinks a witness ought to be called he may use his
discretion to call a witness to give evidence, but when it appears
that evidence is essential to the proper decision of the case, then
 17

the Judge has no discretion - he must call the witness. In these

circumstances the question must be answered in favour of the
Crown."7

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

witness may contradict the whole or part of the state case and the prosecutor

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

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

witness. Similarly, the defence may decide not to call a witness as its witness,

essentially for the same reasons. These reasons are not necessarily based on

the known or suspected untruthfulness of the witness. The result may be that a

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

contribute to the Court's function to establish the truth.

In cases where both the prosecution and defence decline to call an available

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

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

evidence is going to be or if the witness's statement is handed up for the Court's

assistance by consent.

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

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

7 R v Omar, 1935 AD 230 See also

R v Kubeka, 1953(3) SA 691 (T) at 695 G, the judgment of Ramsbottom, J.
R v Hongwane, 1982(4) SA 321 at 323 A - 324 C
S v von Molendorf, 1987(1) SA 135(T) at 149 B - 151 H
R v Beck, 1949(2) SA 626(N)
S v Dawid, 1991(1) SACR, 375 NmHC at 381d - 383c
S v du Raan, NmHC 22/9/1994, unreported
Duminy v The State, NmHC, 12/11/92, unreported
S v Kwant, NmHC, 26/10/1994, unreported
 18

difficulty for the Court in exercising its discretion in terms of section 186, to come

to a decision.

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

such that the Court was compelled to call the witness Martha Mupetannie.

The appellant gave the following explanation in his testimony:

"My lady, when the deceased came to that cuca shop, he

greeted everybody there, including myself. … the deceased my
lady was leaning on a pole whereby he greeted me. I then said to
him you should not greet me. What you did to me in the morning, is
enough. … Then afterwards he answered me that what can I do to
him? I then also told him, there is nothing I can do to you, but you
should not come near to me. And while I was telling him not to get
nearer to me, he was get closer to me, very near closer to me.
Then he was pointing at me maybe with the intention of grabbing
me. I then told him that you should not come near to me,
otherwise he would bring problems to me. … Then the deceased
said to me, what can you do to me with your rifle? You with your
rifle. … and while the deceased was pointing at me, my lady, I then
fired a shot that went to struck him on his arm. But then I did not
know where else on his body that I struck him..."

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

before the shooting: "Come out, I will shoot you today".

This statement was not denied by the appellant under cross-examination. The

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

said immediately before the shooting, but rather supplements it. I will accept

consequently that when appellant warned the deceased not to come nearer -

he used words to that effect - "come out - I will shoot you today".
 19

It was common cause that the appellant shot the deceased with a shotgun, a

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

appellant knew at all times that the shotgun was a lethal weapon. It was also

conceded that the deceased did not have any weapon in his hand when he

approached the appellant.

The defence of self-defence was only tentatively raised during the appellant’s

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

testimony. The maximum threat appears to be contained in the words: “Then

he was pointing at me - maybe with the intention of grabbing me.”.

At the section 119 proceedings - the appellant pleaded guilty to the charge of

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

and that he was acting in self-defence or believed that he was doing so. On

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

answered: “I shot the deceased because he was always accusing that my

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

my mother does not belong to my father.” The accused’s plea explanation at

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

Christiaans. There was no written explanation of plea, by the accused himself

as was the practice in the Namibian High Court for many years. It is not proper

for a plea explanation to be given by the legal representative unless confirmed

by the accused. Presiding judicial officers should ensure that the above-stated

practice is adhered to.

 20

The version of Mr. Christiaans, as given orally, did not amount to a plea of self-

defence. Mr. Christiaans said: “...the accused will admit that he did in fact

shot (shoot) the deceased and that that shot killed the deceased. However, it

was not his intention to kill the deceased, but only to hurt him and to scare him

away because the deceased came towards him. And also because of threats

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

deceased was about to attack him.”

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

the time of the shooting that the deceased was about to attack him or whether

he was under the impression on a previous occasion is not clear. But

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

Christiaans or from the accused. Furthermore she failed to obtain any

confirmation from the accused in regard to the plea explanation offered by Mr.

Christiaans as was the correct practice in the High Court.

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

explanation. She apparently gave no consideration to the important piece of

evidential material which amounted to an important admission.

This plea explanation was inconsistent with any defence of self-defence. It was

a strong indication that the appellant not only did not act in self-defence, but

knew full well that he was not acting in self-defence. The accused at the time

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

any schooling - would have told the Court when pertinently asked why he had

shot the deceased, that he shot the deceased because he was attacked by
 21

the deceased if that was the case. Furthermore, this appellant had reached

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

excused on the ground of lack of schooling or intelligence. To mention that he

shot the deceased because he was attacked would have been a natural and

obvious response for any person in his position.

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

by the deceased on previous occasions and he wanted to injure the deceased

because of the aforesaid provocation. His only real defence was consequently

that he intended to injure and not to kill and that he acted under provocation.

The Court misdirected itself by failing to give any consideration to the section

119 proceedings. This misdirection is similar to the one referred to in the recent

decision of this Court in S v K8. In this case the misdirection favoured the

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

victim as the appellant was at any event convicted of murder.

In my view, the accused was correctly convicted of the crime of murder. In the

light of

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

at least, on the basis of dolus eventualis. He did not act in self-defence and he

knew it. Alternatively,

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

 22

he grossly exceeded the bounds of self-defence and knew it. In the further

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

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

not he was exceeding the bounds of self-defence.

There is consequently no prospects of success for an appeal against conviction

if properly noted and prosecuted and it would therefore be futile to follow the

course suggested in Section B, supra.

D. THE SENTENCE

The approach of a Court of Appeal in regard to appeals against sentence was

again reiterated in the recent decision of this Court in Andries Gaseb & 2 Others

v The State. The Court stated:

“It is trite law that a Court of Appeal can only interfere with the
discretion of the trial Court regarding sentence on very limited
grounds, viz: When the trial Court has not exercised its discretion
judiciously or properly. This occurs when the trial Court has
misdirected itself on facts material to sentencing or on legal
principles relevant to sentencing This will also be inferred where the
trial Court acted unreasonably and it can be said that the
sentence induces a sense of shock or there exists a striking disparity
between the sentence passed and the sentence this Court would
have passed or if the sentence appealed against appear to this
Court to be so startlingly or disturbingly inappropriate as to warrant
interference by this Court."9

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

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

9 Andries Gaseb & 2 O v The State, delivered on 09/08/2000, unreported, (NmS)

 23

But not only must the conviction for murder stand, but there are no reasonable

prospects of such an appeal

succeeding if properly noted and prosecuted.

The Court a quo did not misdirect itself on any matter relating to sentence. The

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

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

sense of shock, or can be said to be startlingly or disturbingly inappropriate.

The same applies to the sentences imposed on the further two charges.

In the result:

1. The order of this Court granting leave to appeal against

conviction is declared a nullity.

2. The appeal against sentence is dismissed.

(signed) O’LINN, A.J.A.

I agree.

(signed) STRYDOM, C.J.

I agree.

(signed) MANYARARA, A.J.A.

/mv

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

 24

(Legal Aid)

COUNSEL ON BEHALF OF THE RESPONDENT: Adv. S. Schultz

(Prosecutor-General)