CASE NO.

: CC 10/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

IGNATIUS PETU MURUTI

CORAM: LIEBENBERG, J.

Heard on: 17 – 20 January 2012

JUDGMENT

LIEBENBERG, J.: [1] The accused, now aged 19 years, stands charged

with counts of murder, read with the provisions of the Combating of Domestic

Violence Act, 2003 (Act No. 4 of 2003), and assault with intent to do grievous

bodily harm.
 2

[2] The accused pleaded not guilty to both charges and in the oral plea

explanation advanced on his behalf by his legal representative, Ms Mainga, it

was said that the accused did not kill the deceased Mwengere Muwara aged

17 years, intentionally, but that she accidentally got stabbed when moving in

between the accused and two attackers when attempting to break up the fight

between them. One of these persons is Titus Muwara who attacked him with

a screw driver, and in order to defend himself, he took out his knife from his

pocket (which opened by itself) and at this stage the deceased “walked into

the knife”. He denies having stabbed the complainant in count 2 and claims

that the injury was a mere scratch; which incident occurred whilst the accused

acted in self-defence.

[3] A bundle of documents were handed in by agreement as evidence

(Exh “A”), which includes the following: State‟s Pre-trial Memorandum;

Accused‟s Amended Reply to State‟s Pre-trial Memorandum; Memorandum of

the Pre-trial Review Conference; Post-Mortem Report and accompanying

affidavit of Dr Ramirez who performed the autopsy; original record of Rundu

Case No 91/2010 inclusive of the s 119 proceedings; and Warning Statement

(Pol 17) of the accused. Also handed in are the two affidavits of Matheus

Hamunyela and Anti Sitarara Hausiku, relating to the identification and safe

custody of the deceased‟s body.

[4] From the chief post-mortem findings made by Dr Ramirez on the

deceased‟s body, it appeared to me that, although the report referred to a

“stab wound” (singular) being the cause of death, it, on the contrary, also

made reference of three (3) wounds i.e. on the left side of the chest (2 cm x

1.5 cm); in the left lung (1.5 cm); and in the heart (1.3 cm) and bleeding in the

thoracic cavity (600 ml). On the diagramme appear three distinctive marks in

red ink, suggesting three wounds; however, next to it appear the words

“wound (singular) in the chest 2 cm deet [deep] 10 cm”. I raised the

contradiction in the post-mortem report with counsel and in order to clarify any

ambiguity therein, Mr Lisulo called Dr Ricardo, a pathologist attached to the

Oshakati State Hospital to comment on the report; as Dr Ramirez was

unavailable to testify in that he, in the mean time, returned to Cuba, his

country of origin. Dr Ricardo was of the opinion that the report was not clear,

particularly as far as it concerns the distinctive marks indicated on the

diagramme, but opined that the three wounds referred to in the report was in

fact a single stab wound to the chest which simultaneously penetrated the left

lung and the heart.

This conclusion is consistent with the evidence of the three State eye-

witnesses as well as the accused i.e. that the deceased was stabbed only

once. I accordingly accept the finding to be correctly made.

[5] During the s 119 proceedings held in the district court at Rundu the

accused pleaded not guilty to a similar charge of murder and raised the

defence of private defence. There appears to be nothing else forthcoming

from those proceedings which may assist the Court in its determination of the

case.
 4

[6] As regards the warning statement taken from the accused on the 23rd of

March 2010, the accused elected not to give a statement; taking the matter no

further.

[7] The unfortunate incident that led to the demise of the deceased,

Mwengere Muwara, happened on the 22nd of March 2010 at Divundu

Combined School in the district of Rundu; and for the sake of convenience,

the events taking place earlier that day whilst the witnesses were on their way

back to the school hostels, can be distinguished from the stabbing incident

that took place in the evening. It is common cause that some of the witnesses

joined others on the way and later parted company as each went to his or her

hostel. Although the witnesses are not in agreement as to whether the

accused was part of the group or whether he was just following them, the

accused‟s version on this point, in my view, can reasonably be accepted

namely, that he was asked by the deceased to accompany her to the hostel

and therefore, he was part of the group. He was no longer a learner as he

had already left school the previous year. That would also explain their

presence under the tree that evening where the incident took place.

[8] According to the witness Veronica Thihako („Veronica‟) the accused on

the way uttered words to the effect that he felt like doing whatever pleased

him, which could include the killing of one of the teachers; moreso, because

he came from the area they were moving in. Namuthinda Kashivi

(„Namuthinda‟) gave corroborating evidence but added that the accused had
 5

said he could even kill a certain Mr Kumwa, a teacher at the school. These

remarks were made in general and no one responded thereto. The accused

disputes this evidence. They only arrived at the hostel after sunset and

because there was a black out, visibility was limited. The only form of

illumination seemed to have come from the learners‟ mobile phones. These

two witnesses were only later informed about the stabbing incident as they

were not witnesses to the incident.

[9] The stabbing incident was narrated to the Court by the witnesses

Dyangoma Nicky („Nicky‟); Thimbonde Thimonga („Thimbonde‟) and Titus

Muwara („Titus‟); the latter being the younger brother of the deceased, then

aged 15 years. Nicky and Thimbonde were turning 17 later that year whilst

the accused was one year older. It is common cause that Nicky, Thimbonde

and Titus came from the boys‟ hostel, seemingly so that Titus could get some

food from his sister, the deceased. Titus could not find the deceased and

Nicky and Thimbonde in the mean time decided to return to their hostel,

leaving Titus behind. He followed them soon thereafter.

[10] Nicky and Thimbonde, who corroborate each other in material respects,

stated that as they approached a tree – still close to the girls‟ hostel – they

heard a voice saying “Why should you stab me with a knife?” whereupon

Thimbonde switched on the light of his mobile phone. They saw the accused

standing with the deceased under the tree, holding her on the hand. They

approached the two and Thimbonde returned his phone to his pocket. The

deceased then drew their attention to a screw driver which was stuck into the
 6

trunk of the tree. After Thimbonde lit up the screw driver in the tree with his

phone, he removed the screw driver and asked the accused what he was up

to. The accused replied that he should not be asked “funny/silly questions”

whereafter the deceased said that the accused was also having a knife on

him. Whilst still holding the deceased, the accused then took a knife from his

pocket and stabbed the deceased once, whereafter he turned to Titus, who in

the mean time, had joined them. He stabbed him on the upper arm and again

tried to stab him in the face, but was blocked, cutting only Titus‟s finger. The

deceased started crying and moved away, only to fall down near the dining

hall where she died. The accused then fled the scene and the boys went to

report the incident to Mr Kumbwa.

[11] Titus testified that on his way back he heard the deceased asking as to

why she should be stabbed with a knife and when he went closer, he found

the accused, deceased, Nicky and Thimbonde standing under a tree.

According to Thimbonde this was only after he had removed the screw driver

from the tree and that Titus therefore could not have seen or handled the

screw driver as Thimbonde had put it in his pocket. Titus confirmed that he

had not seen or handled any screw driver. He saw the accused holding the

deceased on her hand and after putting his hand into his pocket, he stabbed

the deceased who started crying and moved towards the dining hall where

she fell down. He wanted to help his sister when the accused turned to him

and stabbed him on the right upper arm. When the accused tried to stab him

in the face he blocked the blow with his arm and got cut on the finger. It is the
 7

State‟s case that neither Thimbonde nor Nicky did any thing at that stage and

they just remained standing there.

[12] Titus was examined by Dr Ncomanzi at Andara Hospital the same night

and his testimony is that there was a bruise on the index finger of the left hand

and a laceration on the right (upper) arm, exposing muscles. In his view it

was a deep wound, but not life threatening. In cross-examination he disputed

that the wound on the arm could be described as barely a “scratch”.

[13] As stated, the accused denied having made any remark on the way to

the hostel about him feeling like killing someone and testified that he was

asked by the deceased, with whom he was in a love relationship at the time,

to escort her back to the hostel. He waited outside for her and she joined him

under the tree near the hostel when she came out after dropping her stuff. He

said he was leaning against the trunk of this tree when Titus and Thimbonde

arrived and Titus all of a sudden pulled out a screw driver with which he tried

to stab the accused. He diverted the stab and the screw driver ended up

stuck in the trunk. Titus then punched him on the nose from which he was

bleeding. They exchanged fist blows and during this he took his knife out of

his pocket. He opened the blade with a motion (demonstrated in Court) which

can be described as using only one hand and while holding the handle (hilt),

“throwing” it downward, forcing the blade to open. I pause here to remark that

the spring action of the knife is no longer functioning properly, meaning that

the blade when open, easily falls back into the closed position when pointed

upward.
 8

[14] According to the accused, the time he had opened the blade, the

deceased moved in between him and Titus and then moved forward in an

embracing manner with both her arms; during which she got stabbed by the

knife. He said this was completely unintentional. She cried out and moved

away from the spot, going in the direction of the girls‟ hostel. Titus continued

fighting him while Thimbonde was busy removing the screw driver from the

trunk. During one of the punches Titus threw at him, he was “scratched” on

his finger. Titus then came forward in a stooping position wanting to put his

arms around the accused and in this process he was again “scratched” on his

upper arm. When he retreated the accused managed to run away.

[15] The accused furthermore denied that the deceased, while under the tree

with him, uttered words to the effect that the accused wanted to stab her with

a knife as testified to by some State witnesses. Accused also disputes the

evidence that Nicky was present and that he witnessed the stabbing incident

as claimed by him and others.

[16] In his plea explanation accused said that only after Titus‟s companion

(Thimbonde) had pulled the screw driver from the trunk and was coming

towards him, he realised that his life was in danger and took the knife out of

his pocket. It was only thereafter that the deceased “walked into the knife”.

Contrary thereto, he testified that after the deceased was stabbed he noticed

Thimbonde approaching with the screw driver. He went on and confirmed

that the screw driver was only pulled from the trunk after the deceased had
 9

been stabbed and that he took out his knife to defend him against Titus, not

Thimbonde. He was swinging the knife from side to side in front of him and

after Titus got hurt he retreated, giving the accused time to run away – even

before Thimbonde could do anything. During the cross-examination of Titus,

defence counsel had put it to him that the reason why the accused stabbed or

scratched Titus was because he thought that Thimbonde would use the

screw driver. This also differs from the two abovementioned versions. If

Thimbonde only took possession of the screw driver after the deceased had

been stabbed, then this begs the question why the accused in the first

instance resorted to his knife – to defend him against Titus who was unarmed,

posing no real threat to him at that stage? In view thereof, can the accused

rely on private defence as a ground of justification?

[17] Despite having raised this defence, the burden of proof remains on the

State to show beyond a reasonable doubt that the accused did not act in self

defence and that his actions, in respect of both charges, were unlawful.

[18] On count 1 the accused stands charged with murder read with the

provisions of the Combating of Domestic Violence Act, 2004 („the Act‟) which,

on Mr Lisulo’s submissions, is solely based on the ex-love relationship

between the accused and the deceased; which, on the strength of the State‟s

case, was terminated at some stage prior to the commission of the offence. It

was contended that the provisions of the Act still find application particularly

because of the provisions set out in subsection 2, referring to a “past love

relationship”. A domestic relationship is defined in s 3 of the Act in the

following terms:

“For the purposes of this Act a person is in a "domestic relationship" with

another person if, subject to subsection (2)-

……

(f) they, being of different sexes, are or were in an actual or a perceived

intimate or romantic relationship.”

Subsection 2 reads:

“Subject to subsection (3), where a "domestic relationship" is based directly

or indirectly on past marriage or engagement, past cohabitation or any other

past intimate relationship, the "domestic relationship" continues for one year

after the dissolution of the marriage or engagement, the cessation of

cohabitation or the end of any other intimate relationship, but, where a child is

born to any couple, their "domestic relationship" continues throughout the

lifetime of that child or for one year after the death of the child.”

(emphasis provided)

[19] Although evidence has been adduced by State witnesses of a past love

relationship between the accused and the deceased, and an existing

relationship according to the accused, none of these witnesses referred to

that relationship as being intimate. Whereas the domestic relationship relied

upon by the State in this instance is directly based on a past or terminated

relationship between the parties, it would only constitute a “domestic

relationship” in the context of the Act, if it had been intimate in nature and not
 11

merely a love relationship between the parties. In the absence of such

evidence, the love relationship testified upon by the witnesses in these

proceedings, in my view, falls outside the ambit of a domestic relationship as

defined by the Act; hence, it was not open to the State to invoke the

provisions of the Act in circumstances not provided for in the Act itself.

[20] The issues for determination by this Court are whether the accused‟s

actions during which the deceased was fatally stabbed with a knife; and the

injuries inflicted on the person of Titus, were indeed unlawful, as alleged by

the State.

[21] I do not consider the evidence given by the witnesses Veronica and

Namuthinda regarding their journey to the hostel and in whose company they

were at the time, and the discrepancies in their evidence, to be material to the

determination of this case. This much has been conceded by Mr Lisulo,

appearing for the State. It seems to me that the only purpose of leading the

evidence of these two witnesses was to demonstrate the accused‟s

demeanour earlier in the day, particularly where reference was made about

him uttering words to the effect that he could do whatever he felt like, even if it

were to kill a teacher. Not only does the accused dispute the testimony given

by the two witnesses, but I am also unable to see any connection between the

events or utterances made earlier and the stabbing incidents, for if these

words had indeed been spoken by the accused, it clearly was not directed at

any of the victims serving as a premonition to any one of them. In the

circumstances, the evidence given by the witnesses Veronica and

Namuthinda, deserves no further consideration and can safely be ignored.

[22] How a court ought to approach a criminal case on fact where there is a

conflict of fact between the evidence of the State witnesses and that of the

accused was stated in the oft-quoted case of S v Singh1 where the learned

judge says the following at 228F-G:

“It is quite impermissible to approach such a case thus: because the court is

satisfied as to the reliability and the credibility of the State witnesses that,

therefore, the defence witnesses, including the accused, must be rejected.

The proper approach in a case such as this is for the court to apply its mind

not only to the merits and the demerits of the State and the defence

witnesses but also to the probabilities of the case. It is only after so applying

its mind that a court would be justified in reaching a conclusion as to whether

the guilt of an accused has been established beyond all reasonable doubt.”

[23] In S v Chabalala2, Heher AJA in the same vein stated the following:

“The correct approach is to weigh up all the elements which point towards the

guilt of the accused against all those which are indicative of his innocence,

taking proper account of inherent strengths and weaknesses, probabilities

and improbabilities on both sides and, having done so, to decide whether the

balance weighs so heavily in favour of the State as to exclude any reasonable

doubt about the accused's guilt. The result may prove that one scrap of

1
1975 (1) SA 227 (N)
2
2003 (1) SACR 134 (SCA) at 140a-b
 13

evidence or one defect in the case for either party (such as the failure to call a

material witness concerning an identity parade) was decisive but that can only

be an ex post facto determination and a trial court (and counsel) should avoid

the temptation to latch on to one (apparently) obvious aspect without

assessing it in the context of the full picture presented in evidence.”

See also: Sakusheka and Another v Minister of Home Affairs3 where the

Court, faced with two mutually destructive versions, adopted the dictum from

Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and

Others.4

[24] In my evaluation of the evidence adduced in casu, I shall adopt the

approach set out in the aforementioned cases.

[25] As regards the events surrounding the stabbing incidents there are two

opposing versions namely, the evidence given by Thimbonde, Nicky and

Titus, opposed to the accused‟s version. Ms Mainga highlighted

discrepancies in the evidence of the respective State witnesses and submitted

that these were material. Furthermore, that the witnesses were bias as the

deceased was either related to them or a friend; hence, their evidence stands

to be rejected in favour of the accused‟s version. Mr Lisulo, on the contrary

held the view that the discrepancies in the evidence of the State witnesses

were immaterial and whereas their evidence is corroborated, compared to the

3
2009 (2) NR 524 (HC)
4
2003 (1) 11 (SCA) at 14I-15D
 14

accused being the only defence witness, the Court must find in favour of the

State.

[26] The discrepancies relied on by the defence in order to discredit the

State witnesses turn on the sequence in which the events took place and why

Titus, who was near or at the scene, did not make the same observations as

Thimbonde and Nicky. This mainly arose from Titus‟s evidence that he – as

Thimbonde and Nicky who were walking in from of him – also heard words to

the effect that the accused wanted to stab the deceased with a knife;

therefore, he must have made the same observations in the circumstances.

This argument loses sight of the evidence of all three State witnesses that

Titus remained behind at the girls‟ hostel and only arrived at the tree after

Thimbonde and Nicky. The fact that he heard the deceased speaking does

not mean that he therefore had to be with the others, because it is not known

how far he was behind and how loud the deceased was speaking. In these

circumstances it seems quite possible that some events could have taken

place in his absence – such as the complainant drawing Thimbonde and

Nicky‟s attention to the screw driver stabbed in the tree trunk and Thimbonde

removing it. This could have happened within a few seconds and thus, it is

quite possible that when Titus arrived at the tree, the screw driver was already

safely in Thimbonde‟s pocket where it remained until handed over to a

teacher. It must be borne in mind that these events played out in darkness or

more correctly put, in circumstances of poor visibility, except when Thimbonde

had made light with his mobile phone prior to Titus‟s arrival. With visibility

clearly impaired, one is inclined to think that in order to see what was
 15

happening between those present under the tree, they had to be close to

each other. This, to a certain extent, could possibly explain minor differences

in the evidence of the witnesses.

[27] After giving due consideration to the discrepancies between the

evidence of the State witnesses pointed out by the defence, I am not

persuaded that it impacts on the credibility of the witnesses to the extent that

their evidence should be ignored as being untruthful. Given the

circumstances surrounding the events and that it played out in a short period

of time in which things happened in quick succession, it seems to me, that

honest mistakes could have found its way into the testimony of some of the

witnesses. Whether it makes their testimony unreliable remains to be

considered and must be evaluated in the context of the evidence as a whole.

[28] The three State witnesses corroborate one another on material aspects

of their evidence, to wit: The deceased asking the accused why she should be

stabbed with a knife, which prompted them to approach the accused and the

deceased standing together under a tree. When the deceased referred to the

accused being in possession of a knife, he immediately thereafter took the

knife from his pocket and stabbed her once; whereafter he turned to Titus and

stabbed him. They also dispute allegations that Nicky was not present and

that the accused came under attack from Titus who was armed with a screw

driver. Thimbonde elaborated on this point saying that Titus was too young to

fight the accused and that he was also too short to have stabbed the screw
 16

driver into the trunk of the tree at the height from which Thimbonde removed

it. His evidence on this point remained unchallenged.

[29] The evidence of these witnesses about them going to the girls‟ hostel

together in order to collect food (maize) and that Titus remained behind, was

not challenged by the accused. It was not suggested to any one of the

witnesses that they had gone there in search of the accused and to sort him

out for having a love relationship with the deceased, the sister to Titus – as

speculated on by the accused. This would imply that Titus had armed himself

with a screw driver beforehand and teamed up with Thimbonde to assist him.

In these circumstances one would have expected that Thimbonde would also

have armed himself with some weapon to either use against the accused or to

defend himself with, should it become necessary. Clearly, this was not the

case. Had that been their plan of action, then it defeats all logic as to why

they parted company and Thimbonde going out in front, instead of them

sticking together. It is furthermore clear that the witnesses by chance came

upon the accused and the deceased standing under the tree; it did not come

as a result of any search conducted for the accused by them. They were

standing in the dark about 5 metres from the road the witnesses were on and

it was only when the complainant asked the accused why she had to be

stabbed that their attention was drawn to the couple. It seems to me

reasonable to accept that something must have happened, not only drawing

their attention, but which prompted them to go closer – for instance,

something like the deceased has said about her being threatened.
 17

[30] It is the accused‟s case that Nicky was not present at any stage of the

events taking place that evening. I can think of no reason why he would place

himself at an unknown murder scene and fabricate evidence just because he

was related to the deceased. I consider such conduct to be most improbable.

I can find no reason to reject the corroborated evidence of three State

witnesses saying that Nicky was present; neither has it been shown through

cross-examination that they were fabricating evidence in this regard. On the

State version there was a reason why Nicky was with Thimbonde at the time –

having come to the hostel to collect food – and despite the accused‟s blunt

denial, there is nothing showing otherwise. I accordingly find that Nicky was

indeed present at the time and thus in a position to make his own

observations of the stabbing incident.

[31] The defence‟s criticism pertaining to the credibility was particularly

levelled against Titus, who was made out to be the attacker. Besides the

reasons already mentioned about the State witnesses meeting with the

accused by chance, the only reason the accused could come up with as to

why Titus would attack him (on sight), was because of the love relationship

the accused had with his sister. When questioned on how he came to that

conclusion, he explained that it was what he thought could be the reason.

Clearly there is no merit in that contention and neither was this put to the

witness when he testified. The alleged attack by Titus on the accused would

thus lack motive. There are also other factors which tend to reduce the

possibilities of Titus launching such an attack on the accused. Firstly, he was

two years younger than the accused, aged 15 years, and although both must
 18

have grown somewhat from then to now, it is clear from their appearances in

Court that Titus is also of smaller build than the accused. This was in fact

pointed out by Thimbonde who, during his testimony, said that Titus was still

too young to fight and not tall enough to reach the screw driver where it was

stabbed into the tree trunk. Secondly, it seems to me most unlikely that a

young boy of that age would have the courage to fight an older boy armed

with a knife and who had already injured another by stabbing the deceased.

Not only did he try to punch the accused swinging the knife in front of him

from side-to-side, but then tried to tackle him, opening up his back and upper-

body to his knife-swinging opponent. Again, according to the accused, Titus

had walked into the knife – like the deceased did – resulting in the “scratch”

injury to the right upper arm. The injury sustained by Titus is, according to the

medical report and evidence given by Dr Ncomazi, a far cry from being a

“scratch” and neither does it support the accused‟s version as to the manner

in which it was inflicted.

[32] The accused in Court demonstrated the manner in which he held the

knife the time the deceased, as well as Titus, were stabbed. I did not find the

demonstration supporting the accused‟s version on this point convincing,

because the blade of the knife, which had lost its spring action, kept on

closing as it swung sideways in front of him, obviously reducing the chances

of someone “walking into the open blade” accidentally. It seems to me, even

where two persons would “walk into the knife” accidentally (as claimed by the

accused), that the injuries sustained in the process, in all probability, would be

less serious than what has been inflicted on the victims in the present
 19

instance. Other factors such as the shape of the blade and the force of the

impact would obviously play a role, but in this instance the depth of the stab

wound inflicted to the deceased‟s body exceeds the length of the blade. This

could only have been brought about by the application of severe force;

something I find to be highly unlikely of a person going forward putting his/her

arms around another in an embracing manner.

[33] I have already alluded to the contradicting versions given by the

accused as to why he took the knife from his pocket. Despite saying in his

plea explanation that the knife “unfortunately opened”, he demonstrated in

Court how he intentionally opened it in a throwing motion and testified that it

was at this stage that the deceased embraced him. On the latter version

there is nothing suggesting that the knife opened “unfortunately” as he

deliberately opened it in order to use it in his defence against Titus. At that

stage Titus had punched him on the nose and they were exchanging blows;

which seem to fall far short of a life threatening situation. Although the

impression was gained from his plea explanation that the main reason why he

decided to resort to his knife was because Thimbonde had pulled the screw

driver out of the tree and posed a threat to him, a different picture emerged

during cross-examination where he said that it was only after the deceased

had been stabbed that he saw Thimbonde with the screw driver whilst coming

towards him, but that he managed to run away before he could reach him.

Besides it being contradictory, the explanation has a hollow ring to it, because

on his own version, the tree was immediately behind him where the screw

driver was stuck in and there would have been no need for Thimbonde to
 20

“approach him with the screw driver” as they were at all times at arms length

from one another. Hence, he could have been stabbed from behind if that

was Thimbonde‟s intention.

[34] From the above, it is clear that the accused contradicted himself on

crucial aspects of his evidence and on his own version, he took the knife from

his pocket to frighten away Titus by swinging the knife side-ways in front of

him. He did not say that he intentionally inflicted any injury on Titus whilst

acting in self-defence; on the contrary, besides holding the knife in front of

him, there was no defensive act on his part as, according to him, Titus had

punched into the knife and thereafter moved into it. On these facts, private

defence finds no application. The accused‟s testimony simply does not

measure up to his earlier plea explanation about him having acted in private

defence.

[35] It is common cause that the accused at the time when the deceased

was stabbed, realised that she had been injured but did not go to where she

was. The reason, he said, was that he foresaw the possibility that he again

would come under attack. In these circumstances one might have expected

from the accused to look for help or to make a report to someone in authority

explaining the predicament he had found himself in and the unfortunate result;

instead of running away. I find it difficult to associate such conduct with

innocence; neither did he use the first opportunity given to him to explain his

innocence to the police when charged. It is not suggested that he was under

any duty to do so, but that was the first opportunity he had to exculpate
 21

himself. When he pleaded to a charge of murder, he claimed to have acted in

private defence. Once again, that was not supported by his evidence, as Ms

Mainga rightly submitted; private defence finds no application in respect of the

murder charge.

[36] After due consideration of the totality of the evidence, the question the

Court must now decide is whether the accused‟s version is reasonably

possibly true?5 I have come to the conclusion that it is not, and the accused‟s

explanation pertaining to the circumstances surrounding both stabbing

incidents is accordingly rejected as false beyond a reasonable doubt. I am

convinced that the State succeeded in proving the accused‟s guilt in respect

of both charges, satisfying the test of proof beyond reasonable doubt.

[37] What remains to be considered is whether the accused had the required

intent when committing both crimes. Whereas the Court rejected the

accused‟s version of his stabbing of the deceased and Titus, the Court has to

infer the accused‟s intention from evidence relating to his outward conduct at

the time; as well as the circumstances surrounding the events. The test is a

subjective one and in order to decide by means of inferential reasoning what

the accused thought or foresaw when committing the prohibited acts, the

Court looks at objective factors such as the type of weapon used; at which

part of the body the attack was directed; the nature and seriousness of the

injury inflicted and the objective probabilities of the case.

5
R v Difford, 1937 AD 370 at 373; S v Haileka, 2007 (1) NR 55 (HC); S v Naftali, 1992 NR 299 (HC)
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[38] As regards the murder charge the accused made use of a pocket-knife

of which the blade length is 8.5 cm which he directed at the chest of the

deceased. The upper body of a human being is undoubtedly vulnerable to

penetrating wounds as the majority of vital organs are situated in this aspect

of the human anatomy. In the present instance medical evidence shows that

the knife penetrated the left side of the chest, passed through the left lobe of

the lung and perforated the heart. The depth of the wound is given at 10 cm,

which exceeds the actual blade length of the knife and as was argued by Mr

Lisulo, in my view correctly so, the only logical inference to be drawn from

these facts is that it required substantial force to inflict an injury of that nature

to the person of the deceased. When considered together with the evidence

about the deceased‟s question to the accused as to why she had to be

stabbed with a knife and his conduct subsequently, the facts point to and

support the inference that the accused had acted with direct intent when he

stabbed the deceased. I accordingly so find.

[39] Pertaining to count 2 the position is the same. The accused used the

same knife to inflict a deep stab wound to the upper arm of his victim, albeit

not life threatening. He thereafter tried to stab Titus in the face but was

unsuccessful as the blow was blocked, resulting only in a cut/bruise to the

finger. In these circumstances, there can be no doubt that the accused at the

time acted with the intent to cause grievous bodily harm to the person of Titus.

[40] In the result, the Court finds the accused guilty on:-
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Count 1: Murder

Count 2: Assault with intent to do grievous bodily harm

___________________________

LIEBENBERG, J
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ON BEHALF OF THE ACCUSED Ms I Mainga

Instructed by: Inonge Mainga Attorneys

ON BEHALF OF THE STATE Mr D Lisulo

Instructed by: Office of the Prosecutor-General