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IMMANUEL SHIKUNGA versus The State

IMMANUEL SHIKUNGA versus The State

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Published by André Le Roux

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Categories:Types, Research, Law
Published by: André Le Roux on Aug 10, 2009
Copyright:Attribution Non-commercial

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06/14/2010

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Coram: Mahomed
CJ, et
Dumbutshena, A.J.A,
et
Hannah A.J.A.Heard on: 1996/04/23
and 24
Delivered
on:
1997/08/20JUDGMENTMahomed
CJ
Before Strydom JP,
in the
court
a
quo,
two
persons appeared
on a
charge
of
murdering
one Ian
Scheepers
("the
deceased")
and a
second charge
of
robbery
of
the
deceased.
The
first accused
In the matter betweenIMMANUEL SHIKUNGA FIRST APPELLANTandTHE STATE FIRST RESPONDENT
IN THE SUPREME COURT OF NAMIBIA
v
Case
No.
SA 6/95
 
2was Asser Singanda
whom I shall continue to refer to as "the
 first
 accused". The second accused
was Immanuel Shikunga, and I shall continue to refer to him as the "second accused".At the conclusion of a long trial the first accused was acquitted on the count of murder butconvicted on the count of robbery and sentenced to 12 years imprisonment. There was an appealby the State, to this court, against the acquittal of the first accused on the murder count. I am inrespectful agreement with the judgement given by my brother Hannah upholding the appeal of theState against the acquittal of the first accused, and the order which he has proposed arisingtherefrom.The second accused was convicted on both counts by Strydom
JP.
On the count of murder he wassentenced to life imprisonment and on the robbery count he was sentenced to 16 yearsimprisonment. He appeals against both these convictions and the sentences.
This
judgment dealswith the case sought to be made on behalf of the second accused in this appeal.The material facts in support of the case sought to be made out by the State were indeed commoncause at the trial. The second accused had been working for the deceased. That employment wasterminated on 5 January 1993. Both accused had entered the house of
the
deceased on 30 July
1993.
The second accused inflicted a number of
stab
wounds on the deceased in consequenceof which the deceased died. A post-mortem examination showed that the deceased had beenstabbed 23 times. Both of the accused thereafter caused various goods belonging to the deceasedto be loaded onto the back of a van which also belonged to the deceased. That van was laterabandoned outside Omaruru and when it was discovered by the police blood stains were foundin the driver's compartment. The justification offered by the second accused for his conduct in
 
3killing
the
deceased was
that he had acted in self-defence.
His evidence was that he had visited the house of the deceased simply to collect certain moneyswhich were owing to him. The deceased had, however, acted violently by attacking him and hehad to stab the deceased to defend
himself.
He did not dispute taking the goods belonging to thedeceased, but his explanation was that this was done in compensation of the claim which he hadagainst the deceased.In my view the evidence and the objective circumstances do not support the case of the secondaccused based on self-defence.
(S vDe Oliveira
1993 (2) SACR 59 (A) at 63 h-i;
S
v
Motleleni
1976 (1) SA
403
(A) at 406C;
SvNtuli
1975 (1) SA 429 (A) at 436D-E;
S
v
Goliath,
1972 (3)SA
1
(A) at 11C; Burchell and Hunt,
SA Criminal Law and Procedure,
vol.
1
at 278; Burchelland Milton
Principles of Criminal Law
1st Ed, 1991 at 117.)..In the first place the second accused was a robust young man who was only 23 years old , thedeceased was much older. In a physical contest between the two the deceased would have beenat a disadvantage. Second: on the version given by the second accused the deceased used his fistsin attacking the accused. A knife which the deceased still had in his hand when he was interruptedin his dinner was never used by the deceased at all, it fell from the hand of the deceased duringthe scuffle and was used by the second accused to stab and kill the deceased. In the third placeit was the second accused who had the advantage of surprise, not the deceased. The secondaccused was not expected by the deceased at all. Fourthly, the second accused was not alonewhen the confrontation between him and the deceased developed. Although there was a disputeas to precisely what role the first accused played, what is clear is that he was always in a position

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