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VanWyk v The State

VanWyk v 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 Dec 19, 2010
Copyright:Attribution Non-commercial

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02/11/2013

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IN THE SUPREME COURT OF NAMIBIAIn
the
CRIMINAL APPEAL of:HENDRIK JACOBUS VAN WYK
versus
THE STATECORAM: BERKER, C.J.MAHOMED, A.J.A.ACKERMANN, A.J.A.
Delivered on: 1991.10.29
J
U
DGMENTACKERMANN
,
A.
J.
A. :
This is an appeal against theappellant's conviction in the High Court of murder andagainst his sentence of twelve years imprisonment.The appellant (as accused 1) was, together with four othermale persons, indicted in the High Court on a charge ofhaving murdered one JOHANNES HAUFIKU at Windhoek on the 27thOctober 1990.The appellant (to whom I shall refer as accused 1) and theother four accused all pleaded not guilty. At the time ofpleading a written statement made and signed by accused 1
was,
in terms of section 115(2) of the Criminal Procedure
Act,
handed in. In it accused 1, while denying allallegations against him, made the following formaladmissions in terms of section 220 of the Criminal Procedure
AppellantRespondent
 
2
Act:
1. "I was in Windhoek on the 27th October
1990".
2.
"I struck another person, whose identity was to meunknown, several times with my fist after heoriginally adopted a threatening attitude towardsme and a friend of mine".At the conclusion of the State case all the accused closedtheir cases without adducing any evidence. At theconclusion of the trial accused 2 and 3 were acquitted.Accused 1 was convicted of murder and sentenced to twelveyears inprisonment. Accused 4 was convicted of assault andaccused 5 of being an accessory after the fact to assaultwith intent to do grievous bodily harm. Accused 4 wassentenced to a fine and accused 5 to a fine as well as aperiod of imprisonment conditionally suspended onappropriate conditions.Only accused 1, leave having been granted by Frank, J. inthe Court a quo, has appealed to this Court.The corpse of the deceased was found by Warrant-officerCoraizin on a rubbish dump near the Windhoek/Gobabis mainroad at approximately 8 a.m. on the morning of Sunday 28thOctober 1990. The deceased's feet were bare and he waslying on his back. The surface of a gravel road,approximately one metre from where the deceased was lying,was disturbed. In the same area Detective Warrant-OfficerCoraizin saw a man's wrist-watch lying loose and alsonoticed a number of small spots which he described as blood
 
3
spots.
On the same
d
a
y
the
dece
a
sed's b
o
dy
was
identified
to him by Mr Julius Shipena, a friend of the deceased, aswell as by a brother of the deceased, a Mr Nujoma.On the 29th October 1990, Dr Linda Liebenberg, a medicalofficer in the employ of the Namibian Government, conducteda post mortem examination on the deceased's body. Atexamination the deceased's height was determined at 1,60metre and his mass at 57 kilogram. Dr Liebenberg could notestablish a time of death but ascribed the cause of death tobrain damage. The body exhibited multiple external
injuries.
There were bruises on the face and head,including a semi-circular bruise 40 millimeters in diameterin the middle of the back of the head, and scratches on the
nose,
shoulder and
arms.
There were tears through both
lips,
a tear of the left upper eyelid and a tear on theright elbow. The deceased's left cheek was swollen and asubcutaneous haematoma was present on the right side of hisback.Dr Liebenberg found multiple subcutaneous haematomas on theback of the deceased's head and on opening the skull shediscovered bilateral diffuse subdural and subarachnoidbleeding over both hemispheres of the brain. Blood waspresent in the mouth, tongue and pharynx as well as in the
oesophagus,
trachea and bronchi. The right anterior andleft posterior neck muscles were bruised. A small amount ofblood, mixed with food, was found in the stomach. The mid-abdominal mesentery was bruised.

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