Windhoek-Judge Herman January said it is axiomatic (self-evident) that an act of defence may not be more harmful than necessary in order to ward off an attack, when he rejected a defence of self-defence by an Eenhana resident who is before the High Court accused of murder.
Judge January convicted Ndilinawa Gabriel of murder with direct intent in connection with the killing of Petrus Nameto Shuunto with a panga on December 4, 2011 at Okatwitwi Location.
According to the State, the accused was at Okatwitwi Location and chased the deceased together with another person. At one stage the deceased turned around and the accused cut him with a panga, once on the neck, whereafter he (the accused) ran away with the panga, leaving behind his sandals and T-shirt. The deceased died on the scene.
Gabriel pleaded not guilty and entered a plea of self-defence. Testifying in his own defence, he said he cut the deceased in self-defence.
He told the court the deceased assaulted him by kicking him on the right side of the ribs and he cut the deceased because he was angry and also because he wanted the deceased to let go of him. He further testified that he did not intend to hack the deceased on the neck, but rather on the shoulder.
He further said that he did not know what the deceased’s intention was and wanted to cut the deceased on the shoulder, because the deceased had stormed towards him and he did not intend to kill the man.
Judge January stated that it was not in dispute that three persons approached the cuca shop. He said it is also common cause the deceased confronted the accused about his girlfriend and an argument ensued whereupon the deceased started pushing the accused to the back of the cuca shop and kicked the accused in the stomach or the ribcage.
The accused then moved backwards and took the panga that was in his waist and he cut the deceased on the neck, whereupon the deceased fell down and the accused ran away.
The deceased had no weapon on him, the judge said, adding that the court needs to consider whether at the crucial moment of executing the cut with the panga, the accused’s version is reasonably possibly true that he acted in self-defence.
According to the judge, he found that even though the deceased had kicked the accused in the stomach or ribcage, the evidence indicates that the deceased, after the kick, was just standing and not attacking.
“There was therefore no imminent attack at the time the deceased was cut with the panga. Even if I am wrong in this finding I get the impression that the accused is exaggerating an attack, if he was attacked at all,” the judge noted.
He further said although the accused denied intention to kill it was a well-known secret that an accused seldom admits to the intention to kill. In the end, the judge said, the accused did foresee the possibility that the deceased could be fatally injured and nevertheless proceeded to recklessly inflict the wound with the panga, causing the death of Petrus Shuunto.