The application in which British millionaire Harvey Boulter is asking the High Court to overturn the decision by Prosecutor General Martha Imalwa to prosecute him on several charges including murder, was heard Wednesday.
Windhoek High Court Judge Herman Oosthuizen heard arguments from Sisa Namandje on behalf of Boulter, and Danie Small on behalf of the PG, on the merits of the matter at the SADC Court in a review application by Boulter on the decision of the PG to continue prosecuting him over allegations surrounding a shooting incident which resulted in the death of his farm manager in 2021.
He reserved his judgement until 17 May.
Boulter has already pleaded not guilty to the charges in the lower court. When this matter was transferred to the High Court, Boulter filed a review application against Imalwa’s decision to arraign and have him stand trial on charges of murder, possession of a firearm and ammunition without a licence, and handling a firearm while under the influence of intoxicating liquor.
Boulter, who is currently out on bail, is alleged to have shot and killed his farm manager Gerhard van Wyk on 27 April 2021.
Van Wyk was shot in the abdomen at Boulter’s sprawling multi-million-dollar property in the Kamanjab area.
He died on his way to hospital. It is alleged that the incident occurred after an altercation during a braai held at the farm.
Namandje submitted that his client denies that he intentionally fired the shot which killed Van Wyk. He argued that the prosecution continued to prosecute, despite having the facts at their disposal. Furthermore, they did not make out a reasonable and probable cause to prosecute, said Namandje, instructed by Kadhila Amoomo.
The decision to prosecute, Boulter claims, was made on the premise that he intentionally discharged a shot which struck his manager, in the circumstances where there was no evidence that he was responsible for any intentional act.
The lawyer said it is not clear what caused the shot to be discharged from the firearm. This, he added, is a live and contentious issue, and the State should have conducted a thorough and careful investigation to determine this very issue. As it stands, Namandje argued, there is nothing in the docket confirming and supporting the allegations of murder against his client.
Concerning the arms and ammunition charges, he said the firearm and ammunition were in his client’s possession because he is the “beneficial” owner of the items, as he is the director of the company that is licensed to own the items in question.
The PG, on the other hand, claimed through Small that she had enough evidence to prosecute. She is entitled to bring charges when evidence suggests that a reasonable court, acting carefully, may convict.
At this stage, she said, the test is not prima facie evidence, but reasonable apprehension that an accused is guilty of the offences he’s charged with.
Small argued that Imalwa considered the totality of the evidence presented to her, and made an informed decision to bring the charges against Boulter.
It is not her job to evaluate the evidence, he said, but she must present the evidence she has to a competent court that will decide the guilt or innocence of an accused. For that reason, the court must allow the prosecution to go ahead.
Small said the applicant (Boulter) has the right not to incriminate himself by not testifying in open court, and will have the opportunity to apply for a section 174 discharge at the end of the State’s case.
But, he said, the evidence in the docket compels the PG to bring a case before a competent court to evaluate the evidence and come to a just conclusion.
– rrouth@nepc.com.na