Windhoek High Court Judge Naomi Shivute and Judge Herman January dismissed an appeal against the conviction for murder and the 18-year sentence a Rundu resident lodged.
Muronga Moses was convicted in the Rundu Regional Court of murdering the deceased by stabbing him once in the back with a knife and sentenced to 18 years imprisonment.
Not satisfied with either conviction nor sentence he appealed both in the Windhoek High Court citing that the trial court erred when it found that he did not act in self-defence when he stabbed Dinyando Allois Hausiku who was busy assaulting his sister and that the sentence was inappropriate and harsh.
According to judge Shivute, the appeal can only succeed if the requirements of self-defence are met. These, she said, are that there must be an unlawful attack upon a legal interest, which has commenced or was imminent and the defence must be directed against the attacker and necessary to avert the attack and the means used must be necessary in the circumstances.
Applying the facts of this case to the legal principles of self-defence, the determining factor is whether in the circumstances the appellant reasonably believed that his life and that of his sister were in imminent danger and whether it could be said that a reasonable person in the position of the appellant would have acted the way he did, the judge stated and added that there is no doubt that the deceased was the aggressor.
However, she said, looking at the evidence placed before the trial court and although initially there was an unlawful attack on the appellant’s sister, there is evidence from three State witnesses that at the time the appellant stabbed the deceased, the fight between his sister and the deceased had already ceased. “Therefore, the lives of the appellant and that of his sister were not in imminent danger at the time the deceased was stabbed as there was a turn of events, namely the fight had ceased,” the judge stated.
She went on to say that the trial magistrate carefully evaluated the evidence and correctly convicted the appellant and rejected his private defence, because both the requirements were not met.
Therefore, she said, the appeal court finds no misdirection on the part of the magistrate and see no reason to interfere with its decision.
With regards to the sentence, Shivute said sentencing is at the sole discretion of a trial court and unless there is a serious misdirection by the trial court, no other court may interfere with its discretion. In the current case, she said, there is no such misdirection and she sees no reason to interfere with the sentence imposed.
Moses was represented by Percy Muluti on instructions of Legal Aid and the State by Johannes Kalipi.
-rrouth@nepc.com.na