Windhoek
An Outjo resident is breathing fresh air again after two High Court judges ruled in his favour in an appeal on a conviction for murder.
Tangeni Toivo was convicted of murder by the Regional Court in Otjiwarongo on a count of murder and sentenced to 15 years imprisonment in November 2014.
He appealed both the conviction and the sentence and said the trial court erred when it found there was no threat against his life.
High Court judges Nate Ndauendapo and Christi Liebenberg upheld his appeal and ruled that the presiding magistrate erred when she found Toivo was not in a life-threatening situation and did not act in self-defence.
Tangeni claimed he was at home when Nicodemus Velishevo, 33, and his former girlfriend arrived at his house and threatened him that they would burn the house down or shoot him if he did not open the door for them.
According to what Toivo told the Regional Court at the time, the deceased and Rebecca Hoadoms arrived at his house and demanded a cell phone from him, which apparently belonged to Velishevo.
When he refused to open the door Hoadoms started to throw stones at the door, after which Velishevo forced his way into the house by kicking open the door to the house.
He said after it got quiet outside he looked out and was hit with a stone in his face causing him to fall backwards. A bloodied stone was later found inside his house, the court was told.
After he fell down, Toivo narrated, Velishevo jumped on him, pinning him down. When he saw that Velishevo was armed with a knife, Toivo stated, he reached for a knife on a nearby table and stabbed Velishevo once in the chest.
Velishevo then got off from him and walked a few feet before he collapsed and died, the court was told.
The trial magistrate, however, did not see it Toivo’s way and questioned his reasons for not disclosing his defence at the onset of his trial. She was of the opinion his failure to disclose his defence could be a ploy to mislead the court or to find loopholes in the State’s case.
According to Judge Liebenberg, who wrote the judgment, an accused has the right to remain silent and is under no duty to help prove the State’s case, according to Article 12 of the Namibian Constitution, which is aimed at protecting an accused person’s fundamental rights and freedoms.
He said the conclusion reached by the magistrate that it was a failure on the part of the accused not to disclose his defence in a plea explanation clearly constituted a material misdirection.
Judge Liebenberg said when considering the nature of the irregularity and its effects on the result of the trial, it appears to him reasonably possible that it clouded the trial court’s mind and impacted on its assessment of Toivo’s credibility as a witness.
The judge further found that from the facts presented at court the trial court misdirected itself when it found that the conditions for self-defence did not exist, or that Toivo exceeded the bounds thereof.
“On the evidence presented the court had no reason in law to reject the appellants’ defence on the strength of Rebecca’s evidence, which considered together with the rest of the evidence, was far from satisfactory in material respects,” Judge Liebenberg stated.
In the end, he said, he is of the view that the State failed in its onus to prove beyond reasonable doubt that Toivo did not act in self-defence and thus acquitted him.
Legal Aid lawyer Pombili Shipila represented Toivo in his appeal. State advocate Henry Muhongo represented the State.