Three Supreme Court judges on Friday increased the 10-year sentences imposed on three City Police officers for the murder of 17-year-old Mandela Ramakutla in 2013 to 18 years.

In 2020, Windhoek High Court Judge Dinnah Usiku found Werner Sheetekela, Kleopas Kapalanga and Elia Nakale guilty of murder without direct intent (dollus eventualis) and sentenced them to 14 years each, with four years suspended for five years on the normal conditions. Not satisfied with the sentence, State Advocate Cliff Lutibezi approached the Supreme Court to revisit the sentences, calling it disproportionate to the crime. Judge of Appeal Dave Smuts, with Deputy Chief Justice Petrus Damaseb and Judge of Appeal Sylvester Mainga concurring, said the crux of the appeal is whether the trial judge misdirected herself when she found that intent was not proven in the killing, and for that reason imposed a lesser sentence. 

While the trial court correctly stressed that police officers must be accountable for their actions, Judge Smuts stated that it misdirected itself regarding the presence of dollus eventualis as a mitigating factor. He said it should have instead approached it with the proper regard for all the circumstances of the crime – in this instance perpetuated by police officers upon a 17-year-old youth in their custody. 

“By approaching sentencing in this way, the trial court misdirected itself, and the Supreme Court is justified to intervene,” the judge stated. 

Smuts said the cumulative impact of the aggravating circumstances would require the imposition of a long term of imprisonment, and of considerably greater duration than the 10 years imposed by the trial court. 

“Had I sat as a court of first instance, I would have imposed an effective term of 18 years imprisonment without a suspension,” Smuts noted emphatically. 

He then ordered that the sentence of the trial court be replaced with a sentence of 18 years, without any suspensions. He further ordered that the sentences be backdated to 8 July 2020. Smuts said it is clear that the trial court saw the conviction of murder dollus eventualis (without direct intent) as a mitigating factor, and sentenced the trio according to ‘the common practice’ in respect of such convictions, attracting lesser sentences than those with direct intent.  However, the Supreme Court stated that approaching sentencing for murder without direct intent on the basis of ‘common practice’ to justify a lesser sentence without regard to all the circumstances, amounts to a misdirection of the trial court.  “In this matter, the absence of direct intent would need to be considered in the context of the several aggravating factors of the murder,” the judge emphasised.

“There is in this matter likewise a plainly brutal and cruel attack over a sustained period where the respondents foresaw the death of the deceased as a clear possibility, and reconciled themselves to that. These appalling features of the crime are compounded by the further aggravating factors that the deceased was a 17-year-old youth who was handcuffed and in their custody as police officers, which also amounted to an egregious abuse of power,” Smuts stressed.  He said the deceased was a healthy 17-year-old boy when the respondents arrested him on suspicion of involvement in the theft of a laptop. Within a matter of hours, he was handed over by them to the Windhoek police station charge office in a comatose state and died nine days later in hospital, never recovering his consciousness as a result of the severe head injuries he sustained. 

- rrouth@nepc.com.na