Iuze Mukube

A male accused succeeded on Friday in appealing his conviction on a murder charge relating to an alleged assault that left Hiskia Mangundu Kamambo dead in 2018.

The murder conviction of Tjihonyi Robert Jatwimana was replaced with a conviction of assault with intent to do grievous bodily harm.

Additionally, Windhoek High Court Judge Eileen Rakow, with Judge Claudia Claasen concurring,setasidehissentence of 16 years’ imprisonment for murder and replaced it with a sentence of 24 months imprisonment for assault.

The sentence was dated 14 May 2024.The appeal followed from a conviction and sentencing of Jatwimana and a co-accused in the Rundu Regional Court on 10 May 2024 on a murder charge.

The charge was in relation to that Jatwimana and his co-accused, Elifas Kudumo Thidjukwe, allegedly killed Kamambo, who seemingly passed away after being brutally assaulted by the two accused.

The deceased was reported to have arrived alive and while in transit to the hospital from the scene of the crime, but was presumed dead after admission to the Rundu State Hospital.

However, it was from there that the appellant, through his lawyer, Mbanga Siyomunji, had argued that there was

no evidence led by the State covering the period between admission of the deceased to the post mortem conducted by a medical practitioner.

Siyomunji argued that the identity of the person carried from the scene of crime to the hospital was not proven due to neither the State witnesses in their totality nor the accused persons testified that the person carried from the scene was Kamambo.

The lawyer contended that the chain of custody of the deceased or the evidence was not proven.

It was argued that there was no evidence from all personnel involved as to when the person carried to the hospital died and this was also left blank on the post-mortem examination report.

Siyomunji argued that the magistrate erred in finding that the appellant was one of the assailants who assaulted the person at Spar Corner and in doubting the appellant’s version over a State witness’s version.

He argued that the State failed to prove the case beyond reasonable doubt and submitted that proper scrutiny of the evidence pointed to accused one as the assailant of the deceased and that the appellant merely stopped the fight.

He also argued the presiding magistrate was not impartial and descended into the area, which infringed the appellant’s right to a fair trial, as court records showed that the magistrate presumably led evidence on behalf of the prosecutor.

Judge Rakow also found that there was no chain of evidence showing that it was indeed the same person, the one subjected to the autopsy and the other assaulted by the appellant and his co-accused.

“The court is satisfied that there is indeed enough evidence to establish the offence of assault with the intent to cause grievous bodily harm.”

This is established by the manner in which the accused assaulted the person lying on the ground and for that reason, the conviction for the offence of murder is substituted with a conviction of assault, she stated. The State was represented by Anna Amukugo.

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