Roland Routh
Windhoek-The Namibian Supreme Court has upheld an appeal by Deon Engelbrecht after he served more than 13 years of a 15-year sentence for murder.
Ascribing the delay in bringing the appeal judgment, Judge of Appeal Sylvester Mainga said the writing of the judgement was allocated to now retired Judge Sarel Maritz in November 2012 by Chief Justice Peter Shivute, but because of medical reasons Judge Maritz was unable to comply.
The then 24-year-old Deon Engelbrecht was convicted by High Court Judge Nate Ndauendapo in 2009 and sentenced to 15 years in jail for the murder of 14-year-old Christo Moshoeshoe by stoning.
The partly naked body of the deceased was found near Gammams Training Centre in the Southern Industrial Area on December 23, 2003, with bloodstained rocks close to the body.
At the time it was reported Engelbrecht had sodomised the deceased, but Judge Ndauendapo acquitted him on a charge of rape.
The judge however admitted a ‘confession’ Engelbrecht made to a police officer, Inspector Oelofse, and consequently convicted him on the basis of the ‘confession’.
Engelbrecht appealed with leave of the High Court to the Supreme Court against the conviction and the appeal was heard by three judges of the Supreme Court on November 1, 2012. In the appeal submitted by Advocate Winnie Christiaans, who also represented him in his trial, Engelbrecht attacked the admissibility of the so-called confession.
He argued that the High Court judge was wrong to admit the so-called confession as it was not proved beyond a reasonable doubt that his rights were properly explained to him, that he was not unduly influenced to make the confession, that he was in his sound and sober senses when he made the confession and that he made the confession freely plus that there is no evidence outside the confession that he committed the offence.
In the disputed confession Engelbrecht admitted that he was in the company of the deceased on the day in question, but they parted ways after using drugs including dagga and mandrax tablets. He however later returned to the scene, he said, where he found the deceased had passed out and proceeded to have anal intercourse with him.
During the act, he said, the deceased woke up and started to fight him
According to Engelbrecht, he then threw a piece of paving at the deceased and when the deceased fell down took a huge rock and threw it at the head of the deceased.
During the trial it was discovered the rock weighed more than 18kg. Engelbrecht, however, disputed the confession and said he was not told of his constitutional right to legal representation before the statement was taken.
According to Judge Mainga, it is trite law that an accused must be fully and properly advised to their legal rights, including the right to have a lawyer present during interrogation and the taking of a confession.
In this instance it was not done and the result thereof is that the so-called confession the trial court relied upon must be ruled inadmissible and the conviction be set aside.
“It is sad that those that are guilty should walk free due to blunders occasioned by police officers in the investigation of crimes,” Judge Mainga concluded.