A man from Rundu who was charged with murder but convicted on the lesser count of culpable homicide, for causing the death of his two-year-old niece on 4 April 2017 with an axe, was sentenced to an effective four years imprisonment.
Ndumba Paulus Muronga was sentenced to seven years, of which three years were suspended for three years, on condition that he is not convicted of culpable homicide during the period of suspension, by the Oshakati High Court acting judge Danie Small.
Muronga was charged with murder, read with the provisions of the Domestic Violence Act, when the deceased ran under an axe, he was wielding to cut wood. According to the judgment, Muronga was chopping wood with a traditional axe within a typical northern courtyard where two very young children, one being the deceased, were present.
Without considering the exact whereabouts of these young children or what risks his actions held for the children, he continued chopping wood and the deceased ran underneath the arc of his axe, causing a fatal injury to the top of her head.
According to the judge, he found that a reasonable possibility exists that the version of the accused is true and he thus cannot be convicted of murder as charged.
However, he said, the actual consequences of his negligence cannot be disregarded.
“If they have been serious and particularly if the accused’s negligence resulted in serious injury or loss of life, such consequences will almost inevitably constitute an aggravating factor warranting a more severe sentence than might have otherwise been imposed.” According to judge Small, he considers the facts of this matter different from the typical case of culpable homicide where an accused deliberately and intentionally perpetrates an assault but had no intention of killing the deceased and is found to have negligently caused the death of another.
In this case, the judge said, the accused did not intend to kill or injure the deceased. However, he said, a reasonable man would not have engaged with such a dangerous activity in the vicinity of small children as he would have foreseen an injury and possible death of another.
“Or he would have safeguarded against such an eventuality happening,” he said.
“The accused did not comply with this reasonable man standard and was found to have negligently inflicted the wound on the deceased’s head, thus killing her.”
The judge further said that while the accused’s actions do not fall under the definition of domestic violence, his lack of remorse is indicative of someone who does not accept responsibility for what he has done.
According to the judge, Muronga regrets what he has done and that the sentence must show him that he committed a serious offence and needs to take responsibility for it.
In the end, the judge said, a fine as suggested is just not a viable sentence and that a custodial sentence is unavoidable, but that he will suspend it partially to keep the accused from committing similar offences.