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S v Coetzee (CC13/2007) [2007] NAHC 35 (27 April 2007)

.RTF of original document

CASE NO.: CC 13/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:



THE STATE



and



CHRISTOFFEL COETZEE



CORAM:                     MULLER, J


Heard on:                          19-20; 25 April 2007


Delivered on:             27 April 2007
JUDGMENT
MULLER, J.: [1] The accused is charged with two counts, namely one of the murder of Alfred Charles Rieketts and of the attempted murder of his wife Juanita Marlene Coetzee. Both alleged offences occurred on 18 February 2005 at Makalani Real Estate flats in Ondangwa.

 [2] The accused pleaded not guilty to both offences and averred that he acted in self defence in respect of the charge of murder. He made the following admissions in respect of the first charge in terms of s220 of the Criminal Procedure Act, No 51 of 1977:
a)       the identity of the deceased;
b)       that the cause of death was as a result of the stab wound to the neck of the deceased;
c)       that he stabbed the deceased with a knife;
d)       that the body of the deceased did not receive any further injury until the post mortem was done;
e)       in respect of the attempted murder charge, he denied that he stabbed the complainant and assumes that the complainant could have received a blow during his altercation with the deceased.

 [3] Ms Kishi represented the accused and Ms Jacobs acted for the State.

[4] The first State witness was Constable Maria Shaningwa, who acted on a report and found the accused and his wife at the charge office of the Ondangwa police station. The accused informed her that he stabbed his wife’s friend to death with a knife at a house in Ondangwa. Both had injuries, the wife on the left side of her neck and left shoulder and there was fresh blood on her clothes and the accused had an injury on the left side of his neck and scratch wound on his hand. He said he was injured by the deceased. She went to the scene and found a dead body lying outside the house near a white Toyota bakkie. The body was lying in a pool of blood on his back. She identified this body as depicted on photo 1 of a photo plan that was handed in without any objection. A photo taken closer of the body showed a silver pocket knife in the deceased’s hand. Constable Shaningwa pointed out sand on the top of the deceased’s right hand and according to her it indicated that the knife was put into the deceased’s hand at a later stage. She established that the deceased was dead. Inside the flat she found a lot of blood in the kitchen, which is also depicted on photos 3 and 4. Her observation was that the deceased was stabbed and the knife inserted in his hand after he was stabbed. The body was removed to the mortuary after the photos were taken. Upon her return to the charge office she warned the accused in terms of Judges Rules and arrested him.

[5] The cross-examination of Constable Shaningwa was mainly directed at her observation that the knife was placed after the stabbing of the deceased, into his right hand and the accused’s denial that the was properly warned and arrested by Constable Shaningwa. She denied it and repeated that the accused was arrested by her after being warned.
[6] The doctor who examined the body of the deceased, Dr Yury Vasin, testified that he is a medical forensic officer at the mortuary of the Oshakati State Hospital. He found a stab wound on the left side of the neck of the deceased, which severed the main artery to the brain and described such a wound as one that would cause death to the victim, even if treated in hospital immediately after it was inflicted. To survive such an injury the chances are very slim. There was a further superficial scratch wound on the deceased’s left forearm. The wounds could have been inflicted by a knife as depicted on photo 10. He conceded the possibility that a fatal wound as he found in the neck of the deceased could have been incurred while the deceased was lying on his back with the accused on him, but could not say it is likely. When asked about the influence of distance between the persons in relation to the depth of the stab wound, the doctor said the greater distance, the deeper the would be.

[7] The next State witness was the accused’s wife, Juanita Marlene Coetzee and victim of the second alleged offence, namely attempted murder by the accused. She indicated her willingness to testify for the State and because she was also the victim of assault by her husband, there cannot be any objection to her competence as a witness and that she may testify against her husband.
See: Schwikkard & van der Merwe – Principles of Evidence, second edition, page 397.

 [8] Ms Coetzee testified that she invited the deceased, who came with a friend to her house for a party. It was her birthday. There were also two other persons in addition to her husband. They drank Black Label beer, but the accused only drank juice. She started drinking around 14h00-15h00. They then went to the deceased’s flat where they continued drinking. She conceded she was drunk and confused. In cross-examination it was put to her that after leaving her house they first went to a bar where the men played pool and drank further. She did not deny it, but due to her drunken state she could not remember it. However, she remembered what happened at the deceased’s flat. There they continued drinking. According to her a joke was made by the deceased about girlfriends of her husband, the accused. This caused an altercation between the accused and the deceased in the lounge part of the open plan kitchen/lounge. The one moment she saw the accused and the deceased facing and grabbing each other and the next moment the deceased was lying on the floor. She wanted to close the wound on the deceased’s neck, but the accused stabbed her too on the left side of her neck, on her left shoulder and on the back of her head. According to her they then went back to their house. The accused stabbed himself with the knife and drank Jik. She was bleeding and afraid she would be killed. Her husband told her they must go to the police station and she must tell the police that the deceased wanted to stab her and he protected her. She waited at the police station, while the accused accompanied the police to the flat of the deceased. She was then taken to the hospital and received stitches.

[9] During cross-examination she admitted that she had a relationship with the deceased and in fact left the matrimonial home and stayed with the deceased for 2-3 weeks. She loved the deceased. I have already referred to her inability to remember whether they went to the bar. From the questions put to her, it became clear that she was drunk and so confused that her recollection of what occurred at the deceased’s flat was severely affected. At some stage the friend of the deceased left and at the flat it was apparently only the three of them. She was so confused that she could not describe e.g. whether they were in the kitchen or the lounge part. She also does not know from where knife came from. She denied that she urged the deceased to kill her husband by saying “kill the dog.” She denied that she helped the deceased in the altercation between him and the accused. She denied further that she received the stab wounds during the altercation and that statement by the defence counsel that the deceased had the knife which hooked from his hand by the accused and the accused then stabbed the deceased in self defence. She finally agreed that her husband who was sober would remember better than she who was drunk. She never saw the knife before.

[10] The State’s final witness was a neighbour of the Coetzees, and a member of the Namibian Police, Ruusa Nicolaus. She testified that she and Mrs Juanita Coetzee were good neighbours and actually appeared to be good friends. Her testimony included Mrs Coetzee’s condition that she observed the next day and that she saw lots of blood in the main bedroom, as well as on the bed. Further she related what Mrs Coetzee told her. I shall deal with the permissibility of her evidence later herein. Mrs Coetzee told her that she had a birthday party at the house with her husband and her boyfriend. From there they went to the boyfriend’s house. They continued to consume alcohol-beer, and enjoyed themselves. Mrs Coetzee said she went into her boyfriend’s bedroom, took off her long trousers and put on shorts, called a trunkie. When she came into the lounge her husband, the accused, asked her why she did it while there were other men. He was angry and this led to her husband and the deceased shouting at each other. The boyfriend was stabbed by the accused and he called her name for help. She saw he was injured. She ran home. The accused followed her home. She showed Mrs Nicolaus where she was stabbed on the left side of her neck and her left shoulder. This was done by her husband according to her. Mrs Nicolaus went to the police station and told Sergeant Lukolo what she was told.

[11] It was put to Mrs Nicolaus during cross-examination that Mrs Coetzee did not testify in Court that she put on shorts or that this was the reason for the fight, but because of a joke made. The witness was adamant that this is what Mr Coetzee told her. She did concede that she can only tell the Court what Mrs Coetzee told her.

[12] Ms Kishi called the accused to testify. According to him he went home from his work at 10h00 that day and found his wife, whose birthday it was, already busy drinking. He returned to work and took the rest of the day off to buy meat for a party that night. In cross-examination he said he did not expect guests and thought it would only be him and his wife. However, his wife invited a friend, the deceased, who brought a friend along. Two of the accused’s friends were also there. He did not explain when they were invited. All of them, except himself, drank liquor, namely black label beers. The accused only drank juice. According to him they left his house and went to a bar, where they played pool. No mention was made that his two friends were also at the bar, but it was apparently him, his wife, the deceased and his friend. There was an incident at the bar when Mrs Coetzee climbed onto the pool table and wanted to dance on it. The accused removed her. When the bar closed at midnight they left in the bakkie of the deceased, who refused to take the Coetzees home and drove to his flat. Beer was taken along from the bar and there were also beer at the deceased’s flat. The other continued drinking and Mrs Coetzee locked the outside door. She then went into the deceased’s bedroom, where she exchanged her long trousers for a “trunkie” of the deceased. She was accosted by the accused about this. At one stage Mrs Coetzee was eating a tomato in the kitchen with a knife. There were arguments between the deceased and the accused. The deceased said that the accused buy liquor for his girlfriends and then had sex with them. The accused did not want trouble. He heard his wife saying “kill the dog”. Then he saw the accused with a knife in his hand. He put his soft drink down and confronted the deceased to ask what his problem was. The deceased lifted his right hand to stab the accused in the region of his heart and the accused grabbed the deceased’s wrist. They wrestled and the accused slipped and fell down. Mrs Coetzee came to help the deceased and was stabbed in the process by deceased. Mrs Coetzee kicked the accused and beat him. The accused managed to slam the deceased’s hand, holding the knife, against the fridge and so got hold of the knife. He stabbed the deceased to get away. He did know where he stabbed the deceased. In the process he also “touched” his wife on her neck with the knife. He then took the key of the door from the top of the fridge and unlocked the outside door. He assisted his drunk wife by carrying her home. He used his t-shirt to stop her bleeding. Later went to the police to report the incident against his wife’s wish to leave everything.
[13] Ms Jacobs cross-examined the accused not only on the evidence that he gave in this Court, but also on his evidence given under oath during his bail application before magistrate in Ondangwa, where he was legally represented by Mr. Thambapilai. I shall deal with the discrepancies pointed out between his evidence in this Court and that given during the bail application first. In the first instance he denied in this Court that the deceased was his friend, while it was pointed out that during the bail application he referred to the deceased as his friend. He even referred to the deceased as “Jamsesy”. When he was asked about this discrepancy, he conceded that he lied in the magistrate’s court in order to get bail. Secondly, the accused testified in the magistrate’s court that they only made jokes, but that his friend then became aggressive because of the joking. In this Court he testified about the deceased’s reference to the accused buying liquor for other women and then having sex with them. Thirdly, the accused did not mention going to the bar at all in his evidence during the bail application. Fourthly, the accused said that the deceased grabbed his wife and stabbed her twice. The accused said he then rushed to the deceased grabbed to knife and stabbed the deceased to defend his wife. In this Court he testimony differs entirely from that. The accused’s response was that he was confused when he made that statement to the magistrate, because he did know he would find himself in that situation. He said he now had 2 years to think about what happened. It was put to him that he used these 2 years to tailor his story to his new defence of self defence.

[14] In respect of what happened in the flat of the deceased he was severely cross-examined. It was also pointed out to him that photos 3, 6 and 8 shows that the outside door was open, has the key in it on the outside and that there is blood on the outside of the door. This indicates that the door was open during the stabbing of the deceased. The accused’s lame excuse was that he unlocked the door and inserted the key in the lock on the outside.

[15] It was put to the accused that he knew about his wife’s relationship with the deceased and wanted to kill him out of jealousy. He was also requested during the cross-examination to explain why he confronted the deceased who was armed with a knife after his own wife invited the deceased to kill him. His explanation was that he wanted to stop the story. He was asked in detail about the alleged wrestling over the knife, the stabbing of the deceased and his own wife.

[16] Ms Kishi in argument submitted that the evidence of Ms Coetzee is unreliable, because she was drunk to such an extent that she could not even remember what they were at the bar. She submitted that Mrs Coetzee is a single witness in respect of the events of that night in the flat and that I should treat her evidence with caution. In respect of Ruusa Nicolaus’ evidence, she submitted that she was not there and could only testify what she was told. She submitted that the accused’s version is reasonably possibly true and should be accepted. Although she admitted that there are discrepancies in what the accused said before the magistrate during the bail application and here in Court, it was because he wanted bail at stage.

[17] I accept that Mrs Coetzee was a single witness for the State in respect of the events of that evening and that her evidence should be approached with caution. I shall do so and shall also treat her recollection of the events with caution, because of her undisputed drunken state. It will be accepted only if supported by other evidence. With regard to the evidence of Ruusa Nicolaus, I do take cognizance thereof that she could only relate what she was told by Mrs Coetzee. It further borders on hearsay, because Mrs Coetzee never mentioned that she told this witness anything. She did not even mention her. However, there are aspects in the evidence of Mrs Nicolaus that she could only have heard from Mrs Coetzee, e. g. her evidence that she removed her long trousers and put on a trunkie, something that agonised her husband. There are also the personal observations of Ms Nicolaus that supports the evidence of Mrs Coetzee, namely that there were lots of blood in the sleeping room and on the bed and that Mrs Coetzee had stab wounds behind her neck, the left side of her neck and on her left shoulder.

[18] Ms Jacobs put it to the accused that the story that they went to the bar was made up and not the truth.The accused repeated that it did happen. I doubt it. Despite the fact that this Mrs Coetzee was drunk and testified she could not remember being at the bar, the accused did not mention it all to the magistrate during his bail application. Mrs Coetzee also did not tell Ms Nicolaus about going to the bar. I believe that this is a story that the accused thought out during the two years he mentioned he had to think about it.

[19] Another aspect that is damaging to the accused’s defence of self-defence that he now relies on, is that it never figured during his evidence before the magistrate. At that stage his defence was that he stabbed the deceased while defending his wife. This is incidentally also what he told his wife to tell the police. This supports her version.

[20] When I evaluate the events of what happened at the deceased’s flat, it is not necessary to take the evidence of Mrs Coetzee into account to come to a decision, except for corroboration of certain events. The version of the accused given in this Court is a lie, probably thought out since the bail application. In the whole process it must be remembered that it is common cause that the accused did not drink any strong liquor and was sober, while the accused consumed alcohol and was drunk. The friend of the deceased silently disappeared and did not testify. On the accused’s own evidence, his wife contributed to the feeling that he must have had towards the deceased, who became his wife’s lover. The episode of her enticement of her husband is obvious. She dressed herself in shorts, a “trunkie” that belonged to the deceased and appeared as such before her husband and her boyfriend. Whether the jokes were made or not, it points towards an ill feeling between the accused and complainant. Mrs Coetzee already took sides when she urged her boyfriend, the deceased to kill her husband by saying “kill the dog”. I have already referred to the accused’s evidence that his wife locked the door. She denied it. I find his version in this regard and with the clear evidence of the photos an intentional lie. When the accused, being sober, saw that the deceased had a knife and was being urged by his own wife, that the deceased had a knife, he should have left, even run away. On his own version, he stayed and confronted the deceased, whereafter they wrestled each other for control of the knife. Although the deceased might have been slightly bigger than the accused, he was drunk and the accused was sober. The joining of the wife and her stabbing is in direct contrast with what he told the magistrate. The crux of the matter is that the accused managed to get hold of the knife. The deceased in his drunken state posed no further threat to the sober man, now armed and in control of the knife. At this stage the accused could get out and run away. There was no further danger to his life. At the best he could use the knife ward off any further attack. He did the opposite. He stabbed the deceased in the most vulnerable place and very deep. The stab wound on Mrs Coetzee, that the accused attributed to the deceased, does not make sense and the accidental “touch” by the knife, that he now controlled, is similarly rejected. The accused’s version is definitely not only unreasonable, it is not true. I have no doubt that the State has proved that the accused stabbed the deceased with the intention to kill him. Similarly he stabbed his wife, because he was angry at her and wanted to kill her.

[19] What puts the final nail in the coffin of the accused, so to speak, is that he had control of the knife. The knife ended in the hand of the deceased. It could only have been put there by the accused. According to the doctor’s evidence, not even properly equipped medical intervention could save the deceased. It is doubtful that he could have moved after the stab wound. It must be remembered that the accused’s version is that thereafter he unlocked the door, put the key in the outside lock, pulled off his t-shirt to stop her neck bleeding and carried his wife away. He does not mention that the deceased moved at all. Yet, the deceased’s body was found outside the house. The only reasonable inference is that the accused pulled the deceased out of the house and put the knife in his hand.

[20] In all the circumstances I find that the State has proved beyond any reasonable doubt that the accused is guilty of both the offences of the murder of Alfred Riecketts, the deceased, and the attempted murder of his wife, Juanita Marlene Coetzee.




____________
MULLER, J
ON BEHALF OF THE STATE:                                      MS H. JACOBS
INSTRUCTED BY:                     OFICE OF THE PROSECUTOR-GENERAL


ON BEHALF OF THE DEFENCE:                                   MS F. KISHI

INSTRUCTED BY:                                       DIRECTORATE OF LEGAL AID






























CASE NO.: CC 13/2007
IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

CHRISTOFFEL COETZEE
CORAM:                     MULLER, J
Heard on:                          27 April 2007
Delivered on:             03 May 2007

SENTENCE
MULLER, J.: [1] The accused was convicted of the murder of Alfred Rieketts and attempted murder of Juanita Coetzee, his wife.

 [2] The State did not prove any previous convictions.

[3] Ms Kishi who represented the accused called him to testify. The accused testified that he is 50 years old and is a first offender. He only completed Standard 4 at school. He related his work record, which indicates that after he qualified as a mechanic and that he was employed in Windhoek, Walvis Bay and finally at a garage in Ondangwa. He is married to the complainant Juanita Coetzee since 1997 and they have 3 children, of which one is a minor and still in school. She stays with her maternal grandfather. Until the incident the accused used to contribute to her support. His bail application failed and he was since his arrest in custody for a period of 2½ years. In respect of the incident the accused said he has remorse for his deeds. He was cross-examined in respect thereof by Ms Jacobs. In any event, the accused said that he will never repeat these offences and that the offences were committed as a result of severe provocation, not only by the deceased, but also by his wife, who had a relationship with the deceased.

[4] Ms Kishi referred to the personal circumstances of the accused, the peculiar circumstances that led to these offences and the fact the accused, who was a law abiding citizen for nearly 50 years of his life, would not find himself in the same position again. She asked the Court to suspend any sentence of imprisonment in toto.

 [5] As mentioned above, Ms Jacobs also directed her cross-examination of the accused at his claim of remorse, while he still mentioned that he is innocent. Ms Jacobs submitted that by repeating his innocence, even after his defence was rejected and he was convicted, excludes any allegation of having remorse for his deeds. She also submitted that the these offences were committed with pre-meditation, because the accused knew of the affair between his wife and the deceased and acted out of jealousy. She submitted that a sentence of at least 20 years imprisonment would be appropriate in the circumstances.

[6] Ms Jacobs agreed with Ms Kishi that the sentence in respect of the second conviction, namely the attempted murder of Ms Coetzee should either be taken together with the conviction of murder, or should run concurrently.

[7] In considering what an appropriate sentence for the accused should be the Court considers the elements of retribution, prevention, deterrence and reformation or rehabilitation and attempts to incorporate a combination thereof in the sentence to be imposed. Furthermore, a balance of the circumstances relating to the accused, the crime and society, coupled with a blend of mercy is the aim that the Court attempts to achieve by imposing an appropriate sentence. (S v Zinn 1969 (2) SA 537 and S v Rabie 1975 (4) SA 855 A).

 [8] Both counsel agreed that the offences committed by the accused and of which he was convicted are serious. I have no doubt that it is so and that society would demand that an accused who commits such crimes should be severely punished and that such punishment should necessarily entail a long period of imprisonment. Except of the element of retribution which requires that the convicted criminal should experience the effect of his deed, the other elements should also be considered. The elements of prevention and deterrence shows the community that by imposing a suitable sentence of imprisonment, society is protected from such a convicted criminal and that it would not only deter him from repeating the crime he was convicted of, but would also send a message to other members of society to withhold themselves from committing such crimes, because if convicted, they will also face such a sentence. Finally, the element of rehabilitation of the particular criminal must be considered. The question is whether he can be rehabilitated to return to society as a person who has completed his punishment for his deeds and will take his place as a useful member of society. I shall deal with these elements in relation to this particular accused hereinafter.

[9] I accept the personal circumstances of the accused which was put before me. I also take cognizance of the fact that accused was prepared to testify under oath in mitigation and consequently subjected himself to cross-examination. It is trite that mitigating factors provided to the Court under oath carry more weight than those only conveyed to the Court from the bar. I did also consider the nature of the offence and the interests of society, as requirements for a balanced sentence referred to before and I have already indicated that a long period of imprisonment would be the only appropriate and balanced sentence for the accused.

[10] However, in determining what an appropriate sentence of imprisonment for the accused should be and whether this particular case warrants the suspension of part of it, I shall consider the elements referred to hereinbefore, weighed against the personal circumstances and applicable mitigating factors. The retributive element should not be forgotten, but should not be over-emphasised to the exclusion of the other elements. I have already indicated that the only suitable punishment for the accused is one of a long period of imprisonment, the effect of which he will certainly experience. When considering the elements of deterrence and prevention, I am mindful of the circumstances under which these offences were committed. The offences are related. He killed his wife’s boyfriend and stabbed her in one incident, which occurred on one occasion. Although it is no excuse, the evidence suggested that the accused suddenly boiled over and that this happened after he was first humiliated by the behaviour of his wife dressing herself in shorts belonging to the deceased. Then, after arguments and being threatened by an armed deceased, he was incited his wife saying: “kill the dog.” She later also joined in the fight, supporting the deceased. Secondly, the deceased was the aggressor and he was armed. I do not agree with the submission that the accused acted with the pre-meditation. If that was the case, he would have certainly not come to a fight unarmed. I accept that he was jealous, but not that he killed the deceased out of jealousy. It seems to me that the accused intended to please his wife on her birthday, however difficult it might have been under the circumstances. However, her incitement, the attitude of the deceased and the fight for the knife might very well have led to the conduct of the accused once he got hold of the knife. At that stage part of his actions might be because of jealousy. Similarly, I do not agree that by maintaining his innocence, even after conviction, it absolutely excludes the possibility that he may have remorse for his deeds. Despite the fact that the Court rejected his defence of self-defence, the accused may still feel sorry that a person died because of his action and that he injured his wife. I do consider his expression of remorse in that light.

[11] All in all, I do not believe that this accused will commit similar offences again. The accused had a clean record until the age of more than 47 years. The circumstances that led to these two interrelated offences were unique and the repetition thereof improbable. The accused will be much older when he comes out of prison and on the evidence before Court so far, the continuation of the marriage relationship between him and his wife seems doubtful. Although the elements of deterrence and prevention should not be ignored, they do not carry so much weight in my opinion as to call for a very heavy sentence or to prevent partial suspension of the sentence. With regard to rehabilitation, the history of the accused and the time that he will have to spend in prison, would contribute to his rehabilitation.

[12] The accused is now 50 years of age. He already spend 2½ years in prison. I do not think that a sentence of 20 years imprisonment is appropriate for a man of his age under the circumstances applicable to his case, as mentioned before. I must also remember that I have to sentence this particular accused before me. Although the offences he committed are serious and that that factor, together with the other interests I have mentioned, call for a long term of imprisonment, I do not think that, when taking all the factors and elements that I have mentioned into account, he should be imprisoned until he is 70 years of age. In my opinion a fairly long term of imprisonment of which a part is suspended, would serve all these interests.

[13] I agree that the sentences of both offences that the accused was convicted of should be taken together for the purpose of sentence and shall do so.

[14] The accused is sentenced as follows:

Taking both offences that the accused have been convicted of together, he is sentenced to 15 years imprisonment of which 5 years are suspended for a period of 5 years on condition that the accused is not convicted of the offences of murder, culpable homicide or attempted murder, committed within the period of suspension.



____________
MULLER, J
ON BEHALF OF THE STATE:                                      MS H. JACOBS

INSTRUCTED BY:                     OFFICE OF THE PROSECUTOR-GENERAL


ON BEHALF OF THE DEFENCE:                                   MS F. KISHI

INSTRUCTED BY:                                       DIRECTORATE OF LEGAL AID



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