THREE judges of the Supreme Court have reserved their judgement on an appeal against the acquittal of Windhoek-based businessman Lazarus Shaduka on a murder charge in August 2010.
The State has appealed to the Supreme Court against the High Court judgement in which Shaduka (38) was found not guilty of murder, but convicted of culpable homicide, in connection with the gunshot death of his wife, Selma Shaimemanya (33), in their home in Windhoek on July 13 2008.
The State is also appealing against the sentence which Shaduka received at the end of his trial.
Arguments on the appeal were heard by Chief Justice Peter Shivute and Judges of Appeal Gerhard Maritz and Sylvester Mainga on Wednesday last week. The court reserved its judgement after hearing the arguments.
Shaduka had spent about two years and seven weeks in custody by the time that Judge Kato van Niekerk sentenced him to pay a fine of N$25 000 or serve a year's imprisonment on the charge of culpable homicide. On a second count of attempting to defeat or obstruct the course of justice Shaduka was sentenced to pay a fine of N$2 000 or serve two months in jail.
He paid both fines.
Shaimemanya died from a single gunshot wound to the upper part of her back. The trajectory of the fatal bullet passed through some of her internal organs, and the bullet point lodged in her right buttock.
Shaduka, Shaimemanya, and the couple's 11-month-old child were the only people present at the scene at the time of the shooting.
During his trial, Shaduka claimed his wife was shot accidentally when she fell against a pistol he was trying to disarm after he had removed the cocked gun from her hands.
Shaduka's evidence on this score was rejected by Judge Van Niekerk. Relying on the version he conveyed to the Police after his arrest, Judge Van Niekerk found that Shaduka had handled the firearm negligently when, according to him, a shot went off accidentally and Shaimemanya was struck.
On behalf of the State, Deputy Prosecutor General Belinda Wantenaar argued on Wednesday that, considering the trajectory of the bullet, the placement of the entrance wound, and the fact that it was found that the barrel of the firearm had been in direct contact with Shaimemanya's skin when the shot was fired, the possibility that she had been shot accidentally as claimed by Shaduka had been correctly rejected.
The finding that the shooting had been the result of negligence on Shaduka's part was wrong, though, Wantenaar also argued.
She said according to the prosecution Shaduka must have deliberately pulled the trigger of the pistol to cause the gun to fire the deadly shot.
The appeal court should find that Shaduka foresaw the possibility of fatal consequences if he pressed the barrel of his gun against his wife's upper body with his finger on the trigger, yet reconciled himself with that result, which means he should be found guilty of murder committed without a direct intention to kill, she argued.
Even on the conviction of culpable homicide Shaduka should have been sentenced to a direct term of imprisonment, Wantenaar also suggested.
Shaduka's defence counsel, Albert Strydom, claimed some criticism could be levelled against the trial court's rejection of Shaduka's version that his wife had fallen backwards and so came into contact with the barrel of the pistol.
The location of the entrance wound in itself is an indication of a lack of an intention to kill on Shaduka's part, Strydom argued. He said the evidence did not indicate any planning of the killing by Shaduka.
There was also nothing in the evidence before the trial court that could show that Shaduka had an intention to kill Shaimemanya, or that he foresaw the possibility that she might be killed and reconciled himself with that, he argued.
There was nothing disturbingly inappropriate with the sentence which Shaduka received, considering that he had in effect already served two years' imprisonment by the time he was sentenced, Strydom also argued.