Windhoek — Murder suspect, 40-year-old Simson Hangula Mwanyangapo scored a minor victory on Wednesday, when Judge Naomi Shivute found him not guilty of murder.
Mwanyangapo, who was accused of murdering a young man in Keetmanshoop in 2008, was however found guilty of culpable homicide for the fatal shooting of 24-year-old Clarence Ashley Jahs, in front of Club Tropicana in Keetmanshoop on October 12, 2008.
Jahs died from a gunshot wound to the head in a Windhoek hospital the following day. Mwanyangapo pleaded self-defence when his trial started in 2011.
According to Judge Shivute, the State had proven beyond a reasonable doubt that the accused caused the death of the deceased negligently, but not that he intended to. As a result she acquitted him on the charge of murder and instead convicted him of culpable homicide.
According to Judge Shivute, evidence was presented that the deceased behaved erratically in the club, jumping on tables and being a general nuisance.
According to the State Prosecutor, Mwanyangapo intentionally killed Jahs and not in self-defence because his life was not in danger from a fleeing Jahs after the first shot hit him in the leg.
Judge Shivute, however, had some reservations about the evidence of the State witnesses as there were some discrepancies. She said the evidence of Kooper, the State's main witness, that the deceased was about three metres from the accused when the fatal shot was fired differs vastly from the evidence of the doctor who says the shot was fired from a distance of 50 metres to the head of the deceased.
According to Judge Shivute the fact that the accused never contradicted himself and was not evasive during his testimony and subsequent cross-examination, counted in his favour.
However, she said that there was no doubt that the cause of death was a gunshot wound to the head of the deceased caused by the accused.
The Judge also remarked that the flaws in both sides' testimonies left the court only with the version of events as described by the accused.
She said Mwanyangapo testified that he only wanted to ward off Jahs who had a direct intention to harm him, but the Judge went on: "If accused wanted to warn deceased, one would have expected him to fire into the air." The Judge said that the accused had a reckless disregard for the deceased's life and that since he himself testified his firearm was in good working condition the trigger could not have gone off accidentally.
Mwanyangapo was refused bail, because according to Judge Shivute he is no longer on trial, but convicted of a serious offence. She argued that since the sentence could be a custodial one, the risks are now greater that the convict will not show up for his next court appearance. She said that it is also a likelihood that Mwanyangapo might abscond and that it is in the interest of justice that he be remanded in custody until his sentencing. She then postponed the matter to November 14 for sentencing submissions.