Article Views (non — Businessman Lazarus Shaduka was sentenced to 20 years in prison yesterday after his previous conviction and sentence of culpable homicide for the death of his wife were set aside.
After his initial trial, a public outcry followed what was deemed a lenient sentence.
Shaduka was initially found guilty of culpable homicide and fined N$25 000, prompting the Prosecutor-General, Martha Imalwa, to appeal the conviction and sentence.
Supreme Court Judges of Appeal, Sylvester Mainga, Gerhard Maritz and Chief Justice Peter Shivute found Shaduka guilty of murdering his wife Selma Shaimemanya, in life the personal assistant to the Minister of Defence, at their home in Eros suburb in Windhoek on the evening of Sunday, July 13, 2008.
Shaimemanya died as a result of a gunshot wound to the back of her neck. Reading the appeal judgment, Judge Mainga called Shaduka's actions during the whole ordeal a deliberate attempt to create a scenario that directed the blame away from him.
He said Shaduka blamed his wife's death on suicide, then on an unknown person(s) and finally on an accident.
According to the judges, having shot his wife, Shaduka must have realised that unless he would do something immediately to demonstrate his concern for her life, an adverse inference that he had intended her death would be all the more likely.
What is now in question, Judge Mainga remarked, is how far back this pretence went, whether his rushing to the health centre at great speed and honking the horns of his car were not part of this pretence.
The setting suggested that the accused left home in the morning and returned when it was almost dark; smelt of liquor; was involved in a small accident and, in the context of a turbulent and often acrimonious marriage relationship as described by the witness Lavinia Mbangula, an argument ensued on his arrival.
This proposition suggested is more consistent with the time frame within which the death occurred after Shaduka's arrival at home than the picture which he sought to paint in court, according to the justices.
The setting he sketched to the court that he came home and that his wife joined him on the couch after she had gone upstairs to collect the baby and prepared a bed for her on the floor, that they had a conversation while watching television, that he dozed off for a while, the judges found to be a falsehood.
Judge Mainga said that this is more so if regard is also had to his own evidence "that after the shooting incident, he wanted to call the ambulance but he could not find his cellphone; that he wanted to use the other vehicle instead of the Mercedes Benz, but he could not find the keys, that he carried the deceased's body to the vehicle and returned to fetch the baby."
Shaduka testified that he even had time to switch off the television, which the judges found to be an improbability under the circumstances for a person who was in a hurry to get his wife to the hospital.
"Even if it is assumed in the accused's favour that he did all that with deliberate speed, it is unlikely that all of the events testified to by him could be properly fitted into the time frame between his arrival at home and, shortly afterwards, at the centre," Judge Mainga noted.
According to the judgment the trial court's non-reliance on the evidence of Mbangula is also an issue as the evidence of Mbangula was not only relevant, but also important in the circumstances of the case to demonstrate the accused's aggressive attitude towards the deceased.
Judge Mainga further called the prosecution's case "a very strong prima facie case of murder."
The State had such a strong case that should Shaduka have failed to answer it, a conviction on the count of murder would have been unavoidable.
"I cannot see why his position should be any better if the answer he chose to present to court was a deliberate concoction of falsehoods which falls to be rejected. In this context, the evolutionary nature and extent of the accused's repeated lies must also be considered," the judge remarked.
"All of these progressive lies were intended to exculpate himself and blame others. If, in addition to the factors already mentioned, the acrimonious attitude of the accused towards the deceased and his recent and repeated threats to her life are taken into consideration, I am constrained by the cumulative weight of the evidence to hold that the State has proven the accused's guilt on the count of murder beyond reasonable doubt," Judge Mainga concluded.
In preparing the sentence the judge said the crime was perpetrated in a domestic context and that crimes of this nature perpetrated on women and children are rampant and the public at large have repeatedly demonstrated their concern about its prevalence.
According to Judge Mainga, not even the existence of an Act solely for the combating of domestic violence is enough to curb the offence and so the punishment meted out by courts of law to address such crimes, should reflect the seriousness with which it is being regarded.
He then set aside the conviction and sentence of culpable homicide and replaced it with a conviction of murder and a sentence of 20 years' imprisonment.
Judge Mainga directed that the N$25 000 Shaduka paid be refunded to him. It is not clear whether a warrant of arrest has been issued for Shaduka or if it was organised that he hands himself over to the authorities. Advocate Albert Strydom appeared on behalf of Shaduka and prosecutor Belinda Wantenaar appeared on behalf of the State.