Rosh Pinah resident Gert Andries Engelbrecht’s appeal against a culpable homicide conviction and six-year sentence was dismissed in the Windhoek High Court by Judge Naomi Shivute with Judge Christi Liebenberg concurring.
Engelbrecht was charged with murder, but was eventually convicted of the lesser charge of culpable homicide for beating his friend to death at his residence in the southern mining town.
The charge stemmed from a fight that ensued between the two friends after they returned from visiting a farm in the district. According to the appeal judgement, the appellant, the deceased and his girlfriend, a certain Ms Vries, went to a farm 80 km from Rosh Pinah with the accused’s vehicle driven by the deceased.
After they finished their business at the farm they indulged in intoxicating liquor before leaving the farm and returning to town. In town they went to a club and the deceased and Vries went into the club while Engelbrecht waited outside.
When the deceased and Vries emerged from the club after a while, the appellant had already left and they went to his house for him to give them a lift back to their residence.
After waking up the appellant, he refused to take them home and a fight started between them which resulted in the death of the deceased. During his trial, the appellant claimed he killed the deceased in self-defence, but the trial magistrate rejected the claim and found that he had no direct intention to kill the deceased hence the culpable homicide conviction.
Engelbrecht was however not satisfied with the conviction and lodged an appeal against both conviction and sentence. His legal counsel, Percy McNally, argued that the magistrate erred when he rejected the version of the appellant and accepted the version of Vries – a single witness.
In respect of the sentence, McNally argued that the magistrate erred in paying “lip service” to the personal circumstances of the appellant, namely that the appellant is a first offender at 52 years of age and is gainfully employed, not a danger to society and not in need of rehabilitation in a prison environment. In addition, McNally argued the appellant has to live for the rest of his life with the fact that he caused the death of his good friend which in itself is a heavy burden and punishment.
He further argued the chances of the appellant committing any offence in future were non-existent and despite the magistrate rejecting the appellant’s defence of self-defence, he acted under severe provocation. However, Judge Shivute said in her view the magistrate gave conclusive reasons for his decisions and she saw no reason to interfere.
According to her the magistrate based his decisions on the evidence that was adduced during the trial, which led him to find that the appellant did not act in self-defence but in retaliation for being attacked by the deceased.
With regard to the sentence imposed, Judge Shivute said the magistrate did take the personal circumstances of the appellant into account as well as the crime committed and the interest of society. While his personal circumstances have a direct influence on the sentence imposed, other factors such as the seriousness of the crime and the interest of society also play an important role, Judge Shivute said.
In the present instance the deceased lost his “precious life” through negligence she stated, adding that the magistrate did not find it fit to impose a fine and instead imposed a custodial sentence and she could see no reason to interfere as the sentence was neither harsh or induces a sense of shock, nor has there been an irregularity during sentencing proceedings.
State Advocate Constance Moyo appeared for the state.
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