High Court reduces 16-year-sentence to 2 years for Rundu resident
Tjihonyi Robert Jatwimana, who was convicted to 16 years last year in the Rundu Magistrate’s Court for murder, won his appeal on Friday after the Windhoek High Court set aside the murder charge and replaced it with assault and only a 2 year sentence.
Jatwimana was arrested on 17 May 2018 together with fellow accused Elifas Kudumo Thidjukwe after they assaulted Hiskia Mangundu Kamambo the previous day in Rundu’s Kehemu suburb.
As a result of the assault, Kamambo died at the Rundu State Hospital.
According to the court documents, the deceased allegedly stole a phone belonging to one of the accused which then prompted the attack.
On 10 May 2024, Rundu Regional Court Magistrate, Barry Mufana sentenced Jatwimana and Thidjukwe to 16 years in jail each.
However, on 17 May 2024, Thidjukwe through his lawyer, Berhard Tjatjara appealed his conviction on several grounds, centrally arguing that the chain of custody for the deceased's body was incomplete from the time the person was declared dead up to the post-mortem examination.
High Court Justices Eileen Rakow and Claudeen Claasen who heard the matter on 12 September agreed with the appellant, highlighting a significant gap in the state's evidence.
According to Friday’s judgement, both justices found that no evidence was presented from any person or nursing staff at the hospital who received the victim from the police.
There was no testimony indicating what happened to the victim while in the hospital's care, or that he suffered no further injuries before his death.
Proof of assault
They also pointed out that the police sergeant who allegedly identified the body to the doctor for the autopsy was never called to testify, leaving no link between the body assaulted in the street and the body examined in the mortuary.
The court emphasised that the state bears the legal onus to prove the chain of evidence.
Because the court could not be assured that the victim's body was not tampered with, altered, or had suffered additional fatal injuries after being admitted to the hospital, the link necessary to prove the assault was the cause of death was missing.
In its decision, the High Court held that the conviction on a charge of murder cannot stand and is set aside
However, the court found there was ample evidence from eye-witnesses to prove the brutal assault itself.
Consequently, the conviction was substituted with the verdict of assault with intent to do grievous bodily harm.
The initial 16 years imprisonment to a term of 24 months imprisonment, which was antedated to 14 May 2024.
Siyomunji Law Chambers who represented Jatwimana through legal aid verbally argued the matter in court.
Meanwhile Thidjukwe continues to serve his 16-year sentence since he did not appeal his conviction.
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Jatwimana was arrested on 17 May 2018 together with fellow accused Elifas Kudumo Thidjukwe after they assaulted Hiskia Mangundu Kamambo the previous day in Rundu’s Kehemu suburb.
As a result of the assault, Kamambo died at the Rundu State Hospital.
According to the court documents, the deceased allegedly stole a phone belonging to one of the accused which then prompted the attack.
On 10 May 2024, Rundu Regional Court Magistrate, Barry Mufana sentenced Jatwimana and Thidjukwe to 16 years in jail each.
However, on 17 May 2024, Thidjukwe through his lawyer, Berhard Tjatjara appealed his conviction on several grounds, centrally arguing that the chain of custody for the deceased's body was incomplete from the time the person was declared dead up to the post-mortem examination.
High Court Justices Eileen Rakow and Claudeen Claasen who heard the matter on 12 September agreed with the appellant, highlighting a significant gap in the state's evidence.
According to Friday’s judgement, both justices found that no evidence was presented from any person or nursing staff at the hospital who received the victim from the police.
There was no testimony indicating what happened to the victim while in the hospital's care, or that he suffered no further injuries before his death.
Proof of assault
They also pointed out that the police sergeant who allegedly identified the body to the doctor for the autopsy was never called to testify, leaving no link between the body assaulted in the street and the body examined in the mortuary.
The court emphasised that the state bears the legal onus to prove the chain of evidence.
Because the court could not be assured that the victim's body was not tampered with, altered, or had suffered additional fatal injuries after being admitted to the hospital, the link necessary to prove the assault was the cause of death was missing.
In its decision, the High Court held that the conviction on a charge of murder cannot stand and is set aside
However, the court found there was ample evidence from eye-witnesses to prove the brutal assault itself.
Consequently, the conviction was substituted with the verdict of assault with intent to do grievous bodily harm.
The initial 16 years imprisonment to a term of 24 months imprisonment, which was antedated to 14 May 2024.
Siyomunji Law Chambers who represented Jatwimana through legal aid verbally argued the matter in court.
Meanwhile Thidjukwe continues to serve his 16-year sentence since he did not appeal his conviction.
[email protected]
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