The prosecutor general’s decision to charge British farm owner Harvey Boulter with murder after a fatal shooting incident at his farm in the Outjo district in February 2021 was “clearly not irrational”, the Supreme Court has found.
The finding is made in an appeal judgement delivered in the Supreme Court yesterday.
The court dismissed Boulter’s appeal against a High Court judgement, in which an application by Boulter to review and set aside prosecutor general (PG) Martha Imalwa’s decision to prosecute him was dismissed in August last year.
“In the circumstances, this is clearly a proper case to lay before the court,” acting judge of appeal Theo Frank said about the PG’s decision to charge Boulter in a criminal case that is pending in the Windhoek High Court.
“In short, the decision by the PG to initiate the murder charge against the appellant [Boulter] is clearly not irrational, but one where any other reasonable prosecutor would have also pressed the charges, as there is sufficient evidence to provide reasonable prospects of a conviction,” Frank stated.
There is no basis for Boulter to suggest the PG’s decision in his case was irrational or invalid, Frank added.
He concluded: “This is a case, where objectively speaking any reasonable PG possessed of the same facts would have pressed the same charges against the appellant.”
Acting judges of appeal Dave Smuts and Rita Makarau agreed with Frank’s judgement.
The PG decided in 2022 to prosecute Boulter (55) in the Windhoek High Court on counts of murder, possession of a firearm and ammunition without a licence, and handling a firearm while under the influence of alcohol.
The charges emanate from a shooting incident at Boulter’s farm north-east of Kamanjab in the Outjo district during the evening of 27 February 2021.
The shooting claimed the life of farm manager Gerhard van Wyk (54), who was employed by Boulter.
According to Boulter, a shot that struck Van Wyk in the abdomen went off when Van Wyk tried to grab a firearm from Boulter while the two of them were involved in a scuffle.
Boulter’s criminal case has been on hold in the High Court since March 2023, when he filed an application to review the PG’s decision to prosecute him.
In his application, Boulter claimed there was no evidence on which the prosecutor general could have found that there was “reasonable and probable cause” to prosecute him on a charge of murder.
However, High Court judge Herman Oosthuizen found in a judgement delivered in August last year that the PG’s decision to prosecute Boulter was reasonable and rational.
In the appeal judgement, Frank said when the PG decides to prosecute someone, she must be satisfied that there is sufficient evidence to provide reasonable prospects of a conviction after a trial. A reasonable person in the position of the PG must come to the same conclusion, Frank also said. He remarked: “The objective inquiry operates as a check on the powers of the PG to ensure he or she does not act arbitrarily and irrationally.”
The Supreme Court also ordered Boulter to pay the legal costs of the PG in the appeal.
Boulter has to make a next pretrial appearance in the High Court on 19 November.
Defence lawyers Sisa Namandje and Kadhila Amoomo represented him in the appeal.
The PG was represented by Danie Small.
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