Rundu man’s murder conviction overturned as High Court finds gaps in evidence

A Rundu man who was sentenced to 16 years in prison for murder will now serve only two years after the High Court found that the state failed to properly prove its case.

Tjihonyi Jatwimana was convicted by the Rundu Regional Court on a charge of murder and sentenced to 16 years’ imprisonment in May 2024.

He was not legally represented during the trial.

Following an appeal, the conviction has now been set aside and replaced with a conviction of assault with intent to do grievous bodily harm.
The sentence was reduced to 24 months’ imprisonment and backdated to 14 May 2024.

In its judgment, the High Court said the evidence showed that Jatwimana took part in an assault, but the state failed to prove that the assault caused the death of the victim.

Jatwimana argued in his notice of appeal that the prosecution did not establish what happened to the injured man after he was taken from the scene to hospital.

He said the “the identity of the person carried from the scene of the crime to the hospital was not proven” and that the trial court erred because “the chain of custody of the deceased body from the time the deceased was declared dead up to the postmortem examination was not proven”.

The appeals court agreed.

High Court judge Eileen Rakow, with judge Claudia Claasen concurring, found that there was no evidence covering the period after police handed the injured man over to staff at Rundu State Hospital and before a post-mortem was conducted.

“There is no chain of evidence that shows that it is indeed the same person that eventually found himself the subject of the autopsy that was also the subject of the assault,” the court held.

Evidence at trial showed that two witnesses saw the victim being assaulted at Gehemu.

A security guard testified that he intervened and stopped the assault.

The police later arrived and transported the injured man to hospital. He was still alive when handed over to medical staff.

However, the state did not call any hospital staff to testify about what happened to the victim after his admission. No evidence was presented to show how the body was later handled or how it was transferred for a post-mortem examination.

The state argued that the accused’s failure to challenge the post-mortem report meant that the chain of custody could be accepted.

The court rejected this argument, especially because Jatwimana was unrepresented during the trial.

“The burden to prove an intact chain of evidence rests on the state,” Rakow said, adding that relying on implied admissions placed “too heavy a burden on an unrepresented accused”.

The court ruled that this failure was fatal to the murder conviction.

It said, however, that the evidence was sufficient to prove assault with intent to cause grievous bodily harm, which is a competent verdict on a murder charge.

As a result, the murder conviction was set aside and replaced with the lesser offence, and the sentence reduced from 16 to two years.

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