Kamanjab farm shooting: Boulter locks horns with Imalwa
"There is no evidence in the file that he [Harvey Boulter] shot the deceased with the intention of killing him. He did not fire the firearm on purpose."
This is what British billionaire and murder accused Harvey Boulter's lawyer, Sisa Namandje, said yesterday in the Windhoek High Court in a case in which Boulter is challenging Prosecutor-General Martha Imalwa’s decision to prosecute him on charges of, among other things, murder.
Boulter's legal team claimed that a firearm accidentally went off during a fight between him and his farm manager, the late Gerhard van Wyk Senior. The altercation started after Boulter apparently said something inappropriate to Van Wyk's daughter-in-law, after which his son, Gerhard Junior, started fighting with Boulter and Van Wyk Senior intervened.
Imalwa's lawyer Daniel Small highlighted the issue of the gun's safety clip during his arguments.
“The applicant [Boulter] never said anything about how or when the safety clip was removed from the gun. According to evidence, he probably walked around with a cocked gun, removed the safety clip or walked with the gun in his holster with the safety clip already off."
Small, alongside Veiko Alexander, and Namandje, alongside Kadhila Amoomo, delivered their main arguments yesterday before Judge Herman Oosthuizen. He scheduled his verdict for 17 May.
Decision challenged
In the matter, Boulter argued that Imalwa made the wrong decision to prosecute him and demanded that her decision be reviewed and set aside.
In his written closing arguments, Small said: "Most defendants who truly believe in their innocence or that the State will have difficulty proving their guilt will typically want to complete their trial within a reasonable time," adding that it is unusual for defendants to bring a case against the prosecutor-general.
Namandje emphasised that the decision to prosecute someone can have a big impact on their life and should therefore not be taken lightly.
"The prosecutor-general has a duty to take the decision not to prosecute where there is no probable cause," he said.
Namandje further pointed out that the prosecutor-general is appointed according to the constitution, and therefore Imalwa must act in terms of the provisions of the constitution.
She must act fairly, rationally and reasonably, he said.
Not immune
"We're not saying she has to be perfect, but she has to look at and consider everything before she makes a decision."
Small emphasised that Imalwa considers all the evidence and uses her discretion to make a decision.
"It is not so simple to say that she did not exercise her discretion correctly. Witnesses have different accounts and this case has many disputed facts. She carefully considered the facts before making her decision."
Namandje argued that Imalwa's decisions cannot be immune to review.
Although Small initially argued that Imalwa's decision to prosecute someone accused of a crime in a criminal court should not be reviewable by a civil court, he conceded yesterday that if there is no evidence, it may be revised to avoid malicious or groundless prosecution.
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This is what British billionaire and murder accused Harvey Boulter's lawyer, Sisa Namandje, said yesterday in the Windhoek High Court in a case in which Boulter is challenging Prosecutor-General Martha Imalwa’s decision to prosecute him on charges of, among other things, murder.
Boulter's legal team claimed that a firearm accidentally went off during a fight between him and his farm manager, the late Gerhard van Wyk Senior. The altercation started after Boulter apparently said something inappropriate to Van Wyk's daughter-in-law, after which his son, Gerhard Junior, started fighting with Boulter and Van Wyk Senior intervened.
Imalwa's lawyer Daniel Small highlighted the issue of the gun's safety clip during his arguments.
“The applicant [Boulter] never said anything about how or when the safety clip was removed from the gun. According to evidence, he probably walked around with a cocked gun, removed the safety clip or walked with the gun in his holster with the safety clip already off."
Small, alongside Veiko Alexander, and Namandje, alongside Kadhila Amoomo, delivered their main arguments yesterday before Judge Herman Oosthuizen. He scheduled his verdict for 17 May.
Decision challenged
In the matter, Boulter argued that Imalwa made the wrong decision to prosecute him and demanded that her decision be reviewed and set aside.
In his written closing arguments, Small said: "Most defendants who truly believe in their innocence or that the State will have difficulty proving their guilt will typically want to complete their trial within a reasonable time," adding that it is unusual for defendants to bring a case against the prosecutor-general.
Namandje emphasised that the decision to prosecute someone can have a big impact on their life and should therefore not be taken lightly.
"The prosecutor-general has a duty to take the decision not to prosecute where there is no probable cause," he said.
Namandje further pointed out that the prosecutor-general is appointed according to the constitution, and therefore Imalwa must act in terms of the provisions of the constitution.
She must act fairly, rationally and reasonably, he said.
Not immune
"We're not saying she has to be perfect, but she has to look at and consider everything before she makes a decision."
Small emphasised that Imalwa considers all the evidence and uses her discretion to make a decision.
"It is not so simple to say that she did not exercise her discretion correctly. Witnesses have different accounts and this case has many disputed facts. She carefully considered the facts before making her decision."
Namandje argued that Imalwa's decisions cannot be immune to review.
Although Small initially argued that Imalwa's decision to prosecute someone accused of a crime in a criminal court should not be reviewable by a civil court, he conceded yesterday that if there is no evidence, it may be revised to avoid malicious or groundless prosecution.
– [email protected]
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