Judge weighs up Brit’s bid to avoid murder trial

British businessman and farm owner Harvey Boulter should know after the middle of May if his attempt to avoid being prosecuted on murder and other charges has succeeded.

This is after judge Herman Oosthuizen yesterday heard oral arguments on an application by Boulter to have the prosecutor general’s decision to prosecute him on four charges in the Windhoek High Court reviewed and set aside, or declared as invalid and irrational.

Oosthuizen postponed the delivery of his judgement to 17 May after hearing the arguments of lawyers Sisa Namandje, representing Boulter, and Danie Small, representing the prosecutor general, on the review application that Boulter filed in the High Court in February last year.

The prosecutor general has decided to prosecute Boulter on counts of murder, the possession of a firearm and ammunition without a licence, and handling a firearm while under the influence of liquor or a drug with a narcotic effect in connection with a fatal shooting incident at his game farm, situated between Kamanjab and Etosha National Park, on 27 February 2021.

The shooting claimed the life of farm manager Gerhard van Wyk (54), who was employed by Boulter. Van Wyk died while being transported to Outjo for medical treatment after he had been shot in the abdomen.

The state is alleging that Boulter shot Van Wyk after a disagreement between Boulter and Van Wyk’s son, who was also employed at the farm.

Van Wyk is claimed to have been shot after he had intervened to assist his son, who allegedly had been assaulted by Boulter.

Boulter has said the shooting was an accident that took place when Van Wyk grabbed a pistol he was holding against his chest.
He has also stated that he felt he was under attack from Van Wyk and his son before the shot went off.

The bullet that fatally injured Van Wyk also struck Boulter in his left hand. During the hearing before Oosthuizen, Namandje argued that the prosecutor general must consider everything in the police docket of a case, including material favourable to an accused, before deciding to prosecute.

The prosecutor general must be fair, rational and reasonable when she decides whether to prosecute an accused, Namandje added.

He argued that the evidence on which prosecutor general Martha Imalwa decided to arraign Boulter in the High Court clearly showed the shot that struck Van Wyk and fatally injured him had first gone through Boulter’s hand.

There is nothing in the docket that shows Boulter deliberately shot himself in his hand, and as a result the shooting of Van Wyk could not have been deliberate either, Namandje argued.

He also argued there is nothing in the police docket on Boulter’s case that proves he was under the influence of alcohol when the shooting took place.

Imalwa’s decision to arraign Boulter was bad, and the court should set it aside or refer the matter back to her to make a decision after considering the evidence properly, Namandje said.

Small argued that the evidence in the police docket is not as straightforward as Namandje tried to make it out to be, and includes evidence that is disputed.

He also argued that the version of events given by Boulter was “deliberately vague” and does not explain how the firearm with which Van Wyk was shot came to be cocked and its safety catch disengaged.

Boulter’s version should be put before a criminal court during a trial, rather than being placed before the civil court in an application to have Imalwa’s decision reviewed, Small argued.

The proper court to decide whether there is evidence against Boulter on the charges he is facing is a criminal court, and not a civil court, he argued as well.

Small added that it is “absurd” to expect a civil court to pre-judge a matter that should be decided by a criminal court.

He asked the judge to dismiss the review application.

Boulter remains free on bail of N$500 000, which was granted to him by a High Court judge in July 2021.