Judge dismisses Brit’s bid to avoid murder trial

The prosecutor general’s decision to prosecute British farm owner Harvey Boulter on a count of murder and other charges was reasonable and rational, a Windhoek High Court judge has found.

Judge Herman Oosthuizen made the finding in a judgement in which he on Friday dismissed an application by Boulter to have the decision to prosecute him reviewed and set aside, or declared as invalid and irrational.

Prosecutor general (PG) Martha Imalwa arraigned Boulter (54) 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 liquor or a drug with a narcotic effect.

The charges stem from a fatal shooting incident at Boulter’s 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 which 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.

In his judgement, Oosthuizen found that a decision by the PG to prosecute someone can be reviewed by the High Court “because it is subject to the Constitution and must be fair and reasonable”.

Imalwa argued that her decision to prosecute someone cannot be reviewed by a civil court.

Oosthuizen added that Imalwa was correct, however, when she said her decision to prosecute would be difficult to review if there were factual disputes about evidence that would be placed before a court during a criminal trial.

“The decisions of the PG should instil public confidence and be consistent with human rights norms,” Oosthuizen stated.

When the PG takes a decision to prosecute, she “must have reasonable and probable cause to do so” and must have an honest belief in the guilt of the person being arraigned, he said.

The PG is not expected or required to carry a belief beyond reasonable doubt in the guilt of the accused person when reaching a decision to prosecute, and it is sufficient that she believes the person is probably guilty, Oosthuizen said.

To succeed with his application, Boulter had to show that the PG did not subjectively believe in his guilt when she decided to prosecute him, the judge said as well. That would be contrary to what Imalwa declared under oath, though, he added.

Oosthuizen concluded: “In the circumstances the [PG’s] decision to prosecute and to continue to prosecute is reasonable and rational.”

Boulter, who was granted bail in an amount of N$500 000 in July 2021, has to attend a pretrial hearing in the Windhoek High Court again on 17 October.

Defence lawyers Sisa Namandje and Kadhila Amoomo represented him in the review application.

Danie Small, assisted by Veiko Alexander, represented the PG.