British farm owner Harvey Boulter has lodged an appeal to the Supreme Court in an attempt to avoid being prosecuted over a fatal shooting incident in which he was involved in February 2021.
Deputy judge president Hosea Angula was informed of Boulter’s decision to appeal to the Supreme Court when Boulter made his latest pretrial appearance in the Windhoek High Court on Thursday.
As a result of the appeal, Angula postponed Boulter’s criminal case to 16 April 2025 to await the Supreme Court’s decision on the appeal.
The prosecutor general decided in 2022 to prosecute 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 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.
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 intervened to assist his son, who had allegedly been assaulted by Boulter.
Van Wyk was shot in the abdomen. He died while being transported to Outjo for medical treatment.
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.
After Boulter asked prosecutor general (PG) Martha Imalwa to reconsider her decision to prosecute him, Imalwa informed him in November 2022, that she would proceed with the prosecution.
Boulter then asked the High Court to review and set aside Imalwa’s decision to prosecute him.
He claimed there was “no reasonable and probable cause” for Imalwa to decide to arraign him in the High Court, and that she did not apply her mind to representations that his lawyers made to her when they requested her to review the decision to charge him and to withdraw the charges against him.
High Court judge Herman Oosthuizen dismissed Boulter’s application in a judgement delivered in August this year.
In his judgement, Oosthuizen said Imalwa’s decision to prosecute Boulter was reasonable and rational.
He said for Boulter to succeed with his application he had to show that the PG did not subjectively believe in his guilt when she decided to prosecute him.
That would be contrary to what Imalwa declared under oath, though, Oosthuizen noted.
The PG is not expected or required to have 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 also said in his judgement.
Boulter remains free on bail in an amount of N$500 000, which was granted to him in July 2021.
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