Court name
Supreme Court
Case name
S v Matheus
Media neutral citation
[2002] NASC 7











CASE NO.: SA 11/2001



IN THE SUPREME COURT OF NAMIBIA



In the matter between







THE STATE APPELLANT



And



GABRIEL MATHEUS RESPONDENT







CORAM:, Strydom, C.J., O'Linn, A.J.A., Chomba, A.J.A.



HEARD ON: 03/04/2002



DELIVERED ON:



_____________________________________________________________________________



APPEAL JUDGMENT



_____________________________________________________________________________



O'LINN, A.J.A.:



SECTION A:



INTRODUCTORY REMARKS



The respondent, one Gabriel Matheus, appeared in the Court a quo
before Engelbrecht, A.J., on a charge of Murder in that he allegedly,
“on or about the 16th June 1996 and at or near Oshikundu
Village in the district of Eenhana, the accused unlawfully and
intentionally killed Nghidengwa Twyoleni a male person”.






The summary
of substantial facts attached to the indictment in accordance with
section 144(3)(a) of the Criminal Procedure Act 51 of 1977, read as
follows:







“On the 16th June 1996 the deceased beat up the mother
of the accused in a village near Ondangwa. The accused followed and
grabbed the deceased. He asked him why he had beaten his mother. He
then beat the deceased twice with a fence pole weighing 1,51
kilograms and the deceased fell to the ground. After that the
accused took the knife of the deceased but was deterred from
assaulting the deceased further by people who held his arms. The
deceased did not die at the scene, but was taken closer to his home
where he died minutes later. The deceased was 80 years old at the
time of the incident.”






The accused was defended at
the trial by a legal practitioner, Mr. Kauta, on the instructions of
the Legal Aid Directorate. The State was represented by Ms.
Schnecker.







The accused pleaded “Not Guilty” but made the following two
admissions in accordance with section 220 of the Criminal Procedure
Act:






“He
beat the accused twice and the exhibit before Court is the instrument
used.”






The State called three
witnesses, one Nadhala Kayoo, the alleged wife of the deceased, one
Junius Hangula, the brother of the accused, and Dr. Shangula, a
medical practitioner, who conducted the post mortem examination on
the body of the deceased.







The accused was the only witness who testified for the defence. At
the conclusion of the trial, the accused was found “Not Guilty”
and discharged. The State gave notice of application for leave to
appeal against the “acquittal” of the accused and listed the
following grounds of appeal:







“The Honourable Judge misdirected herself by not finding:









    1. That the accused beat the deceased the first time on the hand in
      order to disarm him of his knife.











    1. That the deceased, after the first blow, was disarmed and that no
      situation existed after that against which the accused had to
      defend himself.











    1. That the second and third blows were given by the accused on the
      upper body of the deceased after the deceased was disarmed.











    1. That no danger or threat existed after the deceased was disarmed
      and that the second and third blows or both, caused the death of
      the deceased.











    1. That either the second or third blows or both, caused the death of
      the deceased.











    1. On the acceptance of the facts set out in the preceding paragraph
      the respondent had committed the crime of Murder and should have
      been convicted on that charge.”









On 31st August 2000 leave to appeal was granted to appeal
to the full bench of the High Court. As a result of new legislation
enacted before hearing of the appeal by the High Court, this appeal
came before this Court for decision. Ms. Harmse appeared before us
to argue the appeal and Mr. Kauta for the respondent, amicus
curiae.







I find it convenient to refer hereinafter to the parties for the
purposes of this judgment, as in the Court a quo.







SECTION B:



THE MAIN ISSUE:






It was common cause that
the accused inflicted two – three blows on the body of the deceased
with a relatively sturdy and heavy piece of log described as a “fence
pole”. One or more of these blows caused a fracture of the
deceased’s breastbone which caused severe pain leading to acute
cardiac arrest.







The State thus proved beyond reasonable doubt that the accused had
caused the death of the deceased.







The defence raised by and on behalf of the accused was “self-defence”
and this was the main legal and factual issue between the parties.







SECTION C:



THE FURTHER FACTS WHICH WERE EITHER COMMON CAUSE OR NOT SERIOUSLY
DISPUTED







  1. The deceased was an
    elderly person whose hair and beard were grey and whose age was
    estimated at the post-mortem as ± 80 years. He had a normal
    built for his age and his estimated weight was approximately 60
    kilograms. He was apparently relatively strong for his age. The
    accused on the other hand was a young man whose physical
    characteristics was unfortunately not enquired into or placed on
    record by either the State, the Defence or the Court, even though it
    were very relevant in view of the main issue of “self defence”.







  1. Apart from the
    fracture of the breastbone, signs of bleeding from the mouth and an
    “old closed fracture” of the left forearm, there were no other
    fractures, wounds or bruises discernable. This meant that there was
    also no indication whatever of a blow with the “fence pole” on
    the arms, hands, wrists or fingers of the deceased.







  1. Prior to the incident
    when the deceased was killed, the deceased had assaulted the mother
    of the accused and of his younger brother Junius Hangula.







  1. The mother’s name
    was never placed on record and no particulars were given, except
    that Junius Hangula stated, when he testified, that his mother still
    has a hip injury, caused by the injuries she sustained when the
    deceased assaulted her.







  1. On the day of the
    incident the accused and his younger brother Junius met their mother
    when they were walking along a road. She was crying and told Junius
    and the accused that she had been assaulted by the deceased. This
    report apparently triggered the accused’s further action. The
    accused went off in search of the deceased. When the mother noticed
    this, she asked Junius where Gabriel had gone. Junius told his
    mother that Gabriel was not there. She then instructed Junius to
    follow Gabriel. When he caught up with Gabriel, the accused, he
    called him to turn back but the accused ignored him and continued
    walking. He then stopped the accused again and told him to leave
    the matter and go back home, but the accused persisted.






When
his evidence was put to the accused, he merely said that he did not
know about this, but there was no outright denial from his side. The
accused however made the following concession: “The only time he
stopped me from doing anything is when I hit the man that’s when he
told me: ‘Leave the man alone. Lets go home’”. The learned
trial judge made no finding on this issue, but found that all the
witnesses, including that of the State and the accused were credible.





It
follows from the above evidence however that both the mother of the
accused and his brother Junius, were concerned about the accused’s
intentions and tried to dissuade him but he persisted. The accused
was clearly not in a good mood.





Nadhala
Kayoo, the widow of the deceased, according to her uncontradicted
testimony, was present when the accused’s mother was beaten by the
deceased and was also subsequently present at the scene at least
immediately after the deceased had been beaten by the accused and was
lying on the ground. According to her, she was “a little bit
creeping away” because “after he had beaten the old man, he also
wanted to beat me”. She further testified that she could not say
in what mood the accused was, “because he came from the shebeen …
he was not happy”.





Although
the learned trial judge made no finding on the issue and apparently
wrongly ignored this testimony, the evidence shows that the accused
was in a stubborn and aggressive mood at all relevant times, before
and immediately after he had assaulted the deceased with the stick.



  1. When the accused
    followed the deceased, he had no weapon in his hands.







  1. Immediately after the
    accused had beaten the deceased, the accused was found with a
    traditional knife in his one hand and the fence pole in his other
    hand.







  1. The accused at no
    stage sustained any injuries and no blow was struck at him.







  1. The force used to
    cause the fracture with the fence pole was from “moderate to
    excessive force”.






The
fractured breastbone however, was a thick bone compared to other
bones in the body and although other bones in the body could be
brittle as a result of the deceased’s old age, the breast bone
would not and was not brittle.





SECTION D:


RELEVANT FACTS IN
DISPUTE


1. The accused’s
motive for following the deceased





The
accused testified that his reason for following the deceased was that
his mother had told him to ask Nghidengwa, who had assaulted her, to
give her money so that she can go to hospital or alternatively, to
take her to hospital. Junius however, testified that he did not know
of such a request and as mentioned under B.3 supra, his mother
instead wanted to know where Gabriel had gone and when he told her
that Gabriel had gone, she requested Junius to follow Gabriel. When
Junius caught up with Gabriel, he asked him to turn back, but to no
avail.





This
undisputed evidence, makes it at least improbable that the mother had
sent Gabriel to obtain money from Nghidengwa to pay for the hospital
or otherwise to take her to hospital himself. The accused’s
evidence in this regard was incomplete and unconvincing and in
conflict with that of Kayoo in regard to what he had said to
Nghidengwa when he first confronted him.





Neither
Junius nor Kayoo knew of a “demand” or heard a demand being made
by the accused to Nghidengwa. But what Kayoo heard was that the
accused asked: “Why did you beat my mother”. Considering the
accused’s mood and aggressiveness and the evidence of Junius about
their mother’s worry about the whereabouts of the accused and
Junius’s efforts to persuade the accused to return and leave
Nghidengwa alone, the Kayoo version is probably the true version of
what the accused said to the deceased.





The
Court however, accepted the whole version of the accused, including
his evidence on this point, notwithstanding the fact that the learned
judge also accepted the evidence of the State witnesses as credible.
In doing so, the Court misdirected itself.






  1. The issue of the
    alleged knobkierie and the alleged “running away” of the accused






The
accused testified that when he first accosted Nghidengwa, and gave
him his mother’s message, the latter took a knobkierie. He, the
accused then ran away.





The
accused’s evidence about the “knobkierie” and the “running
away” was vague, contradictory and difficult to comprehend. Prior
to the accused’s testimony when Junius testified that accused “ran
away”, the running away story appeared to be a misunderstanding
between witness and interpreter and probably caused by the inability
of the interpreter to translate properly, alternatively the inability
of the witness to express himself properly and the failure of counsel
and the Court to clarify the issue satisfactorily. The relevant part
of the evidence of Junius was:





“We
proceeded we walked together for a short distance. I then stopped
him again and told him to leave the matter. He should go back home.
Then the deceased made a movement. Then the accused ran away.”





Q: “So,
where was the deceased then at that stage?”


A: “He
was ahead of us. He was in front of us.”


Q: “You
said then further the accused ran away?”


A: “Yes.”


Q: “Where
did he run to?”


A: “He
run going in front…”


Q: Yes,
what happen then?”



A: “I then followed him. Run after him. I cannot catch him
because I was caught (indistinct). I then hear the sound of a stick.
A stick that was used when he assaulting the deceased.”



Q: “What do you mean you heard the sound of a stick. Could you be
more specific?”



A: “My Lady, I heard the sound of a stick. A stick that was used
when he assaulting the deceased.”


Q: “Did
you see anything?


A: “No,
My Lady, I did not see anything.”


Q: “So,
what happened after you heard the sound?”



A: “I went there and met the accused… the deceased and the wife …
the deceased’s wife.”



Q: “What were they doing?”



A: “My Lady, the accused had a knobkierie on his right hand and on
the left hand a homemade knife…”



Q: “And what was the deceased doing?”



A: “The deceased was lying on the ground.”







It appears therefore that according to this witness, when he said –
“he run going in front”, he may have meant that the accused ran
to get in front of Nghidengwa to head him off, i.e. to prevent
Nghidengwa from getting away and in so doing actually ran away from
Junius who until then, had walked with the accused, and now followed
behind the accused.







When the accused was asked by his counsel where he ran to, after
Nghidengwa took the knobkierie, he said according to the record: “I
just moved behind (indistinct)”. The following questions and
answers then appear on the record:







Q: “Did you move backwards?”



A: “No, … I didn’t move backwards.”



Q: “What happened then after you ran away?”



A: “Then he kept coming, then I returned back (indistinct).”



Court question: “We kept what?”



A: “We kept calm and then I went back to him again.



Q: “Who became calm?”



A: “The deceased.”



Q: “And then what happened when you returned back to him, Sir?”



A: “And then he came and that’s when he took out the knife.”







It must be noted here that the alleged knobkierie which according to
the accused, Nghidengwa took hold off or had with him, had suddenly
disappeared. At any event it was never alleged by the accused that
Nghidengwa had threatened him with the “knobkierie” and even the
accused did not allege that he hit Nghidengwa to deprive him of the
knobkierie as the learned judge found when she stated in her
judgment: “He was adamant that the only reason for his attack was
to defend himself and get rid of the knife and knobkierie the
deceased was holding when the latter approached him. (My emphasis
added.)







The Court misdirected itself in the latter regard. Instead of
finding that the accused’s allegation about the “knobkierie”
did not fit into the rest of his story, and was not supported by the
evidence of any other witness who was on the scene or who arrived on
the scene immediately after the assault.







This story of the accused was, to say the least, entirely
unconvincing. The Court wrongly assumed that the accused had said
something which he had never said and by implication, (having
accepted the accused’s story) found that the deceased was in fact
“armed with both a knife and knobkierie and intended to use
at least the knife against the accused and that the only reason for
the attack by the accused was “to defend himself and get rid of the
knife and knobkierie that deceased was holding when the latter
approached him.”







The Court also dealt with the issue of the initial confrontation and
the cross-examination of Junius in this regard in an unsatisfactory
manner which in itself amounts to a misdirection.







The witness Junius had testified that when confronted, Nghidengwa
made a “movement”. Later, when Junius was further confronted by
counsel as well as the presiding trial judge with what he had
allegedly said, he insisted repeatedly that he had not said that
Nghidengwa had made a “movement” but only that the deceased “had
made a sound”. He explained further that he meant the deceased
made a sound “like he’s shouting”.







At the stage and almost at the outset of the cross-examination by Mr.
Kauta for the defence, the cross-examination was interrupted by
relieving the interpreter from her duties because she was apparently
ill and a new interpreter sworn in. As soon as the hearing resumed,
the learned presiding judge intervened by expressing her opinion that
it seemed that Junius “didn’t actually see the actual incident”
and asked: “So, is there any use in putting to him what happened?”
Mr. Kauta for the accused happily concurred, and so stopped his
cross-examination.







All this happened notwithstanding the fact that Junius had already
testified that he was present when the accused Gabriel first caught
up with Nghidengwa and Nghidengwa made the “sound” already
referred to and the accused “ran away”. Junius was never asked
whether or not he saw Nghidengwa with a knobkierie or a knife at the
stage when Nghidengwa made the sound and the accused ran away.







When the accused later testified, he said that Junius was present
when he hit Nghidengwa; that Junius was about three (3) – four (4)
meters away. Junius was with the accused at least when the initial
confrontation took place and this was a relevant part of the “actual
incident” and was wrongly ignored and not further investigated
during cross-examination, mainly due to the intervention by the trial
judge.







It follows from the above that the Court also wrongly found that:
“When the accused made his demands to deceased the latter took out
his knobkierie and the accused retreated”. (My emphasis
added.)







To accept the accused’s allegation on face value without
considering the above evidence of Junius and Kayoo, was misdirection
by the Court.







  1. The continuation of
    the confrontation






The
Court held: “When the accused approached deceased again,
deceased took out a traditional knife and came towards accused.
(My emphasis added.)





The
question arises and should have been considered and decided by the
Court, why the accused “approached the deceased again, in view
thereof that according to the accused, he had already conveyed “the
message” to Nghidengwa and Nghidengwa had already reacted
aggressively by taking out his knobkierie, forcing the accused to
“run away”.





The
further question which arises is whether Nghidengwa in fact at any
stage “came towards the accused” as found by the Court. It is
true that in this regard the evidence of the accused stands alone.
But that evidence should not have been accepted merely for that
reason. It should have been analysed and judged in the context of
the other factual allegations which are in dispute and where in some
cases the accused’s evidence is unsatisfactory and where in another
he has clearly lied and/or where his version is against the
probabilities.





The
following evidence in chief of the accused in this regard reads as
follows:





Q: “What
happened then after you ran away?”


A: “Then
he kept coming, then I returned back (indistinct).


Q by
Court: “We kept what?”


A: “We
kept calm and then I went back to him again.”


Q: “Who
became calm?”


A: The
deceased.”


Q: “And
then what happened when you returned back to him, Sir?”



A: “And then he came and that’s when he took out the knife. And
then I took the stick and beat off the knife from him."






At
best for the accused, the only basis in the accused’s evidence in
chief for finding that the deceased came towards the accused, was the
words – “and then he came and that’s when he took out the
knife.”





The
scenario sketched was that when the accused moved towards the
deceased, the deceased in turn moved towards him.





In
cross-examination the accused, when asked what the deceased did with
the knife, said: “He was walking towards me.”





In
response to the question – “and then what did you do?” he
replied: “And then I hit the knife off and then it fell down.”
When asked in evidence in chief where on his body he hit the
deceased, he had said: “On the left hand side of his body across
the heart area on the ribs”. He also stated that he hit the
accused in the same area one more time – i.e. a total of two blows.





In the
first part of the cross-examination the accused persisted with this
version but later in the cross-examination he conceded that he
inflicted three blows and now insisted that the first blow, to
dislodge the knife, was aimed at and inflicted on the deceased’s
hand.





The
learned trial judge completely ignored this evidence and found that:
“In order to defend himself the accused grabbed the fence-pole and
beat the deceased on the chest in order to disarm him.” (My
emphasis added.) This notwithstanding the fact that the Court
purported to accept the version of the accused and the accused had
been adamant in the latter part of his cross-examination that he hit
the deceased on the hand to dislodge the knife.





The
post-mortem examination by the doctor however, revealed no fractures,
bruises or wounds on any of the hands or fingers of the deceased and
only an old and joined fracture on the right forearm. If a blow with
the heavy fence pole was in fact struck at the hands of Nghidengwa
and landed on the hands or arms so as to dislodge the knife, one
would have expected the doctor to have found a fracture or bruise of
the hand or arm during the post-mortem examination.





There
was also no knife handed in at the trial and no questions asked why
not.





Nghidengwa
had a knife and pulled it from his waist, it should have been found
at or near the prostrate body of Nghidengwa.





The
question arises, if the accused had the knife seen by Junius in his
hand and if Nghidengwa had pulled this knife from his waist to attack
the accused and if the accused had managed to take this knife from
the deceased, then why was it not produced by him when the others
arrived on the scene, to show that the deceased attacked him with the
knife. On the other hand, if he had thrown it away, why would he
have done so?





Unfortunately,
neither the accused’s counsel, nor State counsel nor the learned
presiding judge asked the accused what happened to the knife which
according to him had fallen on the ground. One would have thought
that it was elementary to attempt to establish, in a case where the
defence of self-defence is the crucial issue, what the fate of the
allege knife was. The nearest that the State advocate came to such
an enquiry was to put it to the accused that the people arriving at
the scene said that the deceased “was already lying and you were
standing with t he stick and the knife”. The accused answered: “I
don’t know whether they found him on the floor or the ground”.
The accused did not respond to that part of the statement relating to
the stick and the knife in his hand.





Neither
State counsel nor defence counsel put to him the evidence of Junius
to the effect that when he arrived, the accused was standing with the
traditional knife in his one hand and the stick in the other.
Neither of them put to him the evidence of Kayoo that he removed,
what she believed to be the deceased’s traditional knife, and threw
it into the bush a few meters away. State counsel did not call any
policeman to explain whether a knife, allegedly used by the deceased,
was ever mentioned by the accused during the investigation; whether
the scene of crime was searched and whether or not a knife was found
or if found, what had happened to it.





The
accused’s story is that he left the scene even after he had struck
the deceased and while the latter was till standing. He did not
explain how he then came in possession of the traditional knife. If
the deceased had threatened the accused with a traditional knife it
would have been the obvious thing for him to testify that he in fact
picked up the knife from the ground after dislodging it from the
accused’s grip or that he took it from the body or the prostrate
body of the deceased after the latter had fallen to the ground. But
instead of that he says that he left with his brother immediately
after hitting the deceased and left when the deceased was still
standing. This evidence left no place for the stage when the accused
stood at the scene with a knife in one hand and the fence pole in the
other and the deceased prostrate on the ground.





The
fact that the accused for a substantial part of his testimony failed
to testify how he hit Nghidengwa on the hand to dislodge the knife,
is a further indication that the claim that Nghidengwa had a knife in
his hand and wanted to stab the accused and even lifted his hand in a
stabbing position, was a fabrication by the defence.





This
inference is further strengthened by the accused’s vague evidence
in re-examination when he then for the first time demonstrated how
the accused allegedly, not only took the knife from his hip, but
lifted it high up towards his shoulder and stabbed at the accused.





In
this part of the re-examination, the accused inter alia said:
“I did not really recognize the knife because it was dark” …”I
only saw him going into his waist and when he did this, its when I
thought to myself that he had a knife…” In re-examination by
State counsel he said: “Looking at it I thought it was a knife.
Looking at it I concluded that it was a knife.”





In
re-examination by his own counsel it was recorded that he gave the
following demonstration. “The accused indicates a movement from
the hip or waist upwards to the shoulder and then with the fist a
stabbing movement”.
(My emphasis added.) The question
immediately arises why this story was only told in re-examination.
If Nghidengwa even went so far as to stab at the accused, he would
certainly, with the help of his counsel, have been able to say that
in his examination in chief. This was clearly an afterthought and a
lie.





Again
the learned trial judge never mentioned this part of the accused’s
defence, which, if she gave it any consideration, should have led her
to different conclusions in regard to the credibility of the accused.
This failure by the trial Court amounted to a further misdirection.





The
only explanation of what probably happened to the knife was contained
in the testimony of the wife of the deceased, Nadhala Kayoo. She
said that she also followed Nghidengwa after he had beaten the
mother of the accused and Junius. According to the record, the
accused said: “Sir, don’t follow us.” The words “don’t
fool us” then appears on the record and were probably meant in
substitution of the words – “don’t follow us.”
Alternatively, the words – “Sir – don’t follow us”, may
have been intended as the words spoken by Nghidengwa. Whatever the
correct position this important evidence was not cleared up by
counsel or the Court.





The
following questions and answers followed:





Q: “Yes,
what happened then?”



A: “And then I just heard the pop sound and that’s when I
followed to the scene and what had happened.”



Q: “What pop sound are you referring to?”



A: “It’s a stick that moved. That had beaten the deceased.”



Q: “Did you see the beating?”



A: “No – I did not see it.”



Q: “And what happened then afterwards?”



A: “And then I found the deceased next to (indistinct). When I
came to the scene area then the deceased was being held in his waist
by the accused.”



Q: “In what position was the deceased? Was he standing up straight
or lying or sitting?”



A: “He was injured, he was lying on his back.”



Q: “And what was the accused doing?”



A: “When I came there I just found the deceased in the arms of the
accused and then his younger brother was saying: “Please leave the
man alone. …”



Q: “And when you got onto the scene and you saw your husband lying
on his back in the arms of the accused – did you see the knife?”



A: “The accused was holding something in his hand but I did not see
what it was … I did not find him with anything else. Or I did not
see him with anything else …”










On
further questioning about the knife, the witness said that when she
arrived on the scene she saw the accused pulling something from the
waist of the accused. On questions by the Court she said that when
she saw the accused holding the deceased in his waist, she saw him
throwing something into the bush. She continued: “And then the
kid said, the boy sitting over there said: “Stop it, leave the man
alone and come over here.” She explained that it was the brother
of the accused who said so.





It
must be remembered that the said brother Junius had also testified
that when he arrived on the scene, the accused had the fence pole in
his one hand and a traditional knife in his other hand and the
deceased was lying on the ground. The wife of the deceased, the
witness Kayoo, was then already on the scene.





Against
this testimony by Junius and Kayoo, the accused testified that after
he had hit the deceased, his brother Junius told him to leave the
deceased alone and they left. At the time, according to the accused,
the deceased was still standing and in fact never fell down after he
was struck by the accused during the time that the accused was still
on the scene.





It
must have been obvious that the accused’s version that the deceased
did not fall down while he was on the scene was not only in clear
conflict with the testimony of Junius and Kayoo, but a blatant lie.





The
trial judge in her judgment apparently did not consider these defects
and inconsistencies and even the latter obvious lie. Although
finding all the witnesses credible, she accepted as she said “the
accused’s version”, even though it was inconsistent with
testimony of the other witnesses, whom she also found credible. This
was clearly another misdirection.






  1. The question
    whether or not the blows struck by the accused were inflicted in the
    heat of the moment and in quick succession:






The
Court found that the blows struck were inflicted in the heat of the
moment and in quick succession and were consequently not exceeding
the bounds of self-defence in the circumstances.





The
first misdirection which the Court committed in this regard is that
as the evidence evolved, the accused had conceded that he had
inflicted three (3) blows, not two (2).





As to
the “heat of the moment”, I have already referred to the
accused’s own evidence supra, that there was the initial
confrontation when he conveyed his mother’s message, then followed
the story of his “running away”, the allegation that the deceased
then became calm and the allegation that the accused then returned to
Nghidengwa.





Furthermore
when the accused returned, according to his own testimony, Nghidengwa
no longer had the alleged knobkierie and the only alleged weapon now
available to Nghidengwa was the knife. But the knife was knocked out
of the hand of Nghidengwa with the accused’s first flow and he saw
it fall onto the ground. If the accused could observe this, and he
obviously had to lift the heavy fence pole the second and third time,
then he was not acting as an automat, who could not control himself
if he wished to do so.





It is
noteworthy that when the accused was asked repeatedly why he hit
Nghidengwa the second and third time when he no longer had a knife he
gave the following answer: “I had found him with a knife.”





The
“quick succession” story was also only voiced in response to
leading questions to the accused by the Court. Up to that stage the
accused, when asked why he had beaten the accused, only managed to
say that he beat Nghidengwa in self-defence, because Nghidengwa had
taken out a knife whenever asked why he inflicted two further blows
after the knife had been knocked from the hand of Nghidengwa. The
Court’s question which elicited this story during the
cross-examination by State counsel followed after two immediately
preceding, but futile efforts, by the Court. The question and answer
were phrased as follows:






Q: “I have one more question. Mr. Matheus, how long in time-span
how long did it take from the first to the second blow? Were it two
blows in quick succession or did you hit him the first time and wait
for a long time and hit him again?”



A: “Okay, after I hit off the knife or after I hit him on the hands
to let go of the knife then I gave him a second blow again.”


Q: Yes,
the question is how long between these two blows?”


A: “No time. There has
not been any time difference between.”





It must
be noted that the choice the Court gave him was between – “two
blows in quick succession” and “did you hit him the first
time and wait for a long time. (My emphasis.) There was no
third choice allowed such as e.g. or “did a short time elapse
between the two blows?” Be that as it may – the answer did not
explain why Nghidengwa was beaten a third time. When the State
counsel put that question the accused said that there also elapsed
“no time” between the second and third blows. But when asked why
he hit the deceased a third time he failed to answer and his silence
was noted on the record.





The
accused never said that he was not in control of his actions and
neither he nor his counsel pleaded automatism. If the Court had a
defence of automatism in mind, it should have held that such a
defence was not raised. Alternatively, that if raised it had
to fail.





To
inflict a number of blows in quick succession, when a person is in
control of his actions, can never amount to automatism. There was no
evidence to the effect that the accused had lost control of his
functions at any stage and that he was unable to stop the assault at
any stage when he perceived that the danger, if any, had ceased.





It is
unfortunate that the handling of these issues by counsel and the
Court was inept and unsatisfactory.





Whether
the fence pole used by the accused broke in two as a result of the
power with which the accused struck the deceased was never properly
examined by counsel and the Court. Two pieces of wood were presented
to Court and it was described by the Court as follows: “It is
about one metre in length. Then there is a smaller little piece that
may or may not be an off-cut of the first one which seems to
be another about 30 centimetres in length and the width is probably
about five centimetres”. (My emphasis added.) The Court further
remarked: “…It looks quite heavy… It’s a sturdy piece of
log”.





No
effort was apparently made by Court and counsel to try and see
whether the two pieces appear to be part of a pole which broke in two
as a result of the blow, rather than being an “off-cut” whatever
that may mean. The accused was not asked by counsel for the State or
the Court whether or not the pole broke in two when he hit the
deceased and if so, whether it broke at the first, second or third
blow. No effort was made to establish where the two pieces or stick
were found.





Similarly
counsel for the State did not in cross-examination of the accused ask
him to demonstrate how the blows, allegedly struck in quick
succession, were in fact struck – i.e. how he held the stick –
with one or both hands – how high he lifted the stick in order to
strike etc. The learned presiding judge also failed to put any
questions to clear up these issues.





Questions
in this regard were relevant to establish the power of the blows as
well as how quick in succession the blows were actually struck.





SECTION D


THE EFFECT OF THE
MISDIRECTIONS ON THE FACTS IN ISSUE





The trial Court misdirected
itself in material respects and it is therefore justified to reassess
the evidence in view thereof that the said misdirections impacts on
the findings of fact made by the trial Court and the conclusion of
innocence arrived at by that Court.1





In the result I arrive at
the following conclusions as to the correct findings relating to the
credibility of the witnesses and the facts in issue:






  1. The trial Court erred
    in finding that it had “no reason to disbelieve the version of the
    accused” and to accept his evidence in its totality, in view of it
    being contradicted in important respects by the testimony of his
    brother Junius and the mother of the deceased whom the Court had
    also found to have been credible.







  1. The evidence of the
    accused that his mother had sent him to the deceased to ask for
    money to take his mother to hospital, and in the alternative, to ask
    the deceased to take the accused’s mother to hospital should have
    been rejected in the light thereof that it was contradicted by both
    Junius and Kayoo, who were correctly found by the Court to have been
    credible witnesses. In fact, the evidence of Junius had to be
    accepted that after the accused had left, their mother was anxious
    about the whereabouts of the accused and entreated Junius to find
    him and when Junius found the accused, he repeatedly entreated him
    to return and not to follow the deceased.






The
deceased however, ignored these requests until after he had beaten
the deceased and the deceased was lying prostrate, injured and
helpless on the ground.






3. When the accused followed the deceased he was angry, because his
mother had been beaten by the deceased and was determined to confront
the deceased and at least enquire why he had beaten his mother.





It was a
natural and reasonable reaction for him to have been angry and
wanting to confront the man who had beaten his mother.






4. When the accused found Nghidengwa, he asked him why he had beaten
his mother.






5. The accused hit the deceased at least two blows with a relatively
heavy fence pole on the chest causing the fracture of the breastbone.






6. The fence pole was a formidable and dangerous weapon if wielded to
strike a person.






7. It would have been obvious to any reasonable person that to strike
an elderly person, estimated at about 80 years with this fence pole
on the chest would cause serious injury and even death.






8. The deceased did not have a kierie in his hands, when first
confronted by the accused; alternatively, even if he had, it
was not used to threaten the accused in any manner. The accused did
not hit the deceased to dislodge a knobkierie from the hand of the
deceased.






9. After the accused had first confronted the deceased and asked “why
the deceased had beaten his mother”, there was no confrontation
forcing him to retreat and he did not retreat. But even if he “ran
away”, the words used probably by the interpreter, that was
probably a manoeuvre to get in front of the deceased; at any event it
was clearly only a movement over a short distance, the length of the
inside of the Court wherein the trial took place and could have
lasted only for a very short period, probably counting in minutes.





Whatever
the nature of this particular movement, the accused again approached
the deceased immediately afterwards as testified by him and
corroborated by his brother Junius. The purpose could only have been
to continue the confrontation with the deceased. Even if the accused
had in fact “run away” or moved away to the front of the
deceased, there was no suggestion that he, as a young man, was
prevented in any way from continuing the “running away” or
“moving away” movement or that his life or limb was endangered in
any way if he continued the said movement.






10. The deceased fell down on the ground after being hit by the
accused and the accused was still at the scene when the deceased was
already lying on the ground. At one stage, he was even holding the
deceased whilst the deceased was lying on the ground as testified by
Kayoo.






11. The evidence of accused in re-examination by his counsel that
Nghidengwa had not only pulled out a knife from his waist, but had
lifted the knife to shoulder height and had attempted to stab him, is
rejected as an afterthought and a deliberate fabrication.






12. However, it must be accepted in favour of the accused as
reasonably possible, in view of the fact that the accused is the only
witness on these points and his evidence in this regard cannot be
rejected as obviously false, that: Nghidengwa pulled out the knife
when the accused advanced on him and Nghidengwa more or less at the
same time took a step or two towards the accused before the accused
struck him with the fence pole.





This
action by the deceased did not constitute an attack on the accused
and is, objectively speaking, consistent with a preparatory defensive
step against an anticipated aggression by the accused.





This
notwithstanding, it is also reasonably possible that the accused may
have interpreted this action by Nghidengwa as a preparatory step in
an imminent attack on him.





SECTION D:


THE LAW RELATING
SELF-DEFENCE:





Both parties referred to
the approach outlined in the full bench decision of the Namibian High
Court in State v Naftali2
as well as to some further authorities.





None of counsel argued that
any of the dicta in Naftali was incorrect and there is no reason to
take a different view in this case. The guidelines set out in that
decision are the following:






“Self-defence is more correctly referred to as private defence.
The requirements of private defence can be summarized as follows:







  1. The
    attack: To give rise to a situation warranting action in defence
    there must be an unlawful attack upon a legal interest which had
    commenced or was imminent.








  1. The
    defence must be directed against the attacker and necessary to avert
    the attack and the means used must be necessary in the
    circumstances. See: Burchel and Hunt South African Criminal Law
    and Procedure,
    vol I 2nd ed at 323 – 9.







When the defence of self-defence is raised or apparent, the enquiry
is actually twofold. The first leg of the enquiry is whether the
conditions and/or requirements of self-defence have been met, which
includes the question, whether the bounds of self-defence were
exceeded. The test here is objective but the onus is on the State to
prove beyond reasonable doubt that the conditions or requirements for
self-defence did not exist or that the bounds of self-defence have
been exceeded.







When the test of reasonableness and the conduct of the hypothetical
reasonable man is applied, the Court must put itself in the position
of the accused at the time of the attack. If the State does not
discharge this onus, that is not the end of the matter and the
second leg of the enquiry must be proceeded with. The second leg of
the enquiry is then whether the State has proved beyond reasonable
doubt that the accused did not genuinely believe that he was acting
in self-defence and that he was not exceeding the bounds of
self-defence. Here the test is purely subjective and the
reasonableness or otherwise of such belief, whether or not it is
based on or amounts to a mistake of fact or law or both, is only
relevant as one of the factors in the determination whether or not
the accused held the aforesaid genuine belief. (See Burchell and
Hunt
(op cit at 164 – 81 and 330 – 2); S v De
Blom
, 1977 (3) SA 513 (A).)







It seems that the learned authors of Criminal Law and Procedure
(supra) are correct when they say in a footnote at 332 that
the dictum of Schreiner ACJ in R v Ndara 1955 (4) SA
182(A) at 185 is both obiter and incorrect in the light of S
v De Blom
, supra, in so far as Schreiner stated that ‘the
accused’s belief must be reasonable’.







If the State discharges the onus to prove beyond reasonable
doubt that the accused held no such genuine belief, then the accused
must be convicted of the charge of murder. If the said onus
is not discharged, then the accused cannot be convicted of murder
requiring mens rea in the form of dolus, but can be
convicted of a crime not requiring dolus but merely culpa,
such as culpable homicide.







Culpable homicide will be a competent verdict where eg the accused,
although he genuinely believed that he acted in self-defence and
within the bounds of self-defence, was not, objectively speaking,
acting reasonably in holding the aforesaid belief. See S v De
Blom
1977(3) SA 513(A); South African Criminal Law and
Procedure
(supra at 180); S v Ntuli 1975(1) SA
429(A) at 435H – 438A: S v Ngomane 1979(3) SA 859(A) at
863A – 865C.”









There can be no difficulty
in understanding and applying the traditional approach regarding the
test for justifiable private defence, i.e. what was referred to in
State v Naftali, supra, as the first leg of the
enquiry. The second leg, dealing with the subjective element of mens
rea
and knowledge and/or appreciation of the unlawfulness of the
act on the side of the accused became more pronounced since the
decisions in State v Ntuli,3
and S v De Blom4.


It is helpful to refer to
the comment of Snyman in Criminal Law5
where the learned author states:









“The test to be applied is now as follows: If X (the party who was
originally attacked) is aware of the fact that his conduct is
unlawful (because it exceeds the bounds of private defence) and that
it will result in Y’s death, or if he subjectively foresees this
possibility and reconciles himself to it, he acts with dolus
(intention accompanied by awareness of unlawfulness) and is guilty of
murder. If intention to kill as explained in the previous sentence
is absent, X can nevertheless still be guilty of culpable homicide if
he ought reasonably to have foreseen that he might exceed the
bounds of private defence and that he might kill the aggressor. He
was then negligent in respect of the death. If, subjectively, he did
not foresee the possibility of death and it can also not be said that
he ought reasonably to have foreseen it, both intention and
negligence in respect of death are absent and he is not guilty of
either murder or culpable homicide.”









State counsel appearing for
the appellant argued inter alia that even if the accused had
faced an imminent attack, he should have fled rather than kill the
deceased.





It is therefore apposite to
make a few comments on the relevant principle in our law.





It is trite law that a
person need not flee, if in doing so it would be dangerous or it
would expose him to a “stab in the back”.6





However, there are
decisions of our Courts indicating that where it is not dangerous to
flee, the person attacked should flee, rather than to kill the
attacker in self-defence. But as Snyman points out, this has not
been unambiguously stated.7


I am not aware of any
authoritative decision by Namibian Courts, certainly not since our
Courts have become independent at Namibia Independence in 1990.





Snyman in his discussion of
the issue, points out that in the legal system of several western
democracies, such as e.g. in England and Germany, a person attacked
is not required to flee. In the USA the Model Penal Code provides
that a person must rather flee than kill a person in self-defence,
unless he is threatened in his dwelling or place of employment or is
a public officer whose duty is to maintain justice.8





It can also be argued that
since the decision of the Appellate Division of the South African
Supreme Court, in the Van Wyk decision, there is no longer any
room for perpetuating the principle that the person who is attacked
or where persons are attacked whose life and limb he/she has a duty
to protect, must rather flee than kill the attacker, appears to have
lost much of its validity.





In these times when violent
crimes such as murder, rape and robbery have increased ominously and
where the police forces and the criminal justice system are finding
it increasingly difficult to protect the victims effectively, the
potential murderers, rapists and robbers will be further encouraged
if they know that the law expects the victim to flee rather than to
use violence to repel the aggressor.





The reality is that the
need for self-defence and/or private defence, has become more
pronounced and urgent than ever before and unnecessary obstacles
should not be placed in the way of any person to protect his or her
life, physical integrity, dignity or property and those of third
persons where there is a duty to protect also such persons.





Of course the right to
adequate and effective self-defence and/or private defence cannot be
boundless and limitless. But the existing principles and rules are
adequate to ensure order and justice, without being burdened with a
requirement that victims unlawfully attacked, must rather flee than
kill, even where their lives and/or bodily integrity or property or
those of third persons for whom they are responsible, are gravely
endangered. Obviously no person may kill a thief when only a petty
theft is involved.





The question arises whether
or not Art. 6 of the Namibian Constitution has changed the principles
relating to killing in private defence. Art. 6 provides:






“The right to life shall be respected and protected. No law
may prescribe death as a competent sentence. No Court or Tribunal
shall have the power to impose a sentence of death upon any person.
No executions shall take place in Namibia.”(My emphasis added.)








In my view the aforesaid
provision does not affect the existing principles. It is true that
the right to life must be respected and protected. This includes the
right to life of the victim of an aggressor. The victim’s right
must also be respected and protected. One way for the victim to
protect his/her life or that of others, is to act in self-defence or
private defence. The existing principles which the Courts apply set
out herein, are in my view adequate to respect and protect also the
right to life of the aggressor and no change to the existing approach
is required.





In any event, it seems to
me that the contention that the person attacked must rather flee than
kill the attacker, would not apply to the defender who violently
resists, but does not intend to kill but only to injure.





Even though it is not
necessary to decide this issue in all its manifestations in this
judgment, it is at any event safe to say that a person would be
entitled to defend him/herself, if such person or those that he/she
is entitled to defend, are attacked and faced with serious threat to
life and/or limb in his/her own dwelling or place of work or if such
person is a public officer whose duty it is to protect society.





SECTION E


CONCLUSION





In my respectful view the
appeal must succeed to the following extent:






  1. The State did not
    prove beyond reasonable doubt that the accused had the direct intent
    to kill the deceased. What count in his favour is that he did not
    hit the accused on the head, which would have appeared to the
    ordinary reasonable member of the public and to the accused, as a
    more vulnerable part of the body, if he had wished to kill the
    deceased. Furthermore, he desisted from continuing the attack once
    the deceased was lying helpless on the ground. In addition, the
    accused testified that he did not “intend” to kill the deceased.






The
more difficult question however, is whether or not he had the legal
intention to kill, by virtue of the principle of dolus eventualis,
i.e. that he foresaw the reasonable possibility that Nghidengwa could
die as a result of his blows and proceeded, reckless as to the
consequences and/or that he reconciled himself with that possibility.
The accused was unfortunately never cross-examined on the issue of
whether or not he foresaw the reasonable possibility that Nghidengwa
could die.





In the
circumstances herein set out, I cannot find that the accused had the
direct intention to kill, nor can I find that he foresaw the
reasonable possibility that the deceased may die as a result of the
assault and nevertheless proceeded, reckless as to the consequences
or that the accused proceeded, after reconciling him with the
reasonable possibility that the deceased may die as a result.
Consequently the accused cannot be found guilty of murder.





However,
the accused, objectively speaking as a reasonable person in his
position, should have foreseen that Nghidengwa could die and was thus
negligent in not foreseeing that Nghidengwa may die as a result of
the assault and nevertheless proceeded with the assault. The accused
would thus be guilty of culpable homicide, unless the killing was
done in justifiable private defence.





In view
of the plea of self-defence, the enquiry does not end here.





The
Court must now engage in the first and second legs of the enquiry as
set out in State v Naftali, supra, in regard to the
issue of self-defence.





On the
first leg, it must be found that the accused did not act in
justifiable self-defence or private defence. Although he need not
have fled, if he was in fact attacked and in danger of losing his
life or being seriously injured - this is a case where the accused
persistently followed Nghidengwa, notwithstanding the efforts of his
brother to persuade him to turn back. Even when, on his own story,
there was no further legitimate reason to continue following
Nghidengwa after his original business had been completed and he had
seen Nghidengwa’s negative and aggressive response, he continued to
confront Nghidengwa. If his life and limb was placed in danger, it
was of his own making because he persisted in confronting Nghidengwa
– and Nghidengwa was entitled to take steps to defend himself
against his much younger and stronger opponent. Even if Nghidengwa
pulled out a knife, as a preparatory step to defend himself, he would
have been entitled to do so.





I will
assume for the purposes of this judgment that the accused was
entitled to take some steps – even to use a moderate degree of
force, to discourage Nghidengwa from attacking him. But even on this
assumption, it must be held that the State had at least proved that
the accused exceeded the bounds of self-defence.





The
second leg of the enquiry is perhaps the more difficult one because
it involves a subjective test.





The
accused was adamant that he acted in self-defence. When considering
the facts analysed aforesaid, it cannot be said that the State had
proved beyond reasonable doubt that the accused did not believe that
he was entitled to hit Nghidengwa as he did.





But
that does not finally conclude the issue of guilt or innocence. Here
we return to an objective test being – that if the accused did not
act reasonably or was negligent in believing that he was justified in
hitting Nghidengwa as he did, then he will still be guilty of
culpable homicide.


In my
respectful view, even if it is assumed in favour of the accused that
he believed that he was entitled to act as he did, such belief was
unreasonable and he was at least negligent in so believing.
Consequently he was guilty of the crime of culpable homicide.





In my
view this Court should not now consider sentence, but rather refer
the matter back to the trial Court for that Court to hear evidence
and argument on sentence and then impose an appropriate sentence. It
will of course be necessary to arraign the accused before a different
judge because the original trial judge is no longer a member of the
Bench of the High Court.





In my respectful view the
following order should be made:






  1. The appeal succeeds;







  1. The following order is
    made in substitution of the order of the trial court:








    1. The accused is found
      guilty of the crime of culpable homicide;









    1. The matter is
      referred back to the High Court for arraignment before a judge,
      other than the original trial judge, to consider and impose
      sentence after hearing relevant evidence in regard to sentence, if
      any, and the argument in regard to an appropriate sentence.
















_______________________


O’LINN,
A.J.A.











agree.




















________________________


STRYDOM,
C.J.











I agree.




















________________________


CHOMBA,
A.J.A.








/mv









COUNSEL
ON BEHALF OF THE APPELLANT: Ms. E.C. HARMSE


INSTRUCTED
BY: The Prosecutor-General





COUNSEL
ON BEHALF OF THE RESPONDENT: Mr. P.U. KAUTA


(Amicus
Curiae)



1
R v Dhlumayo and An, 1948(2) SA 677 at 705 – 706;


S
v Tshoko, 1988(1) SA 139(a) at 142 F – J.




2
NR 1992 at 299




3
1975(1) SA 429(A)




4
1977(3) SA 513(A)




5
Criminal Law, 2nd ed, 107 see also J M Burchell, SA
Criminal Law and Procedure, General Principles of Criminal Law, 3rd
ed under heading “Putative or supposed defence” 265/266.




6
Criminal Law, IBID, p 102 and the decisions there referred to.


JM
Burchell, SA Criminal Law and Procedure, vol I, 3rd ed,
77.




7
Criminal Law, IBID, p 102.


The
decisions in: Zikalala, 1953(2) SA 568(A) at 571/572


Patel,
1959(3) SA 121(A) at 123F.




8
Criminal Law, IBID 102- 103


Van
Wyk, 1967(1) 488(A)