Court name
Supreme Court
Case name
S v Jonkers
Media neutral citation
[2006] NASC 4











REPORTABLE



CASE
NO. SA 15/2003






IN
THE SUPREME COURT OF NAMIBIA





In
the matter between













JOHANNES
JONKERS





AND





THE
STATE






APPELLANT











RESPONDENT






CORAM: Shivute,
CJ, O’Linn, AJA, et Chomba, AJA


HEARD
ON: 24/10/2005


DELIVERED
ON: 21/04/2006










APPEAL JUDGMENT





INTRODUCTION



Chomba,
A.J.A.:
The controversial legal question which falls to be
determined in this appeal is whether the appellant, Johannes Jonkers,
who was convicted of murder with dolus eventualis in
the court below, acted in self – defence when he killed one,
Benjamin Dawid Jonkers (the deceased). When his trial commenced way
back in March, 1998, his counsel, Advocate Z. Grobler, made a basic
admission on the appellant’s behalf pursuant to section 220 of the
Criminal Procedure Act, No. 51 of 1977. He submitted that the
appellant did indeed kill the deceased, but that he did so in self –
defence. The charge against the appellant being that the killing was
unlawful and intentional, the admission made nevertheless meant that
the charge was being denied. Therefore, a plea of not guilty was
entered by the court on the appellant’s behalf. After a full
hearing in which two prosecution witnesses, the appellant himself and
a defence witness, were heard, the learned trial judge in the court a
quo,
Gibson, J. found the appellant guilty with dolus
eventualis
and as charged. She then sentenced him to 15 years
imprisonment.







The
appellant made an unsuccessful application to the trial judge for
leave to appeal against both conviction and sentence. Thereafter he,
by petition presented to the Chief Justice, sought similar leave.
Three judges of this court considered the petition and granted leave.
The first appeal hearing slated for 16th June 2005 was
abortive since the State, due to some unsatisfactory handling of
appeal notices, were unready to proceed. We finally heard this
appeal on October 24, 2005, and then reserved judgment. We have
given due consideration to the heads of argument backed by oral
submissions given by Counsel for both the appellant and respondent
and now deliver this judgment.







This
court first wishes to commend Mr. Grobler and Ms. L.E. Dunn, who
represented the appellant and the State respectively before us.
Their learned and spirited arguments and submissions, each of them in
an endeavour to carry the day for his or her client, were quite
inspiring. Before we consider those arguments and submissions, I
propose first of all to review the facts of this case as presented in
the court below.







THE
FACTS







The
setting of the case was on Friday 31st January, 1997, and
the scene was a locality known as Grysblok in Katutura Township
Windhoek. It was in the evening of that day and at a house in the
single quarters, but oddly enough no witness mentioned whose
residence that house was. A gambling game of dice was being played
on the material occasion.







There
were a number of gamblers present, including the appellant, the
deceased, one Andries Albertus Beukes, who later became the main
prosecution witness in the trial aforementioned, and a man called
Albertus du Preez, who became a defence witness. Some other persons
collectively referred to as "the Owambos" were also
participants in the gambling. Andries Albertus Beukes (hereafter
“Beukes”) arrived at the said house at around 19:00 hours (7:00
pm). He joined in the gambling. As the evening wore on and as the
gambling was going on alcohol was being consumed, but it is uncertain
from the evidence whether all or some of the gamblers participated in
drinking the alcohol. Beukes testified that Granada wine and some
beer called tombo was consumed. Again the evidence was imprecise
about how much of tombo beer was drunk.







At
about 23:00 hours (11:00 pm) an argument erupted between the
appellant and deceased over a bet. Beukes testified that the deceased
won off the appellant a bet of N$20.00; the latter disputed the win
and demanded his money back. On the other hand, Albertus du Preez
(Du Preez) swore that the winner was the appellant but the deceased
grabbed the money back and hence the brawl between the two. The
appellant’s version, not surprisingly, was the same as that of his
witness.







At
the behest of the appellant, the quarrelling pair moved a distance
from the gambling place and went on to the courtyard which was paved
with interlocking bricks. The version of the events which ensued, as
given by Beukes, was that the deceased advanced towards the appellant
and as he got closer to the appellant, the latter produced a knife
and fatally struck the deceased with it. The victim collapsed and
death was apparently instantaneous.







The
version as given by Du Preez was that before the quarrelling pair
moved from the gambling place the deceased struck the appellant a
blow with the hand and this landed on the appellant’s left ear.
This particular assault was conceded by Beukes. Upon being struck,
the appellant challenged the deceased to leave and go aside so that
the two could “finish it”, an apparent slang meaning that the two
should go aside and fight it out. Du Preez was at one with the
appellant in asserting that as the deceased advanced towards the
appellant he put his hand into a trouser pocket and then lunged at
the appellant. The appellant testified that in doing so the deceased
struck two or three blows with a knife, but each blow ended in the
jacket he was wearing. The blows caused a tear in the jacket. The
appellant said that during the onslaught, he was retreating
backwards, but later he came against a fence which blocked further
retreat. The appellant then, in self – defence produced a knife
and stabbed the deceased with it. He then walked away.







A
Police Sergeant, Simon Kanyumara, was the investigating officer in
this case. His testimony was that in the evening of that Friday, he
was on stand-by duty. He received a telephone call as a result of
which he proceeded to Grysblok in Katutura. There he went to a house
in the single quarters. He found a crowd of people looking at a dead
man who was covered with a white shroud. One man out of the crowd
then came to the Sergeant and made a report. That person turned out
to be Beukes. The latter reported about how that dead man met his
death and also informed the Sergeant of the name of the suspect. The
Sergeant eventually apprehended the suspect the same night and took
him to the police station. The dead man was the deceased and the
suspect the appellant in the present case.






The rest of the police Sergeant’s
evidence was as follows: Upon interrogation, the appellant informed
the Sergeant that he, the appellant, was not the culprit in the
murder case but that he knew the true culprit and he could identify
him, although he did not know his name. Subsequently, however, the
appellant owned up, confessing that he was the killer of the
deceased, but added that he did so in self-defence. The appellant
later led the Sergeant to a veld not far from the houses of Grysblok
and in the grass there the appellant pulled out a knife which he said
he had used in killing the deceased. He handed that knife to the
Sergeant and that was the knife which the Sergeant produced as
exhibit 1 during the time he gave evidence at the trial.







On
the other hand Beukes claimed that he was the one who led the
Sergeant to the veld where he pointed out the place where he had seen
the appellant stick the knife in the grass on the material night.
Beukes stated in court that after stabbing the deceased the appellant
ran away, but he followed him. As on the material night there was
moonlight, Beukes was able to see the appellant sticking the knife in
the grass, although the appellant was then about 70 meters away from
him at that time.







Exhibit
1, the knife, was the subject of controversy. The appellant and his
witness denied that that knife was the weapon he used in the killing.
His evidence was that when he learned later that night while he was
visiting Du Preez that the man he had stabbed had died, he became
apprehensive, went into the veld and threw away the knife. He was
subsequently unable to lead the police to the place where he had
thrown the knife. Du Preez’s testimony on this point was that
exhibit 1 did not belong to the appellant, but to the deceased.
According to this witness Beukes took exhibit 1 from the scene of the
stabbing and he, Du Preez, had thereafter seen Beukes in possession
of the knife at work.







THE
JUDGMENT OF THE COURT A QUO







The
trial judge, quite rightly, held that this was essentially a case of
a single identifying witness. She accordingly cautioned herself
against the danger of acting on the unsupported evidence of such a
witness. In cautioning herself she stated at page 13 of her
Judgement:







Since
Beukes was a sole witness to this events (sic) I have to treat
his evidence with caution. Mindful that even a convincing witness
could easily be mistaken about what he relates. I was careful to
note the mistakes that Mr. Beukes made in his evidence and I am
satisfied beyond all reasonable doubt that in relating the events of
the night Mr. Beukes told the truth as he witnessed it, that in his
account the truth of the events was clearly established beyond doubt.
Not only was he consistent mainly, he was confirmed in some aspects
by the inspection in loco and he was confirmed in some
aspects by some of the evidence of Sergeant Kanyumara”










The evidence of Beukes, the single
witness, is therefore critical to the destiny of this appeal. In
this regard, it is necessary to mention at this stage that the trial
judge discredited Sergeant Kanyumara as a witness. This was
basically because during cross – examination Kanyumara conceded
that he had made a prior statement relating to his investigation of
this case. In a competent cross–examination, Mr. Grobler, who
represented the appellant at the trial, exposed a number of aspects
in which Sergeant Kanyumara’s evidence in the trial materially
conflicted with the earlier statement. I can do no better than
reproduce the trial judge’s observations in highlighting the
conflicts. The following is pertinent:











From
this point, the evidence of the state witness Sergeant Kanyumara was
not free from difficulties, from the State’s point of view. To the
extent that an onset of doubts came upon me concerning the
credibility of the Sergeant in most parts of his evidence. The
statement made by the Sergeant concerning the events was admitted, it
is an exhibit before the court. In that statement Sergeant Kanyumara
stated in paragraph 9 as follows: 'suspect person interviewed at the
station in the morning while the incident and the alleged offence of
murder has been read and explained to him, but he denies the
allegation and stated that he was present when the deceased was
stabbed to death by his colleague Jona….. Jona has been searched
and through the process one knife with a wood handle was handed to me
by the witness Andries Albertus Beukes and that was the knife used
stabbing the deceased person'. Just what this passage means is not
all together clear to me for it appears to suggest that the finding
of the knife followed the search upon a person named Jona. If this
is what the statement seems to convey then what the Sergeant there
stated is totally different from what he told the court. This
contradiction is of substance.” (See at pages 2 - 3 of her
judgment).











The
judge went on to highlight a number of other conflicts between the
Sergeant’s evidence and the contents of his earlier statement. She
also highlighted conflicts between some aspects of the Sergeant’s
evidence and those occurring in the evidence of the single witness,
Beukes, whose evidence she accepted as being credible. The overall
conclusion she arrived at as to the Sergeant’s credibility was as
follows on page 4 of her judgment:







Having
regard to these contradictions or inconsistencies in the Sergeant’s
evidence my view is that it reads so badly that it would be unsafe to
act on it totally. I will however, accept that part of his evidence
which, as I previously indicated, is confirmed by other evidence.”











In
a number of passages in her judgment the judge indicated the extent
to which she placed credence on the evidence of Beukes. Here below
are some of them:







Beukes,
the single witness to the events came over as an objective and honest
witness. Mr. Beukes was forthright in his answers and was not at all
shaken during cross–examination.” (Page 255 record).







Mr.
Beukes did not hesitate to admit facts which showed the deceased who
was his cousin in a bad light in the moments before the fight. That
showed in my view the witness’s genuine attempt to relate the
events as he knew them?” (Page 257 – record).







“Given the general objectivity of this witness and his inclination
to accept even aspects, of the case which clearly did not reflect
well upon his cousin, the deceased, I have no doubt whatsoever that
if the truth had been otherwise at the time of the stabbing Mr.
Beukes would not have hesitated to say it.” (Page 258 – record).







In
my view Mr. Beukes never exaggerated his evidence” and







All
in all, on the witness’s evidence I was quite satisfied that his
evidence read well even allowing for slight mistakes and
discrepancies.” (Page 260 – record).







His
demeanour was good, he looked comfortable under cross–examination.”
(Page 261 – record)







In
conclusion therefore I find that the events related by the single
witness Mr. Beukes established beyond reasonable doubt the truth of
what transpired that night during the stabbing of the deceased….”
(Page 265 – record).














As for the appellant and Du Preez,
the trial judges’ assessment of their credibility was
uncomplimentary. She stated at page 265 of the record (page 15 of
the judgment):










I
have no doubt at all that the accused (appellant herein) and his
witness were clearly caught lying. … I reject without hesitation
the account given by the accused and his witness as false”.














EVALUATION
OF THE FACTS OF THE CASE







Ms.
Dunn submitted to us that we should uphold the findings of the trial
Judge as to the credibility of the single witness, Beukes. She
contended that the trial Judge had an advantage which we, sitting as
an appellate court, did not have, namely the advantage of seeing and
hearing witnesses and of being steeped in the atmosphere of the
trial. She added that the Judge in the Court a quo not only
had the opportunity of observing the demeanour of witnesses, but also
their appearance and whole personality.







In
support of her contentions Ms. Dunn cited the case of R v Dlumayo,
1948(2) SA 677 AD. In that case two of the appellate judges, namely
Schreiner, J.A., and Davis, A.J.A., quoted with approval the
following propositions made by Lord Thankerton in the House of Lords
case of Watt v Thomas, (1947) 1 All ER 582 at page 587, viz:







"I. Where
a question of fact has been tried by a Judge without a jury and there
is no question of misdirection of himself by the Judge, an appellate
court which is disposed to come to a different conclusion on the
printed evidence should not do so unless it is satisfied that any
advantage enjoyed by the trial Judge by reason of having seen and
heard the witnesses could not be sufficient to explain or justify the
trial Judge's conclusion.








  1. The
    appellate court may take the view that, without having seen or heard
    the witnesses, it is not in a position to come to any satisfactory
    conclusion on the printed evidence.









  1. The
    appellate court, either because of the reasons given by the trial
    Judge are not satisfactory, or because it unmistakably so appears
    from the evidence, may be satisfied that he has not taken proper
    advantage of his having seen and heard the witnesses, and the matter
    will then become at large for the appellate court."












We
were also referred to a local authority which has a bearing on the
issue of how an appellate court should treat conclusions of fact
touching credibility of witnesses. This was the case of S v
Slinger,
1994 NR 9 (HC) in which O'Linn, J., as he then was
stated the following at C – D:







"Where
no irregularities or misdirections are proved or apparent from the
record, the Court on appeal will normally not reject findings of
credibility by the trial Court and will usually proceed on the
factual basis as found by the trial Court."











Having
cited the foregoing authorities, Ms. Dunn contended that there
existed in the present appeal no grounds for this court to interfere
with the decision of the court a quo as the appellant’s
guilt was proved beyond reasonable doubt.







It
is settled law that proof beyond reasonable doubt means that whatever
doubt is left in the judge’s mind after considering all the facts
proved in a criminal trial must be reasonable, and not a fanciful
doubt. To this end, the authority cited by Ms. Dunn is apt. That
authority states:







Proof
beyond reasonable doubt does not mean proof beyond a shadow of a
doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If evidence
is so strong against a man as to leave only a remote possibility in
his favour which can be dismissed with the sentence 'of course it is
possible, but not in the least probable' the case is proved beyond
reasonable doubt, but nothing short of that will suffice”.







See Miller
v. Minister of Pensions
(1947) 2 All ER 371 at page 373 – 374







I
grant that the learned judge in the court below directed herself
impeccably on the law when she cautioned herself against acting on
the unconfirmed evidence of the single identification witness,
Beukes. Having done that, her rating of the evidence given by Beukes
was so high that at the end of the day she was convinced that she
could safely depend on it in convicting the appellant as charged.
Granted also that she was undoubtedly in the advantageous position of
seeing and observing the witnesses as they gave their evidence and
indeed in being steeped in the atmosphere of the trial. Therefore
her conclusion on the reliability and acceptance of the single
witness, Beukes, can only be reversed by this court if there are
misdirections in her evaluation having regard to the totality of the
evidence on record, or indeed if I feel satisfied and sure that
because of the reasons she has given in accepting implicitly the
evidence of the single witness she did not take proper advantage of
her having seen and heard that witness.







In
considering how I should treat the trial judges’ conclusion on the
credibility of Beukes as a witness, I shall start with that piece of
evidence which, like a number of other portions of his evidence, was
elicited only under cross–examination. That was about the
relationship between Beukes and the deceased. It was only during
cross–examination that Beukes revealed that the deceased was his
cousin, born of Beukes’s aunt – an elder sister of Beukes’s
mother. Beukes was then asked if he wanted the person who stabbed
his cousin to be punished. He answered affirmatively. That piece of
evidence, in my view, showed that Beukes was a single witness with a
possible bias. He might have had an interest to serve, namely to
ensure at all costs that his cousin’s killer is convicted and
accordingly punished. In other words Beukes was a single witness who
was not totally disinterested in the outcome of the trial. It is in
my judgment important to bear this in mind as this witness’s
credibility is assessed.







Secondly,
the tenor of his evidence was that appellant was the aggressor in the
brawl which ended in the tragic fatal stabbing of the deceased. This
was so until he was made to concede in cross–examination that the
deceased was the first to deliver a blow on the appellant’s left
ear. According to Beukes the deceased was the winner of the N$20.00
bet off the appellant. The latter demanded his money back, and then
the deceased walked towards the appellant as the quarrel between the
two progressed. When the deceased got close to the appellant, the
latter produced a knife and stabbed the deceased with it. It was
also only under cross–examination that Beukes conceded that the
deceased was the bigger in physical build than the appellant.






Thirdly, in his evidence during
examination-in–chief Beukes testified that when the appellant
challenged the deceased “to go and finish it” the deceased walked
to the appellant, the latter produced a knife, and delivered the
fatal blow with it. The impression thus created when one reads that
part of his evidence is that Beukes was an onlooker at the
developments leading to the stabbing. It was only when the narrative
was being challenged under cross-examination that it appeared that he
never, for instance, saw the appellant produce a knife, let alone
stab the deceased. He admitted under cross – examination that all
he saw was the appellant withdrawing his hand from the deceased.
This was because he was busy gambling and at that time his back was
towards the quarrelling pair. He saw the withdrawal of the
appellant’s hand only when he turned round and looked at the two.
In other words, Beukes did not see the actual stabbing.







Further
it was Beukes’s evidence that when the deceased was walking towards
the appellant he did not have a knife in his hand. He said this in
an apparent refutation of the version given by the appellant and his
witness when they said that as the deceased advanced towards the
appellant the deceased put his hand in his pocket and produced a
knife. According to the defence version the deceased then lunged at
the appellant and delivered blows which only managed to cause a tear
in the appellant’s jacket. Beukes said he did not see all that.
There then occurred the following questions and answers between the
trial judge and Beukes:







"Court: Now
it has been put to you that the deceased put his hand in his pocket
after the accused challenged him, according to you, into his right
trouser pocket and pulled out a pocket knife; that the deceased then
lunged at the accused with the knife and caught him in the jacket at
the tear which was shown to you. You said that you didn’t see any
of that. That’s right isn’t it?







Beukes: I
didn’t see that.







Court: When
you say you didn’t see it are you saying that it might have
happened and you missed it or are you saying that it didn’t take
place at all? What are you saying?







Beukes: My lady, it could have happened but I didn’t see it."










Those questions and answers related
to a critical aspect of the case, touching as they did, on the
appellant’s defence of self–defence. They were also extremely
relevant to the credit to be accorded to the evidence of Beukes.
This was especially so in the light of the evidence which was
elicited earlier from Beukes in cross- examination, viz:-







"Grobler: And
you see if, let me put this another way, at what stage was the first
time that you saw a knife in the hands of the accused person?







Beukes: Just
at the time I turned around and the accused already executed the
stabbing it is when I saw the knife.







Grobler: So
you didn't actually see the stabbing?







Beukes: So
at the time I just turned around is when the time the, it was the
time then that the accused already stabbed, removing his hand and
bringing his arm down.







Grobler: Now
were you standing with your back to them or what was the position?







Beukes: My
lady I was, initially I was busy here with the game when they
approached one another there so at the time I turned around and
looked towards them it was then that I saw the accused bringing away
his arm from the body of the, or from the deceased and bringing it
down."











The
picture which Beukes had portrayed in his evidence–in–chief, of
watching the deceased approaching the appellant, of the appellant
producing a knife and stabbing the deceased was thus exploded to
smithereens by the answers Beukes gave to questions asked by the
court and those of Mr. Grobler. As a result of these answers, a
reverse picture was painted, a picture of Beukes having his back
towards the deceased and appellant as they were confronting each
other; Beukes was busy gambling; when he eventually turned round to
face the duo all he saw was the appellant withdrawing his hand from
the deceased. In the circumstances Beukes was not in a position to
categorically refute the appellant’s version, as supported by that
of his witness, Du Preez. Beukes was equally not in a position to
refute the version that the deceased struck two blows with a knife
and managed only to inflict a tear in the appellant’s jacket. What
is more is that the answers to the court’s questions and to those
of the appellant’s counsel, see supra, belied Beukes’s assertion
that as he walked towards the appellant, the deceased did not have
any knife in his hand.







Yet
another unsatisfactory piece of evidence which was shrouded in
controversy was exhibit 1, the knife. Beukes’s evidence purported
to prove that it was the weapon the appellant used in striking the
lethal blow on the deceased. Beukes testified that after the
stabbing, the appellant ran away, Beukes followed him for some
distance and saw the appellant hiding the knife in the grass. The
defence denied that exhibit 1 was the knife used. The appellant said
that he threw his knife away. Du Preez testified that exhibit 1
belonged to the deceased and that Beukes was the one who took it away
from the scene of the events under consideration herein. It is not
without significance that in the statement which Sergeant Kanyumara
compiled as part of his investigation into the case, he recorded that
he collected exhibit 1 from Beukes. Standing by itself that statement
might not be of any consequence. But Du Preez testified that Beukes
took a knife from the scene of the alleged crime and he identified
that knife as exhibit 1. Is it not an odd coincidence which a court
may have to consider, that Beukes is mentioned as the source of the
knife which was produced as exhibit 1, although it was produced
pursuant to evidence of a conflicting nature, since Sergeant
Kanyumara testified in court that it was the appellant who led him to
the place where the knife was recovered in the veld.







Furthermore,
I am of the view that Beukes’s evidence that the knife, exhibit 1,
was the weapon used in stabbing the deceased ought to have been given
more critical evaluation than was given to it by the trial judge. A
knife which, according to the post mortem report on the deceased’s
body, had penetrated the heart and lung should reasonably be expected
to have remained with blood stains on its blade. It was recovered
the very next day after the stabbing. At that time the stains
could be expected to still be visible on the blade. After all it had
supposedly been concealed in the grass. For some explained reason,
however, the trial judge stated on a number of occasions in her
judgment that the knife was found stuck in the ground and had to be
pulled out. That finding of the fact was not borne out by any
evidence. Sergeant Kanyumara’s evidence was that the knife was
found in the grass. So was Beukes’s evidence. The factual finding
that the knife was stuck in the ground could imply that the act of
sticking it into the ground and later pulling it out caused the blood
stains to be removed from the blade. As part of the investigation of
this case, the knife ought to have been subjected to a forensic
examination to determine whether or not there was blood on it and
secondly, if blood was on it, whether or not the blood grouping of
the stains on the blade matched with the blood grouping of the
deceased’s blood. Such forensic examination would have gone a long
way to affirm or disaffirm that it was the weapon used in the alleged
crime. Had the examination produced negative results on both scores,
namely, that there were no stains on the knife’s blade and thereby
establishing no relationship with the deceased’s blood group, such
results could have been favourable to the appellant. It could thus
have belied Beukes’s evidence that the knife belonged to the
appellant and that would have refuted the evidence that it was the
weapon used in committing the alleged offence.







It
is my considered opinion that when evidence is potentially available
to the prosecution, but due to dereliction of duty on the part of an
investigating officer, such evidence is not availed to the prosecutor
and to the court in due course, a reasonable presumption should be
drawn that such evidence, if it had been adduced, might have been
favourable to the defence. For that reason, I am of the view that
the learned trial judge was incautious in readily accepting the
evidence of Beukes that exhibit 1, the knife was the weapon used in
stabbing the deceased.







Also
not without significance is the evidence which Beukes conceded only
under cross – examination. It was the evidence that the deceased
was in the habit of going armed with a pocketknife every weekend.
This evidence raised the probability that even on that fateful
Friday, the start of the weekend, the deceased might have been so
armed. That probability should not be excluded out of hand as the
trial judge appears to have done by implicitly accepting Beukes’s
evidence which, in my view, was not without flaws.







The
evidence of the appellant was also that when the deceased attacked
him with a knife the blows of that attack caused a tear in his
jacket. The jacket, with the tear in it, was displayed at the trial.
Beukes conceded under cross-examination that the jacket was the very
one which the appellant wore that Friday evening. That evidence,
especially in the light of Beukes’s concession, was highly relevant
and an essential aspect of the case. It tended to prop up the
appellant’s version of being attacked by the deceased who was
wielding a knife that caused a tear in his jacket. Yet the trial
judge appears to have glossed over it despite its relevance.







In
the light of all the foregoing I hold the view that much more
creditworthiness was accorded to Beukes, than he deserved. Beukes was
a single witness who:







(a) was
a close relative of the deceased and therefore, a person with a
possible interest to serve, namely to ensure that the person who
killed his relation should at all costs face the consequences of the
law;







(b) was
so busy gambling most of the time while the confrontation between the
deceased and the appellant lasted that he could not possibly have
seen the appellant with a lethal weapon;







(c) on
his own evidence under cross–examination, he only saw the appellant
withdraw his hand from the deceased but never actually saw the
stabbing;







The
judge in the court below described Beukes’s evidence as not having
been exaggerated. To the contrary, it was exaggeration for him to
have –







(i) denied
that the deceased had any knife in his hand as he charged at the
appellant, since at the time he turned to watch the brawl between the
deceased and the appellant all he saw was the appellant withdrawing
his hand from the deceased, after the stabbing;







(ii) asserted
that he saw the appellant produce a knife and stab the deceased,
since at the time of the stabbing Beukes was busy gambling with his
back against the deceased and appellant.







(iii) asserted
at one time that he participated in consuming only one bottle of wine
and no other alcoholic drink, only to admit later under cross –
examination that he also drank tombo beer.







In
light of all the foregoing aspects which I have found to be adverse
to the single witness, Beukes, I firmly hold the view that the judge
in the court a quo did not apply sufficiently critically the
otherwise correct direction she gave herself of treating with caution
the evidence of a single witness. She came to the conclusion that
Beukes had told evidence worth acting on in convicting the appellant
in spite of the serious flaws in that evidence as I have highlighted
in the preceding paragraphs. I have highlighted above a number of
serious flaws in the evidence of Beukes. Those flaws
notwithstanding, the trial Judge paid glowing tribute to Beukes as a
witness of truth (see above). I feel sure that if she had directed
her mind to them she would not have put on Beukes a stamp of
creditworthiness to the high degree she did. I consequently hold
that the unwarranted glowing tributes amounted to serious
misdirections.







Additionally
I am, for the same reasons, convinced and feel satisfied and sure
that the learned trial judge did not take proper advantage of the
opportunity she had of seeing and hearing the witness Beukes.







Quite
apart from the flaws herein pointed out, one or two additional
comments require to be made on the judgment of the court, a quo.
As part of her notes regarding her observations at the scene of the
stabbing she made the following comment:







Quite
obviously therefore there were unlimited avenues of escape if the
accused was so minded, if he felt that his live (sic) was in danger”.











That
observation seems to suggest that the appellant had a duty to retreat
when he was under attack by the deceased as earlier narrated. The
law does not impose a duty to retreat, especially as in the present
case, where the attack was with a lethal weapon, a knife. One could
expose oneself to greater danger by turning one’s back to the
onslaught. Smith and Hogan, the learned authors of the
8th edition of “Criminal Law”, state the
following at page 263 - 264.







There
were formerly technical rules about the duty to retreat before using
force or at least fatal force. This is now simply a factor to be
taken into account in deciding whether it was necessary to use force,
and whether the force was reasonable. If the only reasonable course
is to retreat, then it would appear that to stand and fight must be
to use unreasonable force. There is, however, no rule of law that
a person attacked is bound to run away if he can.”
(underlining
mine)











The
foregoing statement of the law reflects the English position.
However, the Roman-Dutch position is basically in pari materia
with English law. Jonathan Burchell, the learned author of "
Principles of Criminal Law", second edition, states the
following at pp 139 – 140:







"Avoiding
the attack







Where
the threat is one of personal injury, a defence is not necessary if
the attack can be avoided by retreat or escape. Indeed some legal
systems, concerned about the preservation of human life, impose on
the victim of an attack a duty to retreat in so far as this is
possible and would not expose the defender to even greater danger.
Clearly, if to flee would be to worsen the acccused's chances of
avoiding the injury, he would be justified in standing his ground and
defending himself."















The
author cites the case of R. v Manuele Sile, 1945 WLD 134 at
135 as authority for the preceding quotation. That was a case in
which the deceased, a friend of the accused, had suddenly attacked
the accused, stabbing the latter and causing him severe head injury.
Reacting to the deceased's challenge to him to stand up and fight,
the accused produced his own knife and struck the deceased on the
cheek. The blow proceeded downwards and severed an artery, thus
causing the deceased's death. The court was called upon to determine
the question whether the accused's attack satisfied the self-defence
test. In determining that question, Neser, J. stated the following
in his judgement:







"If
there was no agreement to fight we are unanimously of the opinion
that at the time of the assault the Crown has failed to prove that
the accused did not act in self-defence. The onus is on the
Crown throughout and if the accused tenders evidence of self-defence
at the conclusion of all the evidence the Court, before it can
convict, must be satisfied beyond reasonable doubt that the accused
did not act in self-defence. At the place of the assault, the
accused had reason to apprehend danger because the deceased was armed
with a knife and had actually stabbed at him. …







It
is contended by the Crown that the accused could have avoided the
injury which was threatened, in that he could have turned tail and
fled. We feel, however, that any reasonable person in the position
of the accused at the time would not have considered that it was safe
to have done so. There was a distance of only two yards between
himself and the deceased and had he turned his back on the deceased
there was every danger of himself being fatally stabbed in the back.
Under the circumstances we do not feel that it is reasonable to have
expected him to turn tail and flee."














In the light of the adverse and dim view I have
formed of the credibility of the single witness, Beukes, the
appellant's version, as supported by defence witness Du Preez, has to
be accepted. In summary that version was that the deceased advanced
towards him, pocketknife in hand. He delivered two or three blows at
the appellant while the latter was moving backwards. One of the
blows tore the jacket which the appellant was wearing at the time.
In those circumstances it was unrealistic of the trial Judge when she
stated that there were unlimited avenues (for the appellant) to
escape if he was so minded. My view would be the same even if the
appellant's further evidence was discounted – as the trial Judge in
fact did – when he testified that his continued movement backwards
was blocked by a fence, thus justifying his own counter-attack.
Based on the appellant's story, it is evident that at the time of the
attack upon him the appellant was within arm's length from the
deceased, since the deceased's knife blow was able to reach the
jacket which was on the appellant's body and caused a tear in it. At
such proximity it would be the height of folly for any reasonable
person in the appellant's position to turn one's back in order to
flee.





In the case of The State v Gabriel Matheus,
case no. SA 11/2001, unreported, delivered on 21/06/2002, we had
occasion to consider an argument on self-defence which was submitted
before us on the appellant's behalf. My brother O'Linn, A.J.A.,
delivered the unanimous judgment of the Court in which he quoted with
approval the following dictum from the judgment of the full bench of
the High Court in The State v Naftali, 1992 NR 299 at p. 303.






The
defence of 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: Burchell 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, the acused must be acquitted. On the
other hand, if the State dischares the said 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 (sic) 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).) ….







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."











In
the book South African Criminal Law and Procedure, Vol II, 3rd
edition by Milton, the offence of culpable homicide is defined as
follows at p. 364:







"(1) The
crime of culpable homicide differs from the other form of criminal
homicide – murder – in one profoundly important respect – it
lacks the intent to kill. It is this intent which makes murder the
most heinous of all crimes, a fact reflected in the extremely severe
punishments imposed for murder. Culpable homicide, by contrast, is
punished with much less severity – often with no more than a fine.
Culpable homicide is thus a crime of minimal moral turpitude; X
is punished not because of his evil intent (indeed, he has no intent
at all) but rather simply for being careless
." (Underlining
mine.)











On
the basis of the facts of this case as already summarised, and with
the collapse of the evidence of Beukes the sole prosecution witness
to the killing of the deceased, the evidence given by the appellant
as supported by that of the defence witness, Du Preez, remains
unchallenged. I have consequently no difficulty in holding that the
appellant's version of what transpired on the fateful day establishes
the necessary requirements of self-defence, viz:







  1. the attack by the deceased on
    the appellant while the former was wielding a knife was unlawful and
    it induced a grave fear in the appellant for his life. The attack
    had in fact commenced.









  1. the
    defence by the appellant was directed against the attack and was
    necessary to avert the attack. The attack by the deceased having
    been made with a lethal weapon, namely the pocket knife, the means
    the appellant used in defending himself was necessary and did not
    exceed the bounds of self-defence.








Thus,
using the objective test, I am satisfied that the prosecution,
particularly in the wake of the collapse of the evidence of Beukes,
did not discharge its onus of proving beyond reasonable doubt that
the appellant did not act in self-defence. Therefore the
prosecution's evidence was deficient as a basis of convicting the
appellant of murder.







Applying
the second test, the subjective test, and bearing in mind the
definition of culpable homicide as reproduced from the South
African Criminal Law and Procedure
, supra, I am satisfied
that the appellant's conduct did not amount to culpable homicide.
There was noting careless or negligent in that conduct. I am certain
that the only thought that must have gone through his mind in the
face of the armed onslaught was to save his own life. I would
consequently and equally absolve him of the possible alternative
charge of culpable homicide.







I
have further considered the provisions of Article 6 of the
Constitution which states:







"Protection
of Life







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."















Reading
the first sentence of the Article in the context of the Article as a
whole, it would appear to me that the entities which were and are
being enjoined to respect and protect the right to life are the
legislative and judicial bodies, as well as the executive bodies
responsible for executing condemned prisoners. If, however, Article
6 was aimed at the man in the street or members of the public as
well, then I would echo what O'Linn, A.J.A., said in Gabriel
Matheus, supra
. He stated at page 33 of the judgment as follows:







"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."











Lastly,
there is the question of dereliction of duty in that the police
failed to ensure that the weapon supposedly used to stab the deceased
was subjected to forensic examination. In the result potential
evidence which might have been favourable to the appellant was not
forth coming. It was open to the trial judge, in my judgement, to
draw the presumption that the results of a forensic examination might
have bolstered the defence of the appellant. She failed to draw that
presumption by remaining silent. That was another misdirection.







In
conclusion, I feel that in this judgement I have shown that there is
justification for reversing the verdict made by the trial judge:
first the single witness’s evidence was seriously flawed; secondly
the trial Judge made a number of misdirections on crucial aspects of
the case and thirdly I am left with serious doubts, reasonable
doubts, which do not justify a conclusion that the appellant acted
unlawfully and intentionally when he killed the deceased. In other
words, the prosecution did not in my considered opinion, discharge
the burden of proving the appellant’s guilt beyond reasonable
doubt.







I
would, therefore, allow this appeal and in doing so I make the
following orders:












  1. The
    appeal is allowed.









  1. The
    conviction is quashed and the sentence set aside.









  1. The
    appellant is therefore acquitted; and









  1. I
    direct that he be immediately set at liberty.
























________________________



CHOMBA,
A.J.A.



















I
agree























________________________



SHIVUTE,
C.J.



































I
agree



























________________________________



O’LINN,
A.J.A.






















COUNSEL
FOR THE APPELLANT:


INSTRUCTED
BY:


COUNSEL
FOR THE RESPONDENT:


INSTRUCTED
BY:



MR. Z.J.
GROBLER


GROBLER &
COMPANY


MS.
L.E. DUNN


PROSECUTOR-GENERAL