Court name
High Court Main Division
Case number
CC 5 of 2009
Title

S v Titsol (CC 5 of 2009) [2013] NAHCMD 183 (28 June 2013);

Media neutral citation
[2013] NAHCMD 183
Coram
Ndauendapo J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



APPLICATION FOR LEAVE
TO APPEAL








JUDGMENT



Case No: CC 05-2009








In the matter between:








GERT HENDRIK TITSOL
..................................................................................APPLICANT








and








THE STATE
..................................................................................................RESPONDENT








Neutral citation:
State v Titsol (CC 05/2009) [2013] NAHCMD 183 (28 June
2013)








Coram: NDAUENDAPO
J



Heard: 9 June 2013



Delivered: 28 June
2013








Flynote: Criminal
Procedure—Appeal—Application for leave to appeal—No
possibility that another court would reach different conclusion—No
reasonable prospects of success.








Summary: Applicant
was convicted of culpable homicide. As a police officer, applicant
failed to take the deceased who sustained injuries whilst in
detention to the hospital for medical treatment. Court found that the
applicant was negligent and convicted him of culpable homicide.
Disenchanted with the conviction, applicant launched on application
for leave to appeal against conviction.








Held, that there
are no prospects of success on appeal.



Held further, that
there is no possibility that another court may come to a different
conclusion. Application dismissed.








______________________________________________________________________



ORDER



______________________________________________________________________








The application is
dismissed.








____________________________________________________________________



JUDGMENT



_____________________________________________________________________








Ndauendapo J








[1] Before me is an
application for leave to appeal in terms of section 16 of Act 51 of
1977. This Court convicted the applicant of culpable homicide.The
facts in this case can be summarized as follows:



On the night on 31 March
2007, shortly before midnight, the wife of the deceased Margreth
Thompson, approached the charge office in Keetmanshoop for assistance
as the deceased was apparently troubling her at her house. The
applicant, a police officer together with two others was on duty at
the time (the other accused were acquitted). The applicant and
another police officer attended to the complaint and eventually
arrested the deceased and detained him for drunkenness. Contrary to
police standing orders, the applicant did not search the deceased
properly and he entered the cells with a knife. Moreover, and also
contrary to police standing orders, the deceased was locked into a
cell with two mentally disturbed persons and Charles Vries, a person
detained for domestic violence. Shortly after that a fight erupted
between the deceased and Charles Vries. The deceased attacked Charles
Vries with a knife and acting in private defence, (Charles Vries)
kicked the deceased. When the police arrived at the cell it was
established that the deceased was injured. The deceased was taken by
the applicant and another police officer to the hospital for
treatment. The nurse on duty requested the applicant to allow the
deceased to stay over for observation, but the applicant refused. The
nurse then advised him to bring the deceased to the hospital the next
morning. The deceased was eventually taken back to the cell. The next
morning, the applicant instead of taking the deceased to the
hospital, took him back to his house. Later on the deceased was taken
to the hospital where he later died.








[2] After hearing
evidence the Court convicted the applicant on the basis that he is



the one, together with
accused 3, who picked up the deceased at the house of his wife after
a complaint and before he got into the police vehicle he was not
searched by applicant, contrary to the procedure in operational
manual. When he was taken to the police station the deceased was not
thoroughly searched by applicant. If he was thoroughly searched by
applicant, as he claimed, how was it not possible to detect the knife
which the deceased had in his socks? There was evidence that
applicant did not visit the cell in which the deceased, who was
drunk, was kept every 30 minutes as required by the procedure in the
operational manual. There were no entries in the OB (Occurrence book)
that the deceased was searched, contrary to the operational manual.
It was the applicant together with accused 5 (who was on standby) who
took the deceased to the hospital. It was applicant who after being
advised not only by nurse de Waal, but also by his colleague accused
5 to keep the deceased at the hospital for observation, who refused.
According to Deputy Commissioner Visser applicant could have
exercised his discretion and allowed the deceased to remain in
hospital without being guarded. After all the deceased was well known
to applicant and he could not have escaped from hospital to go and
harass or trouble his wife because when he was brought to the
hospital he could not walk on his own, he was weak and that is why
they put him in the wheel chair. Nurse de Waal also testified that
the deceased was weak in his body. When applicant took the deceased
from the hospital to the police station, nurse de Waal again advised
applicant to bring the deceased in the morning to the doctor. He
promised to do that, but did not keep his promise. Again when the
deceased was brought from the hospital to the police station,
applicant did not make any entry in the OB. In the morning applicant
was again advised by witness Hupita, to take the deceased to the
hospital. Hupita testified that the deceased was looking very bad and
he told applicant that he must take the deceased to the hospital as
he was looking bad and “he (referring to the deceased) was
going to die anytime’. Instead of taking the deceased to the
hospital, he took him straight to his house. Having regard to all
that and especially the advice of the nurses and Hupita, applicant
should have foreseen the possibility that if the deceased does not
obtain medical treatment he will die. After all, the deceased
sustained injuries which led to his death while in the custody of the
police. There was therefore a legal duty on the police to make sure
that the deceased obtained the necessary medical care. In this
regard, it was applicant who refused the deceased to be kept at the
hospital for observation. It was applicant who after being requested
by nurse de Waal to bring the deceased to the doctor the next
morning, who failed to do that. It was applicant who after being told
by Hupita that the deceased was going to die, because he was looking
very bad, failed to take the deceased to the hospital. In my
respectful view, applicant should have foreseen the possibility that
the deceased may die if he is not taken to the hospital. The conduct
of applicant was negligent and his omissions to act by ensuring that
the deceased was taken to the hospital, as he should have done,
negligently caused the death of the deceased.








[3] The application is
based on; inter alia, the following grounds:








1 That the
honourable court erred in finding that the accused negligently caused
the death of the deceased.








2. That the honourable
court erred in finding that the state had proved the quilt of the
applicant beyond any reasonable doubt.








3. That the honourable
court did not correctly apply the test for negligence.’








[4] Mr Mostert appeared
for the applicant and Ms Wanternaar for the respondent.



Counsel for the applicant
submitted that the applicant has reasonable prospects of success on
appeal. Counsel for the state on the other hand submitted that having
regarding to the findings of the court regarding the conduct of the
applicant there are no reasonable prospect of success on appeal and
another court will not come to a different conclusion.








[5] When considering an
application for leave to appeal, the Court must consider whether
there are reasonable prospect of success on appeal








In
S v Nowaseb 2007 (2) NR 640 at 640F-641A Parker AJ, I had this to say
concerning application for leave to appeal:



It
has been stated in a long line of cases that in an application of
this kind, the application must satisfy the Court that he or she has
a reasonable prospect of success on appeal (See, e.g, Rex v Nxumalo
1939 AD 580; Rex v Ngubane and Others 1945 AD 185; Rex v Ramanka 1948
(4) SA 928 (0); Rex v Baloi 1949 (1) SA 523 (A); Rex v Chinn Moodley
1949 (1) SA 703 (D); Rex v Vally Mahomend 1949 (1) SA 683 (D &
CLD); Rex v Kuzwayo 1949 (3) SA 761 (A); R v Muller 1957 (4) SA 642
(A); The State v Naidoo 1962 (2) SA 625 (A); S v Cooper and Others
1977 (3) SA 475 (T); S v Sikosana 1980 (4) SA 559 (A). The first ten
sample of cases adumbrated above were decided before the coming into
operation of the new Criminal Procedure Act, 1977 (Act 51 of 1977)
(CPA), but the test remains unchanged. (Sikosana, supra, at 562D).








Thus,
an application for leave to appeal should not be granted if it
appears to the Judge that there is no reasonable prospect of success.
And it has been said that in the exercise of his or her power, the
trial Judge (or, as in the present case, the appellate Judge) must
disabuse his or her mind of the fact the he or she has no reasonable
doubt. The Judge must ask himself or herself whether, on the grounds
of appeal raised by the applicant, there is a reasonable prospect of
success on appeal; in other words, whether there is a reasonable
prospect that the court of appeal may take a different view (Cooper
and Others, supra, at 481E; Sikosana, supra, at 562H; Muller, supra,
at 645E-F). But, it must be remembered that “the mere
possibility that another Court might come to a different conclusion
is not sufficient to justify the grant of leave to appeal.’ (S
v Ceaser 1977 (2) SA 348 (A) at 350E).








Application
for leave to appeal has been dealt with extensively by this honorable
court. Time and again this honorable court has emphasized that an
application for leave to appeal under section 316 (1) of the Criminal
Procedure Act 51 of 1977 should be allowed if the court is satisfied
that the accused has a reasonable prospect on appeal. These
applications are not granted on compassionate ground, to console the
accused or simply afford them a further opportunity to ventilate
their arguments and, to obtain another judgment in a court of appeal.



S
v Nangombe 1991 (1) SA CR 315 (NM) at 352 B-C.’








[6] Having regard to the
findings of the court regarding the conduct of the appellant this
court is of the view that there are no reasonable prospect of success
on appeal, put differently there is no possibility that another court
my come to a different conclusion to justify the grating of the
application.








In the result I the make
the following order.



The application is
dismissed.








______________



GN Ndauendapo



JUDGE




































































APPEARANCE:



APPLICANT: MS B
WANTERNAAR



OF PROSECUTOR GENERAL
OFFICE, WINDHOEK


















RESPONDENTS: MR MONSTERT



ON INSTRUCTIONS OF LEGAL
AID, WINDHOEK