Court name
High Court Main Division
Case number
CA 34 of 2013
Title

S v Ananias (CA 34 of 2013) [2013] NAHCMD 238 (06 August 2013);

Media neutral citation
[2013] NAHCMD 238
Coram
Parker AJ













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT (LEAVE TO
APPEAL)








Case no: CA 34/2013








In the matter between:








THE STATE
..................................................................................................
APPLICANT








and








GERSON
ANANIAS

........................................................................................RESPONDENT








Neutral citation:
State v Ananias (CA 34/2013) [2013] NAHCMD 238 (6 August 2013)
[In Chambers]








Coram: PARKER AJ



Delivered: 6
August 2013








Flynote: Criminal
procedure – Appeal – Application for leave to appeal by
the State – Applicant should state that reasonable possibility
exists that an appeal court would reach a different conclusion from
that reached by the trial court and must also clearly indicate
reasonable prospects of success – In the instant case, the
court found that there were serious misdirections on the part of the
learned magistrate on the law and the facts on material issues –
On that score, the court satisfied that the applicant has discharged
the onus cast on it for the court to grant the application.








Summary: Criminal
procedure – Appeal – Application for leave to appeal by
the State – To succeed applicant should state that reasonable
possibility exists that an appeal court would reach a different
conclusion from that reached by the trial court and must also clearly
indicate reasonable prospects of success on appeal – In instant
case court found serious misdirections on the law and the facts on
the part of the trial learned magistrate on material issues being the
learned magistrate’s wrong application of the novus actus
interveniens
principle and his failure to apply the principle in
S v Shivute 1991 NR 123 (HC) that exculpatory statements in s
115 (Act 51 of 1977) statements must (as a general rule) be repeated
by the accused under oath in the witness-stand for them to have any
value in favour of the accused – Consequently, the court found
that an appeal court may come to a different conclusion from that of
the trial court and there are prospects of success on appeal –
Accordingly, the court granted the State’s application for
leave to appeal.










ORDER










The application for leave
to appeal is granted.










JUDGMENT










PARKER AJ:








[1] The respondent was
arraigned before the Regional Magistrates’ Court, Karasburg, on
a charge of culpable homicide. After the State closed its case, the
learned Regional Magistrates’ Court magistrate (‘the
magistrate’) heard arguments from the respondent’s
counsel and the applicant’s counsel in respect of an
application brought by the respondent in terms of s 174 of the
Criminal Procedure Act 51 of 1977. The magistrate concluded, ‘In
view of the above observations your application for discharge at the
close of the State’s case is allowed. I find you not guilty’.
The decision on the s 174 application was given on 2 April 2009.








[2] On 14 May 2009 the
Prosecutor General (for the applicant) lodged a notice of application
for leave to appeal in terms of subsection (1), read with subsection
(2), of s 310 of the Criminal Procedure Act 51 of 1977 (‘the
CPA’) (‘the leave to appeal application’). It
follows irrefragably that the notice was lodged with the registrar
some 13 days in excess of the thirty days’ time limit.








[3] It is worth noting
that the notice was accompanied by an application to condone the late
lodging of the notice and a founding affidavit deposed to on 13 May
2009 by a public prosecutor attached to the office of the Prosecutor
General (‘the condonation application’). It is not a case
where such condonation application is filed some months or years
after the applicant became aware of his or her non-compliance with
applicable rules or the applicable Act.








[4] In the instant case,
the time for lodging the notice was exceeded by 13 days. At the same
time and on the same day as the notice was lodged the applicant acted
with commendable expeditiousness and filed a condonation application.
Under these circumstances it cannot be said that the delay is
unreasonable or due to gross negligence (see Transnamib v Essjay
Ventures Limited
1996 NR 188 (HC)); neither can it be said that
there has been flagrant breach of the Act (see Dimensions
Properties and Contractors CC v Municipal Council of Windhoek

2007 (1) NR 288 (HC)). Indeed, I find that on the facts there has not
been an unreasonable delay in the lodging of the notice. I also find
that there has not been any delay at all in launching the condonation
application. In sum, the badge of wilful and unreasonable delay
cannot attach to either the lodging of the notice or the launching of
the condonation application.








[5] Furthermore, I have
pored over the explanation for the delay of 13 days in lodging the
notice and I am satisfied that the reasons for the delay are
sufficient and reasonable. In this regard, with respect, I fail to
see any merit in Mr McNally’s submission that the ‘applicant
was inactive for a period in excess of four years’. It is not
the fault of the applicant that the condonation application was not
heard by the court so soon after 14 May 2009 when, as I have found,
both the notice and the condonation application were lodged with the
registrar as the CPA provides.








[6] In all this Mr
McNally overlooks the fact that the respondent, too, should have,
within a period of 10 days of serving of the notice on him, lodged a
submission with the registrar. The respondent did not do that;
neither did the respondent make an application to the court to
condone the respondent’s non-compliance with s 310(4) of the
CPA. I allowed Mr McNally to file such submission on or before 22
July 2013, that is, some four years after the respondent’s
non-compliance with s 310(4) of the CPA. What is good for the goose
must be good for the gander, I should say. I have granted an
indulgence to both the applicant on good cause shown and also on the
respondent, although he did not show any good cause. I did so in
order to have the benefit of the respondent’s response to the
applicant’s grounds of appeal. In any case, I did not hear Ms
Moyo to object vigorously against the extension of time granted.








[7] Having taken these
factors into careful consideration together with the fact that in my
view, as appears later in this judgment, there are prospects of
success on appeal from the magistrate’s decision, I think I
should exercise my discretion in favour of granting the indulgence
sought. The result is that I condone the late lodging of the notice
of the application for leave to appeal from the decision of the
magistrate.








[8] I now proceed to
consider the merits of the case. From the record it is clear that the
magistrate accepted the evidence that the respondent hit the deceased
with a glass on the deceased’s cheek, and as a direct result of
such attack on the person of the deceased the deceased sustained
serious injuries and that those injuries were not inflicted by
someone else. The magistrate concludes that ‘[T]here is a
possible cause of death that immediately comes to mind when looking
at the testimony of the state witnesses. That is the continuous
refusal by the deceased to be taken to hospital in Karasburg after he
was injured’. But there is no evidence, particularly medical
evidence, placed before the regional magistrates’ court to have
established that death occurred because of the deceased’s
initial refusal to be taken to hospital. On the contrary, the
evidence points to one irrefragable direction, namely, that the
injuries that the respondent inflicted upon the deceased were lethal.
The injuries were inflicted – according to the Report on A
Medico-Legal Post-Mortem Examination (Exh ‘E’) – on
the left side of the deceased’s face. Thus, the glass used by
the respondent to attack the deceased cut the ‘facial artery
left mandible’ which sent the deceased into ‘hypovolemic
shock’ which in turn led to an acute loss of blood, resulting
in death. The certificate of post-mortem examination (Exh ‘C’)
does not state that the ‘hypovolemic shock’ and the acute
loss of blood was as a result of the deceased’s initial refusal
to be taken to the hospital in Karasburg.








[9] Thus, there is no
evidence establishing that the deceased’s initial refusal to be
taken to hospital constituted an event that qualifies as novus
actus interveniens
so that the infliction of the serious injuries
on the deceased that were lethal can no longer be regarded as the
cause of death of the deceased. Besides, the evidence is clear that
the deceased was intoxicated and had earlier on given a great deal of
trouble to the respondent in his shebeen, including harassing patrons
of the shebeen. On that score I do not think the deceased was in his
sober mind to act reasonably, that is, to make any rational decision
that he be taken to hospital, as Ms Moyo submitted. Thus, this is not
a case where the evidence establishes that if the deceased had
initially consented to being taken to hospital that would undoubtedly
have saved his life. The deceased’s conduct was not capable of
breaking the causal chain between the inflicting of the lethal wounds
on the deceased and the death of the deceased at the hands of the
respondent. For these reasons I find that the magistrate’s
observation and conclusion to the effect that the deceased’s
initial refusal to be taken to hospital ‘is a possible cause of
death’ is a serious misdirection on the law and the facts.








[10] Ms Moyo submitted in
this way. In his s 115 plea explanation at the commencement of the
trial the respondent had raised a defence of self-defence and/or
private defence. In his s 174 ruling the magistrate stated that the
respondent had been entitled to defend his property as the deceased’s
aforementioned conduct had the effect of driving away the
respondent’s customers. In that event, so argued Ms Moyo, when
a private defence is proferred during a trial, an accused person
cannot be acquitted at the close of the State case as there is the
need for the accused to repeat his s 115 plea explanation under oath
and for its credibility to be tested under cross-examination. Counsel
relies on S v Shivute 1991 NR 123 (HC) and S v Tjiho
(2) 1990 NR 266 (HC) to support her argument. Mr McNally argued
contrariwise that Shivute and Tjiho do not place a
general duty on an accused to repeat his (or her) plea explanation
under oath; and so, according to Mr McNally the applicant’s
reliance on those cases ‘is misplaced’.








[11] I accept Mr
McNally’s argument that neither Shivute nor Tjiho
places a general duty on an accused to repeat his (or her) plea
explanation. And I do not read Ms Moyo’s submission to say that
they do. What Ms Moyo says is part of the ratio decidendi of
both Shivute and Tjiho. In Tjiho the court held
that in the light of the evidence adduced by the State, the
evidential value of the unsworn and uncontested statement of the
accused was such that not much weight could be given to it.
(Emphasis added) And in Shivute the court held that
exculpatory statements in s 115 plea explanation ‘must, as a
general rule, be repeated by the accused under oath in the
witness-stand for them to have any value in favour of the
accused’. (Emphasis added) One possible exception to the
general rule is that when a defence is raised in the exculpatory part
of an explanation of plea, it may be necessary for the State to
negative that defence to a prima facie extent.








[12] I do not accept Mr
McNally’s submission that Ms Moyo’s reliance on Shivute
and Tjiho is misplaced. Ms Moyo repeats the ratio decidendi
of the two cases, namely, that an exculpatory statement in plea
explanation must be repeated by an accused under oath in the witness
stand in order for it to have any value in favour of the
accused. Shivute or Tjiho does not state that the
accused has a duty to repeat the statement on oath in the witness
box. And that is also the submission by Ms Moyo. In sum, the ratio
of Shivute and Tjiho is that if the accused does not
repeat the exculpatory statement on oath, in the witness box, the
court is not entitled to place any value on the statement in
favour of the accused person. In casu, at the close of the
State case the learned magistrate should not have found the
exculpatory statement in the respondent’s s 115 plea
explanation to have any value in favour of the respondent. But
he did. (See S v Shivute at 127A-B.) And I find that at the
close of the State case, in the light of the evidence adduced by the
State, the State on the evidence had made out a prima facie case on
the main charge which the respondent had to answer. This finding
satisfies the ‘one possible exception to the general rule’
mentioned by O’Linn J in S v Shivute at 127C, and
referred to previously.








[13] For all these
reasons, I find that the magistrate erred in putting great value on
the exculpatory statement of the respondent in his s 115 in the
respondent’s statements favour which resulted in the
magistrate’s decision not to put the respondent on his defence
on the main charge. Accordingly, I conclude that on the grounds
raised by the applicant and for the aforegoing reasoning and
conclusions thereanent, I am satisfied that the applicant has
indicated reasonable prospects of success and also that reasonable
possibility exists that an appeal court would reach a different
conclusion from that reached by the learned magistrate in upholding
the respondent’s s 174 application and discharging the
respondent on the main charge. (See S v Nowaseb 2007 (2) NR
640 (HC).)













[14] In the result, the
application for leave to appeal is granted.























-----------------------------



C Parker



Acting Judge








APPEARANCES:








APPLICANT : C Moyo



Of Office of the
Prosecutor-General, Windhoek













RESPONDENT: P McNally



Of Lentin, Botma & Van Den Heever,
Keetmanshoop



c/o Delport Attorneys, Windhoek.