Court name
High Court Main Division
Case number
CA 15 of 2013
Case name
Mwanyekele v S
Media neutral citation
[2013] NAHCMD 301
Judge
Hoff J
Shivute J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CA 15/2013








In the matter between:








PAULUS MWANYEKELE
...........................................................................APPELLANT



and



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








Neutral citation:
Mwanyekele v State (CA 15/2013) [2013] NAHCMD 301 (25
October 2013)








Coram: HOFF J and
SHIVUTE J








Heard: 28 June
2013



Delivered: 27
September 2013



Reasons: 25 October
2013








Summary: The
evidence of single witness must be approached with caution although
such caution should not be allowed to displace the exercise of common
sense.








Where the State fails to
call witnesses who have been identified and who are available,
certain consequences may follow, namely that a court would be
justified to infer that the reason for such failure to call a
witness, is that in the opinion of the prosecutor such evidence might
possibility have given rise to contradictions which could have
reflected adversely on the credibility and reliability of the single
witness.



A finding by a court that
an accused had acted negligently or carelessly, on a charge of
attempted murder, excludes the element of dolus (intention).








The defence of
self-defence is a denial that conduct was unlawful. In considering
whether accused acted in self-defence a court is not required to
consider whether there was an equilibrium between weapons used.








It must be ever present
in the mind of a presiding officer that in the particular
circumstances of a case the person claiming to act in self-defence
might have done so in a emergency situation.








The act of self-defence
may not be more harmful than necessary to ward off the attack but
much depends upon the varying circumstances in each case in deciding
whether the bounds of self-defence have been exceeded.








The vital question is not
whether there were other methods of defence which might have been
successful, in averting the unlawful attack but whether the method in
fact adopted can be justified in the circumstances.










ORDER





(a) The appeal is upheld.



(b) The conviction and
sentence are set aside.










JUDGMENT










HOFF J (SHIVUTE J
concurring):








[1] On 28 June 2013 after
hearing argument in this case by counsel this appeal was postponed to
27 September 2013 on which date the appeal was upheld and the
conviction and sentence were set aside.








These are the reasons:








[2] The appellant was
convicted in the Magistrate’s Court sitting at Mungunda street,
Katutura of the crime of attempted murder and sentenced to a fine of
N$8000 or 2 years imprisonment.








[3] There are two
conflicting versions of what had happened prior to the complainant
being shot by the appellant.








[4] The complainant
testified that he together with two friends entered Osho Bar in
Okuryangava at 02h00 on 1 December 2009 with the intention to buy a
recharge voucher (airtime). One of his friends, Kapia went to the
jackpot machine where another person was already operating the
machine. There was a misunderstanding between these two persons and
by the time the appellant, who was a security officer at the bar,
went to investigate, the problem had already been solved. Complainant
testified that the appellant then went to his other friend Matheus
who was seated at the bar counter. It appeared to him that they were
arguing and he (ie complainant) went to them and asked Matheus what
it was about. Matheus gave no answer but the appellant who had a
‘stun gun’, ‘electrocuted’ Matheus in the
stomach, and he (ie the appellant) asked the complainant what he
wanted, saying that he would beat them up. The appellant then ordered
them to leave the bar. His friends were in front of him, leaving the
bar and he was at the back and the appellant was behind him. He then
just heard a gunshot and saw blood on his leg. According to the
complainant he informed the appellant that he had been shot but the
appellant gave no answer. Appellant at that stage still had the
fire-arm in his hand ‘cocking’ it. The complainant
testified that the same bullet which injured him on his leg also
struck Kapia ‘on his feet and the toes’. They were
subsequently removed by an ambulance and taken to hospital.








[5] The appellant
testified that the complainant and his friends entered the bar after
the gate of the boundary wall had been locked with the intention to
rob the establishment. He was surprised and enquired from them how
they gained entry to the bar and the response was: ‘You, are
looking for an excuse because you know very well’. There were
about three other persons in the bar one male person and two female
attendants who were busy counting money as well as three other
patrons. The complainant and his friends then spread out in an
attempt to surround him. He took out his fire-arm from his waist. The
complainant was coming fast towards him and he then fired a shot on
the floor whilst retreating. When he fired the shot the complainant
and his friends were about one and a half metres away from him. The
appellant testified that he did not aim at any person and that when
he fired it was meant as a warning shot and did not expect that
anyone would be injured.








[6] The J88 handed in as
an exhibit indicates that the complainant had been examined by a
medical doctor at the Katutura State Hospital on 1 January 2009 at
04h10. The injury observed during this examination was a gunshot
wound and a fracture on the right leg just above the ankle. An open
wound was indicated on the front of the leg.








[7] The State did, in
spite of the testimony of the complainant, not call the two friends
of the complainant to testify. The appellant also called no
witnesses.








[8] The magistrate in her
reasons before judgment stated that the complainant and his two
friends surrounded the appellant and stormed at him in an attempt to
grab his fire-arm and that the means used by the accused to retaliate
couldn’t be said to be proportionate to the ‘alleged’
attack.








[9] The magistrate
further found that the appellant as a security guard discharged a
fire-arm negligently, in that he fired a shot in a close confinement
and did so knowing very well that another person could be injured.
The magistrate further stated that the appellant carelessly injured
the complainant.








[10] It appears from the
reasons of the magistrate that she accepted the version of the
appellant that he fired a shot on the floor of the bar.








[11] The J88 indicating
that an open wound was observed in front of the leg of the
complainant supports the evidence that the complainant was facing the
appellant when the shot went off and contradicts the evidence of the
complainant that he was shot from behind by the appellant.








[12] Two of the grounds
of appeal read as follows:



The
learned magistrate misdirected herself, alternatively erred in law
and/or fact by failing to apply the cautionary approach to the
uncorroborated evidence of a single state witness . . .








The
learned magistrate misdirected herself, alternatively erred in law
and/or fact by finding that the accused in his actions exceeded the
bounds of self defence.’








[13] In terms of the
provisions of s 208 of the Criminal Procedure Act 51 of 1977 an
accused person may be convicted of any offence on the single evidence
of any competent witness.








[14] In R v Mokoena
1932 OPD 79 at 80 De Villiers JP held that the uncorroborated
evidence of a single competent and credible witness is sufficient for
a conviction but only in those instances where the evidence of such
single witness is clear and satisfactory in every material respect.








[15] In S v HN 2010 (2)
NR 429 at par 56 the court (per Liebenberg J) held that it is a
well-established rule of practice, that where a witness gives
evidence as a single witness, that such evidence must be corroborated
or approached with caution, although such caution should not be
allowed to displace the exercise of common sense. (See also S v
Esterhuizen and Another
1990 NR 283).








[16] It was submitted by
Mr Brockerhoff, who appeared on behalf of the appellant, that the
complainant was not a credible witness if one has regard to the
medical report (which was undisputed) which clearly shows that the
testimony of the complainant was false. The testimony of the
complainant being that he was shot from behind when he was walking
away from the appellant cannot be reconciled with the injury he
sustained on the front part of his leg. I agree that on this
important point that the complainant was untruthful.








[17] I may state at this
stage that it is trite law that the State has the burden to prove the
commission of an offence beyond reasonable doubt and in this regard
it is appropriate in my view to once again remind prosecutors of the
consequences of the failure to call witnesses where they have been
identified and are available.








[18] In S v Teixeira
1980 (3) SA 755 AD at 764A the court held that in the circumstances
the failure by the State to call the other witness to testify
justified the inference that in State’s counsel opinion his
evidence might possibly have given rise to contradictions which could
have reflected adversely on the credibility and reliability of the
single witness.








[19] In this appeal the
witnesses Kapia Johannes and Iita Matheus were at court and were
warned to appear in court when the case was postponed. There is no
reason apparent from the record why they have not been called as
state witnesses. The doctor who had examined the complainant was also
not called by the State.








[20] The appellant was
charged with attempted murder and the onus on the State was to prove
the required intention and unlawfulness (ie that he did not act in
self-defence). The finding by the magistrate that the appellant acted
negligently or carelessly in the circumstances excluded the element
of dolus (intention) and the magistrate thus in my view
misdirected herself in law by convicting the accused of attempted
murder.








[21] In my view once the
magistrate had found that the appellant acted negligently that should
have been the end of the matter and she should have found the accused
not guilty.








[22] However I shall deal
with the finding that the appellant exceeded the bounds of
self-defence. The plea of the appellant that he acted in self-defence
constitutes a denial of the allegation that he acted unlawfully.








[23] The magistrate by
stating that the means used by the appellant to retaliate was
disproportionate to the alleged attack or storming by the complainant
and his friends, implies that she accepted that there was an attack
on the appellant. In the circumstances it should be apparent that
this attack was unlawful.








[24] It is axiomatic that
the act of defence may not be more harmful than necessary in order to
ward off the attack but much depends upon the varying circumstances
in each case in deciding the question whether the bounds of
self-defence have been exceeded. In the consideration of this
question the courts adopt a robust approach.








[25]
In
Ntanjana v Vorster and Minister of Justice
1950 (4) SA 398 CPD at 406A-D van Winsen AJ stated the
following:








The
very objectivity of the test however, demands that when the Court
comes to decide whether there was a necessity to act in self-defence
it must place itself in the position of the person claiming to have
acted in self-defence and consider all the surrounding factors
operating at the time he acted. The court must be careful to avoid
the role of armchair critic wise after the event, weighing the matter
in the secluded security of the courtroom . . . Furthermore, in
judging the matter it must be ever present to the mind of the Judge
that, at any rate in the particular circumstances of the case, the
person claiming to act in self-defence does so in an emergency, the
creation of which is the work of the person unlawfully attacking. The
self-defender is accordingly entitled to have extended to him that
degree of indulgence usually accorded by law when judging the conduct
of a person acting in a situation of imminent peril.’








[26]
In
Ntsomi v Minister of Law and Order
1990 (1) SA 473 CPD at 529C-D Van Deventer AJ stated the
following:








As
both
Snyman
and
De
Wet and Swanepoel

point out, it would be nonsensical to require equilibrium between
weapons used. An assailant selects his method of attack and picks his
weapon. A victim can only employ the weapon that happens to be at
hand. An offender who uses an object such as a stone to attack a
policeman who is armed only with a shotgun is certainly not entitled
to expect the policeman to lay his shotgun neatly aside and to take
up the challenge to a fight with a stone in his hand.’








[27] In S v T 1986
(2) SA 112 OPD at 128D MT Steyn J stated that the true legal position
is that where a person who is being attacked does not find himself in
a life threatening situation, but who can only escape mutilation or
serious bodily injury by using a fire-arm against his attacker, may
do so, and if necessary even kill the attacker.








[28] In my view, in the
final analysis, and as was stated in Ntsomi (supra), the
question is not whether there were other methods of defence which
might have been successful, in averting the unlawful attack but
whether the method in fact adopted can be justified in the
circumstances.








[29] In this particular
instance the appellant was about to be cornered by assailants
including the complainant, who intended to disarm him. He was
outnumbered. Even though there is no evidence that anyone of these
assailants was in possession of any weapon, would it have been
reasonable to expect of the appellant to put his fire-arm aside and
to engage the assailants in a fist fight? It would have been the
height of folly to have expected of him to do so.








[30] In my view the
appellant was justified to use a fire-arm in the circumstances,
especially if one has regard that he only fired a warning shot on the
floor which ricocheted and struck the complainant above his right
ankle.








[31] The State therefore
did not prove beyond reasonable doubt that the appellant did not act
in self-defence and the appellant should for this additional reason
have been found not guilty on the charge of attempted murder.






































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



E P B HOFF



Judge




























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



N N SHIVUTE



Judge













APPEARANCES













APPELLANT : Mr
Brockerhoff



Instructed by Directorate
of Legal Aid













RESPONDENT: P S Kumalo



Office of the
Prosecutor-General, Oshakati