Court name
High Court
Case number
CA 119 of 2010

Muahafa v S (CA 119 of 2010) [2011] NAHC 69 (11 March 2011);

Media neutral citation
[2011] NAHC 69

NO.: CA 119/2010







on: 07.03.2011 Delivered on: 11.03.2011


Appellant appeared in the Magistrate's Court, Tsumeb on a single
charge of assault with intent to do grievous bodily harm. He pleaded
not guilty and conducted his own defence; but in the end, he was
convicted as charged and sentenced to five years imprisonment. This
appeal lies against sentence only.

Although respondent in its heads of argument contends that appellant
was admitted to bail pending the appeal, there is nothing on record
showing that it is indeed the position. However, when the appeal was
heard, it was confirmed that appellant was not in custody; but
admitted to bail pending appeal.

The trial was finalised with appellant sentenced on 14 May 2009 to
five years' imprisonment. Although the date on which the Notice of
Appeal was drawn is 19 May 2009, the only date stamp appearing on
the said notice is that of the Registrar of the High Court, dated 15
December 2010. It is not clear why the notice was filed with this
Court and not with the clerk of court, as required by the rules of
the Magistrates' Court (Rule 67 (1)), and whether this was merely an
erroneous duplicate filing. Be it as it may, the notice should have
been filed with the clerk of the court, together with the power of
attorney, even before an application for bail, pending appeal, could
be entertained. Although there is no documentary proof that the
notice of appeal was filed within the time frame of fourteen days,
as required by the rules; and the respondent not taking issue with
that, I shall, for purposes of the appeal, accept that to have been
the position.

The grounds of appeal raised in the Notice of Appeal are: The
sentence is disturbingly inappropriate and induces a sense of shock;
the magistrate failed to take into account appellant's personal
circumstances; and instead, over-emphasised the seriousness of the
offence vis-a-vis the mitigating factors.

The presiding magistrate in his additional reasons expressed the
view that the sentence was proper and did not induce a sense of
shock; and, even though appellant was a first offender, it did not
mean that direct imprisonment could not be imposed. Furthermore,
that appellant should have given thought to his children before he
committed the offence; that he was not married to the complainant
and therefore could not have claimed her fidelity; and lastly, that
appellant was dismissed from his employment as a result of the
sentence imposed.

The prosecution called two witnesses namely, the complainant Fiena
Tuyeni and Gotlieb Binge, an eye witness. The appellant testified in
his defence. Briefly the evidence adduced at the trial can be
summarised in the following terms:

is common cause that appellant and the complainant were both in the
military and based at Oshivelo army base. That, they had an ongoing
relationship prior to the night of the incident; during which
accusations of infidelity were flung at the complainant (by the
appellant), who had just returned from Windhoek. This culminated in
a vicious attack on the complainant, during which she was slapped
and hit several times on her head and body with handles of a mop and
a rake, respectively. Complainant testified that the moment
appellant entered her room, situated in the barracks; he locked the
door behind him and started accusing her of infidelity. He then
slapped her once on the cheek and pushed the television (from its
stand) onto the floor. He broke the mop and used the handle to hit
the complainant thrice on the head, causing open wounds, from which
she bled, covering her face in blood. After crushing a DVD he
continued assaulting her all over her body with the rake handle
during which she lost one of her front teeth. She tried to shelter
herself by going into a locker, but apparently without much success.
It seems that complainant lost consciousness at that stage, as she
only afterwards realised that she also sustained injuries on her
legs and open wounds on her face. She was subsequently admitted to
hospital where the wounds were sutured. She was left with a scar on
the face and several marks ('scars') on her thighs.

The medical examination report handed into evidence by agreement,
was, for reasons unknown, compiled only after ten days by Dr. Sefu.
The gist of the report is that there were bruises and abrasions on
the right arm, right thigh, right side of the neck, and the back.
There were three open wounds; all sutured i.e. two on the scalp, one
below the right eye, and one on the left forearm. The right eye was
still swollen whilst one tooth on the upper jaw was missing.

The evidence given by the witness Binge corroborates the evidence of
the complainant as far as it concerns the assault, perpetrated on
the complainant. He said he was awoken by the cries of help coming
from the complainant, and when he went to her room, he found the
door locked. He ran to the window and as the light was switched on,
he saw the appellant beating the complainant with a stick. He was
unable to state the number of blows inflicted. When he told
appellant to stop, he replied saying:
will stop now",
simply continued. Binge decided to drive to the police station to
summon the police to the barracks, but was told that they were
already on their way. Upon his return, he came across a police
officer telling appellant to stop, otherwise they would break down
the door. Appellant then opened the door and came outside, followed
by the complainant, crying, with her head covered in blood.
Complainant was transported to Tsumeb hospital that same evening.

According to the appellant he caught the complainant in the act of
having sexual intercourse with an unknown man. When complainant
later on opened the door, this person came out and ran away. He
confronted her and she asked for his forgiveness. As he was about to
leave the room she pulled him on the arm, causing him to fall onto
the bed. He said he then lost his temper and slapped her, causing
her to knock her head against the wall. He confirmed hitting her
with a broomstick. He explained that the television and DVD broke
when complainant pushed him; whereafter he fell, breaking it in the
process. He admitted having beaten complainant on her buttocks with
the broomstick; also that he was told by both Mr. Binge and Warrant
Officer Shivute, from the Namibian Police, to stop doing so.

Judging from the State witnesses' evidence and specifically the
injuries inflicted with a broom/mop handle as noted on the medical
examination report, it is evident that complainant was subjected to
a brutal and vicious attack. Complainant lost consciousness during
the assault and testified that she vomited and 'had to use the
toilet'. She was left with a permanent scar below her eye and marks
on her legs.

In his
the magistrate - clearly having rejected the appellant's version of
catching complainant in the act and her pushing him down onto the
bed - stated that appellant was not provoked, but became angry as a
result of his jealousy. The magistrate, in my view, was correct in
rejecting the appellant's account of what led to the assault on the
complainant. There is no reason for this Court to interfere with the
magistrate's findings on credibility and factual findings and it was
neither contended that any misdirection or irregularity was
committed by the magistrate in his evaluation of the evidence.

The court, in its judgment on sentence, amplified its earlier view
by saying that the complainant was of slender build and unable to
defend her against the appellant's attack. The court
cognisance of the fact that appellant was armed with a firearm at
the time and concluded that the only reason why he did not use it,
was because he had forgotten about it. However, there is nothing on
record justifying that conclusion. The magistrate clearly viewed the
assault in a serious light and was mindful that it could have had
fatal consequences. Regard was also had to appellant's continued
assault, despite intervention from others, calling on him to stop.
These are all factors the magistrate was entitled to consider when
passing sentence and I am unable to find that he misdirected himself
in that regard.

There can be no doubt that the assault falls in the category of
cases that can be described as serious. Appellant made use of a
broomstick/mop handle to hit the complainant with, all over her
body. A fair number of these blows were directed at the head,
causing open wounds and her bleeding from her head. Despite
complainant's cries for help and her telling the appellant that she
had lost a tooth, he persisted. The magistrate's opinion, that the
assault could have been fatal, is not without merit. This Court
frequently tries cases in which the victims were subjected to
similar and even lesser degrees of assaults, with fatal
consequences. The fact that complainant lost consciousness under the
attack, could be indicative of the severity thereof; whilst her
being nauseous, a sign that she was in shock. Aggravating factors
are: that complainant was completely defenceless and no threat to
the appellant; it was a protracted and unprovoked assault in which
appellant persisted, despite being told to stop; he made use of a
weapon which inflicted serious injury, leaving complainant with
permanent scars on her face and body.

On the opposite side lie the mitigating factors, and the court
into account that appellant was in the employ of the Namibian
Defence Force; that he had a sickly mother suffering from cancer and
who, together with other family members and his own two children,
were all his responsibility, as he was the only person in the family
with a monthly income. When testifying in mitigation, appellant said
that although he could not undo his misdeeds, he was sorry for what
he has done. He is thirty-four years of age and a first offender.

Appellant asserted that the trial magistrate failed to take his
personal circumstances into account; more specifically, the fact
that appellant was a first offender; had
children of school going age; would lose his employment; and had
acted out of frustration and hurt because of complainant's
infidelity. The grounds raised, in my view, are without merit.

Firstly, appellant only has
children and not three as contended. Secondly, in his testimony
appellant said that he did confront complainant about her
infidelity, but only became angry when she pulled/pushed him down
onto the bed -not that he was 'frustrated'. In any event, the court
specifically found that he had acted out of jealousy, a finding
appellant must have accepted, for he did not appeal against his
conviction as well. Furthermore, by not specifically stating in the
that the court was mindful that appellant was a first offender and
that he would lose his employment as a result of the sentence
imposed, does not mean to say that it was given
all. This is not an instance where the Court of Appeal - as it often
is the case - is faced with a situation where
for conviction or sentence are provided.

reasons were given in the judgment on sentence for this Court to see
which factors were considered and the weight given thereto. At page
30 of the record of proceedings the magistrate, after conviction,
specifically enquired from the prosecutor whether a criminal record
of the appellant was available, which was answered in the negative.
The magistrate was alive to the fact that appellant was a first
offender and equally must have appreciated the fact that, by
imposing direct imprisonment, appellant obviously would lose his
employment. To that end the following appears from the record at p

although the sentence the Court decides to impose against you, it
has also touched the minds of the Courts, although I feel pain at
the bottom of my heart for your mitigatory factors, for the people
whom you are responsible with and your loved mother who is suffering
from cancer, I would fail in my duty should I not impose a direct

my view, there is nothing showing that the magistrate failed to take
into consideration the personal circumstances of the appellant, and
the appeal cannot succeed on that ground.

Besides emphasising the seriousness of the crime and the nature of
the injuries inflicted, the court
took into account the prevalence of the specific offence; and that
it was usually defenceless people, like women and children, who fall
victim to unscrupulous criminals. The magistrate was under a duty to
take notice of the incidence of crime in his area
(2) SA 83 (SWA);
v Packereysammy,
(2) SACR 169 (SCA)). These are all aggravating factors the
magistrate was entitled to take into account when deciding what
punishment would not only serve the interests of the appellant, but
also that of society. In this case, appellant's actions were
unprovoked and unjustified; more so because the relationship between
him and the complainant was such that he could simply have walked
away and terminated his relationship with her, without turning
violent and 'punish' her for something he believed she was guilty
of. We live in an orderly society where the rights of others are
respected - also the freedom of association - a fundamental right
enshrined in the Namibian Constitution. As a member of the Forces,
appellant ought to have understood this better than the average

for the appellant, conceded that the crime was serious, but
submitted that it did not justify a sentence of direct imprisonment;
which sentence in her view, was disturbingly inappropriate as a
custodial sentence was not justified in the circumstances.
the responded, shared a different view and contended that, should
the Court find the sentence to be too harsh - which he to some
extent conceded - then a partly suspended sentence in the
circumstances would be appropriate.

It is trite that punishment falls within the ambit of the discretion
of the trial court and that a Court of Appeal should not readily
interfere unless there is good cause; and there will be good cause
where the sentence is vitiated by irregularity or misdirection or,
where the sentence imposed is disturbingly inappropriate and induced
a sense of shock. To come to such conclusion, the Court must be
satisfied that the sentencing court did not exercise its discretion,
regarding sentence, judicially1.

The argument advanced on behalf of the appellant that the court
itself by disregarding the personal circumstances of the appellant
is, as shown
merit. The question that needs to be answered, in my view, is
whether the sentence, on the facts of the present case, is
disturbingly inappropriate as to induce a sense of shock. Although
contended that it was not the case, he later on conceded that he was
unable to refer us to any case law on point, justifying a sentence
similar to what has been imposed in this instance. Furthermore, that
the term of imprisonment imposed might be unreasonably long and that
this Court would therefore be entitled to reduce it; but, not to
substitute it with a totally suspended sentence, as, in his opinion,
that would not be an appropriate sentence in the circumstances.

The concession, in my view, is properly made and I find a sentence
of direct imprisonment of five years on a charge of assault with
intent to do grievous bodily harm, in the circumstances of this
case, to be inappropriate as to induce a sense of shock. The Court
accordingly finds that the presiding magistrate, in sentencing, did
not exercise his discretion judicially to the extent that the term
of imprisonment isexcessive, and not justified. A sentence of this
kind should be reserved for more serious cases. Although the assault
was considered to be serious and warrants a custodial sentence, it
simply did not warrant the exceptionally heavy sentence meted out by
the court
this instance.

When regard is had to the main principles applicable to sentencing
i.e. the triad of factors
the main purpose of punishment
Khumalo and Others)3
I firmly believe that a deterrent sentence is called for,
individually and generally; and given the circumstances of the
present case, it would be justified to emphasise the deterrent
aspects of punishment4.
Appellant, as submitted by Ms.
not be a threat to society in general requiring his removal on that
basis, but, the chances that he would in future become involved in
other relationships are excellent; increasing the possibility that
he might find him in a similar situation as the present, where
jealousy takes control of his emotions. To that end, appellant needs
to reform. In a broader sense, the message must be clear to all
like-minded persons that the courts will not sit idle and watch how
the rights of the vulnerable in our society, are simply trampled on;
almost like these rights are non-existent. Women are not utility
objects - they equally have rights like men and are entitled to look
up to the courts for protection, where there rights have been

I have already alluded to the fact that in the present
circumstances, a custodial sentence would be justified. We have been
referred to the unreported judgment of
the Court substituted the sentence of three years

imprisonment (on a similar charge) with a totally suspended
sentence. The Court in that instance found that the assault was not
serious - unlike the Court's finding in the present case. Mindful of
the fact that a wholly suspended sentence is also viewed to be a
deterrent sentence hanging over the offender's head, I do not find
the present case to be an instance where a wholly suspended sentence
would be justified; reflecting that a proper balance was struck
between the interests of the appellant and that of society. I
believe justice dictates that the sentence to be imposed should also
reflect the element of retribution, albeit to a lesser extent.

In the result, it is ordered:

  1. The
    appeal against sentence succeeds to the extent that the sentence is
    set aside and is substituted with the following: Three (3) years
    imprisonment of which eighteen (18) months imprisonment is
    suspended for five (5) years, on condition that the accused is not
    convicted of the offence of assault with intent to cause grievous
    bodily harm, committed during the period of suspension.

  2. Appellant
    to report himself to the Clerk of Court Tsumeb within seven (7)
    days from today for committal.





by: Kishi Legal Practitioners


by: Office of the Prosecutor-General

v Ndikwetepo and Others,
NR 319 (SC) at 322F-J;
v van Wyk,
NR 426 (HC) at 447G-448B;
v Ivanisevic and Another,
(4) SA 572 (A) at 575F-G.

(2) SA 537 (A)

(3) SA 327 (A)

v van Wyk (supra)

No. CA 42/2005 delivered on 14.08.2006