Court name
High Court
Case number
2727 of 2011
Case name
Ashipala v Theofelus
Media neutral citation
[2012] NAHC 212
Judge
Van Niekerk J













REPUBLIC OF
NAMIBIA



IN THE HIGH
COURT OF NAMIBIA



CASE NO. I
2727/2011






In
the matter between:


HIRONIMUS
KITUKWAPO ASHIPALA .........................................Plaintiff


and


POPAWA
THEUFELUS
............................................................Defendant






CORAM:
VAN NIEKERK, J



Heard: 19, 20 June
2012



Delivered: 30 July
2012



________________________________________________________________________


JUDGMENT


VAN
NIEKERK, J:
[1] In this matter the plaintiff instituted
action against the defendant for damages in the total sum of N$230
000. In the particulars of claim the plaintiff alleges that the
defendant unlawfully assaulted him by beating him with fists and
bottles and by throwing a broken bottle in the plaintiff’s
right eye, as a result of which the plaintiff lost the sight in that
eye. In respect of this injury the plaintiff claims damages of N$180
000. The plaintiff further alleges that the assault took place in
public and within sight of members of the public. In respect hereof
he claims N$50 000 for contumelia suffered.


[2]
During the case management process it was agreed and ordered that the
issue of liability be separated from the issue of quantum. On
19 and 20 June 2012 this Court heard evidence and argument in order
to determine whether the defendant is liable for the plaintiff’s
damages.


[3]
The defendant in his plea denies liability. Although he admits that
he hit the plaintiff once with his hand while holding a glass, he
pleads that he acted in self defence against the plaintiff who was
attacking him after the defendant attempted to stop a fight between
the plaintiff and the defendant’s friend. He further admits
that the incident took place within sight of some members of the
public, but denies having knowledge of the allegation that the
plaintiff lost his eye sight or that he suffered contumelia.



[4] In his
testimony the plaintiff said that he is a lance corporal in the
Namibian Defence Force stationed at the Grootfontein Military Base.
On the date of the incident at about 3 – 4 am he was off duty
at a night club with his girl friend having drinks. The defendant,
who he knew as a colleague, came to his girlfriend on three occasions
and called her outside the club. On each occasion they stayed outside
for a while. The plaintiff asked his girlfriend what she was
discussing with the defendant, but did not receive any information.
Shortly after she returned on the third occasion, the defendant
approached the plaintiff where he sat drinking and punched him with
his fists. The defendant was accompanied by three or four other men
who also beat the plaintiff with their fists until he momentarily
lost consciousness. When he came to, he noticed his assailants
running to the outside of the club. He decided to follow them to find
out why they had beaten him. Outside he found the defendant alone and
asked him why he had beaten him. The defendant threw an empty glass
at him when they were about 1 metre apart. The glass broke and
injured the plaintiff, who held both hands covering his face while
blood was flowing from the wound. He was assisted by another male
person who stopped the blood and took the plaintiff to hospital where
he was treated. After a number of operations by different doctors the
ultimate diagnosis was that the plaintiff has lost the sight in his
right eye permanently.







[5] During
cross-examination the plaintiff denied that it actually was one
Natangwe Jakob (hereinafter “Jakob”)(later called by the
defendant as a witness) who called the girlfriend outside. He was
persistent that it was the defendant. He also denied that the fight
inside the club was only between him and Jakob. He also denied the
defendant’s version of self defence in all respects.







[6] The plaintiff
called a witness, Julius Nuunyango, (hereinafter “Nuunyango”)
who corroborated him in all material respects regarding the events
which occurred outside the club.







[7] The defendant
testified in support of his case. He stated that he went to the club
in the company of Jakob and one Manyando. A fight later started
between the plaintiff and Jakob. The reason for the fight was that
they were both involved with the same woman. He and Manyando
intervened to stop the fight. The defendant actually succeeded in
pulling Jakob away from the plaintiff, whereupon Jakob went outside,
followed by the plaintiff.







[8] A short while
later the defendant also went outside. He found another colleague,
one Timotheus, holding the plaintiff from the back by his arms while
Jakob and Manyando were approaching the plaintiff from a distance of
about 6 - 7 metres with stones in their hands. The defendant
testified that he still had a glass containing his drink in his hand.
He said to the others that they should stop the fight and went closer
to them. The plaintiff then somehow freed himself from Timotheus’
grip and stormed forward with a knife in his hand. Hereafter the
defendant’s evidence is not entirely clear, as he gave
different versions of the events. At times he stated that the
plaintiff wanted to stab Jakob, at times he said that the plaintiff
wanted to stab “someone” and at other times he said that
the plaintiff wanted to stab him (the defendant). Under
cross-examination it emerged more clearly that when the defendant saw
Timotheus holding back the plaintiff and saw Jakob and Manyando
approaching with stones, he spoke to Jakob, who told him that the
plaintiff wanted to stab them with the knife. Thereupon the defendant
went towards the plaintiff and pleaded with him they should stop the
fighting. When the plaintiff freed himself, it seems that, according
to the defendant, the plaintiff stormed towards the defendant.
According to the defendant, he moved backwards 2 or 3 steps. However,
the plaintiff moved too fast and when the defendant could not move
any more, he hit or punched the plaintiff with the glass from a
distance of about 1 metre. The defendant stated that he was fearful
of the knife, that the attack was imminent and that he acted in self
defence. The plaintiff went down screaming. The spectators then came
closer and one of them assisted the plaintiff.







[9] The defendant
called Jakob as a witness. He corroborated the defendant in several
respects, but also contradicted him on material aspects. Whilst the
defendant said that he saw Jakob and Manyando outside approaching the
plaintiff with stones in their hands, Jakob testified that, although
they did pick up stones, they were actually running away from the
plaintiff and that it was the latter who was approaching them.
Furthermore, whereas the defendant stated that he spoke to the
plaintiff to stop the fight while Timotheus was still restraining the
plaintiff and that the plaintiff then broke loose and stormed at him
with the knife held up, Jakob testified to a different order of
events. He said that the plaintiff first broke loose from Timotheus
and approached him and Manyando with the knife, whereupon the
defendant spoke to the plaintiff and asked him to stop fighting. Only
then the plaintiff stormed at the defendant. These contradictions
were not satisfactorily explained.







[10] There were
other contradictions in the defendant’s case. Firstly, his
counsel repeatedly put it to the plaintiff that it was Manyando who
held the plaintiff back, but when the defendant and Jakob testified
they both stated that it was Timotheus. The defendant attributed this
contradiction to a misunderstanding between him and his counsel.
However, it should be noted that the defendant sat close to his
counsel when the plaintiff was cross-examined and not once did he
correct the misunderstanding which allegedly arose.







[11] Secondly, it
is common cause that the defendant was convicted in the magistrate’s
court on a count of assault with intent to commit grievous bodily
harm arising from this incident. Whilst the defendant and Jakob were
adamant in this Court that the defendant hit the plaintiff with the
glass, it is common cause that in the magistrate’s court they
were both recorded to have testified that the defendant threw the
glass at the plaintiff. The defendant admitted in this Court that
this is what he testified in the magistrate’s court, but could
not explain why he did so. When it was suggested to him by the
plaintiff’s counsel that he must have realized after his
conviction that a throwing of the glass did not fit in with his story
that the plaintiff was so close to him that he had no choice but to
defend himself and that he changed his story in the civil case before
this Court, he merely responded by saying “I won’t say
anything to that”. The defendant did not make a good impression
on me when he was questioned about this aspect. He appeared hesitant
to answer and to be unsure of himself. He certainly did not come
across as credible on this point.







[12] The defendant
could not explain why the plaintiff wanted to attack him who
throughout, on his version, was the peacemaker and who actually
helped the plaintiff inside the club by pulling Jakob away from the
plaintiff while Jakob was fighting with the plaintiff. On his own
version it is inherently improbable that the plaintiff would have
attacked him.







[13] It is further
improbable that the glass, described as a normal beer glass, which
broke in his hand when he hit the plaintiff on the eye, caused him no
injuries, as he testified. The fact that he sustained no injuries
fits in better with the plaintiff’s version that he indeed
threw the glass.







[14] Jakob
testified that after the plaintiff was injured he held his face with
his hands and said “sorry guys”. This was never put to
the plaintiff or his witness. The impression I have is that this
piece of evidence came as a surprise to the defendant’s
counsel. The defendant certainly never testified to this effect. If
the plaintiff had indeed said this, it would have been an important
piece of evidence which tended to indicate that he was the guilty
party. I am sure the significance of this would not have been lost on
Jakob, who was an intelligent, eloquent and argumentative witness who
clearly did not feel intimidated by counsel or the Court. The
probabilities are that he would have informed counsel of this fact
during consultation so that this version would have been put to the
plaintiff and his witness. On the probabilities I conclude that he
added this detail as embellishment, but that the plaintiff did not
actually say this. This finding impacts negatively on the credibility
of Jakob.







[15] He was also
confronted with the record of his testimony in the criminal trial.
There he stated that the defendant did not intervene in the fight
inside the club, whereas before this court he stated that the
defendant did so. When requested to explain this contradiction he was
evasive and argumentative.







[16] When the
plaintiff testified, defendant’s counsel put it to him that
Jakob called the girlfriend outside because prior to 25 October she
had been his girlfriend and that he spoke to her about the fact that
she was drinking beer, something which she allegedly never did
before. However, when Jakob testified he said that the girl was
actually his girlfriend and that he had spent the previous night with
her. He further testified that he only greeted her, that he was not
angry when he found her with the plaintiff, but that it was the
plaintiff who became angry and hit him in the face. On this version
Jakob did not call the girlfriend outside at all. These
contradictions were not explained.







[17] Jakob further
testified that the plaintiff’s knife disappeared after the
defendant injured the plaintiff. He said that the plaintiff’s
friends rushed to him at that time and suggested that they could have
taken the knife. However, there is no other witness who testified
that the plaintiff had any friends there. These answers were given in
cross-examination. Once again I have the impression that they were
simply made up. I also think it improbable that, if there indeed was
a knife, not one member of the defendant’s group picked up the
knife with which they had been attacked to hand it over to the police
as evidence.







[18] The plaintiff
made a good impression on me, as did his witness who was a neutral
witness. It was not disputed that he was merely a colleague to both
the plaintiff and the defendant who also happened to be there that
night, whereas Jakob was the defendant’s friend who went to the
club that night in the company of the defendant.







[19] In weighing
the evidence presented in this case I bear in mind that the onus is
on the defendant to prove that his act of injuring the plaintiff was
justified (Felix v Mabaso 1981 (3) SA 865 (A)).







[19] In light of
the credibility findings made and having considered the
contradictions on material aspects and having weighed the
probabilities as set out above, I find that the plaintiff was
unlawfully attacked by the defendant and his friends inside the club.
When he went outside to enquire from the defendant about the reason
why, he was assaulted further when the defendant threw a glass at him
which injured his eye to the extent that he lost its sight. I am
satisfied on the probabilities that the plaintiff did not have a
knife, that he did not attack anyone and that the defendant did not
act in self defence. It is further common cause that the events
occurred in the presence of members of the public.







[20] In the result
I find the defendant liable for such damages of the plaintiff as may
be proved. The issue of costs stands over.











(Signed on
original judgment)



________________________



VAN NIEKERK, J



















































Representation
for the parties







For the plaintiff:
Mr C J Jansen van Vuuren



Krüger, Van
Vuuren & Co







For the defendant:
Mr T Nekongo



Sisa Namandje &
Co. Inc