REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION
HELD AT OSHAKATI
LEAVE TO APPEAL RULING
Case no: HC-NLD-CRI-APP-SLA-2019/00079
In the matter between:
THE STATE APPLICANT
JONAS JOHANNES RESPONDENT
Neutral citation: S v Johannes (HC-NLD-CRI-APP-SLA-2019/00079)  NAHCNLD 50 (07 May 2020)
Coram: JANUARY J
Heard: 20 March 2020
Delivered: 07 May 2020
Flynote: Criminal Law – Murder - Leave to Appeal – Acquittal – Self-defence – Requirements restated - Another Court may not come to different conclusion – No prospects of success.
Summary: The respondent was acquitted on a charge of murder. He acted in self-defence. The applicant filed an application for leave to appeal. The requirement for self-defence are restated. There are no prospect that another court may come to a different conclusion and no prospects of success on appeal.
The application for leave to appeal is dismissed.
 The respondent, herein referred to as the accused was charged for murder in the Regional court, Ondangwa. He pleaded not guilty and was acquitted after evidence was led. The accused did not give a plea explanation. He was represented by Mr Kandara who informed the court that the basis of his defence will become apparent during the trial. Mr Iyambo represented the State in the court below.
 This is an application for leave to appeal. Mr Matota is representing the State in this court. The accused is again represented in this court by Mr Kandara. Counsel filed extensive heads of argument and orally made submissions.
 In the court below documents were handed up as exhibits by consent. These are the scene of crime report including a photo plan, a photo plan of the post-mortem examination, the post-mortem examination report, the police report accompanying the post-mortem examination, the district surgeon’s section 212(4) statement in accordance with the Criminal Procedure Act 51 of 1977, a statement of the identification of the corpse and a certificate of the post-mortem examination.
 The post-mortem examination report reflects the chief findings as: a body of an adult male who allegedly died after being shot, the inlet wound on the left chest on the 5th intercostal space, the outlet wound on right chest on the 8th intercostal space, 1600 ml haemothorax on left chest, 600 ml haemothorax on right chest, perforation of left lung heart and right lung, the cause of death is a gunshot wound.
 The scene of crime photo plan depicts photos of the outside of the homestead where the incident occurred; the inside of the homestead indicating where the deceased, the accused and the witness Rebecca were standing; depicting the stone that the deceased had in his hand, the pistol, spent cartridge, a magazine with 6 live bullets and the holster of the pistol.
 The first witness for the State is Rebecca Neligelao Nepanga. She knows the accused as a police officer who is stationed at a police office near her house in Ekuru. On 16 December 2013 she was in her house where she stayed with a male, her father aged 70 years and children all under the age of 10 years old at the time. She heard a noise coming from a field next to a road.
 She went to inspect and saw people walking at the right side of a mahangu field with a police vehicle also being driven in the same vicinity. She met with an unknown person who came running to the homestead where she was. This person eventually turned and she saw him carrying a stone. At the same time she heard a gunshot and the person fell to the ground. The gunshot came from the entrance of the homestead where the person entered. She also observed the accused at her homestead. Thereafter she ran away to see the 70 year old person and the children.
 The witness estimated the distance between the unknown person and the accused to be between 6 and 7 metres. The court however, estimated the distance pointed out by the witness, as 11 metres. She testified that she was about 13 steps from the accused and the deceased.
 Shortly after the gunshot, the vehicle driven by the accused entered the courtyard of the homestead, picked up the unknown person and took him away. The witness could not tell who fired the gunshot. The incident happened fast. The unknown person turned out to be the deceased. The witness at some stage passed by the scene and saw a stone at the point where the motor vehicle stopped before the deceased was loaded onto it.
 In cross-examination it emerged that the accused admitted that he fired the shot. It also emerged that he raised self-defence as justification. The witness further stated in cross-examination that the deceased and accused were facing each other shortly before the shot went off. Before that the deceased was facing in the direction of the homestead where her 70 years old father and the children were. Her father is blind.
 The witness further testified in cross-examination that the deceased was running with the stone in the direction of her father before he turned in the direction of the accused. The deceased took some steps towards the accused. The witness testified that it was dangerous or risky for her father when the deceased ran with a stone towards him. She did not hear the deceased shouting. She conceded that the accused acted in self-defence because the deceased had a stone facing the accused. All this happened very fast as she stated. On her testimony it happened so fast that she does not know who fired the shot. On this point she could only speculate that it was either the accused or the deceased.
 H I K is a witness who was affirmed. She was sent with another boy by her mother to the police for them to collect a boy, the deceased, who troubled persons by throwing stones at them. She found the accused busy washing dishes. The accused came out after he was informed and instructed the witness and the other boy to get with him into his motor vehicle. They drove until they found the deceased.
 The deceased started to run and jumped over the fence of a field of a certain Mr Kapeleki, the 70 year old male. The accused first pursued the deceased with his motor vehicle, eventually he disembarked and pursued the deceased on foot. The deceased entered the homestead of Mr Kapeleki with the accused following. The witness suddenly heard a gunshot once from the direction of the homestead. The accused returned to his motor vehicle and instructed the witness and the boy to return home. The witness and the other boy disembarked and walked away. The accused drove away.
 In cross-examination, the witness testified that she saw the deceased when he was running, at the time when she was instructed to get the police. She stated that she was traumatized by the trouble the deceased was causing. She witnessed the trouble. She could not understand what traumatize means. She further confirmed that the accused tried to prevent the deceased from entering the homestead of Mr Kapeleki.
 The State then close their case.
 The accused testified in his defence. He was busy preparing his lunch when he observed two kids who looked scared or as if they were threatened. The kids informed him that they were sent to get the police in order to assist a certain Ms Maria at the shebeens. The kids further informed him that there was a person disturbing the people. He requested the children/kids to get into the motor vehicle and they drove together. He was eventually directed to where a person, the deceased was running. The accused drove fast to intercept the deceased.
 The deceased went off the road and jumped over the fence of a certain Mr Kapeleki. The accused entered the yard of Mr Kapeleki. He disembarked the motor vehicle and shouted to the deceased to stop. As the deceased was of small built, the accused wanted to catch and grab him. The deceased turned towards the accused with a small distance between him and the accused. The accused observed that the deceased had a stone in his hand.
 The accused was in possession of a pistol and handcuffs. He became afraid and scared as he thought that the deceased may hit or throw the stone towards him. At the time the deceased started to move the hand with the stone upwards, shouted and moved in the direction of the accused. The stone was the size of his two hands clasped together. He then fired a shot intending to shoot the hand with the stone. The shot hit the deceased on the left side of the chest because the deceased was moving with his body.
 He loaded the body onto his motor vehicle with the assistance of two boys who were following the deceased and took the deceased to hospital. On arrival at the hospital the doctor who had to attend to the deceased was busy with another patient. The accused had to wait. After about one and a half hour the deceased was attended to. After some time the accused was informed that the deceased had passed away.
 The accused’s reason for attending to the complaint was to arrest the deceased, take him to Ms Maria and establish what had happened. He fired the shot because he was afraid / scared to be beaten with the stone. He stated and confirmed the evidence of the first State witness that the turning of the deceased with the stone and the shooting all happened fast. My understanding is that it happened in split seconds.
 In cross-examination the accused confirmed that he is a police officer with 14 years’ experience. He received training including training on how to effect an arrest, how to deal with suspects and in the handling of firearms. He did not know the deceased. The accused stated that he did not intend to shoot but that it just happened.
The basis / grounds for the application
 The grounds for the application for leave to appeal are that the magistrate erred in law/and or on facts:
‘1. …by finding in paragraph 8 lines 15-18 and paragraph13 of the judgment, that the state/applicant failed to prove beyond reasonable doubt that the requirements or the conditions for private defence did not exist.
2. …by failing to apply the second leg of enquiry relating to private defence to the facts of this case, outlined in S v Naftali 1992 NR 299 HC which is; “whether the state has proved beyond a reasonable doubt that the accused/respondent did not genuinely believe that he was acting in self-defence and that he was not exceeding the bounds of self-defence”.
3. …by finding in paragraph 8 of its judgment that the state witness’ concession that the deceased was in possession of a stone, suggest that there was an unlawful attack on the persona of the accused and consequently the accused/respondent was justified to shoot the deceased on the chest, whilst there is no evidence on record that the deceased attacked or intended to attack the accused/respondent.
4. …by finding in paragraph 8 lines 15-17 of the judgment that the state/applicant’s witness’ evidence supports the respondent’s version that he was under attack at the hands of the deceased.
5. …by misapplying the principle set out in S v Glaco 1993 NR 141 HC in paragraph 9 of its judgment to the effect that “even if the explanation of the respondent is improbable, the court is not entitled to convict, unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false” which principle does not relate to the defence of private defence raised by the respondent in this case but rather a principle of law that relates to the evaluation of the totality of evidence at the end of a criminal trial.
6. …by misapplying the principle set out in S v As 2009 (1) NR 118 HC to the facts of this case by finding that a person who suffered a sudden serious attack at the hands of an assailant and was hence devoid of opportunity for reflection, could not invariably be expected to weigh the pros and cons of his or her defensive response, whilst there was no actual attack by the deceased on the respondent in this case as compared to the facts in S v As supra.
7. …by finding judgment in paragraph 11 of its judgment that the principle set out in Ntsomi v Minister of law and order 1990 (1) SA 512 (C) at 529 C-D, finds application in this case to the effect that: “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 fight with a stone in his hands.” Whilst failing to consider that in the Nstomi matter, the accused were throwing stones at police officers and no stones were thrown by the deceased to the respondent in casu.
8. …by finding in paragraph 12 lines 12-15 of its judgment, that because the respondent aimed to shoot the deceased on the arm, but the bullet struck the deceased in the chest due to body movement on the part of the deceased, this suggested that the respondent merely wanted to repel the imminent attack.’
 In order for a situation of private defence to arise, there must be evidence that (1) there was an attack; (2) upon a legally protected interest; and (3) that the attack was unlawful.
 The Oxford Dictionary defines an attack as a violent attempt to hurt or overcome somebody. Imminent is defined as likely to happen at any moment.
 The conditions relating to the defence are that there must be evidence that the defence was (1) necessary to avert the attack (2) a reasonable response to the attack; and (3) directed against the attacker.
 I should now consider the private defence raised by the accused and whether the actions of the accused have satisfied the requirements of private defence. The requirements of private defence as stated in the case of S v Goliath 1972 (3) SA 1 (A) referred to with approval in S v Lukas 2014 (2) NR 374 (HC) are as follows:
(a) The attack must be unlawful;
(b) The attack must be directed at an interest legally deserving of protection;
(c) The attack must be imminent but not yet completed.
In order for the accused to succeed with private defence, the requirements must be met.
 The accused’s evidence was indeed corroborated by the first State witness that he acted in self-defence. He was not corroborated that the deceased was busy lifting his hand. He was however corroborated that the deceased ran to the homestead of the 70 year old person. Further corroboration is that the deceased turned with the stone and was busy approaching the accused.
Attack or imminent attack
 I have already above referred to the definition of ‘attack’. In my view in this case the attack already commenced. Considering that the deceased was fast approaching the accused, I find it as an attack. I find the lifting of the hand as imminent to hit or to throw the stone at the accused. In these circumstances the accused was justified to defend his life or limb. In my considered view, he did not exceed the bounds of self-defence in the circumstances.
 The magistrate, in my view delivered a well-reasoned judgment. He correctly summarised the evidence, correctly referred to the law, applied the principles correctly and eventually made the correct finding. Although every case must be adjudicated on its own circumstances, the principles of law are the same as crystalized over many years. I do not find an error or misdirection.
[30 I am not convinced that another court may come to a different conclusion.
 In the result;
The application for leave to appeal is dismissed.
H C JANUARY
For the Applicant: Mr L Matota
Office of the Prosecutor General, Oshakati
For the Respondent: Mr J Kandara
Shikongo Law Chambers, Ongwediva
 See: J Burchell Principles of Criminal Law 5 ed (2016) at p 122, Conditions relating to the attack
 Compiled by J M Hawkins The South African School Dictionary (1996) Cape Town. Oxford University Press
: J Burchell Principles of Criminal Law 5 ed (2016) at p 125, Conditions relating to the defence