Court name
Northern Local Division
Case number
CC 2 of 2021
Title

S v Mutuka (CC 2 of 2021) [2022] NAHCNLD 15 (23 February 2022);

Media neutral citation
[2022] NAHCNLD 15
Case summary:

Criminal Procedure-Admissions during plea, even if not confirmed under section 115(2)(b) of the Criminal Procedure Act 51 of 1977 are regarded as informal admissions and form part of the evidential material that the Court must consider with all the other evidence

Criminal Procedure-Evidence- Single witness-mutually destructive versions-Onus  

Headnote and holding:

The accused was arraigned before this Court on two charges.  Assault with the intent to do grievous bodily harm on diverse occasions read with the Combatting of Domestic Violence Act, 4 of 2003 and section 94 of the Criminal Procedure Act, 51 of 1977 and Murder read similarly read with the Combatting of Domestic Violence Act 4 of 2003.

 

The Court found that State did not prove that the accused assaulted the deceased and caused her death beyond a reasonable doubt as the single witness implicating him could not be relied on without corroboration. The doctor also indicated that the accused’s version of as how the fatal injury was inflicted could similarly have caused the deceased’s death. The accused was given the benefit in this regard, and he was acquitted.

 

The evidence on the other assaults considered holistically shows that the deceased suffered, common cause and admitted, other injuries than those causing her death.

 

The Court found that when an adult slaps a youthful toddler against the head or neck, causing her to fall, and that the assaults described by the other witnesses, is indicative of an intention to injure such victim seriously especially if she was also injured seriously.

 

The Court found that the State’s evidence beyond reasonable doubt proved that the accused caused some of the victim’s injuries. After rejecting the accused denials and evidence in this regard the Court convicted the accused of assault with the intent to do grievous bodily harm.

Coram
Small AJ

REPUBLIC OF NAMIBIA

 

       Coat of Arms.bmp

    IN THE HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

                                                HELD AT OSHAKATI

 

JUDGEMENT

 

                                                                                                            Case No: CC 2/2021

In the matter between:

 

THE STATE

           

v

 

MOSES MUTUKA                                                                                       ACCUSED

 

Neutral citation: S v Mutuka (CC 2/2021) [2022] NAHCNLD 15 (23 February 2022)

 

Coram:          SMALL, AJ

Heard:           16 to 20 August 2021, 1 and 20 October 2021, 17 November 2021, 7 February 2022, 22 February 2022

Delivered:     23 February 2022

 

Flynote:         Criminal Procedure-Admissions during plea, even if not confirmed under section 115(2)(b) of the Criminal Procedure Act 51 of 1977 are regarded as informal admissions and form part of the evidential material that the Court must consider with all the other evidence

Criminal Procedure-Evidence- Single witness-mutually destructive versions-Onus  

 

Summary:     The accused was arraigned before this Court on two charges.  Assault with the intent to do grievous bodily harm on diverse occasions read with the Combatting of Domestic Violence Act, 4 of 2003 and section 94 of the Criminal Procedure Act, 51 of 1977 and Murder read similarly read with the Combatting of Domestic Violence Act 4 of 2003.

 

The Court found that State did not prove that the accused assaulted the deceased and caused her death beyond a reasonable doubt as the single witness implicating him could not be relied on without corroboration. The doctor also indicated that the accused’s version of as how the fatal injury was inflicted could similarly have caused the deceased’s death. The accused was given the benefit in this regard, and he was acquitted.

 

The evidence on the other assaults considered holistically shows that the deceased suffered, common cause and admitted, other injuries than those causing her death.

 

The Court found that when an adult slaps a youthful toddler against the head or neck, causing her to fall, and that the assaults described by the other witnesses, is indicative of an intention to injure such victim seriously especially if she was also injured seriously.

 

The Court found that the State’s evidence beyond reasonable doubt proved that the accused caused some of the victim’s injuries. After rejecting the accused denials and evidence in this regard the Court convicted the accused of assault with the intent to do grievous bodily harm.

­­­­­­­­­­­­­­­­­­­___________________________________________________________________

ORDER

___________________________________________________________________

 

  1. On Count 1, guilty of assault with the intent to do grievous bodily harm on diverse occasions read with the Combatting of Domestic Violence Act, 4 of 2003 and section 94 of the Criminal Procedure Act 51 of 1977 and

 

  1. On Count 2, Murder read with the Combatting of Domestic Violence Act 4 of 2003 the accused is acquitted.

 

___________________________________________________________________

JUDGEMENT

 

 

SMALL AJ:

 

[1]        The accused is arraigned before Court on two charges. Assault with the intent to do grievous bodily harm on diverse occasions read with the Combatting of Domestic Violence Act, 4 of 2003 and section 94 of the Criminal Procedure Act 51 of 1977 and Murder read similarly read with the Combatting of Domestic Violence Act, 2003.

 

[2]        In count one, the State alleged that the accused, on diverse occasions from the beginning of 2018 till 31 July 2018, at the farm Wildgemoet in the district of Grootfontein, wrongfully, unlawfully, and with the intent of causing her grievous bodily harm, assaulted a toddler Katjire Matumbo. The charge alleged he did so by beating her using his fists and open hand, dragging her on the ground and beating her against a corrugated iron. It was further alleged that she lost two of her teeth during the assaults.

 

[3]        In count two, the State alleged that on 1 August 2018, on the farm Wildgemoet in the district of Grootfontein, the accused unlawfully and intentionally killed Katjire Mutambo, a female toddler.

 

[4]        The accused is represented by Mr Camm on instructions of the Directorate of Legal Aid and the State by Mr Sibungo.

 

[5]        When the two charges were put to the accused, he pleaded not guilty to both, and Mr Camm read a prepared written statement in terms of section 115(2) of the Criminal Procedure Act, 1977 marked Exhibit A into the record and this was confirmed by the accused to be correct and in accordance with his instructions.

 

[6]        I do not intend to quote the plea explanation fully. Suffice to say that the accused denied assaulting Katjire Matumbo, as alleged in the first count. Instead, he alleged that   Katjire Matumbo fell on a stone in the kitchen area, resulting in her losing her two upper teeth. He also denied killing Katjire Matumbo as alleged in the second count and indicated that the deceased was injured when she fell from her mother, Lydia Gamses’ back where she was being carried at the time.

 

[7]        In addition to the explanations above, the accused admitted the deceased's identity and that he and she were in a domestic relationship as the deceased’s mother, Lydia Gamses, was his girlfriend. He further admitted that the deceased’s body did not sustain any wound or injury during transportation from the scene to where Doctor Lander Barreda Betancourt conducted the post-mortem examination on her body. He also admitted the content of the post-mortem examination dated 07 August 2018 (PM102/2018) and thus the finding that the deceased died because of blunt force head injury. He further admitted the admissibility and content of the photo plan and key thereto by Rheinhard Doeseb.

 

[8]        However, the admissions above were not formally admitted under section 220 of the Criminal Procedure Act, 1977. Consequently, when the court enquired [1] whether these admissions may be recorded as admissions under section 220, counsel for the accused was not prepared to have it so recorded. This indication by Mr Camm probably resulted in the State handing up several documents and statements as exhibits and why he elected to call several witnesses who gave evidence on apparently undisputed aspects of the case.

 

[9]        Such admissions, even if not confirmed under section 115(2)(b), however are regarded as informal admissions and form part of the evidential material that the Court must consider with all the other evidence.[2]

 

[10]      The state called nine state witnesses of whom only three were eyewitnesses to the alleged assaults.

 

[11]      Detective Chief Inspector Rheinard Doeseb on 7 August 2018 took photos at the post-mortem examination of the deceased’s injuries as pointed out to him by the pathologist, Dr Betancourt, and compiled the photo plan on 16 August 2018. He took fourteen photos included in the photo plan, handed in and marked as Exhibit B. Photos 2, 8, 9, 10 and 11 shows the facial injuries and those inside the mouth of the deceased. This witness could not say what caused the injuries as he just photographed the injuries pointed out by Doctor Betancourt. The accused admitted the admissibility and content of the photo plan and key to it in his written plea explanation.

 

[12]      Makanga Jonisius testified that he worked with the accused on a farm in the vicinity of Grootfontein. On 31 July 2018, he was seated at his house, and he heard the accused saying he was beating the deceased as she burned a plastic plate. He went to where accused, Lydia Gamses, the deceased child's mother, and the deceased were. He asked the accused to stop the assault, but the accused continued beating the child with an open hand on the back of her head until she fell on a stone and broke two of her teeth. When the witness requested the accused to stop beating the child, the accused turned to him and wanted to fight the witness. The accused said that even if he were to kill the child and go to prison, his family would bail him out as they had money. He then went away and informed the work foreman Kambinda.

 

[13]      The third witness to testify was Petrus Rafael Kambinda, who informed the court that he knew the accused as Mbongi Moses. He was employed as a foreman on the farm in 2016 and worked with the accused for about a year. He told the Court that Lydia Gamses and her child came to live on the farm with the accused. He further testified that he noticed that the accused disliked his stepdaughter and witnessed him assaulting the child at least four times. He testified that the accused usually assaulted the child with fists and slaps. The witness informed the court that on the third incident of assault, the accused said that nobody would do anything even if he were to kill the child. The witness testified that on the fourth incident of assault on the child, the accused informed him that the child was causing him to be indebted to their boss. On one occasion, he observed that the child had a bandage around her head, and as he could recall, the accused used a medical kit or first aid kit from the employer that was intended to be used if any of the workers sustained an injury whilst on the farm. On a question by the court, he denied that anyone reported any other assault of the deceased to him. He said that he never saw any injuries on the deceased's body.

 

[14]      There is no need to comprehensively summarize Detective Sergeant Richard Muronga's evidence and that of police officers Joas Taapopi, Fillemon Hoakhoeb and Markus Brand as their evidence does not take the disputes before the Court any further. The relevant parts of their evidence are also contained in in exhibits C, D, E, and F handed into Court under sections 212(4) and 213 of the Criminal Procedure Act, 1977 without any objection from counsel for the accused.  These statements provide prima facie evidence that the deceased Mutumbo Katjire’s body suffered no further injuries while transported from the Grootfontein State Hospital until Dr Betancourt conducted the post-mortem examination on her body in Otjiwarongo on 7 August 2018. From it it also appears that the deceased was born on 13 September 2016 and thus at the time of her death was almost two years old. As indicated earlier the accused also admitted the aforesaid in his plea explanation and did not dispute it during the trial.

 

[15]      State witness Lydia Gamses, the deceased's mother, testified that the accused assaulted her daughter, Katjire Mutambo, his stepdaughter, four times. The first assault was when he hit Katjire Mutambo once on the buttocks with an open hand for urinating in the bed. She took the child to the clinic for treatment. She testified that her daughter cried but that she was fine.

 

[16]      The second assault on Katjire Mutambo was when the accused hit her only once with an open hand on the right hip, near the stomach. Again, there was no apparent injury.

 

[17]      The third assault happened when the accused hit her child on her right thigh with an open hand, as she was allegedly refusing to drink her milk. There was no visible injury.

 

[18]      The fourth alleged assault happened when the accused allegedly hit her on the right thigh with an open backhand, as she did not want to drink tea.

 

[19]      After she said those were the only beatings by the accused on Katjire Mutambo, Mr Sibungo showed her photograph 2 of Exhibit B. She then indicated that the accused beat her daughter on the forehead with the backside of his hand, and one tooth fell out. This assault happened two days before Katjire Mutambo died. The accused later the same day beat her again on her lip with a fist, causing the swollen lip.

 

[20]      She testified that photographs 6 and 7 of Exhibit B show burn marks under the feet of Katjire Mutambo, caused by walking on hot sand, as instructed by the accused.

 

[21]      When asked to comment on the injuries shown in photo 8 in Exhibit B, she testified that when the two teeth fell out, there was also a cut under the lip. In addition, she testified that one day she found teeth on the outside of the house, and it was the day that the accused picked up Katjire Mutambo and hit her face against the corrugated iron wall of their home.

 

[22]      Regarding the murder charge, she testified that on the day that her daughter died, the accused shouted at the deceased for not eating the porridge and milk. The child at the time was between her legs, and both of them were standing and looking at the accused. The accused then slapped the deceased on the neck with his right backhand. As a result of the slap, the deceased fell on the hard sand with her face. She said that the deceased cried only once, did not breathe afterwards, and that the child's right eye was red. The accused then tried to resuscitate her by pumping her chest. She further testified that they got a lift from a policeman to the Grootfontein State Hospital sometime after this incident and that the deceased was declared dead on arrival. 

 

[23]      Dr Armando Perez Ricardo is employed by the Ministry of Health and Social Services and stationed at Oshakati State Hospital.  He was called to explain the findings noted on the admitted post-mortem examination done by Dr Betancourt. He testified that although he did not conduct the deceased’s post-mortem, he did his first post-mortem in 1999 and that since then has performed an estimated four thousand post-mortem examinations.

 

[24]      He first testified on the photo plan Exhibit B and specifically photographs 6 and 7. He stated that he would have to speculate if he uses only photos to say whether the burn injuries under the deceased feet were caused by hot sand or cigarette burns.

 

[25]      Referring to the post-mortem examination Exhibit F, he testified that the cause of death was blunt force head injury. In chief, he testified that from experience, such injury would be the result of a severe degree of force. On a question by the Court whether a simple slap could have caused such injury, he stated that the injury would require more power. The witness said both the versions alluded to by Lydia Gamses and the accused could have caused the head injury. The swelling of the brain is inflammation and takes time to cause death. Therefore, he concluded that although fatally injured, the child still lived for a short while after the head injury.

 

[26]      According to exhibit F, the contents admitted by the accused in his plea explanation the post-mortem examination on the body of the deceased Matumbo Katjire, a one-year-old female child, was done on 7 August 2018 at Otjiwarongo by Doctor Lander Barreda Betancourt. The doctor indicated the child had multiple and severe trauma located mainly on the head and the neck. He observed severe subgaleal bleeding on the left side of the temporal, parietal, frontal, and entire occipital regions. In addition, contusion in the occipital lobe and cerebellum with severe cerebral oedema with tonsillar herniation was observed. The latter injuries were inside the deceased brain.

 

[27]      The doctor also noted abrasions, lacerations, and contusions of the lips with the traumatic loss of 3 upper right teeth (right maxillary central incisor, maxillary lateral incisor and right maxillary cuspid.  Further, he observed abrasions located on the left parietal region, forehead, both sides of the face, with swelling and bruise of 3 cm in diameter located on the left submandibular region. In addition, a bruise of 2 cm in diameter located on the right pectoral region and another bruise of 3.5 cm by 0.5cm located on the left buttock and thigh was seen and recorded.

 

[28]      Furthermore, abrasions in the healing phase that look like those produced by cigarette burns located on the left ear, on the finger of the right hand and on the plant  or the sole of both feet. Abrasions of different production dates were found all over the body. The cause of death is blunt force head injury. The doctor concluded that the multiple traumas and diversity of traumas present on the victim does not correspond to those produced in a simple fall. He further noted that the victim's body had lesions of different production dates indicating that she had received trauma at other times and on different dates.

 

[29]      After the State closed its case Mr Camm applied for a discharge of the accused under section 174 of the Criminal Procedure Act, 1977. This was refused in a separate judgment. [3]

 

[30]      The only witness for the defence was the accused. He testified that he worked at Farm Wilgemoet as a charcoal worker during the whole of 2018. He got paid the highest, compared to his colleagues who did the same job as he was the most productive.

 

[31]      He denied assaulting the victim, Katjire Mutambo, by dragging her on the ground and denied hitting the victim against the corrugated iron as alleged by the State. He stated that he, Lydia Gamses and the victim/deceased stayed at farm Wilgemoet. They resided in a one-bedroom house. He provided food and shelter to Lydia Gamses and her daughter. He denied that he assaulted the deceased, as alleged by the State witnesses averring that they just lied when implicating him. He also denied each allegation of assault mentioned by Lydia Gamses. He testified that the victim lost her two upper teeth when she stumbled and fell on a stone in the kitchen area.

 

[32]      He further denied inflicting the injury on the deceased that caused her death. He said that the deceased was on her mother's back and fell facedown onto the ground when attempting to escape a sudden whirlwind. He further testified that the deceased died in his arms whilst they were at the road, searching for a lift to Grootfontein hospital.

 

[33]      It is trite law that the State carries the onus of proving an accused's guilt beyond a reasonable doubt. There is no onus on an accused to prove his innocence.[4]

 

[34]      No onus rests on the accused to convince the Court of the truth of any explanation he gives. If he explains, even if that explanation is improbable, the Court is not entitled to convict unless it is satisfied not only that the explanation is unlikely, but that beyond any reasonable doubt, it is false. If there is any reasonable possibility of his explanation being true, he is entitled to his acquittal.[5]

 

[35]      Reasonable doubt about the accused's guilt does not depend on whether the Court subjectively believes him or not. Thus, the Court does not even have to reject the State's evidence to acquit him. But, if there is a reasonable possibility that his evidence might be true, he must be acquitted or be given the benefit of the doubt.[6]

 

[36]      The aforesaid principles were set out as follows in S v Goliath[7]:

 

It is a well-established rule of practice that the State carries the burden of proving the allegations made in each count beyond a reasonable doubt, whilst there is no duty on an accused to convince the court of the truth of the propositions advanced by him. The onus to prove that these propositions are false beyond reasonable doubt is therefore on the prosecution. The court need not believe the accused’s version in all its detail, but if it is reasonably possibly true in substance, then that becomes the basis the court must decide the matter on. The accused’s version may be tested against inherent probabilities but cannot be rejected simply because it is improbable; unless it is so improbable that it cannot reasonably be true (S v Haileka[8]; S v Naftali[9] and the cases cited therein).’

 

[37]      The following passage in R v Mlambo[10] approved and applied by the Supreme Court in S v Van Wyk [11] has become a trite principle in Namibian law:

 

In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.

An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.’

 

[38]      The versions of the State witnesses and the accused are mutually destructive versions. The approach to resolve two mutually destructive versions was set out in S v Engelbrecht, [12] where the court stated that in a situation like the one in this case required the approach alluded to in S v Singh: [13]

 

'Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused, must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and the demerits of the State and the defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt. The best indication that a court has applied its mind in the proper manner in the abovementioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses.'

 

[39]      If the Court cannot decide which of the mutually destructive versions it should accept, the onus decides the issue.

 

[40]      The deceased's mother was a single state witness regarding the charge of murder. Naturally, a court must exercise caution when it comes to the evidence of a single witness, but common sense must prevail. Further, a single witness's evidence needs not be perfect in every respect, but the court must be satisfied that the truth was told. Furthermore, the court must consider disputes of fact between the evidence of the state and the defence and consider the merits and demerits of each party's version. Still, it must also evaluate the probabilities of each party's version of what transpired.

 

[41]      The Supreme Court explained the aforesaid principles as follows in S v Van Wyk and Another:[14]

 

As to the evidence of accomplices, being complicit in the crime, there is a danger that an accomplice may be motivated for whatever reason to substitute the accused for the real perpetrator. To guard against such a pitfall, courts have developed a cautionary rule of practice requiring a court to be aware of the inherent danger in the evidence of an accomplice or a single witness. The rule requires furthermore, that there ought to be in existence some safeguards reducing the risk of a wrong conviction such as corroboration or the absence of evidence contradicting that of the accomplice.[15] Ultimately what is required is the determination of the question whether, in the light of all the evidence, the guilt of the appellants has been proved beyond reasonable doubt.[16] It has often been stressed, however, that in the process of scrutinising and weighing the evidence of accomplices and single witnesses generally, the exercise of caution should not be allowed to displace the exercise of common sense.’ [17]

 

[42]      I have several difficulties with the evidence given by the deceased’s mother Lydia Gamses. Although I must accept that she had little or no education and, on her version, the deadly injury of her child was caused by the accused, she in my view clearly originally attempted to downplay the alleged assaults by the accused. The first four assaults she mentioned, being open handed slaps by the accused, just sounded rehearsed and forced to say the least. I cannot ignore the fact that when asked, she said that this constituted the only assaults or abuse by the accused.

 

[43]      When Mr Sibungo showed her photograph 2 of Exhibit B she added another assault by stating that the accused beat her daughter on the forehead with the backside of his hand whereafter one tooth fell out. To this she added that the accused later the same day beat her daughter on her lip with a fist, causing the swollen lip.

 

[44]      When shown the photographs 6 and 7 of Exhibit B depicting the burn marks under the feet of her daughter, she said this was caused by walking on hot sand, when the accused instructed her not to carry the child. This was only elicited when she was shown the burn marks found by Dr Betancourt. On her own evidence she complied with this instruction by the accused which caused the injuries. She was not asked to comment on the other burn marks found by Dr Betancourt.

 

[45]      Only when she was asked to comment on the injuries shown in photo 8 in Exhibit B, also recorded by and photographed on the instructions of Dr Betancourt, did she testify that the two teeth fell out and there was also a cut under the lip. She said that this happened on the day that the accused picked up her daughter Katjire Mutambo and hit her face against the corrugated iron wall of their home.

 

[46]        The Court must however also accept, as also admitted by the legally represented accused, that the victim in the first count and deceased in count two in addition to the fatal injury just prior to her death had extensive injuries all over her body. These were comprehensively described by Doctor Betancourt and being of different ages indicating different times of infliction.

 

[47]        Considering that she did not mention these serious assaults by the accused earlier and spontaneously, I approach her evidence with caution.

 

[48]        The evidence of the accused essentially is a bare denial of any wrongdoing and giving an alternative version of how the deceased, a few days before the fatal injury, lost her teeth and how she was fatally injured on the date of her death.

 

[49]        The accused clearly values his ability to earn a big salary. This is apparent from his evidence and the cross-examination on his behalf and instructions. Money seems to be important to him. In cross-examination of one of the State witnesses, the defence even suggested that this witness is falsely implicating him in the assault of the deceased because the witness was jealous of the higher salary the accused earned. This dovetails logically with repeated indications by different State witnesses that the accused felt that the deceased was wasting his money. Apparently, the accused thought she did this when she refused to drink and eat what he bought from his employer. Another golden thread that runs through the State’s case is that the accused felt that he had the right to and needed to discipline the deceased physically if she did something he considered wrong.

 

[50]        Two other State witnesses implicated the accused in assaults on the deceased before the day of the fatal injury. Although denied, their evidence was straightforward implicating the accused and indicated that the deceased's mother was present during the assaults they observed but did not attempt to prevent the assaults or even remonstrated with the accused.

 

[51]      I therefore find that the State did not prove that the accused assaulted the deceased on 1 August 2018, causing her death beyond a reasonable doubt. The only witness implicating him is the deceased's mother, and I find that I cannot rely on her evidence as a single witness without corroboration. Furthermore, Doctor Ricardo indicated that the deceased's falling from her mother’s back could have caused the fatal injury. There is thus reasonable doubt, and the law requires that the accused be given the benefit in this regard.

 

[52]      The evidence on the other assaults considered holistically shows that the deceased suffered several injuries other than those causing her death. The injuries suffered are common cause and admitted. I accept the State’s evidence that the accused caused some of these injuries. I find that the accused was the one that assaulted the toddler Katjire Muatambo as alleged, causing some of the injuries, including the injuries to her mouth, which caused her to lose teeth. In this regard, the accused's evidence and denials are rejected as false beyond a reasonable doubt.

 

[53]      An adult slapping a toddler younger than two years of age against the head or neck, causing her to fall, and the assaults described by the other witnesses indicates an intention to injure such a toddler seriously. She was also, as intended, injured seriously.

 

[54]      In the result I make the following order:

 

1.   On Count 1, guilty of assault with the intent to do grievous bodily harm on            diverse occasions read with the Combatting of Domestic Violence Act, 4 of       2003 and section 94 of the Criminal Procedure Act 51 of 1977,  and

 

2.   On Count 2, Murder read similarly read with the Combatting of Domestic   Violence Act 4 of 2003 the accused is acquitted.

 

 

___________________

        D. F. SMALL

                                                                                                                  Acting Judge

 

 

 

APPEARANCES    

 

FOR THE STATE:               Mr R Sibungo

Office of the Prosecutor General, Oshakati

 

FOR THE ACCUSED:        Mr A Camm

Directorate of Legal Aid, Grootfontein

 

 

[1] In terms of section 115(2)(b) of the Criminal Procedure Act 51 of 1977

[2] S v Shikongo and Others 1999 NR 375 (SC) at 385I-386A; S v Mjoli and Another 1981 (3) SA 1233 (A) at 1238D - E; S v Daniëls en 'n Ander 1983 (3) SA 275 (A) at 300E - F; S v Mabaso and Another 1990 (3) SA 185 (A) at 209I; S v Shivute 1991 (1) SACR 656 (Nm) at 659e and S v Cloete 1994 (1) SACR 420 (A) at 424d - g.

[3] S v Mutuka (CC2/2021) (2021) NAHCNLD 91 (20 October 2021)

[4] Woolmington v Director of Public Prosecutions [1935] 1 AC 462 at 481 – 482 as followed in S v Koch 2018 (4) NR 1006 (SC) paragraph 10

[5] S v Haileka 2007 (1) NR 55 (HC) in paragraph 7 approving and applying R v Difford 1937 AD 370 at 373; R v Vlok and Vlok 1954 (1) SA 203 (SWA) at 207B – D

[6] S v Haileka 2007 (1) NR 55 (HC) in paragraph 7 approving and applying S v Kubeka 1982 (1) SA 534 (W)

[7] S v Goliath (CC 18/2017) [2018] NAHCMD 393 (30 November 2018) paragraph 22

[8] 2007 (1) NR 55 (HC).

[9] 1992 NR 299 (HC).

[10] 1957 (4) SA 727 (A) at 738A-C

[11] 1993 NR 426 (SC) at 438H-439A

[12] 2001 NR 224 (HC) at 226E – H.

[13] 1975 (1) SA 227 (N) at 228F – H

[14] 2015 (4) NR 1085 (SC) in paragraph 67

[15] S v Snyman 1968 (2) SA 582 (A) at 585D – F.

[16] S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645h.

[17] R v J 1966 (1) SA 88 (SR) at 90.