“SPECIAL
INTEREST”

CASE
NO. CC 20/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

JOHANNES
N NANDJEDI

CORAM: DAMASEB,
J.P.

Heard
on: 2006.05.11

Delivered
on: 2006.05.12

_______________________________________________________________

JUDGMENT

[1]
DAMASEB, J.P.: Mr Nandjedi, you are charged with the
murder of your 79 year old father by hitting him with a hoe handle at
the back of the head. You were 18 years old at the time the alleged
offence took place. When you were called upon you pleaded guilty to
the charge. When questioned in terms of Section 112 you said that
your father came upon you with a kierie and a panga and hit you with
the kierie because you had beaten a dog for eating your doves. Your
father raised a panga at you whereafter the two

of
you grabbed each other and fell. As your father was trying to rise
you picked a hoe handle and hit him behind the back. The Court
therefore entered a plea of not guilty in view of the explanation of
a possible private defence.

[2]
The evidence falls within a narrow compass: only two persons were
called by the State who say they saw what happened. The first was
Ipinge Nandjedi, a biological brother of the accused and son of the
deceased. He testified that when on the faithful day he came home
from the field he found the accused beating a dog-a fact which
angered the accused’s father. The deceased then said he was going
to beat the accused for beating the dog. Ipinge said he went inside
the room but returned when he heard a struggle between the accused
and the deceased. And upon coming out dispossessed the deceased of
the panga and a kierie and put them about two metres from where the
two were fighting. He testified that the deceased wanted to cut the
accused with the panga.

[3]
According to Ipinge, when he dispossessed the deceased of the panga
and the kierie the accused was on top of the deceased, and

that
he [Ipinge] removed the accused from the deceased whereupon the
accused picked a hoe handle and struck the deceased therewith. He
testified that the deceased was trying to stand up when he was struck
by the accused. He testified further that the deceased had nothing
in his hands when he was first struck by the accused. It was put to
Ipinge in cross-examination that he was nowhere near where the fight
took place, and that he only came at the scene after the accused had
already struck the deceased. He maintained he was there and
separated the fight. When questioned by the Court he said that
although he had removed the panga and kierie from the deceased and
placed them against the hut, the deceased knew where these objects
were. He also stated that when the deceased first confronted the
accused with the knob kierie and panga, the accused had no weapon on
him.

[4]
The second witness was Aina Amalovu. She knows both the accused and
the deceased. She confirmed that the dispute started between the
accused and the deceased over the beating of a dog by the accused.
She says when the deceased wanted to know from the

accused
why he beat the dog the accused grabbed the deceased around the body
whereupon the deceased raised a panga against

the
accused ‘to scare the accused’, as she put it. She says the
accused then threw the deceased on the ground; sat on the stomach of
the deceased and was strangling the deceased. Ipinge then came and
took the accused off the deceased and, as Ipinge was moving away, the
accused took the hoe handle and struck the deceased who was trying to
stand up at the time. She testified that the deceased still had his
kierie and panga in his hands as he was trying to stand up. She
persisted in cross-examination that she was physically present and
saw the fight. It is curious though that she talks of a strangling
of the deceased by the accused although Ipinge does not mention any
strangling although he says he was the first to be on the scene.

[5]
The accused testified on his own behalf. He maintained that no one
else was present when he and the deceased began the fight. He
testified that the deceased came and told him he was going to beat
him for beating the dog; and that the deceased had a panga and a
kierie. He stated that the deceased had in fact beaten him

with
the kierie whereupon he grabbed the deceased and they both fell down.
It appears that he got to his feet first before the deceased, and as
the deceased tried to stand up (still holding the knob kierie and
panga in his hands) he struck the deceased the fatal blow. The
accused explained: “I hit him because he came and just started
hitting me. He hit me with the kierie and raised a panga against
me”.

[6]
The accused testified that Ipinge only came after he had hit the
deceased already and denied the version of Ipinge and says he never
witnessed the fight nor did Amalovu. When asked if he could have run
away he said: “I could not I was afraid”. The accused, it is
common cause, is a crippled person who walks with a very pronounced
uneasy gait. The possibility that this may have influenced his
subjective appreciation of the kind of harm that he apprehended has
not been displaced beyond reasonable doubt. He said he even cried
for help and no one came to assist him, and that he had no intention
to kill his father whom he loved.

[7]
In cross-examination he said he did not consider himself to be under
threat from the father when he beat him. He also testified

that
he knew that if, for example, he beat a dog in the way he beat his
father, the dog would die. And he said he knew he was hitting the
father on the head and added, in an incongruous touch, that

that
is not where he wanted to beat the father, and that he wanted to
strike on the arm or the back.

[8]
Two state witnesses, both of whom say they witnessed the fight, gave
completely conflicting versions on perhaps the most crucial issue in
this case: Did or did the deceased not have the panga and knob
kierie in his hands at the time that the accused struck him with the
hoe handle behind his head? Ipinge says the accused had nothing,
while Amalovu says he had the panga and kierie as he was rising after
falling down.

[9]
A common feature of the testimony of all three witnesses, however,
is that, not only did the deceased threaten to beat the accused, he
proceeded to raise his panga (also carrying a knob kierie) against
the accused. The accused says he was in fact beaten by the deceased
with the knob kierie – a fact which Ms

Miller
for the State seems to accept as true. True, the accused has given
potentially mutually destructive versions in his testimony about why
he beat the deceased and what danger he apprehended at the time he
struck the deceased. On the other hand, he said he was afraid of the
deceased in view of the threat and the beating,

while
on the other hand he said he hit the deceased because he just came
and hit him, and that at the time he struck the deceased he was not
in danger.

[10]
Counsel for the State submits that I must convict the accused of
murder, alternatively of culpable homicide, based on this latter
statement alone. I am afraid that is not the proper approach to the
burden of proof. The State bears the burden throughout to establish
the guilt of the accused beyond reasonable doubt, including whatever
defences he may raise. The possibility that the accused apprehended
mortal danger to himself from someone who had already beaten him with
a knob kierie and threatened the use of a panga he still had in his
hands as he rose from a fall, is not a fanciful possibility on the
facts of this case.

[11]
The State bore the burden of establishing beyond reasonable doubt
that the explanation that the accused was afraid of the deceased, is
not only reasonably possibly true but also false beyond reasonable
doubt. That the State has failed to do. Also, faced with the very
conflicting versions of prosecution witnesses as to what exactly the
deceased’s actions and movements were at the time, a

reasonable
doubt arises. The fact that prosecution evidence potentially
favourable to the accused is disowned by him - in casu
suggesting that none of the two prosecution witnesses witnessed the
event, is no warrant for not giving him the benefit of the doubt
arising from such evidence pointing to his innocence rather than to
his guilt.

[12]
The evidence of both prosecution witnesses, although their presence
on the scene is denied by the accused, shows the deceased to have
been the aggressor at the point in time when the accused was
bare-handed. That as a result of the aggression towards him the
accused may have subjectively felt the need to protect himself
against the deceased by using lethal force remains a strong
possibility on the facts of this case.

[13]
I am left with no alternative but to resolve the benefit of the
doubt in favour of the innocence of the accused, and he is found not
guilty of the crime and is hereby acquitted.

DAMASEB,
J.P.

ON
BEHALF OF THE STATE Ms Miller

Instructed
by: Office of the Prosecutor-General

ON
BEHALF OF THE ACCUSED Ms Hitula

Instructed
by: Legal Aid