Court name
High Court
Case number
CA 42 of 2005
Title

S v Kashamane (CA 42 of 2005) [2006] NAHC 40 (14 August 2006);

Media neutral citation
[2006] NAHC 40



1



CASE NO.: CA 42/2005


IN THE HIGH COURT OF NAMIBIA




In the matter between:  
        






ANGULA IMMANUEL KASHAMANE       
        
        
        
APPELLANT




and




THE STATE       
        
        
        
        
        
        
RESPONDENT







CORAM:  
        
        
PARKER, A J





Heard on:       
        
        
2006 July 26



Delivered on:   
        
2006 August 14


________________________________________________________________


JUDGMENT:


PARKER, A J.:


[1]     
This is an appeal from a decision of the Oshakati magistrate’s court, which convicted the appellant of the offence of assault with intend to cause grievous bodily harm. After evidence was led, the learned magistrate convicted the appellant, and sentenced him to three years imprisonment of which one year was suspended for three years on condition that the appellant was not convicted of a charge of assault with intent to cause grievous bodily harm committed during the period of the suspension.


[2]     
In his notice of appeal filed with the Oshakati magistrate’s court on 9 November 2004, the appellant sought to appeal against sentence only. In response thereto, the learned magistrate filed the following day his reasons for the sentence. Almost one year later, i.e. on 19 September 2005, the appellant, through his instructed counsel, filed amended notice of appeal in which he directed the appeal against both conviction and sentence. The learned magistrate did not file any reasons for the conviction. In a letter dated 4 October 2005, he informed the Registrar that he did not “have any additional reasons to adduce in this matter.” I think it was wrong for the learned magistrate to have assumed that the reasons for the conviction could also stand for the reasons for the sentence because conviction and sentence are two different aspects of our criminal justice system. Be that as it may, as I will show shortly, there was sufficient evidence on the record to support the conviction.


[3]     
Counsel for the State, Mr. Sibeya, had filed the respondent’s main heads of argument, which were directed to the first notice of appeal. He subsequently filed supplementary heads of argument in response to the amended notice of appeal. The appellant’s counsel, Ms. Kishi, also filed heads of argument.


[4]     
At the commencement of the hearing Mr. Sibeya sought to argue a point in limine to the effect that the appeal was not ripe for a hearing because the learned magistrate had not, in terms of the rules of the Magistrates’ Courts, given reasons for his decision concerning conviction in line with the amended notice of motion. Mr. Sibeya, however, abandoned the preliminary legal objection when I informed him that the learned Magistrate had in October 2005 informed the Registrar in writing that he did not have any more reasons to give, as mentioned above. His preliminary objection concerning the appellant’s counsel’s failure to file heads of argument timeously had been overtaken by events since the appeal was not heard in September 2005, as scheduled. Therefore, counsel did not pursue this objection, too.


[5]     
I turn now to deal with the merits of the appeal; first, in respect of conviction. The appellant has raised three grounds of appeal in this regard, namely, that the learned magistrate (1) erred in law by refusing appellant the opportunity to call a witness, (2) erred in law by admitting into evidence inadmissible evidence, and (3) erred in law and/or on the facts by rejecting the appellant’s version and accepting that of the complainant.




[6]     
The gravamen of Ms Kishi’s argument in respect of the first ground is that the presiding magistrate had a duty to assist the appellant, who was not represented by counsel, to enjoy a fair trial. In this connection, she submitted, the learned magistrate’s failure to call a witness for the appellant constituted a fatal irregularity, which should lead to quashing of the proceedings. Mr. Sibeya argued contrariwise: he submitted that not every irregularity committed by a presiding officer was fatal, leading to setting aside of the proceedings. What mattered, he argued, was the nature of the irregularity and its effect on the proceedings as a whole.


[7]     
In terms of s. 179 (3) of the Criminal Procedure Act 1977 (CPA), the State must assist an accused, who is unable for financial reasons to secure the attendance of any witness, in securing the attendance of such witness, so long as the evidence of such witness is necessary and material to the accused’s defence. In Gert Kisting v The State, I observed that the CPA provision has found powerful expression in the fair trial provisions under art. 12 (1) (d) and (e) of the Namibian Constitution. I am of the opinion that the touchstone of the applicability of s. 179 (3) of the CPA is the intertwined requirements of necessity and materiality. Thus, in practical terms, the judicial officer ought to investigate the situation and surrounding circumstances to determine whether the evidence of such witness is necessary and material for the accused’s defence. On this point, I cannot do better than to repeat what I said in Gert Kisting v The State, supra, where I referred to propositions of the law by this Court and South African Courts:


From the foregoing, it is my view that a court will be stifling the accused’s right that the Constitution guarantees to him or her under art. 12 (1) (d) and (e), if the court purported to decide for the accused what witnesses he or she must call. I am fortified in my view by the apt statement by Hannah, J in Johannes Shitaleni v The State, namely, that “[I]t is not for a judicial officer to decide whether an accused should or should not call a witness.” [Case No.: CA 63/2002 at p6] If a judicial officer has the power to decide for the accused, then the provisions of art. 12 (1) (d) and (e) would be rendered futile and otiose. Of course, there may be circumstances in which an accused may forfeit his or her right to call witnesses. [See S v Beahan 1970 (3) SA 18 at 24E] Therefore, in order not to forfeit his or her right to call witnesses, the accused, for example, “must make some plausible showing of how their (i.e. the witnesses’) testimony would have been both material and favourable to his defence.” [Beahan, supra, loc. cit.]


In this connection, S v Selemana [1975 (4) SA 908] is pertinent and apposite to this appeal and the issue being examined. Franklin, J stated succinctly:


A magistrate must be exceptionally careful when refusing to allow an accused to call a witness. In particular, when the accused is unrepresented, the magistrate, before refusing such a request, should make certain that such a witness cannot possibly give relevant evidence. If the court is not careful to observe this obligation, a miscarriage of justice may result: S v Tembani, 1970 (4) S.A. 395 (E). [Selemana, supra, at 909A]


That is the manner in which I approach the present issue.


[8]     
From the record, it is clear to me that the learned magistrate did not just refuse to permit the appellant to call his witness without first investigating the circumstances to determine whether the evidence of the witness was necessary and material for the appellant’s defence. The following critical and apropos dialogue between the learned magistrate and the appellant appear on the record:


COURT:  
Accused person is there anything in reply from what the Prosecutor has cross-examined? Is there anything to clarify? --- Yes.


Yes, Tell us. --- I want the owner of the car to come so that he can explain to the Court who has his car.


Who is the owner? --- He is in Ongwediva.


When I postponed this case yesterday I informed you to bring your Witness, why is he not here? --- He said that he will come because he said that he was in a meeting.


For how long must I wait for him? --- Even ten minutes your Worship.


Anything else? --- That’s all Your Worship.


Come back this side. You said you want to call the owner of the car. On what point will he come and testify? --- Yes Your Worship.


On what point? --- I want him to come and explain to the Court whether he is the one who give the car to the Complainant or he took the keys of the vehicle from the table.


The case before the Court (Intervention) --- The case before the Court is not the theft of the motor vehicle, it is assault with intent to do grievous bodily harm. I don’t think, I don’t see any materiality for that Witness to come before this Court, therefore I will proceed in this case. Mr. Prosecutor let’s proceed with submissions.


[9]     
Having applied the principles underlying the authorities referred to above, I am satisfied that the learned magistrate carried out the correct investigation, as he was expected to do in the circumstances, and made certain that the appellant’s witness could possibly not give any relevant evidence pertinent to the matter. As Mr Sibeya submitted, the witness was not present when the appellant stabbed the complainant, and whether or not the witness gave the vehicle to the appellant to keep would not on any ground possibly assist the appellant in his defence. That being the case, I conclude that the appellant forfeited his right to call the witness because he failed to make any plausible showing as to how the testimony of the witness would have been both material and favourable to his defence. I, therefore, find that the learned magistrate did not err in law or on the facts when he denied the appellant’s request to call the witness.


[10]    
The appellant’s second ground of appeal is that the learned magistrate erred in law by admitting inadmissible evidence. This relates to the way the medical report was admitted into evidence. Ms Kishi submitted that an irregularity was committed when the medical report (on Form J88) was handed in and accepted as an exhibit in a manner that was not in conformity with s. 212 (4) and (12) of the CPA.


[11]    
I respectfully accept Ms Kishi’s submission as well founded, but only to the extent that for the certificate (on Form J88) to have been admitted as part of the prosecution’s evidence in terms of s. 212 (4) and (12), in the circumstances, it was not only desirable but also proper for the maker of the certificate to have been either subpoenaed to give oral evidence or to have been requested to reply to written interrogatories respecting the contents of Form J88. Nevertheless, her submission to the effect that the contents of a certificate and those of an affidavit under s. 212 (4) should be substantially the same, is, with respect groundless.


[12]    
A certificate is issued in lieu of an affidavit, and the provisions of para. (a) of s. 212 (4) regarding the contents of such affidavit only apply mutatis mutandis with reference to such certificate. For this reason, in my view, the contents of Form J88 and an affidavit need not be the same; they should only be substantially and reasonably the same. I, therefore, find that the contents of Form J88 in casu satisfy the requirements of s. 212 (4) of the CPA, apart from my finding above that the admission of From J88 constituted an irregularity. However, as I shall demonstrate shortly, I do not think a failure of justice resulted from such irregularity within the meaning of s. 309 (3) of the CPA so as to lead to the quashing of the conviction.


[13]    
In this connection, I respectfully accept Mr. Sibeya’s argument that even in the absence of the medical report (Form J88) there was ample and credible evidence aliunde the Form J88 upon which the learned magistrate could find the following. The appellant stabbed the complainant at the right side of his back with a kitchen knife without any provocation from the complainant. The stabbing took place in the yard of the house of the owner of a motor vehicle that is away from the bottle store, where earlier on the complainant and the appellant had had some altercation as to which of the two the owner of the said vehicle had left the vehicle with.


[14]    
The complainant testified, and these are his own words: “After I locked the vehicle and came out, the Accused person told me that here he is, I am now in their yards, I cannot talk nonsense as I was doing it at the bar. And I will ‘fuck’ you today. I did not respond to him. I was just walking, going to the gate.” He proceeded: “As soon I realized that he stabbed me, I did not respond, I just run and he still chased me until, until I came out from the house yard.” The complainant repeated what he had said in examination-in-chief in cross-examination.




[15]    
I hold it proved that the appellant armed with a kitchen knife waited for the complainant to arrive in the house because he bore him a grudge (in connection with the motor vehicle), intending to stab him with the knife, and he did stab him with the knife after he had parked the vehicle in the house. The appellant directed his will towards achieving his goal of unlawfully stabbing the complainant. This, in my view, is a classical example of dolus directus in our criminal law.




[16]    
Having so held, I do not see how S v Philipi Matias, which Ms Kishi referred me to, can be of any assistance on the examination of the point under consideration. In the present case, the appellant did not intend to carry out a common assault; he clearly set out to perform an act of assault with a knife, intending to cause grievous bodily harm. I have taken into account the following factors to hold that the appellant had such intention: the appellant stabbed the complainant with a knife at his back when the complainant was not looking, and the complainant sustained injuries, needing medical attention. As Snyman has rightly observed, “The crime may be committed even though the physical injuries are slight.




[17]    

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