CASE
NO.: CA 25/2010

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

ERASTUS
NGHIHANGAKENWA KEMANYE
….................................................APPELLANT

versus

THE
STATE
…..................................................................................................RESPONDENT

CORAM:
SIBOLEKA,
J et
SIMPSON,
AJ

Heard
on: 25
February 2011

Delivered
on: 28 March 2011

APPEAL
JUDGMENT: SIMPSON, AJ.:
[1]
The appellant was convicted in the District Court of Grootfontein for
attempted murder and sentenced to thirty six (36) months imprisonment
of which eighteen (18) months were suspended on the usual conditions.
He was unrepresented during his trial.

[2]
Mr. Nekongo of Sisa Namandje Inc. represented him before this Court
while Ms. Husselman appeared for the respondent. The appeal is
against both the conviction and the sentence and this Court
appreciates their valuable contributions in this regard.

[3]
The grounds of appeal are as follows: "AD
MERITS:

1. 
   The
   learned magistrate erred on the facts and/or the law in convicting
   the appellant on the charge of attempted murder.

   
   

2. 
   The
   learned magistrate erred on the facts and/or the law in finding that
   the appellant had the intention to kill the complainant.

   
   

The
learned magistrate erred on the facts and/or the law in finding that
the appellant did not act in self defense when he fired the shot.

The
learned magistrate erred on the fact and/or in law in finding that
the State proved a case of attempted murder beyond a reasonable
doubt.

AD
SENTENCE

5.
The
learned magistrate erred on the fact and/or law in finding that
a
custodial sentence was inescapable.

6.
The learned magistrate erred on the fact/or law in not properly
taking into account the appellant's personal circumstances for
purposes of sentence".

[4]
When appearing before us, Mr. Nekongo, counsel for the appellant,
raised a point regarding the medical examination report which was
produced and handed up as an exhibit by the State in the court below.
This point was however not stated as a ground and dealt with in the
notice of appeal nor was it noted in the amendment to the notice of
appeal. The trial magistrate therefore did not have an opportunity to
respond to it and neither did the respondents counsel in her heads of
argument. It is clear that there was no full compliance with rule
67(5) of the Magistrates' Court Rules, on this point.

[5]
The respondent's counsel argued that the State had proved its case
beyond reasonable doubt. It was contended on behalf of the State that
when the appellant initially pleaded guilty and was questioned in
terms of section 112(1)(b), Act 51 of 1977, a plea of not guilty in
terms of section 113 of the Criminal Procedure Act was entered
because the appellant disputed the intention to kill. Although
private defense was not raised in the court below, it is my view that
it could be because the appellant was on his own during the trial.

[6]
In stead of discussing each of the four grounds of appeal against
conviction separately, I am of the view that it would be appropriate
to look at the facts of the matter, which are as follows:

Two
groups, the complainant and his friends and the accused and his
colleague, Haufiku Pehofelo and one Lanny Weyulu were at Choice Bar.
Insults were traded between the two groups and the same later
continued to the outside of the bar into the street. It is not clear
what brought this about.

The
version of the complainant and the second state witness is that after
the appellant insulted them for no apparent reason, they walked away
to avoid confrontation. Hereafter, they realized that they were being
followed by a motor vehicle, from which people got out and started
throwing stones at them. According to the complainant and the second
state witness, their group picked up stones and threw back at their
assailants. When they realized that they were on the loosing end,
they ran away and their assailants pursued them, resulting in the
complainant being struck by a bullet in the back.

The
version of the appellant and the 3^rd
state
witness is to some extent the same, in that they both claim that
after the exchange of insults at the restaurant, they got out only to
be attacked by the complainant and his companions.

These
two witnesses further testified that when the attack on them became
worse and the appellant came close to being stabbed with a knife, he
fired a warning shot into the air and the complainant and his friends
retreated.

After
the warning shot was fired the appellant and his friends ran away,
while the complainant and his colleagues pursued them. It was during
this flight, that the appellant fell down, discharged his firearm and
a bullet struck the complainant.

[7]
From the above it is very clear that there is merit in all four
grounds of appeal against conviction because the same has not been
established beyond reasonable doubt.

[8]
The facts of the matter gives rise to two mutually destructive or
conflicting versions between the two sides. In Walter
Haoeb v The State, case
no CA 64/2004, delivered on the 19/06/2007, Damaseb JP and Muller J
stated that:

"Quite
clearly, the weighing of the State's case against that of an accused

is
an improper approach which amounts to a serious misdirection. This

is
so because the onus of proving a criminal case against an accused
person rests on the State. In contrast, an accused person enjoys a
constitutional presumption of innocence pursuant to article 12( 1)(d)
of the Constitution".

[9]
The version of the appellant and his witness in the court a
quo is
reasonably possibly true.

[10]
In the result the appeal against conviction should succeed.

[11
] The Court makes the following order:

Both
conviction and sentence are set aside.