Court name
High Court
Case number
39 of 2012
Title

S v Haitumba (39 of 2012) [2012] NAHC 138 (04 June 2012);

Media neutral citation
[2012] NAHC 138
Coram
Miller AJ
Parker J


















CASE NO.: CR
39 /2012








IN
THE HIGH COURT OF NAMBIA








In
the matter between:








THE
STATE








versus









TITUS
HAITUMBA
(HIGH COURT REVIEW CASE NO.: B303/2011)








CORAM: MILLER,
AJ et PARKER, J





DELIVERED
ON:
04 June 2012










REVIEW
JUDGMENT











MILLER, A J



[1] When this matter was placed
before me for purposes of review, I requested the magistrate to
submit reasons for the admission of a document, commonly referred to
as a J.88. I have now been provided with the magistrate’s
reasons.







[2] The accused was charged with the
crime of assault with the intent to do grievous bodily harm. He
pleaded not guilty to the charge and the matter proceeded to trial.







[3] The complainant, Rachel Hamutenya
testified that the accused assaulted her by hitting her with fists,
kicking her and strangling her. She showed the magistrate a mark on
her forehead sustained during the course of the attack upon her and
testified further that she was taken to hospital where she received
treatment.







[4] It was during the course of the
evidence that the Prosecutor indicated that he wished to hand in from
J.88 which purportedly is the report of a medical examination which
reflects the injuries she had sustained. The accused indicated that
he was “objecting’ to the handing in of the document. I
understand by that that he was not prepared to admit the contents of
the report.







[5] What transpired thereafter is the
following and I quote from the case record:







Do
you know anything about this document? Your Worship there is a J88.
What can you tell this Honourable Court about it?...The stamp that is
appearing here. My name and also if you look on the page where the
body parts of a human being are appearing it is also indicated there
the different areas where I sustained injuries.



Your
worship the State wish to hand in the J88 if the Accused has no
objection to that Your Worship. As it pleases the Court.



COURT: Please
send over to the accused person. Accused person can you please look
at the, I believe last page or 2nd last page. Look at the
drawing of the human body. Basically what happened is that the
complainant had just confirmed to Court the injuries as per the J88
before you where she sustained those injuries on her body. Do you
have any objection if the J88 is given in to Court to show cause to
Court as to the injuries and where they were sustained by the
Complainant on her body?



ACCUSED: Yes,
I am against it, Your Worship.



COURT: What
do you object against? That is a medical report compiled by a
doctor? Accused listen. Look at the document before you. The
purpose it will serve to Court is that it will only show to Court
what injuries as she alleges that she sustained as a result of the
assault as alleged on her body and where. That is all that that
paper will say. Do you have any objections?



ACCUSED: Your
Worship (intervention)



COURT: Accused
person the Complainant testified that you kicked her, you punch her
with fist on her forehead as well as all over her body you kicked her
and as a result as she alleges she sustained injuries as those shows
on that paper. Do you understand? As per her testimony. Accused
can you just cooperate please. I told you, you will be given ample
time to come and testify like the Complainant is doing right now to
Court and given you version to Court, but however at this point in
time it is the Complainant’s time to testify. Now I am asking
you whether you have any objection if that paper is handed to Court
to show cause to Court the injuries as sustained by the Complainant.
What do you object on Accused person.



ACCUSED: Your
Worship where there it is indicated that, I did not beat her.



COURT: You
are disputing that you beat her?



ACCUSED: Your
Worship this fist is very big, because if I assault her with this
fist I can destroy her, Your worship.



COURT: That
is what I am saying Accused person. Be that as it may the
Complainant sustained injuries as based on the alleged assault by
you. She fell down and you pulled her, you pushed her, you kicked
her as she says and because of that she sustained some wounds,
injuries that being in her knees, her forehead and so forth and as a
result she had to go to the hospital and see a doctor whereby the
doctor compiled that report indicating the wounds on her body she
sustained. So what are you disputing or objecting to? What are you
objecting to?



ACCUSED: Your
worship the wounds I am not the one who caused them.



COURT; Regardless.
Accused person you must listen. Regardless of whether you are the
one or not that is here to be determined. That is only the version
of the complainant, but however an assault took place, whether it was
by you or anyone and as a result of that assault the complainant
sustained injuries on her body as shown on that paper. So that paper
once again will only show to Court the wounds or injuries sustained
as a result of the assault inflicted that took place on that date.
Whether you are the one who inflicted the assault or not is yet to be
determined. My question is do you have any objections for the Court
to receive that paper to see what injuries as she testified about she
sustained as a result?



ACCUSED: Yes,
I am against it Your worship.



COURT: State
if we pay please adjourn and come and continue with this.



MR.
KANDJUMBWA
: Before we adjourned does, is the Accused person
Oshiwambo speaking? Does he understand?



COURT: Accused
do you understand Oshiwambo?



ACCUSED: Yes,
I understand, Your worship.



MR.
KANDJUMBWA
: Then it seems, may the Court adjourn, Your worship
until 14h00.



COURT: Accused
person the Court will adjourn until 14h00 and the trial will then
continue at 14h00. Ms. Rachel please do not discuss the matter with
anyone else as you are under oath and you are still coming to testify
before Court. You are also warned for 14h00. You may stand down.



COURT
ADJOURNS UNTIL 14H00



COURT
RESUMES AT 14H00



COURT: State
you may proceed.



MR.
KANDJUMBWA
: As the Court pleases, Your worship. Your worship,
the matter at hand is the handing in of the J88 and it seems the
Accused person do not understand really, make difference between the
allegation that the Complainant is making and the chance that he will
be given to state his case to the Court. This is part of what the
Accused and the Complainant is doing but I do not know whether, this
document was in his hand before we adjourned, Your worship.



COURT: Accused
person did you have time to recollect as well digest what has
transpired before lunch? Do you understand the purpose of the
document before you?



ACCUSED: Yes,
I know Your worship.



COURT: What
is the purpose?



MR.
KANDJUMBWA
: Your worship perhaps may, if you explain just to the
accused person that what is written in the document does not
necessarily mean that that is what he did, but that is what the
doctor have observed from the Complainant’s body.



COURT: That
is what I have been trying. It is what the Complainant is alleging.
Not that the Accused person is the one who did that, or committed the
allegation. That is just her evidence. Do you still have any
objections?



ACCUSED: Yes.



COURT: Accused
person do you understand what is going on? I informed you when the
testimony started that you should listen attentively to the evidence
of the complainant or the witness. So, you do not have to agree with
everything she says because you will be given a chance to tell the
Court your side of the story. It is what is known as an allegation.
It is an allegation. Do you still dispute the document? Accused
person then you have to tell the Court the basis of your objection of
the document? Accused person if you object the document please raise
your grounds for the objection so that we can proceed please. Why
are you objecting to the document? And you must bear in mind that
that was a document compiled by a professional and not the
complainant and there is an oath there that everything contained in
that document is correct and true as well. So please raise your
grounds for objection so that we can make a determination whether to
accept the document or not.



ACCUSED: Your
worship I am against it because this complainant assaulted me as
well.



COURT: That
is not the issue here. Pertaining to that document that is what you
fail to understand. As I told you before accused person the
testimony of the complainant is the story of the complainant as to
what has happened on that date. That she was assaulted, sustained
injuries, went to the doctor for treatment and hence the document
before you. Now what you must understand is those including that
document before you are part of her testimony and are not necessarily
to say that you are one who was assaulted her. She is just making
those allegations. It is not to say that you are the one who
assaulted her. That is still a determination that has to be made.
Now that document will show to Court, only to show to Court as she
testified that she sustained an injury on the forehead as well as
some wounds on her knees, that is the sole purpose of that document.
It is not to say that you are the one who assaulted and so forth. Do
you understand that? If you are raising an objection once again
please state your grounds for objection so that we give the State
time to reply and make determination as regards to the J88.



ACCUSED: Your
worship, I am against the document because the other issue I did not
raise I was also not shown (intervention).



COURT: Do
not raise another issue that is not with regard to the document.
Please raise an issue. You know your reasons why you are objecting
to that document. Accused do you dispute that the document was
compiled by a professional doctor, medical practitioner.



ACCUSED: Your
worship I accept that it was compiled by the doctor.



COURT: Do
you raise a dispute as to the contents contained in the document?



ACCUSED: Your
worship, I am against those indicating where the complainant
sustained injuries. Where it is indicating that the complainant
sustained injuries.



COURT: So
you are saying the complainant did not sustain injuries? As a result
of the assault that took place. Be it you or anyone else who
inflicted the assault. No just answer please. You said you have
objection to the injuries sustained by the complainant.



ACCUSED: Your
worship, if she sustain injuries through assault, I did not assault
somebody (indistinct) sustained injuries.



MR.
KANDJUMBWA
: The J88 be handed in as per, so as to proceed. He
said he (intervention).



COURT: I
will accept the J88 on the basis that the accused person does not
raise a reasonable objection against the J88. It is received and
marked as Exhibit A. Please bring forward. State you may proceed.”







[6] Inasmuch as the learned
magistrate concluded that the document was admissible because the
accused’s objection was “not reasonable” that
conclusion was wrong. An accused is under no obligation to persuade
the court that his objection is reasonable.







[7] In the reasons subsequently
provided the magistrate has shifted his ground.







[8] The magistrate now contends that
the document was admitted.



(a)
As prima facie proof of the issue in terms of Section 212 of
Act 51 of 1977 and




  1. To
    evidence the alleged injuries sustained by the complainant as a
    result of the assault after due examination by a medical
    practitioner.”








[9] It has been held since time
immemorial that the contents of a report of a medical examination
such as the one in question in this case cannot be proved by its mere
handing in of the report. S v Langa 1969 (3) SA 40 (N); S v
Nkhomeleni 1986 (3) SA 102 (v)
.











[9] That remains the position of this
day. In S v Langa (supra) the question of the handing
in of a J88 report was raised. On p. 42 at paragraph “E”
the following passage appears:



The
formal handing in of reports such as that in issue in the present
case has been criticised in a number of cases in this Division, see
for example, S v Sithole & Others, 1967 (1) P.H. H170; S v
Sithole, 1967 (2) P.H. H292; S v D., 1967 (2) S.A. 537 (N).
These
cases emphasise not only that admissions must be formally made and
recorded in terms of sec. 284 (1) of the Code, but also that, when
resort is had to this method of affording proof of facts, there
should, particularly in cases in which the accused is undefended, be
a careful assurance that the accused’s rights should have been
fully and most carefully explained to him and that he has understood
full well that he is under no obligation whatever to assist the State
in establishing the case against him and the process explained and
the admissions which he is prepared to make should be recorded. It
is, of course, clear that similar care in regard to the form of the
admissions made must be observed even where the accused is
represented, see the cases of Serobe and Thomo, supra.”







[10] I pause to mention that Section
284 of Act 56 of 1955 referred to was the equivalent of Section 220
of Act 51 of 1977 which repealed the 1955 Act.







[11] It follows that the form J88
should not have been admitted.







[12] What remains is to consider
whether the evidence adduced, excluding the J88 is sufficient to
establish that the accused had an intention to grievously harm the
complainant. In my view it is.







[13] This is not a case of an
isolated blow with a fist or the odd kick.







[14] The attack upon the complainant
was a sustained one clearly intended by the accused to seriously
injure the complainant.







[15] I will in the result confirm the
conviction and the sentence imposed.



















_________



MILLER, AJ











I agree















_________



PARKER, J