THE
STATE versus FRANS HASEB

CASE NO. CC
37/99 Silungwe, J. 2000.05.03

CRIMINAL
PROCEDURE

COMMON
ASSAULT:
Elements of common assault - applying of force to the

person of
another - inspiring a belief that force is immediately to be applied
against the victim.

CASE
NO. CC57/99

IN
THE HIGH COURT OF NAMIBIA

In
the matter between: THE
STATE

versus

FRANS
HASEB

CORAM:
SILUNGWE,
J.

Head
on: 1999.09.15 Delivered on: 1999.09.15

JUDGMENT:

SILUNGWE.
J.:
The
accused, who is aged 28 years, has pleaded not guilty to the crimes
of murder and assault. On the murder count, it is alleged that on
April 3, 1998, at Khoieb location, Otavi, the accused unlawfully and
intentionally killed Mariane Garises a female person (hereafter
referred to as the deceased).

■

The
second count of assault alleges that on the same date and at the same
place as on the third count, the accused did wrongfully aijd
unlawfully assault Juliane Hai-oses by throwing stones at her and
thereby causing hex injuries.

Ms
Wellmann represents the State and Miss Hamutenya (on instructions by
the Directorate of Legal Aid) appears for the accused.

On
the basis of first things first, I will start with the murder count.
There is no controversy that the deceased, then aged about 28 years,
died of stab wounds on April 3, 1998, at about 23h00. As I see it,
two substantive issues emerge for determination, namely: who caused
the deceased's death; and whether the death amounts to murder or
culpable homicide?

On
the evidence before me, the following facts are substantially not in
dispute and I so find. Up until the deceased's demise, the accused
and the deceased lived together as boyfriend and girlfriend and had a
daughter, now aged three years. The accused, and a 20 year old man
named Lukas Hoadom, were aquaintances. Martha Garises is the
deceased's young sister and a girlfriend of Lukas' brother. Lukas and
Martha were at the material time residing at the house of Lucia
Cloete. Juliane Hai-oses is a cousin of the deceased and lives with
her mother, the deceased's aunt, not far from Lucia's house.

During
the day of April 3, 1998, the accused, the deceased, Martha, Juliane
and Lukas were apparently together but nothing untoward occurred. The
relationships among them were ostensibly harmonious.

At
some stage in the evening of that day, at about 20h00, and seemingly
by prior arrangement, the accused went to the house of Juliane's
mother for the purpose of fetching the deceased. It so happened that
the deceased and Juliane had gone to Lucia's house apparently to
visit Martha and watch television. The accused then proceeded to
Lucia's residence. The State and defence evidence is divergent as to
what transpired at Lucia's house and thereafter that night.

The
State version (per Martha, Juliane and Lukas) is that when the
accused arrived at Lucia's house where the deceased, Martha, Juliane
and Lukas were sitting in the lounge watching TV, he knocked at the
door and the deceased, together with Juliane, went to answer the
knock. The accused said he was looking for Martha, not the deceased.
When Martha saw the accused, he asked her where Lukas was; she
responded that he was inside the house. Whilst the conversation
between the accused and Martha was in progress, the deceased and
Juliane went past the accused on their way to Juliane's home where
the deceased had left her daughter. Presently, the accused followed
the deceased and Juliane. When he stopped them, they obliged. The
accused then threatened Juliane with stones which he was attempting
to throw at her whereupon she became frightened and wasted no time in
fleeing towards her home. Juliane was about 12-13 paces away from the
accused when the latter attempted to throw stones at her.

Subsequently,
Juliane saw the deceased also running towards her and calling her to
hold her. Juliane held the deceased and they started to walk towards
Juliane's home but, as the deceased was weak, she fell down. Juliane
hurried home and summoned her mother's assistance.

As
Juliane and her mother approached the deceased, she was walking
towards them but, once again, she fell down, this time near the yard
of Juliane's home. The police were alerted; they came over and took
away the deceased's body.

Before
then, and upon hearing the deceased's screaming, Martha called out
Lukas and together proceeded in the direction of the screaming.
However, when they saw the accused approaching them, Martha run into
a nearby yard for safety. Lukas was not so lucky for the accused
stabbed him on the face and the back. Lukas then grabbed the accused
by the hand but this did not help him to prevent the accused from
stabbing him on the arm and the back. At long last, Lukas managed to
push the accused away and to run home where Martha later found him
and took him to a clinic for treatment. According to the evidence of
Lukas and sergeant Jacobs Abel Mbeha, a charge of attempted murder
was later preferred against the accused but this is yet to be
prosecuted.

The
medical evidence of Dr Ignatius Elendu shows that five wounds were
inflicted upon the deceased. These consisted of two lacerated wounds
each measuring 4cm long on the posterior aspect of both shoulders;
two incised wounds both of which were 3cm long, one was over the
para-spinal area of the upper left thorax and the other was over the
right lumbar area; and one 1.4cm long perforating wound on the right
infra curavicular area just medial to the shoulder. The upper lobe of
the right lung was perforated and lacerated. Blood and air
accumulated in the right chest cavity as a result of the 1.4cm wound
which was fatal. Also fatal was the wound to the neck. There were
multiple bruises and abrasions on the right forearm attributable to a
struggle between the assailant and the victim. According to the
Doctor, two knives were possibly used. Severe force was used to
inflict the injuries. The cause of death was due to shock and
inadequate oxygenization of the body tissues. In the absence of
immediate medical attention, death in such circumstances can occur
within 10 minutes.

Sergeant
Mbeha, having conveyed the deceased's body to a mortuary, met the
accused with a blood stained shirt at Otavi Police station. When
asked what the sergeant could do to help him, the accused replied
that he had stabbed his girlfriend, Mariane Garises, with a knife
which, on request, was handed over to the seargent and subsequently
produced as exhibit 1. After sergeant Mbeha had warned the accused,
the latter said: "I'm guilty with reasons." In his
amplification, the accused stated that on his return from a farm, he
left his girlfriend, Mariane Garises, at her mother's house and went
for a walk in the evening of April 3, 1998. Upon his return to the
house, he found his girlfriend was no longer there. Having received
information to the effect that the deceased had a boyfriend, he went
straight to the alleged boyfriend's house. This turned out to be
Lucia's house where Lukas and Martha resided. On arrival at the
house, the accused found the door open. At the door, the accused saw
his girlfriend, the deceased, seated with her alleged boyfriend (who
was obviously Lukas) plus two of her sisters. The accused then called
one of the deceased's sisters and said: "You see, this is the
thing which I used to tell you that my girlfriend is moving with that
boy." The accused stated that, as he talked to the deceased's
sister, the deceased came out with another sister and walked past
him. The accused then followed the deceased and the other sister.
When they were still nearby, he called them to stop; they did as
requested whereupon he stabbed the deceased who then fled. When the
accused gave his statement, he was calm.

I
will, later on, consider the evidence of Jacobs, the Presiding
Magistrate, and of the Court Interpreter, Musambani.

The
gist of the accused's version is that when he knocked at Lucia's
kitchen door, Martha came over and told him, on enquiry, that the
deceased had returned home. Subsequently, the accused was allegedly
going home and was already outside when he heard someone inside the
house ask: "Who is looking for me?" The accused then
stopped next to a gate; the deceased and Juliane then walked out of
the house up to where he was standing. The accused told the deceased
that the information he had received was that she had already gone
home; the deceased replied that she had been in a toilet. The accused
opened the gate and all three of them went out on their way towards
the house of Juliane's mother where his and the deceased's child had
been left. When they crossed a road and walked about 50m, Lukas came
running from behind with a hunting knife in his hand and said: "You
will see today, both of us will lose or both of us will feel pain".
Lukas aimed a blow at the accused but the latter dodged it. The
accused then took out his Okapi knife and with it started stabbing
Lukas; he stabbed him three times. Whilst Lukas and the accused were
engaged in this encounter, the deceased came along and intervened by
asking them to stop and she attempted to separate them. But she was
not as strong as the two combatants. When she interviewed, the
accused was lying down and Lukas was on top of him. The accused
managed to get up and push Lukas away. Thereafter, Lukas went in the
direction of his home while the accused also walked towards his own
home. The accused cannot say whether the deceased injured herself
during the combat between himself and Lukas. When the accused got
home, he did not see the deceased there, but he saw his mother and
told her about his encounter with Lukas. His mother advised him to go
the police and he acted on that advice.

At
the police station, the accused found the police had already laid a
charge against him. Sergeant Mbeha asked him if he was the one who
has stabbed a lady and a man. In his reply, the accused admitted
having fought with a man but denied having assaulted or touched the
lady. The sergeant then asked him whether he should lock him up and
the accused responded to the following effect: "Yes, go and lock
me up because I stabbed Lukas and there is even blood on my shirt to
show."

The
accused denies having threatened Juliane or having done anything to
her; and he maintains that her evidence is untrue. He further denies
having picked up stones or threatened Juliane with such stones. The
accused claims that the attack upon him by Lukas had taken him by
surprise. He denies having made an admission during the Section 119
proceedings and goes on to say: "What I know and what I'm sure
about is when I took out my knife I used it to stab Lukas with."
He denies having told the Court Interpreter, Musambani, that he had
stabbed Mariane Garises. When he talked to the Magistrate during the
Section 119 proceedings, he made reference to Lukas, not to the
deceased. He told the Court that he had stabbed Lukas twice on the
head and once on the left eye. Maybe Lukas had a reason to come and
fight him, so contends the accused; but there was no hostility
between them.

In
her submission, Ms Hamutenya contends that the accused is largely
credible and that his explanation is reasonably possibly true. She
concedes, however, that the state witnesses are also largely
credible, with a few exceptions which she does not amplify.

She
submits that there is no direct evidence and that the evidence
available is circumstantial. She claims that the only evidence that
implicates the accused is the Section 119 proceedings. She, however,
relies on an allegation that there were communication problems
between the interpreter, Musambani, and the accused during the
proceedings aforesaid. The interpreter who interpreted from Damara
into English and vice versa is portrayed as someone who is not
conversant with the Damara Language.

The
Learned Magistrate Jacobs who presided over the Section 119
proceedings maintains that he is satisfied that his record of April
8, 1998, is a correct record of what transpired on that occasion,
namely: that the accused made an admission in terms of Section 220 of
Act 51 of 1977. The said admission is a highly contested issue.

As
the Learned Presiding Magistrate is not conversant with the Damara
Language, the success or failure of the argument on this issue hinges
upon the evidence of Mr Musambani, the court interpreter.

It
is indisputable that at the material time, in April 1998, Mr
Musambani was a senior court interpreter stationed at Grootfontein.
He testifies that he has been speaking the Damara language since his
childhood; that he attended a Damara Lutheran Church Kindergarten and
a Damara Primary School from Grade 1 up to Grade 5; that he is fully
conversant with the Damara Language; that he is one of the best
interpreters in that language; and that he is available to be tested
in the language anywhere.

Having
heard both Mr Jacobs and Mr Musambani, I am satisfied that they are
both credible witnesses and that Mr Musambani is not only fully
conversant with the Damara Language but also that his interpretation
in English/Damara properly reflects what the accused told the
Magistrate's Court and what transpired on the material occasion. I am
further satisfied that the Magistrate's Court properly explained to
the accused what his rights were and cautioned him that he was not
obliged to make a statement or to answer questions put to him.
Thereafter, the accused said, and I quote:

"
I understand and wish to make such a statement. I committed the
offence as I caught the deceased with another man. We had a
relationship. I called her and I confronted her. She ran off and I
caught up with her again. I again confronted her, she denied my
allegations. I became cross. I drew out the knife and stabbed her.
The other man with whom I caught her also came and I also stabbed
him. I then reported myself to the police.

A:
I only wanted to injure her."

At
this stage, Mr Jacobs explained to the accused the nature of the
admission in terms of Section 220 of Act 51 of 1977. The accused said
he understood, as the record of the proceedings shows.

COURT:
May the Court record that what you said in you statement and you
answers on questions from the court record as admission in of terms
Section 220 of Act 51/77.

ACCUSED:
Yes.

The
Magistrate then proceeded to write the following in a paraphrased
form:

That
accused admits that on 3^rd
April 1998, at Otavi Khoaeb Location, district Grootfontein he
stabbed Mariane Garises with an Okapi pocket knife three times. That
the blade of the knife is 60mm long.

This
was read out to the accused who confirmed that it was correct. I am
satisfied that the accused made a clear and unequivocal statement of
admission concerning the killing of the deceased and the
circumstances in which she met her death. It is noteworthy that this
admission closely resembles what the accused told Sergeant Mbeha
under warning.

As
regards the other State witnesses, I have no reason whatsoever to
doubt the veracity of their evidence individually and severally. I am
satisfied that what they have told the Court is substantially the
truth of what transpired in this matter.

I
reject the accused's version as a deliberate attempt to falsefy what
took place in this case. The truth of the matter is that he was
driven by suspicion and jealousy to kill the deceased and a desire to
teach her a lesson, let alone Lukas. I find that the accused's tale
cannot reasonably possibly be true, and for this reason, it is
rejected.

The
accused had the opportunity to kill the deceased; when he frightened
Juliane with the stones, causing her to flee to safety, he remained
alone with the deceased. It was during that time that he stabbed her
with exhibit 1, inflicting all the injuries, not just the three
injuries admitted in the Section 119 proceedings. The doctor found
that there were five stabbed wounds inflicted with severe force, two
of which were fatal. The doctor indicates that two sharp objects
could have been used. I think that he was probably mistaken about
this as it is inconceivable that anyone else could have used another
object to inflict injury upon the deceased. And the possibility of
the accused having used two separate objects seems inconceivable. The
version given by the accused to the effect that the deceased could
have been injured when she intervened in the combat between Lukas and
himself is nothing but a cock and bull story and it is hence
dismissed.

On
the totality of the evidence before me, I am convinced beyond a
reasonable doubt that the accused was the aggressor against the
deceased as well as against Lukas.

Although
there is in this case strong circumstantial evidence, it is not the
only evidence on which the case rests. Of equal importance is the
accused's admission to both Sergeant Mbeha and the Learned Magistrate
who presided over the Section 119 proceedings. It suffices to say
that the evidence available is sufficiently cogent to justify
conviction on the murder count. I am satisfied that it was the
accused who caused the death of the deceased and that he did so
unlawfully and intentionally; that is to say, the accused murdered
her.

I
now turn to the assault count. The question of physical violence does
not arise here as there is not evidence to that effect. Although what
is alleged in the particulars of offence has not been established, to
wit, that stones were thrown at Juliane and thereby caused her some
injuries, the clear evidence adduced by the State is that the accused
made gestures which suggested that he was going, or was about, to
throw stones at Juliane which induced fear into her to such an extent
that she ran away.

As
I indicated in my earlier ruling at the "no case to answer"
stage, the crime of assault consists in lawfully and intentionally
(a) applying force to the person of another, or (b) inspiring a
belief in that other that force is immediately to be applied to
him/her. The law forbids the application of physical force of
whatever sort and in whatever degree to the body of another person.
Taking cognizance of the fact that the human body is made up not only
of flesh and blood, but also of the mind, the crime of assault
punishes, not only the application of force to the body but also to
the mind. This it does by punishing as assault the inspiring of fear
in the mind of a person that he/she is about to suffer physical harm.
The crime thus protects not only the human body from injury, but also
the person from invasions of the mental tranquility of the
individual. The thrust of the latter form of assault is the creation
of the apprehension in the mind of the victim of the assault. An
assault is thus any act or gesture which induces in the mind of
another an apprehension that he/she is about to suffer immediate
personal violence and the person threatened must have reason to
believe

that
the assailant intends, and has the power immediately, to carry out
that threat. See S
v Miya 1996(4)
SA 274(N) at 276A-277H; Charles
Rudolf Coertzen v
State
Case
No. CA 57/1996 (unreported); and Jonathan, Burchell and John Milton:
Principles of Criminal Law, second edition, at pp 478 and 283.

///
casu. it
is obvious that Juliane had reason to believe that the accused
intended immediately to carry out the threat and that he had the
power to do so. Had Juliane not fled, it is likely that physical
assault could have been inflicted upon her. Obviously, the accused
did not cherish the idea that Juliane should be present during his
assault upon the deceased, hence his threat against her.

Ms
Hamutenya submits that reasonableness has not been proved, but this
submission is a misconception, in the light of what has been said
above.

I
am thus satisfied that the crimes of murder and assault have been
proved beyond a reasonable doubt. Accordingly, I find the accused -

Count
1: Murder: guilty and I convict him as charged with dolus
eventualis; and