23
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
APPEAL JUDGMENT
Case no CA 09/2014
In the matter between:
NGHIPONDOKA ESTER ANNA-LISA APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Nghipondoka v The State (CA 09/2014) [2015] NAHCNLD 2 (19 January 2015)
Coram: TOMMASI J and JANUARY J
Heard: 19 September 2015
Delivered: 19 January 2015
Flynote: Evidence—Evaluation thereof—Principles on—Appeal—Misdirection—Criminal law—Assault definition—De minimus non curat lex—Not applicable.
Summary: Appellant was convicted of assault common. Appellant, a director of education, facilitated a conference for teachers. During the conference she observed some teachers reading newspapers. She reprimanded teachers not to read the newspapers during the conference. The appellant, according to her, observed the complainant in the matter continue reading his newspaper that was folded on his lap. The complainant denied having read the newspaper. Appellant approached him, talked to him without a response, grabbed him on the collar of his jacket, pulled him up from the chair he was sitting on, pushed him into the aisle, slapped him with open hand once on the back and hit or threw him with a newspaper. Appellant on appeal submitted that the magistrate erred in his evaluation of the evidence, alternatively that the assault was justified and/or that the rule of de minimus ought to have been applied. Court found no misdirection and assault not justified nor subject to the de minimus rule.
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ORDER
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1. The appellant’s non-compliance with the rules is condoned;
2. The appeal is dismissed.
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APPEAL JUDGMENT
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[1] This appeal is against conviction and sentence by the Magistrate’s Court, Oshakati where the appellant stood trial for common assault. The appellant was convicted for assault (common) and sentenced to N$700 or 4 (four) months imprisonment.
[2] The charge reads as follows:
“Appellant is guilty of the of offence of Assault (common) in that upon or about the 17 day of February 2012 and at or near Oshakati the appellant did wrongfully and unlawfully assault Tobias Nandjiwa by grabbing him by his neck, pulling him up while holding his jacket collar, pushed him, slapped him with open hand on his back and hit him with a newspaper.”
[3] The appeal was noted out of time with about two days and appellant applied for condonation thereof. This application was not opposed by respondent. Condonation was granted.
[4] The grounds for the appeal are as follows:
1. “The State did not prove beyond reasonable doubt that the appellant committed the offence for the following reasons:
1.1 In view of the inherent contradictions and material discrepancies between State witnesses, the onus of proof on the State was not discharged.
1.2 The learned Magistrate did not give due regard to the State witnesses regarding such witnesses’ evidence inconsistencies, improbabilities and contradictions.
1.3 The learned Magistrate did not employ the cardinal approach in criminal matters in evaluating the totality of evidence.
1.4 The learned Magistrate, should he have properly considered the evidence, would have found that the version of the appellant was reasonably possibly true.
2. Further, and in the alternative to the above, even if the State were to have proved the allegations as set out in the charge sheet, given the evidence and the circumstances under which such alleged acts were committed, the learned Magistrate erred in failing in the circumstances to apply the principle de minimus non curat lex, as the trivial nature of the alleged offence would have justified the Court to return a verdict of not guilty.”
[5] The appellant was represented during the trial by Mr. Marius Boonzaaier instructed by Government Attorneys. Appellant was at this appeal represented by Mr. Sisa Namandje. The State was represented at the appeal by Mr. Matota.
[6] The charge stems from an incident on 17 February 2012 when teachers and education support staff attended a conference at Oshikuku in the Omasati Region.
[7] The complainant testified that he was employed as a teacher in the Ministry of Education at Oshikweyu Combined School in the Omasati Region.
[8] The appellant was on the date of trial known by complainant as a former Director of Education in the Omasati Region. Complainant attended the abovementioned conference at around 08h00 and 09h00 with a newspaper of 16 February 2012 and found a principal with another newspaper dated 17 February 2012. Complainant exchanged newspapers with the principal and teachers. They including himself, were reading newspapers whilst the attendants were waiting for the Director and the conference to commence.
[9] According to complainant after the Director arrived, the conference started. The seating arrangement in the hall was as such that only the Director, an Inspector and other dignitaries had tables. The other attendants had to either put down their possessions on the floor or put it on their laps. Complainant testified that two presenters finalised their presentations and during the third presentation, the appellant stood up and expressed her disappointment on teachers who were not “jotting” down whatever was presented. She also reprimanded a principal, Victor Nanghama, for having on earphones and stated that she could only see teachers with newspapers. Thereafter appellant sat down.
[10] The appellant stood up after two or three minutes and approached complainant from the podium. She yelled at complainant when she was an arm’s distance from him and said;
“This is the teacher I am referring to reading a newspaper. Which school are you from? Get out get out!”
[11] According to complainant the appellant forcefully attacked him, grabbing him on the neck with both hands, holding him violently, holding his jacket collar and “holding” him up from the chair he was sitting on. She forcefully pulled him up from the chair he was on. She pushed him to the side of the corridor and slapped him once with an open hand on the upper side of the back. She then took the newspaper and hit him with it behind his head while dragging him towards the door of the hall. From there the complainant went outside. The appellant started singing a motivational song of the region.
[12] Complainant did not sustain any open wounds but had a burning sensation on his body, on the back of the head and around the neck. He received psychiatric treatment and therapy for stress. He received medication for the burning sensation and/or pain.
[13] At the time when appellant approached the complainant the newspaper was on his lap and he was not reading it. He stated that his dignity was assaulted and he was traumatized.
[14] Under cross-examination the complainant confirmed his attendance of the conference. Complainant confirmed having read the newspaper before the appellant came into the conference hall but when the proceedings started he was not reading. He was confronted with hypothetical circumstances if he was reading a newspaper in similar circumstances but in our view nothing turns on this.
[15] He was confronted with differences in his evidence, what he stated in his statement to the police and differences in the doctor’s report. Complainant testified that he was forcefully attacked whereas in the statement he makes no mention of that. In court he testified that he was grabbed with both hands around the neck whereas in the statement he stated “she pulled me holding my neck and pushed me to go outside.”
[16] Complainant stated that he was traumatized and shocked on the day of the incident whereas the doctor’s report states that he was healthy and seething with anger. In court he testified that appellant hit him with a newspaper whereas he stated in the statement that appellant threw him with the newspaper. He did not state in the statement that appellant ‘pulled him up’ but only that appellant ‘pulled him’.
[17] Complainant was confronted with the fact that about five other witnesses did not see the slap with open hand on the back. He remained adamant that it occurred.
[18] In cross-examination complainant was confronted with the fact that he instituted a civil claim against the appellant. He confirmed that he gave instructions but stated that the authors of his particulars of claim were not before court. Complainant stated that there were some things that he was not satisfied with in the particulars of claim in particular; that he was only slapped once whereas the particulars of claim states several times. The particulars of claim further states that complainant was only thrown with a newspaper on the head, not hit. The particulars of claim states that he was pushed to a nearby corridor not dragged.
[19] Complainant was confronted with a newspaper article where it was reported that he was assaulted “by grabbing him on the neck push him slap him on the back and hit him with the newspaper on the head.”
[20 ] It was put to complainant that appellant will testify that she said, ‘“Gentleman I am talking to you” and when she grabbed you on your collar, you stood up and you were busy leaving the hall down the ale (sic) aisle”.( my underlining.) The complainant denied that he stood up on his own but testified that he was pulled up.
[21] The State called two other witnesses who testified about the incident sequentially namely one Absalom and one Kamana who were teachers attending the conference. Amushila was sitting some distance of about 10 to 15 meters from the complainant whereas Kamana testified that he was next to the complainant when the incident happened. Kamana was not challenged that he was not sitting next to the complainant. In cross-examination it was confirmed that this witness was sitting next to complainant.[1]
[22] Amushila testified that while the teachers were waiting for the conference to start some teachers had newspapers. After the presentations started the appellant at some point during it, in general once reprimanded teachers who were reading newspapers and cautioned them to stop reading the newspapers.
[23] Thereafter, at some point the appellant stood up from the podium, approached the complainant and instructed him to leave. Complainant was reluctantly moving. The appellant moved the complainant out of the conference hall by grabbing him on the collar, moved him to stand up and showed/pushed him halfway out. (our underlining). Appellant had a newspaper and hit or beat the complainant at the back. Halfway through the hall the appellant dropped the newspaper and ask the complainant to pick it up. Amushila could not say if the complainant was reading the newspaper at the time that appellant approached him. Amushila did not see a beating or hitting with an open hand on the back.
[24] Amushila could not recall the singing of motivational songs or the clapping of hands by teachers.
[25] In cross-examination the witness Amushila was confronted with differences in his statement to the police and his testimony in court. In his statement the witness stated that appellant grabbed the complainant on the neck whereas in the testimony the witness said complainant was held by the collar, he was reluctant and he stood up. He said in the statement that the complainant was pushed whereas the witness testified that the complainant was moved. Amushila confirmed his statement and explained the differences as a result that English is only his second language.
[26] The witness was confronted with the differences in his statement and his evidence that in the statement he said the appellant “pushed” the complainant whereas the testimony was that she “moved”, “forced the complainant to get out”[2].
[27] Amushila was confronted that his version is a fabrication, which he denied. The appellant version was put to the witness that she will testify that she saw the complainant reading a newspaper while Ms Haitembu was busy presenting. Appellant’s version was further put that she will further say that despite numerous requests to all teachers and specifically the complainant, the complainant ignored her and continued reading his newspaper. Amushila corroborated the complainant and other witnesses that the reprimand was only once.
[28] It was put to the witness that it seemed the complainant did not want to adhere to the request or numerous requests to stop reading from the newspaper. The appellant then approached complainant and confronted him where he was seated. The appellant asked the complainant certain questions but he ignored her and continued staring down on the newspaper on his lap. She eventually said he must leave the hall. As a last resort trying to get the complainant’s attention she took hold of his collar saying; “Gentleman I am talking to you”. He then stood up and the newspaper fell from his lap on the ground. She picked it up and threw it in the direction of the complainant. When the complainant left the hall, the whole hall or teachers in the hall clapped their hands and started mumbling. Appellant quieted them and the conference continued.
[29] Kamana testified that he is a friend and colleague of the complainant. He confirmed that he attended the conference and was sitting next to the complainant. Kamana confirmed that the appellant once reprimanded teachers in general that they are not paying attention and stated that one principal was putting on earphones. The complainant then put his newspaper on the hips.