S V Hamukoto (CC 8-2013) 2014 NAHCMD 59 (7 November 2014)

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CC 8/2013

THE STATE

AND

MONIKA NDAHAMBELELA HAMUKOTO ACCUSED

Neutral citation: S V Hamukoto (CC 8/2013) [2014] NAHCMD 59 (7 November 2014)

Coram: TOMMASI J

Heard: 20-30 October 2014

Delivered: 7 November 2014

Flynote: Criminal Law – Murder – Self-defense – Accused exceeded the bounds of self defense – State proved beyond reasonable doubt that accused did not act in self-defense — Intention to kill – Manual strangulation – accused explained that although she was angry that she merely she wanted the deceased to lose consciousness — Explanation and conduct afterwards creates doubt that the accused in fact appreciated the possibility that death would ensue – Convicted of culpable homicide.

Summary: The deceased and the accused quarreled over a N$10 which the deceased believed she had inadvertently given to the accused. The deceased approached the accused’s cuca shop with a stick but it was removed from her. She hit the accused with her fist on the deceased neck and a fight ensued. The deceased fell to the ground and the accused managed to sit on top of the deceased. She eventually managed to pin the deceased’s arms down on the ground. She held the deceased’s neck with the left arm; and hit the deceased head with her right hand. She got up to fetch a bottle and hit the deceased on her face without realizing that the deceased had already died at that time she strangled her. The court found that the accused, at the time she was sitting on top of the deceased, was in full control of the situation and hereafter became the aggressor. She thus exceeded the bounds of self-defense. No direct intention to kill was proven. Her explanation that she simply wanted to render the deceased unconscious and her conduct afterwards created doubt whether she in fact appreciated the possibility that death would ensue i.e that she had intent in the form of dolus eventualis. The accused was found not guilty of murder but convicted of culpable homicide, a competent verdict on a charge of murder.

ORDER

1. the accused is found not guilty of murder; and

2. the accused is convicted of culpable homicide which is a competent verdict on a charge of murder.

JUDGMENT

TOMMASI J: [1] The accused was charged with murder in that she on 2 January 2012 murdered Monika Kondjeni Ndeshipanda by strangling her. The accused pleaded not guilty and raised the defense that she was acting in self-defense.

[2] The deceased and the accused were neigbouring business owners. They knew one another well and peacefully co-existed. It was common cause that the accused and the deceased quarreled over a N$10 on this fateful day.

[3] The State called three witnesses who were present at the deceased’s cuca shop on 2 January 2012. One of these witnesses was the accused’s brother. His account may be summarized as follow: He came to his sister’s cuca shop after work at approximately 17:00. The accused offered him a traditional beer and he sat outside the cuca shop, drinking his beer. He saw the accused going to the neigbouring cuca shop. After she returned he heard the neighbours discussing the subject of change. He decided to go to another cuca shop.

[4] As he was leaving, he saw the deceased coming to his sister’s cuca shop with a stick. After a while he heard some noises coming from his sister’s cuca shop and he turned around. He saw the deceased on the ground and the accused sitting on top of her. The deceased was no longer in possession of the stick but it was lying next to her. The accused and the deceased were fighting with each other. He also saw the accused holding the deceased’s neck with one arm. He pulled the accused from the deceased. He took the accused to one side and she undertook that she was not going to fight anymore. As he was leaving again he saw the deceased getting up and picking up the stick from the ground.

[5] He had not gone far when he heard the sound of a bottle breaking. He returned to the scene only to find the accused once again sitting on top of the deceased. She was pressing her hands on the deceased. At first he was not sure on which part of the body the accused was pressing but he later testified that it was on her chest. He pulled the accused off the deceased for a second time. The deceased was not moving at the time and he lit the scene with his cell phone. He saw broken glass next to the deceased. The village headman announced that the deceased had died. The accused started crying saying “I have killed someone.”

[6] The two State witnesses confirmed that the deceased came to accused’s cuca shop with a stick. They however did not witness the actual fight between the accused and the deceased.

[7] Dr Ricardo, the pathologist who conducted the post mortem examination testified that the deceased suffered a number of injuries to her head and face but that the cause of death was manual strangulation. He found abrasions and contusions on the anterior region of the neck which was consistent with manual strangulation. In his view it could take as little as 30 seconds of pressure to the neck to bring about death in some cases of manual strangulation.

[8] The accused testified that a customer gave her N$10 for a glass of traditional beer. The cost of the beer was N$2 and she did not have change. She approached the deceased who assisted her by giving her change for the N$10 note. The deceased later came to her cuca shop demanding N$10 which she believed she had inadvertently given to the accused. A quarrel ensued over the N$10. One of the State witnesses, Naemi, advised the deceased to leave the issue until night time. When her brother came to her cuca shop that evening she informed him of the quarrel and he decided to stay with her.

[9] The deceased arrived at the accused’s cuca shop later that day demanding her money and was using abusive language mentioning her mother. Her brother cautioned the deceased not to talk about his mother and wanted to hit her. Other people however stopped him. The deceased left and returned with a stick. The accused could not remember what had happened to the stick but she stated in her confession that the stick was taken away from the deceased. The deceased, according to her, struck her first on the right side of her neck with her fist. She fought back and the deceased fell to the ground. The accused was unable to say how this happened but she found herself sitting on top of the deceased. They continued to fight in this position. She decided to strangle the deceased a little bit so that the deceased could lose her balance and release her. According to the accused the deceased beat her thoroughly and she was more powerful than her. She thereafter got up and fetched a bottle. She returned to the deceased and hit her with the bottle in her face. She was not aware that the deceased had already died at that stage.

[10] It is common cause that the accused caused the death of the deceased by strangulation. There are two different versions before this court of what transpired between the accused and the deceased that evening. The court thus has to determine which of the two versions to accept.

[11] The material difference relate to the number of times the accused fought with the deceased. The deceased, according to the accused’s brother, was able to get up and pick up a stick after she was strangled. There is nothing in his evidence to suggest that the accused strangled the deceased the second time he found her sitting on top of the deceased. A reasonable inference which could be drawn from his evidence is that the deceased later succumbed to the manual strangulation applied to the deceased during the first fight. This is not consistent with the medical evidence that the deceased died of manual strangulation and that death could occur within a very short period of continued pressure. It is unlikely that the deceased survived the first strangulation. The accused’s version is more probable than her brother’s account. Her brother’s testimony furthermore was unsatisfactory in some of the peripheral issues. The inconsistencies and contradictions relate to issues which are not material. It however demonstrates that the accused’s brother tends to exaggerate his role as a peace keeper and underplayed his own aggressive behavior. I found him not to be a credible witness and it would be unsafe for this court to rely on his evidence where it is at variance with that of the accused.

[12] The testimony of the accused on the other hand differed in a material aspect from her confession which was handed into evidence by agreement. She described what transpired between her and the deceased as follow:

“Monica hit me with a fist on the right side of my neck and I told her that she came to fight and now I will beat her so that she can see that people can be beaten. I put her under me and I beat her whilst she was under me with fists. She also hit me on the face and I then pinned her arms with my knees to the ground. My left arm was grabbing her neck and my right was hitting her on the head, not knowing that my left arm which was on her neck was pressing harder and harder, In the process of the pressing her neck she died but I did not know that she had died. I just stood up and hit her with it on (its) her mouth.”

[13] When confronted during cross-examination with this version the accused did not dispute the correctness of the confession. This is a succinct and credible version of what had happened on that day. The accused stated in her plea explanation that she acted in self-defense. The question which now arises is whether the conditions and/or requirements of self-defence have been met, which includes the question, whether the bounds of self-defence were exceeded[1].

[14] It was conceded by Mr Wamambo, counsel for the State, that the deceased was the aggressor. She came to the accused’s place with the intention to assault the accused with a stick. It is reasonably possibly true that the deceased struck the accused as she described. This was an unlawful assault against the bodily integrity of the accused. The deceased clearly intended to do the accused bodily harm if one has regards to the fact that she was wielding a stick. When this was taken from the deceased she struck the accused in her neck. The accused was justified to avert the attack by using force to subdue the deceased. The accused, at the time she was sitting on top of the deceased pinning her arms down, was in full control over the deceased. The deceased was rendered completely harmless. When the accused then continued with the assault by pressing her hand on the deceased throat and hitting her on her head, she became the aggressor. I am satisfied that the State had proven beyond reasonable doubt that the accused did not act in self defense.

[15] The final question for consideration is whether the accused intended to kill the deceased. Both counsel agreed that the State did not prove that the accused had direct intention to kill the deceased. The State submitted that the accused had the intent in the form of dolus eventualis. i.e that the accused subjectively foresaw the possibility that, in striving towards her main aim, the unlawful act may be committed or the unlawful result may be caused and she reconciled herself to this possibility[2]. In support hereof the State cited S v Lewis 1958 (3) SA 107 AD where the accused strangled a 12 year old boy to stop him from screaming. Malan J A concluded thus at page 109 E – F

“The inherent danger of the application of pressure to the throat and neck for even a very brief period must be present to the mind of even the most dull-witted individual and, apart from explanation, in performing such an act the assailant either realizes, or recklessly disregards its probable consequences” [my emphasis].

In that case the court found that the accused’s decision to act was a deliberate act designed to be effective and of some duration.

[16] The accused herein admitted that she knew that one could kill a person by placing pressure on a person’s throat. She furthermore admitted that she was angry and it was clear that she meant to do the deceased harm. She however denied that she intended to kill the deceased. She explained that she merely wanted the deceased to “release” her. She explained further that she decided to strangle deceased a ”little bit” so that she could lose her balance as the deceased was fighting with her and was powerful. It was put to her that the deceased was powerless. The accused responded that she was angry because she was provoked. She claimed that she was not aware what she was doing. I sincerely doubt that this was the case. She testified that she was thinking that the deceased would become unconscious and that the deceased would “release” her.

[17] The accused was indeed already in control of the situation when she was sitting on top of the deceased with her arms pinned down. Prior to this however they were both fighting and the deceased may have demonstrated that she was more powerful than the accused and she was persistent in her desire to fight with the accused. The accused testified that she was beaten thoroughly by the deceased and was paining. The deceased confronted her at least twice for the return of her money. The fact that the deceased came with a stick was a clear sign that she intended to do the accused harm. Apart from her anger it was also her aim, in my view, to overcome the resistance which the deceased was putting up by rendering her unconscious. The court cannot ignore her explanation that she wanted to put an end to the fight and that she strangled the deceased to cause the deceased to lose consciousness.