WINDHOEK – High Court Judge Elton Hoff and Judge Naomi Shivute overturned an attempted murder conviction of a security officer from Osho Bar in Okuryangava, who wounded alleged robbers during a shooting at the bar in December 2009.
Paulus Mwanyekele was convicted in the Katutura Magistrate’s Court of attempted murder and sentenced to a fine of N$8 000 or alternatively two years’ imprisonment.
The judges ruled Mwanyekele was justified to use a firearm under the circumstances, “especially if one has regard that he only fired a warning shot on the floor which ricocheted and struck the complainant above his right ankle.”
The State therefore did not prove beyond reasonable doubt that the appellant did not act in self-defence and the appellant should for this additional reason have been found not guilty on the charge of attempted murder, the judges ruled.
“Even though there is no evidence that anyone of these assailants was in possession of any weapon, would it have been reasonable to expect of the appellant to put his firearm aside and to engage the assailants in a fist fight? It would have been the height of folly to have expected of him to do so,” the judges further ruled.
The judges ascertained the presiding magistrate misdirected herself, alternatively erred in law and/or fact by finding that the accused in his actions exceeded the bounds for self-defence.
During the trial the victim testified he together with two friends entered Osho Bar in Okuryangava at 02h00 on December 01 2009 with the intention to buy a recharge voucher (airtime).
One of his friends Kapia went to a gambling machine where another person was already gambling.
There was a misunderstanding between the two persons and by the time the appellant, who was a security officer at the bar, went to investigate, the problem had already been resolved.
The victim further testified that Mwanyekele then went to his (the victim’s) other friend Matheus who was seated at the bar counter. It appeared to him that there was an argument between two people and Mwanyekele went to them and asked Matheus what the argument was all about.
His friends were in front of him, leaving the bar and he was at the back and the appellant was behind him.
He then just heard a gunshot and saw blood on his leg.
According to the complainant he informed Mwanyekele that he had been shot but he gave no answer. Mwanyekele at that stage still had the firearm in his hand “cocking it”.
The complainant testified the same bullet, which injured him on his leg, also struck Kapia “on his feet and the toes”. They were subsequently fetched by an ambulance and taken to hospital.
By Tunomukwathi Asino