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State appeals ‘foul-mouthed’ lawyer’s discharge

2022-06-06  Roland Routh

State appeals ‘foul-mouthed’ lawyer’s discharge

Prosecutor general Martha Imalwa wants the Oshakati High Court to set aside a section 174 discharge for northern-based lawyer Marcia Amupolo on charges of crimen injuria and two counts of common assault.

Oshakati magistrate Antonius Shapumba granted the discharge on 10 July 2020.

Not satisfied with the ruling, the PG, through Ian Malumani, lodged the appeal, which was heard by acting Oshakati High Court Judge Danie Small. 

According to the PG, the magistrate misdirected himself by acquitting Amupolo after finding there was credible evidence that obscene language was used by her.

Amupolo allegedly swore at a police officer, Kambundu Ananius Shivute, thereby injuring his dignity. 

It was further alleged that the lawyer threw sand in his face, and slapped him on his left cheek.

In his ruling, Shapumba found that evidence was presented that the insults were not directed at Shivute alone, but at all officers present when Amupolo was stopped at a roadblock in Oshakati on 6 February 2019. 

She was arrested, and eventually released on bail of N$1 500.

According to the magistrate, the evidence was clear that the insults were not directed at a specific officer, but to all officers. 

He further said the evidence of the police officers present was contaminated in that they had an interest in the matter, but nevertheless proceeded to commission each other’s sworn statements. 

With regards to the assault charges, the magistrate said the evidence before court is not credible at all.

State witnesses reportedly tried to disguise evidence that was in favour of Amupolo. 

He further said evidence was presented that Amupolo was in fact assaulted, and she was just defending herself by throwing sand at the attackers.

The PG claims that the magistrate was wrong to conclude that the insults were not directed at the specific officer, but to all officers present. 

As for the assault charges, the PG said, Shapumba was wrong when he acquitted Amupolo while there was clear evidence that the officers were thrown with sand, and making a contradictory finding that they were not assaulted as such sand was not directed at them. 

Furthermore, the PG said, the magistrate erred when he found that Amupolo acted in self-defence when she threw sand at the complainants, contrary to the evidence before court that none of the State witnesses attacked her in any manner whatsoever, and that the circumstances never justified the actions taken the lawyer.  

The magistrate also made a mistake by ignoring the evidence by State witnesses that Amupolo pushed Shivute and slapped him on his left cheek, and paying lip service to the rule that the credibility of witnesses plays a limited role in a 174 application, unless it is of such poor quality that the court cannot ignore that fact. 

Amupolo, through her lawyer Peter Greyling, opposed the application and said in their view, the magistrate was correct in his findings, and that they pray that the appeal should be dismissed. Judge Small will give his ruling on 8 July.

2022-06-06  Roland Routh

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