REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CA 45/2013
In the matter between:
Neutral citation: S
v Nangolo (CA 45/2013)  NAHCMD 294 (18 October 2013)
Coram: GEIER J
Application for leave to appeal by the State against acquittal of
accused on all charges -
respondent had been acquitted on a count of murder and two further
counts of attempted murder. Court finding that leave should be
granted in respects of the counts one and two – the facts
appear from the judgment
Leave to appeal the
acquittal of the respondent in respect of counts 1 and 2 and their
respective alternative counts is hereby granted to the applicant.
 The accused who had
faced trial on a charge of murder and two charges of attempted
murder, all coupled to the alternative charge of contravening section
31(1)(i) of the Arms and Ammunition Act, Act 7 of 1996, relating to
the negligent handling of a fire arm, was acquitted on all charges by
the Regional Court on 21 November 2011.
 The State launched an
application for leave to appeal on 20 December 2011 against the
entire decision of the regional magistrate.
 The grounds on which
such leave was sought were set out in some 27 paragraphs.
 This application for
leave to appeal was eventually set down for hearing on 30 September
 On that day Mr
Wessels, who appeared on behalf of the respondent - (hereinafter
referred to as the ‘accused’) - indicated that his client
had elected not to lodge any written submissions in this regard and
would thus leave the decision in the hands of the court. Also State
counsel elected not to make any representations in support of the
 I deem it
unnecessary, at this stage, to consider the detailed grounds raised
on behalf of the State in its application as it seems to me that
already the analysis of the common cause factors underlying this case
will provide the key to determining ultimately whether or not leave
to appeal should be granted in this instance. I will accordingly
depart from this premise.
THE SECTION 220
In terms of section 220 of the Criminal Procedure Act 1977, it was
initially admitted by the accused that he was in possession of the
firearm from which a shot was fired, that struck the deceased and
that the deceased died as a consequence of the gunshot wound in the
chest. The identity of the deceased was admitted – the accused
also formally admitted that he had also fired various other shots one
of which hit a friend of the accused.
THE DEFENCE PLEADED
 The defence that was
placed on record in regard to the murder charge was that the shot –
which admittedly hit the deceased – was fired accidentally and
in circumstances where the deceased launched an unlawful attach on
the accused together with certain other individuals.
 As far as counts 2
and 3 where concerned, accused denied that he ever had the intention
to hit or attempt to kill any of the two complainants.
COMMON CAUSE EVENTS
It was not in dispute further that the incident occurred in the early
morning hours of the 1st of
October 2006, after the accused and his friends with their red Toyota
Corolla and another vehicle had car-chased the deceased and his
friends in a Peugeot. The accused and his friends so gave chase on
account of the accused’s cell phone having been stolen at
Kamusele Bar in Katutura. The accused managed to force the Peugeot to
a standstill by blocking its path.
The evidence of all the state and defence witnesses thereafter
diverges materially on certain crucial issues.
THE STATE EVIDENCE
State witness Muunyango then went on to sketch a scenario in which
the deceased pushed the accused after they had had both disembarked
from their respective vehicles and confronted each other – that
the other passengers then also disembarked from the Peugeot when a
third car came at the scene – that the accused then went to his
vehicle and took out a firearm and started shooting – He shot
in the direction of one Hafeni who fell down, but was not hit. Hafeni
could thus escape – Mr Wessels indicated during cross
examination of Mr Muunyango, that the accused admitted also firing
one shot at one Kalola but missed – the accused asked where the
people where that had assaulted him – at that stage Mr
Muunyango stood behind the accused – while the accused was
repeatedly asking – where are they – he, Muunyango, then
moved towards the Peugeot and got inside – whilst he was
inside, the accused shot the deceased – who
was in a crouched position- (‘not completely sitting flat on
the ground, only his arm was resting on the ground’) - the
accused then came towards him, Muunyango, and shot him in the stomach
while he was seated in the front seat of the Peugeot –
Muunyango opened the door, disembarked – holding his stomach
and was made to lie down by Kalola who had come back to the scene
awaiting medical help.
 The State witness
Hafeni Kaulumbwa sketched the event as follows – After the two
vehicles had come to a standstill the deceased disembarked and went
to question the accused – who then started to push each other –
he and the others also got out of the car to find out what was going
on and as they approached, the accused went to his car and came back
with a pistol and apparently aimed the first shot at him – He
fall back on his back and thought that he had been hit, but was not –
He heard his friends say Hafeni is shot – he then ran away
while doing so he heard more shots – He could not say how many
shots – when he returned to the scene he could see that Cleofas
was comforted by Quiet and that the deceased lay near the car.
 Mr Kalola confirmed
that the accused and the deceased disembarked from their vehicles and
that an argument ensued – that he and the others got out when a
third vehicle arrived from which three people disembarked –
that the accused went to his car to fetch the firearm – when he
came back he started to shoot – he first aimed at Hafeni –who
fell down – and the accused walked around asking where are they
– the deceased asked what did we do to you and after replying
he went around the car to the deceased and shot him – the
deceased at the time being in a seated position. The accused then
moved in Kalola’s direction who ran. He heard a shot being
fired – He went to hide next to a pole – when he returned
to the scene the accused had left – later he saw the accused
coming back to the scene in his vehicle – driving slowly,
looking around and then driving off again.
 From this brief
analysis of the evidence of the State witnesses, it appears that they
all agree that there was some or other altercation between the
deceased and the accused and that the accused went to fetch his
pistol and started to shoot - in the end result the deceased lay
fatally shot. Mr Muuyango was shot in the stomach while sitting in
the Peugeot and while Mr Kaulumbwa thought that he was shot at –
It is clear from their evidence that the accused was the aggressor,
who had fetched his pistol after the altercation between him and the
deceased and who started to shoot while not under attack –
after which he left the scene.
The accused tells a different tale. He stated that after the chase
and after the Toyota and the Peugeot had collided, four
people got out of the Peugeot, they approached his car, opened the
door, pulled him out and started to beat him – His friend
Michael Angula who was with him was nowhere to be seen – He
managed to break loose by leaving his attackers with his T-Shirt –
He ran to his vehicle took his firearm and shot twice into the air –
they, his attackers, seemed not to notice, and kept on coming at him.
One of them tried to take the firearm from him – as that person
grabbed the firearm a shot went off, striking that person – He
testified that the deceased was 1 meter from him when the shot went
off – He also stated that the firearm was some 60cm from the
body when the shot went off. The accused then
demonstrated his position: this was described for the record that his
arm was extended in front of his body and that the firearm was more
or less 50cm’s from the body of the deceased.
 The accused then
went on to state that the deceased came to grab the phone..( ?) and
that the distance was not big – The deceased fell and one of
the persons managed to “grab off” his necklace. One of
the persons ran to the car – After this person fell down the
accused fired another shot for them to move away – He fired one
shot in the air but it struck his friend – Michael Indongo.
 When asked why he
fired this shot, he answered by saying that the group was still
coming towards him – but he also states that when he fired the
shot “one of the gentleman went into the car and he said that
he was going to fetch a firearm in the Peugeot – He opened the
door and bent down as if he was taking it from under the seat and
that is when I shot him – I fired at him, before he could also
fire – and because I knew he was going to fetch a firearm. He
explained further that the window broke as a result of the shot and
that the door was slightly open.
 He then asked a
friend who also had arrived in the other car to take Michael Indongo
to the hospital.
 He then left the
scene and went home in order to go to the hospital.
 He went to the
Khomas Clinic where he obtained a medical report which indicated that
he had a mark on his face. This report was handed in and marked as
 Under cross
examination, the accused denied that he would have known that there
would be same sort of fight when he decided to pursue the people he
thought had stolen his phone.
 He confirmed that he
was pulled from his car and was beaten – He explained
graphically that he was kicked and that they did all sorts of things
to him – that he ended up on the tarred road and they all
stepped on him – He confirmed that all four men kicked him and
that all of them beat him with fists in his face, stomach, ribs and
 When asked by Ms
Husselmann : ‘How would you describe these blows –
where they very hard or was it just like being beaten by a girl?’
- he replied : ‘ I was seriously beaten up because I could
feel the pain.’ – ‘When your friends Johnny and
Michael arrived they did not come to your assistance when these
people continued to beat you?’ – ‘That is correct’
 The accused then
reiterated that he was able to free himself by getting out of the
T-shirt and when to fetch the pistol. He then fired two shots into
the air despite this his assailants’ still came for him. While
the deceased was trying to grab the firearm a shot went off. In the
process another shot went off. He then explained that despite the
deceased already lying in the road the rest still stormed at him –
He then stated that he fired a shot in the air – when
questioned again he said “I would not say I fired the shot in
the air – but I actually did not foresee that it will strike
anybody” – He then said he intentionally fired another
shot but did not foresee it would strike anybody. He confirmed also
that nobody tried to stop him from firing shots.
 Interestingly enough
when Michael Indongo’s statement was put to him to the effect
that Indongo tried to take the firearm away from him, he said that
could not recall this.
 In regard to the
shooting of Kleophas Muuyango, the following aspects emerged during
cross examination – which was conducted with reference to the
photo plan - Exhibit B – Photo 18. The accused confirmed
firstly that the fatal shooting had occurred to the right of the
vehicle (the Peugeot), viewed from the back. He confirmed again that
he saw the person who had said he was going to fetch a firearm was
running and getting into the left hand passenger side of the Peugeot
– he followed him – he never saw a firearm in his hand
but he saw him with an object. He confirmed that the door of the
Peugeot was only slightly open – 30cm – He then stated
that the person bent down and while in the process of moving the
accused fired a shot.
ANOTHER COURT COME TO A DIFFERENT FINDING IN RESPECT OF THE ACQUITTAL
OF THE ACCUSED ON THE CHARGE OF MURDER
 Two central issues
arise from the evidence in this regard.
The first issue relates to the question of the attack allegedly
perpetrated by the deceased, the two complainants in counts 2 and 3
and another male. The
second issue arises out of the medical and photographic evidence in
relation to the shooting.
THE PROBABILITIES OF
THE ALLEGED ATTACK
 It is clear that the
State witnesses painted a scenario in which the accused was the
 This scenario,
viewed objectively, is not entirely improbable – after all the
accused’s cellphone had been stolen – he followed the
deceased and his group to their car, the Peugeot, parked outside
Kamusele Bar, where he tried to stop them – when this did not
work, and they drove off, he chased them in his vehicle, the red
Toyota Corolla, together with Michael Angula, while his other two
friends took up the chase in the third vehicle. The accused was so
determined to stop the perceived thieves that he first rammed the
Peugeot with his vehicle and then brought it to a standstill by
cutting across its path – He then got out and had an
altercation with the deceased - verbal and/or by pushing each other -
according to the state witnesses. He then went to fetch his firearm.
 In strange
juxtaposition to this fairly logical account - on the accused’s
version - and after the car chase and having managed to stop the
escapees - he now simply left it at that by just (passively?)
remaining in the car until the deceased and his friends arrived to
drag him out of his vehicle, then throwing him onto the tar and
starting to beat him up viciously until he was able to escape leaving
his t-shirt and chain/necklace?. One would think that the accused’s
version is highly unlikely. Why would he suddenly turn from the
aggressive person giving chase to a helpless, passive victim?
 Interestingly enough
the investigators did not find the accused’s T-shirt and
necklace at the scene.
The question arises why such evidence was not found and why,
if the accused had removed these items, he did not say
so and present these items in court? In the circumstances it becomes
more than likely that these allegations are simply untrue and that
the T-shirt and the necklace story was merely brought up to bolster
the self - defence version of the accused.
Obviously there would have been no need to extract himself from the
alleged attack by ‘leaving his shirt and necklace’ if the
accused had been the aggressor as described by the state witnesses,
which would explain why these items were not found on the scene to
which the accused only returned by driving past without alighting?
THE IMPACT OF EXHIBIT
 Importantly also the
medical report - Exhibit “D” - only recording a swollen
mark near the left eye of the accused – impacts negatively on
the accused’s version of necessity. This piece of medical
evidence – neutral evidence - is clearly in direct conflict
with – and does not corroborate the allegations relating to the
vicious assault by four men on a helpless victim, lying on the
ground/tar, beating their victim for some time – not like a
‘girl’ - but seriously and viciously - inflicting pain -
by ‘kicking and beating him with fists in
his face, stomach, ribs and so on’.
THE FATAL SHOOTING
 Also the closer
analysis of the accused’s version of the shooting exposes the
improbability of his version. The following anomalies emerge:
The accused alleges that he fired a total of 5 shots: 2 warning shots
– the third hitting the deceased – a further warning shot
hitting his friend Michael Angula for no reason - and the 5th
shot hitting Mr Muunyango, seated inside the Peugeot.
After a search of the scene however only 3 cartridges were found: 3
cartridges accurately account for the three hits, on
all three victims. It becomes improbable that five shots where fired.
He further testified that after the he had managed to free himself
from the attackers the deceased kept on coming towards him and tried
to take the firearm away from him – Initially he testified in
chief that the deceased actually managed to grab the firearm and that
is when the fatal shot went off – When questioned on how far
away he was from the deceased, he then changed
the distance three times – from 1 meter, to 60cm to 50cm. He
did also not persist with the allegation that the deceased managed to
get hold of the firearm.
 Why would he do this
– Objectively speaking it seems unlikely that the deceased was
1 meter away – holding the pistol when the shot went off –
Realising that he would have had to adapt his version he shortened
the distance to make his version more likely so that it would also
fit the forensic evidence regarding the residue which was found on
the deceased, indicating that the shot must have been fired from
 Importantly he also
demonstrated how he was standing at the time – the record
reflects that the accused demonstrated that he had his arm extended
in front of his body and that the firearm was then therefore more or
less 50cm from the body of the deceased when he pulled the trigger.
It is unknown how long the arm of the accused is? If one assumes that
the accused’s extended arm could measure anything from 80cm’s
upwards. To this a few centimeters have to be added – say 20 to
25 cm’s - to account for the length of the firearm - as well as
the distance of the deceased’s body from the firearm, trying to
get hold of the firearm, let’s say another 50cm to a meter, the
picture changes dramatically. We also know that on his version the
deceased was in all probability coming forward to get hold of the
firearm – so the moving scene would impact on the distances. It
emerges that the accused’s account is simply not accurate or
THE IMPACT OF THE
No evidence was given in regard to the position of the deceased at
the time that the shot went off – All we know is that the
deceased was trying to grab the pistol and on the first version of
the accused actually managed to grab it – In order to do so he
must have faced the accused surely who admittedly had his arm
extended in front of his body – It is unlikely that the
deceased would have tried to do this by facing sideways.
The pictures of the deceased reflecting the entrance and exit wounds
on his body - in photos 12, 29, 30, 31 - however show that the
deceased must have been at a 90º angle to the shooter i.e.
he must have been in a side-ways position in relation to
the accused when he was shot. This scenario seems highly unlikely if
one considers the version of the accused according to which he
fatally shot the deceased who must have been coming forward to snatch
the firearm from him and who had managed to get hold of the pistol
that the accused held extended in front of the body on the initial
 If one takes into
account the other version of the accused – in which the
deceased had not yet managed to get hold of the firearm and was
merely coming forward to grab the pistol - the accused’s
version becomes even more improbable as in such a situation it
becomes even more inexplicable that the deceased was shot sideways
and not from the front.
 The improbability of
the accused’s version becomes even greater if one considers the
trajectory and angle of the entrance and exit wounds on the body of
 It appears from
photo 29 that the entrance wound on the right hand side of the
deceased is located a couple of centimeters above the right nipple,
just below the right shoulder. The exit wound, as reflected on photos
30 and 31, is however a few centimeters below the left nipple of the
deceased. This indicates that the shot must have been fired from a
higher position in a downward direction. The accused’s version
does not - and cannot - account for this.
 Importantly enough
the evidence of the state witnesses Muunyango and Kalola provides an
explanation for this phenomenon. They testified that the deceased was
on the ground, either partly seated or only crouching with his and
arm and knee on the ground when he was shot from a short distance.
 This evidence is
thus corroborated by the photographic evidence reflecting the actual
injuries inflicted on the deceased, which makes it fairly clear that
the deceased was in all likelihood shot by a standing accused while
in a lower (crouching) position. Also the residue found as a result
of having been shot from a short distance befits this version.
 All these aspects
are in my view destructive of the accused’s version of the
events. These aspects also go a long way to demonstrate that the
accused’s version cannot reasonably possibly be true. On the
other hand there is the material corroboration of important aspects
of the evidence tendered on behalf of the State afforded by the
abovementioned objective factors and objective evidence.
 In such premises I
must come to the conclusion that it is possible that another court
may reasonably come to a different conclusion in regard to the merits
of the acquittal of the accused on the main count of murder.
CAN ANOTHER COURT COME
TO ANOTHER FINDING IN REGARD TO THE ACQUITTAL OF THE ACCUSED ON
COUNTS TWO AND THREE
 In this regard the
victim Muunyango testified that he was shot whilst sitting inside the
green Peugeot. After the accused had shot the deceased he walked
around, stopped on the left hand side of the car and shot Muunyango
through the closed window of the car in the stomach.
The accused on the other hand heard Muunyango saying he was going to
fetch a firearm and that he noticed Muunyango running to the car,
opening the car door and bending down as if he was taking out a
firearm from under the seat - that is when he shot him – He
then explained that Muuyango was in the process of standing up –
the accused then said : “ I fired at him
because I knew that or I thought he was going to fetch a firearm, so
I had to fire before he could fire.” He
then conceded that he could have hit Muuyango through the window.
 This was his
evidence in chief, as elicited by Mr Wessels, who represented the
accused at the trial in the Regional Court.
 During cross-
examination by Ms Husselman for the State, the accused re-iterated
that he saw this complainant running to the left passenger’s
side of the car/ the Peugeot. When asked whether he actually saw a
gun in Muunyango’s hand he startlingly said for the first time
“I saw him with an object in the hand but I could not say if
that was the firearm or not”.
 The question
immediately arises why - and if this would have been the accused’s
instructions to his legal practitioner – this evidence –
important evidence on a defence of necessity - was not led in chief?
 This omission was
however not explained and not pursued in cross examination.
 The accused however
confirmed that the door of the Peugeot was only slightly open, some
30cms, as depicted on photo 19.
 The accused
confirmed that he shot Muunyango who was actually bending down and
who was in the process of moving upwards in order to stand straight
and that is when he fired the shot.
 It does not take
much to fathom the total improbability of this version.
 The accused admitted
shooting Mr Muunyango through the left hand front window of the
Peugeot and not from behind through the 30cm opening - the door of
the Peugeot must therefore have partly blocked the accused’s
view. From such a position – and where his view must have been
partly blocked by the car door - the accused could simply not have
seen any object in Muunyango’s hand who ‘was bending down
in a vehicle and who was only starting to come up’.
 In any event the
entire scenario as sketched by the accused is also improbable. A
person under attack running to a vehicle opening the door to extract
a firearm - in haste – somewhere in the vehicle – would
surely not just open the door by same 30cms as depicted on Photo 19.
On that scenario one would have expected Muunyango to pull open the
door widely to frantically rummage for a firearm. Also the location
of the shot in the stomach is not quite in line with the accused’s
version. After all Muunyango was bending down and was only in the
process of coming up when he was shot in the stomach through the
window and not the car door which must have shielded Muuyango’s
stomach for some time in the process. It would seem as if the accused
adapted his version of the events so as to bring it in line with what
is depicted on Photo 19.
 On the other hand
and given the location of Muunyango’s wound - a stomach wound -
Muunyango’s evidence that he sat in the car when he was shot
coupled with the fact that the shot did not damage the car door –
cannot just simply be rejected outright as his version is
corroborated by neutral evidence in this regard –
 If one then takes
the totality of the events into account, where there are good
prospects that the defence of necessity may be rejected in respect of
the main count, it does not take much to understand that such finding
will also impact consequentially on the defence raised in respect of
the other counts. Also the further factors enumerated above in regard
to counts two and three above would additionally strengthen a
conclusion regarding the improbability of the accused’s version
on this score.
 Impacting on this is
also the clear lie and/or fabrication in regard to the object which
the accused allegedly saw in Muunyango’s hand - a
central/crucial aspect relating to Mr Muunyango’s shooting
which he failed to testify about in chief.
It is with reference to all these factors that I can only conclude
that also in regard to count 2 another court may come to a different
conclusion than the learned regional magistrate in the court a quo.
 I have already
indicated above that no corroboration of the accused’s
allegation, that five shots were fired, was found. – We know
for certain that 3 cartridges where found and that at least 3 shots
were fired from the accused’s firearm hitting 3 victims –
The inferences to be drawn from these hard facts leave very little
room for a conviction in respect of count 3. While I accept that Mr
Hafeni Kaulumbwa might have harbored the impression that one of these
shots was also fired at him I cannot say that the accused’s
acquittal on the evidence was such that leave should be granted in
respect of this count.
 If one then in the
final equation considers the grounds in which the State sought leave
to appeal in this instance, it appears that the above findings are at
least covered by the grounds set out in paragraphs 1(v), (vi), (vii),
(viii), (xii), and (xiii) of the application.
 In the result the
application must partly succeed and I grant leave to appeal against
the acquittal of the accused in respect of counts 1 and 2 and their
respective alternative counts.
APPLICANT: I Husselman,
Instructed by the Office
RESPONDENT: JH Wessels
Instructed by Stern & Barnard,