REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 104/2016

In the matter between

AKTOFEL NDENGU NAMBAHU                                                                     APPELLANT

and

THE STATE                                                                                                     RESPONDENT

Neutral citation: Nambahu v S (CA 104/2016) [2020] NAHCMD 352 (14 August 2020)

Coram:                      SHIVUTE J et CLAASEN J

Heard:           26 June 2020

Delivered:     14 August 2020

ORDER

The appeal is dismissed.

JUDGMENT

CLAASEN J (SHIVUTE J concurring):

[1]        The appellant was charged with several counts in the District Court of Swakopmund. During the trial he was legally represented. On 29 June 2016, he was convicted on two of the charges. The first conviction was on count 1 which was a charge of pointing of a fire-arm, a contravention of section 38(1)(i) read with sections 1, 38(1), 38(2) and 39 of Act 7 of 1996. He was also convicted on count 3 in the court a quo, which was a charge of failing to comply with an instruction or direction of an authorised officer, a contravention of section 18(1)(a) read with sections 1, 11, 12,13, 14, 15, 16 and 106 of Act 22 of 1999.

[2]        In respect of the first count, the appellant was sentenced to pay a fine of N$4000 or 12 months imprisonment and on count three a fine of N$2000 or 6 months imprisonment was imposed.  The appellant paid the court fines.

[3]        On 13 July 2016 the appellant, with the assistance of counsel who conducted his trial, noted an appeal against the convictions on count 1 and count 2 as well as the sentence. The appeal was removed from the roll on 15 December 2016 because the notice of set down was not served on the parties.

[4]        The matter was placed back on the roll during May 2020. The appellant was legally represented.

[5]        I turn to the issues before this court. I will first deal with the appeal against conviction on count 2 for a reason that will be apparent in a moment.  Count 2 in the court a quo consisted of a charge of crimen inuria.  It does not make sense to have lodged an appeal against count 2, as the appellant was not convicted on count 2.  Notwithstanding, counsel for the appellant herein did not realise that as the heads of argument still referred to count 2, which was a charge of crimen inuria.  This anomaly was raised at the appeal hearing. Counsel for the appellant conceded the mistake, which put count 2 to rest. The only remaining issue of conviction pertains to count 1.

[6]        I move to that count and set out the grounds as listed in the notice of appeal:  

a. The court erred in law and/or fact by failing to properly apply the cautionary rule applicable to uncorroborated evidence of a single witness when she accepted the evidence of Graham Knowles;

b. The court erred in law and/or fact when she failed to properly consider the fact that Mr Graham Knowles did not mention the critical issue of a fire-arm being pointed at him in his witness statement;

c. The court erred when she considered the question of whether the State discharged the onus resting upon it to prove the Appellant’s guilt beyond reasonable doubt by relying on uncorroborated evidence of a single witness;

d. The court erred in law and/or fact by failing to consider the evidence that at all material times Mr Graham Knowles interacted with accused 2 who was the driver of the vehicle and that the Appellant had no issues with Mr Knowles warranting the pointing of a fire-arm.

[7]        The charge emanates from an incident that occurred on 28 March 2013. The state case commenced with the evidence of Warrant Officer Graham Knowles of the Traffic Unit at Walvisbay. He was performing duty in the vicinity of ‘Vierkantklip’ that is located approximately 1 km outside Swakopmund. The gist of his testimony was that at around 18h50 he noticed a white Toyota Corrola overtake another vehicle. He followed the Toyota vehicle up to a four-way stop in Swakopmund and signalled to the driver, being accused 2, in the court a quo, to pull off the road.

[8]        According to Warrant Officer Knowles, the Toyota vehicle continued to drive on. He put on his blue light and pursued the vehicle until it pulled off at Rhode Alley. He parked in front of the Toyota, disembarked and walked to the vehicle. He noticed that there were two occupants in the car and that they were dressed in military clothes. The appellant was accused 1 in the court a quo and at the time he was in the passenger seat, whereas accused 2 in the court a quo, Mr Petrus Nathinge was in the driver seat.

[9]        He explained to the driver the reason why their vehicle was pulled over. At that moment, the appellant spoke to the driver and told him not to hand over his license to the officer. That caused the officer to address a question to the appellant as regards to what he had said. According to Warrant Officer Knowles, he saw that the appellant was intoxicated and he told the driver to inform his colleague to behave appropriately.

[10]     According to the Warrant Officer, he informed the driver about two contraventions that in respect of which he intended to issue fines to the driver. The driver however informed the officer that he had received an instruction by telephone to report to the headquarters in Windhoek.

[11]     At that point, the appellant got out of their vehicle, opened the boot, took a rifle and pointed it at the face of Warrant Officer Knowles, so the Warrant Officer testified. He further stated that the appellant uttered a four-letter word towards him, loaded the rifle, touched the officer on his shoulder with the rifle and repeated the same swear word.[1]

[12]     After that the appellant and the driver returned to their vehicle. This time the appellant got behind the wheel and accused 2, who previously drove, got into the passenger seat. The appellant started the engine and reversed, whilst the officer instructed the appellant to switch off the vehicle. This was not done. The appellant reversed the vehicle and sped away whilst the Warrant Officer wrote down their vehicle’s registration number.

[13]     A hot pursuit ensued with the official chasing after the Toyota vehicle. In the process Warrant Officer Knowles phoned a certain officer Chief Gerber who was at the Swakopmund roadblock. According to Warrant Officer Knowles, he saw the Toyota vehicle pass through the roadblock over the cones. He stopped at the roadblock and was told that Chief Gerber and Inspector Oachamub pursued the Toyota vehicle. After that he only came into contact with the occupants of the Toyota vehicle later at the police station after they were apprehended by other police officials.

[14]     The central thrust of the appeal appears to be against the court’s acceptance of the state’s single evidence. The contention was that the magistrate failed to properly apply the cautionary rule and should not have concluded that the state proved its case beyond reasonable doubt. The appellant also raised an issue as to a deficiency in respect of a witness statement and furthermore that the magistrate failed to consider that it was accused 2 and not the appellant who had an issue with Warrant Officer Knowles.

[15]     The respondent had a different impression of the verdict. Counsel for the state argued that there was no misdirection because Warrant Officer Knowles’ evidence was straightforward and it was supported by facts that were not in dispute such as that the vehicle sped away through the roadblocks and that upon arrest an AK47 rifle was indeed found in the front of the Toyota vehicle. In support of its contention, counsel for the state referred the court to case law pertaining to the evaluation of single witness evidence and incomplete witness statements.  

[16]     Judging from the reasons given by the magistrate, she was cognisant of the applicable principles that the evidence of a single witness should be credible, clear and satisfactory in all material respects. The court referred to the relevant legislation and R v Mokoena.[2] She furthermore cited S v HN[3] in the plight of a trier of fact to exercise caution but at the same time to not let that displace common sense. In respect of count 1, she rejected the argument by the appellant’s counsel that the evidence of Warrant Officer Knowles was not satisfactory and credible.

[17]     I will commence with the appellant’s contention that the pointing of the fire-arm was not contained in the witness statement which was to the detriment of the state’s case. The question[4] was phrased as follows:

             ‘Q: I don’t read in your statement about the rifle touching you, is it not crucial.

 A: It is crucial evidence’

The evidence of the officer in this regard was that firstly the rifle was pointed in his face and thereafter the rifle was used to touch his shoulder. The touching aspect was an aspect over and above the act of the pointing of the fire-arm in his face, which is the crux of the charge and which was not omitted in the statement.  Thus, in my view the omission of the touching aspect in the witness statement is not material. ‘

[18]     Counsel for appellant also contended that it could have been a case of mistaken identity by Warrant Officer Knowles as regards the person who pointed a fire-arm. I pause to state that the grounds of appeal do not expressly spell out mistaken identity, though the appellant’s last ground of appeal implies a misapprehension by the magistrate that the appellant did not have any issue or interaction with Warrant Officer Knowles. This insinuation was continued in the appellant’s heads of argument[5] wherein it is stated that assuming that someone pointed a fire-arm at the witness, a possibility exists that it might have been accused 2.

[19]     The appellant’s notion that at all material times Warrant Officer Knowles interacted with accused 2 only is misconceived. The evidence by Warrant Officer Knowles indicates that whilst he communicated with accused 2, the appellant interjected, with a comment that that accused 2 should not give his licence to the officer. By virtue of this act, the appellant involved himself in a conversation that did not concern him. The evidence from that juncture shows that the appellant indeed joined the arena which now had three parties instead of two.

[20]     It is very clear that the episode of the pointing of the fire-arm occurred at the beginning of the incident. None of the other state witnesses can attest to that as they were not present. At the relevant time, it was only Warrant Officer Knowles and the two occupants of the Toyota Corolla who were at the scene.  The only other persons who can shed light on this charge are the appellant and accused 2. Both of them elected to remain silent. The instructions that were postulated during cross-examination do not constitute evidence under oath. There is thus nothing concrete to gainsay the state’s evidence.

[21]     Ultimately the issue was whether the court misdirected itself in the finding that the state discharged the onus in respect of count 1.

[22]     Section 208[6] is the enabling provision for a conviction on the basis of a single witness evidence. The law in this regard has been settled. A court must approach such evidence with caution; the evidence must be credible; satisfactory in material respects, and the evidence must be of such nature that it constitutes proof of the guilt of the accused beyond reasonable doubt.[7] 

[23]     A conspectus of the evidence shows that Warrant Officer Knowles gave a clear and cogent account of the incident. During his evidence in chief, he described that it was an AK47 rifle that was pointed in his face whilst the appellant swore at him. Thereafter the weapon was loaded and used to touch the witness’s shoulder. He remained steadfast in cross-examination that it was a long rifle, an AK47, and that the appellant who pointed it at him was a tall person. There was no confusion in his testimony as to who pointed at him with the fire-arm. The court was also informed that he is a police officer of 21 years, and a fire-arm is not a toy.  

[24]     In view of this, there was no misdirection by the court who found the evidence of Warrant Officer Knowles credible and satisfactory in all material respects and convicted the appellant accordingly.

[25]     As far as sentencing was concerned, the appellant’s heads of argument contained no submissions in that respect. When this aspect was probed at the hearing, counsel for the appellant stated that the appeal against the sentence was abandoned.   

[26]      In the premise, the appeal is dismissed.  

________________

CM CLAASEN

JUDGE

________________

NN SHIVUTE

JUDGE

APPEARANCES:

APPELLANT:                       Mr Ndaitwa

Sisa Namandje & Co Inc.

Windhoek

RESPONDENT:                   Ms Moyo

Office of the Prosecutor General

Windhoek