CASE NO. CA 89/2003

IN THE HIGH COURT OF NAMIBIA

In the matter between:

VIVIAN
DAN FORBES 1^ST APPELLANT

THOMAS
MUNDJEGO 2^ND APPELLANT

TOIVO
VILHO 3^RD
APPELLANT

versus

THE STATE RESPONDENT

CORAM: SILUNGWE, J. et
MTAMBANENGWE, A.J

Heard on: 2005.06.08

Delivered on: 2005.08.22

_______________________________________________________________

APPEAL JUDGMENT

MTAMBANENGWE, A.J.: The
appeal by the three appellants in this case is against their
conviction and sentence in the magistrate’s court, Walvis Bay, on a
charge of robbery with aggravating circumstances on 14 March 2002.

All of them pleaded not guilty but
were nevertheless convicted as charged; the first and second
appellants were each sentenced to a term of 10 years imprisonment of
which 3 years were suspended for 5 years while the third appellant
was sentenced to a 15 year imprisonment term 4 years of which were
suspended for 5 years; the suspension of part of the sentence in each
case was on appropriate conditions.

The appeals were argued before
Silungwe J and myself. We, however, felt it was convenient to
consider the appeal by the first two appellants separately from that
by third appellant as different considerations apply. I therefore,
in the first part of this judgment, deal with the first two
appellants.

Both appellants one and two were
employed by Pick ń Pay, at
Swakopmund, the victim of the robbery in question which took place on
6^th June 1999. Pick ‘n Pay was robbed of N$64
465.18 in cash and some cheques and telephone cards worth N$1 900.00
and N$9 298.75 respectively. Both appellants appeared together
before a magistrate for a plea in terms of Section 119 of

the Criminal Procedure Act 1977 (the
Act) on 8 June 1999. With the recovery of some of the cash stolen
and burnt cheques the actual loss suffered by the complainant was
N$12 925.51.

It is common cause that both
appellants pleaded guilty to the charge on 8^th June 1999
and were dealt with in terms of section 112(1)(b) of the Act, where
after their case was remanded pending the decision of the
Prosecutor-General.

The record of the proceedings in
terms of Section 119 of the Act shows that the nature of the
proceedings was explained to the appellants by the court, namely that
they were appearing not for trial but by way of preparatory
examination, “the charge will be put to them to which they must
plead”, thereafter the proceedings would be stopped and the matter
referred to the Prosecutor-General for his decision.

In answering questions put to them by
the court in terms of S112 (1)(b) each of them made a long and
detailed statement which was fully self incriminating, and also
incriminating each

other. These statements were
admitted in evidence against their makers in the trial that ensued
before Mr Retief the (Regional) Magistrate at Walvis Bay. In the
trial the two appellants were represented by Counsel, Mr Walters for
appellant 1 and Mr Olivier for appellant 2.

On appeal the main and decisive point
taken on behalf of the two appellants is reflected in the amended
notice of appeal filed by Mr Hinda who represented the appellants
before this Court. The amended Notice of appeal (applicable to both
of them though filed in the name of second appellant only) reads:

“The
learned Magistrate erred in admitting the statements made by the
Appellant in terms of Section 119 of the Criminal Procedure Act, No.
51 of 1977 as evidence against him, in that:

1.1 The Appellant was not informed of his right to legal
representation before he was required to plead in terms of Section
119,

2. The appellant was not afforded
   adequate time and facilities for the preparation of his defence ‘in
   order to arrive at a mature and unhurried decision on how to
   plea(d) and how to conduct his case.’

   
   

2. The learned Magistrate failed
   to explain to the appellant the possible consequences of a
   conviction and to determine whether he did not require a greater
   opportunity to consider his position before he was required to
   plead.

   
   

2. The learned Magistrate failed
   to give the accused ‘an adequate and readily intelligible
   exposition of the charge against him’ before he was required to
   plead.”
   

   
   

These failures are of course alleged
against the Magistrate before whom the appellants appeared to plead
in terms of section 119 of the Criminal Procedure Act, No. 51 of 1977
(the

Act). The trial was before a
different magistrate and there the accused were represented by
Counsel. The point on appeal boils down to this, that the Section
119 proceedings should not have been admitted by the trial magistrate
because of the irregularities alleged.

The record of the section 119
proceedings speaks for itself. It shows that the right to legal
representation was not explained to the accused by the Magistrate.
The whole record i.e. including what transpired before the s119
proceedings, the bail application by the appellants and the main
trial, reveals the following facts:

1. The offence was committed on 6
June 1999.

2. The two appellants appeared before the Magistrate for a plea in
terms of S119 of the Act on 8^th June 1999.

3. The appellants were arrested by a police officer John Mujimba on
the night of 7^th June 1999 following

information
received by the police from an informer. “The appellants were
arrested between 10:00 and 11:00.

4. The appellants were interrogated by several police officers
including Mujimba and Inspector Philander from 11H00 to some time
after 02H00. They appeared before the magistrate at 14H00 for the
aforesaid plea. In the bail application for appellant 2, Mujimba,
the investigating officer, said “it took from 23H00 to 03H00 to
interview appellant because a lot of police officers were involved”
“to get more information from him”, the appellant was not
informed of his right to legal representation nor was he warned in
terms of the Judges Rules.

5. In the interview of first appellant he first denied involvement in
the crime but after 2 hours of questioning he admitted.

6. In the bail application for appellant 2, the appellant alleged
that he was tortured and threatened with death in

the course
of his interrogation. The assault went on for ¼ of an hour
but he still denied the charge. He also said when he appeared before
the Magistrate he pleaded guilty because the police told him “to
tell the story they told me” and that he was guilty, they had
observed his house and listened to his conversations, if he did not
tell that story they would bring him back to the police station “but
this time it will be more severe than the previous.” It was his
first appearance with the law and he as scared and nervous and wanted
to avoid further assaults. He said he himself had concocted the
story he told the Magistrate. He said he was aware “that robbery
especially where a dangerous weapon was used is a very serious
offence and if convicted he would be punished severely.”

He did not
complain of the assault to any other officer and after court no
further assaults were perpetrated against him.

Appellant
1 said before he and appellant 2 were taken to court for a plea they
were locked in the waiting room

where
appellant 2 told him he was also assaulted. Inspector Philander came
in there and said he should tell the same story appellant 2 was going
to tell. Appellant 2 did not like the idea “but 2 actually forced
him to give a story so that we could just be out of the hands of the
police”, he gave appellant 2 “the picture of the story”.

9. The magistrate took him through the answers he gave to questions
put to him in terms of S 112 (1)(b) by Hoff, the appellant confirmed
his answers as reflected on the record of the proceedings and
repeated that he had told that fabricated story because of fear to be
subjected to further assault, but said now he no longer had that fear
because “I have now trust into the court today and I have a legal
representative here”. He could not identify the police who
assaulted him but neither Inspector Philander nor the investigating
officer assaulted him, he did not report the assault to the
investigating officer however; (this answer was given despite the
fact that he said Philander came into the room where he and appellant
2 were waiting to go to court and said the two must tell the same
story in

court), if
he had had a legal representative in the S119 proceedings he would
have pleaded not guilty. Appellant passed standard 8 and was manager
of a bakery at Pick ‘n Pay.

10. In the bail application for appellant 2, the appellant tells more
or less the same story of being tortured during his interrogation
except that in his case he says a police officer called Musimwa and
Inspector Philander took part in the assault meted out to him.

The
prosecutor in this case took a cue from the magistrate to
cross-examine the appellant on the content of his plea explanation
given in the Section 119 proceedings, as if a trial within a trial
was being conducted. When counsel for the appellant questioned the
relevancy of this line of cross examination, the Magistrate referred
to the fact that Mr Walters for appellant 1 had said that at the
trial the appellant’s statement would be challenged (possibly in a
trial within a trial)

11. In his judgment the magistrate
said:

“As
conceded by the lawyers for accused no 1 and 2, the moment when the
court ruled that the proceedings, the record of the proceedings as on
the 8^th June 1999, when they appeared before the
Magistrate in Swakopmund, must form part of this proceedings as far
as accused no. 1 and 2 are concerned, their fate was sealed already
on that moment. In that statements they made and under the
questioning from the Magistrate, they clearly indicated their
participation in the commission of this robbery on 6^th of
June at Pick ‘n Pay in Swakopmund.”

12. A suspect in the robbery was shot and killed by the police after
he, the suspect, had shot and wounded 3 police officers who were
pursuing him; one of the officers died as a result). N$22 050.00 in
cash was recovered from the dead suspect’s body plus two (2)
firearms and some telephone cards belonging to Pick ‘n Pay.

13. According to Inspector Philander, and Detective Constable
Mujimbwa, the investigating officer, the two appellants were arrested
following information from an informer. The police searched the
house of appellant 1 and found a map “which accused always used to
refer to as a map which was drawn by accused no. 1”. On
interrogation the two appellants admitted their involvement in the
commission of the crime but “they did not want to make statements
to the police” “both of them elected to come and tell their story
to the Court”.

14. Mujimbwa did not take a statement from the appellants, he
preferred that they make their admission or confession to the
presiding officer.

He denied
any knowledge that appellant 1 with whom he dealt and at whose arrest
he was present, was assaulted or threatened.

15. In the trial Inspector Philander gave evidence that he arrested
appellant no. 1. He said Appellant was informed

about the
case being investigated “as well as his rights of a lawyer to
represent him, his rights according to Judges Rules were explained
viz he had a right to remain silent “and that he was under no
obligation to tell us anything” concerning the alleged offence. He
went on:

“I told
him he has a right to a lawyer of his choice who can represent him
right from the beginning and throughout this trial” …. “He
(appellant) said it wasn’t necessary at that point in time for a
lawyer”

He said on
8^th June he interviewed appellant 1 again, the purpose
being “to inform him about his rights and also to obtain a warning
statement from him in writing form to be filed in the case docket”.
The warning statement was produced as exhibit “E”. It shows
appellant 1 answering: “I will give a detailed explanation
in Court,” to the question do you wish to make a statement
or do you only wish to answer questions after consultation with your
legal practitioner or to remain silent? The statement was

recorded
at 12:55 on 8 June 1999. Shortly thereafter, Inspector said, the
appellant was taken to Court. This line of cross-examination was not
pursued further.

16. Detective Constable John Mujimba testified to the same effect as
Inspector Philander in respect of appellant 2 i.e. explained to him
his right to remain silent, right to have an attorney, that if he
made a statement it could later be used in Court.

This was
through an interpreter Constable Njama. The appellant said he would
state in court his involvement in the case. The warning statement
was at 12:55 on 8^th June. The interrogation of appellants
1 and 2 lasted 2 hours; it was done separately. They were arrested
after 24:00. Appellant 2 told him of the incident.

In
cross-examination Sergeant Majimbwa was reminded of his testimony in
the bail application for appellant 1 where he said the appellant 1
was arrested between 22:00 and

23:00 on
June, 7. “On the 7^th we started with the interview. We
interview them from 23:00 until 03:00”.

“That
was a mistake if it was like that”. Counsel reminded him that he
had said so under oath and in his evidence in chief, why make such a
mistake under oath, he replied:

“That
was an estimation I put.”

He was also reminded that in the same
bail application he had said that the appellants appeared in court at
08:00 and now he was saying they appeared at 14:00 on 8^th
June, and his reply was that he was not sure he said so, but he was
sure they appeared at 14:00 because he took warning statement after
12:00. The officer was next asked why it took 4 hours to interrogate
the appellant and he said because they had to get information from
them and also that “a lot of officers were involved”
interrogating them one after another.

The very pertinent question was asked
of him:

“Before
you then started to interrogate accused no. 1 did you (say) to him I
am a police officer, you are under no duty to answer anything to me,
you can remain silent, but if you say something that may count
against you later on. Did you warn him before you start
interrogating the man, accused no. 1”.

His reply was:

“I don’t
think of such incident. I don’t think of warning him of that.”

Asked if he had warned the appellant
that he was entitled to consult with a lawyer before he answered, the
officer answered:

“I don’t
warn him because when I came there, there was already some officers,
so at my side, I didn’t warn him. I didn’t inform him at that
stage.”

Further the officer said it was
correct, that the purpose of interrogating the appellant was to
“extract information from him

of his involvement in the matter”.
He also agreed that after appellant two’s warning statement was
taken he was taken to Court, just after 14:06 where they pleaded to
the charge.

It will be noticed that his evidence
in chief is diametrically opposite to the above. But it is also
noted that Mr Walters did not ask the witness to explain what he
meant by the statement “I didn’t inform him at that stage”.

It will be noted that when the trial
magistrate ruled the Section 119 proceedings admissible, no trial
within a trial had been held as was done for example in S vs
Damons and Others 1997(2) SACR 218(W) at 219 E. Counsel for the
appellants apparently considered that such a trial would serve no
purpose as it would involve a repetition of facts traversed in the
bail application as well as in the trial itself involving the same
witnesses, and as regards the fact that the magistrate before whom
the appellants pleaded, did not inform them of their right to legal
representation, the record spoke for itself, the fact was not in
dispute. Both counsel thus confined themselves to addressing the
Court on the applicable legal principles.

The challenge to the admissibility of
those proceedings was twofold. The magistrate who conducted those
proceeding, had not informed the appellants of their constitutional
right to be represented by a legal practitioner of their choice
before he asked them to plead to the charge and questioned them in
terms of section 112(1)(b) of the Act. Secondly the appellants had
not been accorded their constitutional right to prepare and present
their defence. This challenge as well as the first challenge,
involved Article 12(1)(e) of the Constitution which provides that –

“All
persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trials and shall be entitled to be
defended by a legal practitioner of their choice.”

The appellants were arrested after
23:00 on 7^th June 1999, interrogated until past 02:00 the
following morning and again after 11:00, and by 14:00 they were
before the magistrate for the plea in terms of S119.

Mr Walters for appellant 1 referred
to many authorities both in South Africa and in Namibia which
emphasise the importance of both points and Mr Olivier for appellant
2 associated himself with all the submissions made by Mr Walters. It
is not necessary to repeat the various quotations Mr Walters made
from the various cases. In S vs Kau and Others 1995 NR 1(SC)
it was stated at 9 that Article 12(1)(e) “requires that the
judicial officer hearing the trial must inform an accused of his
right to representation unless it is apparent to him for good reason
that the accused - is aware of his right.” Dumbutshena AJA who
delivered the judgment in that case with the concurrence of Mahomed
CJ and Chomba AJA referred in this connection to S vs Bruwer
1993 NR 219 (HC) at 223 C-D and S v Mabaso 1990(3) SA 185(A)
at 204 C-J. In the former case Strydom JP, as he then was, stated at
223 D said:

“I am
also mindful of the fact that reference in our Constitution to a fair
trial forms part of the Bill of Rights and must therefore be given a
wide and liberal interpretation. However, I fail to see how it can
be said,

even
against this background, that a trial will be less fair if a person
who knows that it is his right to be legally represented is not
informed of that fact. Whether the fact that an accused was not
informed of his right to be legally represented, resulted in a
failure of justice is, as in most other instances where a failure of
justice is alleged, a question of fact.”

The Learned Judge President went on
to say (at 223F):

“On this
point Mr Smuts was constrained to concede that in the case of an
accused being an attorney, failure to inform him would not vitiate
the proceedings because he is supposed to know what his rights are.

Once this
concession is made there can in principle be no difference between an
accused being an attorney or any other accused who knows that he is
entitled to be legally represented.”

The question whether evidence
unconstitutionally or unlawfully obtained should or should not be
admitted has also received judicial attention in a number of cases
both in this jurisdiction and in South Africa and elsewhere. In S
v Shikunga and Another 1997 NR 156 (SC) Mahomed CJ considered the
issue in light of the background of an admission of a confession
pursuant to section 217(1)(b)(ii) of the Criminal Procedure Act 51 of
1977. In that case there was evidence aliunde the confession, which
“showed clearly that the conviction of the second accused would
inevitably have followed even if the constitutional irregularity
relied upon had not been committed” (contrast the present case
where the S119 proceedings form the main basis of conviction of the
two appellants). However, in his survey of the decisions on the
approach to the question in various jurisdictions, the Chief Justice
made certain important remarks which must be borne in mind in
considering the question in this case – whether the irregularities
alleged vitiate the proceedings. At pp 164 I to 165 C the Learned
Chief Justice said:

“There
appears to be a tension between two important considerations of
public interest and policy in the resolution of this problem. The
first consideration is that accused persons who are manifestly and
demonstrably guilty should not be allowed to escape punishment simply
because some constitutional irregularity was committed in the course
of the proceedings. ………………

There is
however a competing consideration of public interest involved. It is
this: the public interest in the legal system is not confined to the
punishment of guilty persons, it extends to the importance of
insisting that the procedures adopted in securing such punishment are
fair and constitutional and that the public interest is prejudiced
when they are not.”

After examining the approach adopted
in various jurisdictions, the Chief Justice formulated the proper
approach as follows (at 170 F – 171 D):

“There
can be no doubt from these authorities that a non-constitutional
irregularity committed during a trial does not per se constitute
sufficient justification to set aside a conviction on appeal. The
nature of the irregularity and its effect on the result of the trial
has to be examined. Should the approach be different where the error
arises from a constitutional breach? That question assumes that the
breach of every constitutional right would have the same consequence.
In my view that might be a mistaken assumption and much might depend
on the nature of the right in question. But even if it is assumed
that the breach of every constitutional right has the same effect on
a conviction which is attacked on appeal, it does not follow that in
all cases that consequence should be to set aside the conviction. I
am not persuaded that there is justification for setting aside on
appeal all convictions following upon a constitutional irregularity
committed by a trial court.

It would
appear to me that the test proposed by our common law is adequate in
relation to both constitutional and non-constitutional errors. Where
the irregularity is so fundamental that it can be said that in effect
there was no trial at all, the conviction should be set aside. Where
one is dealing with an irregularity of a less severe nature then,
depending on the impact of the irregularity on the verdict, the
conviction should either stand or be substituted with an acquittal on
the merits. Essentially the question that one is asking in respect
of constitutional and non-constitutional irregularities is whether
the verdict has been tainted by such irregularity where this question
is answered in the negative the verdict should stand. What one is
doing is attempting to balance two equally compelling claims – the
claim that society has that a guilty person should be convicted, and
the claim that the integrity of the judicial process should be
upheld. Where the irregularity is of a fundamental nature and where
the regularity, though less fundamental, taints the verdict the
latter interest prevails. Where however the irregularity

is such
that it is not of a fundamental nature and it does not taint the
verdict the former interest prevails.

This does
not detract from the caution which a court of appeal would ordinarily
adopt in accepting the submission that a clearly established
constitutional irregularity did not prejudice the accused in any way
or taint the conviction which followed thereupon.”

In Vusimusi Ernest Ngeobo v The
State 1998(10) BCLR 1248 (N) Combrinck J discussed the approach
adopted in South Africa to the question whether to admit or exclude
evidence obtained in violation of an accused’s constitutional
rights at 1252 C – 1255 A. In the course of that discussion the
Learned Judge said at 1252 F – 1253 A.

“The
approach to be adopted to this type of evidence was laid down in Key
v Attorney General Cape of Good Hope Provincial Division and Another
(supra) and endorsed by the Supreme Court of Appeal in Khan v
S (1977) 4 All SA

435 (A).
The oft-quoted passage (at 195G – 196C) in the Key judgment
bears repeating:

“In any
democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing criminals to book and on
the other, the equally great public interest in ensuring that justice
is manifestly done to all, even those suspected of conduct which
would put them beyond the pale. To be sure, a prominent feature of
that tension is a universal and unceasing endeavour by international
human rights bodies, enlightened legislatures and courts to prevent
or curtail excessive zeal by Sate agencies in the prevention,
investigation or prosecution of crime. But none of that means
sympathy for crime, and its perpetrators. Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution demands is that the accused be given a fair
trial. Ultimately, as was held in Ferreira v Levin fairness
is an issue which has to be decided upon the facts of each case, and
the trial Judge is

the person
best placed to take that decision. At times, fairness might require
the evidence unconstitutionally obtained be excluded. But there will
also be times when fairness will require that evidence, albeit
obtained unconstitutionally, nevertheless be admitted.

If the
evidence to which the applicant objects is tendered in criminal
proceedings against him, he will be entitled at that stage to raise
objections to its admissibility. It will then be for the trial Judge
to decide whether the circumstances are such that fairness requires
the evidence to be excluded.”

And at 1254 E – 1255 A the Learned
Judge had this to say:

“It is
essential that society should have confidence in the judicial system.
Such confidence is eroded where Courts on the first intimation that
one of an accused’s constitutional rights has been infringed
excludes evidence which is otherwise admissible. Such evidence is
very

often
conclusive of the guilt of the accused. It is either admissions or a
confession made voluntarily and without undue influence wherein the
accused implicates himself in the commission of the offence or it is
the discovery either by way of a search or a pointing-out of objects
such as the murder weapon or property of the victim which
conclusively link the accused to the crime. At the best of times but
particularly in the current state of endemic violent crime in all
parts of our country it is unacceptable to the public that such
evidence be excluded. Indeed the reaction is one of shock, fury and
outrage when a criminal is freed because of the exclusion of such
evidence. One need only postulate the facts of the present matter to
illustrate the point. A defenceless woman and three men are gunned
down in cold blood in the sanctity of their home in the middle of the
day. The slain woman’s personal belongings taken during the course
of the robbery are dug up by the appellant in a mealie field behind
his parents’ home the next night. Imagine the reaction of the man
or woman in the street if the appellant

were
acquitted because Captain Kweyama failed to again warn the appellant
of his right to silence and the consequences of his act of
pointing-out the stolen property.

It has
become noticeable in appeals and reviews from the lower courts, which
have come before us that at the first intimation that an accused’s
constitutional rights have been infringed the evidence tainted by
such infringement is without further ado excluded. It is necessary
therefore to emphasise the discretion which rests in the presiding
officer to decide whether the evidence should be excluded. That
discretion still remains as is apparent from the wording of section
35(5) of the final Constitution.

Whether to
admit or exclude evidence so obtained must be decided in a
trial-within-a-trial where it can be factually established whether
there was a casual link between the denial of the right and the
evidence obtained, whether despite the denial of the right the
accused was aware of or

must have
been aware because of his understanding of his rights and whether he
knew or must have known what the consequences of his statements or
conduct would be.

In the
present case the learned judge a quo’s approach was four
square within the principles laid down in Key’s and Khan’s
cases. The interests of the accused and the proper administration of
justice given all the facts and circumstances were correctly weighed
against each other and the result was manifestly correct.”

The magistrate in the present case
gave his reasons for admitting the statements made by the two
appellants in the section 119 proceedings, he said:

“The
court took into consideration the seriousness of the offence and the
degree of violation as pointed out in S v Khan 1997(2) SACR
611(SCA)

“While
the nature of the confessed offence might in some instances carry no
weight at all, where the confessed

offence
was by its nature a serious one this could, from the point of view of
the interest of the public, be a relevant factor to be weighed with
all others.”

It appears
as if the main question remains whether the admission of the evidence
would bring the administration of justice in disrepute in the eyes of
a reasonable man, dispassionate and fully apprised of the
circumstances of the case.

Public
policy plays a vital role in considering the admission of this
evidence. In Klein v AG Witwatersrand 1995 (2) SACR 210 W the
following was said at 224 a-b: “a rigid principle would operate to
the disadvantage law enforcement and the consequent prejudice of the
society which the law and the Constitution is intended to serve.
Before any remedy can be enforced the nature and the extent of the
violation must be properly considered. It is the duty of the courts
to do so in fulfilment of their obligation to give effect to the
principle of public policy.”

In S v
Motloutsi 1996 (2) BCLR 220 (C) it was observed: “that in every
case (a) determination has to be made by the trial judge as to
whether the public interest is best served by the admission or the
exclusion of evidence of facts ascertained as a result of and by
means of, illegal actions.”

See also
the cases of S v Shaba and Another 1998 (1) SACR 16 TPD and
Director of Public Prosecution, Natal v Magidela and Another 2000
(1) SACR 458.

The
following facts were considered in deciding whether the section 119
proceedings must be allowed as part of the evidence.

They were
aware of their rights to be legally represented. They were so
informed by the police at their arrest and during the taking of the
warning statements. They are educated and industrious people in the
society.

Accused 1
was fully aware of the factual issues as he was present at the scene
and could claim to be a victim.

They must
have been fully aware of the circumstances surrounding the
investigation.

They
informed the police that they would be prepared to make a statement
to the court.

The charge
was a simple one where one can either admit or deny participation.

They made
certain admissions during the questioning by a magistrate in open
court according to the argument by their representatives. They could
hardly be under any false illusion as to what the effect could be.

The two appellants in this case were
both working at Pick ‘n Pay. Appellant 1 was the Chief baker and
appellant 2 also worked in the bakery. Appellant 1 was present at,
and was

involved in, the robbery albeit as an
ostensible victim of the armed robbery. There is evidence that
appellant 2 went to Pick ‘n Pay in a taxi, admittedly remarking to
the taxi driver that he wanted “to see whether there was something
wrong at his workplace”. Though he denied the evidence of the
police informer with whom he went to Pick ‘n Pay (whose
information led to their arrests) that he claimed to have planned the
robbery, the robbery was public knowledge before the two were
arrested. Both were represented at their bail applications.

In his bail application appellant 2
specifically said he knew “that robbery especially where a
dangerous weapon was used is a very serious offence” that if
convicted he would be punished severely and that the only punishment
in such a case would be a custodial, a jail sentence.

The confessions or admissions made by
each appellant in their long self and mutually incriminating
statements in answer to questions in terms of S 112(1)(b) of the Act
in the S 119 proceedings do not stand alone; they are in fact
corroborated by

the evidence of Victor, the informer
and the cousin of appellant 2, who said that appellant 2 said that
they planned the story together with appellant 1. In light of this
to suggest as Mr Olivier suggested, that the appellant did not
appreciate the seriousness of the charge against them when they
pleaded guilty before the magistrate begs the question. On the
contrary it shows that they knew their rights.

It is so that Mujimbwa contradicted
his evidence in chief where he said he informed appellant 2 of his
right to remain silent, to legal representation and in terms of the
Judges Rules. The warning statements taken by the police from each
and the oral evidence shows that they did not make any statements
before the police; this is evidence too of the fact that they were
informed of the right to remain silent and of the right to be
represented by a lawyer. Their questioning by the trial magistrate
and the prosecutor on the content of their S 119 proceedings
statements shows that both lied to come up with the story that the
story they told emanated from the police. It is also evident that
their story about being assaulted by the police

is not credible, first, because they
did not complain to anyone of the said assaults; second, because one
would have expected them to make statements to the police to avoid
being assaulted further rather than dare to resist that compulsion.
Thirdly it is inherently highly improbable that if the story was
manufactured by the police both would remember all the details
contained in those statements.

The magistrate’s exercise of his
discretion in this matter cannot be faulted. The two appellants were
rightly convicted and their appeal should be dismissed.

As regards appellant no 3, the appeal
grounds raise three issues, namely:

1. non disclosure of police docket
before trial;

2. whether there was sufficient evidence by the State to rebut his
alibi; and

3. failure to call or subpoena a
certain witness.

Counsel for the appellant in this
appeal submits that the failure by the State to disclose the contents
of the police docket amounted to a denial of accused’s right to be
accorded adequate time and facilities to prepare and present his
defence. Counsel relies on S v Nassar 1995 (2) SA 82 where at
107 D – E Miller AJ said the prosecution must provide an accused
with all relevant documentation without waiting for a request to be
made in time to enable the accused sufficient time to prepare his
defence.

This ground is advanced in
appellant’s notice of appeal in which he reveals that a lawyer
appointed by L.A.C to represent him at the beginning of the case
withdrew because she wanted him to plead guilty “because of this
identification parade”, and says.

“37. I
have not seen the docket and affidavits of the witnesses that was
called against me. Could not prepare myself for cross examining them
without the affidavits of the witnesses.”

I will deal with this ground first.
I shall assume in the absence of any indication on the record to that
effect, that disclosure of the police docket was not made to the
accused. After accused was arrested he was put on a parade where
various of the potential witnesses were asked to identify him. These
were the very witnesses that gave evidence against him. The
identification parade was done on 11 June 1999. On 14 June 1999
appellant appeared in court to be joined with appellant 1 and 2. On
that day appellant was informed of his right to legal representation
and he declined to plead that day and as a result the matter was
remanded to 16 July 1999. On 15 July the matter was further remanded
to 28 July apparently because Mr Walters appeared to make a bail
application for appellant 1. On 2 August 1999 appellant and his co
accused were again in court but the matter was again remanded, this
time to September 9 “for plea (final),” when appellant had
indicated to court that “My Lawyer is in NWB I don’t know his
name”, and finally to 2 September when appellant pleaded not guilty
in terms of S 119 of the Act. That day he stated before he pleaded:

“I could
not raise enough funds for a lawyer to day. I will proceed today
without a lawyer for plea. I will get legal representation for the
trial.”

After several further appearances in
court on 30 March 2000 the appellants were advised of the
Prosecutor-General’s decision, that they were to be tried in the
Regional Court on 10 April 2000. They were all warned to make
arrangements if they desired legal representation of their own choice
or to apply for legal aid “so that their legal representatives are
ready to proceed with plea in Regional Court on 14/2000.”

On 10 April 2000 appellant informed
the court that he would conduct his own defence “need no legal
representation.” Mr Olivier appearing for appellant 2 informed the
court.

“that
the contents of docket not yet disclosed by the State although same
already requested during August 1999”

The matter was further remanded to
26/5/2000, to 30/8/2000 to 10/8/2001 and then to 13/9/2001 and
finally to

12/10/2001. That day the trial did
not kick off. Mr Walters informed the court that he had spoken to a
lawyer who was supposed to represent appellant 3 but who later
informed him she was no longer doing so, he offered to represent the
appellant if there was no conflict between him and appellant 1.
Apparently there was such conflict because appellant 3 was given a
further opportunity to appoint another lawyer and the matter was
postponed to December 6, 2002 after the names of all potential State
witnesses who were at Court were warned. It is significant that the
question of the contents of the police docket was never raised again.
Since it was requested according to Mr Olivier’s statement on 10
April 2000 one would be justified to assume it was furnished, and if
it was furnished to the legal practitioners appearing for appellants
1 and 2, there would be no reason why it would not have been
disclosed to appellant 3 as well and why he would not complain to the
court if it was not since the complaint by Mr Olivier that the
requested docket contents had not yet been furnished was made in his
presence on 10 April 2000.

The position them is that from 11
June 1999 appellant 3 knew 3 potential witnesses attended the
identification parade, and identified him. His defence was an alibi.
The trial commenced on December 6, 2002. This means that none of
the appellants could reasonably complain that they were not afforded
adequate time for the preparation and presentation of their defence.
I fail to see how, in the circumstances of this case the failure to
furnish the appellant with the docket and affidavits of the witnesses
called against him would have affected the preparation and
representation of his defence, the fairness of his trial, or how it
could be said to have prejudiced him in the presentation of his
defence what the three witnesses who identified him on the
identification parade was already known to him.

This leads me to the consideration of
whether sufficient evidence was adduced by the State to rebut his
alibi. I take this issue together with the complaint that the court
failed to call or subpoena a certain witness.

It must first be pointed out that
Article 12(d) of the Constitution provides that all persons charged
with an offence must be given an opportunity of calling witnesses in
support of their case and of cross-examining those witnesses called
against them. The trial magistrate carefully explained to the
appellant the way the trial would be conducted and the procedure
relating to how witnesses should be cross examined; his right to call
his own witnesses even if he himself chose not to testify was also
explained. At the end of the State case the magistrate said:

“Accused
no. 3, at the beginning of trial I explained to you the procedures
that you may also testify at the closure of the State case, and that
you may also call witnesses to come and testify. And if I remember
correctly, on the previous occasion I again informed you that if you
want to call witnesses, you must arrange that they be here present
today, what is your situation? Do you prefer to testify or what do
you want to do, or do you want to call witnesses what do you prefer
to do?”

In his reply the appellant said he
will testify and that he wanted to call a witness, his “alibi
witness who knows my whereabouts on that specific occasion” … “I
do have my witness here” and that he had seen the witness outside
who was “the only one” he wanted to call.

In cross examination appellant said
he had two witnesses to call, - a sister called Sara, to tell the
court about a photograph of his which the police got from her, and an
uncle called Steven Kalele with whom he lived in Kuisebmond to say he
was with him all day on Sunday the 6^th June 1999. As to
the alibi appellant’s answers as to where he was the previous night
and what time he woke up on Sunday whether early or late, were very
vague, saying he spent (part) of the day cooking lunch, he could not
remember what he was cooking.

He said although the police told him
he was being arrested for the robbery that took place on Sunday, he
did not tell them he had a witness who could confirm he never left
the flat where he lived in Kuisebmond.

This was apparently the first time
appellant mentioned that he was with Steven that Sunday.

The vagueness with which appellant
answered questions continued to the end of his evidence as
exemplified by the following questions put to him by the court and
his answers:

“COURT: Sir,
person Nantanga, who also testified, he told us that he saw you in
the presence of accused no. 2 in the flat where he stay, before the
robbery, days before the robbery, you stay there in the company of
accused no. 2, and he himself Nantanga, stayed in that flat, he stay
there together with the uncle of accused no. 2, and he saw you there,
sleeping in that flat and on the day of the robbery, you left early
in the morning, before he woke up, you were not there anymore, you
and this other person Geppy or something like that, what do you say
about that? --- Your Worship I do not know the allegation and I got
nothing to comment on that.

And he also saw you with the jacket there, the jacket that was found
on the trail of the robbers as they fled and

he
recognised that jacket and it was very positive that the person in
that flat in Swakopmund, together with accused no. 2, were you? --- I
was also hearing that witness as when he was testifying the same.
And the way I look to this jacket, there are people who always
intending to put some in trouble, like as I also put on the witness.
I do not know the jacket, I do not know the witness, so this jacket
also, I believe that he also put it on me, on (inaudible) manner, for
his own professional reason. I do not know Your Worship.”

The appellant’s sister Sara was
contacted by the police but she said she was not willing to come to
court. Appellant was not clear what he wanted her to testify about,
and when repeatedly asked by the prosecutor his answers were very
vague. In the circumstances the court could not be expected to act
in terms of section 179 of the Criminal Procedure Act 51 of 1977.
Subsections (2),(3) and (4) of the section provide:

“(2) Where an accused desires to have any witness subpoenaed, a sum
of money sufficient to cover the

costs of
serving the subpoena shall be deposited with the prescribed officer
of the court.

(3) (a) Where an accused desires to have any witness subpoenaed and
he satisfies the prescribed officer of court -

1. that he is unable to pay the
   necessary costs and fees; and

   
   

2. that such witness is necessary
   and material for his defence, such officer shall subpoena such
   witness.

   
   

(b) In any case where the prescribed officer of the court is not so
satisfied, he shall, upon the request of the accused, refer the
relevant application to the judge or judicial officer presiding over
the court, who may grant or refuse the application or defer his
decision until he has heard other evidence in the case.

(4) For the purposes of this section “prescribed officer of the
court” means the registrar, assistant registrar, clerk of the court
or any officer prescribed by the rules of court.”

In my opinion it would have been an
exercise in futility even to explain the right to the accused as
Counsel for the appellant submitted in his written heads of argument.
I say so because the said witness was unwilling to testify and the
evidence to be extracted from her would apparently be unrelated to
his alibi defence.

To come to the question whether the
State adduced sufficient evidence to rebut appellants alibi, first
the nature of the alibi must be determined.

This emerges from appellant’s
evidence. In his evidence in chief the appellant stated:

“Your
Worship I was arrested on the 10^th of June at my home
place at Kuisebmond - ….. The officer approached

me in my
place and I was also with my uncle Steven at my home place that same
time.”

In cross-examination he was asked a
questions about his uncle which he answered, as follows:

“When
did he arrive there at your flat? --- My flat, my uncle?

No your
witness what is your witness’ name?

--- Steven
Kalele.

When did Steven arrive at the flat?

---
Sunday.

Yes what
time? --- No we wake up together.

Do you live
together? --- Yes.”

Steven Kalele’s evidence in chief
was:

“I can
recall the 4^th during 1999 this gentleman came to my
house on that day.

What gentleman are you referring to?

INTERPRETER: Pointing
to accused no. 3 Your Worship.

COURT: Yes.
--- Your Worship there we stayed together because he usually used to
come here to Walvis Bay from Owamboland to buy his things and go back
again. That (whole) week as from 4^th over the whole
weekend until on the 10^th when he was arrested, we stayed
together there at my house.”

The identity of appellant was first
addressed by Eino Nantanga a State witness who testified that
appellant no. 2 as from February 1999 lived in La Paloma Flat No. 2
which belonged to his uncle. Appellant no 2 stayed with two friends
one of whom was appellant no. 3 his name was Kapote and the other was
Geppy. In cross-examining Nantanga appellant no. 3 denied having
been or having stayed at the flat and, more significantly, that his
name was Kapote but Nantanga insisted that he had seen the appellant
at the flat from 28^th May and he last saw him there on the
Saturday preceding and had not seen him on the Sunday i.e. June 6.
He further said that he had heard appellant called Kapote by Thomas,
appellant 2.

During some adjournment while the
witness was still giving evidence apparently appellant 2 approached
him. The prosecutor observed this and questioned the witness about
it and the witness said appellant 2 had then said.

“He told
me that if I am asked in court if I know anyone I must just say no.”

In cross-examination on the issue
that he was identified at the identification parade by four people
the prosecutor asked him a direct question:

“Who is Kapote?”

and he answered:

“Your
Worship, to tell you the truth, my name is Kapote.”

The three people who identified the
appellant were Martin Lutaka, Lottie Isaks, Josephat Ludwig. Warrant
Officer Carel Johannes Passano was in charge of the parade.
Passeno’s

evidence was that each witness picked
up the person by placing their hand on his shoulder, Ludwig did so
without hesitation Martin Lutaka was not very sure but after some
hesitation he identified the appellant and Isaks immediately stepped
forward and put her hand on appellant who had changed his position on
the parade from number 3 to number 7. However she looked nervous.
After each witness appellant was asked if he wanted to change his
clothes or place; he in fact removed his jacket after he was
identified by Lutaka.

In his evidence Lutaka admitted it
was difficult to identify appellant at the parade. He said:

“Actually,
as I am saying that no it was difficult, but my mind just make me
like a person whom I saw but I was not sure about. I just identify
the person I saw but not hundred percent sure.”

He was also hesitant to identify the
appellant in the dock. Earlier in his evidence in Chief, Lutaka was
asked if he had had

the opportunity to look at the
robbers during the robbery. He frankly said he was afraid. He,
however, said.

“I can
remember, I can say the short one, he was like having a black thing
in his teeth, like his teeth was rotten or what --- The upper ones.”

When accused gave evidence, in
cross-examination the prosecutor asked him to show his teeth. She
noted:

“I see
you have got a teeth, you have got a black mark there in between, is
that correct?”

and appellant answered:

“That is correct.”

Ludwig said:

“When I
come into the room I recognised accused no. 3 on his ears and he
sweat a lot … I recognised him as the man who was there during the
robbery”

These witnesses were employees of
Pick ‘n Pay who were all present together with appellant no. 2 when
the robbery took place. The person who had ample opportunity to
observe the robbers was Lottie Isaks. Her evidence was the
following.

She was the Chief Clerk at Pick ‘n
Pay. She worked with money, petty cash and with cashiers cashing up
on a daily basis. Appellant no 1 was also employed at Pick ‘n Pay
as a baker. On the morning of the robbery she opened the shop and as
they were busy inside the shop the bell at the rear entrance of the
shop rang, the time was about 06:15 or 5:20. The back entrance is
used for deliveries and as the staff entrance. She went to the door
and looked through the keyhole when she saw nobody she then opened
the door to see who was ringing the bell. As she unlocked the door
two armed men charged into the shop pointing their guns at her. She
screamed and the two

men forced her mouth shut and ordered
her not to scream. The smaller of the two men held her by the
shoulder and asked where the office was. This smaller person had
round eyes, a narrow face and a long nose. She didn’t make these
observations there and then but at a later stage when she had a
proper look at him. The taller man had a cream cap on and she could
not see his eyes, he also had a big jacket on. At the swing door the
smaller man asked if there was a telephone and she said there was.
They went to the switchboard where the man pulled out the telephone
wires and in another office the man chewed the telephone wires off.
Meanwhile the taller man had disappeared. They then went upstairs to
the office and when they got to the top of the stairs they found the
other man there with three of her co-workers. The smaller man asked
her where the keys to the strong room were? She fetched the keys
from a desk drawer, she went and opened the strong room whereupon the
taller man stormed into the strong room. He took keys on a green
holder from a board in the strong room. She said the significance of
the green holder is that the small safe in the vault (strong room)
has a key on a green key holder. She did

not know who told them about the
green key holder. He tried to open the safe and when the key failed
to unlock the safe the smaller man then pushed them all into the
strong room threatening to shoot her unless she told him where the
right key was. She told him to wait while she would go to fetch the
spare key and opened the safe. He had a black rucksack which he took
off and put the contents of the safe into it. In the safe were
coins, pick up bags, telephone cards and notes. The rucksack could
not take all the contents of the safe. The man then asked her to
give him one of the big bags lying in the safe still all the contents
could not go in, so they took a tin trunk and put the silver in it.
The taller man did the stuffing of the contents of the safe while the
smaller one stood in the doorway holding a revolver. She said the
third appellant was the person who robbed them.

On the identification parade her
evidence was that she was taken to a room with a big glass window.
Before she entered, she said, “I saw the man who was guilty, it was
the small one the third accused.” She walked up and down the line
of people

on the parade and identified the
smaller man. She identified him by his face and his eyes. On the
day of the robbery the man had a lot of hair on his head “but it
was shaved off the next day but I still recognised him.” She was
shown photographs of some items recovered during the pursuit of the
dead suspect and recognised the rucksack they had, the navy jacket
and the cap the taller man had on, on the day of the robbery. The
witness also said the robbers locked them inside the strong room
after they finished taking the contents of the safe and went outside.

In cross-examination Ms Isak told
appellant no 3 that his physical appearance were round eyes, straight
nose, narrow face and narrow chin. She was hundred percent sure when
she identified him. In short she was not shaken in cross-examination
by the appellant or the two legal practitioners for appellant 1 and
no. 2.

The trial magistrate was criticised,
rightly so in my view, for not dealing with this issue in his
judgment, and for saying some

irrelevant things in connection
therewith. The evidence however speaks for itself and on appeal this
court is entitled in the circumstances to make its own assessment of
the evidence. (See R v Dhlumayo and Another 1948 (2) SA p 77
(A) at 705 – 6). See also the oft quote remarks of Holmes, JA in S
v Mthetwa, 1972 (3) SA 766 (A) at p 768 A-C).

I have recounted Ms Isaks’ evidence
at some length. This evidence shows that she had ample time to
observe appellants during the robbery as he was in her sight
throughout right from the stage she opened the back entrance into the
shop up until the two robbers left. While the taller of the two was
stuffing the contents of the safe in the strong room the smaller
person was standing guard at the door or in the doorway. That gave
her a good opportunity to observe him. Her evidence as to the events
on the day in question and as to her identification of the appellant
on the parade was consistent and remained unshaken in
cross-examination.

The appellant was also identified by
Eino Nantanga who was also insistent that the appellant was one of
the two persons who

stayed with Thomas at La Paloma Flats
and who disappeared from there and were not seen there again on
Sunday the 6^th of June 1999 when the robbery took place.
He had heard him called by the name Kapote. The appellant initially
denied that name, but later admitted his name was Kapote thus
corroborating Nantanga’s evidence and thereby calling the bluff on
the appellant’s alibi. The alibi witness of the appellant who said
appellant was staying with him at his house from 4^th June
until he was arrested on 10^th June belied appellant’s
claim that the house at Kuisebmond in Walvis Bay was appellant’s
home. The appellant was identified by Lukata as having something
black on his upper front teeth which was confirmed in Court when he
was asked to show his teeth. It would be a very remarkable
coincidence that one of the men who robbed Pick ‘n Pay had the same
features with the appellant. I find that the alibi of appellant was
rebutted by the State beyond reasonable doubt. His appeal against
conviction likewise must fail.

Both in their written and oral
submissions Counsel did not address the Court on sentence. There is
no merit in the appeal by all three against their sentences in any
event.

In the result the appeal of all three
appellants, both against conviction and sentence is dismissed.

MTAMBANENGWE, A.J.

I agree

SILUNGWE, J.

ON BEHALF OF APPELLANTS
Mr G S Hinda

Amicus Curiae

ON BEHALF OF RESPONDENT Mr J
Truter

Instructed by: Office of the
Prosecutor General