TUHALENI
KAKOLOLO v THE STATE

CASE
NO. CA 5/2003

2005/05/26

Maritz,
J. et Mtabanengwe, A.J.

CRIMINAL
PROCEDURE

CASE NO. CA 5/2003

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

TUHALENI
KAKALOLO APPELLANT

versus

THE
STATE RESPONDENT

(HIGH
COURT APPEAL JUDGMENT)

CORAM:
MARITZ, J. et SILUNGWE, J.

Heard
on: 2003-03-27

Delivered
on: 2005-05-26

_____________________________________________________________________

JUDGMENT

MARITZ,
J.: The appellant was one of four accused charged in the
Regional Court with the crimes of robbery with aggravating
circumstances and attempted murder. The other three accused were
discharged at the close of the State’s case but the appellant was
convicted on both counts and sentenced to twenty years imprisonment.
This appeal lies against the convictions and sentence.

Although
not admitted by the appellant at the commencement of the proceedings,
it was not disputed during the trial that an armed robbery occurred
on 24 April 1999 at Tré Supermarket in Windhoek. Mr Tré,
the proprietor of the supermarket situated on Independence Avenue,
was about to depart to bank the day’s takings of some N$160
000-00 when the robbery occurred. He asked his cousin’s 14-year
old son, Roberto Isaaks, to open the gate giving access to the
premises as he was walking towards his car which was parked in a
garage. After Mr Isaaks had opened the gate, he was suddenly pushed
into a corner by one of the robbers as two more of the robbers gained
access to the premises through the open gate. Mr Tré only
became aware of their presence as he was opening the front driver’s
door of his Nissan sedan. The robber, whom he later identified as
the appellant, was at that stage positioned on the opposite side of
the vehicle, leaning over the roof whilst pointing a handgun at Mr
Tré. Whilst he threatened to shoot Mr Tré the other
robber grabbed hold of the bag containing the money, struck Mr Tré
on the head with his handgun and demanded the bag to be handed over
to him. Once in possession of the bag he moved backwards whilst
pointing the gun at Mr Tré and repeatedly threatening that he
would shoot him. When he was about four metres away from Mr Tré
he fired a shot. Mr Tré, anticipating that the shot was about
to be fired, bent forward the very moment a bullet struck him in the
left shoulder.

Mr
Isaaks, who had observed these events, corroborated many of Mr Tré’s
observations during the trial. He also testified that the robber who
had been opposite Mr Tré had also fired a shot when Mr Tré
had refused to release the money bag. He also grabbed hold of the bag
and, once he had it in his possession, fired a further shot at Mr
Tré. The robbers ran to a white Toyota Sprinter parked just
outside the premises and drove off at speed. Mr Tré was
subsequently taken to hospital by ambulance and Mr Isaaks remained
behind to give a statement to the police and to point out the
movement of the robbers as he had observed them.

The
only real issue in dispute during the trial was whether or not the
appellant had been involved in the robbery. He denied such
involvement and proffered an alibi: maintaining throughout during his
questioning and the trial that he had been in Owambo (several hundred
kilometres to the north of Windhoek) at the time of the robbery
attending an engagement party. His evidence on that point was
corroborated by his wife who testified that she had accompanied him
on the visit. The prosecution maintained that the alibi was false
and set out to prove the appellant’s presence at the robbery by
adducing evidence (a) that the appellant had been identified by both
Mr Tré and Mr Isaaks at an identification parade, and (b) that
an identifiable palmprint (later linked to the appellant) had been
captured by means of folien from the rear boot spoiler of Mr Tré’s
Nissan sedan.

The
reliability of the appellant’s identification by Mr Tré at
the identification parade was attacked mainly on two grounds:
Firstly, that he also identified another person at the parade,
commenting at the time that he was sure that that person was one of
the robbers. According to the prosecution the person was not.
Secondly, that when the appellant’s alibi was put to Mr Tré
during cross-examination and he was asked to comment on it he said:
“Well, if he was in Owamboland, if he was not here, then I am
wrong. So I don’t recognise him good enough.” Relying on this
statement counsel for the appellant submitted that Mr Tré was
clearly not convinced that the appellant had indeed been one of the
robbers. Moreover, counsel argues, if it is accepted that he had
made a mistake with the identification of the one person he had been
convinced of, the probabilities are much greater that he made a
mistake with the identification of the appellant – being rather
tentative about that identification as his response under
cross-examination shows.

The
appellant also attacked his identification by Mr Isaaks. When Mr
Isaaks pointed out the appellant at the identification parade, he
stated that he thought the appellant had been one of the robbers.
That identification too, the appellant’s counsel reasons, was done
without conviction. That being the case, counsel further submitted,
the subsequent dock-identifications of the appellant by these two
witnesses should not be accorded any weight. The veracity and
reliability of the appellant’s initial identification by the two
witnesses could not be improved by his subsequent identification at
the trial. In court he appeared together with the three other accused
in a highly compromised position and, given the preceding
consultations between the prosecutor and his witnesses, there was a
real possibility of suggestion. I shall later in this judgment again
touch on the weight to be accorded to the appellant’s
identification.

The
centrepiece of the prosecution’s case against the appellant
was, however, the palmprint of the appellant allegedly found on Mr
Tré’s vehicle. It was not suggested in cross-examination or
in argument that the print had been left by the appellant in
circumstances unrelated to the robbery. It was also not suggested
under cross-examination that Sergeant Kavindja, the fingerprint
expert called by the State, was not qualified to lift and compare the
palmprint and to give evidence about the similarities between the
print lifted and the ones later obtained from the appellant for
purposes of comparison. His conclusions that there were a sufficient
number of points of similarity between the prints and that, regard
being had to those similarities, the print allegedly lifted from the
vehicle was that of the appellant and of no other person, were also
not challenged. I pause here to mention that the appellant was
represented by a legal practitioner at all relevant times during the
trial until the stage at which prosecution closed its case.

In
the course of his testimony the appellant made the startling
allegation that the palmprint was not obtained from Mr Tré’s
Nissan sedan as Sergeant Kavindja had testified. It was, he said,
obtained from a Toyota Corolla vehicle which was the subject matter
of another Police investigation against him. He strongly suggested
that the police had conspired to incriminate him in the armed robbery
and sought to support these disturbing allegations with the following
evidence.

He
testified that he had been informed by the investigating officer,
Constable Nangolo, on 27 July 1999 that he could not be released on
bail because another case was being investigated against him. Nangolo
told him that his fingerprints had been found on a vehicle which was
the subject matter of that investigation. He was taken to the police
station later the same day and a police docket was opened against him
by Sergeant Dionisiu in that case. He was charged and appeared in
the Magistrate Court on 28 July 1999 when the case was postponed for
further investigation. The case was later transferred to the
Regional Court under Case No. R/C 22/1999 and the CR number of the
police docket relating to that case was 747/01/1999. During April
2000 the appellant in writing asked for, and obtained, access to the
contents of that docket. He found that some of “the fingerprint
evidence was not there, it was removed”. He also came across the
sworn statement of one Sergeant “Jim” or “Tom” which
mentioned that he had taken the appellant’s fingerprints and had
compared them with the palmprint of the appellant’s left hand on 12
July 1999.

The
appellant found the missing “fingerprint evidence” from the
docket with CR No. 747/01/1999 and the fact that it co-incidentally
also related to a palmprint of his left hand (as in this case), very
suspicious. As a consequence he caused his wife to make certain
enquiries from the prosecutor about the docket contents but she was
told by the prosecutor that he would explain the matter to the
appellant at his next appearance on 22 May 2000. On that date he
found the prosecutor talking to his legal representative and was
later informed by his legal representative that the “fingerprints”
mentioned in that case were found on a Toyota Corolla. The appellant
did not dispute that his prints could have been on the Toyota because
it had been at his house. The case was in any event withdrawn
against him the same day. These events led the appellant to believe
that the palmprint referred to in the evidence of Sergeant Kavindja
had not been lifted from Mr Tré’s vehicle but that it was
the palmprint referred to in the statements contained in police
docket CR 747/01/1999.

Surprisingly
though none of these allegations were put by the appellant’s legal
representative to Sergeant Kavindja during cross-examination. As it
were, the cross-examination of Sergeant Kavindja by appellant’s
counsel was rather brief. Counsel enquired whether the originals of
all the prints had been handed up as exhibits. Thereafter he
confirmed that three more prints had been lifted from the vehicle in
question but that they could not be matched with any specific person.
He also confirmed with the witness that one Sergeant Daniel Mouton
had assisted him when he had compared the palmprint which had been
lifted from the Nissan sedan with those subsequently obtained from
the appellant and ascertained from the witness that
aluminium powder was used to lift the print.

It
is not apparent from anything said by the appellant’s legal
representative that he had been aware of the alleged conspiracy. In
a letter date stamped 12 February 2001 to the presiding regional
magistrate the appellant alleges that he had expected his counsel to
canvas that aspect with Sergeant Kavindja during cross-examination
but that “(his) counsel was too reluctant”. It is because of
that failure, the appellant maintained, that he terminated his
counsel’s mandate. Some corroboration for the appellant’s
allegation that his counsel had been briefed about the claimed
irregularity is to be found in a statement made by Mr van Vuuren on
19 September 2000 shortly after the State had closed its case but
before the matter was adjourned to 29 November 2000. He recorded
that the appellant had elected to testify in his defence and that he
also wished to call his wife and one Sergeant Mouton “of the
fingerprints department”. When the Court enquired about the
purpose of Sergeant Mouton’s evidence, appellant’s counsel
indicated that it would be “regarding the fingerprints that was
taken at the scene.” That was indeed also the last occasion on
which appellant used the services of legal counsel during the trial.

The
appellant’s case was postponed several times between 29 November
2000 and 27 March 2001. On 19 March 2001 the appellant handed up a
letter to the presiding regional magistrate in which he stated,
amongst others, the following:

“2.
I have also once made application for re-call the following three
State witnesses who has already testified: They are, the investigator
Constable Nangolo, Finger/palmprints expert, Constable Kavindja and
official Sergeant D J Mouton.

3. I
   assured the Court that I need the abovementioned witness because I
   do have outstanding questions to them. Your Worship, during my
   trial on 19^th September 2000, I was represented, but my
   legal representative has failed to pose the relevant questions to
   the concerned witness pertaining fingerprints evidence in this case.
   He has also failed to reveal all the possible irregularities which
   might used in this case before the Court.”

   
   

The Magistrate immediately informed him that he
was not prepared to recall witnesses as the appellant had been
“properly assisted by an attorney during the whole of the trial
until all the witnesses for the State had testified”. This ruling
by the Magistrate, it must be noted, does not appear in the
transcribed record of the trial but was only given by the Magistrate
after this Court had enquired from him about the background of an
opening statement he had made when the appellant’s trial resumed on
27 March 2001. On that occasion the Magistrate said the following:

“And
also you wrote a letter to request that a witness, I believe it is
the fingerprint expert, must be recalled but I have already informed
you that I am not prepared to recall that person. He testified and he
was properly questioned by your lawyer and I am not going to recall
him to repeat his expert evidence.”

As a general proposition, the Magistrate was, of
course, entitled to accept that once the accused entrusted his or her
legal representative with the conduct of his defence in criminal
proceedings, counsel had “complete authority over the suit, the
mode of conducting it, and all that is incidental to it – such as
withdrawing the juror, calling no witnesses, or selecting such as, in
his discretion, he thinks ought to be called, and other maters which
properly belong to the suit and the management and conduct of the
trial”. (Per Pollock C B in Swindfin v Lord Chelmsford, 157
ER 1436 at 1449). This approach accords with what, Schreiner JA
described in R v Matonsi, 1958(2) SA 450 (A), “the
importance and high status of the advocate” and the fact that
“trials cannot be conducted partly by the client and partly by
counsel”.

Generally, the Court will accept that counsel will
conduct his or her client’s defence professionally and with the
requisite degree of proficiency required by the nature of the
proceedings. As was correctly pointed out in S v Nkhise; S
v Masia; S v Jones; S v Le Roux 1988(2) SA 868 (A) at
875D-E, “it would be impracticable if not impossible, for the Court
to attempt to determine, by applying some norm of competence (and by
way of an enquiry into the merits of the case and counsel’s conduct
thereof) whether he in his defence of the accused has been
proficient”, when after his conviction, an accused person “seeks
to attribute his misfortune at having been convicted not to his own
guilt, but to his counsel” (per Horn AJ in S v Bennett,
1994(1) SACR 392 (C) at 398H).

The rule is however not an inflexible one (See
R v Muruven, 1953(2) SA 779 (N) at 780) but “a very strong case
must be made before a decided case can be re-opened on the ground of
an error of judgment on the part of the legal representative”.
This approach was echoed by Van Oosten J in S v Chapedi,
2004(1) SACR 477 (W) at 484D. He went further to hold that,
subsequent to 27 April 1994, section 25(3) of the South Africa
Constitution required criminal trials to be conducted in accordance
with “notions of basic fairness and justice” and for the Courts
hearing criminal trials and criminal appeals “to give content to
those notions”. He further held that if a person was not properly
and adequately represented at a trial it constitutes a material
irregularity in the proceedings (at 486A-C).

It is not necessary for us to consider whether, in
the constitutional dispensation applicable in Namibia, the majority
view expressed in Chapedi’s-case should find favour. This
is also not a case where the appellant waited until after the
conclusion of the trial to question the manner in which his legal
representative had chosen to present his defence. The appellant
terminated his counsel’s mandate shortly after he had omitted to
challenge the origin of the palmprint used as circumstantial evidence
against the appellant. From that point in time onwards, the appellant
persistently referred to the claimed irregularity and sought leave to
recall certain state witnesses on that point for further examination.

The Court has a wide discretion in dealing with
applications to allow the recall of witnesses who have testified
earlier in the proceedings (see: S v Shezi, 1994(1) SACR 575
(A) at 577G). It was, however, pointed out in S v Kondile,
1974(3) SA 774 (Tk) at 775 that:

“The
refusal of a request to recall a witness for cross-examination or
even to further cross-examination is a power that should be exercised
by presiding officers sparingly and then only in the rare cases where
it is clear to the presiding officer that the request is made
frivolously or as part of deliberate delaying tactics designed to
secure for the party concerned or his attorney some unfair advantage
over the opponent.”

The limitation of a presiding officer’s
discretion to refuse applications of that nature only if “made
frivolously or as part of deliberate delaying tactics” as suggested
in Kondile’s case was criticised in S v M, 1976(4) SA 8 (T)
where Cillie JP recalled the judgment of Ogilvie-Thompson JA in S
v Green, 1962(3) SA 886 (AD) at 889 to the effect that an
application of that nature may also be refused “to exclude
irrelevancies and discourage repetition” and that of Schreiner, JA
in R v Gani 1958(1) SA 102 (AD) at 108 that –

“a
trial Court must be accorded all proper powers to control the length
to which parties should be permitted to go in investigating matter of
a subordinate nature on the fringe of the case; it is of some
importance that a trial should not be unduly prolonged by an
over-elaborate examination of minute details which cannot materially
affect the central issue.”

So too, did Heher, AJA decline to fault the
Magistrate’s refusal to recall a vulnerable witness (the youthful
complainant in a rape case) and thus to subject herself a second time
to the indignity of having her private life laid bare without a real
prospect that the interest of justice would be served by her recall
in circumstances where the accused’s version could be rejected as
false beyond a reasonable doubt.

Given the appellant’s instructions to his
counsel that he had not been in Windhoek on the day of the robbery,
he was entitled to expect of him to take issue with the State
witnesses not only on the matters of identification but also with
Sergeant Kavindja’s evidence that he had lifted the appellant’s
palmprint from the victim’s vehicle. Sergeant Kavindja testified
that he had made contemporaneous notes on the reverse side of folien
on which the palmprint had been captured. They include particulars of
the IR number, the date and time on which the print was lifted and
particulars of the place and position where the print was found on
the vehicle. He further testified that not only had he signed it, but
also had Mr Roberto Isaaks co-signed it in his presence.

Mr Barnard, appearing for the appellant, was quick
to point out in argument that the folien in question was not signed
by Mr Isaaks as Sgt. Kavindja had testified but by one “Tré”.
He also pointed out that, next to the signature, the imprint was
endorsed with the words “sign of owner’s son”. Mr Isaaks, we
know from the evidence, is not the son of Mr Tré – he is the
son of Mr Tré’s cousin. Mr Isaaks surname is also not Tré
and there is no reason why he should sign the imprint as “Tré”.

These are inconsistencies which the appellant was
entitled to canvas in cross-examination with Sergeant Kavindja. As
long as they remained unexplained, they tend to lend credence to the
appellant’s contention that Sergeant Kavindja’s evidence about
the origin of the palmprint is suspect.

Moreover, if another palmprint of the appellant
was lifted in the course of another investigation during or about the
same period, the appellant was entitled to examine the possibility of
intentional or inadvertent confusion by identifying the palmprint
lifted from one vehicle as one lifted from another.

The signature of one Tré on the reverse
side of the folien used in evidence against the appellant raises
critical questions about the authenticity of the folien that remained
unanswered, in particular regarding the date and place where it was
obtained and the vehicle from which it was obtained. These issues
are material to the case and cannot, without more, be dismissed as
irrelevant, marginally relevant or speculative. It could also not be
dismissed as a ruse to delay finalization of the trial. The witness
was a police officer from Windhoek who had previously testified in
the case and there was no suggestion that he was for some or other
reason unavailable. The appellant had given due notice of his
intention to move an application to recall that witness and, had he
been recalled, it would not have caused any significant delay in the
trial. In any event, the delay that might have resulted as a direct
consequence of his further evidence would certainly have been
justified to clarify the appellant’s concerns in the interest of
justice and fairness: the evidence of Sergeant Kavindja about the
signature appearing on the reverse side of the folien and on the
origin of the palmprint appearing on the face thereof, lies at the
heart of the circumstantial evidence against the appellant – it is
the very same evidence which constitutes powerful corroboration of
the appellant’s identification by the victim and one of the
witnesses. Hence, it would have been essential to the just decision
of the case as contemplated in Section 167 of the Criminal Procedure
Act, 1977 to allow the appellant’s application to have Sgt.
Kavindja recalled. The Magistrate should not have dismissed it simply
on the basis that the appellant was bound by his legal
representative’s failure to challenge those aspects in the course
of cross-examination.

I have a further difficulty with the manner in
which the Magistrate dealt with the applicant’s application. At
the close of the State’s case the appellant’s counsel indicated
that the appellant intended to call Sergeant Mouton. In his
application to the Magistrate to recall certain State witnesses, the
appellant included the name of Sergeant Mouton. As Mouton had not
testified previously, the appellant was at liberty to call Mouton as
a witness for the defence without leave of the court but he wrote the
letter under the mistaken impression that he had to obtain leave of
the Court to examine Sgt. Mouton. The Magistrate dismissed the
application without correcting the appellant’s mistaken view and
without informing him of his right to call Mouton in the course of
the defense’s case. Instead of enlightening the appellant, who was
not legally represented, of his right to call Sergeant Mouton or at
the very least, enquiring from him whether he still wanted to call
him (given the earlier indication by his legal representative of his
intentions to that effect), he left the appellant under the
impression that he could not (re-)call Mouton. A Magistrate’s duty
to assist an unrepresented accused in the interest of fairness and
justice is so well-documented in judgments of this and other
jurisdictions that I do not need to restate the obvious.

For the reasons I have given, the Magistrate’s
refusal to allow the appellant’s application to recall Sergeant
Kavindja for further cross-examination and allowing the appellant to
labour under the misapprehension that he was not entitled to call
Sergeant Mouton as a witness, constitute material irregularities in
the proceedings severely prejudicing the appellant and substantially
detracting from the degree of fairness with which that court a quo
is constitutionally charged to conduct a criminal trial. In the
result the appellant’s conviction and sentence cannot be allowed to
stand.

In determining which order should be made to
address these irregularities, the Court cannot disregard the weight
of evidence adduced at the trial against the appellant. He was
identified at an identification parade by both the victim of the
robbery and attempted murder as well as another eyewitness who had
observed the incident from close by. Given the order I propose to
make, it would be inappropriate to analyse the evidence of those
witnesses and pronounce on the reliability and credibility of their
observations. The same applies to the evidence of the appellant and
his wife. Suffice it to say that, on the whole (and even if the
evidence of the palmprint is to be disregarded), a strong prima
facie case had been established against the appellant. I
therefore deem it inappropriate to simply allow the appeal (with the
consequent unconditional release of the appellant from custody)
without giving further directions as to the conduct of the case as
contemplated in section 304(2) read with section 309(3) of the
Criminal Procedure Act, 1977.

In the premises the following order is made:

1. The appellant’s conviction of the crimes of
   robbery (with aggravating circumstances) and attempted murder and
   the sentence of twenty (20) years imprisonment imposed by the
   Regional Court, Windhoek, in Case No. R/C 203/1999 are set aside.

   
   

2. The case is remitted to the Regional Court,
   Windhoek, and shall be re-enrolled in that court –

   
   

1. on a date not later than fourteen (14) days
   from the date of this order;

   
   

2. before a Regional Magistrate other than the
   one who had presided at the trial which is the subject matter of
   this appeal.

   
   

3. The appellant shall remain in custody until
   the date of his appearance pursuant to the re-enrollment.

   
   

4. The Regional Magistrate before whom the case
   is re-enrolled shall thereafter dispose of the matter in accordance
   with law and, in the event of the appellant’s retrial and
   conviction shall, in the determination of an appropriate sentence,
   take into consideration the period for which the appellant has been
   incarcerated as a trial-awaiting accused and the period of the
   imprisonment served pursuant to his convictions set aside in
   paragraph 1 of this order.

   
   

_________________

MARITZ, J.

I concur.

­­­­­­­­­_________________

SILUNGWE, J.