S v Avelinu and Others (CC 6 of 2003)  NAHC 49 (22 November 2005);
NO. CC 06/2003
THE HIGH COURT OF NAMIBIA
the matter between:
KRISTOF SHIGWEDHA ACCUSED
SHIIKUNDENI SHAFODINO ACCUSED
MIIPALE NANGOMBE ACCUSED
2004.11.15; 2004.12.09; 2005.01.20 2005.02.05; 2005.04.05-29;
2005.04.13 2005.06.14-30; 2005.07.15; 2005.11.22
six accused are charged on four counts of the indictment. The first
count is of murder, namely, that on the 19th
May 2002 at or near Peoples Inn Bar and Gambling House no. 2 in the
Windhoek District the accused unlawfully and intentionally killed
Andreas John Nghatanga, a male person.
2 charges the accused with robbery in aggravating circumstances, in
that on the said date and at the said Gambling House no. 2 in the
district of Windhoek the accused unlawfully and with intent to force
them into submission, assaulted and threatened to assault Markus
Shifena Salom Walenga and other witnesses present by striking and
pointing firearms at them and, unlawfully with intent to steal did
steal N$44 000.00 and one shotgun, the property of or in the lawful
possession of the said People's Inn Bar, Gambling House, no. 2 and or
Martin Shifena and/or Salom Walenga and or Matheus Mundjamina. And
that aggravating circumstances as defined in Section 1 of Act 57 of
1977 are present in that the accused and or an accomplice were,
before/after or during the commission of the offence, wielding a
firearm or any other dangerous weapon or inflicted or threatened to
inflict grievous bodily harm.
3 alleges robbery in aggravating circumstances, in that on the 19th
May 2002 at or near Peoples Inn Bar, Gambling
No. 2, in the district of Windhoek, the accused unlawfully, with
intent to force him into submission, assaulted Andreas John Nghatanga
by shooting him in the chest with intent to steal and took from him
one makarov pistol no. 4785 and one cellphone the property of or in
the lawful possession of the said Andreas John Nghatanga.
that aggravating circumstances as defined in Section 1 of Act 51 of
1977 are present in that, accused 1 and or accomplices, before or
after or during the commission of the offences was wielding a firearm
or any other dangerous weapon, inflicted or threatened to inflict
grievous bodily harm.
4, charges all the accused with defeating or obstructing, or
attempting to defeat or obstruct the course of justice, in that
between the 19th
of May 2002 and the 19th
June 2002, at or near Windhoek wrongfully and unlawfully with intent
defeat or obstruct the course of justice, set the shotgun no.
01/09/1711 alight, that thereafter the accused buried its remains
because they foresaw the possibility that the firearm might link them
to the commission of the crimes set out above in counts one to three,
and/or that the firearm might be used as evidence in a prosecution
the alternative to count four, it is alleged that between May 2002 to
2002 the accused did unlawfully, intentionally and maliciously damage
a firearm, the shotgun mentioned above, the property of Matheus
Munjaniva Salom Walenga by setting it alight and or burying the
remains thereof, that the said shotgun was the property of or in the
lawful possession of Matheus Mundjaniva and or Salom Walenga and or
Martin Shifena. The accused persons pleaded not guilty, ie each in
turn denied all the counts.
summary of material facts in the State's case is that the five
accused persons set up a plan together to go and rob the patrons of
the Peoples Inn Bar/Gambling House no. 2 which is situated in
Katutura, Windhoek, that it was also part of the plan to use firearms
in the course of the robbery; that on the night of the 19th
May 2002, the accused persons, some of whom
armed, entered the premises of the nightclub, and by using violence
and threats of violence stole N$44 000.00 in cash and a shotgun. At
the same time the accused persons also shot and killed the deceased
and stole a makarov pistol and cellphone, that after the robbery the
accused persons set the shotgun on fire and buried its remains as
they feared that it might link them to the commission of the crimes
or might be used as evidence in the prosecution against them. By
burying the said remains of the shotgun the accused persons thus
State further alleges that in acting in this manner the accused
persons acted in common purpose throughout.
is a trite proposition generally, in criminal proceedings that the
State bears the duty to prove the charges preferred against accused
persons beyond reasonable doubt by leading sufficient evidence,
whereas the accused may, if he so decides, lead evidence to
substantiate his claim of innocence.
this case the State relies on the doctrine of common purpose, namely
that all the accused persons were present together at the scene of
the crime, where a shot resulting in the death of a person was
fired, and assaults and/or threats were perpetrated, that each of
the accused was actively involved or was aware of the assaults and
threats being made at the Peoples Inn Bar/Gambling House no. 2, and
that each intended to make common purpose with the actual
perpetrators, and that each participated in some form of association
with the conduct of the others, and finally, that each accused had
the intention or foresaw the possibility of someone being killed but
went ahead and participated, reckless as to whether or not death
will begin with a summary of the evidence of Mrs Sakeus, girlfriend
and mother of the child of accused 2. She said she and accused 2
have known each other for three years but she had lived with him for
two years. Mrs Sakeus said she knows accused 3 as a friend of
accused 2 as he once resided with them. She said she also knows
accused 1 as a friend ofaccused 2 and has known him for about a year
and a half. She knows accused 5 and 6 as residents in the
neighbourhood. They also sometimes visited them or sometimes
patronised her shebeen/shop.
said accused 2 and 3 were together at her home on the evening of the
and had sat with accused 5 and 6, who had joined them, all were just
talking and not drinking. Sometime in the course of the evening the
four were joined, but very briefly, by accused 1. He arrived in a
blue VW Golf, a taxi, with a white stripe. She said she had seen him
driving it about in the last three months. Ms Sakeus said she did
not know accused 4 that well, although she had seen him about for
about a year. Sometimes he also came to her shop then she saw him
once again in prison, afterwards.
that day, at about midnight, accused 2 and all the others left. They
told her that they were going to town and returned at about 5am. She
said although she was still in bed and did not see them arrive, she
knew it was accused 2 or 3 who had comefor nobody else could have
ordered Barnabas to move in with her from the next room. Mrs Sakeus
said she then heard noises like shuffling of feet, and a noise which
seemed to resemble coins being dropped. It then went quiet and she
realised they had left. She next heard them returning at about 7am.
She asked where they had been and they told her that they had been
for a drive near the river. She said she got up and went to her shop
next door. Accused 2 and 3 remained behind. At some point accused 3
came to the shop carrying "a man's handbag". He ordered
some autumn harvest and paid N$ 17.00 for it, in $1 coins, which the
accused took from a bank plastic bag. She also noticed that there
were many more such plastic bags with coins in the "handba.g".
Accused 3 then left. Sometime later accused 3 said he was going to
Klein Windhoek to change some money.
her boyfriend, accused 2, asked her to make some breakfast for them.
She was still making it when accused 3 returned and said it is
getting too late, it is time we left. This was addressed to accused
2. This was the first time she learned that accused 2 and 3 were
going to the north. She was surprised because it seemed to come out
of the blue.
that evening, accused 6 arrived at the bar alone. He bought a drink
and walked about, she told him that accused 2 and 3 had gone to the
on Monday, the 20th
May, there was a knock at the door. She opened it and found the
police outside. The police asked her where accused 2 and 3 were. She
told them they went away but she did not know whereto. The police
informed her that the two were suspected of murder, that this was a
serious crime she should not shield them. She said she felt
threatened and was frightened. The police arrested her and Barnabas
and took them away. She was interrogated by Inspector Unandapo in
the car alone.
Inspector took the statement. She acknowledged the statement in
Court as hers. She said everything she said in the statement was the
truth concerning the events she had seen and heard on the
night/morning of the 18th/
May 2002. She said even though accused 2 had thrown her out of the
house she still loved him and appreciated the financial support he
gave her and the child. She also said apart from the clink of coins,
that morning which Mrs Sakeus said she heard, she also heard accused
persons talking and enquiring about the whereabouts of accused 1
from time to time.
summary of Mrs Sakeus evidence is supported in different aspects by
a variety of witnesses. The claim that when accused 2 and others
arrived at 5am she heard the sound of coins is undoubtedly
consistent with the evidence of the owner of the Peoples Inn
Gambling House no. 2 on the removal and theft of a large quantity of
coins from the premises in the course of the robbery. Mr Munjaniva
said that N$44 000.00 ± in $1 coins was stolen from his
Bar/Gambling House that morning as well as the shotgun. The gun was
perfect and in working order when he left that morning. He
recognised the stump remaining as part of that shotgun when it was
shown to him in Court. He looked at it and confirmed the serial
numbers as correct.
further two witnesses were called by the State they were Mr Petrus
Hamupembe and Mr Amupembe. Both said that accused 1 was employed by
them to drive their taxi, a blue VW Golf with a white stripe. They
said that contrary to the agreement with accused 1, he did not
surrender the taxi that night at the agreed time at 9pm, nor did he
surrender the takings for the day.
was further confirmation of Mrs Sakeus's evidence, about large
amounts of coins, in the evidence of Stephanus Paulus. The witness
told the Court that accused 1 owed him money for electricity. On the
morning of the 19th
of May 2002 at about 10am he (accused 1) paid his bill of $150 in
cash and in $1 coins. He also gave her an extra $50 at about 10am. I
will deal with the accused's explanations in turn, in due course.
But my view is that it is not just a mere coincidence that accused 1
and 3 were found with large amounts of cash in $1 coins. Further
support of the presence of $1 coins on accused is the evidence of
Inspector Unandapo who said that on arrest, he found $400 on accused
2 and 3, in $1 coins and, in a bank bag.
most telling evidence was not specifically challenged though a
denial of the arrest at the particular place and premises was made.
That evidence is that of the State witness Inspector Unandapo. This
shows that accused 1 was arrested on 20th
of May 2002 and was questioned by Inspector Unandapo on 21st
of May 2002. After his rights were given, the accused 1 said he
needed a lawyer but had no money. However he said he was willing to
go ahead and tell what he knew. Inspector Unandapo said he took a
statement from accused 1 in Oshiwambo and translated it to English.
He then read it back afterwards and accused 1 signed it.
inspector was criticised for not handing accused 1 to an independent
Police Officer to take the statement. The Inspector said as accused
1 was cooperative and was confessing to the offence he decided to go
admitted the statement during the trial within a trial I have been
invited to revisit that decision and reconsider the question of
admissibility. I have done so, and find no good ground for revising
the earlier ruling.
it is not always desirable to do so, I do not think that there is
anything inherently unjust in allowing the evidence to be admitted
in circumstances where the investigating officer takes down the
statement, and, in this particular case where he also acted as an
interpreter. When one is dealing with an accused person who is not a
simple, illiterate villager, but one who is a sophisticated person,
and one who couldn't be said to have been overwhelmed by the
circumstances in which he found himself, the Court must be realistic
and take those social, and economic conditions into effect in coming
to the decision.
this case the accused was warned of his rights very clearly and
meticulously, there was no suggestion of any difficulty in
understanding what the police officer was saying to the accused.
This is particularly true in a case where the accused is aware that
he is entitled to be legally represented by a lawyer but
nevertheless decides to go ahead with full knowledge that he will be
within his rights to stand his ground against proceeding further or
just simply remain silent. In this particular case the request for
legal assistance by each accused person in turn, during the
interrogation stage seemed like a singsong.
is a developing country, resources are short and the police force is
not always as well trained as it should be. So allowance, in my
view, should be made for a situation where a calm environment is
created for an accused person, in circumstances in which he is not
overwhelmed or feels threatened. If the Police Officers presented
with those circumstances decide to go ahead notwithstanding an
earlier request for a lawyer's presence, they should feel it within
their power to say - the accused has changed his mind. So we think
it correct to have decided to proceed.
any event, no reliance was placed in this trial on the particular
statement, Exhibit W, even though the accused was confessing.
at all the admissible evidence which the State adduced against each
accused, there is a great deal of evidence that puts accused no. 1
at various places which are material for considering whether or not
he was involved before the robbery. That is sufficient
circumstantial evidence in my view from which inferences can be
drawn conclusively. In my view the evidence is reasonable in the
circumstances, and puts accused 1 in the vicinity of the Gambling
house/Peoples Inn at the time the robbery took place. I have come to
this conclusion after weighing the evidence very carefully and after
looking at what the accused's own account is and what the accused
said he did.
State also called the evidence of one witness Salom Walenga but
conceded that this particular witness was not altogether perfect,
that there were some contradictions in his evidence whereas in other
areas he was shown to be reliable and, a trustworthy witness who had
no axe to grind.
will first refer to the evidence of the witness Salom Walenga.
Although the witness does not directly refer to accused 1, this
witness's evidence is very crucial in this matter in that he
describes the events that happened within the Peoples Inn Bar during
the course of the robbery. That evidence shows, in my view, the fine
coordination, the fine planning, the quick arrival and the quick get
away of the robbers. Clearly accused 1 must have facilitated the
plan and the execution of the offences by being available, by
furnishing the means of getting there and getting away as quickly as
possible. I will come back to the evidence of Salom Walenga later
to accused l's own evidence. Accused 1 denied that he was present at
all at the scene of the commission of the crime, but he did not and
could not say what his movements were that evening other than to say
that that night he slept at his home in Windhoek.
is trite that the accused does not have to prove his innocence or
his alibi. In my view though, where the evidence of witnesses puts
an accused in various places and times that may be incriminatory
against the accused, he would be naive not to try and get support
for his assertion and rely merely on a bare denial.
witnesses called by the State clearly put accused person in a
situation and circumstances entitling the Court to draw certain
inferences, which are adverse to him. Mrs Sakeus's evidence of his
short drop-in on the group at her shebeen where the other
accomplices were calls for an explanation. Her evidence also
showed that from time to time she heard the name of accused 1 being
mentioned or referred to thus making it more pressing for accused to
explain himself. Mrs Sakeus knew the accused well. She did not
appear to exaggerate what she had to say, and she was spontaneous
and stood up well to cross-examination. Besides this evidence, Mr
Engelbrecht who also did not know the accused 1 at all, placed the
taxi, a blue Golf, at the scene. Further, Accused 1 should have
explained why he broke the terms of the contract between him and Mr
Petrus Hamupembe. In assessing the evidence, one cannot ignore the
fact that accused did not challenge the claim of Mr Petrus Hamupembe
that the accused had no permission to keep the VW Golf beyond 9pm,
or for failing to account for the takings that day.
this, accused 1 gave a shifting account of where he got the $1 coins
in the sum of $150.00. First, he said it was the proceeds from his
pool table, then he said it was the proceeds from the taxi that he
assessing the accused's evidence and his explanation, the failure to
challenge Mr Hamupembe's evidence makes it difficult not to come to
the conclusion that accused 1 was indeed part and parcel of the
robbery that night details of which are in Exhibit W, which is
before the Court. I will not go into it. Other than to observe that
he was present although he did not himself participate in the actual
robbery. The evidence entitles the inference that he furnished the
get away vehicle and subsequently participated and shared in the
proceeds of the robbery in which at least two of the accused
persons, who participated in the robbery, are said to have been
armed at the time. Accused 1 must have been and, was fully aware
that there was a crime to be committed with the use of weapons or a
weapon to subdue the patrons of the Gambling bar. So much then for
the summary of the case of accused 1.
conclusion, I have no doubt that the State proved each of the four
counts in the indictment beyond reasonable doubt.
will turn for convenience, to accused no. 4 because this was the
order of appearance by counsel.
State's evidence was led through Inspector Unandapo, the
investigating Officer. Inspector Unandapo said accused 4 surrendered
himself to the police when the police were making enquiries.
Inspector Unandapo told the Court that on the 30th
May he interviewed accused 4 and warned him of his rights. Accused 4
told him (the Inspector) that he wanted a legal practitioner to
represent him but had no money, in the light of that he would
proceed on his own.
inspector said he spoke to accused 4 in Oshiwambo, that there was no
difficulty with his communication. He took a statement from accused
4, and afterwards translated it into English, and read it back to
the accused in Oshiwambo. He signed it and accused 4 also signed it.
his evidence in Court, accused 4 denied the confession. He relied
heavily for this attack on the fact that he did not have his lawyer.
I have previously observed in dealing with accused 1,
it is better in the interests of fairness, not to have the
investigating officer acting alone, and that the practice should not
be encouraged, it is the rule that an officer belonging to another
unit is co-opted into the investigations. The rule must be adhered
to and respected as much as it is possible to do so. In an imperfect
world it is unreasonable to expect perfection at all times. There
must be circumstances where a statement may be taken by an
investigating officer on his own when he (the officer) is satisfied
that the accused is fully apprised of his rights, that having
informed him of his rights, the accused makes no objection, and
requests that the investigation may proceed.
live in a world where crime is prevalent and has become very complex
and, the criminals have become very sophisticated and
statement was admitted as Exhibit X.
Unandapo said sometime later, on the 17th
of June, he got a message that accused 4 wished to see him. He
booked him out of the cells.
4 then told him that the first statement he gave to the officer was
not the truth so he now wished to give a true account.
giving his evidence, the Inspector said he wished to make a point of
correction, that, namely, Accused 4 said, the statement did not
contain everything, he now wished to tell the truth. The second
statement is Exhibit Y.
Unandapo was cross-examined and criticised for acting not only as an
investigator but as his own interpreter, and for taking down the
statement. He was asked as before, why he did not involve another
officer an independent officer in the investigations at that stage.
Inspector Unandapo said he did not feel it necessary as the accused
had been so cooperative.
Thus the Court must not always shut its eyes to the environment in
which it operates; even though striving to abide by the rule of law.
Therefore I see no reason why, in appropriate circumstances, a
statement taken from an accused person in those circumstances is not
permitted and accepted as admissible in criminal proceedings.
now weigh the evidence as a whole against accused 4 and consider
whether the case has been established and proved beyond reasonable
doubt. Inspector Unandapo appeared to want to qualify the evidence
he gave about what accused 4 told him to justify the reason for his
wish to make a second statement namely that he wanted to tell the
truth. But it would seem that the inspector did not quite establish
what he was setting out to do, to quote from the exact passage in
the transcript, at page 981 in the record, line 10,
My Lady accused 4 came to me and told me that the first statement he
gave was not a true story. He is now willing to confess or to tell
me the true story. Question: To which statement did accused 4 refer.
Answer, his statement of the 30th
of May. He said to me that the contents in it are not true",
then went on, after a question,..." My Lady point of
correction, the contents in this statement what he told me was not
enough there was some information pending". (Counsel attempted
to clarify), and said,... "some information", Answer:
"that he was still, he omitted some information so he was
willing now to tell me the truth and/or to add the truth to the
other statement which he said it was not true."
seems to me looking at that passage, that the attempt by accused 4
to withdraw his earlier answer on the ground that the first
statement was false, did not succeed. Hence, the inspector's attempt
fell short of what he wanted to do to complete an incomplete
is clear from the words used in that passage that all that accused 4
was saying was that the earlier statement was false and wished to
withdraw it. In the result the presence of the second statement has
resulted in contradictory evidence in the
case as put forward against accused 4. Whether or not, the accused's
attempt was due to pressure that accused 4 received from his other
inmates and whom he may have incriminated in the first statement, is
not clear. Suffice to say, as the State has sought to put forward
two versions of the statements and which cancel each other out, the
question, which one to accept becomes difficult. Apart from that, in
the State's case this particular accused person, accused (4), is the
least mentioned, least known to Ms Sakeus. At one point Ms Sakeus
said she didn't know his face as she had seen him only in prison.
Later, she appeared to say she had seen him from time to time in the
bar in the past year, so even this witness could not give certainty
to her claims.
from anything else, accused 4 turned up of his own accord to
surrender to the police. If accused 4 had had a lot to hide, and was
fully involved in the criminal activities conducted that night, it
is unlikely that he would have come forward to face the wrath of the
law of his own accord.
this state of evidence against this accused 4, I am not convinced
beyond reasonable doubt that the State succeeded in showing his
complicity and involvement in the crime. The evidence that he was
seen at the scene, of what the State refers to as the planning
stage, at the Bar is not, in my view, enough to entitle this Court
to infer that, thereafter the accused 4 joined the other accused
persons in the criminal activities that ensued elsewhere.
the event, I would find that the State has not discharged the burden
of proof to such a sufficient degree which is expected in a criminal
will now look at the cases of accused 5 and 6, leaving out accused 2
and 3 to come last, because their case was most valiantly fought by
their Counsel, and the evidence is considerably longer than in the
other two cases.
now turn to the evidence involving accused 5 and 6. The State relied
on the evidence from a number of witnesses. Ms Sakeus's evidence,
which I have already referred to extensively, is very central and
crucial in these proceedings.
Sakeus said that accused 5 and 6 joined accused 2 and 3 at her
shebeen that evening first. She said, there was a lot of talking and
no drinking at all. If I may comment, that evidence makes the lack
of activity rather curious, as it shows in my opinion, a group of
persons in earnest discussion about a transaction of some moment;
why else would you go to a shebeen and just sit around and not talk
or drink when you normally would participate in drinking. Be that as
it may, Ms Sakeus said she had known accused 5, at that time, for a
year and a half, accused 6, about a year.
witness Salom Walenga said he knew accused 5 very well. He said
accused 5 frequented the People's Bar where he, Salom Walinga,
worked. Sometimes he (accused 5) came with his girlfriend, Foibe.
This part of Mr Walinga's evidence was not challenged. Indeed
accused 5 agreed that he frequently visited the Bar and, he and
Salom Walinga bought each other beer from time to time. Accused 5
claimed however that he was not there on the night of the incident,
that he was out of town. He said that Salom Walinga was merely
confused in saying that he (accused 5) was at the Bar that day. He
said the confusion arose because of the frequency of his visits,
that the witness was mistaking the one day for another. Salom
Walinga was however adamant that accused 5 spent the whole day there
apart from a break sometime during the morning. Walenga said accused
5 returned in the afternoon, that when he returned he was
accompanied by his girlfriend, Foibe.
Walinga had no reason to mention accused's presence at the Bar
during the daytime. He can only have mentioned it because it
occurred that day, thus it could not be said that Salom Walinga made
the claim to implicate accused 5. Surely if Walinga had wanted to
implicate and incriminate the accused in the commission of these
crimes, there was nothing to stop him going the whole way by putting
accused 5 at the scene of the crime during the course of the robbery
in the evening. The fact that he does not do so shows that this
witness was reliable and trustworthy about accused 5.
Salom Walinga was not alone in putting accused 5 at the Bar or in
Windhoek that day. Further he was corroborated in the evidence by Ms
Sakeus. I have already referred to her evidence, as far as accused 5
is concerned. Ms Sakeus is not likely to have been confused about
the actual date when she last saw accused 5, as she was arrested a
couple of days later after the police called at her home in the
early hours of the following morning. On being questioned, she had a
chance to reflect upon the events that had transpired a mere matter
of hours before. She was not being asked to look back over a week or
more about what had transpired on the night of the 18th.
is from that evidence that I find that accused 5 was clearly lying
about his alibi in which he denied that he was in Windhoek at all
it follows that the evidence of his girlfriend Foibe, before the
Court is not correct.
Ingono (Foibe) told the Court that accused 5 left for Walvis Bay on
of May 2004 and she left on the 16th
of May to go to Owamboland.
Ingono's evidence was unfortunately rendered of little value by the
fact that she had been allowed to sit in court during Court
proceedings for a good deal of the time, over the many months in
which the trial lasted. Apart from her obvious bias in favour of
accused 5, by trying to support her boyfriend, little weight is
bound to be attached to her evidence as she had listened to the
discussions in court. She was thus aware of the issues and some of
the evidence which had been given.
regard to accused 5 and his whereabouts on the 18th,
when asked, he said he couldn't remember where he was, and explained
that he is a salesman, he sells perfumes and travels a lot. I accept
that a travelling salesman of that nature might not know exactly
where he was selling his merchandise in a town or city. However one
would expect that such salesmen would know or remember whether he
was in Windhoek or at the coast, in Walvis Bay or Swakopmund.
my view accused 5 was deliberately evading facing up to the truth
about his movements on the night of the 18th
of May 2002.
support of the case that he was assaulted by Inspector Unandapo and
Sergeant Ndikoma, accused 5 pointed to the medical evidence which is
before the Court. He said that he sustained a swelling in his
testicles, which was much smaller now than at that time in the days
or weeks immediately after the assault. He said he had difficulty
even wearing his jockey underpants and had taken to wearing boxer
evidence was led, ie of Nurse Phillemon. Doctor Fortch was called by
the Court. Reliance was placed by accused 5 on that evidence as it
confirmed the presence of a swelling in the testicles.
major difficulty with that evidence, in my view, was that accused 5
was only seen by Nurse Philemon almost four months after the events
which he claimed had caused that injury. It is common cause that
accused 5 was seen on the 10th
of September 2002. Doctor Fortch only examined him at the request of
the Court with his consent, during these proceedings. Thus the
matter of when, how or where the accused sustained the injury is
left in doubt, and leaves the evidence of the accused on its own,
regarding the circumstances and place where he suffered that injury,
if it was an injury.
Ingono (Foibe) supported the accused's claim about that injury
inasmuch as she said accused 5 complained to her when she visited
him in custody. He told her, she said, that he had been assaulted
and kicked by the police and suffered a bruise in his testicles. He
requested her to buy him some Panado and she bought two packets and
gave them to him.
evidence of Nurse Phillemon and Doctor Fortch showed that that type
of swelling or haematoma may be caused or may result from many other
causes. Both gave instances to the Court. The evidence thus renders
the accused's account, already weakened by the delay in which it was
independently and objectively verified, medically, even more
doubtful, in my view, to the extent that the Court would find it
difficult to say that there might possibly be some truth in his
the State's evidence is that after accused 5 was interrogated by
Inspector Unandapo, he was taken to Chief Inspector Becker to make a
cross-examination ensued, Counsel for accused 5 tackled Inspector
Unandapo and put to the Inspector that...,"could you have
surrendered accused 5 within 10 minutes of the cessation of your
interrogation for instance?" Counsel dwelt on this 10 minute
point. The Court wondered whether it was part of accused's case that
he was taken to Inspector Becker almost immediately afterwards.
However, it became apparent that Counsel was doing no more than
fishing as, later on in the proceedings Counsel put it in terms, to
Inspector Unandapo that accused was taken to Inspector Becker much
later, namely about 7 hours afterwards.
inspector Unandapo, however said he simply didn't know and couldn't
remember whether he took the accused to the Inspector immediately
afterwards or whether the accused had had to wait, in which case he
would have been sitting in the corridor which is part of his office.
He was adamant that he never, at any time, assaulted accused 5. He
denied also that Sergeant Ndikoma had also assaulted him with fists
or kicked him in the testicles after the accused was felled down by
a fist blow. He denied that the swelling resulted from such blow.
the accused had been assaulted in the manner he claims to have been
I doubt that he would have been able to stand up straight, able to
walk. Yet, apparently he walked with little difficulty and,
normally, to get to the Inspector's office to have his confession
taken. I doubt too whether in that state and condition he would have
been able to dictate 6 pages of the account, or, on his new version,
to remember the contents which were dictated to him by Inspector
Unandapo. If accused had been so severely beaten, one would have
expected signs of injury or, unease, at the time the confession was
taken. Inspector Becker said that there were no signs of injury on
the accused, that a video recording which he had taken shows a
normal, comfortable individual sitting comfortably without any signs
for accused 5 submitted that accused may have put on a brave face
because of the presence of cameras, that he may have thought that
the Namibia Broadcasting Corporation was filming the process so he
would not want to appear otherwise than his cheerful and normal
self. I note Counsel's ingenuity in this explanation, I doubt that
the accused would have entertained those thoughts at the time, if
only for the sake of the television cameras, if he, indeed had been
in such pain.
Becker said he was very careful when he interrogated the accused to
ensure that he understood and was fully aware of his rights. He said
he even went beyond the contents of the pro-forma which is used on
such occasions when explaining the accused's rights. He said in this
case he did so, particularly, in view of the claims of assault that
accused was making against the investigating officer. The Inspector
said, having given him his rights, and warned him that he need not
go ahead with giving the statement the accused elected to do so.
have read and looked at the long statement, as Exhibit R. I am
impressed by its contents and its detail. The sequential
arrangements of the events reflect a calm and collected mind, able
to focus on what he was saying. The statement fills in a lot of gaps
in the movements of accused 5 and his accomplices. It couldn't
possibly have been an invention or something he had had to cram into
his head in the course of being severely assaulted.
also said that he had another source for the contents of the
document, ie what he had read in the newspapers. When he was asked
about details, the newspaper was produced. The article referred to
only mentioned a robbery, the killing and the sum of money involved.
Those few points can hardly have occupied 6 handwritten pages of a
regard to all the evidence led, I have no doubt whatsoever that the
State has proved completely accused 5's participation in the
commission of the crimes on the night of the 18th
of May 2002 with full knowledge.
to accused 6. According to Ms Sakeus, accused 6 was known to her for
about a year and was present at her shebeen on the evening of the
there he joined accused 2, 3 and 5. I have already referred to Ms
Sakeus's evidence that there was no consumption of alcohol that they
just talked asking questions from time to time about the whereabouts
of accused 1.
State has argued that what was being done in the shebeen, hours
before the robbery was the planning and putting into place the nuts
and bolts of the robbery about to be committed. The conclusion in my
view, seems perfectly reasonable and compelling as the only
inference to draw. Why, would six men sit in a shebeen for hours on
end without partaking in any alcoholic consumption, then leave in
the dead of night to go to town, as related by Mrs Sakeus'. It is
curious. It is without doubt that accused 1 called to check on the
state of preparedness of the accomplices and check on the plans.
Apart from the evidence concerning accused 6, there's the evidence
of Ms Sakeus that, the following evening, accused 6 called again at
her shebeen, that he was alone and had a drink while walking about.
She said she approached him and told him that accused 2 and 3 had
gone to the north of Namibia. But it remains strange that an accused
(6) who had been part of a robbery and murder a few hours before,
was making himself so visible at a public place, and the place where
he had a meeting with his accomplices before the robbery.
presence of accused 6 at the shebeen that early evening is in sharp
contrast to the behaviour of his accomplices. For instance the
rapidity with which accused 2 and 3 got away from the shebeen that
morning ie as soon as they could. That is very different, it is more
consonant with the actions of a criminal who wants to slip away
while the scent dies down and to emerge only when it seemed quiet
and safe to do so.
6 seems to portray a naive and curious individual. Did he want to
know, perhaps, what had happened to the plans of the previous day?
This is arguable.
from this, and unlike the others, accused 6 never made any
confession to the police. In his evidence, accused 6 gave varying
accounts of where he was on the 18th
First, he said he was not sure, but thought he was in Windhoek
-sleeping at his Hakahana home, then he said he was at Farm, Asaria
where he was employed.
State disproved his evidence and questioned his alibi. It was then
established that accused 6 did not start work at Farm Asaria until
of May. Accused explained that he had made a mistake about the
my opinion it is reasonably possible that a man who feels innocent
of what is being alleged especially when what is alleged is a
serious crime yet is aware that there is something in his movements
that might be held against him, namely that he was part of the
appropriation and planning of the criminal enterprise. Even though
that fear may be slight, the accused person may feel that he needs
to do more to establish his innocence by inventing, say, a false
alibi that takes him away from the scene of the crime, in the belief
that a bare denial would not suffice or carry conviction about what
he was saying. In that state of mind he thus comes to the conclusion
that the best thing to do is to pretend that he was elsewhere, even
though that was utterly false.
this case I am of the view that the State has not led sufficient
evidence to prove beyond reasonable doubt that once accused 6 and
the group left the shebeen that night he had proceeded with them to
the scene of the crime, became part and parcel of the crime, that
the participation was with full knowledge of the nature of the
weapons carried and, the objective of the enterprise to steal money
from the patrons at the People's Bar.
the result, I find the case for the State is not sufficiently and
adequately proved for the purposes of a criminal trial.
turn finally to accused 2 and 3. I will deal with these two cases
together wherever there is common ground and wherever possible. The
State has placed great reliance on the evidence of
Sakeus. Ms Sakeus' incriminatory evidence was undoubtedly against
her own interest. Though her evidence is largely circumstantial the
inferences to be drawn from it are compelling and exclusive. The
assertion during cross-examination that she still loved Accused 2
even though he had thrown her out of their home, came over as
truthful, simple and honest. Her declaration that she was
financially dependent on accused 2, that he had been fully
supportive of her and the child means that a conviction, if one may
to result, will deprive her of her support. The acceptance of that
consequence tells just how honest and trustworthy Ms Sakeus's
is no doubt that accused 2 was lying in his evidence when he claimed
that he left for Ovamboland some days before the incident and was
not therefore in Windhoek on the day of the commission of the
offences. Clearly too, his younger brother was lying. Barnabas had
been called by the State but his evidence contradicted his statement
and the evidence of Ms Sakeus. I prefer the version and account of
Ms Sakeus to that of Barnabas.
Sakeus said how very surprised she was when accused 3 revealed that
they were about to depart for the north as she was making them
breakfast. I agree with the State's view that the inference that it
became necessary for accused 2 and 3 to get out of town as quickly
as possible after the events of the previous night is inescapable.
The accused was bound to try and escape the consequences of his
accused persons denied the contents of their statements, I had ruled
these admissible earlier on. In addition both accused challenged the
fairness of the evidence of pointing out. What did not appear to be
challenged was the evidence of Inspector Viljoen. He said on the
of June 2002 he took both accused, each in turn, to the People's
Bar, that in there each accused pointed out various positions within
the People's Bar and
Inn. Inspector Viljoen, like Inspector Van Zyl, said he did warn the
accused of their rights and, their entitlement not to go out for a
pointing out. Both accused persons, however deny that they were
arrested in circumstances which the State has described. They each
claimed that they were arrested in Okahandja.
part of its case the State produced photographs taken after the
accused's arrest, the photo shows a zinc metal house and, inside,
the base of a bed showing a hole where the accused were found
hiding. The accused denied that they were found thus.
is inconceivable however that the State would have gone to such
great lengths as to set up a fictitious scene of such detail. There
is no doubt in my mind that the probabilities are against such a
suggestion, the suggestion is as farfetched as the evidence of the
accused persons is.
the State relies on the evidence of the warning statements. The
statements are on record, I need not set them out. Both accused
persons gave conflicting reasons to support their objections to the
evidence of the warning statements. The contradiction in each is
material and goes to the hard core of the issues.
challenge to the admissibility of statements, during the trial
within a trial, was on the ground that Inspector Unandapo assaulted
the accused for days before taking them to make statements in front
of Inspector Brune. When giving evidence in the main trial, both
accused, in turn, claimed that the contents of the statements were
not theirs, that they were dictated to them by Inspector Unandapo,
who told them to go and repeat the details to Chief Inspector Brune.
The omission to put this to the State witnesses resulted in the
failure by Defence Counsel to cross-examine Inspector Unandapo on
that basis. It is quite unlikely that Counsel of such experience
would have confused the one ground for the other if the latter
defence had been raised. I find that the claims of assault with a
view to making them make statements, or that the contents of the
statements were dictated by Inspector Unandapo is not at all
credible. The claims can't possibly be true.
regard to the evidence that accused 2 had a spot of blood on his
T-shirt as a result of the assault, and a bruise on top of the head,
that evidence does not take the Defence case far. As Chief Inspector
Brune said, the slight injury was on top of the head, while Accused
2 claimed that he was beaten and suffered an injury to the eye and
the face. He said that that injury was bleeding and thus resulted in
the spots of blood on his T-shirt. Chief Inspector Brune however
said he inspected the accused for any injury or swelling, and he
found none, apart from what he had already described to the Court.
regards the assaults on the chest, Inspector Brune clarified his
evidence to the extent that he said having found no bruise he asked
the accused to raise his T-shirt that the inspection revealed
nothing. He said, it may well happen that a person is assaulted but
no external bruising results and only internal injuries. He said
even then, some kind of swelling would have been evident from the
outside, even on a visual inspection. So the evidence of the source
of the spots of blood is unclear. Further there is no knowing how
old those blood spots were or where they could have come from? The
accused's explanation clearly had no basis because if there had been
a cut on the eye which had caused blood to flow the skin would have
been broken. Such an injury would have been easily visible to Chief
Inspector Brune. The Chief Inspector's final word was that the
accused's face was perfectly normal, that there was neither a bruise
nor a cut.
there came a stage in the cross-examination of Chief Inspector Brune
in which the Chief Inspector was invited to speculate about the
reason why it took from 16:30 to 20:35 pm to conclude the statement
of accused 3. Whereas the Chief Inspector said the interview could
have lasted for half an hour only, but said he couldn't remember, he
was cross-examined time and again and asked to concede various
possibilities. At the end of many questions, the speculation changed
into positive evidence and the Inspector appeared to accept the
accused's propositions as put to him by Defence Counsel, I quote
from a passage in the record,
Well you would not be in a position (to) dispute it if I put it to
you that it's my instruction from the accused that the first time he
was into your office, he informed the Interpreter that he doesn't
want to give the statement without his lawyer. Yes. And then you
said. Okay. In that case then I will leave you here alone.
you be in a position to dispute that? It is quite possible, Sir."
is a typical example of what happens in cross-examination when a
witness is questioned time and again, and, even though he says, he
cannot remember, it is put to him that it is possible. Thereon
possibilities are continuously put to the witness, the witness
explains the general practice which is adopted in situations such as
that under cross-examination. The accused person's case is then put
to him and the witness having said, it might be possible, turns
around and says, yes. Cross-examination of this nature becomes
misleading, it should not be encouraged. Cross-examination is an
essential weapon in the adversarial system of justice. It is
intended and designed to test the other side's witnesses. To be of
assistance to the Court, cross-examination must remain fair to the
admitted the warning statements and ruled them admissible because,
in my view the Court has to be realistic when dealing with, largely
sophisticated individuals who are well aware of their rights. As I
have previously observed, common sense should not be thrown out of
the window. Thus I reject entirely the claims that the accused
persons were viciously assaulted by Inspector Unandapo who then took
them to Chief Inspector Brune to record confessions. Inspector
Unandapo would have known when sending the suspect to a senior
officer that a brutal assault would leave telltale marks on the
body. So it would be risky in the circumstances, and was bound to
result in a rejection of any confession that may ensue. As it
happened, in this particular case the Chief Inspector said he
inspected the accused persons for marks and injuries as a result of
their complaints. He said he found none except those already
turn to consider the evidence of pointing out. Accused 2 and 3 in
turn, complained that they were assaulted by Inspector Unandapo. In
the case of accused 2 it was said the Inspector carried out the
assault in the company of Sergeant Ndikoma and another officer. Both
accused claimed that they were shown the place to point out by the
Inspector on the previous day, that they were then told to indicate
the place to the Chief Inspector the following day.
Van Zyl was assisted by Constable Iyambo. He said when the accused
told them about the assaults they asked the accused to strip, so
they could check for injuries, none were found. The Chief Inspector
said he particularly warned the accused about his right to remain
silent and, that he was entitled to say no to going for indications
or pointing out, that the accused agreed to go ahead anywhere, and
the accused assured the Chief Inspector that he was acting freely
and voluntarily, not as a result of the assault. Thereafter the
pointing out ensued. The Chief Inspector then gave a very detailed
account of what the accused said, how the accused directed them to
this or that spot. The Chief Inspector was very convincing when he
said that though accused person had made a complaint of assault,
once the Chief Inspector had repeated his rights, the accused
elected to go ahead with the pointing out. He said it was as a
result of the pointing out by accused 2 that the Markorov pistol was
2 said in his evidence that he had been told by Inspector Unandapo
where to go when he took him out the previous day.
3 also said that Inspector Unandapo took him to the scene on the
previous day. Later however, accused 3 changed his mind and said
that although Inspector Unandapo took him to the scene, they did not
get into the Bar because it was locked, but it was Inspector Viljoen
who took him the following day told him what to point out, and where
to go. He said Constable Haraseb was also there at the time.
of this evidence was put to the Inspector or Constable Haraseb. My
view, having regard to all the evidence, is that accused 2 and 3 are
making up their cases as they go along.
can be no doubt that a failure to put to a witness evidence which is
crucial is a denial of a chance for the other side to deal with
their opponent's case. The omission to do so is prejudicial to them.
the case of Small
v Smith 1954
(3) SA 434 (SWA) the Court said that:
is grossly unfair and improper to let a witness evidence go
unchallenged in cross-examination and afterwards argue that he must
entirely agree and endorse those remarks.
I previously observed the chops and changes in the story of accused
2 and 3, as well as the last minute addition to the instructions,
are all symptomatic of the story that has no foundation in truth.
Besides, there is a multitude of corroborative evidence about the
complicity and involvement of accused 2 and 3 in the crimes
committed on the 18th.
the case of accused 3, his presence at the scene was confirmed by a
witness who was in the People's Inn Gambling Bar. Salom Walinga said
he told the police that he could recognise accused 3. This claim
adds to the evidence of a get together at the planning stage
earlier. That evidence of the events of the evening in my view is
overwhelming. Further, Salom Walinga identified accused 3 at an
identification parade. The identification parade which was very
properly run by Chief Inspector Sass ie in accordance with the
rules. Walenga had no difficulty in picking out Accused 3.
identification evidence was criticised. The defence's claim is that
accused 2 was taken back to the same room where he had been waiting
before the parade, that the next witness was still present. It was
argued that this was unfair.
am not swayed by the claim, there is no substance in it all. All
that appears to have been done, if it was done, and which Inspector
Unandapo denies, is that Walinga was taken under escort from the
parade to the previous room where Martin, now deceased, was. But on
the defence's claim at the time Martin was on the way out to the
parade. Thus there is no suggestion that there was any communication
between the two witnesses, as the one entered the other left.
was put to Walinga that he was making up the statement that he had
told the police before the parade that he could identify accused 3.
Walinga however said that he was surprised as to how the police came
to miss out that part of the evidence.
regards the criticism about the omission, it is known in the Courts
that shortfalls in police interrogation and taking down of
statements do occur. Statements are not always complete, nor should
they be expected to contain everything that a witness has said. This
observation was made in S v
4 2001 (Supreme Court) by the then Chief Justice, Chief Justice
from this, the State fairly conceded that the evidence of Walinga
was not always perfect but was sometimes confused and contradictory.
It is not in dispute, and is on record that Walinga was undoubtedly
confused at times when he said Inspector Unandapo, for instance,
showed him the firearms the day he went on parade. That could not
have been the case because the firearms according to evidence in
Court were only found on the day of the pointing out, namely in the
presence of Chief Inspector Van Zyl. At that time Inspector Unandapo
was nowhere near the scene. If one were to accept Walinga's evidence
on this point it would mean that the police had set-up a fake and
complex piece of evidence, away from the police station simply, to
implicate the accused person. The suggestion is farfetched and
implausible. The confusion in Walinga's evidence is understandable.
The ordeal that he must have undergone on the night of the robbery
was considerable. At the time of the interview he was not long
separated from the events. Thus allowance should be made for that
the evidence of identification, the Court has warned itself of the
need to be cautious. Therefore I have weighed the evidence adduced
by the State especially, in the light of those aspects of Walinga's
confused evidence. Having done so I am satisfied beyond doubt that
that evidence was true and correct. The evidence of Inspector Van
Zyl of the pointing out is on record and is sufficient support to
confirm that it was as a result of the pointing out the firearms
including the shotgun were discovered.
have also referred to the evidence of Inspector Viljoen. He went on
indications on the 19th
of May with the two accused. On returning, after warning them, the
two made various indications within the Bar/Gambling house. Apart
from the evidence of identification by Walinga, the evidence of the
State is largely circumstantial. In coming to the decision whether
or not the State has proved its case beyond reasonable doubt, I have
to weigh all the evidence and decide whether or not the inferences
to be drawn are consistent with the proved facts and, are the only
reasonable inferences that can be drawn: R
v Blom 1939
have no doubt in my mind that the State has proved its case beyond
decision is supported by overwhelming and incriminating evidence
against the accused persons, thus leading to the conclusion as the
only one that each particular accused was part and parcel of the
robberies and murder, as well as the subsequent attempt to try and
dispose of the weapons - either by hiding them or burning them.
is trite that this Court must not throw away common sense and
require the State to close every avenue of escape that may be open
to the accused. It suffices that the State has adduced evidence of
such a high degree of probability that a reasonable man may, after
consideration, conclude that there exists no reasonable doubt that
an accused person has committed the offence: See S v
(2) SA 395.
find therefore that accused 1, 2, 3 and 5 acted together and in
concert, and were present, and participated in the offences that
were committed at the People's Bar Gambling House No. 2 on the night
or early morning of the 18th
of May 2002.
to the question of intent, evidence was led through Doctor Shangula
who carried out the post-mortem examination on the deceased,
Nghatanga. As there was no challenge by the accused persons, I shall
simply state that the Doctor found that the bullet which killed the
deceased was fired in a horizontal projection and went through one
set of ribs and exited on the opposite side through the ribs, then
rested inside the skin. I find that there is no reasonable
possibility whatsoever that that bullet could only have been fired
from an upward/downwards position as suggested in one of the
confession statement, namely that it was a ricochet bullet which the
accused fired in the air. Furthermore, from the evidence the bullet
was fired at close range, about 3 metres away from the deceased.
Firing at a person at such close range with a firearm directed to
the most vulnerable parts of the body can only lead to one
conclusion, namely that the person firing the shot intended to kill
accused persons planned together, went together and were well aware
that at least two of them were armed with weapons. The failure to
dissociate themselves from the plans or with the activities once
inside, such as when threats were made and money taken from the
patrons or owners makes all the accused guilty of the acts
perpetrated. Ample evidence of possession by accused 1, 2 and 3 of
$1 coins, which could only have been part of the proceeds of the
robbery, hours later, finally nails the coffin against all.
I find as follows: In count 1 of murder:
1, 2, 3 and 5, I find guilty with intent to kill. Accused 4 and 6,
are found not guilty.
regard to count 2,
3, of robbery with aggravating circumstances:
1, 2 3 and 5, are found guilty of robbery in aggravation
4 and 6 are acquitted.
regard to count 4, defeating or obstructing the course of justice.
1, 2, 3 and 5 are found guilty on the main count and acquitted on
the alternative count of malicious damage to property.
4 and 6 are acquitted.
4 and 6 are acquitted and discharged on all the counts.
BEHALF OF THE STATE Ms
of the Prosecutor-General
BEHALF OF ACCUSED NO. 1 Mr
BEHALF OF ACCUSED NO. 2
& 3 Mr
BEHALF OF ACCUSED NO. 5 Ms
of Legal Aid
the matter between:
HOVEKA t/a HOVY
on: Delivered on:
crisp issue to decide in this action for payment of indemnification
under an insurance agreement is whether the defendant is exempted
from liability because the person who had driven the insured vehicle
"was not licensed to drive such vehicle" (as contemplated
in clause 1(c) (ii) of the "Specific Exceptions" of
section 17 of the Multimark