Court name
High Court
Case number
CA 167 of 2003
Title

S v Kutamundu (CA 167 of 2003) [2005] NAHC 8 (03 June 2005);

Media neutral citation
[2005] NAHC 8










FERDINAND
KUTAMUNDU v THE STATE


CASE
NO. CA 167/2003





2005/06/03





Hannah,
J et Maritz, J.











LAW
OF EVIDENCE
















Evidence
– accomplice – dangers inherent in evidence of – witness of
that class not always wholly consistent, reliable or truthful –
must assess evidence as part of the evidence as a whole –
importance of corroboration















CASE NO. CA 167/2003





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:





FERDINAND
KUTAMUNDU APPELLANT








versus










THE
STATE RESPONDENT





(HIGH
COURT APPEAL JUDGMENT)











CORAM:
HANNAH, J. et MARITZ, J.





Heard
on: 2004-03-18


Delivered
on: 2005-06-03


_____________________________________________________________________





JUDGMENT





MARITZ,
J
:
The appellant was one of three accused charged and
convicted in the Magistrate's Court, Opuwo, of the theft of
six head of cattle to the value of N$7 500-00. The appellant was
sentenced to the payment of a fine of N$7 000-00 or, in default of
payment, 7 years imprisonment of which N$1 000-00 or 1 year
imprisonment was conditionally suspended for a period of 5 years.
This appeal lies against the appellant’s conviction and sentence.





The
main thrust of the grounds advanced in the appellant’s Notice of
Appeal on Conviction is that the evidence did not establish his
involvement in the theft of the cattle beyond reasonable doubt. That
is also the position taken by Mr Christiaans, counsel who appeared
for the appellant amicus curiae.





The undisputed evidence adduced by the Prosecution
establishes the following as background to the findings concerning
the appellant’s alleged involvement in the commission of the crime:
Mr Ndjai, an elderly communal farmer (the “complainant”),
received a report from his son on 20 October 2001 that the
appellant’s two co-accused (“accused 1 and 2”) had been seen
two days earlier driving six of the complainant’s cattle along a
road near Ombombo Village, a rural settlement in the Opuwo district.
The complainant reported the theft of his cattle to the local police,
but, doubtful that his complaint would not trigger an immediate
investigation, he departed in search of his cattle.





He came across accused 1 and 2, well-known to him
as two half-brothers from a nearby village, and enquired from them
about his cattle. They claimed that the cattle they had driven and
sold belonged to an Oshiwambo-speaking man but, when he insisted that
they should take him to the man, they changed their tune and said
that the cattle belonged to them and that they had sold them. In the
course of their further interrogation by the complainant, both
accused informed him that, by agreement with the appellant, they had
to take the cattle to Oshakati to sell. They also produced an
official permit for the removal of the cattle on which the name of
the appellant appeared.





They accompanied the complainant to point out the
places where and the persons to whom they had sold the cattle and, as
a result thereof, five of the six cattle were recovered. The
complainant thereupon handed accused 1 and 2 to the police for
further investigation of his complaint. Two further witnesses, Simon
Shinana and Tobias Shaningua corroborated the sale of some of the
cattle. According to them accused 1 was in charge of the
negotiations and the appellant was not present.





A
copy of the permit handed to Constable Joram Hamukwaya by one of the
purchasers, led the investigating officer to the appellant and to
Angatha Kashiyere. The latter was an assistant clerk in the Ministry
of Agriculture stationed at Opuwo where she was tasked with the
issuing of permits for the removal or
transportation of livestock. She testified that on 15 October 2001
the appellant approached her with -what purports to be - a document
issued by headman Gerson Razapi Kavari of Kaoko Otavi relating to six
head of cattle. She recognised the signature as that of the headman
but noticed that particulars of the owner of the cattle had been
omitted. She therefore enquired from the appellant about ownership
of the cattle. The appellant stated that he owned them and requested
that a permit be issued to him for the removal of the cattle from
Opuwo to Oshakati. She thereupon issued a “permission to travel
with animals” to the appellant under her signature. The document
authorises “Ferdinand Kutamundu to travel with six head of cattle
from Opuwo to Oshakati” and, in addition, contains particulars of
the name of the headman and the area of his jurisdiction. The
permit, she testified, would not have been issued if it had not been
authorised by the headman.





About
two weeks after she had issued the permit the police presented a copy
thereof to her which she immediately identified. She informed the
police officer that she did “not know the person” to whom it had
been issued, but, upon a further question whether she would be able
to identify the person to whom she had issued it, she said that she
knew the person. She accompanied the police to the police station
where she identified the appellant. She explained the apparent
contradiction by saying that although she could not recall the
appellant’s name when the police approached her, she could identify
him by his appearance. She mentioned that she knew him by sight even
before he had called at her office on 15 October 2001, “because he
had an interesting case here in Opuwo and I personal like coming to
attend it.” (sic)





Her
immediate identification of the appellant at the police office was
corroborated by Constable Hamukwaya. Hamukwaya also testified that,
after their arrest, both accused 1 and 2 had informed him that the
appellant had instructed them to take the cattle to Oshakati and to
dispose of them there. They also informed him that the appellant had
said to them that he could not accompany them as he had to report
twice daily at the Opuwo Police Station. According to them, the
appellant gave them the permit to take along.





These
assertions by accused 1 and 2 were repeated in the course of their
evidence. They added that they had agreed to a fee of N$500-00 each
to take the cattle to and sell them at Oshakati. In terms of the
agreement they were required to hand over the proceeds of the sale to
the appellant whereafter they would be paid for their efforts.








The
appellant maintained throughout the police investigation and during
the trial that he knew nothing about the cattle. He admitted that he
knew accused 1 by sight prior to his arrest and testified that he
only met accused 2 when the investigation into the theft commenced.
He claimed to be surprised by the insertion of his name on the permit
and could not explain why he would be falsely incriminated by his
co-accused.





Mr
Christiaans submits that the evidence of accused 1 and 2 does not
pass the muster of the cautionary rule applicable to accomplices. He
referred us to the well-known cases of R v Ncanana, 1948(4) SA
399 (A), S v Hlapezula & Others, 1965(4) SA 439 (A) and R
v Mokoena
, 1932 OPD 79 at 80. In Ncanana’s case
Schreiner, JA underlined the need to approach the evidence of an
accomplice with caution. He pointed out that “the trier of fact
should warn himself ... of the special danger of convicting on the
evidence of an accomplice; for an accomplice is not merely a witness
with a possible motive to tell lies about an innocent accused but is
such a witness peculiarly equipped, by reason of his knowledge of the
crime, to convince the unwary that his lies are the truth.” In
Hlapizula’s case, Holmes JA elaborates on the reasoning behind this
approach (at 440D-F):





It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First, he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused, for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason of his
inside knowledge, he has a deceptive facility for convincing
description – his only fiction being the substitution of the
accused for the culprit.”





In assessing the evidence of accused 1
and 2 the Court had to bear in mind that they made previous
inconsistent statements when they were confronted by the complainant
about ownership of the cattle. They admitted guilt to an offence
involving dishonesty and it had to be appreciated that they could
have had some interest in incriminating a third person in attempting
to reduce their own moral blameworthiness in the perpetration of the
crime. It must, however, be borne in mind that “one cannot expect
a witness of that class to be wholly consistent and wholly reliable,
or even wholly truthful in all that he says. If one had to wait for
an accomplice who turned out to be a witness of that kind – or
indeed anything like it – one would, I think, have to wait for a
very long time” (per Davis AJA in R v Kristusamy, 1945 AD
549 at 556).





Their conflicting statements made during
the first confrontation with the complainant must be considered
against the backdrop of the realisation
that they had been found out and the not-so-unexpected urge to cover
their crime by lies. After their arrest however, they consistently
maintained that they had acted upon the directions of the appellant.
Their version is supported by the permit issued in the appellant’s
name which they had in their possession; the details of the agreement
they had with the appellant and the knowledge they had about the
circumstances which the appellant found himself in. Their statement
that the appellant had said that he could not accompany them because
he had to report at the Opuwo Police Station twice daily has a clear
ring of truth to it. It was admitted by the appellant that he had to
comply with an order to that effect and, if he is to be believed
about the remoteness of the relationship between him and his
co-accused, one cannot but wonder how they would have otherwise
become privy to such information.





Most importantly though, is the
corroboration accorded to their evidence by that of the officer who
had issued the permit to the appellant, Angatha Kashiyere. She is a
disinterested witness with no reason to falsely incriminate the
appellant. She could recall the circumstances under which the
licence had been issued some 14 days before the appellant arrest with
great clarity. She explained that although she had not known the
appellant by his name before that date, she had developed a keen
interest in another court case against the appellant and therefore,
knew him by sight. When asked to do so, she identified the appellant
without hesitation at the Police Station. Her identification is
corroborated by the fact that the person so identified indeed bore
the name she had entered on the permit two weeks earlier. The
identification, although not made at an identification parade, is for
that reason reliable.





Faced with evidence of such magnitude
against him, the appellant’s denial of any knowledge of the theft,
is, to say the least, unconvincing. It was, in my view, correctly
rejected by the Magistrate as false beyond reasonable doubt. The
combined weight of the evidence adduced by the Prosecution and those
of his co-accused established his guilty beyond reasonable doubt and
the appeal against his conviction falls to be dismissed for that
reason.





Although the appellant initially also
appealed against his sentence, that part of his appeal was abandoned
during argument.





In the result, the appeal is dismissed.





_________________


MARITZ, J.














I concur








_________________


HANNAH, J.