CASE NO.: CC 04/2002
IN THE HIGH COURT OF NAMIBIA
In
the matter between:
THE STATE
and
HYACINTH
JAMES NINGISE Accused 1
MCDONALD
KAMBONDE Accused 2
HENDRICK
HENNY TSIBANDE Accused 3
BRANDON
DAVID OMSWA SIMILO Accused 7
ARVO
TSHEELI NATANGWE HAIPINGE Accused 8
ISMAEL
OAEB Accused 9
VINCENT
NDABULA MABUZA Accused 10
MIKE
SANDILE MABENA SKUMBUZA APANI Accused 11
CORAM: Silungwe,
J.
Heard on: 2002.10.15; 2002.10.28-31; 2002.11.01-20; 2003.01.15-22;
2003.01.24-30; 2003.02.03-28; 2003.03.10-14; 2003.04.14-30;
2003.09.23-30; 2003.10.03-09; 2003.10.14-15; 2003.10.20;
2003.10.23-31; 2003.11.03-13; 2004.02.09-26; 2004.03.01-31;
2004.04.01-06; 2004.05.26-28; 2004.06.02-11; 2004.06.21; 2004.11.11;
2005.02.07; 2005.02.21; 2005.02.28; 2005.03.14; 2005.03.17-18;
2005.04.25; 2005.04.27-29; 2005.05.19-20; 2005.07.04-15; 2005.07.18;
2005.07.20; 2005.07.27; 2005.12.06
Delivered
on: 2006.02.22
JUDGMENT
[1] SILUNGWE, AJ:
All the present eight accused are jointly arraigned for the
following charges:
Count
1: Robbery with aggravating circumstances as defined in section 1 of
the Criminal Procedure Act, (Act 51 of 1977) as amended;
Alternatively,
Theft;
Count
2.1: Robbery with aggravating circumstances as defined in section 1
of the Criminal Procedure Act, (Act 51 of 1977) as amended;
Alternatively,
Theft
Count
3: Possession of a machine gun or machine rifle in contravention of
section 29(1)(a), read with sections 1 and 38(2)(a), of the Arms and
Ammunition Act, (Act 7 of 1996);
Count
4: Possession of Ammunition in contravention of section 29(1)(a),
read with sections 1 and 32(2)(b), of Act 7 of 1996.
[1.1] The particulars of the
charges are set out as follows:
Count 1.1: in that on or about
16 November 2000, and at or near Erf number 17, Schweringburg Street,
Klein Windhoek, in the district of Windhoek, the accused unlawfully
and with the intention of forcing him into submission, threatened to
assault Harald Schutt by threatening to shoot him with firearm(s) and
unlawfully and with intent to steal took from him at gunpoint his
cellular telephone (valued at N$1000.00), his Nissan Bakkie with
registration number N12701SH (valued at N$51,000.00) with a canopy
valued at N$5,807.50 and a toolbox with a socket set, spanners,
hammers, chisels, pliers, wire stripper, screwdrivers, drill set,
test lamp, saws, files, drill (all valued at N$17,618.70) the
property of, or in the lawful possession of, the said Harald Schutt;
and that aggravating circumstances as defined in section 1 of Act 51
of 1977 are present in that the accused were before, during or after
the commission of the offence wielding firearms and threatening to
inflict grievous bodily harm.
Alternative
to count 1:
Count 1.2 in that during the
period 16 to 17 November 2000 and at or near Windhoek in the district
of Windhoek, the accused did wrongfully and unlawfully steal a motor
vehicle, a Nissan bakkie, with registration number N12701SH (valued
at N51,000.00) with a canopy (valued at N$5,807.50), a cellular
telephone at N$1000.00), and a toolbox with a socket set, spanners,
hammers, chisels, pliers, wire stripper, screwdrivers, drill set,
test lamp, saws, files, drill (all valued at N$17,618.70) the
property of, or in the lawful possession of, the said Harald Schutt.
Count
2.1 in that on or about 17 November 2000, and at or near Windhoek, in
the district of Windhoek, the accused unlawfully and with the
intention of forcing him into submission, threatened to assault
Kapira Gerhard Thihuro by threatening to shoot him and/or by shooting
in his direction with firearms and by wounding him with a shot fired
from a R5 automatic machine gun or machine rifle wrongfully and
unlawfully and with intent to steal took from him N$5,300,000.00
cash, the property of, or in the lawful possession of, City Savings
Investment Bank (CSIB) and/or in the lawful possession of, the said
Kapira Gerhard Thihuro; and that aggravating circumstances as defined
in section 1 of Act 51 of 1977 are present in that the accused were
before, during or after the commission of the offence, wielding
firearms and threatening to inflict grievous bodily harm.
Alternative
to Count 2:
Count
2.2 in that during the period 17 November 2000, and at or near
Windhoek in the district of Windhoek and/or in an unknown district in
the Republic of Namibia, the accused did wrongfully and unlawfully
steal N$5,300,000.00 the property of, or in the lawful possession of,
City Savings Investment Bank (CSIB) and/or in the lawful possession
of the said Kapira Gerhard Thihuro.
Count
3: that the accused are guilty of contravening section 29(1)(a), read
with sections 1 and 38(2)(a), of Act 7 of 1996:
in
that on or about 17 November 2000, and at or near Windhoek in the
district of Windhoek, the accused did wrongfully and unlawfully
possess a machine gun or a machine rifle number 309094 being a
firearm capable of delivering a continuous fire as long as pressure
is applied to the trigger thereof, without a permit issued to them.
Count 4: that the accused are
guilty of contravening section 29(1)(e), read with sections 1 and
38(2)(b), of Act 7 of 1996:
in that on or about 17 November
2000, and at or near Windhoek in the district of Windhoek, the
accused did wrongfully and unlawfully possess an unknown number of
rounds of ammunition without being in lawful possession of a machine
gun or machine rifle capable of firing that ammunition.
[2] All the accused pleaded not
guilty to all the charges. I pause here to mention that Immanuel
Hanjamba Kaukungua, Joseph Heinrich and Bertha Nanduda all of whom
had been jointly charged (with the rest of the accused) as Accused 4,
5 and 6, respectively and who had also pleaded not guilty to all the
charges preferred against them, were discharged: Accused 4 and 5 were
discharged during the State’s presentation of evidence when
prosecution against them was discontinued; and Accused 6 was
discharged at the close of the case for the State.
[3] A summary of the (alleged)
substantial facts is set out as follows:
[3.1] On Thursday 16 November
2000, the Windhoek Branch of the Bank of Namibia issued the Windhoek
Branch of the City Savings and Investment Bank (CSIB) with an amount
of N$7,360,000.00. This amount consisted of N$3,000, 000.00 in
new/used N$50.00 notes within a specific range of serial numbers,
N$4,000,000.00 used/re-issued N$50.00 notes and N$360,000.00 in
used/re-issued N$10.00 notes.
[3.2] This money was collected
during the morning of 16 November 2000, from the Bank of Namibia by
Accused 2 and Kapira Gerhard Thihuro who were both employed by
Professional Security Services CC (PSS) as security officers. They
transported this money to the offices of CSIB in Windhoek. As CSIB
requested PSS to transport some of that money to the Ondangwa branch
of CSIB, Accused 2 and Kapira Gerhard Thihuro collected an amount of
N$5,300, 000.00 of that money from CSIB during the afternoon of 16
November 2000. The money was kept in safe custody at the offices of
PSS in Windhoek before (the anticipated) transportation thereof to
Ondangwa on Friday 17 November 2000, at 01h00.
[3.3] At approximately 22h45
in the evening of Thursday 16 November 2000, Harald Schutt arrived at
his residence at No 7 Schweringburg Street in Klein Windhoek, driving
his Nissan bakkie with registration No. N12701 SH. As he was opening
the gate to his residence, the accused or some of them approached him
and demanded the keys of the motor vehicle and his cellular phone at
gunpoint. The accused took the Nissan bakkie with canopy and tools
listed in Count 1 as well as the cellular phone and drove off, after
threatening to kill Harald Schutt.
[3.4] At approximately 01h00
on Friday, 17 November 2000, Accused 2 (as driver) and Kapira Gerard
Thihuro (as crewman) departed for Ondangwa with the N$5,300,000.00 in
a PSS company vehicle, an armoured Toyota bakkie registration No.
N43572W. Whilst driving on the Windhoek-Brakwater road towards
Okahandja, the accused, who were travelling in the Nissan bakkie of
Harald Schutt, approached the Toyota bakkie and bumped against it.
Accused 2 pulled the Toyota bakkie from the road and stopped the
vehicle. The accused in the Nissan bakkie fired shots towards the
Toyota bakkie and demanded the money and the key to the safe in which
the money was. The accused received the key to the safe from Accused
2, whereafter they removed the money from the back of the Toyota
bakkie. During the incident, Accused 1 shot Kapira Gerard Thihuro in
the abdomen with an R5 machine gun machine rifle number 309034
whereafter Kapira Gerard Thihuro shot Accused 1 with a PSS company
9mm pistol in the hand and/or abdomen. The accused drove off in the
Nissan bakkie with the money and the cellular telephone of Accused 2,
leaving behind Kapira Gerhard Thihuro and Accused 2.
[3.5] At approximately 07h45
on Friday 17 November 2000, the police found the Nissan bakkie of
Harald Schutt abandoned near Daan Viljoen road. The canopy,
registration plates, toolbox and tools as listed in Count 1 (sic)
had been removed from the vehicle and a registration plate with
registration No. N63013W was affixed to this vehicle. The Nissan
bakkie as well as the Toyota bakkie were damaged due to the bumping.
[3.6] During the morning of
Friday 17 November 2000, Accused 7 took accused 1 to the Roman
Catholic Hospital in Windhoek where Accused 1 received treatment for
the gunshot wound in his abdomen. Accused 1 was arrested by the
Namibian police whilst in the Roman Catholic Hospital. Accused 2 and
3 were arrested in Namibia.
[3.7] On Sunday 19 November
2000, Accused 7, 8 ad 9 left Namibia together with Accused 11 in
motor vehicles of the latter and accused 9. They entered South Africa
on Monday 20 November 2000, with these two vehicles. On Sunday 19
November 2000, Accused 10 flew from Windhoek to Cape Town.
[3.8] At approximately 04h30
on Wednesday 22 November, 2000, Accused 11, Accused 10 and Accused 7,
8 and 9 were arrested by the South African Police Service in house
No. 75 Teresa Street, Camps Bay in Cape Town, South Africa, and a bag
containing N$909,250.00 in N$50.00 notes was found in this house.
Accused 11 was in possession of keys to open the padlock with which
the bag was locked. Accused 10 had N$50.00 notes in his possession.
[3.9] Marie Antoinette
Blignaut of the Bank of Namibia identified the serial numbers of the
new/unused notes in the bag as falling within the range of serial
numbers of the new N$50.00 notes issued by the Bank of Namibia on 16
November 2000, to, amongst other banks, the Windhoek branch of CSIB.
[3.10.] During January and
February 2001, Accused 5 deposited some of the money stolen during
the robbery into his account at SWA Bank in Oranjemund. On 12
February 2001, Accused 4 deposited N$100 000.00 of the money stolen
during the robbery into his account at Swabou Bank in Oranjemund. In
September 2001, the Namibian Police recovered N$200 000.00 of the
money stolen during the robbery in a hole in the ground near the
homestead of Jacob Thimoteus Nanduda in Ohangwena where it (sic)
had been buried by Accused 6.
[3.11] The accused (sic)
did not have a permit to possess the R5 automatic machine gun or
machine rifle or ammunition to be fired from this gun or rifle. The
accused acted with common purpose at all material times.
[4] In this judgment, I will
hereinafter refer to the accused as follows:
Hyacinth James Ningise,
Accused 1, as James;
MacDonald Kambonde, Accused 2,
as MacDonald;
Hendrick Henry Tsibande,
Accused 3, as Hendrick;
Brandon David Omswa Similo,
Accused 7, as Brandon;
Arvo Tsheeli Natangwe
Haipinge, Accused 8, as Arvo;
Ismael Oaeb, Accused 9, as
Ismael;
Vincent Ndabula Mabuza,
Accused 10, as Vincent; and
Mike Sandile Mabena Skumbuza
Apani, Accused 11, as Mike.
[5] MacDonald, Hendrick,
Brandon, Arvo and Ismael (Accused 2, 3, 7, 8 and 9, respectively) are
Namibian citizens and were residents of Windhoek at all material
times. However, James, Vincent and Mike are non-Namibians who
happened to be in Windhoek, from South Africa, during the period
16-18 November 2000.
[6] Initially, Mr Christians
represented James, Hendrick and Mike but during the trial, his
mandate to act for Mike was withdrawn. Mr Christians remains the
legal representative of James and Hendrick. MacDonald, Brandon, Arvo
and Ismael are all represented by Mr Murorua who also took over the
representation of Mike until the close of the case for the defence
when Mike opted to represent himself. Mr Neves appears for Vincent.
The State is represented by Mr Small, the Deputy Prosecutor-General.
[7] The case for the State is in
substance a replica of the (alleged) substantial facts. The case for
the defence will be considered as I deal with the accused
individually. This has been a long trial, lasting nearly three and a
half years, with numerous witnesses testifying and the record
(inclusive of exhibits) is in excess of 12,000 pages. In the
circumstances, it would be inappropriate to even attempt to summarise
the evidence of the witnesses. However, I bear in mind all the
evidence adduced in the matter as I prepare this judgment.
[8] The following facts are
not in dispute.
[8.1] On October 13, 2000,
Mike, with whom Vincent had stayed in Durban, left Johannesburg,
South Africa, by air together with Vincent, on a Windhoek -bound
flight.
[8.2] On October 29, 2000,
James too took a flight from Johannesburg to Windhoek.
[8.3] On their respective
arrival in Windhoek, Mike, Vincent and James stayed at Sadrach (alias
Falazza) Dube’s residence as a result of Mike’s initiative.
[8.4] From November 1, 2000 up
to the end of that month, Ismael rented house number No. 1709 Agnes
Street in Khomasdal, Windhoek, from (Ms) Heller Bezuidenhout.
[8.5] On Thursday November 16,
2000, the Bank of Namibia (BON) issued to the Windhoek Branch of City
of Savings and Investment Bank (CSIB) a sum of N$7,360,000.00. This
amount consisted of N$3,000, 000.00 in new N$50 notes within a
specific range of serial numbers, N$4,000,000.00 in used N$50 notes
and N$360,000.00 in used N$10 notes.
[8.6] MacDonald and Kapira
were at all material times security officers employed by Professional
Security Service CC (PSS). In the morning of November 16, 2000, they
collected, in their official capacity, the amount of money referred
to in [8.5] above from the BON and transported it to the offices of
CSIB in Windhoek. That money was earmarked for transportation to CSIB
Branches at Ondangwa and Katima Mulilo.
[8.7] CSIB requested PSS to
transport N$5,300,000.00 (out of the total amount received from the
BON) to its Ondangwa Branch. Consequently, in the afternoon of
November 16, 2000, MacDonald and Kapira fetched the said sum of money
from CSIB and took it to the offices of PSS in readiness for its
transportation to Ondangwa.
[8.8] At about 22h45 on
November 16, 2000, one Harald Schutt (Schutt) arrived at his
residence No 7, Schweringburg Street, Klein-Windhoek, driving a
Nissan bakkie with registration No. N12701SH.
[8.9] At once, assailants
approached him and demanded, at gunpoint, keys of the bakkie as well
as his cell-phone.
[8.10] The robbers then took
the Nissan bakkie with a canopy, tools as listed in count 1 above and
the cell-phone, threatening to kill Schutt as they drove off. This
was the first robbery which is the subject of the first count.
[8.11] At about 01h00 on
Friday, November 17, 2000, MacDonald (as driver) and Kapira (as
crewman) set off for Ondangwa, transporting the N$5,300,000.00 in a
PSS company vehicle, to wit: an armoured Toyota bakkie with
registration No. N43527W. The money was kept in a locked safe located
in the back of the bakkie.
[8.12] While MacDonald and
Kapira were on the outskirts of Windhoek, en route to their
destination, persons driving Schutt’s Nissan bakkie caught up with
them and bumped against the Toyota bakkie they were travelling in.
[8.13] Using MacDonald’s
cell-phone, Kapira attempted to call Johannes Henning Krugger Senior
(Johannes Snr.), a co-proprietor of PSS, on the latter’s
cell-phone. Johannes Snr. also endeavoured to telephonically contact
Kapira in response. These calls were registered in the Mobile
Telecommunications Ltd System (MTC) on Friday, November 17, 2000
between 01:29:20 and 01:32:11.
[8.14] MacDonald pulled the
Toyota bakkie he was driving off the road and stopped.
[8.15] The assailants in the
Nissan bakkie fired shots at the Toyota bakkie and demanded money and
a key to the safe.
[8.16] The assailants obtained
the safe key, and emptied the safe of its contents. This was the
second robbery which is the subject of the second count.
[8.17] During the second
robbery, Kapira was shot in the abdomen whereupon he returned fire
and thereby shot one of the robbers with a PSS company 9mm pistol.
[8.18] The robbers drove away
in the Nissan bakkie, taking with them the money (from the Toyota
bakkie), MacDonald’s cell-phone and the rest of the property
referred to in the second charge, leaving behind the injured Kapira
as well as MacDonald.
[8.19] At approximately 07h45
on November 17, 2000, the Namibian Police recovered Schutt’s Nissan
bakkie which had been abandoned near Daan Viljoen Road, Windhoek. The
canopy, registration plates, toolbox and tools as listed in Count 1
were missing from the vehicle and a registration plate with No.
N63013W was affixed thereto.
[8.20] The Nissan and the
Toyota bakkies were both damaged as a result of the incidence of
bumping, aforesaid.
[8.21] On November 17, 2000,
Brandon requested Dr L C Nghalipoh to accord medical attention to
James who had sustained a gunshot wound in the abdomen.
[8.22] Consequently, Dr
Nghalipoh visited house No. 1709, Agnes Street in Khomasdal which was
being rented by Ismael and there attended to James who was suffering
from a serious abdominal wound. As James’ condition required
surgery, he was referred to the Roman Catholic Hospital in Windhoek
where he was admitted and he received treatment for the gunshot wound
in his abdomen.
[8.23] While he was receiving
treatment in the Roman Catholic Hospital, James was arrested by the
Namibian Police on the same day of his admission, namely, November
17, 2000. A blood sample was obtained from him.
[8.24] MacDonald, too, was
arrested in Windhoek on November 17, 2000, by the Namibian Police.
Hendrick was equally arrested by the police in Windhoek on December
20, 2000.
[8.25] During James’
treatment at the Roman Catholic Hospital, a projectile was not
removed from his body. X-rays taken of James by Dr Agnew on November
20, 2000, showed that a bullet was still lodged in his body.
[8.26] None of the accused was
at all material times in possession of a R5 automatic machine gun or
machine rifle or ammunition to be fired therefrom.
[8.27] On Sunday, November 19,
2000, Vincent took a flight from Windhoek to Cape Town, South Africa.
On the same day, Brandon, Arvo and Ismael, travelling in Ismael’s
Volkswagen Golf car (Golf) with registration No. N11322W, and Mike,
travelling in his BMW car with registration No. FH2377GP, left
Windhoek on their way to South Africa.
[8.28] On Monday, November 20,
2000, at 00h08, Mike and Ismael arrived at Vioolsdrift border in
South Africa in Ismaels’ Golf car. On the same date at 00h10,
Brandon and Arvo arrived at the South African Vioolsdrift border in
Mike’s BMW car.
[8.29] At approximately 04h30
on Wednesday, November 22, 2000, Brandon Arvo, Ismael, Vincent and
Mike were all arrested by the South African Police in house No. 75
Teresa Street, Camps Bay, Cape Town.
[8.30] Subsequently, all the
accused referred to in paragraph [8.29], supra, were returned
to Windhoek (as regards Vincent and Mike, following their extradition
proceedings).
[9] A blood sample was
collected from the steering wheel of Schutt’s recovered Nissan
bakkie and when that sample, as well as two samples taken from James,
were sent for DNA testing, Dr Agnew found a positive match between
the sample collected from the Nissan bakkie (that had been used to
facilitate the commission of the second robbery) and the samples
taken from James.
[10] Further, a fingerprint
was lifted from the dashboard of the recovered Schutt’s Nissan
bakkie which the State’s evidence shows matched that of Hendrick.
But Mr Christians argues that the State has failed to establish that
the fingerprint in question was lifted from the Nissan bakkie. I will
later return to this point.
[11] The evidence of the South
African police witnesses alleges that on November 22, 2000,
approximately five days after the commission of the second robbery, a
sum of N$909,250.00 in N$50 notes was found in house No. 75 Teresa
Street, Camps Bay, Cape Town. That money was contained in a black
suitcase which was allegedly identified by Vincent as his. Brandon,
Arvo, Ismael, Vincent and Mike were all found there and arrested.
They all (including Vincent) claim they have no knowledge of the
money found in that house.
[12] I will later assess and
determine the case against and for each accused individually.
[13] Mr Small’s submission,
on behalf of the State, as to what he reckons should be the outcome
of this case is set out here below.
[13.1] James:
Guilty
on Count 1 (Robbery: Re: Schutt) as a co-perpetrator;
Guilty on Count 2 (Robbery:
Re: money) as a co-perpetrator;
Guilty on Count 3 (Possession
of machine gun) as a co-perpetrator;
Guilty on Count 4 (Possession
of ammunition) as a co-perpetrator;
[13.2] MacDonald:
Not
guilty on Count 1;
Guilty on Count 2 as an
accomplice;
Not guilty on Count 3;
Not guilty on Count 4.
[13.3] Hendrick:
Guilty
on Count 1 as a co-perpetrator;
Guilty on Count 12 as a
co-perpetrator;
Guilty on Count 3 as a
co-perpetrator;
Guilty on Count 4 as a
co-perpetrator.
[13.4] Brandon
Not guilty on Count 1;
Guilty on Count 2 as an
accessory after the fact;
Alternatively: guilty of theft
Not guilty on Count 3;
Not guilty on Count 4.
[13.5] Arvo:
Not
guilty on Count 1;
Guilty on Count 2 as an
accessory after the fact;
Alternatively: Guilty of
theft;
Not guilty on Count 3;
Not guilty on Count 4.
[13.6] Ismael:
Not
guilty on Count 1;
Guilty on Count 2 as an
accomplice;
Alternatively: Guilty as an
accessory after the fact;
Alternatively: Guilty of
theft;
Not guilty on Count 3;
Not guilty on Count 4.
[13.7] Vincent:
Not
guilty on Count 1;
Not guilty on Count 2 but
guilty of the alternative crime of theft;
Not guilty on Count 3;
Not guilty on Count 4.
[13.8] Mike:
Guilty on Count 1 as an
accomplice;
Guilty on Count 2 as a
co-perpetrator;
Guilty on Count 3 as a
co-perpetrator;
Guilty on Count 4 as
co-perpetrator.
[14] The evidence adduced on
behalf of the State shows, inter alia, that on November 16,
2000, at about 20h00, Detective Sergeant R W Nangolo (D/Sgt) of the
Serious Crime Unit of the Namibian Police, while on standby duty,
observed a Volkswagen Golf car, with registration no. N113228W parked
in front of Nandos Restaurant (Nandos), Independence Avenue,
Windhoek. The Golf car had three occupants whom the witness came to
know as James, Brandon and Ismael. James and Ismael alighted from the
car and went into Nandos.
[15] SOME RELEVANT GENERAL
LEGAL PRINCIPLES APPLICABLE TO THIS CASE
[15.1] Onus of
proof
[15.1.1] It
is elementary that the onus of proof in our criminal justice system
rests upon the State to establish its case against each accused
beyond a reasonable doubt. In S v Ngunovandu 1996 NR 306 (HC),
Steyn, J. expressed himself in these terms, at 317G-318B:
“Of
course anything in life is possible and extraordinary events do
occur. However, the criminal justice system and the administration of
criminal justice would be in serious jeopardy if absolute certainty
were to be the required criterion for a conviction.
Denning
J, as he then was, in the judgment in Miller v Minster of Pensions
[1947] 2 All ER 372 at 373 in a well-known passage, says the
following:
‘Proof
beyond reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the sentence
“of course it is possible, but not in the least probable”, the
case is proved beyond reasonable doubt, but nothing short of that
will suffice.’
A similar dictum is to
be found in a judgment of the South African Court of Appeal in S v
Glegg 1973 (1) SA 34 (A). An excerpt from the English headnote at
34H reads as follows:
‘The
phrase “reasonable doubt” in the phrase “proof beyond
reasonable doubt” cannot be precisely defined but it can well be
said that it is a doubt which exists because of probabilities or
possibilities which can be regarded as reasonable on the ground of
generally accepted human knowledge and experience. Proof beyond
reasonable doubt cannot be put on the same level as proof beyond the
slightest doubt, because the onus of adducing proof as high as
that would in practice lead to defeating the ends of criminal
justice.’ ”
[15.1.2] An in S v Van Wyk
1993 NR 426 (SC), the Supreme Court (per Ackermann, AJA, with
Becker, CJ., and Mahomed, AJA. [as he then was] concurring) made the
following observations at 438F-439A:
“It
is convenient to cite here the following passages from the judgment
in S v Sauls and Others 1981 (3) SA 172 (A) at 182G et seg
which were quoted in the judgment of the Court a quo:
‘The
State is, however, not obliged to indulge in conjecture and find an
answer to every possible inference which ingenuity may suggest any
more than the Court is called on to seek speculative explanations for
conduct which on the face of it is incriminating … A passage in a
minority judgment given by Malan JA in R v Malambo 1957 (4) SA
727 (A) at 738 is apposite. I may add that two paragraphs in this
passage were cited with approval by Rumpff JA in S v Rama 1966
(2) SA 395 (A) at 401:
‘In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused. It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
An
accused’s claim to the benefit of a doubt when it may be said to
exist must not be derived from speculation but must rest upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict
with, or outweighed by, the proved facts of the case.’”
[15.1.3] An accused person,
however, has no obligation to prove his innocence.
The Supreme Court of Appeal in
the case of S v V 2000 (1) SACR 453 succinctly put it thus at
455a-c:
“It
is trite that there is no obligation upon an accused person, where
the State bears the onus, ‘to convince the court’. If his
version is reasonably possibly true he is entitled to his acquittal
even though his explanation is improbable. A court is not entitled to
convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable doubt it is false. It is
permissible to look at the probabilities of the case to determine
whether the accused’s version is reasonably possibly true but
whether one subjectively believes him is not the test. As pointed out
in many judgments of this Court and other courts the test is whether
there is a reasonable possibility that the accused’s evidence may
be true.”
[15.2] CIRCUMSTANTIAL
EVIDENCE
Courts normally consider
independent items of circumstantial evidence and their cumulative
effect. In R v De Villiers 1944 AD 493, the Appellate Division
said at 508 (per Davis, AJA with Watermeyer, CJ, Tindall, JA,
Centliver, JA, and Feetham, JA, concurring):
“As
stated by Best, Evidence (5th ed …)
‘Not
to speak of greater numbers; circumstantial evidence – though each
taken by itself weigh but as a feather – join them together, you
will find them pressing on the delinquent with the weight of a
millstone … It is of the utmost importance to bear in mind that,
where a number of independent circumstances point to the same
conclusion the probability of the justiness of that conclusion is not
the sum of the simple probabilities of circumstances but is
the compound result of them.’
…The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference of guilt is the only inference
which can reasonably be drawn.”
See: also R v Blom 1939
AD 188 at 198; S v Hotel Onduri (Pty) Ltd and Another 1993 NR
78 at 82I-J – 83A-C.
[15.3] SINGLE
WITNESS
In terms of section 208 of Act
51 of 1977, an accused may be convicted of an offence on the evidence
of any single competent witness provided the court, after weighing
the evidence of the single witness, is satisfied that the truth has
been told. A case in point is S v Sauls and Others 1983 (3) SA
172 (AD) where the Appellate Division held as follows, at 180E-G:
“There is no
rule of thumb, test or formula to apply when it comes to a
consideration of the credibility of the single witness (see: the
remarks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at
758). The trial judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony, he is satisfied that
the truth has been told. The cautionary rule referred to by De
Villiers, JP in 1932 may be a guide to a right decision but it does
not mean
‘that the appeal
must succeed if any criticism, however slender, of the witness’
evidence were well founded.’
Per Schreiner, JA,
in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham 1955 (2) SA 566 (A) at 569. It has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common sense.”
[15.4] ACCESSORY
AFTER THE FACT
Section 257 of Act 51 of 1977
provides that:
“If the evidence in criminal
proceedings does not prove the commission of the offence charged but
proves that the accused is guilty as an accessory after that offence
or any other offence which he may be convicted on the offence
charged, the accused may be found guilty as an accessory after that
offence.”
A person is an accessory after the
fact to the commission of the crime if, after the completion of the
crime, he/she unlawfully and intentionally engages in conduct
intended to enable the perpetrator or the accomplice in the crime to
evade liability for his/her crime, or to facilitate such person’s
liability.
In S v De Villiers 1992 NR
363, this Court expressed itself in these terms at 370A-E (per
O’Linn, J, with Teek, J [as he then was] concurring):
“In the case of R v Nkau
Majara 1954 AC 235 (PC), the Privy Council, in a case which came
on appeal from Basutoland and fell to be decided under the
Roman-Dutch common law as applied in the Cape of Good Hope, decided
that:
‘The term “accessory after
the fact” as in criminal law does not, under the law of South
Africa – the Roman-Dutch common law – bear a meaning identical
with that which it has under the English law. To constitute a person
an accessory after the fact in South Africa it is sufficient to
establish that assistance was given to the principal offender in
circumstances from which it would appear that the giver associated
himself with, in the broad sense of that word, the offence committed,
and Roman-Dutch law makes no distinction for this purpose between
giving assistance by remaining inactive and refraining from doing
something, and giving assistance by doing something. The kind of
impassivity, when it occurs after the commission of an offence by
another, which has for its objective the giving of assistance to that
other to escape, is under the law of South Africa punishable as the
offence of being an accessory after the fact.’
With humble respect I accept
this quotation from the headnote of that case as correctly stating
our law. It is of course clear from the details of that case that it
is not merely impassivity in the case of failing to report a crime to
the proper authorities that amounts to an offence. It is that
failure, coupled with the other circumstances of accused’s conduct,
which constitutes such association with the crime that thereby
material assistance is rendered to the principal offender after the
completion of the offence.”
See: also S v Velumurugen and
Another 1985 (2) SA 437 (D) at 446I-J –447A; Jonas Kadila
and Others 2001, Case No. SA 5/2000 (unreported judgement of the
Supreme Court).
[15.5] COMMON PURPOSE
The doctrine of common purpose
provides that where two or more persons agree to commit a crime or to
actively associate in a joint unlawful enterprise, each will be
responsible for specific criminal conduct committed by one of their
number which falls within their common design. Liability arises from
their “common purpose” to commit the crime. See: S v Safatsa
and Others 1988 (1) SA 868 at 897D; S v Mgedezi 1989 (1)
SA 687 (A) at 705D-J – 706A; S v Khumalo 1991 (4) SA 310(A)
at 315G-I.
On a charge of having committed
a “consequence crime”, it is not necessary to establish precisely
which member of the common purpose brought about the consequence,
provided that it is established that one of the group caused this
result.
[15.6] THEFT
It is trite law that theft is a
continuing crime. By this is meant that:
“[T]he
theft continues as along as the stolen property is in the possession
of the thief or of some person who was a party to the theft or of
some person acting on behalf of or even, possibly, in the interests
of the original thief or party to the theft.”
See: Per Tindall, J., in R v
Attia 1937 TPD 102 at 106; R v Von Elling 1945 AD 234 at
240.
“Someone (X) who amino
furandi assists the thief after the original contrectatio
is a thief and not merely an accessory after the fact if at the time
of his assistance the crime still continues (viz if the property is
still in the possession of the thief or of someone on his behalf). If
the crime still continues, the thief by his continuing control is
effecting a present contrectatio and will in future effect
further contrectationes”. See: South African Criminal Law
and Proceduce, Vol. II, Common Law Crimes, Milton, 3rd Ed.
at 631.
In S v Velumurugen and
Another 1985 (2) SA 437, it was held at 446I-467D that:
“Since
theft is a ‘continuing crime’ in the sense that it continues to
be committed as long as the thief, his agent or party to the theft is
in possession of the stolen property, one who assists such a person
after the original taking but while the theft ‘continues’ usually
qualifies as a perpetrator and not merely as an accessory after the
fact.”
And in S v Nakale 1994
NR 264 (HC) Strydom, JP (as he then was) and Frank, J, observed at
265A, that: “As theft is a continuing offence, there is no such
thing as an accessory after the fact to the theft”. A person, who
does what would for another crime result in such a person being an
accessory after the fact, will be guilty of the crime of theft.
What is articulated in the
South African Criminal Law and Procedure, Vol. II, Common Law Crimes,
Milton, 3rd Ed. at 630 is, in my view, apposite:
“A
person whose conduct amounts to the crime of receiving stolen
property commits theft in nearly every case. By ‘receiving’ the
property he effects a contrectatio of it, and the mere fact
that the thief has already effected an initial contrectatio
does not matter. The receiver is a thief on an application of the
definition of theft, quite apart from the fact that this conclusion
may perhaps also be justified by the ‘continuing crime’ doctrine.
The only time that a ‘receiver’ is not also a thief is where he
lacks animus furandi.”
[16] I now turn to consider the
evidence against and for each accused in the light of the preceding
general legal principles.
[17] James
[17.1] The evidence against
James is, inter alia, that he is a South African citizen whose
home is located in Soweto, Johannesburg. On October 29, 2000, he left
South Africa through Johannesburg Airport on flight No. SA 070, bound
for Namibia and that on arrival at Hosea Kutako Airport, he was
granted a 90-day visitor’s entry permit. He was subsequently
brought by Mike to stay with him and Vincent at Falazza’s
residence.
[17.2] On November 11, 2000,
James bought a Motorola cell-phone in Windhoek for which he obtained
a pre-paid No. 081 247 8851.
[17.3] On November 16, 2000,
at about 20h00, D/Sgt Nangolo of the Serious Crime Unit of the
Namibian Police, who was on standby duty, observed a VW Golf car with
registration No. N113228W, parked in front of Nandos in Independence
Avenue, Windhoek. He saw Brandon remain in the vehicle and two other
occupants (of the vehicle), namely, James and Ismael, go into Nandos.
[17.4] During the commission
of the second robbery, Kapira shot one of the assailants in the
abdomen with a PSS company 9mm pistol.
[17.5] The assailants took
N$5.3m from the Toyotta bakkie and drove off in the Nissan bakkie
with the money, et cetera.
[17.6.1] On November 17, 2000,
at about 07h30, Brandon telephonically contacted Dr LC Nghalipoh and
told him that a friend of his was very ill and that he needed to be
seen at home. Dr Nghalipoh told Brandon that he should bring his
friend to the practice but Brandon responded that the friend was very
ill, adding that the doctor should go and relieve him of pain. The
doctor reiterated that the patient should be brought to his practice
at 08h20; Brandon agreed. When Brandon later arrived at the doctor’s
practice, without his injured friend, he once again requested the
doctor to go and relieve the patient of pain at home. On the doctor
asking Brandon what was wrong with his friend, he responded that he
had been shot by a friend.
[17.6.2] When the doctor enquired
about payment for the patient he was required to attend to, Brandon
replied that money was not a problem, adding that they could even pay
N$3,000.00 should that be needed. The doctor indicated that he would
not go out to see the patient in the absence of a pre-payment.
Brandon left the practice and returned within a few minutes with a
batch of N$50 notes. Thereafter, the doctor and his secretary were
led by Brandon to a house in Khomasdal (which, as it transpired, was
No. 1709, Agnes Street) where the doctor found James. On examination,
the doctor indicated that the injury was quite serious and that the
patient (James) should be taken to a hospital or else he would die.
Brandon and another person insisted that he be treated there, but
James was keen to be taken to hospital. James allegedly told Dr
Nghalipoh that he had been in pain for almost eight hours.
[17.6.3] Subsequently, James
was transported to the Roman Catholic Hospital in Windhoek where he
was admitted and given medical attention. On admission, he gave his
cell-phone number as well as that of Mike to the hospital
authorities.
[17.6.4] On November 20, 2000,
X-rays were taken which, on the testimony of Dr Nadine Agnew, showed
that there was a bullet present in James’ body.
[17.6.5] On examination of the
X-rays, Warrant Officer Frederick Johannes Vilonel (a ballistics
expert) came to the conclusion that the bullet in James’ body was a
9mm projectile.
[17.6.6] It is Mr Small’s
submission that a positive DNA match was made between James’ blood
and a sample of blood collected by D/Sgt Shikufa from the steering
wheel of Schutt’s Nissan bakkie which had been used to perpetrate
the second robbery.
[17.6.7] James’ version is,
inter alia, that on November 16, 2000, he was invited to a
party by Cheeks at house number 1709, Agnes Street, in Khomasdal;
that he remained at that house from 18h00 up to 21h00, during which
period a cousin of his and two girls used his cell-phone. At 21h00,
he and others went to Kalahari Sands Hotel and later to the Country
Club where they remained up to 00h50 on November 17, 2000. From
there, they went to his girlfriend’s house in Eros and subsequently
his cousin took him back to Cheeks’ house in Khomasdal at 02h30,
arriving there at 02h45. After he had had a bath, he started calling
persons in South Africa. No explanation is given why such calls were
made so early in the day!
[17.6.8] Cheeks allegedly
returned home at 06h00 – 06h10 on November 17, 2000, and allegedly
shot James accidentally. Thereafter, Cheeks went out but later
returned with Brandon. Subsequently, James was seen by Dr Nghalipoh.
He then went to the Roman Catholic Hospital, by taxi, for treatment.
He was later arrested by the Namibian Police. He denies having been
taken to the hospital by Brandon.
[17.6.9] James’ witness,
Ashley Warner, testified that he and James were in Eros during the
early hours of November 17, 2000.
[17.6.10] Mr Christians
submits that it is common cause that James had cell-phone No. 081 247
8851 at the time of the second robbery. He goes on to say that the
position of the person who used James’ cell-phone at the time of
the second robbery is indicated as Erospark which corroborates James’
evidence and that of Ashley Warner that they were in Erospark during
the time of the second robbery. He contends that the defence evidence
of alibi as well as the defence evidence showing the circumstances
under which James was shot should be accepted as reasonably possibly
true; and that the Court should thus give the benefit of doubt to
James and thus acquit him.
[17.6.11] Mr Small, however,
argues that the defence evidence in rebuttal of the State’s
evidence is false and should be rejected as such. He submits that
some of the evidence against James and his co-accused is direct while
some of it is circumstantial. As regards circumstantial evidence, Mr
Small contends that it can, when put together, be compelling.
[18] On a proper evaluation of
the evidence against and for James, the following facts emerge.
[18.1] On October 29, 2000,
James arrived in Windhoek and within about three days of his arrival,
Ismael (Accused 9) rented house No. 1709, Agnes Street in Khomasdal.
[18.2] He subsequently joined
Mike (Accused 11) and Vincent (Accused 10) as they all stayed
together at Falazza’s house in Windhoek.
[18.3] On November 16, 2000,
at about 20h00, D/Sgt Nangolo observed James and Ismael emerge from
Ismael’s VW Golf car with registration No. N113228W wherein Brandon
(accused 7) remained; this was at Nandos in Independence Avenue,
Windhoek.
[18.4] At about 22h45 on
November 16, 2000, the first robbery took place at Schutt’s
residence in Klein Windhoek during which the assailants got away with
Schutt’s Nissan bakkie with registration No. N12701SH.
[18.5] Shortly after 01h00 on
November 17, 2000, Schutt’s Nissan bakkie was used to facilitate
the commission of the second robbery during which one of the robbers
was shot by Kapira, the crewman who had been travelling with
MacDonald in the PSS unmarked security Toyota bakkie on a mission to
transport N$5.3 million to Ondangwa.
[18.6] On November 17, 2000,
D/Sgt Shikufa collected a blood sample from the steering wheel of
Schutt’s Nissan bakkie which positively matched the blood sample
taken from James. The expert evidence shows that there is only one in
14 trillion chance that James is not the depositor of the blood found
in Schutt’s Nissan bakkie.
[18.7] In the morning of
November 17, Brandon telephoned Dr Nghalipoh and asked the latter to
give medical attention to James at home.
[18.8] Dr Nghalipoh was
subsequently led to house No. 1709 Agnes Street, Khomasdal, the very
house that was being rented by Ismael, where he found James with a
serious abdomen injury. James told Dr Nghalipoh that he had been in
pain for almost eight hours.
[18.9] The cell phone used by
Brandon to call Dr Nghalipoh bore Mike’s cell phone number, but
Brandon claimed that it belonged to Cheeks who was allegedly using
house No. 1709 Agnes Street.
[18.10] Brandon gave as reason
for requesting Dr Nghalipoh to treat James at home that he was
apprehensive about James’ treatment elsewhere because the latter
was not in possession of (the requisite) immigration papers. On the
contrary, however, James had been given the 90-day entry visa on
arrival at Hosea Kutako Airport on October 29, 2000.
[18.11] When James’s X-rays
were examined, it was revealed that he still had a 9mm projectile in
his abdomen. I will later return to James.
[19] The next accused for
consideration is MacDonald (Accused 2). It is common cause that he
was the driver of the PSS Toyota bakkie which was used for the
purpose of transporting the N$5,3 million from Windhoek to Ondangwa.
[19.1] It is not in dispute
that MacDonald and Kapira were both security employees of the PSS;
and that they commenced their journey to Ondangwa at 01h20 on
November 17, 2000. MacDonald had with him cell-phone No. 081 245
5850.
[19.2.1] The evidence against
MacDonald, according to Kapira’s testimony, is, inter alia,
that when the Nissan bakkie bumped against the Toyota bakkie which
MacDonald was driving, the latter said that persons (in the Nissan
bakkie) were going to rob them. When Kapira asked him why he had said
so, MacDonald made no response. Kapira then suggested that they
should make a U-Turn and quickly drive back; however, MacDonald yet
again made no reply.
[19.2.2] Kapira used
MacDonald’s cell-phone and called his boss, Johannes, Snr , about
the (sudden) turn of events.
[19.2.3] The assailants
demanded money and keys.
[19.2.4] MacDonald then said:
“the keys are taken”. When Kapira queried how (the keys had been
taken), MacDonald kept quiet. Kapira denies having ever handed the
keys and the cell-phone to the assailants. A person was on the top of
the Toyota bakkie (MacDonald confirms this) and that person fired a
shot downwards upon the roof of the Toyota bakkie.
[19.2.5] When Kapira asked
MacDonald for a pistol, the latter made no response, whereupon Kapira
found the pistol under MacDonald’s seat. He denied having been
handed the firearm by MacDonald.
[19.2.6] When Kapira tried to shoot,
MacDonald told him not to do so as he (MacDonald) would be able to
identify the robbers!
[19.2.7] A cell-phone print-out
of MacDonald’s cell-phone shows seven incoming calls from a
cell-phone bearing James’s cell-phone number on November 16, 2000,
after 20h00. He is evasive when confronted with calls made to his
cell-phone from fixed numbers 271 266, 215 749 and 262 340,
especially that the said numbers also contacted cell phone numbers of
Mike and Hendrick.
[19.2.8] In a bail
application, MacDonald said that he had heard one of the robbers
scream words to the effect that he had been shot or injured. But
before this Court he denies having said that.
[19.2.9] During the bail
application, MacDonald stated that the robbers had demanded safe
keys. Before me, however, his testimony is that it was Kapira that
demanded the safe keys; he cannot say whether the robbers asked for
the safe keys. He is noticeably evasive.
[19.2.10] In his defence,
MacDonald testifies, inter alia, that he did not participate
either directly or indirectly in any of the robberies, et cetera.
[19.2.11] In his attack on the
prosecution evidence of MTC computer cell-phone print-outs, Mr
Murorua submits on behalf of MacDonald and the other clients of his
(Accused 7, 8 & 9) that such evidence is fraught with many
lacunae to be a useful aid to the argument advanced by the State, to
wit, that the cell-phone print-out evidence shows proof of
interconnectivity between MacDonald’s cell-phone on the one hand
and James’ cell-phone on the other and that, consequently,
Macdonald was not party to the conspiracy in respect of the second
robbery. He goes on to say that the oral evidence of two witnesses
from the MTC, i.e. Messrs Riedel and van Wyk, is inadmissible as such
evidence is not only based on inadmissible MTC computer print-outs
but also the true author and preparer of the said print-outs is the
MTC IT (Information Technology) Department. In support of his
argument, Mr Murorua cites the case of S v Harper & Another
1981 (1) SA 88 (AD) at 91G-H and 94A. Mike (Accused 11) joins issue
with Mr Murorua in this regard.
[20] In casu, it is
noteworthy to mention that there was, in reality, no resistance to
the admissibility of the computer print-outs.
[20.1] The admissibility of
computer print-out evidence in criminal cases falls within the
purview of section 221(1) of the Act 51 of 1977.
[20.2] In S v Harper &
Another, supra, the crucial question that arose was whether or
not computer print-outs are admissible as documents. In considering
the meaning of the term ‘document’, as defined in section 221,
supra, Milne, J, made the following remarks at 95E-H, 96D-E
and 97C-H:
“The
extended definition of document is clearly not wide enough to cover a
computer, at any rate where the operations carried out by it are more
than the mere storage or recording of information…
The
wording of the section … is entirely appropriate to the production
of microfilm as evidence since the microfilm itself can be produced.
Furthermore, microfilm is a means by which information is stored, and
recorded … The computer print-outs consist of typed words and
figures and would, prima facie, clearly fall within the
ordinary meaning of the word ‘document’.
It
seems to me, therefore, that it is correct to interpret the word
‘document’ in its ordinary grammatical sense, and that once one
does so the computer print-outs themselves are admissible in terms of
section 221. Once that situation has been achieved, then it seems to
me that the main thrust of the attack upon the admissibility of those
documents disappears.
I,
accordingly, hold that the documents objected to are admissible and
the objection is overruled.”
[20.3] My understanding of the
rationale in S v Harper & Another, supra, is that
information obtained from computer print-outs is, prima facie,
admissible provided the function of the computer was purely passive
in that it merely recorded or stored the information. In other words,
the recording or storing of such information by the computer should
have been mechanical, that is, without the intervention of the human
mind.
[20.4] In casu, the
information on the computer print-outs was recorded and stored
without the intervention of the human mind, I come to the conclusion
that those computer print-outs are admissible in evidence.
Consequently, the objection to their admissibility is overruled.
[21] One outstanding issue
that needs to be resolved in relation to MacDonald is the question of
credibility to which I will return later.
[22] I now turn to consider
the evidence against and for Hendrick (Accused 3).
[22.1] The prosecution case
against Hendrick is that a fingerprint lifted from the dashboard of
Schutt’s Nissan bakkie, the subject of the first robbery, which was
used to facilitate the commission of the second robbery, matched his
own fingerprint.
[22.2] Schutt testifies that a
sticker shown on photograph 8 in Exhibit D had been on the dashboard
of his Nissan bakkie for a long time; and that it was still there
when the assailants relieved him of the vehicle during the first
robbery and after its recovery on the 16 and 17 November,
respectively. Indeed, the said sticker was still in the vehicle when
Schutt gave evidence in this Court.
[22.3] On November 17, 2000,
after the recovery of Schutt’s Nissan bakkie, D/Sgt Shikufa took
photographs of the vehicle and lifted a fingerprint from the sticker
on the dashboard of the vehicle.
[22.4] Hendrick was arrested
on December 20, 2000, but he could not say where he was during the
material time on November 16-17, 2000.
[22.5] His fingerprints were
taken from him on December 20, 2000, and on January 31, 2001,
allegedly because his first set of fingerprints was not clear enough.
[22.6] Inspector Blaauw, a
fingerprint expert, compared the fingerprint lifted from the Nissan
bakkie with those of Hendrick and found that both sets belonged to
Hendrick.
[22.7] Mr G M Coetzee,
Hendrick’s fingerprint expert witness, is of the opinion that
Hendrick’s fingerprint was on the folien.
[22.8] On being asked whether
he had a cell-phone (at all material times), Hendrick’s response is
that he took it for repair and that it got stolen. He does not deny
in cross-examination that he previously used a cell-phone No. 081 244
3351.
[22.9] On January 21, 2001, a
starter pack for cell-phone No. 081 244 3351 was found in Hendrick’s
house.
[22.10] Exhibits Z4.1-Z4.9
show calls made from cell-phone No. 081 244 3351 between November 13
and 20, 2000.
[22.11] From November 13,
2000, at 12:43:20 up to November 16, 2000, at 23:32:23, a cell-phone
with serial No. 493006303866116 (Exhibit 17) was used with a sim card
bearing No. 081 244 3351 which is attributable to Hendrick.
[22.12] On November 17, 2000,
the sim card No. 081 244 3351 was used in a cell phone with serial
No. 448 8354 14 32 79 610 (Exhibit 16) at 08:04:44 and 08:06:22. This
cell-phone allegedly belonged to Mike.
[22.13] Still on November 17,
at 08:34:37, cell-phone with serial No. 49 3006303866116 (Exhibit 17)
was again used with sim card No. 081 244 3351 (Hendrick’s No.)
until 19:02:05 on November 17, 2000.
[22.14] On November 18, 2000,
the sim card with No. 081 244 3351 was used in a cell-phone with
serial No. 5678747874987412 until November 20, 2000.
[22.15] According to exhibit
Z3.7-Z3.15, Mike allegedly used mostly exhibit 16: a grey Motorola
with serial No. 4488354143279610 from November 13-18, 2000 at
20:59:08 until he allegedly changed his sim card to exhibit 14: a
silver Nokia 8850 with serial No. 448901105890700.
[22.16] On November 12, 2000, a
miss-call was indicated from a fixed telephone No. 262 340 which
appears on the print-out of MacDonald. Further, on November 16, a
cell-phone print-out of Hendrick registered incoming calls from the
same fixed line telephone No. 262 340. The printout of MacDonald also
reflects such calls.
[22.17] In addition, telephone
contacts as shown on the print-outs of MacDonald and Hendrick were
made on November 16 from 18:31:28 to 23:32:23 and on November 17 at
08:34:37.
[22.18] Hendrick’s version
before this court is, inter alia, a denial of the State’s
incriminating evidence. He alleges that he is unable to remember
where he was during the evening of November 16 and the early morning
of November 17, 2000.
[22.18.1] He knew James and
Mike, for instance, as he used to see them in the company of Falazza.
[22.18.2] He explains that his
fingerprint found in the Nissan bakkie got there when he had an
innocent lift from one Temba. At one stage he suggests that the
fingerprint was planted in the Nissan bakkie. At another stage, he
suggests (through his expert witness) that it was not found in the
Nissan bakkie but that it was lifted from another sticker!
[22.18.3] He denies having ever
possessed the blue Nokia cell-phone (exhibit 17) and alleges that he
knows nothing about the Tango Starter Pack with No. 081 244 3351
which was found in a cupboard in his house.
[22.18.4] He testifies that he
cannot remember ever owning a cell-phone like exhibit 17 (the blue
Nokia). Further, he states that he cannot be positive about that.
Lastly, he says that he never owned a Nokia cell-phone.
[22.18.5] Hendrick’s
prevarication when giving evidence about the fingerprint found in
Schutt’s Nissan bakkie and whether he used or owned a Nokia
cell-phone is conspicuous. I find that his version cannot reasonably
possibly be true; it is in fact false. I am satisfied that the
State’s witnesses are credible; that the State has established that
the fingerprint lifted from Schutt’s Nissan bakkie belongs to
Hendrick and that it had not been left there innocently. Further, I
am satisfied that the Tango Starter Pack bearing the No. 081 244
3351, which was found in his house, belonged to him; that he had a
cell-phone at all material times; and that he made common cause in
the matter.
[23] This brings me to a
consideration of the case against and for Brandon (Accused 7).
[23.1] The evidence that
implicates Brandon is contained in the proceedings before this Court
as well as in the proceedings during bail applications in Cape Town
and in this Court (before another judge).
[23.2] Prior to, during the
commission of the two robberies in question, and presumably sometime
thereafter, Brandon was employed in the Ministry of Health and Social
Services as an Assistant Personnel Officer. His office maintains an
attendance register which has to be signed in and out by employees.
Sick leave and vacation leave have to be notified to a relevant
superior.
[23.3] Brandon did not sign
the attendance register and he was absent from official duty for the
weekdays: October 23-27; October 30-November 03; November 6-10;
November 13-17; and on November 20, 2000. He did, however, mention to
one co-worker, Shikimeni, that he was not feeling well and that he
was going to see a doctor, adding that he would report for duty later
that day; however, he never did. It is alleged that he informed both
Shikimeni and another co-worker - van Wyk - that he was going to see
a doctor; that he was booked off by the doctor and that he would send
someone to bring to the Ministry a (medical) certificate. No such
person was ever sent and no medical certificate was furnished by him.
[23.4] On November 16, 2000,
at about 20h00, Brandon was, as previously indicated, seen by D/Sgt
Nangolo at Nandos, Independence Avenue, Windhoek, in the company of
James and Ismael. He remained in what we now know as Ismael’s VW
Golf car with registration No. N113228W, while his other companions
went into Nandos.
[23.5] On November 17, 2000,
at about 07h30, Brandon telephonically contacted Dr Nghalipoh and
reported to him that he had a very sick friend and that he would like
the doctor to see the patient at home. The rest of the evidence in
this regard is essentially a narrative of what was stated when the
evidence against, and for, James was reviewed, save to say that
Brandon allegedly told the doctor’s secretary not to talk to anyone
about the patient’s (James’) injury. In the event of the Court
accepting this narrative, why would Brandon caution the doctor’s
secretary to refrain from revealing the patient’s injury if there
was nothing to hide?
[23.6] On November 18, Brandon
contacted Dr Nghalipoh by telephone to get a progress report on his
patient friend. The doctor spoke to him but made no mention about
police intervention in the matter.
[23.7] In the evening of
November 18, Brandon again contacted Dr Nghalipoh and expressed fury
at him, accusing him of having reported the matter to the police. He
told the doctor words to the effect that he (the doctor) had betrayed
them. The question that at once springs to mind is whether Brandon’s
reaction was innocent or whether he had, at that early stage, a clear
picture of some information or event about which he felt passionately
protective!
[23.8] Subsequently, Dr
Nghalipoh’s secretary, who had accompanied the doctor when the
latter attended to the patient at his “home”, pointed out to
Const. Hilundua, house No. 1709, Agnes Street, Khomasdal, Windhoek,
as being the house where the doctor had attended to the patient. That
was the very house that Ismael had rented from (Ms) Bezuidenhout at
the beginning of November 2000. During that month, Bezuidenhout
visited the house and there found Ismael in the company of a friend
of his, to wit, none other than Brandon!
[23.9] Upon Bezuidenhout
visiting the rented house at the end of November 2000, she found no
one there and was thus compelled to break into her own house!
[23.10] When Dr Nghalipoh was
called to attend to James in the morning of November 17, it was
Mike’s cell-phone No. 081 245 7929 that was used by Brandon,
although the latter would like the Court to believe that that
cell-phone belonged to someone by the name of Cheeks!
[23.11] On November 20, 2000,
at 00h08, Ismael and Mike arrived in South Africa at Vioolsdrift,
travelling in Ismael’s VW Golf car registration No. N113228W. On
the same date, at 00h10, Brandon and Arvo also arrived in South
Africa at Vioolsdrift, travelling in Mike’s BMW car registration
No. FH2377GP. The explanation offered by Brandon, Ismael and Mike
that the Golf car had developed a clutch problem and that Mike was
test-driving it across the border sounds extremely spurious in the
circumstances of this case: why did the test-driving (if there was
any) have to be through the international border?
[23.12] As already shown, it
is common cause that at about 04h30 on November 22, 2000, Mike,
Vincent, Brandon, Arvo and Ismael were all apprehended by the South
African Police at house No. 75 Teresa Street, Camps Bay, Cape Town.
[23.13] On the occasion of the
arrest of Mike, Vincent, Brandon, Arvo and Ismael, the South African
Police found in the house (of their arrest) the sum of N$909,250.00
in a black suitcase, reportedly identified by Vincent as his. When
Vincent was asked as to who the owner of the money was, he allegedly
could not, or did not, provide an answer. The money was in a plastic
bag (within the suitcase) which was in batches of N$50.00 notes. The
bag was locked with a small padlock. Inspector Engelbrecht asked
Vincent and Mike for a key. Mike said something in Xhosa or Zulu to
Vincent and thereafter he handed over a bunch of keys from a drawer
in the bedroom table. On being asked which key could unlock the
padlock, Mike allegedly indicated a key to use whereupon Inspector
Engelbrecht unlocked the padlock, opened the bag and discovered that
it was full of N$50.00 notes.
[23.14.] Brandon was aware,
prior to the launching of the bail application in Cape Town, that the
Namibian Police were interested in money that had been the subject of
robbery in Namibia.
[23.15] Brandon’s version,
inter alia, is that he was not in any way involved in the
commission of the crimes as alleged.
[23.15.1] Although he alleges
that he was booked off by Dr Saunderson from October 23, 2000, the
doctor’s testimony, however, is that he saw Brandon on October 24,
not on October 23, and that he had no record of having booked him
off. If at all he booked him off, it would, at most, have been for a
week as the patient’s complaint merely related to an ankle sprain.
Further, Brandon alleges that he returned to the doctor who booked
him off again. But the doctor has no records to indicate that the
patient ever came back to him. Thus, Brandon lacks medical support to
show that he was booked off, as alleged, for a prolonged period in
excess of one week; and indeed, no leave whatsoever was granted to
him by his superior. It is quite clear that Brandon’s story about
his absence from his place of work on the alleged medical ground is
nothing less than a figment of his imagination.
[23.15.2] Brandon alleges that
Cheeks gave him his cell-phone number; that Cheeks was originally
from South Africa but that he could not tell whether the latter was
in South Africa or in Namibia at the time of giving evidence in
Court. Further, he claims that he telephonically contacted the doctor
in Cheeks’ presence and that he used Cheeks’ cell-phone!
[23.15.3] Brandon denies that
he introduced Cheeks to Ismael which is contrary to Ismael’s
testimony during the bail application in Cape Town.
[23.15.4] Brandon states that
he was with Ismael, Falazza and Ducks at Nandos. During the High
Court bail application, however, Brandon testified that he had been
with Ismael only. Obviously, Brandon’s varying versions are a
manifestation that he is lying through his teeth. It is clear that
Brandon played a crucial role in facilitating the treatment of James
and that he endeavoured to conceal the circumstances in which James
had sustained his serious abdominal injury.
[23.15.5] On a proper
evaluation of the evidence in its entirety, in so far as it relates
to Brandon, it is evident that the case against him is cogent. I
accept as truthful the State’s version that Brandon told Dr
Nghalipoh’s secretary to refrain from telling anyone about James’
injury; that he accused Dr Nghalipoh of having “betrayed” them as
was evidenced by the police intervention in James’ case; that on
his own version in his Cape Town bail application, he took James to
the Roman Catholic Hospital; that he owned a cell-phone at all
material times; inter alia, that he had told lies about, inter
alia, having been on sick leave; and that I am satisfied that the
so called Cheeks is a fictitious character. Brandon’s cell-phone
print-out tends to show that he must have been well aware of what had
happened. It seems to me that the main reason for making his trip to
Cape Town was possibly to go and have a fair share in the ill-gotten
loot. It is little wonder that he was found and arrested in the house
where part of the money stolen in the second robbery was discovered.
I find that he made common cause in the matter; that his version
cannot reasonably possibly be true; that it is false and, therefore,
it is rejected as such.
[24.] I will now briefly
examine the evidence against and for Arvo (Accused 8). As in the case
of Brandon, the evidence that implicates Arvo is contained in the
trial proceedings of this Court as well as during the bail
applications in Cape Town and in this Court before (a different
judge).
[24.1] Arvo confirms that he
travelled from Windhoek to Cape Town in Ismael’s Golf’s car
together with Brandon. He was found and arrested in house No. 75
Teresa Street, Camps Bay, Cape Town, together with Mike, Vincent,
Brandon and Ismael. It is common cause that the sum of N$909,250.00
was also allegedly found in that house and that this was the subject
of the second robbery.
[24.2] He states that he only
met Mike in Cape Town. But in the HighCourt bail application, he
testified that Mike and Ismael had driven through the (South African)
border using the VW Golf car; and that he and Brandon had done the
same, using the BMW car.
[24.3] It is alleged that Arvo
made common cause with the lies of Brandon and Ismael in the Cape
Town bail application by tailoring his evidence in an attempt to
corroborate the false versions of Brandon, Ismael and Vincent.
[24.4] Arvo denies having in
any way been involved in the commission of the crimes charged.
[24.5] Mr Murorua submits on
behalf of Arvo that his client knows Brandon and Ismael but that he
has no knowledge of the remainder of the accused. However, Arvo’s
own evidence in the bail applications shows that Mike and Ismael
entered South Africa through the South African-Namibian border,
travelling in the Golf car while Brandon and Arvo did so using the
BMW car.
[24.6] Mr Murorua further
submits that in the circumstances of this case, there is no conduct
on the part of Arvo that attracts criminal liability. It seems to me
that there is merit in Mr Murorua’s submission because I consider
that the evidence against Arvo is not sufficiently cogent to warrant
a conviction, either for being an accessory after the fact or for
theft, as urged by the State. I arrive at this conclusion because I
am not persuaded that Arvo performed some act or acts intended to
assist the principal offenders to escape conviction as opposed to
safeguarding his own interests. His association with Brandon, Ismael
(with whom he had travelled together from Windhoek to Cape Town) and
with Mike and Vincent (with whom he was found, together with Brandon
and Ismael at house No. 75 Teresa Street, Camps Bay) raises a serious
suspicion against him but suspicions alone, no matter how strong they
mighyt be, are not enough to found a conviction.
[25] The next accused to be
considered is Ismael (Accused 9). As previously shown, Ismael rented
house No. 1709 Agnes Street, Khomasdal, from Bezuidenhout with effect
from the beginning of November 2000. It was at this house that Dr
Nghalipoh attended to the seriously wounded James, having been
summoned there by Brandon.
[25.1] When Bezuidenhout
visited the rented house during the month of November 2000, she found
Ismael there in the company of his friend, Brandon.
[25.2] On visiting the house
at the end of November, Bezuidenhout found no one there and had to
break into it in order to gain entry.
[25.3] On November 16, 2000, at
around 20h00, D/Sgt Nangolo saw Ismael’s VW Golf car, registration
No. N113228W, parked in front of Nandos in Independence Avenue,
Windhoek. The Detective Sergeant observed James and Ismael emerge
from the car and go into Nandos, leaving Brandon alone in the car.
[25.4] At 00h08 on November
20, 2000, Ismael and Mike entered South Africa at Vioolsdrigt
travelling in Ismael’s Golf car, registration No. N113228W. And at
00h10 on the same day, Brandon as well as Arvo entered South Africa
through the same border post, using Mike’s BMW car registration No.
FH2377GP. Ismael testifies that prior to his arrival in Cape Town and
to meeting Mike, he did not know him. When questioned that he
travelled with Mike, his answer is a denial. But both answers are
clearly false; in the case of the second answer, Ismael did in fact
travel with Mike at the border between Namibia and South Africa,
albeit for a short distance only. This revelation renders the first
answer, too, false. When he was asked about calls made between him
and Mike prior to their arrival in Cape Town, he refused to respond.
[25.5] It is common cause that
at about 04h30 on November 22, 2000, Mike Vincent, Brandon, Arvo and
Ismael were all arrested at house No. 75 Teresa Street, Camps Bay,
Cape Town.
[25.6] On the same day, the
South African Police discovered N$909,250.00 in the house where the
five accused aforesaid were found too and arrested. This money was in
the bag which was itself contained in the black suitcase that was
allegedly identified by Vincent as his. The money was in batches of
N$50.00 notes and formed part of the money which, I am satisfied, was
the subject of the second robbery.
[25.7] On being asked whether
he knows Cheeks (to whom Brandon referred to), his answer is that he
does not know him personally; that he only knows him by sight, adding
that he was introduced to Cheeks by Brandon.
[25.8] When asked during the
bail application in the High Court, where he was during the evenings
of November 16 and 17, 2000, he opted not to say where he was.
[25.9] On November 16, 2000,
calls from Ismael’s cell-phone were made to the cell-phone of Mike
four times between 14:32:10 and 23:03:23. On November 17, he
seemingly called Mike’s cell-phone eleven times between 11:59:26
and 18:01:53. On the same day, Ismael apparently called Mike’s
cell-phone seven times between 18:19:13 and 21:42:06. And on November
19, it appears called Mike’s cell-phone six times between 17:10:44
and 17:16:33. In the light of the evidence before the Court, coupled
with the many cell-phone calls that Ismael made to Mike, not only on
November 17, but also on November 16, 2000, nearer the occurrence of
the second robbery, would it be unreasonable to infer that such calls
were possibly not innocent?
[25.10] Like Brandon, Ismael
denies having in any been involved in any of the crimes charged.
[25.11] He alleges that his
car developed a clutch problem, which, as previously indicated, and
for the reason given, sounds extremely spurious.
[25.12] It is clear to me that
Ismael’s evidence is replete with lies.
[25.13] Ismael was seen by
D/Sgt Nangolo at Nandos, Independence Avenue, Windhoek, where his
Golf car was parked in the company of James and Brandon prior to the
commission of both robberies.
[25.14) It is not in dispute
that Ismael rented the facility at house No. 1709 Agnes Street,
Khomasdal, where James received his initial treatment. In addition,
it is evident that Ismael played a critical role in the scheme of
things. The timing of the acquisition of the rented facility almost
coincided with the arrival in Windhoek of James on October 29, 2000,
Mike having previously arrived on the 13th of that same month. Was
the acquisition of that facility and James’ presence there a
coincidence?
[25.15) Ismael, Brandon and
Arvo all left Windhoek for South Africa on November 19, 2000, barely
two days after the commission of the second robbery in this case.
They all travelled in Ismael’s Golf car. Was their travelling
together a coincidence?
[25.16] It so happened that on
the same day of the departure of Ismael and his companions, Mike,
too, left Windhoek for Cape Town, driving his BMW car. Was this
occurrence by chance?
[25.17] Was it a mere
coincidence that Ismael and his companions arrived at the South
African border – Namibian border at about the same time as Mike?
[25.18] Was it by chance that
Ismael and Mike crossed the South African – Namibian border
together in Ismael’s Golf car with Mike behind the steering wheel?
[25.19] Was it by coincidence
that Ismael, Brandon, Arvo, Vincent and Mike all ended up together at
house No. 75 Teresa Street, Camps Bay, Cape Town?
[25.20] Was it by chance that
the South African Police raided house No. 75 Teresa Street, Camps
Bay, and therein found not only the five accused referred to in
paragraph 25.19, supra, but also the sum of N$909,250.00 in
N$50.00 notes which was part of the N$5.3 million that had been
stolen during the second robbery?
[25.21] Were the telephonic
contacts among the accused, particularly during the material times
and in which Mike and James appear to be dominant, a mere chance? To
this and the preceding questions, my answers are in the negative.
However, the conclusions I am going to draw from my answers will not
negatively affect Arvo for the reasons previously given.
[25.22] In considering
circumstantial evidence, the observations of the Full Bench of this
Court in S v Hotel Onduri (Pty) Ltd and Another 1993 NR 78
(HC) at 82I-J-83A-C are apposite:
“In
R v Sibanda 1963 (4) SA 182 (SR) Beadle CJ the then Chief
Justice of Rhodesia in an appeal said at 188F-G:
‘It
seems to me that this is one of those cases where, although each
individual item of evidence is quite insufficient to convict the
appellant, the cumulative effect of all this evidence proves the
appellant’s guilt beyond doubt. I approach this case, therefore as
was done in the case of R v de Villiers 1944 AD 493 at 508,
where the Appellate Division approved the following statement of Best
on Evidence:
“Not
to speak of greater numbers; even two articles of circumstantial
evidence – though each taken by itself weigh but as a feather, join
them together, you will find them pressing on the delinquent with the
weight of millstone --- It is of the utmost importance to bear in
mind that, where a number of independent circumstances point to the
same conclusion the probability of the justness of that conclusion is
not the sum of the simple probabilities of those circumstances, but
is the compound result of them.’”
This
approach was also approved in the case of R v G 1956 (2) PH
H266 (A), where the Court said:
‘The
cumulative effect of a number of pointers converging from different
angles was very much greater than the mere total of their weight
taken in isolation.’ ”
[25.23] Bearing the contents
of the preceding paragraph in mind, I am of the view that when the
various items of evidence in casu are put together, the
cumulative effect thereof brings me to the conclusion that Ismael is
linked to the second robbery. I find that he made common cause in the
matter; that the substance of his evidence cannot reasonably possibly
be true; and that it is false.
[26] As regards Vincent
(Accused 10), he arrived together with Mike at Hosea Kutako Airport
from South Africa, via Johannesburg, on October 13, 2000. He was
thereafter taken to Falazza’s house in Windhoek where he and Mike
stayed; and where James subsequently joined them.
[26.1] During his sojourn in
Windhoek, he used a cell-phone number 081 246 4427.
[26.2] On November 17, 2000, he
informed Falazza, following receipt of a call from Mike to the effect
that there was trouble, that James had been shot and that they had
taken the money and were gone.
[26.3] On November 19, 2000,
Vincent arrived at Cape Town Airport on a flight from Windhoek.
[26.4] On the same day,
Brandon, Arvo and Ismael as well as Mike left Windhoek in two
vehicles on their way to South Africa.
[26.5] Vincent allegedly saw
Mike and Ismael removing money from the panels of Ismael’s car and
later saw Mike counting the money in a room.
[26.6] On November 22, 2000, at
about 04h30, Vincent and Mike together with Brandon, Arvo and Ismael
were all found and arrested by the South African Police in house No.
75 Teresa Street, Camps Bay, Cape Town.
[26.7] On the same occasion,
some five days after the commission of the second robbery, the South
African Police found N$909,250.00 in the said house No. 75 Teresa
Street, Camps Bay, Cape Town, in a black suitcase identified by
Vincent as his. In the suitcase, the South African Police found a
plastic bag, which, as it transpired, contained a batch of N$50.00
notes. Upon being asked as to whom the money belonged, Vincent
allegedly could not, or did not, provide an answer. The money was
found on a top shelf of a cupboard in the house. Since the bag was
locked with a small padlock, Inspector Engelbrecht asked Vincent and
Mike for a key. After Mike had spoken to Vincent in Xhosa or Zulu, he
(Mike) allegedly handed over a bunch of keys taken from a drawer in
the bedside table. On request, Mike allegedly indicated which key to
use in the bundle. Engelbrecht unlocked the bag, opened it and
checked inside before handing the bag full of N$50.00 notes to van
der Walt. The money was identified by Ms Blignaut of BON as being
part of the money stolen during the second robbery. I find that the
South African Police witnesses are truthful and, therefore, that
their evidence is credible.
[26.8] During the trial,
Vincent voluntarily made a statement to C/Inspector Becker on a video
tape which was later transcribed and produced as an exhibit. In that
statement, he endeavoured to exculpate himself and to essentially
incriminate Mike.
[26.9] Print-outs of calls
made from the cell-phone of Mike to that of Vincent show that on
November 13, 2000, three calls were made; on November 17,five calls
were made between 04:25:05 and 21:31:10; and on November 19, three
calls were made.
[26.10] Vincent denies any
involvement in the commission of the crimes charged.
[27] Mr Small submits that
Vincent should, on his own version, be convicted of the alternative
crime of theft in respect of the second count.
[28] On the other hand, Mr
Neves, Vincent’s legal representative, urges the Court to acquit
his client on the ground that the ingredients of theft have not been
proved.
[29] Mr Neves submits that the
alleged crime of theft was committed outside the jurisdiction of this
Court and that, as such, Vincent cannot be convicted by this Court of
the crime.
[30] Attention is here drawn
to the case of S v Mwinga and Others 1995 NR 166 (SC) where
the following observations were made at 171I-J-172A-B:
“In
my view the Namibian Courts, faced with an ‘international law
friendly’ Constitution (Art. 144) and with its already ‘extensive’
jurisdiction in common law, should not base its jurisdiction on
‘definitional obsessions and technical formulations’ but should
stay in step with the other common law Commonwealth countries such as
England and Canada. Thus in order to determine whether the High Court
has jurisdiction in a trans-national crime or offence, all that is
necessary is that a significant portion of the activities
constituting that offence took place in Namibia and that no
reasonable objection thereto can be raised in international comity.”
[31] In casu, it is
common cause that the second robbery with aggravating circumstances
was committed in Namibia. The crime of theft is framed in the
alternative. As previously indicated, it is trite law that theft is a
continuing crime. See: S v Kruger en Andere 1989 (1) SA 785 at
787G-H. In the case of S v Nakale, supra, Strydon JP (as he
then was) and Frank, J remarked at 265A:
“As
theft is a continuing offence there is no such thing as an accessory
after the fact to theft.”
Thus, a person who does what
would for another crime result in such a person being an accessory
after the fact, will be guilty of the crime of theft. See: also S
v Kumbe 1962 (3) SA 197 (N) at 199.
[32] It is clear that
Vincent’s own version of his exculpation cannot reasonably possibly
be true and I find that it is in fact false. The discovery of the
stolen money in his suitcase and his lies in the Cape Town bail
applications especially lies in an endeavour to shield Mike, go to
show that his intention in the matter was not innocent.
[33] I will now consider the
case against and for Mike (Accused 11). The prosecution evidence
shows that on October 6, 2000, he let Namibia by road to return to
South Africa. He came back to Namibia by air with Vincent on October
13, 2000. Both of them stayed at Falazza’s residence in Windhoek
where they were later joined by James. It was Mike that had made
possible the necessary accommodation arrangements for Vincent and
James to stay at Falazza’s residence. Mike used cell-phone No. 081
245 7929 whilst in Namibia.
[33.1] On Wednesday 17, 2000,
four calls were made from Mike’s cell-phone to that of James at
00:59:22; 01:02:14; 01:12:07 and 01:24:19.
[33.2] On November 16, 2000,
five calls were made from Mike’s cell-phone to that of Hendrdick
from 17:24:29 to 23:45:17; on the following day, seven more calls
were made to that of Hendrdick from 08:54:15 to 16:31:06; and on
November 18, four calls were made to that of Hendrick from 15:08:53
to 20:46:01.
[33.3] On November 16, four
calls were made from Mike’s cell-phone to that of Ismael from
14:32:10 to 23:03:23; on the following day, eleven calls were made to
that of Ismael from 11:59:26 to 18:01:53; and on November 18, seven
calls were made to Ismael’s cell-phone from 18:19:13 to 21:42:06.
[34] It is not in dispute that
at about 04h30 on November 22, Mike, Vincent, Brandon, Arvo and
Ismael were all found and arrested in house No. 75 Teresa Street,
Camps Bay, Cape Town. On that occasion, the South African Police had
raided the said house. Also found in that house at about that time
was money amounting to N$909,250.00 in batches of N$50.00 notes which
was contained in the black suitcase identified by Vincent as his.
When asked where a key to a padlock securing the bag that contained
the money was, Mike spoke to Vincent and subsequently handed over a
bunch of keys to the police. On being asked which key could be used
to unlock the padlock, Mike indicated the key, whereupon the bag was
opened and found to contain the money aforesaid.
[35] Mike has given testimony
at length in an endeavour to exculpate himself. He denies having
taken part in the comission of any of the crimes charged. As already
indicated, he submits that the computer print-outs are unreliable and
should thus not be used in evidence. However, this issue has already
been decided and it is here unnecessary to say anything more about
it. It suffices to state that the evidence of the cell-phone
print-outs speaks for itself.
[36] I accept as true the
State’s version of what transpired at the material time at house
No. 75 Teresa Street, Camps Bay, in particular, the conduct of Mike
and Vincent at the critical time. I find that Mike made common cause
in the matter; that his exculpatory version cannot reasonably
possibly be true; and that it is false.
[37] In my view, Mike and
James appear to have played a leadership role in the matter. On the
evidence, it is apparent that Mike was possibly the mastermind in
this case. Seemingly, however, it cannot conclusively be said that
Mike was physically present when the commission of the second robbery
took place on account of the fact that the cell-phone print-out
evidence shows that calls were made between James and Mike at about
the commission of the said robbery. Had they been together at the
time, no such calls could necessarily have been made. But this does
not mean that Mike was not involved in the planning of the commission
of the second robbery in all the circumstances of the case.
[38] Reverting to James, is it
a coincidence that he and Hendrick are (forensically) linked to
Schutt’s Nissan bakkie? I do not think so for I am satisfied, as
already shown, that the blood sample that was left on the Nissan
bakkie belonged to James; and that the said sample had not been
deposited there innocently. I am further satisfied that the
fingerprint found on the dashboard of the Nissan bakkie was that of
Hendrick; and that it had not been left there in innocent
circumstances. Moreover, I am satisfied that the first robbery was
committed for the purpose of facilitating the commission of the
second one. I have no difficulty in finding that the story as to how
James came to sustain his abdominal gunshot wound is a cock – and -
bull story; that Cheeks is a fictitious character; that James is
placed at the scenes of the two robberies by virtue of the blood
sample taken from Schutt’s Nissan bakkie which matched his, as
already indicated; that he is the robber that shot at Kapira, and at
whom Kapira shot, in the shoot-out during the commission of the
second robbery; that he still carries within his body the 9mm
projectile; that Brandon was insistent that James be treated at home
by Dr Nghalipoh in an attempt to conceal the circumstances in which
he had sustained his injury; and that James’ story of having been
accidentally shot is a concoction, and, therefore, not credible. I
find that the evidence of Dr Nghalipoh, his secretary, D/Sgt Shikufa,
D/Sgt Nangolo , the South African Police witnesses and other State
witnesses that testified in the matter is rather credible; that James
made common cause in the matter; that his version cannot reasonably
possibly be true; and, therefore, it is rejected as false.
[39] Returning to MacDonald,
the critical evidence against him comes from Kapira and from his
(MacDonald’s) cell-phone print-outs which to connects him with the
commission of the second robbery.
[40] Mr Murorua raises the
issue that Kapira is a single witness. But evidence of a single
witness suffices to convict an accused person if the witness is
credible and the court is satisfied that the truth has been told.
See: (S v Sauls 1981 (3) 172 (A) 180). I accept the evidence
of Kapira as I find that he is a credible witness and that the truth
has been told. On the other hand, I find MacDonald’s evidence to be
false.
[41] As regards, Hendrick I am
here satisfied that the fingerprint that was lifted from Schutt’s
Nissan bakkie was his; that it had not been left there in innocent
circumstances; that he was involved in both robberies; that he made
common cause in the matter; and, therefore, his evidence is rejected
as false.
[42] Brandon played a crucial
role in facilitating the treatment of James and endeavouring to
conceal the circumstances in which the former had sustained his
serious abdomenal injury.
[43] Bearing in mind all the
evidence before me and my findings, it is evident that the unfolding
panorama in this matter demonstrates that the planning of the two
robberies with aggravating circumstances had entailed a great deal of
care and ingenuity. It is to the credit of the Namibian and the South
African Police who succeeded in putting together the pieces of what
appeared to be a jigsaw puzzle.
[44] In the light of what I
have said in this judgment, I come to the folowing conclusions:
James H Ningise (Accused 1):
Count 1: Guilty as a
perpetrator;
Count 2: Guilty as a
perpetrator;
Count 3: Guilty as a
perpetrator;
Count 4: Guilty as a
perpetrator.
He is convicted on all counts.
MacDonald Kambonde (Accused
2):
Count 1: Not Guilty;
Count 2: Guilty as an
accomplice;
Count 3: Not Guilty;
Count 4: Not Guilty.
He is acquitted on Counts 1, 3
and 4 but convicted on Count 2 as an accomplice.
Hendrick H. Tsibande
(Accused 3):
Count 1: Guilty as a
perpetrator;
Count 2: Guilty as a
perpetrator;
Count 3: Guilty as a
perpetrator;
Count 4: Guilty as a
perpetrator.
He is convicted on all Counts.
Brandon D. O. Similo
(Accused 7):
Count 1: Not Guilty;
Count 2: Guilty as an
accessory after the fact;
Count 3: Not Guilty;
Count 4: Not Guilty.
He is acquitted on Counts 1, 3
and 4 but convicted on Count 2 as an accessory after the fact.
Arvo T. N. Haipinge (Accused
8):
Count 1: Not guilty;
Count 2: Not Guilty;
Count 3:Not Guilty;
Count 4: Not Guilty.
He is acquitted on all Counts.
Ismael Oaeb (Accused 9);
Count 1: Not Guilty;
Count 2: Guilty as an
accomplice;
Count 3: Not Guilty;
Count 4: Not Guilty.
He is acquitted on Counts 1, 3
and 4 but convicted on Count 2 as an accomplice.
Vincent N. Mabuza (Accused
10);
Count 1: Not Guilty;
Count 2: Not Guilty on the main
count but Guilty of the alternate Count of theft;
Count 3: Not Guilty;
Count 4: Not Guilty.
He is acquitted on Counts 1, 3
and 4 but convicted on the alternative count of theft.
Mike S. M. S. Apani (Accused
11);
Count 1: Guilty as a
perpetrator;
Count 2: Guilty as an
accomplice;
Count 3: Guilty as a
perpetrator;
Count 4: Guilty as a
perpetrator.
He is convicted on all counts
as indicated above.
________________
SILUNGWE, AJ
ON BEHALF OF THE STATE:
Mr D. F. Small
Instructed By: Office
of the Prosecutor-General
ON BEHALF OF ACCUSED 1 &
3: Mr W. T. Christians
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED 2, 7, 8 & 9: Mr L. H. Murorua
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED 10:
Mr J. M. B. Neves
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED
11: In Person
CASE NO.: CC 04/2002
IN THE HIGH COURT OF NAMIBIA
In
the matter between:
THE STATE
and
HYACINTH
JAMES NINGISE Accused 1
MACDONALD
KAMBONDE Accused 2
HENDRICK
HENNY TSIBANDE Accused 3
BRANDON
DAVID OMSWA SIMILO Accused 7
ISMAEL
OAEB Accused 9
VINCENT
NDABULA MABUZA Accused 10
MIKE
SANDILE MABENA SKUMBUZA APANI Accused 11
CORAM: Silungwe,
AJ.
Heard on: 2006.02.23-24; 2006.02.28; 2006.03.03; 2006.03.09;
2006.03.17;
Delivered
on: 2006.03.24
______________________________________________________________________________
SENTENCE
[1]
SILUNGWE, AJ: All seven accused have been convicted by this
Court as follows:
James H. Ningise (Accused 1)
and Hendrick H. Tsibande (Accused 3):
Guilty as perpetrators on all
four counts, namely: first and second robberies with aggravating
circumstances; and unlawful possession of a machine gun or machine
rifle and of ammunition in contravention of section 29(1)(a), read
with sections 1, 38(2)(a) and 32(2)(b) of Act 7 of 1996 (the Act);
Mike
S. M. S. Apani (Accused 11):
Guilty on Counts 1, 3 and 4 as
a perpetrator and on Count 2 as an accomplice.
MacDonald
Kambonde (Accused 2) and Ismael Oaeb (Accused 9):
Each Guilty on Count 2 as an
accomplice;
Brandon
D. O. Similo (Accused 7):
Guilty on Count 2 as an
accessory after the after; and
Vincent
N. Mabuza (Accused 10):
Guilty on the alternative count
(to Count 2) of the theft.
At this stage, it is incumbent upon
me to consider what condign sentences should be meted out. In doing
so, I am constrained to bear in mind not only the main objectives
applicable to sentencing, namely: deterrence, prevention, reformation
and retribution, but also the triad of three factors comprising the
nature of the crime or crimes committed, the personal interests or
circumstances of each accused and the interests of the community.
See: S v Tjiho 1991 NR 361 (HC) at 365B-E; S v Van Wyk
1993 NR 426 (SC) at 448B-C. I propose to commence with the personal
circumstances of the accused.
[2] James Ningise (Accused 1) is a
37 year old first offender who attained a Grade 12 standard of
education. He is a South African and a resident of Soweto Township,
Johannesburg. He comes from a family of 13 children; a sister of his
passed away recently as well as his brother, and one of his brothers
is seriously ill. He lost his mother in 1991. Although he is not
married, he has two children, one of whom is 17 years old but there
is no one to pay school fees for him. James once worked in a friend’s
bakery; and at the time of his arrest, he was a freelance male model
and an escort of some well-to-do ladies. He was arrested on November
17, 2000, and he has since been in custody awaiting trial except for
a period of 9 days during which he was an escapee and a further
period of 5 months imprisonment for escaping from lawful custody.
James laments the severe pain and discomfort he is experiencing from
a bullet lodged next to his spine. In addition, his right index
finger has been amputated.
[3] As against the foregoing
personal circumstances, it is reiterated for puposes of emphasis only
that James (Accused 1) and Mike (Accused 11) played a leading role in
their planning to ensure a successful execution of the first and
second robberies. James shot and wounded Kapira during the second
robbery and Kapira returned fire that resulted in James’ agonizing
bullet-pain which he has since been experiencing; in other words, the
bullet remains a thorn in his flesh.
[4] The next accused is MacDonald
Kambonde (Accused 2). He is 35 years old a first offender and a
Namibian citizen. He grew up in Windhoek where he attended school up
to Standard 9 which is the modern equivalent of Grade 11. He is
married and has five children who live with their mother in Windhoek.
He lost his own mother in 1983 who was survived by her husband (his
father) who is now a pensioner. At the time of his arrest on November
17, 2000, he was employed by Professional Security Service CC (PSS)
as a security officer and driver and was earning N$900.00, plus
N$30.00 danger allowance, per month with which he was able to support
his family. He has since lost his job and so also the close
relationship that he used to enjoy with his family. He is currently
busy studying for a degree in Theology; this is his first year and
the course is expected to last 4 years. I pause here to wish him
success in his studies.
[5] At the time of the commission of
the second robbery, MacDonald was driving his company’s armoured
Toyota bakkie, in the process of transporting the sum of N$5.3m from
Windhoek to Ondangwa.
[6] The other crewman was Kapira who
was later shot in the abdomen by James but who survived to give a
narrative of his encounter with the robbers and of what MacDonald did
or omitted to do in the matter.
[7] Had it not been for MacDonald’s
obvious role in planning and co-operating with the robbers, that
robbery would probably not have materialised. His role was thus
critical to the successful execution of the second robbery.
[8] When MacDonald was
cross-examined as he gave evidence in mitigation, it came to light
that at the time that he started working for the PSS company, he was
a trial-awaiting individual on a charge of robbery with aggravating
circumstances. He had previously been employed by Grey Security
Services as a security officer when he was arrested on July 20, 1999.
He was later convicted as charged on October 9, 2002, and sentenced
to 11 years imprisonment. Of course, that conviction does not count
as a previous conviction for the purposes of this case.
[9] I will now consider the personal
circumstances of Hendrick H. Tsibande (Accused 3), a Namibian
citizen. Although he opted not to testify in mitigation (no adverse
inference flows from this as he was exercising his constitutional
right), Mr Christians, his learned legal representative, placed
before me the following personal circumstances from the Bar. Hendrick
is 44 years old and a first offender. Although unmarried, he is a
father of four children, aged between 6 and 14 years, all of whom are
attending school.
[10] At the time of his arrest (on
December 20, 2000) he was a self-employed businessman who owned two
shebeens. He is a qualified plumber and used to do contract work in
his private capacity. Prior to Namibia’s attainment of its
independence in 1990, he was employed as a plumber in the Ministry of
Works (Transport and Communications) for four years.
[11] At the time of his arrest,
Hendrick used to make provision for the maintenance of his children.
He had to sell his businesses in order to meet some of his legal
expenses that had arisen as a result of this case.
[12] He has been in custody,
trial-awaiting, since December 20, 2000, i.e. a period of 5 years and
3 months.
[13] As against his personal
circumstances stands the evidence of his fingerprint lifted from the
dashboard of Schutt’s Nissan bakkie which links him to the
commission of both first and second robberies as that bakkie featured
prominently in both robberies.
[14] This brings me to a
consideration of the personal circumstances of Brandon D. O. Similo
(Accused 7), also a Namibian citizen. This accused opted not to give
evidence in mitigation and what I said in respect of Hendrick applies
to him as well. However, his learned legal representative, Mr
Murorua, placed before me Brandon’s personal circumstances from the
Bar as follows. Brandon is a 32 years old first offender who was
gainfully employed (in the Ministry of Health and Social Services) at
the time of his arrest on November 22, 2000, at 75 Teresa Street,
Camps Bay, Cape Town, South Africa. Since his arrest, Brandon has
spent 5 years and 3 months in custody awaiting the disposal of the
case.
[15] Brandon completed senior
secondary school education (i.e. Standard 10) and attended the
University of Namibia (UNAM) but later dropped out due to financial
constraints. He is a father of two children, a 6 year old son who is
now in Grade 1 and an 8 year old daughter currently in Grade 2.
[16] Brandon’s father passed away
whilst he was in Standard 2. He was survived by this accused’s now
sickly mother who is suffering from a heart disease and also from
high blood pressure. The accused has one elder brother and three
young sisters, plus an ailing and blind grandmother. The accused is a
breadwinner for his family and this has been adversely affected since
his arrest. He gave full co-operation to the authorities from the
time of his arrest and he volunteered to be brought back to Namibia,
following the withdrawal of the bail application in Cape Town.
[17] However, the spirited manner in
which he went about not only to secure medical attention for James
but more importantly to help him evade justice; coupled with the lies
that he told to shield Mike whose cell-phone he had used to contact
Dr Nghalipoh; and the subsequent lies he told to shield both James
and Mike militate against his interests as aggravating factors.
[18] I will now turn to the personal
circumstances of Ismael Oaeb (Accused 9). He is a 35 years old
Namibian citizen and a first offender. He is the second born in his
parents’ family. The parents’ marriage broke down whilst he was
still young. As his mother was not earning much in her job, he opted
to live with his father most of the time. His mother lost her job
while he was in Standard 8. However, he managed to complete schooling
and thereafter went to UNAM for one year, but his lack of financial
support could not allow him to remain there much longer. He had been
studying for a Bachelor of Science Degree.
[19] After his premature departure
from UNAM, he worked for Old Mutual. He later left Old Mutual and got
a job elsewhere as a financial broker, the job he was doing at the
time of his arrest. By then, he had embarked on part-time marketing
studies at the Polytechnic. His parents are alive; and he comes from
a family of four brothers (including himself) and three sisters.
[20] Although not married, Ismael
has 5 children with different mothers. At the time of his arrest, he
was supporting two of those children.
[21] He is now pursuing a 4 year
degree course in Theology and he already has obtained certificates in
biblical studies. I wish him success in his academic endeavours.
[22] Ismael has been in custody
awaiting trial for 5 years and 3 months. He implores the Court to
exercise mercy upon him by giving him a suspended sentence.
[23] Mr Murorua submits on Ismael’s
behalf that his criminal conduct consists of renting a house at 1709
Agnes Street, Khomasdal, at which the then seriously wounded James
was treated by Dr Nghalipoh. However, the truth of the matter is that
Ismael’s criminal conduct goes beyond that.
[24] Not only did he make common
cause with James and Mike during the planning stage, but he also told
lies to protect them; he drove to Cape Town using his VW Golf car and
travelled with, inter alia, Brandon; at the South
African-Namibian border, he travelled in his car with Mike, the
latter being behind the steering wheel; he was found by the South
African Police at house No. 75 Teresa Street, Camps Bay, Cape Town,
wherein the sum of N$909 250.00 was found, some five days after the
robbery had occurred, which was part of the money stolen during the
second robbery in Windhoek; and he told lies in an effort to shield
Mike against detection. So much for Ismael.
[25] Time has now come for me to
consider Vincent’s personal circumstances. He is a South African
citizen and a first offender aged about 34 years and 8 months. He was
born in Nelspruit, South Africa. He is neither married nor has he
fathered any children. He attended school in Swaziland up to Grade 12
and thereafter became a soccer player with a monthly income of
R3000.00. He is in possession of a coaching certificate, presumably
in soccer. His parents have both passed away but he has two brothers
and two sisters, one of whom passed away in 2001.
[26] Vincent has been rendering
financial support to his brothers, including paying their school fees
and buying them clothes. Since his incarceration in respect of this
case, he has been unable to fulfil his obligations towards his
brothers.
[27] As Vincent grew up, he only had
bare necessities of life and his parents used to sell fruits and
vegetables from their garden.
[28] He has been in custody awaiting
trial since November 22, 2000, that is, a period of 5 years and 3
months. He co-operated fully with the police.
[29]
He concedes that although he told lies during the bail application
in Cape Town, once he was brought to Namibia, he told the truth. He
volunteered a statement to Commissioner Becker not to gain favourable
treatment but because he was innocent.
[30] Mr Neves submits on
Vincent’s behalf that his client was not at all a leading figure in
this matter; that the role he played was significantly less than that
of the other accused; that he is a positive, intelligent and
co-operative person; that he is good human material; and that he is
not a danger to society.
[31] It now remains for me to
consider the personal circumstances of Mike S. M. S. Apani who, at
this stage, continues to represent himself. He hails from Durban but
has a house in Johannesburg where he and his family live. But his
mother lives in Durban. He is a 38 year old South African and a first
offender. He is married with 6 children two of whom with his wife.
Three children from other women live with his mother in Durban, a
pensioner. The fourth one, who is aged 4 years and 9 months, lives in
Namibia with the Namibian mother. His eldest son is 22 years old and
has completed Grade 12 standard of education but he is still
unemployed. Two girls are aged 17 years and 10 years, respectively
and two other sons are aged 11 years and 7 years, respectively. He
comes from a family of two: his young sister and himself. He attained
Grade 12 standard of education and became self-employed. He deals in
smashed motor vehicles, rebuilds them and then sells them. He owned
two mini buses that he operated as taxis which gave him about
R5000.00 –R6000.00 per month (presumably put together). After his
arrest, the bus service came to an end. Recently, he received a
message from Johannesburg to the effect that his house rent had
fallen into arrears amounting to R20,000.00 which has accumulated
over the past four years and is now due and owing to the
Municipality.
[32] He implores the Court to take
into account the period of about 5 years and 4 months spent in
custody trial-awaiting.
[33] He prays for mercy to be
exercised in his favour so that sentences to be passed run
concurrently.
[34] During cross-examination,
he told the Court, inter alia, that when he was arrested in
this case, his Namibian girlfriend was pregnant. He is aware of the
Karibib robbery case (S v Willem Swartz and Others CC
108/1999) in which the accused, some of whom South Africans, were
convicted of robbery with aggravating circumstances involving N$4,5m,
which resulted in prison sentences ranging from 8-20 years.
[35] He testified that
although he had been described as the mastermind in this case, there
was no evidence to that effect. As was shown in the judgment on the
merits, there was no dispute that he had arranged accommodation at
Falazza’s residence not only for himself, but also for James
Ningise and Vincent Mabuza; that when crossing the border into South
Africa, he was the one that drove, not his own BMW car, but Ismael
Oaeb’s VW Golf car; among the accused there present, he was the
only South African; they all ended up in house No 75 Teresa Street,
Camps Bay, Cape Town; it is not in dispute that he knew the landlady;
I accepted the evidence of the South African Police officers who had
raided that house; their evidence shows that Mike prodced a bunch of
keys and on being asked which one could unlock a padlock securing a
plastic bag, that after speaking to Vincent Mabuza in Xhosa or Zulu,
Mike pointed out the key that unlocked the padlock and part of the
money in Namibian currency - the subject of the second robbery - was
found therein and became an exhibit; and reference was further made
to cell-phone calls that had been made during and around the material
times, let alone the fact that Mike’s cell-phone had been used by
Brandon Similo for the purpose of inviting Dr Nghalipoh to attend to
the then seriously wounded James Ningise. I was thus persuaded to
come to the conclusion that Mike Mabena was possibly the mastermind
in the matter and have no hesitation in affirming this conclusion.
[36] It is time now to reflect
on the nature of the crimes for which the accused stand convicted as
well as on the interests of the community.
[37] It is indisputable that
the two principal charges, to wit: the first and second robberies
with aggravating circumstances are “extremely serious offence(s)”.
See: S v Nombeulu 1996 (2) SACR 396 (E) at 406i-j – 407a; S
v Mathews Matheus judgment case number CA 74/2000 delivered on
December 21, 2001 (unreported); James Boetie David v The State
CA 5/1995; and S v Willem Swartz and Others CC 108/1999. These
crimes were not only premeditated but were, more importantly,
ingeniously planned and executed. A most aggravating feature of the
second robbery in particular was the blatant and ruthless use of
violence with a machine firearm thereby occasioning serious bodily
harm to Kapira and obviously exposing him to grave danger to his
well-being and to his life, let alone the damage that was caused to
the PSS Toyota bakkie and the disappearance of N$5,3m. As Jones, J.
aptly remarked in S v Nombeulu, supra, at 407d-e:
“This kind of violence is
becoming more and more prevalent. People who commit it show no mercy
to their victims. They should know that their conduct warrants their
removal from society. Even first offenders who commit a violent armed
robbery like this should expect to serve a long term of imprisonment
when they are brought to justice. Society requires this for its
protection and as a mark of its disapproval. It is also necessary for
proper rehabilitation. Criminals capable of this degree of violence
need to learn new values.”
[38] And this Court, after
referring to certain authorities regarding the crime of robbery, had
this to say in Mathews Mathews, supra, at p.10:
“We find ourselves in
agreement with these judgments. In addition to its seriousness, the
crime has become significantly more prevalent in this jurisdiction
during recent years. As in the case of the Republic of South Africa,
our country too ‘at present suffers unprecented, uncontrolled and
unacceptable wave of violence, murder, homicide, robbery and rape. A
blatant and flagrant want of respect for the life and property of
fellow human beings has become prevalent. The vocabulary of our
courts to describe the barbaric and repulsive conduct of such
unscrupulous criminals is being exhausted. --- A court must be
thoroughly aware of its responsibility to the community, and by
acting steadfastly, impartially and fearlessly, announce to the world
in unambiguous terms its utter repugnance and contempt of such
conduct.’”
(per Lombard, J., in S v
Matolo en ‘n Ander 1998 (1) SACR 206 (O))
[39] Further, in S v Steve
Rico Kamahere and Kamaeibe Kazongaga, CC 89/1996, in a judgment
delivered on November 14, 1997 (unreported), Strydom, JP (as he then
was) said:
“[I]n my opinion the
aggravating circumstances present in the case by far overshadow the
mitigating circumstances placed before the Court. The society must
know that in circumstances such as these, the Court will step in and
protect those who are peaceful and orderly and will also protect
their possessions against robbers and thieves and this is also the
message the Court must send out to other would be offenders.”
[40] Mike Mabena has, in
particular, invited the Court to pass a concurrent sentence (as have
James Ningise and Hendrick Tsibande in regard to Counts 1 and 2); and
a “totally suspended sentence” has been pleaded on behalf of
Vincent Mabuza. It is here apposite, in the context of this case to
refer to the observations made in S v Karg 1961 SA 231 (A) at
236A-B:
“It is necessary to bear
in mind that if sentences for serious crimes are too lenient, the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their hands.”
[41]
This was affirmed in S v Tcoeib 1992 NR 198 (HC) at 204A-C:
“It is not wrong that the natural indignation of interested
persons and of the community at large should receive some recognition
in the sentences that Courts impose, and it is relevant to bear in
mind that if sentences for serious crimes are too lenient, the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their hands.”
[42] None of the accused shows
any remorse as they all stubbornly maintain their innocence in the
matter.
[43] Mr Christians implores
the Court, on behalf of James Ningise and Hendrick Tsibande, that
sentences on Counts 1 and 2 should be ordered to run concurrently
while sentences on Counts 3 and 4 should be taken together for
purposes of sentence.
[44] While I find merit in Mr
Christian’s submission concerning Counts 3 and 4, I do not accept
the submission in regard to Counts 1 and 2 as these crimes were
perpetrated on different occasions and especially that the commission
of the first robbery was designed to facilitate the commission of the
second one.
[45] It is submitted by Mr
Murorua on behalf of MacDonald Kambonde and Ismael Oaeb (Accused 2
and 9) that these accused did not play a leading role in the planning
and execution of the second robbery.
[46] In the light of the
evidence adduced in casu, I am satisfied that both accused
were cognizant of the criminal game plan; moreover, MacDonald
Kambonde was, in particular, obviously a participant in both the
planning and the execution of the second robbery. And for Ismael to
have rented the facility at No 1709 Agnes Street, Khomasdal, well in
advance of the second robbery and to have placed the said facility at
the disposal of at least one of the robbers, he obviously knew pretty
well what the purpose of the facility was. As regards, MacDonald, it
is clear from Kapira’s evidence that he deliberately facilitated
the commission of the second robbery as he made common cause with the
robbers for his anticipated personal gain and sheer avarice. As
previously indicated, without MacDonald’s acquiescence and his role
in the criminal game plan, it is unlikely that the second robbery
could have taken place as it did.
[47] Mr Murorua further
submits that the sentence currently being served by MacDonald for
robbery with aggravating circumstances be made to run concurrently
with the sentence to be imposed by the Court. I am not persuaded by
Mr Murorua as I do not think that MacDonald deserved such treatment.
[48] Coming to Brandon, Mr Murorua
asked the Court to exercise its discretion, and to thus impose a
caution and discharge or alternatively to impose a sentence of
imprisonment for two years wholly suspended on the usual conditions.
My immediate response is that I consider this submission to be
misconceived.
[49] Mr Neves submits on behalf of
Vincent Mabuza that the Court, in the exercise of its discretion,
should consider passing a totally suspended sentence. In the
circumstances of this case, I consider that there is no merit in this
submission.
[50] As I have already dealt with
Mike Mabena’s submission concerning concurrent sentences on the two
robbery charges, it is unnecessary to add to what I have already
said.
[51] In the interests of
consistency, I bear in mind the sentences passed by Maritz, J (as
then was) in S v Willem Swartz and Others, supra, although
that case is distinguishable in certain respects, for instance, the
N$4.5m which had been the subject of the robbery, was recovered
whereas, in casu, only the sum of just over a million Namibian
dollars was recovered.
[52] In sentencing the
accused, I am mindful of their respective blameworthiness, their
personal circumstances as well as the time they have spent in custody
awaiting the disposal of this case.
[53]
Consequently, the accused are sentenced as follows:
James
Ningise (Accused 1):
Count
1: 15 years imprisonment
Count
2: 20 years imprisonment
Counts 3 and 4: are taken
together for purposes of sentence. 3 years imprisonment which is
ordered to run concurrently with the sentence in Count 2. The
sentences in Counts 1 and 2 are ordered to run consecutively. i.e.
the accused will serve an effective term of 35 years imprisonment.
MacDonald
Kambonde (Accused 2):
Count 2: 20 years imprisonment
which is ordered to run consecutively to the sentence currently being
served.
Hendrick
H Tsibande (Accused 3):
Count
1: 15 years imprisonment
Count
2: 20 years imprisonment
Counts 3 and 4: are taken
together for purposes of sentence. 3 years imprisonment which is
ordered to run concurrently with the sentence in Count 2. The
sentences in Counts 1 and 2 are ordered to run consecutively. i.e.
the accused will serve an effective term of 35 years imprisonment.
Brandon
D. O. Similo (Accused 7):
Count 2: 10 years imprisonment 3 years of which are suspended for a
period of 5 years on condition that the accused is not convicted of
robbery with aggravating circumstances or of the crime of being an
accessory after the fact, committed during the period of suspension.
The accused will thus serve an effective term of 7 years
imprisonment.
Ismael
Oaeb (Accused 9):
Count 2: 15 years imprisonment
3 years of which are suspended for a period of five years on
condition that the accused is not convicted of robbery with
aggravating circumstances or being an accomplice, committed during
the period suspension.
Vincent
Mabuza (Accused 10):
Theft: 8 years imprisonment 3
years which are suspended for a period of 5 years on condition that
the accused is not convicted of theft committed during the period of
suspension.
Mike
S. M. S. Apani (Accused 11):
Count
1: 15 years imprisonment
Count
2: 20 years imprisonment
Counts 3 and 4: are taken together
for purposes of sentence: 3 years imprisonment which is ordered to
run concurrently with the sentence in Count 2. The sentences in
Counts 1 and 2 are ordered to run consecutively. i.e. the accused
will serve an effective term of 35 years imprisonment.
[54]
In regard to the disposal of exhibits, I make the following orders:
[54.1] In terms of section 34(1)(b)
of the Criminal Procedure Act, 1977 (the Act), it is ordered that the
money as listed in Exhibit “ BON 1” (N$500,000.00) and in Exhibit
“BON 2” (N$409 250.000) in N$50.00 Dollar notes presently in
safekeeping at the Cash Service Centre of the First National Bank
Limited in Windhoek, being part of the money robbed on November 17,
2000, from City Savings and Investment Bank, while being transported
by PSS, and retrieved by the Namibian and South African Police
Services, be returned to First National Bank.
[54.2] In terms of section
34(1)(b) of the Act, it is ordered that the Exhibits, namely: money
in the amount of N$205 000 at present in safekeeping by the
Commanding Officer Serious Crime Unit of the Namibian Police, being
part of the money robbed on November 17, 2000, from City Savings and
Investment Bank, while being transported by PSS and retrieved by the
Namibian Police, be returned to First National Bank.
[54.3] In terms of section
34(1)(a) of the Act, 1977 it is ordered that the Exhibits, to wit:
money of which the note numbers are listed in Exhibit FNB at present
in safekeeping at the Cash Service Centre of the First National Bank
Limited in Windhoek, be returned to First National Bank Namibia
subject to return of the moneys due to Immanuel Handjaba Kaukungua
and Joseph Heinrich insofar as it was taken from their respective
bank accounts.
[54.4] In terms of section
34(1)(a) of the Act, it is ordered that Exhibit “1”, the passport
of Ismael Oaeb, be returned to him.
[54.5] In terms of section
34(1)(a) of the Act, 1977 it is ordered that Exhibit “3”, the
passport of Mike Sandile Mabena, be returned to him.
[54.6] In terms of section
34(1)(a) of the Act, 1977 it is ordered that Exhibit “4”, the
passport of Brandon David Omswa Similo, be returned to him.
[54.7] In terms of section
34(1)(a) of the Act, 1977 it is ordered that Exhibit “5”, the
passport of Arvo T. N. M Haipinge, be returned to him.
[54.8] In terms of section
34(1)(a) of the Act, 1977 it is ordered that Exhibit “6”, the
passport of Hyacinth James Ningise be returned to him.
[54.9] In terms of section
35(1)(a) of the Criminal Procedure Act, 1977 the following Exhibits
are ordered forfeited to the State:
[54.9.1] Exhibit “7” : R5
Machine gun No. 309094 & Magazine
[54.9.2] Exhibit “14” : Red
Nokia 8210, serial No.
449306/10/261261/1 with sim
card
[54.9.3] Exhibit “15” : Silver
Nokia 8850 serial No.
448901/10/589070/0
[54.9.4] Exhibit “16” : Grey
Motorola serial No. 448835-41-432796-4
[54.9.5] Exhibit “17” : Blue
Nokia 6150 serial No. 493006/30/3866116
[54.10] In terms of section
34(1)(a) of the Act, but subject to the orders set out hereinbefore
and to the fact that certain items so listed were handed to the
accused on July 08, 2005 and July 20, 2005, it is ordered that the
items listed in Exhibit “Y5” (Copy of the Exhibit Register of the
South African Police) and in Exhibit “GG” (Items confiscated at
house No. 75, Teresa Street, Camps Bay) including Exhibit “23”
the Brown Checkered bag, Exhibit “24” Green, black orange
Lodestar suitcase, Exhibit “25” One Black Adidas sling bag,
Exhibit “26” One Blue Sure Travel bag, Exhibit “27” One black
suitcase, Exhibit “28” One Black Adidas bag and the South African
ID of Mike S. M. S. Apani be returned to the Namibian Police to be
handed back to the appropriate accused. (if the accused may lawfully
possess such articles).
_________________
SILUNGWE, AJ.
ON BEHALF OF THE STATE:
Mr D. F. Small
Instructed By: Office
of the Prosecutor-General
ON BEHALF OF ACCUSED 1 &
3: Mr W. T. Christians
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED 2, 7, 8 & 9: Mr L. H. Murorua
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED 10:
Mr J. M. B. Neves
Instructed By:
Directorate of Legal Aid
ON BEHALF OF ACCUSED
11: In Person
S v Ningise and Others (CC4/02 ) [2006] NAHC 5 (22 February 2006);