[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during the trial, his mandate to act for Mike was withdrawn.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 OlhOO 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. Nl 1322W, 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 OOhlO, 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;
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
V2000
(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 entitied 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
wrqwrtnnrp
tn henr in minH 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 Proeeduce, 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 prepayment. 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 - 06hl0 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
cellphone 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 OlhOO 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 cellphone
print-outs, Mr Murorua submits on behalf of MacDonald and the other
clients of his (Accused 7, 8 8s 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 printouts 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
cellphone 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 cellphone 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 OOhlO, 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. Nl
13228W. And at OOhlO 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 is 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
Nakcde, 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 vKumbe
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.
S v Ningise and Others (CC 04/2002) [2006] NAHC 51 (22 February 2006);