S v Kenyoka and Others (CC 3 of 2004) [2009] NAHC 102 (03 July 2009);
CASE NO.: CC 03/2004
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MUNUMA PROGRESS KENYOKA 1ST APPLICANT
SHINE SAMULANDELA SAMULANDELA 2ND APPLICANT
MAKENDANO MANUEL MANEPELO 3RD APPLICANT
ALEX SINJABATA MUSHAKWA 4TH APPLICANT
DIAMOND SAMUNZALA SALUFU 5TH APPLICANT
FREDERICK NTAMBILWA ISAKA 6TH APPLICANT
HOSTER SIMASIKU NTOMBO 7TH APPLICANT
BOSTER MUBUYAETA SAMUELE 8TH APPLICANT
JOHN MAZILA TEMBWE 9TH APPLICANT
ALEX MAFWILA LISWANI 10TH APPLICANT
and
THE STATE RESPONDENT
CORAM: MANYARARA, A J
Heard on: 01 June 2009
Delivered: 03 July 2009
JUDGMENT
MANYARARA, AJ.: [1] This is my judgment on the application for leave to appeal to the Supreme Court heard on 1 June 2009.
[2] The applicants are not legally represented; Mr. Small, with him Ms Lategan, represent the state as they have done throughout these proceedings.
[3] Twelve persons initially appeared before this court charged with High Treason and related offences (the accused). At the time, all the accused were, between them, represented by Mr. Grobler and Mr. Ndauendapo, respectively, on the instructions of the Directorate of Legal Aid. Mr. Grobler and Mr. Ndauendapo will hereinafter be referred to as the “defence Counsel.”
[4] When the charges were put to the accused, they all entered special pleas that this Court has no jurisdiction to try them. They led evidence in support of their special plea and the state led evidence opposing the special plea. After hearing and considering all the evidence and submissions made by the respective counsel, the issue was struck off.
[5] The accused then launched an application for my recusal. This was also opposed by the state. After hearing and considering all the submissions made, this application was dismissed.
[6] The charges were again put and all the accused refused to plead. A plea of Not Guilty was then entered on behalf of each accused as required by law.
[7] The state led evidence on the charges but the accused elected not to cross examine the witnesses and refused to instruct defence counsel to cross examine.
[8] At the close of the state case the accused applied for their discharge and the application was dismissed.
[9] The issue of lack of legal representation for the accused has been raised in the present application. This issue was disposed of at the trial as follows:
“(1) It is on the record of this trial that the Directorate of Legal Aid granted the accused legal representation in the persons Mr Grobler and Mr Ndauendapo to defend the accused against the charges which have been laid against them in these proceedings.
(2) It is also on record that the accused refused the legal representation granted by the Directorate to defend them in this trial, and refused to give any instructions to counsel present in court to defend them. The accused insisted that the only legal representation they wanted was legal representation to challenge Namibia’s presence in Caprivi.
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It is further on record that the Directorate of Legal Aid informed the accused and that the Director came personally and informed the court that it was impossible for the Directorate to provide the type of legal representation suggested by the accused.
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It is on record too, that it was in the above circumstances that the two counsel provided by the Directorate ceased representing the accused and the accused were thus left without legal representation out of their own choice.”
[10] However, the Court requested the two counsel to remain in attendance in case the accused changed their minds and decided to instruct them after all. This, the accused did not do. At one stage the accused laid a complaint with the Law Society that the two counsel were in Court as “window dressing.” The two counsel were thus compelled to ask the Court to excuse them and the Court had no alternative but to grant the request.
[11] Thereafter, the accused refused to attend the trial although it was made abundantly clear to them that they were entitled to attend and participate in the trial and that it was in their best interest to attend and listen to the state evidence after which they may be minded to challenge the evidence or certain aspects of the evidence. The Court also caused the accused to be brought individually into Court to explain to each accused why the trial would take place in the absence of the accused. But the exhortation and explanation also made no impression whatsoever on the accused.
[12] The Court further explained to the accused that in terms of our law allegations made from the dock, that they are not Namibians, do not constitute evidence; in order to constitute evidence, the accused must take the witness stand and give evidence in support of the allegations, on which they would be cross examined just like any other witness. This explanation was also disregarded. In the result, the Court finally ruled that the allegations were irrelevant, dismissed the allegations and put the accused on their defence.
Therefore, the Court will not permit the issue of lack of legal representation to be raised again and the issue is closed.
[13] Two of the accused were acquitted in the course of the trial upon the concession by the state that it had not made out a case beyond reasonable doubt against them. The rest of the accused were convicted of High Treason and sentenced to varying terms of imprisonment.
[14] The erstwhile accused (now applicants) have applied to the Court for leave to appeal to the Supreme Court against their conviction and sentences and the application is opposed.
[15] The law on granting or refusing an application for leave to appeal is clear and it is precisely as the state has submitted, that this Court does not have an unimpeded right to grant leave to appeal to the Supreme Court; before this Court can grant such leave, it has to be satisfied that there are reasonable prospects of success on appeal. This is how the Court approached the applicants’ application for leave to appeal against sentence, i.e. after perusing (reading) the documents, the Court was convinced that there are reasonable prospects of success on appeal, in that another Court might arrive at a different conclusion and alter the sentences. And it is on that basis that the Court has granted leave to appeal against sentence only.
[16] A similar approach has been adopted on the application for leave to appeal against conviction covering the special plea on jurisdiction, my recusal, the applicants’ Namibian nationality, conditional discharge etc. One has only to read the record to realize that it is beyond dispute that it is of the applicants’ making that they were convicted of the offence charged, High Treason, by refusing to give evidence or to instruct counsel to challenge state evidence, insisting that they only wanted the Directorate of Legal Aid to get them lawyers who would challenge Namibia’s occupation of Caprivi and so on. The request could not be granted for reasons which are adequately dealt with in my judgment on that issue.
[17] The record shows that, after my refusal to recuse myself, I went out of my way to assist the applicants in the trial but they spurned (rejected) the offer and did their worst to disrupt the trial by singing and shouting and sloganneering, to the extent that they were constantly reminded to show respect to the proceedings and, ultimately committed for contempt of court and excluded from the rest of the trial unless they changed their behaviour, which they flatly refused to do.
[18] As a result, the only evidence before the court came from the state and, in the absence of any challenge, the Court was left in no doubt that the state had proved beyond reasonable doubt that the applicants were guilty of High Treason and convicted them accordingly. The Court adheres to its judgment, to which reference should be made, and the Court is of the firm view that, on the record as it stands, there are no reasonable prospects of success on appeal against conviction and the application is dismissed.
[19] In conclusion, let me make it clear that as leave to appeal against conviction has been refused, the applicants may still petition or apply to the Supreme Court to grant them leave to appeal against conviction. But they should not wait to come before the Supreme Court on the sentence part of the application, which has been successful, and then suddenly raise the issue of conviction in respect of which leave to appeal has been refused. The appeal to the Supreme Court should be presented as one matter for that Court’s decision.
[20] For the record, although it is not the normal practice to read the whole of such a judgment but to announce only the result, I have read the judgment to give the applicants the advantage of professional interpretation and a copy of the judgment will be provided to each applicant through Mr Shikuambi.
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MANYARARA, AJ
ON BEHALF OF THE APPLICANTS In Person
ON BEHALF OF THE RESPONDENT Adv. Small
assisted by: Adv. Lategan
Instructed by: Office of the Prosecutor-General