CASE
NO. CC 20/2008

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

IMMANUEL
ISAKO ACCUSED 1

WILLEM
PETER ACCUSED 2

GERT
NUXABEB ACCUSED 3

JAFET
NUXABEB ACCUSED 4

JOHN
KHAMUXAB ACCUSED 5

JOHANNES
HEIKI ACCUSED 6

CORAM: MULLER,
J.

Heard
on: 17 September 2009

Delivered
on: 03 December 2009

JUDGMENT

MULLER,
J.: [1] In
more than one respect 06December 2006 was a faitful day in the lives
of several persons. During that night Daniel Jansen Van Vuuren lost
his life and six persons were charged with a number of offences. Of
these six persons five are accused persons before this Court, namely
accused 2 to 6. Before the trial accused 1 died while he was in
custody. When this trial commenced on 17 September 2009 accused 2 to
6 faced a wide range of charges, which I will describe in detail
hereunder. The trial lasted for 29 days until 29 October 2009 when
the evidence have been concluded. The trial was then postponed until
01 December 2009 for submissions. I shall hereinafter refer to
accused number one as Isako and to the other accused as accused 2,3,4
or 5, respectively. Accused 2 to 5 were represented by Mr Boris
Isaacks instructed by the Directorate of Legal Aid and accused 6 by
Ms Lucia Hamutenya, also instructed by the same directorate. Mr
Campher represented the State. As mentioned accused Isako had died
before the trial commenced.

[2] On
the first day of the trial the charges were put to the accused, who
pleaded as set out hereafter. Both counsel acting for the accused
confirmed that their pleas were in accordance with their
instructions. No plea explanations in respect of any of the accused
were offered and no admissions were made in terms of Section 220 of
the Criminal Procedure Act, No. 51 of 1977, as amended (CPA). Accused
2 to 5 were all charged with 6 different counts, namely murder, stock
theft; theft of the rifle of the deceased and 45 cartridges, an
ammunition box, a telescope, a cartridges belt and 12 compact discs,
as well theft of the deceased’s motor vehicle with an
alternative of contravening section 83(2) of Act 22 of 1999, namely
the use of that motor vehicle without the owner’s consent,
defeating the cause of justice by hiding the items mentioned in the
third charge, including the skin of the head of cattle and a
contravention of the Stock brands Act no 24 of 1995, namely by
altering mutilating on cancelling the registered brand on the said
heifer. All 4 accused, namely accused 2 to 5 pleaded not guilty to
all these charges.

Accused
6 was charged with murder; stock theft; theft of the items referred
earlier; defeating the cause of justice by hiding those items,
contravening section 17(1)(f) of the Stock Brand Act 24 of 1995,
namely by altering the brand mark on the skin of the head of cattle,
as well as 2 charges of contravening sections 2 and 33 of the Arms
and Ammunition Act no. 7 of 1996, namely the possession of a point
0.308 rifle and possession of 5×0.375 cartridges. Accused 6
pleaded not guilty to all these charges.

[3] Not
less than 23 witnesses testified for the State, while all five
accused testified under oath. Several exhibits, both documentary and
specific items were handed in, numbered and identified by several of
the witnesses. Two trials-within-a-trial in respect of the
admissibility of pointings out and a warning statement were conducted
during the course of the main trial.

[4] It
is impossible to refer to the evidence of the State witnesses in
detail. However, much of the evidence is in fact a common cause and I
shall attempt hereinafter to summarise the events of that day and
thereafter with regard to evidence that were not in dispute in order
to provide a background picture of what occurred. The evidence that
were disputed during the trial will be analysed thereafter in more
detail.

Background
based on undisputed evidence:

[5] ● The
deceased was a professional hunter and employee of Mr Gunther
Heimstadt at the farm Holstein.

● The
deceased was at the farm where his parents lived on the afternoon of
06 December 2006 and his mother observed no injury on his body.

● The
deceased attended a function for clients hosted by his employer Mr
Gunther Heimstandt during the evening of 06 December 2006 and when he
did not turn up for work the next morning, a search for him ensued.

● Accused
1, Isako, was employed at Standard bank, Outjo and lived with a
girlfriend
Elizabeth
Garises, who also worked in his shebeen. Isako also had a brick house
in a township in Outjo and owned a white Mazda pick-up, which was
used the night of 06 December 2006

● Accused
2 knew Isako and did work in his garage on the white Mazda bakkie.

● Isako’s
vehicle did not start after being switched off and had to be pushed.

● During
the afternoon of 06 December 2006 accused 2 went to the house where
accused 3,4 and 5 resided and requested them to accompany him and
Isako later that afternoon to assist in pushing Isako’s vehicle
and loading a wedding cow.

● Isako
and accused 2 picked up accused 3-5 at the house where they were
residing with Isako’s vehicle later the afternoon.

● At
the Engen service station at Outjo Isako filled his vehicle with
fuel, put in oil and bought 2 tins of gun-gum.

● Around
sunset these 5 persons left Outjo and drove towards Kamanjab, where
they later turned off on a gravel road to farm Elandsputz, where
Isako apparently farmed on Gryspos.

● At
Gryspos accused 6 who was employed by Isako to look after his live
stock and his wife resided in a house.

● Two
young boys, namely Reinhold Sixub and Marius An-Aobeb also resided at
Gryspos and were also at the house where accused 6 lived.

● Isako
and accused 2-5 and Marius and Sixub left with the vehicle of Isako,
who also took his rifle and a spot light along.

● The
party drove back on the gravel road and turned in the direction of
Kamanjab on the tarred road.

● At
a resting place they stopped and Isako connected the spot light to
the battery of the vehicle and then accused 2 drove further in the
direction of Kamanjab with Isako on the back of the vehicle with his
rifle.

● Cattle
were spotted on the left hand side of the road in a camp.

● Isako
shot one of the cattle. That head of cattle that Isako shot was
pulled through the fence and loaded on Isako’s vehicle.

● After
the head of cattle was loaded, Isako turned the vehicle on the tarred
road in the direction of Kamanjab.

● A
vehicle approached from the direction of Outjo and it’s lights
were flashed. Isako turned his vehicle around and it came to the
standstill facing in the direction of Outjo. The vehicle of the
deceased passed and stopped some distance further.

● Isako
approached the vehicle of the deceased. He and the deceased talked,
whereafter the vehicle of the deceased was driven closer to that of
Isako.

● After
further conversation between the deceased and Isako, the latter shot
the deceased. The deceased was dragged from the road into the grass
by Isako.

● When
the lights of an approaching car was seen, Isako got into the vehicle
of the deceased and drove away.

● Accused
2-5 stayed with Isako’s vehicle and attempted to get it going.

● After
the approaching car had passed, Isako returned with the deceased’s
vehicle. From there accused 2 drove Isako’s vehicle and Isako
followed with the deceased’s vehicle.

● Both
vehicles stopped and Isako removed several items from the deceased’s
vehicle, including the deceased rifle and other items which he put it
in his vehicle.

● The
deceased’s vehicle was left there and all the accused, together
with Sixub and Marius drove back to Gryspos. At Gryspos the head of
the cattle that was shot and which was on Isako’s vehicle, was
offloaded and slaughtered.

●
On the instructions of Isako the items belonging to the deceased, as
well as Isako’s rifle were taken and hidden on the farm by
accused 6. Marius and Sixub left and went to sleep.

● Isako
and accused 2-5 left with Isako’s vehicle to Outjo with the
meat of the slaughetered head of cattle loaded on the vehicle.

● At
Outjo the meat was offloaded at Isako’s brick house.

● Isako
took the other accused to the house where accused 3,4 and 5 resided.

●
None of the accused (2-5) informed the police or anybody else what
had happened that evening.

● Reservist
police officer Herridge discovered that Isako bought gun-gum at the
Engen service station.

● Isako
and accused 2 were apprehended by the police.

● Accused
2 accompanied the police to the residence where accused 3,4 and 5
were staying and they were similarly apprehended.

● On
08 December 2006 several police officers went to the farm Gryspos
where the items that accused 6 had hidden were fetched by him and
handed over to the police.

● Accused
6 was also apprehended and taken back to Outjo.

● The
State witnesses, Paulus Naholo and Hermograde Karunga, who were
employed by Mr Paul Stommel at the farm Molden heard two shots the
evening of 06 December 2006 and upon investigation with a tractor,
observed a place where cattle was shot and saw blood spoors from a
camp on farm Molden through the fence towards the tarred road. They
also observed the body of the deceased.

● After
a search for the deceased, his body was found the morning of 07
December 2006 in the grass close to the road at farm Molden of Mr
Paul Stommel.

● Photos
were taken by two police officers, namely Constable Alex Mwendera and
Sergeant Reinharld Doeseb, both of the Scene of Crime Investigation
unit. They took photos of several points pointed out by accused 2,6
and other State witnesses.

[6] Throughout
the trial witnesses referred to the specific head of cattle that was
shot by Isako and which is the subject-matter of the second charge of
stock theft, either as “the
cattle”
or “the
cow”.
“Cattle”
is of course the plural and one head of cattle and cannot be referred
to as “the
cattle”.
The reference to it as “the
cow”
during the trial does not denote it’s gender, but its rather an
attempt to refer to it in the singular. The correct dictionary word
for a single head of cattle is a “neat”, which I believe
is a foreign word to many people. The animal in second charge is a
“heifer”,
although that description does not really conform with the evidence
presented in this Court. I shall in this judgement refer to the
specific head of cattle that was shot by Isako as a “cow”,
which is not any reference to its gender, and is done solely for the
purpose of identification of the particular animal.

[7] Photos
contained in two photo plans were handed in a exhibits C and D.
Constable Mwendera took the photos and compiled the photo plan,
marked exhibit C, while Sergeant Doeseb was the photographer of the
photos in the photo plan marked exhibit D. Sergeant Doeseb also
identified certain physical items that he photographed on the scene,
as well as the items that were pointed out by accused 6 to Constable
Gariseb and later shown by Gariseb to Sergeant Doeseb for the purpose
of taking photos. These items were handed in as exhibits. The defence
did not cross-examine Constable Mwendera at all, while the cross
examination of Sergeant Doeseb was only directed at the brand mark
that appears on the skin of the cow that was slaughtered and the
exhibits contained in sealed envelopes handed in by himself to the
National Forensic laboratory for analysis.

[8]
It is necessary to refer to some of these photos. I shall first deal
with the photos contained in exhibit C.

Photo
1 shows a camp divided from the road by a fence. On the camp side
marks appear where the cow was allegedly slaughtered and dragged or
pulled to where it was loaded on Isako’s vehicle.

Photo
2 shows marks on the tarred road where blood allegedly leaked from
the vehicle on which a cow was loaded for quite a distance.

Photos
3,4 and 5 depict the place where the body of the deceased was found,
600m from where the cow was slaughtered on photo 1. On these photos
several points are marked as points where different items, as well as
the deceased’s body, were found.

Photo
6 indicates what appears, and what is alleged to be, a blood spot on
the tarred road 7,1m from where the deceased body was found in the
grass.

Photos
7 and 8 respectively indicate a spent and a live cartridge found next
to the tarred road, 10,4m from the deceased’s body.

Photo
9 shows a plastic gun-gum holder and a rubber that apparently came
from the window of a motor vehicle 13,4m from the deceased’s
body.

Photo
10 shows a white tekkie with blue stripes found 9.3m from the
deceased body.

Photo
11 indicates a sandal found 15m from the deceased’s body.

Photos
12 to 15 shows the deceased’s body taken from different angles
and also indicate the entrance and exit bullet wounds on both sides
of his body.

Photos
16 and 17 indicate the deceased’s red Nissan double cap vehicle
found 4km from where his body was found.

The
remainder of the photos in exhibit C were taken by Sergeant Doeseb
when the post-mortem was done, namely photos 20-34.

[9] In
exhibit D photos 3, 15 and 16 indicate the farm house and the fencing
around it at Gryspos where accused 6 lived and where the cow was
allegedly slaughtered and off-skinned.

Photos
4 to 14 show the bush in camp on Gryspos and the places where the
rifles, the ammunition box, deceased’s bullet belt and the cow
skin were pointed out by accused 6 to Gariseb and later by Gariseb to
Sergeant Doeseb, who took the photos.

Photos
18 to 20 show Isako’s branding iron and the letters thereof
printed on the sand.

Photos
21 to 28 indicate the skin of the heifer, it’s head, an ear
with an ear tag and brand marks on the skin.

Photos
29 to 30 have been taken from the branding iron of the owner of the
cow and letters on it printed on the sand.

Photos
31 to 34 depict the deceased’s vehicle and a spend cartridge
allegedly found in the vehicle.

Photos
35 to 41 are different photos of the white Mazda vehicle of Isako,
indicating blood marks and damage to the right window and exhaust
system of the vehicle.

Photos
42 to 43 show the green bullet box containing live rounds.

Photo
44 indicates the spot light, photos 45 and 46 the rifle bag and
Isako’s rifle and photos 47 and 48 that of the deceased.

Photos
49 and 50 indicate several packets of meat in a fridge.

[10]
Dr F. G. Burger conducted the post-mortem on the body of the
deceased and completed a medical legal post-mortem report, handed in
as exhibit F. He found a bullet wound which entered the right side of
the deceased and exited on his left side around the pelvis area. This
bullet wound was the cause of death and the bullet which causes the
wound penetrated the deceased’s bladder, shuttered the iliaca
vein and pelvis. Blood clots, which indicated that there had been
severe bleeding, were also found. According to the doctor this was a
fatal wound and deceased would not have survived long in the
circumstances he was in. The doctor also found several other wounds
on the left arm and right leg of the deceased, as well as blood on
the back of his head. The doctor was severely cross-examined in
respect of these wounds. The doctor remained adamant in his opinion
that the deceased was assaulted with a roundish hammer-like object
before he died. In his opinion force was used to cause these wounds.

Trials-within-a-trial

[11] As
mentioned before, two trials-within the main trial were held. The
first was in respect of pointings out by accused 2 to the police and
the second in respect of pointings out and a warning statement by
accused 6. The purpose of these trials-within-a-trial were to
establish whether the pointings out and the warning statement were
freely and voluntarily made and whether the evidence in respect
thereof are admissible. The Court ruled in each of these
“admissibility
trials”,
as the they were called by Froneman
J
and S
vs Melani
and others 1996 (1) SACR
335 (E),
that the evidence was admissible. These two trials-within-a-trial
will be discussed in more detail hereinafter and the reasons for the
Court’s decisions on both will be provided therein.

Pointings
out by accused 2

[12] Accused
2 objected to the admissibility of the pointings out by him to
Inspector Oberholzer on basis that such pointings out were not freely
and voluntarily made, because Inspector Oberholzer allegedly promised
him that he will get bail and thereby induced him to make such
pointings out. A further reason for the objection by accused 2 was
that his rights, particularly in respect of legal representation
during the pointings out, were not explained to him. A
trial-within-a-trial then ensued with the State calling Inspector
Oberholzer, Sergeant Hoveka and Constable Gariseb to testify, while
accused 2 testified in his own defence. The evidence of Inspector
Oberholzer and accused 2 were material in respect of the latter’s
objection against the pointings out. I do not intend to refer to the
evidence in detail.

[13] Inspector
Oberholzer was called from Otjiwarongo, were he was stationed, to
assist and upon arrival interviewed accused 2 in an office at the
Outjo police station. According to him, all the accused’s
rights were explained to him particularly that of legal
representation during the pointings out, but accused 2 indicated that
he did not want a lawyer at that stage. Inspector Oberholzer also
denied that he ever promised accused 2 bail. According to him accused
2 voluntarily accompanied him and the photographer to the various
scenes where he made the pointings out. Accused 2 denied that his
rights were explained to him, either by Inspector Oberholzer, or
during his arrest by Inspector Reuter. He also denied that the
answers contained in the arresting statement taken by Sergeant Hoveka
came from him, also where he confirmed that his rights were explained
to him. According to him, he was just required to sign the document.
In respect of the allegation that he was promised bail, he could not
take it further than stating that Inspector Oberholzer promised to
make an inscription on the docket that he should get bail if he
co-operates. However, no amount of bail money was discussed and later
in cross-examination he testified that upon their return from the
pointings out, the bail issue was discussed.

[14] The
defence relied on several South African decisions in particular that
of the State
vs Melani supra, S v Mkwanyana 1978(3) SA 404(N); as well as S v
Sheehama 1991(2) SA 860(A) Namibian decisions: S v Minnies and
Another 1990 NR 177(HC); and S v Kapika(1) 1997 NR 285(HC).

[15] The
Court was satisfied that no promise of bail had been made to accused
2 and that he freely and voluntarily accompanied Inspector Oberholzer
and pointed out the scene and specific points described by Inspector
Oberholzer in a document that he handed in after at the pointings out
were ruled admissible. The Court was also convinced that accused 2’s
right in respect of legal representation during the pointings out
were explained to him, that he understood it and preferred not to
have a lawyer to represent him at that stage.

[16] The
Court is alive to what was previously stated in other decisions,
namely that it is entitled to reverse it’s ruling made in a
trial-within-a-trial if other evidence at a later stage might
indicate that ruling was wrong.

Further
evidence of co-operation by accused 2 with the police confirmed that
the Court’s ruling was correct to allow the evidence of his
pointings out.

Pointings
out by accused 6 and his warning statement.

[17] Accused
6 objected to the pointings out of items that he was allegedly
instructed by Isako to hide the night of 06 December 2006, on the
basis that he was forced to do it by Sergeant Hoveka and that his
warning statement was consequently also not freely and voluntarily
made. The latter statement was never referred to or regarded as a
confession.

[18] Sergeant
Hoveka, Constable Gariseb and Inspector Doeseb testified for the
State and accused 6 in his own defence. It appeared from the
cross-examination of Sergeant Hoveka and Constable Gariseb that the
objection against the pointings out by accused 6 was in fact based on
his original refusal to point out the items and that he only conceded
to do so, after the accused 2 was called to induce him to agree to
point out these items, whereafter he was arrested. Emphasis was
placed on what Constable Gariseb apparently said of what accused 2
told accused 6. Accused 2 apparently said that they were held and
interrogated from early that morning, whereupon accused 6 then went
to point out and fetched the items that he had hidden in the bush. In
his evidence quite another version was provided by accused 6.
According to him, he never refused to fetch the items, but only
wanted to know where his employer, Isako, was. When he was told by
accused 2 that they were all held and interrogated by the police, he
was apparently satisfied and went with Constable Gariseb to fetch the
items. He said he was not forced to do so.

[19] In
respect of his warning statement, accused 6 denied that he provided
the information that Sergeant Hoveka wrote in that statement and said
that he was just required to sign the statement.

[20] In
coming to my decision, I have considered previous Court decisions
that I have been referred to, i.a. State
vs Melani, supra; R v Barlin 1926 AD 469; S v Nicolaas de Wee 1999 NR
122(HC); R v Kuzwayo 1949(3) SA 761; S v Ananias 1966(3) SA 486; S v
Scott and Others 1992(2)SACR 180 E; S v Tjiho 1992(1) SACR 639(Nm).

[21] In
the light of the evidence I was satisfied that both the pointings out
and the warning statement were admissible as evidence and ruled
accordingly. I am also satisfied that the evidence provided later in
the main trial, and in particular by accused 6 himself, confirms my
ruling in the trial-within-a-trial in respect of accused 6.

Common
purpose

[22] In
the State’s summary of substantial facts, provided to the
accused, it

concluded
with the following sentence:

“All
the accused acted with common purpose before, during and after the
incident”

[23] In
terms of Section 155 of the CPA, persons implicated in the same
offence maybe tried together. The position of perpetrators,
accomplices, the liability of each, as well as the requirement of a
casual link between the aid of an accomplice and the commission of
the offence by the perpetrator are comprehensively discussed in the
authoritive work of Hiemstra’s
Criminal
Procedure,
22-25 to 26 (Hiemstra).
Causalty is not a requirement where the doctrine of common purpose is
applied. (S
v Safatsa and others. 1988 (1) SA 868(A)

Hiemstra
formulates the doctrine of common purposes as follows:

“If
two or more persons collude in an undertaking with an unlawful
purspose, each is responsible for the acts of the other performed in
the furtherance of the common purpose if he/she:

(i) forsaw
the possibility that the other could perform that act in the
furtherance of the common purpose; and

(ii) was
indifferent to such acts and their consequences.”

(Hiemstra,
supra, 22-27)

[24] The
State has to prove, even by inference, that the participant actually
forsaw the act of the other and was indifferent to the result. (R
v Hercules 1954 (3) SA 826 (A))
This is not a type of vicarious liability, but liability based on the
guilt of the participant, i.e. his or her own mens
rea.
( S
v Malinga 1963 (1) SA 692(A).

The
Court has to be cautious in applying the doctrine of the common
purpose, because it is often unnecessary and inappropriate.

[25] Although
the doctrine of common purpose had been accepted in our law as a
basis for the conviction of more than one participant in a crime, the
South African Appeal Court discussed this doctrine in detail in a
series of cases and also dealt with liability in mass actions. (S
v Safatsa, supra; S v Mgendezi and others 1989(1) SA 687(A): S v
Motaung and others 1990(4) SA 485(A) and S v Khumalo en Andere
1991(4) SA 310(A))

In
S
v Mgendezi, supra,
with reference to S
v Safatsa, supra, Botha JA at 705I-706B
stated that in a matter where no prior agreement had been proved, an
accused in regard to whom no casual link to the death or wounding of
the victim has being proved, can only be held liable for such death
or wounding on his own mens
rea
if the following are present:

“a)
presence
of the scene of the violence;

2. knowledge
   of the assault on the victim;

   
   

3. the
   intent to make common cause with those who in fact perpetrated the
   assault;
   

   
   

4. manifest
   participation in the common purpose with the perpetrator of the
   crime by some or other act of association with the conduct of the
   others; and
   

   
   

5. presence
   of the necessary mens rea with regard to the killing of the
   deceased, dolus directus or dolus eventualis.”

   
   

(Hiemstra
22-29)

When
there is no direct evidence to establish common purpose, it has been
held that common purpose can be inferred from joint conduct. (S
v Nkomo 1966(1) SA 831(A); R v Njenje 1966(1) SA 309 (RA))

Steyn
CJ also held in Dudley
v Minister of Justice 1963(2) SA 464(A)
at 468B that where the train of thought of people joined together is
directed at a common target and they intend to achieve that target
through joint action, they can have common purpose, despite that they
had no prior agreement on the common purpose.

[26] Disassociation
from a common purpose may prevent the conviction of a person based on
this doctrine. In S
v Maxaba 1981(1) SA 1148(A),
the facts of that case were that a victim was robbed by three persons
acting together; when that crime was completed, further violence was
no longer necessary, yet one of the three fatally stabbed the victim
with a knife. It was held that it was not proved that they had the
common purpose to commit murder or that the other two accused forsaw
that the third would use a knife and stab the victim. The Court held
that dolus
eventualis
was not proved and that they were neither co-perpetrators, nor
accomplices in the murder. It was further held that it must be
determined whether they rendered aid to the actor by affording him
the opportunity, means or information to advance the commission of
the offence and that simple approval or agreement with the commission
of the offence is insufficient association for liability as an
accomplice.

[27] In
S
v Musingadi and others 2005(1) SACR 395(SCA) at 409 g-h Comrie AJA
had the following to say:

“The
aforegoing authorities indicate, in my view, that on a practical
level the Courts of several countries, including South Africa,
proceed from this premise: That the greater the accused’s
participation, and the further the commission of the crime has
progressed, then much more will be required to take steps to prevent
the commission of the crime or its completion. It is in this sense a
matter of degree and in a borderline case calls for a sensible and
just value judgment.”

[28] The
facts of this matter will have to be evaluated against the principle
of the doctrine of common purpose in order to determine whether the
State can rely on that doctrine to prove the liability of the accused
persons. It was not clear from the State’s heads of argument
whether it in fact relies on the doctrine of common purpose or on the
mens
rea
of accused 2-5 i.r.o the murder charge. From the submissions advanced
in this Court by Mr Campher for the State the latter seems to be what
is relied on in respect of the Stock Theft charges. In respect of the
murder charges against the accused, he does not rely on the doctrine
of common purpose, except that the accused are accessories after the
fact according to him

Accessory
after the fact

[29] The
State submitted that all the accused are guilty of murder as
accessories after the fact in the murder of the deceased. It is
submitted that this is on the basis of the doctrine of common
purpose.

[30] The
definition of an accessory after the fact is the following:

“An
accessory after the fact is someone who unlawfully and intentionally
after the completion of the crime associates himself or herself with
the commission of the crime by helping the perpetrator or accomplice
to evade justice.” (Jonathan Burchell and John
Milton-Principles of Criminal Law- second edition, (chapter 42, p
419).

This
definition makes it clear that there is no distinction between the
liability of an accessory after the fact and one who defeats or
obstructs the cause of justice.

[31] Mere
association with the crime of the perpetrator is to wide and not
sufficient to create liability of an accessory after the fact. (S
v Augustine 1986 (3) SA 294 (C) at 297-300)
In S
v Morgan
1993 (2) SACR 134 (A) a narrower approach was preferred, namely that
there should be evidence that the perpetrator was assisted or helped
to evade justice. In adopting the latter approach as favoured by the
South African Appellate Court in the Morgan case there is no
necessity for a separate offence of accessory after the fact since
the offence of defeating or obstructing the course of justice
adequately includes the conduct of the alleged accessory after the
fact. Burchell and Milton, supra, p 421; Snyman - Criminal Law –
Fourth edition, p 278).

[32] The
liability of an accessory after the fact, as that of an accomplice,
is accessory in nature. There cannot be an accessory after the fact
if someone else has not committed the crime. Consequently a person
cannot be an accessory after the fact to his or her own crime.
(Burchell and Milton, supra, correctly in my view, criticises the
decisions in S
v Gany 1957 (2) SA 212(A) and S V Jonathan 1987 (1) SA 633 (A),
where accused persons were found guilty as accessories after the
fact. The basis for that criticism is the fact that a person cannot
be found guilty as an accessory after the fact of his/her own crime,
because his/her liability is accessory in nature to that of another.
These writers submit that the competent crime in these circumstances
is obstructing or defeating the course of justice or attempting to do
so. (Burchell and Milton, supra, p 422-3).

[33] It
is sufficient if the accessory after the fact knows on foresees the
possibility that the perpetrator has engaged in unlawful conduct
although he/she might not know or foresee the specific type of
unlawfulness. It is submitted that this approach is also compatible
with defeating or obstructing the course of justice. That person must
have the intention to help the perpetrator to evade justice.
(Burchell and Milton, supra, p 425).

Hearsay
evidence

[34] During
the trial both the State and the defence objected to evidence in
chief by the State witnesses and the accused of what either Isako or
the deceased have said. At the time it seemed that this would be an
important issue, because generally hearsay evidence is inadmissible.
During cross-examination by the defence of the State witnesses and by
the State of the accused, the exact words were elicited because it
seemed that both the State and the defence would rely on it. However,
no argument was based on this evidence by either the State or the
defence and it is consequently not necessary to deal with the
hearsay-issue and its admissibility under specific exceptions at all.

Analysis
of evidence

[35] Before
I deal with the evidence of the individual witnesses as far as it is
necessary, the following became evident during the course of the
trial:

● All
of the accused are not implicated in all the events of the night of
06 December 2006;

● The
main perpetrator to all of the events, Isako, died before the trial
commenced;

● Accused
2-5 were present during almost all of the events that night;

● Accused
6’s participation was limited to what occurred before the other
accused left Gryspos and what occurred after they returned, as well
as during the morning of 08 December 2006;

● The
only evidence of what occurred the night of 06 December 2006 after
they left Gryspos until they returned, is that of the two State
witnesses, Marius and Sixub, and accused 2-5;

● What
happened when they returned at Gryspos depends on the evidence of the
accused, as well as Marius and Sixub for the period that the latter
two were still there;

● Where
necessary or relevant, the photo plans, exhibits C and D, as well as
the other exhibits, have been considered.

[36] It
is not necessary to refer to the evidence of all the many State
witnesses in detail. It is clear from the evidence presented in this
Court that the evidence in respect of the incidents of the shooting
of the cow, the shooting of the deceased, what happened thereafter
until the accused returned to Gryspos and what happened at Gryspos,
depend on the evidence of the two State witnesses Sixub and Marius,
as well as accused 2-5. Accused 6 could only testify about the
arrival of Isako and accused 2-5 at Gryspos and after they retuned to
Gryspos late in the night. Several other witnesses testified in
respect of incidents that occurred before the accused left Outjo for
Gryspos and after they returned to Outjo. The two State witnesses of
the Scene of Crime Unit, testified about the photos in photo plans,
exhibits C and D. There were also some witnesses whose evidence will
be referred to, without much detail. The evidence of these witnesses
evidence are not really in dispute. They are e.g the parents of the
deceased, Daniel Van Vuuren, and Mr Gunther Heimstadt. The evidence
of Paul Stommel, the owner of the farm Molden, where the cow was shot
and where the body of the deceased was found next to the road, as
well as his two farm workers who testified, will be discussed in more
detail.

[37] A
mentioned, nothing much turns around the evidence of the parents of
the deceased and that of Mr Gunther Heimstadt. The deceased’s
mother saw him that afternoon of the fatal day before he left around
18h00 to Mr Heimstadt’s farm. He had no injuries and he took
the trousers along that he had on when his body was found with the
trousers damaged. These trousers were new and were received from
somebody as a present. He intended to put it on, which he apparently
did. The father went to look for the deceased when it was reported to
him that he did not turn up for work that morning. Before his death
the deceased worked for Mr Gunther Heimstadt as a professional
hunter. According to Mr Heimstadt he attended a function the previous
evening and then left without any injuries, but did not turn up for
work the next morning. He and the deceased’s father went to
look for the deceased. They were later informed by Mr Paul Stommel
that the deceased’s body was found next to the road. Both of
them saw the body and testified that the items found near the body as
depicted on the photos in exhibit C. The deceased’s mother also
turned up at the later stage while the body of the deceased was still
lying in the grass.

[38] The
evidence of three witnesses are very important, namely that of Mr
Paul Stommel, the owner of the farm Molden on whose farm the cow was
shot and dragged toward the road, as well as where the body of the
deceased was found next to the road in the grass. The evidence of his
workers which will be mentioned later. According to Mr Stommel he was
phoned the night of 06 December 2006 around midnight by his foreman,
Paulus Naholo, who informed him that he heard two cars and 2 shots
being fired, whereafter he and other workers went with a tractor to
that area and found blood spots. He again spoke to Paulus on the
radio the next morning and was informed that they had found the body
of the deceased laying in the grass. Thereafter he went to Otjikondo
and informed the police and also Mr Gunther Heimstadt of what was
found. At the scene he found the father of the deceased and Mr
Gunther Heimstadt. He also identified the various items that he
noticed in the vicinity of the body of the deceased. He did not visit
the scene where the cow was slaughtered, but identified it from the
photos. In respect of photos 21, 24 and 25, in exhibit D, depicting
the skin of the cow, he testified that the skin has the colour of a
Simbrah, which is a cross-breed between a Brahman and a Simmentaler.
The ear tag, exhibit 10, was not his. He identified fresh brand marks
on the skin depicted on photo 26 (exhibit D). According to him it was
still black as a result of the burning, which normally wears off
later. He could identify his brand mark underneath the one that was
imposed over his brand mark. In respect of the difficulty to identify
his brand mark, he testified that it is easier to observe it on the
skin than on the photo and that he could identify it when he saw it
and because he put his own brand iron over that mark and could then
clearly observe his own brand mark. The value of the cow was
N$3200.00. In cross-examination Mr Stommel testified that he did not
notice any injuries on the body of the deceased, except for the gun
shot wound. He also testified that the grass next to the road along
the fence of his farm are normally cleared, which he did
approximately a year before the incident.

[39] Two
of the farm workers in the employ of Mr Paul Stommel on the farm
Molden testified that they were sleeping outside the night of 06
December 2006. They are Paulus Naholo and Hermigrade Karunga.
According to the evidence of both of them they heard a vehicle on the
road, which vehicle was driving and stopping. They then heard a gun
shot and thereafter they heard another vehicle which passed and
stopped, whereafter they heard a second shot. Karunga also testified
that he heard voices before the second shot was fired and a car
driving away. According to both of them they took a tractor,
accompanied by another worker and drove to the vicinity where they
heard the shots. At the border fence of the farm and a neighbouring
farm, they found blood in their camp. According to Karunga they also
found drag marks leading towards the road. Both of them returned. The
next morning they returned with the tractor and also saw blood in the
camp and found the body of the deceased next to the road. Paulus then
contacted Mr Paul Stommel. It is significant that during the
cross-examination by Mr Isaacks on behalf of accused 2-5 no questions
were asked about the shots that they heard, neither was it put to
them that in fact 3 shots were fired and not two, as well as that one
of the cattle was earlier wounded.

[40] The
distances between the various places referred to in evidence were not
provided during the trial and the Court indicated at the close of the
cases of the defence that it would either call a witness to measure
or provide these distances, or if it all parties do agree thereon,
the Court would accept a statement to that effect. On Monday 16
November 2009 a statement by the investigating officer with the
distances required by the Court were provided. According to that
statement, the investigating officer, Warrant Officer Hoveka,
measured the distances which the Court requested. They are the
following:

1. The
   distance between Outjo Engen service station and the house where
   accused 6 resided at the farm Elandsputz is 90.7km.

   
   

2. The
   distance of the gravel road between the Gryspos homestead and the
   Outjo-Kamanjab tarred road is 10km.

   
   

3. The
   distance from where the gravel road joins the tarred road to the
   place where the cow was shot and loaded on Isako’s vehicle is
   19km.

   
   

4. The
   distance between where the cow was shot and where the deceased’s
   body was found is 600m.

   
   

5. There
   is only one resting place between the spot where the gravel road
   joined the tarred road and the place where the cow was shot. The
   distance from that resting place to where the gravel road joins the
   tarred road is 11.9km

   
   

6. The
   distance from the resting place to where the cow was shot is 7.1km.

   
   

7. The
   distance from the homestead at Gryspos to the homestead of the farm
   Holstein is 9km.

   
   

[41] According
to these distances, which are common cause, it is evident that the
cow could not have been shot on Isako’s farm, but was shot a
distance of 29km from the homestead at Gryspos. The evidence of the
accused, and in particular accused 2, to the effect that they thought
they were going to get one of Isako’s cattle on his farm cannot
be true. This corresponds with the evidence of accused 6 that there
were no cattle; belonging to Isako, missing and that Isako’s
cattle were in the camp in which the homestead at Gryspos was
situated. In fact, the evidence of Paulus and Karunga, as well as
that of Mr Paul Stommel which was not disputed, indicate that the cow
was shot on the latter’s farm, namely Molden. Furthermore can
the evidence of the accused persons that there might have been more
than one resting place between the point where the gravel road joins
the tarred road and the place where the cow was shot, not be true.
The distances also indicate that the accused travelled from the
resting place, where the spot light was connected and when Isako got
onto and stood on the back of his vehicle with a rifle, while accused
2 was driving, is 7.1km. They were clearly looking for something to
shoot. That they drove back to the resting place and returned, would
mean a distance of 14.2km.

[42] Inspector
Hofni Reuter and a police reservist officer, Mr Robert Herridge, went
to the scene where the deceased’s body was found the next
morning. Inspector Reuter found the red Nissan bakkie of the deceased
abandoned on the road and was taken by Mr Paul Stommel to the scene
where the body of the deceased was found. He found the items that
were depicted on the photos in exhibit C. He was also informed by Mr
Paul Stommel where the cow was killed and found blood marks inside
the camp through the fence towards the main road. Isako was arrested.
At his house, Herridge recognised his vehicle and saw blood marks on
the side of it, as well as cattle manure on the back of it. Isako
apparently gave a version to the police officers in which he
mentioned the name of accused 2. Accused 2 was then apprehended at
his house. Herridge knew him from before, as well as where he lived.
Accused 2’s version differed from that of Isako. Initially Mr
Isaacks objected to hearsay evidence in respect of the version of
accused no. 2 on the basis that it was hearsay what accused no. 1
said to him. This was later confirmed by the evidence of other
witnesses and elicited under cross-examination. It boiled down
thereto that Isako got accused 2 and the latter accused 3-5 to
accompany Isako to his farm where they picked up two boys and went to
hunt a kudu. Isako then apparently changed his mind and wanted to
hunt cattle. Isako shot a cow, which they assisted to load on the
car. Before they could leave, they saw a car coming from the Outjo
direction, the deceased was the driver of that car and a quarrel
ensued between Isako and the deceased, whereafter the deceased was
shot by Isako. Accused 2 told Reuter that he tried to stop Isako and
ran away with one of the boys. Later they returned to Isako’s
farm.

[43] Reuter,
Hoveka and Sibolile went with accused 2 to the house where accused
3-5 resided and they were apprehended. Because Herridge could not
speak or understand Damara, he did not hear what was said between
Inspector Reuter and accused 3-5. The cross examination of Inspector
Reuter was directed at what happened between accused 3-5 at the
police station and whether accused 2-5 were properly arrested. In
what occurred later during the trial and the evidence of the accused
persons, this issue is immaterial. According to Herridge, he and
Reuter and other police officers, like Gariseb and Hoveka later went
to Isako’s farm with accused 2. They left separately and when
Herridge arrived the firearms were already found.

[44] As
mentioned before, the incidents of that night were related by the
State witnesses Sixub and Marius, as well as accused 2-5. I do not
intend to deal with the evidence of any of these witnesses in detail,
but shall refer to the evidence of Sixub and Marius and point out
where they differ from the evidence presented by accused 2-5. In a
reply to the State’s pre-trial memorandum all four accused,
namely accused 2-5, indicated that they do not have any witnesses,
except for two state witnesses. During the trial it was mentioned
that the two State witnesses that the accused wanted to call were
Sixub and Marius.

[45] Although
there are differences between the evidence of Sixub and Marius, those
differences are really not material. The only issue upon which they
were cross-examined, because in the evidence differed was in respect
of the shoes which Sixub wore and which he allegedly gave to accused
4, when arrived at the farm. The following evidence of these two
witnesses and the version of accused 2-5 did not really differ in any
material or significant way:

• Sixub
  and Marius left with Isako and accused 2-5 during the night of 06
  December 2006 from Gryspos, where they resided;

  
  

• Isako
  took his rifle and a spot light, both exhibits, with him when they
  left;

  
  

• They
  went along to push Isako’s car;

  
  

• They
  drove from the homestead at Gryspos on the gravel road to where the
  gravel joins the tarred road between Outjo and Kamanjab;

  
  

• Isako
  turned in the direction of Kamanjab on the tarred road and drove to
  the resting place where they stopped. At the resting place Isako
  connected the wires of the spot light to the battery of his vehicle
  and with his rifle he got onto the back of the vehicle, while
  accused 2 drove further. Marius sat in front and the rest were on
  the back of the vehicle;

  
  

• They
  drove to a place where cattle was observed in a camp and stopped.
  Isako shot a cow. The cow’s throat was cut by accused no. 3.
  The cow was dragged and loaded onto the vehicle;

  
  

• A
  car approached from Outjo’s side and flashed its lights. The
  vehicle of Isako gave trouble and stopped. The deceased’s
  vehicle passed, turned around and stopped. Isako went to the
  deceased and they talked;

  
  

• The
  deceased move his vehicle closer to that of Isako. The deceased
  apparently quarrelled with Isako about Isako’s version that he
  hit a kudu;

  
  

• The
  deceased went to the back of Isako’s vehicle and looked at the
  animal and saw that it was not a kudu, but a cow;

  
  

• Isako
  then shot the deceased;

  
  

• Accused
  2 ran away with Marius, but later returned when he was called by
  Isako;

  
  

• After
  he was shot the deceased was on his knees behind Isako’s
  vehicle on the road;

  
  

• Isako
  wanted to shoot the deceased again but his rifle misfired;

  
  

• Isako
  then pulled the deceased by the collar of his shirt from the road
  into the grass;

  
  

• The
  deceased groaned;

  
  

• Isako
  got into the deceased’s vehicle and drove away in the
  direction of Outjo when a car approached;

  
  

• Accused
  2 attempted to get Isako’s car going by working on it under an
  open bonnet, but did not succeed;

  
  

• Isako
  returned and got into his vehicle, which was pushed by the others
  and got it started;

  
  

• Accused
  2 then got onto the driver’s seat of Isako’s vehicle and
  all the others got onto that vehicle and they drove off in the
  direction of Outjo:

  
  

• Isako
  got into the vehicle of the deceased and drove behind them until
  accused 2 was stopped by Isako;

  
  

• Isako
  had a discussion with accused 2 and removed certain items from the
  vehicle of the deceased, including a rifle, which he put into his
  vehicle;

  
  

• All
  of them drove off with Isako’s vehicle. Isako was driving. The
  vehicle of the deceased was left there;

  
  

• They
  drove to the homestead of Gryspos;

  
  

• At
  Gryspos the cow was off-loaded and skinned;

  
  

• A
  brand mark was put on the skin of the cow with Isako’s
  branding iron;

  
  

• The
  meat was loaded onto Isako’s vehicle;

  
  

• Sixub
  and Marius went home and Isako and accused 2-5 left for Outjo; and
  

  
  

• Before
  they left accused 6 went to hide the rifles and other items in the
  bush on the instructions of Isako.
  

  
  

[46] With
minor discrepancies, accused 2-5’s version was obviously
similar. Even the distances pointed out by them in Court were the
same. It was put to them in cross-examination that they rehearsed
their evidence. Accused 2 testified in more detail than all the other
accursed persons of the events of that evening and thereafter.

[47] In
the following respects the versions of accused 2-5 differed
materially from that of Sixub and Marius;

• Sixub
  testified he lend his tackies to accused 4 before they left, but
  accused 4 denied it;

  
  

• When
  the spot light was connected at the resting place and Isako got onto
  the back of his vehicle the accused testified that Sixub held the
  spot light, while Sixub said it was accused 3;

  
  

• According
  to the accused persons they went twice to the place where the cow
  was shot and Isako in fact shot a cow on each occasion. He first
  shot one and then they returned to the resting place, whereafter
  they again went to the place where the cattle were spotted and he
  shot another cow. That cow was dragged through the fence and loaded
  onto his vehicle. Sixub and Marius denied that they went to the same
  spot twice and Isako shot twice;

  
  

• Although
  there are differences between the accused persons versions of when
  the spot light was utilised, they all testified that on the second
  occasion the spot light was used and not on the first, while Sixub
  and Marius denied that there were two such occasions;

  
  

• Of
  the approach by the deceased and how he moved his car closer to that
  of Isako they also differ. Sixub and Marius said that after the
  deceased and Isako talked, the deceased moved his car skew in the
  road with its lights illuminating the side of Isako’s vehicle.
  According to the accused, the deceased’s vehicle was reversed
  until he stopped in front of Isako’s vehicle with its lights
  on the front part of Isako’s vehicle;

  
  

• Sixub
  and Marius said that Isako asked accused 2 for his rifle, before he
  shot the deceased, while all the accused denied that;

  
  

• According
  to the accused, one of them, namely accused 3, tried to stop the
  approaching vehicle, but in vain. Sixub and Marius denied this;

  
  

• According
  to Sixub and Marius, Isako returned with the deceased’s
  vehicle and assisted to get his own vehicle started, while accused
  3-5 testified that Isako first stopped at the place where the
  deceased was left in the grass, a distance of approximately 22m to
  where Isako’s vehicle was pushed and stood. The accused said
  Isako lingered there for some time whereafter he drove up to his own
  vehicle;
  

  
  

• Although
  not exactly on the same occasion, both the accused as well as Sixub
  and Marius testified that Isako wanted to shoot them, but was
  prevented to do so by accused 2:

  
  

• All
  the accused testified that they ran away at Gryspos when a car
  approached, but later returned. Some of the accused testified that
  Sixub and Marius ran away with them and some testified that Sixub
  and Marius then went home while some of the accused testified that
  Sixub and Marius assisted with a slaughter of the cow. Sixub and
  Marius denied that a car approached or that they or any of the
  accused ran away, and
  

  
  

• According
  to the accused, Isako brought a bed out and had his rifle with him,
  which created fear in the minds of the accused persons, while this
  was not put to Marius and Sixub or testified by them. According to
  them, upon their arrival at the farm accused 6 was ordered to hide
  certain items, including both rifles.

  
  

[48] In
analysing the evidence one has to consider that it is now nearly
three years since the occurrences during the night of 06 December
2006 and that it is only reasonable and human that witnesses may not
remember everything that occurred in the same way. It must also be
taken into consideration that Marius and Sixub, who are young boys,
were much younger at that stage. It is also understandable that
accused 2-5 would try to exculpate themselves as much as possible and
that task is made easier with the death of Isako, who could not
testify. I have pointed out some of the material differences between
the evidence of Sixub and Marius, on the one hand, and accused 2-5 on
the other hand. Despite these differences of what happened that night
not very much are in dispute. I shall hereafter briefly deal with the
evidence and submissions made by counsel.

[49] In
respect of the murder charges the State argued in the first instance
that accused 4 and 5 should be found guilty of that charge, because
they assisted Isako and assaulted the deceased. The State argued that
there are several indications to the effect that they assisted Isako
to drag the deceased from the road into the grass and that they were
at least responsible for the head wounds of the deceased. These
submissions are based on the evidence of Sixub, allegedly supported
by Marius, as well as several inferences. Sixub cannot believed at
all in respect of this episode as will be discussed later herein.
Marius could not take it further than saying he did not notice
accused 4 and 5 when he and accused 2 returned. The State sought to
draw inferences from the stones depicted on photo 12 (Exhibit C),
blood of the same blood group as that of the deceased on the sandal
of accused 4 and the tackies, as well as the types of injuries on the
body of the deceased. I shall deal with these submissions when the
evidence is analysed.

[50] The
further submission of the State is that, even if accused 4 and 5 are
not guilty of the murder of the deceased, all the accused should be
found guilty as accessories after the fact of Isako’s murder of
the deceased. In this regard the State submitted that all the
accused’s conduct was directed at evading justice and pointed
out several acts by them from the time that the deceased was moved
from the road into the grass up to the time when they were arrested.
In the light of my findings it is not necessary to deal with all
these submissions.

[51] Although
the original excursion turned out into the killing of the deceased, I
shall hereafter deal with the evidence inclusively and in particular
in respect of the material differences between the evidence of the
inferences upon why the State witnesses Sixub and Marius and that of
the accused. I shall also deal with the inferences upon which the
State based its submissions. It is not possible to reject the
evidence of Sixub for instance because it is totally incredible. The
Court is well aware of the onus that rests on the State and that the
accused do not have any obligation to prove their innocence.

[52] In
respect of the use of the spot light, the fact that Isako stopped at
a resting place more than 7.1km from where the cow was shot and
exchanged drivers, I accept the version of Sixub and Marius. Isako
got onto the back of the vehicle with his rifle and accused 2 drove
the vehicle further. A spot light was connected. There could have
been no other purposes than to search for cattle and to use the spot
light for that purpose. I accept the version of Sixub that accused 3
held the spot light. It would be ridiculous to believe that after all
this effort the spot light was not used to search for cattle.

[53] I
totally reject the evidence of the accused persons that Isako shot at
cattle on two occasions. This is not only a contrary to the evidence
of Sixub and Marius, but he is in absolute contrast with the evidence
of Naholo and Karunga, whose evidence in this regard was not disputed
at all. The latter two only heard one shot and later, when another
vehicle arrived, another shot. These ties in with the evidence of
Sixub and Marius. It is also incomprehensible why Isako would shoot
at cattle, wound one, leave it, just drive back to the resting place,
7.1km from there and then again returned to the same spot and shoot
another head of cattle. There is no evidence by the farm workers at
the farm Molden that another head of cattle was shot or found wounded
on that farm. It was further obvious that the accused had problems to
explain why the spot light was only utilised the second time. The
evidence of the accused in this regard is false and is totally
rejected as it cannot be reasonably possibly true. It is evident that
accused 2-5 came up with this false story in order to exonerate
themselves from the charge of stock theft levelled against them.
Their versions of when they first thought that something was wrong
with this operation in which they joined to assist Isako to load a
wedding cow is also contradictory.

[54] The
versions of the four accused of how the deceased was shot are also
rejected. Their versions do not only contradict each other, but the
evidence of Sixub and Marius seems more acceptable in this regard.
However, I do accept that the behaviour of Isako when confronted by
the deceased was unexpected. I do not believe that any of accused 2-5
expected that Isako would shoot the deceased without any provocation.
The conduct of accused 2 to grab Marius and run to away with him at
that stage shows that this was a sudden and unexpected situation that
arose. I also accept that the all the accused were totally shocked
and confused at that stage and thereafter. On the other hand, I also
do not accept the evidence of Sixub and Marius in favour of that of
the accused to the effect that Isako asked accused 2 for his rifle.
They were all suddenly confronted with something that happened
suddenly and unexpectedly. From the evidence it appears that only
Isako thereafter acted to avoid any discovery of what he did. The
conduct of Isako is in my view akin to a novus
actus interveniens,
which severed any possible link with the previous offence of stock
theft in which all the accused present participated and the
unexpected behaviour of Isako.

[55] The
version of the accused that when Isako returned after driving away
with the deceased vehicle and stopped about 22m behind them where he
lingered and apparently did something to the deceased, is contrary to
the evidence of Sixub and Marius. I reject the version of the accused
persons in this regard as false and not reasonably possibly true.
This version was probably offered in an attempt to explain the other
injuries on the body of the deceased.

[56] Sixub
and Marius denied that accused 3 tried to stop the oncoming car at
the stage when Isako drove away with the deceased’s vehicle.
Isako clearly did this to avoid that the driver of the oncoming
vehicle would find the two vehicles there and might stop. The accused
persons, however, testified that accused 3 tried to stop that
vehicle, but in vain. All the accused had to get away from the
murderer Isako. Isako had left without his rifle and one would expect
that all of them would do everything they could to stop the oncoming
vehicle. Why only one of them would, namely accused 3 make such an
attempt? The answer is obvious. They were all involved in the stock
theft and not want the vehicle to stop. I reject the evidence of the
accused in this regard as false.

[57] I
also reject the evidence of the accused persons of what occurred on
their return at Gryspos, namely that they had run away, because a
vehicle approached as false and not reasonably possibly true.
Similarly, I reject the evidence of the accused persons regarding the
fact that Isako took his rifle with him when he lay on his bed
outside with the clear implication that he would shoot any of the
other accused if they did not continue skinning the cow. In this
respect the accused’s versions contradict each other. Accused 2
testified that Isako took “his” rifle, while accused 5
said it was the rifle with a telescope, namely the deceased’s
rifle. It is also in contradiction with the evidence of the accused
6. He mentioned that Isako brought his bed outside but said nothing
of a rifle. In fact, accused 6 had already gone to hide both rifles
at that stage. Also according to Sixub and Marius the items,
including the rifles were hidden by accused 6 on the instructions of
Isako shortly after their arrival at Gryspos.

[58] There
is one issue regarding the contradiction between the evidence of
Sixub and the accused persons that needs special attention. Sixub
made a written statement to Constable Gariseb in Outjo. According to
his evidence they spoke in Damara language, but the statement was
written in English. In Court that statement was put to Sixub, but he
declined to identify it, because he cannot read or write. The
statement was made on Friday 08 December 2006. He testified that he
was not forced to make the statement. Mr Isaacks concentrated on one
aspect of the statement, namely that Sixub did not incriminate
accused 4 and 5 to the effect that they have assisted Isako in
dragging the deceased, after he was shot, from the road into the
grass. According to Sixub’s evidence in Court accused 4 took
the feet of the deceased and accused 5 his arm, while Isako took the
collar of the shirt of the deceased with his left hand and had his
rifle in his right hand when they dragged him into the grass.
Although Sixub testified that he could not see what happened in the
dark, he heard the deceased groaning and crying and testified that
the deceased was crying for help. He also said in his evidence in
chief that he heard that the deceased was beaten. This evidence would
of course incriminate accused 4 and 5, in particular because several
unexplained wounds were found on the body of the deceased, apart from
the gun shot wound. Sixub apparently made a statement in Windhoek
after the trial had already started to warrant office Hoveka, with
Gariseb interpreting, to the effect that he had forgotten to include
this crucial part of his evidence in his statement made Outjo to
Gariseb. As mentioned before the State relied to a large extent on
the evidence of Sixub to incriminate accused 4 and 5. Marius did not
really support the evidence of Sixub by identifying accused 4 and 5
to have assisted Isako in dragging the body of the deceased into the
grass as mentioned before. None of the accused supported the evidence
of Sixub in this regard. In fact, all of them denied that it ever
happened and accused 4 and 5 were adamant in their denial that they
were not involved in assisting Isako to drag the deceased from the
road into the grass. Accused 4 said he ran away and in the process he
lost his sandal. All of the accused denied any involvement in the
fatal attack on the deceased after he was shot by Isako.

[59] The
State also requested the Court to draw certain inferences i.r.o the
presence of accused 4 and 5 when the body of the deceased was removed
into the grass and the other injuries found on his body. In the first
instance the State submitted that because Isako had his rifle with
him, he probably caused the roundish injuries to the deceased with
the rifle’s barrel. The State submitted that because Isako
caused those injuries with his rifle, accused 4 and 5 most probably
used the stones depicted on photo 12 of Exhibit C to cause the injury
to the head of the deceased. The fallacy of this argument is that
this is no evidence that these stones had blood on them. Many of the
items found on the scene, e.g the sandal and the tackies were sent to
the forensic laboratory to be tested, but not the stones. This was in
all probability not done because it did not have any stains on them
that could resemble blood. The State further relied on blood of the
same blood group as that of the deceased namely, blood group A, found
by the forensic laboratory to be present on the sandal and the
tackies. That might be a possible inference, but is certainly not the
only inference to be drawn. There is no evidence what the blood group
of accused 4, who wore the sandal was, how old the blood on the
sandal was or how common or exclusive A blood group is. Further more
the sandal was found 15 metres from the body of the deceased. Accused
4 testified that he had run away and in the process lost one sandal
in the dark. The same arguments in respect of the blood group are
applicable with regard to the tackies. A tackie found 9.3 metres from
the body of the deceased.

[60] I
cannot find that the State has proved beyond reasonable doubt that
either of the accused, and in particular accused 4 and 5 were
involved in the removing the deceased into the bush or that they
contributed in assaulting the deceased. It may be suspicious that
they were not only observers and that it might have been improbable
for Isako to drag the body of the deceased on his own from the road
into the bush in the way that it was described, but suspicions are
not enough.

[61] Accused
2 and some of the other accused testified that they were threatened
by Isako, who had a rifle and they obeyed the instructions of Isako,
because they were afraid that they might also be shot. I am convinced
that none of the accused 2-5 expected Isako to shoot the deceased and
that his behaviour was a surprise to all of them. Having said this, I
do not regard the behaviour of accused 2-5 as reasonable since the
time that Isako dropped them at the house where accused 3-5 resided.
There was no longer a threat and having regard to what has happened
earlier that evening, one would have expected them to report the
matter to the police immediately. Despite that, they casually went to
sleep until they were apprehended. I also reject the evidence that
accused 2 that he would make a plan and inform them later what to do
and because of that, nothing happened. That does not make them guilty
of murder or as submitted ,accessories after the fact. Although they
were not involved in the murder of the deceased, they knew that they
were involved in the stock theft and that is probably the reason why
they remained silent and hoped that nothing would happen. I do not
accept the submission of the State that they remained silent because
of the murder and that their conduct in this regard constitutes proof
that they wanted Isako to evade justice for the murder.

[62] It
is clear from the evidence that the occurrences of that night can be
divided into two parts, namely the stock theft part, i.e the shooting
of the cow and a second part, the shooting of the deceased. In
respect of the second part, I find that the State has not proved that
accused 2-5 were involved in the murder of the deceased. It might
have been different if Isako was alive and could have testified, but
on the evidence before me, these accused cannot be convicted of the
murder of the deceased or even as accessories after the fact.

[63] In
respect of the first part, namely the shooting of the cow, the State
has proved beyond reasonable doubt that accused 2-5 are guilty of
stock theft of that particular animal as charged. When all the
evidence in respect of the shooting of the cow are viewed in
perspective, there cannot be any doubt that accused 2-5 joined
willingly in committing this offence. It is highly doubtful that
accused 3-5 would be willing to drive out in the night to a farm that
they did not know solely for the purpose to assist an unknown person
by pushing his car and to load a cow that was to be slaughtered for a
wedding. Accused 3-5 were promised to be paid and would also have
received the intestines of the cow. Accused 2 was the one who
persuaded them to accompany him and the unknown person for this
escapade. This must be viewed against the evidence of what happened
later, as well as their individual attitudes. Even if accused 2-5
were under the impression that they were only accompanying the
unknown person, Isako, to assist in pushing his car and to load a
wedding cow, they should have became suspicious immediately when
Isako took his rifle and a spot light at Gryspos, even before they
left Gryspos. When Sixub and Marius were also taken along, the
question would arise to any normal person: Why are we needed to push
the car and load the cow? They then drove away from Gryspos on a
gravel road for 10km. Still they did not become suspicious. When they
stopped 19km further at a resting place and a spot light was
connected their suspicions should have become a certainty, namely
that they are not any longer going on an innocent trip of loading a
cow; they were going to shoot the cow that Isako needed and not on
his farm. They then drove a further 7km with Isako on the back the
vehicle with his rifle and accused 2 driving. Accused 2 was clearly
actively participating at that stage. Isako then shot the cow. I have
already rejected the fact that there were two shooting incidents
involving cattle. All the accused participated in dragging the cow
through the fence, accused 3 slid its throat (which I previously
called slaughtering) and they all assisted in loading the animal on
the vehicle. Later they skinned the cow and loaded the meat onto
Isako’s vehicle. Accused 6 put the final in the coffin of their
stories, by testifying that the skin of the cow was that of a Sumbra
and not the Herero cattle that Isako farmed with.

[64] The
involvement of accused 6 should be considered next. There is no
evidence that accused 6, who was living at Gryspos and working for
Isako, was aware of Isako’s intension to go and hunt that
particular evening. He and his wife was busy eating when Isako and
accused 2-5 arrived. Sixub and Marius were also there. According to
him, Isako took his rifle and the spot light from his own room, which
is usually locked. When they returned, he was asleep. He said he was
not aware of what had happened that evening. Even if he suspected or
became aware of what had happened, namely the shooting of the
deceased, it is clear that he was not at all involved therein. The
only involvement of accused 6 is that he apparently held the torch to
assist the slaughtering and that he hid the items on instructions of
Isako. He held the torch over the fence for some time on instructions
of Isako, whereafter he gave it to Isako. I do not agree with the
State’s submissions that he should be found guilty as an
accessory after the fact of the murder of the deceased. The State
based this submission on an assumption that he must have become aware
of that offence and associated him with it in order that Isako could
evade justice. As far as the hiding of the rifles and the other items
are concerned, he testified that he did that on instructions of
Isako. I also find it suspicious that he would do so and would hide
these items in separate places in the bush, but on the evidence
before me, I cannot find the State has proved beyond reasonable doubt
that accused 6 was involved in the offence of the stock theft or the
murder.

[65] In
respect of the charge of obstructing or defeating the course of
justice, which was clearly based on the alleged failure of accused 6
to immediately retrieve the items that he had hidden, I also do not
find that this offence was proved beyond reasonable doubt. Although
it forms part of the evidence of what occurred during these pointings
out, delivered in the trial-within-a-trial, all that evidence was
also elicited in cross-examination when other witnesses e.g Warrant
Officer Hoveka, testified. There is nothing to gainsay the evidence
of accused 6 that he did not refuse to show the police where he had
hidden these objects. Initially he only asked where Isako, his
employer, was. That is certainly not unreasonable. When he was told
that Isako was apprehended and they, meaning also Isako and accused
2, were being held or interrogated by the police since early that
morning, he immediately co-operated.

[66] I
shall hereafter consider the different charges against all the
accused. The offences that the accused were arranged for, and to
which they all pleaded not guilty, have been extensively set out an
earlier paragraph of this judgment. Accused 2-5 pleaded not guilty to
all of the 6 charges against them, namely charges 1-6. Accused 6 was
not charged with the offences contained in charge 4 and its
alternative, but was charged in respect of charges 7 and 8. The State
submitted that all the accused are guilty as accessories after the
fact, as discussed earlier. I have indicated that the correct charge
would be that they defeated or obstructed the course of justice. They
were charged with that charge too, but the State did not ask for a
conviction of accused 2-5 on that charge, because it might have been
duplication of the murder charge. In respect of count 3, the State
requested a conviction. There is no evidence that any of the accused
stole these items that Isako removed from the deceased’s
vehicle and the State has failed to prove this offence beyond
reasonable doubt. In respect of count 4, theft of the deceased
vehicle, the State has conceded it cannot ask for a conviction, but
submitted that accused 2 should be convicted on the alternative
charge, namely the use of the deceased’s vehicle without his
consent. The State has certainly not proved this offence i.r.o
accused 2. I have already dealt with count 5 in respect of accused 6.
He cannot be convicted on that charge. The evidence involving accused
2 is not conclusive. There is no evidence that any of the accused
were involved in respect of the ear tag. With regard to count 6,
namely the altering of the brand mark, there is similarly no proof
beyond reasonable doubt that any of the accused is guilty of this
offence. Although Sixub testified, accused 2 used the branding iron,
he was not so clear about it in cross-examination. Isako was
apparently the one who used the branding iron to change the brand
mark on the skin of the heifer. Counts 7 and 8 involve only accused
6. The elements of these statory offences were not proved.

[67] On
the evidence before me the State only proved beyond reasonable doubt
that accused 2-5 are guilty of the second charge, namely theft of one
Heifer, a contravention of the Stock Theft Act, no 12 of 1990, as
amended. The State has failed to prove that accused 2-5 are guilty of
any of the offences contained in any of the other charges against
them.

[68] On
the evidence before me the State has not proved any of the offences
contained in the charges against accused 6.

[69] In
the result the verdict of this Court is the following:

1. Accused
   2,3,4 and 5 are all convicted of the offence of contravening the
   Stock Theft Act no 12 of 1990, as amended, as charged;

   
   

2. Accused
   2,3,4 and 5 are all found not guilty and are acquitted on all the
   other charges against them; and
   

   
   

3. Accused
   6 is found not guilty and is acquitted on all the charges against
   him.

   
   

_____________

MULLER,
J

On
behalf of the State: Mr L. Campher

Instructed
By: Office of the Prosecutor-General

On
behalf of Accused 2-5: Mr B. Isaacks

Instructed
By: Directorate of Legal Aid

On behalf of
Accused 6: Ms L. Hamutenya

Instructed
By: Directorate of Legal Aid