section
1 of Act 51 of 1977 are present in that the accused together with
one Steve Kaseraera were before or during or after the commission of
the crime wielding a firearm or a dangerous weapon, namely an
assegai/spear and inflicting grievous bodily harm to the said Jan
Hendrik Joubert by shooting him in the chest.
Count
3: Defeating or obstructing or attempting to defeat or to obstruct
the course of justice.
It
was alleged that on 21 June 2006 in the district of Gobabis the
accused together with Steve Kaseraera did unlawfully and with intent
to defeat or obstruct the course of justice removed the deceased's
body of Jan Hendrik Joubert and his motor vehicle from the scene
where he died and dumped it some distances away. Whereas these acts
were perpetrated whilst the accused knew or foresaw the possibility
that their conduct may:
i.
Frustrate
or interfere with police investigations into the disappearance
and
death of the deceased; and /or
ii.
Protect
one or both of them from being prosecuted for a crime in
connection
with the disappearance or death of the deceased; and /or
iii.
Conceal
or destroy or hide the physical evidence of an assault on
the
deceased.
Wherefore
the accused is guilty of the crime of defeating or obstructing or
attempting to defeat or obstruct the course of justice.
Count
4: Theft
On
4 June 2006 in the district of Gobabis the accused did unlawfully
and intentionally steal a firearm, namely a.308 Parker Hale rifle
with serial number 1050 and unknown amount of .308 bullets the
property of or in the lawful possession of Edward Kaseraera.
Count
5: Contravening section 2 read with sections 1, 8, 10, 38 and 39 of
Act
7 of 1996.
It
is alleged that during the period 04 - 23 June 2006 and at or near
Gobabis in the district of Gobabis the accused did unlawfully and
intentionally have in his possession an arm namely a .308 Parker
Hale rifle with serial number 1050 without having a licence to
possess such an arm.
Count
6: Contravening section 33 read with sections 1, 8, 10, 38 and 39 of
Act
7 of 1996.
It
is alleged that during the period 04-23 June 2006 in the district of
Gobabis the accused did unlawfully and intentionally had in his
possession ammunition namely one live bullet of . 308 calibre
without his being in the lawful possession of an arm capable of
firing such ammunition.
[2]
Mr Eixab appears on behalf of the State while Mr Muluti represents
the accused on the instructions of the Directorate of Legal Aid.
[3]
After the accused pleaded not guilty to all the counts contained in
the indictment the following documents were handed in by consent
namely:
Plea
trial memorandum which was marked as exhibit "B";
Accused's reply to the State's plea trial memorandum marked exhibit
"C"; record of proceedings in terms of section 119 of Act
1977 (Act 51 of 1977) marked as exhibit "D"; affidavit in
terms of section 212 (4) of Act 51 of 1977 together with the post
mortem report marked as exhibit "E"; Affidavit in terms of
section 212 (7) of Act 51 of 1977 marked as exhibit "F";
application for scientific examination marked as exhibit "G";
affidavit in terms of section 212 (4) (a) and 8 of Act 51 of 1977
marked as exhibit "H"; Scene of Crime photo plan marked as
exhibit "J"; statement by the accused titled "confession"
in terms of section 217 of Act 51 of 1977 dated 26 June 2006 marked
as exhibit "O"; "confession" in terms of section
217 of Act 51 of 1977 by the accused dated 27 June 2006 at 09:58
marked as exhibit "P"; warning statement marked as exhibit
"L", and photo plan no 1 marked as exhibit "M".
I will refer to some of these documents at a later stage.
[4]
The State called several witnesses and I now wish to proceed with
the summary of their testimony.
[5]
Melba Tjozongoro testified that on 21 June 2006 she was on duty with
her colleagues at Tallismanus area in Omaheke Region. They observed
a white Raider double cab vehicle parked in the riverbed near the
farm where accused person was staying. The witness and the nurses
she was transporting proceeded to the accused person's farm. They
had to go through certain gates to go to the posts. On their way
back their vehicle was stopped by the accused person and one Steve
Kaseraera. The witness informed Steve Kaseraera and the accused that
he was looking for them to give them polio drops. Steve Kaseraera
(whom I shall henceforth refer to as "Steve" to
distinguish him from other persons with a similar surname who
featured in the trial) went on the other side of the vehicle to
receive his drops. The accused remained at the driver's side of the
vehicle the witness was driving and requested the witness to give
him cigarettes. The witness knew the accused person and Steve
before. According to Ms Tjozongoro the accused did not appear to be
"normal"; he seemed to be scared or nervous as he was
looking around. The accused and Steve had nothing in their
possession. After the accused had a conversation with the witness,
he went to receive his polio drops. After the accused and Steve were
given polio drops the witness drove away. Whilst they were driving
she met the vehicle that was parked in the riverbed. She stopped the
vehicle and told the driver that they wanted to give him polio
drops. Whilst she was speaking to the driver of the double cab
vehicle she realised that she met him the previous day whilst he was
asking for the direction to Dorsland route. Ms Tjozongoro and the
driver of the double cab vehicle drove in opposite directions. The
place where the witness met the driver of the white double cab was
about 2 kilometers from the place where they were stopped by the
accused and Steve. The driver of the white double cab drove to the
direction where Steve and the accused were. Ms Tjozongoro described
the double cab vehicle which they met as a white Toyota with bluish
and greyish colours. The following day she learned that the driver
of the double cab was killed.
[8]
It was put to Ms Tjozongoro by Counsel for the accused that the
reason why the accused appeared to be nervous and scared was because
he was forced by Steve to go to a certain place where Steve saw a
motor vehicle; that the accused refused to go there because he did
not know the reason why they should go there and that Steve had
threatened to kill or assault the accused if he did not go with him.
The
witness responded that she had no knowledge of the alleged threats.
It was further put to the witness that the accused wanted to tell
the witness about Steve's threats but he was afraid for his life,
because if he had told the witness concerning Steve's threats the
witness might enquire and when the accused is left alone with Steve
he might carry out his threats since Steve was allegedly in
possession of a firearm. The witness responded that she did not see
Steve with a firearm.
[9]
Blondie Kaseraera testified that the accused's mother was married to
her uncle Edward Kaseraera. There was a time they were both staying
at Edward Kaseraera's house. On 21 June 2006 the accused came to
Edward Kaseraera's house in the company of Steve who is the cousin
to Blondie Kaseraera. When they came they were travelling by a
"bakkie" pick up motor vehicle. The vehicle which came
with the accused and
Steve
was loaded with goods namely; luggage, bags, chairs and mattresses.
The witness, Maria Nduvatie, Blondie Kaseraera, the accused and
Steve took the goods to a certain room after they were off loaded.
After they put the goods in the room the accused drove away with the
motor vehicle.
[10]
Before the accused drove the vehicle away Ms Kaseraera had the
opportunity to see the accused. According to her observations, he
appeared to be normal and did not complain of anything. After the
accused drove away he did not come back that day. The next morning
Steve asked Ms Kaseraera and Maria to hide some of the goods in the
bush, which they did. After Steve gave instructions he left the
house and he later came back in the company of the accused and the
police. They collected all the goods including the one which the
witness hid in the bush.
[11]
In cross-examination the witness was asked whether she was able to
look and see clearly the condition in which the accused and Steve
were since there was no electricity or any light. The witness
responded that it was not possible. It was further put to the
witness that the goods which were offloaded from the motor vehicle
and the vehicle itself were robbed from a white man by Steve after
he had killed him, and that Steve threatened to assault or kill the
accused if the accused did not go with Steve to Mr Kaseraera's house
to offload the goods. The witness responded that she did not know
what happened.
[12]
Again it was put to the witness that the accused was threatened by
Steve not to tell anyone of what happened and that was the reason
why the accused did not say anything to the witness because he was
afraid of Steve. The witness was not able to comment as she was not
aware of the alleged threats. Furthermore, it was put to the witness
that the accused was already instructed by Steve that after dropping
the goods he must go and drop the motor vehicle in Gobabis. The
witness could not comment.
[13]
Maria Nduvatie in her testimony essentially confirmed what Ms
Kaseraera testified about and stated that during June 2006 she was
staying at Mr Edward Kaseraera's house with Blondie Kaseraera. On 21
June 2006 she found the accused and Steve at home. They had a motor
vehicle loaded with goods. She inquired as to whose motor vehicle
was. Steve and the accused told her not to ask. The witness
testified that at the time she did not see Steve armed with a
firearm or threatening the accused. She further corroborated the
evidence of Ms Kaseraera that herself, the accused, Steve and
Blondie Kaseraera put the goods that were offloaded from the motor
vehicle into the house. She furthermore confirmed that after the
goods were put in the house the accused left with the motor vehicle
and that the following day Steve told her and Blondie to hide some
of the goods in the bush. In cross-examination similar questions to
the ones put to Ms Kaseraera concerning the alleged threats against
the accused by Steve were put to the witness and the witness did not
comment on what was put to her in this regard.
[14]
Edward Kaseraera testified about the theft of his firearm. His
testimony is that on 4 June 2006 he went to his cattle post at
Steenboklaagte where the accused and Steve were staying. When he
went to the cattle post he was in possession of a firearm namely
.308 Parker Hale rifle with serial no 1050 which was put behind the
driver's seat of the vehicle he was driving. When he went back to
Gobabis he realized that the firearm was missing. According to him
the firearm had no ammunition at the time it was stolen because all
the ammunition where with him in the pocket.
[15]
Janie Daniel Verster gave evidence to the effect that on 22 June
2006 at around 06h30 in the morning he was on duty at Karoo in the
district of Gobabis. Whilst on duty he came across a motor vehicle
parked in the bush. It was a Toyota Hilux double cab with
registration no. CL 12006. He and his colleague went close to the
motor vehicle. The key to the motor vehicle was lying in front of
the vehicle under the grass. He inspected the vehicle and observed
blood at the back of the car. He testified that he saw the same
motor vehicle on the 21 June 2006 at the service station. The driver
of the vehicle had a jacket on which was khaki brown in colour with
blue jeans with stripes on the arm and he was drinking coffee at the
service station. He spoke to the owner of vehicle briefly. Verster
asked him where he came from and he told him that he was from South
Africa and that he was busy drawing maps for tourists. The witness
identified a jacket in Court similar to the one that was worn by the
driver of that motor vehicle. The witness was shown a photo plan
depicting a motor vehicle and he identified it to be the motor
vehicle he saw on 21 and 22 June 2006.
[16]
The State wanted to call a witness to testify about the identity of
the deceased as well as the goods that were indicated in the
indictment that they belonged to the deceased. The defence counsel
made formal admissions in terms of section 220 of Act 51 of 1977
that the defence does not dispute the identity of the deceased and
that the goods that are listed in Annexure "A" of the
indictment are the property of the deceased.
[17]
The next witness called by the State was Petrus Swartz a Deputy
Commissioner in the Namibian Police based at Omaheke Region. His
evidence was to the effect that on 26 June 2006 he was an Inspector
in the Namibian Police. On the same day the accused was brought to
him to make a "confession" which is referred to as exhibit
"O". The Inspector (as he then was) called constable
Katjiue to act as an interpreter during the taking of the alleged
confession. Katjiue is an Otjiherero speaking person who speaks the
same language as the accused. Katjiue translated from Otjiherero to
English and vice versa. Deputy Commissioner Swartz explained the
accused's rights to legal representation and the right to remain
silent. He used a pro forma which had questions to determine whether
the accused was giving a statement freely and voluntarily. I do not
wish to repeat the questions contained in the pro forma as it is not
an issue that the statement was not given freely and voluntarily.
When the accused gave his statement on 26 June 2006 at 11h00, he
stated that he had already given a statement on 25 June 2006 but he
had omitted a lot of things concerning what exactly happened at
Steenboklaagte, Rietfontein.
[18]
In his statement he stated the following and I quote verbatim:
"On
Monday 2006.06.19 I was at my place of residence Steenbokslaagte in
the area of Rietfontein. I am living together with Steve Kaseraera
and Vekohasena Kaseraera at that post. Steve was not present and
returned home on 2006.06.20 late during the night with his horse
from Post Vasbyt. On Wednesday 2006.06.21 I wake up early and
started to make a fire whereafter I observed that one cow is missing
and not at home. When Steve wake up I told him about the missing cow
and we went to the field to seek for the missing cow. We went up to
the gate of Eiseb and we met with the vehicle from the Ministry of
Health visiting that area to distribute and give the polio drops. We
received our drops close to that gate whereafter that vehicle left
and drove away. Short after that we observed a bakkie of those of
the tourists approached the gate which were closed. The vehicle got
stucked in the sand and the driver struggle to remove it from the
sand whereafter he went to open the gates. Steve then went towards
the driver who did not saw us and I followed Steve slowly from
behind. Steve met with the driver, who was alone close to his
vehicle whereafter I saw that Steve stabbed the driver with an
"assegai", selfmade, in the chest and grabbed him from
behind whereafter he called me to come and assist him. I came closer
and saw that Steve was pulling the driver, who was full or blood, to
the backside of the vehicle. I was so shocked and decided to ran
back home and what I did. At about 30 minutes later Steve arrived at
home with the bakkie of that tourist and told me to come and drive
the bakkie further. I first refused but then he treat me that he
will beat me up whereafter I
On Thursday
2006.06.22 I took back a taxi minibus to Tallismanus to meet with
Steve as agreed. We met late on Thursday and decided to overnight in
Tallismanus.
On Friday
2006.06.23 we decided to go back to our place Steenboklaagte. On our
way back we observed police vehicles patrolling the area and we
reached home late. On our arrival at home nobody was there and we
observed that the rooms where tampered with but we were tired and
just went to sleep.
On Saturday
2006.06.24 we woke up and discovered that the riffle is not there.
When we came out the police were outside after which they started to
question us and interrogate us. First we argued with them but later
stated that we committed that murder" (Sic).
[21]
The above statement was translated by Constable Katjiue who
interpreted from Otjiherero to English and vice versa. After it was
completed it was read back to the accused and he signed it.
Constable Katjiue and Inspector Swartz also signed. There were no
communication barriers during the taking of the statement.
[22]
Upon cross-examination it was put to the witness that the accused
does not dispute that he gave the alleged confessions but he is
disputing the correctness of the information contained in the
confessions because firstly he gave wrong information to the
Inspector and secondly there was wrong information due to wrong
translation. The witness responded that he wrote what was translated
to him.
Concerning
the statement that was taken on 26 June 2006 it was put to the
witness that Steve threatened the accused to accompany him to the
place where he saw a motor vehicle the previous day and the accused
resisted. The officer's response was that he wrote down what he was
told. It was further put to the witness that Steve shot the deceased
and did not stab him and the fact that he shot him was consistent
with the post-mortem report. The witness confirmed that the deceased
was shot and not stabbed.
[23]
Concerning the statement given on 27June 2006, it was put to the
witness that the statement was wrongly translated especially where
it was stated that the accused is the one who shot the deceased, it
was supposed to read that Steve shot the deceased with the firearm.
The witness again responded that he wrote what was translated to
him. It was again put to the witness that Steve threatened the
accused and instructed him to go to the place where the deceased
was; at that place the accused observed Steve shooting the deceased,
the accused was surprised and shocked. The witness answered that if
the accused was threatened he could have reported it earlier he had
the opportunity to go away from Steve. He only came to say it on 26
and 27 June 2006 despite the fact that he was arrested on 24 June
2006.
[24]
Ranny Katjiue a constable in the Namibian police testified that he
interpreted when the accused was giving a statement to Inspector
Swartz. The witness understands Otjiherero very well and he
communicated with the accused clearly. There was no
misunderstanding. He truly and correctly interpreted for the accused
from Otjiherero to English and vice versa.
During
cross-examination it was put to the witness that the accused gave
wrong information to the witness when he told him that the deceased
was stabbed by Steve with a spear and because Steve did not kill the
deceased with a spear the accused decided to give another statement
to correct what he said earlier. The witness did not comment about
that. It was again stated to him that the accused told the
investigating officer that the deceased was shot by Steve with a
firearm and the accused wanted to relate the information to
Inspector Swartz. The witness said he interpreted what he was told
by accused that he, the accused, shot the deceased with the firearm.
The witness was further confronted that in the statement it was
written that "we agreed that I (the accused) should take the
motor vehicle to Gobabis." Counsel put it to the witness that
his instructions were that there was no such agreement as the
accused was instructed by Steve to take the motor vehicle to
Gobabis. The witness persisted that he translated what he was told.
[25]
Rudolf Julius Isaak, a Chief Inspector in the Namibian Police,
testified that on 22 June 2006 he discovered an abandoned vehicle in
Gobabis. He and Detective Warrant Officer Jantjies, the
investigating officer in this matter, inspected the scene around the
vehicle. On 23 June 2006 they went to Eiseb, Steenboklaagte where
the deceased person was shot and killed. They looked for the body of
the deceased and they found it at
Marenga
Post. The deceased was killed in Steenboklaagte in Tallismanus area
about 2 kilometres from the place where the body was found. The
information which led to the discovery of the place where the
deceased was killed was given by Steve. The accused did not say more
he said that when Steve killed the deceased he ran away. The
distance from Edward Kaseraera's house to Gobabis is about 145 km.
In
cross-examination the witness was asked what the accused told him.
The witness said the accused told him that Steve killed the deceased
and Steve was saying the accused killed the deceased. The accused
and Steve were blaming each other. It was disputed through
cross-examination that the accused never said that after Steve
killed the deceased he ran away, because it was not stated in the
witness's statement. The witness stated that although it was not in
the statement the accused said it. Through re-examination the
witness said the body was first discovered before Steve pointed out
the place where the body was found.
[26]
Dawie Jantjies, as previously stated a Detective Warrant Officer and
the investigating officer testified that on 22 June 2006 he was
summoned to a vehicle that was abandoned in the bush about 800
metres from Epako township. It was a Toyota Hilux 4x4 double cab
with registration No. CL 12006. Upon examining the vehicle, he
noticed the keys of the vehicle lying next to it. Around the vehicle
there were shoe tracks of a person that appeared to have disembarked
from the driver's side of the motor vehicle and moved into the
direction of Epako Township. He also observed bloodstains on the
loading box floor. He searched the vehicle and found a passport that
belonged to one Jan Hendrik Joubert, a South African. He later came
to know that Mr Joubert is the deceased. According to his
investigations he discovered that the deceased was equipped with GPS
map data, satellite modems as well as laptops. According to the GPS
data the deceased was around Tallismanus and Steenboklaagte areas.
On 23 June 2006 the witness with his colleagues decided to follow
the direction in which the deceased was driving. Whilst they were
busy looking for the deceased they came across the accused and
Steve. By then the witness was not aware that the two persons were
involved in this matter. They proceeded to search until they came
across some vehicle tracks. Those trucks looked similar to the
vehicle that was found abandoned in Gobabis. They followed the
tracks up to Marenga's Post; the tracks went into the bush. The
witness followed the tracks on foot and came across the deceased's
body. The body was lying on its back. It had dry bloodstains on the
face and on the shirt. The body was barefoot. The deceased's body
had a bullet wound. According to the witness's observations the body
was off loaded from the vehicle of the tracks that they were
following.
[27]
The witness and his colleagues continued to follow the tracks of the
motor vehicle from the deceased's body into the bush. The vehicle
drove back to the gate where it came from. They followed the vehicle
tracks up to a tree where it stopped. There they observed two pairs
of shoeprints. From shoeprints it appeared as if people went back
into the vehicle and drove away. The witness and his colleagues went
back to the place where they found the deceased's body. There the
witness drew up a rough sketch plan and took some photos depicting
the body of the deceased. An arrangement was made to remove the
deceased's body.
[28]
On 24 June 2006 the witness in the company of other police officers
returned to Steenboklaagte in order to search for the culprits. They
went to a cattle post where they found the accused and Steve. The
accused person and Steve appeared nervous. They were interviewed in
connection with the deceased and the vehicle. Both of them denied
any knowledge and said they were in Tallismanus on 21 June 2006. The
witness searched the house and found bloodstained trousers and two
bloodstained jackets. The accused and Steve were taken to
Tallismanus where they were further interrogated separately. They
were both implicating each other saying the other killed the
deceased.
[29]
The next morning on 25 June 2006, accused person was warned and
asked whether he wanted to point out anything. The accused said he
could not point out anything, because he said at the time Steve
killed the deceased he ran away. On 25 June 2006 the witness again
drove to Steenboklaagte with Sergeant Pietersen, Sergeant Kankameni,
the accused and Steve. Steve pointed out places and led the police
to a place where the deceased's goods were recovered. Among the
property recovered were clothes, foodstuff, petrol jelly cans,
camping equipment, 2 laptops, and a GPS. Some of these goods were
found in a steel trunk belonging to the deceased. The steel trunk
was hidden in the bush. The items were seized and on 27 June 2006
were identified by the brother of the deceased. He also identified
the deceased's body during the postmortem examination.
After
the investigation the accused indicated that he wanted to make a
confession. The witness referred him to Inspector Swartz. After he
gave a statement to Inspector Swartz, the accused went back to the
witness. The witness took a warning statement from the accused. The
accused then told the witness that there was something in the
statement he made to Inspector Swartz that he wanted to rectify. He
said he lied in that statement by saying that the deceased was
stabbed with a spear. The truth was that the deceased was shot with
a rifle. The accused allegedly stated that when he made the first
statement he was scared because the firearm that was used to kill
the deceased belonged to his uncle Edward Kaseraera. The accused was
again sent to Inspector Swartz to make another "confession".
[30]
The rifle that was used to kill the deceased was recovered from the
house where the accused and Steve were staying. The rifle was
produced before this court. Furthermore the witness testified that
on 23 June 2006 when they were investigating, at the time they met
Steve and the accused the accused was wearing one of the jackets
found at the accused's place.
The
jacket was similar to the deceased's jacket. It was the Warrant
Officer's further testimony that at the time the accused was
arrested he did not mention to him that he was forced to commit the
crime. When the accused was first approached and interviewed in
connection with this matter, he denied any knowledge.
[31]
During cross-examination it was put to the witness that the accused
was found wearing a khaki jacket which was confiscated by the
police. The witness was asked whether he was able to produce the
jacket before Court and he responded that he was not able to produce
it. It was further put to the witness that the fact that he did not
state in his police statement that the accused was wearing a jacket
similar to that of the deceased was a fabrication, which assertion
the witness denied. It was again put to the witness that it was
Steve who fired the firearm and shot the deceased. The witness's,
comment was that he was not in a position to tell the Court who
fired. It was further put to the witness that based on medical
evidence, the deceased died from a gunshot wound. The witness
agreed. A further question put to the witness was that when the
accused person reached the point where the deceased was shot by
Steve, it happened so quickly that the accused only saw Steve firing
a shot which killed the deceased, he had no knowledge that Steve
intended to kill the deceased. The witness could not comment.
[32]
Another version put to the witness was that after Steve killed the
deceased, he instructed the accused to help him dispose of the
deceased's body, take away his belongings and drive away the
deceased's motor vehicle. The accused resisted. However, since he
witnessed the deceased's killing he succumbed to the threats and
carried out the instructions. The witness declined to comment since
he was not there.
[33]
Apart from the testimonies of witnesses certain documents were
handed in by consent as I indicated earlier. Among such documents
was a report on a medico-legal post-mortem examination. According to
this report the chief post-mortem findings made on the deceased's
body were:
A
gunshot wound of the chest; a gunshot wound on the right shoulder,
which shoulder was severely lacerated; severely lacerated upper and
middle lobe right; multiple rib fracture; the sternum and the heart,
with signs of previous open heart surgery. According to the report
the cause of death was gunshot injuries of the chest.
[34]
Another document handed in was an affidavit in terms of section 212
(4) (a) and (8) of the Criminal Procedure Act, No 51 of 1977 by
Chief Forensic Analyst who examined one .308w rifle with serial No
1050w and one .308w spent case and concluded that the spent case was
fired from rifle with serial No. 1050w.
[35]
Apart from the aforementioned documents there was another affidavit
in terms of section 212 (7) of Act 57 of 1977 by Constable Gotlieb
Shituleni Nangolo indicating that the body was identified to him as
that of Jan Hendrick Joubert by Albertus Erasmus Joubert. Constable
Nangolo in turn pointed out and identified the body to Dr E H
Shangula who conducted the post-mortem examination on the deceased's
body.
[36]
At the end of the State case counsel for the accused applied for a
discharge in terms of section 174 of the Criminal Procedure Act,
1977 (Act 51 of 1977). The application was in respect of all counts.
The Sate opposed the application in respect of counts 1 - 3, but
conceded that the application in respect of counts 4 - 6 be granted.
The Court discharged the accused on counts 4 - 6. It placed the
accused on his defence on counts 1 - 3. I indicated that full
reasons for my ruling would be provided in the main judgment.
[37]
The following are my reasons and I propose first to deal with the
law regarding section 174.
Section
174 of the Act provides as follows:
"If at
the close of the case for the prosecution at any trial the court is
of the opinion that there is no evidence that the accused committed
the offence referred to in the charge or offence of which he may be
convicted on the charge it may return a verdict of not guilty."
The
court has discretion to discharge the accused at the end of the
State case. See R
v Kritzenger and Others 1952
(2) SA 401 (W) at 402.
This
Court pointed out in S v
Kapika and Others (2)
1997, NR 290 G:
"The test
to be applied is whether there is sufficient evidence on which a
reasonable Court could convict the accused. Even if
there is
insufficient evidence, the Court can still refuse to grant the
application. It must be borne in mind that the Namibian Constitution
provides for the protection of the fundamental rights of accused
persons and that the Court must bear these provisions in mind when
exercising its discretion in terms of section 174."
[38]
There cannot be a single and all inclusive formulation in respect of
the discharge of an accused in terms of section 174 of the Criminal
Procedure Act, but certain guidelines can be suggested inter
alia, the
Court has discretion to discharge at the end of the case. Where
there are multiple charges, an accused may be discharged on one or
more of the charges. The criterion at this stage is whether there is
no evidence on which a reasonable Court, acting carefully, may
convict. Credibility of witnesses plays only a very limited role at
this stage; it is a consideration whether there is a reasonable
possibility that the defence evidence may supplement the state
evidence; certain factors may have an impact on a consideration
whether the accused may provide evidence to substitute that of the
State like the type of the offence alleged; the manner of
questioning and putting statements to witnesses during
cross-examination and allegations or admissions during pleadings.
The rights of the accused as entrenched in the Namibian constitution
should always be kept in mind and every case should be considered on
its own merit and circumstances. S v
Nakale and Others 2006
(2) NR 455 (HC).
[39]
Another point of consideration is whether the Court's discretion in
terms of section 174 to discharge or not is affected by Article 12
(f) of the
Namibian
Constitution which affords protection to an accused in a criminal
trial not to be compelled to give evidence against himself.
Fundamental rights of an accused person enshrined in the Namibian
Constitution do not affect the discretion to be exercised by the
Court in terms of section 174. See S
v Nakale and Others supra.
[40]
As far as credibility of State witnesses is concerned, there are
conflicting views whether and to what extent consideration should be
given to the credibility of a witness at the closing of the state
case. Brand AJA writing on behalf of the Court in S
v Teek, Case
No SA 44/2008 (unreported) delivered on 28 April 2009 stated the
following:
"Somewhat
more controversial is the question whether credibility of the State
witness has any role to play when a discharge is sought under this
section. But the general accepted view, both in Namibia and in South
Africa, appears to be that, although credibility is a factor that
can be considered at this stage, it plays a very limited role. If
there is evidence supporting a charge an application for a discharge
can only be sustained if that evidence is of such poor quality that
it cannot, in the opinion of the trial court, be accepted by any
reasonable court (See S v Mpetha 1983 (4) SA 262 (C) at 265; S v
Nakale supra at 458). Put differently the question remains; is
there, having regard to the credibility of the witness, evidence
upon which a reasonable court may convict?"
[41]
It was argued on behalf of the accused that no witness called by the
state gave direct or circumstantial evidence implicating the
accused. Therefore no inference could be drawn that the accused
committed the offences charged. The only evidence that might come
closer to implicating the accused is the alleged confessions or
statements. It was further argued by the defence that the state
failed to establish a prima
facie case
against the accused that he acted with a common purpose with Steve
to commit the offences on which he is indicted. The defence argued
furthermore that the State has failed to satisfy the requirements
regarding common purpose as set out in the case of S
v Safatsa and Others 1988
(1) SA 868 (A) to which I shall return at a later stage.
At
this juncture I do not intend to deal with this issue of common
purpose as I intend dealing with it when considering the evidence
after the close of the defence case.
[42]
On the other hand counsel for the State argued that if the accused
was threatened to commit the offence he would have alerted Ms
Tjozongoro who met the accused and Steve before the commission of
these offences. The state further argued that it is of no
consequence whether Steve pulled the trigger or it was the accused.
They both shared the common purpose the accused was aware of the
plan to kill the deceased. He helped Steve to load the body of the
deceased in the vehicle as well as the goods. He is the one who
abandoned the deceased's vehicle in the bush. Looking at all the
circumstances of the case the court may draw an inference that the
accused acted in common purpose with Steve. Therefore the defence of
compulsion is not applicable to him, so it was argued.
[43]
It is clear from questions put to State witnesses through
cross-examination that the accused was present when the deceased was
shot with a firearm. After he was shot the accused was allegedly
threatened to load the body of the deceased in the vehicle as well
as the goods. The accused drove the motor vehicle in the company of
Steve and disposed off the deceased's body by dumping it in the
bush. It is also not in dispute that from there they proceeded to
Edward Kaseraera's house where they off loaded the deceased's goods.
That the accused drove the deceased's vehicle alone for more than
100 km from Edward Kaseraera's house to a place where he dumped the
vehicle is also not disputed. He was later arrested on 24 June 2006.
[44]
The accused person gave more than one so-called confessions which
are contradicting each other. I do not wish to deal with the weight
to be attached to these statements at this stage. Apart from the so
called confessions; proceedings in terms of section 119 Act 51/77
were produced in which the accused pleaded not guilty. His reasons
for pleading not guilty were that, he was allegedly forced by Steve
and that he had no intention to do what he did.
[45]
The accused person stated that he allegedly acted under compulsion.
In
S v Teek 2009
(1) NR 127 at 133 B - C Brand AJA stated as follows:
"I will
accept without deciding, that the exculpatory parts of an accused's
section 115 statement form part of the evidential material before
the court at the end of the state case. See e.g. S v
Tjiho (2) 1991
NR 266 (HC) at 271 E; S v Shivute 1991 NR 123 (HC)
1991 (1) SACR
656 (NM) at 127 (C). But it must be self-evident that
very little if
any weight can be attached to an unsworn statement, not tested in
cross-examination, which amounts to no more that the accused's
self-serving ipse dixit that his intentions were honourable."
[46]
For the foregoing reasons and without considering what was contained
in the accused's several statements, I found that the State had
established a prima
facie case
against the accused on counts 1 - 3 and I decided to place the
accused on his defence. As far as counts 4 - 6 were concerned, I am
satisfied that the concessions by the State were correctly made.
[47]
After the court ruled that the accused will be placed on his defence
the accused exercised his constitutional right, as he is entitled to
do, to remain silent and called no witnesses.
[48]
It was argued on behalf of the State that the Court should find the
accused guilty as charged on counts 1 - 3. The State based its
argument on the grounds that the accused did not act under duress or
compulsion, because he could have informed Ms Tjozongoro; or
disassociated himself from Steve when he arrived in Gobabis after he
drove the vehicle from Mr Kaseraera's house or he could have
reported the matter to the police when he drove the vehicle alone or
he could have reported to the police at the time he was arrested.
The State argued that the accused was a willing and active
participant. The defence of compulsion was a fabrication because if
he was threatened he was not going to tell the police that he did
not know anything at the time he was interrogated by the police. The
State further argued that the accused acted in a common purpose with
Steve, because according to section 119 of Act 51 of 1977
proceedings he stated that shortly after the deceased was killed he
and Steve looked for the keys to the deceased's motor vehicle. They
loaded the body of the deceased and drove with the deceased's car.
Counsel for the State has also referred to the admissions made by
the accused in the so-called confessions.
[49]
On the other hand it was argued by counsel for the defence that the
State did not prove the case against the accused beyond a reasonable
doubt in respect of counts 1 - 3 because there is no direct evidence
implicating the accused. It was further submitted that no
circumstantial evidence has been adduced before Court upon which the
Court can draw a reasonable inference about the acussed's guilt.
According to counsel for the defence, the only evidence that might
come closer to implicating the accused was the alleged admissions.
It was furthermore submitted on behalf of the defence that the
accused was seen driving the deceased's vehicle but that was after
the murder and robbery had already been committed. This factor, so
counsel argued, could only be considered in respect of the
attempting to defeat or obstruct the course of justice. It could not
be considered in respect of the murder and robbery charges.
[50]
The defence further argued that the State did not prove the causal
connection between the accused and the death of the deceased;; that
the
State
had failed to prove that there was an agreement between the accused
and Steve to commit the offences because no witness testified that
he or she heard the accused and Steve planning to rob the deceased
and shoot him in the process. The Court was again referred to the
requirements concerning common purpose in Safatsa case supra. I do
not wish to restate these requirements as I have already indicated
them earlier herein but I will deal with the submissions regarding
the alleged lack of agreement between Steve and the accused to
commit the crimes under consideration at a later stage.
[51]
Counsel for the accused continued to argue that the accused had no
prior knowledge of the shooting. He was forced by Steve to go with
him; he never intended to act in common purpose with Steve and that
he lacked mens
rea to
commit the offences.
[52]
This Court is called upon to determine whether the State had proved
beyond reasonable doubt that the accused acted with a common purpose
with Steve to commit counts 1 - 3. Before I attempt to answer this
crucial question, I propose to state facts which are common cause.
It is common cause that the accused was present when the deceased
was killed. It is also common cause that after the deceased was
killed the accused and Steve loaded the deceased's body in the
vehicle, the vehicle was driven in the bush where the deceased's
body was dumped. It is also common cause that the accused and Steve
loaded the deceased's goods and took some of the goods to the house
of Edward Kaseraera where Maria and Blondie assisted the accused and
Steve to put the goods in a certain room. These goods where
recovered from Edward Kaseraera's house and some of them were
recovered from the bush where they were hidden.
[53]
It is also not in dispute that the deceased was shot with a rifle
and sustained injuries described in the post-mortem report and that
the cause of death was gunshot wound.
[54]
Issues in dispute are whether the accused pulled the trigger to kill
the deceased or whether he acted in common purpose with Steve.
Whether by allegedly assisting Steve to load and offload the body
and belongings of the deceased and to drive the deceased's motor
vehicle he acted under threat or compulsion and whether he lacked
the intention to commit the crimes he is charged with.
[55]
The accused made three statements two of which are styled
"confessions" whilst one of them is a warning statement
produced before court and admitted as part of the evidence. It will
be recalled that in his statement dated 26 June 2006 the accused
inter
alia stated
that he saw Steve stabbing the driver with a self-made "assegai"
or spear in the chest and grabbing him from behind whereafter Steve
called the accused to come and assist him. The accused came closer
and saw that Steve was pulling the driver who was full of blood. The
accused was shocked and decided to run back home.
[56]
In his warning statement dated 27 June 2006 he stated that on 26
June 2006 he made a statement but some of the things he said therein
were not true and that he wanted to correct that statement. He
proceeded to say that what he told the Police Inspector that Steve
stabbed the deceased with the spear was not true. Steve shot the
deceased with a .308 rifle which was taken by the police from their
house at Steenboklaagte. The reason why he said that Steve stabbed
the deceased was because the accused was scared and that the rifle
belongs to his stepfather who is the owner of the cattle he was
taking care of.
[57]
In the statement dated 27 June 2006 also called a confession, he
said inter
alia that
on 21 June 2006 when he and Steve reached the Eiseb gates, they saw
nothing and sat under a tree. Steve had a rifle and he had a
self-made spear or "assegai". After they received their
polio drops the officials left to the side of Tallismanus. Not long
after that a vehicle for a tourist approached the gates and got
stuck in the sand. The tourist got out of the car and deflated the
wheels. He went to open the gates. Steve then told him to take the
rifle and to go and shoot the tourist after which the accused
refused but Steve threatened to kill him. The accused then took the
rifle from Steve and went towards the tourist's vehicle. The tourist
was still busy opening the gates. When the tourist turned back
towards the vehicle the accused shot him on the chest and the
tourist fell down.
[58]
From the above statements it is clear that the accused gave versions
which are contradicting each other. In the so called "confession"
dated 26 June 2006 it appears to me that the accused decided to lie
or to give wrong information to the Inspector deliberately. In the
second "confession" dated 27 June 2006 the accused decided
to tell his what he then said was the "truth". I have
great difficulties in determining which one of the statements
contains the correct version. By giving conflicting versions the
accused proved to be an unreliable source. Therefore this Court will
attach very little weight if any to these statements. I referred to
some of the statements made by the accused as 'so-called
confessions". I did so advisedly for the statements are in my
view not confessions at all. For a statement to amount to a
confession it must be an unequivocal admission of guilt.
[59]
I now wish to discuss the crucial issue of common purpose. In S
v Safatsa and others 1988
(1) SA 868 it was stated in the headnote that:
"The
principle applicable in cases of murder where there is shown to have
been a common purpose is that the act of one participant in causing
the death of the deceased is imputed as a matter of law, to the
other participants (provided of course, that the necessary mens
rea is
present). A causal connection between the acts of every party to the
common purpose and the death of the deceased need not be proved to
sustain a conviction of murder in respect of each of the
participants."
See
also S
v Gurirab and Others 2008
(1) NR 316 (SC) where this principle was authoritatively stated to
be part of our law.
[60]
In S v
Mgedezi and Others 1989
(1) SA 687 (A) at 705 - 706 it was stated that in cases where the
State does not prove a prior agreement and where it was also not
shown that the accused contributed causally to the wounding or death
of the deceased, an accused can still be held liable on the basis of
the decision in Safatsa
supra if
the following prerequisites are proved, namely:
The
accused must have been present at the scene where the violence was
being committed;
he
must have been aware of the assault being perpetrated;
he
must have intended to make common cause with those who were
actually perpetrating the assault;
he
must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of
association with the conduct of the others;
he
must have had the requisite mens rea; so in respect of the killing
of the deceased, he must have intended them to be killed; or he
must have foreseen the possibility of their being killed and
performed his own act of association with recklessness as to
whether or not death was to ensue. . The above dictum was approved
in S
v Gurirab and Others supra.
[61]
It must follow from the above authorities that the submissions from
counsel for the defence to the effect that the State did not prove
that there was an agreement between the accused and Steve to commit
the crimes and that there was no evidence of a causal connection
between the accused and the death of the deceased cannot be correct
in law. I am satisfied that prerequisites (a) and (b) set out in S
v Mgedezi (supra) have
been met in that from what has been put to State witnesses the
accused was placed at the scene where the violence was being
committed and was aware of the assault being committed. Prerequisite
(c) was also met in that the accused made common cause with Steve
who was perpetrating the assault except that he says that he was
forcefully instructed by Steve to participate in the commission of
the crimes. I will deal in due course with the alleged compulsion
but let me continue with the consideration of the elements of common
purpose. Prerequisite (d) was in my view also met in the sense that
the accused helped Steve again allegedly under duress to dispose of
the body of the deceased and to take away his property after the
deceased was killed. As regards the intention which is the last
requirement set out in Mgedezi
supra, it
will depend on how the issue of compulsion will be resolved and I
propose to consider it at later stage.
[62]
I turn to consider the issue of alleged compulsion. Although there
was no eye witness in this case most of the facts are common cause
or are not disputed. Some of the facts were established through the
cross examination of State witnesses.
[62]
Through his counsel the accused put it to State witnesses that he
was threatened to participate in the commission of the crimes. He
also stated this in the explanation of his plea in terms of section
119 of the Criminal Procedure Act, 1977. Informal admissions
contained in the accused's statement in terms of section 115 of the
Criminal Procedure Act given in an explanation of the accused's plea
of not guilty stand on the same footing as extra-curial statements
in that they are items of evidence against the party who made them,
but which such party may contradict or explain away. They are not
evidential material which counts in favour of the accused. Such
exculpatory statement must be repeated by the accused under oath as
a general rule for them to have any value in favour of the accused.
One possible exception to the general rule is that when a defence is
raised in the exculpatory part of an explanation of plea, it may be
necessary for the state to negative that defence to the extent of a
prima
facie case.
Furthermore, the exculpatory portion of an incriminating statement
should also be considered, although a Court can reject the
exculpatory part in its discretion, particularly when it was not
made under oath and not subject to cross-examination. S
v Shivute 1991
NR
123 at 124B-C.
[63]
The accused did not testify in his defence. He, of course, has a
constitutional right to decide to remain silent. However, in cases
where a prima
facie case
is made against him and where he raises a defence and he did not go
to the witness box to explain his defence he takes a risk. See also
S v
Haikele 1992
NR 54 at 63D-E on the effect of silence of an accused in the face of
a prima
facie case.
[64]
In this case the accused's defence is that of compulsion. Compulsion
is a state of mind. As stated before, the accused did not testify to
explain to the Court how the alleged threats towards him by Steve
affected his mind to act the way he says through his counsel he did.
Where the accused's state of mind is involved the court may find
difficulty in finding in his favour where he has not given evidence.
S v
Haikele, supra at 63E-F and
the cases cited thereat. In the absence of the accused's explanation
this Court cannot determine veracity of the defence and the extent
to which the accused may have been affected by the alleged threats
for him to do what he said he did. Assuming, however, that he was
threatened, from what was put to State witness Tjozongoro in cross
examination, before the commission of the crimes, the accused was
already threatened by Steve and was asked to accompany him to a
place where Steve had seen a motor vehicle. If it was indeed so that
he was threatened he could have reported to Tjozongoro. He had an
opportunity to be with Tjozongoro while Steve was receiving his
polio drops on the other side of the vehicle. Moreover, if the
accused could not tell Tjozongoro because he felt that his life was
in danger, he had every opportunity to report to the police when he
drove the vehicle alone from Edward Kaseraera's house to where he
abandoned it which was approximately 145 kilometres away from where
he had left Steve. Furthermore, when he was asked whether he knew
something about the crimes, he stated that he did not. Upon further
interrogation, he and Steve accused each other of having committed
the crimes. He did not tell the police at that early opportunity of
the alleged threats. In all probabilities the claim of threats is a
fabrication. I therefore reject the defence that the accused was
threatened. I find furthermore that the State has proved beyond
reasonable doubt that the accused intended to kill the deceased;
that he acted with a common purpose with Steve by murdering the
deceased and robbing him of his belongings. He, again in the
furtherance of the common purpose, attempted to defeat or obstruct
the course of justice by disposing of the deceased's body. On the
murder charge, my finding is that the accused had direct intention
to murder the deceased.
[65]
In the result, the accused is found guilty and convicted as follows:
1st
count:
Guilty of murder with direct intent.
2nd
count:
Guilty of robbery with aggravating circumstances.
3rd
count:
Guilty of attempting or obstructing to defeat the course of
justice.
SHIVUTE, J
ON
BEHALF OF THE STATE Mr
Eixab
Instructed
by: Office
of the Prosecutor-General
ON
BEHALF OF DEFENCE Mr
Muluti
Instructed
by: Directorate:
Legal Aid
S v Karirao (CC 18/2010) [2010] NAHC 192 (18 November 2010);