CASE NO.: CC 02/2009
THE HIGH COURT OF NAMIBIA
the matter between:
FESTUS SHIPANGA ACCUSED NO. 1
KAMATI ACCUSED N0. 2
Heard on: 2010.06.10 – 14; 2010.06.16
The background of
 On or about the 8th
July 2007, the deceased one Johannes Fellinger was killed in the
Khomas Hochland area, whereafter two male persons were arrested and
charged with a number of crimes.
 These two male
persons are now accused persons before this court.
 When their trial
commenced on the 3rd of June 2010, both accused persons
pleaded not guilty to all the charges. The trial then commenced.
 Several state
witnesses were called to testify in the course of the proceedings.
 Witnesses testified
about what had happened, amongst them was the investigating officer,
It is important to note
that the two accused persons were each represented by attorneys
instructed by the Directorate of Legal Aid who each confirmed that
the pleas were in accordance with accused’s instructions. No
plea explanations in respect of each accused were offered and no
admissions were made in terms of section 220 of the Criminal
Procedure Act, Act 51 of 1977 as amended.
 About 20 state
witnesses testified for the state, several exhibits both documentary
and specific items were also handed in, numbered and identified by
trial-within-a-trial in respect of the admissibility of the
pointings-out and the statement/confession were conducted during the
course of the main trial. That was specifically in respect of
accused 2 whereby the defence counsel for accused 1 had to be excused
from the proceedings that ensued.
 At this point in
time the court does not intend to refer to the evidence of all the
state witnesses in detail.
However, it is common
cause and I shall attempt hereinafter to summarise some of the events
of that day and thereafter with regard to the evidence that were not
in dispute in order to give a short background picture of what
 The evidence that
are in dispute will be analysed at a later stage in more detail.
 The background
based on undisputed evidence are as hereunder:-
10.1 That the deceased and his wife had arrived in Namibia on the 8th
of July 2007, from Germany as visitors.
10.2 That upon their arrival in Windhoek, they hired a pick-up motor
vehicle in order to travel within the country whereby they drove in
the direction of the Khomas Hochland.
10.3 That upon their arrival at or near the Francious Feste Stone
Ruins in the district of Windhoek, they disembarked from their motor
vehicle and were attacked by unknown persons, who were armed with
fire-rams and ammunition.
10.4 That the deceased was shot at least one, in the head and died on
the scene due to gun shot injuries.
10.5 That the deceased’s wife was assaulted by the attackers,
whereafter certain items were stolen from them.
10.6 That the attackers thereafter dumped the deceased’s body
in the bushes and forced the deceased’s wife into the motor
vehicle whereafter they drove away against her will.
10.7 That the motor vehicle in question was later involved in an
accident and was found abandoned on the road as the attackers fled on
10.8 That police were informed and visited the scene on the night of
10.9 That the vehicle
and the body of the deceased were recovered.
10.10 Photos of the scene were taken by police from the scene of
crime unit and the deceased’s body removed to the police
mortuary for a post-mortem examination.
10.11 That accused 1 was the first to be arrested in connection with
10.12 Accused 2 was also later on arrested for the same crimes as
further investigations continued.
 Regarding the
photos taken on the scene.
Photos 1 – 5
indicates the PM 370/07 done on the body of the deceased at the
police mortuary in Windhoek. All these were taken on the 9th
of July 2007, and compiled on the 13 July 2007 at the scene of crime
 A sketch plan with
a key to it was also drawn on the 31 July 2008 indicating several
points, with measurements from points A – F with a distance of
54 km, and from point F – N a distance of 58 km. These photos
were taken on the 8 July 2007.
Points A – E were
indicated by detective Inspector Louw of the Windhoek Criminal
Investigation department, all these photos represents Ex “M”
for easy reference.
 I however do not
find it necessary to deal with each of the photos contained in Ex “M”
 A post-mortem
examination was conducted on the body of the deceased. The
post-mortem report was also handed in without any objection from the
 I also do not
intend to go into the detailed report as indicated in the
 As mentioned
before, a trial-within-a-trial was held in the main trial, that being
in respect of the pointing-out done allegedly by accused 2 to Chief
Inspector Van Zyl of the Namibian Police, as well as a confession to
Chief Inspector Brune, who has since retired from the force.
The purpose of this
trial-within-a-trial was meant to establish whether the pointings out
and confessions were freely and voluntarily made and whether the
evidence in respect thereof are admissible.
 Accused 2
specifically objected to the admissibility of the pointings-out by
him to Inspector Van Zyl on the basis that such pointings-out were
not freely and voluntarily made, because he was assaulted or forced,
and also that his right to legal representation were not fully or
properly explained to him.
Through his attorney,
accused 2 particularly attacked the manner in which his right to
legal representation during the pointings out were done.
was then conducted whereby the state called Inspector Van Zyl to
testify as well as Ester Nambahu from the Complains and Discipline
 That Inspector Van
Zyl had influenced the accused persons into giving a response that he
did not want to give. The question that comes to mind is why the
witness would want a specific response from the accused person whom
he only met for the first time when he was brought to him for the
purposes of the pointings-out of the scene. Moreover the witness was
an independent witness who had not been involved in the
investigations of the case, nor had he been to his alleged scene of
 With regard to the
witness knowledge that accused had already applied for legal aid, at
the time he was brought to him, there was nothing that prevented
accused to retaliate his position regarding legal aid. It is a
common practise whereby an accused may decline to be represented by a
lawyer at the early stages of his/her arrest. In fact, the witness
had explained the right of the accused to be legally represented,
there and then before he went on to do the pointings-out.
 Accused was in his
sober senses, according to the witness, and did understand his rights
as explained to him by the witness. The interpreter that assisted
the witness with the interpretation of the proceeding also did
confirm this fact.
From the evidence
presented before court, it was the accused who had offered to the
pointings-out, and was then taken by Inspector Unandapo, to Inspector
Van Zyl, as Unandapo had been involved in the investigation of the
case, and had realized that it would not be proper for him to go on
with the pointings-out. In my view that clearly show his
impartiality in that whole exercise.
 At the same time
accused had made a request to speak to Inspector Unandapo through the
investigating officer, Sgt Hilundwa, who according to his evidence
had there and then, informed Inspector Unandapo, who in turn
contacted Inspector Brune who took the accused’s
statement/confession, again after he had informed accused of his
legal representation, including the right to legal aid.
 Contrary to the
denial by the defence that witness Ester Nambahu had failed to
corroborate Inspector Van Zyl, she did testify that accused’s
rights were explained to him and she interpreted to the accused to
the best of her ability. In her view, accused understood. It might
be so that the witness may have made some minor errors regarding the
presence of a cameraman, however that cannot make this court to
reject her evidence in toto.
 Regarding the
defence’s allegations that accused was repeatedly assaulted,
and was taken to Hosea Kutako police station and then to Dordabis in
order to influence him to do the pointings-out as well as the
confession or the giving of the statement to Inspector Brune, which
came about as a result of undue influence by the police. Evidence
was presented before court, which clearly shows that accused was only
taken to Dordabis on the 21 September, which means after he had
already done the pointings-out and confession on the 17 and 18 of
September 2007 respectively.
 One must also
consider that police may exercise their discretion when it comes to
issues of logistics.
 The court is
satisfied that the accused’s right in respect of legal
representation during the pointings-out were explained to him, that
he clearly understood it and preferred not to have a lawyer to
represent him at that stage.
 Indeed the court
is alive to what was said previously in other decisions, namely that
it is entitled to reverse its ruling made in a trial-within-a-trial
if other evidence at a later stage might indicate that the ruling was
 Throughout the
trial-within-a-trial there was no evidence that accused had failed to
co-operate with the police. In fact none of the witnesses testified
to that effect.
 In the light of
the evidence I am satisfied that both the pointings-out and the
statement/confession are ruled admissible as evidence before this
ON BEHALF OF THE
STATE: MS NDLOVU
OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF ACCUSED
NO. 2 MR KWALA
DIRECTORATE OF LEGAL AID