CASE
NO.: CC 32/2001
REPORTABLE
SUMMARY
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
and
CALVIN
LISELI MALUMO & 112 OTHERS
HOFF,
J
7
April 2011
Trial-within-a-trial
– pointings-out.
Admissibility
requirements - voluntariness and fair pre-trial procedures.
Right
to legal representation includes entitlement to legal aid must be
explained to unrepresented accused person especially uneducated and
unsophisticated accused persons in such a manner that an accused
person is placed in a position to make an informed decision.
Accused
person must also be informed how to exercise such right or
entitlement.
Explanation
of rights never a mere formality – explanation must be
supplemented to do justice to accused person – accused must
understand and appreciate the explanation and his rights.
Should
not pay mere lipservice to duty to explain rights.
After
an accused has been so placed in a position to make an informed
decision accused person must be given a reasonable time within which
to exercise such right.
Failure
to properly explain rights – irregularity which may vitiate the
proceedings.
Onus
on State to prove beyond reasonable doubt that a statement or
pointing-out satisfies the admissibility requirements of
voluntariness and fair pre-trial procedures.
Request
for interpreter – an accused person must be allowed to use the
language in which he or she is able best to express himself or
herself.
Police
officers not to decide there was no need for an interpreter because
he could communicate directly to the accused person.
CASE
NO.: CC 32/2001
REPORTABLE
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
and
CALVIN
LISELI MALUMO & 112 OTHERS
CORAM:
HOFF, J
Heard
on: 07 – 10 March 2011; 22 – 24 March 2011; 31 March 2011
Delivered
on : 07 April 2011
JUDGMENT
Trial-within-a-trial
– Accused No. 55
HOFF,
J:
[1] This is a
trial-within-a-trial. Chief Inspector van Zyl, a member of the
Namibian Police and stationed in Windhoek testified that he received
an instruction to assist with pointings-out in Katima Mulilo. He met
the accused, Albert Mangilazi, for the first time on 21 August 2002.
The pointings-out took place over a period of two days. On each day
he completed a pro-forma which reflects certain information and
questions. The answers by the accused to these questions were
recorded in writing. An audio recording as well as a video recording
of what was said and what happened between Chief Inspector van Zyl
and the accused person were received as exhibits in Court. A
transcript of the audio recording was also handed in as an exhibit.
[2]
The objection raised against the reception of the pointings-out was
formulated as follows:
firstly,
that the pointings-out took place and the accused was involved in it,
but it was not made freely and voluntarily;
secondly,
that he had not been warned of his constitutional rights, and in
particular his right to silence, his right to legal representation,
and his right not to incriminate himself;
thirdly,
his entitlement to legal aid was not explained; and
fourthly,
he was assaulted by the police whilst begin interrogated by sergeant
Simasiku, sergeant Popyeinawa, the late sergeant Robert Chizabulyo
and other police officers in the presence of Chief Inspector van Zyl;
that he was thoroughly intimidated and in fear of the consequences of
not complying to the pointings-out, he co-operated.
[3]
Since what was said and explained prior to the pointings-out was
transcribed it is necessary to refer to those exchanges between Chief
Inspector van Zyl and the accused person from p. 9 – 11 of the
transcription:
“CHIEF
INSPECTOR VAN ZYL:
So, you must please, you must not hesitate to ask me or to say if you
have a problem there. Okay. In the first place there, you are in the
presence of a Justice of the Peace. That is a Commissioned Officer in
the Namibian Police. As you already know my rank. I’m a Chief
Inspector, né?
ALBERT
MANGILAZI: Ja.
CHIEF INSPECTOR
VAN ZYL: I inform
you that you are not compelled to point anything or to say anything
about such scene. The said person is further warned okay, I also warn
you that what you might point out or what you may said will be noted
down and photos of the scene and points pointed out will be taken and
may be used as evidence during a trial. So, do you understand? So you
are not compelled or you’re informed whether you want to say
anything or point out anything, it is your will.
ALBERT
MANGILAZI: Okay.
CHIEF INSPECTOR
VAN ZYL: Your own
free will. So, but if you are going to out anything, any scene then I
will take photos thereof and that will be used as evidence in court.
So, do you understand this part?
ALBERT
MANGILAZI: I
understand.
CHIEF INSPECTOR
VAN ZYL: Okay. Do
you understand the warning that I gave you? He said, I understand. I
also inform you that you have the right to adopt the presence of a
lawyer or you can also make contact with Legal Aid to appoint a
lawyer for you. So, do you understand this right of yours that you
have a right to this?
ALBERT
MANGILAZI: I’ve
got a question there.
CHIEF
INSPECTOR VAN ZYL:
Okay. What is your question.
ALBERT
MANGILAZI: How does
it come that you say there I can look for a lawyer if I’m not
having money or anything?
CHIEF INSPECTOR
VAN ZYL: Okay. If
you got this warning then you have also the opportunity to contact
Legal Aid.
ALBERT
MANGILAZI: If I
contact the Legal Aid and if they don’t want to come they don’t
want to help me, so what can I do then if I remain a suspect and I
want my case to be solved?
CHIEF INSPECTOR
VAN ZYL: Ja. I
understand what you are meaning. But I explain your rights to you
that you have the right to a lawyer. So, if you’ve got one if
you have money. As I said, you can also contact Legal Aid if you want
to. Maybe you have contacted them but at this point in time if you
need a lawyer now. Do you need one with the trial or what is your
problem?
ALBERT
MANGILAZI: I don’t
have something to tell you.
CHIEF INSPECTOR
VAN ZYL: Okay. So,
you are telling me that you don’t need a lawyer now?
ALBERT
MANGILAZI: I don’t
need a lawyer.”
[4]
In the transcription the accused was informed that he has “the
right to adopt the presence of a lawyer …”, but in the
“Notes on the Pointing-out of Scene(s)” from which Chief
Inspector van Zyl read appears: “he has the right to opt for
the presence of his lawyer”.
[5]
It is clear from afore-mentioned passage, contrary to the objection
that his constitutional rights had not been explained to him, that
those rights had indeed been explained to him and he was also
informed that he may apply for Legal Aid.
[6]
The matter however does not end there. I shall with reference to the
relevant authorities demonstrate why what was explained fell short of
the standard of fair pre-trial procedures.
This
Court has in its unreported judgment delivered on 1 March 2010
extensively dealt with the constitutional requirements, case law and
the duties of magistrates in taking down confessions from undefended
accused persons, especially uneducated and unsophisticated accused
persons.
What
was said then, equally apply to commissioned officers employed by the
Namibian Police Force irrespective whether such commissioned officer
is tasked with the taking down of a confession, an admission or to
assist in a pointing-out.
[7]
In this regard it is necessary for the purpose of this judgment to
refer to some of the authorities mentioned in afore-mentioned
judgment.
[8]
Section 218 (2) of Act 51 of 1977 relates to pointings-out and reads
as follows:
“Evidence
may be admitted at criminal proceedings that anything was pointed out
by an accused person appearing at such proceedings or that any fact
or thing was discovered in consequence of information given by such
accused, notwithstanding that such pointing-out or information forms
part of a confession or statement which by law is not admissible in
evidence against such person at such proceedings.”
[9]
This subsection itself does not deal with the admissibility
requirement of a pointing-out. The admissibility requirement appears
from the interpretation by Courts of the provisions of sections 218
(2) and 219 A of Act 51 of 1977.
A
pointing-out was held to be in essence a communication by conduct and
such a statement by the person pointing-out (S
v Sheehama 1991 (2) SA 86 (A) at 879 B)
and it is nothing other than an extra-judicial admission by conduct,
admissible if made freely.
In
terms of section 219 A of Act 51 of 1977 any admission made
extra-judicially by any person if such admission does not constitute
a confession and is proved to have been made voluntarily by such
person, admissible in evidence against him at criminal proceedings.
Therefor the admissibility requirement in respect of a pointing-out
is one of voluntariness, which must be proved beyond reasonable doubt
by the State.
(See
S v Mokautsa 1993 (1)
SACR 408 (O) at 412 f – j; S v January; Prokureur-Generaal
Natal v Khumalo 1994 (2) SACR 810 (A) at 806 h – 807 g; S v
Abbott 1999 (1) SACR 489 (SCA) at493 C – E ).
[10]
Voluntariness in turn is influenced by constitutional imperatives
such as the right to legal representation, the right not to
incriminate oneself, the presumption of innocence, and the right to a
fair trial. (Article 12 of the Constitution of Namibia).
[11]
The compliance or non-compliance of the Judges Rules is also a factor
to consider in determining the voluntariness of a statement and the
fairness of a trial.
[12]
This Court has in the past held (See S
v Malumo and Others (2) 2007 (1) NR 198 at 211)
that Article 12 of the Constitution of Namibia means that the entire
process of bringing an accused to trial and the trial itself needs to
be tested against the standard of fair trial.
[13]
Article 12 (1) (e) of the Namibian Constitution provides that all
persons shall be afforded adequate time and facilities for
preparation and presentation of their defence, before the
commencement of and during their trial and shall be entitled to be
defended by a legal practitioners of their choice.
[14]
In S v Kasanga 2006
(1) NR 348 Heathcote AJ remarked at 360 D – E as
follows:
“In my view,
the starting point in determining the fairness of a trial, as
envisaged in art. 12 should always be whether or not the accused is
informed. Without an accused being properly informed, one cannot even
begin to speculate whether or not rights have been exercised or
indeed waived.”
[15]
The right to legal representation which includes the entitlement to
legal aid must in my view not only be explained in such a way that an
accused person may make an informed decision, but he must also be
informed, especially if he or she is a layperson, how to exercise
such right or entitlement.
[16]
In S v Hlongwane 1982
(4) SA 321 NPD Didcott J in
dealing with the duty of a magistrate during court proceedings said
the following at p. 323:
“A judicial
officer trying an accused person who has no legal representation must
explain to him his procedural rights, and assist him to put his case
before the court whenever his need for help becomes apparent. Such
duty has been proclaimed time and time again. Informing the accused
of his right to call witnesses is one of its most important aspects.
To
let him know of that right, yet not how to exercise it when he has no
idea and starts running into trouble, is not of much use. Mere lip
service to the duty is then paid.”
(Underlining
mine).
[17]
In S v Nyanga and
Others 1990 (2) SACR 547 (CK) Heath J stated
the same duty as follows:
“The
explanation to the accused of his rights is never a mere formality.
The explanation should always be supplemented to cover the particular
circumstances to do justice to the particular accused. The presiding
officer is not merely a recording machine and
he must satisfy himself that the accused understands and appreciates
the explanation and his rights.”
(Underlining
mine).
[18]
In Kasanga (supra)
the court, in dealing with the
explanation of rights to accused persons, expressed itself as follows
at 368 A – C:
“What would
the appellant have understand under the phrase ‘constitutional
right to be defended by a lawyer of his choice and means’ ? The
case was a serious one. It concerned a charge of murder. Inevitably,
the magistrate must have known that if the accused was found guilty,
he would face a sentence of long-term imprisonment. The explanation
to him about his right to obtain legal representation was totally
insufficient. It was also misleading. No indication whatsoever was
recorded in the district court that the appellant was entitled to
apply for legal representation with the Legal Aid Board. He
was not informed how to go about exercising his rights.
In my view the irregularity vitiated the proceedings.”
(Underlining
mine).
[19]
In James Gadu v The
State 2004 (1) NCLP 48 at 56 Manyarara AJ (with
whom Gibson J agreed) suggested a simple format to inform an accused
person of his right to legal representation
“(a) that he
has the right to be defended by a lawyer (deliberately omitting at
this initial stage the rather confusing phrase “of one’s
choice”);
(b) that he has
the right either to hire and pay a lawyer “of his choice”
or, alternatively to apply to the legal aid office for a lawyer to be
provided by the State;
(c) that, if he
chooses to apply for a legal aid lawyer, the clerk of court will
assist him in completing the necessary forms;
(d) that the legal
aid office will consider his financial circumstances and, based on
its finding, will decide and inform him whether he will be required
to make any contribution towards the cost of the legal aid lawyer to
be provided to represent him.”
[20]
A commissioned officer, like Chief Inspector van Zyl, steps into the
shoes of a magistrate in those instances where he is required to take
down an admission, a confession or is involved in a pointing-out He
is in those instances under the same duty to inform the accused
person of his rights in such a way that the accused person is put in
a position to make an informed decision.
[21]
The question is whether Chief Inspector van Zyl fully complied with
afore-mentioned duty.
[22]
Chief Inspector van Zyl as it appears from the extract (supra)
informed the accused Albert
Mangilazi that he had the right to a lawyer if he had money,
and that he may also contact
Legal Aid to appoint a lawyer for him.
It
appears from the extract that Albert Mangilazi had a concern about
money. The evidence on record is further that Mangilazi attended
school until he reached Grade 7 and he is in my view a relatively
unsophisticated and uneducated person, especially
in connection with legal matters. It is furthermore common cause that
the accused person is charged with serious offences inter
alia high treason,
several counts of murder, attempted murder, sedition and public
violence.
[23]
It appears from the extract that Chief Inspector van Zyl never
informed the accused person how he may exercise his entitlement to
legal aid. As was stated in Hlongwane
(supra) it is not of
much use and mere lip service is paid when an accused person is not
informed how to exercise a right. There are obviously exceptions e.g.
where a legal representative or other educated and knowledgeable
persons appear before a judicial officer. The accused was not such a
person.
[24]
When Mangilazi raised concerns about money Chief Inspector van Zyl
should have gone further and explained to him that in essence money
was no impediment to obtain a lawyer at the expense of the State and
provided by the Directorate of Legal Aid.
He
should also have informed the accused that if he chooses to apply for
legal aid the clerk of the court would assist him in completing the
necessary application forms. In my view the accused should also have
been informed that it would take some time before a decision would be
reached and if successful depending on his financial circumstances a
small financial contribution may be required from him.
[25]
One can only at this stage speculate what the accused would have
decided if he had been provided with this information at that stage.
At least he would have been placed in a position to make an informed
decision.
[26]
In my view, the next step after an accused has been so placed in a
position to make an informed decision, is to give such accused person
the opportunity to decide what to do.
[27]
The duty upon a judicial officer is that an unrepresented accused
person must not only be informed of his right to legal representation
(which includes the entitlement to legal aid) but should be given “a
reasonable time” within which to exercise such right. This is
apparent from case law reported even prior to the acceptance of the
South African Interim Constitution as well as the Constitution of the
Republic of Namibia.
{See
S v Radebe, S v
Mbonani 1988 (1) SA 191 (TPD) at 196 H as
per Goldstone J (as he then was) }. This opportunity was not given to
the accused Albert Mangilazi.
[28]
Chief Inspector van Zyl suggested something which the witness never
said as it appears from the following extract:
“Maybe you
have contacted them (legal aid) but at this point in time if you need
a lawyer now. Do you need one with the trial or what is your problem
?”
Mangilazi replied:
“I don’t have something to tell you.”
Chief Inspector
van Zyl: “Okay. So you are telling me that you don’t need
a lawyer now ?”
To
which the accused replied: “I don’t need a lawyer.”
[29]
One should be careful not to lay words in the mouth of an accused
person when one explains the rights of such accused person. Chief
Inspector van Zyl heard “don’t need a lawyer” when
Mangilazi said that he did not have something to tell the officer.
[30]
Another issue raised which further complicates the exchange between
Chief Inspector van Zyl and the accused person and which in my view
may seriously effect the fairness of pre-trial procedures and by
implication the fairness of the trial itself, is the question of
intelligent communication.
[31]
The following extracts will serve as illustration:
On
p. 4 of the transcript, lines 12 – 23:
“CHIEF
INSPECTOR VAN ZYL:
Okay. Are you fluent in English? Do you want a interpreter? To tell
you the truth I don’t want to work with an interpreter because
there’s maybe something we talk and we don’t understand
each other currently. So, if we can speak in English there is no
problem for me.
ALBERT
MANGILAZI: I think I
need an interpreter.
CHIEF
INSPECTOR VAN ZYL:
Are you sure?
ALBERT
MANGILAZI: I’m
sure. Because otherwise if you go deeper maybe (intervention)
CHIEF INSPECTOR
VAN ZYL: No. I will
not go deeper. You must understand me correctly now.”
On
p. 6, lines 9 – 18:
“CHIEF
INSPECTOR VAN ZYL:
Okay. Like I said I don’t like interpreters because there is
always in the court there’s always a problem with the
interpreter and things that they don’t understand.
ALBERT
MANGILAZI: Okay.
CHIEF
INSPECTOR VAN ZYL:
So, it’s better for me to communicate directly.
ALBERT
MANGILAZI: Okay. You
can (intervention)
CHIEF
INSPECTOR VAN ZYL:
Are you satisfied?
ALBERT
MANGILAZI: I am
satisfied,”
On
p. 16 lines 7 – 19:
“ALBERT
MANGILAZI:
Alright. I want to have an interpreter because some of the English
words (intervention)
CHIEF
INSPECTOR VAN ZYL:
Ja. Okay.
ALBERT
MANGILAZI: Ja.
CHIEF
INSPECTOR VAN ZYL:
Let me explain this to you.
ALBERT
MANGILAZI: Ja.
CHIEF INSPECTOR
VAN ZYL: I just want
to know from you because you are still willing to point out the
things. I want to know from you where do you get the knowledge of
these things. If I can put an example for you?”
[32]
Mr Kachaka submitted with that reference to passages from the
transcription, that
confusion reigned in the mind of the accused person because he was
forced to proceed without an interpreter. This may be an obvious
consequence where as a result of misunderstandings minds do not meet.
A
more fundamental concern however is that a presiding officer or a
police officer should not second guess what an accused person is
conveying since this may lead to grave injustices.
[33]
It is common cause that an official interpreter was available most of
the time during the questioning of the accused person by Chief
Inspector van Zyl. What is of concern though is the convenient
approach of Chief Inspector van Zyl, namely, that he preferred to
communicate directly with an accused person and did not “like”
to make use of an interpreter.
[34]
It is common cause that English is not the mother tongue of the
accused person. Even if it is accepted, as suggested by Mr January,
that the accused downplayed his knowledge of and his ability to
communicate in English the principle remains, namely that an accused
person must be allowed to use the language in which he or she is able
best to express himself or herself.
[35]
It was not for a police officer in the position of Chief Inspector
van Zyl to decide, in spite of a request for an interpreter, that
there was no need for an interpreter.
[36]
Regarding the objection that the accused had been assaulted and
threatened by police officers prior to the pointing-out, I need to
state the transcription (Exhibit ENX5)
and the video recordings
(Exhibits 47 and 48) viewed in court, in addition to denials by Chief
Inspector van Zyl and other police officers that the accused had been
assaulted and threatened, do not support this objection.
Furthermore,
Chief Inspector van Zyl as reflected in the transcription and the
video recordings had on numerous occasions asked the accused whether
he had been at any time and at any stage been assaulted by any one,
including the police officers, to which the accused person on each
occasion answered that he had not been assaulted and had not been
threatened by any one.
[37]
I am accordingly of the view that this objection is nothing but a
fabrication and should be rejected as false.
[38]
The onus is on the State to prove beyond reasonable doubt that a
statement or a pointing-out satisfies the admissibility requirements
of voluntariness and fair pre-trial procedures.
[39]
I must mention that much effort was made by the State in this
trial-within-a-trial to discharge this onus.
[40]
In S v Mofokeng and
Another 1968 (4) SA 852 at 854 H – 855 A the
following was said in relation to this onus:
“The fact
that the accused are unreliable witnesses does not of itself mean
that the State’s burden of proof has necessarily been
discharged. In saying that I am not unmindful of the remarks by
Williamson JA, in S
v Mkwanazi1966 (1) SA (AD) at p. 747.
Those remarks embody an injunction against the rejection of a
confession on the basis of mere conjecture unsupported by any
evidence. But considered in their context they do not mean that a
trial court which has found the accused to be an unsatisfactory
witness, is thereby relieved of the duty to weigh up the evidence as
a whole in order to decide whether the prerequisites to admissibility
have been proved beyond reasonable doubt.”
[41]
The fact that I did not in this judgment refer to every submission
made by counsel is no indication that those submissions have not been
considered. It is for the reasons expressed afore-mentioned that I am
of the view that those submissions will not affect the conclusion
reached by myself.
[42]
The finding of this Court is that, due to an unfair pre-trial
procedure (referred to supra)
the State has failed to prove that the pointings-out may be received
as admissible evidence in the main trial.
[43]
In the result the pointings-out are declared to be inadmissible.
__________
HOFF,
J
ON
BEHALF OF THE STATE: ADV. JANUARY
(TRIAL-WITHIN-A-TRIAL
– POINTINGS-OUT TO C/INSP. VAN ZYL
BY
ALBERT MANGILAZI – ACCD NO. 55)
Instructed
by: OFFICE OF THE PROSECUTOR-GENERAL
ON
BEHALF OF THE DEFENCE: ACCD NO. 55 MR
KACHAKA
Instructed
by: DIRECTORATE OF LEGAL AID
S v Malumo and Others (CC 32/2001) [2011] NAHC 104 (07 April 2011);