CASE NO.: CC
THE HIGH COURT OF NAMIBIA
In the matter
LISELI MALUMO & 112 OTHERS
17 February 2011
essentially communication by conduct - amounts to extra-curial
admission. Common law rule embodied in section 219 A of Criminal
Procedure Act, 51 of 1977 applies, namely that it must have been made
freely and voluntarily.
Where no warning
given in terms of Judges Rules, and constitutional rights (i.e. right
to legal representation, right not to be compelled to give testimony
against oneself) not explained - factors which influence
voluntariness and accused's right to fair trial violated.
must explain rights prior to any pointing-out. Accused person must be
placed in position to make an informed decision.
Treating a person
as a potential witness, extracting incriminating information and
thereafter charge such person, inimical to fair pre-trial procedure.
CASE NO.: CC
HIGH COURT OF NAMIBIA
In the matter
LISELI MALUMO & 112 OTHERS
- 04 November 2010; 08 - 11 November 2010;
24 November 2010
on : 31
This is a consolidated trial-within-a-trial. During the testimony of
a state witness Jacobus Hendrik Karstens who at that stage held the
rank of detective inspector in the Namibian Police it became apparent
that he had conducted pointings-out involving six of the accused
on behalf of these accused persons objected to the leading of
evidence regarding these pointings-out on various grounds, namely
that the accused persons had not prior to these pointings-out been
informed of their constitutional rights, had been assaulted and
threatened and that as a result whatever was said or pointed out was
not done or said freely and voluntarily.
 The State led
a number of police officers who at that stage were involved in the
investigation of the case subsequent to an armed attack on the town
Katima Mulilo on 2 August 1999. The accused persons testified
relating their versions to the Court.
 Some of the
evidence led were common cause or not seriously in dispute whilst
there were disputes in respect of some of the evidence presented to
 I shall now in
turn deal with the evidence presented regarding the respective
It is common cause that he was arrested on 30 August 1999 at Lesebe
village in the Kaenda area in the Caprivi region. The police officers
involved in his arrest consisted of officers Evans Simasiku, Robert
Chizabulyo, Haodom, Erastus Aupa and Mbinge. Inspector Karstens who
was the head of the team was unsure whether he was present or not
during the arrest. After the arrest the police conducted a search at
his house but nothing of any significance was found. He was then
taken to the Katima Mulilo Police Station where he was interrogated.
He was detained in the police cells. The next day he was again
interrogated. On 1st
1999 he was taken to a village in the Kaenda area to point out
persons suspected to have been involved in the attack on 2 August
1999. Inspector Karstens was the head of the investigating team and
in charge of the pointing-out operation. The accused had not been
warned of any rights by Inspector Karstens because he (i.e. the
accused) did not incriminate himself and the accused was treated as a
possible witness. Prior to their departure to Kaenda village the
accused was made to wear a police shirt and a balaclava in order to
conceal his identity.
 What is in
dispute is whether the accused was assaulted at his house on 30
August 1999 by members of the police. The police officers denied such
assault. The accused testified that on 30 August 1999 he was
confronted at Katima Mulilo police station with a list of the names
of persons who had fled to Botswana and he was accused of having
participating in the attack. He denied any involvement and was then
assaulted. The police also denied this assault. The accused testified
that on 30 August 1999 he was taken to the Zambezi river and
tortured. This was denied by the state witnesses. It is in dispute
whether the accused on 30 August 1999 was warned of his right to
remain silent and his right to legal representation.
It is also in
dispute that the accused was taken to court on 31 August 1999 for his
first appearance. The version of the accused was that he was not
taken to court but to an office at the police station where police
officers were present but no magistrate. What appears from a charge
sheet (Exhibit ENF) was that the accused person, with two others,
appeared in Court on 31.08.1999.
a sheet of paper attached to the charge sheet it is stated that the
case had been remanded to 24.01.2000 and was signed what appears to
may support the version of the accused person that he was taken to an
office at the police station where no magistrate was present.
testified that he never pointed out any person at a village but that
he was forced to point-out certain villages to the police.
It is common cause that he was arrested on 2 September 1999 by
members of the Namibian Defence Force under the command of Captain
Mwilima who in turn handed him over to members of the Namibian Police
Force under the command of Inspector Karstens at a place called
Kaliyangile in the Caprivi region. The police team included officers
Evans Simasiku, Erastus Aupa and Mbinge. He was interrogated at the
scene. His clothes were full of dust. He was nervous, had the "fright
of his life" because
people had been killed around him and his behaviour was not normal.
He provided Inspector Karstens with the names of suspected rebels who
were allegedly in that camp. It is common cause that the accused was
not informed of any right because it was reasoned by Inspector
Karstens that he (i.e. the accused) did not incriminate himself and
the accused person was merely asked to provide the police with
information. His hands had been tied behind his back. It is not
certain whether he was handcuffed or his hands tied with a rope. He
was subsequently taken to Katima Mulilo police station where he was
 It is in
dispute that officer Evans Simasiku (holding the rank of detective
sergeant at that stage) had warned the accused of his right to remain
silent and his right to legal representation. It is in dispute that
the accused was assaulted by Captain Mwilima and officer Erastus Aupa
and that officer Mbinge threatened to shoot the accused. Inspector
Karstens denied that the accused had been assaulted there at the
scene to such an extent that he, himself had to empty a bucket of
water on the accused in order to resuscitate him.
It is in dispute
that the accused co-operated voluntarily with the police. It is not
clear whether Inspector Karstens conversed with the accused person in
the Afrikaans language or whether he made use of an interpreter in
the presence of sergeant Evans Simasiku.
 It is common
cause that on 18 August 1999 he was brought to Inspector Karstens by
Sgt. Simasiku for the purposes of a pointing-out at the village of
his father at Libuku village in the Mosokotwani area. Chief Inspector
Theron, officers Simasiku, Lumponjani and others accompanied
Inspector Karstens. They drove to this village and thereafter
returned to Katima Mulilo police station where the accused was
 What is in
dispute is that after his arrest on 2 August 1999 the accused had
been assaulted and threatened by members of the Namibian Police Force
at Katima Mulilo police station on more than one occasion.
It is in dispute
that his constitutional rights had been explained to him after his
arrest or before he was taken for a pointing-out.
It is in dispute
that he voluntarily co-operated with the police officers.
 It is not
disputed that he was arrested on 2 August 1999. On 19 August 1999 he
was brought to Inspector Karstens by D/Sgt. Evans Simasiku since the
accused apparently wanted to make a pointing-out in the Makanga area
in the Caprivi region. Inspector Karstens was accompanied by officers
Simasiku, Mbinge, Aupa, Lumponyani and members of the Reserve Field
Force. It is not clear whether police officer Haodom was also
present. They left for a place somewhere in the bush (not near a
village) from where the party proceeded for some distance deeper into
the bush. Thereafter they returned to the vehicles and proceeded to a
second place in Cameroon area apparently for the purposes of a second
pointing-out. From this place in Cameroon area they returned to
Katima Mulilo police station where he was detained.
 It is in
dispute that after his arrest on 2 August 1999 he had been assaulted
by officers Popyeinawa, Haipa and Inspector Karstens. It is in
dispute that his rights had been explained to him on 19 August 1999
prior to the alleged pointing-out. It is in dispute that he
co-operated voluntarily with the police officers.
 This is one
of the undefended accused persons who at some stage during
proceedings in the main trial excused themselves from the court
proceedings until such time when the State has closed its case. He
was therefore not present in Court when evidence was presented by the
The evidence of the State was that on 1st
1999 Inspector Karstens was approached by police officer Mbinge who
informed him that the accused wanted to make a pointing-out.
Inspector Karstens testified that the accused was brought to his
office where he informed him of his right to legal representation and
his right to remain silent. He was not sure whether he addressed the
accused in the English language or whether he made use of the
services of an interpreter. The accused indicated his willingness to
co-operate and they drove to Kaenda area. He was accompanied by
officers Mbinge, Simasiku, Aupa, Chizabulyo and Haodom. They
travelled in two vehicles. The accused was with him in the same
the scene of the pointing-out photos were taken by police officer
Mbinge. He denied that the accused had been assaulted however he
observed an injury to the left foot of the accused which could have
been caused by a "bullif.
pointing-out they returned with the accused person to Katima Police
Inspector Karstens also gave evidence in respect of this accused
person. The accused is represented by Mr Samukange who informed the
Court that he was unable to take instructions from the accused person
since there are indications that the accused suffers from a mental
illness. In subsequent proceedings this Court referred the accused
person for observation at the psychiatric section of the Central
State Hospital in Windhoek in terms of the provisions of sections 77,
78 and 79 of the Criminal Procedure Act 51 of 1977. Presently the
accused is still awaiting for space in the hospital and he has not
yet been admitted for observation. This Court heard evidence of one
of the medical officers attached to the psychiatric section, Dr
Mthoko that the reason why the accused person was not admitted was
due to a lack of space. I shall therefor not make any ruling
regarding the admissibility of the pointing-out until such time that
this Court has been provided with a report in terms of the provisions
of the Criminal Procedure Act, referred to (supra).
any event, for the reason provided by Mr Samukange the accused person
could not testify in this trial-within-a-trial.
 One common
feature of those accused persons who testified in this
trial-within-a-trial was that not one of them made any pointings-out
to any member of the Namibian Police Force when they were taken to
the different locations, as testified by the police officers.
It was submitted by Mr January that at the time when objections were
raised by counsel, the evidence led prima
that the accused persons did an act implicating them in the
commission of a positive act, that the objections were raised in view
of the fact that these positive acts (pointings-out) did not meet the
admissibility requirements prescribed by law, and that when the
objections were raised it was never indicated that the accused
persons never made any pointings-out or put differently, it was never
disputed that the accused persons did what transpired at the
 This Court
was on this point referred to authority to the effect that in those
instances (i.e. where an accused person denies the contents of an
admission or an confession or that a pointing-out was made) it is a
dispute of fact to be decided at the end of the main trial and in
such an instance a court need not embark upon the exercise of a
I agree with this submission and I would surely have questioned the
necessity of holding this trial-within-a-trial had I known then that
the accused persons would in their testimonies deny pointings-out.
This consolidated trial-within-a-trial was in my view, with the
wisdom of hindsight an unnecessary exercise and a waste of time. I
say this despite authorities to the effect that where a court does in
these circumstances embark upon a trial-within-a-trial that it does
not constitute a misdirection. It is of utmost importance that
counsel in their role as officers of court take proper instructions
objections are raised on behalf of their clients, since failure to do
so would be a serious dereliction of duty on their side towards their
clients as well as towards this Court. Such conduct has a real
possibility of prejudicing the defence of their clients and may
expose counsel to complaints of unprofessional conduct being lodged
at the Disciplinary Committee of the Law Society of Namibia. A
further consequence is that it has delayed the conclusion of this
It is however at
this stage water under the bridge.
 Mr January in
his submissions in respect of the credibility of the accused persons
emphasised the fact that the grounds of the objections raised were in
conflict with the evidence presented by the accused persons (i.e.
their denial of any pointings-out).
 He also
submitted that according to the accused persons the alleged assaults
and threats had no relation to the pointings-out since the accused
persons had not been assaulted or threatened to do the pointings-out.
 Regarding the
explanation of rights, it was submitted by Mr January, that in
respect of Victor Matengu and Elvis Puteho it is common cause that
they appeared in court on 12 July 1999 on a case of illegally
entering Namibia and, that in spite of the denial by the accused
persons, the case record reflects that their respective rights to
legal representation were explained to them.
Richard Mungulike and Moses Kayoka it was submitted that Sgt. Evans
Simasiku warned them of their rights before departing for a
 It is trite
law that the State has the burden to prove beyond reasonable doubt
that there was a pointing-out. This is in fact what Mr January urged
this Court to find namely that the State has complied with the
admissibility requirements of the pointings-out.
A pointing-out is essentially a communication by conduct. (See S v
Sheehama 1991 (2) SA 860 (A) ).
 It has been
held that a pointing-out in an appropriate case amounts to an
extra-curial admission and the common law rule now embodied in
section 219 A of the Criminal Procedure Act applies, namely that it
must have been made freely and voluntarily.
 It therefore
needs to be considered whether the pointings-out, on the State's
version, were made freely and voluntarily. In considering this,
whether or not a warning was given in terms of the Judges Rules may
be a deciding factor. In addition constitutional imperatives must
also be considered.
 I shall first
deal with whether the accused persons had been warned in terms of the
Judges Rules and whether they had been informed of their
 In respect of
Richard Masupa Mungulike, Inspector Karstens testified that he did
not warn the accused person prior to the pointing-out, of any rights
because the accused was willing to co-operate with the police in
their investigation by pointing-out other suspected rebels at Kaenda,
and because he did not incriminate himself. A third reason why he did
not warn the accused person of any right was that he considered him
as a possible witness.
Simasiku testified that he did not warn the accused person of his
constitutional rights at Kaenda. The evidence reflects that neither
did officers Aupa or Mbinge.
The testimony (in
chief) of D/Sgt. Evans Simasiku was that when the accused person was
brought to his office to be interviewed, the late Robert Chizabulyo
warned him of his constitutional rights on 31 August 1999. However
during cross-examination he testified that it was he himself who had
warned the accused of his right to remain silent, his right not to
incriminate himself, his right to legal representation and even that
he may get assistance from the Government should he be out of pocket
to afford legal representation. Erastus Aupa (a constable at that
stage) testified that it was Inspector Karstens who had warned the
accused of his rights during the interrogation. Inspector Karstens
never testified that he had warned the accused person of his rights.
D/Sgt. Evans Simasiku never informed Inspector Karstens that he had
warned the accused of his right to legal representation and his right
to remain silent.
In the light of the material contradiction between the evidence in
chief of Evans Simasiku and his evidence in cross-examination, having
regard to the evidence of Aupa (another contradiction) and having
regard to the denial by the accused that his rights had been
explained to him, this Court in exercising its discretion cannot
accept the evidence of Evans Simasiku, on this point, namely that the
late Robert Chizabulyo had explained any rights to the accused
person. In any event the testimony of Inspector Karstens was that,
for the reasons provided (supra),
did not warn the accused of any right prior to the pointing-out.
Moses Chico Kayoka Inspector Karstens testified that on 2 September
1999 when he found the accused person on the scene at Kaliyangile he
questioned the accused person who revealed the names of other
suspected rebels who had been in the camp. He did not inform the
accused of any rights because the information from the accused could
assist them in their investigation and because the accused could not
have incriminated himself.
In spite of the testimony of Inspector Karstens that when he
questioned the accused, the accused had calmed down and had indicated
he was wiling to co-operate, the following must be considered: this
Court during testimony in the main trial was informed that members of
the Namibian Defence Force in a surprise attack on this camp killed
some persons suspected to be rebels. The accused who was also a
suspected rebel was captured. Other suspected rebels managed to flee.
Shortly after this incident Inspector Karstens with his team of
police officers arrived on the scene. It is in my view perfectly
understandable and I accept the evidence of Inspector Karstens on
this score that when he first spoke to the accused person he could
see that he (i.e. accused person) "had
the fright of his life", that
he was nervous because people had been killed around him and that the
behaviour of the accused was not normal. His hands had been tied
behind his back. It is common cause that the accused did not make any
 In the light
of afore-mentioned can it with any measure of conviction be argued
that whatever information provided was done freely and voluntarily ?
I have serious misgivings about the timing of the interrogation by
Inspector Karstens. In my view, the accused person could not have
given information freely and voluntarily in those circumstances. Here
was a person who had a short time earlier stared death in the face,
and the persons involved in the killings were still present there at
the scene, the majority of whom had been armed. The information might
have been useful in terms of the police investigation but what weight
should a court of law attach to it ? Barely any in my view.
Simasiku in his evidence-in-chief did not testify about warning the
accused person of his rights. It was during cross-examination that he
testified that he informed the accused of his right to remain silent
and his right to legal representation. He again did not inform his
superior, Inspector Karstens, that he had warned the accused person
because according to him he did not want to look like a police
officer who did not know what he was doing. A similar reason was
provided for failing to tell
that he had warned Richard Mungulike of his rights. This appears to
be a case of the one hand does not know what the other hand is doing.
It also creates the impression that D/Sgt. Simasiku did not regard
himself to be under the command of Inspector Karstens who was in
charge of the investigating team. The reason why he did not inform
Inspector Karstens that he warned the accused persons sounds
unconvincing. Officer Erastus Aupa during cross-examination testified
that the accused person, Moses Kayoka, was warned of his rights by
Inspector Karstens at the time when he received the accused from
members of the Namibian Defence Force. In the light of the denial by
the accused person that D/Sgt. Evans Simasiku had warned him of his
rights and, that in my view it is highly unlikely that Simasiku would
not have informed his superior, Inspector Karstens, had he informed
the accused of his constitutional rights, that it has not been proved
beyond reasonable doubt that anyone of the police officers had
informed the accused person of his rights.
 A more
discerning fact is that both accused persons Moses Kayoka and Richard
Mungulike were viewed at the relevant time as potential State
witnesses who could assist the police in their investigation of this
case. They are now accused persons before this Court.
 They were
viewed as potential state witnesses, interrogated by the police and
now the State intends to use information obtained from them as
evidence in these proceedings.
This Court in a previous ruling (S
v Malumo and Others (2) 2007 NR 198) in
considering a similar senario, quoted with approval Satchwell J in S
v Sebejan and Others 1997 (1) SACR 626 (W) and
it is in my view useful to repeat what was quoted.
accused person was at some stage treated as a suspect. In the present
matter the two accused persons were considered potential state
witnesses and what was said in Sebejan
equally in respect of these two accused persons.
J at 633f - g stated
of the distinction between the arrested person and a suspect is that
the latter does not know without equivocation or ambiguity or at all
that she is at risk of being charged."
i - 634 a
investigating officer to take a statement from a suspect in these
circumstances would, in my view, be fraudulent of the constitutional
imperative. There is a deception in treating a suspect no more than a
witness and obtaining information from her under false pretences in
the hope and belief that this can be used to further an investigation
of and against that person. To then rely on that individual's
ignorance and use whatever has been extracted during this time of
deceptive safety in order to initiate or found or develop a
prosecution of such a person is inimical to a fair pre-trial
b - c
arrested person is certainly aware that she is in the firing line of
litigation and the reasons therefor. The arrested person knows that
she and the investigating officer do not enjoy parity of positions
and community of interests. The lines have been drawn - their
interests are inimical to one another. The arrested person knows the
basis for such antagonistic status and is now in a position to
attempt to formulate a response thereto."
I wish to reiterate what I said in S v
Malumo (supra) at 212 B namely
that though Judges Rules are administrative directives to be observed
by the police, they are not completely without effect and that a
breach thereof may influence whether an incriminating statement (or
in this instance a pointing-out) had been made freely and voluntarily
I further wish to endorse the finding in S
v Mafuya and Others (1) 1992 (2) SACR 370 (W) namely,
that an investigating officer who had disregarded the Judges Rules by
questioning the accused while he was in custody ignoring the
accused's right to remain silent, and inviting the accused to reply
to allegations made against him had unduly influenced the accused to
make a confession.
 The courts
have a discretion to allow or to exclude evidence obtained in
violation of the constitutional rights of an accused person.
In S v
Shikunga and Another 1997 NR 156 (SC) Mahomed CJ expressed
himself as follows on the issue of constitutional and
non-constitutional irregularities at 171 B - D:
the question that one is asking in respect of constitutional and
non-constitutional irregularities is whether the verdict has been
tainted by such irregularity. Where this question is answered in the
negative the verdict should stand. What one is doing is attempting to
balance two equally competing claims - the claim that society has
that a guilty person should be convicted, and the claim that the
integrity of the judicial process should be upheld. Where the
irregularity is of a fundamental nature and where the irregularity
though less fundamental, taints the conviction the latter interest
prevails. Where however the irregularity is such that it is not of a
fundamental nature and does not taint the verdict the former interest
 Where there
was a deliberate and conscious violation of constitutional rights by
the State or its agents, evidence obtained in accordance with such
violation should in general be excluded.
Motloutsi 1996 (1) SACR 78 (C) ).
 The right to
consult with a legal practitioner during pre-trial procedure and to
be informed of this right is closely connected to the presumption of
innocence and the right to remain silent and failure to inform
accused person of these rights offends not only to the concept of
substantive fairness but also to the right to equality before the
and Others 1996 (1) SACR 335 E at 347 e - h ).
 What the
Constitution demands is that the accused be given a fair trial.
Karstens, for the reasons mentioned earlier, deliberately failed to
inform both the accused persons of their constitutional rights and
their right to remain silent.
 To allow
evidence obtained in violation of the aforementioned rights would in
my view taint any subsequent conviction and would bring the
administration of justice into disrepute.
whatever incriminating was said or pointed out by the accused persons
(i.e. Moses Kayoka and Richard Mungulike) should be excluded.
 In respect of
Elvis Matengu Puteho there is conflict of versions regarding when,
under what circumstances and by whom his rights had been explained.
 In this
regard Inspector Kartstens testified that he was alone in his office
on 18 August 1999 when he saw the accused person and warned the
accused person of his rights. He never testified that he again at the
scene of the pointing-out administered a warning. Officer Evans
Simasiku testified that Inspector Karstens warned the accused again
at the scene of the pointing-out.
testified that the reason why he as a rule usually see to it that he
was alone with an accused person before warning him of his rights was
to get such accused person to trust him, have confidence in him, and
to create a condition in which an accused person was encouraged to
speak freely. These were not what Inspector Karstens said verbatim
but it is my interpretation of his testimony on this point. In
contrast officer Evans Simasiku testified that he did not hand the
accused over in the office of Inspector Karstens but somewhere
between the office of Inspector Karstens and his own office and at
that occasion he heard Karstens warning the accused person regarding
his rights including that he may apply for Legal Aid. Inspector
Karstens denied that he ever informed the accused person that he may
apply for Legal Aid. D/Sgt. Simasiku during cross-examination
insisted that Inspector Karstens informed the accused that he may
apply for Legal Aid.
In his witness
statement officer Simasiku never mentioned that he had warned the
accused person prior to the interview neither that he had at that
stage informed the accused that he may apply for Legal Aid.
accused person denied that he had been warned by any police officer
of his rights prior to the pointing-out. Officer Simasiku in his
witness statement also failed to mention that the accused had been
warned of his rights by Inspector Karstens. In his witness statement
Simasiku stated that it was Inspector Theron who had warned the
accused person of his rights. When Simasiku was confronted with this
fact during cross-examination he confirmed that it was indeed
Inspector Theron who had warned the accused person, deviating from
his earlier stance that Inspector Karstens and he himself had warned
the accused person. Officer Simasiku tried to explain this
discrepancy by what he termed a "misconception".
in his witness statement made no mention that the accused had been
warned by himself, a fact which he confirmed during his testimony in
Court. These are such material contradictions that this Court can
come to no other conclusion, namely that the State has not proved
beyond reasonable doubt that the right to legal representation, the
right to remain silent, and the right not to incriminate himself had
been explained to this accused.
there is a dispute when exactly the accused had been arrested (either
2 August 1999 or 4 August 1999) it is common cause that a warning
statement had been taken of the accused on 21 August 1999, three days
after the alleged pointing-out.
In his warning
statement the accused denied any involvement in the attack on 2
August 1999 and stated that he knew nothing about the allegations
against him. A question put to Inspector Karstens, by Mr McNally,
during cross-examination, which remained unanswered, was why would an
accused person first incriminate himself (by pointing-out a fire-arm)
assuming he had been informed of his rights prior to the
pointing-out, and when he had an opportunity a few days later to give
a statement after his rights had been explained to him, when he gave
his warning statement, he gave an exculpatory statement ?
It was suggested
to Inspector Karstens, who disagreed with this suggestion, that had
this warning statement been taken after the arrest of the accused
person, he would not have participated in pointing-out.
 D/Sgt. Evans
Simasiku testified in respect of a number of accused persons that he
had explained their rights to them. During his cross-examination, in
Elvis Puteho, by
Mr McNally the Court asked officer Simasiku a question and his reply
was quite revealing and disturbing.
I shall proceed
and quote from the record at p 31447 lines 25 - 32 and p 31448 line
me ask you this Inspector. Did you indicate to the accused at
which stage he
may exercise those rights that you explained particularly in relation
to the right to legal representation ? --- That is correct My Lord
What did you
tell him when should he exercise those rights ? --- Whenever he
appears before the Magistrate, My Lord.
Magistrate ? — Yes, My Lord."
If this is true in respect of all those accused persons he had warned
prior to pointings-out or prior to obtaining incriminating statements
from accused persons then every subsequent pointing-out or
incriminating statement must be ignored by this Court as evidence in
this trial-within-a-trial. This in my view has the effect of not
informing an accused person at all that he has a right to legal
that pre-trial stage (.e.
before the pointing-out) and is nothing less than a deception.
v Melani and Others 1996 (1) SACR 335 (E) (a decision followed by
Mtambanengwe J in S v Kapika and Others (1) 1997 NR 285 (HC) Froneman
J expresses himself as follows on the issue of legal representation
347 e - h:
to consult with a legal practitioner during the pre-trial procedure
and especially the right to be informed of this right, is closely
connected to the presumption of innocence, the right of silence and
the proscription of compelled confessions (and admissions for that
matter) which 'have for 150 years or more been recognized as basic
principles of our law, although all of them have to a greater or
lesser degree been eroded by statute and in some cases by judicial
decision' (in the words of Kentridge AJ Zuma's case). In a very real
sense these are necessary procedural provisions of give effect and
protection to the right to reaming silent and the right to be
protected against self-incrimination. The failure to recognize the
importance of informing an accused of his right to consult with a
legal adviser during the pre-trial stage has the effect of depriving
persons, especially the uneducated, the unsophisticated and the poor,
of the protection of their right to remain silent and not to
incriminate themselves. This offends not only the concept of
substantive fairness which now informs the right to a fair trial in
this country but also the right to equality before the law. Lack of
education, ignorance and poverty will probably result in the
underprivileged sections of the community having to bear the brunt of
not recognizing the right to be informed of the right to consultation
with a lawyer. (Cf S v Makwanyane (supra at [paras 49, 50 and 51])
I again endorse this dictum. (See previously S
v Malumo and Others (2) 2007 (1)
198 at 214).
 In respect of
Victor Masiye Matengu, Inspector Karstens testified that when the
accused was brought to his office by officer Evans Simasiku he warned
the accused of his rights, namely his right to remain silent and his
right to legal representation. Officer Simasiku testified that
Inspector Karstens informed the accused of his right remain silent.
Officer Simasiku never testified that Inspector Karstens also
explained to the accused his right to legal representation. The
accused denied that his rights had been explained to him.
Liswani testified that he arrested the accused person on 2 August
1999 in the charge office of the Katima Mulilo police station at the
stage when the accused was handed over to him by members of the
Namibian Defence Force. At that stage he warned the accused of his
right to legal representation.
On 9 March 2010 in the main trial officer Liswani in his
evidence-in-chief testified about the same incident. He testified
that he questioned the accused about his involvement in the attempt
to secede Caprivi form the rest of Namibia to which the accused
replied by vaguely referring to "unfortunate
then informed the shift commander to book the accused in for further
investigations. He did not
the accused at that stage of his rights because he (i.e. Liswani)
not feeling well".
cross-examination in this trial-within-a-trial officer Liswani
testified that he did not only inform the accused person at that
stage of his right to legal representation but also that he may apply
for Legal Aid.
it was put to him, that instructions given to counsel were to the
he did not advise the accused of his rights he replied: "There
is no truth of such a nature that is a lie".
Clearly the witness must have forgotten what he had said during March
2010 and if his answer that an instruction given to counsel is a lie
then it logically follows that he himself was lying under oath when
he testified that the did not warn the accused person of his rights.
Which one of these two versions is now to be accepted as the truth ?
The State has an onus to prove beyond reasonable doubt that an
accused person had been warned of his right to legal representation
prior to the pointing-out. There is a material difference between the
evidence of Inspector Karstens and the evidence of officer Simasiku
on the issue of legal representation. The accused denied having been
warned of any rights. This Court cannot accept the evidence of
Warrant Officer Liswani that he had warned the accused of his rights
because he contradicted himself. Due to these contradictions I must
conclude that the State has failed to discharge its onus (referred to
It was submitted that in respect of Victor Matengu and Elvis Puteho
that when they appeared in court on 12 July 1999 on a charge of
illegally entering Namibia their right to legal representation had
been explained to them. They at that stage decided to conduct their
defence themselves. More than a month later they were taken for
pointings-out. The argument that they must have known of their right
to legal representation cannot assist the State. The accused had been
removed in space and time from the courtroom. The crucial question is
whether they had been sufficiently informed prior to the
pointings-out of their right to legal representation in order to make
an informed decision ? I have indicated (supra)
this question must be answered in the negative.
 It was
further submitted in respect of all the other accused persons (except
John Lubilo and Isaya Kamwanga) that their objections were in
conflict with their evidence reflects negatively on their credibility
and that this Court should find that the pointings-out had been made
fact that an accused person was an unreliable witness does not in
itself mean that the State's burden of proof has necessarily been
discharged. A Court is required to weigh up the evidence as a whole
in order to decide whether the prerequisites to admissibility had
been proved beyond reasonable doubt. (See S v
Mofokeng and Another 1968 (4) SA 852 at 854 H - 855 A).
 In the light
of aforesaid I need not deal with the allegations of assaults and
threats and whether or not there was any link between these assaults
and pointings-out even though the evidence of some accused persons
were to the effect that there was indeed such link.
 These were
the reasons which resulted in this Court giving the following ruling
on 31 January 2011:
respect of Elvis Puteho, Victor Matengu, Richard Mungulike and Moses
Kayoka: the pointings-out are ruled inadmissible mainly because to
allow such pointings-out or admissions may render the trial unfair.
In respect of
John Lubilo (the undefended accused person) this Court will allow
evidence to be presented in respect of a pointing-out.
In respect of
Isaya Kamwanga this Court will not hear any evidence about a
pointing-out until such time that this Court has been provided with
the report in terms of sections 77, 78 and 79 of the Criminal
Procedure Act, 51 of 1977 regarding the mental health of the accused
person, and until such time this Court has made a ruling on the
BEHALF OF THE STATE: ADV. JANUARY
- POINTINGS-OUT - (JACOBUS H KARSTENS) )
OF THE PROSECUTOR-
BEHALF OF THE DEFENCE: ACCD NO. 34 & 47:
NO. 60 & 74:
NO. 43 MR
DIRECTORATE OF LEGAL AID