Court name
High Court
Case number
156 of 2007
Title

S v Kandowa (156 of 2007) [2012] NAHC 322 (29 November 2012);

Media neutral citation
[2012] NAHC 322
Coram
Hoff J
Van Niekerk J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: CA 156/2007








In the matter between:








ITEMBU TEMUS KANDOWA
.....................................................................APPELLANT



and



THE STATE
..............................................................................................RESPONDENT













Neutral citation: Kandowa v
State
(CA 156/2007) [2012] NAHCMD 90 (29 November 2012)








Coram: HOFF J and VAN NIEKERK J








Heard: 18 September 2009



Delivered: 29 November 2012








Flynote: Evidence –
correct approach to assessment of alibi defence – if there are
identifying witnesses court should be satisfied witnesses are honest
and evidence is reliable – details of alibi to be provided as
early as possible - where alibi only revealed during
evidence-in-chief by accused – adverse inference to be drawn.








Assessment of evidence on appeal
restated – best indication that court applied its mind where
conflict of fact is to be found in reasons for judgment – where
reasons insufficient or non existing – court of appeal may draw
own conclusions having regard to totality of evidence.



Error by witness – does not
necessarily impact negatively on credibility of witness –
effect of error must be considered with due regard to its importance,
nature and bearing error has on other parts of witness’
evidence.








Summary: The appellant was
charged with one count of housebreaking with intent to steal and
theft and one count of housebreaking with intent to rob and robbery.








The identification of the perpetrator
was in dispute – The appellant raised an alibi- The appellant
was caught red handed inside the respective residences of the
complainants – It is common cause that the appellant has a
squint eye – The complainant in respect of count 1 subsequently
identified the appellant at an identification parade – This
evidence was not disputed.








The complainant in respect of count 2
accurately drew a picture of the facial features of the perpetrator
on the basis of which the appellant was subsequently arrested by
police officers.








The correct approach to the assessment
of an alibi is inter alia that there is no burden of proof on the
accused person to prove this alibi – Where there are
identifying witnesses the court should be satisfied not only that
they are honest but also that their identification of the accused is
reliable.








The details of an alibi must be
provided as early as possible during a trial – Where an alibi
is revealed only at the stage when the accused person testifies
during evidence-in-chief, there is prejudice to the State and an
adverse inference may be drawn by the court.








The assessment of evidence on appeal
is restated – The best indication that a court has applied its
mind where there is a conflict of facts, is to be found in the
reasons for its judgment.








An appeal is a rehearing with certain
limitations and where the reasons are insufficient or non existing, a
court of appeal may having regard to the totality of the evidence
presented in the court a quo, draw its own conclusions –
Findings of fact by the court a quo are presumed to be correct and
will only be disregarded if the recorded evidence shows them to be
clearly wrong.








Not every error made by a witness
affects such witness’ credibility – An error must be
evaluated taking into account the nature of the error and its
importance, and the bearing such an error has on other parts of the
witness’ evidence.








In casu, there was a material
contradiction between appellant’s evidence and the evidence of
the witness called by the appellant, in respect of his alibi defence
– This fact taken together with the late disclosure of the
alibi defence compels this court to conclude that the alibi raised by
the appellant, was a fabrication.








This court is satisfied that the
identification of the appellant by the two complainants was honest
and reliable and that there was no misdirection by the presiding
magistrate in convicting the appellant in respect of both counts.








The convictions and sentences are
confirmed.










ORDER





(a) The appeal is dismissed.








(b) The convictions and sentences are
confirmed.










JUDGMENT










HOFF J (VAN NIEKERK J concurring):








[1] Appellant was convicted in the
Magistrate’s Court, Swakopmund, on one count of housebreaking
with intent to steal and theft and one count of housebreaking with
intent to rob and robbery. On the first count he was sentenced to 2
years imprisonment and on the second count to 3 years imprisonment.



[2] Although appellant’s notice
of appeal is headed ‘Application for leave to appeal against
conviction and sentencing’, he raises no grounds of appeal
against sentence, but directs all the grounds of appeal to the
convictions. Both in the court a quo and on appeal the gist of
appellant’s defence against the State’s case is that he
was mistakenly identified by both complainants as being the
perpetrator of the crimes.








[3] The facts may be summarised as
follows: On 6 June 2005, the 71 year old complainant in count 1, Ms
Mouton, removed her vehicle from the garage at her home to go to
town. A person whom she later identified to be appellant stood at the
gate and asked for work. She told him that she had no work. She
returned to the front of her home and activated the alarm. All the
doors were locked and the windows closed. She did not notice what
happened to the accused. She left for town, where she remained for
112 2hours.








[4] When she returned, she put her
vehicle in the garage and locked the latter. She de-activated the
alarm, unlocked the front door, entered the home and locked the front
door. She then heard the sound of the back door and looked into that
direction where she saw the man who earlier had asked her for work.
He was inside her house, standing about a meter away from her. She
asked him what he wanted, but appellant did not answer. He moved
closer to her and she realised that he wanted her handbag that was
hanging over her shoulder. She held it close to her body. As
appellant went for her bag, he hit her in her face with the palm of
his hand. Her nose started bleeding. The appellant hit her a second
time. This was a very hard blow. He then pushed her in her face and
pushed her into the bathroom. He locked the door from the outside.
She started calling for help from the bathroom window. After about an
hour she attracted the attention of her neighbor who entered the
house at the back door and freed her.








[5] Ms Mouton inspected the house and
found everything to be in order. Her handbag was lying on the table.
Its contents had been thrown out. She missed two purses, one of which
contained about N$190 in cash. She also missed a windbreaker jacket.
She noticed that the lock of the back door had been forced open and
broken. About a week later the complainant pointed the appellant out
at an identification parade as the perpetrator. She sustained
injuries as a result of the attack. Her face was swollen and bruised.
A finger on her left hand was broken when appellant hit her hand to
get hold of her bag.








[6] After this complainant’s
evidence was dealt with, the prosecutor applied for an amendment of
the charge on count 2 from housebreaking with intent to steal and
theft, to housebreaking with intent to rob and robbery. The appellant
had no objection and pleaded not guilty to the amended charge. Ms
Wesche, the complainant in count 2 is a 65 year old woman. On 13 June
2005 at 09h00 she heard a noise at the main door of the house. When
she opened the door, she noticed that the gauze of the screen door on
the outside had been cut open. She saw appellant standing outside the
door. He put his hand through the gauze, opened the door and entered
the house. He grabbed the complainant at the throat and forcefully
pushed her down the passage to the bedroom and into the bathroom.
Complainant recalled a story related to her the previous day about a
person who had been locked up in a bathroom and that no-one heard
this person calling for help. She therefore put up a fight by kicking
her assailant and biting him on his hand. He let go of her and she
managed to move out of the bathroom to the side of the bedroom where
he locked her up. She was worried that her jewellery would be stolen,
so she rather directed the attacker’s attention to her handbag,
which was in the passage.








[7] Ms Wesche opened the burglar bars
from inside the bedroom, left via the window to the outside and
obtained help. When she returned to the house, the robber was gone.
Her handbag was laying in the passage with its contents thrown out.
She missed her cheque book and a purse with N$370 in cash.








[8] The police were called and arrived
shortly thereafter. They took a statement and obtained a description
and drawing of the robber from her (Exhibit B). The drawing of the
suspect was made by the complainant in their presence. The next day
the police arrested a person fitting the description and brought him
to complainant, who identified him as the attacker. It was the
appellant.








[9] Two police officers testified and
confirmed that, armed with the drawing and description given by Ms
Wesche, they were on the lookout for the assailant in Kramersdorf. On
14 June they saw appellant coming from a certain erf and entering
another. They approached him when he came out. He explained that he
was looking for work. He wore a cap and dark glasses. When these were
removed, they saw he fitted the description given by Ms Wesche and
that his facial features corresponded with that on the drawing. They
arrested appellant and took him to the complainant, who identified
him immediately. When appellant denied being the robber, the
complainant drew the police’s attention to the fact that she
had bitten his hand. Upon inspection, a fresh wound was found on his
left hand under his ‘big finger’.








[10] The appellant’s defence is
in the nature of an alibi. He testified that when the incidents
happened, he was in the northern part of Namibia. He left from
Swakopmund in April 2005. On 13 June 2005 he returned from there to
Swakopmund in the company of his brother Theofelus. They arrived at
the home during the afternoon between 12h00 and 13h00. Appellant went
to sleep. The next day he went to his previous employer, who was not
at home. He went to another house to look for work, but there was
none. He did not walk far before he was stopped by the police and
arrested because he allegedly fitted the description of the robber.
The police went to his house in Mondesa but found no stolen goods.








[11] Appellant called his brother
Theofelus Mwuva, who stated that appellant came to the North in April
2005 and that they travalled to Swakopmund on 13 June 2005. They
arrived at 08h00 on 14 June 2005 just after sunrise. Appellant left
and never returned. He later heard that appellant was in custody and
saw him in the police cells when they were both in custody. Under
cross-examination he denied meeting appellant or speaking to him, but
confirmed that appellant and he could communicate to each other by
talking loudly, as their cells were adjacent. Significantly he
testified that appellant spoke very loud and that ‘he spoke of
our journey and how I travelled with’. This is a clear
indication that the appellant and his witness had the opportunity and
did in fact discuss his alibi. The appellant’s witness
contradicted his evidence regarding the time and date when they
allegedly arrived from the North in Swakopmund.








[12] In S v Malefo 1998 (1)
SACR 127 (W) at 157i – 158a-d the court summarised the correct
approach to the assessment of an alibi defence with reference to
relevant authority as follows:








there is no burden of proof on the
accused person to prove his alibi;



if there is a reasonable possibility
that the alibi of an accused person could be true, then the
prosecution has failed to discharge its burden of proof and the
accused must be given the benefit of the doubt;



an alibi must be considered having
regard to the totality of the evidence and the impression of the
witnesses on the court;



if there are identifying witnesses,
the court should be satisfied not only that they are honest, but also
that their identification of the accused is reliable; and the
ultimate test is whether the prosecution has proved beyond reasonable
doubt that the accused has committed the relevant offence and for
this purpose a court may take into account the failure of an accused
to testify or that the accused had raised a false alibi.








[13] In S v Zwayi 1997 (2) SACR
772 (CKHC) at 778g-j the court in considering an alibi only raised
during cross-examination or when the accused testified remarked as
follows:








It
should be apparent the if the court is properly to assess whether
there is a reasonable possibility of the alibi being true, the
details thereof should be provided since in its absence the accused’s
defence is simply a bare denial. In my view, if these details are
only disclosed, as in the present instance, at the late stage when
the accused testifies, the value to be accorded to the alibi may be
adversely affected. I cannot see on what basis an accused can claim
that he would be prejudiced in the presentation of his defence if he
had to disclose the details of his alibi defence during the
cross-examination of the State’s witnesses. On the other hand,
if he withholds same until he testifies there is prejudice to the
State since the State will not have been provided with the
opportunity of leading evidence which could expose the alibi as
false.’








[14] It is not in dispute that the
crimes (counts 1 and 2) had been committed. The identification of the
perpetrator of those offences is in dispute.








[15] In respect of count 1 the
reliability and the admissibility of the evidence at the
identification parade was never challenged – not by the
appellant during the trial neither by counsel appearing on behalf of
the appellant during the appeal hearing.








[16] During cross-examination of the
complainant in respect of count 1, the appellant asked her whether
there was anything regarding his face which she remembered and her
reply was that he has a skew eye. The magistrate observed this and
recorded this fact. It is common cause that one of the eyes of the
appellant is skew or squint. The complainant in respect of count 1
had on the day she had confronted the appellant inside her house
ample opportunity to observe his face and I am satisfied that her
identification of the appellant was not only honest but also
reliable.








[17] In respect of complainant in
count 2 it was never put in issue the fact that she was able to draw
a sketch of her attacker in such a precise manner that the police
officers were able to arrest the appellant on the strength of such
sketch. There was no evidence that she identified the appellant at an
identification parade, however one of the police officers Constable
Simson Naspile, testified that after complainant in count 2 had
identified the appellant, the appellant denied that it was him
whereupon she immediately drew their attention to the fact that she
had bitten her attacker on one of his fingers. On inspection of his
left hand this fact was confirmed.








[18] The appellant never disputed the
evidence of complainant in count 2 that she bit him on one of his
fingers, neither did he dispute the evidence of police officer
Constable Timoteus Shimi that there was a fresh mark on his finger.
It was only during cross-examination of the second police officer
Constable Simson Naspile when the appellant denied that he had a mark
on one of his fingers. It was also not categorically disputed by
counsel appearing on behalf of the appellant that appellant had been
bitten by complainant in respect of count 2. The criticism of counsel
in this regard was that the information contained in a J88 reflecting
alleged observations should be disregarded since the medical officer
was not called to testify in the court a quo.








[19] The appellant did not testify
about the incident in respect of count 2 at all neither did he
testify and explain how it was possible for complainant in count 2,
who had never seen him before, to be able to draw a sketch of his
face with such precision that the police could have arrested on the
strength of such a sketch.








[20] The undisputed evidence of
complainant in count 2 was that the incident took place at 09h00 on
13 June 2005 and that the police arrived 20 minutes later at her
house.



[21] If the evidence of the appellant,
is for the sake of argument, to be accepted as correct that he and
his witness arrived in Swakopmund between 12h00 and 13h00 on 13 June
2005, then he could not have been on the scene of the incident and
the complainant in respect of count 2 would not have been able to
draw such an accurate sketch of him. Since no person can be at two
places at the same time the inevitable conclusion is that the accused
person must have been at complainant’s house at the time of the
incident. If the evidence of the appellant’s witness is to be
accepted regarding the time and date when they had arrived in
Swakopmund namely at 08h00 on 14 June 2005 and having regard to
appellant’s evidence that he slept the whole day on the day
they had arrived in Swakopmund, then it would have been impossible
for the police officers to have arrested him on 14 June 2005 since
appellant, on this version, only ventured into town the next day, ie
15 June 2005.








[22] In my view it is more than just a
coincidence that appellant was identified by the complainant in count
2, who had accurately drawn a sketch of the perpetrator clearly
indicating the squint eye and on the basis of which appellant was
arrested, and by the complainant in count 1 who had identified the
very same person with a squint eye during the identification parade
and whom she had observed a week prior to the 13 of June 2005 in her
house in Swakopmund. I have indicated that the reliability and the
admissibility of the evidence regarding the identification parade
were never disputed. There is further a material discrepancy between
appellant’s version as to when they had arrived in Swakopmund
and that of his witness for which there is no explanation. The
inescapable conclusion is thus that the alibi of the appellant was
false.








[23] It is common cause that the
appellant never raised the defence of alibi during his plea
explanation, which was a bare denial of the commission of the
offences, neither did he raise the alibi during the cross-examination
of witnesses. The defence of alibi was raised for the first time
during his evidence-in-chief. What was said in Zwayi (supra)
aptly applies in this instance. The value that this court should
accord to the alibi, presented at this late stage, is therefore
adversely affected.








[24] The fact that the alibi was
raised at such a late stage together with the testimony of the
appellant and his witness that they had a discussion about their
journey in the police cells is an additional basis for finding that
the alibi defence was a fabrication.








[25] Mr Hoveka counsel appearing on
behalf of the appellant criticised the evidence of the complainant in
respect of count 2 where she had described the perpetrator to the
police officers inter alia as ‘very bold’ with a ‘yellow
skin’. ‘Very bold’ should in the context of her
description be read as ‘very bald’ especially if one has
regard to the sketch drawn by the complainant indicating a total
absence of hair. It is common cause that the appellant is not yellow
skinned and that the complainant made a mistake in this regard.
However, this should not in my view detract from the accuracy of her
identification of the appellant in view of other distinctive features
of the appellant namely his squint eye and the fact that the
appellant had a fresh wound on one of his fingers where he was bitten
by the complainant. This was an error made by the complainant and not
every error made by a witness affects such witness’
credibility. An error must be evaluated taking into account the
nature of the error and its importance, and the bearing such an error
has on other parts of the witness’ evidence. (See S v Mkohle
1990 (1) SACR 95 (A) at 98f-g).








[26] It is the duty of a court of
appeal to investigate carefully the findings of a court a quo in
order to ascertain their correctness (S v M 2006 (1) SACR 135
(SCA) at 152 (a) ).








[27] Mtambenengwe J in S v
Engelbrecht
2001 NR 224 at 225E-G referred with approval Leon J’s
remarks in S v Singh 1975 (1) SA 227 (N) at 228F-H how the
evidence on appeal should be assessed:








Because
this is not the first time that one has been faced on appeal with
this kind of situation, it would perhaps be wise to repeat once again
how a court ought to approach a criminal case on fact where there is
a conflict of fact between the evidence of the State witnesses and
that of an accused. It is quite impermissible to approach such a case
thus: because the court is satisfied as to the reliability and the
credibility of State witnesses that, therefore, the defence
witnesses, including the accused, must be rejected. The proper
approach in a case such as this is for the court to apply its mind
not only to the merits and demerits of the State and the defence
witnesses but also to the probabilities of the case. It is only after
so applying its mind that the court would be justified in reaching a
conclusion as to whether the guilt of an accused has been established
beyond all reasonable doubt. The best indication that a court has
applied its mind in the proper manner in the abovementioned exampled
is to be found in its reasons for judgment including its reasons for
the acceptance and the rejection of the respective witnesses.’








[28] Mr Hoveka submitted that this
court is deprived of the reasons why the learned magistrate arrived
at the conclusion that the State proved its case beyond reasonable
doubt because the magistrate failed to record those reasons.








[29] The magistrate in her judgment
summarised the evidence and thereafter concluded that the evidence of
the complainants were ‘clear and true’, that the
appellant and his witness ‘lied’ and then made the
finding that the State proved its case beyond reasonable doubt. The
magistrate did not apply the test enunciated in Singh (supra),
however it does not follow that this court should set aside the
convictions for that reason alone.








[30] In R v Dhlumayo and Another
1948 (2) SA 677 (AD) Davis AJA stated that an appeal is a rehearing,
with limitations, to which an applicant is in law entitled and added
at 699 that an appellate court may find itself in as good a position
as the trial judge to draw inferences even where there is a
controversy on facts.








[31] Strydom CJ followed Dhlumayo
in S v Shikongo 2000 (1) SACR 190 (NmS) at 201 d-e where
he remarked as follows:



Because
of the misdirection committed by the court a quo this court is now at
large to disregard the findings on fact of that court even though
based on credibility and must come to its own conclusion based on all
the evidence.’








[32] In S v Hadebe and Others
1997 (2) SACR 641 (SCA) at 645 e-f the court stated the following
regarding appeal hearings:








Before
considering the submissions it would be as well to recall yet again
that there are well-established principles governing the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong.’
(See also
Koopman
v S
2005
(1) All SA 539 (SCA) at 548 par. 32).



[33] In view of the aforementioned
guidelines this court, in the absence of reasons by the magistrate
for the acceptance of the evidence of the State witnesses and the
rejection of the evidence of the appellant and his witness, may draw
its own inferences.








[34] I have considered the merits and
the demerits of the evidence of the witnesses called by the
respective parties and have considered the probabilities and have
concluded that the alibi of the appellant was, for the reasons
mentioned, a fabrication.








[35] I am of the view, having regard
to the totality of the evidence, that the presiding magistrate did
not misdirect herself in any material way by finding that the State
had proved the commission of the counts 1 and 2 beyond reasonable
doubt, including the identity of the perpetrator, namely the
appellant.








[36] The appeal against the
convictions therefore stands to be dismissed.








[37] In the result the following
orders are made:









  1. The appeal is dismissed.










  1. The convictions and sentences are
    confirmed.



















----------------------------------



EPB Hoff



Judge


















----------------------------------



K van Niekerk



Judge








APPEARANCES








APPELLANT: Mr T K Hoveka (Amicus
curiae)



Of Dr Weder, Kauta & Hoveka Inc.,
Windhoek













RESPONDENT: Mr Kuutondokwa



Of Office of the Prosecutor-General,
Windhoek