CASE NO: SA 3/2001

IN THE SUPREME COURT OF
NAMIBIA

In the Appeal of :

TOBIAS NANDAGO
APPELLANT

And

THE STATE
RESPONDENT

CORAM: Strydom, C.J.;
O’Linn, A.J.A. et Chomba, A.J.A.

HEARD ON : 02/10/2001

DELIVERED ON : 06/03/2002

APPEAL
JUDGMENT

CHOMBA,
A.J.A.: On the 8^th of May last year the appellant
appeared before the court a quo and was charged with four
other persons on four counts, viz, one of murder and three of robbery
with aggravated circumstances as defined in section one of the
Criminal Procedure Act, Act No. 51 of 1977 (hereinafter C.P.A.). On
the murder count it was charged that on 19 November, 1998 at or near
Katutura in the District of Windhoek, the five accused persons
unlawfully and intentionally killed one Gotthardt Manyandero
(Manyandero), a male person. On one of the robbery counts, namely
the second count, it was elaborated that on the same date and at the
same venue as that pertaining to the murder charge, the same accused
persons did unlawfully and with the intent of forcing them into
submission, assault/threaten to assault Joshua Hamufungu,
(Hamufungu), Mathew Iimene, Stephanus Paulus and Manyandero by
pointing them with fire arms and shooting Manyendero and unlawfully
and with intent to steal took from them N$2273,81 and 7,65CZ Pistol
with ammunition, the property of or in the lawful possession of
Hamufungu, Mathew Iimene, Stephanus Paulus and Manyandero and/or
Jakob Jakobus Deelie; and that aggravating circumstances as defined
in section one of the C.P.A. were present in that the accused
and/or an accomplice were before, after or during the commission of
the crime in possession of dangerous weapons, namely Pistols and
threatened to inflict and inflicted grievous bodily harm.

It
is unnecessary to make elaborate references to the remaining two
counts of aggravated robbery because all the accused persons were
acquitted on those counts. On the second count all but the appellant
herein were acquitted while the appellant was convicted as charged
except that the trial judge determined that the evidence fell short
of establishing how much money was stolen. The Judge consequently
sentenced the appellant to nine years imprisonment on the murder
charge and seven years imprisonment on the other, ordering both
sentences to run concurrently. The present appeal arises from those
convictions and sentences.

In
recapitulating the facts of this case I remind myself that, shorn of
the involvement of the appellant’s erstwhile co-accused and of the
two counts on which all the accused were acquitted, the facts now lie
in short compass. In setting these out it is necessary first of all
to outline those facts which constitute common cause. They are that
earlier in the day on the 18^th of November, 1998 the
appellant borrowed a white Ford Saphire saloon car, registration
number N15106W, belonging to one Lazarus Petrus who was the eighth
prosecution witness at the trial. The appellant required it to
enable him purchase liquor and deliver it to his shebeen in Katutura
Township. That mission having been accomplished, much later in the
evening of that day the appellant drove from the shebeen in the same
borrowed car, meaning to give a lift to the second accused, Erastus
Kinge, who lived in Soweto. There were three other passengers in the
car one of whom, according to his own extra judicial statement made
pursuant to section 115 of the C.P.A., was the fourth accused, Jonas
Shitulepo.

The
appellant and his passengers eventually drove to Hakahana Service
Station where they stopped to refuel. The petrol attendant there,
namely Hamufungu, began to serve the customers, but shortly
thereafter the front seat passenger came out, took over the pump and
poured petrol into the car tank. In due course, after payment for
the petrol the occupants of the car had resumed their seats, one
passenger disembarked from the car and headed for the room in which
the petrol attendants usually take their rest (attendants’ room).
Two gunshots were then heard in the attendants’ room and in the
aftermath of the confusion that followed, Manyandero, who was a
security guard at the filling station, was found to have sustained
two fatal injuries in the chest. A substantial amount of money was
spirited away by the perpetrators of the robbery and a pistol, which
Manyandero had in the course of duty that night was also stolen.

Other
undisputed facts are the following:

Ballistics
expert, Superintendent Lucas W. Visser, who was prosecution witness
number one, of the South African Police in the Ballistics Section of
the Forensic Science Laboratory, testified that on the 19^th
of July, 1999 he received from Katutura Police, Namibia, the
following:

1. 1
   functionally sound .38 Smith Wesson Revolver (W &S Revolver)
   Serial No. 12701/737646

   
   

2. 2
   X .38 S&W calibre spent cartridges
   

   
   

3. 1
   x 9mm spent bullet

   
   

4. 1
   x 9mm spent bullet

   
   

Superintendent
Visser carried out a microscopic examination of the foregoing items
with the following results:

1. 2
   x 38 S&W spent cartridges were fired from the .38 S &W
   Revolver aforementioned

   
   

2. 1
   x 9mm spent bullet was fired from the same .38 S&W Revolver

   
   

3. The
   second 9mm spent bullet was possibly fired from the same revolver
   but owing to insufficient firing marks it was difficult to make a
   definite finding

   
   

4. If
   both bullets were fired from the same gun, then they were fired from
   a wrong gun as such bullets ought properly to be fired from a
   chambered 9mm parabellum caliber gun. However the bullets can,
   albeit wrongly, be fired from a .38 S&W Revolver.

   
   

The
.38 S&W Revolver, according to the police evidence, was recovered
from the appellant after his arrest.

Dr.
Nadine Louise Agnew, the second prosecution witness, a senior medical
officer at the Ministry of Health in the Namibian Government Service,
conducted a postmortem examination on the body of Manyandero. The
body was identified to her by Constable Mbandeka of the Namibian
Police. The Doctor’s findings were:

1. Palor
   of oral mucosa, lungs and brain

   
   

2. Left
   ventricle of the heart was lacerated

   
   

3. There
   was left haemothorax, that is 100 ml of blood in the left side of
   the chest

   
   

4. Rib
   fractures both interiorly and posteriorly

   
   

5. Lacerated
   left kidney

   
   

6. Lacerated
   spleen

   
   

7. Lacerated
   left hemidiaphram

   
   

8. Lacerated
   pericardium with 150 ml of blood having accumulated therein.

   
   

The
Doctor’s examination also revealed that the deceased sustained two
gun shot entrance wounds in the chest and these exited from the back.
Consequently there was no bullet embedded in the deceased’s body.
She opined that death was caused by the two gun shot wounds in the
chest.

It
was equally undisputed that the police recovered two spent bullets
from the attendants’ room at Hakahana Service Station in which
Manyandero was killed. Sergeant Felix Diunisius of Namibian Police
Serious Crime Section, Windhoek, was the investigations officer. He
told of how he went to Hakahana Service Station after receiving a
report. He there found the dead body of Manyandero. From the
information given to him by Hamufungu, the Sergeant ascertained that
the perpetrators of the murder and robbery had used a Ford Saphire
saloon car, registration No. N15106W. In the ensuing investigations
he apprehended the appellant and recovered from him the S&W
Revolver, which was subsequently sent to the Ballistics expert as
earlier mentioned. He also traced the owner of the Ford Saphire
N15106W who turned out to be Lazarus Petrus. It was upon information
from the last mentioned person that Sergeant Diunisius sought and
later apprehended the appellant. Upon his apprehension the appellant
denied being engaged in the two offences under review. However the
S&W revolver was found in his possession and he admitted that it
was his and that it was licensed in his name. Sergeant Diunisius
extracted from the revolver two spent cartridges, which were,
inter alia, the subject of Superintendent Visser’s evidence.

The
foregoing are the incontrovertible facts of the present appeal.

The
main stay of the appellant’s case, given on oath, was that he was
not party to the commission of the two offences. He conceded that
the murder weapon, namely the S&W revolver was his. He however
contended that one of his passengers on the material occasion, namely
the fifth accused at the trial was the actual perpetrator of the
murder. The appellant’s version was further that the fifth
accused, without the appellant’s authority, took the revolver from
the glove compartment of the Ford Sapphire and went with it into the
attendants’ room from where gun shots were shortly thereafter
heard. Presently he saw the fifth accused returning to the car and
he had in his hands two-hand guns. The appellant immediately
concluded that the gun used to kill was his. He asked the fifth
accused where he had taken the gun from without permission but the
latter never answered that question. In short, the appellant’s
position is that he disassociated himself from the fifth accused’s
alleged criminal conduct.

The
trial judge disbelieved the appellant and convicted him of both the
murder and robbery with aggravating circumstances. He founded the
convictions on the principle of common purpose.

In
arguing the appeal on behalf of the appellant Ms. Hamutenya, as
expected, made common purpose the main pillar of appellant’s case.
Her argument is encapsulated in the following submission contained in
the Heads of Arguments:

“The simple problem in this
case is that there was no sufficient evidence in the court a quo
to prove that the accused persons committed the murder by common
purpose and the principal offender has never been identified beyond
reasonable doubt.”

However,
it is necessary to refer to two other paragraphs in the appellant’s
heads of argument as these raise other collateral issues, viz:

“The main issue in this
appeal is whether the evidence before the court a quo proved beyond
reasonable doubt all the elements of common purpose against the
appellant, if not then the appeal must succeed. The issue is also
whether absence of a finding as to who committed the murder a
conviction on common purpose without a principal offender will
follow.

It is further submitted that
where several persons have been charged with murder and it is certain
that murder has been committed by one or more of them, but a
reasonable doubt exists, then they must be all acquitted.”

In
support of the tail-end of the foregoing submissions Ms. Hamutenya
cited the cases of R v GANI and others 1957 (2) S.A. 212(A); S v
JONATHAN and ANDERE 1987(1) S.A.633; and S v KHOZA 1982(3) S.A.
1019.

As
I perceive them, the supposedly two collateral issues are in reality
one issue only. This is whether it is competent to convict any one
of several persons jointly charged with murder, but where it is
unclear as to which of them actually delivered the coup de grace.

I
have perused GANI and KHOZA, supra, and my understanding of them is
the following. In GANI the trial judge had held in effect that the
murder was committed by any one of three accused persons or a
combination of any two of them. However, he found that the evidence
fell short of identifying which one or which two of the accused were
the principals. For that reason he felt inhibited from convicting,
and did not convict, any of them of murder. He then considered the
crown’s alternative submission that if a conviction of murder was
not possible because of lack of evidence of the identity (or
identities) of the principal (s) then all three should be convicted
of being accessories after the fact to murder. The judge rejected
that submission. His rationale was that since one or two of the
three must have actually committed the murder that one or those two
could not be accessories after the fact to the murder he or they
committed.

It
still being undetermined as to the principal offender, and as
convicting all the three would mean holding that the lone principal
offender or any two of them who were the principal offenders was or
were accessory or accessories after the fact to their own act of
murder, a position he found untenable, he felt that the only way
out, as a matter of law, was to acquit all of them. He did exactly
that.

The
Crown appealed on a reserved question, namely -

“Whether,
the (trial) court having found as a fact:

1. That
   one or any combination of two of the three accused persons had
   murdered the deceased; and

   
   

2. That
   the Crown had not proved that the three accused acted in concert;
   and

   
   

3. That
   it had been proved during the trial that after the commission of
   the murder all three accused participated in the disposal of the
   deceased’s body, the trial judge was wrong in law in coming to
   the conclusion that none of the three accused could be convicted of
   being an accessory or accessories after the fact to the crime of
   murder.

   
   

The
appellate court consisting of Fagan, C.J. and four others,
unanimously set aside the acquittal on the alternative charge of
accessory after the fact to murder. It instead ordered the three to
be re-arraigned on that alternative charge.

As
to KHOZA, there the second accused, who never appealed, was convicted
of murder. The first accused, KHOZA, appealed against his
conviction of murder with extenuating circumstances. The appellate
court, also composed of five judges, held by a majority of three to
two that in as much as the only incontrovertible evidence against the
appellant was that he struck the deceased with a cane stick, but it
had not been established conclusively that such striking had causally
contributed to the death of the deceased, the murder conviction
against him was unsustainable. The court quashed that conviction and
substituted it with one of common assault.

With
due respect, therefore, GANI and KHOZA were wrongly cited in support
of the submission that where several persons are charged with murder
and it is proved that the murder was actually committed by one or
more of such persons, but the identity (or identities) of such person
(or persons) is unclear on the evidence, then they must all be
acquitted.

Despite
GANI and KHOZA being wrongly cited for the proposition put forward by
Ms. Hamutenya, the proposition itself would appear, in a proper case,
to be tenable. However, it is my considered opinion that that
proposition is inapplicable to the case wherewith the present appeal
is concerned. This appeal stands or falls on the principle of common
purpose.

The
critical issue in this appeal is whether the appellant was a party to
the murder and aggravated robbery, acting in concert with other
persons. That issue did not escape the attention of the learned
trial judge. He correctly analyzed and considered the essentials,
which constitute common purpose. He cited the case of S. V. Mgedezi
and Others 1989(1) S.A.687, which itemizes those essentials in a case
where there is lack of evidence of an express agreement by would-be
criminals to pursue such a purpose. Summarized, these essentials
are:

1. The
   presence of the accused at the locus in quo;

   
   

2. Awareness
   on accused’s part of a plan to commit the subject offence;

   
   

3. The
   accused’s intent to act in tandem with his colleagues in the
   furtherance of the common purpose;

   
   

4. Performance
   by the accused of some act of association with the conduct of his
   co-accused;

   
   

5. Proof
   of mens rea on his part to commit the crime charged or proof
   that he foresaw the possibility of the targeted offence being
   committed and performing an act of association with recklessness as
   to whether or not the targeted result of the planned offence was to
   occur.

   
   

The
learned trial judge determined, upon examination of the entirety of
the evidence before him, that each and every one of the foregoing
essentials was proved. The presence of the appellant at Hakahana
Service Station was common cause. As to the second, third and fourth
essentials the judge determined as hereunder:

“……..even if he is to
be taken on his own turf, he allowed his firearm to be used. His
attempt to explain how the fifth accused supposedly took his firearm
from the glove box without being seen by him when he (the first
accused) was also in the vehicle was muddled and in fact bordered on
absurdity. A conclusion is inescapable that he knew that his firearm
was going to be used to induce people in the submission and if
necessary to kill and that he intended to achieve one of these
objectives or at any rate was reckless as to whether any of these
objectives were to be achieved.

Apart from allowing his
firearm to be used another instance of association is the
transportation of the robber or robbers to and from the scene.”

I
fully endorse the foregoing observations by the learned trial judge.

The
judge also stated that the appellant generally fared badly as a
witness both in examination-in-chief and especially under
cross-examination. He amplified that assessment by referring to
pertinent parts of the evidence. However I feel that there are other
equally important self-incriminating aspects of the appellant’s
evidence to which the judge did not advert his mind.

Quite
apart from being less than candid regarding the time when the
appellant said he placed his revolver in the glove compartment, his
evidence was in part to the following effect:

The
fifth accused left the car at a time when the appellant and his
colleagues in the car were set to depart from Hakahana Service
Station. The appellant patiently, supposedly, let the fifth accused
go to see one Stephanus Paulus at the service station. While the
fifth accused was in the attendants’ room the appellant heard two
gunshots fired. Not long thereafter he saw the fifth accused
returning to the car holding two handguns. He immediately concluded
that his revolver was used in the shooting he had heard.

The
question arising from this is, if the fifth accused emerged from the
attendants’ room while in possession of two guns, how is it that
the appellant was so sure that it was his gun and not the other that
was used? This question is important because on his own evidence the
appellant did not see the fifth accused take the appellant’s gun
from the glove compartment, nor did he see the fifth accused carrying
any gun as he left the car supposedly to see Stephanus Paulus in the
attendants’ room.

Before
venturing to provide an answer to that question, it is necessary to
examine attendant evidential circumstances. The appellant testified
that the fifth accused was never a friend of his; but that that
accused was a regular patron at the appellant’s shebeen; that the
fifth accused just happened to have had a ride in the appellant’s
car at the time when the appellant was taking home the second
accused, who was a friend and workmate of the appellant. Yet it was
the fifth accused who sat with the appellant in the front seat of the
car. Normally a driver instinctively chooses to sit with a friend,
an acquaintance or a family member in the front seat while others
less known to him sit behind. This is so because one is freer with a
front seat passenger with whom one is associated in the manner just
mentioned and can therefore chat with him/her as one drives.
Additionally we see this chancy rider, the fifth accused, being
allowed by the driver to delay the departure of the car solely so
that the fifth accused could see a friend in the attendants’ room.
It is not stated whether it was critically necessary for the fifth
accused to see that friend. It was quite late in the night when this
happened. In fact it was after two o’clock in the morning when the
urge to go and sleep would have made it imperative that the appellant
should drop off his passengers as quickly as possible so that he
himself could go home and sleep. The question may also be asked
whether it is usual that a person with whom one is not connected can
steal a gun from a good Samaritan who is giving him a rare lift home,
go out and commit a ghastly murder with it virtually in the presence
of the gun’s owner, then coolly return to the car from which he
stole the gun and brush aside with impunity a query from the gun’s
owner as to where he took the gun from. Even more surprising is that
that owner, in the full knowledge that his mischievous casual
passenger has committed a serious offence using his gun without
permission, helps the murderer to escape from the scene of the crime
and from justice.

These
are a concatenation of rare and odd coincidences, which are difficult
to accept as representing the truth. They do not suggest a
non-existence of acquaintanceship between the appellant and the fifth
accused. To the contrary they strongly and circumstantially prove
existence of acquaintanceship. And on that particular occasion they
suggest that a tacit collaboration existed in the planning and
commission of the robbery. This can be inferred from the fact that
the appellant knew that the actual perpetrator went to the
attendants’ room armed with the S&W revolver, which was no
doubt loaded. The appellant therefore must have had knowledge that
that gun would probably be fired in the event that the intended
victims of the robbery or any one of them, put up resistance to the
intended robbery. That explains why the appellant never
disassociated himself from the perpetrator’s deed, but instead gave
solace and help to the murderer to make good his escape from justice.

Regarding
the fifth ingredient of common purpose, i.e. mens rea, this mental
element is not always capable of proof through direct evidence. It
is usually inferred from proved facts relating to a person’s
conduct. In the present case, when it is established that the
appellant travelled with the perpetrator of the subject offences to
Hakahana Service Station; that he allowed that perpetrator to assail
the occupants of the attendants’ room while armed with the
appellant’s own revolver; that the appellant was cock sure, upon
hearing gun shots coming from the attendants’ room, that his
revolver was the one used to fire those shots; that the appellant
saw the perpetrator return to the appellant’s car and nonetheless
let the latter enter the car with the loot which included a second
handgun; and that the appellant sped off thereby, enabling the
perpetrator to escape from justice, it becomes irresistible to hold,
and I so hold, that the appellant had the necessary mens rea to
commit the subject offences.

From
all the foregoing inferences and facts, it is irresistible to
additionally hold, and I so hold, that the appellant did associate
with the actual perpetrator of the twin felonies both immediately
before and immediately after committing the said offences.

What
distinguishes this case from those in which one or more accused
persons escape conviction on account of the prosecution’s failure
to prove the role the one or more of such larger groups played in the
commission of a subject offence is this. Here the appellant’s role
in this robbery and consequential murder was circumstantially
established beyond peradventure. He drove with the murderer as his
passenger to Hakahana Service Station, allowed the murderer access to
the appellant’s S&W revolver and the murderer took it with him
to the attendants’ room. The murderer initially used the revolver
to, and did, score at least one of the occupants of the attendants’
room, and later fired it at Manyandero, fatally wounding him. All
this was done to the knowledge and with the connivance, as well as
in the presence, of the appellant. The murderer then returned to the
appellants’ waiting car with the loot and an additional handgun.
The murderer having returned to and entered the car, the appellant
drove off and thus helped that principal offender to escape from
justice. These circumstances clearly portray the appellant as an
active participant in the crimes charged.

Unfortunately
we have in this case an incongruous situation where the appellant is
glaringly guilty of charge, but the man he identified as his
accomplice in the crime has had to be acquitted. Because the State
has not appealed against the fifth accused’s acquittal, this
appellate court cannot return any verdict adverse to him.

Since
as already indicated in the preceding paragraph the Appellant is
unquestionably guilty, having been convicted on impulsively
compelling evidence, I find no merit in his appeal against conviction
on both counts.

Coming
to the sentence, Ms. Hamutenya conceded that she knew of no case in
which a person convicted of murder, which is committed in the
prosecution of a robbery got only nine years imprisonment. She
however, submitted that a nine-year prison sentence deprives the
inmate concerned of a chance to earn a living for himself and his
family. Suffice it to state that in the Heads of Arguments regarding
sentence, the Prosecutor General, Mr. January, stressed the
aggravating circumstances in which the subject offences were
committed. He argued that in the light of those circumstances, the
sentence imposed by the trial judge in relation to the murder was
inadequate. Otherwise at the hearing of the appeal he did not find
it necessary to address us on sentence.

This
was a particularly heinous homicide. The victim, Manyandero, was
sleeping and although he seems to have woken up just before he was
fatally shot, all for the sake of money, which the robbers wanted to
steal, he had absolutely no chance of either defending himself or
retreating to avoid being shot. The gun-wielding, murderous intruder
blocked the only exit he could have used.

These
circumstances call for a much stiffer punishment than the one, which
was imposed by the trial judge in respect of the murder conviction.
Moreover, the appellant was at the material time a soldier in the
defence force of Namibia. His clear duty was to ensure the safety and
security of Namibians. To the contrary he engaged in a homicidal
venture purely to satisfy his avarice for easy money. In my view he
deserves a condign prison sentence which should also be deterrent.
Moreover society needs protection from criminals like the appellant.
To ensure that, the appellant needs to be incarcerated for a much
longer period.

In
the event I would set aside the sentence of nine years imprisonment
and in replacement thereof impose one of twenty years imprisonment.
This sentence is to run concurrently with the sentence imposed in
respect of the robbery conviction.

The
appeal is consequently dismissed in its entirety.

In
concluding this judgment I must refer to the fact that in this appeal
there was a preliminary application for condonation. This is because
Ms. Hamutenya did not file her Heads of Arguments within the time
stipulated by the rules of the Court. However the Prosecutor General
quite properly intimated at the outset that he was not opposing the
application. Consequently the court granted the application and
therefore condonation was not an issue in this case.

(signed)
CHOMBA, A.J.A.

I
agree.

(signed)
STRYDOM, C.J.

I
agree

(signed)
O’LINN, A.J.A.

STRYDOM
C.J.:

I
have read the judgment of my brother Chomba and agree therewith. It
is perhaps necessary to explain shortly how the matter came before us
on appeal. The appellant firstly applied to the trial Judge for
leave to appeal against his conviction and sentence. This
application was unsuccessful. The appellant thereupon filed a
petition in terms of Act 51 of 1977 in which he repeated his previous
application. This petition was partly successful in that the
appellant was granted leave to appeal against his convictions only.
However, after the whole record was studied and after consultation
with the other Judges of the Supreme Court, a notice was sent to the
appellant and the State, through the Registrar of this Court, in
which he stated as follows:

“I
have been requested to inform you that the Court would like to hear
argument why sentence of the appellant should not be increased in the
event that the appeal is unsuccessful.”

Consequent
upon this notice both Counsel, during the appeal proceedings,
addressed us fully in regard to the sentence imposed by the Court a
quo.

In
the result the order proposed by my learned brother is set out as
follows:

1. The
   appeal against the convictions for murder (Count 1) and robbery with
   aggravating circumstances (Count 2) is dismissed;

   
   

2. The
   sentence of 9 (nine) years imprisonment imposed for the conviction
   for murder (Count 1) is set aside and a sentence of 20 (twenty)
   years is substituted therefore;

   
   

3. The
   sentence of 7 (seven) years imposed for the conviction of robbery
   with aggravating circumstances (Count 2) is ordered to run
   concurrently with the sentence of 20 (twenty) years imprisonment
   imposed on Count 1.
   

   
   

(signed)
STRYDOM, C.J.

I
agree.

(signed)
O’LINN, A.J.A.

I
agree.

(signed)
CHOMBA, A.J.A.

COUNSEL ON BEHALF OF THE
APPELLANT: Adv. L. Hamutenya

(Amicus Curiae)

COUNSEL ON BEHALF OF THE
RESPONDENT: Adv. H.C. January

(Prosecutor-General)