Court name
Supreme Court
Case number
SA 39 of 2008

Nghipandulwa v S (SA 39 of 2008) [2009] NASC 14 (26 October 2009);

Media neutral citation
[2009] NASC 14



NO.: SA 39/2008


the matter between:






CORAM: Chomba,
AJA, Mtambanengwe, AJA,

on: 29/06/2009

on: 26/10/2009



  1. The appellant is
    by Mr Z Grobler while the respondent is represented by Mr A Muvirimi
    of the Prosecutor General’s Office. The appellant was one of
    three accused who stood charged in the Regional Court, Windhoek,
    with aggravated robbery, negligent discharge of a firearm, and
    discharging a firearm in a public place. He was accused 2 at the
    trial in the Regional Court (“the trial court”) where it
    was alleged that he participated in the commission of the offences
    acting with common purpose with his co-accused. I will in this
    judgment refer to him as accused 2. The trial court convicted all
    three accused only of aggravated robbery committed with common
    purpose. Accused 2 who had a relevant previous conviction was
    sentenced to 20 years imprisonment.
    The trio appealed to the High Court (“the Court
    which dismissed the appeals against both conviction and sentence.
    That Court also refused them leave to appeal to the Supreme Court.
    Accused 1 and 3 were equally unsuccessful in their petitions to the
    Chief Justice, but this Court granted accused 2 leave to appeal to
    it. The present appeal is therefore in consequence of the leave to
    appeal so granted accused 2.

  1. The facts are
    tolerably straight
    On 9 December 2001, two Zimbawean nationals, Archibald Matangi and
    Morgan Matangi (father and son in reverse order) set about what
    turned out to be an ill-fated journey to Zimbabwe, commencing the
    trip from Soweto Township in Katutura. The journey was to take them
    by taxi from Soweto to Klein Windhoek and thence to Gobabis

    to Zimbabwe. They made it to Klein Windhoek alright and there were
    offered a lift to Gobabis by accused 1 who was in a Volks Wagen (VW)
    with accused 2 and 3. Accused 1 was the driver (and it appears
    owner) of the VW. He offered to transport the two Matangis to
    Gobabis for the fee of N$30 per person. The deal was struck and the
    father and son boarded the VW. On the pretext of collecting more
    fee-paying passengers in a bigger vehicle which had to be fetched in
    Nubuamis, accused 1 drove in the general direction of Katutura.
    Somewhere along the way, he parked the VW under a tree in the bush
    as accused 3 said he needed to smoke dagga which he proceeded to
    look for; first inside the VW and then, accompanied by accused 1, in
    the boot of the VW. It was when these two accused persons went in
    the direction of the VW’s boot that Archibald, suspicious of
    their intentions, followed them. Accused 3 then removed a firearm
    which was on the person of accused 1 and advanced with it towards
    Archibald. In legitimate self-defence, Archibald pounced on accused
    3 and in the process accused 3 lost control of the firearm which was
    then grabbed by Morgan. Acting in concert, accused 1 and 3 later
    dispossessed Morgan of the firearm and, having chased after him
    about 150 meters from the VW , robbed Morgan of a substantial sum of
    cash – in the process discharging the firearm with the
    intention of frightening Morgan into submission. It is apparent
    therefore, that the actual robbery (and the shooting) happened near
    a road about 150 meters away from the VW in which accused 2 was
    sleeping. Accused 3, having committed the robbery (using the
    firearm belonging to accused 1), ran away leaving accused 1 and 2 at
    the scene. It is common cause that accused 2 was asleep in the VW
    when the robbery took place. Accused 2 then woke up and prevented
    the Matangis from removing their bags which they had placed in the
    boot when they boarded the VW in Klein Windhoek. Archibald somehow
    managed to find his way to the Katutura police station where he
    summoned the help of a police officer and returned to the scene with
    the officer. It was at the scene of the crime that accused 1 and 2
    were then arrested while they were still with Morgan. It appears
    these two accused remained there as the vehicle was still there
    after accused 3 ran away and the key to the VW had somehow

  1. Both Matangis
    the trial. Archibald testified that when they boarded the VW in
    Klein Windhoek accused 2 was asleep and remained in that state until
    after the robbery had been completed. That much is clear from the
    following exchange between accused 2 and Archibald when the former
    cross-examined the latter:

Now, what shows to you that I was half asleep?

You was just lying like somebody who is sleeping, closing your eyes.

Just like I am sleeping?


Okay, now after you found me half asleep, did I then ever spoke
either to you or to my co-accused 1 and 3 here?



Now is that what you want to imply that one can decide while you are

accused 3 said he want to smoke ‘ganja’ you were asleep,

so it was me and my father and the accused no. 1 and accused no. 3.


Now I further want you to tell this Court that
the time you got into the VW up to the time where you were robbed of
your items, now were I sleeping all he time?


is there anything which can link me to this offence up to the time
that you came there regarding this offence?

underlining for emphasis)

  1. Morgan who
    corroborated Archibald’s account of the conduct of accused 1
    and 3 in the
    also corroborated Archibald to the extent that accused 2 was asleep
    at all material times. Morgan testified as follows in his evidence

said no we want to go and leave this one there,
think it’s the second accused, they want to drop him because he
is drunk and they want to drop him there
Then they drove. When we were now on our way they started asking us
where are all those people at the hiking point, where are they going.
Then I told them no, the people are going to the border. Then they
said if we can get the combi, I think we can make money. Then “how
much did you used to pay to the border”. Then told them, no,
we pay N$50-00 to the border. Then they said, no let us go and
collect the combi. Then I asked them where is the combi. They said
it is in Katutura then I said no, there is no problem. Then they
drove back (intervention) …” (

  1. When
    cross-examined by accused 2 Morgan confirmed that the former never
    spoke from the moment they boarded the VW and was asleep at all
    material times. He also confirmed that accused 2 never participated
    in the actual robbery.

  1. Both Archibald and
    Morgan testified that at some point after the robbery had been
    committed by accused 1 and 3 ( while accused 2 was asleep) and after
    accused 3 had fled from the scene of crime, accused 2 – upon
    emerging from his sleep
    the trial Court aptly characterised as a ”drunken stupor”)
    - prevented the Matangis from removing their bags from the boot of
    the VW; that he demanded to know why the father and son had taken
    the gun (”our gun”); and that he assaulted them.
    Accused 2 had of course denied that he assaulted the Matangis or
    that he acted in furtherance of the robbery – maintaining that
    he acted in the way he did (i.e. telling Archibald not to remove the
    bags) in the belief that he and the co-accused were in fact the
    victims of criminal conduct by the Matangis.

  1. Accused 2
    testified on his own behalf and said under oath that he and others
    had been drinking at a party at the home of accused 3 the night
    before 9 December 2001 and that he had a lot to drink. The next day
    he learned that accused 1 and 3 wanted to go to Gobabis with a
    vehicle belonging to accused 1. He testified that he met accused 1
    for the first time at the home of accused 3 and did not know accused
    1 before that. Accused 2 testified that he declined the invitation
    to accompany accused 3 to Gobabis as he had a lot to drink and was
    tired – clearly a euphemism that he was very drunk. (This
    evidence corroborates the evidence elicited by the State that
    accused 2 was very drunk). He asked instead to be taken home and in
    that way got into the VW. According to accused 2, while waiting in
    the VW for accused 3 (who was then trying to trace his girlfriend)
    he fell asleep and only remembered waking up in the bush in a
    strange place amongst strangers to find that accused 1 and 3 were
    not present and that a strange man was removing things from the boot
    of the VW. Accused 2 testified that he then concluded that this
    stranger (which must have been Archibald) was removing bags from the
    VW and tried to stop him from doing so. He stated in very clear
    terms that he thought Archibald was stealing from the VW. When
    cross-examined accused 2 denied that he associated himself with the
    gun as alleged by the Matangis.

  1. Accused
    1 did not testify in his own defence. In his testimony, accused 3
    corroborated accused 2’s version that he was taking him home
    as he was drunk. After describing how he was invited by accused 1
    to accompany him to Gobabis, accused 3 testified:

were supposed to drop accused no. 2 in Nubuamis…because that’s
where he to stays.
he got into the VW he asked me if we cannot drop him there
when we came into the VW with my girlfriend we found accused no.2

After we dropped my girlfriend Your Worship we just decided to drive
to Gobabis …
accused no. 2 was also in the VW sleeping

And then, after
describing how they came to offer a lift to the Matangis who then
boarded after paying the fee demanded by accused 1, accused 3
continued to testify thus:

turned and
no. 1 asked me if we can just drop accused no. 2, then we can just
drive straight to Gobabis from there, after dropping him

  1. The trial Court
    in justification of its conviction of accused 2 that he was part of

    consisting of all the accused persons setting about offering lifts
    to Gobabis to the unsuspecting victims, loading them on the vehicle
    and then robbing them of their property. The learned magistrate
    specifically held that the three accused persons planned the robbery
    beforehand and that accused 2 was part of its planning and
    execution. The trial Court accepted the version of the Matangis
    that accused 2 was violent towards them and was satisfied that
    accused 2 knew that the father and son had taken possession of the
    firearm used in the robbery by accused 1 and 3 (presumably with
    accused 2’s knowledge) and that it was that firearm that
    accused 2 wanted back from the Matangis.

  1. This approach to
    the evidence (and the consequential inference of guilt in respect of
    2 flowing therefrom) apparently found favour with the Court

    when it upheld accused 2’s conviction for aggravated robbery
    acting in common purpose with accused 1 and 3. The Court

    came to the following conclusion in respect of accused 2:

it is clear that the second appellant knew much more of what was
happening around him while he appeared to be sleeping than he was
willing to admit in his testimony
The record reflects that when the second appellant woke up he
immediately wanted to know where the gun (“our gun”) was
and he physically prevented Archibald from leaving the scene with
their luggage. Whether he was carrying a half brick and empty beer
bottle, or hurled these at Morgan and missed, is neither here nor
suffices that when Morgan came to the rescue of Archibald, the second
appellant told him to leave the bags alone until he explained why he
took “our gun” as the second appellant put it
For this reason I take the view that the conduct of the first and
third appellants was also correctly imputed to the second appellant.
See also
v Mgedezi and Others

1989 (1) SA 687 at 607).” (My underlining for emphasis)

  1. In drawing the
    inference that
    2 was complicit in common purpose with accused 1 and 3, both the
    trial court and the Court

    appear to have been swayed by the fact that accused 2 associated
    himself with the gun at some point by demanding back “our
    gun”, held back the bags belonging to the two victims; and
    assaulted them. Mr Muvirimi relies substantially on this
    circumstance in support of the conviction. Although the trial court
    for its part found that there was a prior agreement between accused
    2 and his co-accused to commit the armed robbery, Mr Muvirimi
    suggests in his heads of argument (relying on
    v Mgedezi

    1989 (1) SA 687 (A) at 705 I-J and 706 A-B
    ) that the trial court was entitled to convict accused 2 based on
    the doctrine of common purpose even where there is no evidence of
    prior agreement between him and the co-accused. Curiously, Mr
    Muvirimi also relies on those very same facts and circumstances for
    the inference that accused 2 knew about the robbery prior to its
    commission. He also suggests, rather courageously, that accused 2
    pretended to be asleep as part of the scheme to rob the Matangis and
    was fully aware throughout that a robbery was underway.

  1. Contrary to Mr
    Grobler’s suggestion
    the Matangis were very impressive, if fair witnesses. In my view
    they made no unfair accusations against accused 2. Although I
    prefer the version of the Matangis that accused 2 was aggressive
    towards them and in fact demanded the gun (”our gun”)
    back from them - nothing should turn on this because, even if
    accused 2 lied on this aspect, it does not automatically follow that
    his account that he had not knowingly participated in the robbery
    and did not associate himself therewith after it had been committed,
    is not reasonably possibly true
    Because a man tells lies at his trial he is not necessarily guilty.
    It is judicially recognised that innocent people do tell lies at
    times because they think that telling the truth might put them in
    The present appears to me to be such a case. Or, to put it
    differently, a Court properly directing itself cannot be satisfied
    beyond reasonable doubt that it is not the case.

  1. Accused 2
    had made it clear under oath that when he emerged from his ”drunken
    stupor”, the person he saw around the VW was Archibald who
    was a complete stranger to him and who was then removing bags from
    the VW. As he put it under oath:

‘’ So
when I woke up …from my sleep I just found myself in an open
space in the car…Now I was alone in the car, I was now
are my co-accused persons, my friends with whom I was in the car. I
got off from the car, so on my left side of the car …outside
the car I found a strange man…whom I never saw in my life
I approached him and I asked … where are the people with whom
I was in the car.

This person responded in English, so
was aggressive and he just said I just want my bag
was now surprised how he came there… To me it looks like this
person was trying to steal

So I told him okay leave those bags so that these people with whom I
was in the car can come
(My underlining for emphasis)

  1. Accused 2 also
    testified that he later met accused 1 who, when he asked him what
    was going on, said that it was only a misunderstanding which would
    be cleared up when the police came. This undisputed evidence shows
    that accused 2 was not aware that the Matangis had been the victims
    of an armed robbery at the hands of accused 1 and 3; that he
    believed (mistakenly as it happens) that they were in fact the
    villains and that Archibald did not tell him that his associates had
    just robbed them. Even if, therefore, accused 2 lied on the aspect
    of the gun, or acted aggressively towards the Matangis, that is not
    consistent only with guilt. The State bore the
    to prove beyond reasonable doubt that when accused 2 did these
    things he did so well-knowing that the Matangis had been the victims
    of a robbery at the hands of accused 1 and 3 and that in so acting
    he was acting in furtherance of the robbery. When it is said that
    an accused is presumed to be innocent until proven guilty, what is
    really meant is that the burden of proving his guilt is on the
    prosecution. This requires a clear conviction of guilt and not
    merely a suspicion, however strong that suspicion. A mere fanciful
    doubt where it is not in the least likely to be true, would not
    prevent conviction. As I understand the law, a Court of law is not
    entitled to draw an inference of guilt from a set of facts, if the
    same facts are capable of an inference inconsistent with guilt, or
    are consistent with an inference that the accused’s version is
    reasonably possibly true. In that event, the State would have
    failed to discharge the burden of proof beyond reasonable doubt and
    the accused would be entitled to his acquittal.

  1. I find it
    significant that counsel for the State submitted at the trial that
    the presiding magistrate could (in the alternative) convict accused
    2 of assault with intent to cause grievous bodily harm
    It must have been apparent to counsel for the State that the
    evidence raised a reasonable doubt that accused 2 might be innocent
    of the crime of aggravated robbery. To counsel’s submission,
    the trial court commented:

the State Prosecutor in his address was prepared to accept that if
accused no.

2 is not convicted of armed robbery, at least he must be convicted of
the crime of assault with intent to do grievous bodily harm in that
he threw a brick or a stone at the second State witness Mr Morgan,
but the Court is of another opinion and I am not prepared to accept
the concession by the prosecutor in this regard. The prosecutor is
also of the opinion that the Court must accept the evidence of the
two State witnesses. Being that so,
is clear to the Court that the three accused persons acted in
concert, they worked together
The Court finds it as a fact that
three of them worked with common purpose to rob the two complainants
It is the experience of the Court that robbers and also many other
criminals have what we name a
they have a way in which they operate, and
the mind of the Court the

of the three accused persons before the Court was to go to that scene
… where the people are gathering to take a hike to Zimbabwe to
rob them. They decided to do so and they planned to do so.’

underlining for emphasis)

The trial court then proceeded to find
that accused 2 was aware of the pistol which was in the possession of
accused 1 because that is the first thing he challenged the Matangis
about when he got out of the vehicle.

  1. It is a cardinal
    rule of our criminal adjudicatory process that every item of
    relevant evidence led at the trial and every inference naturally and
    reasonably arising therefrom must be weighed in the scale in
    deciding the outcome of a case; and no single item of evidence or
    inference must be considered in isolation in the process. As was
    put by Nugent, J (as he then was) in
    v Van der Meyden
    (1) SACR 447 at 449J – 450A-B:

proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt,
the logical corollary is that he must be acquitted if it is possible
that he might be innocent
The process of reasoning which is appropriate to the application of
that test in any particular case will depend on the nature of the
evidence which the Court has before it. What must be borne in mind,
however, is that the conclusion which is reached (whether it be to
convict or to acquit)
account for all the evidence
Some of the evidence might be found to be false; some of it might be
found to be unreliable; and some of it might be found to be only
possibly false or unreliable; but none of it may simply be ignored.”

[My underlining for emphasis]

  1. As an appeal court
    we are entitled to interfere if we are satisfied that the trial
    court’s evaluation of the evidence was

    clearly wrong having regard to the totality of the evidence on the
    I have come to the conclusion that the trial court’s
    evaluation of the evidence is clearly wrong. That Court failed to
    place the following evidence and inferences in the scale in favour
    of accused 2: He had not met accused 1 before the 9
    of December. Accused 1 (then a stranger to accused 2) was in
    possession of the firearm at the time it was used in the robbery.
    There is no evidence accused 2 was aware that accused 1 had a gun on
    his person when they met at the home of accused 3. When accused 1,
    3 and the latter’s girlfriend got into the VW, accused 2 was
    already asleep. Accused 1 was the owner of the VW. Accused 2
    declined the invitation by accused 3 to accompany them to Gobabis.
    If there was a prior plan (”

    as the trial court called it) to go to Klein Windhoek and offer
    lifts to strangers in order to rob them, there is not a scintilla of
    evidence to show accused 2 was aware (let alone part) of it. He
    asked instead to be taken home – a fact that is inconsistent
    with the finding that he was part of a

    to go to Klein Windhoek to lure hikers into the car and then robbing
    them. Accused 2 was still asleep when the Matangis boarded in Klein
    Windhoek. He never participated in any discussion that led to the
    Matangis boarding the VW. After they loaded the Matangis in Klein
    Windhoek, accused 1 and 3 were on their way to drop accused 2 (then
    still sleeping) at home when they executed the robbery. After the
    robbery had been committed by accused 1 and 3, accused 2 who was
    asleep when it happened, was informed by accused 1 (upon his asking
    what the matter was) that it was only a misunderstanding which would
    be cleared up when the police arrived.

  1. It is hardly
    surprising that accused 2 did not leave the scene of crime and was
    found at the scene by the police
    Had he been part of a robbery, I do not think he would have
    remained at the scene of crime. If, as is suggested, accused 2 only
    pretended to be asleep and was aware throughout of the robbery, it
    is inconceivable that he would have remained at the scene of the
    crime while accused 3 ran away. Such conduct is inconsistent with
    guilt. The same cannot be said of accused 1. It is obvious from
    the evidence that the key of the VW belonging to accused 1 could not
    be found. He was therefore unable to drive the car away; and even
    if he had run away, the car was an item of potent physical evidence
    which linked him to the crime and by reference to which his identity
    could be established with ease. His presence at the scene of crime
    after the robbery can therefore not be equated with that of accused
    2. Could on these facts and inferences, the trial Court, properly
    directing itself, have found that accused 2 was party to a

    to offer lifts to people and to rob them? I think not.

  1. Looking at the
    evidence in its totality,
    2’s version (and the inference it raises) that he did not
    participate in robbing the Matangis; and that he honestly but
    mistakenly believed that the Matangis meant him and his co-accused
    harm at the time he emerged from his ”drunken stupor”,
    is reasonably possibly true. His violent behaviour towards the
    Matangis and his demanding back ”our gun” upon waking up
    (and also his false denial that he did so) must not be taken in
    isolation but must be seen against the backdrop of him waking up and
    seeing people he had not met before removing bags from the vehicle
    in which he was being conveyed. It is so probable that when he woke
    up from his sleep accused 2 heard an argument over a gun between
    accused 1 and the Matangis and decided to side with accused 1 in
    demanding back “our gun”. In view of his explanation
    that he woke up and saw strangers removing bags from the car, it is
    a possibility that ought to have been put to the Matangis because,
    on the facts of this case, such an inference is not fanciful. Sight
    should not be lost of the fact that accused 2 was not legally
    represented and that, as a result, his case was not presented with
    appropriate forensic finesse.

  1. On
    the facts as I have set out, the trial court, if it had directed
    itself properly, should have found that the State had failed to
    prove the guilt of accused 2 beyond reasonable doubt and should have
    acquitted him of aggravated robbery. It is unclear to me on what
    evidence the trial Court based its finding that accused 2 was part
    of the planning of the robbery and a ‘’
    What is abundantly clear to me is that the trial court completely
    disregarded the evidence of the Matangis
    and that of accused 3
    - evidence which is clearly exculpatory of accused 2 and points to
    the possibility that he might be innocent.

  1. I have
    serious reservations about the Court
    that accused 2’s cross-examination of the Matangis and his own
    testimony ”dwelt on peripheral issues and left intact”
    the evidence of the prosecution that “while the robbery was in
    progress the second appellant stayed in the VW but emerged therefrom
    in time to prevent Archibald from removing his and Morgan’s
    bag from the VW and, in the process, uttered words to the effect
    that the gun used in the robbery either belonged to him or to the
    first or third appellants.” On the contrary, through his
    cross-examination of State witnesses, accused 2 challenged the
    State’s case that his stopping the Matangis from removing the
    bags from the boot of the VW was knowingly in furtherance of the
    robbery perpetrated by accused 1 and 3.

  1. Accused 2
    who was legally unrepresented, and received no assistance whatsoever
    from the presiding magistrate when he conducted his
    cross-examination, remarkably succeeded in raising a reasonable
    doubt that his conduct towards the Matangis after the robbery had
    been committed was done with the necessary

    to commit robbery in common purpose with accused 1 and 3.

  1. For the reasons I
    have given,
    have come to the conclusion that the appeal must succeed and
    therefore make the following order:

The judgment and
order of the Court

are set aside and there is substituted the following order: “The
appeal of appellant Eliphas Nghipandulwa succeeds and the conviction
and sentence against him are set aside”.



I agree





Z J Grobler




A Muvirimi


Accused 1 received 10 years while accused 3
received 20 years as he, like accused 2, had relevant previous

In the absence of a prior agreement to commit a crime, a conviction
based on common purpose is only justified if (a) the accused was
present at the scene of the crime , (b) he was aware of the
commission of the crime , (c) intended to make common cause with
those who were actually committing the crime ,(d) and manifested his
sharing of a common purpose with the perpetrators of the crime by
himself performing some act or association with the conduct of the
perpetrators with (e) the requisite mens rea to commit the crime.

False testimony by an accused is a factor in
favour of the State’s case, but excessive weight should not be
given to it
: S v M 2006
(1) SACR 135 and also
S v Engelbrecht
1993 NR 154 to the effect that false evidence by the accused is not
decisive of guilt.

R v Gani
1958(1) SA 102(A) ,
Maharaj v Parandaya
1939 NPD 239

Quoted with approval in S v Aswegen 2001 (2) SACR 97 (SCA) at
101 D-E

S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426 c-e

Paragraphs 3, 4 and 5 supra

Paragraph 8 supra