IN THE SUPREME COURT OF NAMIBIA

In the matter between:

and

Coram:
Shivute CJ, Maritz JA etMainga
JA

Heard on: 07 - 08/10/2010

Delivered on: 13/08/2012

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APPEAL JUDGMENT

____________________________________________________________________

MAINGA JA: [1]The seven
appellants, together with four other accused persons, were indicted
beforeSilungwe, AJ in the High Court of Namibia on two counts of
robbery with aggravating circumstances alternatively theft on each
count, one count of possession of machine gun and one count of
possession of an unknown number of rounds of ammunition. It was
alleged in respect of count 1 that the appellants had forced
HaraldSchutt into submission by threatening to shoot him with
firearm(s) and that they only then stole from him at gunpoint a
cellular phone, a Nissan pick-up motor vehicle with a canopy and a
toolbox all valued at N$75 426,20. The allegation in relation to
count 2 was that the appellants had forced security guard Kapira
Gerhard Thihuro into submission, fired and shot in his direction
thereby wounding him with a shot fired from an R5 automatic machine
gun or machine rifle and stole from him N$5.3 million cash, the
property of City Savings Investment Bank (CSIB). The alternative
counts on the two main counts alleged theft of the property in both
counts valued as in the main counts. Counts 3 and 4 concerned the
possession of a machine gun and an unknown number of ammunition in
contravention of s 29(1)(a) and 1(e) respectively read with sections
1 and 38(2)(a) of the Arms and Ammunition Act, 1996 (Act No. 7 of
1996). After a trial which continued intermittently for three years
and on 22 February 2006, the appellants were convicted as follows:

Appellants
1, 3 and 7 on all four counts as the main perpetrators.

Appellant
2 on the second count.

Appellants4
and 5 as accessory after the fact and accomplice respectively on
count 2.

Appellant
6 on the alternative of theft to the second count.

[2] On 27 March 2006 appellants were
sentenced to terms of imprisonment as follows:

First,
third and seventh appellants: 15
years imprisonment on count 1 each.

20
years imprisonment on count 2.

3
years imprisonment on counts 3 and 4, both taken together for
purposes of sentence which was ordered to run concurrently with the
sentences of 20 years in count 2.

Second
appellant: 20 years
imprisonment.

Fourth
appellant: 10 years
imprisonment of which 3 years were conditionally suspended for five
years.

Fifth
appellant: 15 years
imprisonment of which 3 years were conditionally suspended for five
years.

Sixth
appellant: 8 years
imprisonment of which 3 years were conditionally suspended for 5
years.

[3] The Court a quo further
made orders disposing of exhibits.

[4] On 12 November 2008 the Court a
quo granted the appellants leave to appeal to this Court against
their convictions and sentences on the grounds which the trial Judge
described as follows:

“In
considering an application for leave to appeal, such as the present
one, the proper test is whether another court may reasonably come to
a different conclusion. It follows that, although I remain satisfied
that the applicants were, to all intents and purposes, properly
convicted and sentenced, in view of the complexity of the case in
terms of the multifarious issues that arise, coupled with the sheer
enormity of the matter, the Supreme Court might come to a different
conclusion.”

[5] In determining whether or not to
grant a convicted person leave to appeal, the dominant criterion is
whether or not the applicant will have a reasonable prospect of
success on appeal (Rex v Baloi 1949 (1) SA 523 (AD)). From the
very nature of things, it is always somewhat invidious for a Judge to
have to determine whether a judgment which he/she has himself/herself
given maybe considered by a higher court to be wrong, but that is a
duty imposed by the legislature upon Judges in both civil and
criminal matters. As regards the latter, difficult though it may be
for a trial Judge to disabuse his/her mind of the fact that he/she
has himself/herself found the State case to be proved beyond
reasonable doubt, he/she must, both in relation to questions of fact
and of law, direct himself/herself specifically to the enquiry of
“whether there is a reasonable prospect that the Judges of
Appeal will take a different view. … In borderline cases the
gravity of the crime and the consequences to the applicant are
doubtless elements to be taken into account, the primary
consideration for decision is whether or not there is a reasonable
prospect of success”. (Per Ogilvie Thompson AJA in R v
Muller 1957 (4) SA 642 (AD) at 645 D-H. See also Rex v
Kuzwayo1949 (3) SA 761 (AD) at 765; R v Shaffee1952 (2) SA
484 (AD); S v Shabalala1966 (2) SA 297 (AD) at 299 A-Eand Rex
v Ngubane and Others 1945 (AD) 185 at 186).

[6] After stating that he was
satisfied that the appellants were, to all intent and purposes
properly convicted and sentenced and that the test in applications
for leave to appeal was whether another court may reasonably come to
a different conclusion, the learned trial Judge nevertheless granted
leave to appeal on the grounds of “the multifarious issues that
arose during the trial and the enormity of the matter”. Save
for mentioning the test, the Judge failed to objectively discharge
his duty to consider whether the appellants had a reasonable prospect
of success on appeal. The issues on which he granted leave to appeal
could well be elements which he could have taken into consideration,
but the ultimate consideration, given the issues on which he granted
leave was whether the appellants had reasonable prospects of success.

“A
reasonable prospects of success means that the Judge who has to deal
with an application for leave to appeal must be satisfied that on the
findings of fact or conclusions of law involved, the court of appeal
may well take a different view from that arrived at by jury or by
himself and arrive at a different conclusion.”

(S v Ackerman en ‘n Ander
1973(1) SA 765 (AD) at 766H). See also R v Boya1952(3) SA
574(C) at 577B-C.

Where prospects of success are absent
leave should be refused but where prospects exist after a well
considered conclusion on the facts, leave to appeal ought to be
granted. It should always be remembered that even if leave to appeal
is refused, in terms of s 316 of the Criminal Procedure Act, 1977 it
is still open to the appellant to petition the Chief Justice for
leave to appeal.

[7] The appellants were respectively
Accused No’s. 1, 2, 3, 7, 9, 10 and 11 at the trial. I shall
for the sake of convenience refer to the appellants individually as
accused in that order. Accused No. 7 withdrew his appeal in this
Court on 21 June 2010. Accused No. 10 abandoned his appeal after he
was released from prison; he has since returned to his home country,
South Africa. The other four accused who were charged with the
appellants, Accused No’s. 4 (Immanuel HandjambaKaukungua) and 5
(Heinrich Joseph), the prosecution was discontinued against them as
the trial progressed. Accused No. 6 (Bertha Nanduda) was discharged
at the close of the State’s case and Accused No. 8
(ArvoTsheeliNatangweHaipinge) was acquitted.

[8] All five accused appeared in
person. Save for two joint issues on the convictions; the contentions
on which their appeals are based lack uniformity, they vary according
to the degrees of their participation. The joint contentions are: (i)
the refusal by the trial Judge to recuse himself when the accused so
applied (Accused No’s. 1, 2 and 3) and (ii) whether MTC
printouts ought to have been received in evidence (Accused No’s.
2, 3 and 11).

[9] I deal first with the factual
background and circumstances which led to the arrest of the accused
persons before I proceed to tackle the appeals of the individual
accused.

9.1 On Thursday 16 November 2000, the
Bank of Namibia (BoN) issued to the Windhoek Branch of City Savings
and Investment Bank (CSIB) a sum of N$7 360 000,00. This amount
consisted of N$3 000 000,00 in new N$50 notes within a specific range
of serial numbers, N$4 000 000,00 in used N$50 notes and N$360 000,00
in used N$10 notes.

9.2 Accused No. 2 and Kapira Gerhard
Thihuro were security officers employed by Professional Security
Services CC (PSS). In the morning of 16 November 2000, they
collected, in their official capacity, the amount of N$7 360 000.00
from BoN and transported it to the offices of CSIB in Windhoek. That
money was earmarked for transportation to CSIB Branches at Ondangwa
and KatimaMulilo.

9.3 CSIB requested PSS to transport
N$5 300 000,00 (out of the total amount received from the BoN) to its
Ondangwa Branch. Consequently, in the afternoon of 16 November 2000,
Accused No. 2 and Kapira fetched the said sum of money from CSIB and
took it to the offices of PSS in readiness for its transportation to
Ondangwa.

9.4 At about 22h45 on 16 November
2000, one HaraldSchutt, (Schutt) arrived at his residence No 7
Schweringburg Street, Klein-Windhoek, driving a Nissan pick-up with
registration No. N12701SH. While he was opening the gate three
unknown persons approached him and demanded, at gunpoint, keys to the
pick-up as well as his cell-phone. The persons took the Nissan
pick-up with a canopy, with tools in it and the cell-phone,
threatening to kill Schutt as they drove off. This was the first
robbery which is the subject matter of the first count.

9.5 At about 01h00 on Friday, 17
November 2000, Accused No. 2 (as driver) and Kapira Gerhard Thihuro
(as crewman) set-off for Ondangwa, transporting the N$5 300 000,00 in
a PSS company vehicle, to wit: an armoured Toyota pick-up with
registration no. N43572W (the Toyota). The money was kept in a locked
safe located at the loading box of the pick-up.

9.6 They left their offices and drove
along MandumeNdemufayo Road and then into Hosea Kutako. At the bridge
they turned to join the Highway leading to the north when they saw a
white vehicle parked, which after the robbery and when found turned
out to be Schutt’s Nissan pick-up. As they joined the highway
the vehicle they saw parked, bumped into their vehicle.

9.7 Kapira attempted to call Johannes
Henning Kruger Senior (Kruger Snr.), a co-proprietor of PSS, on
Accused No. 2’s cell-phone. Kruger Snr. also endeavoured to
telephonically contact Kapira in response. These calls were
registered on the Mobile Telecommunications Ltd (MTC) system on
Friday, 17 November 2000 between 01:29:20 and 01:32:11.

9.8 Accused No. 2 pulled over the
Toyota he was driving and stopped.

9.9 The assailants in the Nissan
pick-up fired shots at the Toyota and demanded money and a key to the
safe. They obtained the safe key, and emptied the safe of its
contents. This was the second robbery which is the subject matter of
the second count.

9.10 During the second robbery, Kapira
was shot in the abdomen whereupon he returned fire and thereby shot
one of the robbers with a PSS company 9mm calibre pistol. The robber
who was shot must have dropped an R5 machine-gun which was found at
the scene. That R5 machine-gun and the ammunition fired therefrom
form the subject matter of the third and fourth counts. The fire-arm
was in a good working condition; it could fire single and automatic
shots. That type of fire-arm was previously used by the South African
Defence Force and it was still being used by the Namibian Police
Force but it was not registered on the police computer.

9.11 The robbers drove away in the
Nissan pick-up, taking with them the money (from the Toyota pick-up),
and Accused No. 2’s cell-phone.

9.12 At approximately 07h45 on 17
November 2000, the Namibian Police recovered Schutt’s Nissan
pick-up which had been abandoned near Daan Viljoen Road, Windhoek.
The canopy, registration plates, toolbox and tools were missing from
the vehicle and a registration plate with the number N63013W was
affixed thereto. Detective Sergeant StefanusShikufa lifted
fingerprints from the vehicle (dash board and roll bar) which were
compared with the fingerprints taken from Accused No. 3 and was found
to be identical. There was also blood on the steering wheel of the
Nissan pick-up. A blood sample was collected therefrom. Dr. Agnew
drew blood specimen from Accused No. 1. The two specimens were sent
for a DNA analysis to South Africa. Sharlene Otto, a Chief Forensic
Analyst with the rank of Superintendent in the South African Police
Service (SAPS) found that the blood scrapped from the steering wheel
originated from two male persons, which she said was a mixture of DNA
or a complete mixture. She further found that Accused No. 1 was
included as donor of the DNA in the mixture of blood from the
steering wheel. Sergeant Shikufa further picked up stones that had
blood on the scene, where the armoured vehicle was forced off the
highway. The analysis of that blood by superintendent Otto turned out
to be that of Kapira Gerhard Thihuro. Sergeant Shikufa further
removed rubber paints from both the Nissan and the Toyota pick-ups at
the parts where collision marks were visible for forensic analysis.
Dr.Ludik, the Director of the National Forensic Science Institute
(Namibia), found a positive mark and he inferred that there was a
physical contact between the two vehicles. This follows necessarily
that the Nissan pick-up was a conduit to commit the second robbery.
In exhibit “B” a bundle of the photographs of the two
vehicles depict damage to both vehicles, the Toyota on the right hand
side and the Nissan on the left.

9.13 On 17 November 2000, Accused No.
7 requested Dr. L. Nghalipoh to accord medical attention to Accused
No. 1 who had sustained a gunshot wound in the abdomen at house No.
1709 Agnes Street, Khomasdal. That address was the house Accused No.
9 had rented from Ms. Heller Bezuidenhout from 1 November 2000 to the
end of that month.

9.14 As a result, Dr.Nghalipoh in the
company of his secretary, Ms. Maria Ndjodhi, visited house No. 1709,
Agnes Street in Khomasdal and there attended to Accused No. 1. As his
condition required surgery, he was referred to the Roman Catholic
Hospital in Windhoek where he was admitted and received treatment.

9.15 While he was receiving treatment
in the Roman Catholic Hospital, he was arrested by the Namibian
Police on the same day of his admission, namely, 17 November 2000. A
blood sample was obtained from him by Dr. Nadine Louise Agnew who was
a state pathologist at the police mortuary in Windhoek at the time.

9.16 After Kapira Gerhard Thihuro was
interrogated, Accused No. 2 was arrested in Windhoek on 17 November
2000 by the Namibian Police. Accused No. 3 was arrested a month
thereafter at Oshivelo on 20 December 2000. He was taken to Tsumeb,
wherefrom the members of the Serious Crime Unit of the police force
brought him to Windhoek.

9.17 During Accused No. 1’s
treatment and operation at the Roman Catholic Hospital, X-rays taken
of him on 20 November 2000, showed that a bullet was still lodged in
his body. The projectile had not been removed by the date of his
conviction and sentence. On the X-rays taken of the projectile,
William OnesmusNambahu concluded that the dimension came closer to a
9 millimetre projectile.

9.18 None of the accused was at all
material times in lawful possession of an R5 automatic machine gun or
machine rifle or ammunition to be fired therefrom.

9.19 On Sunday, 19 November 2000,
Accused No. 10 took a flight from Windhoek to Cape Town, South
Africa. On the same day, Accused No’s. 7, 8 and 9 travelling in
Accused No. 9’s Volkswagen Golf car (the Golf) with
registration number N11322W, and Accused No. 11, travelling in his
BMW car with registration number FH2377GP, left Windhoek on their way
to South Africa.

9.20 On Monday, 20 November 2000, at
00h08, Accused No’s. 11 and 9 arrived at Vioolsdrift border
post in South Africa in the Golf, Accused No. 11 driving the car. On
the same date at 00h10, Accused No’s. 7 and 8 arrived at
Vioolsdrift border post in Accused No. 11’s BMW car, Accused
No. 8 driving.

9.21 At approximately 04h30 on
Wednesday, 22 November 2000, upon information received from Chief
Inspector Becker of the Namibian Police, the South African police
officers conducted a search at 75 Teresa Street, Camps Bay, Cape
Town. In the room where Accused No. 10 and 11 were sleeping they
found a sum of N$909 250,00 in N$50 notes. The bulk of the money was
allegedly in a bag in a wardrobe. Accused No. 11 provided the keys to
unlock the bag and some money was in a black suitcase which Accused
No. 10 identified as his. Accused No’s. 7, 8 and 9 were also in
the same house, but in other rooms. The five accused persons together
with two other male persons were arrested. The two other persons were
later released. The five accused claimed to have had no knowledge of
the money in the house.

9.22 It is undisputed that the money
found in the room where Accused No’s. 10 and 11 were sleeping
was part of the money that constitutes count 2. In Cape Town, Accused
No’s. 7, 8, 9, 10 and 11 launched bail applications but Accused
No. 11 withdrew his after the application of Accused No. 9 was heard.
Subsequently, all five accused were returned to Windhoek (as regards
Accused No’s. 10 and 11 following their extradition
proceedings). In Windhoek, Accused No’s. 7, 8, and 9 launched
further bail applications. The bail proceedings in Cape Town and
Windhoek were received in evidence. Among the items of evidence for
and against the accused is the cellphone or telephone contacts made
among some of the accused. Of particular interest are the calls which
emanated from Accused No’s. 1, 3 and 11 to Accused No. 2
against the backdrop of claims by Accused No. 2 that he did not know
the co-accused before the robbery and that they did not know him.
Accused No’s. 2, 3 and 11 have challenged the admissibility of
the MTC print-outs and this court mero-motu raised the issue
with Mr. Small, counsel for the respondent who was directed to file
further heads of argument in that regard, which he did. The accused
also filed additional heads of argument in this regard.

[10] I now turn to consider the appeal
of Accused No. 1. The Court below accepted the evidence of
Superintendent Sharlene Otto that Accused No. 1 was connected to the
scrapings of the blood sample taken from the steering wheel of
Schutt’s Nissan pick-up; that he was the person who shot
KapiraThihuro; that he was the person KapiraThihuro shot, linking him
to the first robbery of Schutt’s Nissan pick-up and the second
robbery of the money from the armoured Toyota. That Court further
found that the projectile lodged in the body of Accused No. 1 was a 9
mm projectile. Kapira used a 9 mm pistol to shoot at his assailant.
The Court below also accepted the evidence of Dr.Nghalipoh that
Accused No. 7 insisted that Accused No. 1 be treated at home for the
reason that Accused No. 1 was not in possession of immigration
papers; which was not correct because the entry visa of Accused No. 1
was expiring at the end of January 2001. This, the Court found, was
an attempt to conceal the circumstances in which Accused No. 1
sustained his injury.

[11] Accused No. 1 argued that the
Court below erred when it found that the projectile still lodged in
his body was a 9 mm; when it accepted the evidence of Dr.Nghalipoh
that the accused told him that he was in pain for eight hours; (he
testified that the doctor misunderstood him, he told the Doctor that
he was shot at about eight o’clock in the morning); when it
accepted Sergeant Nangolo’s evidence of his presence at Nandos
restaurant the evening of 16 November 2000; when it accepted the
evidence of the mixture of the DNA. (Accused, maintained that since
he has no mixed blood, the scrapings of the blood sample came from
two persons and was thus tampered with to incriminate the accused);
when it accepted the evidence of ShadrackDube (also known as Falazo)
that he heard from Accused No. 10 that Accused No. 11 had reported to
him (Accused No. 10) that accused was shot when Accused No. 11 denied
making such a report; when it accepted that Kapira shot the accused
when there was no evidence of that nature led by the State, (for
Kapira testified, that he did not know the accused and that that
finding was an irregularity). The Court was prejudicial and biased
towards the accused and thus he did not receive a fair trial; a
failure of justice had allegedly occurred. He further argued that the
Eros Park Tower registered his cellphone number at 01h25 which is
indicative that he was not on the scene of the second robbery and the
Court’s finding to the contrary was wrong. In actual fact
Accused No. 1 does not challenge the admissibility of the MTC
print-outs; he relies on the 01h25 call and admits that he made that
call to Accused No. 11. The time of 01h25 has been accepted as the
time more or less the second robbery was committed given the evidence
of Kapira on the attempts he made to call Kruger Senior, the co-owner
of PSS, the evidence of Kruger Senior and Junior. On the sentence he
argued that the Court erred when it failed to take into consideration
the period of five years accused was in custody; that the sentence is
bound to break the accused in that it is not rehabilitative or
reformatory, thus ignoring the personal circumstances of the accused.
Save for dismissal of the recusal application, which is a joint
attack on the judgment below with Accused No’s. 3 and 11 which
I will advert to infra, the above submissions are more or less
the issues Accused No. 1 raised.

[12] Accused No. 1 like all his
co-accused pleaded not guilty to all the charges and his plea was a
total denial of all the charges. Accused No. 1’s version is
that he arrived in Namibia on 29 October 2000 to visit his aunt
LaetitiaMakayi. He stayed with her for a week and he secured
accommodation at ShadrackDube’s (Falazo’s) house where
Accused No’s. 10 and 11 who had arrived earlier than him in
Namibia on 13 October 2000, were also staying. He did not own a
cellphone when he arrived in Namibia. He used to receive calls on the
cellphones of Accused No’s. 10 and 11, cellphones 0812464427
and 0812457929 respectively. He later in November acquired his own
cellphone. On 16 November 2000 he was invited to a party by one
Cheeks at House No. 1709 Agnes Street, Khomasdal, where he stayed
from 18h00 till 21h00. At 21h00 he, his cousin Ashley and their
girlfriends went to Kalahari Sands Hotel and later to the Country
Club. They left the Country Club at 01h00. They went to Accused No.
1’s girlfriend’s parent’s house in Eros where they
remained until 02h30 when Ashley and his girlfriend took him back to
1709 Agnes Street, Khomasdal, the house where Cheeks was staying.
They arrived at 02h45. He could not sleep at the girlfriend’s
house because he had Cheeks’ room keys and Ashley had to return
the vehicle they were using to the person he had borrowed it from. At
this house he listened to music and made calls to South Africa and
then fell asleep. Cheeks returned at 06h00. While accused was
preparing breakfast, he saw Cheeks polishing his gun. He brought him
tea and as he turned around and was about to sit down he heard a loud
bang. Accused was shot and was bleeding. Cheeks took accused’s
cellphone and made calls to summon help for the accused to be taken
to hospital. He informed accused that he could not find the people he
was looking for. He left and when he returned he came with Accused
No. 7. Accused stood up and told Cheeks that they must go to
hospital. Cheeks told him that the gun he had shot him with was
unlicensed and that Accused No. 7 was sent by a doctor to come and
ascertain if someone was shot. Cheeks begged the Accused not to go to
hospital as he, Cheeks, would be apprehended for the unlicensed
firearm. Cheeks informed him that a doctor would come to treat him at
home. Cheeks and Accused No. 7 left and returned with a doctor who
administered two injections. The doctor informed the accused to go to
hospital otherwise he would die. The doctor informed them that he was
making arrangements for the accused to be operated on at a government
hospital. Cheeks intervened and said accused should be taken to a
private hospital and he would pay the expenses. The doctor called the
Roman Catholic Hospital. Accused wanted to leave with the doctor but
Cheeks said accused should wait first as he was going to fetch the
money to pay at the hospital and he, Cheeks, would take him to
hospital. Cheeks left and returned with another person, a taxi
driver. He gave accused N$8 000,00 and told accused that the taxi
driver would drop him at the hospital. He was dropped at the Roman
Catholic Hospital. He walked in the hospital on his own and the nurse
he reported to in the hospital asked him a lot of questions and he
told her that Cheeks shot him. He was admitted and taken to the
theatre for an operation. When he gained consciousness, he found
himself surrounded by many police officers who confronted him with
the offences in question, which he denied. He was arrested. After a
day or two the police officers approached him and confronted him with
the identity of Accused No. 2. When he denied knowing Accused No. 2
they asked him to switch on his cellphone which he had left with the
nurse who received him when he was admitted. Accused No. 2’s
name was not saved in his cellphone but he could see that a call was
made to his phone at 21h00 on 16 November 2000. A female doctor
arrived and drew blood from him. He was transferred to a government
hospital and later to prison and was charged with the crimes in
question.

[13] Accused No. 1’s aunt,
Makayi, confirmed the visit and the short period he stayed with her.
Accused’s cousin, Ashley, also corroborated accused’s
version regarding the whereabouts of accused that evening of 16
November 2000. He was with the accused from 18h00 on the 16^th
up to 02h30 on the 17^th when he dropped him in Khomasdal
at the house Accused No. 9 was renting at the time.

[14] The trial Court rejected this
version finding that accused was one of the main perpetrators. The
trial Court’s finding is founded on the positive DNA result of
the scrapings of the blood sample from the steering wheel of the
Nissan pick-up of Mr.Schutt, which pick-up and as already mentioned
was a conduit by which the robbery of the money was made possible.
The DNA result placed the accused on both the first and second
robbery, so found the trial Court. On that evidence and the evidence
of Kapira that he shot one of their assailants on the scene of the
robbery, the Court reasoning by inference, found that accused was the
person who was shot on the scene. That finding, with respect, is
correct. Accused’s argument to the contrary and denial is
without substance. So are the suggestions that because the blood was
mixed, it must have been tampered with to implicate him or that the
investigation was fraught with irregularities. To the contrary,
crucial in my opinion, is the fact that accused is a donor of that
mixed blood. DNA “fingerprinting” is a far more precise
method of identification. The chance of error is very remote and when
the test properly conducted is proof of identity beyond a doubt. See
Schwikkardet al, Principles of Evidence, 1997 at 259.
The reason is that each person has a unique genetic code and the 46
chromosomes which hold the code are made up of the chemical DNA
(deoxyribonucleic acid). See Schwikkard, supra. There is no
evidence that the sample of blood scrapings from Schutt’s
Nissan pick-up or blood drawn from the accused by Dr. Agnew was
tampered with. In the absence of evidence to the contrary, the
finding of Superintendent Otto that accused was a donor of the blood
scrapings from the Nissan pick-up is proof of identity beyond doubt.
Superintendent Otto testified that there were two male donors linked
to the blood sample. One of the persons who must have been at the
scene with Accused No. 1 could possibly have been the other donor.
Accused in his oral argument suggested that Cheeks who was allegedly
taking care of him after he was shot, could have had blood on his
hands from accused’s wound and touched the steering wheel of
the Nissan pick-up. This suggestion has no merit. It is unlikely on
the version of accused that Cheeks would have gone back to the
vehicle and touched the inside of the vehicle. Secondly, given the
times accused says he was shot, that is 07h00 or 08h00, it is
possible that by that time, the vehicle had already been recovered by
the police. Sergeant Shikufa testified that he was called at ±
07h45 to attend to the Nissan vehicle after it was found. Thirdly,
Cheeks is a fictitious person the evidence of the calls made between
Dr.Nghalipoh and Accused No. 11 tends to show that Cheeks or Petro is
Accused No. 11, which corroborates Accused No. 10 on that point.
Accused 9 also, in his bail application in South Africa testified
that he was introduced to Cheeks (Accused No. 11) by Accused No. 7 at
a service station in Namibia. Superintendent Otto testified to a
number of possibilities that could bring about a mixed blood result.
An argument suggesting that the blood sample from the Nissan pick-up
was tampered with is without substance and pure speculation. The
evidence of Accused No. 10 that he had received a call at night from
Accused No. 11 that Accused No. 1 had been shot is consistent with
the trial Court’s finding that Accused No. 1 was not shot by
Cheeks at the time he alleges he was shot. Accused No. 10 is
corroborated by the MTC print-out which records a call at 04h25 from
Accused No. 11’s cellphone to Accused No. 10’s cellphone.
Accused No. 11 does not deny that the call was made; neither does he
deny that it was made from his phone. What he denies is that it was
not him who made the call. ShadrackDube confirmed that on Thursday
which was the night of 16 November 2000 he arrived at home drunk. He
only saw Accused No. 10 in the morning. He greeted him and asked him
what was wrong. Accused No. 10 reported to him that there was trouble
as one of their friends (Accused No. 1) had been shot, “and
they took the money with them and they are gone”. Accused No.
10 indicated to ShadrackDube that there was no reason for him to
remain in Namibia; he would rather go back home to South Africa. Mr.
Christians who appeared for Accused No. 1 did not challenge that
version of Dube’s evidence in cross-examination. There is no
explanation why Accused No. 1’s blood would be in Schutt’s
vehicle, the vehicle which was robbed from its owner two hours before
the second robbery. It is undisputed that the Nissan pick-up was used
to commit the second robbery. That evidence alone places him on the
scenes of the first and second robberies and the possession of the
machine gun which was found on the scene as well as the use of
ammunition that was fired therefrom. Accused No. 1 argued that the
report Accused No. 11 must have made to Accused No. 10 that Accused
No. 1 was shot is hearsay as Accused No. 11 did not confirm making
such a report. I do not agree. The mere fact that Accused No. 11 did
not confirm or denied making such a report would not make the
evidence of Accused No. 10 or that of ShadrackDube regarding the
report hearsay and inadmissible. Much would depend on the weight to
be attached to the report. The surrounding circumstances under which
the report was made suggests that indeed Accused No. 11 made the
report. The injury on the accused, the telephone call at 04h25 from
Accused No. 11 to that of Accused No. 10, the disappearance of the
bulk of the money stolen and the fact that Accused No. 10 terminated
his stay in Namibia and departed for South Africa have a strong
inferential probative value to the fact that Accused No. 11 made that
report. This evidence is corroborated by the DNA result of the blood
scrapings from the Nissan pick-up which is proof of identity of
Accused No. 1 beyond doubt. Accused No. 11 vouchsafed no explanation
as to who made that call at 04h25 and why it was made at such unholy
hour, he merely sought refuge in falsely denying the call. Taking all
these facts, I am left in no reasonable doubt that the Court a quo
was correct to accept the evidence as admissible.

[15] Accused No. 1 relies on a
telephone call from his cellphone made to Accused No. 11 at 01h25,
the time accepted as the commission of the second robbery. The trial
Court found that Accused No. 1 had been at the scene of the second
robbery and further found that it was possible that Accused No. 11
had not physically been on the scene of the second robbery, for the
reason that if they were together, “no such calls could
necessarily have been made.” The Court a quo did not
take into consideration the fact that in the conversation between
Chief Inspector Becker and Accused No. 10 (Exh “KK1”),
Accused No. 10 stated that Sipho or Tsipo had Accused No. 1’s
cellphone. He stated that Sipho or Tsipo was in the Police Force.
Inspector Becker also testified that Sipho or Tsipo was a suspect but
the police did not have enough evidence to charge him. Inasmuch as
Accused No. 10 was an accomplice to count 2 or the alternative
thereto and whose evidence should be therefore approached with
caution, there is no reason why some of his evidence should not be
accepted where it is consistent with evidence found to have been
proven. As the Court below correctly observed, given the
circumstances of the case, the two robberies were orchestrated with a
great deal of care and ingenuity with the purpose of leaving no trace
of evidence. It is possible that Accused No. 1’s cellphone was
with somebody at the time the second robbery was committed to monitor
the movements and whereabouts of the persons who were executing the
crimes, more so, given the place where the Nissan pick-up was
abandoned, the occupants must have been assisted to get away from
that place. That was possible if they were in contact with someone
else. Thus, the call made from Accused No. 1’s cellphone at
01h25 or at the time of the commission of the second robbery does not
exclude him from having been at the scene of the second robbery. In
actual fact his version of where, when and how he was shot is fraught
with inconsistencies. He maintains that he did not tell Dr.Nghalipoh
that he was in pain for eight hours, but told him that he was shot at
about 08h00 and yet in his evidence-in-chief he said that he was shot
at about 07h00. In his version he details everything he did since
Cheeks arrived at the house at 06h00 the morning of 17 November 2000.
From that version it is not possible that he could have been shot one
hour or two hours after Cheeks had arrived. In the bail application
in South Africa, Accused No. 7 who arranged for Dr.Nghalipoh to treat
the accused testified that Cheeks woke him up at about 06h00; meaning
Accused No. 1 was already shot by then. In the Court a quo Accused
No. 7 testified that he woke him up at about 7 or while he was still
in bed, meaning Accused No. 1 was again already been shot.
Dr.Nghalipoh was adamant that accused told him that he was in pain
for eight hours. That evidence is consistent with the evidence of the
second robbery being committed at about 01h25, the time accused was
shot by Kapira. Notwithstanding the seriousness of accused’s
injury, on his version accused was prepared to be treated at the
house in Khomasdal, than going to hospital because Cheeks had
requested him not to go to hospital for fear of being arrested for
allegedly shooting accused with an unlicensed firearm. Accused No. 7
insisted on Accused No. 1 being treated at home and eventually
convinced Dr.Nghalipoh to do so. It was only after Dr.Nghalipoh had
examined him and had informed him that he would die if he was not
operated on that he agreed to go to hospital. On accused’s
version, Cheeks would not allow him to go to a government hospital
(and accused ended up going to a private hospital, - the Roman
Catholic Hospital). Accused No. 7 informed Dr.Nghalipoh’s
secretary, Ndjodhi, not to talk about Accused No. 1, the reason being
that his immigration papers were not in order, which was false
because the accused’s entry permit was expiring only towards
the end of January 2001. The insistence of Accused No. 7 that Accused
No. 1 be treated at home, the Court a quo found, as previously
stated, that it was an attempt to conceal the circumstances in which
he had sustained his injury. I agree. That Court was also correct
when it found that Cheeks was a fictitious person. Accused testified
that after Cheeks had shot him, Cheeks took accused’s cellphone
to make calls and yet there are no calls recorded made from that
cellphone. The calls made to request the doctor to treat accused at
home were made from Accused No. 11’s cellphone. The number
given to Dr.Nghalipoh to call back should he wish to do so, was that
of Accused No. 11. Accused No. 10 testified that there was no such
person as Cheeks and explained how the name Cheeks was invented.
Cheeks being a fictitious person, in all likelihood Accused No.1
ended up at House No. 1709 Agnes Street, Khomasdal, because of his
acquaintances with Accused No. 9 in whose company he was seen by
Sergeant Nangolo at about 20h00 at Nandos Restaurant in Independence
Avenue. Sergeant Nangolo testified that he was called by the owner of
a business known as Tote of Namibia who made a report to him and
showed him a white Volkswagen Golf which was parked opposite Shoprite
in Independence Avenue. He kept an eye on this Golf. It made a U-turn
in Independence Avenue, drove in the northerly direction and parked
in front of Nandos Restaurant. Nangolo parked his vehicle and walked
past the Golf to Joshua Doore outlet when he made a turn and walked
towards the Golf vehicle. As he was approaching, two men alighted
from the Golf Volkswagen and entered the Nandos Restaurant. He
recognised Accused No. 7 in the left rear seat. The two persons who
disembarked were Accused No. 9 and a person he came to know as
Accused No. 1. As he passed by, he compared the registration number
he was given by the owner of Tote of Namibia. The registration number
was N113228W. When accused No’s. 7, 8, 9, 10 and 11 were
arrested in Cape Town, Sergeant Nangolo was one of the police
officers who went to Cape Town. When he saw the Golf in Cape Town he
immediately recognised the vehicle by its registration number which
he still had in his pocket book and the tinted windows.

[16] It must be remembered that
Sergeant Nangolo was called by the owner of Tote of Namibia as a
result of this vehicle and its occupants. He was observing this
vehicle with its occupants at all relevant times. The Court a quo
was correct to accept his evidence. Accused No’s. 7 and 9
admitted that they were at Nandos Restaurant on 16 November 2000 at
about the time testified to by Sergeant Nangolo. They only disputed
that it was Accused No. 1 that he saw in the company of Accused No.
9. According to Sergeant Nangolo, he saw Accused No. 1 on the 16^th
but he was unknown to him at the time. When Accused No. 1 was
arrested on the 17^th at the hospital, he recognised him as
the person he saw the previous evening. When he saw him on the 16^th
at about 20h00, he came to see him again at 15h00 the next day, a
question of about nineteen hours in between. That being the case, the
evidence of Accused No. 1 that he arrived at house No. 1709 Agnes
Street at 18h00 and remained there until 21h00 is in conflict with
that of Sergeant Nangolo and was correctly rejected.

[17] The evidence and the overall
probabilities militate against the version of Accused No. 1. There
are numerous other pieces of evidence that tend to link Accused No. 1
to the offences, namely, the fact that Dr.Nghalipoh was paid in N$50
notes although it was not proved that it was part of the stolen
money; the fact that after Accused No. 1 was arrested, Accused No. 7,
angrily called the doctor accusing him of having betrayed and
reported them to the police; and the calls Accused No. 1 made at
their house in South Africa between 02h00 and 03h00 on the 17^th.
He admitted in cross-examination that he would report the injury of
the nature he sustained to his family and yet there were no calls
made to his family after the time he alleges he was shot. It is
possible that he reported his injury during the calls he made in the
early hours of the 17^th.

[18] I am not persuaded that the trial
Court erred in convicting Accused No. 1 on all four charges. The
appeal against the conviction of Accused No. 1 must fail.

[19] I deal now with the position of
Accused No. 2 (Macdonald Kambonde). Accused No. 2, like Kapira, was a
security employee of PSS. It is common cause that on 17 November 2000
Accused No. 2 and Kapira commenced a journey from Windhoek to
Ondangwa in the Toyota for the purpose of transporting N$5.3 million.
It is also common cause that Accused No. 2 was the driver and Kapira
a crew member. Before they left the headquarters of PSS each one of
them had received a 9mm pistol from Kruger Senior; Kapira received a
shotgun as well.

[20] The Court below convicted Accused
No. 2 on the evidence of Kapira and Accused No. 2’s cellphone
print-outs which the Court held had connected him to the commission
of the second robbery.

[21] Accused argued that the Court
below erred when:

1. 
   It found that the planning of the
   robbery was hatched in October 2000, when accused was not yet
   employed as the driver of the PSS;

   
   

2. 
   It found that accused had a common
   purpose with his co-accused in executing the second robbery;

   
   

3. 
   It failed to consider that accused
   was a victim of the robbery, for Detective P. Martin testified that
   a bullet was found in the driver’s seat;
   

   
   

4. 
   It considered evidence of a single
   witness Kapira without applying the cautionary rule;
   

   
   

5. 
   It failed to take into consideration
   the fact that Kapira was shot from the front position, leaving the
   only possibility that he opened the doors at the crucial moment of
   the robbery, resulting in the assailants taking the keys and
   accused’s cellphone, and
   

   
   

6. 
   It admitted the MTC documents without
   authentification.

   
   

On the sentence accused argued that
the court erred when:

It failed to take into consideration
the sentence of 10 years accused was serving, therefore the sentence
is not rehabilitative or reformatory, thus ignoring the personal
circumstances of the accused.

[22] There is a factual basis for
finding that accused had a common purpose in the commission of the
robbery of the N$5.3 million. Accused testified that he did not know
any of the accused persons but could not explain why calls emanating
from Accused No. 1’s cellphone were made to his cellphone. He
accepted Exhibits “ZI.1” – “ZI.4” as
print-outs of his cellphone. Three fixed line numbers 271266, 215749
and 262340 made to his cellphone were also made to the cellphone
numbers of Accused No’s. 3 and 11. The calls made from Accused
No. 1’s cellphone were all made after 22h00 on 16 November
2000. The fixed line calls were registered in accused’s
cellphone print-out from 12 - 16 November 2000. Both accused and
Kapira in their testimonies are ad idem that the occupants of
the Nissan pick-up which was used to rob them were waiting in the
street they used to join the highway to Okahandja leading to the
north. The Toyota pick-up which transported the N$5.3 million is not
marked as a cash in transit vehicle but Kapira testified that as soon
as they joined the highway, the Nissan pick-up pursued them bumping
their vehicle from behind. Accused No. 2 testified that he and Kapira
were only informed at 16h00 on 16 November 2000 that they would be
transporting money to Ondangwa, but Kapira testified that after they
had collected the money from City Savings and Investment Bank, they
parked the vehicle with money in the safe at the PSS premises. They
knocked-off at 16h00 but before they knocked-off, Accused No. 2 asked
Kruger Senior as to what time they would depart. He informed them
that they would depart at about 01h00. The evidence led shows calls
made from Accused No. 1’s cellphone to that of Accused No. 2 on
16 November 2000, all made after 22h00. Missed-calls are also
registered from the three land-line numbers, two made after 17h00 and
18h00. Accused No. 1 denied making calls from his cellphone to that
of Accused No. 2. All that he could say was that it could have been
the people he was with that evening, i.e. his girlfriend, his cousin
Ashley or Ashley’s girlfriend who might have made the calls.
Ashley denied making calls from Accused No. 1’s cellphone to
that of Accused No. 2. There is no evidence that either Ashley’s
girlfriend or Accused No. 1’s girlfriend knew Accused No. 2.
Accused No. 2 testified that he was asleep and his cellphone was on
the charger when calls from Accused No. 1’s cellphone were made
to his cellphone. The assailants of Accused No. 2 and Kapira could
only have known the route they would use from the PSS premises, the
time they would leave and the description of the vehicle from sources
within PSS. More so, in cross-examination of Accused No. 2, it turned
out that the safe had two locks which were hidden on the
corners/sides of the safe. The robbers managed with ease to find the
locks, open the safe and remove the money. The evidence shows that
Accused No. 2 must have communicated with some persons who executed
the robbery and the trial Court was correct in finding that he had
common cause in planning the robbery of the N$5.3 million. There is
evidence by Kapira that at the first impact, Accused No. 2 said
“those guys or people are going to rob us.” When Kapira
asked him as to how he knew that they were going to rob them, he
remained silent. Kapira took accused’s cellphone to call Kruger
Senior. As he was attempting to call, he informed Accused No. 2 to
make a U-turn and drive back, accused again did not respond, he just
pulled the vehicle from the road and stopped. The assailants were
demanding the keys and the money. One was on the roof of the vehicle
and shooting on the side of Kapira. Kapira tried to shoot with his
pistol and shotgun but both firearms jammed. When he cocked the
shotgun, bullets simply fell out of the chamber. Kapira asked accused
why he was not driving and accused replied that the keys had been
taken. Kapira asked him how that had happened. Accused remained
silent. He asked him for the cellphone, accused replied that the
cellphone had been taken as well. Since he could not fire from his
pistol and the shotgun, he asked for accused’s pistol. Accused
did not respond. He searched for the weapon and found it under the
accused’s seat. At that stage he realised he was injured. When
he wanted to shoot, accused stopped him and said he should not shoot
as he would recognise the persons. He saw a person coming with a
rifle, he fired in his direction and he heard the person crying. When
it became quiet Kapira asked accused to go to Coca-Cola where some of
their colleagues were stationed to look for help.

[23] Accused’s version is to the
contrary, Kapira opened the door that is why he was shot. After the
door was opened, the door keys and the cellphone were taken. He
argued that the trial Court failed to take that possibility into
consideration. In his evidence-in-chief he testified that Kapira
demanded the keys and he gave them to him which Kapira denied. He
further testified that he gave his pistol to Kapira to shoot. The
question is why the accused could not shoot as the vehicle was
already stationary, the keys were probably already taken and Kapira
was already shot at that stage? While accused states for a fact that
Kapira opened the door and handed the keys to their assailants, in
the same breath he argued that it is the only possibility which the
trial Court should have considered because according to him it was
impossible to be shot while seated in that vehicle with the door
shut. But when he was pressed in cross-examination as to whether
Kapira opened the door, he changed his version to say “I was in
the state of shock and cannot say exactly” but Mr. Small,
counsel for the respondent, further asked him whether he was in shock
as he was being cross-examined. His reply was: “No but it is 3
years ago I cannot say everything exactly”. It was further put
to him as follows: “I’m putting it to you Mr.Kambonde why
your evidence now changes from him opening the door just before he is
shot because you realise on your evidence there is no way in which he
could actually hand the keys and perhaps the cellphone to the robbers
on your evidence do you understand”. His reply was: “I’m
the one who experience (sic) this and how could you not
believe me?” Accused was asked: “Before handing the keys
to your colleague did you have the keys in your hand or was it still
in the ignition?” His reply was: “If I can recall vaguely
it was still in the ignition”.

The cross-examination further
proceeded as follows:

“MR.
SMALL:…what
prevented you from driving off? ---I no more had the keys how would I
have driven away? I handed over the keys to Kapira.

The
question is what prevented you while the keys were in the(sic)
rather than taking them out and handing them to Kapira at that stage
when you touch the keys again what prevented you from driving away?
--- First of all I was in the state of shock and I just did as my
colleague requested me he was hysterical and he was shouting.

So
are you saying your shock prevented you from driving away? --- Any
bumping or any accident will bring shock to a person.

Wouldn’t
your first reaction be an attempt to get away? --- I’ve tried
at the stage when I was bumped and when I was tried to driven off.

Mr.Kambonde
the other people or apparently the driver or let us call them the
robbers were next to your vehicle of the vehicle that they were
driving? They were off their vehicle? --- Off the vehicle.

Yes
they were surrounding your vehicle? --- I saw movements but I cannot
say how because there were many.

COURT:
Movements of people? Movements? --- Visions or shadows.

But
these were human shadows? --- That is correct. Yes?

MR.
SMALL: And you say
you were too shocked to drive away? --- I was in the state of shock.

But
not too shocked to take out the key from the key hole is that
correct? --- Yes I cannot say exactly or I cannot say precisely
everything but I’ve tried my best to safe (sic)our
lives and I’ve tried to save our lives by giving my firearm to
him so that I could be here and tell the court as to what happened.

What
I do not understand Mr.Kambonde is this person next to you is wounded
according to you but you yourself do not fire a shot you give your
firearm to him? --- Yes I told him to use the other weapon and he
said he couldn’t so I then took my firearm and give him because
his door was open.

Wasn’t
your reluctance to shoot back at the person outside the vehicle
because they were in fact your friends with whom this was arranged?
--- No that’s why I hand him my firearm to fire. Handing your
firearm to a person said who told you I was shot I’m dying is
that the case? --- I told him to fire or to shoot back and he said
his weapon was not working anymore or jam and then I hand him my
firearm in order to fire because his door was open and I even
couldn’t see where he was shot at and could not even see at
that stage where he was wounded (sic).”

Accused admitted in cross-examination
that there was an opening between the cabin and canopy but he would
not agree with a proposition that it was possible to hand out the
keys and cellphone through that opening. When asked whether he saw
Kapira handing over the keys to the robbers, his reply was, “no
I cannot say”.

[24] Accused’s oral evidence
that it was Kapira who opened the door and handed over the keys and
the cellphone to their assailants is contrary to what accused told
the police in his statement marked Exhibit “PP3”. In the
statement he said the robbers shot at them and demanded the safe
keys. He denied saying that to the police and said he vaguely
remembered that it was Kapira who demanded the keys. He went on to
say that the robbers damaged a bulletproof small window with a
firearm. When asked whether he said that to the police, he replied
that he saw the damaged window at the police station. When asked why
it was in his statement, his reply was variously that he did not
write the statement down and that he was told that Kapira had said so
and he should also say so, or he did not know as he was under shock.
The statement further states that the robbers managed to open the
door; they injured Kapira. To this sentence he also said he did not
write the statement down; he was in a state of shock; he did not
know, and he was not given an interpreter to interpret for him. The
statement goes on to say that after the robbers had shot Kapira, they
managed to get hold of the safe keys. He saw four guys and the
driver. They started removing the money from the safe. When they
demanded for the firearms, Kapira took his firearm and shot one of
them who had a rifle with him. When he was asked whether he said
that, he said he was told by Kapira. When further pressed, he said he
could not say whether he put it in his statement as it was long time
back since the statement was made and yet he confirmed that he read
through his statement before he testified. The statement goes on to
say that when this person was shot he fell down, his colleagues
picked him up and placed him in the vehicle and drove away. When
asked whether he said so in the statement, his response was that
Kapira and Kruger spoke about it. The statement continued that the
driver of the vehicle which robbed accused and Kapira was a white
man, well built and accused would be able to identify the culprit.
One of the members of the gang was wearing a balaclava on his face.
Since it was dark he only saw shadows; he could not say the person
who wore the balaclava was the one who grabbed the cellphone, car and
safe keys. The robbers spoke English. He suspects that the culprits
were maybe South African citizens given their accents. When asked
whether that was what he said in his statement, he denied having said
so.

[25] With respect, the trial Court was
correct in convicting accused on the second count. The argument that
it convicted on the evidence of a single witness without regard to
the cautionary rule is without merit. Kapira was found to be a
credible witness whose evidence the Court found to be true. See S
v Sauls and Others 1981(3)SA172 (AD) at 179E – 180 A-F.
Accused was asked why he could not shoot at the robbers. He evaded
the question to say he gave his firearm to Kapira to shoot. Kapira
was already injured at that stage. That conduct on the part of
accused in my opinion corroborates Kapira’s evidence that he
searched for accused’s pistol and found it under the accused’s
seat and fired at one of the assailants. Kapira testified that
accused forbade him to shoot as he, the accused, would identify the
persons. This the accused also said in his statement to the police
only to deny it during cross-examination. Accused, from the record
was so evasive and the Court below correctly rejected his version. He
handed the keys and the cellphone to their assailants. There is no
evidence that the robbers had also demanded the cellphone but this
was nevertheless handed over to the robbers. There was no reason why
Kapira who sought help immediately when harm came their way would
have handed the cellphone to their assailants. The possibility is
that it was accused who handed the cellphone as well, with the
purpose of cutting off Kapira from seeking help and give the
assailants enough time to execute the robbery. Accused on his own
version testified that the Nissan pick-up stopped next to them but
gives no reason why he could not drive away especially when some of
the assailants had alighted from their vehicle. When asked why he did
not drive off, his reply was that the keys had already been taken.
Exhibit “E” photos 1 and 2 indicate that accused stopped
at an open space and point “C” indicates where the
assailants’ vehicle had stopped, next to the vehicle driven by
accused. Accused made no attempts to flee from his assailants. His
version that he was a victim of the robbery is false. The bullet
found in the driver seat makes him no victim when the probability is
that he had made common cause with the assailants.

I am accordingly not persuaded that
the Court below should have rejected the evidence given by Kapira.
Accused was rightly convicted and his appeal should fail.

[26] I deal now with the position of
Accused No. 3. Accused No. 3’s attack on the trial Court’s
judgment is directed at the convictions only. He argued that the
court below erred when:

1. 
   It failed to recuse itself, after the
   court had found the accused guilty at the s 174 Act 51 of 1977
   application.It had at that stage found that the fingerprint on the
   sticker was that of accused, a breach of Art 12(d) of the
   Constitution of Namibia;

   
   

2. 
   It adopted a hostile attitude towards
   the defence, when it obstructed the cross-examination of
   Mr.Christians who appeared for the accused;

   
   

3. 
   It failed to make the sticker in
   Schutt’s vehicle available, depriving the applicant an
   opportunity to prove his innocence, and
   

   
   

4. 
   It failed to consider the evidence of
   the defence on the fingerprints.

   
   

[27] Accused was convicted on his
fingerprint which was allegedly uplifted from a sticker on the
dashboard of Schutt’s Nissan pick-up. He was also convicted on
the basis of the evidence of the MTC print-outs of his cellphone. I
will make my observations on the alleged failure of the trial Judge
to recuse himself after consideration of evidence implicating
individual accused persons. The point of refusal to recuse is also
raised by Accused No’s. 1 and 11.

[28] That brings me to the argument of
the alleged hostility of the trial Judge towards the defence. Accused
No. 3 refers to pages 586, 596, 598, 614, 630, 641, 648 and 654 of
the record to make the point. With all due respect to the accused,
cross-examination has limits and a presiding officer has a discretion
to disallow cross-examination in the form of leading questions and
tedious questions, which can have no purpose except to exhaust a
witness, questions which are merely oppressive and cannot be relevant
either to the issue or credit. The South African Law of Evidenceby
the learned authors D.T. Zeffert, A.P. Paizes and A.St. Q Skeen at
754. See alsoR v De Bruyn 1957 (4) SA 408 (C) at 412; S
v Moggaza 1984 (3) SA 377 (C) at 385F-H. In Bagley v Cole Ltd.
and Another 1915 (2) CPD 776where applicant contended that his
counsel was prevented from putting questions relevant to the claim in
convention, at 780 Kotze J said the following:

“I
quite concede that in cross-examination a latitude and even a wide
latitude is allowed counsel, but everything has its limits. If in the
opinion of the presiding Judge or Magistrate those limits are being
exceeded and the time of the court is unduly taken up to the
inconvenience and expense of suitors and the public business before
the court, it becomes the duty of the Judge or Magistrate to put a
stop to it.”

In the same case, at 782 Gardiner J
said:

“It
would be intolerable if any court had to resign itself, its time, and
the time of suitors, into the hands of a legal practitioner, and were
to be forced to listen to any question in cross examination, however
apparently irrelevant, and however often repeated, upon the
allegation that these questions might elicit something afflicting
credibility … in the interests of the court, the practitioners
and the public, he must have a discretion to stop cross-examination.
It is true that the discretion to interfere with the conduct by a
legal practitioner of his case should be sparingly exercised, but
occasions may arise when such interference may be necessary.’
See S
v Nisani1987
(2) SA 671 at 676H – 677A-I.”

[29] Take for example page 598, one of
the pages accused refers to, to make his point. Mr. Christians wanted
to know how long it took Sergeant Shikufa to find Accused No.1’s
fingerprint in the Nissan pick-up. The cross-examination continued as
follows:

“…More
or less I know he won’t probably be able to give the exact time
but more or less how long did it take you? --- Oh I cannot tell the
Court My Lord.

Did
it take you half a day?

COURT:
Sorry?

MR.
CHRISTIANS: I asked him whether it took him half a day? --- No, I
cannot remember how long I had been there My Lord.

So
it could have been half a day? --- No.

Could
it have been a whole day?

COURT:
He said no.

MR.
CHRISTIANS: Could it have been 2 hours?

COURT:
He says he can’t tell.

MR.
CHRISTIANS: My Lord this is an expert witness!

COURT:
An expert witness about time? I mean how long have you been asking
questions?

MR.
CHRISTIANS: My Lord he should have been, he should be able to
estimate time (intervention)

COURT:
Not exactly. Not exactly

MR.
CHRISTIANS: No, yes, that is what I mean. I am not asking the
exact time.

COURT:
But if he says he does not know or he can’t tell, you can’t
question him further.

MR.
CHRISTIANS: My Lord at least he must be able to (intervention)

COURT:
Sorry?

MR.
CHRISTIANS: He must be able, he must be possible (intervention)

COURT:
Well he has answered that question. Can we move on?

MR.
CHRISTIANS: Okay, well I will leave it there. Yes”.

On page 614, another page accused
relies on, the following transpired.

“…what
would your reaction be if you would find the print where you could
clearly see the call? --- My Lord, (intervention)

COURT:
Has he not explained, he says at the (inaudible) it’s not usual
to get this call

and
the delta?

MR.
CHRISTIANS: That’s not closely giving the answer to the
question that I asked really that’s a general answer that he
gave it doesn’t answer what I am asking.

COURT:
Yes okay repeat the question.”

[30] In the first extract above, with
all due respect, the trial Judge had to put a stop to the
cross-examination. I do not see the relevance of the precise time it
took to find the fingerprint. In any case the witness categorically
answered that he could not remember, to continue cross-examination
whether it was half day, full-day, half of an hour, was flogging a
dead horse and impermissible.

[31] In the second extract, accused
possibly did not read that part of the proceedings properly.
Notwithstanding observing that the witness had answered or explained
the question, the Court continued its patience and forbearance for a
longer period when it allowed counsel to repeat the question. In that
instance the Court had a discretion to put a stop to the
cross-examination. Counsel could not repeatedly put the same question
until the witness gave the answer counsel desired, that attitude in
my opinion is a negation of the object and purpose of
cross-examination. When Accused No. 11 terminated the services of Mr.
Christians in his letter dated 4 August 2003 (Exh “MM1”)
to the Registrar of the High Court, he gave one of the reasons as
follows:

“His
(attorney) ineffective defence because essential questions – as
instructed were never asked in cross-examination of witnesses.”

[32] On reading the record I get the
impression that, the record of the proceedings is blotted with
irrelevant ad nauseum cross-examination. When Chief Inspector
Becker ended his evidence-in-chief, the Court reassured all the
accused that their legal practitioners were doing their very best.
The record is silent as to what prompted the Court to make that
remark. It can only be that it was a reaction from the accused,
especially as it is apparent from Accused No. 11’s letter
terminating Mr. Christian’s services that he had instructed him
to oppose receipt of Exhibit “K2” (the transcript of the
video recording of Accused No. 10) into evidence, but Mr. Christians
did not do so. Accused was asked during cross-examination why his
legal representative did not put questions about the cellphone to
Sergeant Nangolo. His reply was to the effect that Mr. Christians was
not asking the questions he was instructed to ask. It is not
necessary to belabour the point by referring to all the pages accused
relies on. I perused those pages as well; they by far fall short of
an obstruction as contended for by the accused. I cannot say that the
trial Judge exercised his discretion wrongly in disallowing the
cross-examination where it was necessary to do so. To the contrary he
held his patience; allowed witnesses to be recalled without any basis
laid for so doing and cross-examined even longer than the first time.
The contention has no merit and should fail.

[33] I now turn to consider the
contention of the failure to make the sticker available. This I will
consider together with the contention of the alleged failure to take
into account the evidence of the defence on the fingerprint as the
two are interlinked. It was not in dispute that the alleged right
thumbprint lifted from a sticker on the dashboard of Schutt’s
Nissan pick-up was that of Accused No. 3. Mr.Cloete, the expert
witness of Accused No. 3, confirmed the fingerprint as that of the
accused. The contentious issue was when was the result of the
fingerprint on folien, linked to the accused, received. Sergeant
Shikufa testified that he received the form containing the
fingerprints of Accused No. 3 on 1 February 2001 from Sergeant
Katjikua. He made a comparison of those fingerprints and the ones he
lifted from the scene and found that the right thumbprint was
identical to the print lifted from the scene. Chief Inspector Becker,
on the other hand, testified that he knew before 29 January 2001 that
Accused No. 3 was linked to the crimes by his fingerprints between 20
December 2000 and 29 January 2001 as Nangolo had taken his
fingerprints on 28 January 2001. He could not recall who informed
him, but he strongly believed that Sergeant Shikufa was mistaken, as
when he asked his officers, Sergeant Shikufa among them, to do a
thorough check, they found a Pol 16 of Accused No. 3 which was signed
by Sergeant Nangolo on 20 December 2000 as well as the signature of
the person who sent the fingerprints of Accused No. 3 to the Unit
Commander. On a further search they found the Pol 31 as well with the
name of the investigating officer and the signature of Sergeant
Nangolo dated 20 December 2000. Both documents did not bear a date
stamp. He further testified that once he had acquired knowledge that
Accused No. 3 was linked to the crimes by his fingerprints, he on 29
January 2001 instructed Sergeant Katjikua to prepare or obtain the
Court chart and statement.

[34] What is clear from the evidence
of the police officers who testified about the fingerprints of
Accused No. 3 is that the procedures prescribed from when the
fingerprints are uplifted up to when a comparison is done were
followed. The only contentious issue is whether the outcome was made
known before 1 February 2001 or only on 1 February. The confusion, in
my opinion, could be attributed to human error.

[35] Crucial, in my view, is whether
the fingerprint uplifted from the Nissan pick-up matched that of
Accused No. 3 and whether it was uplifted from the sticker on the
dashboard. That was the evidence presented by the prosecution.
Accused testified and denied the charges. His version on the presence
of his fingerprints in Schutt’s Nissan pick-up was that he did
not know Schutt or where he lived. All he could remember was that he
was given a lift from a bar in Wanaheda. He could not say whether it
was the day of the robbery or not, neither could he recall the month
but it was in the year 2000. The vehicle was a Nissan pick-up, the
person who gave him a lift was Stelma Temba. Accused then went on to
say he himself is well-known to members of the Serious Crime Unit and
that the Unit had his fingerprints. He testified that given the fact
that Chief Inspector Becker knew before 1 February 2001 that the
fingerprints of accused matched, when all the police officers who had
to do with his fingerprints denied informing Inspector Becker of the
outcome, he was suspicious that Becker could have planted that print
in the vehicle. He testified that when the police took his
fingerprints three times, that action created a suspicion that
something was wrong. Accused called an expert in questioned
documents, handwriting, typewriting and fingerprints, one
GerhardusMartinusCloete. He testified that he was contacted during
2003 but he received documents he had to work on during 2004. These
documents comprised 700 or 720 pages of the Court record which
included the evidence of the fingerprint experts in Namibia, a photo
plan drawn by Shikufa, photocopies of Exhibits “A1” –
“A13” i.e. copies of affidavits of Sergeant Shikufa, the
Court chart with regard to identification of fingerprints,
fingerprint forms and a copy of the folien of a fingerprint that was
lifted. Some of his observations were as follows:

1. 
   On photo 10 which depicts the point
   where the fingerprint was lifted, he could not see any marking that
   the fingerprint was indeed lifted.

   
   

2. 
   When he studied the folien, the
   folien covered the parts of a sticker, it was cut off, it was uneven
   – he expected to see a straight line.

   
   

3. 
   He studied the findings of Shikufa
   and on the folien he found another very clear fingerprint but there
   was no evidence led of that fingerprint or nothing was said about
   it.

   
   

4. 
   The fingerprint identified was
   definitely that of Accused No. 3.

   
   

5. 
   He questioned how accused could have
   got his fingerprint on the sticker in the vehicle but added that
   although it was not impossible, it was very unusual.

   
   

6. 
   Perhaps the crux of his finding is
   that only some letters in the words “thank you” that
   appeared on the sticker were on the folien, namely, the last part of
   the letter “n” and letter “k” in the word
   “thank” and “y” and “o” in the
   word “you.” He further found differences in these
   letters which he marked in 1-6 points which he demonstrated to the
   Court in a Court chart which he had prepared in photographs and
   enlargements of fingerprints and folien(Exhibits “ØØ1”
   and “ØØ2”) and Exhibit “ØØ3”
   and a short description of photographs. He also could not understand
   why the words “not smoking” which were also on the
   sticker did not appear on the folien.

   
   

7. 
   As a result of the differences he
   found in the letters, he could not match the folien to the sticker.

   
   

[36] He found it “unfortunate”
that he could not examine the original sticker since it was not
available. He did not explain why he could not secure the sticker.
One would have expected at that point for counsel to inform the Court
the difficulties the defence had in securing the original sticker and
perhaps seek the assistance of the Court. What is apparent from the
record is that the witness was in a haste to testify and return to
South Africa due to financial constraints. After re-examining the
witness, Mr. Christians said the following:

“My
Lord if there is no further questions for the witness if I may
request Your Lordship and for my Learned Colleagues whether the
witness may be excused he will be leaving for South Africa tomorrow.
… I would also at this stage express my gratefulness for the
indulgence shown by my Learned Colleagues and also Your Lordship and
the personnel to be present to assist us in seeing of this witness it
was of a great help financially (sic).”

[37] The evidence-in-chief of Accused
No. 10 was interrupted to accommodate this witness. In actual fact in
re-examination Mr. Christians endeavoured to get the witness to say
the copies were sufficient. He asked him whether in his experience he
used copies of exhibits a lot; whether in the absence of original
documents the copies were permissible; what the reason for the
witness wanting to have the original sticker was and whether he had
any doubts with his findings. To the question why the witness needed
the original sticker, he replied that he could then determine exactly
what the dimensions between the top upper words and the lower words
would be and he could determine whether the sticker could have been
fixed at another stage in the Nissan pick-up. On the question whether
he doubted his findings, he replied that he had no doubts but he
could not make a 100% conclusion because he did not have the original
sticker. Some of the questions put to him in cross-examination were
as follows:

“But
surely Mr.Cloete you would agree with me that your belief of you
cannot bring them together, that isn’t really a conclusion
(sic)?”

He replied:

“I
am not prepared to give a 100% definite conclusion in this regard.”

He was further asked why not, to which
he replied:

“because
of the fact my Lord that I did not have the original sticker
available for examination. I had to work from an enlarged
photograph.”

He further said:

“If
I am correct Mr. Christians contacted Mr. Small and asked him whether
it will be possible for me to have it (sticker) available. But
unfortunately I could not get it for examination my Lord so I had to
complete my comparison and examination on the face of the
photographic enlargement of the sticker, but even, in that there are
those points that I have marked out.”

It was put to him that when experts
use improper methods to arrive at conclusions it damages their
reputations to which he positively answered. It was also put to him
that in the science of his job he has to have original documents,
original writing to compare, to which again he answered in the
affirmative, and added he always asks “for the original
documents or original exhibits …”. A proposition was put
to him that without him having the true dimensions of the original
sticker he could not tell what the actual distance was between the
types of writing, his reply was, “that’s correct. I
cannot tell that definitely.” When questioned on his mandate he
stated that he had been asked to determine whether the fingerprints
were lifted at the scene of the crime, whether they were that of
accused and whether they were tampered with. He stated that it was
not his evidence that the fingerprint was planted on the sticker, but
he believed that the fingerprint did not come from the sticker. While
holding to his belief, he stated, “there is no complete
definite conclusion which I (indistinct) because I refrain from
giving a 100% conclusion because I did not have the original sticker
available”.

[38] With respect, the witness in my
view, made no reliable conclusion. It is clear from the evidence that
for the witness to have made an acceptable conclusion, it was vital
to have examined the original sticker, which he conceded on the
question of Mr.Small. He testified that after he had looked at the
documents and exhibits sent to him, he prepared a short provisional
report for Mr. Christians, which he faxed to him with a request that
he needed to examine the original folien, the original sticker and
the vehicle where it was possible. Eventually he received
instructions to be in Windhoek from the beginning of the week. As I
have indicated above, he was made to testify in haste and placed on
the plane back to South Africa. With respect, that he failed to have
access to the original documents or the vehicle cannot be faulted on
Mr. Small or the trial Court. That blame should be laid squarely at
the door of Mr. Christians and the accused. That is how they chose to
conduct accused’s defence. The trial Court was correct to
reject the evidence of the defence on the fingerprints and Accused’s
argument in that regard must fail.

[39] The presence of accused’s
fingerprints in the Nissan pick-up without an acceptable explanation
places him on the scenes of the two robberies. His explanation of the
presence of his fingerprint in the Nissan pick-up is that he had an
innocent lift from one Temba. Sergeant Katjikua and Nangolo testified
that during the bail application, accused gave an explanation how his
fingerprints could have got in the Nissan pick-up. When the Court
adjourned they took accused to take them to this Temba. He made them
drive to the Katutura suburb but failed to take them to Temba.
Accused denies this evidence; his version is that they did him a
favour to take him to his house. Crucial as the question of
fingerprints is, accused failed to make an effort to find Temba. He
was asked in cross-examination whether, he was going to call him as a
witness, and his reply was “no”. Even if I could accept
that Temba had the vehicle, given the time it was removed from Schutt
(10h45) and the time of the second robbery (01h25) when regard is
also had to the facts that the canopy had to be removed, false number
plates had to be fitted, and the further consideration that the
robbers must have suspected that the robbery would have been reported
and the police would be looking for the vehicle, the safe option
would have been to hide the vehicle until about the time they were
informed Accused No. 2 and Kapira would depart. It is unlikely that
this Temba would have given lifts to people who would likely identify
him.

[40] There is evidence of cellphone
number 0812443351. The starter pack was retrieved by Sergeant Nangolo
from the wardrobe of accused but accused denied that the cellphone
number was his. His explanation is that it could have belonged to any
of his friends or his customers. It is unlikely. The sim card of that
number was used in the cellphone of Accused No. 11 in the morning and
at 19h00 on 17 November 2000. The calls from three fixed numbers
which registered on the cellphone of Accused Nos. 2 and 11 also
registered on this number. Accused could not remember where he was on
the evening of 16 November and the morning of 17 November 2000. The
possibility is that that was his cellphone number.

[41] The money found within the
homestead of Nandunda could be linked to the accused. Accused No. 10
testified that the stolen money was with the girlfriends of the
accused persons. Accused admitted that Bertha Nandunda was his
girlfriend and the two had a child together. Bertha Nandunda was a
suspect and the witness who was to link her to that money that was
found buried in the field of Bertha Nandunda’s parents turned
hostile although not so declared by the Court a quo.
Ndjodhitestified that when she and Dr.Nghalipoh entered the house
where the doctor was called to treat Accused No. 1, a lady walked out
of the house and she wondered why she would leave Accused No. 1 in
that condition. Nothing was heard of that lady in the proceedings.
Accused No. 1 testified that the money he was given when he went to
hospital was collected by Cheeks (who in all probability is accused
No. 11) from Cheek’s girlfriend.

[42] The evidence of the fingerprints
alone was sufficient to convict the accused on all the charges. With
respect the trial Court was correct in convicting the accused on all
the charges. Accused’s appeal should also fail.

[43] What follows next is a
consideration of Accused No. 9’s (Ismael Oaeb) position. On 22
November 2000, accused with Accused No’s. 7, 8, 10, 11 and two
other male persons were arrested in a house at 75 Teresa Street,
Camps Bay, Cape Town where a sum of N$909 250,00 in N$50 notes was
found in a room where Accused No’s. 10 and 11 were sleeping.
The money was placed in a bag which was in a cupboard and in a black
suitcase which Accused No. 10 identified as his. The money is the
subject matter of the second count. Accused was convicted as an
accomplice on the second count. Accused attacks that conviction and
argued that the Court below erred when it incorrectly applied the
doctrine of common purpose since he had no knowledge of the robbery;
when it found that he had rented the house for criminal purposes, and
that the accused had played a criminal role in the scheme of things.
He further argued that the Court below failed to approach the
evidence of a single witness, Sergeant Nangolo, with caution; it
failed to consider accused’s evidence properly, and that it
erred in finding that his evidence was replete with lies.

[44] Accused and his Co-Accused No’s.
7, 8, 10 and 11 deny knowledge of the money found in the house where
they were arrested. The money, as already stated, is the subject
matter of the second count, the robbery which took place in Windhoek
on 17 November 2000. Four days later some of the money, the N$905
205,00, is found in the house where accused and his co-accused were.
They were the only persons who travelled from Namibia after the
robbery who were found in the house where the money was recovered.

[45] The Court below convicted accused
on the individual items of evidence, linking him to the robbery or
showing that accused actively associated himself in common purpose in
a joint unlawful activity. The trial Court accepted the evidence of
Sergeant Nangolo who saw accused in the company of Accused No’s.
1 and 7 and one other person he could not identify on the evening of
16 November 2000. In the morning of 17 November, Accused No. 1 was
found seriously injured in the house accused was renting, which the
Court below found was rented for criminal activities. On 19 November
accused in the company of Accused No’s. 7 and 8 left Windhoek
for Cape Town in accused’s Golf. Accused No. 11 on the same day
also left for Cape Town in his BMW vehicle. They crossed the Namibian
and South African borders with Accused No. 11 driving the Golf,
accused being a passenger and Accused No.8 driving Accused No. 11’s
BMW while Accused No. 7 was a passenger therein. As stated before,
they were found in a house in Cape Town where part of the money the
subject matter of the second robbery is also found. In a bail
application in Cape Town accused testified that he met Accused No. 11
in Cape Town which the Court below found to be false. The Court below
also accepted the telephone contacts between accused and Accused No.
11 who Accused No. 9 testified he did not know before they met at a
service station at Noordoewer.

[46] In his testimony, accused denied
having been with Accused No. 1 on 16 November 2000. He saw Accused
No. 1 for the first time in prison when they returned to Namibia
after his arrest in South Africa. He testified furthermore that at
the end of October 2000, he entered into an oral agreement to rent
the house at 1709 Agnes Street, Khomasdal, for the month of November
2000. His neighbours were noisy, and since he was preparing for
examinations, he moved to his girlfriend’s place. After writing
his first paper, he met Pedro or Petro an old friend of his who had
asked him for accommodation. He offered him a place at 1709 Agnes
Street. There is some confusion as to when Petro moved in as accused
testified that he moved in the first Sunday in November and also that
he met him after he had written his first paper, which was on 9
November. The 9^th November or a date thereafter falls
outside the first week of a month. If accused met him on 9 November,
he could only have moved in on Sunday 12 November. Be it as it may,
the accused continued with his testimony that the weekend Petro moved
in the accused returned to the house on Monday to visit Petro and he
switched-off his cellphone and left it on a charger at 1709 Agnes
Street. He left the cellphone because his clients used to phone him
and he would go to the office to phone if necessary. He returned to
the house on Tuesday again and Petro asked him to switch on the phone
as he had given that number to his friends. He did not use the phone
that week starting Monday, 13 November, because he did not have time.
He only picked up the cellphone on Sunday, 19 November, when he left
for Cape Town. The reason for going to Cape Town was to buy rims from
a lady whom he was referred to by someone at Tiger Wheels, Windhoek.
He asked Accused No’s. 7 and 8 to accompany him, Accused No. 7
to assist him to arrange for accommodation in Cape Town as he knew
people there and Accused No. 8 to assist in driving. He was in the
middle of examinations and his aim was to return “maybe Tuesday
evening or so”.

[47] They left on Sunday between 14h00
and 15h00. Before Noordoewer the Golf developed a clutch problem; it
was pulling very slowly. They stopped at a service station. While at
the service station a green BMW stopped at the same service station.
Accused No. 7 approached the driver (who happened to be Accused No.
11), spoke to him and Accused No. 11 wanted to test drive the Golf.
He drove the Golf around the service station and then suggested to
drive the Golf up to the border. Accused No. 11 drove the Golf while
accused was a passenger and Accused No. 8 drove the BMW while Accused
No. 7 occupied the passenger seat thereof. They arrived at the
Namibian border where they enquired whether by swapping vehicles
would not cause them problems. They were told it could cause them no
difficulty. They proceeded to the South African border where they
were thoroughly searched. They left the South African border, Accused
No. 11 still driving the Golf for a short distance. He stopped and
informed them that the clutch had developed a problem and that he
knew someone in Springbok who could help them repair it. In Springbok
they stopped at a certain house where Accused No. 11 wanted to seek
help but the lights in the house were off. Accused No. 11 left. They
went to a service station where they filled up and proceeded with
their journey. They stopped outside Springbok to rest. They proceeded
from there for a distance when the vehicle showed some serious
problem with the clutch; a smell exuded therefrom. They stopped an
old man who agreed to tow the vehicle up to Cape Town where they
arrived on Tuesday. Accused No. 7 contacted the person who should
have offered them accommodation. When he could not find him he
contacted Accused No. 11 who agreed to come to the service station
where they were. He took them to another service station where the
Golf was booked in for repairs. Accused No. 11 offered them
accommodation for the night and also gave them a lift to the house
where they were arrested the next morning on 22 November 2000. He
testified furthermore that Accused No. 7 did not inform him of the
presence of Accused No. 1 at his house.

[48] In my judgment, with respect, the
Court below was correct to convict the accused as an accomplice to
the robbery on the second count. Although he did not participate in
the actual robbery as testified to by Accused No. 10, he nevertheless
assisted in the commission of the crime, therefore participating in
common purpose with the actual perpetrators. In my opinion, accused’s
version exposes the conspiracy between the accused persons to cover
up for each other. It is incongruous to suggest that Accused No. 7
would have known about the presence of Accused No. 1 at the house
accused was renting; the injury of Accused No. 1 and all the drama
about Dr.Nghalipoh allegedly betraying them and the fact that by the
time they left for Cape Town Accused No. 7 knew about the arrest of
Accused No. 1, yet according to accused, Accused No. 7 did not inform
him of all these. It is surreal. In actual fact when he left for Cape
Town on Sunday, 19 November, the accused was in the middle of the
year-end examinations. According to his examination time table,
Exhibit “EE”, he was still left with three papers to
write, which were to be written from 22 – 24, a day after
another and yet in his evidence-in-chief he testified that he had
already prepared for the papers and his intention was to go to Cape
Town and return, “maybe on Tuesday evening or so”. In the
bail application he misled the Prosecutor and the Court when he said
he was writing on Friday only. On Friday he was going to write
Marketing Paper 2. Exhibit “EE” speaks for itself. Given
his occupation as an insurance broker, the courses he still had to
write (advertising and sales promotion and marketing) were his
majors. Even if I were to accept on his own version, that if he had
travelled without any incidences leaving on Sunday (the time he says
they left Windhoek for Cape Town), it would have meant arriving on
Monday, do business that Monday and leave very early on Tuesday to be
in Windhoek by Tuesday evening and write examination at 09h00 the
next day. The reason for such a strain: to buy rims and other
accessories. It is far-fetched. What about Accused No. 7’s
version that from Cape Town accused should have dropped him in
Upington? It is unlikely under the circumstances that he would have
been back in Windhoek by Tuesday evening. That is not all; he left
without informing his girlfriend, the owner of the Golf and who was
also in the middle of examinations. She was most probably depended on
her vehicle to take her to and from the examination centre. When he
was asked why he did not at least inform the owner of the vehicle
that he was taking the vehicle outside the country, his reply was
that they were in love; he wanted to surprise her with the rims. As
already observed, the vehicle allegedly developed a clutch problem
before it reached the border. He knew the vehicle had a clutch
problem. Why did he want Accused No. 11 to test drive the vehicle and
for that matter test drive across the borders? After the South
African border Accused No. 11 confirmed that the vehicle had a clutch
problem. He took them to Springbok and showed them a house where they
could obtain help. He left them there but after sometime they also
decided to leave notwithstanding the condition of the vehicle. Common
sense dictates that he should have realised at that stage that he
would not be back by Tuesday, nevertheless he still drove on until
the problem developed much bigger. They were eventually towed from
outside Springbok to Cape Town. There they could not find the person
who should have offered them accommodation. Accused No. 11 again
features, he takes them to a garage where the Golf was taken in and
offers them accommodation. With regard to the accused’s version
relating to the cellphone and at the pain of being repetitive, when
the accused went back to the house he was renting the day after Petro
had moved in, the accused switched-off the phone because calls from
his clients were disturbing him and he left the cellphone on a
charger. When he returned to the house the following day, he switched
it on at Petro’s request since the latter had allegedly given
the accused’s cellphone number to his friends and he had
expected calls from them. The simplest way to cut-off incoming calls
is to switch-off the phone and it does not require abandoning it
elsewhere.

[49] I have no doubt that accused was
economical with the truth, the trial Court was correct again, with
respect, to find that his version was replete with lies. Evidence
from accused’s bail application in South Africa was presented
to him in his evidence- in-chief to explain some of his evidence and
that record of proceedings was received in evidence in the Court
below as an exhibit. In that bail application accused was asked
whether he had seen Accused No. 11, his reply was that he saw him for
the first time in South Africa. It was put to him that he travelled
with Accused No. 11 on 20 November 2000 to South Africa, accused
replied that that was not so. In his evidence-in-chief he explained
that he thought the Prosecutor meant travelling with Accused No. 11
from Namibia all the way to South Africa. That explanation makes no
sense because he had already said he saw Accused No. 11 for the first
time in South Africa. He was further asked whether he knew Cheeks
Accused No. 7 referred to, his reply was that he did not know him
personally. He was asked how he knew him. He responded that he knew
him simply by seeing him once and after being introduced to him. He
was asked as to who introduced them. His reply was that it was
Accused No. 7. He was asked on what occasion the two were introduced
to each other and when. His response was that it was at a service
station in Namibia.

[50] At this point in his
evidence-in-chief, accused realised that he had exposed Accused No.
11 as Cheeks. He then proceeded to explain that at the service
station at Noordoewer, Accused No. 7 introduced him to Accused No.
11. He said:

“I,
by then, was under the impression that Accused No. 4 who now is
Accused no 11, was Cheeks …because by then I did not know who
Cheeks was.”

His legal representative asked him
whether when Accused No. 7 introduced him he mentioned the name
Cheeks. His reply was:

“My
Lord I didn’t know anything about that name but only when
during the bail application when this name was mentioned I was under
the impression that Accused No.4 who is now Accused no. 11 must be
Cheeks but I didn’t know.”

The question was repeated, accused
replied:

“My
Lord there was a name mentioned at that stage but I cannot recall
whether it was Cheeks. I can only recall during the course of the
bail application that Cheeks was a person called Petro.”

The next question that followed from
his legal representative he changed knowing Cheeks from during the
course of the bail application to after the bail application had been
concluded when he tried to find out who this Cheeks was. The real
question is how could he assume that Cheeks was Accused No. 11? His
legal representative brought to his attention that in the bail
application he refused to answer a question pertaining to calls
between him and Accused No. 11. His explanation was that he did not
know who Mabena was. The question during the bail application was
very specific:

“Now
there is information at this at our disposal that there were calls
made between yourself and Mr.Mabena, Accused No. 4.”

Accused No. 11 who was Accused No. 4
in the bail application was at the time in the dock with accused.

[51] The record shows that at the end
of accused’s evidence-in-chief before the cross-examination
commenced, the Court took a short adjournment. When the Court
resumed, Mr.Murorua who had taken over the representation of Accused
No. 11 from the previous counsel, made reference to the meeting of
accused and Accused No. 11 at the service station at Noordoewer. He
asked accused by what name Accused No. 11 was introduced to him.
Accused replied that Accused No. 11 was introduced to him by his name
“Skumbuza”. A short while before the Court adjourned, in
his evidence-in-chief; he informed the Court that when he was
introduced to Accused No. 11, a name was mentioned but he could not
recall whether it was Cheeks. After the adjournment all of a sudden
he responds that Accused No. 11 was introduced by the name Skumbuza.
In his evidence-in-chief he testified that he had contacted a lady in
South Africa who was selling the rims accused was looking for. That
is why he had left for Cape Town in the middle of examinations. He
could, however, not provide the telephone number of that lady in
South Africa. His explanation was that a long period had gone by. The
prosecutor in the bail application in South Africa cross-examined him
extensively on his purpose of going to Cape Town. No mention was made
of the lady he had allegedly already contacted; his intention was to
go to South Africa to shop for rims. On the question of rims the
cross-examination proceeded as follows:

“And
did you know exactly where you would have to go to find these mag
rims? --- No

So
how were you going to find these mag rims?

Pardon?

[Question
repeated]

---
I was going to ask the person which we were supposed to meet here and
he, would maybe, have directed us to the right place (sic).”

[52] Further, while under
cross-examination in the bail application he told that Court that he
had an arrangement with the owner of the house at 1709 Agnes Street,
Khomasdal, to rent the house for a month. He told the Court below and
the Court in South Africa that he had rented the house because he had
personal problems with his girlfriend. In the bail application in
South Africa, he went on to say that when the owner of the house told
him that he could rent for only one month, he approached his
girlfriend and told her that he was moving back with her, because
they had resolved their differences. He had rented the house where he
hardly stayed, because he had moved back in with his girl-friend.

[53] On the totality of the evidence I
find that the Court below was correct to find that accused rented the
house for criminal activities. Accused testified that he only learnt
during or after the bail application in South Africa that Petro or
Cheeks was one and the same person. In the bail application he told
that Court in this regard that he had an Angolan friend named Petro
who needed a place to sleep for a week. He told Petro that he could
sleep at the rented house since the accused was sleeping at his
girlfriend’s house and that he would come in the morning to
shower and change. He added that most of the times he did not find
Petro at the house. In his evidence-in-chief he said he only went
back to the house on Monday (13 November) when he switched-off the
cellphone and left it on a charger. He went back on Tuesday (14
November) when Petro asked him to switch on the cellphone as he had
given the number to his friends. Both the two days on his version he
found Petro at the house. On his testimony he returned to the house
to collect the cellphone on 19 November and then left for South
Africa. That day Petro was not present, apparently he had just
disappeared without saying a word to the person who was so generous
to him. The owner of the house, Bezuidenhout, testified that when she
went to her house at the end of November, she did not find anybody.
She was compelled to break-in her own house to gain entrance. In his
evidence-in-chief accused never testified that he used to go back to
the rented house to shower and change. What comes out very clearly
from his evidence is that he distanced himself from the house and his
cellphone during the period 12 November until 18 November, which
includes the period the robberies were committed. During the period
16 - 19 November the MTC print-outs showed over twenty calls between
accused and Accused No. 11. As the Court a quo correctly
found, the person Petro and/or Cheeks is fictious and the Court below
was correct to accept the evidence of Sergeant Nangolo that he saw
accused in the company of Accused No. 1 on 16 November 2000. There is
a reasonable possibility that accused knew the presence of Accused
No. 1 at the house he had rented and he knew about the robbery of the
money that was going to be undertaken. That evidence strengthens the
evidence of Accused No. 10 that the money that was found in the room
where Accused No’s. 10 and 11 were sleeping was removed from
the Golf. The accused’s version cannot reasonably possibly be
true. The Court below was correct in convicting him on the second
count as an accomplice who made common cause with the robbery of the
money or actively associated himself with the robbery of the N$5.3
million. It follows that his appeal should also fail.

[54] I turn, finally, to the case of
Accused No. 11. The evidence against him consisted of testimonies of
members of the South African Police Service who conducted a search at
75 Teresa Street, Camps Bay, Cape Town on the morning of 22 November
2000; the evidence of his co-accused Accused No. 10, and the MTC
print-outs testified to by State witnesses Riedel and Beukes. It is
common cause that at about 04h30 on 22 November 2000, approximately
12 to 14 police officers raided the house at 75 Teresa Street, Camps
Bay and Accused No. 11, Accused No’s. 7, 8, 9, 10 and two other
male persons were arrested at that address. Also found at that house
but not arrested were the female owner of the house and two girls. In
the room where accused and Accused No. 10 were sleeping, police
officers found cash amounting to N$909 250,00 in notes of N$50,00
which was contained in an Adidas bag and in a plastic bag. The Adidas
bag was placed in a cupboard while the plastic bag was in turn placed
in a black suitcase. The bag retrieved from the cupboard was locked
with a padlock and when asked where the key to the padlock was,
accused produced the keys after Accused No. 10 had spoken to him.
Accused No. 10 identified the black suitcase wherein the plastic bag
containing the money, was placed. There is no dispute that the money
found at the address in Cape Town was part of the money robbed on 17
November 2000 when the Toyota was attacked on the highway to
Okahandja. There is also evidence that accused was found hiding
behind a curtain in that room he shared with Accused No. 10.

[55] The evidence of the MTC
print-outs shows that while in Namibia accused used a Motorola
cellphone with sim card number 0812457929 to make several calls to
Accused No. 3’s cellphone. On 13 November 2000, one call was
made. On 16 November five calls were made, two of which were made
close to midnight. On 17 and 18 November seven calls were made.
Between 16 and 18 November, accused made 22 calls to Accused No. 9’s
cellphone. On 17 November at 08h04 Accused No. 3 using the sim card
of his cellphone number 0812443351 in Accused No. 11’s Motorola
made two calls. On 13 and 16 November missed-calls from a fixed line
telephone number 215749 registered on accused’s cellphone. This
fixed line number and two other fixed line numbers also registered on
Accused Nos. 2 and 3’s cellphones. On 17 November at 12h39 the
sim card of accused’s cellphone number 0812457929 is used in
the cellphone Nokia 8210 of Accused No. 1 to call, interalia, the
cellphone number of Accused No. 9. It must be remembered that at
12h39 Accused No. 1 was still at 1709 Agnes Street; he had not yet
been taken to the hospital. As already mentioned, Accused No. 9
claims that his cellphone was on the charger at the same address. On
17 November at 07h20 accused’s cellphonenumber 0812457929 calls
Dr.Nghalipoh’scellphone number 0811280468. It can only be the
time the doctor was summoned by Accused No. 7 to treat Accused No. 1
at 1709 Agnes Street. At 07h55 accused’s cellphone registers a
call from Dr.Nghalipoh’scellphone. At 08h23 accused’s
number registers a missed-call from Dr.Nghalipoh. At 11h53
Dr.Nghalipoh called accused again. At 13h00 and 13h41 accused’s
cellphone registers missed-calls from the doctor.

[56] Accused No.10 testified that at
04h25 on 17 November accused called him to inform him that Accused
No. 1 had been shot. He testified that in Cape Town Accused No. 11
told them that they should deny any knowledge of the money to which
he agreed because he was afraid. He saw Accused No. 11 and one of the
two male persons who were arrested with the accused persons in this
matter at 75 Teresa Street, Cape Town, removing money from the door
panels of the Golf. The money was taken into the house placed in the
Adidas bag which used to be in the boot of accused’s BMW
vehicle. He later observed accused counting the money in the room he
shared with Accused No. 10. He confirmed the evidence of accused
hiding behind the curtain, the bunch of keys which accused asked him
to remove under the pillow when asked by the police where the keys
were and accused indicating to the police the exact key which opened
the bag. He further said accused invented the name “Cheeks”
when they were held in prison in Cape Town. Accused No. 11 said they
should think of a name they could use as the person who was involved
in arranging treatment for Accused No. 1. Accused pulled the blanket
from “Shoes” and said “Cheeks” and everyone
laughed, the name was agreed upon. He refuted the evidence of Accused
No’s. 7, 8 and 9 that they arrived on Tuesday in Cape Town.
Accused and Accused No’s. 7, 8 and 9 arrived together at 75
Teresa Bay, Camps Bay on Monday.

[57] Accused denies all this evidence
against him, particularly he denies knowledge of the money. He
describes at length how he ended up in Namibia and why he brought
Accused No. 10 with him; the problems he had with the fixing of his
vehicle; why he bought tickets to return to South Africa, and why he
drove by road. His journey to South Africa has been covered when
dealing with the case of Accused No. 9. What needs to be added is
that he says he left Windhoek at about 18h00. He left Accused No’s.
9, 7 and 8 in Springbok and arrived in Cape Town on Monday, 20
November, and Accused No’s. 9, 7 and 8 arrived on Tuesday 21
November.

[58] He attacks the judgment from
various angles, namely his conviction on common purpose and on this
score he relies on the decision of S v Mgedezi and Others 1989
(1) SA 687 (AD)and refers to the five prerequisites justifying a
conviction on the basis of common purpose, as set out in that
decision; the refusal of the trial Judge to recuse himself; the
finding that he, Accused No’s. 1 and 10 entered Namibia with
the purpose of committing robbery (when Accused No. 2 commenced as a
driver at PSS on 1 November 2000) that the Court accepted the
evidence of the padlock and keys to the bag that contained the money
(when the police officers who testified on the issue contradicted
themselves on the said issue); that the trial Court erroneously
relied on incorrect evidence, for example, that Accused No. 9 called
accused twenty times; the Court a quo received inadmissible
MTC print-outs which were not authenticated by Wenk who compiled the
print-outs and who was in any event not called to testify, they had
no logo nor stamp and therefore secondary information and the
print-outs were full of flounders; that the trial Court accepted the
evidence of Accused No. 10; that accused removed the money from a
panel of the Golf even though the prosecution submitted that his
evidence should not be accepted; that the evidence of ShadrackDube
confirming that Accused No. 10 informed him that Accused No. 1 had
been shot is hearsay; that Dube was an unreliable witness when he
failed to answer simple questions put to him; the failure of the
Court to order the production of the Court proceedings in Cape Town,
(possession of stolen property charge) making him “to be tried
twice on the same offence”; the Court failed to draw a negative
inference of Dr.Nghalipoh’s evidence who should have identified
accused by his limping features as the person who was with Accused
No. 7 at 1709 Agnes Street; the searching of the house where accused
and others were arrested was illegal; failure to call Shabalala, the
owner of the house where accused was arrested, who could have
testified as to when the Golf of Accused No. 9 arrived at her house;
the Court committed “a gross irregularity” when it
allowed the witnesses from South Africa to testify while their
statements were in Afrikaans; the trial Court received in evidence
the video recording of Accused No. 10, which accused describes as a
confession, taken by Chief Inspector Becker who was an investigating
officer in the case against the accused. Accused concluded his
grounds of appeal by stating that the cumulative effect of all the
alleged irregularities and misdirection were of such a magnitude that
the conclusion was inevitable that a failure of justice occurred and
his conviction and the sentences that followed should be set aside.

[59] I will consider the issues of the
failure by the trial Judge to recuse himself and the MTC print-outs
infra, as they are also raised by some of the co-accused. From
the outset, I would say accused misses the boat when he argues around
the real issues that led to his conviction. Secondly most of
accused’s contentions above are relied on out of ignorance;
they do not amount in my opinion to irregularities that would vitiate
the proceedings. I deal with those contentions first.

[60] Accused argued that the trial
Court caused him to be tried twice for the same offence. When accused
and his co-accused were arrested in South Africa, they were
apparently charged with the offence of possession of stolen property
which was later withdrawn. He was not required to plead, no evidence
was led and no verdict was pronounced. Whether the case was withdrawn
because the police did not take a statement from the owner of the
house where accused was arrested, there were no proceedings on the
same offences in South Africa. If the case was withdrawn for whatever
reason accused could still be recharged for the same offence. The
possession of stolen property charges was withdrawn in South Africa
and he was brought back to Namibia to be prosecuted on the charges
detailed in paragraph [1] of this judgment. Accused could have
pleaded autrefois acquit or convict if he was tried for the
same offence in South Africa. This did not occur and the contention
has no basis.

[61] Accused contended that the search
of the house at 75 Teresa Bay was illegal. SuperintendantJooste, the
police officer who was in charge of that operation, explained that in
that jurisdiction a police officer is authorised by law to search any
premises without a search warrant where weapons are suspected to be
involved. There was no evidence to the contrary and there was no
reason for the trial Court not to accept evidence of all the police
officers. He further argues that the court committed a gross
irregularity when it admitted the evidence of the South African
police officers whose statements were in the Afrikaans language.
Firstly, the statements were not received in evidence to form part of
the proceedings. The statements in my opinion are not the documents
contemplated in Rules 60 and 63 of the Rules of the High Court, that
is, translation of documents and authentification of documents
executed outside Namibia for use within Namibia respectively.
Secondly it was never raised by the defence that there was prejudice
on the part of accused or his co-accused as a result of the
statements being in the Afrikaans language. Counsel representing the
accused was Afrikaans speaking; he did not raise the issue during the
trial; relied on the statements in cross-examination and he
cross-examined at length and effectively. Therefore no prejudice was
suffered.

[62] It was argued that Chief
Inspector Becker recorded a confession from Accused No. 10 while he
was an investigating officer in the case. A confession means “an
unequivocal acknowledgement of guilt, the equivalent of a plea of
guilty before a court of law”. See Rex v Becker 1929
(AD) at 171. A confession therefore is an extracurial admission of
all the elements of the offence charged. See Du Toit et al,
Commentary on the Criminal Procedure Act, Service 42, 2009,
24-51. In Rex v Hans Veren& Others 1918 (TPD) 218 at 221,
WesselsJput it as follows:

“The
accused must in effect have said, ‘I am the man who committed
the crime.’”

[63] Accused No. 10’s video
recorded statement is not such a statement nor is it an admission.
Accused No. 10’s intention was to inform Chief Inspector Becker
that he was not involved in the crimes and informed Chief Inspector
Becker of what he knew about the crimes. In the letter terminating
the services of Mr. Christians accused stated as one of the reasons
that Mr. Christians failed to oppose that statement to be admitted in
evidence. Counsel had no reason to oppose the admission of the
statement. When he crossed-examined Accused No. 10 on the statement,
Counsel asked him as to what was new in his video statement that was
not already before Court. Accused No. 10 never admitted guilt in that
statement. He explained that he had approached Chief Inspector Becker
because his legal representative did not want to listen to his
version. Indeed when Accused No. 10 testified, his legal
representative was forced to withdraw as a clear conflict of interest
became apparent. This contention too has no basis.

[64] When it suits the accused the MTC
print-outs are admissible. He claims that the Court a quo erred
when itstated in its judgment that Accused No. 9 called accused
twenty times. He says that that was a misdirection “by getting
everything so wrong”. He states that not a single call emanated
from Accused No. 9’s cellphone to his. Accused is correct in
that regard. All the calls emanated from accused’s cellphone to
that of Accused No. 9. However, that contention is not of his own
recollection but founded on the strength of the print-outs. Accused
should have chosen to condemn the print-outs or accept them. “…[T]he
choice of one necessarily involves the abandonment of the other. He
cannot both approbate and reprobate”. (Bowditch v Peel
&Magill 1921(AD) 561 at 572-73; Van Schalkwyk v
Griesel1948 (1) SA 460 (AD) at 473; Moyce v Estate Taylor,
1948(3) SA 822 (AD) at 829, and Dettman v Goldfain and Another
1975(3) SA 385 (AD) at 401.) Accused misses the boat
again. Granted, the trial Court put the facts incorrectly on that
point but, in my opinion, the point is whether the incorrect stating
of the facts on that point alone influenced the Court to convict the
accused? The answer is “No”. Accused No. 9 testified that
he did not know the accused until when they met on the way to South
Africa, but why twenty or twenty one calls between the two before
that meeting. None of the two offers a convincing explanation. It
will be recalled that Accused No. 9 testified that his cellphone was
on the charger at 1709 Agnes Street where he was not residing during
the period of the calls while accused’s evidence was that the
cellphone that made those calls was with someone who had died in the
meantime and called a person who was in custody who had allegedly
killed that person. But as I have already indicated, at 12h39 accused
used his sim card in Accused No. 1’s cellphone, who was at the
same address where Accused No. 9’s cellphone was allegedly on
the charger to call Accused No. 9. The contention has no merit and it
fails.

[65] This brings me to the issue of
the money found at Shabalala’s house in South Africa. I have
difficulties understanding what accused’s defence in this
regard is. If I understand him correctly, he contends that the police
officers who conducted the operation at that house contradicted
themselves in many instances, suggesting that the money was planted
in that house in the room accused and Accused No. 10 shared. He
further argued that the money was not shown to him and that if there
was a lock to the bag, the keys that opened the bag should have been
produced as exhibits in Court. He denies having hidden behind the
curtain or having produced or identified the key that opened the bag.
That the money was found in the room shared by accused and Accused
No. 10 is undisputed. So is the fact that that money was part of the
money robbed from the PSS vehicle on 17 November 2000. The question
that remained was for the Court a quo to reason by inference
as to who was in possession of the money. There was no evidence that
the two other men and the three women who were found together with
the accused persons who were in the house where the money was
recovered were in Namibia between 17 and 22 November. There was no
evidence that the money could have been left in the house by any
other person who was not in the house when it was found. The money
could only have been brought in that house by accused and the four
other accused persons (7, 8, 9 and 10). They were the only persons in
that house at that time who had travelled from Namibia to South
Africa after the robbery. The Court below found that accused was
possibly the mastermind of the crimes but possibly not at the scene
of the second robbery given the call made between Accused No. 1 and
accused at the time of the robbery and in view of the finding that
Accused No. 1 was the person who was shot on the scene. It went on to
find that “but it does not mean he was not involved in the
planning of the commission of the robbery of the money in all the
circumstances of the case”. That Court took into consideration
the production of the keys and the identification of the exact key
that opened the bag containing the money from a bunch of keys. The
Court also found that “Cheeks” was fictitious and accused
was the person who arranged for the treatment of Accused No. 1, he is
the person who made the calls to Accused No. 9who rented the house
where Accused No. 1 was found injured. The Court also accepted the
evidence of Accused No. 10 that he had seen accused and one of the
male persons arrested with the accused persons removing the money
from the Golf and that he had seen accused counting the money in the
room they shared. Accused No. 10 went on to say that the money was
accused’s money and it was actually N$1 million. I agree with
the Court a quo’s finding that the money was transported
in the Golf given the evidence of Accused No. 10 on that point and
the false version of Accused No. 9. It is unlikely that Accused No.
10 would have carried the money on him on the plane. ShadrackDube
confirmed that on the day of the robbery Accused No. 10 was at Dube’s
house. Accused No. 10 had heard from accused that Accused No. 1 was
shot. In the absence of an explanation how the money came into his
possession, the Court a quo placed accused on the two scenes
of the robberies, at the very least, in the planning of the robberies
in full knowledge where and how they were to be executed. With
respect, the Court below was correct in that regard. That
participation meets the prerequisites of common purpose expounded in
the Mgedezi matter above referred to by accused. On the
totality of the evidence, there can be no other conclusion except
that accused was involved in the commission of the crimes and
possibly the mastermind as the Court a quo found given his
post robbery activities, that is, contacting Accused No. 7 to find
the doctor for Accused No. 1; the calls between him and Dr.Nghalipoh;
the calls made from his cellphone to Accused Nos. 9 and 3. Between
accused and Accused No. 1, accused was more familiar with Windhoek
than Accused No. 1. When he and Accused No. 10 arrived in Namibia on
13 October 2000 it was his second visit to Namibia. Accused No. 1 was
slightly over two weeks in Namibia when the crimes were committed.
Given that short period he stayed in Namibia before the crimes were
committed, I agree with the Court a quo that it was correct to
find that accused and Accused No. 1 entered Namibia with the
intention to commit crime. The fact that Accused No. 2 commenced as a
driver at PSS on 1 November is irrelevant. Inside information would
have been sufficient to execute the crime. That Accused No. 2 was
also the driver when the robbery was committed was a bonus; the crime
was committed with much ease.

[66] I now turn to the issues Accused
No’s. 1, 2, 3 and 11 have in common, namely, the refusal by the
trial Judge to recuse himself upon the application brought by Accused
Nos. 1 and 3 and the MTC print-outs.

[67] The objection of Accused No’s.
1 and 3 to the Judge a quo continuing with the trial appears
to stem from the statement the Judge made in his ruling in the
application for discharge pursuant to s 174 of the Criminal Procedure
Act, 1977 when he stated that Accused No. 1 was shot on the scene of
the second robbery by Kapiraafter Accused No. 1 had opened fire and
shot Kapira thereby wounding him and that Accused No. 3’s
fingerprints were lifted from the vehicle of Schutt. Accused No. 11
joined Accused No’s. 1 and 3 in the contention that the Judge
should have recused himself for allegedly pre-judging the case during
the application for a discharge. Accused No. 3 puts it very bluntly
that the Judge convicted them at the s 174 discharge application.

[68] It appears from the record that
Accused No’s. 1 and 3 were aggrieved by the manner in which the
Judge expressed himself on the two statements referred to above. Mr.
Christians who appeared for Accused No’s. 1 and 3 had argued as
follows:

“Why
I’m saying this is because of the manner in which Your Lordship
stated that part ...but it’s just about the manner in which
Your Lordship stated those two points in respect of Accused No.1 and
Accused No. 3 and as I have indicated in my written submission my
Lord, it is not a matter that one would say that Your Lordship is
prejudiced or Your Lordship in fact has made up Your Lordship’s
mind in this regard in respect of these two accused persons regarding
that those specific points in evidence, but a I’ve indicated to
Your Lordship it’s the manner in which the (inaudible) the
person from outside is looking at what was said by Your Lordship. How
does that person interpret what Your Lordship said.”

[69] I will do no better than to refer
at length to the South African case of S v Herbst1980(3) SA
1026 (ECD) at 1029G – 1030A – H where the following is
said in respect of an application for recusal:

“The
approach of our Courts to an application for recusal has been set out
in a number of cases and the principle which they seek to enshrine is
that no reasonable man should, by reason of the situation or action
of a judicial officer, have grounds for suspecting that justice will
not be administered in an impartial and unbiased manner. The
Roman-Dutch authorities on which this principle is founded are dealt
with by Joubert Jin
South
African Motor Acceptance Corporation (Edms) Bpk vOberholzer 1974 (4)
SA 808 (T).
In the English law the same principle was clearly stated in the
oft-quoted dictum
by
Hewart CJin
The
King v Sussex Justices (1924) 1 KB 256 at 259 to
the effect that:

‘A
long line of cases shows that it is not merely of some importance but
is of fundamental importance that justice should not only be done but
should manifestly and undoubtedly be seen to be done…Nothing
is to be done which creates a suspicion that there has been an
improper interference with the course of justice,’

and
in The King v Essex Justice (1927) 2 KB 475 SWIFT J says at
490:

‘It
is essential that justice should be so administered as to satisfy
reasonable persons that the tribunal is impartial and unbiased.’

These
principles have been applied in our Courts over the years in cases
such as Slade v The Pretoria Rent Board 1943 TPD 246; Appel v Leo
and Another 1947 (4) SA 766 (W); S v Bam 1972 (4) SA 41 (E); S v
Radebe 1973 (1) SA 796 (A).

In
Liebenberg and Others v Brakpan Liquor Licensing and Another 1944
WLD 52 SOLOMON J says at 55 that:

‘Bias
must not either actually or probably be within the mind of the Judge
when he undertakes his judicial work, nor during the course of it
must he be placed in a situation reasonably calculated to infect him
with bias or to lead to the reasonable fear that he may have been so
infected. The impartiality after which the Courts strain may often in
practice be unrealized without detection, but the ideal cannot be
abandoned without irreparable injury to the standard hitherto applied
in the administration of justice. The absence of impartiality and the
presence of bias may often be hard to prove, but the Courts
disqualify for judicial work not only persons who in fact are biased
and not impartial, but those who are probably so.’

On
the other hand, as was stressed by Henochsberg J inDanisa v
British and Overseas Insurance Co Ltd 1960 (1) SA 800 (D) at 801,
although the question as to whether a reasonable fear exists that
the trial will not be impartial must be looked at from the point of
view of a reasonable lay litigant, the test is nevertheless an
objective one. The mere possibility of bias, apparent to a layman,
on the part of a judicial officer, will not be sufficient to warrant
his recusation (Cf also S v Radebe (supra at 812) and SA
Motor Acceptance Corporation (Edms) Bpk v Oberholzer (supra at 812)).

The
ideal which these dicta seek to uphold seems to me to be that
the administration of justice should at all times be beyond reproach
to the mind of a reasonable onlooker, and this is reflected in the
remark by “Karoo” in his article “Recusation”
in 1924 SALJ at 37 that:

‘No
matter how conscientious a magistrate or Judge may be, it is better
to avoid even a semblance of suspicion and to keep the fount of
justice pure and in-defiled. When, therefore, a bona
fide objection
is taken by either of the litigants to the person of the Judge or
magistrate on reasonable grounds such judicial officer should not
lightly overrule the objection.’

In
conclusion I would quote with respectful approval certain dicta
by Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v
Lannon and Others (1969) 1 QB 577 at 599 where the learned Judge
says:

‘In
considering whether there was a real likelihood of bias, the court
does not look at the mind of the justice himself or to the mind of
the chairman of the tribunal, or whoever it may be, who sits in a
judicial capacity. It does not look to see if there was a real
likelihood that he would, or did, in fact favour one side at the
expense of the other. The court looks at the impression which would
be given to other people. Even if he was as impartial as could be,
nevertheless if right-minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then
he should not sit…

There
must be circumstances from which a reasonable man would think it
likely or probable that the justice, or chairman, as the case may be,
would, or did, favour one side unfairly at the expense of the other.
The court will not inquire whether he did, in fact, favour one side
unfairly. Suffice it that reasonable people might think he did. The
reason is plain enough. Justice must be rooted in confidence: and
confidence is destroyed when right-minded people go away thinking:

‘The
Judge was biased’.”

[70] In S
v Dawid 1990 NR 2006 (HC),
O’Linn J made reference to some authorities quoted in the
Herbst case
above and at 212Ι
he stated:

“But
when alleging actual bias, the least that a Court can expect is good
reason, based on clear facts for such an allegation, particularly in
view of the fact that there is a presumption of integrity and
competence in favour of Judges.”

See also Sikunda
v Government of the Republic of Namibia (1)
2001 NR 67 (HC), at 83Ι
– 84A.

[71] In Law
Society v Steyn [1923] SWA
59 at 60 - 61, Gutsche J said:-

“When
in any case a judge finds upon the law or evidence he is discharging
a duty and there can never be a suggestion that merely because such a
finding is adverse to one of the parties the court is biased or
hostile to that party. The fact that the findings are made in
judicial proceedings, published ex
cathedra
in the discharge of a duty, rebuts any presumption of malice or ill
feeling.”

See also Schonken v Assistant
Resident Magistrate Pretoria 1916 TPD 256 at 259, Erasmus
H J et al, Superior Courts, 1994, A1-13–14F.”

[72] The trial Court, before
summarising the evidence against each accused, stated:

“That
the crimes charged were committed is not an issue. What is an issue
at this stage of the proceedings is whether there is a prima
facie evidence
to link the accused with the commission of the said crimes.”

[73] The Court proceeded to summarise
the evidence against the accused and in the process made the
statement which triggered the application for recusal. At the end of
the summary of the evidence the Court stated:

“In
the light of the outline given above, I am persuaded to find that
there is a prima
facie evidence…”

[74] In S v Mnyamana and Another
1990 (1) SACR 137(A) at 141F-H Friedman AJA said:

“Irregularities
in a criminal trial fall into two categories: those which are of so
gross a nature as per
se to
vitiate the trial and those of a less serious or fundamental nature
which do not per
se have
that effect. In regard to the latter category the Court will, on
appeal, itself assess the evidence and ’decide for itself
whether, on the evidence and the findings of credibility unaffected
by the irregularity or defect, there is proof of guilt beyond
reasonable doubt’ per
Holmes
JA in S
v Tuge 1966(4) SA 565 (A) at
568B. See also S
v Naidoo 1962 (4) SA 348 (A) at 354D-F and
S
v Mkhise and Others 1988 (2) SA 868 (A) where
it was stated with reference to the categorisation of irregularities
at 872F-G:

‘As
the decisions in our law on the nature of an irregularity bear out,
the enquiry in each case is whether it is of so fundamental and
serious a nature that the proper administration of justice and the
dictates of public policy require it to be regarded as fatal to the
proceedings in which it occurred.’”

[75] I do not consider that the
statements complained of were irregularities. Even if they were, they
fall in the second category which is of a less serious nature
especially that accused testified and called witnesses. Nothing in
the judgment of the trial Court suggests that the remarks it made in
the s 174 application clouded its mind. Consequently this contention
also fails.

[76] Finally on the accused’s
joint contention, namely, the issue of the MTC print-outs, Accused
No’s. 2, 3 and 11 contended that they should not have been
admitted in evidence. When the matter was argued, this Court
meromoturaised with Mr. Small, counsel for the Respondent, the
issue of whether the evidence led by the State on the computer
print-outs complied with the Computer Evidence Act, 1985 (Act No. 32
of 1985). Mr. Small was asked to submit further heads of argument on
the point raised by the Court which were to be served on the accused.
The accused were also asked to file further heads of argument, except
for Accused No. 1 who indicated that he was not challenging the
admissibility of the print-outs. He submitted that he was relying on
the calls especially the one he allegedly made at 01h25 to Accused
No. 11 which was registered by the Eros Tower as he claimed that he
was in Erospark at the time of the second robbery. Mr. Small was
further asked, in the event that the evidence on the computer
print-outs is disregarded, what impact the absence of that evidence
would have on the convictions.

[77] I must mention, as Mr. Small
correctly points out in his additional heads of argument, that the
point raised by the Court was not an issue in the Court a quo. The
print-outs were admitted without an objection. The fundamental ground
upon which Mr.Murorua representing Accused No’s. 2, 7 and 9 in
the Court a quo, joined by Accused No.11 objected to the
admissibility of the computer print-outs was that they were
unreliable, that Messrs Riedel and Beukes were not the authors and
preparer of the said print-outs but MTC Information Technology
Department, and therefore the print-outs constituted hearsay evidence
and that they could have been manipulated, a contention repeated in
Accused No. 11’s heads of argument in this Court.

[78] The Court a quo considered
the objections and stated as follows:

“Incasu,
it
is noteworthy to mention that there was, in reality, no resistance to
the admissibility of the computer print-outs. The admissibility of
computer print-outs evidence in criminal case falls within the
purview of Section 221(1) of the Act 51 of 1977.”

[79] The Court below referred to the
case of S v Harper & Another 1981 (1) SA 88 D &(CLD)
at 95E – H, 96D-E and 97C-H which Mr.Murorua brought to the
attention of the Court where Milne J considered the question whether
or not computer print-outs are admissible documents. Milne J found
that when the word “document” is interpreted in its
ordinary grammatical sense, the computer print-outs fall in that
purview and are admissible in terms of section 221. The relevant
parts read as follows:

“The
extended definition of document is clearly not wide enough to cover a
computer, at any rate where the operations carried out by it are more
than the mere storage or recording of information…

The
wording of the section … is entirely appropriate to the
production of microfilm as evidence since the microfilm itself can be
produced. Furthermore, microfilm is a means by which information is
stored, and recorded … The computer print-outs consist of
typed words and figures and would, prima facie, clearly fall
within the ordinary meaning of the word ‘document’.

It
seems to me, therefore, that it is correct to interpret the word
‘document’ in its ordinary grammatical sense, and that
once one does so the computer print-outs themselves are admissible in
terms of section 221. Once that situation had been achieved, then it
seems to me that the main thrust of the attack upon the admissibility
of those documents disappears.”

[80] Consequently the Court a quo
found that the print-outs objected to were admissible.

[81] The argument of the
inadmissibility of the computer print-outs was pursued in this Court
by Accused No’s. 2, 3 and 11 with vigour. They filed further
heads of argument on the point raised by this Court. Mr. Small
concedes that no authenticating affidavit as required by the Computer
Evidence Act, 32 of 1985, was filed but submits that the print-outs
were properly authenticated by Riedel and Beukes of MTC in their viva
voce evidence. He argues that the print-outs were handed through
the MTC witness, Beukes, without objection, and that he testified
that the print-outs are a report of data stored. He further submits
that, as I remarked above, none of the legal representatives of the
accused ever raised an objection against the admission of the
print-outs as not complying with the provisions of the Computer
Evidence Act, 1985 neither was it raised by counsel for accused
persons in cross-examination. He argues that in essence the
print-outs were placed before the Court a quo by agreement,
cross-examination by counsel for the accused was done extensively on
the print-outs. I may add that Beukes was called at the instance of
the defence team when Riedel could not explain some things on the
print-outs. Riedel was also recalled at the instance of the defence.
Mr. Small further points out that Accused No’s. 1, 2 and 7
relied partly on the information contained in the print-outs. I would
add Accused No. 11 as well. As I have already indicated above, he
attacks the judgment of the Court a quo, where the Court said
Accused No. 9 called Accused No. 11 twenty times, (when it is the
other way round), on the strength of the print-outs. Accused No’s.
2 and 9 who denied being in possession of their cellphones at the
crucial periods of the planning and execution of the robbery, do not
dispute the print-outs, so argued Mr. Small. He finally submits that
the print-outs were properly admitted by the Court a quo.

[82] I agree, with respect, that the
Court a quo was correct to hold that computer print-outs in
criminal matters are regulated by s 221 of the Criminal Procedure
Act, 1977 which effectively disposes of the question raised by this
Court. The Computer Evidence Act, 1985 which is a replica of the then
South African Computer Evidence Act, 1983 (Act No. 57 of 1983)
applies only to civil proceedings. The purpose of the Act is “to
provide for the admissibility in civil proceedings of evidence
generated by computers; and for matters connected therewith”.
See generally, Hoffmann and Zeffert, The South African Law of
Evidence, 4^thed, at 142; Schwikkardet al,
Principles of Evidence, 1997, 267 - 276.

[83] Section 221 of the Criminal
Procedure Act, 1977 provides:

“221.
Admissibility of certain trade or business records.

(1)
In criminal proceedings in which direct oral evidence of a fact would
be admissible, any statement contained in a document and tending to
establish that fact shall, upon production of the documents, be
admissible as evidence of that fact if-

(a)
the document is or forms part of a record relating to any trade or
business and has been compiled in the course of that trade or
business, from information supplied, directly or indirectly, by
persons who have or may reasonably be supposed to have personal
knowledge of the matters dealt with in the information they supply;
and

(b)
the person who supplied the information recorded in the statement in
question is dead or is outside the Republic or is unfit by reason of
his physical or mental condition to attend as a witness or cannot
with reasonable diligence be identified or found or cannot reasonably
be expected, having regard to the time which has elapsed since he
supplied the information as well as all the circumstances, to have
any recollection of the matters dealt with in the information he
supplied.

(2)
For the purpose of deciding whether or not a statement is admissible
as evidence under this section, the court may draw any reasonable
inference from the form or content of the document in which the
statement is contained, and may, in deciding whether or not a person
is fit to attend as a witness, act on a certificate purporting to be
a certificate of a registered medical practitioner.

(3)
In estimating the weight to be attached to a statement admissible as
evidence under this section, regard shall be had to all the
circumstances from which any inference may reasonably be drawn as to
the accuracy or otherwise of the statement, and, in particular, to
the question whether or not the person who supplied the information
recorded in the statement, did so contemporaneously with the
occurrence or existence of the facts stated, and to the question
whether or not that person or any person concerned with making or
keeping the record containing the statement, had any incentive to
conceal or misrepresent the facts.

(4)
No provision of this section shall prejudice the admissibility of any
evidence which would be admissible apart from the provisions of this
section.

(5)
In this section-

“business”
includes any public transport, public utility or similar undertaking
carried on by a local authority, and the activities of the Post
Office and the Railways Administration;

“document”
includes any device by means of which information is recorded or
stored; and

“statement”
includes any representation of fact, whether made in words or
otherwise.”

[84] The authors Du Toit et al,
comment that s 221 creates an exception to the rule against hearsay
and proceed to give the history behind the exception. The authors
Schwikkardet al, 1997, supra, at page 273 states that
“it seems that once the conditions set in terms of s 221(1) of
the CPA have been satisfied the document will become admissible and
the Court will have no discretion to exclude it”.

[85] In S v Harper and Another,
supra, after stating that there are a number of processes
involved which precede the production of the print-out, at 966, Milne
J proceeded to say:

“No
evidence has been adduced before me as to whether or not the computer
that was used here was operating correctly, nor was there any
testimony as to the precise nature of the processes involved. It
seems to me, however, that the legislature envisaged this very state
of affairs when it enacted s 221 of Act 51 of 1977.”

[86] As Mr. Small correctly points
out, the parties handed up the print-outs by agreement. The defence
counsel cross-examined Riedel and Beukes at length on the documents
they allege should not have been admitted in that case eliciting
inadmissible evidence and cannot now complain that it was an
irregularity to have admitted such evidence (Rex v Bosch 1949(1)
SA 548 (AD) at 555). Accused used some print-outs in their arguments,
approbating when it suits their arguments.

[87] Consequently I am not persuaded
that the Court a quo erred when it admitted the print-outs. In
the result this contention also fails.

[88] It was necessary to attempt to
cover almost every contention raised by the accused, in the process
rendering the judgment, long as it is.

[89] It would have been necessary in
the case of this nature to make observations on the State’s
burden of proof and how a court should approach circumstantial
evidence, but the Court a quo sufficiently did so and I find
it unnecessary to be repetitive. Suffice it to say that when one
applies the principles of circumstantial evidence, the conclusion is
inevitable that the denials of the accused of any involvement in the
crimes they were convicted of, is false and were correctly rejected
and the accused properly convicted. The network of facts cast around
the accused persons left no gaps and rents through which the accused
were entitled to pass in safety (Cf. S v Reddy and Others1996(2)
SACR 1(A) at 9B - E).

[90] I deal now with the sentences
imposed on the accused persons and I intend to do so briefly. It is
argued without any basis that the Court a quo failed to take
the accused’s personal circumstances into consideration and
that the sentences are neither rehabilitative nor reformatory.

[91] When it comes to sentence this
Court is guided by the well-known principles articulated in S v
Rabie1975(4) SA 855 (AD) at 857 where the following is said:

“1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal –

(a)
should be guided by the principle that punishment is “pre-eminently
a matter for the discretion of the trial Court’; and

(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the discretion
has not been “judicially and properly exercised”.

2. 
   The
   test under (b) is whether the sentence is vitiated by irregularity
   or misdirection or is disturbingly inappropriate.”

   
   

See,
as to all of the foregoing, R. v. Freeman, 1921 AD 603 at p.
604 in fine.; Sv Narker and Another, 1975 (1) SA 583 (AD) at
p. 585C.”

[92] There are no suggestions made
that the Court a quo erred or over emphasized one of the
factors to be taken into account when considering sentence.

[93] The argument that the Court a
quo failed to take accused’s personal circumstances into
account and that the sentences are neither rehabilitative nor
reformatory were say so without any basis and nothing more need to be
said about that argument.

[94] In my opinion the sentences fit
the crimes and perhaps slightly lenient compared to other sentences
on similar crimes. The learned trial Judge referred to various other
cases on robbery charges and went on to say.

“(51)
In the interests of consistency, I bear in mind the sentences passed
by Maritz, J (as he then was) in S
v Willem Swartz and Others
…, although that case is distinguishable in certain respects,
for instance, the N$4.5 million which had been the subject of the
robbery, was recovered whereas, in casu,
only the sum of just over a million Namibian dollars was recovered.”

[95] The Judge continued to say:

“In
my sentencing the accused, I am mindful of their respective
blameworthiness, their personal circumstances as well as the time
they have spent in custody awaiting the disposal of this case.”

[96] Some of the accused rely on the
Swartz matter above, but the learned Judge articulated the
distinction in that case and this case and he is on point. In this
case the amount of the money robbed and the amount not recovered are
much bigger, Kapira Gerhard Thihuro was injured and the two vehicles
suffered severe damage. The tools, the canopy and number plates of
the Nissan pick-up were never recovered. In actual fact in the Swartz
matter, Maritz J (as he then was) made the point that had any of the
victims been shot, killed or wounded, the sentences would have been
much heavier. Perhaps it is necessary to make reference to the
relevant part of that judgment on sentence, which reads as follows:

“Considering
the crimes themselves: it is clear from my findings on the merits
that the commission of the robbery was carefully planned over a
period of time; a number of preparatory steps were taken prior to the
robbery; the conspirators acted as a group to achieve the fulfilment
of their illegal objective; Accused No. 1 assisted in the robbery
notwithstanding the duty of trust owed by him to his employer;
Accused Nos. 2, 6 and 8 came from South Africa with the intent to
commit the robbery here; Accused No.2 was a police officer, albeit in
the South African Police, when he committed the crimes; the
conspirators armed themselves with handguns and a machine gun to
subject and subdue their victims; notwithstanding their victims
submitting to their threats, they assaulted the pilot with the
assault rifle without any apparent cause; they robbed N$4, 5 million
and in addition a handgun and certain radios. These are mostly
aggravating circumstances. An important mitigating factor, which has
weighed heavily with me, was that no person was shot at, killed or
wounded during the robbery. Had any of the accused exhibited conduct
of that nature, the sentence imposed would have been a much heavier
one. Another mitigating factor is that all the money and other stolen
items were recovered-mainly as a result of the speedy action taken by
the police and the extensive search conducted by its members.”

[97] As the trial Judge correctly
pointed out this case has many similarities to the Swartz
matter. Given the short periods that Accused No’s. 1, 10 and 11
resided in Namibia before the crimes in question were committed, it
is difficult not to conclude that Accused No’s. 1 and 11 left
South Africa with the intention to commit a robbery or any other
crime financially beneficial in Namibia. That fact alone is far too
aggravating, a stranger who abuses the hospitality of the people of
this country by committing crimes after being granted entry to stay
would, depending on the seriousness of the crime he or she has been
convicted of, be punished severely. Accused No. 2 cut the hand that
fed him by, as is apparent from the circumstances of this case,
supplying the inside information and facilitating the execution of
the second robbery. That alone is far too aggravating. Accused No’s.
3 and 9 are Namibians who facilitated the execution of the crimes.
Accused No. 3 whose fingerprints were lifted from the Nissan pick-up,
in common purpose, participated in robbing the Nissan pick-up to be
used as a conduit to effect the second robbery. Accused No. 9 turned
the house he was renting for criminal activities and participated in
transporting part of the loot to South Africa.

[98] In the particular circumstances,
I cannot say that the sentences meted out were not tempered with
mercy but regrettably though, without any misdirections identified, I
am constrained to find that the appeals should be dismissed.

[99] Therefore it is ordered that the
appeals against convictions and sentences are dismissed.

__________________

MAINGA JA

I agree.

__________________

SHIVUTE CJ

I also agree.

__________________

MARITZ JA