Jackson and Another v S (SA 10/2015) [2017] NASC 2 (13 February 2017);


Full judgment


CASE NO: SA 10/2015



In the matter between:



First Appellant


Second Appellant







Heard: 19 October 2016

Delivered: 13 February 2017




MAINGA JA (HOFF JA and CHOMBA AJA concurring):

  1. This appeal is against the convictions and sentences. The appellants were arraigned in the High Court, Windhoek, as accused no’s 1 and 3 (together with a certain Kaveto Pontianus Kwandu, accused no 2 who did not petition the Chief Justice for leave) on the following counts.


  1. Murder


  1. Robbery with aggravating circumstances


  1. Theft


  1. Defeating or obstructing or attempting to defeat or obstruct the course of justice.


  1. All three were convicted on counts 1, 2 and 4. The appellants were on count 1 sentenced to 28 and 30 years respectively, on count 2, they were sentenced to 15 years imprisonment each of which 5 years was ordered to run concurrently with the sentences imposed on count 1; on count 4 they were sentenced to 2 years imprisonment each and no appeal lies against the convictions or sentences on count 4.


  1. Their appeals against their convictions on counts 1 and 2 and sentences in the High Court were refused. This present appeal is with leave of this court.


  1. I shall refer to the appellants individually as accused no’s 1 and 3 respectively. Kwandu as accused no 2.


  1. The crimes were committed on or about 18 and 19 April 2010 in the following circumstances. During the night of 18 to 19 April 2010 accused no’s 1 and 3 approached the deceased a taxi driver and asked him to take them to Hage Geingob Stadium (the stadium). Accused no 3 paid the taxi fare. Accused no’s 1 and 3 knew each other prior to this incident.


  1. Accused no 1 is the son of the owner of the security company that was engaged to guard the stadium. Accused no’s 1 and 2 were employed as security guards in that company. Accused no 1 was not on duty on the night of the incident. Accused no 2 together with a state witness one Mateus Nghilifavali Nambahu, were on duty at the stadium.


  1. When accused no’s 1, 3 and the deceased arrived at the stadium, accused no 2 opened the gate for them. The vehicle was driven up to the pitch of the stadium. The deceased was shot and killed at the stadium while he was seated in the driver’s seat. He died of a gunshot to the chest. The three accused and Nambahu were the persons present at the stadium when the deceased was killed.


  1. The weapon that was used to kill the deceased was a service firearm belonging to the security company that had been issued earlier on to accused no 2 for the period he was on duty.


  1. After the deceased was killed, accused no’s 2 and 3 in the presence of accused no 1 loaded the deceased’s body in the boot of the vehicle deceased had been driving. Accused no 1 drove the motor vehicle. Accused no’s 2 and 3 were passengers. They took the deceased’s body and dumped it off a gravel road in Rocky Crest. Accused no’s 2 and 3 off-loaded and dumped the body whilst accused no 1 was waiting in the car.


  1. After the three had dumped the body, accused no’s 1 and 3 dropped accused no 2 off at the stadium where he was still on duty. Accused no 2 returned with the murder weapon to his work place. Accused no 2 made false entries in the occurrence book kept at the stadium to the effect that nothing of significance had happened whilst he was on duty and that everything was in order. He also recorded that the shotgun (murder weapon) and the three bullets (handed to him at the start of his shift) had all been accounted for.


  1. After accused no’s 1 and 3 had dropped off accused no 2 they proceeded with the deceased’s vehicle to Katurura. At the Golgota suburb at the corner of Cladius Kandovazu and Hawai streets they abandoned the vehicle when it ran out of petrol. Accused no 1 took the deceased’s cellphone. They removed the CD player and sold it to state witness Petrus Dumeni. The cellphone was recovered from accused no 1 and the CD player was recovered from Dumeni. The deceased body was recovered by the police from where it was dumped. The body was pointed out by accused no 1.


  1. The circumstances under which deceased was killed lack adequate clarity. It is not clear as to why he was killed and who fired the shot that killed him. The state could not lead that evidence as the only persons at the stadium at the time deceased met his death were the three accused persons and state witness Nambahu. Nambahu was in the guardroom, he did not witness the assailant of the deceased, he did not even hear the shot that killed the deceased. His evidence as summarised by the trial court is as follows:


‘[32] Matheus Nambahu testified that on 18 April 2010 at around midnight he heard a vehicle hooting at the gate whilst he was on duty with accused 2. Accused 2 went to open the gate. The vehicle drove to the side of the stadium. Accused 1 came to the guard room where the witness was. He took a firearm and told him to sleep. Accused 1 and accused 2 followed the vehicle. After a while the vehicle came back. The witness went out of the guard room. Accused 1 was driving the vehicle. There was a man whom he did not know sitting next to accused 1. Accused 2 was at the back seat. All the occupants of the vehicle left the stadium. After sometime but before the sun rose accused 2 came back alone. The witness asked accused 2 where he was and accused 2 told him that they went to search for their alcohol.


[33] The witness testified that when he was on duty with accused 2 they had one shot gun and three bullets. Two bullets were on the table and one bullet was in the chamber. He saw the bullet in the chamber when accused 2 opened the firearm. When accused 1 came to fetch the firearm he also took the two bullets that were on the table. However, when accused 2 brought the gun back, the witness did not see the bullets again. Before the witness and accused 2 knocked off on 19 April 2010, accused 2 made entries in the Occurrence Book that they had left the place in order and that they had left one gun three bullets. He further stated that at all material times, he was in the guard room when the taxi came at the gate until it entered the stadium. He did not see where the taxi was parked. The witness only went outside the guard room when the taxi was leaving the stadium.


[34] During cross examination Mr Brockerhoff put it to the witness that the reason why he indicated that accused 1 came to fetch that firearm was because he wanted to revenge against accused 1’s father because he had fired him without reason. The witness responded that it was not revenge and that he told what he saw. Counsel for accused 1 asked the witness what accused 1 was wearing. The witness said that accused 1 was wearing a short.


[35] Mr Uirab asked the witness whether he went to see the vehicle when it drove in and whether he heard a gunshot. The witness replied that he did not go to the vehicle when it drove in and that he did not hear a gun shot. He was asked whether someone who is at the guard room would be able to hear a gun shot fired from the field of play in the stadium. The witness answered that one would be able to hear it. It was then put to him that the reason why he did not hear the gunshot was because he was sleeping. The witness responded that at that stage he was not asleep.’


  1. Accused no’s 1 and 3 blame the death of the deceased on accused no 2. Accused no 2 blames the death on accused no 1 and 3. Accused no 1 made a confession/admission before a magistrate and stated that he and accused no 3 had gone to the stadium to collect his jacket. When they arrived at the stadium he and accused no 3 disembarked from the vehicle leaving the deceased in the vehicle. While he and accused no 3 were on their way to fetch the jacket he heard a gunshot. They both turned around and proceeded to where the gunshot emanated from. While on the way, a colleague of his who happens to be accused no 2 came from the opposite direction. When he came to accused no 2 he asked him as to what was going on. Accused no 2 said he shot the driver. He thought he was joking. All the three accused walked up to the vehicle. He could see blood on the chest and stomach of the deceased. Accused no 2 opened the door and the body of the deceased fell out of the vehicle but the legs remained in the vehicle. It was at that point he enquired what they were going to do with the body. Accused no 2 said they should carry him and put him somewhere. The rest of accused no 1’s version is consistent with the version proved by the state; except that he stated that he forgot to fetch the jacket because he was in shock. He confirms that Nambahu did not see what happened, which fact was confirmed by accused no 2 when accused no 1 enquired from him.


  1. In his evidence-in-chief the purpose of going to the stadium changed to going to steal the liquor from a storeroom there. In this regard his evidence was that when he met accused no 3 they went to one Mandla’s house where he did business with Mandla. He informed Mandla about the intention to steal liquor and they agreed that he would sell the liquor to him if the theft is executed. He and accused no 3 walked to Soweto Market where they took a taxi. They also informed the taxi driver (deceased) of their purpose of going to the stadium. Accused no 3 paid the taxi fare. At the stadium he and accused no 3 alighted from the taxi leaving the driver (deceased) in the vehicle. He informed accused no 2 that they came to steal some goods; he should pay attention to his colleague who was on duty with him. He and accused no 3 went upstairs/pavilion where the offices are. He was busy unlocking the one room where the liquor was stored when he heard a sound which was like a gunshot. He continued attempting to unlock the door. When he failed, they went down with the intention to ask accused no 2 for an iron bar. He saw accused no 2 at the right rear door of the vehicle. As he came close to him, accused no 2 said he shot the man (deceased). Accused no 2 asked accused no 3 to help him load the deceased in the vehicle. After they had loaded the body accused no 2 asked accused no 1 to drive the vehicle. He told accused no 2 that he was drunk, he should rather ask accused no 3 to drive. Accused no 3 said he could not drive, he (accused no 1) then drove the vehicle.


  1. Accused no 3 purported to corroborate accused no 1’s version of why they went to the stadium, where the vehicle stopped on the pitch, how he and accused no 1 proceeded to the pavilion and the place where they had to steal the liquor. Contrary to what accused no 1 said about trying to unlock the door accused no 2 testified that accused no 1 touched or tampered with the door. He confirmed that they returned the way they came up to the pavilion. He was walking behind accused no 1. He confirmed seeing accused no 1 standing outside the right rear door and he heard accused no 2 telling accused no 1 that he had shot the man. He testified that by the time he came around to the right hand side of the vehicle – the deceased was on the ground. He further testified that accused no 2 had the firearm with him.


  1. Except for opening the gate for accused no’s 1 and 3 and the deceased, accused no 2 disputes the versions of accused no’s 1 and 3. He opened the gate for them. But before that he enquired what they were looking for. Accused no 1 said he had come to fetch his jacket. When he opened the gate for them he remained at the gate thinking that they were coming back soon. When they did not return he closed the gate and went to the toilet. While in the toilet he heard voices of people he thought were going to the guardroom. Shortly thereafter he heard a gunshot. When he came out of the toilet he proceeded to where accused no 1 and 3 were. Accused no 1 had a firearm. He enquired as to what was going on but he did not receive a satisfactory answer. He enquired again as to what happened. Accused no 1 told him, ‘we shot the driver’. He enquired why they shot him but he was told to keep quiet. As the vehicle had stopped where it was a little bit dark, he later saw the deceased on the ground. He was told to pick up the deceased. He got scared, he and accused no 3 picked up the body and placed it in the boot. Accused no’s 1 and 3 spoke in their mother tongue which he could not understand. Thereafter accused no 1 placed the firearm in the back seat, he got into the driver’s seat, accused no 3 also got into the vehicle and he was told to get into the vehicle. The vehicle could not start, accused no 3 alighted, opened the bonnet, closed it and got into the vehicle and it started. They drove to the gate. Nambahu opened the gate and they drove out. After they had dumped the body, when they reached the tarred road, accused no 1 stopped the vehicle, accused no 3 alighted from the vehicle and removed the number plates and brought them into the vehicle. They dropped accused no 2 outside his workplace and he was told not to tell anyone about what had happened. Because he was told not to tell anyone, when he knocked off in the morning he recorded false information in the occurrence book at work that nothing happened at work. In the evening when he returned at work, accused no 1 was also on duty and he enquired whether his father did not ask or tell accused no 2 anything and whether he did not ask about the missing bullet, to which he said he did not. Accused no 1 told him to keep quiet and that he had brought another bullet. He denied telling Sergeant Alfonso that he got the fourth bullet from Dumba. He denied informing accused no 1 that he shot the deceased and that it was an accident.


  1. The investigating officer Sergeant Joao Alfonso testified, amongst other things, that when accused no 1 was arrested, he recovered the deceased’s cellphone from him. Accused no 1 told him that he bought the cellphone from an unknown Oshiwambo speaking man at a price of N$50.00. Accused no 1 was taken to the police station for questioning. While he was interrogating the accused, he noticed blood stains on his clothes. The bloodstains were on his sports shoes, t-shirt and shorts. Sergeant Alfonso enquired how the bloodstain came on accused’s clothes and he said that he had a blister on his buttocks. When accused no 3 was arrested, he, amongst other things, informed Sergeant Alfonso that when he, accused no 1 and the deceased arrived at the stadium, accused no 1 informed accused no 2 who opened the gate for them that he had forgotten his jacket. On a question in cross-examination by counsel for accused no 3 he denied being informed that accused no’s 1 and 3 went to the stadium to steal alcohol. He reiterated that he was told that they went to pick up a jacket.


  1. The attack on the merits of the convictions is founded on the contention that the trial court, erred on various issues in its determination of the guilt of the accused.


  1. I turn to deal with the issues/grounds upon which reliance was placed.


  1. It was urged by both counsel that the trial court erred when it disregarded the evidence adduced during the bail proceedings. The evidence the trial court allegedly disregarded is the failure of accused no 2 to cross-examine accused no 1 on the evidence he adduced that it was accused no 2 who shot and killed the deceased, but he cross-examined accused no 3. The contention is without merit. Accused no 2 was unrepresented at the bail application. Firstly, the sentence, counsel for accused no 1 relies on, on page 55 of the record is incomplete and we do not know what accused no 2 said further. ‘The sentence reads: “To all what the accused person testified it is correct that what he had been (indistinct).” Secondly, it is very clear from the bail proceedings that accused no 2 declined to go into the merits of the crimes at that stage and it was his right to do so, especially that he was unrepresented.’ On page 81 of the record the public prosecutor Mr Nsundano pertinently put the following questions to him:


Q: ‘So, you agree with the evidence the state has so far that your murdered the deceased in this matter, Mr Alfonso Ndidjutua asked?


A: I do not want to answer those questions. I want to answer them when I am on trial.


Q: On the same night, the 18th of April, applicant no 1 and applicant no 3 approached the place where you were guarding, being the Hage Gaingob Rugby Stadium?


A: Your worship, I will answer that question on my trial.’


  1. The second question was rephrased and before accused no 2 could reply the court intervened and said, ‘the accused has indicated to the state that that particular question he will answer at his trial. Hence the state can proceed with any other question.’ Thirdly, the court or the learned magistrate warned accused no 2 against self-incrimination and he said, ‘but I do not have anything to say.’ He further said ‘the only thing that I can say is that as far as I am concerned I am allowed to get or to be granted bail, I will not cause any trouble to the society nor will I cause frustration to the state. And I will adhere to everything that will be expected.’ Fourthly accused no 2 cross-examined accused no 3 on his evidence of loading in and off-loading the deceased from the boot, giving directions where they had to drive to, instructing accused no 1 not to tell anyone, whether accused no’s 1 and 3 were scared when they took out the CD player from the vehicle.


  1. On the same point above it was contended that the trial court committed a gross misdirection when it refused to subpoena the learned magistrate who heard the bail application in terms of s 186 of the Criminal Procedure Act 51 of 1977; to fill the gap in the inaudible sentence above or testify to the effect that accused no 2 admitted killing the deceased. The simple answer to the contention is that given what I said above, it was pointless for the trial court to do so. Accused no 2 was entitled to remain silent and his silence could and cannot be interpreted to mean confession to the murder.


  1. It was contended that the trial court erred in not applying the cautionary rule in terms of s 208 of Act 51 of 1977 when it dealt with evidence of a single witness Matheus Nambahu. That the court relied heavily on the version of Nambahu, which was riddled with so many inconsistencies and contradictions that the court could not have found him to be a credible and reliable witness. Counsel for accused no 1 records about 14 perceived inconsistencies in the evidence of Nambahu.


  1. Section 208 provides:


‘An accused may be convicted of any offence on the single evidence of any competent witness.’


Section 208 speaks for itself. The contention is partially irrelevant for the reason that the trial court may have relied heavily on the evidence of Nambahu to convict accused no 1 but most certainly the learned judge did not convict accused no 1 on the evidence of Nambahu only but on accused no 1’s own lies, the evidence of the investigating officer, that of his co-accused and generally his degree of participation in the crimes. The so-called inconsistencies counsel for accused no 1 relies on to discredit the evidence of Nambahu are irrelevant to the evidence of Nambahu which implicates or which tends to show the possibility that accused no 1 fired the shot which killed the deceased. Nambahu testified that he saw accused no 1 collecting the shotgun which turned out to be the murder weapon from the guardroom. When his observation was tested as to whether he saw accused no 1, he identified accused no 1 wearing shorts that night. The evidence of the wearing of the shorts is not disputed but it is argued that the pair of shorts was worn underneath the long pants. That evidence is also corroborated by Sergeant Alfonso and the pair of shorts actually had bloodstains. Sergeant Alfonso testified that while he interrogated accused no 1 he noticed bloodstains on his clothes and that the stains were on his sports shoes, t-shirt and shorts. It was suggested by counsel for accused no 3 that Nambahu could have seen the shorts at the time when he opened the gate for the three accused persons as they left the stadium. The submission is speculation and it is improbable that he would have seen the pair of shorts while accused no 1 was seated in the vehicle. The inconsistencies counsel for accused no 1 relies on to discredit the evidence of Nambahu as I have already said, are irrelevant. For example, whether Nambahu could not initially recognise accused no 2 in the dock and later recognised him by his name, does not detract from the fact that he saw accused no 1 in the guardroom in shorts when he collected the firearm. The authority correctly expounded in S v Mthetwa 1972 (3) SA 766(A) at 768 on the fallibility of human observation in identifications finds no application in this case, in fact, it did not arise. Nambahu saw accused no 1 in the guardroom and knew him before.


  1. It was further urged that the trial court erred when it rejected accused no 1’s version that he and accused no 3 went to the stadium to steal alcohol as accused no 1’s version was corroborated by witness Nambahu and accused no 3 and that it was not placed in dispute by accused no 2 during the bail application. In as far as accused no 2 is concerned what I have stated above is also applicable here. Accused no 2 disputed accused no’s 1 and 3’s versions during the trial that they had gone to the stadium to steal liquor. He testified that accused no 1 told him that he came to fetch his jacket which version accused no 2 told Sergeant Alfonso. This is what accused no 1 told the magistrate in his so-called confession or admission. Sergeant Alfonso upon questions from counsel for both accused no’s 1 and 3 denied being told that accused no’s 1 and 3 had gone to the stadium to steal liquor. All three accused especially accused no 1 lied so much to exculpate himself or themselves. Accused no 1 lied about where he got the deceased’s cellphone, why his shorts had bloodstains, accused no’s 1 and 3 lied about why they removed the CD player from the vehicle or their version on that score is so incredible as to defy rational belief. They had abandoned the vehicle leaving its windows open and they threw away the ignition key. They both deny removing the number plates when there is overwhelming evidence, the number plates could only have been removed by them.


They testified that they were in the building attempting to steal liquor when they heard a shot. They returned to the vehicle and found accused no 2 had killed the deceased. They had no keys to the room that stored the liquor and they had no implements of breaking into the premises. Accused no 1’s evidence is that he tried to unlock the door. Accused no 3 testified that he touched or tampered with the door. When he failed to open the door they went down with the intention to ask for an iron bar from accused no 2. It is improbable that accused no 2 would have agreed for a theft to be committed in the building during his shift. In my opinion the version was correctly rejected. The fact that, that was the version they presented at the bail application and repeated at the trial, does not make them credible witnesses or consistent in their versions, it is possible it was a deliberate concoction of falsehoods which falls to be rejected. Nambahu did not corroborate accused no’s 1 and 3 on the version of stealing liquor. In his evidence-in-chief he testified that, ‘and when he came I asked him where he was or where he were. And he said they went to search for their alcohol, or liquor.’ The Public Prosecutor in her examination repeated that version of Nambahu as follows: ‘you also said that accused no 2 told you that he was looking for alcohol, did he say who was looking for alcohol?’ Nambahu’s reply was that, ‘no, I asked him, where have you been, or where were you, and he said, we went to search “for our alcohol”.


The replies of Nambahu relate to when the three accused persons left the stadium. His replies have nothing to do with looking for alcohol in the stadium.


  1. Accused no 1’s version that accused no 2 told him that he shot and killed the deceased by accident, makes no sense given the closeness from which the shot was fired. Besides saying it was an accident, nothing else is said how the accident could have happened. The assertion of the accident is inconsistent with the location of the wound in the middle of the chest. The evidence by Dr Kabanje is that he was shot from the front to the back. To have sustained that wound the deceased must have faced the right front door of the vehicle assuming accused no 2 who allegedly caused the accident was standing outside the right front door. The murder weapon being a shot-gun on accused no 2 would have been pointed directly in the chest of the deceased. That scenario is improbable and the possibility is that deceased was deliberately shot and killed. Dr Kabanje who read out the medical report in the absence of Dr Rafael Rey testified that deceased was shot from an angle which he demonstrated but not explained. Dr Rafael Rey in the additional observation indicated that the right posterior hand and left anterior injuries were possibly defense mechanism, an indication that the deceased was murdered. William Nambahu of the Forensic Science Institute testified that the murder weapon was in a good working condition and a definite pressure had to be applied to the trigger in order to discharge the ammunition in the chamber. The evidence that the death of the deceased was caused accidentally was correctly rejected.


  1. It was urged that the court erred in finding the accused persons guilty on the basis of the doctrine of common purpose. The trial court accepted the evidence of Nambahu that accused no 1 took the murder weapon from the guardroom, it rejected the versions of accused no’s 1 and 3 that they went to the stadium to steal liquor and that they were in the building when the deceased was killed. It also rejected the evidence of accused no 2 that he was in the toilet when the deceased was killed. Basically, the trial court found that all three lied on the circumstances that led to the death of the deceased. Reasoning by inference it found that all three accused were present when deceased was murdered. As a result it found that the crimes were committed pursuant to a common purpose. Not only did the trial court reject the accused’s versions at the stadium but considered their conduct and events after the death of the deceased. Accused no 1 must have uttered the following words: what do we do with the deceased. Subsequent to that utterance, a decision was made to dispose of the body which all three voluntarily did. Accused no 2 was dropped at the stadium where he was still on duty and the other two took off with the vehicle, and abandoned it when it ran out of petrol. That was not all, accused no 1 took for himself the cellphone of the deceased and subsequently he was connected with his simcard in operation. They further ripped off the CD player which they sold and shared the proceeds. It is this conduct which attracted the offence and conviction of robbery with aggravating circumstances.


  1. It is contended that the trial court should have convicted both accused 1 and 3 of murder, as accessories after the fact and theft but not murder directus and robbery with aggravating circumstances.


  1. There is, in my judgment, no merit in the attack launched against the trial court’s essential findings of fact and the subsequent convictions.


‘In my opinion, there is no obligation upon the Crown to close every avenue of escape which maybe said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.’


See R v Mlambo 1957 (4) SA 727 (AD) at 738A. (See also S v Rama 1966 (2) SA 395 (AD) at 401, S v Van Wyk 1993 NR 426 (HC) at 438G-439A).


  1. The question which arises for determination is whether the convictions which were returned were justified by the body of evidence. In my opinion the evidence adduced does and I have no reason to interfere with the findings of fact of the court below. That the deceased was killed is not in dispute. The only persons present when he was murdered were the accused persons. They were the only persons able to give the circumstances under which he died but they chose to give explanations which were rejected as false, then the court reasoning by inference found that the accused murdered the deceased and that they actively collaborated with each other to commit the offences in question pursuant to the existence between them of a common purpose.


  1. The robbery convictions arose necessarily from the assault on the deceased which resulted in his death and the removal of his property. Robbery consists in the theft of property by intentionally using violence or threats of violence to induce submission to its taking J R L Milton, South African Criminal Law and Procedure, Vol II 3rd ed. at 642.


  1. Where the violence used to obtain the property, like in this case, causes the victim to die, the accused were correctly convicted of murder and robbery. See Milton above, at 644. My apprehension of whether robbery was committed was with accused no 2. He was dropped off at the stadium and accused no’s 1 and 3 took off with the vehicle, which was later abandoned but they took the cellphone and CD player. But after due consideration, accused no 2 was the person on duty at the stadium who made false entries in the occurrence book at work and failed to report the crimes. The physical acts of accused no’s 1 and 3 after he was dropped, as a matter of law, is to be ascribed to him.


  1. In sum then, the position in regard to the appeals on the merits of the conviction is that the appeals should fail.


  1. I turn to the question of sentence. The sentences are consistent with other sentences imposed in the High Court on similar offences. Contentions to the contrary are without merit.


  1. In the result, I make the following order.


  1. The appeal against convictions and sentences are dismissed.






































First Appellant:



T P Brockerhoff


Instructed by the Director Legal Aid


Second Appellant:





B M Uirab

Instructed by the Director Legal Aid


E N Ndlovu


For the State