REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
CASE NO: CC 43/2009
In the matter between:
SALMON VICTOR NAKALE
Nakale v State (CC 43/2009)  NAHCMD 331 (13 November
Heard on: 21
Delivered on: 13
for leave to appeal against the conviction on double murder and the
sentence imposed thereon. Requirement – appellant must satisfy
the courts that were leave to be granted there are reasonable
prospects of success on appeal.
was convicted on two counts of murder (dolus directus) and given
consecutive running sentences of 30 years on the first count where a
domestic relationship existed and 20 years on the second count
Held: The evidence of the
appellant during cross-examination was that he loaded, cocked the
pistol and put the safety pin on the firing position then stuck the
arm on his waist before he went to the scene of crime (the residence
of the two women). The ballistic expert findings were that the
deceased were separately killed by distance gun shots. The street
bystanders testified they heard how Lucia shouted amid gunshots
pleading with the appellant to stop shooting. The final conduct of
the appellant exiting the scene with the fatally injured looking
Lucia behind him who went down in desperate need of urgent medical
attention – the appellant just looked at her, stuck the pistol
on his waist, got into his car and drove away.
Held: The inferential
evidence is solid such that I am not satisfied there are reasonable
prospects of success in showing that the conviction and sentence were
vitiated by the misdirection contended by the appellant’s
Held: The application for
leave to appeal is accordingly dismissed.
Application for leave to
appeal is dismissed.
 This is an
application for leave to appeal against conviction on the double
murder (dolus directus) and the sentence of 30 years on the first
count and 20 years on the second count.
 At the hearing of the
appeal Mr Titus Ipumbu appeared for the appellant and Ms Verhoef on
behalf of the Prosecutor-General. The court appreciates their
valuable contribution in this regard.
 In his main heads of
argument the applicant raised issues where the court in his view
erred and misdirected itself regarding the conviction and sentence.
The grounds are as follows:
Court misdirected itself in fact and/or law by:
3.1 Admitting evidence of
Paul Links that he saw the appellant going into the yard of Rebecca’s
shebeen (p.25 Judgment) while, in fact, during cross-examination,
Paul Links testified that he did not know whether the Appellant came
together with deceased Rebecca. (page 207, Line 18-21 of the Record).
3.2 Admitting or
believing the evidence of State witness Michael Kooper who, in
certain respects, during the trial had tendered perju rious
testimony. (p. 106-107 of the Record).
3.3 Relying on the
evidence of State witness Hans Gaoseb – which was changed
persistently- that the latter saw deceased Rebecca hanging clothes on
the fence before the arrival of the appellant.
uncorroborated evidence of Sheyavali Haimbodi to the effect that his
wife Haimbondi developed hypertension (para 13.1 of the Judgment)
without any medical proof which shows the etiology (cause) and the
time period when the alleged ailment developed.
uncorroborated evidence that the Appellant injured deceased Rebecca
and the latter was hospitalized (para 13.2 of Judgment).
uncorroborated evidence of Sheyavali Haimbodi that his wife casually
related the accused’s threat about killing Rebecca to a police
officer after the Church service, (para 13.2) of the Ruling.
3.7 Arriving at a
conclusion, which is not supported by any scientific evidence, that
“the bullet similarly penetrated and made a hole through the
curtain and the corrugated iron zinc behind it. (para 15.3 of the
4. The Honourable Court
erred in finding that:
4.1 The Appellant washed
his hands after that shooting while, in fact there was no
evidence led to that effect (page 490 of the Record).
4.2 Holes A and B nice
round were made by projections from inside to outside. (para 16.12 of
5. The Honourable Court
erred in admitting contradicting evidence of the ballistic expert
witness Mr. Nambahu that the entrance wounds (on Lucia Ndahambelela)
did not have gunshot residue (para 16.7) while the same expert
testified that the gunshot residue could not be analyzed because they
do not have an electronic microscope.
6. The Honourable Court
erred in admitting the expert opinion of Mr. Nambahu which reads:
‘H2’ is at a high level that point ‘L’ where
Rebecca is alleged to have been sitting it could be that she may have
made a move when the shooting started making it possible for the
bullet to exit her body and go through the corrugated iron zinc at
point ‘H2’, while
is no parallel medical evidence to show”.
7. The Honourable Court
admitted contradicting evidence whereby the Scene of Crime Officer
Constable Goraseb testified and the Court summarized such testimony
stated that from his observations at the scene it looked like Rebecca
tried to run out of her room after she was shot, and fell at the
door: (para. 15.12 of the Ruling, while,
Rebecca was struck for the very first time she could not have further
engaged herself in a struggle with the accused for possession of the
firearm, because that first bullet put her off.”
8. The Honourable Court
erred in admitting the evidence of a ballistic expert that bullet 1
(which particulars) destroyed deceased Rebecca’s trachea and
lodge at the right anterior triangle) was lethal, while, Dr.
Kandenge (pathologist) conceded that a person who sustained that
injury if he or she receives medical attention within an hour or two,
he or she may survive, page 68, (line 6-9 of the Record).
9. The Honourable Court
misdirected in admitting uncorroborated evidence of Aili Kaulinge
(para. 17 of the Judgment) that deceased Rebecca was, at one stage,
stabbed in the back, assaulted with a butt of the pistol and became
swollen, was taken to the hospital, that all her history was written
in her hospital passport and that a case was opened and later
10. The Honourable Court
misdirected itself in fact in finding that:
10.1 When the Appellant
testified that: “I believe it fell from the deceased,
Rebecca’s hands and then she left the gun and the gun fell
there”, the appellant pretends as if he himself never held
the gun together with Rebecca. (para 18.7 of the Judgment).
10.2 The Appellant
testified that both deceased Rebecca and Lucia Ndahambelela were
struck by one bullet, contrary to the post mortem examination
11. The Honourable Court
misdirected itself in fact and/or law in placing much weight to the
version of the Appellant during Section 119 proceedings in relation
to the alleged number of shots and disallowing the evidence of the
Appellant during the trial that he heard shots.
12. The Honourable Court
misdirected itself in fact and/or law in disallowing uncontested
evidence of the Appellant to the effect that deceased Lucia
Ndahembelela uttered the following words: “your people have
13. The Honourable Court
misdirected itself in fact and/or law in finding that the Appellant
said that deceased Rebecca pulled the trigger on herself and also
14. The Honourable Court
misdirected itself in fact and/or law in finding that the Appellant’s
plea explanation on page 3 of the record, which reads:
“when the two,
that is now the accused and the deceased (Rebecca) arrived
at the house
deceased (Rebecca) they found the other deceased.”
States that Rebecca and
the Appellant entered the scene of the crime together.
15. The Honourable Court
misdirected itself in fact by drawing an inference based on the usage
of purportedly wrong words “turn or returned, turn” to
find that the appellant picked up his gun twice at the same time.
16. The Honourable Court
misdirected itself in fact and/or law in finding that the pistol’s
ejection port was obstructed by the accused’s own hand.
Therefore, the pistol could not perform its normal functions as a
result, it was only able to shoot one bullet and a jam should have
17. The Honourable Court
misdirected itself in fact and/or law by taking into account the fact
that if the Appellant and deceased Rebecca were struggling for
possession of a gun and same fired shots, the latter, undoubtedly,
inflicts distant gunshot wounds.
18. The Honourable Court
admitted unsubstantiated evidence by the ballistic expert that if the
accused covered the ejection port when the shot went off, he was
supposed to get injured on the palm of his hand, (para 18.32 of the
19. The Honourable Court
misdirected itself in law and/or fact by admitting the evidence of
the ballistic expert in relation to the shooting, which is plain
conjucture while, such ballistic expert testified candidly that the
angles are very difficult to interpret and he cannot explain what
happened. (page 361 of the Record).
20. The Honourable Court
misdirected itself in fact and/or law by admitting unsubstantiated
evidence of the ballistic expert that if the deceased Rebecca’s
hand in which (sic) she held the pistol was twisted during the
alleged struggle so that the muzzle faced her body and she pulled the
trigger, then close or contact entrance wounds would have been
inflicted on her instead of distant entrance wounds she has
21. The Honourable Court
disallowed uncontested evidence tendered by the appellant that
deceased Rebecca visited him (appellant) twice; to wit: at 08h00 a.m
and between 16h00 and 17h00.
22. The Honourable Court
misdirected itself in law by making a conclusion that the accused’s
assertions that the shots that fatally injured the two deceased
persons went off by accident is not supported by the evidence placed
before this Court (para. 25 of the Judgment). This conclusion,
unfortunately, is inclined to shift the burden of proof to the
23. The Honourable Court
respectfully relied on ‘circumstantial evidence’ while,
indeed, the facts from which the Court drew inferences do not amount
to or qualify as circumstantial evidence.
AD THE SENTENCE
24. The Honourable Court
erred in over-emphasizing the seriousness of the offence and the
deterrent effect of the sentence, and, in doing so, the Court ignored
the following mitigating circumstances of the appellant, that:
23.1 the appellant is a
23.2 the appellant is a
father of six (6) minor children and the latter depended heavily on
him before his incarceration.
25. The Honourable Court
failed to take into account that or take into account adequately that
the appellant had shown grave remorse during and after the trial.
26. The Honourable Court
failed to take into account or take into account adequately that the
appellant was ordered by Oukwanyama Traditional Authority to pay
twenty four (24) head of cattle as compensation for the death of the
deceased Rebecca and Lucia. Until to-date, only nine head of cattle
27. The sentence in
respect of Count 1 and 2 is shockingly severe and no reasonable Court
would have imposed it.”
 The incident took
place in an indoor setting where there were no direct witnesses
regarding what happened apart from the appellant himself, the
ballistic expert, two street bystanders and others. The ballistic
expert’s evidence was that the deceased were each killed by
distance gun shots.
 The applicant
testified during cross-examination that he came to the scene with a
loaded pistol whose safety pin was on the firing position. The street
bystanders saw him stopping at the residence of the two deceased,
alighting from his car alone, and walking inside the zinc shack.
Shortly thereafter gunshots went off, Lucia was heard shouting,
pleading with the applicant to stop.
 Immediately after the
gunshots the street bystanders saw the applicant exiting the zinc
house (scene of crime) followed by the fatally injured looking Lucia
who went on her knees in an obvious desperate need of urgent medical
attention. The applicant was able to rush her to hospital if he so
wished but just looked at her, stuck the pistol back on his waist,
walked to his car, got in, and drove away.
 None material
contradictions in witness’ evidence were there but these did
not affect the consistency of the body of overwhelming evidence
inferentially reasoned, pointing at the appellant as the person who
shot and killed the two deceased ladies.
 The court was
convinced beyond reasonable doubt by way of inferential reasoning
that it was the appellant who shot and killed the two deceased
ladies. All the elements of the crime of murder had been proved
beyond reasonable doubt.
 The applicant gave
various conflicting versions regarding what happened and among these
were that a struggle for possession of the pistol ensued between him
and Rebecca resulting in the shots that went off. This version was
found to be untrue. He demonstrated during the trial in court how he
held the chamber with his hand completely covering the exit port.
This was convincingly displaced by the ballistic expert who testified
that such a hold on the chamber would have resulted in a jam. In
other words, no further shots would have went off because the spent
cartridge’s exit was blocked. According to the expert as long
as a blockage was in place no fresh cartridge would come in the
chamber for another shot to be fired.
 The court duly
considered the above evidence and concluded that it was impossible
that such a story could be true and therefore rejected it as false
beyond reasonable doubt.
 In respect of
sentence it was contended that the court failed to take into account
that the applicant showed ‘grave remorse during and after the
trial’. Further that the same failure goes to the not taking
into account the twenty four (24) head of cattle paid by the
applicant as compensation on the orders of the Ounkwanyama
Traditional Authority for the death of the two ladies. This is far
from being the case.
 The above contention
is not correct, because after due consideration was given to the
mitigating and aggravating circumstances, the applicants personal
circumstances, the gravity of the offences, the interests of society,
the court concluded that the other factors outweighed the interests
of the applicant and proceeded to impose the sentence of thirty and
twenty years respectively.
 In an application of
this nature the mere possibility of another court arriving at a
different conclusion or to say the case could be fairly argued is not
enough. See S v Sikosana 1980 (4) SA 559 AD at 562 D-E; S v
Ceaser 1977 (2) SA 348 (A) at 350 F-G.
 After having
carefully considered all the grounds upon which the court’s
findings were challenged, I have come to the conclusion that the
appeal has no reasonable prospects of success, and is therefore
A M SIBOLEKA
of Legal Aid
of the Prosecutor-General, Windhoek