CASE NO. CC
07/2003

IN
THE HIGH COURT OF NAMIBIA

In the
matter between:
STATE

versus

TUHAFENI
BERENDISA KUTAMUDI CORAM: GIBSON,
J.

Heard
on: 2005.02.08,2005.02.09,2005.02.10,

2005.02.11,
2005.05.17, 2005.05.18, 2005.05.19, 2005.05.20, 2005.05. 23,
2005.05. 24, 2005.05.25, 2005.05.25, 2005. 05.27. 2005. 05. 30,
2005.06.10

Delivered
on: 2005.06.27

JUDGMENT

GIBSON,
J.:
The
accused is charged on three counts of murder. The allegation is that
on the 4^th
and 5^th
of September 2002, the accused killed Policapus Paulus, Sylvia
Ndahafa Franz and Eunice Kambwali, in that order. The alleged
killings took place sometime during the night of the 4^th
and about 7-8am on the 5^th
of September regarding the final victim Eunice Kambwali. The accused
pleaded not guilty, and save for an admission in terms of Section
220 identifying the bodies and acknowledging that the bodies did not
suffer any further injuries during transportation he made no further
statement.

The State
indicated that it wished to lead evidence of an alleged confession
made by the accused and place before the Court the Section 119 Plea
proceedings. The defence objected against the admissibility of
either documents. The ground of objection against the admission of
the confession was that the confession was not free or voluntary
having been induced by threats and assaults against the accused in
the hands of the police.

As regards
the challenge to the Section 119 proceedings the accused's objection
was on the ground that he asked for legal aid so as to be
represented by a lawyer but this was refused, thus the plea
proceedings went on without his having had a chance to consult a
lawyer.

The State
called the magistrate who took the confession, Ms Kephas. Ms Kephas
said she recognised the accused and remembered him being brought to
her office on the 5^th
of September 2002, that when he was brought, to her she warned him
about his legal rights after telling him that he was before a
magistrate, that he need not fear anything. Ms Kephas said she was
alone with the interpreter and accused, no one else. She said she
assured the accused that he must not fear any threat or further
assault or act under any promises which may have been made to him by
anybody, and that the magistrate will give him every protection to
ensure that he wasn't threatened or assaulted for what he was to
tell her. She told him of his right to legal representation, the
accused told her that he did not need one. Accused never told her he
was threatened or assaulted at any time. She then took the
confession. Ms Kephas was shown the document afterward. She
recognised the writing on it. She said the accused looked happy and
free and relaxed as he related the contents. She said he was right
in front of her and showed no signs of any assaults or injuries on
him. She was asked particularly about the accused's neck which
was said to have been swollen. She as well as the interpreter in the
proceedings said there was no swelling or injury on the neck.
Ms Hamukoto's testimony supported the evidence of the magistrate.
She said after interpreting and writing down the confession the
magistrate had signed it, and she too signed. She also confirmed
that there were no injuries on the accused, that the accused

never
complained of having been assaulted or threatened. She said she did
not hear accused asking for a lawyer, if he had she would have
remembered it.

Sergeant
Ishua told the Court that he was detailed to go and attend the scene
of crime on the 5^th
of September 2002. He got to the scene with Chief Inspector Blaauw
and met Constable Shilongo with another police officer and the
accused. They were at the gate of the homestead of the scene of
crime. Chief Inspector Blaauw approached Constable Shilongo and
spoke to him. Chief Inspector Blaauw then asked the witness to take
the accused to Oshakati to go and make a confession. He drove
alone with the accused who was sitting at the back of the truck.
There was no communication between them, and he never talked to him
at any other time. Concerning the accused's condition, he said
when the accused was asked to get into the truck he simply walked
normally and boarded the truck, without any difficulty or any help.
He said accused looked well, and free and seemed happy and relaxed,
he was quite sober. It was put to him that Constable Shilongo had
assaulted the accused. He said nobody assaulted the accused at any
time in his presence. When he got to Oshakati the accused again got
down perfectly

normally and
willingly walked to the magistrate's office with him. He said he,
the witness did not stay in the office where the magistrate took the
accused's confession. He remained outside. Afterwards he collected
the accused and took him to Ohangwena.

Constable
Shilongo the officer investigating the case said he got to the scene
of the crime from Ohangwena where he was stationed at the time. He
met the accused at the homestead of the deceased. He said accused
told him he killed the deceased and went to show him the traditional
knife he used, called omukonda. Constable Shilongo denied that he
ever assaulted the accused at any time. He said in particular he
never assaulted him when the latter was trying to find the knife.
He said the accused readily pointed out where the knife was, told
him where the clothes which he had been wearing the night before
were. He said when the accused was asked to go and make a
confession he readily agreed and never showed any signs of
reluctance. He didn't hesitate, he simply walked to the truck and
got in. Asked about any injuries on the accused and the swelling
on his neck, he said the accused had no injuries on him. He said
when he first spoke to the accused the accused

initially
denied knowing about the third body ie the old lady Ndahafa. He said
he asked him again. Accused said she may have run away, he didn't
know where she was. As time went on however the accused admitted
that he killed her as well and put the body under the bed where it
was later found.

The State
next led evidence of the Section 119 proceedings and called Ms
Hanhele, the magistrate. Mr Hanhele said she was in the magistrate's
Court and heard the Plea proceedings. When the accused came in she
advised him of his rights to be legally represented and entitlement
to apply for legal aid if he had no money. The accused told her that
he wanted legal aid. At that juncture the State applied to have the
pleas taken. The magistrate explained what was involved. The
accused then said he would proceed that day and get it all finalised
because he had no case. Ms Hanhele said she was concerned and made
sure that the accused understood fully what he was saying. She
explained the nature of the proceedings and the procedure involved,
and explained to him that this was merely an enquiry not the trial
itself. She again reminded the accused that he was entitled to
remain silent if he wished, that he didn't hav\3
to
answer questions. The charges were then put she outlined the

elements of
the offence to him. Ms Hanhele said as far as she could see there
was no difficulty in communication between the accused and the
interpreter. She too spoke the language and could follow what the
interpreter was saying and putting to the accused. She was
satisfied that the interpretation was correct and accurate. The
proforma was then produced and put in front of her. She recognised
the writing on it. She said she recalled that the accused pleaded
guilty to each of the three counts. Under cross-examination here in
Court the accused said he asked the magistrate what a lawyer does in
proceedings, when this was explained he decided he would proceed
without one because he had no case. The accused also put it to the
witness in these proceedings, that when he said he had no case and
would proceed, the magistrate and the interpreter told him that the
case was serious, that he should make sure that he understood what
he was doing.

Mr Ipakwana
the interpreter then took the stand. He said he recalled that the
accused did say that he wanted legal aid after his rights were
explained to him by the magistrate. Mr Ipakwana told the Court that
the accused did ask what a lawyer does, that the magistrate
explained to him what the role of a lawyer was in court proceedings
and, he interpreted everything to him. Mr

Ipakwana
said there was absolutely no difficulty in
communicating with the accused or in his understanding him. I have
already indicated that when the accused gave evidence in
examination-in-chief he admitted that the interpreter did in fact
tell him what the role of a lawyer was, that he did tell him that
the charges were serious, that he ought to reflect carefully. But
accused said that he had no case and would proceed, in spite of the
fact that the interpreter had again reiterated the gravity of the
charges he was facing and that there was a case against him. It was
then put to the witnesses that accused did in fact apply for legal
aid that day and, was granted legal aid. Ms Hanhele explained that
this was impossible and most unlikely because the application would
have had to be sent some 60 kilometres away to Eenhana, that takes
at least a day to get there, which means that the application would
not be considered until the following day. So it was unlikely that
the grant would have been made on the spot. The State case closed.
The accused elected to give evidence under oath after his first
lawyer withdrew on account of conflict of instructions. The accused
said he visited Ndalafa's house between 7am and 8am that day, on the
5^th
of September, he wanted just to say good morning as was usual, she
was his aunt by marriage. When he called there was no

answer so he
went in and called again. Eunice was his friend so he went into
Eunice's room and pushed open the door which wasn't locked. He saw a
curtain drawn but saw her lying down. He called her. When she did
not answer he touched her then realised she was dead. He went to
Tate Poly's house and called, there was no answer. He went round the
back of the house and saw him lying down, he realised that he too
was dead. He then went to call the neighbours, in shock. He called
on Sakarias and Shilungu. They returned with him and met another
neighbour on the way. When they got to the homestead he pointed out
the two dead bodies. A decision was made to go and report to the
police. After the report the police ordered him to return and look
after the bodies, ie guard the bodies. He was shocked and reluctant
but complied. He waited until the police arrived, three police
officers arrived.

The accused
then gave the names of the three police officers. There was some
confusion about the names. In any event Constable Shilongo said only
two police officers were there and not three. When the accused
related what happened thereafter, at first he said that the woman
constable stayed with him while the other two went to his own
homestead 500 metres away. Thereafter there followed a whole series
of confused accounts.

Later on the
accused said that the police told him they had heard about the
killing with the omukonda and asked him about the omukonda. He said
after he agreed that he had a omukonda but denied killing, the
police asked him about the old lady he said she may have gone to
fetch water. Later they went with him to his homestead to look for
the omukonda. He said when he got to his homestead and started to
look for the omukonda Constable Shilungu slapped him hard. He said
he tried to pick it up and they said don't pick it up, grabbed him
and took him to the truck.

In another
version the accused said he looked for the knife then fell down,
then the policeman came and rained blows on his face and neck and he
suffered a nose bleed. He denied that he killed the residents. He
also denied that he pointed out the body of Unandafa to the police.
Describing the departure from the scene, on one occasion the accused
said they left and went to Ohangwena. While at Ohangwena the police
took him to a tall building and told him to step out. Then he said
at one point he was taken behind a hall where he was beaten. He said
after the visit to Ohangwena and the beating he was taken back to
the scene of crime where he was left for hours in the back of the
truck. Eventually he was taken to Oshakati after a white man came
and removed the handcuffs. He said on this version, that after the
handcuffs were removed he was asked to get into the car of the white
man and was taken back to Ohangwena but they merely passed through
to Oshakati without stopping.

The accused claimed that the
magistrate had asked him for N$3 000.00 for a lawyer. None of this
had been put to witnesses. He said when he told the Court that he
didn't have the money, she asked him if he was assaulted. He agreed
and pointed to his swollen neck and told her that Shilongo beat him
to get him to admit the killing. He said he also told the magistrate
that the police told him if he doesn't tell the magistrate what they
wanted him to say they would further assault him. The accused then
claimed that he returned to the same office the following day, but
did not get the papers or his answers. He admitted that he had told
the magistrate that he didn't need a lawyer on the basis that he
didn't have a case. He said he remembers the interpreter telling him
that there was a case against him. Then he claimed he couldn't
understand what was being talked about.

The first question I posed before I
ruled in favour of the State admitting the confession, and the
Section 119 proceedings was
whether the confessions were made freely, voluntarily by the accused
when he was in his sound and sober senses, as is specified in
Section 217 of the Criminal Procedure Act 51 of 1977 and the
numerous cases interpreting that particular provision. In terms of
the Criminal Procedure Act, three conditions have to be satisfied
before the Court can find that the State had proved the case beyond
reasonable doubt, was the confession made freely
and voluntarily
and without undue
influence.

The reasons
why I admitted the confession and allowed the Section 119
proceedings is that I was convinced beyond reasonable doubt of the
veracity of the State witness's account. Looking and assessing the
evidence of the State witnesses together with that of the accused
person I had no doubt whatsoever that the accused's account of the
circumstances of the making of the confession were false beyond
doubt. Constable Shilongo's account and his denial of assaulting the
accused at any time is overwhelmingly confirmed by the other
witnesses, Sergeant Ishua and Constable Hamukonda. Also the
objective evidence of the lack of any signs of any injuries upon him
such as will be consistent with the beatings as claimed gave
certainty to my finding. I was quite satisfied that there was no
assault on the accused at any time, that he readily admitted
responsibility for the death of the resident of the homestead. The
witnesses were verified by the evidence of Ms Kephas the magistrate
who took the confession, the lack of the injuries on him, the
relative ease and relaxation that was in the accused. Also, the
evidence of the interpreter Ms Hamukoto confirmed the account of the
police officers, she said the accused never complained of assault.
In addition to all this, the accused's own evidence is peppered with
innovations and contradictions throughout. The changing account of
when he was assaulted, where he was assaulted and how he was
assaulted, whether he was taken to Ohangwena first and then returned
to the scene of the crime, left baking in the sun and was rescued by
a white man. A suggestion that he was taken to the tallest building
at Ohangwena and asked to step out and jump all sounded a last
minute invention by the accused as he gave evidence. This is also
verified by the fact that none of these claims or accounts were put
to the witnesses of the State to deal with. This omission is not
acceptable to the Court. Courts have on numerous occasions rightly
emphasised the need for one side or other to put its side of the
case to the witnesses so that the
witnesses have a chance or opportunity to deal with the
allegations
and so that OF
the veracity
the allegations is tested.

Having found the State's evidence
overwhelmingly believable, and that of the accused false beyond
reasonable doubt I admitted the confession.

As regards the complaint that he was
denied legal aid in the Section 119 proceedings and did not
understand the nature of the explanations, Ms Hanhele's overwhelming
evidence was confirmed by the Interpreter. According to Ms Hanhele,
Mr Ipakwana interpreted correctly, properly and accurately to the
Accused. Even in this proceedings the Accused himself admitted that
the Interpreter was painstaking in interpreting what the Magistrate
was saying.

When he asked about the role of a
lawyer he was told what the role of a lawyer was. When he claimed
that he had no case he was told that there was a case against him,
that the charges were grave and serious.

While it may have been a mistake by
the court to proceed that day rather than postponing the matter for
another day to give
the accused time to digest what had been said by the court, an
irregularity of that nature in this particular proceeding did not
result in any unfairness to the accused. It was made clear beyond
reasonable doubt that Ms Hanhele took the trouble and fully
explained the nature of those proceedings. She explained the meaning
of the charges and the essential elements of the charges, and, the
interpreter emphasized the seriousness of the charges he was facing.

So there is
no doubt from the questions he was putting that the accused
understood well what was being put to him. To claim that he didn't
really comprehend what was being put is a last minute afterthought
on his part. Even after the decision had been taken to proceed with
plea taking, the magistrate again warned him that he need not
answer, he may remain silent. So if there was an irregularity
through an undue haste, it was cured by the painstaking nature of
the explanation. The participation of the accused in the process
shows that he was following what was going on, and realised that he
could even then, either remain silent or choose to have the matter
stood down. To claim that he applied for legal aid which was granted
there and then is an obvious untruth not worth weighing seriously.

Now the next question that arises in
this part of the proceedings and which has come up several times in
this Court and other court's in this jurisdiction, is the question
whether a denial of legal representation to an accused person even
at a preliminary enquiry in contravention of the Constitutional
guarantee, in Article 12(l)(e) flaws the proceedings to the extent
that the evidence must as of necessity be excluded.

In the case of the State
vs De Wee, Smuts
AJ of this court, considered at great length the question whether
evidence obtained in breach of constitutional rights must as a
matter of course be excluded. He referred in particular to the case
of the State
vs Kapika and Others 1997
NR 285 where the court ruled that there is a constitutional right
for the accused to be informed of his right to a lawyer event at the
preliminary stages. But the Learned Acting Judge weighing the
question, ruled that there was no absolute exclusionary rule of
statements obtained in breach of the constitutional rights, that
the court has a discretion. I agree with the statement. For
reference see: the cases of State
vs Shikunga and Another 1997
NR 156 Supreme Court Judgment of Chief Justice Mohammed (now
deceased) followed shortly after by the case of State
vs Kanduvazo, also
a Supreme Court judgment.

At page 127
Smuts, AJ said. "I also accept that the Supreme Court has held
that in cases where irregularities even involving the constitutional
right a court is vested with the discretion to determine whether or
not these irregularities would result in the failure of justice
which tainted a conviction prejudiced the accused and are of such a
fundamental nature that the evidence may be excluded." The
Learned Acting Judge further cites the case of the State
vs Attorney General, Cape Provision 1996
SA(1). The State
vs Melanie and Others 1996(1)
SACR 335 E, a judgment of this Court by the then Judge President
Strydom, of Stare vs
Bruwer 1993
NR 219.

In the Cape
Province case, cited above the Learned Judge said, and I paraphrase
the paragraph, ... "That what the Constitution demands is that
the accused be given a fair trial... ultimately fairness is an
issue, which has to be decided upon the facts of each case. At times
fairness might require that evidence unconstitutionally obtained be
excluded but there will also be times when fairness will require
that evidence, albeit obtained unconstitutionally, be admitted."

Quite
clearly therefore the matter is one for the discretion of the court
and depending on the facts and the circumstances, the confession or
statement or evidence may be admitted or rejected. In exercise of
that discretion I rule to include or admit the Section 119
proceedings. Those are the reasons, which I reserved in the judgment
in admitting the two exhibits.

Continuing
with the main trial, the state called Doctor Amutenya who conducted
the post-mortem examinations on the three bodies. Doctor Amutenya
produced the respective reports he prepared at the time to refresh
his memory of his findings. As regards the body of Paulus Policapus.
He said there were numerous cuts and stab wounds but these included
four penetrating wounds about ten centimetres deep. As a result of
these wounds the lungs had collapsed, the four deep wounds were in
the chest, the neck and the abdomen.

The doctor
gave full details and illustrated the wounds from the sketch plan
attached at the back of the report where they were positioned. I
shall not go into those because they are all part of the record. He
then said of the wound in the stomach death would have followed
immediately through blood loss. He said that from what he found,
namely that the intestines had been pushed out, the victim must have
been alive and breathing at the time it was inflicted. Of the nature
and position of the wounds and the intention or mind of the
attacker, the doctor said that a wound above the heart is fatal if
deep enough. \nd from such an infliction by an attacker the
deduction may be made of the presence of an intention to kill
against the accused.

The doctor
next referred to the post-mortem on the body of Eunice Kambwali. He
said there were five wounds, ten centimetres deep. One was on the
left side of the chest and four at the back. He deduced from those
at the back that the victim tried to flee. In addition he found
undigested food, which showed that the victim had consumed some food
within four hours of her death. This evidence would tend to support
that of Theresia Hamwele who said she parted company with Eunice
between 07:00 and 08:00 that morning before she met her death. The
report is exhibited in the proceedings and I need not set out any
further details of that.

The last
body the doctor referred to was that of Sylvia Ndahafa a 65-year-old
woman. In that body he found multiple stab wounds, in the chest, the
abdomen and the neck. In one wound, the jugular vein and the carotid
artery had been cut. Both lungs had collapsed. He said the wounds
were very deep.

The doctor
said the deaths were caused by a sharp instrument in all three
cases. He said the sharp instrument resembled a spear in that both
edges were sharpened on either side. The State produced a number of
exhibits which are on record. The knife, 'the omukonda' has two
sharp edges on either side, is exhibit 1. The trousers and belt
found in the accused's house has some blood on it, ie the trousers.
According to Constable Shilongo the blood was submitted for tests at
the Forensic Science Laboratory and the result was that the blood on
the trousers was of the same blood group as that of the deceased,
Eunice. The Forensic Scientist's report is Exhibit J in the
proceedings.

The knife
found on the premises fits in with the description of Doctor
Amutenya as to the nature of the weapon used. It tends to confirm
the evidence of Constable Shilongo, in that it had been hidden away
and out of sight obviously to avoid detection.

The next
witnesses were neighbours. The three neighbours of the deceased and
the accused. Titus Shaumana said he'd known the accused as a
neighbour for years he wasn't brought up with him. That the accused
resided with the deceased in that homestead but latterly had built
his own house not very far from the scene of the murders. He said on
the day before these events the accused was at his home, they parted
some time during the evening, it was then that the accused told him
that he was angry with the deceased Ndahafa. He said the accused
left and he went to bed, then about half an hour later at about
22:00 he heard a dog barking, then heard some cries, a man's voice
was saying, I am stabbed. Also a women's voice was heard saying,
Tuhafeni what are you doing? The witness said both sounds came from
the direction of the scene of crime. He was able to recognize the
voices as those of the deceased.

The
following morning the deceased, Eunice Kambwali arrived, he
mentioned to her what he'd heard the previous night. He said Eunice
left immediately. Then later that morning, and not long afterwards,
he got news of the incident. He related his encounters with the
accused earlier in the day the previous day, that he had met the
accused at a shebeen and noticed that the accused was carrying an
omukonda in his waist band, he said he had never seen the accused
with an omukonda before. He said though it was under a T-shirt he
couldn't mistake it. He described the omukonda as having a wire
handle of either yellow and white wires.

He was asked
about exhibit 1 in court. He said he couldn't be sure that that was
the weapon he saw.

It was put
to him on behalf of the accused that he did indeed meet the accused
at the shebeen in the morning and also in the afternoon. But at that
stage, the defence said that it was in the early part of the
afternoon, not as late in the evening as 9pm or 10pm. The witness
agreed that he'd seen the accused twice, and said he couldn't forget
it because it was the first time he'd ever seen him with the
omukonda. He said however that the accused looked normal, even as he
related the dispute with Ndahafa.

Theresia
Hamwele was called and said she worked at the shebeen where she saw
the accused with another man the day before, on the 4^th
of September. She said that the accused was wearing a T-shirt. At
one point the accused put his hands on his hips, as he did so she
noticed that he was wearing an omukonda in his waist band. The
accused quickly pushed the T-shirt down, but she couldn't have
mistaken the knife. Theresia said Eunice was her friend, in fact
they spent the previous night together. She said after she closed
the shebeen they went to another cuca shop. It was there that she
saw the accused again with the last witness, Mr Shaumana.

The
following morning she and Eunice called at Shaumaaa's house.
Shaumana told them about the cries from the deceased's residence
he'd heard during the night. Eunice immediately left for the
homestead. Theresia said that was last time she saw of her. Later
that morning she learnt of her death and the other deaths.

Handaleni
Nangula was another witness called. She said she had been gathering
firewood in the morning about 07:00 or 08:00. She said she heard
screams of a woman. She said she didn't recognize the voice but, it
came from the direction of the deceased's house.

Then Daniel
Kashiyalwa was called. He said on the 5^th
he was at home when the accused arrived and asked him to come along.
He accompanied the accused. On the way they were joined by another
man. They got to the scene of the crimes and, as the accused opened
the gate he drew their attention to some blood nearby. They then
found the body of Policapus on which he noticed a deep cut on the
neck.

They went to
another room where the accused pointed to a woman's leg. They asked
who it was, the accused said it was that of Eunice. They asked the
accused where Ndahafa was? He said she may have gone out to fetch
water. This evidence is important; the witness had no grounds to be
gained from making it up. In my view it tends to confirm the
evidence of the accused's initial denial of Ndahafa's death to the
police. It also confirms Constable Shilongo's evidence. Clearly the
witness couldn't have invented it.

Constable
Shilongo was again called, in the main trial. He said he left his
office to investigate the murder. When he got to the scene he found
the accused at the gate. He noticed some blood and saw some drag
marks. He followed the blood and the drag marks that led to a hut.
Just behind the hut he saw the body of a man.

He saw some
more drag marks which led to another hut. He followed these and
found a woman's body, he didn't go in at that time. He went back to
the accused and asked him where he is staying? The accused said he
slept at the homestead that night, and told him that the deceased
annoyed him so he killed them with a traditional knife. He asked
where the knife was, the accused said it was at his home together
with the clothes he'd been wearing. They went to the accused's house
where the accused pointed out the white T-shirt on the floor, but
underneath which was a knife. The trousers was in another room; it
seemed to be hidden under some bedding then he noticed bloodstains
on both legs of the trousers, at thigh level. He noticed also some
small bloodstains on the T-shirt.

He asked the
accused where the old lady Ndahafa was. Accused said she had run
away. However, as time went on the accused opened up and said that
he'd killed her as well and her body was under the bed in the room
where Eunice was. Constable Shilongo said that he took some
photographs which are before court. He said there was a clean knife
as is seen on the photograph on the body of Policapus which was
other than the exhibit in court.

Constable
Shilongo said he examined the accused and noticed that there were no
signs on him of his having been assaulted with a stick or anything
else. But he noted the multiple stab wounds on all the three bodies.
He identified exhibit 1,
the
knife exhibit 2, the trousers, and explained the photo plan. That's
all on the record I need not go into it.

It was put
to him that the accused denies that he admitted killing the
residents and denies that he wore a T-shirt, or that the trousers
with bloodstains was found in his house. He said this was not his
nor was he wearing them the previous day, I have already referred to
the bloodstains on the trousers and the submission for forensic
tests, the confirmation of the common blood group between the
trousers and the blood taken from the accused.

The accused
gave evidence, on oath. He said that on the 4^th
of September he wore a tracksuit bottom and a shirt not the T-shirt
as claimed or the trousers. He said that he went to the shebeen in
the morning and drank some tombo with Shaumana. Then he slept all
day and late afternoon he went back to a shebeen and drank again
with Shaumana. On this occasion he said he was with Shaumana until
pass 21:00. And that when they left Eunice and Theresia were still
at the cuca shop. He said he walked back with Shaumana towards his
home and parted company with him at the latter's house. He said he
got home about 22:00. It was all quiet there was no noise there were
no cries. He said he never heard any noises or cries during the
night either but he said he couldn't deny what the other

witnesses
told the Court about the screams. If they did occur he didn't hear
them. It is common evidence that whereas the accused's house is
merely five hundred metres from the scene of the crimes, that of
Shaumana, and other witnesses was even further away.

He said in
the morning he got up to fetch water and passed through Ndahafa's
home. There was no answer. He went into Eunice's house there was no
answer, but behind a curtain. He noticed that she was lying dead. He
went out to the old man's house, Policapus. Behind his hut he found
his body. He too was dead. He noticed the drag marks and went to
call neighbours when they came he decided to report the matter to
the police.

Three police
men including Constable Shilongo arrived. He gave a confusing
description of names of the police officers. Quite clearly the third
police officer whose name was variable was an invention; to what
extent or what reason it is unclear. He said that the omukonda
before the court is not his, neither is the trousers. He denied that
the barefoot footprints which the police saw and which led from his
room to the scene were his he said on that day he was wearing
tackies. He maintained his denial of the killings, or telling
Shaumana of the dispute with Ndahafa.

The accused
challenged the contents of confession. He said the police dictated
the contents to him. In regard to the summary of the contents, he
accepts the killing of Policapus after a quarrel between him and
Ndahafa and describes the quarrel as arising from a dispute
concerning the omukonda. He tells a story that Policapus borrowed
his omukonda when he went to attend a funeral, but later for three
months refused to surrender it. However he admits that he had been
using Policapus' omukonda, though a smaller one. He said he had
misplaced it and that was the cause for the dispute.

He said the
day before these events he'd collected his omukonda. He said when
the quarrel erupted Ndahafa, hit him with a stick. Policapus went
and collected a panga from his room and tried to stab the accused.
The accused managed to run away and ran five hundred metres and back
to his home where he collected the omukonda. He tried to stab
Policapus with it but it was too short. So he hit him with a stick
whereupon Policapus fell down. As he fell he lost the panga, the
accused thus got the chance to stab Policapus while he was on the
ground. He said he stabbed him more than once. When Ndahafa tried to
intervene and beat him with the stick, he turned and stabbed her as
well. Both died immediately. The following morning about 07 or 08
Eunice arrived. He was still very angry, so he stabbed her to death
as well.

The
confession contains details in it that would be unnecessary to
include if it was an invention. No witness could have invented such
details because of their nature. Further some of these details are
consistent with what the accused's account was. The story of the
quarrel over the omukonda also explains why the accused, who had
never been known to carry an omukonda in the daytime, would have
been hogging that omukonda around that day.

Concerning
the killing of the first two victims the effect is that the accused
raised a defence of self-defence. A person in imminent danger of
assault, or threat of assault is entitled to anticipate the attack,
or fight back if he is attacked, if he believes that he is in
danger, even if that belief be unreasonable. However in warding off
an attack or acting in self-defence the victim must not use
excessive force, and he is not entitled to assault the attacker if
the attack has ceased. Quite clearly therefore as far as the
evidence of the attack on Polycapus is concerned, if you go by the
confession, Policapus no longer posed a threat to the accused
because he had lost the panga, and was down. If the version is
accepted from the accused as true the accused would still be guilty.

Similarly,
in attacking Ndahafa the accused used excessive force, that is if he
is believed, because Ndahafa was only hitting him with a stick. So
there was no justification in law for attacking the two victims with
the omukonda, nor in the manner in which it is described as
resulting in the multiple stab wounds that Doctor Amutenya found.
With regard to Eunice, there's absolutely no excuse in reason or law
why he should have killed her. He said he did so because he was
angry, and this was SDme
hours
later. It is clear he just attacked her to kill her.

The claim
that the confession which was taken down in writing was what
Constable Shilongo told him has no substance. The admissions
contained in the confession are not the only ones. For example there
is the admission four days later after he had time to reflect before
Ms Hanhele. This was in spite of the warning about his rights, and
warning about the gravity of the charges. This notwithstanding, the
accused admitted the killings, without any justification on his
part. The accused's admission in the confession is confirmed also by
the objective evidence found by the doctor. Further as verified by
witnesses, concerning his carrying of the omukonda the day before.
Had Constable Shilongo been bent on in venting an untrue story he
would easily have made use of the other knife found on the body of
Policapus rather than embarking on a search for a traditional knife.
He can only have mounted the search for a traditional knife because
the accused had told him of its existence and whereabouts its use.

Accordingly
I find the State's evidence overwhelming. Against the State's
evidence, there is a denial after denial of any kind of involvement
or responsibility by the accused, except when he made the admissions
and confessed to the crimes before the magistrate, and in the
Section 119 Plea proceedings. The accused quite clearly lied and at
times did not do so very efficiently. The defects in his story are
clear, that the story he told was quite implausible is also clear.
And was proved beyond reasonable doubt to be false. Therefore I find
that the accused committed those acts which resulted in the death of
the three victims.

So what of
the intent? Did the accused have the intention to kill or foresee
that death may result from his actions in attacking these three
victims? In the absence of an admission by an accused that he
intended to kill the victims the State is only able to urge such a
conclusion by the Court from an examination of all the evidence and
the circumstances, the nature of the killing, and the weapon used,
in order to find out whether the facts proved show beyond reasonable
doubt that the accused had the intention to kill or that he foresaw
that death would result?

In this case
the evidence of Doctor Amutenya carries considerable weight and
beyond reasonable doubt. The finding of the four deep penetration
wounds on Policapus on the part of the body that is invariably life
threatening when the inflicted wound is deep enough, shows that
there was an intention to bring about the death of the victim.

A similar
intent exists, in the finding of the stab wounds on the body of
Eunice, which were deep and penetrating straight into the heart, and
resulted in a loss of blood of over 650 millilitres. In the case of
Ndahafa, again, the Doctor said he found multiple stab wounds,
including wounds round the neck, head and chest. In particular, the
cut around the right ear that went to the bone, severed the jagular
vein and the carotid artery, which are essential vessels that carry
blood to the brain, was fatal even to the simple man.

Looking at
those stab wounds, the area of the body, the weapon used there can
be no doubt and I'm satisfied beyond reasonable doubt that the
accused intended to kill his victims.

I find
therefore that the accused is guilty as charged on all the three
counts.

ON BEHALF
OF THE STATE Ms
R Gertze

Instructed
by:
Office
of the Prosecutor-General