Court name
Supreme Court
Case name
S v Kadila and Others
Media neutral citation
[2001] NASC 4











CASE
NO.: SA 5/2000







IN
THE SUPREME COURT OF NAMIBIA







In
the matter between







JONAS
KADILA First Appellant



SILAS
NERO Second Appellant



JONAS
NAKASHIMBWA Third Appellant







And







THE
STATE Respondent







CORAM:
Strydom, CJ; O’Linn, AJA et Chomba, AJA



HEARD
ON:
4 July 2001



DELIVERED
ON:
9 October 2001











APPEAL
JUDGMENT







STRYDOM,
C.J
.: The three appellants appeared in the High Court of
Namibia on the following charges:



COUNT
1
: MURDER.







COUNT
2
: THEFT OF A FIRE-ARM, alternatively, UNLAWFUL
POSSESSION OF A FIRE-ARM
and,







COUNT
3
: DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE.







They
pleaded not guilty to all the charges and were represented by Ms.
Hamutenya who is again appearing on their behalf in this Court as
amicus curiae. The Court wants to thank her for her
assistance in the matter. Notwithstanding their pleas of not guilty
they were convicted as follows:







First
appellant was convicted on Count 1, of murder, Count 2, of theft of a
firearm and on Count 3, of attempting to defeat or obstruct the
course of justice. He was sentenced as follows, 20 years imprisonment
on Count 1, 18 months imprisonment on Count 2 and 3 years
imprisonment on Count 3. The Court ordered that the sentences
imposed on Counts 2 and 3 to run concurrently with the sentence on
Count 1.







Second
appellant was convicted on Count 1 of murder but as an accessory
after the fact and also on Count 2 of theft of a firearm. He was
sentenced to 10 years and 18 months respectively and the sentence on
Count 2 was ordered to run concurrently with the sentence on the
first Count.







Third
appellant was convicted on Count 1 of murder but as an accessory
after the fact. He was sentenced to 10 years imprisonment.







They
all applied for leave to appeal against their convictions as well as
the sentences imposed by the Court-a-quo. These
applications were refused. They thereupon filed petitions wherein
they repeated their applications for leave to appeal. These
applications were successful and they were granted leave to appeal
against the convictions and the sentences imposed.







Mr.
Small, who did not appear in the Court-a-quo, argued the case
on behalf of the respondent.







Before
dealing with the merits of the appeal reference must be made to an
application for condonation for the late filing of the Heads of
Argument by Counsel for the appellants. The application itself,
although styled as a Notice of Motion, is not in proper form in that
Counsel merely attached her Heads of Argument, wherein an explanation
was tendered, to the Notice of Motion, instead of doing so by way of
an affidavit. However because this was an instance where leave to
appeal was granted by this Court on petition, the merits of the
appeal and the fact that Mr. Small did not object to the form in
which the application and the reasons for the delay was set out, we
allowed Counsel for the appellants to argue the matter.







In
the Court-a-quo all three appellants amplified their pleas of
not guilty with written statements, which were read into the record.
The relevant parts thereof read as follows:



First
Appellant:







4.1 I
deny the allegations that I did steal a firearm or that I did know
that it did not have a licence.








    1. I
      deny that I did want to defeat or obstruct the course of justice.










    1. I
      know that the deceased shot himself in the head and died.











    1. I
      admit that I attempted to sell the said firearm and did place it in
      the possession of Petrus Ipinge.”









Second
appellant:







4. I
deny each and every allegation against me and put the State to the
proof thereof.







5. I
know that the deceased shot himself in the head and died.”







Third
Appellant:







4. I
deny each and every allegation against me and put the State to the
proof thereof.








  1. I
    know that the deceased shot himself in the head and died.”












According
to the evidence, the second appellant and the deceased came from
Rundu to Swakopmund and stayed in a shack belonging to the state
witness Thomas Shivolo. They arrived there about 5 or 6 days
before the incident. Except for the evidence of a young boy, A.S.,
nobody but the three appellants knew what had happened on the night
of the 17th October 1997. The first and third appellants
testified that they met the deceased at a bottle store in Mondesa
Township. From there the three of them went to the shack where the
deceased and the second appellant were staying. They met the second
appellant and from there, they all walked some distance to smoke
dagga, which the deceased was rolling. At one stage the deceased
removed a revolver from under his shirt. Third appellant wanted to
look at it and the deceased handed it to him. Whilst this was
happening the first appellant admonished the third appellant not to
point the revolver in his direction. However the deceased said
that there was no cartridge in the firearm. He took the revolver
from the third appellant and took something out of his pocket, which
he put into one of the chambers of the firearm. The deceased then
pointed the revolver at his head. A shot went off and the deceased
fell to the ground. All the appellants then left after the first
appellant picked up the gun.







The
witness, Helmut Palasius, testified that he met the first appellant,
late at night, on a Friday. The appellant wanted to sell a firearm
to him. Although Palasius could not remember the date when this had
happened, it is common cause that this happened on the same night
that the deceased was killed. Palasius himself did not buy the
firearm but took the first appellant to the witness Petrus Ipinge.
First appellant offered the firearm to Petrus for N$250 and told him
that he was the owner of the firearm. Ipinge asked first appellant
for documents for the firearm and he promised to bring them the next
day. The three appellants were all arrested the next day.







Const.
Ndinda was the first on the scene of the killing. He alerted the
charge office and Const. Indonga and Sgt. Awarab soon thereafter
joined him. The deceased had two wounds, one on each side of the
head, but he was still alive when the ambulance arrived to take him
to hospital. Their investigation brought the officers into contact
with the witness Shivolo. Whilst busy they were informed that the
deceased had passed away and they then went to the hospital to take
photographs of the body. Early the next morning the police officers
returned to Thomas Shivolo’s shack where he mentioned to them the
name of one Tara. Tara informed them that the second appellant had
left for Walvis Bay. With the help of Tara, Const. Indonga was able
to locate second appellant in Walvis Bay. Second appellant was
interviewed and he informed Const. Indonga that he was with the
deceased and first and second appellants, seemingly the previous
evening. Second appellant also told the police that the deceased
was playing with the revolver and accidentally shot himself in the
head. Thereafter one of the other two appellants, second appellant
was not sure whom, removed the revolver out of the hand of the
deceased and they then ran away. Second appellant said that he then
also ran away.







Second
appellant was arrested and taken to Swakopmund where he took Indonga
to Mondesa Township and pointed out a certain shack to him. The
police found first and third appellants inside the shack. They
however denied that they were with the deceased and second appellant
the previous evening. They were then also arrested.







The
three appellants were handed to Sgt. Awarab who continued with the
investigation. He asked the three appellants where the weapon was
that killed the deceased but they told him that they did not know
what had happened to it. He also asked them who had shot the
deceased and they all said that the deceased was playing Russian
roulette and he shot himself. However on the 19th
October third appellant told Sgt. Awarab that he knew where the
weapon was. He took the officer to Helmut Palasius who, in turn,
took them to Petrus Ipinge who gave the weapon to Awarab. It was
later established that the revolver was the property of a Ms. Brand
of Rundu who testified that her house was burgled on the night of the
3rd October 1997 when the weapon, together with other
property, was stolen.







Sgt.
Awarab also took a warning statement from third appellant in which
the appellant repeated the allegation that the deceased had shot
himself. He further stated that his friend took the weapon after
which they ran in the direction of the Mondesa single quarters and
that they met again at the Duadide Bottle Store where they then
discussed the incident.







A.S.
is a young boy of 13 years. He testified that on the night of the
17th he was sitting on the fence surrounding their
residence when he saw two men chasing a third. When one of the
persons chasing came close to the one who was running away he pointed
something at him and the witness heard a shot going off. The person
in front fell down. A.S. could not make out what the object was
that was pointed at the person who was shot. It seems that there
could be little doubt that this was a firearm. The person who had
fired the shot then bent down and picked up something from the
ground. Thereafter both persons ran away in different directions.







When
the three appellants appeared before the magistrate during the
section 119 proceedings they again repeated their allegations that
the deceased was playing Russian roulette and accidentally shot
himself. That was also their stance when they testified in the
Court-a-quo. An important part of their evidence was that
the deceased, when he fired the shot, was holding the revolver in his
right hand and that the muzzle of the firearm was not further away
than one or two inches from the right hand side of his head when he
pulled the trigger.







The
learned Judge in the Court below did not believe the appellants’
story of accidental death of the deceased by his own hand. In this
regard the learned Judge relied strongly on the evidence of
Dr.Matheis, who performed an autopsy on the body of the deceased, and
the witness A.S.. It seems that it was particularly the evidence
of A.S., which led to the conviction of the first appellant of
murder.







Ms.
Hamutenya criticized the findings of the learned Judge and submitted
that he should have rejected the evidence of A.S. and the finding of
the doctor that, contrary to what the appellants had testified, the
bullet had entered the head of the deceased on the left side and had
exited on the right side. She further submitted that the Court
should have accepted the evidence of the appellants, as there was a
reasonable possibility that it might be true and she asked this Court
to acquit them on all charges. Counsel also criticized the police
for not taking skin samples of the hands of the deceased in order to
establish whether there were gunpowder deposits, which could be a
strong indication that he was the person who handled the gun when the
shot was fired.







Mr.
Small made two important concessions. The first was that the young
boy, A.S., was not in all respects a satisfactory witness and that
the Court should only accept his evidence in so far as that evidence
is supported by other creditable evidence. The second concession,
which follows almost naturally from the first, is that the
Court-a-quo erred in convicting the first appellant of the
crime of murder, as there was no evidence, which proved beyond
reasonable doubt that he was in fact the person who pulled the
trigger. Counsel submitted that the medical evidence clearly showed
that the deceased did not die by his own hand and he submitted that
on the first count the appellants should all be convicted as
accessories after the fact to the crime of murder. This submission
is based on, what Counsel called the lies told by all the appellants
to shield the actual perpetrator and the removal of the weapon.
Counsel submitted that some of the other convictions by the
Court-a-quo were also not in order. I will deal with those
submissions when I deal with the other charges.







It
is now necessary to look at the evidence of the doctor who performed
the post mortem on the body of the deceased. It is clear that the
medical evidence played an important role in the finding of the
learned Judge-a-quo that the killing was not accidental. In
fact on the concession made by Mr. Small regarding the evidence of
the witness A.S., the State’s case stands or falls by the evidence
of the doctor.







Dr.Matheis,
who performed the post mortem, completed his medical studies in 1978
at the University of Pretoria. Thereafter he worked for 10 years as
a medical officer in the Windhoek State Hospital. During this
period he also worked for about half a year as a medical legal
officer in the morgue. Since 1989 he has been a medical
practitioner at Swakopmund where he is also the district surgeon.
Dr. Matheis testified that he performs some 20 post mortem
examinations per year. The post mortem in this case was performed
on the 21st October. The doctor found that there were
bullet wounds on both temples of the head. The cause of death was
loss of blood as a result of the bullet wounds.







According
to the doctor the entrance wound was on the left side anterior to the
ear. It was an irregular wound plus-minus 1,3mm in diameter. The
exit wound was also anterior and above the right ear and brain tissue
was protruding from the wound. The bullet passed through both
frontal lobes of the brain and its direction was upwards. The
entrance into the skull on the left temple was small and round as was
the exit wound. The doctor further testified that if the muzzle of
the firearm were put against the head of the deceased when the shot
was fired one would find a blow up of the wound margins and also
bruising. These signs were not present on examination.
Furthermore, if the muzzle of the firearm was held less than a metre
away from the skin one would expect to see powder particles deposited
around the entrance wound. This was also not found by the doctor
as a result of which he concluded that the firearm was further than a
metre from the head of the deceased when the shot was fired. He
ruled out the proposition that this could have been a contact wound
and stated that that was very unlikely. The doctor testified that
the person who fired the shot must have been to the left-hand side of
the deceased when he did so, or, if the person was behind the
deceased, the tract of the wound indicated that the deceased must
have turned his head backwards at least to the side, when the shot
was fired.







Under
cross-examination by Counsel the doctor further elaborated on his
findings as to the entrance and exit wounds, and stated that on the
skull itself is found a funnel shaped wound with a wider open end in
the direction in which the bullet had traveled. This is so because
the bullet, on exit from the skull, breaks away particles, seemingly
from the bone.







The
evidence of the doctor as to what one should find if the shot was
fired with the muzzle of the firearm against, or close to, the head
of the deceased was not really challenged by Ms. Hamutenya under
cross-examination. Counsel however challenged the finding of the
doctor in regard to where the entrance and exit wounds were. This
was done on the basis that experience has shown that in cases,
involving bullet wounds, the exit wound caused by it is usually
bigger and more irregular than the entrance wound. It seems however
that there was at times a misunderstanding between the doctor and
Counsel for the defence. Whilst the doctor based his findings on
what he saw on the piercing of the skull by the bullet, counsel was
referring to the external wound where the skin was pierced. In
regard to the piercing of the bone the doctor agreed with Counsel.







From
the evidence of the doctor it seems that his findings in regard to
the entrance and exit wounds on the head of the deceased were based,
not so much on the external wounds, but on what he found on the skull
of the deceased. In this regard he testified that the piercing of
the skin by the bullet may only leave a small laceration. However,
the piercing of the skull by the bullet leaves a funnel shaped
opening in the direction of which the bullet is fired. This is due
to the breaking away of particles of bone as the bullet leaves the
skull. The same effect is found on the opposite wall of the
skull-bone, namely a small entrance wound and a bigger exit wound
where the bullet exits.







Against
the background of all the evidence the Court must now consider the
accounts given by the three appellants of the shooting. First
appellant testified that after the deceased took the firearm from
third appellant he opened and closed it and then put the firearm to
his head with the right hand. He further elaborated on this and
said that the deceased put the gun to his temple and fired the shot.
Later the appellant further changed this evidence by saying that he
did not know whether the firearm touched the temple or how far it was
away. The second appellant testified that the deceased, after
receiving the firearm from the third appellant, took a cartridge out
of his pocket, put it in the chamber and, after spinning the
cylinder, put the firearm against his head and fired the shot.
According to the appellant the deceased held the firearm in his right
hand. Under cross-examination second appellant demonstrated that
the muzzle of the firearm was between 1 and 3 inches away from the
head of the deceased. The evidence of the third appellant was more
or less the same as that of the others. He demonstrated in court
that the deceased was holding the revolver in his right hand with the
muzzle pointing to the right-hand side of the head about an inch away
from the head.







What
emerged from the evidence of the appellants was that the deceased
held the firearm in his right hand and pointed the muzzle to the
right-hand side of his head when he fired the shot. On their
version the entrance wound should have been on the right-hand side of
the head and the exit wound on the left side. What is also clear
from the evidence of the three appellants is that the muzzle of the
revolver was either against or near the head of the deceased, but in
any event not further than an inch or three away from the head when
the deceased pulled the trigger. Under these circumstances the
doctor would at least have found a blow up of the wound or powder
particles in and around the wound as he had testified. The very
absence of these signs, together with the further evidence that,
contrary to what the appellants had said, the entrance of the bullet
was on the left side of the head, proves in my opinion beyond
reasonable doubt that there is not a reasonable possibility that the
versions of the appellants might be true. There is no reason why
the medical evidence should not be accepted and Ms. Hamutenya, during
argument, conceded that there was no real basis on which she could
attack the evidence of the doctor that on the versions of the
appellants one should have found a blow up of the wound, or powder
particles deposited in and around the wound, or both. In this
instance it is also in my opinion safe to add the evidence of A.S.
where he testified that he saw a person or persons chasing the
deceased before the shot was fired. This evidence coincides with
the evidence of the doctor and the inference that can be drawn from
that evidence, and it contradicts the evidence of the appellants that
they were an amicable group of friends, standing around and smoking
dagga, when the deceased accidentally shot himself in the course of
playing Russian roulette.







Ms.
Hamutenya’s criticism of the police for not taking samples on the
hands of the deceased in order to establish whether there were
gunpowder particles present, which would have indicated that he was
the person who handled the firearm, is to a certain extent justified.
In this instance the police was the very next day, after the
shooting, informed of the allegation that the deceased had shot
himself. However the medical evidence of the absence of such signs
in and around the wound, as well as the evidence concerning the
entrance and exit wounds, in my opinion clearly excludes the
possibility of an accidental killing by the deceased himself.







Another
aspect that was not fully investigated concerns a statement made by
Counsel for the appellants during the cross-examination of the state
witness Thomas Shivolo. It was put to this witness that it was the
habit of the deceased to play Russian roulette and that the witness,
and others, have seen this. This was denied by Shivolo. It was
further put to Shivolo that at one stage a certain Tara even warned
the deceased not to play Russian roulette and that the witness must
have heard it. This was also denied. Notwithstanding the fact
that various names were mentioned by Counsel, of persons who would
have seen the deceased acting in this manner, nothing was done by
Counsel to bring this evidence before the Court, even though some or
all of these witnesses were available after the close of the State’s
case. However even if there were such evidence it does not follow
that this was what had actually happened on this particular evening.
The medical evidence and the evidence of A.S. seem to me to
conclusively rule out an accidental killing. Furthermore the one
witness, who was supposed to have been aware of this habit of the
deceased, denied that that was so. Nevertheless it is the duty of
Counsel to put the case of her clients fully before the Court. The
possibility that this might have happened should at least have been
investigated by Counsel and if there was such evidence then to
present it. In certain circumstances where it appears to the Court
that evidence is essential for the just decision of a case it will be
the duty of the Court to call for such evidence. Where this is
necessary Judges should not hesitate to make use of their powers in
terms of the Criminal Procedure Act, Act 51 of 1977. See in this
regard sec 186 of the Act and further S v van den Berg,
1995(4) BCLR 479(Nm); 1996(1) SACR 19(Nm).







I
am however satisfied that the Court-a-quo’s finding that the
deceased did not accidentally kill himself, was correct. From this
it follows that one of the three appellants must have shot and killed
the deceased.







The
second question, which must now be considered, is whether there was
evidence beyond a reasonable doubt to convict the first appellant of
murder. Mr. Small’s concession that the finding of the
Court-a-quo was not based on cogent and satisfactory evidence
was in my opinion correct. For its finding the Court relied on the
evidence of the witness A.S. who stated that the person who took
something from his pocket, immediately before the shot was fired, and
pointed this object at the deceased, was also the person who picked
up something from the ground, and the evidence of the first appellant
who stated that he picked up the pistol after the deceased had
accidentally shot himself.







I
agree with Mr. Small that it would be unsafe to accept A.S.’s
evidence unqualifiedly. Although A.S. was no longer a child of
tender years the general cautionary rule regarding the evidence of
children still applies especially where he was the only witness
implicating the appellant. (See in general Woji v Santam Insurance
Co. Ltd.
1981(1) SA 1020(A) at 1028A-E.) There are various
indications in his evidence that the Court-a-quo should have
approached his evidence with caution. His description of what
clothes the various appellants were wearing was patently wrong. In
evidence he stated that two persons chased the deceased. This
differed from his police statement where he said that one person was
chasing the deceased. When challenged under cross-examination he
first of all denied that he only referred to one person when making
his statement. This he later changed by explaining that he only
mentioned the one person who, after the shot was fired, ran in his
direction. He did not mention the other person as that person ran
in a different direction away from him. The logic of this
explanation escapes me. Sight should also not be lost of the fact
that A.S. could not identify any of the appellants and that he could
not say what it was that was picked up from the ground.







The
learned Judge further accepted the evidence of the appellants that
first appellant picked up the revolver from the ground. However the
evidence in this regard was most conflicting. Apart from this
unsatisfactory feature the appellants had no choice but to say so in
order to let it fit in with their version that the deceased shot
himself. How confused this evidence was, was brought out by the
different versions given by the appellants in their statements before
the magistrate during the sec. 119 proceedings, and their evidence in
Court. Before the magistrate, first appellant stated that it was
the third appellant who picked up the firearm after the deceased had
fired the shot. In evidence before the Court-a-quo he said
that he in fact picked up the firearm. When confronted by Counsel
for the State with this discrepancy the appellant had no problem in
denying his statement, made to the magistrate, and of accusing the
magistrate of writing down words which were not said. There were
also other discrepancies between the statement made before the
magistrate and his evidence in Court, which the appellant simply
denied. This was now also the first time that these statements were
challenged by the appellants.







In
his statement before the magistrate second appellant stated that
after the deceased had shot himself accidentally, first appellant
asked where the gun was whereupon third appellant stated that it was
in the hands of the deceased. First appellant then instructed the
third appellant to pick it up and, after the third appellant did so,
they both ran away. In evidence before the Court second appellant
said that the firearm was, after the shot was fired, still in the
hand of the deceased, when the first appellant took it from him. He
now said that it was the third appellant who asked where the firearm
was and, after answering the question, first appellant then took the
firearm. To Cst. Indonga second appellant said that he was not
certain who had picked up the revolver.







Third
appellant in his statement to the magistrate denied that he picked up
the firearm. In his evidence he now said that after the shot was
fired, he asked where the gun was and first appellant told him that
it was in the hands of the deceased, whereupon the latter took it and
he, the third appellant, then went on his way. In his warning
statement to Sgt. Awarab this appellant stated that after the
shooting they again met at Doatite bottle store. During
cross-examination he now denied that he had said so to Awarab First
and third appellants also stated under oath that when second
appellant pointed them out to Const. Indonga they did not deny that
they were with the deceased and second appellant the previous
evening. This is contrary to the evidence of Indonga whose
evidence on this point was not challenged by the defence.







On
the above evidence, and bearing in mind the discrepancies and
contradictions, the learned Judge, in my opinion, erred to accept the
appellants’ version that it was the revolver which was picked up
and that it was picked up by the first appellant. Not only is their
evidence on this aspect clearly contradictory of what was previously
stated by them but their clumsy and inept retraction of what was
previously said, and the many other contradictions, showed that they
were lying. In this regard it was also previously pointed out that
the picking up of the revolver was prompted to fit in with their
versions of the deceased killing himself accidentally. The
Court-a-quo, in accepting this evidence, should then also have
put this as a factor in the scale in favour of the appellants,
because it supported their version that the deceased was in
possession of the firearm when the shot was fired. This the Court
did not do.







All
that remains on the evidence, and which distinguishes the first
appellant from the other two, is the fact that some time after the
shooting he was in possession of the revolver when he offered it for
sale to the witnesses Palasius and Ipinge. This evidence is
circumstantial and in my opinion it cannot be said that it supports,
as the only reasonable one, the inference that he should then also
have shot and killed the deceased. It is equally possible that the
actual killer, in order to minimize his own association with the
murder weapon, gave it to first appellant to sell, or that the first
appellant saw this as an opportunity to make some money.







From
the above it follows that the conviction of the first appellant of
murder on the first count must be set aside. Mr. Small however
submitted that the first appellant should also be convicted as an
accessory after the fact to the crime of murder and Counsel further
submitted that the convictions of the second and third appellants as
accessories after the fact were correct.







I
agree with the finding of the learned Judge-a-quo that there
was not sufficient evidence to find beyond reasonable doubt that the
appellants acted together in the execution of a common purpose with
the person who fired and killed the deceased. From this finding it
follows that each of the appellants can only be convicted of their
own criminal acts, if any, committed by them.







In
terms of sec. 257 of the Criminal Procedure Act, Act no. 51 of 1977,
(the Act) it is competent to convict a person as an accessory after
the fact to the crime of which such person is charged if it is proved
that he or she is an accessory. An accessory after the fact to a
crime is someone who assists the actual perpetrator, after the
commission of the crime, to escape justice or to evade conviction for
his crime. (See Hiemstra: Suid-Afrikaanse Strafproses,
5th Ed. P 620; du Toit et al: Commentary on the
Criminal Procedure Act
, pa. 26 – 2A and Snyman: Criminal
Law
3rd Ed. P. 262-266). The principle that a
person cannot be an accessory after the fact to his own crime created
a problem in those cases where more than one person was involved but
it could not be proved which one of them committed the crime but all,
or some of them, took part in the attempt to shield the actual
perpetrator to evade justice.







The
above problem was overcome in the case of S v Gani and Others,
1957 (2) SA 212 (A), on the basis that if one of the accused had
committed the crime, and it was not proven which one, or more,
committed the crime, then the others who assist him, after the
commission of the crime, are accessories after the fact, and if they
are accessories, then the actual perpetrator, in assisting them,
becomes an accomplice to their crime. In this way all the accused
can be convicted as accessories after the fact to the specific crime.
This basis for liability of all the accused was again confirmed by
the South-African Appeal Court in the case of S v Jonathan en
Andere,
1987 (1) SA 633 (A). (See however S v Rossi-Conti,
1971 (2) SA 62(RA) and S v Velumurugen and Another, 1985
(2) SA 437 (D).) The Gani-case, supra, was heavily
criticized, more particularly in academic circles, as pointed out by
Hiemstra op. cit. Notwithstanding this criticism the
principle set out in the Gani-case was followed in more
recent decisions of the Appeal Court. (See S v Munonjo en ‘n
Ander
, 1990 (1) SACR 361 (A) and S v Phallo and Others,
1999 (2) SACR 558 (SCA).)







Although
this Court is no longer bound by decisions of the South African
Courts there is no doubt that decisions, of particularly the Court of
Appeal, have great persuasive value. This fact is demonstrated by
many decisions of this Court. The principle set out in the
Gani-case, supra, has been followed in the
South-African Courts, and in our Courts, for the past 44 years and in
my opinion has practical application and should be continued to be
followed by our Courts. It seems to me that Snyman op.
cit.
p 266 is correct when he concluded that the rule adopted in
these cases should be regarded as an exception, based on policy
considerations, to the rule that one cannot be an accessory after the
fact to a crime committed by oneself.







Ms.
Hamutenya, in reply, and in the alternative to her argument that all
the appellants should be discharged, submitted that the first
appellant was only guilty of an attempt to defeat and obstruct the
course of justice. She further argued that he could not also be
convicted of the theft of the firearm. In regard to the second
appellant, Counsel submitted that he could not be convicted of being
an accessory after the fact to the crime of murder as he only told
lies and that was not sufficient for a conviction as an accessory.
He could however be convicted on the alternative charge to Count 2,
namely the offence of being in unlawful possession of a firearm
without a licence. As far as the third appellant was concerned she
submitted that he was not guilty of any crime as his liability as an
accessory after the fact rested on lies told by him.



Mr.
Small, on the other hand, submitted that the telling of lies with the
intent to shield the actual perpetrator to escape justice is
sufficient for a conviction as an accessory after the fact to commit
a crime. Council submitted that the first appellant be convicted on
Count 1 as an accessory after the fact to the crime of murder.
Counsel further submitted that under the circumstances the conviction
for attempt to defeat or obstruct the course of justice is no longer
competent and should be set aside. The conviction on Count 2 of theft
of a firearm was in order and should not be disturbed. In regard to
the second appellant, Counsel submitted that his conviction as an
accessory after the fact should stand but that his conviction of
theft of a firearm, on Count 2, should be set aside and be
substituted with a conviction on the alternative count, namely of
unlawful possession of a firearm without a licence. Third appellant
was only convicted as an accessory after the fact to the crime of
murder and Counsel submitted that this should be left undisturbed.







In
my opinion if lies are told with the necessary intent to assist the
actual perpetrator to escape conviction that would be sufficient to
constitute the crime of being an accessory after the fact to that
crime. In the Phallo-case, supra, p 567, Olivier JA,
who wrote the judgment of the Court, stated that in order to secure a
conviction the prosecution “…..must prove that the accused
performed some act or acts intended to assist the principal offender
to escape conviction.”







In
the Phallo-case 17 policemen arrested a suspect who was
thereafter in their company until he died. They then removed the
body from the place where the victim had died to some other place and
then summoned an officer to the spot where the body was removed.
They then reported to the officer that the deceased had died at the
second spot and that he died of natural causes. The Court was
however satisfied that it was proved beyond reasonable doubt that the
deceased did not die at the second spot and that he did not die as a
result of natural causes. All the appellants also made statements
in which they repeated this version. One of the grounds on which
the appellants was convicted was their failure to report the true
facts to a superior officer. In this regard the Supreme Court of
Appeal found that failure to report a crime would not ordinarily give
rise to a conviction as an accessory after the fact, but the Court
stated that police officers had a duty to report a crime. In
regard to the false statements made by the appellants, Olivier JA
said the following on p 567, namely:







If
mere intentional failure by a police officer to report a crime
constitutes the necessary act giving rise to a conviction of being an
accessory after the fact to the crime, a fortiori do the false
statements made by the officer prior to being charged. The
statements now under discussion were obviously made with the
intention of misleading any police investigation and shielding the
principal offender or offenders.”











(See
further S v Jonathan, supra, and S v Munonjo,
supra.)







I
respectfully agree with the law as set out by the learned Judge of
Appeal. The telling of lies with the intent to shield the actual
offender or offenders from a conviction can be as effective as any
other act, and even more so, as was clearly demonstrated by the
present case and the other cases referred to herein before. I also
agree with Mr. Small that this finding does not interfere with the
right of an accused to remain silent. If, after proper caution, the
accused persons nevertheless decide to make false statements, with
the intention to shield the actual perpetrator, then they do so at
their peril. This is a situation which can in any event only arise
where the Gani principle applies. I do however share the
reservations expressed by Botha, JA, who wrote the minority judgment
in the Jonathan-case, supra, concerning what statements
made by the accused persons would constitute an act or acts which
would give rise to a conviction as an accessory after the fact of a
crime. (See p 657 C-H). My reservations are however limited to
evidence given by the accused during the trial on which they are
arraigned. This would not include statements made by the accused
when they were called upon to plead before a magistrate during Sec.
119 proceedings. In my opinion the two situations differ
materially. Firstly there is no duty upon them to make any
statement at the stage of the Sec. 119 proceedings and they are
specifically warned to that effect. Although there is also no duty
on them to give evidence at their trial, once a prima facie case
is made out by the prosecution they may have to testify in order to
avoid any prejudicial inference drawn by the Court because of their
silence. Secondly, and after the pleas in terms of Sec. 119, the
matter is in the hands of the Prosecutor-General who must now decide
whether to prosecute and on what charges. Any statement made by the
accused at this stage may still have an influence on the further
investigation of the case.







In
regard to the first count Mr. Small submitted that the following acts
by the appellants would constitute them liable as accessories after
the fact to the crime of murder, namely:







First
Appellant






(i) He
lied to the Magistrate at the Sec. 119 proceedings when he said that
the deceased killed himself accidentally;




  1. He
    lied when he gave evidence at his trial when he repeated the same
    version; and









  1. He
    took away the firearm from the scene of the crime.








Second
appellant







  1. He
    lied to the police when he told them that the deceased killed
    himself accidentally;









  1. He
    lied when he repeated this version during the Sec. 119 proceedings
    before the Magistrate; and









  1. He
    lied again when he testified in Court and repeated the same version.








Third
appellant








  1. He
    lied when he made a warning statement to the police and told them
    that the deceased accidentally killed himself;









  1. He
    lied to the Magistrate when he repeated the same version; and









  1. He
    lied when he testified during the trial that the deceased
    accidentally killed himself.








In
my opinion there can be no doubt that the three appellants conspired
to tell lies in order to shield the actual perpetrator to escape
conviction. Only one person could have fired the shot that killed
the deceased. The second appellant was the first person who was
arrested by the police. He was found at a different location from
where the other two appellants were found. When second appellant
was arrested he was ready with his story that the deceased shot and
killed himself. After the other two appellants were arrested they
were all three interrogated by Sgt. Awarab. Awarab testified that
all of them repeated the same story of an accidental killing by the
deceased himself. This then became the theme, which was repeated
again and again. The lies to the police and the magistrate
sufficiently constitute acts whereby the appellants are liable as
accessories after the fact to the crime of murder and it is not
necessary for me to decide whether the lies told in Court can or
cannot also constitute such acts.







In
regard to the first appellant the State also relied on the removal of
the firearm from the scene of the crime. I have found that it was
not proven who in fact was responsible for this removal. It is
however so that the first appellant, well knowing that this was the
murder weapon, later disposed of it to Ipinge.







For
the foregoing reasons I am satisfied that the conviction of the first
appellant of murder on Count 1 cannot be sustained and that the
conviction must be set aside and be substituted by a conviction of
being guilty as an accessory after the fact to the crime of murder.
Second and third appellants were convicted of murder but as
accessories after the fact. In my opinion the appellants could not
be convicted of murder and the convictions should also be altered to
those of accessories after the fact to the crime of murder.







On
Count 2 the first appellant was convicted of theft of a firearm. I
agree with Mr. Small that this conviction is in order. The
appellant’s explanation why he sold the firearm ranges between
allegations that he was shocked to that he wanted to sell it on
behalf of the family of the deceased. He however admitted that he
did not know any family members of the deceased and also did not know
where to find them. The learned Judge-a-quo correctly
rejected this explanation. First appellant was also convicted on
Count 3 of an attempt to defeat or obstruct the course of justice.
It was conceded by Mr. Small that this conviction could not stand if
the conviction of the appellant on Count 1 was set aside and a
conviction of an accessory after the fact to the crime of murder was
substituted. This concession was in my opinion correctly made
because the same evidence would constitute both crimes. See also
the discussion by Snyman, op. cit., p266.







Second
appellant was convicted on Count 2 of the theft of the firearm. It
was alleged in the charge sheet that the firearm was stolen on the
17th October 1997, that was the date of the incident when
the deceased was killed. There was in my opinion no evidence to
substantiate this conviction and Mr. Small also conceded this. The
second appellant admitted that he was in possession of this firearm
and he should be convicted of the alternative charge to Count 2,
namely that he contravened sec. 2 of Act No. 7 of 1996, being in
unlawful possession of a firearm without the necessary license.







Third
appellant was only convicted on Count 1 as an accessory after the
fact and this conviction, as amended, is upheld.







The
appellants also appealed against the sentences imposed by the learned
Judge. Because of his conviction of murder on Count 1 first
appellant was sentenced to 20 years imprisonment. On Counts 2 and 3
the appellant was also sentenced to imprisonment but these sentences
were ordered to run concurrently with the sentence of 20 years on
Count 1. This was clearly done to ameliorate the cumulative effect
of the three sentences. As a result of the setting aside of the
conviction on Count 1 and the substitution therefore of a conviction
as an accessory after the fact, together with the setting aside of
the conviction of an attempt to defeat or obstruct the course of
justice on Count 3, it follows that there must be a reconsideration
of the sentence of the first appellant.







The
second appellant was sentenced to 10 years imprisonment on his
conviction as an accessory after the fact on Count 1 and 18 months
imprisonment on Count 2. The sentence on Count 2 was ordered to
run concurrently with the sentence on Count 1. The third appellant
received a sentence of 10 years imprisonment on his conviction as an
accessory after the fact to the crime of murder on Count 1.







All
the appellants also have previous convictions. First appellant has
a previous conviction for theft and one for assault with intent to do
grievous bodily harm. He was sentenced for these crimes in October
1993 and August 1995 respectively, and both sentences were suspended
on certain conditions. Second appellant has a previous conviction
for assault with intent to do grievous bodily harm and a previous
conviction for attempted theft as well as another conviction for
theft. He was sentenced in April 1995, June 1996 and April 1998
respectively. In the first two instances a fine of N$600 was
imposed, whereas in the last instance he was sentenced to 12 months
imprisonment. It is not clear when the second theft was committed
and I shall not take this conviction into account. The third
appellant has one previous conviction for housebreaking with the
intent to commit a crime unknown to the prosecutor and was sentenced
to 9 months imprisonment in September 1993. The Court-a-quo,
correctly in my view, regarded the third appellant as a first
offender in regard to his conviction as an accessory after the fact.
On the charge sheet the respective ages of the appellants are given
as 20 years, 18 years and 20 years respectively.







Sec.
257 of the Act provides that punishment for an accessory after the
fact shall be at the discretion of the Court provided that such
punishment shall not exceed the punishment, which may be imposed in
respect of the offence with reference to which the accused is
convicted as an accessory.







Although
punishment must be determined on the facts of each particular case
and the personal circumstances of each accused, I have found it
useful to look at punishment imposed in other cases. These ranged
between an order for correctional supervision and 20 years
imprisonment. In the latter instance a sentence of 20 years
imprisonment was not disturbed on appeal because the two appellants
had two previous convictions each for murder. In the Munonjo-case,
supra, two people were killed and the appellants were
sentenced to 8 years imprisonment on each conviction as an accessory
after the fact. The Court however ordered that the sentences should
run concurrently. In the recent case of Phallo the accused
were sentenced to various terms of imprisonment by the trial Court.
On appeal to the Full Bench the sentences were reduced to 8 years.
When the matter came on appeal before the Supreme Court of Appeal
that Court declined to disturb the sentences. The Court however
took an extremely serious view of the conduct of the police officers
that put their loyalties to colleagues above their duty as police
officers. (See S v Jonathan, supra; S v Munonjo en
‘n Ander
, supra; S v Nkosi and Another, 1991 (2)
SACR 194(A); S v Kleynhans, 1994 (1) SACR 195 (O); S v
Noordien en Andere
, 1998 (2) SACR 510 (NKA); S v Phallo and
Others
, supra, and S v Vilikazi and Others, 2000
(1) SACR 140 (WLD)).







The
offence of being an accessory after the fact to the crime of murder
is no doubt serious. It manifests itself in many ways and in this
instance the acts committed by the appellants consisted mainly in the
telling of lies through which they succeeded in shielding the actual
perpetrator from a conviction on the charge of murder. No authority
is needed to support the principle that sentencing is pre-eminently a
matter for the discretion of the trial court and that a Court of
Appeal would only interfere where the trial court had misdirected
itself or where it can be said that the sentence is such that a
reasonable court would not have imposed it.







However,
in my opinion there is merit in the submission of Ms. Hamutenya that
the Court-a-quo over emphasized the interest of the public
against the personal circumstances of the appellants and the other
principles applicable to sentencing. In a short judgment of which
the reasons for sentence did not take up more than one and
three-quarters folio pages, the learned Judge-a-quo no less
than five times referred to the interest of the community, the public
outcry against lenient sentences and the Court’s duty to protect
the public. There is no doubt that the interest of the community
in the sentencing process is an important one, one which Courts have
a duty to consider when they have to determine an appropriate
sentence in a particular case. Depending on the circumstances of
each case, the interests of the community and their protection may be
an overriding factor which does not only determine the type of
punishment but also the duration thereof. It does however not
follow from this that the other principles applicable to sentencing
should not play a role in the determining of what an appropriate
sentence would be. All the appellants are relatively young persons
and although the Court correctly regarded third appellant as a first
offender for purposes of sentencing he effectively received the same
sentence of 10 years imprisonment, which was also meted out to the
second appellant with a previous conviction for assault with intent
to commit grievous bodily harm. In so far as it may be permissible
to also look at more or less similar cases, the sentences of 10 years
imprisonment, in the present instance and under the particular
circumstances, also seem to be much harsher.







For
the foregoing reasons I am of the opinion that the learned
Judge-a-quo committed a misdirection by over-emphasizing the
interests of the community at the expense of the other principles
applicable to sentencing. This Court is therefore competent to
interfere with the sentences imposed on this Count. In my opinion a
sentence of 8 years imprisonment in regard to the first and second
appellants, and a sentence of 7 years imprisonment in regard to the
third appellant will achieve all the objects that the learned
Judge-a-quo had in mind.







On
count 2 the first appellant was sentenced to imprisonment of 18
months which was ordered to run concurrently with his sentence of 20
years which latter sentence must now be set aside. Bearing in mind
the relevant previous conviction this sentence of 18 months
imprisonment is in my opinion in order.







The
conviction of the second appellant of theft must be set aside. He
stands now convicted of the alternative charge to count 2, i.e. the
unlawful possession of a firearm. This in itself is a serious
offence and one where imprisonment of a first offender is often
justified. Bearing in mind the circumstances of this case I am
satisfied that a sentence of six months imprisonment would be
appropriate. I am further of the opinion that there is no good
reason why this Court should order that the additional sentences
should run concurrently with those imposed on count 1 as the
cumulative effect of the sentences imposed no longer require such an
order and first and second appellants will have to serve these
sentences on count 2 and the alternative charge thereto.







In
the result the following orders are made.







1. AD
THE APPEALS AGAINST CONVICTION







FIRST
APPELLANT



COUNT
1



The
appeal against his conviction of Murder is successful and the
conviction and sentence are set aside and the following conviction is
substituted therefore, namely:



The
first appellant is convicted of the offence of being an accessory
after the fact to the crime of murder.







COUNT
2



The
appeal against his conviction of theft is dismissed.







COUNT
3



The
appeal succeeds and the conviction of an attempt to defeat or
obstruct the course of justice, and the sentence imposed, are set
aside.







SECOND
APPELLANT



COUNT
1



The
appeal against his conviction is dismissed but the wording of the
conviction is amended to read as follows:



The
appellant is guilty of the offence of an accessory after the fact to
the crime of murder.







COUNT
2



The
appeal against his conviction of theft succeeds and such conviction
and sentence are set aside. The appellant is however convicted of
the alternative charge namely being in unlawful possession of a
firearm in contravention of the provisions of Sec 2 of Act 7 of 1996.







THIRD
APPELLANT



COUNT
1



The
appeal against his conviction is dismissed but the wording thereof is
amended to read as follows:



The
appellant is convicted of the offence of being an accessory after the
fact to the crime of murder.







2. AD
THE APPEALS AGAINST SENTENCE



FIRST
APPELLANT



COUNT
1



8
(eight) years imprisonment.







COUNT
2



The
appellant’s appeal against his sentence of 18 (eighteen) months
imprisonment is dismissed and it is further ordered that this
sentence be served consecutively.







SECOND
APPELLANT



COUNT
1



The
appeal against his sentence of 10 (ten) years imprisonment succeeds
and the following sentence is substituted therefore, namely:



8
(eight) years imprisonment.







ALTERNATIVE
COUNT TO COUNT 2



6
(six) months imprisonment and it is further ordered that this
sentence be served consecutively.







THIRD
APPELLANT



COUNT
1



The
appeal against his sentence of 10 (ten) years imprisonment succeeds
and such sentence is set aside and the following sentence is
substituted therefore, namely:



7
(seven) years imprisonment.








(signed)
STRYDOM, CJ











I
agree,








(signed)
O’LINN, AJA








I
agree,








(signed)
CHOMBA AJA














COUNSEL
ON BEHALF OF THE APPELLANTS: ADV. L. Hamutenya



(Pro-Amico)





COUNSEL
ON BEHALF OF THE RESPONDENT: ADV. D.F. Small



(Prosecutor-General)