Court name
Supreme Court
Case name
S v Labuschagne
Media neutral citation
[2002] NASC 6











CASE NO.: A. 01/2001


IN
THE SUPREME COURT OF NAMIBIA





In
the appeal of:





WOUTER
OTTO KAREL LABUSCHAGNE APPELLANT





And





THE
STATE RESPONDENT








CORAM: Strydom,
C.J.; O’Linn, A.J.A.; et Chomba, A.J.A.


HEARD
ON: 2001/10/04



DELIVERED
ON: 28/03/2002










APPEAL
JUDGMENT








STRYDOM,
C.J.: The appellant, as accused No. 1, together with his father,
Jan Otto Karel Labuschagne (accused No. 2) and one Jacobus Abraham
Myburgh, (accused No. 3) appeared before Mtambanengwe, J, on the
following charges, namely:






  1. Murder,
    in respect of the killing of Constable Johannes Tsamaseb;








  1. Attempted
    murder in respect of Constable Nakanuku;








  1. Contravening
    Section 28 (b) of Proclamation 17 of 1939, i.e. dealing in rough and
    uncut diamonds;








  1. Attempted
    murder in respect of Warrant Officer Cecil George Routh; and








  1. Attempted
    murder in respect of Dep./Comm. McKay.






Save
for the first Count of murder, alternative charges were included in
respect of all the other Counts. I will refer to these charges if
it becomes necessary. The appellant pleaded not guilty to Counts
1,2,4 and 5 and guilty to Count 3. After a lengthy trial he was
convicted on Counts 1, 3, 4 and 5 and was sentenced to a total of 25
years imprisonment. An application for leave to appeal was
successful in regard to the convictions in respect of Counts 1, 4 and
5 but unsuccessful in regard to the sentences imposed on those
Counts.





Ms.
Zwiegelaar appeared for the appellant and Mr. Small for the
respondent. I want to express my appreciation to Counsel for the
full presentation of their cases to the Court especially where the
Court is faced with a voluminous record.





A
short summary setting out the background from which the above charges
emanate, was given by the learned Judge a quo as follows:






During
February 1998 the police of the Protected Resources Unit (PRU)
received information that the 3 accused were interested to buy rough
or uncut diamonds. As a result a police operation or action was set
up. The operation was to take place at Arebusch Lodge, Windhoek.
Two adjacent rooms were booked at the Lodge one to be used by the
would-be-sellers, the two police officers who were to conduct the
fake sale with the three accused, and one to be used by the
observation team. Constable Nakanuku and Constable Tsamaseb, the
deceased, were the two police officers who were to act as the
“sellers” while Warrant Officer (Sergeant then) Routh, Constables
Nganjone and Namoloh were to be part of the observation team. The
observation team was to listen in from the next room and was in
telephone or radio contact with the selling team. At the initial
stage of the action the informer, called William, who was with
accused 3, and Tsamaseb were asked by accused 1 to leave the room
where the sale was to take place, thus leaving Nakanuku and accused 1
alone. Then Nakanuku showed accused 1 the diamonds that were to be
part of the transaction and after the latter had tested and weighed
them he also left after telling Nakanuku that they would return after
deciding what they would pay for the diamonds.







Subsequently,
at the instance of the accused, the venue to conclude the deal was
changed and it was decided it would take place outside on the open
road. The road leading to nearby Windhoek Golf Course was chosen.
Warrant Officer Routh said as a precaution to safeguard the
transaction, now moved to an open place, that is outside the lodge,
he called in aid, Chief Inspector McKay, the Commanding Officer of
the Unit, that is the PRU, and it was then decided that Warrant
Officer Prinsloo and Constable Minikasika would be standing on the
other side of the Golf Course, Routh and McKay would stand at the
Olympia side of the Lodge while Nganjone an Namoloh would go down on
foot to the river bed where they would be close to Nakanuku and
Tsamaseb.







A
sketch plan of the area, part of Exhibit D, shows a road crossing the
main Windhoek/Rehoboth Road, the road to South Africa, (I shall refer
to that as the crossing henceforth). From Olympia towards the Golf
Course; to the left is the Windhoek Truck Port, while the entrance to
the Lodge is on the right after the crossing, and the road goes
across a river-bed before turning to run North-South along the Golf
Course. From the scene of where the deal was concluded to the
riverbed the distance is indicated as 27.80 meters and is shown on
the sketch as the distance from W – AB. From that scene to the
cross-road is indicated as 300 meters, that is also shown on the
photograph in Exhibit D, as Q to A.”











It
is clear that the sudden and unexpected change of the venue from
Arebusch Lodge to the open road leading to the Golf Course caught the
Police Officers, organizing the operation, by surprise. The result
was that it became impossible to keep proper observation and to have
other members nearby who could perform the arrest once a transaction
was concluded. It was therefore left to Constables Tsamaseb (the
deceased) and Nakanuku to improvise and to do the necessary.
Because of the killing of the deceased, Nakanuku was the only witness
for the State who could testify about what had happened at the venue
where the diamond transaction was concluded and how it came about
that the deceased was killed.





Although
the evidence of the appellant as to what had happened on this fateful
day differs widely from that of Nakanuku and also the other State
witnesses such as Routh and McKay, there are also many instances
where the evidence overlaps and which can be regarded as common
cause. It is clear that the State and Defence were in agreement as
to the persons who were present at the new venue on the road to the
Golf Course. Those were the three accused persons and the two
aforementioned Constables. It is also common cause that the
appellant was together with accused No. 2, his father, in one car,
and accused No. 3 was at the scene in his own car. An illegal
diamond transaction took place whereby a number of rough and uncut
diamonds were “sold” to the appellant and his co-accused and that
these diamonds were handed to appellant and that money was in turn
handed to Nakanuku. The evidence also showed that accused No. 3
was the first to leave the scene in his motor vehicle and that he
returned the way they came, i.e. back to where this road intersects
with the Windhoek/Rehoboth main road.





It
is also not in dispute that the first shot was fired by the deceased
and that thereafter various shots were fired by the appellant, four
of which hit the deceased in his upper body and back. In this
regard a written statement by the appellant was handed in, in which
he admitted that he fired these shots and in which the identity of
the deceased and the fact that he suffered no further injuries until
a post mortem examination was performed on the body by Dr. Linda
Liebenberg, was also admitted. It was also not disputed by the
Defence that the deceased had succumbed to his wounds at the scene of
the shooting.





It
is common cause that the appellant and accused No. 2 then also left
the scene, and after making a U-turn, returned the way they had come.
Accused No. 2 was the driver of the car with the appellant sitting
in the back of the car on the left side. At the crossing of this
road with the Windhoek/Rehoboth main road, shots were exchanged
between the appellant and Routh and McKay where Routh was wounded.
It later turned out that some of the shots fired by Routh hit the
motor vehicle in which appellant and accused No. 2 tried to escape.
One of these shots penetrated the cabin of the vehicle and the
bullet was found embedded in one of the front seats. At this stage
I must mention that the appellant was also wounded but it is disputed
where and under what circumstances he was so hit.





The
police did not succeed in stopping the vehicle of accused No. 2.
Accused No. 2 was able to turn off the road before reaching the
crossing whereafter they again joined the main road and sped
southward in the direction of Rehoboth. McKay pursued them and it
is common cause that at least on one occasion the appellant fired
shots on the vehicle driven by McKay. During the chase both
vehicles also passed other vehicles on the road. In this regard
McKay testified that two of the vehicles were marked police vehicles.
Appellant did not dispute this evidence but denied that he saw
these vehicles. The evidence is further that at one stage
appellant and his father turned around, back in the direction of
Windhoek, and McKay, who was then following some distance behind
their vehicle, also turned around and returned to Windhoek. The
motor vehicle of accused No. 2, who was now following McKay, ran out
of petrol. It seems that one of the shots fired by Routh hit and
damaged the petrol tank and it was leaking. After following the
main road for some distance they, i.e. appellant and accused No. 2,
turned off on a gravel road where they soon ran out of petrol. The
police, in the meantime, acquired the assistance of a helicopter and
the appellant and his father were arrested. After the arrest, the
police found and confiscated two pistols, one belonging to the
appellant and one belonging to accused No. 2, as well as rounds of
ammunition.





These
weapons, as well as weapons used by the police during the shoot-outs,
were sent away for forensic testing. The police also collected
spent cartridges at the various scenes and these, together with spent
bullets retrieved from the body of the deceased, from Routh and the
motor vehicle of accused No. 2, were also forensically tested and the
evidence of the ballistic expert forms an important part of the
State’s case.





Returning
now to the scene of the shooting, it was pointed out by the learned
Judge a quo that up to the stage when the diamonds and money
changed hands, there were not any material differences between the
evidence of Nakanuku and the appellant. Nakanuku testified that
after the transaction was concluded the deceased asked the appellant
for his telephone number. Appellant complied by writing the number on
a piece of paper and handing it to the deceased. Thereafter the
deceased informed the parties that he and Nakanuku were police
constables and that this was a police action. Accused No. 3
thereupon jumped into his motor vehicle and drove away. The witness
said that at that stage he was standing in front of the vehicle and
had to jump out of the way to avoid being run over. The deceased
then fired a warning shot into the air whereafter the appellant
started shooting at the deceased at very close range. The deceased
moved back towards the riverbed and as he fell down he fired another
shot, also into the air. It was the opinion of the witness that
this shot was not deliberately fired but that it was more of a reflex
action as by then the deceased was already fatally wounded.





After
these shots were fired the appellant shouted to accused No. 2 to
drive away. Before driving into a southerly direction, the
appellant fired a shot at the witness over the roof of the motor
vehicle. The motor vehicle drove a short distance and then made a
U-turn and drove in the direction of the crossing. Nakanuku
testified that the deceased, when he identified them as police
officers, also took out his appointment certificate and showed this
to the accused.





Warrant
Officer Routh testified that he agreed with the deceased that the
latter would alert the observation team after the transaction was
concluded by activating the cell phone in his possession. This would
in turn ring one of the phones in possession of the observation team.
Routh said that he was standing with Chief Inspector McKay at a
place some 174.5 metres to the eastern side of the crossing when they
heard a shot. The two of them jumped into their respective vehicles
and drove towards the crossing. The witness saw accused No. 3
approaching in his car at high speed. He stopped him by driving in
front of the accused and by flashing his lights. Routh got out of
his car with his pistol in his hand and he showed the accused his
appointment certificate and told him that he was a police officer.
He also explained to this accused that this was a police action and
searched him. McKay, after asking the witness if everything was in
order, drove further along the road in the direction of the Golf
Course.





Whilst
the witness was busy with accused No. 3 he saw the vehicle of
accused No. 2 approaching. It passed the vehicle of McKay and Routh
stepped out into the road. He saw that accused No. 2 was driving
the vehicle and appellant was sitting at the back passenger seat.
Routh said that he still had his pistol in his hand and pointed it at
the ground. He shouted “Police stop, stop!” and showed his
appointment certificate by holding it shoulder high. He saw the
appellant open the back door of the vehicle and the witness gained
the impression that he wanted to run away. The witness continued to
shout in Afrikaans that they were police officers and that they, i.e.
the accused, had to stop. The vehicle was indeed stopped some 15 to
17 paces from Routh and he saw appellant put out his left foot on to
the ground, bring up his left arm and start firing shots at him. He
immediately dived behind his motor vehicle but was hit by one of the
shots. He then saw appellant getting down in the backseat of the
vehicle and the vehicle was driven past them and onto the
Windhoek/Rehoboth trunk road. As the car passed him he fired
various shots at it and at the tyres of the vehicle. McKay who, in
the meantime, had turned his vehicle around, followed the accused in
the direction of Rehoboth. Routh said he fired seven to nine shots
at the vehicle of the accused as it went past him.





Chief
Inspector McKay said that he was summoned to assist with the
operation by Warrant Officer Routh. This witness described how
accused No. 3 was stopped. He said that both Routh and he shouted
“Police, police” and when he saw that Routh had the situation
under control, he continued along the road to the Golf Course. Just
before he entered the river he saw a green Toyota motor vehicle
coming in his direction and he knew that it was the other accused
persons. He tried to stop them but failed. He reversed back the
way he had come. He saw Routh standing in the road with his left arm
raised and holding his firearm. The witness further saw the
appellant opening the left rear door and the witness thought he
wanted to get rid of the diamonds. McKay then swung his vehicle
around so that it faced towards the crossing and stopped. The witness
said he jumped out of his car with his firearm at the ready and he
shouted “Police, police”. He said he could also hear Routh
shouting “Police, police”. The next moment appellant got out of
the car and while he was leaning on the door of the car he started
shooting in the direction of Routh. McKay himself then started to
shoot but after he had fired two shots his firearm jammed and he
could not use it any longer. The vehicle, in which the appellant
and accused No. 2 were, turned off the road to the right and took the
main road to Rehoboth.





After
ascertaining what the position in regard to Routh was, McKay pursued
the appellant and accused No. 2. At one stage he passed the vehicle
of the accused and saw two clearly marked police vehicles in front of
him. They had blue lights and police registration numbers. The
witness drove up beside the leading vehicle and tried to elicit their
help but they did not understand what he wanted them to do. At this
stage the car of appellant and accused No. 2 passed his vehicle and
was now again leading in front. During the chase McKay contacted
his station and asked for assistance as well as a helicopter. He
continued the chase and at one stage he saw appellant leaning out of
the left rear window with a firearm in his hand. The next moment the
witness heard two shots. After some distance this was again
repeated and on this occasion McKay said he heard about four or five
shots.





In
the vicinity of the farm Krumhuk, McKay saw the vehicle in front of
him slow down and make a u-turn back in his direction. Because he
did not have a weapon, the witness said that he also turned around
and proceeded back to Windhoek. The witness testified that at times
during the chase he travelled at a speed of 160 kilometers per hour.





As
was pointed out previously there are no material conflicts between
the version of the State and the appellant concerning the illegal
diamond transaction itself. At the chosen venue accused No. 3 and
Nakanuku drove in a southerly direction in the car of the accused.
Nakanuku was given the money, which he counted and was satisfied that
the amount was correct. They then returned to where the appellant,
accused No. 2 and the deceased were sitting in the car of accused No.
2. Appellant and the deceased were sitting in the back of the car.
In the meantime appellant was given the diamonds, which were in a
plastic bag, and tested them.





Appellant
testified that he could see that the deceased was not at ease. He
was looking around and was asking why accused No. 3 and Nakanuku took
so long to return. At the return of the latter accused No. 3,
Nakanuku and the deceased got out of the respective cars. Nakanuku
and deceased were standing behind the car of accused No. 2.
Appellant said that he became restless and he could not understand
why Nakanuku and the deceased did not leave in the car of accused No.
3. He then decided to get out of his car and ask them why they
were not driving off. When he got out of the car the deceased was
standing beside him. Appellant then felt the deceased put his hand
in his shirt pocket where he kept a diary and in which there was also
an empty plastic bag. He said he pushed the hand of the deceased
away. The latter then saw the plastic bag containing the diamonds,
in the left hand of the appellant and tried to take it. Appellant
said he had to twist his hand out of that of the deceased and the
deceased then moved backwards in the direction of the riverbed, about
six metres away. At this stage appellant was standing towards the
back of the vehicle. He then turned in the direction of accused No.
3 and asked why they did not drive off. Appellant then heard the
deceased whistling at his back and when he turned around to face him
he whistled again and looked towards the river. Appellant realized
that the deceased was calling someone. He then turned towards
accused No. 2, who was still behind the steering wheel and said to
him, “Father here is a robbery coming”. Appellant testified
that he was slightly bent down and was talking into the car,
seemingly through the open back door. At this stage his back was
turned on the deceased. He said he saw the vehicle of accused No. 3
pull away and he then heard two shots and he felt a burning sensation
on his right side. Appellant said he turned around slowly and when
his side was facing this person he took out his pistol, took off the
safety catch, and quickly fired two shots at this person, seemingly
the deceased. He said when he turned around the deceased was
standing with his pistol in his hand and it was pointed towards him.
He, on two further occasions, fired two shots each at the deceased.
He estimated that the first two shots were fired when the deceased
was six metres away from him. The next two shots were fired when
the deceased was about fifteen metres away and the last two at about
twenty-seven metres away from him. Appellant said that he did not
get the impression that any of the shots had hit the deceased. The
deceased, in turn, had fired some six shots.





When
they drove off after the shooting, appellant said they were going in
a southerly direction on a part of the road which was unknown to him,
and he told accused No. 2 to turn around to go back in the direction
from which they had come. On their way to the crossing appellant
partially loaded the magazine of his pistol and also armed himself
with the pistol, which was in the boot of the car, belonging to
accused No. 2,. As they drove out of the dip, formed by the
riverbed, appellant saw three motor vehicles parked off the road to
the left of the crossing. One of these was the vehicle of accused
No. 3 and he also saw the accused standing next to his vehicle. The
other two vehicles were a Ford Sapphire and a pick-up truck. Two
coloured men were standing next to these vehicles and, as they
approached, these two men moved onto the road and the appellant saw
that they had firearms and that these firearms were pointed at them.
He shouted to his father to turn to the right off the road and he
positioned himself by partially leaning out of the car’s window
whilst he held the pistol in both hands. Appellant said that
immediately when the car started to turn, shots were fired at them
and he then returned the fire. He fired four shots in quick
succession at the persons who were both firing simultaneously.
Accused No. 2 managed to turn to the right and when they joined the
Windhoek/Rehoboth main road again, they drove in the direction of
Rehoboth.





The
appellant described how he subsequently took cover inside the car and
said that he was sitting in the position as depicted in photograph
21, Exhibit “D”. He further denied that it was at this second
shooting that he was wounded by the bullet which had entered the
cabin of the car as shown on this photograph as point BL 5.
Appellant also denied that Routh showed his appointment certificate
or that he heard anybody shouting that they were police and that they
should stop.





As
to the further course of events, which took place when McKay pursued
the vehicle of accused No. 2, there is not much in dispute except
that the appellant said that he only, at one point, fired two shots
at the vehicle of McKay in an attempt to immobilize the vehicle and
to stop the chase. As was pointed out by the Court a quo
ballistic evidence in the form of spent cartridges was found at the
one spot indicated by McKay, but could not be found at the second
spot indicated by McKay. The appellant further denied that he
observed, during this chase, any vehicles which were police vehicles
although, at the same time, he said that he knew what a police
vehicle looked like.





Neither
accused No. 2 nor accused No. 3 gave evidence under oath. The
appellant however called his mother, Mrs. Labuschagne, who inter
alia
, testified that she received a phone call from the appellant
late on the afternoon of the 25th February, in which he
told her that they were involved in an armed robbery and in a
shooting. In regard to accused No. 3, his application for discharge
on Counts 1, 2, 4 and 5, at the end of the States case, was
successful. Not so the application of accused No. 2. However, in
addition to his plea of guilty on Count 3, this accused was also only
convicted as an accessory after the fact to the crime of murder on
Count 1. He was found not guilty in respect of the Counts dealing
with attempted murder in regard to Routh and McKay. All the
accused, including the appellant, were found not guilty and were
discharged in regard to the charge of attempted murder relating to
Constable Nakanuku, i.e. Count 2.





In
her address to us, Counsel for the appellant mainly attacked the
evidence of Nakanuku and the findings by the Court a quo based
on the evidence of this witness. However, Counsel conceded, at the
outset, that the learned Judge correctly accepted that Nakanuku was a
single witness in regard to the killing of the deceased. Counsel
also accepted that the learned Judge applied the principles
concerning single witnesses and that he approached this evidence with
caution. He correctly pointed out a number of instances where
Nakanuku’s evidence was unsatisfactory. The learned Judge further
analysed the evidence and correctly summarized the discrepancies
between Nakanuku’s evidence and the contents of his witness
statements. All this notwithstanding, it seems that Ms. Zwiegelaar
was of the opinion that the Court should have rejected this evidence
in toto.





Before
dealing with this criticism by Counsel, there are two aspects that
must not be overlooked. The first is that the Court a quo
clearly believed the two State witnesses McKay and Routh, and if the
Court did not misdirect itself in this regard, this is an important
factor which must play a role in the overall evaluation of all the
evidence, including that of the appellant and may also reflect on
what had happened at the scene where the deceased was killed. The
second aspect is that if the evidence of Nakanuku is rejected in
part, or even all of it, it does not follow that the Court had to
accept the version of the appellant. That depends on whether there
is a reasonable possibility that the version may be true. This in
turn depends on all the evidence and the probabilities emerging there
from.





Ms.
Zwiegelaar strongly criticized the evidence of Nakanuku. The first
issue related to the question whether, and how, if at all, the
deceased and Nakanuku identified themselves to the appellant and
other accused as police officers. The second issue was what signal
was agreed to inform those officers not present at the scene that the
illegal transaction was concluded and that they should approach.
There is no doubt that in regard to both these issues the evidence of
Nakanuku is suspect. The witness made a police statement soon after
the incident occurred. In this statement he clearly ruled out the
possibility that the deceased, when he identified them to the
appellant, made use of his appointment certificate to do so. He
further stated that it was a pre-arranged signal that the deceased
would alert the other officers that a transaction was concluded by
firing a shot in the air. However when the witness testified he
first of all stated that the deceased had his appointment certificate
with him and in fact showed it to the appellant and other accused
when he arrested them. In regard to the pre-arranged signal he
testified that it was agreed that the deceased would activate the
dial of his cell phone to alert Routh and the others that a
transaction was completed. He now stated that a shot was fired by
the deceased in the air in an attempt to stop accused No. 3, who was
getting into his car to leave the scene.





The
Court a quo did not accept Nakanuku’s evidence concerning
the use of the appointment certificate by the deceased. Apart from
the conflict between his evidence in Court and the statement made by
him there were other reasons why the Court rejected this evidence.
No appointment certificate was subsequently found on the person of
the deceased. An appointment certificate was found, on later
investigation, in the desk of the deceased at his office. To get
over this hurdle, Nakanuku testified that the deceased had two
certificates. He said it happened when the deceased lost his
certificate and applied and was given another one. Subsequently he
again found the lost certificate and was thus in possession of two
certificates. McKay conceded during his evidence that this was a
possibility but he could not remember that he in fact issued a second
certificate to the deceased. Routh also did not want to commit
himself in this regard. The criticism levelled at the two officers
by Ms. Zwiegelaar that by their evidence they did not want to exclude
such possibility is in my opinion without substance. It seems to me
that it is also highly improbable that the deceased would have had an
appointment certificate in his possession. He knew that he would be
in direct contact with the buyers and if he was searched and found in
possession of an appointment certificate it would compromise the
whole operation. However, Nakanuku’s evidence that the deceased
had two appointment certificates may well be true but on the evidence
the Court a quo correctly found that the deceased did not have
a certificate on his person at the time when he arrested the
appellant and other accused.





It
was convenient to deal with the issue concerning the appointment
certificate in isolation and without reference to the other evidence
of what had happened at the scene where the deceased was shot. In
regard to the evidence of Nakanuku the Court a quo only
accepted his evidence in so far as other credible evidence or the
probabilities supported it. In order to evaluate this finding by
the Court and to determine whether the Court misdirected itself it
is, in my opinion, necessary to look at all the evidence and that
includes the evidence put before the Court by the appellant and his
witnesses. In this regard the starting point, as was also pointed
out by the Court a quo, is that it was admitted by the
appellant that he shot and killed the deceased, as was found by Dr.
Liebenberg in her post mortem examination.





Routh
testified that as a result of the change of venue by the accused, it
was now impossible to have observers in place that would have been
able to effect an arrest. The finding by the Court a quo that
the deceased indeed identified them as police officers to the
appellant and other accused, was heavily criticized by Ms.
Zwiegelaar. She correctly pointed out the discrepancies contained
in the evidence of the witness Nakanuku. On the other hand the
deceased knew that it was their task to effect the arrest. How on
earth would he be able to do so without informing the appellant that
they were police? That was the only way in which the deceased
could exert his authority and could hope to achieve an arrest,
especially where he could not be sure when the other police officers
would be able to get to them and render assistance if necessary.
Added to the probabilities, is the fact that the appellant’s
evidence around the shooting of the deceased is riddled with
improbability to a high degree and is further in conflict with
objective factual evidence, as I shall later try to show. There is
furthermore the strange conduct of accused No. 3 who drove away in
great haste leaving the two “sellers” who, according to
appellant, was driving around with him, stranded in the bush. In
this regard, it was pointed out by Mr. Small that the appellant had
stated under cross-examination that the shot or shots were only fired
after Accused No. 3 started to pull away. This action by accused
No. 3, which was never explained by him, supports the evidence of
Nakanuku in this regard, namely that accused No. 3 tried to get away
after it became clear that this was a police operation. In the
light of all the evidence I am satisfied that the finding of the
Court a quo was correct.





In
regard to the second issue, namely the signal to be given by the
deceased to the other police officers, Ms. Zwiegelaar submitted that
the Court a quo misdirected itself by finding that there was
corroboration for the evidence of Nakanuku that the agreed signal was
the activating of the dial of the cell phone by the deceased. I
agree with Counsel. In the light of Nakanuku’s statement that he
was informed by the deceased that the agreed signal was the firing of
a shot the fact that when he gave evidence he now tailored his
evidence to co-incide with that of the other witnesses does not
constitute corroboration of his evidence. However this does not
take the matter any further in the light of all the other findings by
the Court a quo. The Court was entitled, as it did, to
accept the evidence of Routh and McKay that that was indeed the
agreed signal. No cogent reasons were put forward by counsel and in
my opinion the Court was correct to accept this evidence. Ms.
Zwiegelaar seems to suggest that on all the evidence the firing of a
shot in the air was indeed the signal agreed to by the police
officers. However this does not seem to me to take the matter any
further. In any event it does also not fit in with the evidence of
the appellant. According to him he did not react because a shot was
fired into the air. He reacted because of his suspicion that a
robbery was coming and because this was confirmed by the deceased
firing at him and wounding him.





The
Court a quo after a thorough and careful analysis of all the
evidence rejected the version of the appellant and found that there
was not a reasonable possibility that such evidence may be true. I
am not persuaded that the learned Judge misdirected itself in this
regard. It is a truism, as was pointed out by Mr. Small, that the
trial Court has certain advantages by seeing and hearing the
witnesses, which a Court of Appeal does not have. (See R v
Dhlumayo and Another,
1948 (2) SA 677 (A) on pages 705 and 706;
Ostriches Namibia (Pty) Ltd v African Black Ostriches (Pty) Ltd,
1996 NR 139(HC) at 151G-152A). A Court of appeal will only
interfere with the findings of the trial Judge where there is a
misdirection on fact, where the reasons for its finding is shown by
the record to be unsatisfactory or, though satisfactory, it is shown
that the learned Judge overlooked other facts or probabilities.
Furthermore the misdirection must be shown to be material and not
every misdirection will enable the Court of appeal to disregard the
findings of the trial Court. (See in this regard the Dhlumayo
–case
, supra, at page 701 to 703.)





In
regard to what had happened at the shooting and killing of the
deceased, the learned trial Judge came to the conclusion that not
only was the version of the appellant inherently so improbable that
it was false and could be rejected, it was also in conflict with the
objective factual evidence and the evidence of Nakanuku where such
evidence was supported by other cogent evidence. A few examples
would suffice and would support the correctness of the Court’s
findings in this regard. The appellant testified that after he
alighted from the car to find out why accused No. 3 and the two
“sellers” did not leave, the deceased tried to retrieve the
packet of diamonds and in the end the appellant had to wrestle to
free his hand from the grip of the deceased. This scenario sketched
by the appellant was not only improbable but also highly unlikely.
The whole purpose of the operation was to enter into a transaction
with the accused whereby diamonds would be placed in their possession
so that those who later come to the scene may observe the diamonds in
the possession of the buyer and would be able to testify to that
extent. For this purpose the last place where those involved in the
operation would want the diamonds to be is in the hands of those who
set the trap because that could jeopardize a successful prosecution.
As was pointed out by Mr. Small this incident was also not put to
the witness Nakanuku. Although an explanation was tendered by
Counsel, which was accepted by the Court, it seems strange that the
appellant would have forgotten about the incident until he gave
evidence. The Court a quo correctly rejected this evidence.





The
shooting incident whereby appellant alleged that the deceased shot
and wounded him is another instance mentioned by the Court a quo.
What struck one first is that there was seemingly no reason for
this strange conduct of the deceased. Appellant was standing
outside the vehicle and there was no indication that, at least at
that stage, they wanted to escape from the scene. According to the
appellant he slowly turned around and then saw the deceased standing
some six metres away from him. Appellant then fired two shots in
quick succession at the deceased who kept falling back and kept
answering his fire. The evidence by the appellant that the deceased
was some six metres away from him when he fired his first shots at
the deceased was not supported by the evidence of Dr. Liebenberg and
the ballistics expert, Superintendent Visser. I can mention that
the expertise of these two witnesses was not in dispute.





Dr.
Liebenberg described the wounds on the body of the deceased and also
marked them as follows on a diagram handed in by her:






  1. Shot
    wound from left arm through the chest.


  2. Shot
    wound from the front, through the right chest.


  3. Shot
    wound from the back into the left side of chest; and


  4. Shot
    wound from the back, through back muscles right.






On
examination the doctor found that the first three wounds were serious
and could each cause death. At the entrance to wound II, marked
IIA, the doctor found round the edges of the wound soot tattooing and
she testified that the shot fired in this instance was less than 1
metre form the body of the deceased. This evidence was further
supported by Superintendent Visser who examined the shirt of the
deceased which was handed in as Exhibit 8. He examined it
optically as well as chemically and found gun propellant residue
around the entrance holes marked IIA (i.e. the middle of the chest,
front) and entrance hole IIIA (i.e. the left backside). According
to the witness the presence of gun propellant residue on the shirt of
the deceased is an indication that the shots were fired less than 70
cm from the shirt. Both witnesses also fully explained and justified
their findings.





This
evidence is irreconcilable with appellant’s evidence that the
deceased was some six metres away from him when he fired at the
deceased. The appellant tried to explain away this conflict and put
forward various suggestions. It was put to Visser that Nakanuku,
when he tried to assist the deceased, contaminated the shirt.
Another suggestion was that the gun propellant residue came from the
shots fired by the deceased himself. Visser denied these
possibilities, and explained why. Lastly the appellant, when he
gave evidence, was of the opinion that his use of hollow point
bullets could have carried forward the gun propellant that was found
on the shirt of the deceased. This latter theory was never put to
Visser and was only mentioned by the appellant during his
re-examination.





The
appellant testified that it was at this first scene that he was shot
and wounded by the deceased. Dr. Liebenberg, who examined the
appellant after the shooting, described the wound as a linear
abrasion. The wound is depicted on photograph 21 in Exhibit “D”.
At this stage it is necessary to proceed to what had happened at
the crossing when the appellant and accused No. 2 approached the
police. In this regard appellant testified as they came nearer the
police, seemingly McKay and Routh, moved into the road with weapons
in their hands. Appellant said that they were the first to start
shooting and he only answered their fire by leaning out of the left
rear window discharging shots in their direction. Both McKay and
Routh denied this and stated that as the vehicle approached them it
stopped and the appellant opened the left back door, where he was
seated, put his one foot on the ground, and started to fire in their
direction before the car again pulled away to the right and went onto
the main road to Rehoboth. They denied that they opened fire and
said that it was appellant who started shooting. This seems to be
supported by the evidence of Visser who found that all the shots
which hit the car were fired from the rear.





Subsequently
Superintendent Visser examined the motor vehicle of accused No. 2.
and found that the vehicle was struck by five 9mm bullets fired from
the rear of which only one penetrated the cabin of the vehicle.
Visser also found that another bullet, again fired from the rear,
struck the left side of the vehicle but did also not penetrate the
cabin of the car. These shots were all fired from the weapon of
Routh. Photographs 17 to 21 indicate where the vehicle was hit and
the trajectory of the various bullets. BL 5 on these photographs
shows the trajectory of the bullet that entered the cabin and also
shows a demonstration by appellant how he was seated in the back of
the car. When cross-examined, Visser agreed that if the appellant
sat, as was demonstrated by him, he could not have sustained the
wound. Visser however said that if the appellant had sat more to
the right and had bent a little bit more forward the wound could have
been caused by the bullet BL5. The demonstration by the appellant
of how he was seated seems to me to be of little consequence. It
is clear from Visser’s evidence that not a great deal was required
to change the position so as to fit in with BL5. Given the
circumstances it would be surprising if the appellant would be able
subsequently to exclude such a possibility or to insist that his
demonstration of how he was seated could not be incorrect.





To
go back now to the scene of the first shooting. According to the
appellant he was standing at the backdoor of the car with his back
turned towards the deceased when the shot was fired. How this
bullet, which only struck him a glancing blow on his right side, and
then continued further, could ever miss the car completely remains a
mystery and a proposition which the Court a quo did not
accept.





Miss
Zwiegelaar also attacked the finding of the Court a quo that
the appellant full well knew that he was dealing with the police.
If this finding is correct, then it follows in my opinion that there
is not room for a finding that the appellant acted in putative
private defence. This was further made clear by answers given by
the appellant in cross-examination when he stated that this was not a
situation where he was informed that the two “sellers” were
police and that he did not believe them. His evidence was therefore
that at no stage was he informed by anybody that this was a police
operation and that he was dealing with police officers that were
attempting to effect an arrest. I have already referred to the
inherent improbability of this. However, that apart, the learned
trial Judge accepted the evidence of Routh and McKay that at the
crossing both of them shouted to the appellant and accused No. 2 that
they were police. Routh also testified that he showed his
appointment certificate when the car of accused No. 2 approached
them. Ms. Zwiegelaar criticized this evidence of Routh mainly on
the basis that the witness did not make any mention of his
appointment certificate in his police statement. However Routh’s
evidence that he, minutes before, showed his certificate to accused
No. 3 when the latter approached them in his car, was not gainsaid by
anybody. Routh readily conceded that at a distance one would
perhaps not be able to recognize a piece of paper as an appointment
certificate but on the other hand one would hardly expect robbers
intent on robbing the accused to hold up a piece of paper. However,
both officers testified that they shouted that they were policemen.
It does not end there. McKay testified that on the road to Rehoboth
they passed two police vehicles, one with police registration number
and the other with a blue light on top. Appellant’s evidence in
this regard is somewhat confused, either he did not see these
vehicles or he denied that there were these vehicles on the road.
Whatever the position, it is unbelievable that the appellant, or for
that matter accused No. 2, missed all these opportunities especially
in the light of the evidence of the appellant that when they
approached the crossing they wanted to turn left, towards Windhoek,
in order to report the attempted robbery to the police. The Court a
quo
correctly rejected the appellant’s persistent denial of
these facts.





Apart
from the instances to which I have already referred there was also
the acceptance by the trial Judge of Nakanuku’s evidence that the
deceased only fired two shots and that the deceased was in close
proximity to the appellant when the latter fired the first shots at
him. In contrast to the evidence of Nakanuku, the appellant
testified that the deceased fired six shots. However only two spent
cartridges were found, which were fired from the firearm in the
possession of the deceased. Ms. Zwiegelaar submitted that this
evidence was not conclusive and that it was possible that there were
other spent cartridges fired by deceased, which were not found by the
police when they subsequently searched the scene. Everything is of
course possible but the fact remains that Nakanuku’s statement,
which was made a day after the incident, contained this information
which was supported by what was actually found by the police on the
scene. I agree with Mr. Small that it is also highly improbable
that four other spent cartridges would go astray or that at least
some could not be found by the police. Nakanuku’s evidence as to
the position of the parties prior to the shooting also found support
in the medical evidence as well as the evidence of Superintendent
Visser in regard to the gun propellant residue found on the shirt of
the deceased which indicated that they were in close proximity when
appellant fired the shots. That is again in contrast to the
evidence of the appellant that at that time the deceased was some six
metres away from him.





In
regard to the evidence of Mrs. Labuschagne the Court a quo
found that she only repeated what was told to her by the appellant
and that her evidence did not take the matter any further. I agree.





An
attack was also launched against the conviction of the appellant on
Count 5, i.e. the attempted murder charge involving Dep./Comm. McKay.
However, I agree with the Court a quo that to shoot at a
motor vehicle travelling at high speed in an attempt to immobilize it
by puncturing a tyre is an action which is fraught with danger.
The bursting of a tyre is an occurrence which is feared by most
drivers of motor vehicles as it so often ends in fatality. Under
the circumstances, the Court’s conviction of the appellant on the
basis of dolus eventualis seems to me to be fully justified.





On
the evidence I am satisfied that the Court a quo correctly
accepted the evidence of McKay and Routh. The acceptance of their
evidence in my opinion clearly shows that the appellant acted as he
did in order to avoid being arrested. This, so it seems to me, also
lends support to the evidence of Nakanuku and the probabilities that
he fired on the deceased to achieve this object. He knew that it was
a police operation, because he was told so by the deceased.





For
the above reasons, I have come to the conclusion that there is no
basis on which this Court can interfere with the findings and
convictions of the Court a quo and it follows therefore that
the appeal cannot succeed. Lastly I want to make mention of the
police plan and photographs contained in Exhibit D. The plan as
well as the photographs is the work of Sgt. Raymond Blaauw. This
work was done in a professional and effective way and was of great
assistance to this Court.





In
the result, the appeal is dismissed.











________________________


STRYDOM,
C.J.














I
agree.

















________________________


O’LINN,
A.J.A.











I
agree.




















________________________


CHOMBA,
A.J.A.












COUNSEL
ON BEHALF OF THE APPELLANT: Adv. C.J. Zwiegelaar


INSTRUCTED
BY: Theunissen, Louw & Part.





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


INSTRUCTED
BY: Prosecutor-General