Court name
Supreme Court
Case name
S v Hindjou
Media neutral citation
[2013] NASC 1
Judge
Shivute CJ




















REPORTABLE


CASE
NO: SA 18/2010









IN THE SUPREME COURT
OF NAMIBIA







In the matter between:














JOSEF
MBUKAMUNA HINDJOU



Appellant








and














THE
STATE



Respondent








Coram: SHIVUTE
CJ, MARITZ JAandMAINGA JA



Heard: 22
October 2012



Delivered: 22
October 2012



Reasons: 30
January 2013



____________________________________________________________________







APPEAL JUDGMENT
(REASONS)



____________________________________________________________________















SHIVUTE CJ (MARITZ JA
andMAINGA JA concurring):








  1. After hearing arguments
    in this appeal matter on 22 October 2012, we issued an order,
    amongst other things, upholding the appeal and indicated that the
    reasons for the order would follow.These are the reasons.








Background




  1. The appellant and two
    others, namely one Abraham Araeb andChristof Hansenwere jointly
    arraigned in the High Court on an indictment containing a charge of
    murder, a charge of attempted murder and a charge of robbery with
    aggravating circumstances, respectively numbered as counts 1, 2 and
    3. MrAraeb was accused No 1 while Mr Hansenwas arraigned as accused
    No 2 with the appellant being accused No 3. Since the appeal
    concerns only the appellant,we do not find it necessary to deal with
    the erstwhile co-accused's pleas, convictions and sentences. We
    will, however, where necessary or appropriate refer to the
    appellant's erstwhile co-accused persons by their designations in
    the trial court or simply as 'the co-accused'. As far as the
    appellant was concerned, he pleaded not guilty to all three
    counts.However, at the conclusion of the trial,he was convicted on
    all the counts and sentenced to twenty five years imprisonment on
    count 1.On counts2 and 3, he was sentenced to five years
    imprisonment each. The appellant's application for leave to appeal
    to this Court against the aforesaid convictions and sentences having
    been refused in the High Court, hepetitionedthis Court for leave to
    appeal.The petition was granted on 27 July 2010.









  1. The evidence led at the
    trial reveals that on 12 January 2002 Mr Adolf Walter Paul Karl
    Heidenrich was murdered and his wife, State witness Mrs Ursula Emma
    Gertrud Heidenrich, was severely injured in an attack at their Farm
    Mooirivier in the district of Karibib (the farm). It further emerged
    from the evidence that the appellant and the co-accused had been
    employed as labourers on the farm for about 3 days prior to the date
    of the incidentswhich gave rise to their prosecution and conviction.
    Accused No 2 was told to leave his employment on 11 January 2002
    after the Heidenrich couple had been informed by the police,
    following a complaint being lodged by a relative of his, that
    accused No2 was a minor. It appears that accused No 1 and No
    2erroneously interpreted the termination of the second accused’s
    employment as anunlawful dismissal. The two accused persons and the
    appellant sat around a fire where accused No 1 declared his
    intention to kill the Heidenrich couple the next day.The following
    day while Mrs Heidenrichwas preparing lunch, accused No 1 entered
    the kitchen. Without warning, he struckMrs Heidenrichwith what she
    thought was a metal pole. She called out for help before she lost
    consciousness as a result of the severity of the assault. The
    appellant and the deceased were working when they heard her crying
    for help. When the deceased arrived in the kitchen, accused No 1
    also assaulted him with the metal pole. Mrs Heidenrichtestified
    that, when she regained consciousness, she found herself in the
    generator room and saw her husband lying outside with the appellant
    standing a few metres away from him. Mr Heidenrich was taken by
    accused Nos 1 and 2 away from the farmstead to a place elsewhere on
    the farm where he was eventually killed. Upon their return, Mrs
    Heidenrich was assaulted again in the generator room. The co-accused
    loaded a number of items from the farmstead onto the deceased's
    vehicle and departed for Okahandja, their place of residence. The
    appellant also accompanied them to Okahandja but he denied that he
    had loaded any of the Heidenrich's property onto the vehicle.
    Accused No 1 on the other hand testified that the appellant had
    loaded a vacuum cleaner onto the vehicle. We will return to this
    aspect of the evidence later on.It iscommon cause that when the
    appellant and his co-accused arrived in Okahandja, the co-accused
    took some of the Heidenrichs' property to their respective homes.The
    appellant did not take anything.









  1. Mr Namandje, instructed
    by the Director of Legal Aid, argued the appeal on behalf of the
    appellant while Ms Moyo argued the appeal on behalf the respondent.









  1. The evidence of Mrs
    Heidenrichwas regarded by the trial Court as the most reliable. She
    was characterised as a 'fair and honest witness'. Her evidence thus
    carried much more evidentiary weight than the evidence of the
    accused persons, including the appellant. In so far as the role
    played by the appellant is concerned, Mrs Heidenrich testified in
    brief that while she was locked in the generator room she requested
    the appellant to bring a mobile phone to her. The appellant was
    willing to assist her and proceeded towards the house to collect the
    phone but turned back when he heard the approaching vehicle in which
    the co-accused were returning to the farmstead. She further
    testified that the appellant had told her that accused No 1 had
    stated that he would kill her and her husband that day. He also
    warned her to move away from the window so that she could not be
    seen by accused No 1.She conceded that these wordsand conduct on the
    part of the appellant amounted to an attempt to shield her away from
    accused No1. It was Mrs Heidenrich's testimony that when the
    deceased was first struck, the appellant was not far from her or the
    deceasedand thus had an opportunity to harm them both if he was
    minded to join in the assault. He did not do so and, in fact, just
    stood back. Mrs Heidenrich, the appellant and the co-accused
    testified that the appellant was neither present at the scene
    whereMrs Heidenrichand the deceased were initiallyattacked nor did
    he accompany the co-accused when the deceased was transported to the
    area where he was killed and his body later found.It was not in
    dispute that the deceased died at that place as a result of a severe
    head injury.









  1. Mrs Heidenrichfurther
    testifiedthat,upon the return of the co-accused to the farmstead,
    she pretended to be dead.She heard accused No1 instruct someone to
    hit her, upon which instruction she was struck once with severe
    force on her head. The appellant admitted that he was the person who
    was instructed to hit Mrs Heideinrich. He claimed, however, that it
    was not accused No 1 who instructed him but accused No 2 who had
    threatened to stab him with a knife should he refuse to attack Mrs
    Heidenrich. He went on to say that he pretended to execute the
    instruction but, instead of striking MrsHeiderich, hehit the floor.
    Accused No 2 was standing at the closed door of the generator room
    and did not see that he had struck the floor.












Arguments by counsel




  1. Ms Moyo strenuously
    argued that the appellant and the co-accused acted with a common
    purpose to murder the deceased, assault Mrs Heidenrichand commit
    robbery with aggravating circumstances.Mr Namandje,on the other
    hand, argued that the State did not prove beyond reasonable doubt
    that the appellant in any way actively associated himself with any
    act of the co-accused in committing the crimes. There was thus no
    evidence that the appellant had acted in common purpose with the
    co-accused. He further contended that the State had failed to prove
    that the appellant committed the crimes he was convicted of. As
    regards the charge of attempted murder Mr Namandjeargued that the
    complainant herself testified that the appellant did not threaten
    her; she did not see him attacking her, and that he was prepared to
    save her from the criminal enterprise of the co-accused.








The law




  1. In S v Gurirab
    2008 (1) NR 316 (SC) this Court had occasion to consider the scope
    and ambit of the doctrine of common purpose and has endorsed the
    principles enunciated in South African case law dealing with this
    doctrine and the principles to be applied in the absence of a prior
    agreement to commit a crime. The headnote contains a comprehensive
    outline of the trite position in our law regarding the
    aforementioned principles. There it is stated as follows:








'Furthermore,
the court approved the dictum in S v Mgedezi and Others 1989
(1) SA 687 (A) at 705 - 706 that in cases where the State does not
prove a prior agreement and where it was also not shown that the
accused contributedcausally to the wounding or death of the deceased,
an accused can still be held liable on the basis of the decision in
Safatsa if the following prerequisites are proved, namely:



(a)
The accused must have been present at the scene where the violence
was being committed;



(b)
he must have been aware of the assault being perpetrated;



(c)
he must have intended to make common cause with those who were
actually perpetrating the assault;



(d)
he must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of
association with the conduct of the others;



(e)
he must have had the requisite mensrea;



so
in respect of the killing of the deceased, he must have intended them
to be killed, or he must have foreseen the possibility of their being
killed and performed his own act of association with recklessness as
to whether or not death was to ensue.'






Analysis




  1. The first count, namely
    murder, is considered first below. It was contended on behalf of the
    respondent that the night before the incident, the accused persons
    had discussed the plan to be executed the next day and the
    appellant, at the very least,had listened to the discussion and
    carried out the agreed plan with the other two accused persons. It
    was further argued that by being present when the other two accused
    persons were discussing the actions to be carried out the next day,
    the appellant became a partyto the agreement.









  1. The contentions advanced
    on behalf of the respondent in this regard cannot be accepted as
    correct. The mere fact that the appellant overheard a statement of
    accused No 1’s intention to murder his employers the next day
    does not, without more, justify an inference beyond reasonable doubt
    that there was a prior agreement to commit the murder and that the
    appellant became a party to the agreement. Evidence of a prior
    agreement is simply non-existent. The State, therefore, did not
    prove that the appellant entered into an agreement with the two
    accused persons. The second leg of the enquiry is whether the
    appellant causally contributed to the injuries or death of the
    deceased. There was no evidence presented before the High Court that
    the appellant had acted in such a manner. On the contrary, the
    appellant was not present when the deceased was first attacked in
    the kitchen; he didnot assist the other accused persons to load or
    transport Mr Heidenrich; did not accompany themto the site where he
    was offloaded and was not present when the fatal blow to his head
    was inflicted. It follows that the prerequisites set out in
    paragraphs (c) to (e) of the dictum in S v Gurirababove had
    not been met. In our view, the evidence does not establish beyond
    reasonable doubt that the appellant actively associated himself with
    the crime of murder being perpetrated by the former co-accused
    persons and the State’s contention that the appellant’s
    role was to act as a look-out as found by the trial court is not
    sufficiently substantiated by the evidence. The submission that the
    appellant had acted as a look-out or 'guard' is based on Mrs
    Heidenrich's evidence that while she was inside the generator room,
    the appellant peeped through the window and appeared to have passed
    on information to accused No1 about Mrs Heidenrich’smovements
    by visual gestures. Mrs Heidenrich readily conceded that she did in
    fact not see the appellant passing on information and that her
    evidence in this regard was based on an assumption. We are therefore
    of the view that the appellant did not perform any act of
    association with the conduct of the perpetrators of the crime of
    murder nor did he exhibit an intention to commit the crime.









  1. It is convenient to
    consider next the charge in count 3, namely robbery with aggravating
    circumstances. There was no evidence that the appellant took any of
    the items removed from the farm with him when he arrived in
    Okahanjda. In fact, it hadbeen accepted that the appellant went home
    without any of the items and informed his parents of the attack on
    the Heidenrich couple at their farm.It was contended on behalf of
    the respondent that the appellant merely underwent ‘a change
    of heart’ by not taking the stolen goods upon arrival in
    Okahandjaand that this change of heart could not absolve him from
    criminal responsibility in respect of the robbery charge. This
    contention appears to be based on the evidence by accused No 1
    whotestified that all three of them participated in the removal of
    the property from the Heinderich's homestead and that the appellant,
    as previously mentioned,had loaded a vacuum cleaner onto the vehicle
    and this brings us back to this aspect of the evidence. The trial
    court found accused No 1's evidence in general to be unsatisfactory
    and full of material contradictions. It nevertheless accepted that
    part of his evidence that the appellant had participated in the
    removal of the property from the farmhouse and had loaded a vacuum
    cleaner onto the vehicle. We are of the view that it is not safe to
    rely on accused No1's testimony insofar as it implicated the
    appellant in this regard.The Court a quo for good reasons 'entirely'
    rejected accused No 1's evidence and he was characterised as an
    'outright liar'. There is thus no credible evidence proving beyond
    reasonable doubt the appellant's participation in the loading of the
    property onto the vehicle and the intention on his part to commit
    robbery.As counsel for the respondent rightly conceded in
    argument,other than the evidence emanating from a discredited
    source, namely accused No 1regarding the loading of the vacuum
    cleaner onto the vehicle, there was no evidence that the appellant
    had committed the robbery.In our view, the appellant should not have
    been convicted of robbery with aggravating circumstances.









  1. The evidence relating to
    count 2 remains to be considered next. We are of the opinion that
    the appellant should not have been convicted of attempted murder
    based on an earlier alleged agreement with the co-accused for the
    reasons already given. It was, however, proven that someone hit Mrs
    Heidenrichupon the instructions of accused No 1. This piece of
    evidence must be accepted because Mrs Heidenrichwas correctly found
    by the trial Court to have been a credible witness.As previously
    mentioned, the appellant admitted that he had been instructed to
    strike Mrs Heidenrich;that the instruction came from accused No 2
    rather than accused No 1, and that instead of striking Mrs
    Heidenrich, he struck the floor. The last two aspects of his
    evidence are contrary to Mrs Heidenrich's evidence in that
    regard.Counsel for the respondent argued that the appellant could
    not have been instructed by accused No 2 to attack Mrs
    Heidenrichsince accused No 2 was much younger and had a smaller body
    frame than the appellant. Counsel for the appellant on the other
    hand contended that the events which had occurred that day and the
    heinous crimes perpetrated by accused No 2 were sufficient to instil
    in the appellant some fear of accused No 2;appellant was witness to
    what accused No 2 was capable of doing. We are satisfied that Mrs
    Heidenrich’s evidence that she hadbeen struck with a hard
    object following an instruction by accused No1 cannot be faulted and
    must be accepted. She heard accused No 1 giving the instruction and
    felt the blow to her head. There can be therefore no possibility of
    the appellant being ordered by accused No 2 or only striking the
    floor. Appellant's evidence that it was accused No 2 who had given
    the instruction to attack Mrs Heidenrich is clearly false and
    appears to have been motivated by a misguided attempt to protect
    accused No 1. It is therefore rejected.









  1. We are satisfied that
    the appellant had acted on the instructions of accused No 1 to hit
    Mrs Heidenrich but that in doing so, there was no evidence of
    manifestation of the intent to murder her. On the contrary, the
    evidence showed that he attempted to assist her. As stated already,
    he had warned her to duck so that accused No 1 could not see that
    she was still about;he warned her that accused No 1 had expressed
    the intention to kill her and her husband that day, and he was on
    his way to fetch the cellular phone for Mrs Heidenrichand returned
    half way through only when he heard the vehicle in which the
    co-accused had travelled to the river bed where they dumped the
    deceased approaching.In the circumstances, a conviction on assault
    with the intent to do grievous bodily harm as opposed to that of
    attempted murder is justified. This was reflected in the order we
    made on 22 October 2012 as is apparent from paragraph 15 (c) below.









  1. As regards the sentence,
    we imposed a sentence of five years. In coming to this decision, we
    had due regard to the facts that the assault was severe and the
    crime wasperpetrated against a member of avulnerable section of the
    community, namely farmers.Farmsteads are normally relatively
    isolated and therefore farmers and their families are vulnerable to
    this sort of attack. We note that this type of crime is relatively
    prevalent on farms in our country. In our view, an even stiffer
    sentence would have beenappropriate but for the fact that the trial
    Court imposed a sentence of five years on the appellant for
    attempted murder and the appellant was not alerted beforehand that
    his sentence may be increased on appeal should the appeal fail in
    respect of all or some of the convictions. In the circumstances, we
    considered that the sentence of five years imprisonment antedated to
    31 August 2004 would beappropriate.









  1. It was for all these
    reasons that the following order was made:








'(a) The appeal is
upheld.







(b) The appellant's
convictions and sentences for the crimes of murder and robbery with
aggravating circumstances are set aside.







(c) The appellant's
conviction for the crime of attempted murder is set aside and
substituted for a conviction for a crime of assault with intent to do
grievous bodily harm and a sentence of five years imprisonment is
imposed.







(d) The sentence is
antedated to 31 August 2004.'























________________________



SHIVUTE CJ



















________________________



MARITZ JA



















________________________



MAINGA JA







APPEARANCES















APPELLANT:







Mr S Namandje


Instructed
by Legal Aid




RESPONDENT:











MsC Moyo



For the State