Court name
Supreme Court
Case name
Shilongo v S
Media neutral citation
[2013] NASC 17
Judge
Shivute J










IN THE SUPREME
COURT OF NAMIBIA





CASE
NO.: SA 97/2011





DATE:
15 NOVEMBER 2013





REPORTABLE





In the matter
between:








SILAS FIKAMENI
SHILONGO..........................................Appellant



And



THE
STATE......................................................................Respondent








Coram: SHIVUTE
CJ, MARITZ JA and MAINGA JA





Heard: 4 March
2013





Delivered: 15
November 2013








APPEAL
JUDGMENT








MAINGA JA
(SHIVUTE CJ and MARITZ JA concurring):





[1] The appellant as
Accused No. 1, appeared together with one Ferdinand Kutamundu before
a Regional Court Magistrate at Oshakati on charges of murder and
robbery with aggravating circumstances. Mr Kutamundu, Accused No. 2
in the Regional Court, absconded during the trial in that Court. The
case proceeded against the appellant. He was convicted on both
charges and sentenced to 20 years imprisonment on the murder charge
and 15 years imprisonment on the robbery with aggravating
circumstances. He appealed against both convictions and sentences to
the High Court at Oshakati. Frank AJ and Hinda AJ dismissed the
appeal on conviction and the appeal on sentence partly succeeded in
that 10 years of the sentence on robbery was ordered to run
concurrently with the sentence on murder. The appeal, brought with
leave from the two Acting Judges, was granted on nine grounds of
appeal set out in the application for leave to appeal and is against
conviction only.





[2] The grounds of
appeal read as follows:





‘1. The court
a quo erred by using the evidence to the effect that a similar
vehicle to the appellant was seen in the vicinity of the commission
of the crime with two persons, as part of evidence linking the
appellant to the crime.





2. The court erred
in finding that a vehicle similar to that of the Accused was involved
in the robbery and Accused No. 2 was one of the perpetrators.





3. The court a quo
erred in not finding that there was no admissible evidence that the
handcuffs that were apparently found to bear the letters of “SH”
and “GO” are the handcuffs that Olavi (one of the
complainants) was handcuffed with. The court materially erred in this
respect by relying on handcuffs in respect of which there is no
evidence linking them to the complainant. There was no admissible
evidence linking the handcuffs to the crime.





4. The court failed
to make a proper assessment of evidence relating to the tracks of the
vehicle used by the robbers despite material shortcomings in the
evidence of Olavi.





5. The court erred
by relying on the fact that the appellant was found with a grinder
when there was no evidence linking the grinder to the commission of
an offence.





6. The court erred
in taking it that it was proved that the AK47 that was examined at
the National Forensic Lab was the firearm from which fatal shots were
fired and that it was the same firearm found by a member of the
public when it was not proved beyond reasonable doubt that the
firearm found by a member of the public was indeed the firearm
allegedly examined by witness Nambahu.





7. The court erred
in finding that the pistols found by the member of the public at a
certain village were the pistols that allegedly went missing in two
instances where the Accused was involved as a police officer and were
the same pistols referred to in court. These findings were made
despite material shortcomings in the identification of the pistols.





8. The court also
erred in relying on the evidence of witness Popassi who did not
testify at the trial in relation to the identification parade where
Accused 2 was allegedly identified. The court a quo erred and acted
unfairly to the prejudice of the appellant in taking it that the case
against Accused 2 was proved beyond reasonable doubt and taking it as
if it is common cause that Accused 2 was one of the robbers and using
such evidence despite the absence of and the purported separation of
trial against the appellant. In that respect the appellant did not
have a fair hearing at appeal level in terms of Article 12 of the
Namibian Constitution.





9. The court erred
in not finding that the learned Magistrate should have recused
himself, alternatively that he unfairly dealt with the appellant’s
notice of application for his recusal.’





[3] The High Court
linked the appellant to the crimes on the evidence, which it
summarised as follows:





3.1 A vehicle
similar to the appellant’s was seen in the vicinity of the
scene of the crime prior to the commission of crime with two persons
in it, one being Accused No. 2.





3.2 A vehicle
similar to his was involved in the robbery and Accused No. 2 was one
of the perpetrators.





3.3 Mr Olavi, one of
the victims of the robbery, was handcuffed during the commission of
the crime with handcuffs which, at least at some point, had the
appellant’s surname or the letters ‘sh’ and ‘go’
as part of a word etched onto them.





3.4 The tracks of
the vehicle that was used in the robbery were similar to those of his
vehicle.





3.5 He had a grinder
and was in a position to grind off identifying numbers from one
pistol.





3.6 The AK-47 rifle
which fired the fatal shots was found in close proximity of the two
pistols. One of its serial numbers was also partially grinded off.





3.7 Both pistols had
gone missing in circumstances where he was the investigating or
responsible police official.





3.8 He was found at
around 18h00 on the day of the incident in his vehicle and in the
company of Accused No. 2.





[4] This judgment
should be read with the findings of fact formulated by Frank AJ. His
findings are comprehensive enough for the purposes of this judgment.
They are furthermore fair and the attack directed at them is devoid
of any merit.





[5] Without,
therefore, repeating the full account of the crimes as described in
the judgment of Frank AJ, I should repeat the facts which are common
cause. On 31 August 2000, a robbery took place at Omakange Settlement
on a gravel road between Kamanjab and Ruacana, some 67 km from Opuwo.
A pick-up vehicle of Rubicon Security, whose main office is in
Oshakati, was intercepted while on its way from Opuwo to Oshakati
with money which the company had collected at various businesses at
Opuwo. When intercepted, the pick-up vehicle was shot at and the
driver of the pick-up, Mr Mathys Marthinus Steyn Venter, was killed.
This incident is the subject matter of the murder charge. His
colleagues, Mr Paulus Olavi and Ms Vincencia Shanyanana, lived to
tell the story of their ordeal. They were made to lie down and their
hands were cuffed behind their backs: Ms Shanyanana with silver or
chrome cuffs and Mr Olavi with bigger, black cuffs. The robbers got
away with the money which totalled just over N$147 000,00. This
incident is the subject matter of count 2. The two victims later
managed to stop a Government vehicle at the scene of the crime and
the occupants of the vehicle assisted them to summon the police which
they had seen at a cuca shop nearby. Ms Shanyanana’s handcuffs
were removed on the scene while those of Mr Olavi were removed at
Opuwo Police Station.





[6] The primary
question to be answered in this appeal is whether the evidence
adduced at the trial established the guilt of the appellant beyond
reasonable doubt. In this regard the appellant’s counsel argued
that the appellant’s conviction on each of the charges was
wrong as the State did not prove beyond reasonable doubt that he
committed the offences. He further argued that both the High Court
and the Regional Court committed a series of errors in evaluating the
evidence. He makes a further argument that where the evidence in a
criminal trial hinges on probabilities, it behoves the trial court to
bear in mind the relevant principles relating to the assessment of
evidence. He refers to a decision of the South African Supreme Court
of Appeal in S v Shackell 2001 (4) SA 1 (SCA) para 30, where that
Court reiterated the trite principle of proof by the State of its
case beyond reasonable and that a mere preponderance of probabilities
would not be enough for a conviction and, equally trite in view of
the high standard of proof in criminal matters, the observation that
a Court need not be convinced that every detail of accused’s
version is true. If the accused’s version is reasonably
possibly true in substance, the Court must decide the matter on the
basis of that version. Counsel further suggests that the grounds of
appeal viewed against these principles relating to the assessment of
evidence, the evidence in this case should be considered with due
regard being had to the following:





6.1 Before the trial
two other persons were also arrested and charged but the charges
against them were dropped prior to the commencement of the
appellant’s trial.





6.2 At an
identification parade held during the investigation of the case,
witness Paulus Kolele Olavi identified two persons as the robbers, to
wit Accused No. 2 and another person. This was after he had already
met and spoken to Accused No. 2 at the Opuwo Police Station, but
failed on that occasion to point him out as one of the robbers.





6.3 When the matter
was called in court for continuation of trial on 24 February 2005,
Accused No. 2 was absent and remained absent to the end of the trial.
The trial was therefore effectively separated.





6.4 Witness Paulus
Olavi testified that he had not seen the appellant at the scene of
crime.





6.5 There was no
attempt to make a cast of the suspect vehicle’s tyre imprints
found on the scene.





6.6 Chief Inspector
Malan uplifted finger and palm prints from the deceased’s
vehicle and such finger and palm prints did not link the appellant or
Accused No 2 to the complainant’s vehicle.





6.7 The same witness
drove with the appellant to the crime scene shortly after the robbery
(on the same day) and did not in any way suggest that the appellant
appears to be one of the suspects.





6.8 The witness
Casper Popassi stated that the vehicle he had seen before the robbery
did not have a canopy, did not have an antenna and did not have a
bull bar like that of the appellant.





6.9 There was no
admissible evidence on the origin of the handcuffs etched by witness
Dry to substantiate the High Court’s conclusion that the black
handcuffs that had been used to cuff Paulus Olavi were the same
handcuffs that were produced in Court as Exhibit “1” and
found at Oshakati, because the witness (Scholtz) alleged that he had
been given those handcuffs by Malan - but Malan, on the other hand,
did not testify to that effect. He stated that he had been given the
handcuffs by Sowden. Witness Shanyanana testified that she gave
Scholtz silver handcuffs. Furthermore, Paulus Olavi testified that
the handcuffs that were used to cuff him were left at Opuwo Police
Station.





6.10 The three
firearms allegedly picked up by a member of the public, Mbahono, were
not properly identified at the scene as no serial numbers were
recorded so as to establish that the firearms produced in Court were,
beyond reasonable doubt, the same firearms that had been picked up by
him.





[7] To these points
of criticism, which counsel labelled as special and material and that
they were favourable to the appellant, he, in his oral argument added
a further attack, i.e. the finding that the vehicle allegedly used to
commit the crime was similar to appellant’s vehicle.





[8] Before
considering these submissions, I might perhaps usefully refer to S v
Nango 2006 (1) NR 141 (HC) at 145J where it was stated:





‘. . . Steeped
in the atmosphere of the trial, the learned magistrate was best
positioned to assess the credibility and reliability of the evidence
presented by both the prosecution and the defence. While this Court
will not overestimate those advantages, it must also be mindful of
its limitations by having to adjudicate the matter only by reference
to the record of proceedings transcribed for purposes of the appeal
(see generally R v Dhlumayo and Another 1948 (2) SA 677 (A) at
705-6).’





[9] In S v Hadebe
and Others 1997 (2) SACR 641 (SCA) at 645e-f, h-j and 646a-b, Marais
JA spelt out the approach to be adopted on appeal of this nature as
follows:





‘. . . there
are well-established principles governing the hearing of appeals
against findings of fact. In short, in the absence of demonstrable
and material misdirection by the trial court, its findings of fact
are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong. The reasons why
this deference is shown by appellate Courts to factual findings of
the trial court are so well known that restatement is unnecessary.





. . . the
credibility findings and findings of fact of the trial court cannot
be disturbed unless the recorded evidence shows them to be clearly
wrong. In assessing whether or not such is the case, the approach
which commended itself in Moshephi and Others v R (1980-1984) LAC 57
at 59F-H seems appropriate in the particular circumstances of the
matter:



“The question
for determination is whether, in the light of the all evidence
adduced at the trial, the guilt of the appellants was established
beyond reasonable doubt. The breaking down of a body of evidence into
its component parts is obviously a useful aid to a proper
understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently upon the separate and
individual parts of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far from it. There is no substitute for a
detailed and critical, examination of each and every component in a
body of evidence. But, once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail to see the wood for the trees.” ’





[10] In R v De
Villiers 1944 AD 493, counsel for the defence had pressed upon the
court that, in a case depending on circumstantial evidence, ‘the
court must take each factor separately, and, if each of them is
possibly consistent with innocence, then it must discard each in
turn’. The Court dismissed the argument as entirely fallacious
for the reason that:





‘. . . It is
in the first place inconsistent with the statement . . . in Rex v
Blom 1939 AD at p. 202): "The proved facts should be such that
they exclude every reasonable inference from them save that one
sought to be drawn." It is not each proved fact which must
exclude all other inferences; the facts as a whole must do so. . . .
This argument is also inconsistent with the reasoning of this Court
in all the cases, such as Rex v Shein (1925 AD 6), where convictions
upon circumstantial evidence have been called into question. As
stated by Best, Evidence (5th ed., sec. 298): -



"Not to speak
of greater numbers; even two articles of circumstantial evidence -
though each taken by itself weigh but as a feather - join them
together, you will find them pressing on the delinquent with the
weight of a millstone. It is of the utmost importance to bear in mind
that, where a number of independent circumstances point to the same
conclusion the probability of the justness of that conclusion is not
the sum of the simple probabilities of those circumstances, but is
the compound result of them."





See also Evans'
Pothier on Obligations (2.242), and Wills, Circumstantial Evidence
(7th ed., p 46). The Court must not take each circumstance separately
and give the accused the benefit of any reasonable doubt as to the
inference to be drawn from each one so taken. It must carefully weigh
the cumulative effect of all of them together, and it is only after
it has done so that the accused is entitled to the benefit of any
reasonable doubt which it may have as to whether the inference of
guilt is the only inference which can reasonably be drawn. To put the
matter in another way; the Crown must satisfy the Court, not that
each separate fact is inconsistent with the innocence of the accused,
but that the evidence as a whole is beyond reasonable doubt
inconsistent with such innocence.’





See also S v Reddy
and Others 1996 (2) SCR 1 (A) at 8c-9c-e.





[11] Before, I turn
to the evidence; I propose to deal with the submission that the
magistrate should have recused himself, when Chief Inspector Becker
who at the time he testified was a staff member of the
Anti-Corruption Commission of which the magistrate became the
Director before he could finalise the trial. The appellant’s
submission was that whether or not there had been an application for
recusal was of less relevance in view of the most unfair way in which
the magistrate had dismissed an attempt to bring such an application
at the time: he made it clear that the application had no merits. In
my view the submission is devoid of any merit.





[12] I am in
agreement with the sentiments of the High Court on this issue when
it expressed itself as follows on this issue:





‘[52] Prior to
Mr Becker being called as a witness the lawyer acting for Accused No.
1 raised the issue but did not bring an application for recusal. It
is so that the magistrate was very dismissive of this approach and
suggested that this should rather be taken up if his decision is
appealed against. One can understand the frustration of the
magistrate with the point being taken at the trial that started prior
to May 2003 and which had, with various adjournments, proceeded up to
May 2008 before Mr Becker was even called as a witness. The lawyer
apparently took the magistrate’s view as a ruling, which was
not, did not take this matter any further as no application for
recusal was made. No facts apart from the very cursory facts
mentioned at the time and which appears on the record were placed
before Court and nor was the State given the opportunity to respond
to such an application. In this matter the State at least will be
prejudiced if the point is allowed to be taken. Had it been taken
properly and a proper application for recusal brought, the State
could have considered its position and could either have opposed the
application, decided not to call Inspector Becker or to see whether
it would cut some of his evidence and produce some of the other
evidence by way of calling other witnesses. Here it must be borne in
mind that the evidence of Mr Becker was not referred to in the
judgment and the vehicle identification parade he initiated did not
feature at all as the video recording and photos thereof assumedly
went missing in the meantime and further that no credibility finding
was necessary in respect of his evidence for the Court a quo to reach
its conclusion. To raise the point half-heartedly and without
allowing the State to respond thereto and without putting full facts
before Court, I am not inclined to allow the accused to now raise it.
Furthermore, had the accused’s lawyer thought there was a
ruling; he should have appealed it so that the matter could have been
sorted out at that stage. To wait and keep this point in abeyance as
it were so as to take it when it would be the most advantageous to
the accused and the most prejudicial to the State in my view should
not be countenanced. (Brown v Papadakis and Another 2009 (3) SA 542
(C).)’





[13] I may add, as
the High Court correctly pointed out, the application was not made;
nor was an attempt made. What transpired in Court is recorded as
follows:





‘MR UYAKA:
Your worship on the other hand we have considered on the basis of the
current position with the Magistrate who is the head of Directorate
of Anti-Corruption Commission where the State witness Mr Nelius
Berker is also employed in the same directorate whether this will not
be viable for Your Worship to hear and make a judgment pertaining to
credibility, reliableness and unreliableness of the witness' evidence
given by Mr Nelius Berker who is currently under your leadership.





COURT: Its very
interesting are you now saying I must recuse myself from the case or
what?





MR UYAKA: Your
Worship that is what I have considered to apply for.





(The underlining is
mine.)





COURT: Just because
one witness is from the Anti-Corruption Commission?





MR UYUKA: That was
not the case before but instantly the situation is quite different.





COURT: I do not see
that as a good reason for me to recuse from this case which has come
such a long way but you have got your right. If you feel that by
virtue of that I am not fit to sit on this case I think that can be a
case for you to appeal against whatever outcome of this case but I do
not see that. I see that as a sheer waste of time. I do not see that
as a good ground.





MR UYAKA: As the
Court made a ruling and I am much obliged to it. May my client remain
seated in the course of proceedings?





COURT: Yes please
sit.’





[14] The argument is
silent on whether the learned magistrate was biased and not objective
in the consideration of Mr Nelius Becker’s evidence. To
generally argue that the magistrate should have recused himself
because the witness was his subordinate in the absence of allegations
of prejudice to the appellant’s case or perceived reasonable
apprehension of bias on the part of the magistrate takes appellant’s
case no further. Magistrates being the face of the judiciary in lower
courts, preside over cases in which their subordinates are witnesses,
namely, maintenance cases, missing records, etc. They preside over
cases in which police officers they may have known for many years in
their jurisdictions are witnesses. They may castigate them or
criticise them in one case and commend them in another. It does not
follow that in subsequent trials, the magistrate should recuse
him/herself where the same person is a witness. To do so would be
tantamount to grounding the wheels of justice. The argument fails to
appreciate that among the many witnesses called by the State, Mr
Nelius Becker was the only witness in respect of whom the appellant
considered to move an application for recusal. This was at the stage
when the State case was almost at its end. To have the case started
de novo, for the only reason that Mr Becker happened to become a
subordinate of the magistrate while the trial was pending, would have
been absurd. Without more, the mere fact that a subordinate of a
magistrate is a witness at a trial is not sufficient to infer a
reasonable apprehension of bias justifying his or her recusal. I must
not be understood to mean that in other applications, where
additional facts justifying such an inference would be established
and the circumstances so dictate, a presiding officer should not
recuse himself. However, in the circumstances of this case the
argument was correctly rejected.





[15] I now turn to
the evidence. An argument is made that the High Court erred when it
relied on the evidence of Popassi, who did not testify at the trial
relating to the identification parade, where Accused No. 2 was
allegedly identified; that the Court erred and acted unfairly to the
prejudice of the appellant when it held that the State’s case
against Accused No. 2 had been proven beyond reasonable doubt and
when it assumed that Accused No. 2 was one of the robbers and using
that evidence against the appellant despite the separation of the
trials: therefore, it is contended, the appellant did not have a fair
hearing at the High Court in terms of Article 12 of the Namibian
Constitution.





[16] This argument
presupposes that the High Court should have ignored the evidence of
Popassi and the evidence relating to the guilt or innocence of
Accused No. 2. This contention is contrary to a well-founded
principle that a court does not base its conclusion, whether it be to
convict or to acquit, on only part of evidence: the conclusion must
account for all the evidence. See S v Van der Myden 1999 (1) SACR 447
at 449g and 450a. The fact that Accused No. 2 had absconded and a
separation of trial was ordered could not preclude the High Court
from considering the evidence which implicated Accused No. 2, more so
if the evidence against him points in the direction of the appellant
as well. The State had a strong case against Accused No. 2 and his
conviction was certain. It is that evidence against Accused No. 2
that also implicates the appellant.





[17] In the week
that followed the incident, that is 3 – 8 September 2000,
Accused No. 2 according to the evidence of his half-brother, Mr
Jaziki Rukambura, spent N$14 670,00 around Oshakati. This evidence
was not challenged during cross-examination. He was not working at
the time. He allegedly sold his Nissan sedan vehicle for N$6000,00
and received N$2700,00 cash and the balance was to be paid in the
form of cattle. He also sold three cattle and he also received ±
N$6000,00 from which it was alleged, he gave his half-brother
N$800,00. The two amounts added together do not amount to the N$14
670,00 he later spent. It must be remembered that when he sold his
Nissan sedan, he bought an Opel sedan from the appellant. While in
Oshakati, he heard that the appellant was arrested and that the
police were looking for him. Instead of returning to Opuwo, as he had
initially planned, he made haste to leave Oshakati towards the South
and was arrested on the way to or at Oshivelo. He absconded during
the trial, and remains a fugitive from justice.





[18] After his
arrest, he was taken to Opuwo. W/O Albanus Nuujoma testified that he
was questioned as to the source of the money he spent in Oshakati. He
could not give a satisfactory answer. All that he could say was that
he sold cattle without mentioning how many were sold, to whom or
where the cattle were sold. During cross-examination of his
half-brother, who was the keeper of the bag that contained the money,
his legal representative revealed, as already mentioned, that he sold
three cattle which fetched ± N$6000,00. Deducted from the
amount he spent in Oshakati, there is an amount of ± N$8000,00
which he did not account for, especially that he claimed that from
the N$6000,00, he gave his half-brother N$800,00. W/O Nuujoma also
testified that during his investigation, he established that Accused
No. 2 had deposited N$500,00 at Agribank. That amount added to N$14
670,00 increases the total amount expended to N$15 170,00. His
half-brother indeed confirmed that he sold three cattle that belonged
to their uncle. Without an explanation as to the source of the other
money which was not denied, the only reasonable inference, when
considered together with the other evidence against him, is that it
was the proceeds of the robbery.





[19] On 30 August
2000, Mr Casper Popassi and his father Mr Abraham Popassi were
grading the Kamanjab-Ruacana road and they were at Omakange. On that
day a white Toyota pick-up with a black stripe on the side, dark
tinted windows, an aerial (looking like ‘ears of a hare’)
on the roof and without a canopy came to a stop under a tree, near
the place he and his father were working. Its bonnet was opened. It
had a Windhoek registration number at the rear and no number plate
fitted to its front. It had two occupants. The passenger who was
light in complexion alighted from the vehicle and approached Mr
Popassi (senior) and asked for a cigarette. The person spoke
Afrikaans. He could not see the other person clearly as he remained
seated in the cabin behind the steering wheel. On 31 August, they
moved their road grader and equipment to a place called Alpha, which
is 16 km from Opuwo. While at that place, at about 14h00, he saw a
Hyundai bakkie, a Government vehicle and the same Toyota pick-up,
which he had seen the previous day at Omakange, driving by from the
direction of Opuwo. On 8 September 2000, he was collected and taken
to the Opuwo Police Station where he identified at an identification
parade Accused no. 2 as the person who had asked for cigarettes from
his father. Exhibit “N”, which is the written record of
the identification parade also shows that Mr Abraham Popassi
identified the same person. He was not asked to identify the vehicle
at the time but he identified the vehicle of the appellant during the
trial, 8 years later, at an inspection in loco, at the house of the
appellant. He particularly testified that the ‘mag’
wheels were still the same.





[20] Mr Paulus Olavi
identified Accused No. 2 at the same identification parade as the
person who had approached him and pointed a firearm at him on the
scene of the robbery, which firearm he thought resembled an AK-47 or
a G3. Mr Olavi later testified that, whilst the vehicle carrying the
cash in transit was being driven along the road, he heard a bang as
if there was a tyre burst. As soon as the vehicle came to a stop in
the bushes next to the road, the person he later identified as
Accused No. 2 approached him on the passenger side where he was
seated and pointed the firearm that resembled an AK-47 at him. He saw
a second person who had two firearms, one being a pistol. The three
firearms that Mr Olavi saw in possession of the two robbers appear to
be similar to the three, namely, an AK-47, semi-automatic Commando
and 7.65 pistols and magazines that were found next to the road
between Okarukoro and Kasheshe villages by Messrs Maiteputi Mbahono
and Kapeumba Chirazo. Inspector Uiseb handed the three firearms to
Inspector Becker who in turn handed them to Chief Inspector Malan
together with the three empty cartridges that were earlier picked up
on the scene. Chief Inspector Malan handed them to the National
Forensic Science Institute (NFSI). Mr Nambahu of the NFSI testified
that he tested the AK-47 and established that the empty cartridges
that were picked up on the scene of the robbery were discharged from
the AK-47.





[21] An argument is
made that on the day of the incident Mr Olavi saw and spoke to
Accused No. 2 at the Opuwo Police Station but did not identify him as
the suspect. To the contrary, Mr Olavi identified or had a strong
suspicion at the police station that Accused No. 2 was the person he
had seen on the scene but the police officers discouraged him when
they told him that Accused No. 2 spoke Herero and not Oshiwambo,
being the language that the person on the scene spoke to him. He
nevertheless persisted that Accused No. 2 was the person. He
testified that at the police station he was staring at him, prompting
Accused No. 2 to ask him: ‘Why are you looking at me like that,
do you know me?’ He told the police officers who were with him
that ‘that person looks like that other person, (the person who
robbed them) he is the exact person I saw, it is the person that
one’. The police officer said ‘no, that person does not
speak Oshiwambo that person is speaking Herero language’. He
said to the police officer ‘the person is the one, it is the
person, it is that one’.





[22] Had the police
officers paid attention to Mr Olavi, both Accused No. 2 and appellant
would have been arrested on the same day. After the report of the
murder and the robbery had been made at the Opuwo Police Station, the
Crime Coordinator, Inspector Uiseb, took the appellant and Mr Olavi
to the scene. Before they left, the appellant asked the Inspector to
take him to his house to fetch a jacket. When they stopped at the
appellant’s house, Mr Olavi saw tyre tracks at the house of the
appellant. In the presence of the appellant, he told Inspector Uiseb
that those tyre tracks were identical to the tracks of the vehicle of
their assailants which he had seen on the scene. He described the
vehicle of the robbers as Mr Casper Popassi did but the Inspector
testified that he thought Mr Olavi was still confused as a result of
the incident. I interpose here to say that, on the day of the
incident, Inspector Uiseb saw Accused No. 2 in the appellant’s
Toyota pick-up as a passenger at the entrance of the hospital. He
stopped the appellant and jokingly informed him that he was looking
for appellant’s vehicle. W/O Nuujoma testified that Accused No.
2 was used to be seen in that pick-up with the appellant.





[23] On the day of
the incident, 31 August 2000, Inspector Michael Kleophas, a colleague
Constable Frieda and another lady whose name the Inspector could not
recall, were at Omakange at Benson’s Cucashop. He described
Omakange as a junction of the road from Opuwo and the road from Welda
and Kamanjab. They were outside the shop facing the road which is
about 30 – 40 m from the shop. While at the shop, at 15h00, he
saw a Rubicon Security pick-up vehicle from the direction of Opuwo
driving by in the direction of Ruacana, followed by a white Toyota
pick-up without a canopy, with tinted windows and, later, a
Government vehicle. When he saw the white pick-up, he told Constable
Frieda that ‘this Toyota looks like Shilongo’s Toyota’,
(the appellant). After a while the Toyota pick-up returned, driving
in the direction of Opuwo. After a while again, the Government
vehicle returned and its occupants reported to him that the Rubicon
Security vehicle had been shot at; that it had been robbed; that its
driver had been wounded and that the vehicle was standing in the
veld. The Inspector and one Betu rushed to the scene. He checked the
scene and he could see that no vehicle had come from Ruacana. It was
only the tracks of the Rubicon Security and the Government vehicles
on the scene. He left Betu and Ms Shanyanana on the scene. He took Mr
Olavi and proceeded to Opuwo where he reported the incident to the
Crime Coordinator Inspector Uiseb. He reported to him that he
suspected the appellant’s vehicle. He was told to drive out and
look out for the Toyota pick-up. He saw the appellant’s vehicle
in Otuzemba location, parked in the garage at appellant’s
house. Appellant was also in the garage at the time, just standing.
On both occasions, the Inspector said the Toyota pick-up vehicle, had
a canopy fitted onto its load box. I must interpose here, to mention
that Inspector Uiseb testified that he lived in the same street as
the appellant, and he used to see the appellant’s pick-up
parked at one spot in the yard but on the day of the incident, he did
not see the pick-up on that spot or in the yard. It was possibly
parked in the garage, but why in the garage that day?





[24] Ms Shanyanana
corroborated the version of Mr Olavi. She was a passenger in the load
box of the Rubicon Security vehicle, the deceased being the driver
and Mr Olavi a passenger in the front seat. While on the way, after
they had left Opuwo, she heard a bang and the vehicle veered off the
road and came to a standstill in the bushes next to the road. She
opened the back of the canopy and alighted to determine what had
happened. As she was approaching the passenger side where Mr Olavi
was seated, she saw a man in shorts with a brownish balaclava
pointing an AK-47 at her. She was ordered to lie down. The person
spoke Oshiwambo, which was either of the Oshikwanyama or Oshindonga
dialect. She complied with the order and lied on her stomach. She
heard the person speaking to Mr Olavi enquiring about the money boxes
and keys. Another man, who spoke Afrikaans, arrived on the scene
shortly afterwards. She heard the rattling of the keys and boxes
opened. The next thing, she heard the person who spoke Oshiwambo
ordering her to put her hands behind her back and she was handcuffed.
The two persons left. She and Mr Olavi, who was also handcuffed,
stood up from where they were ordered to lie down, walked through the
bushes and returned to the road where they stopped the Government
vehicle that later summoned the police to the scene.





[25] The evidence
that implicated Accused No. 2 is inseparable to the body of the
evidence as a whole, particularly, his presence in the ‘similar
Toyota pick-up vehicle’ to that of appellant which had been
seen by Mr Casper Popassi and his father on 30 August 2000 at
Omakange. The ‘similar pick-up’ was seen by Mr Casper
Popassi at Alpha, by Inspector Michael Kleophas at Omakange and Mr
Olavi on the scene of the crime on 31 August 2000. Accused No. 2,
being the person Mr Olavi saw on the scene; the evidence of the AK-47
which Accused No. 2 wielded on the scene to execute the robbery; it
being subsequently established through forensic analysis that it was
the murder weapon; the presence of Accused No. 2 in the appellant’s
Toyota pick-up vehicle on the day of the incident when Inspector
Uiseb stopped the appellant at the gates of the hospital at 18h00 are
all permissible facts to be weighed together with the balance of
evidence against the appellant.





[26] Notwithstanding
the finding by the High Court that appellant’s Toyota pick-up
was of a common type, it found that it had been identified as his by
Mr Olavi as well as by Inspector Kleophas. In my opinion, Accused No.
2’s presence in this ‘similar vehicle’ strengthens
the possibility that that vehicle was appellant’s. W/O Nuujoma
testified that Accused No. 2 was used to be seen with the appellant
in the vehicle, even before the incident. Although there was evidence
of other vehicles similar to that of the appellant in Opuwo,
particularly that of Mr Mushimba and the Postmaster, there is no
evidence that Accused No. 2 knew the owners of those vehicles or that
he had been seen in those other vehicles. On the contrary, the
evidence is that even before the incident he was used to be seen in
the company of the appellant and, most importantly, shortly after the
robbery and murder he was seen by Inspector Uiseb in the appellant’s
vehicle when the latter stopped that vehicle at the hospital’s
gates.





[27] This evidence
considered together with the evidence of the handcuffs, the three
firearms found together a distance away from the scene of crime, the
tyre tracks and the grinder leaves no doubt as to the appellant’s
involvement in the commission of the crimes. In this regard, counsel
for the appellant argued that there was no admissible evidence that
the handcuffs that were apparently found to bear the letters ‘sh’
and ‘go’ are the handcuffs that Mr Olavi was handcuffed
with, and that there was no evidence linking the handcuffs to the
crime; that the High Court failed to make a proper assessment of the
evidence relating to the tyre tracks of the vehicle used by the
robbers; that the High Court could not have relied on the fact that
the appellant was found with a grinder when there was no evidence
linking the grinder to the commission of the crimes; and that there
was no evidence that the AK-47 that was examined by Mr Nambahu at the
NFSI Laboratory was the murder weapon; and that it was the same
weapon found by Mr Maiteputi Mbahono and his uncle Mr Kapeumba
Chirazo; that the pistols (the Commando and 7.65) were the pistols
that allegedly went missing in two instances where the appellant was
involved as the investigating officer and were the same pistols
referred to in Court.





[28] In weighing
these submissions one must have regard to the evidence, as found by
the High Court which was either undisputed or the finally accepted
evidence.





[29] Regarding the
handcuffs with which Mr Olavi was handcuffed the Court a quo had this
to say:





‘[16] The
black handcuffs seem to be South African Police issue as it has the
letters “SAP” engraved on them on the one side. On the
back thereof is an area which clearly has been tampered with. It is
clear that the black paint has been scratched off so as to erase
engravings, etchings or inscriptions that have been placed on the
handcuffs. These handcuffs were subjected to a test that brings out
the original etchings and is also ironically called “etching”.
This test according to the person who did it established that an
etching on this part of the handcuffs that was erased was the name of
“Shilongo” which, of course, is the surname of Accused
No. 1. A photo was taken of this fact and although this photo is not
clear, it shows the letters “Sh” fairly clearly and from
my own observation of the photos also faintly the letters “go”.’





[30] The Court
considered the criticism levelled at the etching process and
continued to say:





‘[32] It is
also correct that the person who conducted the “etching
process” on the handcuffs could certainly not explain the
process in any intelligible manner and one was left with the
impression that he just mechanically followed a procedure to see what
results followed without understanding the nature of the procedure.
However, his evidence was attacked on the basis that he had no
witness to verify the fact that the name “Shilongo”
actually appeared (he insisted a colleague also saw this) and that he
delayed in taking a photograph depicting this name. Whereas his
qualification is not very academic, he did spell out any
qualifications and training as a member of the force to conduct the
kind of test that he did conduct. In fact as pointed out already the
photograph depicting the handcuffs with the inscriptions mentioned
thereon was produced and handed into Court and the fact that it was a
photograph of the handcuffs subsequent to the “etching”
process was not disputed. There was no suggestion that the “etching”
process would or could show up different letters to that which was
originally engraved or etched on to the handcuffs. In these
circumstances one can accept at least the letters appearing on the
photograph were at some stage etched or engraved onto the handcuffs
and if the witness is to be believed that the word “Shilongo”
appeared on the handcuffs immediately after the etching process.





[33] The fact that
the witness could not explain the process or that the court does not
understand it does not, in my view, detract from the fact that a
result of a certain process a word or certain letters appeared. This
is real evidence and if a court can accept inferences from experts
where the facts upon which it is based are not disclosed then surely
the result of the application of a certain process which is not
attacked or suspect (even if not understood) can likewise be accepted
as evidence. With the necessary adaptions the following principles
should be equally applicable in such matter:





“Where an
expert witness, who possesses special knowledge, skill and
experience, carries out a test requiring the application of such
knowledge, skill and experience, and thereafter draws an inference
based on the results of his test, then his evidence of that inference
is admissible, and it constitutes prima facie proof, even if the
facts from which he drew the inference are not mentioned by him. If
the prima facie proof is not contested, the court is entitled to rely
thereon.”


State v William en
Andere 1985 (1) SA 750 (K) at 750I.





. . . . .





[42] As far as the
handcuffs are concerned, it was pointed out that according to the
evidence the surname “Shilongo” is not uncommon and
Accused No. 1 could mention a number of “Shilongo’s”
who were in the police force. He did not mention another one in Opuwo
nor anyone who had lost handcuffs and the sheer coincidence of such
handcuffs ending up at the crime scene where there are other
indications of his involvement, needs to be considered.’





[31] Before this
Court a further argument which appears not to have been raised in the
High Court , is that there is no evidence that the black handcuffs
with which Mr Olavi was handcuffed were the same handcuffs allegedly
produced in Court, as the witness Mr Scholtz who had kept the
handcuffs at the premises of the Rubicon Security Services testified
that he received them from Chief Inspector Malan for safekeeping,
while the Chief Inspector did not testify to that effect except for
saying he received them from Mr Sowden; while Ms Shanyanana testified
that she gave to Mr Scholtz silver handcuffs and Mr Olavi testified
that the handcuffs that were used to handcuff him remained at the
Opuwo Police Station. This argument, too, has no merit. Ms Shanyanana
was handcuffed with silver or chrome cuffs and her testimony was that
once they were removed from her, they were given back to her and she
in turn handed them over to Mr Scholtz. Those handcuffs have nothing
to do with the black handcuffs. Mr Sowden who was the manager of
Rubicon Security at Oshakati, Ondangwa and Oshikango at the time of
the incident, testified that at Rubicon Security they used chrome
handcuffs and that he had never seen black handcuffs before; that it
was the first time for him to see black handcuffs. Inspector Uiseb
testified that he gave them to Inspector Becker and that Inspector
Becker took them to Windhoek for further investigation. Inspector
Becker was specifically asked by counsel for the appellant whether he
took them to Windhoek but he denied it and said that if they were
taken, they must have been taken by Chief Inspector Malan. Mr Scholtz
testified that he received them from Chief Inspector Malan. When Mr
Scholtz gave the keys of the safe where they were kept to Mr Sowden,
he showed him the handcuffs and Mr Sowden handed them to Chief
Inspector Malan and he in turn handed them to Mr Dry who did the
etching. It is possible that between Inspector Becker and Chief
Inspector Malan one had forgotten who had received the black
handcuffs from Inspector Uiseb and possibly Chief Inspector Malan
handed them to Mr Scholtz for safekeeping. In any case, it cannot be
said that the chain of custody was lost as the description of the
handcuffs is clearly distinguishable from the handcuffs that were
used to handcuff Ms Shanyanana or other handcuffs used by the Rubicon
Security. Chief Inspector Malan testified that the type of those
handcuffs in the previous dispensation were issued to members against
a serial number and he wanted to determine to whom they were issued
but he was later informed that that procedure had been done away
with. I am satisfied that the handcuffs that were etched by Mr Dry
are the handcuffs that were used to handcuff Mr Olavi.





[32] I now turn to
consider the evidence of the tyre tracks and the grinder found with
the appellant. The High Court, notwithstanding the criticism it
levelled at the evidence of Mr Olavi on the tyre tracks, nevertheless
accepted his evidence on that score and it was one of the factors it
considered to find that the appellant was involved in the commission
of the crimes. His evidence was that the tyre tracks of the white
Toyota he had seen on the scene of crime were identical to the tracks
he saw at the appellant’s house. At the time, Mr Olavi,
Inspector Uiseb and the appellant were on their way to the scene of
crime. He repeated the remark in the presence of the appellant but
the appellant did not comment. That evidence considered with the
evidence of Inspector Uiseb that on that particular day appellant’s
vehicle which was usually parked at one spot in the yard that day was
parked in the garage; the evidence that Inspector Uiseb did not see
Accused No. 2’s Opel sedan which according to the appellant was
in the yard and was the reason that when he arrived at home and found
the vehicle in the yard, he went to look for Accused No. 2 lends
credence to Mr Olavi’s evidence of the tyre tracks. The High
Court was justified to accept the evidence as an integral part of the
body of the whole evidence, but correctly, in my view, did not attach
much weight to it.





[33] On appellant’s
possession of the grinder the High Court stated:





‘[28] Not much
was made of the grinder despite it (or one of its discs) being sent
to the forensic department to see whether it could be linked to the
home-made silencer or the erasing of identifying marks on the one
pistol) and could not be positively so linked. Further, grinders are
common items and nothing adverse can be stated of its mere
possession.'





But continued in
paragraph 34 of the judgment to say:





'. . . The fact
remains that Accused No. 1 had such a grinder and could use it for
grinding work.’





[34] I have no
quarrel with this finding. It is a fact that appellant had a grinder
and, therefore, the means to grind off some letters from the
‘Shilongo’ name on the handcuffs and some of the serial
numbers on the Commando pistol.





[35] Coming now to
the submissions on the AK-47 and the two pistols, I will do no better
than to extensively refer to the judgment of the High Court and it
amounts to this:





‘[17] Before I
turn to the firearms relevant to this matter it is apposite to
mention that it was established that the gunshots that struck the
security vehicle and killed Mr Steyn was fired from the AK47 weapon
that was eventually recovered. The weapons belonging to the security
company were found at the scene of the crime. As Mr Olavi who
survived the attack referred to, at least one of the assailants
having a pistol, this aspect needs further attention.





[18] The AK47 and
two further pistols were recovered by members of the public in the
veld along the road where the robbery occurred albeit not at the
scene but some distance away. In respect of one of the pistols part
of the identifying numbers had been grinded off. However in view of
the make and (remaining) numbers and with reference to the record of
firearms reported missing, their origins were traced.





[19] One disappeared
from a caravan somewhere near Opuwo and was reported as missing by
the owner thereof. This weapon disappeared after a visit by a woman
and Accused No. 1 (appellant) to the caravan to allow the woman to
remove some of her property on which occasion the pistol was
discovered under the mattress.





[20] The second
pistol was in a cubby-hole of a car that overturned. Whereas some of
the property of the occupants of the vehicle was eventually returned
to them, the pistol in the cubby-hole likewise disappeared. The
person who had the licence for the pistol died as a result of this
accident. Accused No. 1 (appellant) was the investigating officer in
respect of this calamity.





. . . . .





[35] There was no
confusion about the AK47’s serial number and the witnesses who
testified about this item who also testified about the number
mentioned the same number. This weapon through forensic tests and
with reference to bullets from the scene and from the body of the
deceased established this to be the AK47 used at the scene of the
robbery. The weapons found at the scene belonged to the security
company and were not forwarded for forensic testing. The fact that
some witnesses could thus not identify the AK47 as such where it was
found together with the pistols does thus not take the matter any
further so as to suggest that the weapon found with the pistols was
not the AK47.





[36] As far as the
pistols are concerned the one belonging to Nangombe was for some
reason not handed in as an exhibit. This pistol was however referred
to and identified by its serial number and issue was taken with the
State in this regard in main to indicate that there were many
potential thieves of this pistol and thus no inference could be drawn
implicating Accused No. 1 (appellant) with the pistol being removed
from the vehicle.





[37] The other
pistol described as a “Commando” in evidence has a more
chequered career as it were. Mr Becker testified that he handed this
firearm with some other exhibits to Mr Dry. They both confirm that
this firearm had a number 584 on a “moving part” and that
the pistol eventually handed in as an exhibit was this pistol. Mr Dry
indicated that at a different place on the pistol the numbers 7 and 8
also appeared in a smaller form and opined that this must have been
part of the serial number. The serial number appearing on the licence
handed in of Mr Kessler starts with 78 and is 78KA00584. Mr Nambahu
of the forensic laboratory saw more numbers than the other witnesses
on this firearm. He in fact confirmed the number 584 on the moving
part and then stated there was a number 781 on the firearm as well.
He prevaricated whether the “1” could be the “K”
that he mistakenly jotted down as a “1” but correctly
conceded if indeed it was a “1” it could not be the same
pistol as the one on the licence. Sight should not be lost that if
the letter K is partly grinded off that the remaining part might
appear as an I or 1. Mrs Kessler testified and identified the firearm
of her late husband with reference to the remaining “78”
digits of the serial number. She in fact stated that only those two
digits would be sufficient as no other firearm would commence with
the same digits. When she was confronted, as if a fact, that another
witness had seen the firearm with the number 781 she conceded that
she could do no more than state her late husband’s firearm was
an identical one. Mr Uiseb stated that when he saw the firearm he
noticed its serial number had been grinded off and thus did not
record it. He noticed that two numbers were still in place and as far
as he recall those were 8 and 9. When reference was made to the 78 he
conceded that his memory might have failed him in this respect. He,
too, when faced with the evidence of Mr Nambahu relating to a number
781 was not sure as to the identity of the firearm before court.





[38] The evidence is
clear that a portion of the original serial number has been grinded
off. This was also the case with the weapon recovered with the others
including the AK47. The one recovered had the number 584 on a moving
part in the inside of it. Both Messrs Becker and Dry identified the
weapon before court with reference to this number. As pointed out
above the confusion of the numbers started with the reference to the
number 781 which incidentally also related to a weapon with a moving
part number of 584. In these circumstances the concession by Mr
Nambahu that the 1 might have been mistaken rendition or part
rendition of a K cannot be taken to establish that it was a different
weapon and neither can the evidence of Mr. Uiseb who from the
beginning stated that he was giving evidence from memory and that the
correct number can be obtained by reference to his statements made in
this regard be taken to cast any real doubt on the identification of
this pistol.





[39] There is no
direct evidence that Mr Kessler’s firearm had gone missing.
There is however evidence that based on the records of the police
such a report was made to it. This is what prompted the investigation
in the present matter after the weapon found where it was found and
in the state it was found. The police found a weapon in circumstances
where there was reason to believe it was used in a crime. They then
tried to trace the licence holder of the weapon involved which was a
challenge seeing the serial number had been grinded off. This they
did by reference to their records about missing firearms which led
them via the late Mr Kessler to Accused No. 1 (appellant). The fact
that they could not lead direct evidence that Mr Kessler’s
pistol had gone missing does not detract from the evidence they
uncovered as a result of the report made to the effect that the
firearm had gone missing.





[40] When it comes
to the pistols it must be borne in mind that they were recovered with
the AK47 which was established to be the murder weapon. Furthermore
they were in one bag. Whereas Accused No. 1 (appellant) denies any
knowledge of how they went missing, what is the probability that two
weapons that went missing in two different areas (Opuwo and Oshakati)
would end up on the same crime scene had they been appropriated by
two separate individuals. And this in the context indicating that the
handcuffs used also had the surname or very similar surname as that
of Accused No. 1 (appellant) etched or engraved on them. One must
also take into account that Accused No. 2 – the only other
person identified as a perpetrator – was not implicated in
respect of the pistols involved.





[41] In an ideal
situation one would expect the police to be meticulous in recording
the identification numbers as well as the chain of delivery of
exhibits to ensure there is absolute certainty that the exhibits
found at the scene of crime are those presented in evidence. The more
fragile or delicate an exhibit is the more important it is to deal
with it correctly. Firearms, unlike say, blood specimens or
fingerprints which can be contaminated easily by dust and other
environmental elements, are robust instruments able to withstand
harsh conditions and cannot be equated with more sensitive exhibits
so to mechanically seek to apply the same criteria to it when
considering how it is handled is not useful. Of course, it must be
properly identified so that if forensic tests are conducted on them
the tests must be linked to them. Furthermore this must also be done
so as to ensure that the correct exhibits are placed before court and
not something similar to what was involved. For the reasons set out
above, I am satisfied that despite criticism in this regard that this
was done in the present matter. Furthermore when considering the
firearms in relation to the facts from which inferences are sought to
be drawn they (like the other facts) must be assessed taking the
criticisms into consideration and as pointed out below cumulatively
with the other facts and not in isolation.’





[36] I respectfully
agree with the above assessment of the evidence and the conclusions
reached in connection therewith. I may add that, in my opinion, even
without the serial numbers, the chain of custody of the AK-47 and the
Commando automatic pistol was proved beyond reasonable doubt. First,
the evidence is that the AK-47, the Commando pistol and the 7.65
pistol that allegedly belonged to the late Mr Nangolo were found a
distance away from the scene. The firearms that were found on the
scene were accounted for by Mr Olavi who testified that the rifle
that Chief Inspector Malan thought was an AK-47, which turned out not
to be, was the rifle which Mr Olavi had and the pistol the deceased
had. The fact that Chief Inspector Malan initially described the
rifle found on the scene as an AK-47, or that Inspector Becker
testified that he was not sure as to who exactly between Inspector
Uiseb and Chief Inspector Malan gave him the exhibits does not in any
way break the chain of custody. Inspector Uiseb testified that he
gave the exhibits to Inspector Becker. Indeed, Inspector Becker was
not present when the AK-47, Commando and the 7.65 pistols were found.
When the report was made at Opuwo Police Station of the discovery of
the three firearms, Inspector Uiseb and Constable Judith Salome van
Wyk travelled to the scene. Constable van Wyk took the photographs of
the firearms on the scene. The two officers took the firearms with
them and it makes sense that Inspector Uiseb must have handed the
AK-47 and Commando to Inspector Becker and Inspector Becker in turn
gave them to Mr Dry who submitted them to NFSI Laboratory. Mr Olavi
testified that the person who approached him on the scene, pointing a
firearm at him had a firearm that resembled an AK-47. Ms Shanyanana
was positive that it was an AK-47. The AK-47 found with the two
pistols was established as the murder weapon. One looks in vain for
the alleged lapse of the chain of custody of the AK-47 and Commando.





[37] Finally, the
appellant’s alibi was correctly rejected. His alibi as stated
by the High Court is this:





‘[47] . . . on
the day of the incident at about 12h00 he went to a business place
where he spoke to Mr Ben Puriza (a witness also called Ben Gurirab)
about a pool table he helped to repair. After this discussion he went
home where he stayed during the lunch period and around 14h00 he
returned to the business to effect repairs to the pool table. He
stayed there working on the pool table until about 16h00 when he went
home where he found the vehicle he had sold to Accused No. 2. Because
of the fact that he had previously undertaken to assist Accused No. 2
with repairs to it , he went to look for Accussed No 2 and when he
found him he picked him up and hence the presence of Accused No. 2 in
his car later that day.





[48] Mr Ben Puriza
confirmed the discussion at around 12h00 during the day of the
incident and that certain staples would be needed to complete the
repairs to the pool table. He stated that Accused No. 1 (appellant)
did not return during the afternoon to work on the table but did so
only the following day. He conceded that his sister has a key to the
premises and that Accused No. 1 (appellant) could have visited the
place without him knowing this. His brother known by the nickname
Never Die who was a defence witness, stated that he went to fetch the
correct type of staples at Telecom and that Accused No. 1 (appellant)
returned the afternoon to work on the pool table between 14h00 and
15h00. According to him his brother Ben was aware of this fact that
Accused No. 1 (appellant) came back that afternoon. Never Die was
however not certain about the date and thought this was the same day
that he withdrew money for payment to Accused No. 1 (appellant). The
payment was not on the day of the incident, but only some days later
after the work to the pool table had been finalised. The sister of
the Puriza’s was not called as a witness. Ms Muvangua who
resided with Accused No. 1 stated that he came home for lunch on the
day of the incident and that after lunch he went on foot and that his
vehicle remained parked at his house.'





[38] The High Court
concluded on this issue, the sentiments with which I agree, as
follows:





‘[50] The
Purizas do not take the matter much further in view of their
conflicting and at time uncertain evidence. Ms Muvangua is depended
on Accused No. 1 (appellant) and the latter obviously has an interest
in the matter. Even if it can be said that there is a reasonable
possibility that Accused No. 1 (appellant) was not on the scene of
the incident. (Here it must be borne in mind that a third person was
arrested at a stage and indicted with the accused). The problem that
arises, is that this does not exclude the possibility that he was in
some other way involved. He does not explain the presence of the
handcuffs and pistols nor the probability that his vehicle was
involved. He does not explain this and he is the only person who can
explain this. He simply says that he was not on the scene and denies
his involvement totally. If he was involved to a lesser extent in
that he allowed items in his possession to be used, he should have
explained how this came about. In the circumstances the inference
that he was a party to the crime, was justified. (Rex v Ismail 1952
(1) SA 204 (A), S v Letsolo 1964 (4) SA 768 (A) at 776B-D and S v
Rama 1966 (2) SA 399 (A) at 400.)’





[39] What troubled
the High Court though is the language spoken by the two assailants.
From the evidence of Mr Olavi the one that spoke Oshiwambo to him was
identified by him later as Accused No. 2 and the other person spoke
Afrikaans. Ms Shanyanana corroborated Mr Olavi in that regard. That,
the High Court found strange, as appellant is Oshiwambo speaking and
Accused No. 2 should have been the one speaking either Otjiherero or
Afrikaans which would have been more in line with the identities of
the accused persons.





[40] I do not have
that problem for two reasons. First evidence was led through Accused
No. 2’s half-brother Mr Rukambura that Accused No. 2 was in the
Armed Forces at some point of his life. It was not made clear whether
it was before or after Independence. Regardless of the period, I take
judicial notice that, there were (before independence) and there are
many Oshiwambo speaking persons in the Armed Forces. Accused No. 2
could have picked up or learnt a few phrases in Oshiwambo earlier on,
as many people do, given his exposure to the language in the military
and through other social exchanges. Secondly, this was a robbery, and
no doubt it was carefully planned and executed in broad daylight. The
false Windhoek registration number, the altered features of the
vehicle were all intended to mislead and create the impression that
it could have been committed by other persons. No fingerprints were
uplifted either from the vehicle or the firearms. This tends to show
that the robbery was executed by persons with knowledge how to avoid
leaving fingerprints on the crime scene or on weapons used in the
execution of the crimes. Appellant being not a mere police officer
but an apparently seasoned detective perfectly fits that description.





[41] In my opinion
not much turns around the fact that Oshiwambo was not Accused No 2’s
mother tongue, the evidence is that he is said to have spoken it
during the robbery. The languages again were meant to confuse the eye
witnesses. Indeed it almost worked, when Mr Olavi suspected Accused
No. 2; the police officers told him that he did not speak Oshiwambo.





[42] Evidence is
clear that appellant was in the background while Accused No. 2 was in
the forefront. This is when regard is had to the fact that on 30
August 2000 when Accused No. 2 asked for cigarettes from Mr Popassi
(senior), appellant remained in the vehicle and Mr Popassi (junior)
did not identify him. On the day of the incident, he came on the spot
where the vehicle of the victims of the attack had come to a
standstill after Accused No. 2 had subdued the other occupants.





[43] I can only
agree when the High Court in the final analysis held as follows:





‘[44] In my
view the cumulative effect of the enumerated facts and circumstances
are such as to link Accused No. 1 to the crime. The car, although a
common type, was immediately identified as his by Mr Olavi as well as
Mr Kleophas. One of the assailants, Accused No. 2, was seen in a car
similar to his prior to the incident when he asked for a cigarette
and subsequent to the incident when he was found in the car with
Accused No. 1. The handcuffs which Mr Olavi was handcuffed with had
his name on or at least letters making up his name. He had a grinder
with which to remove identifying marks or number on a pistol and a
pistol found had some of its number grinded off. The pistols –
both linked to him by way of the matters he investigated or were
responsible for – were found together with the murder weapon.
To suggest that this is a mere coincidence that he be linked with
handcuffs and pistols and that another person or persons could
account for these items all being found in connection with the
crime, is in my view mere conjecture and fanciful speculation.’





[44] One looks in
vain for any misdirection or a failure to have assessed the evidence
properly on the part of the trial court and the High Court that heard
the appeal. The evidence given in the Regional Court was fairly and
accurately summarised in that Court even more so in the judgment of
the High Court. The High Court particularly paid attention to the
detailed criticisms of the evidence of the witnesses who testified
for the State. The evidence was evaluated in the context of the
entire body of evidence, and attaching appropriate weight to the
evidence in the light of the evidence as a whole and the inherent
probabilities and improbabilities of the case. Where caution was
needed it was exercised and the Court rejected or preferred to place
no reliance upon evidence for the State which might possibly not be
accurate. It is for that reason that the findings of fact of the High
Court cannot be disturbed.





[45] As was stated
in Miller v Minister of Pensions [1947] 2 ALL ER 372 at 373:





‘Proof beyond
reasonable doubt does mean proof beyond the shadow of a doubt. The
law would fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his
favour which can be dismissed with the sentence “of course it
is possible, but not in the least probable”, the case is proved
beyond reasonable doubt, but nothing short of that will suffice’.





[46] The above
dictum was followed in a judgment of the South African Court of
Appeal in S v Glegg 1973 (1) SA 34 (AD). An excerpt from the English
headnote reads as follows:





‘The phrase
“reasonable doubt” in the phrase “proof beyond
reasonable doubt” cannot be precisely defined but it can well
be said that it is a doubt which exists because of probabilities or
possibilities which can be regarded as reasonable on the ground of
generally accepted human knowledge and experience. Proof beyond
reasonable doubt cannot be put on the same level as proof beyond the
slightest doubt, because the onus of adducing proof as high as that
would in practice lead to defeating the ends of criminal justice’.





See also S v
Ngunovandu 1996 NR 306 (HC) at 317I-318A-B.





[47] I have
carefully considered the judgment of the High Court and the
submissions of the appellant’s counsel and I am satisfied that
the State has proved the guilt of the appellant beyond reasonable
doubt. After all ‘… the State is, however, not obliged
to indulge in conjecture and find an answer to every possible
inference which ingenuity may suggest any more than the Court is
called on to seek speculative explanations for conduct which on the
face of it is incriminating …’. (See S v Sauls and
Others 1981 (3) SA 172 (AD) at 182G.)





[48] In a minority
judgment of R v Mlambo 1957 (4) SA 727 (AD) at 738A, Malan JA made
the following observations with which I respectfully agree:





‘In my
opinion, there is no obligation upon the Crown to close every avenue
of escape which maybe said to be open to an accused. It is sufficient
for the Crown to produce evidence by means of which such a high
degree of probability is raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion that there exists
no reasonable doubt that an accused has committed the crime charged.
He must, in other words, be morally certain of the guilt of the
accused.’





(See also S v Rama
1966 (2) SA 395 (AD) at 401, S v van Wyk 1993 NR 426 (HC) at
438G-439A.)





[49] As the High
Court correctly pointed out, the appellant’s denials of the
evidence that links him to the crimes and his version and that of his
witnesses, is pure conjecture and fanciful speculation:





‘An accused’s
claim to the benefit of a doubt when it might be said to exist must
not be derived from speculation but must rest upon a reasonable and
solid foundation created either by positive evidence or gathered from
reasonable inferences which are not in conflict with, or outweighed
by, the proved facts of the case.’ See S v Mlambo supra at
738B.





[50] The recorded
evidence amply justifies the findings of the trial court and the High
Court. The appellant’s version is in conflict with or it is
outweighed by the proved facts of the case. This follows that the
appeal has no merits and has to fail.





[51] I, therefore,
make the following order:





The appeal is
dismissed.











MAINGA JA





SHIVUTE CJ





MARITZ JA





APPEARANCES











APPELLANT: S
Namandje





Instructed
by Sisa Namandje & Co Inc





RESPONDENT: D
M Lisulo





For the
State