Court name
Supreme Court
Case name
Shipanga and Another v S
Media neutral citation
[2014] NASC 22
Judge
Mainga JA










IN THE SUPREME
COURT OF NAMIBIA





CASE
NOs: SA 65/2011





SA
72/2011





DATE:
31 OCTOBER 2014





REPORTABLE





In the matter
between:





FANUEL FESTUS
SHIPANGA..........................................FIRST
APPELLANT





PAULUS
KAMATI......................................................SECOND
APPELLANT





And





THE
STATE..............................................................................RESPONDENT





Neutral Citation:
Shipanga v The State (SA 65-2011 SA72-2011) [2014] NASC (31 October
2014)





Coram: SHIVUTE
CJ, MARITZ JA and MAINGA JA





Heard on: 31
October 2012





Delivered on: 31
October 2014





APPEAL
JUDGMENT





MAINGA JA
(SHIVUTE CJ and MARITZ JA concurring):





[1] This is an
appeal with the leave of this court granted after the court below had
refused the appellants leave to appeal. The appellants were arraigned
in the High Court on five counts including: (1) murder; (2) robbery
with aggravating circumstances as defined in s 1 of the Criminal
Procedure Act 51 of 1977; (3) kidnapping; (4) possession of firearms
without a licence in contravention of s 2; and (5) possession of
ammunition in contravention of s 33 read with sections 1, 8, 10, 38
and 39 of Act 7 of 1996.





[2] All five
offences were committed in the district of Windhoek, counts 1 to 3 on
8 July 2007 and counts 4 and 5 in the period of 6 – 8 July
2007. On the count of murder, it was alleged that the appellants had
murdered Johannes Peter Fellinger, an adult male person. On the
second count of robbery with aggravating circumstances, that they had
forced the deceased Johannes Peter Fellinger and his wife Elke Maria
Gobel Fellinger into submission by shooting the deceased in the head
with a firearm and had assaulted Ms Fellinger by hitting her on the
head with a firearm and/or threatened to kill her and/or pointed a
firearm(s) at her with the intent to steal and taken from them a
Toyota double cab motor vehicle with registration number SVJ 708 GP
with a roof tent and ignition key, as well as N$2 700, 00 and at
least €1 000, 00 cash money, a Canon digital camera (model:
PowerShot S 80), a JD Jendigital digital camera (model: 5.0z3c serial
number CJP 71003538) with a memory card, property of or in the lawful
possession of the Fellingers. It is alleged that aggravating
circumstances as defined in s 1 of Act 51 of 1977 were present. In
relation to the third count of kidnapping, it is alleged that Ms
Fellinger was deprived of her liberty of movement by being forced
into the Toyota pick-up referred to in count 2 and ‘imprisoned’.
In respect of counts 4 and 5, it is alleged that the appellants were
in possession of firearms without a licence and ammunition without
being in the lawful possession of a firearm capable of firing the
same.





[3] The appellants
were convicted on all five counts after a trial which commenced on 3
June 2010 and, with intermittent adjournments, concluded on 25 March
2011. On 26 May 2011, the appellants were sentenced as follows:





Count 1 Murder: 30
years imprisonment each.





Count 2 Robbery with
aggravating circumstances: 12 years imprisonment each, of which 2
years were ordered to run concurrently with the sentence on count 1.





Count 3 Kidnapping:
6 years imprisonment each, 2 years of which were ordered to run
concurrently with the sentence on count 1.





Count 4 Possession
of firearms: 1 year imprisonment each.





Count 5 Possession
of ammunition: 1 year imprisonment each.





[4] An application
for leave to appeal to this court against their respective
convictions and sentences failed. Leave to appeal to this court, as
already stated, was granted on petition.





[5] The facts that
gave rise to the convictions and sentences can be stated as follows:





5.1 On Sunday 8 July
2007, the deceased, Mr Fellinger, and his wife Ms Fellinger, arrived
in Namibia on a flight from Germany. At the Hosea Kutako
International Airport, they hired a Toyota pick-up vehicle and drove
to the Windhoek city centre and, from there, further westwards in the
direction of Khomas Hochland with the intention to go to Swakopmund.
At or near the Francois Feste Stone ruins, the couple stopped and
alighted from the vehicle. The deceased walked in the direction of
the ruins where he saw a number of monkeys and wanted to take photos
of them. Ms Fellinger remained at the vehicle to guard their luggage
which she thought was not properly secured. The deceased returned to
the vehicle as the monkeys had disappeared but, as he arrived back at
the vehicle, over his shoulder he again noticed the monkeys a
distance away. The deceased requested his wife to remain at the
vehicle again while he approached the animals to take photos of them.





5.2 While Ms
Fellinger was at the vehicle, a man, whom she later identified in
court as the first appellant, suddenly approached her and demanded
money. When she said she did not have money, he produced a firearm
and repeated the demand. Ms Fellinger cried out for help. The man hit
her at the back of the head with the firearm and told her to stop
crying out for help. He then grabbed her and dragged her towards a
bush. During these events, Ms Fellinger dropped the keys of the
vehicle on the ground. The man demanded the keys and, when she could
not produce them, called his colleague whom he instructed to search
for the keys. The second man, whom Ms Fellinger later identified in
Court as the second appellant, found and picked up the keys. The
latter remained with Ms Fellinger while the former returned to the
vehicle. He got into the vehicle and turned it about to face in the
direction of Windhoek. It was at that moment that the deceased
returned to the vehicle. Ms Fellinger could not warn him of the
danger that had befallen them because the second man was guarding her
in a depression next to the road. The man who was guarding her
searched her moon bag for money.





5.3 Suddenly, she
heard a gunshot. When the sound of the shot faded, the man who was
guarding her ran up the incline on the side of the road, leaving her
behind. She also ran up the incline to stop and seek help from the
driver of a vehicle which she saw approaching from the direction of
Windhoek. Apparently, the driver did not see her and drove on. The
two men pursued her to the Toyota pickup where she found her deceased
husband. He was on the rear seat of the vehicle with his body
slanting diagonally downwards. She called him by his name but the man
who had approached her first, informed her that he was dead. Ms
Fellinger was forced to sit on the seat next to her dead husband as
the first man drove off in the direction of Windhoek. As they
proceeded along the road, the driver executed a number of twists and
turns so that she eventually lost direction as to where they might be
heading. They went through two farm gates and, at the third gate, the
driver suddenly stopped. The one who appeared to her as the older of
the two and was later identified by her as the first appellant,
instructed her to search the pockets of her dead husband. She was
further instructed to disembark from the vehicle so that the first
appellant could conduct a body search on her. In her chest pocket he
found a small camera, which he removed and placed in his own pocket.
The second man took one of the Fellingers’ travelling bags,
removed some photos and camera accessories and placed Ms Fellinger’s
clothes into it.





5.4 Ms Fellinger was
instructed to enter the vehicle again. She was blindfolded and made
to lie on top of the deceased. They drove off and later stopped. She
was then taken out of the vehicle and led along a footpath and made
to sit down. She could hear them dragging something. After a while
they returned and made her enter the vehicle and lie down on the rear
seat which she could feel was wet. She could hear them counting money
which they had removed from her pocket. It was about €1000. They
then demanded the Fellingers’ credit and debit cards and the
associated PIN numbers. Ms Fellinger could only recall the PIN of her
own debit card and not that of the deceased’s. Then two or one
of them informed her that they were going to drive to the bank to
verify the PIN that she had provided and that if it was wrong they
were going to kill her.





5.5 The journey to
the bank commenced. She felt that the vehicle was gathering speed.
She inferred from the exchanges between them that they had noticed
something. The vehicle went faster and faster. Suddenly, it
overturned. There was silence and she found herself alone in the
vehicle. She disembarked unsteadily and found that she was standing
next to the road. A moment later, a German speaking man who
introduced himself as Wolfgang Pfeifer stopped by with his vehicle.





5.6 Mr Pfeifer farms
at Farm Okariro No. 282 in the Khomas Hochland. When he left his farm
to return to Windhoek, he noticed a Toyota vehicle ahead of him on
the road. As he was driving behind this vehicle, he became suspicious
and tried to stop the vehicle. He drove up next to the vehicle and
indicated to the driver to stop but to no avail. He alerted farmers
in the vicinity of this vehicle by radio and continued to follow the
vehicle until the point where it overturned. When he arrived at the
scene, he saw the driver assisting the other male passenger who was
bleeding heavily either from his head or shoulder. The two got out of
the vehicle and disappeared amongst the bushes. He saw firearms lying
outside the passenger door of the overturned Toyota vehicle. Two
other vehicles stopped on the scene. One belonged to Dr Burger, who
immediately examined Ms Fellinger and was satisfied with her
condition. When Ms Fellinger informed them that her husband had been
killed and that she had no idea where his corpse had been dumped, Mr
Pfeifer said that he had an idea as to where the corpse might be. Mr
Pfeifer, Dr Burger and one Schickerling drove back to the place where
Mr Pfeifer had first noticed the vehicle. They stopped 100 metres
away and walked on foot and saw tracks leading towards the riverbed.
As they advanced they saw blood. They followed the trail of blood and
came upon the body of the deceased. Stones were placed on the head of
the corpse. Dr Burger removed the stones and examined the body for
any life but there was none. They returned to where the vehicle had
overturned and there they met the police who had also arrived at the
scene. They led the police to the location of the corpse.





5.7 While Mr Pfeifer
and others were busy with investigations between the accident scene
and where the deceased’s body was recovered, the Kambada
family, who runs a guest house in the vicinity, were contacted. They
arrived on the scene and took Ms Fellinger to their guest house. They
arranged for an ambulance to pick up Ms Fellinger. She was taken to
the Roman Catholic Hospital where she was examined by Dr Erna de
Villiers in the trauma unit of that hospital on the evening of 8 July
2007. After the treatment, she returned to Germany.





5.8 In the course of
subsequent investigations of the offences, numerous samples were
collected and taken from the Toyota pick-up and the sites relevant to
the crimes. Blood and saliva samples were also taken from the
appellants for DNA purposes after their arrests. On the analysis of
some of the samples, the State contended that the appellants were
connected to the crimes.





[6] The court below
convicted the appellants, relying in part on the evidence of Ms
Fellinger who identified them in court as the persons who had
committed the offences described in para 2 supra. Ms Fellinger
asserted that the first appellant, was the person who had approached
her first and the elder of the two, and that the second appellant was
the person whom the first appellant had called to assist him at the
scene. They were also convicted on the DNA evidence. The first
appellant was further convicted on the evidence of the camera, which
was identified by Ms Fellinger as hers. She testified that it had
been taken from her by the first appellant. Another witness, Mr
Namugongo, testified that he had received the said camera from the
first appellant for safekeeping.





[7] The second
appellant was further convicted on the evidence of a confession he
made in terms of section 217 of the Criminal Procedure Act of 1977 to
Chief Inspector Brune on 17 September 2007 and the recorded video
that he had made in the presence of Chief Inspector van Zyl on 19
September 2007. The second appellant was further convicted on the
evidence of the injuries he had sustained when the vehicle
overturned, witnessed by Mr Pfeifer, who had followed the vehicle and
stopped on the scene shortly after it had overturned. The evidence of
the injuries was confirmed by Ms Nakale, who saw the second appellant
shortly after the incident and rendered assistance by warming up
water used by the second appellant to clean the wound.





[8] The appellants’
quarrel with their convictions is directed at the evidence above.





[9] Mr Namandje, who
appeared for the first appellant, submitted that the evidence of Ms
Fellinger identifying the first appellant as the person who attacked
and killed the deceased was unreliable. He referred us to what can
be termed as discrepancies or deficiencies in her evidence, namely,
the failure to give her an opportunity to identify the first
appellant at an identification parade; the fact that she had seen
pictures of the appellants in some newspapers that reported on their
arrest and that the reports assisted her to later identify the
appellants; the initial uncertainty expressed by her two days after
the incident (10 July 2007) as to whether she would be able to
identify the suspects and the seemingly contradictory statement made
by her during cross-examination (when asked as to how she was able to
identify the two accused as the persons present at the scene), that:
‘… they were wearing no masks and that the incident was
blended in her memory she would never forget their faces’; the
fact that she told the police officers that the attackers were black
men and that, for a white person, it was difficult to distinguish the
features of one black man from another. He also pointed out that Ms
Fellinger had stated in her written statement to the police that the
attacker who was lighter in complexion than the other had been the
one who had shot her husband even though the second appellant was
actually lighter in complexion than the first appellant; and that in
her evidence she had said that the first appellant had a small face
and was aggressive, when earlier during cross-examination she had
stated that the first appellant had a ‘long face’. He
also criticised the fact that she could not tell whether the second
appellant was wearing a woollen hat or not; she could not describe
the first appellant’s haircut or hairstyle as he was wearing a
balaclava; she could not say anything about the shoes worn by the
appellants; and she could not say which of the two men had a two-way
radio. He drew the court’s attention to the fact that Ms
Fellinger had admitted to the police in Germany that at times she was
unsure of whether she would be able to recognise the suspects; that
she had admitted that on the day she testified she was brought into
court 15 minutes before the court commenced, and therefore had an
opportunity to identify an exhibit (a camera) and to look at the
appellants; the suggestibility to her by the police that the camera
had been found in the possession of the first appellant; and that she
had been shown a photo of the first appellant prior to her
identification of the suspect.





[10] Mr Namandje
referred to the relevant authorities on the reliability of her
evidence relating to the appellants’ identity, namely: Charzen
and Another v S 2006 (2) ALL SA 371 (SCA); S v Haihambo 2009 (1) NR
176 (HC); S v Mthetwa 1972 (3) SA 766 (A). He submitted that no court
of law in this country, given our law of evidence on
identification, could or would regard the evidence of Ms Fellinger as
reliable and that the reasoning of the court below was confusing and
unsupportable both in fact and law.





[11] Mr Kwala for
the second appellant submitted that the court below misdirected
itself when it failed to disallow the inconsistent evidence of the
complainant (Ms Fellinger) as an unreliable witness.





[12] On the issue of
identifying evidence, the court below accepted the evidence of Ms
Fellinger in whole. The court found that all the witnesses who
testified were independent and impartial and, therefore, honest
witnesses. Particularly on the issue of identification, the court
below stated that:





‘On the issue
of identification, it is common cause that no identification parade
was held in order for the witness Elke Fellinger to identify her
attacker.


That being the case,
there is still real evidence which was procured in the form of a
camera. The complainant herself has identified the camera, as
belonging to her; also identifying copies of the photographs that she
said were taken in her country, Germany, prior to their arrival in
Namibia. This camera was received as real evidence in this Court.’





[13] Mr Namandje
argued that in the above statement the court appears to have reasoned
that, as there was no identification parade, not much could be said
about the reliability of the witness’ identification. However,
because of the camera, which the first appellant as a matter of fact
gave to Mr Namugongo, the Court considered that the identification of
the first appellant was strengthened and that it was reliable. Mr
Namandje submitted that both the evidence of identification and that
of Mr Namugongo is unreliable for purposes of proving beyond
reasonable doubt that the first appellant was the person who had
attacked and killed the deceased.





[14] It does not
appear that Mr Namandje’s argument correctly reflects the
reasoning of the court below, for as already mentioned, it appears
that that court had accepted or attached substantial weight to Ms
Fellinger’s evidence on the identification of the two
appellants. I understand the reasoning of the court below as quoted
in the above passage to acknowledge that there was no identification
parade conducted, but there was a measure of objective corroboration
in other physical evidence that linked the appellants to the
commission of the crimes. In the statement above, the court below
mentioned the digital camera as part of the physical evidence that
linked the first appellant to the commission of the crimes. Ms
Fellinger identified the camera as hers (this evidence was
undisputed) and she testified that the camera had been taken from her
by the first appellant. Mr Namugongo testified that he had received
the said camera from the first appellant for safekeeping. The court
below accepted this evidence.





[15] Courts here and
elsewhere have stated and restated in numerous cases the approach to
evidence of identification and the danger inherent in mistaken
identity. See for example, S v Haihambo 2009 (1) NR 176 (HC); S v
Malumo and Others 2006 (2) NR 629 (HC); S v Mthetwa, supra, S v Matwa
2002 (2) SACR 350 (E), [2002] 3 ALL SA 715; Charzen and Another v S,
supra; S v Mcasa and Another 2005 (1) SACR 388 (SCA). The general
approach may be said to amount to this:





‘Because of
the fallibility of human observation, evidence of identification is
approached by the Courts with some caution. It is not enough for the
identifying witness to be honest: the reliability of his observation
must also be tested. This depends on various factors, such as
lighting, visibility, and eyesight; the proximity of the witness; his
opportunity for observation, both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility; the accused's face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by or on behalf of the accused. The list
is not exhaustive. These factors, or such of them as are applicable
in a particular case, are not individually decisive, but must be
weighed one against the other, in the light of the totality of the
evidence, and the probabilities.’ See S v Mthetwa, supra, at
768A-C.





[16] Ms Fellinger
testified that her attackers were two black male persons (which was
confirmed by Mr Pfeifer) and that she had physical contact, verbal
exchanges and eye contact with them. The whole episode, she
testified, was engraved in her memory. The attack occurred in an open
space and broad daylight. The latter part of the evidence is
undisputed. She must have had proper opportunities to observe the
assailants. She testified that they were not wearing masks, but that
the driver, whom she later identified as the first appellant, had a
balaclava pulled down to his hairline. She was not sure whether the
second appellant wore a balaclava as well. She could not testify to
the assailants’ hairstyle or the shoes they were wearing, but
she described their clothes and, in that respect, her evidence was
corroborated by Mr Pfeifer. She admitted that she had told the
police, both here and in Germany, of her doubts that she would be
able to identify her assailants. She also readily admitted that, as a
white person, she would have difficulties in distinguishing between
the complexions of two black men. She further admitted that she had
been inside the courtroom to identify the digital camera before the
court proceedings commenced on the date that she testified. It is
also apparent from the evidence that Ms Fellinger’s memory was
prompted when she saw the appellants’ photographs in the
newspapers. Ms Fellinger had also described the first appellant as
lighter in complexion than the second appellant in her police
statement and yet, when they appeared in court, the second appellant
seemed to have a lighter skin tone than the first appellant. She
attributed the mistake to the light that had fallen on them and the
optical illusion it had created. She also admitted that she had told
the police shortly after the incident that she might not be able to
identify her assailants but testified that this uncertainty was due
to the shock she was suffering at the time, and that the memories of
her assailants had resurfaced after she had returned to Germany.





[17] Ms Fellinger’s
evidence does not exist in isolation. If it did, it would have raised
an unavoidable doubt about the reliability of the identification when
one considers the emotional shock from which she admittedly suffered
during the incident (R v T 1958 (2) SA 676 (AD)). Moreover, the
appellants were strangers to her, and she erred when she described
the facial characteristics and complexion of the first appellant
shortly after her ordeal. It is common cause that the second
appellant had the lighter complexion of the two. There is nothing
particularly distinctive about the description she gave of the
appellants’ features and no evidence was led that fitted the
first appellant’s appearance perfectly. She readily conceded
that she had erred and sought to attribute it to other factors. The
fact that there are these weaknesses in her evidence; that an
identification parade was not held; and that the weight to be
attached to the dock-identification had been compromised by the
photographs of the appellants which she had earlier seen of them in
newspapers should not mean that her evidence regarding the identities
of her assailants should be disregarded altogether where it is
corroborated in certain respects by other evidence. The decision to
acquit or convict an accused is arrived at after a holistic
consideration of the evidence presented. See S v Haihambo, supra, at
182C-F; S v Mcasa and Another, supra, at 390f; S v Matwa, supra, at
355i-356g; S v van der Meyden 1999 (1) SACR 447 (W), 1999 (2) SA 79
(W) at 450a-d (SACR), 82C-E (SA).





[18] In S v
Haihambo, the Court held that dock identification per se is not
inadmissible, and that the weight a court should attach to such
identification depends on the circumstances of each case. In S v
Matwa, supra, which was referred to with approval in S v Haihambo at
355i-356g, it is stated as follows:





‘… the
question in issue is not the admissibility of the dock identification
but the evidential value to be placed thereon. Where a witness
identifies an accused in the dock, it forms part of the evidential
matter upon which the case must be decided and I see no reason in
principle to exclude it solely due to it having been done in court.
In many, if not the majority, of cases coming before our courts, the
first occasion a witness has to identify the offender is when he or
she gives evidence. The admissibility or otherwise of evidence cannot
be determined by having regard to the degree of seriousness of the
offence upon which an accused is tried, and it is wholly impractical
to suggest that the police should, for example, be obliged to hold an
identification parade for the material witnesses to attend in each
and every minor case of disputed identity in order to render their
identification of the accused admissible at a subsequent trial (cf
May Criminal Evidence 4th ed at 372).





Notwithstanding the
dangers attendant thereon, I therefore do not see why a dock
identification should be ignored or that it should be regarded as
being inadmissible. Interestingly, the position in England appears to
be that evidence of a dock identification is legally admissible,
although there is a discretion for it to be excluded if the
prejudicial effect of the evidence outweighs its probative value (see
May (op cit at 371)). Similarly, in my view, a dock identification is
admissible in this country, although the weight which is to be
afforded thereto will vary depending upon all the circumstances. A
spontaneous identification made by a witness may possibly carry more
weight than a case where the prosecutor specifically asks the witness
whether the person in the dock is the person who committed the deed.
And the evidence of a witness who had but a fleeting glance of an
unknown perpetrator in poor conditions of visibility a long time
before testifying will, of course, have little, if any, probative
value, whereas the evidence of a close friend of the accused in
respect of a protracted incident which occurred in conditions of
perfect visibility a relatively short time before, may be thoroughly
convincing (in this latter scenario, it would, for example, hardly
matter that the identifying witness had not had the opportunity of
identifying the accused again before testifying). No fixed rules can
be laid down. In each and every case the judicial officer must decide
upon what weight, if any, is to be afforded to the dock
identification, regard being had to all the material circumstances -
including those prevailing when the initial observation took place as
well as those under which the identification in court is made. But to
exclude evidence of identity as inadmissible purely on the basis of
it being tendered in the presence of the accused in the dock, is, in
my respectful view, incorrect.’





[19] In S v van der
Meyden, supra, at 449g and 450a SACR Nugent J put it thus:





‘… A
court does not base its conclusion, whether it be to convict or to
acquit, on only part of the evidence. … What must be borne in
mind, however, is that the conclusion which is reached (whether it be
to convict or to acquit) must account for all the evidence. Some of
the evidence might be found to be false; some of it might be found to
be unreliable; and some of it might be found to be only possibly
false or unreliable; but none of it may simply be ignored.’





[20] It is with
these comments in mind that I turn to consider the evidence related
to identification. For unexplained reasons, no identification parade
was held at which Ms Fellinger could have been asked to identify the
appellants. The photos that were allegedly forwarded to Ms Fellinger
to identify the appellants never reached her. In addition, they were
of the appellants only, thereby defeating the methodology and purpose
of a photo identification. The investigation called for an
identification parade once Ms Fellinger was available for the
exercise and, in my opinion, it could have been held even shortly
before she was required to testify. At the very least, a photo
identification should have been conducted.





[21] The failure to
hold an identification parade, which appears to have been influenced
by the apparent weight of other physical evidence garnered against
the appellants, bears the unmistakable hallmark of slovenly police
work. It is not for the police to think that they have garnered
enough evidence; their role is to pursue every reasonable evidential
link against a suspect during an investigation.





[22] Nevertheless,
in the light of the comments set out above, the fact that a parade
was not held, or that Ms Fellinger was influenced by the photographs
of the appellants in the newspapers, does not seem to me to justify
the exclusion of her identification of the appellants from the
evidential material that the court below was called upon to take into
account. It must be remembered that the case against the appellants
did not rest solely upon the identification evidence of Ms Fellinger.
As mentioned before, it was bolstered by the evidence of Mr Namugongo
regarding the camera he had received from the first appellant, which
Ms Fellinger later identified as the one that the first appellant had
coercively taken from her at the crime scene. That evidence alone
undoubtedly connected the first appellant to the crimes committed on
Ms Fellinger and her deceased husband. It is in this context that the
court below made the finding quoted in paragraph [12] above, which
counsel for the first appellant has criticised as confusing and
unsupportable both in fact and law. In S v Charzen and Another,
above, the South African Supreme Court of Appeal reversed the
conviction based solely on the identification evidence of the single
testimony of the complainant. It justified its conclusion in para 19:





‘[19] This is
inevitable, mainly because the only evidence the State called about
the robbery was the single testimony of the complainant. There was no
physical evidence: not a fingerprint, not a recovered cellphone, nor
wallet, nor purse, nor baby seat, nothing to connect the accused to
the crime and thus to provide a measure of objective assurance
against the pitfalls of subjective identification. The greatest
assurance of guilt must lie in such evidence, rather than in
identification on its own, which, as this case shows, can be beset by
error and misdescription and doubt in which case possibly and even
presumably guilty persons must walk free.’





[23] A submission
was made by counsel for the appellants that Mr Namugongo is a
confessed liar and that his evidence was unreliable. This submission
has no substance. Mr Namugongo explained in substantial detail when
and how he received the camera from the first appellant and why he
had initially denied to the police having ever received a camera from
the first appellant. He testified that, when he realised that the
case was serious and that he might be arrested, he disclosed in
private to Sergeant Ndikoma that he had indeed received a camera from
the first appellant. He called Constable Ashipala and informed him
that he had received a camera from ‘Mufana’ (a nickname
of the first appellant) and that it was with Ms Aletta Namugongo
where it could be collected. There is no reason why he would have
implicated his childhood friend, the first appellant, had he received
the camera from someone else. He was not a suspect in the case. When
the police approached him they asked him whether he had recently
bought or sold a camera. He was asked whether he owned a camera and
he informed them that he owned two. He was requested to produce the
cameras, which he did, but neither was related to the investigation.
It was only when he was informed that the first appellant was linked
to the crimes under investigation that the seriousness of the matter
and the significance of the chain of evidence relating to the camera
dawned on him. Although the reasons why he initially denied having
received a camera from the first appellant remain undisclosed, there
is a real possibility that he wanted to protect his friend, the first
appellant, until he realised the seriousness of the matter and that
his shielding of the first appellant could be at the expense of his
arrest and incarceration. It was only then that he opened up to the
police. This inference is all the more plausible if regard is had to
the testimony of Constable Ashipala, who stated that Mr Namugongo had
informed him during a telephone conversation that ‘Mufana’
had warned Mr Namugongo not to say anything to the police.





[24] Alternatively,
the appellants’ counsel submits that even if it were to be
found that the first appellant had indeed given the camera to Mr
Namugongo, such a finding by itself does not place him at the scene
of the crime and that it cannot constitute proof that he committed
the offences because of the possibility that the camera was passed
from person to person. In the absence of any evidence by the
appellants that they or either one of them received the camera from a
person other than Ms Fellinger, this contention is pure speculation.
The evidence presented is that the first appellant removed the camera
from Ms Fellinger’s pocket at the crime scene and placed it in
his pocket. Mr Namugongo received it from the first appellant. He, in
turn, lent it to his cousin, Ms Aletta Namugongo, who was at the time
in the north of Namibia. In the presence of Mr Namugongo at the
police station in Windhoek, Constable Alfonso and Sergeant Ndikoma
phoned Sergeant Ashipala, who is stationed in northern Namibia. After
Mr Namugongo had been given an opportunity to speak to him, they
requested that Sgt Ashipala collect the camera from Ms Aletta
Namugongo and send it to them in Windhoek. Constable Ashipala and
Constable Shiweda proceeded to the house of Mr Werner Namugongo at
Oshigambo. They found Mr Werner Namugongo and Ms Aletta Namugongo at
the house. After they had informed them of the reason for their
presence, Ms Namugongo gave them the camera, which they took and
handed over to the Unit Commander at Ondangwa. Chief Inspector
Unandapo later collected the camera from him in Ondangwa. In the
absence of any evidence to the contrary, the first appellant is
embroiled in the web of that evidence and an inference of his guilt
was quite justifiable.





[25] This brings me
to the other physical evidence on which the court below convicted the
appellants, the DNA (deoxyribonucleic acid) evidence. DNA, as I
understand the expert evidence, is a nucleic acid found in all living
things that contain genetic patterns unique to each individual thing
or person. Also found in the blood, saliva and tissue of human
beings, samples thereof subjected to a process of scientific analysis
may be used comparatively for purposes of identification – also
known as ‘genetic fingerprinting’. The analytical results
of samples in this case reveal that the second appellant was the
depositor of the genetic material found on a rock (stone) collected
at the scene where the vehicle had overturned. More specifically: Ø
5 soil sample (exhibit 15) and Ø11 a swab (exhibit 13) matched
the blood on FTA card (K4-1), which had been collected from the
second appellant and was a known reference sample bearing the name
‘Paulus Kamati’. The DNA result is coupled to certain
statistical values, in this instance, the chance that a randomly
selected individual, unrelated to the donor of K4-1 (second
appellant), would coincidentally share this profile is estimated to
be 1 in 92 billion based on the African American population database.





[26] Counsel for the
second appellant made general submissions that the police did not
comply with the standing operation procedures in the handling,
seizure and disposal of DNA exhibits. It is not for this court to
second guess what procedures or police manuals were or were not
complied with, these should have formed part of the evidence or
exhibits received in the court below for this court to properly
consider the alleged non-compliance. This is more the case because
the evidence tends to show that the DNA analysis and the testing
processes, including the chain of custody and control measures
applied, were executed and the results therefrom recorded with
sufficient care. These processes constitute the chain by which the
appellants are anchored to the commission of the crimes in question.
See S v Maqhina 2001 (1) SACR 241 (T) and S v Phiri 2008 (2) SACR 21
(T). I find counsel’s attack on the reliability of that chain
of evidence to be without substance.





One of the
criticisms advanced was that the control measures applied to the DNA
samples relating to the first appellant followed a different protocol
from the measures applied to the samples linking the second appellant
to the crimes. The samples related to the second appellant were
identified, amongst other means, by his name, while those relating to
the first appellant did not bear his name. Marlene Swartz, a Chief
Forensic Scientist at the National Forensic Science Institute (NFSI),
testified that the Institute did not use names but, instead,
preferred to use letters and numbers as a means of referencing.
Counsel for the first appellant took issue with that protocol. He
argued that the donor to the control sample K3-1 (the eventual
reference number of a saliva swab allegedly taken from the first
appellant at the NFSI) was unknown and that the court below was wrong
to find that K3-1 was collected from the first appellant by Ms Swartz
at the NFSI. In support of that proposition, counsel argued that Ms
Swartz did not know the identity of the donor of the saliva on the
swab. Chief Inspector Louw, he claims, must have informed her that
the donor of the saliva was the first appellant. Because Chief
Inspector Louw did not testify to that effect, counsel contended that
Ms Swartz’ evidence should be disregarded as inadmissible
hearsay on that point. Counsel further submitted that K3-1 might have
been a saliva swab from the first appellant but that the evidence
collapsed if regard is had to the evidence of Mr Jason Nicolas Moore,
the forensic DNA analyst who did the analysis of K3-1. Mr Moore
conceded that there was no name linked to the swab and that he did
not know the identity of the donor of K3-1. I have difficulties
appreciating this last submission. In my view, it follows logically
that, if the sample was not marked with the donor’s name when
taken but was identified using a different protocol, it follows that
individuals further along the evidential chain involved in its
analysis, such as Mr Moore in this instance, would not necessarily be
aware of the identity of the donor. For this reason, it was futile to
seek that information from him in cross-examination. In my opinion,
if the evidence established by any other means of referencing the
control sample K3-1 had been collected from the first appellant,
cadit quaestio: it matters not if his name was included as part of
the referencing protocol or not. With this in mind, I now turn to
examine the individual links in the chain of objective evidence on
which the Prosecution relies to tie the first appellant to the
commission of the crimes. In doing so, I shall almost exclusively
focus on the allegation that DNA on a shirt found at the scene of the
crime genetically matched that on a swab taken of the first
appellant’s saliva. To avoid confusion, I shall also refer to
exhibits by their forensic exhibit numbers and, where the need arises
to distinguish between those numbers and the numbers or letters of
exhibits received in evidence during the trial, refer to the latter
as ‘court exhibits’ marked with a particular letter or
number.





[27] Chief Inspector
Marius Louw, commander of the Windhoek Crime Investigation Unit,
arrived at the scene of the crime on the evening of 8 July 2007,
almost within the hour after it had been reported. On his way to the
scene he met up with two officers of the Serious Crime Unit, Sgt
Alfonso and the investigating officer, Sgt Hilundwa. They first
visited the scene where the white Toyota vehicle had overturned and
from there proceeded to the riverbed where the body of the late Mr
Fellinger had been dumped by those who had murdered him. Once there,
they waited for a forensic team of the NFSI led by Dr Ludik. After
their arrival, the forensic team picked up a number of items that
they believed could be relevant to the investigation, sealed these in
plastic bags and gave the exhibits to Chief Inspector Louw. Sergeant
Alfonso testified that besides those exhibits collected from the
scene of the crime which he had earlier received from Chief Inspector
Louw, he was also involved at a later stage in the handling of a
blood sample and saliva swab of the first appellant, a camera and a
rucksack. He explained that on 8 August 2007, he took the first
appellant to the late Dr Shangula who drew a vial of blood from him
(the first appellant) and sealed it in his presence. Sgt Alfonso
marked it as exhibit ‘A’. By then, he was also in
possession of a saliva swab (which he marked as exhibit ‘B’)
taken from the first appellant two days earlier by Ms Swartz at the
NFSI as well as a Kodak Easy File camera and a rucksack (exhibit
‘E’). He took all these exhibits later the same day to
the NFSI, where he handed them to Ms Swartz. I interpose to mention
that exhibit ‘G’ in court (a form recording the exhibits
submitted by him at the NSFI) shows that a dark green jacket and a
short pair of trousers (which Sgt Alfonso had marked as exhibits ‘C’
and ‘D’ respectively) were also submitted together with
the other four items to the NFSI although Sgt Alfonso did not mention
them in his evidence-in-chief. Under the heading ‘Reasons for
submitting exhibits for examination’ of exhibit ‘G’,
Sgt Alfonso recorded the following: ‘It is therefore requested
that examination is required to determine whether exhibits “A”
and “B” (blood and saliva) is of the suspect and “C”
“D” “E” belongs to the victims
(complainants).’





[28] Ms Swartz
confirmed that she had personally taken the saliva swab from the
first appellant in compliance with the police regulations a day or
two before Dr Shangula took the blood sample from the first
appellant. She sealed the swab in a bag numbered NFB05253 in the
presence of the first appellant and gave it to Sergeant Alfonso. He
kept the sealed saliva swab of the first appellant in safe custody
and, after he had marked it as exhibit ‘B’, returned it
on 8 August 2007 to the NFSI together with the blood sample taken by
Dr Shangula from the first appellant (exhibit ‘A’) and
the other items which I have mentioned earlier. All these items
together with other exhibits received on 2 August 2007 from Detective
Constable Sisamu were duly sealed in individual bags (including
exhibit 7 sealed in bag NFE03233) and kept in safe custody by the
NFSI. They were later collectively sent to BCIT Forensic Laboratories
in Canada by courier in another sealed bag numbered NFE-02357. In his
report, Dr Hildebrand of BCIT Forensic Laboratories recorded having
received the said bag with exhibits from Ms Swartz on 11 March 2008.
The BCIT Forensic Laboratories renumbered the exhibits for purposes
of their analyses. For example, the saliva swab in bag NFB05253
(exhibit ‘B’) was renumbered as ‘K3’ and a
piece of cloth in bag NFE03233 (exhibit 7) was divided into a number
of cloth swatches; the fifth of these was renumbered as ‘Q4’
and results yielded therefrom. The link in the chain of custody
demonstrates clearly that D201-K3: swab (NFB05253) was the saliva
swab collected from the first appellant. The first appellant is
linked to the crimes because Ø4-1, a swatch cloth that was cut
from a jacket found on the scene, yielded sufficient human DNA to
proceed with STR (Short Tandem Repeat) analysis. The results yielded
a mixed profile from at least two individuals (at least one of which
was male). The donor of sample K3-1 could not be excluded as the
major contributor to the mixture reported for sample Ø4-1.
Male 1 (the deceased) and male 2 (the second appellant) were excluded
as contributors to that mixture.





[29] Counsel for the
first appellant argued that both Mr Moore and Dr Hildebrand conceded
during cross-examination that they had no knowledge whether Ø4-1
was a cloth swatch and that Mr Moore could not answer the question of
whether Ø4-1 was collected from the scene of the crime, nor
answer the question regarding the colour of the cloth. In my opinion,
both Mr Moore and Dr Hildebrand were not the witnesses who were
expected to inform the court whether Ø4-1 was picked up from
the scene or was cut from a garment found on the scene, and it is
unfair to have expected them to remember the colour of a piece of
cloth. The questions were irrelevant in relation to what was
requested from them by the NFSI. The record shows that Ø4-1
was taken from the garment depicted on photograph 20 of volume 1 of
the exhibits received in court and it is clearly marked exhibit
‘7(5)’. The argument that they both had no knowledge as
to who handled the cloth has no substance. The evidence is that the
parcels from the NFSI were addressed to Dr Hildebrand who would then
collect them or arrange for them to be collected by one of her
colleagues on her behalf. The parcels were opened and Dr Hildebrand’s
colleagues, Messrs Moore and Hartsen, conducted the actual scientific
analysis of the samples. Dr Hildebrand compiled the reports from
their analysis but they reviewed each other’s work. The record
also shows that Ø4-1 was forwarded to Canada, where it was
received, analysed and the results therefrom were recorded. K3-1 and
Ø4-1 matched, and the first appellant’s guilt is
therefore inescapable.





[30] This brings me
to the other evidence the second appellant was convicted on or should
have been convicted on. Elina Nakale testified that she resided at
2547 Monte Christo Road, Havana location in the Katutura suburb. She
knew the second appellant; he is a friend to her boyfriend. On a date
that she thought could be between 10–20 July 2007, a Monday,
the second appellant arrived at her place at 10h00 in the morning. He
had covered his head with a jacket. The second appellant asked her to
pay the taxi driver who was waiting outside for him. She walked out
and paid the taxi driver N$6. She returned to the house and found the
second appellant seated on the bed. The appellant requested her to
boil water. He informed her that he was involved in an accident. She
enquired how the accident happened. The appellant informed her that
he had fallen from a bicycle he was riding and that he had been
almost overrun by a vehicle. She warmed water for him and he started
cleaning the wound. The wound was on the head. The wound and the head
as a whole and the cheek were full of grass and fluffs. The wound was
bleeding and it appeared as if the eye closest to the wound was
weeping. When she saw him again in the afternoon, he still covered
his head with a jacket. He gave her N$100 from which she deducted the
N$6 she had paid for him earlier on. Ms Nakale’s testimony is
consistent with the evidence of Mr Pfeifer. It will be recalled that
Mr Pfeifer was returning to Windhoek from his farm in the Khomas
Hochland. He noticed a Toyota double cab vehicle (the subject matter
of the robbery count in para [2]) on the road. He became suspicious
of that vehicle and gave chase to stop the vehicle but he could not
do so. The vehicle went faster and faster, and at one point the
driver attempted to force Mr Pfeifer off the road when he came level
with the vehicle. He realised it could be dangerous to stop the
vehicle. He drove behind the vehicle until he reached the location
where the vehicle had overturned. When he stopped at the scene, he
saw the driver of that vehicle assisting the passenger from the
vehicle, and also saw that the passenger was injured and bleeding
from the head or shoulder.





[31] Ms Fransina
Beredy, a nurse at Ruacana Clinic, testified that on 8 August 2007,
she treated a patient who gave his name as Paulus Iita. Ms Beredy was
unable to identify the second appellant in court. However, when the
second appellant was arrested, Sergeant Hilundwa and Chief Inspector
Unandapo testified that they found a health passport in his
possession in the name of Paulus Iita. Ms Beredy identified the
handwriting and the signature on the document as hers. Why would the
second appellant have sought treatment, firstly, in Ruacana when it
appears that he was injured in the Windhoek district, and secondly,
under a false name? The conclusion is inescapable that he was
covering his tracks following the incident.





[32] The second
appellant also confided in his former girlfriend, Ms Josephine
Tuliikeni Nashiluwa, that he and his friend had gone to a certain
place where they had met two white persons and taken a vehicle from
them. The vehicle overturned and he sustained the injuries on his
face.





[33] The second
appellant further confessed to Chief Inspector Derek Brune on 17
September 2007 to his involvement in the crimes in question and made
a pointing out to Chief Inspector van Zyl on 19 September 2007. The
admissibility of the confession and the pointing out was contested in
the court below by the second appellant on two grounds, namely:





1. that the
recording did not comply with the requirements of s 217 of the
Criminal Procedure Act on the basis that it was not freely and
voluntarily made but obtained through unconstitutional means, namely
the physical assault of the second appellant; and/or





2. that the second
appellant’s right to legal representation was violated.





At the end of the
trial-within-a-trial in which the second appellant did not testify,
the court below ruled that the confession and the pointing out were
admissible, especially because they were consistent with the evidence
of Ms Fellinger.





[34] The two grounds
upon which the admissibility of the evidence relating to the alleged
confession and pointing out was challenged were repeated with greater
fervour in this court. It was argued that the court below misdirected
itself when it failed to disallow the evidence of the confession and
the pointing out, which the second appellant did not repeat under
oath. This argument cannot be supported. A disputed confession is not
only admissible when repeated under oath by an accused. Where the
voluntariness of a confession is disputed, as was the case in this
matter, a trial-within-a-trial ensues to determine the admissibility
of the confession. When found to meet the requirements of s 217(1) of
the Criminal Procedure Act, it is admitted, if not, it is excluded.





[35] Section
217(1)(a) reads as follows:





‘217.
Admissibility of confession by accused-





(1) Evidence of any
confession made by any person in relation to the commission of any
offence shall, if such confession is proved to have been freely and
voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto, be admissible in
evidence against such at criminal proceedings relating to such
offence: Provided-





(a) that a
confession made to a peace officer, other than a magistrate or
justice, or, in the case of a peace officer referred to in section
334, a confession made to such peace officer which relates to an
offence with reference to which such peace officer is authorized to
exercise any power conferred upon him under that section, shall not
be admissible in evidence unless confirmed and reduced to writing in
the presence of a magistrate or justice.’





[36] Section 209 of
the Criminal Procedure Act requires a confession to be confirmed by
evidence outside of the confession that corroborates it in some
material respect (R v Blyth 1940 AD 355 at 364) or furnishing
evidence aliunde of the commission of the offence. Section 209
provides:





‘209.
Conviction may follow on confession by accused-





An accused may be
convicted of any offence on the single evidence of a confession by
such accused that he committed the offence in question, if such
confession is confirmed in a material respect or, where the
confession is not confirmed, if the offence is proved by evidence,
other than such confession, to have been actually committed.’





[37] In S v Mcasa
and Another, supra, the South African Supreme Court of Appeal at
394c-d stated:





‘…
after ensuring that the person who wishes to make a statement is in
his or her sound and sober senses and wishes to make the statement
freely and voluntarily without having been unduly influenced thereto,
the taking of the statement can be proceeded with. The caveat to
consider at all times is of course that the person wishing to make a
statement has to be apprised before of his or her rights, and most
importantly the right to remain silent.’





[38] The
circumstances that led to the taking of the confession and the
pointing out are set out briefly as follows:





38.1 The second
appellant was arrested on 14 September 2007. In the warning statement
received as exhibit ‘DD’, he was warned of his right to
legal representation but indicated that ‘I will think as to
what to do’ and chose to remain silent. He also chose to answer
some questions although he refused to answer questions relating to
who was with him on 8 July 2007, the place where he fell from the
bicycle, and the owner of the said bicycle.





38.2 He appeared in
court on 17 September 2007 escorted by Sergeant Hilundwa, Chief
Inspector Unandapo, and other police officers. He indicated to the
court that he wished to be represented and assisted to apply for
legal aid. After court, he was escorted to Windhoek Police Station
and while Sergeant Hilundwa and others were waiting for Chief
Inspector Unandapo, the second appellant approached Sergeant Hilundwa
and started informing him of his knowledge of the crimes.





38.3 When it
appeared to Sergeant Hilundwa that he was confessing to the crimes
against him, he referred the second appellant to Chief Inspector
Unandapo.





38.4 Chief Inspector
Unandapo took the second appellant to his office where he listened to
his version, upon which he concluded that he was confessing to the
crimes in question and he enquired from him whether he was prepared
to confess and point out the scene of crime, to which he answered in
the positive.





38.5 As a result of
that conversation, Chief Inspector Unandapo contacted Chief
Inspectors Derek Brune and van Zyl and requested Chief Inspector
Brune to take a confession from the second appellant and Chief
Inspector van Zyl to conduct a pointing out. They both obliged.





38.6 Chief Inspector
Brune took down the confession at 14h10 the same day that the second
appellant first appeared in court. The pointing out was done two days
thereafter, on 19 September 2007.





38.7 The second
appellant, as earlier stated, did not testify in the
trial-within-a-trial but testified in the main trial. He denied
approaching Sergeant Hilundwa.





38.8 His version is
that after he had attended court on 17 September 2007, he was taken
to Chief Inspector Unandapo’s office where the Chief Inspector
excused the other police officers so that only he remained with the
second appellant. He started questioning the second appellant about
the incident, involvement in which the second appellant denied. At
one point the Chief Inspector left the office and Sergeant Hilundwa
came in. The Sergeant urged the second appellant to confess otherwise
the Chief Inspector was going to kill him. When the Chief Inspector
returned, he brought chains with him. He undressed and chained the
second appellant and started beating him. He beat him with his knees,
feet, fists and even with an iron bar. During the beating, the second
appellant fell all over the office. In his own words he said: ‘…
he just came then undress me and beating me like he was beating a
lion.’ He was bleeding from the mouth and nose. The Chief
Inspector left the office again, and when he returned he brought a
wet cloth that he used to wipe off the second appellant. It is not
clear what was wiped off. There was blood all over the Chief
Inspector’s office. In summary, the beating was so severe that
even at the time of the hearing of this case, the second appellant
still had pain in the ribs. After this beating, Sergeant Hilundwa
took him to the toilet. On their way back they met Chief Inspector
Unandapo in the corridor with another set of chains, as the chains he
was tied with during the assault had been removed. The Chief
Inspector told Sergeant Hilundwa to leave. He informed the second
appellant that he would have to accept his orders otherwise the
assault would continue. The second appellant still denied knowledge
of the crimes. The Chief Inspector then said to him that he was going
to tell him something, that the second appellant should remember what
he was going to tell him, and that afterwards the second appellant
would be taken to other people where he should repeat to them exactly
what the Chief Inspector had told him. At that point, they left Chief
Inspector Unandapo’s office.





38.9 Chief Inspector
Unandapo took the second appellant to another office, which appears
to be that of Chief Inspector Derek Brune. It was at this point that
he realised that he must comply with Chief Inspector Unandpo’s
orders as the beating was hurtful.





38.10 The second
appellant regurgitated to Chief Inspector Brune every detail Chief
Inspector Unandapo had told him. The second appellant admits that he
was informed about his rights to legal representation but says that
he informed Chief Inspector Brune that he had already applied for
legal aid, and that he needed a lawyer before he made the confession.





38.11 After the
confession, the second appellant was taken to the airport (Hosea
Kutako International) Police Station where he was kept for the night.
The next day (18 September 2007), Chief Inspector Unandapo collected
the second appellant from the Police Station and took him to the
scene of the crime where he pointed out certain points to him which
he was told he should point out to the people who would take him to
the scene the next day. He was taken back to the airport police
station. The next morning (19 September 2007), Sergeant Hilundwa went
to fetch the second appellant and he was taken to Chief Inspector
Unandapo. Chief Inspector Unandapo informed him that he was going to
take him to some people and he must take them to the scene of the
crime but he must never tell them that he was taken there the
previous day. To cut a long story short, the second appellant was
taken to Chief Inspector van Zyl and they eventually proceeded to the
scene of crime. The vehicle in front stopped at every location that
needed to be pointed out, at which the appellant would be asked
whether he could remember that particular place. The second appellant
also admitted that Chief Inspector van Zyl explained to him his
rights to remain silent and to legal representation. The second
appellant said that he informed the Chief Inspector that he needed a
legal representative.





[39] I deal with the
assault allegations first, as I do not intend to canvass the point in
any great detail. The court below rejected the assault allegations
and in my opinion it did so correctly. During the
trial-within-a-trial, the only part of the second appellant’s
version that was put to the witnesses called by the State was that
the second appellant was not kept at the Windhoek Central Prison, as
had been ordered by the district court, but was taken to the Hosea
Kutako Police Station and Dordabis with the sole purpose of
assaulting and unduly influencing him to confess and make the
pointing out. Counsel attempted to prove that point by handing up a
document or a detention warrant dated 22 September 2007 to refute the
accounts of Sergeant Hilundwa and Chief Inspector Unandapo, who
denied that they had any knowledge that the second appellant was kept
at the airport police station or at Dordabis. The court below held
that in the light of the fact that the second appellant was taken to
Dordabis Police Station on 22 September 2007, the assault - if ever
it occurred - could not have influenced the confession and the
pointing out which were executed prior to the date of 22 September
2007. The court below could at that stage also reject the allegations
because the second appellant had not testified during the
trial-within-a-trial, and had failed to put to the State witnesses
the details of the alleged assault through his counsel, except for
the terse or general statement that he was assaulted or unduly
influenced to confess and make the pointing out.





[40] When the second
appellant testified in the main trial, his version that he was
assaulted in Windhoek in the office of Chief Inspector Unandapo
differed from what was put to the State witnesses earlier. The
assault version, in actual fact the whole version, is fraught with
extreme improbabilities. It is extremely improbable that the second
appellant would have been assaulted in the manner he testified, that
he was bleeding from the mouth and nose, and that Chief Inspector
Unandapo’s office was covered in blood. Had that been the case,
his clothes would have been soaked in blood or have had some blood on
them, and Chief Inspector Brune would have noticed that he had been
freshly assaulted. It is also extremely improbable that following
court he was interrogated, assaulted, forced to clean the blood from
Chief Inspector Unandapo’s office, as he testified, and had a
seven page confession dictated to him before it was taken down at
14h10. The Windhoek District Court’s record of 17 September
2007 shows that the second appellant was in Court between 09h17 and
09h19. He was taken to apply for legal aid and then taken to the
Windhoek Police Station. If he was helped immediately by the clerk of
court, he should have been at the police station between 10h00 and
11h00, otherwise later. I am therefore satisfied beyond reasonable
doubt that the second appellant was not assaulted as he alleged.





[41] I now turn to
the second challenge concerning the alleged unconstitutionality of
the confession and pointing out. It was argued that the confession
and the pointing out were unconstitutional in terms of Article 12 of
the Namibian Constitution for the reason that they were obtained from
the second appellant after he had already indicated when he appeared
in court that he required legal representation. Counsel made
reference to various authorities on the right to legal representation
and unlawfully obtained evidence, such as S v Shikunga and Another
1997 NR 156 (SC); S v Kau and Others 1995 NR 1 (SC); Mwilima and
Others v Government of the Republic of Namibia and Othes 2001 NR 307
(HC); S v Marx and Another 1996 (2) SACR 140 (W); S v Melani and
Others 1996 (1) SACR 335 (E); Miranda v Arizona 348 US 436-474
(1996); S v Minnies and Another 1991 (3) SA 364 (NmHC) and others.





[42] The question
concerns circumstances where an accused has been fully appraised of
his right to legal representation at the time of his arrest and at
his subsequent appearance in court, and has indicated that he
requires legal representation. In those circumstances, would the
subsequent obtaining of a confession and/or a pointing out from him,
at his own request to reveal the truth, impeach the admissibility of
the confession or pointing out in the accused’s subsequent
criminal trial?





[43] The answer to
this question depends to a large extent on whether the accused has
been informed of his or her constitutional entitlements in connection
to the specific procedure (confession or pointing out) and it is
clear that he knowingly chose to proceed to make the confession or
the pointing out without his lawyer.





[44] Article 12 of
the Constitution of the Republic of Namibia is clearly decisive in
that regard. Article 12(1) makes provision for various constitutional
entitlements, which, inter alia, are:





‘(1)(a) …
, all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court or Tribunal established by
law: ….;





(b) …





(c) …





(d) All persons
charged with an offence shall be presumed innocent until proven
guilty according to law, …;





(e) All persons
shall be afforded adequate time and facilities for the preparation
and presentation of their defence, before the commencement of and
during their trial, and shall be entitled to be defended by a legal
practitioner of their choice.





(f) No persons shall
be compelled to give testimony against themselves or their spouses…”





[45] The only
exceptional cases relating to the right to be informed regarding
legal representation concern lawyers, the educated and those
knowledgeable of the said right. See S v Kau and Others, supra, at 7;
S v Bruwer 1993 NR 219 (HC) at 223C-D; 1993 (2) SACR 306 (Nm) at
309b.





[46] The purpose of
the right to legal representation is characterised as follows in the
South African case of S v Melani and Others, supra, at 348i-249d,
referred to at length in S v Marx and Another 1996 (2) SACR 140 (W)
at 145f-146a and 148a-h:





‘The purpose
of the right to counsel and its corollary to be informed of that
right embodied in s 25(1)(c) is thus to protect the right to remain
silent, the right not to incriminate oneself and the right to be
presumed innocent until proven guilty. Sections 25(2) and 25(3) of
the Constitution make it abundantly clear that this protection exists
from the inception of the criminal process, that is on arrest, until
its culmination up to and during the trial itself. This protection
has nothing to do with a need to ensure the reliability of evidence
adduced at the trial. It has everything to do with the need to ensure
that an accused is treated fairly in the entire criminal process….
Recognition of this purpose or meaning of s 25(1)(c) of the
Constitution and its counterparts in ss 25(2) and 25(3), has
important consequences as far as the admissibility of evidence
obtained in breach of these provisions is concerned. The original
value served by the exclusion of involuntary admissions or
confessions as evidence in a criminal trial was the removal of the
potential unreliability of that evidence. Evidence obtained in breach
of the fundamental rights embodied in the specific provisions of ss
25(1), 25(2) and 25(3), already referred to, may well have been
obtained voluntarily and be perfectly reliable but the rationale for
its exclusion will lie in preserving the fairness of the criminal
justice system as a whole and not only with the fairness of the
actual trial itself.’





[47] The judgment
continues as follows at 350d-g:





‘Section
25(1)(c) of the Constitution contains no absolute prohibition on
questioning an accused or obtaining a statement from an accused or
having things pointed out by an accused, without the accused being
legally represented. But this can only be done if it is clear that
the accused waived his right to consult with his lawyer. A right can
only validly be waived if the person who abandons the right knows and
understands what he or she is abandoning. In the case of accused 1
and 2 they were apparently informed upon their arrest of their right
to legal representation. What this meant and in what sense it was
understood by the accused has not been established. When accused No 2
eventually allegedly made his pointing out it was some five days
after his arrest and he had in the meantime indicated that he
required legal representation. Under those circumstances, I think, he
ought to have been informed again of his right to legal
representation and that this right included the right to consult his
lawyer.’





[48] In S v Kau and
Others, supra, at 9b, this court per Dumbutshena AJA stated:





‘More often
than not indigent accused are rushed to courts because the police
have obtained confessions before going to Court. It may be there that
the unfair trial started.’





[49] In S v Melani
and Others, supra, at 347g-i, it is stated as follows:





‘The failure
to recognise the importance of informing an accused of his right to
consult with a legal adviser during the pre-trial stage has the
effect of depriving persons, especially the uneducated, the
unsophisticated and the poor, of the protection of their right to
remain silent and not to incriminate themselves. This offends not
only the concept of substantive fairness which now informs the right
to a fair trial in this country, but also the right to equality
before the law. Lack of education, ignorance and poverty will
probably result in the underprivileged sections of the community
having to bear the brunt of not recognising the right to be informed
of the right to consultation with a lawyer.’





[50] In S v Nombewu
1996 (2) SACR 396 (E), Erasmus J echoed the sentiments in S v Melani
and Others, supra, when at 421d-h, he stated:





‘I may mention
that this view accords with that expressed in Edward W Cleary (gen
ed) McCormick on Evidence 3rd ed at 391-2 s 152, namely that the
failure on the part of the police to give a person a required warning
cannot be 'cured' by the evidence that the suspect was already aware
of the substance of the omitted warnings. Our Courts take the
opposite view when it comes to irregularities in the proceedings. In
a case concerning the failure of a magistrate to advise the accused
of his right to legal representation at proceedings in terms of s 119
of the Criminal Procedure Act (S v Mabaso (supra)), Hoexter JA stated
as follows (at 204D-F):





'Whether or not an
irregularity has been committed will always hinge upon the peculiar
facts of the case; and it need hardly be said that much depends upon
the extent of the accused's own knowledge of his rights. S v Luwane
1966 (2) SA 433 (A) dealt with the duty of a judicial officer to
explain to a witness his privilege in relation to self-incrimination.
Bearing in mind that distinction, the following observations of
Ogilvie Thompson JA (at 440G-H) are nevertheless pertinent also to
the duty of a judicial officer to inform an unrepresented accused of
his right to representation. Having stressed that the practice of
warning a witness against self-incrimination was a well-established
one, the learned Judge of Appeal expressed the view that the duty so
resting upon a judicial officer was not





". . . an
absolute duty in the sense that its non-observance will always and
inevitably render the witnesses' incriminating statement inadmissible
against him in subsequent proceedings. For example, a trained lawyer
giving evidence could hardly legitimately complain that he had
received no caution, even though a conscientious judicial officer
might nevertheless elect to administer a caution even to such a
witness."'





[51] Section
25(1)(c) of the Interim Constitution of the Republic of South Africa
and section 35(1)(c) of the Final Constitution of South Africa are
the equivalent of Article 12(f) of the Namibian Constitution and the
position of the law as articulated in the S v Melanie and S v Nombewu
cases above applies, in my opinion, with equal force in Namibia. The
fact that the second appellant had indicated at the time of his
arrest and at his first appearance in court that he wanted to remain
silent and/or he desired a legal representative (and was actually
assisted to apply for one through legal aid) did not preclude the
police from obtaining a confession or a pointing out from the second
appellant in circumstances where he voluntarily indicated his
willingness to tell the truth.





[52] In Miranda v
Arizona, supra, the Supreme Court of the United States had this to
say:





‘In dealing
with statements obtained through interrogation, we do not purport to
find all confessions inadmissible. Confessions remain a proper
element in law enforcement. Any statement given freely and voluntary
without any compelling influences is, of course, admissible in
evidence. The fundamental import of the privilege while an individual
is in custody is not whether he is allowed to talk to the police
without the benefit of warnings and counsel, but whether he can be
interrogated. There is no requirement that police stop a person who
enters a police station and states that he wishes to confess to a
crime, or a person who calls the police to offer a confession or any
other statement he desires to make. Volunteered statements of any
kind are not barred by the Fifth Amendment and their admissibility is
not affected by our holding today.’





[53] The authorities
above correctly articulate the position of our law on confessions and
pointings out. In the circumstances of this case, where the appellant
voluntarily indicated his readiness to offer a confession and
pointing out, the police’s obligation was to warn him again of
his right to legal representation, which they did, and ensure that if
he vacated his right to legal representation, he knew and understood
what he was doing. The latter is a question of fact and has to be
established.





[54] It is common
cause that before the confession was taken down and the pointing out
made, the second appellant was informed of his right to legal
representation. The challenge lies in the fact that, as regards the
confession, in answer to the question contained in the standard form
as to whether the second appellant ‘wanted to obtain legal
representation’, his reply was ‘yes’ which was
crossed out and a ‘No, I don’t want a lawyer’
answer was recorded. In relation to the pointing out, in answer to
the same question also contained in the standard form but phrased
slightly differently as ‘Do you want a legal representative?’,
the reply recorded is ‘I already applied.’





[55] Counsel for the
second appellant argued that once the second appellant had indicated
that he had already applied for legal aid, it meant he desired legal
representation in the two procedures and interrogation should have
been stopped there and then. We were referred to a number of
authorities and I might perhaps usefully refer to two. One is Miranda
v Arizona, supra, where the Supreme Court of the United States held
that once an accused indicates that he wishes to consult a lawyer, no
questioning may take place, until an attorney is present. The other
is S v Minnies and Another, supra, where it was held, inter alia,
that Article 12(1)(f) of the Namibian Constitution is peremptory in
its terms. That Article provides that a court shall not admit in
evidence testimony that has been obtained in violation of Article
8(2)(b) of the Constitution. Testimony includes a pointing out done
through an admission or a statement and therefore a pointing out
obtained in violation of Article 8(2)(b) of the Constitution cannot
be used in evidence against the accused.





[56] Article 8(2)(b)
prohibits torture, cruel, inhuman or degrading treatment or
punishment. The second appellant was not subjected to any of the
prohibitions contained in Article 8(2)(b) of the Constitution. In my
opinion, the circumstances in both Minnies and Another and Miranda v
Arizona are a far cry from the circumstances in this case.





[57] In Miranda v
Arizona, the accused, an indigent Mexican, was arrested at his home
and taken into police custody. While in police custody he was
questioned by two police officers. Two hours later, the officers
secured a confession from him that he had signed. At the top of the
statement was a typed paragraph stating that the confession was made
voluntarily, without threats or promises of immunity, and ‘with
full knowledge of my legal rights, understanding any statement I make
may be used against me.’ The officers admitted at trial that
Miranda was not advised that he had a right to have an attorney
present. Notwithstanding the admission by the officers, the written
confession was admitted into evidence over the objection of defence
counsel. Miranda was found guilty of kidnapping and rape and
sentenced to imprisonment. On appeal to the Supreme Court of Arizona,
that court affirmed his conviction and held that his constitutional
rights were not violated. The court emphasised heavily the fact that
Miranda did not specifically request counsel. The US Supreme Court
reversed, holding that:





‘. . . the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. As for the
procedural safeguards to be employed, unless other fully effective
means are devised to inform accused persons of their right of silence
and to assure a continuous opportunity to exercise it, the following
measures are required. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however,
he indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may
not question him. The mere fact that he may have answered some
questions or volunteered some statements on his own does not deprive
him of the right to refrain from answering any further inquiries
until he has consulted with an attorney and thereafter consents to be
questioned.’





[58] The holding
above is consistent with the position in our law, both at common law
(in relation to the right to remain silent) and in the adage of our
constitutionalism. That court was justified to hold as it did in
those circumstances. However, in the circumstances of the case before
us the Miranda principle relied on by counsel for the second
appellant does not find application. The second appellant was
informed of his constitutional entitlements and it is apparent that
he chose to abandon them knowingly, voluntarily and intelligently.





[59] Interrogation
as understood in our domain is best described in Minnies and Another,
supra, at 366I-367A-D as follows:





‘But what they
could not explain satisfactorily, in my view, was:



(1) why, if they
could interrogate Brand at the police station, they could not
interrogate Minnies there; and





(2) why it was
necessary to take Minnies (and Mbali, for that matter) to a lonely
unlit shed to conduct an interrogation.





I cannot accept that
a policeman of the seniority of Chief Inspector Smit is unable to
issue the necessary orders and make the necessary arrangements to
ensure that he can conduct an interrogation without interruption. It
is not understandable why the police team should find it necessary to
remove the accused to a lonely unlit shed late at night, away from
the convenience of the police station, unless it were for the purpose
of having a free hand in extracting a confession by heavy-handed
methods. But even if there were no direct physical violence, the
actions of the police were intimidatory to an extraordinary degree,
on the policemen's own evidence. At night six policemen take a
handcuffed suspect to an empty shed, put him on a chair under a
spotlight, and subject him to four hours' questioning. The suspect
has had no food all day, they admit. He does not know where he is. He
does not know why he has been removed from the police station. The
whole process is one calculated to terrorise and degrade the
accused.’





[60] In my opinion,
taking down a confession or conducting a pointing out cannot be
equated to interrogation as understood in our legal parlance. In S v
Mcasa and Another, above, at 394C the South African Supreme Court of
Appeal stated:





‘. . . an
officer, before whom a confession is made, be it a commissioned
officer or magistrate, is not expected to embark upon the
interrogation of a person wishing to make a statement. Nor is it
desirable or permissible to encourage the deponent to speak although
aspects which are unclear should of course be clarified.’





Chief Inspectors
Brune and van Zyl, were, therefore, not interrogating the second
appellant.





[61] The only
question that needs to be determined is whether, given the second
appellant’s responses above on the question of legal
representation, he understood what he was doing when he abandoned his
right to legal representation and confessed to the crimes and made a
pointing out of the scene. In my opinion he did.





[62] Both Chief
Inspectors Brune and van Zyl testified that the second appellant
understood his constitutional entitlements before he made the
statement and the pointing out. Chief Inspector Brune explained
eloquently how the ‘yes’ and ‘no’ responses
came about. He testified that the second appellant initially answered
‘yes’ to the question. He made sure with the interpreter
that this was what the appellant wanted to say. It was at that point
that the ‘no I don’t want a lawyer’ answer was
recorded. The interpreter Constable Hauwanga testified that the
appellant’s answer was ‘no’. In cross-examination,
she was asked why her version varied from that of Chief Inspector
Brune on that point. Her answer was that she did not know where Chief
Inspector Brune got the ‘yes’ answer. Viewed in that
light, the ‘yes’ and ‘no’ responses are more
of a misunderstanding between the Chief Inspector and the
interpreter. Chief Inspector Brune testified candidly, so much that
counsel for the second appellant during cross-examination thought he
was very smart in theory (whatever that means) and honest. I would
have no reason to doubt his explanation on that point. It must be
remembered that the second appellant was not only informed of his
right to legal representation, but immediately after that question he
was informed that Chief Inspector Brune was not part of the
investigation team, that he was not obliged to make any statement
whatsoever, that if he did the statement would be reduced to writing
and may later be used as evidence against him, and that he could not
expect any advantages to arise from making any statement (or
conducting the pointing out). The second appellant was not assaulted
or threatened with assault. He was also not influenced in any way to
make the statement or the pointing out.





[63] The second
appellant is not a person who could be described as uninformed. When
he was arrested, he chose to remain silent and refused to answer
questions that he thought were self-incriminating. He specifically
informed Sergeant Hilundwa that he was going to speak in Court. There
is no other reason why he did not seize the right to remain silent,
as he had done so three days earlier before he decided that he wanted
to make the statement and the pointing out. The second appellant
claimed that he was severely assaulted immediately before the
statement was taken, and that he was told where to go and what to say
and to conduct the pointing out. I find these claims to be false
beyond reasonable doubt.





[64] All these
factors considered together, the second appellant knew what he was
doing when he abandoned his right to legal representation, and the
court below correctly admitted the evidence.





[65] Accordingly the
appeals against the convictions must fail.





[66] I now turn to
consider the appeals against the sentences. The first appellant’s
attack against the sentences is premised on the ground that the
sentences are shockingly inappropriate; that the court failed to
appreciate that counts 1 – 3 were based on the same series of
facts and they should have been taken together for purposes of
sentence; that the court erred when it failed to order the whole or
at least a substantial part of the sentence on counts 2 – 5 to
run concurrently with the sentence on murder, and that the court
below overemphasised the seriousness of the offences at the expense
of the other factors. In particular, it was argued that the Court
gave insufficient regard to the pre-trial incarceration of the
appellant and that it failed to consider other mitigating
circumstances. The second appellant listed four grounds which amount
to one, that is, the court below failed to adhere to the fundamental
principles of sentencing.





[67] Counsel for the
first appellant argued that the court below had no appreciation of
the difference between suspending part of a sentence and ordering
sentences to run concurrently. This criticism is not related to what
the court below said or did at the time the sentences appealed
against were imposed, but to the utterance that court made during the
hearing of the application for leave to appeal. Counsel submitted
that because the offences were committed in the same circumstances
and at the same time, the court below should have ordered a
substantial part of the sentence on count 2 to run concurrently with
count 3 and that the court below should have taken the convictions
together for purposes of sentencing. Counsel further made a
submission which is difficult to understand, and it is that in the
event this court dismissed the first appellant’s appeal against
his conviction, the court below demonstrably committed a misdirection
and imposed a sentence on the first appellant which is wholly
inappropriate and therefore entitles this court to interfere with the
sentence. On behalf of the second appellant, it was submitted without
justification that the court below misdirected itself when it moved
away from the precedent set out in S v Rabie 1975 (4) SA 855 (A):





‘Punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to the circumstances.’





[68] I do not agree
with counsel’s submissions on this point. A closer reading of
the judgment on sentence of the court below bears that the court was
alive to the fundamental principles of sentencing. Its judgment is
consistent with the other decisions of the High Court in similar
crimes. That is so when regard is had to the following extracts of
the judgment:





‘In assessing
the appropriate sentences to pass on the accused persons, I will be
guided by the decisions that have been made in this Court which
emphasise the need for the courts to deter crimes of violence.


Thus the community
expects the court will punish perpetrators of serious crimes
severely, but at the same time the community also expects that
mitigating factors, including the accused’s personal
circumstances will be given due consideration . That to my mind is
fairness in sentencing.


The normal tariff of
sentences for murder is high for the reasons set out in various
judgments of this Court. Particularly for brutal murder, as occurred
in this present case and the aim of sentencing is primarily to deter
all forms of the unlawful taking of human life.





It has been
submitted that both accused are fathers of some children who are
still depended on them for the livelihood. However, my view is that
shooting an unarmed visitor who has just arrived in a foreign country
is so horrendous. I find that the accused persons’ personal
circumstances are the usual ones, and are not out of the ordinary,
and as such no great weight need to be attached to them, except that
the accused since their arrest in 2007, have been kept in custody to
date.’





[69] Sentencing is
entirely a matter for the discretion for the trial court. A court of
appeal will not interfere with the sentence imposed on insignificant
grounds or merely because it would have imposed a different sentence
had it been the court of first instance. It will only do so if it is
satisfied that the trial Judge has failed to exercise his or her
sentencing discretion judicially or properly (cf S v Alexander 2006
(1) NR 1 (SC) at 4D-5A-E and all other cases collected therein).





[70] Appeal courts
have over the years laid down guidelines that justify such
interferences. In S v Tjiho 1991 NR 361(HC), Levy J set out the
following circumstances at 366 A - C:





‘(i) the trial
court misdirected itself on the facts or on the law;





(ii) An irregularity
which was material occurred during the sentence proceedings;





(iii) The trial
court failed to take into account material facts or over-emphasised
the importance of other facts;





(iv) The sentence
imposed is startlingly inappropriate, induces sense of shock and
there is a striking disparity between the sentence imposed by the
trial court and that which would have been imposed by the court of
appeal.’





[71] Thirty years
imprisonment for brutal, senseless murders like the murder in this
case has become the exemplary sentence in the High Court, and the
court below was consistent with the other precedents in its
sentencing approach in this case. Twelve years for robbery with
aggravating circumstances, six years for kidnapping, one year for
each count for possession of firearms and possession of ammunition
cannot be said to have been harsh under the circumstances.





[72] The murder of
the deceased can be described as ‘extreme’ or
‘monstrous’, and in these cases society expects the
strongest possible judicial condemnation, S v Tcoeib 1999 NR 24 (SC)
at 31, 1996 (1) SACR 390 at 379g; S v Alexander supra at 11A-C. The
deceased and his wife were foreigners who had just arrived in
Namibia, and the deceased was killed for the most ridiculous reason:
he did not understand the first appellant. What a flagrant disregard
for life, something so precious. The first appellant passed matric,
and he was a police officer until he was convicted of fraud, forgery
and uttering for which he received two years imprisonment. He must
have known that the deceased spoke a foreign language and he could
not have killed him for not understanding him. The victims were
unarmed. The dead body was dragged to the riverbed like an animal and
rocks placed on top of it. As the court below correctly observed, the
case demonstrated a ‘horrendous’ disregard for human life
and dignity. The kidnapping was not of an ordinary nature. Ms
Fellinger was subjected to cruelty. She was assaulted and blindfolded
so that she could not see where they dumped the body of her late
husband. She was made to lie on top of the dead body and she could
have been killed when the vehicle overturned. When the vehicle
overturned, the appellants disappeared from the scene and she was
left helpless with multiple injuries. The doctor who examined her at
the Roman Catholic Hospital testified that she was lucky to be alive.





[73] In S v
Alexander, supra, at 156g, this court stated:





‘The accused
was not simply convicted of robbery, but of robbery with aggravating
circumstances and, in whichever league one may place a particular
robbery, the seriousness with which it is regarded is always
significantly increased when a dangerous weapon is used in the course
thereof and even more so if the victim is injured or killed in the
course thereof.’





[74] In the S v
Alexander case, the accused snatched sunglasses from the deceased.
When the deceased demanded his sunglasses back, the accused stabbed
him to death. The trial court had sentenced the accused for robbery
with aggravating circumstances to 15 years imprisonment; a Full Bench
of the High Court reduced the sentence to 1 year imprisonment. This
court found the 1 year sentence to be disturbingly inappropriate and
substituted therefore a sentence of 8 years, 5 years of which was
ordered to run concurrently with the sentence for murder.





[75] The
circumstances in this case are far more severe than those in the S v
Alexander case. The appellants had already robbed the victims of
N$2700, €1000 cash, and a Canon digital camera, but driven by
greed they still wanted more money from the account of Ms Fellinger
after she had provided her PIN. The vehicle overturned on the way,
risking Ms Fellinger’s life. She was so traumatised by the
incident that even at the time she testified, she suffered a
temporary nervous breakdown and had to be admitted to hospital for a
night.





[76] The murder,
robbery with aggravating circumstances, and the kidnapping indeed
occurred within the same matrix of facts, and the violence
perpetrated on the deceased and Ms Fellinger constitutes an element
of all these crimes. Care has to be taken to avoid a duplication of
punishment. But that is not the argument of the first appellant. His
argument is that the court below should have suspended some of the
sentences, ordered all or some of the sentences or substantial
portions thereof to run concurrently, or should have taken all
offences together for the purposes of sentence.





[77] The court below
ordered that two years of the robbery sentence and two years of the
kidnapping sentence should run concurrently with the sentence on
murder. The alleged misdirection in the eyes of the first appellant
is that the concurrent sentences were not substantial. That argument
cannot be supported. Consider, for example, the robbery. This offence
bred the murder and kidnapping offences. The sentence imposed for the
robbery offence must reflect the seriousness with which the robbery
would have been regarded if the accused had not been and would not be
charged with murder. See S v Alexander, supra, at 14C and 15A, and
the minority judgment in Maraisana and Another 1992 (2) SACR 507A at
512g-h preferred in the S v Alexander matter. The suggestions made by
counsel for the first appellant that the court should have taken all
offences together for purposes of sentence is untenable and plays
down the seriousness of the crimes. The taking of more than one count
together for the purpose of sentence is undesirable, especially if
offences are unrelated: S v Mwebo 1990 NR 27 (HC). The High Court in
S v Mwebo referred with approval to the South African case of S v
Immelman 1978 (3) SA 726 (A), where the following was said at
728E-729A:





‘The practice
of taking more than one count together for the purpose of sentence
(ie the imposition of what I shall, for convenience, term a "globular
sentence") was recently commented upon by this Court in the case
of S v Young 1977 (1) SA 602 (A) where TROLLIP JA stated at (610E -
H):





"That procedure
is neither sanctioned nor prohibited by the Criminal Procedure Act 56
of 1955. Where multiple counts are closely connected or similar in
point of time, nature, seriousness, or otherwise, it is sometimes a
useful, practical way of ensuring that the punishment imposed is not
unnecessarily duplicated or its cumulative effect is not too harsh on
the accused. But according to several decisions by the Provincial
Divisions (see, eg, S v Nkosi 1965 (2) SA 414 (C) where the
authorities are collected) the practice is undesirable and should
only be adopted by lower courts in exceptional circumstances. The
main reason for frowning upon the practice mentioned in these cases
is the difficulty it might create on appeal or review especially if
the convictions on some but not all of the offences were set aside.
As any sentence imposed by this Court is definitive, that objection
to the practice is, of course, not applicable. However, in the
present case I think it conduces to clearer thinking in determining
the appropriate sentences to treat each offence separately. Moreover,
no risk of duplication of punishment thereby arises for each offence
is sufficiently distinct, different and serious; and in the ultimate
result the cumulative effect of all the sentences imposed can be
otherwise suitably controlled to avoid undue harshness to the
appellant."


(See also S v
Mofokeng 1977 (2) SA 447 (O) at 448-9 where some of the more recent
cases are collected.) The present case was tried under the new
Criminal Procedure Act 51 of 1977 but that does not affect the
appositeness of the above-quoted remarks. In my view, difficulty can
also be caused on appeal by the imposition of a globular sentence in
respect of dissimilar offences of disparate gravity. The problem that
may then confront the Court of appeal is to determine how the trial
Court assessed the seriousness of each offence and what moved it to
impose the sentence which it did. The globular sentence tends to
obscure this.’ ’’





[78] Equally
undesirable is the suggestion that the court below should have
imposed or considered a suspended sentence. The first appellant was
41 years old at the time he was sentenced and the second appellant
was about 31 years old. If they were to serve the whole of the
sentences imposed, the first appellant would be 87 years old and the
second appellant 77 years old upon release. It would be undesirable
to burden persons of those ages with suspended sentences.





[79] The appellants
attacked the appropriateness of their sentence, inter alia, on the
ground that the court below overemphasised the seriousness of the
crimes at the expense of the other factors. It was argued in
particular that the court had paid insufficient regard to the
pre-trial incarceration of the appellants and disregarded the other
mitigating circumstances. To the contrary, the court specifically
stated that it found the personal circumstances of the appellants to
be the usual ones and that there was nothing extraordinary about them
other than the period they were in custody before sentence. The court
emphasised deterrence and rightly so. ‘As in many cases of
sentencing, the difficulty arises, not so much from the general
principles applicable, but from the complicated task of trying to
harmonise and balance these principles and to apply them to the
facts. The duty to harmonise and balance does not imply that equal
weight or value must be given to the different factors. Situations
can arise where it is necessary (indeed it is often unavoidable) to
emphasise one at the expense of the other.’ See S v van Wyk
1993 NR (SC) at 448B-E.





[80] In S v Msimanga
en ‘n Ander 2005 (1) SACR 377, I refer to the headnote where it
is stated at 378i-379a:





‘…Violent
conduct in any form is no longer to be tolerated, and courts, by
imposing heavier sentences, convey the message, on the one hand, to
prospective criminals that such conduct is unacceptable and, on the
other hand, to the public that the courts take seriously the
restoration and maintenance of safe living conditions. Deterrence is
the over-arching and general purpose of punishment. Since no
civilised community should have to tolerate barbaric conduct, in
cases of crime in particular the deterrence and retribution aims of
punishment are to be preferred over those of prevention and
rehabilitation which in such cases play a subordinate role.’





[81] The crimes
committed by the appellants were planned and premeditated, committed
out of avarice and greed, which aggravates the seriousness of the
crimes further. See R v Fanuel 1963 (3) SA 672 (RA) at 674G-H; S v
Ivanisevic and Another 1967 (4) SA 572 (A) at 575H-576A and S v
Abrahams 1974 (3) SA 660 (A) at 663H and S v Alexander, supra, at
156g. The appellants left Windhoek armed to the tooth and camped
overnight to waylay their victims. At an opportune moment, their
victims unsuspecting, the appellants struck leaving a trail of
destruction. The appellants never showed remorse. Notwithstanding the
overwhelming evidence against them, they refused to accept their
convictions and whatever sentiments were expressed to that effect
were not genuine at all.





[82] The appellants
committed serious premeditated crimes. It is so appalling to think
that the victims arrived in the country and that by the end of the
day one was dead and one survived by the most fortuitous
circumstances. I am not persuaded that the court below misdirected
itself in any way on the facts or law. The sentences were most
appropriate under the circumstances. It follows that the appeals on
the sentences should fail as well.





[83] Consequently, I
make the following order:





The appeals of the
first and second appellants on convictions and sentences are
dismissed.





MAINGA JA





SHIVUTE CJ





MARITZ JA 





APPEARANCES:





FIRST APPELLANT:





S Namandje





Instructed by
Directorate of Legal Aid



SECOND APPELLANT:
F M Kwala





Instructed by
Directorate of Legal Aid



RESPONDENT: D F
Small





Instructed by
Prosecutor-General