Court name
Supreme Court
Case name
S v Kiimba
Media neutral citation
[1970] NASC 23
Judge
Smuts JA










IN
THE SUPREME COURT OF NAMIBIA


CASE
NO: SA 75/2013


DATE:
26 OCTOBER 2015


UNREPORTABLE


In
the matter between:


THE
STATE...............................................................................................................................Appellant


And


FESTUS
NEPEMBE
KIIMBA.............................................................................................Respondent


Coram:
SHIVUTE CJ, SMUTS JA and CHOMBA AJA


Heard:
12 October 2015


Delivered:26
October 2015


APPEAL
JUDGMENT


SMUTS
JA (SHIVUTE CJ and CHOMBA AJA concurring):


[1]
At issue in this appeal by the State is
whether the High Court was correct in acquitting the respondent on
counts 3 and 4, namely contravening s 2 of the Arms and Ammunition
Act 7 of 1996 (‘the Act’) (possession of a firearm
without a licence) and contravening s 33 of that Act (possession of
ammunition).


[2]
This appeal arises in the context of a
trial where the respondent and two other accused faced these two
charges as well as two far more serious charges of murder and robbery
with aggravating circumstances. The High Court found that all three
accused had acted with a common purpose and convicted each of them of
murder and robbery with aggravating circumstances. But the High Court
acquitted all accused on the third and fourth counts of contravening
s 2 and s 33 of the Act.


[3]
All three accused were each sentenced to 25
years for murder and 10 years for robbery with aggravating
circumstances. The High Court further directed that the sentences
should run consecutively.


[4]
The State subsequently successfully applied
for leave to appeal to this court against the respondent’s
acquittal on the third and fourth counts.


[5]
The factual background within which these
counts arose is first referred to together with the findings of the
High Court. The elements of the two offences in question are then
briefly discussed. The basis upon which the State has appealed
against the High Court’s findings is referred to and the
contentions analysed together with those of the respondent’s
counsel within the legal and factual context of this matter.


Factual
background


[6]
A great deal of evidence was led in the
trial. It included a lengthy trial-within-a-trial. All three accused
contested the admissibility of their statements and confessions made
before police officers and peace officers. A detailed survey of the
evidence led at the trial is contained in the judgment of the High
Court. What follows is a brief summary of the events with greater
emphasis upon the evidence relevant to the two counts which are in
issue in this appeal.


[7]
The deceased and his friend, a certain Mr G
P Isaacks, and the latter’s two daughters went to a mountainous
area near the Goreangab Dam on the evening of 18 January 2007. Their
purpose in doing so was to view and photograph the McNaught Comet
which was to be visible at 20h15 that evening. They chose an elevated
location near the dam as their vantage point for doing so. They took
along camping chairs and refreshments. Whilst setting up, they
noticed three men pass by.


[8]
Sometime later and after it had become
dark, Mr Isaacks and his daughters testified that three men emerged
from the darkness and aggressively ordered them to lie down. In the
process, the deceased was shot in his chest and fell on his face. The
assailants took a camera, cell phones, a portable global positioning
system device (GPS), their refreshments and a few further items from
them. The assailants then fled the scene.


[9]
Members of the
Serious Crime Unit of the Namibian Police (‘the Unit’)
were summoned to the scene and started their investigations. By
tracing the cell phones stolen from the deceased and Mr Isaacks, they
were able to ascertain that those phones had been used in Okahandja
on the next day and also ascertained the whereabouts of those phones.
The police were soon able to establish that the two cell phones,
which were subsequently identified, had been sold to persons in
Okahandja by the first accused and the respondent. Those purchasers
gave evidence to that effect.


[10]
The police also obtained the respondent’s
own cellular telephone number and were able to ascertain that he had
been in telephonic contact with accused 1 prior to the fatal incident
and a certain Mr Thomas Shipahu on the same night shortly afterwards,
asking to meet with him. Mr Shipahu testified that the respondent had
then after 22h00 on the night of the shooting and robbery offered him
a camera for sale. Mr Shipahu took him up on this and in turn sold it
to an Angolan shortly afterwards.


[11]
The police were also able to ascertain that
the respondent was in contact with a certain Ms Helena Kalambi, with
whom he was then in a relationship. They had two children together.
Ms Kalambi was then living at a village called Omuthindi in northern
Namibia. She testified that the respondent had phoned her shortly
after the incident and said to her that he had shot accused 3. She
further testified that the respondent shortly afterwards travelled to
visit her in northern Namibia and told her that if the police were
looking for him, she should not disclose that she had seen him. He
then returned to Windhoek. After his return, she stated that he again
contacted her telephonically and asked her to look for a blue plastic
bag which he had hidden by burying it at an identifiable point near
her home. He said to her that this contained items of his. She
further testified that she recovered the blue plastic bag in the
vicinity, as directed by the respondent. She found that there were
two knives, a torch and a black item resembling a cell phone
contained in that blue bag. That item was subsequently identified as
the deceased’s GPS.


[12]
The investigating officer then proceeded to
trace the whereabouts and addresses of accused 1 and the respondent
through informants. He established where the respondent resided but
did not find him there. In the meantime, he traced the whereabouts of
accused 1 to a farm in the Maltahöhe district. Whilst on his way
to arrest him, he learned that the respondent had returned from
northern Namibia. After arresting accused 1, the latter was taken to
the magistrate in Mariental to make a confession. Accused 1 proceeded
to confess to elements of the murder and robbery and acting in
cahoots or collusion with the respondent and with accused 3.


[13]
The investigating officer returned to
Windhoek and proceeded in the early hours of 3 February 2007 to the
residence where the respondent stayed in the Havana area of Katutura.
The respondent was sleeping in a room in the house at the time. He
shared that room with another occupant who, together with the owner
of the house, had opened up the house to the investigating officer
and other members of the Unit. The investigating officer and other
policemen proceeded to the room where the respondent was sleeping. He
was arrested. A search for a firearm was then conducted and a member
of the Unit found one under the carpet under the bed where the
respondent had been sleeping. It was a 9 mm Makarov pistol with eight
rounds. Although the respondent was not present in the room when the
pistol was so found, the owner of the residence was present and
confirmed this in his evidence.


[14]
The discovery of the firearm was raised
with the respondent straight after its discovery at those premises.
His spontaneous response to the investigating officer was that he had
robbed a Herero man of the firearm. The respondent thereafter
proceeded to point out the residence of accused 3 to the police
officers. The latter was then arrested at that location. Accused 3
had a wound in his stomach. He stated that it was a bullet wound,
caused by the bullet which had been fired by the respondent at the
deceased. The forensic medical evidence was to the effect that a
bullet had penetrated the deceased in the chest area from the front
and had exited from his rear abdomen. It had not lodged itself in the
deceased. Police witnesses also testified that no spent cartridges
were found at the scene when it was searched on the morning following
the fatal incident.


[15]
The respondent indicated to the members of
the Serious Crime Unit that he wanted to make a statement. He was
then taken to a senior police officer and made a confession to him.
As has already been pointed out, the admissibility of the confessions
and statements made by all three of the accused was contested. After
a lengthy trial-within-a-trial, the High Court correctly ruled that
the statements made by each of the three accused concerning the
charges they faced had been made freely and voluntarily and were
therefore admissible as evidence in the trial.


[16]
In his confession, the respondent, inter
alia, stated:


I
was with Max (accused one), having a panga, Josef, empty-handed, and
I was having a gun. I killed somebody’.


[17]
The respondent further described how the
three accused approached the deceased and his party in the vicinity
of the dam and stated:


We
walked straight to them and a white man walked straight to me and I
was afraid and I shot him. Max had told me that if the white man came
closer I must shoot him. I shot him; the bullet went through him and
strikes Joseph on the right side of his stomach’ (sic).


[18]
The respondent also described taking the
various items from the deceased and other members of the group. He
also said that Joseph (accused 3) had said to him that he (the
respondent) had shot him as well. The respondent also said that he
(and accused 1) told accused 3 to then go home and that they
proceeded to (Mr Shipahu) to sell the camera and to Okahandja the
next morning to sell the cell phones.


[19]
In his warning statement it was stated by
the investigating officer that the respondent was found in possession
of a firearm, a 9 mm Makarov pistol with 8 rounds in the magazine,
found under the bed where he was found to be sleeping. When
confronted with this, the respondent spontaneously stated to the
investigating officer that he and accused 1 had, ‘grabbed a
Herero male at Otjimuise and robbed him of his firearm’.


[20]
The respondent also provided the
investigating officer with the cell phone number of a driver of a
minibus who had retained his luggage when he had returned from
northern Namibia because the respondent did not have sufficient funds
to pay his fare. The investigating officer approached the driver in
question who gave evidence to the effect that a male person had
travelled as a passenger from northern Namibia on 30 January 2007 and
was unable to pay his fare. He then impounded his luggage, to be held
against payment of that fare. When doing so, the male passenger in
question had stated that he wanted to take out his firearm from the
luggage and proceeded to take out an item wrapped in a cloth which he
then inserted in the inside of his waist of his trousers. The fellow
driver of the minibus corroborated that evidence. When the impounded
luggage was subsequently reclaimed by the investigating officer, the
respondent confirmed that it was his.


[21]
There was also testimony from a certain Mr
Frans Dikolo that he had been robbed of his 9 mm Makarov pistol
together with ammunition on about 10 January 2007. He had reported
this to the police at the time. He produced a valid licence for the
firearm whose serial number matched the pistol found at the
respondent’s residence.


[22]
In his evidence, the respondent not only
denied that his statements were freely and voluntarily made, but also
denied that he committed any of the crimes for which he had been
charged. He denied having been on the scene, having sold the camera
and the cell phones and having been in possession of the GPS. This
notwithstanding, there was overwhelming credible evidence to the
contrary implicating him. He also denied his own cell phone number,
despite evidence to that effect having been given by his previous
employer. He also denied having been in contact with and having even
met accused number 1 until they were first arraigned together after
their arrests. This was despite having been seen with him by several
witnesses whose evidence was unshaken in that respect as well as the
call records of their respective cell phones and his confession. In
his several denials of possessing the pistol, he also repeatedly said
that he had ‘never held a firearm in his life’ or words
to that effect. His evidence was correctly rejected as false beyond
reasonable doubt by the High Court.


Findings
of the High Court


[23]
The High Court was satisfied that the
evidence of the other two accused was also false beyond reasonable
doubt and to be rejected. The High Court further accepted that the
confessions and statements of all accused were made freely and
voluntarily in which they admitted that they had attacked the
deceased and Mr Isaacks and his two daughters. The Court found that
the deceased was shot dead in the course of this attack.


[24]
The High Court further found that the
deceased and the other victims had been robbed. The Court further
found that the respondent and first accused had after the incident
offered those items for sale and that the respondent had later
directed his erstwhile girlfriend to the location where he had hidden
a blue plastic bag containing two knives, a torch and the GPS of the
deceased.


[25]
The High Court concluded that when the
respondent drew a firearm and shot the deceased, his conduct was also
to be imputed and attributed to the other accused as they had set out
to engage in an armed robbery of the persons who were at the elevated
area near the dam. The Court further concluded that the deceased had
been shot by the respondent through the chest and had, as a result,
died at the scene.


[26]
The Court however proceeded to deal with
counts 3 and 4 in the following way:


However,
no connection has been established between the firearm used at the
scene of crime to murder the deceased and the pistol before court,
Exhibit 1. The prosecution has proved beyond reasonable doubt that
the pistol and magazine before court is the lawful property of Frans
Dikolo, stolen from him by unknown persons. The prosecution did not
prove beyond reasonable doubt that the same pistol before court
stolen from Frans Dikolo was used to shoot and kill the deceased on
18 January 2007.’






[27]
The Court then concluded that the crimes of
possession of a firearm and ammunition without a licence had
therefore not been established and acquitted all of the accused of
those offences. That was the full extent to which the High Court
dealt with counts 3 and 4.



Contentions by
the State and Respondent’s Counsel


[28]
Counsel for the State has contended that
these offences were established beyond reasonable doubt in respect of
the respondent. State counsel further argued that the Court
misdirected itself by pronouncing that these offences had not been
established because the State had not proved beyond reasonable doubt
that the firearm found in possession of the respondent was the same
firearm which had been used to kill the deceased. Counsel accordingly
submitted that the elements of possession as defined in the Act had
been proven against the respondent beyond reasonable doubt and that
the respondent should have been convicted on both of those counts.


[29]
The respondent’s counsel referred to
the discovery of the firearm in the room where the respondent was
sleeping. Counsel contended that there were at least three other
people who could have ‘possessed’ the firearm. It would
appear that he rather intended a reference to two others –
namely the landlord and the other occupant of the room as the third
person no longer occupied the room after Mr Dikola had been robbed of
the firearm. Counsel contended that none of the three including the
respondent could be directly implicated for possessing the firearm
and argued that the evidence of the taxi driver about the respondent
collecting his firearm from a bag was merely circumstantial.


[30]
Counsel referred to R
v Blom
1939 AD 188 at 202-3 concerning
the test to be followed when reasoning by inference in criminal
matters. Those principles are well established and do not bear
repetition. Counsel argued that there are no reasonable grounds upon
which this court would conclude that the High Court misdirected
itself or committed an irregularity with regard to the acquittals on
counts 3 and 4.


The
offences


[31]
Section 2 of the Act provides:


Subject
to s 1(4), 3(6), 4, 8, 24, 34(2) and 44 no person shall have any arm
in his or her possession unless he or she holds a licence to possess
such arm’.


[32]
The sections referred to do not arise in
the present circumstances.


[33]
Arm” is defined to mean “any
firearm”. Possession is defined to include “custody”
and “possess” is to be construed accordingly.


[34]
Section 33 provides:


Subject
to s 34(2) and 44, no person shall be in possession of any ammunition
unless he or she is in lawful possession of an arm capable of firing
that ammunition’.


[35]
For a contravention of s 2, the State would
thus need to establish


(a)
possession of a firearm;


(b)
unlawfully, that is, without a licence; and


(c)
culpability in the sense of knowledge of
unlawfulness.


[36]
As for a s 33 contravention, the State
would similarly be required to establish possession of ammunition in
the absence of being in lawful possession of a firearm.


[37]
In
the context of similar legislation, the then Appellate Division in
South Africa held[1] that the
concept of possession in a penal statute comprises two elements, a
physical element
(corpus)
and a mental element
(animus).
The former consists of either direct physical control or mediate
control through another while the latter entails an intention to
control the physical element.[2]



Analysis of the
law and evidence


[38]
The State had clearly proven beyond
reasonable doubt that the Makarov pistol and ammunition was found in
the room, where the respondent was sleeping and concealed under a
carpet under the bed he slept on. The other occupant of the room
testified that he had no knowledge of the firearm. Nor did the owner
of the house have any knowledge of it. That firearm was the subject
of a lawful licence held by Mr Dikolo who had been robbed of it about
a week before the fatal shooting of the deceased and the robbery. It
was found with the respondent less than a month after it had been
stolen from Mr Dikolo. Plainly, the respondent did not hold a licence
to possess that firearm, given the fact that the valid and lawful
licence had been issued to Mr Dikolo.


[39]
It was also not the respondent’s
defence that he had a licence. Instead he denied possession and
suggested that the police had planted it there.
His
version was rightly rejected as false.


[40]
The respondent’s possession of the
firearm was further reinforced by the evidence of the two drivers of
the minibus who had transported him from northern Namibia. Even
though they did not identify him specifically or the firearm, they
both unequivocally stated that the owner of the impounded luggage had
been unable to pay his fare. This was confirmed by the respondent.
When impounding the luggage, their unshaken evidence was that the
person in possession of the luggage (the respondent) had specifically
asked to remove his firearm which then occurred even though it was
not openly fully visible to them. Whilst their evidence is of a
circumstantial nature, it is to be considered in the context of the
other evidence in the trial.


[41]
Furthermore the respondent himself in his
confession admitted on more than one occasion that he was in
possession of a firearm at the time of the fatal shooting and that he
had in fact fired the fatal shot from the firearm then in his
possession.


[42]
Counsel for the State is entirely correct
in submitting that, whether or not it was proven beyond reasonable
doubt that the specific firearm subsequently found with the
respondent had been used in the shooting, was of course irrelevant to
the crimes of unlawful possession of the firearm and ammunition.


[43]
Applying the test in R
v Blom, supra,
the inference to be
drawn - that the respondent was in possession of the firearm in
question - is clearly consistent with all the proved facts which also
exclude every reasonable inference other than that of possession by
the respondent.


[44]
The evidence thus
established beyond reasonable doubt that the respondent had been in
possession of the firearm and ammunition and that he did not have a
licence to do so.


[45]
Upon the evidence, it was clearly
established that the physical and mental components of possession had
been met and that the elements of the offences created in both s 2
and s 33 of the Act had been established beyond reasonable doubt.


[46]
The State also proved unlawfulness and
culpability by establishing beyond reasonable doubt that the
respondent had no licence for the firearm. Once unlawful possession
of the firearm was established, unlawfulness as contemplated by s 33
then follows.


[47]
The High Court erred in considering that
the State needed to establish that the firearm had been used in the
commission of the other crimes in order to convict the respondent (or
any of the other accused) of illegal possession of the firearm and
ammunition. There is no such requirement in either section.


[48]
It follows that the acquittal of the
respondent in respect of counts 3 and 4 is to be set aside and
replaced by a conviction on both counts.


Sentence


[49]
Submissions were invited from both counsel
on the question of an appropriate sentence on those counts. The
respondent’s counsel was also afforded the opportunity to
advance reasons and present evidence as to why the respondent should
not be declared unfit to possess a firearm under s 10(7) of the Act
in the event of a conviction upon counts 3 and 4. Counsel conceded
that such a declaration should follow in the event of a conviction in
view of the provisions of the Act. Respondent’s counsel however
contended that the matter should be remitted to the trial court for
consideration of an appropriate sentence if the appeal were to
succeed. He submitted that the respondent may want to give evidence
and further submissions on mitigation could then follow. After it was
pointed out to him that the respondent had not given evidence in
mitigation upon conviction on the two more serious charges of murder
and robbery and that his personal circumstances were on record,
counsel could not indicate the nature of any further evidence to be
given by the respondent or on his behalf in respect of these two
offences. Despite the unsupported contention concerning remitting the
matter, this court is in a position to determine an appropriate
sentence of these two counts.


[50]
The respondent gave evidence at the trial.
Even though his evidence was given on the merits (as well as in the
trial-within-a-trial) and not in mitigating sentence, his personal
circumstances were provided. This court would also need to take into
account the interest of society and the seriousness of the crime in
passing an appropriate sentence. This court would also take into
account that the respondent had used a firearm and ammunition in
question in committing murder and robbery with aggravating
circumstances. Indeed the use of a firearm constituted the means
whereby these most serious crimes were perpetrated.


[51]
The offences of unlawful possession of a
firearm and of ammunition are themselves also serious offences.
Section 38 of the Act prescribes the sentences in respect of a
contravention of each of these offences to be a fine of not exceeding
N$40,000 or imprisonment for a period  not exceeding 10 years or
both such fine and imprisonment. These prescribed sentences
demonstrate the seriousness with which the legislature and the
community view the illegal possession of firearms and ammunition,
given the grave potential and possibly fatal consequences which may
occur when a firearm and ammunition are used.


[52]
Taking these factors into account, a
sentence of three years imprisonment would in my view be appropriate
for contravening each of these two sections. Given the
interrelationship involved in the commission of these two offences,
the sentences for them should run concurrently. I would further
direct that two years of each of these sentences be served
concurrently with the sentence of 10 years passed by the High Court
for robbery.


[53]
Given these convictions, s 10 of the Act
results in the respondent being deemed to be declared unfit to
possess an arm. This section was drawn to the attention of the
respondent’s counsel who was afforded the opportunity to
advance reasons and adduce evidence why the respondent should not be
declared or deemed to be declared unfit to possess an arm in the
event of such convictions. He correctly conceded that upon a
conviction in this matter, such a declaration should be made. Indeed,
the circumstances of this case demonstrate the compelling need for
such a declaration in respect of a person such as the respondent who
utilised a firearm to perpetrate the ruthless murder and robbery
which occurred in this case.


Order


[54]
In the result the following order is made:


1.
The appeal against the acquittal of the respondent on the counts of
contravening s 2 and s 33 of Act 7 of 1996 on 28 September 2012
succeeds.


2.
The respondent’s acquittal on those counts on 28 September 2012
is set aside and the following order is substituted:


(a)
The respondent (accused 2) is found guilty of contravening s 2 of Act
7 of 1996.


(b)
The respondent is found guilty of contravening s 33 of Act 7 of 1996.


(c)
The respondent is sentenced to 3 years imprisonment for contravening
s 2 of Act 7 of 1996. Two of the 3 years imprisonment are to run
concurrently with the respondent’s sentence of 10 years
imprisonment for robbery.


(d)
The respondent is sentenced to 3 years imprisonment for contravening
s 33 of Act 7 of 1996. This sentence is to run concurrently with the
respondent’s sentence for contravening s 2 of Act 7 of 1996 and
two of the 3 years imprisonment are to run concurrently with the
respondent’s sentence of 10 years imprisonment for robbery’.


3.
The respondent is declared unfit to possess
a firearm for a period of 10 years after completing his sentences for
murder, robbery and the contraventions of s 2 and 33 of Act 7 of
1996.


SMUTS
JA


SHIVUTE
CJ


CHOMBA
AJA


APPEARANCES


APPELLANT:
E N Ndlovu


Instructed
by the Prosecutor-General


RESPONDENT:
W T Christians


Instructed
by Legal Aid



[1]
State
v Adams

1986 (4) SA 882 (A) per Corbett JA.




[2]
Supra
at p 890G-891B. Followed by the High Court in
S
v Kamenye and Another
,
CA 12/2011 unreported 10.02.2012.