Court name
High Court Main Division
Case name
Kuume v State
Media neutral citation
[1970] NAHCMD 144
Siboleka J
Usiku J




NO: CA 116/2015

13 MAY 2016


the matter between:




citation: Kuume v State (CA 116/2015) [2016] NAHCMD 144 (13
May 2016)


on: 18 March 2016, 18 April 2016

on: 13 May 2016

Criminal law: Warning statement not genuinely reflective of the
actual choice made by the then unrepresented appellant.

Metro Cash & Carry Swakopmund was burgled from the inside
resulting in several boxes of Richeleu brandy and Dunhill cigarettes
valued at N$60 000 stolen.

Appellant’s involvement in the crime not proved beyond
reasonable doubt.

The appeal is upheld, the conviction and sentence are set aside.


the result the appeal is upheld, the conviction and sentence are set


J (USIKU J concurring):

At the hearing of this matter the appellant was represented by Mr
Namandje and Ms Moyo appeared for the respondent. The court
appreciates both counsel’s valuable arguments in this regard.

In this matter the appellant was convicted of attempted theft in the
Magistrate’s Court, Swakopmund on 18 August 2015. On 21 August
2015 he was sentenced to N$5 000 or two years imprisonment plus six
months imprisonment wholly suspended for five years on the usual
condition of good behavior. He now appeals against both conviction
and sentence.

On 28 September 2015 the appellant filed his notice of appeal on the
following grounds:

The learned Magistrate erred in finding that there was evidence
supporting the

on an attempted theft charges.

The State erred in its evaluation of evidence and should it have
carefully considered the totality of evidence a(s) required in law it
would have acquitted the appellant.

The learned Magistrate erred that the evidence was sufficient to
prove beyond reasonable doubt that the appellant was guilty of a
charge of attempted theft.”

The appellant’s additional grounds of appeal are as follows:

The court a quo erred by admitting evidence of the Police
Officer F. Negumbo to the effect Accused 1 orally unequivocally
implicated himself in the commission of the crime and the appellant
when such admission amounts to a confession which is inadmissible as
it was not done in terms of section 217 of the Criminal Procedures

The court further erred in using the Co-Accused’s extra-curial
statement against the appellant.

The Court erred in admitting and relying on evidence in a form of a
warning statement allegedly made by the appellant when such
statement should not have been admissible alternatively should not
have been relied upon in that the content was disputed by the
appellant, and it was clear that the appellant has made it clear to
the Police that he wanted to remain silent (and on that basis the
Police was not entitled to take a statement from him). Further there
was no independent evidence confirming (assuming the appellant
voluntarily gave the statement) that what was read to the appellant
was exactly what the Police Officer was told by the appellant and
wrote down given the fact that the appellant does not speak English).

The court further erred in admitting evidence of the Police Officers
Haimbodi and Negumbo in relation to the alleged self implication by
the appellant when there was a complete lack of proper and competent
representation by the respective defence counsels during the trial.
In this respect the trial was unfair and incompatible with Article 12
of the Namibian Constitution.

The court erred in finding that the vehicle alleged to have been at
the scene was properly identified as that of the appellant.

The court erred in convicting the appellant on the alternative

The respondent raised two points in limine, these were: that
the record of proceedings was incomplete, secondly that the appeal
was filed two weeks out of time and no application for condonation
for the late filing of the notice was made. In the light of the above
shortcomings, the respondent requested the court to struck the matter
from the roll for the reason that it was not properly before court.

On perusal of the record it appears that the appellant was charged in
the Magistrate’s Court, Swakopmund, on the names “Ruben
Kuume”, his notice of appeal was issued under totally different
names “Phillemon Kuume Ndatega Ruben”. It is my
considered view that Court processes should never be altered in
between just like that because it causes a lot of confusion to all
the parties involved and in particular the processing office clerk to
know who the appellant is. Due to this mix up of names two separate
appeal files were opened resulting in the appeal documents not
reaching the respondent counsel’s active file timeously. I
should mention here that for proper service delivery appellants
should always stick to the names they have provided to the police
officer charging them and should remain on those names right through
all the processes they intend engage themselves in.

In his notice for the application of a postponement, Mr Namandje
stated among others’ that:

I was approached by the appellant I filed a notice of appeal. After
that notice … I expected the record to be sent to the
Registrar of the High Court and the record to be inspected before the
date of hearing is set as it is usually the practice.”

to this counsel he got the date of hearing without having inspected
the record. This is unfortunate because an appeal is a matter that is
brought to court by the appellant. He must see to it that all is in
order. If he is represented like in this case, it is the duty of the
counsel to have seen to it that all is in order. Be it as it may, the
court decided to condone the late filing of the appeal and told both
counsel to address the court on the merits.

The following satisfied the court to convict the appellant.

In its reasons for convicting the appellant, the Court a quo
stated that it was satisfied that the appellant was one of the two
men who were seen loading stolen goods in a white double-cab bakkie
at Metro Cash & Carry, Swakopmund. The appellant was seen driving
a vehicle that matched with that description in the company of the
first accused the next day. By way of circumstantial evidence the
appellant was convicted on attempted theft.

The evidence of the initial investigation officer Francisco Negumbo
in the Court a quo:

certain Megameno Amupadhi was arrested on 23 November 2013 as accused
1 on the matter in the Court a quo. On 25 November 2013 the
investigation officer took him to his office for questioning
regarding the theft of twenty Richeleu brandy boxes; and three
Dunhill cigarette boxes valued at N$60 000 at Metro Cash & Carry
in Swakopmund. During that interview Megameno Amupadhi told the
investigation officer the following:

at the time of the incident he was an employee of Metro Cash &
Carry Swakopmund. On 23 November 2013 at the close of business him
and the appellant agreed to steal the goods listed in the charge
sheet. To do that, they arranged that the appellant remain inside the
shop in order to be locked in, which in fact happened. During the
night the appellant broke the inside padlock, all electronic alarm
devices and cables were all cut from inside forcing the back door of
the business to open. Goods mentioned in the charge sheet were

On hearing the above information the investigation officer proceeded
to arrest the appellant and formally charged him as accused 2 on the
matter in the Court a quo.

Megameno Amupadhi gave his evidence under oath in the Court a quo
he did not repeat the crucial information he verbally told the
investigation officer Francisco Negumbo connecting the appellant to
the crime but instead exonerated him. Here is what he instead
testified in his evidence under oath, in the Court a quo. ‘On
the day of the incident he went to town to look for something for his
child. On his way back at Shell Service Station he saw and recognized
the appellant driving in the direction of Kuisebmund. He got a lift
up to Shop 4. On the vehicle were himself; the appellant; and two
other male persons. On their way to Kuisebmund the police stopped
them, and were all told to board a police van which they did.’
The crux of his evidence is in the following verbatim quotation from
the transcribed record at page 157 line 20:

did they ask about? --- They asked about us, “who are you,
where are you working?” Like me they asked me who I am then I
told them my name Megameno Amupadhi, where are you working?” I
said “I am working at Metro Cash n Carry”. It is when the
other police officer Negumbo said “yes maybe this guy has
something to do with what happened to Metro Cash & Carry. And
then what happened --- then he asked me “do you have any idea
what happened to Metro? I said “no I do not know anything about
what happened at Metro.”

From the police station they took Megameno Amupadhi to a house where
a search was conducted but they found nothing. He was locked up and
he elected to make a statement in Court during the trial of the
matter. The above evidence means in the nutshell that all the
information Megameno Amupadhi told the investigation officer
Francisco Negumbo related to the appellant’s role on this crime
was rendered hearsay and therefore valueless.

I will now examine the arrest of the appellant on this matter. In
this regard I will attend to the evidence Sgt. Japheth Haimbodi who
was attached to Serious Crime Investigation Unit during 2013 and took
over the investigation from Francisco Negumbo. According to this
officer he arrested the appellant for two reasons: The vehicle that
transported stolen goods at Metro Cash & Carry matched with
the one appellant was driving around
: During investigations
accused 1 mentioned that the appellant was locked inside Metro Cash &
Carry and he broke that shop from the inside. Haimbodi showed the
appellant his appointment certificate, explained to him all his legal
rights including the right to make a formal application for bail.

With regard to the right of remaining silent the appellant made the
following choice:  “--- At first he opted to remain silent
and give his testimony in the Court of law and then at a later stage
he changed his mind that he is going to give a statement.” The
question and answers on this aspect are as follows:

What is your choice, do you wish to make a statement or do you only
wish to answer questions, (after consultation with your legal
practitioner) or do you remain silent?

I wish to give my testimony at Court of law.”

is the last words ‘… at Court of law’ that
Haimbodi deleted and made his initials along the side. He did not
cause the appellant to do the same despite the fact that he made
statement to him. The purported statement the appellant allegedly
made to Sgt. Haimbodi was that: ‘On Saturday 23 November 2013,
at the request of Jossy, an employee of Metro he drove to the said
business and helped load his goods on his bakkie.’

Mr Mayumbelo, counsel for the appellant in the Court a quo did
not object to the handing in of the statement as an exhibit. He
however disputed its contents. When the appellant testified under
oath in the Court a quo he stated that he cannot read English.
He further said the choice he made to Haimbodi in the warning
statement was to the effect that he will make his statement in Court.
This evidence is in accord with what Haimbodi himself initially wrote
down there. It therefore nullifies the deletion Haimbodi made to it.

A glaring shortcoming in the same warning statement Pol. 17 exhibit
‘B’ Haimbodi took from the appellant is spelt out in the
following verbatim quotation from one of the questions he put to him:

Question: Are you satisfied with the interpretation by the
interpreter from the language into the English language and vice
versa (if possible).


above quotation is materially in conflict with what Sgt. Haimbodi
testified under oath in the Court a quo. I quote verbatim on
page 103 line 20 of the transcribed record of proceedings:

language were you using? --- We were speaking Oshiwambo.

was the accused (the appellant’s home language? --- Oshiwambo.

you use an interpreter during the proceedings? --- No, there was no

--- Because we understood each other.”

above shows that what the officer testified is not the truth. See the
ruling on admissibility of warning statements by this court in the
unreported judgment by my brother Mtambanengwe J as he then was, in
the matter of St vs Tjikuejjekuetji Kapika and 10 others Case
No. CC 144/97 heard on 21 November 1997 delivered on 02 December

The evidence placed before the Court a quo to the fact that
the appellant was seen driving a 2.7 white double-cab bakkie with a
Windhoek registration number similar to the one that he was earlier
allegedly seen loading stolen goods at Metro alone does not take the
prosecution case anywhere. It is only the registration number
confirmed by Natis that can provide conclusive proof as to who owns a
particular vehicle at a given time. In the absence of such evidence
the identity of the said vehicle as well as its owner remains
unknown. Proof would also have been conclusive if the alleged vehicle
was impounded with the stolen goods still on board.

From the above it is very clear that the evidence placed before the
Court a quo does not accommodate the process of applying
circumstantial evidence, because the only crucial prosecution witness
who according to the evidence of the police gave information
connecting the appellant to the crime upon which he was arrested
exonerated him from any wrongdoing in his evidence under oath.

It follows from the above therefore that the prosecution in the Court
a quo did not prove beyond reasonable doubt that the appellant
committed the crime of attempted theft.

It is on that basis that the conviction and sentence on the matter
cannot be allowed to stand.

In the result the appeal is upheld, the conviction and sentence are
set aside.






: Mr. S. Namandje

of Legal Aid

Ms. C. Moyo

of the Prosecutor-General, Windhoek