Court name
High Court Main Division
Case number
CC 26 of 2008
Title

S v Zuzee and Another (CC 26 of 2008) [2013] NAHCMD 247 (16 August 2013);

Media neutral citation
[2013] NAHCMD 247
Coram
Ndauendapo J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



CASE NO.: CC 26/2008



In the matter between:



THE STATE



and



DA COSTA DUMINGU ZUZEE
.....................................................................1ST
ACCUSED



JOSEPH WASUKA NUNDA
.........................................................................2ND
ACCUSED



Neutral citation:
State v Zuzee (CC 26/2008) [2013] NAHCMD 247 (16 August
2013)



CORAM: NDAUENDAPO, J



Heard on: 07
August 2013



Delivered on: 16
August 2013








______________________________________________________________________



ORDER



______________________________________________________________________



The accused are convicted
as charged. On the count of murder the accused are convicted of
murder with dolus directus.



_____________________________________________________________________



JUDGMENT



______________________________________________________________________



NDAUENDAPO, J



[1] The accused are
arraigned in this Court and charged with the following crimes



COUNT 1: MURDER



The state alleges that
upon or about 26 December 2005 and at or near Windhoek
in the district of Windhoek the accused did unlawfully and
intentionally kill Ralph Köhnke, an adult male person.



COUNT 2: ROBBERY WITH
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SECTION 1 OF ACT 51 OF 1977



The state alleges that
upon or about 26 December 2005 and at or near Windhoek
in the district of Windhoek the accused did unlawfully and
with the intention of forcing him into submission assault Ralph
Köhnke
by hitting him several times with a brick and/or
other unknown object(s) on the head and body and with intent to steal
take from him the goods listed in annexure “A” to the
indictment
, the property of or in the lawful possession of the
said Ralph Köhnke.



And that aggravating
circumstances as defined in section 1 of Act 51 of 1977 are present
in that the accused were before, during or after the commission of
the crime wielding dangerous weapons, namely a brick and/or other
unknown objects and were inflicting grievous bodily harm to the said
Ralph Köhnke.



COUNT 3: DEFEATING OR
OBSTRUCTING OR ATTEMPTING TO DEFEAT OR OBSTRUCT THE COURSE OF
JUSTICE.



The state alleges that on
that between 26 and 29 December 2005 and at or near Windhoek
in the district of Windhoek the accused did unlawfully and
with the intent to defeat or obstruct the course of justice set the
deceased body of Ralph Könhke alight and thereby causing
it to become charred.



Whereas this act was
perpetrated whilst the accused knew or foresaw the possibility that:



1. Their conduct may
frustrate or interfere with police investigations into the
disappearance and/or death of the deceased; and/or



2. Their conduct may
conceal the death and/or may destroy the physical evidence of an
assault perpetrated on the deceased; and/or



3. Their conduct may
protect one or both of them from being prosecuted for a crime in
connection with the assault, disappearance and/or death of the
deceased.



ALTERNATIVE CHARGE TO
COUNT 3: VIOLATING A DEAD HUMAN BODY



The state alleges that
between 26 and 29 December 2005 at or near Windhoek in
the district of Windhoek the accused did unlawfully and
intentionally physically violate the dead human body of Ralph
Köhnke
by setting it alight and thereby causing the body to
become charred.



[2] SUMMARY OF
SUBSTANTIAL FACTS



On Monday 26
December 2005 the accused and the deceased were at the deceased’s
residence situated at number 131 Sam Nujoma Road in Windhoek-West.
The accused hit the deceased several times with a brick and/or other
unknown object on the head and body. The deceased suffered a skull
fracture and died on the scene due to head injury and subdural
haemathoma. The accused loaded the deceased’s body into the
deceased’s motor vehicle and dumped his body in the vicinity of
the Goreagab Dam where they also set it alight with the intent to
defeat or obstruct the course of justice as set out in count 3 of the
indictment. The accused drove back to the deceased’s residence
where they stole the items as set out in annexure ‘A’ of
the indictment. The accused abandoned the deceased’s motor
vehicle and ignition key in the Havana location in Katutura. The
accused acted with common purpose at all material times.’



[3] Accused 1 was
initially represented by Mr Makando and later by Mr Nambahu. Accused
2 is represented by Mr Christiaans. The state is represented by Ms
Wantenaar.



Accused 1 pleaded not
guilty to all the charges. He submitted a plea explanation which was
a bare denial of all the allegations against him.



He made the following
admissions: that between 26-29 December 2005 he was in Windhoek; the
cause of death and identity of the deceased, that during the
transportation of the remains of the deceased no further injuries
were sustained and the property in annexure “A” to the
indictment belong to the deceased. His cell no is 0812261249 and all
the print out of calls made and or received on that number are
correct and they relate to him.



Accused 2 also pleaded
not guilty. He denied all the charges preferred against him.



He admitted the identity
of the deceased, the cause of death, that the body did not sustain
further injuries during transportation and that the properties in
annexure “A” to the indictment belong to the deceased.













MAIN TRIAL



The state called the
following witnesses and the summary of their evidence is as
follows:



[4] Helmut Riddle



He is the General Risk
Manager at MTC and he compiled a chart to illustrate the radio towers
of Windhoek (exhibit X) MTC means mobile terminating call, meaning
you have received a call. Column 2 reflects the number who received
or makes the call. Column 3 reflects the IMET number of the column 6
is the call duration; columna 5 the time, number, column 8 indicates
the call originator. Column 9 indicates incoming calls, column 10
indicates the sms, voice mail, call forwarding and the last column
indicates the tower where the caller or the receiver of the call was.
He further testified that the radio tower Polytech 3 shows in a south
westerly direction from the Polytech side in the direction of Louis
Botha supermarket. The Polytechnic tower has 3 sections divided into
Polytech 1, 2, 3. Sectors are overlapping to allow a signal if one
sector gives in.



[5] Johannes
Nawemab



He testified that he
resides at Havana Kabila Street. On 27th December 2005
around 2 am he heard a vehicle being driven at high speed in his
street. Early in the morning he woke up and found a white Toyota
Condor parked in the street. The key was in the ignition He drove the
vehicle to Wanaheda police station and handed it to the police N40126
W. He found bricks in the boot of the vehicle. He identified the
vehicle depicted in the photo plan as the vehicle he found in Karas
street and also the loose bricks he saw in the boot of the vehicle.



[6] Segearnt
Tjinani Maharero



He is a sergeant in the
Namibian Police. He has 13 years in the Namibian Police force and
attached to the scene of crime unit. He took photographs at the scene
of crime and the body of the deceased at Goreangab dam. He also
collected evidence at the scenes which was sent for forensic
analysis. The blood found on the brick was of the same origin as the
blood found on the floor of the house. The brick found in the vehicle
recovered by witness Nawemab was taken to the house and compared to
the wall where the safe was removed at the deceased house. The colour
of the paint on the comparison was the same.



He also lifted 28 sets of
folien at the house of the deceased. Two sets (21 and 22) lifted on a
glass were identical to thumb print of accused 1 (pol 31 received
from Shaduka on 11 January 2006.



A comparison was done and
his finding was that the fingerprints that he lifted at the
scene/house match the fingerprint of accused 1



[7] Phillemon
Shaduka



He is a detective
sergeant attached to serious crime unit. On 29 December 2005, he was
summoned to a scene of crime at Goreangab dam they found a body which
was a bit decomposed. He further testified that he visited the house
of the deceased and he was involved in the investigation of the case.
From information received they identified the deceased as Ralph
Kohnke residing at 131 Sam Nujoma drive opposite Louis Botha. At the
house of the deceased he saw a brick on the floor and walls, a bottle
with blackish substance, a knife, a plastic with papers in the size
of money and black bottle. They traced accused 1 at Spur restaurant
in Independence Avenue. They drove to Spur restaurant and found
accused 1. They took him to their offices. He was with Tjitemisa when
they entered the office Scott was seated on his chair accused 1 and
the lady were offered chairs. Scott read accused 1 rights to him, the
right to silence, right to contact a lawyer of his own choice, that
anything he says may be written down and used as evidence. He told
Scott that he understood his rights to a lawyer, but he did not need
one at that stage, but at a later stage. He testified that accused 1
told them that accused 2 was also involved in this case and he was
staying in Rundu. The name of accused 2 given to them was Jerry
Nyatu. He, Scott, accused 1 and the pilot flew to Rundu. In Rundu
they were directed by accused 1`to the house of accused 2. They found
the house and knocked the door. A lady opened the door and they
introduced themselves and told her they were looking for Jerry Nyatu.
They searched in the bedroom and found accused 2 hiding in the
wardrobe. He came in the bedroom and saw accused 2 and Scott
tussling, he assisted and they manage to handcuff accused 2. Scott
informed him that he has a right to silence; that he has a right to
get a lawyer accused 2 said he understood. They flew back to Windhoek
with accused 2. They came to their office. He was not there full time
when the accused 2 was asked questions.



He testified about a
Motorola cellphone that belongs to accused 1 that he took it from him
on the day of arrest the IME1 No is 35625809968706 (exhibit “3”)



[8] Warrant officer
Scott



He was in second in
charge of the Serious Crime Unit until 2005. On 29 December 2005 went
to a scene of crime at Goreangab dam and found a body which was burnt
out. He got involved in the investigation and they established that
the deceased was Ralph Köhnke. They went to his residence at 131
Sam Nujoma Drive, opposite Louis Botha. Through their investigation
they established that accused 1 was at Spur restaurant in
independence Avenue.



Accused 1 was arrested at
Spur. He explained to him that he was a police officer and he is
investigating a murder case and also the Judges rules, the right to
remain silent, the right to legal representative of his own choice
and if he cannot afford a lawyer that the state will provide one for
him upon application. They got into the vehicle and drove to office
of serious crime unit. In the office he was given a chair and before
questioning the rights were again explained to him. Sass, Tjitemisa
and others were there moving in and out of the office. Accused 1 said
he felt bad. He said accused 2 was responsible for the actual murder.
Accused 1 was emotional and crying at one stage. He gave the name of
accused 2 as Jerry Nyatu and that he was in Rundu.



They flew to Rundu and
arrested accused 2 at the house which was pointed out by accused 1.
They arrived at the house knocked at the house and a lady opened the
house. They searched the house and found accused 2 in a wardrobe
hiding behind the clothes, he tried to fight, but was overpowered and
handcuffed. He informed accused 2 of his right to remain silent,
right to legal representation of his own choice or legal aid. Accused
2 did not answer anything. They flew back to Windhoek with accused 2.
In Windhoek at the office accused 2 was question and before being
questioned his rights were again explained. The following day they
went to court. Accused 1 tried to shift the blame to accused 2 on the
murder charge.



[9] Shaulione
Tjitemisa



He is a constable for 9
years and attached to the serious crime unit. He knows accused 1 very
well. He was present when Scott arrested accused 1 at Spur
restaurant. Scott introduced himself and informed him of his rights.
The right to remain silent, he has a right to a lawyer of his own
choice and if he cannot afford one he can apply for legal aid. From
there they proceeded to their offices, at the serious crime unit.
Scott went into his office and again informed the accused of his
rights. He answered by saying: ‘why do I need a lawyer now, I
did not kill the person? If I need one I will be was interrogated and
Scott took notes.



TRIAL WITHIN TRIAL



At the end of the trial
within a trial I ruled that the confession of accused 1 made to Chief
Inspector Brune and the pointing out to Chief Inspector Louw and the
confession of accused 2 made to Chief Inspector Oelofse and the
pointing out to Chief Inspector Van Zyl admissible. I indicated that
my reasons for so doing will be provided at the end of the trial.
Herein below are my reasons.



[10] Objections



The accused raised
objections against the admissibility of the confessions and pointing
outs on the grounds that,



In respect of accused 1;




  1. there was a
    violation/breach of the rights of the accused,



  2. the confession and the
    pointing outs were not taken freely and voluntarily from accused 1,



  3. Lack of animus
    confidenti i.e intention to confess.




In respect of Accused 2



Mr Christiaans objected
on the following grounds:




  1. taken in contravention
    or violation of his constitutional rights.



  2. he was induced, not
    taken freely and voluntary.



  3. lack of intention to
    confess




EVIDENCE IN RESPECT OF
ACCUSED 1



[11] Geofrey Scott



He testified that on 4
January 2006 he arrested the accused at Spur restaurant. Independent
Avenue. At the time of arrest he explained the Judge’s rules to
him. These were the right to remain silent; anything that he says
could be used against him in a court of law. That he has a right to
have a legal representative of his own choice at his own expense,
including his right to legal aid. He further testified that when the
accused was taken to the offices of the serious crime unit and before
the interrogation started, the rights were again explained to him.



The accused told him that
he did not need a lawyer because he did not kill anyone, he will get
one later.



[12] Shauline
Tjitemisa



He was present when Scott
arrested accused 1 at Spur restaurant. He testified that Scott
explained his rights to him. Again at the offices of the serious
crime unit, Scott explained his rights to him. He said he did not
need a lawyer because he did not kill a person and that he will need
a lawyer at a later stage.



[13] Philemon
Shaduka



He testified that he was
present when accused 1 was taken into custody at the serious crime
unit. He was present when Scott explained his rights to him before
the interrogation started. Accused 1 replied that he did not need a
lawyer at that stage, but would need one at a later stage.



He took the warning
statement of accused 1 on 5 January 2006 at 14h25 and his rights were
explained to him in terms of the proforma warning statement.



[14] Michael
Unandapo



He testified that on 4
January 2006 accused 1 was brought to his office at the Serious Crime
Unit. He introduced himself and informed the accused of his rights.
He informed him that he had a right to call a lawyer and he told him
that he did not need a lawyer at that stage. Accused 1 told him that
he was involved and he could therefore not proceed with the
interrogation because he thought that amounted to a confession.



The accused looked normal
when he was brought to him. He spoke to the late Sass about accused 1
wanting to give a confession and Sass contacted Chief Inspector Brune
to take the confession.



He and Ndikoma then took
accused 1 to Brune. After the confession was taken, Brune called him
to come and collect accused 1 and he then handed him to the
investigating officer.



He also testified that on
the day of the pointing out, he drove the bakkie to the pointing out
places. Accused 1 was seated in the middle and Louw on the left and
Nahambo the photographer in the bakkie. The bakkie did not have a
canopie.



After the accused pointed
out the various scenes and points he drove back to the office and he
left accused 1 in the hands of Louw.



[15] Felix Ndikoma



He confirmed that he took
accused 1 to the office of Brune with Unandapo. After the confession
was taken he was contacted on the radio to go and fetch the accused.
He took him to the office of Serious Crime Unit.



[16] Derek Brune



He was a Chief Inspector
in the Namibian Police until July 2008 when he retired. He has 42
years of experience in the police force. On 4 January 2006 he took a
statement from accused 1 who was brought to him by Inspector
Unandapo. He completed exhibit ‘CC’ personally.



He testified that the
accused’s rights were explained as per Exhibit “CC”
as follows: “you have the right to consult a legal
practitioner of your own choice and if you cannot afford a legal
practitioner the state will appoint on application by you one to
represent you. The application can be directed to the director Legal
Aid, Private Bag 13370 Windhoek. You can also do the statement on
your own. You must keep in mind that the statement can be used as
evidence either in favour of you or against you”



Q: What do you elect
to do now?



A: I wish to make a
statement.



Do you understand the
warning I have given you?



yes’



Do you nevertheless
wish to make a statement?



yes’.



Where you assaulted or
threatened by any person in order to influence you to make a
statement? ‘No’ Where you in any way influenced or urged
by anyone to make a statement? ‘No’ Where you promised
anything by any person if you should make a statement? ‘No’
Do you expect any benefits from making a statement? ‘No’



The statement was taken
in English and at no stage did it appear to him that there was
misunderstanding. They started with the statement at 15h55 and
completed at 17h00. He denied that accused ever told him that what he
was telling him what police officers told him to narrate.



The signatures on the
bottom of each page is his and that of accused 1.



Mr Makando, put it to the
witness that the accused rights were not explained. There was no
explanation whatsoever, it was just a reading of the form and no
question was asked, as to does he wants a lawyer.’ The witness
replied “my lord, I was always very careful on this particular
matter and I took into account that a person who appeared before me
did not always know what their rights were and it was my task to
inform them properly and completely and to make sure that they
understood.’



[17] Marius Louw



He testified that he is
Chief Inspector in the Namibia Police. He has 25 years’
experience in the police force. He is the Unit Commander, Crime
Investigation Unit (CID) stationed at Windhoek.



He testified that he was
approached by the late Sass who asked him to take charge of pointing
out. On 4 January 2006 Accused 1 appeared before him and he was in
his sound and sober senses. He testified that he informed the
accused as per the proforma form (exhibit EE) that he ‘is not
compelled to point out the scene(s) or points (s) or to say anything
about such scenes. The said person is further warned that what he may
point out or what he may say will be noted down and photos of the
scenes and/or points pointed out will be taken and may be used as
evidence during a subsequent trial. He is asked whether he knows and
understands the warning given’ answered: yes, I want to point
out the scene. You have the right to consult a legal practitioner of
your own choice and if you cannot afford a legal practitioner, the
state will appoint on application by you one to represent you. You
can direct your application to. The director Legal Aid Private Bag
1370. You can also do the pointing out on your own. But you must keep
in mind that the pointing-out can be used in evidence, either in
favour of you or against you,



What do you elect to
do now?



Answer: ‘I want
to point out the scene. I do not need a member of legal aid or any
other legal practitioner now. On a later stage. ‘Do you still
wish to point out the scene(s) and or points?



Answer: yes



Q: ‘As you are
still prepared to continue with such pointing out, I would like to
know the source of your knowledge concerning that which you wish to
point out?



A: ‘I was
present when the incident took place’



Q: where you in any
way assaulted, threatened or influenced by any person to point-out
the scenes and or points?



A: I was about to
report the matter to the police. I was not influenced



Q: Do you have any
injuries or bruises of any nature whatsoever?



A: No’



He testified that they
drove with a bakkie, Unandapo was driving, accused 1 was seated in
the middle and the photographer at the back and he was seated between
the driver and accused 1. That was on 4 January 2006 at 16:30. There
was heavy rain on that date and they could not continue with the
pointing out and it was postponed to 6 January 2006.



On the 6 January 2006
before they proceeded, he again went through this whole procedure
with the accused and he still asked him if he wanted to proceed,
after his rights were read to him gain and he said he wanted to
proceed, so they drove.



The accused pointed out
places/scence(s) and or points to them and after the pointing out,
they returned to the office and he continued with the completion of
the form. Accused 1 then told him that he did not want to sign the
form as he first wanted to sort it out with his lawyer. He gave him
the opportunity to do that.



On 15 November 2006
accused 1 was again brought to his office and informed him that he
now wanted to sign the form. He completed the form and again
explained his rights to him and read the statement back to him. He
then signed the form.



The witness was asked to
explain how he went about to complete the form and he stated: ‘You
start writing the form until para 11 on P. 4. Then normally you drive
and you do the pointing out, you come back with the accused and then
you start to complete everything on this from and you write the whole
pointing out. And then you read it through, read it back to the
accused and asked him whether he understood it properly. After he
understood it properly he was fully aware of everything, then he
signed it.



Trial-within a-trial



Evidence in respect of
accused 2



[18] Scott



He arrested accused 2 in
Rundu on 5 January 2006 after he was informed about his involvement
by accused 1. Accused 2 was found in the closet trying to hide behind
the clothes. He resisted arrest, but was overpowered and was hand
cuffed. At that time Scott explained his rights to him. His rights to
remain silent, anything he said will be taken down in writing and
will be used against him in a court of law, his right to legal
presentation including his right to legal aid. When accused 2 was
brought to Windhoek and again before he was interrogated at the
offices of Serious Crime Unit, he the explained the rights to him.
Accused 2 did, however, not give an indication regarding his rights,
but instead blamed accused 1 and that he would give testimony to that
effect. After questioning accused 2, he realised that the statement
was equivalent to a confession and he stopped with the interrogation
and arranged for Oelofse to take the confession.



[19] Fillemon
Shaduka



They were informed by
accused 1 of the involvement of accused 2 and that he was residing in
Rundu. Himself, Scott and accused 1 flew to Rundu. Accused 1 showed
them the house of accused 2. He confirmed that accused 2 was found
hiding in the wardrobe and that he resisted arrest. They overpowered
him and handcuffed him. He confirmed that Scott explained the accused
rights to him. He also confirmed that his rights were again explained
to him in Windhoek at the office of the Serious Crime Unit



[20] Felix Ndikoma



He testified that he took
a warning statement from accused 2 on 5 January 2005 and he explained
his rights to him as per the pro forma form.



[21] Peter John
Oelofse



He is a Chief Inspector
in the Namibian Police. He has been in the police force for the past
33 years. On 5 January 2005 he was requested to assist in taking a
confession with regard to a murder case. He testified that on 5
January 2006 at 14:45 at Katutura Police station accused 2 as per
exhibit ‘DD’ was brought to him by Sergeant Kantema to
his private office. He and accused 2 were present in his office. He
testified that as per exhibit “DD”, he informed accused 2
that he was in the presence of a Justice of the Peace, who is a Peace
officer and that he had nothing to fear and that he should therefore
speak the truth. He cautioned accused 2 that he is not obliged to
make a statement and that should he wish to make a statement, it
would be taken down and used in evidence. He informed accused 2 that
he has a right to a legal representative. Accused 2 thereupon replied
as follows to the following questions:



Q: do you
understand the warning I gave you?



A: yes



Q: Do you nevertheless
still wish to make a statement?



A: yes



Q: Where you assaulted
or threatened by any person in order to influence you to make a
statement?



A: No



Q: Where you in any
way influenced or urged by anyone to make a statement?



A: No



Q: Where you promised
anything by any person if you should make a statement?



A: No



Q: Do you expect any
benefits after making a statement?



A: No’



He testified that they
were communicating in Afrikaans. He translated the statement into
English and thereafter it was written down, he re-read it in
Afrikaans back to the accused. Accused 2 then affixed his signature
on each and every page of the document and he initialed each and
every page.



During cross
examination the following was put to him by Christiaans: Q: ‘What
I do not see here, or what this proforma does not make provision for,
firstly that you inform him should he not be able to afford a lawyer,
out of his own pocket, he can apply to the state so that the state
can provide him with a lawyer. Now that apart is not contained in
this confession.’



A: that is, it came up
now my lord



Q: Now can one assume
that because that is not contained here he was not informed of that
part of his rights?



A: that is correct



Q: So, you did not ask
him whether he wants a lawyer or not?



A: That is correct



Q: you just inform him
about his rights



A: That is correct



Q: It was not in issue
at that stage



A: No’



[22] Frans Kantema



He took accused 2 to
Oelofse on 5 January 2006 at Katutura police station and collected
him again after the statement was recorded. He did not discuss the
case with accused 2 on his way.



[23] Isak van Zyl



Chief Inspector in the
Namibian Police. He has 34 years’ experience in the police. He
is the Commander of the Crime Investigation Unit at Wanahenda police
station.



He testified that he was
approached by the late Sass on 6 January 2006 at 10 am to assist with
a pointing out. On 7 January 2006 at 12:15 accused 2 appeared before
him at the offices of the serious crime unit. He was in his sound and
sober senses. He informed him that he was in the presence of the
Justice of the peace. He informed him that he has the right to a
legal representative; he is not compelled to point out any scene or
points or say anything about such scene. He was informed that what he
may point out will be taken and may be used as evidence during his
subsequent trial. He was then asked whether he understood the warning
given to him. He said he understood. He was asked whether he still
wished to point out the scene(s) or point(s) and he said ‘yes’.



He was further asked
whether he was assaulted, threatened or influenced by any person to
point out the scene(s) or point(s). He answered: ‘I was forced
to show, but i know where the house is.



Q: force do you mean that
they asked you and not actually force you?



A: Yes’



They departed from the
office at 12h37. They then proceeded to the scene or scenes pointed
out by accused 2. They returned at 13:24. He testified that after the
conclusion of the pointing out the notes were read back to accused 2
and interpreted again. He was asked whether he was satisfied that
what he pointed out and said has been noted down correctly and he
said ‘yes’. He then informed the accused that he will
finalize everything and allow him to look and listen to the
recordings and the photos.



On 20 March 2006 the
accused was brought back to him in order to sign, but he refused to
sign on the advice of his lawyer.



End of state’s
case trial within trial.



Case for the
accused: trial within trial



[24] Testimony of
accused 1



He testified that on 4
January 2006 during the morning he was having breakfast at Spur
restaurant with his girlfriend. Two police officers, Tjitemisa and
Scott arrived there. Scott told him that he was under arrest for
murder. He stood up and got in the blue city golf. He denied having
been informed by Scott of his rights.



They arrived at the
offices of the police at serious crime unit. In the office it was
Scott plus 9 nine officers including his girlfriend Helga Malestky.
Scott took his cellphone and his girlfriend’s cellphone and
started to interrogate him and his rights were not explained. He
interrogated him in a threatening and suggestive manner and forced
him to say things that he did not know.



One black officer slapped
him on the cheek and Scott was spinning his gun on the table
Tjitemisa cocked his gun and said ‘let me make this bastard
speak, placed the gun on his right hand side, against his head’.
He was emotional begging for mercy he said ‘I will admit to
whatever they want me to say’. He was scared and afraid.



Before being taken to the
office of Brune he was told to implicate accused 2 by Scott and other
officers, they told him “yes just do that it will be better for
you than your case on your side will be treated more lightly and we
are going to make sure that you are going to get bail in this issue
especially talking with the magistrate.’ Mr Scott sent Shaduka
to by credit of N$20 so that he could contact accused 2 in Rundu.
Shaduka came back put credit in the phone and he called accused 2,
they greeted each other’.



Scott made a call to
Unandapo and he came in and asked him whether he was ready to make a
statement. After that he was taken to another office in the same
building by Felix Ndikoma and Unandapo that was around 16:00. They
arrived at the office of Chief Inspector Brune and Unandapo left and
Ndikoma stayed behind.



When he entered the
office of Brune he was busy writing and he asked him whether he was
Dumingu Zuzee Da Costa and he showed him to seat. Brune asked him
whether he was threatened to give a statement. He said ‘yes”
He testified that ’we were having a conflict of understanding
each other, the only two things I can still clearly remember is that
he asked me two times ‘do you need a legal representative?
Which at that time I felt almost happy to hear what he was saying
because I said ‘yes I wanted a lawyer’.



But like I said I
am not disputing that it was read to me, because during that time I
was emotionally a wreck.’



His counsel asked him
whether the following rights were explained to him: ‘you have
the right to consult a legal practitioner of your own choice and if
you cannot afford a legal practitioner the state will appoint on
application by you, one to represent you. The application can be
directed to, he Director legal aid Private Bag 13370 Windhoek. You
can also do the statement on your own. You must keep in mind that a
statement can be used as evidence either in favour of your or against
you’ He testified ‘no, it was never explained’. It
may have been read but it has never come for me to understand. He
admitted in his testimony that it was read out, but not explained.



He testified that he was
taken to another office of Louw after he returned from Brunes’
office. When he entered the office, Louw stood up and took some
papers and told him that they should leave the office and they left
with a white bakkie at around 17h00 or 17h30. He was seated at the
back of the bakkie with two officers, Louw was the left passenger and
Unandapo was the driver.



They drove around at
Goreangab dam, but he did not point out anything. His rights were not
explained to him by Louw.



He testified that he was
again taken out for a pointing out on 5 January with Louw and
Unandapo as a driver. On 6 January Shaduka booked him out and took
him to the parking area where he found Unandapo, Louw and Nahambo.
Before they drove Frieda Kishi arrived there. She asked Shaduka what
he was doing with her client. She told Shaduka that she would hold
him responsible for this in court. They did not proceed with the
pointing out.



He testified that on 15
November 2006 Shaduka and Tjitemisa booked him out and told him to
raise N$15000 and to sign the pointing out notes in exchange for
bail. He was taken to the office of Louw to sign the pointing out
notes and he could see Shaduka and Tjitemisa standing at the door. He
never told anyone after 15 November 2006 that Shaduka and Tjitemisa
attempted to extort money from him or told him to sign the pointing
out in exchange for bail. He signed the document.



He confirmed his
signature on the document that was affixed on 15 November 2006.



The document was not read
back to him.



[25] Frieda Kishi



She testified that during
January 2006 she went to the police station to consult with accused
1. At the police station, she found accused 1 in the bakkie at a
parking lot. Accused 1 told her that he was arrested on certain
charges and that he did not have access to a lawyer or telephone as
his cellphone was taken. She spoke to Shaduka and told him that she
was acting for accused 1 and that should they proceed with the
pointing out she will hold him responsible in court. The pointing out
did not proceed.



[26] Testimony of
accused 2



He testified that on 4
January 2006 between 10h00 and 11h00 he received a phone call from
accused 1 who enquired about his whereabouts. He informed him that he
was in Rundu. Accused 1 again called him on 5 January 2006 at around
9h00.



Whilst he was still in
his bed after his wife had left the room, he felt someone fell on
him. He initially thought that it was his wife, but he then heard a
man’s voice. He asked him who it was and they started tussling
and they fell from the bed onto the floor. The man said he was police
officer. Another police officer came in and they overpowered him and
handcuffed him. His wife came out of the bath and asked them where
they were taking him. They did not answer and Scott slapped her
because she had earlier lied to them about his whereabouts. They took
him outside to the car. Inside the car he saw accused 1. He testified
that his rights were not explained to him. They flew to Windhoek and
from the airport they were taken straight to the magistrate’s
court.



After their appearance in
court they were taken to the offices of the serious crime unit. He
was separated from accused 1. In the office he was seated in a chair
with his hands handcuffed behind his back. Dax told him to speak the
truth and he asked what truth, he was kicked in the ribs and he fell
down. Scott stopped him. After the kick a machine was brought with a
black and white wires. He was threatened with the machine saying they
will electrocute him. Felix entered the office and asked him whether
he should get him a lawyer and he said yes.



From there he was taken
to Katutura police station to Oelefse. He testified that Oelofse
asked him whether he wanted a lawyer and he said ‘yes’.
He also informed Oelofse that he was assaulted but did not know who
assaulted him but it was a tall dark police officer. He testified
that Oelofse did not explain his rights to him.



The court then asked him:
‘it was put to you that Oelofse explained your rights to you
and your position is that you cannot remember that?



He replied, the reason
why I say I cannot remember is because I cannot quite remember if he
did not and it is because there is a lot of time that passed I cannot
quite remember what happened’. He also denied having given his
personal details to the police such as his name, address and
qualification. He also denied that he understood English.



The next day he was taken
from the cells to serious crime unit and the police started
interrogating him. He testified that Shaduka said that they should do
something to him. Shaduka went out and returned with a sack that
looks like a blanket. Like a maize meal bag. They handcuffed him the
‘kentucky’ style and placed the wet bag over his head.
They forced him to talk, but another police officer stopped them and
he was taken back.



On 7 January in the
morning he was taken again to the same office by Scott, Ndikoma and
Shaduka. He was seated on a chair and was handcuffed and Van Zyl
entered. He asked him who the police officers were who assaulted and
forced him, he told him that it was Scott and Shaduka. When Van Zyl
left, Shaduka and the others came back with the same sack placed it
over his head and was removed when he said he could not breathe. He
said that he would take them to the house. The sack was again put on
his head and they gave him a cloth and he wiped his head and face.
They handcuffed him and drove to the house. At the house he did not
point out anything but was told to point out the floor and pictures
were taken.



He told Van Zyl that he
wanted someone to represent him, but nowhere is that reflected in
exhibits A, B, C, D and E which show that his rights were explained.



[27] Reasons for
admitting confessions and pointing outs



Scott testified that he
explained accused 1 rights at the time when he arrested him at Spur.
That was confirmed by Tjitemisa who was with him. The accused also
testified that whilst in the car to the offices of serious crime
unit, he told his girlfriend that he needed a lawyer. That shows that
he was aware of his right to legal representation already at that
early stage. Scott again explained his rights to him at the offices
of serious crime unit, before he was interrogated. That was also
confirmed by Tjitemisa. The accused told him that he did not need a
lawyer at that stage as he did not kill anyone. Unandapo who knows
the accused from his childhood, told the court that he also explained
the accused rights including the right to legal representation. Brune
who took down the accused statement testified that he explained the
rights to accused 1 as per the pro forma form ‘Exhibit ‘CC’.
The form also states that ‘you can also do the statement on
your own.’ ‘You must keep in mind that the statement
can be used as evidence either in favour of you or against you’



What you do elect to
do now?



Accused 1 stated that ‘I
wish to make a statement ‘He was further asked ‘do you
understand the warning I have given you” and he said ‘yes’
and he was asked ‘Do you nevertheless wish to make statement?
He answered ‘yes’. Accused 1 testified that those rights
were not explained to him. He said it may have been read but he never
understood it. He testified ‘my lord what I say is that it may
have been read, but during that time I would have never understood
because the legal term that is being used. Court: ‘which legal
terms are you referring to here’?



Accused 1: ‘I am
talking about ‘practitioners and let say for instance the
statement that are being talked about in evidence can be used against
you or in your favour.



Accused 1 ‘my lord,
if that was so clear enough like the way I read it now here I think I
would have exercised my right there’.



Accused 1 further
testified ‘even though I also said to Mr Brune, I wanted a
lawyer. He never gave me an answer to that, whether I can get a
lawyer or not.



The Court then asked:
‘and then what did he say to that? My lord, he never answered
me. I cannot recall also what he said.’



The explanation of his
right to legal representation was clear. There was nothing ambiguous
about that explanation. He elected not to exercise his right and he
gave the statement. If he wanted a lawyer present when he gave the
confession he would have said no. During re-examination Brune
confirmed that the statement (exhibit CC) confession was completed in
the presence of accused 1 and that all the answers recorded in
exhibit ‘CC’ were given by accused 1. He also confirmed
that he would not have continued with the taking of the statement if
accused 1 elected to have lawyer. Accused 1 knew exactly what his
rights were from the time he was arrested until his trial. Accused 1
also informed Brune that he was not assaulted or threatened by any
person in order to influence him to make a statement. Nor did he
expect any benefit (s) from making the statement. He also told Brune
that the knowledge about which he wished to make a statement happened
to him personally.



Louw testified that when
accused 1 appeared before him on 4 January 2006 he was in his sound
and sober sense. He explained to the accused that he was not
compelled to point out the scene (s) and that what he may point out
will be noted down and may be used against him in his subsequent
trial. He was also informed about his right to legal representation
including legal aid. He told Louw that he did not need a member of
legal aid or any other legal practitioner at that stage, only later.
He was then asked whether he still wished to point out the scene or
points and he said ‘yes’. He told him that he was not
assaulted or threatened or influenced to point out the scene and he
was about to report the matter to the police. The pointing out notes
where only signed by accused 1 on 15 November 2006. He testified that
the reason why he signed the notes on 15 November is because Shaduka
and Tjitemisa told him to sign and to raise N$15000 for them in
exchanging for bail. He testified that his taxi driver was contacted
in order to give the money. The taxi driver was not called to
corroborate that story. He also did not tell anyone about the
attempted extortion and as counsel for the state put it ‘the
reason is simple, there was no such promise, otherwise the accused
would have complaint about it soon after he realised it’.



Scott testified that when
he arrested accused 2 in Rundu at his house, he explained his rights
to him. That was confirmed by Shaduka. When he was brought to
Windhoek to the offices of serious crime unit and before
interrogation, his rights were again explained to him. Oelofse
testified that he explained accused rights to him as per exhibit ‘d’
and after the statement was taken he read the statement back to the
accused and he affixed his signature on each and every page of the
statement. He informed Oelofse that he was not assaulted or
threatened by any person in order to influence him to make a
statement. Counsel for accused 2 put to Oelofse that the right to
apply for legal aid is not contained in the pro forma form and
therefore that part was not explained to accused 2, Oelofse answered
that it was correct and that he did not ask him whether he wanted a
lawyer or not as the pro forma only says ‘the deponent was
informed that he has the right to a legal representative’.
Although he was not asked whether he wanted a lawyer or not, he was
informed that he has a right to a legal representative. He was
further asked ‘do you understand the warning I gave you’
and he said ‘yes’. He was further asked ‘do you
nevertheless still wish to make a statement and he said ‘yes’



Counsel for accused 2
also put to Oelofse that after he informed the accused of his right
to legal representation, accused 2 informed him that he wanted to
appoint a lawyer Oelofse replied that he would have made notes if
that was the case.



Van Zyl testified that
accused 2 appeared before him on 7 January 2006 at 12:15 for purpose
of pointing out. He was in his sound and sober senses. He informed
him about his rights including the right to legal representation. He
told Van Zyl that he was forced to show the house, but he knew where
the house was. He explained that by force he meant that they asked
him. Counsel for accused 2 submitted that the accused did not
voluntarily point out the scene/points. From his testimony ‘force’
was a way of talking. Van Zyl did not force him to point out anything
and he did that out of his own volition.



I have closely observed
the accused persons when they testified before me and I must honestly
say that they did not make a good impression on me. Their answers
were vague, they contradicted each other, and they were evasive on
simple questions. The witnesses for the prosecution on the other hand
appeared to be credible witnesses. They are police officers of many
years of experience and the issue of explaining the rights of accused
persons/suspect has been inculcated in their minds over many years
when they testified about it in many court cases. I do not doubt
their testimony/evidence when they said that they explained it to the
accused. I am satisfied that the state proved beyond a reasonable
doubt that both accused made the confessions and point outs freely
and voluntarily, without being unduly influenced and their rights
were explained to them.



For all those reason I
ruled the confessions and point outs admissible.



[28] Derek Brune



He is a retired Chief
Inspector in the Namibia Police Force with 40 years’
experience. He was responsible for Departmental hearings in the force
and is an LLB degree holder.



Accused 1 was brought to
him for a statement. The statement was taken in English and at no
stage did it appear to him that there was
miscommunication/misunderstanding. They started with the statement at
15h55 and completed at 17h00. There was also no interruption. He
denied that accused ever told him that he was telling him what police
officers told him to narrate. After the statement was read back to
the accused they both signed the document.



EXHIBIT CC confession was
read into the record and the relevant parts state as follows:



On Monday 26th
December
2005, Mr. Ralph Kunhker phoned me at about 21h00. He called me over
to his house to discuss about the gentleman who was supposed to do
business with him.



This is confirmed by
exhibit T and V



I went to his
house at Windhoek West opposite Louis Botha shop. We had a drink and
waited for this guy to arrive called Jerry Ndjatu. Mr Kunhker made
several calls to this guy until he got hold of him to come to his
house………..”



This is confirmed by the
presence of the glasses at the lapa on which his thumbprint was
found. The calls made to accused 2 is also confirmed by Exhibit U”.



“…in fact
we picked him up close to the Polytechnic, near to One Africa
Television Company. After we picked him up, we went back to Mr.
Kunhkers’ house.



This is confirmed by
Exhibit T,U and V where the accused and deceased were in the same MTC
coverage area (Polytechnic 3)



Not very long,
then we started with the business Mr. Kunhker had black money, and
Mr. Ndajtu was supposed to launder it. Mr Kunhker took out a bucket
like a plate or bowl in the bowl, Mr. Ndjatu put some chemical in,
and some fake money into this container.”



This is confirmed by the
photo plan as well as the evidence of the police officer who arrived
on the scene a few days after the deceased was killed.



Suddenly Mr.
Ndjatu took a stone out of the bag he was carrying the size of a
brick he struck Mr. Kunhker from behind, on the back of the head.’



This is confirmed by the
presence of blood on Exhibit 1 (the half brick) that was found on the
floor in the kitchen.



Mr Kunhker fell down
he was bleeding very badly I was affected by the incident, because I
did not know what the guy had in mind to do. I saw that it was very
bad I am already in trouble, because I was hoping for a clear deal or
something. There was no other way out. I was already involved at that
moment. Mr Kunhker was my friend and boss as well. I had no other
choice but to help and get rid of the body he was bleeding very
badly, and I knew he would not make it. We took the body and loaded
it in Mr. Kunhker’s car we went to the Goreangab dam area. We
took the body out of the car, and set it on fire we took some fuel
from the car, poured it on the body and set it on fire.



we drove back
to Mr. Kunhker’s house. Mr. Ndjatu decided we must go back and
look for the money. Since the house was open, we went through all the
rooms, but could not find anything until we came across a huge guns
safe-we pulled it out from the wall we put it in Mr. Kunhker’s
car and drove to almost the same area at Goreagabdam, but at a
different location. We cut it with a cutting torch-we found 2 guns
inside we only found a bit of the money that was in a passport. We
had assumed there was 15000 euro, because most of the money was burnt
out in the process of opening the safe. We dumped the guns and safe
into the dam.



Each of us walked away
with 600 euros each. At that moment Mr. Ndjatu was very disappointed,
because he said from the last conversation he had with Mr. Kunhker
they were talking about 90 000 Euro. I didn’t know what to do,
because I did not understand why he hit Mr. Kunhker, and not
negotiate this business in another way. Mr Ndjatu said that what is
done is already done and that is it.



The next day
Mr. Ndjatu left to Rundu, and I went back home at the Polytechnic
flats. It was bothering me I could not sleep at all it was my first
time being involved in something like that. I told my girlfriend only
a bit of the story, but not everything, that we were involved in a
business, me and Mr. Ndjatu, and that things went wrong and that Mr
Ndjatu strike this gentleman. I didn’t mention this name, and
that this gentleman collapsed……”



Mr. Ndjatu called me
several times to find out how was the movement with the crime scene”



This is confirmed by
exhibit Exhibits T and U



I left
something out that is from when we dumped the guns and articles we
found inside the gun safe we drove Mr. Kunhker’s car to the
last end of Katutura, and then we left is there with the key inside
the car. We came back for the car, after 10-15 minutes, because we
left something in the car it was tommy bar we picked it up from the
car, and then we left again….”



That is confirmed by
witness Johannes Nawemab who found the white condor with the key in
the ignition.



Question: “when
you loaded the body in the car, was Mr. Kunhker still alive?



A: No he wasn’t
I could see the movement of his body was quiet.



Question: How many
times did Mr. Ndjatu strike Mr. Kunhker:



A: Only the one time,
at the back of the head I believe it is a bad spot



Questions: Is there
anything you still wish to tell me?



A: This thing was
eating me and I had to share it. Every time I think about it, I get
dizzy I can’t eat or sleep Mr. Kunhker was a close person to
me.”



[29] Chief
Inspector Marius Louw



He is in the service of
the Namibia Police for 28 year. He was approached by the late Chief
Inspector Sass to assist in a pointing out of accused 1.



Exhibit EE was completed
on 4 January 2006 at 17h40 to para 10 and the pointing out did not
proceed due to heavy rains and was postponed to 6 January 2005.



Accused only signed
exhibit EE on 15 November 2006, because he told Louw on 6 January
2006 that he first wanted to clear up a misunderstanding between him
and his lawyer. Accused was brought to him on 15 November 2006 and he
completed exhibit EE in the presence of accused 1 and showed him the
photo plan (Exhibit FF.) Exhibit EE was read back to him and they
both signed.



Exhibit EE notes
on the pointing out of scene(s) and point(s) they were read into the
record and they state as follows:



Para 7; “As you
are still prepared to continue with such pointing out, I would like
to know the source of your knowledge concerning that which you wish
to point out. His reply to this is: I was present when the incident
took place.



Para 9 “were you
in any way assaulted, threatened or influenced by any person to point
out the scene(s) and /or points. His answer was: I was about to
report the matter to the police I was not influenced.”



Accused I took him to the
deceased house at 131 Independence Avenue, the place at Goreangab dam
where the body was dumped, at another place at the dam where the safe
and rifles were dumped and Karasburg Street where the vehicle of the
deceased was abandoned.



He pointed out the
sleeping room of the deceased where they removed the blanket and the
place where they removed the safe.



Exhibit F-Bail
Application dated 18/05/2006



Ms Kishi “how many
days after his incident were you arrested? …lets us say 3 days



Ms Kishi: “Mr Da
costa, I want to ask you a question that the state will obviously ask
you. After the incident, why did you not report this incident to the
police immediately:…….I was in fear, in shock, I did
not know how to approach anybody, anybody to explain the incident,.
So I was already in fear, in shock, I did not know what to do.



And did you intend to
do something about it? …..of course, the day when I was
arrested, the morning, early in the morning, early in the morning I
was on my way to go and report this to the police because after,
after three days I had enough courage to go and tell the police about
what happened. But then unfortunately it is just that they caught me
before I arrived myself at the police.”



Accused. “So I
was all confused and still afraid, because for three days, I could
not sleep properly or concentrate.”



[30] Peter John
Oelofse



He was an Inspector in
the Namibian Police and attached to the Katutura CID when accused 2
was brought on 5 January 2006 to him to take down a statement and
resulted in Exhibit DD to be completed by him.



Exhibit DD was read into
the record and the relevant parts state as follows:



The story
started with Costa who called me”



I was in Rundu
at the time”



He told me that there
was a “Boer” what have (sic) black money. He told me that
“Boer” is looking for the chemical. I poured the chemical
in a bottle which I sealed. I used the cork of a champagne bottle to
seal the bottle.



I called Costa
and moved down to Windhoek”



On 13 December 2005
accused 1 called accused 2 at 12h03 and accused 2 called the deceased
for the first time at 15h15 and deceased called accused 2 at 12h16
and had a conversation that lasted 108 seconds.



That is confirmed Exhibit
HH



At 12 h30 accused 2
called accused 1, whilst still in Rundu



Exhibit HH



Accused 2 arrived in
Windhoek between 14-15 December 2005.



Exhibit HH



I made contact
with Costa about a month ago in November 2005. I slept a Costa’s
house since I do not know people in Windhoek.”



This is confirmed by
Exhibit HH by looking at the radio tower, Polytechnic 1.



Exhibit HH



We met the “Boer’’
the following day at about 14H00 at the “Boers” house.



This is also confirmed in
Exhibit HH. At 14h26 on the 15th at least accused 2 was in
the vicinity of Louis Botha which is opposite deceased house, because
the tower was Polytech 3.



Exhibit HH



On arrival the boer
asked Costa whether I have brought the stuff. Costa replied yes on
which I took out the bottle. The boer asked me whether I could wash
the money. I explained to him that they to do it themselves. I
replied that I am just in need of the money for the bottle. He asked
me the amount and I informed him I want U$15000. We however
discussions and I came down to U$10 000. The boer however handed me
7500 Euro’. The Boer then said he would store the bottle in the
fridge. The boer then asked costa to take me half way. We went to
Wernhill of Mutual Platz close to Wernhill.



On the 16th
at 16h02 at least accused 2 must have been in the vicinity of
Mutaul Platz close to Wernhill.



Exhibit HH



I received a
call from Costa and the Boer requesting me to come back in order to
wash the money. I told them that I was busy and that I would come
later. I again received a call from Costa stating he is afraid as he
is being followed by the Boer.








He said the Boer is
demanding his money, and that he wants Costa to pay back the amount
of N$80 000. Costa send (sic) me an SMS with number of the Boer
cellphone number. I called the Boer. He requests me to get on a taxi.
I refused and said that Costa should be there as well. Costa called
me the Monday after Christmas and said we must go to Windhoek.”



Exhibit T, U and V



We arrived in Windhoek
and about 17h30, from Rundu in the same car. This is confirmed by
Exhibit T and U. It is clear on the printout that both accused left
Rundu and arrived in Windhoek on the 26th of December.



I walked to Costa’s
flat. We had discussions. Costa told me he is afraid of going back to
the Boer since he was demanding money from him which they lost long
time back..



This is confirmed by
Exhibit T and U where both accused were in the vicinity of the flat
of accused l (Polytechnic 1 and 2).



Costa then
suggested that we must kill the Boer. I explained no it will not
help. I then left Costa’s place. At about 22.00 to 23.00Costa
called me and said that I must take a stone along and that he, Costa
will hit the Boer”



Accused 1 confirmed that
accused 2 took out a stone from the bag to hit the deceased.



Exhibit CC



We arrived at
the Boers place after they picked me up nearby Costa’s
place…….”



This is confirmed by
accused 1 in exhibit CC that they picked up accused 2 near One Africa
Television, close to Polytechnic.



The Boer at
same stage were (sic) behind me in the kitchen. I thought he would
hurt me, and I turned around and hit him with my fist next to this
right eye, on which he feel down.”



Accused 2 admits at least
hitting him with a fist.



Costa then put his
foot on his throat, his knee. He took the stone from the bag and hit
him on the left side of the head. I realize he is still alive and hit
him two times on his head.



Costa then got
a blanket and we loaded him in the back of the Venture/Condor”.



This is confirmed by
accused 1 in Exhibit EE and accused 2 in exhibit MM



Costa drove the
vehicle, into the bushes somewhere. We off loaded the Boer and Costa
said we must get petrol. We bought petrol and returned to the place
where we dragged the body. Costa then poured the petrol on the body,
and put it alight….”



We then went back to
the Boer house. We collected the safe. We took the safe to a place
where we cut it. I do not know where he got the cutting torch. We
found ammunition and two rifles inside. There was also money in a
holder; he gave me seven hundred Euro. We took the rifles and
ammunition to the vehicle from there we drove to a river where we
dumped the rifles and ammunition.



This is confirmed by
accused 1 in that they returned to the house of the deceased. They
removed the safe and used a cutting torch to cut it. They shared the
money (Euros) they found in the safe and threw the rifles and the
safe in the dam.



[31] Dr Vasin



He was called to testify
about his own interpretation of the post mortem report done on the
deceased by Dr Gonzales, who has since returned to Cuba. He testified
that the cause of death was a skull fracture with subdual haematoma
and that was most likely caused by blunt force applied to the head.



DEFENCE’ CASE



[32] Accused 1



Accused 1 elected to
remain silent. Did not call witnesses



[33] Accused 2



Josef Wasuka



He knows accused 1since
2003 He was arrested in Rundu on 5 January 2006 after accused 1
called him at around 09h00 enquiring about his whereabouts. He was in
bed and was asleep when he felt someone fell on him.



He denied having been
hiding in the wardrobe as it was too small. They flew back to
Windhoek. They were taken to the magistrate’s court.



When they returned from
court they were taken in different cars to the offices of the police.
He was interrogated and tortured and taken to a white man. He denied
signing any statement made to any police officer. Although he told
Van zyl that he only met accused 1 in November in 2005, he insisted
that it was from 2003.



He knew the deceased
although they were not close friends. The reason why he had frequent
telephonic contact with the accused 1 on 13 December 2005 onwards was
because accused I wanted to by a BMW from him.



When he came to Windhoek
on 15 December 2005 he cannot recall the name of the suburb he stayed
in. He was unable to say whether it was in town or elsewhere. As he
goes on he remembers the name of the place where he stayed as Formula
1.



He met the deceased in
2004 when he went to Rundu and used to meet with the deceased after
that, but not at his house. Deceased was introduced to him by accused
1.



The telephonic contact
between him and the deceased also increased specifically on the 26th
of December 2005, the day he was murdered. He had dealings with the
deceased about clearing of land in Rundu.



He could also recall the
conversation with accused that was also very frequent (6 times also
on the 26th. Their conversation was about a braai.



On the 27th he
called accused 19times. The reason for those frequent calls was about
girls that accused 1 at times wanted to speak to and sometimes the
girls used his phones to talk to accused 1. As early as 05h36 the day
after the deceased was killed did he contact accused 1.



He testified that Oelofse
was the author of the confession.



When questioned by the
court he informed the court that some contents in the confession he
was coached to say but some Oelefse wrote himself.



He denied being in the
company of deceased and accused 1 on the 26th in the
vicinity of the deceased house. He claimed to be in the company of a
certain Samantha, unknown to him, at Wernhill. He picked her up at
Kalahari Sands Hotel and had sex with her at the carwash. After that
he went to Katutura to a friend’s house, from there he and the
friends where barhopping in the festive spint of that time of the
year, before he went home.



[34] Sabina Marunga



She is the wife of the
accused and could only testify about the day the accused 2 was
arrested. Her testimony about the police offices breaking and
entering their house was never put to Scott, neither Shaduka. She
testified that accused 2 did not buy anything as he claimed. He
testified that he bought clothes for the kids and DSTV, but late
changed his version and bought one set of television.



[35] The law



The state alleges that
both accused acted with common purpose when they committed the
crimes.



The doctrine of common
purpose



The learned author
Snyman: Criminal Law 4ed (2002) at 261 defines the doctrine as
follows: ‘the essence of the doctorine is that if two or more
people, having a common purpose to commit a crime, act together in
order to achieve that purpose, the conduct of each of them in the
execution of that purpose is imputed to the others’



Ms Wanternaar referred
this court to various cases dealing with that doctrine of common
purpose.



See: Elifas Gurirab
and others V the State,
Case no SA 12/2002 an unreported judgment
of the Supreme Court of Namibia delivered on 07/02/2008 by Maritz JA
at p 11



In S v Mgedezi and
others 1989(1) SA 687 (A). It was there laid down that in cases where
it was also not shown that the accused contributed casually to the
wounding or death of the deceased, and the accused can still be held
liable on the basis of the decision in Safatsa if the
following prerequisites are proved, namely:




  1. the accused must have
    been present at the scene where the violence was committed;



  2. he must have been aware
    of the assault being perpetrated;



  3. he must have intended to
    make common cause with those who were actually perpetrating the
    assault;



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



  5. he must have had the
    requisite mens rea; so in respect of killing of the deceased,
    he must have intended them to be killed and performed his own act of
    association with recklessness as to whether or not death was not
    ensue”.




She also submitted that
what is similarly important for the court to take into account in
determining whether accused acted with common purpose, is what did
each accused do after they killed the deceased persons. In S v
Shikunga
and another 1997 NR 156 (SC) the court held at 180:



Further, having
regard to the first accused’s knowledge of the weapon being
used and the ferocity of the attack the only reasonable inference to
be drawn is that he must have realised that there was a possibility
of the deceased losing his life as a result of the attack. And that
inference is reinforced by his behavior after the event. Evidence of
behavior after an event can, of course, serve as an indication as to
state of mind at the time of the event. S v Majosi and Others 1
991
(2) SACR 532 (A) at 538b-c
.
Far from distancing himself from his co-accused after the
cold-blooded killing of the deceased, the first accused remained a
willing participant in their joint venture to rob him. That, in
itself, tends to show that he was an active and a willing participant
in what had taken place immediately before. His conduct, taken
together with his state of mind at the time, made him part to the
commission of the murder of the deceased and that, in my judgment, is
the verdict which the Court a quo should have reached. The benefit of
doubt which the Court a qou generously gave to the first accused was
not, on a proper analysis, based upon a reasonable and solid
evidential foundation.’’



Applying the above stated
principles to this case, the following emerge:



(a) both accused were
present at the scene where the deceased was struck with the brick on
his head;



(b) accused 1 was aware
of the assault being perpetrated on the deceased, by accused 2



( c) accused 1 did not
distance himself from the scene when accused 2 hit the deceased with
his fist and thereafter with the stone



(d) they assisted each
other to load the body of the deceased in the vehicle of the
deceased.



(e) they drove to
Goreangab dam with the intention of getting rid of the body,



(f) they set the body on
fire and then together returned to the house of the deceased.
Throughout they remained willing participants in their joint venture
to rob the deceased. They divided the money they found in the safe
and only then parted ways.








Mr Nambahu submitted that
‘the state did not prove that Accused no 1 entered into an
agreement with his co-accused person to commit an offence or was at
the scene of the crime on the day the offences were committed. There
is no evidence whatsoever of this nature presented by the State.
There is no evidence that accused no 1 causally contributed to the
injuries or death of the deceased. There was no evidence presented
before the honourable Court the Accused no 1 had acted in such a
manner. I completely disagree with Mr Nambahu on that aspect. The
confession accused 1 made clearly places him at the scene of crime.
He took part in the commission of the crimes. He assisted in the
loading of the body. They set the body on fire. Then there was also
evidence that the deceased was going to be hit with a brick and had
to be killed. So in my respectful view he actively took part in the
commission of those crimes








[36] Accused 1
failure to testify








In S v Katari 2006
(1) NR 210 at C where the court quoted as per Maritz J (as he then
was) what was said in Osman and another v Attorney-General,
Transvaal 1998 (4) SA 1224 (CC) SACR at 493 at 501b-d that:



Our legal
system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that absent any rebuttal, the prosecution’s case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial system of criminal
justice.”



He cited the
remarks made by Naidu AJ in S v Sidziya and Others 1995 (12) BCLR
(TK) at 16481-1649B with approval:



The right ………means
no more than an accused person has the right of election whether or
not to say anything during the plea proceedings or during the stage
when he may testify in his defence. The exercise of this right like
the exercise of any other must involve the appreciation of the risks
which may confront any person who has to make an election. In as much
as skillful cross-examination could present obvious dangers to an
accused should he elect to testify, there is no sound basis for
reasoning that, if he elects to remain silent, no inference can be
drawn against him.



When the state
has established a prima facie case against an accused which remains
uncontradicted, the court may unless the accused’s silence is
reasonable explicable on other grounds, in appropriate circumstances
conclude that the prima facie evidence has become conclusive of his
or her guilt.”



In this case the state
clearly established a strong case against the accused. He confessed
to his involvement in the commission of the crimes. In my view
sufficient evidence has been adduced by the state to prove the
elements of the crimes.



[37] Equally in my
respectful view the State also proved the guilty of Accused no. 2.
His confession in this matter which was admitted into evidence
clearly places him on the place or the scene of crime. He admitted
that he was involved in the commission of the crimes.



His alibi that he was not
at the house of the deceased on the 26th December 2005, is
clearly false. Having regard to the totality of the evidence, the
confessions, the pointing outs I am satisfied that the prosecution
proved the guilty of the Accused persons beyond a reasonable doubt.



In the results,



The accused are convicted
as charged. On the count of murder the accused are convicted of
murder with dolus directus.























_______________________



G N NDAUENDAPO



JUDGE



APPEARANCES


















THE STATE: Ms
Wanternaar



OF THE PROSECUTOR
GENERAL OFFICE













1ST
ACCUSED: Mr Nambahu



OF NAMBAHU &
UANIVI ATTORNEYS








2ND
ACCUSED: Mr Christiaan



OF CHRISTIAAN AND
ASSOCIATES