Court name
High Court Main Division
Case name
Kamwi and Others v S
Media neutral citation
[2013] NAHCMD 286
Judge
Hoff J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CC 32/2001








In the matter between:








THE STATE



and



CALVIN LISELI MALUMO &
OTHERS













IN RE: IN THE
APPLICATION BETWEEN
(NOTICE OF APPLICATION TO RECALL)








JOSEPH KAMWI KAMWI
.........................................(Accused
No. 3) 4TH APPLICANT



HERBERT MBOOZI
MUTAHANE .............................(Accused
No. 5) 5TH APPLICANT



CHRIS PUISANO NTABA
..........................................(Accused
No. 7 6TH APPLICANT



MUSHE ROSTER LUKATO
....................................
(Accused No. 18) 7TH
APPLICANT



POSTRICK MOWA MWINGA
.................................(Accused
No. 23) 8TH APPLICANT



NDALA SAVIOUR TUTALIFE
................................(Accused
No. 24) 9TH APPLICANT



BRITAN SIMISHO LIELEZO
.................................(Accused
No. 31) 10TH APPLICNAT



JOHN M PANSE LUBILO
.....................................(Accused
No. 50) 11TH APPLICANT



REX LUMPONJANI KAPANGA
...........................(Accused No.
63) 12TH APPLICANT



BRENDAN LUYANDA
LUYANDA ......................(Accused
No. 120) 13TH APPLICANT



DAVIS CHIOMA MAZYIU
.....................................(Accused
No. 16) 14TH APPLICANT



FRANS MUHUPULO
...........................................(Accused
No. 122) 15TH APPLICANT



and








THE STATE, represented
by



THE PROSECUTOR
-GENERAL
............................................................RESPONDENT








Neutral citation:
Kamwi v The State (CC 32/2001) [2013] NAHCMD 286 (16
October 2013)








Coram: HOFF J



Heard: 07
October 2013; 09 October 2013; 14 October 2013



Delivered: 16 October
2013













Summary: Where an
accused person is absent without leave of the court, the court may
order that the proceedings continue in his or her absence –
Where such accused person again attends the proceedings he or she has
a discretion whether or not to examine any witness who testified
during the absence of such accused.








Where such accused again
attends the proceedings, the proceedings against such accused shall
continue from the stage at which such accused person became absent.








The accused person may
examine any witness and a court shall postpone the proceedings until
the evidence, if any, on behalf of that accused has been led even
where there was an extreme lack of co-operation in attending court
proceedings by such accused person.








The provision (s 160(1) )
that any witness who had testified in the absence of such accused may
be examined cannot be interpreted to mean that all witnesses
may be examined.








Witnesses who gave
relevant evidence ie who had implicated an accused or a witness from
whom favourable evidence may be elicited, may be examined.










ORDER





This court will thus
allow those state witnesses who had testified in the absence of the
applicants to be so examined and on the terms indicated hereinbefore.















JUDGMENT










HOFF J:








[1] This is an
application to recall 15 state witnesses who had already testified
during this trial. Ms Agenbach instructed by the Directorate of Legal
Aid appears on behalf of 15 accused persons. At this stage the
State’s case is closed and the defence case in respect of all
the other accused persons except those represented by Ms Agenbach had
also been closed.








[2] This application is
opposed by the State. The application to recall state witnesses
identified 15 persons, the majority of whom are or were members of
the Namibian Police Force and members of the Namibian Defence Force.
One of these persons is deceased.








[3] In a document with
the heading ‘Notice of application to recall’, it was
mentioned that ‘the main grounds on which the application for
the recall of each and everyone of the witnesses referred to
hereinbefore, are based, as to be amplified during the argument to be
presented are inter alia the following:








3.
To deal with the material witnesses, as already alluded to
hereinbefore, with the merits of the case which includes, but is not
limited to inter alia the following aspects, which are germane to the
charges preferred against the applicants, to wit:








3.1.
the alleged sovereignty of the State, and/or the alleged sovereignty
of the Government of the Republic of Namibia in respect of the
territory known as the East Caprivi Zipfel;








3.2.
the treaties and covenants applicable to the Republic of Namibia, as
well as the territory known as the East Caprivi Zipfel;








3.3.
the doctrine of common purpose as alleged against all the applicants
which specifically includes, but is not limited to the knowledge of
the relevant state witnesses of the specific applicant’s
whereabouts when the alleged heinous crimes were committed, their
alleged involvement in same, as well as applicant’s conduct at
all relevant times material to the charges preferred;








3.4.
the existence of the Tripartite Communique dated 25 May 1999, between
the Government of the Republic of Namibia, the Government of the
Republic of Botswana and the UNHCR, as well as the Tripartite
Agreement, subsequently entered into between the parties, as well as
the terms thereof, a copy of the letter, which annexed hereto, marked
annexure “A”;








3.5.
the knowledge of the relevant witnesses as to the existence of the
Tripartite agreement, the terms and conditions thereof, as well as
why same was not adhere to in the present prosecution;








3.6.
to establish, during the cross-examination of the relevant witnesses,
the existence or not of the defence of criminal estoppel of which the
applicants intend to rely;



3.7.
to establish the existence of a torture docket, the contents thereof,
as well as the versions of the applicants as contained in the torture
docket;








3.8.
the nature and extent of human right abuses perpetrated against the
applicants which also infringed with the applicant’s right to a
fair trial as envisaged in terms of article 12 of the Namibian
Constitution.








TAKE
FURTHER NOTICE THAT
an and all of the applicants’ rights
are strictly reserved in the interest of justice and fairness to all
and the pursuance of a fair trial to recall further witnesses who may
be identified during cross-examination of the witnesses mentioned
hereinbefore.








And,
in general, to establish that the State has no case against the
applicants and more expressly to enable the applicants to put their
version which has until date, for whatever reason, not been put to
the relevant important state witnesses to enable the state witnesses
to deal therewith.’



[4] This court was at
that stage informed that the application is brought in terms of s 167
of Act 51 of 1977 which provides as follows:








The
court may at any stage of criminal proceedings examine any person,
other than an accused, who has been subpoenaed to attend such
proceedings or who is in attendance at such proceedings, and may
recall and re-examine any person, including an accused, already
examined at the proceedings, and the court shall examine, or recall
and re-examine, the person if his evidence appears to the court
essential to the just decision of the case.’








[5] Section 167 must be
considered in conjunction with s 186 which reads as follows:








The
court may at any stage of criminal proceedings subpoena or cause to
be subpoenaed any person as a witness at such proceedings, and the
court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such a witness appears to the court
essential to the just decision of the case.’








[6]
O’Linn J in
S v van den Berg
1996 (1) SACR 19 (Nm) in discussing the provisions of ss
167 and 186 refers with approval at 68 to the case of R v Omar 1935
AD where Wessels CJ stated the following:








If
at any stage of the case the Judge thinks a witness ought to be
called he may use his discretion to call a witness to give evidence,
but when it appears that evidence is essential to the proper decision
of the case then the Judge has no discretion – he must call the
witness.’








[7]
O’Linn J stated at p 70i-j that ‘the sections provide for
a broad judicial discretion in the first instance, but in the second
instance, ie when the evidence to be elicited
appears
to the Court essential
to a just decision in
the case, the examination or questioning by the court is
mandatory.








and continued at p 71a-b
as follows:








When
a presiding officer complies with his or her duties under s 167,
whether or not it is a witness called by the court in terms of s 186,
such presiding officer must be of necessity put the questions.
Further examination and/or cross-examination depends on the
cross-examination, depends on the discretion of the presiding
officer, which such officer must obviously exercise in a judicial
manner.’








[8]
This last quotation, in my view, means that, in the first instance,
it is the
court which
must question a witness who has been recalled, and secondly, the
prosecutor and accused (or his or her legal representative) may
thereafter put questions to the witness arising from the questioning
by the court.



(See
S v Mseleku and Others 2006
(2) SACR 237 NPD at 241f-g).








[9]
In
Rex v Kirsten 1950
(3) SA 659 (CPD) Ogilvie Thompson J stated the following regarding
the recalling of a witness at 664F-G:








Normally
the Court acts under this section
mero
motu
:
but in practice it from time to time occurs that the suggestion that
the section should be invoked is made either by the Crown or by the
defence. When such a suggestion is made, the Court will, before
exercising its powers under sec 247, no doubt ordinarily require to
have some indication of the general nature of the evidence to be
given by the proposed further witness; . . .’








[10] A court may refuse
to recall a witness where the request made is made ‘frivolously
or as part of deliberate delaying tactic’ (S v Kondile
1974 (3) SA 774 (TK) at 775), however a court’s discretion is
not confined to such instances but may refuse such an application in
order ‘to exclude irrelevancies and discourage repetition’.
(S v M 1976 (4) SA 8 TPD at p 11 A). (See also S v Kakalolo
2006 (1) NR 266 at 272).








[11] The purpose of a
court’s examination should be to elucidate any points that may
still be obscure after examination by the parties. (See Mseleku
(supra) at para [12].








[12] This court has
requested both Mr January, who appears on behalf of the State and Ms
Agenbach for the applicants to consider the provisions of s 160 of
the Criminal Procedure Act, 51 of 1977, and to address this court on
the provisions of that section. It must be stated that s 160 must be
read together with s 159.








[13] All the accused
including the applicants were legally represented when this trial
commenced on March 2004 when the accused were asked to plead to the
charges. Thirteen accused persons pleaded that in terms of the
provisions of s 106(1)(f) of Act 51 of 1977 this court lacks
the jurisdiction to try them. This court ruled in their favour and
ordered their release on the basis that they had been arrested in
neighbouring countries and brought back to Namibia by unlawful means.
In a subsequent appeal judgment the Supreme Court overturned this
court’s finding. (S v Mushwena and Others 2004 NR 276
(SC) ).








[14] These thirteen
accused persons were not satisfied with the ruling of the Supreme
Court and indicated that they wished to persist with the jurisdiction
challenge. Counsel appearing on behalf of these accused persons
withdrew in the face of their persistence with the jurisdiction
challenge. These thirteen accused persons indicated to this court
that they would absent themselves from the proceedings until such
time that they have been provided with a legal representative who was
willing to represent them on the jurisdiction issue. This court when
the accused persons were in attendance explained to them in detail
their right to cross-examination as well as the purpose thereof.








[15] On 15 February 2004
accused no. 71, Mr Martin Tubaundule, with reference to three
previous letters written to this court, requested to be excused from
the proceedings. This court did not excuse the accused but emphasised
the importance of the presence of an accused person during criminal
proceedings and explained the consequence of their absence from the
trial.








[16] At some stage the
accused were informed that the Directorate of Legal Aid refused to
appoint a legal practitioner to pursue the jurisdiction issue. Some
of the accused persons indicated that they would not attend the
proceedings in future.








[17] On 17 May 2005 the
legal representatives of 15 more accused persons withdrew since those
accused persons also wished to pursue the jurisdiction issue. All
these undefended accused persons remained in attendance of the court
proceedings except when the court excused some of them on request and
for valid reasons.








[18] On 6 March 2007,
accused no. 11, Mr Aggrey Makendano purporting to speak on behalf of
all the undefended accused persons brought another jurisdiction
application. The State opposed this application. This application
related to the issue of territorial jurisdiction in which Mr
Makendano submitted the Caprivi region does not form part of the
national territory of the Republic of Namibia as identified in
Article 1(4) of the Namibian Constitution and called upon the State
to prove otherwise. At that stage ninety-one state witnesses had
already testified on the merits of the charges against the accused
persons.








[19] This court dismissed
that application on the basis that a plea that a court lacks
jurisdiction to hear a case must be pleaded at the commencement of
the trial, or not at all.








[20] Soon after the
ruling on 8 March 2007 all the undefended accused persons walked out
of the court and did not return. The court directed that the case
proceed in their absence. On 12 March 2007 the undefended accused
persons were brought to court where this court again explained to
them that the proceedings must take place in their presence, it was
explained to them when proceedings may take place in their absence,
and the purpose why it is important that they should be present was
also explained.








[21] The undefended
accused persons informed this court that they are not part of the
trial, that they would not cross-examine state witnesses and
threatened to disrupt the proceedings should they be forced to sit in
court.








[22] On 13 March 2007 the
undefended accused persons were at court where it was again explained
to them the consequences of their continued absence.








[23] On 8 October 2007
the undefended accused persons were requisitioned but walked out of
court during the proceedings. On 10 October 2007 the undefended
accused persons were again brought to court but started singing to
such an extent that the proceedings could not continue. This court
ordered that the proceedings should in terms of s 159(1) of Act 51 of
1977 proceed in the absence of the accused persons.








[24] I now need to
consider the provisions of s 159 and 160 but before doing that the
provisions of ss 157 and 158 should be referred to. Section 158
provides as follows:



Except
as otherwise expressly provided by this Act or any other law, all
criminal proceedings in any court shall take place in the presence of
the accused.’








[25]
It is trite law that this section is peremptory and cannot be waived
by an accused person or his or her legal representative. (See
S
v Roman and Others
1994 SACR 436 (A).








[26] Section 157(2)
provides that where ‘two or more persons are charged jointly,
whether with the same offence or with difference offences, the court
may at any time during the trial, upon application of the prosecutor
or any of the accused, direct that the trial of any one or more of
the accused shall be held separately from the trial of the other
accused, and the court may abstain from giving judgment in respect of
any such accused’.








[27] The reference to s
157(2) will become clear later during this judgment however what
needs to be mentioned at this stage is that a court has a discretion
to grant or to refuse a separation of trials as it is generally
desirable that persons jointly charged with the same offence should
be tried together and that a multiplicity of proceedings should as
far as possible be avoided. The primary consideration whether to
grant or to refuse an application for separation of trials is whether
the applicant will suffer prejudice if a joint trial takes place.
This in turn is set off by the court against prejudice to the other
party or parties if the application is allowed.








[28] I shall now return
to the provisions of ss 159 and 160. Section 159 reads as follows:








Circumstances
in which criminal proceedings may take place in absence of accused.



(1)
If an accused at criminal proceedings conducts himself in a manner
which makes the continuance of the proceedings in his presence
impracticable, the court may direct that he be removed and that the
proceedings continue in the absence.








(2)
If two or more accused appear jointly at criminal proceedings and-









  1. the
    court is at any time after the commencement of the proceedings
    satisfied, upon application made to it by any accused in person of
    by his representative-










  1. that
    the physical condition of that accused is such that he is unable to
    attend the proceedings or that it is undesirable that he should
    attend the proceedings; or










  1. that
    circumstances relating to the illness or death of a member of the
    family of that accused make his absence from the proceedings
    necessary; or










  1. any
    of the accused is absent from the proceedings, whether under the
    provisions of subsection (1) or without leave of the court, the
    court, if it is of the opinion that the proceedings cannot be
    postponed without undue prejudice, embarrassment or inconvenience to
    the prosecution of any co-accused or any witness in attendance or
    subpoenaed to attend, may-









(aa)
in the case of paragraph (a), authorize the absence of the accused
concerned from the proceedings for a period determined by the court
and on the conditions which the court may deem fir to impose; and








(bb)
direct that the proceedings be proceeded with in the absence of the
accused concerned.








(3)
Where an accused becomes absent from the proceedings in the
circumstances referred to in subsection (2), the court may, in lieu
of directing that the proceedings be proceeded with in the absence of
the accused concerned, upon the application of the prosecution direct
that the proceedings in respect of the absent accused be separated
from the proceedings in respect of the accused who are present, and
thereafter, when such accused is again in attendance, the proceedings
against him shall continue from the stage at which he became absent,
and the court shall not be required to be differently constituted
merely by reason of such separation.’








[29] It must be mentioned
that the State never applied in terms of s 159(3) for a separation of
proceedings.








[30] Three exceptions to
the general rule (s 158) that criminal proceedings may only take
place in the presence of accused persons are provided for in this
section.



Firstly, where the court
orders that an accused be removed where he or she conducts himself or
herself in a manner which makes the continuance of the proceedings in
his or her presence impracticable; secondly, where an accused makes
application to be excused from the proceedings and where such
application is granted, and thirdly, where the accused is absent
without leave of the court.








[31] The power of the
court to order that proceedings continue in the absence of an accused
is a discretionary one and which will only be used in situations
where there is an extreme lack of co-operation on the part of an
accused person.








[32] Section 159
stipulates those instances where a court may continue the proceedings
in the absence of an accused and s 160 provides certain rights of an
accused once such an accused is present in court and provides how
proceedings are to be conducted upon the return of such an accused
person.








[33] Section 160 provides
as follows:








Procedure
at criminal proceedings where accused is absent.-








(1)
If an accused referred to in section 159 (1) and (2) again attends
the proceedings in question, he may, unless he was legally
represented during his absence, examine any witness who testified
during his absence, and in inspect the record of the proceedings or
require the court to have such record read over to him.








(2)
If the examination of a witness under subsection (1) take place after
the evidence on behalf of the prosecution or any co-accused has been
concluded, the prosecution or such co-accused may in respect of any
issue raised by the examination, lead evidence in rebuttal of
evidence relating to the issue so raised.








(3)
(a) When the evidence on behalf of all the accused, other than an
accused



who
is absent from the proceedings, is concluded, the court shall,
subject to the provisions of paragraph (b), postpone the proceedings
until such absent accused is in attendance and, if necessary, further
postpone the proceedings until the evidence, if any, on behalf of
that accused has been led.









  1. If
    it appears to the court that the presence of an absent accused
    cannot reasonably be obtained, the court may direct that the
    proceedings in respect of the accused who are present be concluded
    as if such proceeding had been separated from the proceedings at the
    stage at which the accused concerned became absent from the
    proceedings, and when such absent accused is again in attendance,
    the proceedings against him shall continue from the stage at which
    he became absent, and the court shall not be required to be
    differently constituted merely by reason of such separation.










  1. When,
    in the case of trial, the evidence on behalf of all the accused has
    been concluded and any accused is absent when the verdict is to be
    delivered, the verdict may be delivered in respect of all the
    accused or be withheld until all the accused are present or be
    delivered in respect of any accused present and withheld in respect
    of the absent accused until he is again in attendance.’









[34] Mr January, on
behalf of the State, submitted that in terms of s 160(1) the
previously unrepresented accused persons had the right of election ie
they had a discretion to examine witnesses who testified during their
absence. This certainly is so if one has regard to the word may
used in that subsection.








[35] My understanding of
the submissions by Mr January is that since the accused persons had
elected not to cross-examine state witnesses when given the
opportunity to do so and had absented themselves without leave of
this court they had in essence already exercised the discretion
referred to in s 160(1) and that a stage has now been reached where
the applicants in terms of the provisions of s 160(3)(a) need
to lead evidence by testifying themselves and/or call witnesses on
their behalf.








[36] Mr January further
submitted that the provisions of s 160(3)(b) are not
applicable since that subsection governs a situation where there is a
separation of proceedings because of the continuous absence of the
accused without leave of the court.








[37] Ms Agenbach who in
her address emphasised the importance of cross-examination and the
right to a fair trial submitted that the provisions of s 160(3)(b)
are indeed applicable in the present circumstances and submitted that
in order not to delay the finalisation of this trial in respect of
those accused persons not represented by herself this court should
finalise the trial in respect of those accused and after such
finalisation continue with the trial against her clients.



[38] I find it difficult,
in the circumstances of this case to accept, in spite of explanation
by this court of the importance of cross-examination and the
importance of being present during the proceedings as well as the
view expressed by the accused persons (who are lay persons) that they
did not regard themselves as part of this trial at that stage, that
the accused should be denied the right to cross-examine witnesses who
had testified in their absence.








[39] The accused persons
all face serious charges of high treason, sedition, public violence,
murder, attempted murder, amongst others, in circumstances where the
State relies on the doctrine of common purpose and on conspiracy to
commit these offences. An accused person who is unassisted simply do
not have the necessary legal knowledge and court experience to
conduct effective cross-examination since such accused person does
not know how to cross-examine, how to argue, which evidence is
admissible and which not, which factors are important and which not,
and does not know how to present evidence. (See S v Tyebela
1989 92) SA 22 (A) 31I-32A).








[40] The purpose of
cross-examination is to test the veracity of the testimony of a
witness and to elicit evidence favourable to the cross-examiner or
favourable to the client of the cross-examiner and plays an
indispensible role in both criminal and civil proceedings.
Cross-examination has been described as an important tool to discover
the truth and it is therefore grossly irregular not to allow
cross-examination.








[41] In S v Cele
1965 (1) SA 82 (A) at 91C-D Williamson JA refers with approval to
Wigmore on the subject of cross-examination in his work on Evidence
(Vol. v para 1367) said the following:








the
belief that no safeguard for testing the value of human statements is
comparable to that furnished by cross-examination, and the conviction
that no statement (unless by special exception) should be used as
testimony until it has been probed and sublimated by that test, has
found increasing strength in lengthening experience. Not even the
abuses, the mishandlings and the puerilities which are so often found
associated with cross-examination have availed to nullify its value.’








[42] Cross-examination is
a vital component of a fair trial guaranteed by Article 12 of the
Namibian Constitution.



[43]
Mr January in his submission that s 160(3)
(b)
is not applicable in the circumstances argued that the
words: ‘conclusion of proceedings’ as used in that
subsection in the normal course of events refer to the stage where
there is a conviction and a sentence.








[44]
The word ‘conclusion’ means
inter
alia
, according to the New Shorter Oxford
English Dictionary, to ‘bring to a close or end’ or to
‘wind up’.








[45]
If one has regard to the fact that the word ‘concluded’
is not only used in s 160(3)
(b),
but also in s 160(2) as well as in s 160(3)(a)
it may also refer, in my view, to circumstances as the
present, where the proceedings are still ongoing, ie where there was
no conviction or acquittal.








[46] In terms of the s
160(1)(a) the court ‘shall’ postpone the
proceedings until the evidence, if any on behalf of an accused has
been led. The word ‘shall’ is normally indicative
that the legislator intended a peremptory provision. It appears to me
in this regard that this court’s discretion has been curtailed.
Similarly, the provisions of s 160(3)(b) provide that the
proceedings against an accused ‘shall’ continue
from the stage at which he became absent, and the court ‘shall’
not be required to be differently constituted.








[47] Regarding the
submission by Ms Agenbach that this court should first finalise the
trial against the other accused persons who had already closed their
respective cases and thereafter to proceed with the trial against her
clients, I cannot agree to, since that in my view is akin to a
request for a separation of trials (as governed by the provisions of
s 157(2) ) and also flies in the face of the general rule that
accused persons who are charged with the same charge should be tried
together. Sight should not be lost of the purpose and effect of a
separation of trials (s 157(2) ) in contradistinction to a
separation of proceedings as governed by the provisions of s
160(3).








[48] In my view the
provisions of s 160(1) are still applicable at this stage which
provide the applicants a discretion whether or not to call witnesses
who had testified in their absence.








[49] The provisions s
160(1) are applicable even in the situation, as the present one,
where accused persons have misbehaved in court and had absented
themselves from the proceedings without the consent of the court.








[50] This may offend
against one’s sense of fairness and justice that an accused
person may be ‘awarded’ for his extreme lack of
co-operation and where the rest of the accused persons who through no
fault of their own must endure a further delay in the proceedings,
but the provisions of s 160 are clear and unambiguous and to deny the
applicants the opportunity to cross-examine witnesses as indicated
(supra) will surely amount to a gross irregularity which may vitiate
the proceedings against the applicants. (See S v Mokoa 1985
(1) SA 350 (O) at 355E-F).








[51] I have indicated,
although this application was launched in terms of the provisions of
s 167, that the provisions of s 160 (read with s 159) are of
application to the present situation. I do however not exclude the
possibility that even in the case where the provisions of s 160 are
applicable that for that reason alone the provisions of section 167
or 187 are to be excluded.








[52] I am of the view,
that for the reasons mentioned, that the applicants are entitled to
cross-examine witnesses who had testified in their absence at this
stage.








[53] Section 160(1)
provides that an accused person may ‘examine any witness’
who testified during his absence. This in my view cannot be
interpreted that such an accused person may examine all
witnesses who had testified in his or her absence.








[54] This court has a
duty to discourage and a duty to curtail irrelevant cross-examination
and the applicants in my view may only examine those state witnesses
who had implicated them in the commission of the offence or those
witnesses from whom favourable evidence may be elicited.








[55] It is therefore
necessary, as a point of departure, first to identify those witnesses
who had testified in the absence of the applicants, and thereafter
determine who would be giving relevant testimonies.








[56] In addition, it is
necessary for counsel appearing on behalf of the applicants, prior to
the examination of a witness, to give an indication to this Court, as
well as to the State and to counsel appearing on behalf of the other
co-accused persons, the general nature of the evidence each proposed
further witness would be cross-examined on, as well as the purpose of
such cross-examination.








[57] This court will thus
allow those state witnesses who had testified in the absence of the
applicants to be so examined and on the terms indicated hereinbefore.

































----------------------------------



E P B HOFF



Judge


















APPEARANCES













APPLICANTS: I Agenbach



Instructed by Directorate
of Legal Aid, Windhoek













FOR THE STATE: H January



of Office of the
Prosecutor-General, Windhoek













FOR THE REMAINDER OF P
Kauta, P McNally, J Neves, V Kachaka,



ACCUSED PERSONS: G Nyoni,
C Kavendjii & P Muluti



Instructed by Directorate
of Legal Aid, Windhoek