Court name
High Court Main Division
Case number
CA 72 of 2013
Title

Shailemo and Another v S (CA 72 of 2013) [2013] NAHCMD 323 (08 November 2013);

Media neutral citation
[2013] NAHCMD 323
Coram
Hoff J
Siboleka J












NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION



WINDHOEK








JUDGMENT








CASE NO: CA 72/2013








In the matter between:








POMPILI IMMANUEL
SHAILEMO...............
..
FIRST APPELLANT








FRANS HANGULA
HANYOTI.................
.......
SECOND APPELLANT








vs








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








Neutral citation:
Shailemo v State (CA 72/2013) [2013] NAHCMD 323 (8
November 2013)



Coram: HOFF
J and SIBOLEKA J








Heard on: 11
October 2013



Delivered on: 08
November 2013








Flynote: Criminal
Procedure: In an appeal matter the appellant is required to clearly
and specifically show this court the areas of fact or law on which he
thinks the presiding officer has misdirected herself.








Summary: Two
robbers, one of them armed with an unlicensed Makarov pistol whose
serial number has been erased entered Erundu Bar at 02h00 at night
and robbed the complainant at gunpoint. They fled the scene, stealing
an amount of N$ 1 830 and one bottle of Mokador. A security guard was
hit on the head with the pistol during a fight that ensued as the
robbers exited the bar. Police on night patrol were alerted and the
robbers were immediately pursued up to a plastic built shack where
they were found pretending to be asleep with clothes, shoes and socks
still on. The pistol and a bloodstained T-shirt were found in the
shack. Stolen items were never recovered.








Held: The evidence
against the appellants is solid, credible and were therefore
correctly convicted and sentenced.








Held: The appeal against
conviction and sentence is dismissed.








ORDER













The appeal against
conviction and sentence is dismissed.








JUDGMENT













SIBOLEKA J (HOFF J
concurring):








[1] At the hearing of
this matter the appellants appeared on their own and Ms Wantenaar for
the respondent. The court is indebted to the counsel’s valuable
arguments in this regard.








[2] The appellants filed
applications for condonation for the late filing of their notices of
appeal. Reasons cited for the delay by both of them is that they are
lay litigants, ignorant of appeal procedures. These are not adequate
reasons in terms of Rule 67 but it was nonetheless agreed by the
parties that arguments be heard on the merits to finalize the matter.








[3] The appeal is against
conviction and sentence. The grounds of appeal are as follows:








[4] Grounds of appeal in
respect of the first appellant: Pompili Immanuel Shailemo



a)
“There was no finger prints taken from the firearm involved in
order to have linked me to the mentioned charge;



b)
The firearm itself was never found in my position thus it fails me to
understand how I was convicted on the second count;



c)
The Court a quo relied on assumptions and hearsay as there was
no eyewitness in this case that should have proved the State’s
case beyond reasonable doubt;



d)
There wasn’t any identification parade involved that should
have put the question of mistaken identity at rest;



e)
Since the scene of crime couldn’t link me to it for example
fingerprints or eyewitnesses the Court a quo relied on
conjecture and as such overemphasized the facts and undermined the
law that states that the benefit of the doubt should be granted to
the accused when the state fails as in this case to prove its case.”








[4.1] At the hearing the
first appellant supplemented his grounds of appeal as follows:



Some witnesses did not
give proper evidence, they were not truthfully and they told a lot of
lies. The Magistrate imposed a long sentence based on untruthful
evidence. The guard of the premises allegedly robbed that he fought
with was not called to testify.








[5] Grounds of appeal in
respect of the second appellant:








1.
“The Magistrate imposed a lengthy sentence despite my
reasonable contention that I was not at the scene of crime, and
therefore did not take part in the robbery;



2.
No exhibits were produced to prove my involvement beyond reasonable
doubt;



3.
Evidence for the prosecution were assumptions, fabrications,
inconsistent and contradictory;



4.
The Prosecution’s reasons for my conviction is not truthful;



5.
There was no identification parade, a factor the Magistrate had
failed to take into account because of biasness.”








[6] Rule 67(1) of the
Magistrate’s Court Rules provides:



A
convicted person desiring to appeal under Section 309(1) of the
Criminal Procedure Act 51 of 1977 shall, within 14 days after the
date of conviction, sentence or order in question, lodge with the
Clerk of the Court a notice of appeal in writing in which he
shall
set out clearly and specifically the grounds, whether of fact or law
or both fact and law on which the appeal is based …”

my
own underlining








[7] From the above it is
clear that the purported grounds do not clearly and specifically
relate to any misdirections the Magistrate has committed in
convicting and sentencing them. Their unhappiness appears to be that
they feel there was no evidence connecting them to the offences they
were facing. It is for this reason that I have decided to examine the
evidence on the matter, instead of dealing with each of the grounds
separately.








[8] From the evidence of
the prosecution the facts of the matter are that on 28 July 2007 at
02h00 in the early hours of the morning accused 1 and his friend
found Sarah Kandawu alone inside the lighted Erundu Bar. It was the
first time she saw the accused, who came closer to her and started
asking a lot of questions on the prices of different items in the
bar. They talked for quite some time and she had ample opportunity to
look and observe his face. While they were talking the accused’s
friend was looking at the juke box and suddenly accused 1 pulled out
a pistol and pointed it at her. She started screaming and before
accused 1 ordered her to stop; the security guard outside the bar
woke up and came to the scene.








[8.1] Before the guard
came accused 1, jumped over the counter to where Sara was standing,
took a plastic bag containing N$2 200 and ran out of the bar. As he
was exiting he met the security guard at the door. He hit him with
the pistol on the head and a fight between them ensued. The guard was
eventually overpowered and accused 1 fled with the money and one
bottle of Mokador. The complainant picked up N$300 at the door where
the fighting took place and the robber fled with N$1 830. That same
night Sgt. Juniors Abraham who was on patrol duty was informed on
radio about the incident and he immediately drove to the scene, where
he found the security guard and the complainant. In the presence of
the complainant the security guard related to this officer what
happened and showed him the two shoe tracks of the two appellants one
having a Paulo Falcone sandal which he appeared to have taken off and
continued fleeing with socks on, the other had All Star tekkies on.
While still at the scene Sgt. Abraham conveyed this information to
his officers doing night patrol, Matheus and Amukwa. The robbers fled
in the direction of Ehenye Combined School.








[8.2] The officers were
assisted by the lights of their vehicles and Amukwa had a torch with
him. Sgt. Abraham joined them and they followed the tracks up to a
plastic built shack where in one room they found accused 1 pretending
to be asleep with clothes and tekkies on. In that same room
underneath a bag of clothes they found an unlicenced Makarov pistol
whose serial number was scratched off. The pistol had a magazine with
four rounds. Accused 2 was also found in the other room pretending to
be asleep with clothes and socks on. A blood stained T-shirt was
found in the shack as well as a black cap in one of the suspect’s
pockets. From the shack the two accused were taken to the Police
Station where the officers found the complainant reporting the
robbery case, and she pointed accused no. 1 as the person who pointed
her with a pistol at the bar. The security guard did not testify
because his whereabouts were unknown, and so was his contact address.
He could therefore not be traced.








[9] The evidence of the
first appellant in the Regional Court was that in 2007 he came from
Onambango bar drunk and as a result he ended up sleeping alone in a
friend’s room that was not there at the time. When he was about
to fall asleep the police knocked and kick away the door. He woke up
and they started shaking, kicking, and hitting him with a fist on the
chest. He was handcuffed and pushed outside. There he was told and
questioned about a robbery at a place called Oneshila, knowledge of
which he denied. He was taken to the Police Station where he met
accused no. 2 whom he didn’t know before, and was never taken
to the scene. After several appearances they were granted bail but
later his was withdrawn by the Regional Court for reasons unknown to
him.








[9.1] The second
appellant testified that his co-appellant is unknown to him. On the
day of his arrest he was asleep with his wife in his room. Police
came, knocked at the door saying the footprints they were following
lead them to his house. They searched and asked him to switch on his
cellular which he did, and they took it. He was taken to the Police
Station where a lady identified the first appellant as the one who
pointed her with a firearm. The security also said what he knew about
the matter although he never testified in court. Contrary to his
claim that he knew nothing about the robbery because he does not know
the place where it allegedly took place, he asked the complainant
pertinent questions which clearly shows he was there: I quote
verbatim from page 24 line 30 of the record:








Accused
2: Can you recall the other person who was with you at the counter
while people were fighting outside?”








By this question, in my
view accused no. 2 clearly placed himself on the scene.








[10] In his judgment the
Magistrate was persuaded by the evidence related to the police
following the suspects’ tracks from the scene up to where they
were found and arrested. He also hinted on accused no. 2 who during
his cross-examination of the complainant put what he said was his own
knowledge of events during the robbery, an admission he did not
displace during his evidence in chief.








[11] The evidence clearly
shows a swift tracking exercise by the police officers from the scene
immediately in pursuit of the fleeing robbers up to the plastic built
shack where they were found pretending to be asleep with clothes and
tekkies on in respect of accused no. 1 and clothes and socks on in
respect of accused no. 2. This evidence is credible, solid and
unshakable. The appellants were therefore correctly convicted. The
seriousness of this offence lies in the fact that the complainant was
robbed at gunpoint, an amount of N$1 830 and one bottle of Mokador
stolen. Nothing was recovered. In the circumstances the sentences
imposed on the appellants are reasonable and should be allowed to
stay.








[12] In the result the
appeal against conviction and sentence is dismissed.













A M SIBOLEKA








Judge








E P B HOF



Judge








APPEARANCES








APPELLANTS:........In
Person




























RESPONDENT:.......Ms
B L Wantenaar



...............................................Office
of the Prosecutor-General, Windhoek