COURT OF NAMIBIA MAIN DIVISION, WINDHOEK RULING: TRIAL WITHIN A TRIAL
NO.: CC 38/2009
15 JANUARY 2014
the matter between:
citation: S v Dausab (CC 38/2009) NAHCMD 2(15 January 2014)
on: 08, 09, 10, 11, 17, 18, 21, 22, 23 October 2013
on: 15 January 2014
Criminal Procedure: An undefended suspect at the time of arrest
has the right to be informed in the language he understands; that he
has a right not to incriminate himself; that he has a right to a
lawyer of his own choice whom he
pay out of his own resources; if he is unable to afford one, he has a
right to apply at the Clerk of the Magistrate’s Court for a
state funded lawyer. He will be assisted with the completion of the
Legal Aid forms; he has the right to have his lawyer present during
an interview (questions) by the police, and while appearing before
the Magistrate to make a statement of what happened on the matter; he
is not obliged to answer questions from any person (including the
police) regarding the allegations against him; should he opt to give
answers or explain what happened the same may be written down and
later used as evidence against him during trial in Court.
The Otjiwarongo police, on request
from their counterparts at Okahandja waited for the allegedly armed
accused at the entrance traffic circle from where they drove behind
him up to Jimmy’s place. There he got out of his vehicle, put
his hands up and told one of the officers the firearm was behind the
driver’s seat, the officer took it out. In the meantime and
before being warned of any of his rights by any of the officers,
which they conceded, he started to explain what happened and he was
searched. He was then taken to Insp. Kharuxab’s office at the
Police Station where he was allegedly handcuffed behind his
shoulders, beaten up by three officers, and told what he should
inform his employer regarding the matter.
The accused is a single witness regarding the alleged assault on
him against the evidence of the three denying police officers. This
allegation has not been supported by any medical examination, neither
did the accused lay a criminal charge against his assailants despite
the fact that no payment or legal assistance is required for such an
undertaking. It follows therefore that the accused’s allegation
of assault by the three officers has been satisfactorily displaced
and is thus rejected as an afterthought.
From Jimmy’s place where the
accused was taken in custody and started to resort under the control
of the officers, a duty to make sure that all his rights were
properly explained to him rested on the said officers. This duty was
not appropriately carried out.
Therefore any explanation which the accused, an undefended person at
the time, may have furnished to any person, including the
police while in Otjiwarongo is inadmissible.
explanation about what happened regarding the charges the accused is
facing, that he may have explained to any person including the police
officers of Otjiwarongo at the time he was in their custody cannot be
admitted as evidence against him on this matter.
This is a trial within a trial which was necessited by the objections
to admissibility of admissions the accused made regarding the
allegations he is facing, and these are as follows:
the time the admissions were made, the accused was not informed of
his rights, especially the right against self-incrimination;
admissions and or statements were not made freely and voluntarily
they were preceded by assaults perpetrated by three police officers
namely, Insp Kharuxab, Det. Consts. April and Namaseb.
The accused testified about what the police allegedly did to him and
did not call witnesses.
Julius Dausab’s testimony was to the fact that he was at
Ovitoto when he saw the alleged assailant’s white sedan car at
the scene where his girlfriend and mother-in-law were killed. It was
in the evening. However, his bakkie still had to be pushed to a start
resulting in him delaying for thirty or more minutes before he
started to chase after the suspected killer.
The accused chased that car following the trail of dust along the
route it had taken. Because of the high speed he drove in pursuit of
that car along the gravel road, the top layer of one of is tyres
peeled off resulting in the flipping rubber damaging the petrol pipe.
The lid to the petrol tank also got lost. The step fender on the
driver’s side as well as the silencer were also damaged. He had
to stop for some few minutes to tie the petrol pipe into position.
From there up to the tarred road he was no longer driving fast
because of the damage and the silencer that was making a lot of
noise. According to him the sound of the silencer could easily have
been mistakenly taken for a very high speed. I find this to be
reasonable especially given the fact that it is usually difficult for
a driver to negotiate a traffic circle at a high speed.
When the accused approached the Otjiwarongo entry traffic circle he
saw a traffic car and a Nissan vehicle parked on the side and he
thought the driver of the Nissan vehicle was stopped for a road
transgression. Nobody stopped him nor was there any sign on the road
indicating to him there was a police road block so that he should
stop, nothing. It is my considered view that it would normally be
very rare for any driver to take the risk of refusing to stop when
ordered to do so by the police or traffic officer. Given the fact
that the officer who allegedly stood on the road and ordered the
accused by way of a hand sign to stop did not testify, I will accept
the accused’s version that he was not ordered to stop at the
entry traffic circle to Otjiwarongo. After driving for some time he
noticed that the two vehicles he found parked at the entrance circle
were following him. Right behind him was the Nissan followed by the
traffic car. He pulled off the road next to a house the police
officers said belonged to a certain ‘Jimmy’.
I will accept the version of the police that at Jimmy’s place,
the accused impromptu started telling them what happened and Insp.
Kharuxab stopped him. This fits well with the accused’s own
evidence where he testified as follows: I quote verbatim at page 893
of the transcribed record:
when I started explaining I was told do not play clever, play to be
clever. Do not shoot people dead and play a clever game.”
accused then stopped explaining. He explained further at page 895 of
apparently information came through to him (referring to Insp.
Kharuxab) from Okahandja that I have shot my wife and her mother.”
officers removed the firearm when they were told it was behind the
driver’s seat. In the meantime one of the officers was busy
searching him. While at Jimmy’s place the accused was told to
climb together with Insp. Kharuxab in the traffic car, which was
driven by an officer of that Unit. Det. Consts. April drove the
Nissan 1400 and Namaseb drove the accused’s Ford Cortina
bakkie. They drove to the Police Station and on arrival the Inspector
allegedly said to his officers ‘take him to my office so that
we can get the truth out of him’.
According to the accused from Jimmy’s place he was then taken
to Insp. Kharuxab’s office: I quote verbatim at page 898 of the
when I entered Kharuxab’s office the first thing that Kharuxab
has said you people commit, do things and then you lying, with a
strong voice that threatened me, do not kill people at the other side
and come here and lie to us, we are already told that you have shot
I cannot see the purpose why the police would still interrogate the
accused if in his own evidence, already at Jimmy’s place they
stopped him from telling them what happened because they were already
telephonically informed by their counterparts in Okahandja. This
version cannot be truthful.
I am reluctant to accept that inside Insp Kharuxab’s office the
accused’s hands were handcuffed behind his shoulders and the
three officers Det. Consts April, Namaseb and the Inspector himself
started to beat him up by stepping, kicking him while lying down
handcuffed. In my view if this had happened the accused would have
been very seriously injured.
The Prosecution called three police officers Insp Kharuxab, Detective
Constables April and Namaseb to testify about what happened on the
day they arrested the accused.
According to these officers, Okahandja police alerted Insp Kharuxab
about the alleged armed double murder suspect who fled the scene at
Ovitoto in a Ford Cortina heading in the direction of Otjiwarongo.
The request from Okahandja police was that they should stop, arrest
and hand the accused over to them as the allegations against him fall
within their area of investigation. Insp Kharuxab climbed in the
traffic marked car driven by a uniformed member of that Unit, Det.
Cst April and Namaseb drove in a Nissan 1400. They decided to
intercept the accused at the Otjiwarongo entrance traffic circle. The
Nissan parked on the island of the circle and the traffic car parked
on the left side facing the incoming vehicles. According to the
officers, while waiting there, they saw the suspected vehicle
approaching at a high speed. The uniformed traffic officer started to
stop it, but the accused just drove on. The police got into their
vehicles and followed him until he pulled off at Jimmy’s house.
There, the accused got off, and put his hands up in the air. One
officer started a body search on him. When asked about the rifle the
accused said it was behind the driver’s seat and they took it
out. While still being searched and random talking was in progress,
before any of the officers could inform the accused of his rights, he
without being asked, voluntarily (spontaneously) started to give an
impromptu explanation about what had happened. The fact that the
accused told the three officers what happened out of his own accord,
without being asked by any of them cannot remedy the situation
because they had a duty to first explain the rights to him
appropriately in the language he understands, which was not done.
In my view, a person suspected of the commission of an offence
whether formally charged thereon or not has to be assisted by an
attorney. This is a basic right upon which the effective exercise of
other rights and the envoking of various remedies hinges.
S v Melani 1996(1) SACR 335 at 347 G-H the court quoted with approval
from S v Makwanyane and Another 1995(2) SACR 1 CC at page 27
paragraphs 49, 50 and 51: where the court said the following about
a very real sense these are necessary procedural provisions to give
effect and protection to the right to remain silent and the right to
be protected against self-incrimination. The failure to recognize the
importance of informing an accused of his right to consult with a
legal adviser during the pretrial stage has the effect of depriving
persons, especially the uneducated, the unsophisticated and the poor,
of the protection of their right to remain silent and not to
According to the officers, the accused was later stopped by Insp
Cst April then warned, explained to him in Damara Nama, Khoe-khoe
language which he understands, the right to remain silent, the right
to be legally represented, the right to be released on bail, and the
right not to incriminate himself, a version the accused emphatically
According to Insp. Kharuxab he informed the accused why they stopped
him, the alleged charges against him and that the Okahandja police
were on their way to come and collect him. The Inspector took the
accused and boarded with him in the traffic car. He instructed Cst
Namaseb to drive the accused’s bakkie to the Police Station who
on arrival was instructed to guard it as it was “the scene of
crime” (the accused’s Ford Cortina bakkie). The Inspector
then took the accused to his office to wait for the Okahandja police.
Inside his office was only the accused and himself. Det. Cst April
went to his office to do his work there. While still waiting for
Okahandja police the accused asked for permission to call his
employer on the telephone and he allowed him. The accused was a truck
driver. The loading of his truck was completed and it was ready for
him to drive out that same morning. This was the reason the accused
called his employer to tell him that he was in detention at the
Police Station and will not be able to report for duty as scheduled
Later the police from Okahandja arrived and he was handed over to
them together with his Ford Cortina bakkie. The three officers deny
ever having assaulted the accused saying they had no reason to do
that. Det. Cst Namaseb testified that he knew the accused very well
from school and are friends. He also knew his green Ford Cortina
bakkie as well as his residence. The officers testified that the
accused cooperated with them such that despite serious allegations
leveled against him, they did not find it necessary to handcuff him.
Whereas in my view, the complainant in a civil matter would require
the assistance of an attorney to make a claim, this is absolutely not
the case regarding a complainant in a criminal matter.
In this country Police Charge Offices are open day and night, they
never close for business at all. Any member of the public who has
been assaulted, irrespective of who the assailant is, may go and lay
a charge against such a person free of charge. The police officers
will only request the aggrieved party to come the next day if they
notice or reasonably suspect that he has consumed alcohol and may be
under the influence.
From the evidence placed before this court I am unable to find any
good reason why the accused did not proceed to lay a charge of
assault against the three police officers if they indeed assaulted
him. More surprising is why the accused did not go to the doctor for
medical examination report regarding the alleged brutal assaults. The
reason he advanced that the officers told him not to tell anybody
about the assault on him is unacceptable, and is rejected.
What is before court is a mere allegation by the accused that he was
assaulted, without any form of supporting evidence whatsoever. This
is against the version of three officers who testified that they
didn’t do it, and had no reason to do so. I find no legal basis
to doubt or to reject the testimony of the three officers in this
regard. I am therefore satisfied with the evidence of the prosecution
that the accused was not assaulted or threatened as he alleged, at
the time of his arrest in Otjiwarongo.
I will now examine the issue of explaining rights to an undefended
accused. The three officers had a legal obligation to make sure that
the rights were properly explained to the undefended accused in the
language that he understands before he started telling them what
happened regarding the allegations he is facing, which they conceded
they didn’t do. This shortcoming is fatal as it militates
against the accused’s constitutional right to a fair trial
enshrined in article 12(f) of the Constitution. The fact that at the
time of the accused’s arrest at Jimmy’s place he was
already aware of his rights from his previous arrests cannot remedy
the damage caused by such a failure.
In S v Agnew and Another 1996(2) SACR 535 at 536 A-C: The police
avoided to wait for the accused’s attorney for fear that his
presence would stifle the information which they wanted to get from
him. A police captain proceeded to take a statement from him, and the
Magistrate also did the same. The court held that this failure
offended the accused’s right to silence and the continuing
protection to his right of representation from the moment of arrest
which are availed by the Constitution. These statements were ruled
In the result the following order is made:
The statements the accused made to any of the three police officers
namely Insp Kharuxab, Det. Consts. April and Namaseb is not
admissible as evidence in this trial.
The statement the accused made to his employer verbally or
telephonically while in custody at Insp. Kharuxab’s office,
awaiting to be handed over to the Okahandja police is also
ON BEHALF OF THE STATE: MR. E MOYO
BY: THE OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF ACCUSED: MR. B BASSON
BY: DIRECTORATE OF LEGAL AID