COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
NO: CA 71/2015
the matter between:
citation: Iipinge v S (CA 71-2015)  NAHCMD 229 (08
J and USIKU J
on: 06 July 2016
Criminal Law: Conviction – proof must be beyond reasonable
The appellant was positively identified as one of the four
persons seen by police officers jumping out of Namsov building, but
the evidence could not pertinently connect him to any of the
housebreaking charges preferred against him.
None of the Housebreaking charges – levelled against the
appellant has been proved beyond reasonable doubt against him.
The appeal succeeds, the conviction and sentence are set aside.
appeal succeeds, the conviction and sentence are set aside.
J (USIKU J concurring):
The appellant appeared as accused 2 in the Magistrate’s Court
Walvis Bay on two counts of Housebreaking with intent to steal and
theft. He pleaded not guilty and after trial he was convicted on
count 2 and sentenced to thirty six (36) months imprisonment. He now
appeals in person against both conviction and sentence.
At the hearing of this matter the appellant was in person and Mr.
Nduna appeared for the respondent.
The appellant did not furnish grounds of appeal in terms of rule
67(1) of the Magistrate Court rules to inform the other parties how
the trial Court has misdirected itself if it did. He only stated his
conclusion that the trial Court has erred in rejecting his version.
I will now look at the evidence presented by the prosecution on this
matter in the trial Court.
Cleopatra Garoes is the complainant on the first count. She testified
that she resides at S…… S……. 8…..
W…… B…….. She knows accused 1. While
asleep on the day of the incident she heard a window being opened but
ignored it thinking it was her granny that was just coming in.
Suddenly she heard a noise from her room door being opened very
slowly. He was on the bed facing the wall she turned and put on her
cellphone torch and grabbed accused 1 on the hand. He had a knife
which cut her on her hand. She held and started beating him with a
cellphone. The accused slipped out of her hands and went to another
room. She went to the kitchen screaming for her mother to come. While
she was still in the kitchen, the accused jumped through the window
and ran away. The neighbor’s house has a very bright light
outside which illuminates the inside of her room. It is always
visible and that was how she was able to see very well that accused 1
was the intruder. Accused 1 entered through the sitting room window
which he may have opened with a knife. The intruder took her cousin’s
lotion; wallet; and cellphone.
Sakaria Ipinge testified he is a police officer at the Crime
Prevention Unit at Kuisebmund. On 23 April 2014 this officer, Const.
Peter, and Ndishishi were on duty patrolling near S………
S……. in K…….. They saw two persons and an
old woman in front of them. When asked what they were doing in the
early morning hours, they said they were following the footprint of a
person who burgled in their house. The police went to the burgled
house where it was found that force was used to gain entry to the
inside. The officers followed the footprint up to the tarred road and
they lost track near Namsov flats. While they were there they saw
four guys jumping out of Namsov flats. When the men saw the officers
they started running away in different directions. The police
screamed at them to stop but they just continued running.
This officer and Ndishishi followed the other suspects who ran in the
direction of Ushakarino. They met two security guards who showed them
the direction they went. Ndishishi called and alerted this officer
saying he saw them getting into a certain yard. Ndishishi got inside
the yard – they arrested accused 1 and his co-accused ran away.
After questioning, accused 1 took the officers to a flat inside
Namsov building. Ndishishi knocked at the door, and inside they saw
how the flat was broken into. When they looked around they saw that
accused 1’s footprint matched the footprint that was at the
broken-in flat – adidas takkie with three stripes. The shoe had
some lines and circles in the print. The officers saw how force was
used to damage the door of the flat to gain entry. Accused 1 told the
police he was together with Balla, the nickname of the appellant
Barnabas Iipinge and Sam.
Ingeborg Touros is the complainant on the second count. She testified
that she first saw accused 1 two or three weeks before the break-in.
He came to her residence at her flat at the back of Namsov
Kindergarten in Kuisebmund asking to use the toilet and she allowed
him to do so. He later came out with one of the teachers who told her
the accused was checking around the school. The second time she saw
accused 1 was on 23 April 2014 in the night between 04h30 –
05h00 in the early hours of the morning when the security at Namsov
Kindergarten called her. She came and found the police with accused 1
in her flat. The police asked her to look around and see what was
missing. She found that her iPhone cellphone, MTC touch screen
cellphone and a pair of all-star shoes totally to N$9 000 were
missing. The intruder came through the flat’s window that he
forced open. The locks of the burglar door were also cut open. She
did not recover any of her stolen items. She had some sweets in the
jar inside her room. Some of these sweets were found in accused 1’s
Paulus Abel Ndishishi testified he is a police officer at Kuisebmund.
He corroborates the evidence of Sakaria Iipinge and other officers
regarding the arrest of accused 1 on 23 April 2014, as well as the
version of Ingeborg Touros.
Pieter Nelson also corroborates the evidence of Sakaria Iipinge and
other police officers. He added that among the four suspects who
suddenly jumped out of the yard in front of them just nearby while
they were following the tracks of burglars he recognized the
appellant whose name he did not know at that time. He was dressed in
a black jersey and black trouser. According to this officer he used
to see the appellant reporting himself at Kuisebmund Police Station.
The said appellant drew out a knife and threatened him such that he
had to give way and then fired a warning shot but they just continued
Further investigations showed that the suspect who threatened Pieter
Nelson with a knife was the appellant, Barnabas Iipinge. The
visibility was clear, illumination came from the street lights when
the officer saw four suspects jumping the wall. During investigations
accused 1 told him he was with the appellant Balla – also known
as Barnabas Iipinge and Tsotsi known as Sam. They found sweets in
accused 1’s pocket. After the arrest of accused 1 at Tutaleni
his cellphone rang and registered the name of the caller as ‘Tsotsi’.
The phone was put on loudspeaker and the officers heard Tsotsi
telling accused 1 they should meet as Etosha Bar. Some officers took
off their uniform and went there to arrest him, but the evidence of
the arresting officer on this aspect was not placed on record.
Briefly the content of the evidence placed before the trial Court was
that the police officers saw four persons jumping out of Namsov
building and running away, accused 1 was caught there and then. He
had some sweets in his pocket which he took from the jar inside
Ingeborg’s flat. He took the officers to the burgled flat
behind the Kindergarten at Namsov building where his shoeprint was
still clearly visible. Ingeborg, a resident at the flat identified
him as the person who was there previously asking to use the toilet.
In Court Cleopatra Garoes immediately identified accused 1 as the
person who broke into her house during the night. Clear illumination
lighted in her room such that she clearly saw accused 1. She grabbed
him on the hand, and a fight ensued. The accused had a knife and he
cut her on the hand. Accused 1 was therefore again appropriately
identified as the one who also broke into house 833/24 Stonefish
Street. Accused 1 has been connected to the charges in both counts
beyond reasonable doubt and has thus been correctly convicted.
The version of the police officers that accused 1 told them he was
together with Balla the nickname of Barnabas Iipinge, the appellant
before Court during the breaking in, was not repeated, confirmed and
placed on record by him during his evidence in chief. All the
allegations regarding the appellant on this matter were brought to a
dead end by this eventuality. He has therefore not been positively
connected to any of the housebreakings at the flat or at property
833/24 Stonefish Street. The evidence that he was positively seen
among the four suspects jumping out of Namsov building alone does not
connect him to any of the said burglaries there.
In the light of the above the conviction and sentence of the
appellant cannot be allowed to stand.
In the result I make the following order:
appeal succeeds, the conviction and sentence are set aside.
: In Person
Mr. S. Nduna
of the Prosecutor-General, Windhoek