Court name
High Court Main Division
Case number
11 of 2014
Title

S v Rukero and Others (1) (11 of 2014) [2017] NAHCMD 27 (07 February 2017);

Media neutral citation
[2017] NAHCMD 27
Coram
Usiku J

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: CC 11/2014

THE STATE                                                                                                                              

versus

HERMAN RUKERO

BENEDICTUS AFRIKANER

MALEACHI SEIBEB

 

Neutral citation: S v Rukero (CC 11/2014) [2016] NAHCMD 27 (7 February 2017)

 

Coram:          USIKU, J

Heard:            16 – 17 July 2015, 20 – 23 July 2015, 8 – 11 September 2015, 14 – 17 September 2015, 18 – 20 November 2015, 21 January 2016, 29 February 2016, 1 July 2016, 4 – 8 July 2016 and 17 – 18 October 2016.

Delivered:     7 February 2017

 

Flynote:         Criminal law – Murder – Mens rea – Common purpose – Not necessary to prove causal link between act of accused and death of deceased – Doctrine applied where two or more perpetrators act together – The requirements, being the presence, awareness of the crime being committed – Common cause with – perpetrators – Some action on part of perpetrator – Intention to harm or kill, whether it be direct or dolus eventualis – Accused two making admissions during bail proceedings – Such admissions admissible only against him.

Summary:     The three accused stood jointly charged with a count of murder as well as defeating or obstructing the course of justice or attempting to do so.  The state alleged common purpose.          


ORDER


Accordingly each accused is found guilty on both counts and is convicted as charged.


JUDGMENT


USIKU, J:

[1]        The accused persons stood jointly charged with a crime of murder on the first count in that on or about the 18th January 2012 and at or near Windhoek Correctional Facility in the district of Windhoek, the accused persons did unlawfully and intentionally kill Eddy Gomxob an adult male person.

[2]        The accused persons faces charges of defeating or obstructing or attempting to defeat or obstruct the course of justice on the second count in that on or about the same date and at or near the same place after having killed the deceased, the accused persons did unlawfully and intentionally and with the intent to defeat or obstruct the course of justice threaten prisoners locked up in cell four of Unit seven not to talk about what had happened otherwise they will be harmed or killed.  Whereas these acts were perpetrated whilst the accused knew or foresaw the possibility that:

(a)     Their conduct may frustrate and/or interfere with police investigations into the death of the deceased; and/or

(b)     Their conduct may conceal and/or destroy evidence indicating that they killed the deceased; and/or

(c)     Their conduct may protect them from being prosecuted for a crime in connection with the death of the deceased.

[3]        When the charges were put to the accused persons each pleaded not guilty to both charges.  Mr Siomunji appearing for accused one and accused three offered no plea explanation and indicated that accused one and three had opted to remain silent.  Mr Engelbrecht who appeared for accused two also indicated to court that accused two has opted to remain silent.  Ms Ndlovu appeared for the state.  As a result of the plea of not guilty on both charges by each accused person, the state was burdened to prove each and every allegation as set out in the charge sheet.

[4]        Mr Johannes Ndalikokule Iiyambo testified that he is a detective sergeant employed by the Namibian police stationed at the Katutura Scene of Crime Unit.  His duties are to visit crime scenes in order to photograph the crime scenes, as well as to draw plans.  He received training for about six months.

[5]        On the 18th January 2012, whilst on duty he received a report about an alleged murder at the Windhoek Correctional Facility to which he had to attend.  He proceeded to the facility at about 14h00 where he met the investigating officer sergeant Basson.  Having met the investigation officer, he started to take photographs of the scene at cell four of Unit seven.  He later on compiled a photo plan.  He also made a sketch plan of the scene.  The photo plan and the sketch plan were handed up as exhibits “A” and “B” respectively.  The photo plan depicts the set-up of cell four at Unit seven and how the deceased was found lying dead inside the bathroom floor in cell four of Unit seven.  

[6]        In cross examination Mr Iiyambo explained that the points were indicated to him by an officer from prison, Vaino Nicholae whom he found at the facility at the time.  He could however, not confirm whether the officer had been present as events unfolded.  According to him, officer, Vaino Nicholae had indicated to him that he had found the scene as is, whereafter he proceeded to photograph the scene as found.  Mr Nicholae however proceeded to point out the scene to him.  There were no other information forthcoming except what he was informed by the investigating officer who had to guide him at the time.  No one else was willing to give information about what had happened even though there were some inmates present at the time of the alleged incident.

[7]        According to Mr Iiyambo, he could only take photographs of what he could see and he specifically took photos of things that he could capture at the time.  He did not ask any of the accused persons to point out the scene to him.  The alleged objects used in the commission of the crime were brought to the scene from an office by Vaino Nicholae.  He then photographed those objects on information that they were used in the commission of the crime.  He however did not photograph the two broom sticks from which it was suspected the two objects had originated.

[8]        With regard to the sketch plan, he only drew it up after instructed to do so in order to ascertain the distance between cell one and four where the alleged incident had occurred as one of the suspects was alleged to have come from cell one.  As he proceeded to take photographs of the scene, the inmates moved out to give him space.

[9]        Mr Leon Martin Basson stationed at the Katutura Criminal Investigation Unit also testified.  His duties are to investigate criminal cases.  He was tasked to investigate this matter.

[10]      On the 18th January 2012, he received a call from Police radio control room that there was an alleged murder at the Windhoek Correctional Facility.  He proceeded to cell four of Windhoek Correctional Facility where he met a correctional officer who in turn directed him to Unit seven.  Upon arrival at Cell four, he met other police officers, one detective inspector De Klerk as well as members of the Scene of Crime officer, inspector Muyoro and sergeant Iiyambo.

[11]      He was briefed by detective chief inspector De Klerk about what he had found and handed over to him two suspects who were handcuffed at the time.  He identified accused one and two as the suspects that were handed over to him.

[12]      After the suspects were handed over to him, he introduced himself as a police officer and informed them that they were being arrested on a charge of murder.  Their rights to remain silent and the right not to incriminate themselves were also explained to them.  The two accused opted to remain silent.  He further explained to the accused persons their right to legal representation.

[13]      Having explained the accused person’s rights, Chief Inspector De Klerk than took him to the scene where the deceased lay on the bath room floor of cell four.  He could see blood underneath the deceased’s head as well as holes in the body.

[14]      Mr Basson testified further that Mr Iiyambo then started to reconstruct the scene, as Inspector Muyoro handed two iron objects sharpened at one end to him.  One was short plus minus five centimeter and covered at the other end with plastic used to cover bread and the second one was similar but a bit longer of plus minus 10 centimeter, also sharpened at one end and similarly covered with a plastic.  His conclusion was that these sharpened objects could have originated from broom brackets.  These objects where then taken over as exhibits after they were photographed by Sargent Iiyambo from the Scene of Crime Unit.

[15]      Mr Basson confirmed the position in which the deceased was found as depicted in the Photo plan exhibit “A” photo four as well as on photo 14 point B, depicting the alleged objects used in the commission of the alleged crime.  He did not see the broom from which the objects are alleged to have been removed.  Exhibits depicted in Photo Plan were booked in as exhibits in the Pol seven, and registered on the same date after Mr Basson was done with investigations and a number 26/2012 was allocated to the exhibit after which they were kept in the charge office.

[16]      Apart from receiving the exhibits from Inspector Muyoro, Mr Basson also spoke to accused one and two after their arrest.  Accused three was only arrested on the next day upon information from some inmates who claimed to have seen him attacking the deceased.  Accused three offered to submit a statement to the police claiming to know everything that had transpired on the 18 January 2012.  Accused three later on gave a statement without being influenced or forced to do so.  In the meantime other inmates also came out and express their fear of accused three as he had been present when events unfolded which made the police to focus on accused three personally.

[17]      Having returned to the Windhoek Correctional Facility on the 19 January 2012, Mr Basson was able to obtain statements from some of the inmates in Cell four of Unit seven.  Others refused claiming that they did not want to get involved due to fear.  Accused three was then arrested after his rights were explained to him.  Arrangements were also made for the accused persons to be detained separately as some of the witnesses had expressed fear after accused one and two had made threats towards them that they could either be harmed or killed.

[18]      In cross examination Mr Basson persisted that after he informed the accused persons of their rights they opted to remain silent and did not offer to explain to him what had happened.  It was Mr Muyoro who assisted the Scene of Crime Officer Sergeant Iiyambo to reconstruct the scene at the time as they were from the same unit.  They were also assisted by Mr Vaino Nicholae a Correctional Officer who had been on duty on the date of the incident.    

[19]      Mr Basson further confirmed in cross-examination that the two iron objects were handed over to him by Inspector Muyoro who explained to him that they were gotten from accused one and two.  Also that the objects were allegedly used in the commission of the crime.  During the course of the investigations it further emerged from witnesses that   the two objects had blood on them as the accused persons had come out from the bathroom where the deceased was allegedly killed, also that accused one and two had shoes on, that were blood stained which they had to clean up.  Mr Basson however, could not confirm these information.  None of the accused could explain the ownership of the objects as they each opted to remain silent.

[20]      With regard to accused three, Mr Basson confirmed to have taken a statement from him, whereafter he also went ahead to take statements, from other inmates after it came to light that accused three could be a suspect.  According to Mr Basson the reason why inmates were fearing to get involved was due to the fact that they were together in the same facility and that officers were not always there to protect them.  Others refused to get involved.

[21]      In respect of the exhibits which were registered in Pol seven and kept at the charge office, Mr Basson confirmed that he was not certain who the specific owner was as the ownership thereof was only revealed on the 19th of January 2012, as such the names and addresses in the Pol 7 where left blank when the exhibits were registered on the 18th January 2012, the alleged date of the incident.

[22]      In response to accused two’s version that he and the deceased since 2009 had constant quarrels and fightings, Mr Basson retaliated that no case had been reported to the police in order for them to investigate, and that he only came to learn about the fighting through case notes from the prison authorities.  The fights were allegedly because of a homo sexual relationship between the deceased, accused one and accused two.

[23]      Mr Basson confirmed further that as an inmate at the time, accused two, would have to report any of his problems to the prison authorities and that should it happen that he could not be assisted by the prison authorities, he could still go and take up the case with Katutura police station as the facility fell under Katutura police station and that it would have come to his attention personally.

[24]      Mr Basson further confirmed in cross examination that it was one Immanuel Katjire who first went into the bathroom where the deceased, accused one, two and three had been, where after, he came out and reported to other cell mates that something was going on inside the bathroom, which made others to go and see what was going on.   Immanuel Katjire did not report any threat to him.  He also could not confirm whether indeed threats were made towards inmates after accused two had left the bathroom were the crime was committed.  About the compilation of the Photo Plan, Mr Basson confirmed that it was done by Sergeant Iiyambo and it was a comprehensive photo plan.

[25]      There were several witnesses from the Windhoek Correctional facility who testified before court during the trial.  Mr Immanuel Katjire was the first person who saw the body of the deceased lying on the floor of cell four in Unit seven, on the 18 January 2012.  He then went out and alerted other inmates as he returned from the bathroom.  He also noticed accused two walking around in the corridors.

[26]      Having alerted other inmates about what he had found in the bathroom of cell four of Unit seven, Mr Matheus Nuugonya also an inmate walked into the bathroom.  According to him he saw accused three holding onto the wall and stamping on head of the deceased.  He also saw accused two holding a sharp object in his hands and had blood on his fingers.  Accused three and accused two thereafter went to accused one’s bed as they started to wipe blood off their hands and shoes. 

[27]      Mr Mateus Nuugonya testified further that after accused one and two had finished to wipe off the blood, accused one called out correctional officer Salionga but he did not respond whereafter Sergeant Nicolae came and opened the cell as he told him about a person lying on the ground in the toilet.

[28]      Mr Willem Peter another inmate at cell four of Unit seven testified that on the 18 January 2012 he had gone to Nampost with other inmates.  Upon their return, the deceased was walking to his cell as accused one called him in order for them to make a shopping list.  The witness also testified that he saw accused two being given something through the window of cell one, though he could not say with certainty what accused two was being given, neither could he see the person who was giving accused two something at the time.  He confirmed that the three accused persons were in a homosexual relationship.

[29]      According to Willem Peter, accused one and the deceased entered the toilet first whereafter accused two followed them and then accused three dropped a container he was carrying as he too entered the bathroom.  Accused three was sweating and it could be seen from his face.

[30]      It was at that point in time when he saw Immanuel Katjire emerging from the toilet and alerted them about trouble in the bath room as he opened the door.  Mr Willem Peter testified that he saw accused three jumping on the head of the deceased, as accused two was busy stabbing the deceased.  He also confirmed that the two wires that were handed in as exhibits were a true reflection of images of the wires that were in the possession of accused one and two.  At the time of the incident accused three wore prison shoes whilst accused one wore addidas shoe on one foot and a puma shoe on the other.  Accused two wore open sandals.  Mr Willem Peter could not assist the deceased as he feared to become the next victim.  He specifically testified that accused one and two had threatened to kill anyone that would talk about what had transpired inside the bathroom.  The three accused persons started to clean themselves as well as the wires that had been used in the commission of the crime.  

[31]      Mr Adolf Kahoro, another inmate in cell four of Unit seven, testified that he knew the accused persons.  On the date in question, whilst in cell four, accused two and the deceased came into the cell.  The deceased went to sit at accused one’s bed and they started to talk whereafter an argument erupted between them but they were stopped.  As Mr Kahoro stood up, he heard someone screaming in the bathroom.  He tried to open the toilet door but Mateus Nuugonya stopped him.

[32]      According to Mr Kahoro, as he was opening the toilet door, he saw accused 1 holding the deceased on his arms as accused two held the deceased on his shirt whilst accused three was stepping on the head of the deceased.  Accused three wore prison shoes at the time.  Accused three then came out of the toilet with an oros bottle and started to used a cloth to wipe his face and arms.

[33]      Accused one also came out of the bathroom holding a wire which was covered in blood.  His clothes were blood stained as well as his shoes.  Accused two held a short wire and his clothes and shoes were all blood stained.  Both accused one and two threatened other inmates.  Mr Kahoro testified further that after the three accused persons had left the bathroom he personally entered the bathroom in order to see how the deceased was injured.  At that time the deceased was still alive.  According to Mr Kahoro, after the incident, Correctional officer Nicolae arrived and then accused two told him about a person lying in the toilet as they followed the officer and offered to hand over the wires that were used on the deceased.

[34]      Mr Julius Isack Van Wyk was an inmate in cell four on the 18 January 2012 at the Windhoek Correctional facility.  As he was busy playing the game of chess, he heard screams from the toilet.  He went to investigate, and saw accused one and two stabbing the deceased whilst accused three was busy picking up a cap from the floor.  Accused two held a small wire as he emerged from the bathroom whilst accused one had a longer wire in his hands.  Both accused one and two threatened other inmates as they emerged from the bathroom.

[35]      Mr Ruben Tjombe who at the time was an inmate in cell one testified about a broom he had taken from the corridor which he took to cell one of Unit seven.  The broom disappeared and was never seen again.

[36]      Another witness, Mr De Klerk testified that at the time of the incident he was stationed at the Protected Resources division of the Namibian police.  He attended the crime scene at the Windhoek Correctional facility.  Having attended to the scene, he was approached by accused one who according to him, confessed everything and identified the two wires as the ones they had used in the stabbing of the deceased.

[37]      Mr Muyoro too testified that he attended to the scene at the Windhoek Correctional facility on the 18 January 2012.  He was presented with two objects by correctional officer Vaino Nicolae.  The objects were sharpened on the edges. 

[38]      Ms Erikka Katjire a police officer at Katutura police station testified that she visited the crime scene at cell four of Unit seven, at the Windhoek Correctional facility and found the deceased lying on the floor in the bathroom.  Whilst on the scene, warrant officer Basson handed over to her two wires in pen form which she kept in safe custody at the police station.  They were booked in as exhibits in Pol seven.

[39]      The exhibits were later on handed over to National Forensic Institute for testing.  According to Ms Marlyn Swarts both exhibits one and two tested negative for human blood using the immune chromatographic assay but positive when using a presumptive test for blood.  Exhibit two tested negative for both.

[40]      Both Mr Hamukwaya, Basson and Swarts corroborated each other on the types of wires handed in as exhibits on the 18 January 2012.  These objects were handed to correctional officer Vaino Nicolae by accused one and two.  Having finished to wipe off the blood, accused one called out correctional officer Salionga but he did not respond whereafter Sergeant Nicolae came out, opened the cells as accused one told him about a person lying on the ground in the toilet.

[41]      Mr Shiyukifeni a Correctional officer testified that his duties are to supervise the security personnel as well as to supervise the offenders’ movement and control at the facility.  On the 18 January 2012 he was on duty.  He knew the three accused persons as inmates at the Windhoek Correctional Facility.  He also knew the deceased, Eddie Gomxob who was a member in cell one.

[42]      On the 18 January 2012, whilst in his office, correctional officer Nicolae brought in accused one and two.  Accused one placed a sharpened object on the table in front of him whereafter he took another objet from accused two and put it next to the other object on the table.  Accused one informed him that the objects were theirs.  Correctional officer Nicolae informed him about somebody having been stabbed to death in cell four.  He was also informed about the identity of the deceased.  When Shiyukifeni asked about who had killed the deceased, accused one responded by saying it was them, making reference to himself and accused two.

[43]      Upon further inquiry how the deceased got to cell four, accused one responded that the deceased was locked in cell four during lunch time.  The matter was then reported to the head of security.  As accused one spoke, accused two remain quiet and did not say anything.  The two accused persons remain in the office waiting for the arrival of other officers.  The objects allegedly used in the stabbing of the deceased were placed in the drawer for safe keeping.  Mr Shiyukifeni described the objects allegedly used as sharpened long and a shorter one each wrapped in plastic material.  They were both sharpened at the edge and were made from iron.

[44]      According to Mr Shiyukifeni he had found similar sharpened objects that inmates claim to use when repairing their radios in the past.  He identified the objects as exhibit one and two before the Court.  These objects were then handed to Mr Muyoro from the drawer where he had placed them after accused one had placed them on his table in his office.  There were no other similar objects apart from the ones that accused one handed over to him on that date.

[45]      Mr Shiyukifeni remained with accused one and two until the time the police arrived whereafter they were handed over to Chief Inspector De Klerk and Commissioner Amukwaya after they had visited the crime scene.

[46]      Apart from accused one informing him that they were the ones that killed the deceased, he did not elaborate further neither did he ask him further questions in order to explain.  Further investigations where done and it was determined that the objects originated from the brooms at the prison.

[47]      Mr Shiyukifeni further testified about the procedures to be followed in cases where inmates are confronted with problems at prison.  Problems will usually be channelled through the security personnel who are dealing with the locking and unlocking of prison on daily basis.  Those complaints will be registered and inmates will have a chance to be heard through case management.

[48]      According to Mr Shiyukifeni, he did not receive a complaint from accused two who at the time was housed in cell one about a problem between him and the deceased.  The problem could have been reported to either the case management officer or the Unit manager who at the time was Superintendent Mateus Silas to whom he was accountable.

[49]      During 2011 the deceased and accused two were involved in a confrontation whereby the deceased alleged that accused two had taken a switch of his radio.  There was a second incident when accused two was walking in the courtyard with accused one as the deceased confronted them for unknown reasons.  These incidences were reported to the office by other inmates.  The incidences were documented though there were no injuries sustained.

[50]      Mr Shiyukifeni further testified about a complaint involving accused two and another inmate whom accused two had assaulted because the inmate had been coughing without holding his mouth, accused two did not confirm neither deny it, but the complaint was also documented.

[51]      There were other complaints made against accused two by other inmates concerning the possession of sharp objects in cell four whereafter a visit was made to cell four, in order to investigate the allegations.  The inmates were questioned about sharp objects and were ordered to take the objects to the offices at the prison.  Accused two later on handed over an object to the officers which he called his knife at the time.  This object was in a form of a wire that had been sharpened, it had no handle.  The object was then handed over to the head of security, Mr Nambundunga.  Objects would be kept for a day or two before being handed to the head of security.  At the time when accused one and two brought in objects at the office on the date of the incident, there were no other objects kept in Mr Shiyukifeni’s office that had been confiscated from inmates earlier on.

[52]      Mr Shiyukifeni also confirmed that it was usual for offenders to fight amongst themselves as they always had issues.  They would usually be called in to determine the reasons behind the fights.  Such incidences would then be taken down in writing as case notes in respect of a particular inmate.

[53]      Another incident that was reported by accused 1 was about his missing shoe which he suspected to have been taken by accused two.  The shoe was later on discovered.  That incident was documented even though accused one and two did not have a physical fight.

[54]      According to Mr Shiyukifeni there was a report made about accused one and two having been involved in a sexual relationship.  It was reported by other inmates.  Accused 1 was then called in and questioned about the allegations by Superintendent Silas.  He did neither deny nor confirm the allegations.  Accused one however, later on agreed that he had a sexual relationship with the deceased which had come to an end.  The alleged sexual relationship between accused one and two was also reported to the unit commander.

[55]      There was no occassion when Mr Shiyukifeni had received a request for transfer from accused one or two as the request will be directed to the unit manager, Mr Silas at the time.  The unit manager would in turn send the report to Health and Charging operations which was headed by Commissioner Kaipiti.

[56]      Regarding the policy on transfer, if the offender wanted to be transferred, he has to go through case management officer who must complete a form which in turn must be taken to the unit manager.  The transfer of inmates generally depended on the type of reasons given by an inmate, who is seeking for a transfer.  Inmates could be transferred within the institution itself but if need be, they could also be transferred elsewhere.

[57]      No request for a transfer was made by accused one or two at all.  In cases where assault had occurred between inmates at the prison, the authority had a disciplinary office were all disciplinary incidences were reported within the unit.  Criminal case were to be reported to the police at the Katutura police station.  No cases was ever reported at the Katutura police station in connection with the fights between accused two and the deceased as those incidences where considered lightly, due to that fact that there were no injuries sustained.

[58]      In cross examination Mr Shiyukifeni explained that the objects that were presented to him in his office where not similar to the objects usually used by inmates to repair radios as they were sharpened at the points, as opposed to the ones that are sharpened in flat forms.  According to him it was not uncommon to find such wires in the cells upon searches.  He persisted that the two exhibits presented before Court where the exhibits he handed over to Inspector Muyoro on the 18 January 2012.  He could not explain why there was no traces of human blood on the objects upon scientific examination as testified to by Ms Marlyn Swarts, who carried out the examination on the two objects.  Accused one made no reference about accused three, when he admitted to the incident.  Furthermore, Mr Shiyukifeni admitted that he had signed the case notes in which accused one had indicated that he was no longer in a sexual relationship with the deceased at the time of the incident, though the deceased did not accept accused one’s unwillingness to continue the sexual relationship with him.

[59]      Dr Kabandje, stationed at the Windhoek Central hospital police mortuary testified that he is employed as a senior forensic medical officer for six years.   He obtained his doctorate in medicine in 1996.  His duties are to perform post mortem examination on a daily basis, give expert evidence as well as collecting evidence in cases of homicides and other medical related issues.

[60]      On the 19th January 2012 he conducted an autopsy on the deceased Eddy Gomxob.  He compiled a Post-mortem report registered as PM 58 of 2012.  His findings were that the body had external contused wounds, laceration and punctured wounds.  In total there were 11 punctured wounds.  Four wounds on the right and seven on the left, altogether he observed 11 punctured wounds on the chest.  He found no defensive wounds on the deceased.  There were abrasions on the knee.  On the back side of the body there were also contused punctured wounds none penetrating, three wounds were superficial and non-fatal.  He found cephalohaematoma on the head which is a swelling of the skull due to bleeding, he also observed contused wounds on the left side of the neck.  There were abrasion wounds on the lower neck.  The third rib on the left chest had been fractured.   

[61]      His conclusions were that the cause of death was chest injuries inflicted by penetrative pointed objects.  He went on to explain that the penetrative injury to the left chest passed through the upper left lobe and perforated the pulmonary artery causing haemorrhage internally in the chest and around the heart leading to hypovolemic shock and death.  That was a fatal injury and it caused immediate death.

[62]      Furthermore, the doctor’s findings were that the deceased suffered from a head injury most likely caused by blunt impact on the head.  There was a swelling of the skull, bleeding as well as brain contusions.  All those were serious injuries which were noted.  He concluded that the deceased sustained injuries inflicted by a sharp pointed object as well as blunt force trauma, that being to the head.

[63]      The doctor further testified that he observed contused wound above the left eye and an incised wound below the left eye.  The wounds to the chest alone would be fatal.  He explained the importance of checking for defensive wounds which he did not find in this case.  The doctor went on to explain the different types of wounds.  Contused wounds would mainly in other words be like a bruise, where one has to look at the bleeding which goes within the skin which could be caused by blunt force trauma while laceration wounds, are caused by blunt force trauma, which could mean either having been hit or falling, it may look like a tear of the skin.

[64]      On the other hand punctured wounds would be normally caused by a sharp pointed object, such as a wire, whereby the width of the wound is small but the depth is deep which would correspond to the nature of the object, such as a hanging wire or a screw driver.  It could as well be caused by animal attack.  What the doctor found in this particular post-mortem examination were not incised wounds usually caused by a sharp penetrating object, but were punctured wounds caused by a pointed sharp object.

[65]      When the doctor was referred to the Photo plan exhibit ‘A’ with regard to photograph 14, depicting the objects allegedly used in the commission of the crime, his opinion was that the objects will be able to cause punctured wounds that he had observed on the body of the deceased.  In short those objects would inflict the kind of injuries which he had found on the deceased’s body.

[66]      Furthermore, the doctor testified that when it comes to head injuries, the brain will start to swell, such that it would no longer move further because it is attached to the cerebrum and the brain stem where the spinal cord starts.  That then become squeesed and as it gets squeezed, vital functions which are in that area such as respiration, breathing, become compromised and a person can die as a result.

[67]      His conclusion was that the swelling of the brain is what led to the death because the brain stem had been compromised.  According to the doctor, when one takes into account, the bleeding around the ears, after such trauma was inflicted in that area, by blunt force, bleeding inside the skull, would occur as a result of a direct impact in that area, for example if someone is kicked in that area.  Those wounds are potentially fatal.

[68]      Furthermore, in his opinion the injury on the third costal bone which caused a fracture could have been as a result of moderate force having been used to cause such a fracture and also to cause a hole in that part of the rib.  The fact that there was a bone fracture, means that there was a high impact force into the chest.  The head injuries on their own could also lead to the loss of life.  He concluded that the cause of death should have been as a result of chest injuries inflicted by penetrating pointed objects plus blunt force trauma to the head.

[69]      At the close of the state’s case each accused opted to testify in his defence.

[70]      According to accused one the deceased fought him all the time.  He laid complaints with the prison authorities about the bulling by the deceased and was only advised to stay away from the latter by correctional officer Silas.  He was also advised to stay on his own.  He became so frustrated and attempted to commit suicide at some point.  He opened a case against the deceased about the bulling.

[71]      Accused one also confirmed that at the time of his incarceration at the correctional facility he was aged 19 years but was being locked up with adult inmates though he was removed at a later stage.

[72]      Accused one further confirmed that accused two had advised him to stop the sexual relationship he had with the deceased at the time.  He denied to have had a homosexual relationship with accused two or three.

[73]      Accused one also denied that he and the co-accused had an arrangement to kill the deceased.  Further denying that accused two had fights with other inmates.  He denied to have made threats towards other inmates after the killing of the deceased.

[74]      When accused one was cross-examined why the deceased had sat on his bed, he responded that the deceased had come to apologise for the way he had been treating him in the past prior to the killing.  According to accused one he only complied with what the deceased had asked him and did not fight the deceased.

[75]      After he left for the toilet, he took sometime due to the fact that he had a problem with his bladder, and it was then when the deceased started to beat him with fists all over his face.  He managed to overpower the deceased as accused two than came into the toilet and they both started to attack the deceased aiming at the deceased’s chest.  Accused one confirmed that there were no defensive wounds on the deceased.

[76]      He further confirmed that the deceased had sustained seven punctured wounds on the left chest, four wounds on the right chest as well as a broken rib.  According to accused one accused three did not stab anyone, neither did he touch the deceased.  It was only him and accused two that stabbed the deceased where after accused three intervened in order to stop the stabbing on the deceased.  Accused one even confirm that when the deceased lay on the ground he continued to stab him because he felt that the deceased still pose a danger to him at the time.

[77]      Mr Andreas Nyundu testified on behalf of accused one informing the Court that the latter had informed him that their fights was because the deceased wanted to continue a home sexual relationship with him, which he no longer wanted.  When the witness advised the deceased to join him in going to church, the latter declined.  He later met the deceased who informed him that he had problems with accused one and two.  The cells were later on locked after which he saw the body of the deceased laying on the bathroom floor.  The witness further confirmed in cross-examination that the deceased was older but used to behave like a child.  The deceased had been his fellow inmate but they were in different cells and had not been close friends.  They only got to know each other as inmate at the facility.

[78]      Another inmate Mr Gotlieb Jansen testified that he shared the same cell with accused one.  He have had no relationship with accused three.  He also testified that accused one and the deceased used to fight almost every day.  He had reported the fights to the unit manager but the manager did not show any interests.  That was during 2009 and 2010.  According to the witness, the deceased used to treat accused one like a women.  He had observed fights between the deceased and accused one on some occassions.

[79]      Accused two’s testimony is that during 2012 he was an inmate at the Windhoek Correctional Facility at unit seven.  He met accused one in unit seven.  They became friends because they used to play soccer.  He then confronted accused one about why he was involved in homosexual activities as he was a men.  Accused two denied to have had a sexual relationship with accused one.   

[80]      On the 18 January 2012 at about 12pm the cells were locked whilst he was in cell four as there were no restrictions.  He had gone to cell four in order to play chess.  He was not aware that the deceased was also in cell four at the time.  According to accused two, he did not hear any conversation between the deceased, accused one and accused three.  He also did not have a fight with any inmate.

[81]      Accused two confirmed to have gone to the bathroom were he found accused one and the deceased fighting.  He joined accused one and started to stab the deceased with the wire he had been carrying in his pocket.  Accused two could not recognise the wires that were produced as exhibits before Court.  The reasons why he joined in the stabbing of the latter was because he had constant fights with the deceased who had blamed him for accused one’s refusal to continue a homosexual affair with him.  He had reported those fights to the authorities but he was never heard and no action was taken by the prison authorities against the deceased.  According to accused two, they have had physical fights as well as threats against each other with the deceased.

[82]      At the time of the stabbing, the deceased lay on the floor and had no weapon.  Accused three was not part of the stabbing.  Accused two further testified that he wanted to injure the deceased in order to scare him off as well as to stop him from fighting with other inmates in the future.  The reason why accused one had a homosexual relationship with the deceased during 2009 was because he wanted to get toiletries from the latter.

[83]      In cross-examination accused two confirmed that he owned a radio which was in his cell and used to do repairs on other inmates’ radios.  He denied to have had an iron object because he intended to kill the deceased as suggested by the state.  He did not threaten inmates after the assault on the deceased.

[84]      Accused three’s testimony’s that he was an inmate in cell four of unit seven at the Windhoek Correctional facility.  He knew accused one, two as well as the deceased.  He came to know the deceased after he had been made a chef who was responsible for distributing food amongst inmates.

[85]      On the 18 January 2012 he entered cell four and observed the deceased sitting on the bed of accused one.  He passed by accused one’s bed to his bed and started to eat.  Whilst eating, he realised that he was thirsty and reached for his container which had no water at the time.  He got out from his bed in order to get water and proceeded towards the bathroom door.  Upon reaching the bathroom he saw accused one and two punching the deceased.

[86]      He went to stand between accused one and two in order to stop the assault on the deceased.  He could see blood on the deceased’s face down to the neck.  He further observed iron wires in accused one and two’s hands.  Accused three denied to have had a homosexual relationship with accused one as claimed by Mr Willem Pieters, the state witness.  Accused three confirmed that the bathroom door was usually closed until one opens it as it has a spring door.

[87]      Mr Andrew Mukwena another inmate testified that he knew accused one and three since 2009.  On the 18th January 2012 he was attending classes in the dining room during the lunch break.  He left the class in order to go and smoke, he then went to cell four in order to get a light.  He met accused three who informed him about people fighting in the cell.  He was requested to inform the prison officers.  As he informed officer Nicolae, the latter did not take it serious.  In the meantime Mr Mukwena also heard the name of officer Salionga being called out and saw Willem Pieters another inmate.  He thereafter returned to his class.  He could not confirm threats being made towards the inmates by accused one, two and three.

[88]      There appear to be no dispute that the deceased at the time of his demise was an inmate at the Windhoek Correctional Facility.  Further it is common cause that he died as a result of the stabbing on the 18th January 2012.  Accused one and two are not disputing that they stabbed the deceased jointly as a result of which the deceased died in cell four bathroom of unit seven.  The deceased had been an inmate of cell one and not cell four of unit seven.  Accused two had also been an inmate of cell one of unit seven and it is questionable how the deceased and accused two ended up in cell four of unit seven on the date of the incident.

[89]      There is further evidence before court that there had been a homosexual relationship between accused two and three with accused one.  Accused three have denied to have had a homosexual relationship with accused one.  It has also emerged during the trial that accused one was involved in a homosexual relationship with the deceased which the latter claimed to have ended though the deceased did not accept that fate.

[90]      Mr Willem Pieters and Adolf Kahoro corroborated each other’s evidence that the deceased was called to cell four by accused one after they had come from Nampost.  Accused one and the deceased sat together on the former’s bed and had a discussion about shopping orders.  Mr Julias Van Wyk also testified that he saw accused one and the deceased in the bathroom at the time of the lock up and they were in a normal conversation.  It is thus questionable whether indeed their homosexual relationship had ended at that point in time.

[91]      Further evidence is that after accused one and the deceased had gone into the bathroom, accused two went to accused three, where they had a conversation whereafter  accused three also went into the bathroom.  Accused three does not dispute to have been in the bathroom where the deceased was stabbed by accused one and two but claim to have attempted to stop the attack on the deceased.  He denied to have been involved in the attack on the deceased.  On his own admission accused two confirmed to have stabbed the deceased but could not say how many times.  He admitted to have stabbed him more than once.  As accused one and two were seen stabbing the deceased continuously.  Accused three did nothing to stop them.  The reasons for the stabbing according to accused two was to hurt the deceased so as to stop him from further attacks on him. Accused two had no justification to stab the deceased who was already being stabbed by accused one at the time.

[92]      Although accused one has disputed to have been involved in a homosexual relationship with the deceased at the time, it is not clear why the deceased had come to him in cell four for them to compile the shopping list, if it were true that the deceased had fought him a lot.  It also baffles one’s mind how they ended up in the bathroom together followed by accused two and three.  Evidence placed before Court is that accused one had a homosexual relationship with accused two and three at the same time, which could have fuelled jealousy between the deceased, accused two and three and therefore the killing of the deceased in order to get rid of him.  As earlier conceded that accused two and the deceased were not members of cell four at the time.  The deceased was lured by accused one in a pretext to compile a shopping list.  They ended up in the bathroom, whereafter accused two followed them and found accused one attacking the deceased.  Accused two joined in the attack on the deceased without any provocation from the deceased.  He confirmed to have stabbed the deceased for more than once.   

[93]      Whereas accused one claimed to have acted in private defence, by alleging to have been attacked by the deceased, he confirmed at the same time that he had managed to disarm the deceased whereafter he proceeded to stab him several times with a sharpened object all over the body.  Accused one was at that point in time no longer in danger of the deceased.  There is undisputed evidence by the doctor who conducted a post-mortem examination on the body of the deceased where he had observed a total of 11 punctured wounds.  These wounds where directed to the vulnerable part of the human body being the chest.  Other injuries were observed on the deceased’s head which could have been as a result of a blunt object having been used on the deceased.

[94]      Mr Matheus Nuugonya testified that he saw the deceased being stepped on by accused three as the latter lay on the floor of the bathroom.  Accused three wore prison boots at the time.  Both witnesses Willem Pieters and Adolf Kahoro corroborated each other’s evidence about accused three stepping on the deceased’s head.  They further confirmed to have heard threats being made towards inmates in cell four that if they were to report to the authorities they will be killed, thereby instilling fear in the inmates in cell four after all the three accused persons had emerged from the bathroom.

[95]      Mr Julius Van Wyk confirmed to have witnessed accused three picking up his cap in the bathroom, which could only have fallen after the stepping on the deceased’s head by accused three as testified to by Mr Matheus Nuugonya as well as Willem Pieters and Adolf Kakoro.

[96]      Counsel for accused one argued that he had acted in self-defence as deceased had been troubling accused one on many occasions.  He further argued that accused three was never a party to the attack on the deceased but went to the toilet merely to drink water at a wrong time.  He also argued that the state did not prove that accused three acted in common purpose with accused one and two and as such no evidence was adduced to meet the requirement of common purpose.

[97]      Though accused one and two have denied the involvement of accused three in the attack on the deceased, there is however, corroborative evidence of the doctor who conducted the post-mortem examination on the deceased’s body whereby he made an observation of injuries on the deceased’s head which could have been occasioned by a blunt object, consistent with the three state witness’s version of having observed accused three stepping on the deceased’s head as the latter lay on the bathroom floor of cell four in unit seven.  Evidence is that accused 3 wore prison boots at the time.  Mr Juluis Van Wyk also testified that he saw accused three picking up a cup on the floor of the bathroom as the deceased lay on the floor.  Accused three confirmed to have been in the bathroom as his co-accused stabbed the deceased though denying his involvement in the attack itself.  He did nothing to stop the attack on the deceased thereby associating himself with their conduct.

[98]      The State allege common purpose, amongst the three accused persons at the time the crime was committed.

[99]      In terms of Section 155 of the Criminal Procedure Act 51 of 19771 as amended persons implicated in the same offence may be jointly tried.  That doctrine was discussed in detail in the matter of S v Gurirab and Others2 whereby it referred to S v Safatza and Others3 and Mgedezi and Others4 as follows:  It was laid down that;

‘In cases where the state does not prove a prior arrangement and where it was also not shown that the accused contributed causally to the wounding or death of the deceased an accused can still be held liable on the basis of the decision in Safatza supra if the following prerequisites are proven namely:

(a)     The accused must have been present where the violence was being committed;

(b)     He must have been aware of the assault being perpetrated;

(c)     He must have intended to make common cause with those who were actually perpetrating the assault;

(d)     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 other;

(e)     He must have had the requisite mens rea; in respect of the killing of the deceased;

(f)      He must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not deaths was to ensure (at 705 – 706).’

[100]   In the instant case there is direct evidence that as accused one was seen stabbing the deceased, accused two joined in.  The deceased was stabbed several times and sustained a total of 11 punctured wounds all over the body as per the post-mortem examination conducted by the doctor.  Accused one and two do not dispute that they stabbed the deceased each.  They could not recall how many times, but did so more than once.  The stab wounds were directed towards the vulnerable parts of the human body that being to the chest.  They were reckless.

[101]   Accused three joined in and was seen stepping on the deceased’s head, thereby associating himself with the conduct of his co-accused.  His denial in the attack of the deceased cannot be reasonably true, under the circumstances and it stands to be rejected.

[102]   It is trite that in order to determine whether an accused person has committed the crime charged, the Court is bound to consider the totality of the evidence in respect of each accused.  In S v Van den Mayden5 Nuget j had the following to say:

‘A Court does not base its conclusion, whether it be to convict or to acquit on only part of the evidence…  What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence.  Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.’

[103]   The Court’s have held that people generally would profess their innocence from the start.  There is corroborative evidence of accused three having been seen stepping on the deceased as he lay on the floor of the bathroom, whereafter he joined accused one and two chatting as if nothing had happened.  One could have expected accused three to have disassociated himself with accused one and two as soon as possible.  Accused one, two and three were seen seating together after the killing of the deceased.

Though there are some contradictions in the States case, it is not uncommon that witnesses when testifying, differ from one another in minor respect, instead of relating identical versions to the Court.  There can be various reasons explaining this phenomenon and does not necessarily mean that deliberate lies were told to Court.  Contradictions per se do not lead to the rejection of a witness’s evidence as it may simply be indicative of an error.6

[104]   Further evidence is that after the attack on the deceased, accused one and two threaten the inmates with assault if any of the inmates spoke about the attack thereby interfering with police investigation in the murder of the deceased as testified to by Willem Pieters and Adolf Kahoro.  Accused three did nothing and stood with his co-accused after he was seen by Matheus Nuugonya holding onto the wall and stamping on the head of the deceased.

[105]   In my view there is sufficient evidence adduced by the state by which such high degree of probability is raised that the ordinary reasonable man, after mature consideration, come to the conclusion that there exist no reasonable doubt that each accused committed the crimes as charged.

[106]   There is no doubt that accused three made common cause with accused one and two to commit the crimes.  All the requirements for the doctrine of common purpose have been met.  Each accused was present and performed an act of association.  Accused one attacked the deceased first and was joined by accused two and then accused three.  It is clear from the evidence that the deceased was stabbed several times, thus there was a clear intention to kill the deceased.  There could be no other reason to have stabbed the deceased all over the body several times and also stamping on his head as he lay on the floor of the bathroom helpless without a direct intent to kill him.  The reckless stabbing of the deceased all over the body was with a direct intent to kill him.  Each accused obviously must have been aware of the unlawfulness of this conduct.

[107]   Accordingly each accused is found guilty on both counts and is convicted as charged.

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

D N USIKU

Judge

APPEARANCES

STATE:                              Ms Ndlovu

                                         Of Office of the Prosecutor-General

ACCUSED’S 1 and 3:          Mr Siyomunji

                                          Siyomunji Law Chambers

                                          Instructed by Directorate of Legal Aid

ACCUSED 2 :                      Mr Engelbrecht

                                          Engelbrecht Attorneys

                                          Instructed by Directorate of Legal Aid                                                            


1Section 155 Criminal Procedure Act 51 of 1977 as ameded

2S v Gurirab and Others 2008 /NR at 322 – 323

3S v Safatza and Others 1988 1 SA 899 (A)

4S v Mgedezi and Others 1989 1 SA 687 (A)

5S v Van den Mayden 1999 S SACR 447 (w) at 449 g and 450 a SACR

6S v Awala 2008 1NR 223.