Court name
High Court
Case name
S v Malumo Liseli and 118 others
Media neutral citation
[2007] NAHC 177




















CASE
NO.: CC 32/2001












IN
THE HIGH COURT OF NAMIBIA











In
the matter between:















THE
STATE











and











CALVIN
LISELI MALUMO + 118 OTHERS















CORAM:
HOFF,
J





Heard
on:


2006.02.22,
2006.02.27













Delivered
on:
2006.02.28














JUDGMENT:















HOFF,
J
:
This
is an application in terms of. Section 317 of Act 51 of

1977
for a special entry in terms of the following irregularities:








  1. that
    this Court made, a ruling that the State is permitted to lead
    evidence outside the parameters of the further particulars supplied
    to Accused No. 90;



  2. that
    this Court erred in that contrary to the concession made by the
    State that they particularize four meetings against Accused No. 90,
    in holding that the further particulars supplied in essence form
    part of the summary of substantial facts in terms of section 144 of
    Act 51 of 1977;



  3. that
    this Court erred in putting form over substance;



  4. that
    this Court erred in law by reading the phrase
    "various
    meetings"
    disjunctively
    as opposed to conjunctively rendering the words
    "planned
    attacks"
    of
    paragraph 1 (a) of the further particulars supplied meaningless;
    and



  5. that
    this Court erred in law by effectively abrogating the further
    particulars supplied by the State prejudicing the defence of
    Accused No. 90 which has the effect of infringing the right of
    Accused No. 90 to a fair trial as envisaged in the Namibian
    Constitution.








This
application was opposed by the State.











In
considering this application it is thus necessary to look at the
ruling itself and the reasons for such a ruling.











The
basic objection by Mr Kauta was that since the State provided
further particulars the State is bound by those further particulars
provided and should not be allowed to lead evidence of incidents
relating to events outside those incidents referred to in their
further particulars. This is also the first irregularity referred to
in this application and it is from this alleged irregularity that
the other alleged irregularities flow from.











In
my previous ruling which I shall refer to as
"the
further particulars ruling"
I
have given reasons why I have found that the further particulars
requested and the further particulars provided are confusing and
embarrassing and do not wish to repeat those reasons. It is thus on
this basis that I have in the
further
particulars ruling
considered
two options.



Firstly
that it appears to me that what was provided by the State is a
conflagration of a summary of substantial facts (section 144 of Act
51 of 1977) and further particulars (section 87 of Act 51 of 1977).



I
have then indicated that if one considers the information provided
by the State as summary of the substantial facts on which the State
relies upon then the State is not precluded from leading evidence
outside what is contained in the summary since the State is not
bound by the facts referred to in the summary.











I
have secondly indicated that if all the information provided by the
State in response to the request for further particulars should be
regarded as further particulars then the further particulars refer
to as least five separate and distinct meetings allegedly attended
by Accused No. 90 and that in addition he attended
"various
other meetings."



It
is on the basis that the further particulars refer to
"various
other meetings"
that
this Court ruled that the State is not precluded from leading
evidence which is perceived as evidence outside the further
particulars and this Court remarked that it would have expected an
request for further and better particulars since the phrase
"various
other meetings",
is
vague.











The
particulars requested were very specific. Paragraphs 1.7 and
1.8 read as follows:



"1.7
Was accused at a meetings (s) were the violent take-over was planned
or did he plan the violent take-over himself ? Precise and full
particulars are requested.











1.8
If accused planned the violent take-over at a meeting (s), the State
is requested to furnish particulars with respect to the place and
date of such meetings."











In
section A of the reply by the State under the heading
"Summary
of Evidence"
the
State tabulated four different meetings i.e. one at the DTA office
in Katima Mulilo, one at Linyanti village during 1998, one at the
house of Richwell Matengu Mukungu during 1998, and one during 1999
at the house of Gabriel Mwilima. In section B under the heading:
"More
specifically the allegations against the accused are the following":
appears
at par. 1 (a)











"the
accused attended various other meetings and particularly a meeting
on 01 August 1999 at Linyanti Khuta where the planned attacks were
discussed."











In
my view this reply far from being specific is vague and embarrassing
and I must repeat what I have said in
"the
further particulars ruling"
i.e.that
one would have expected a request for further and better
particulars. This was not done.











My
understanding of the submissions on behalf of Accused No. 90 is that
the
"various
other meetings"
referred
to in section B must be understood and limited with reference to the
four meetings referred to in section A. I disagree since there is no
indication from the further particular provided to which meetings
are referred to by the phrase
"various
other meetings"
hence
it cannot now be suggested that this Court erred in reading that
phrase disjunctively.











The
alleged irregularity that form is being put above substance is in my
view a bald assertion and without substance.











It
should in addition be clear from what was said
supra
that
there is no foundation that this Court in
"the
further particulars ruling"
abrogated
the further particulars supplied by the State.











I
am of the view that this application for s special entry in terms of
section 317 of Act 51 of 1977 is frivolous and this Court
accordingly
refuse
to record the alleged irregularities stipulated by counsel in this
application.





ON
BEHALF OF THE STATE:























Instructed
by:






ADV. JANUARY















OFFICE
OF THE PROSECUTOR-GENERAL





















ON
BEHALF OF ACCD NO. 90:







MR
KAUTA





Instructed by:
DIRECTORATE
O F

LEGAL
LEGAL AID