Court name
High Court
Case name
Kenyoka and Others v S
Media neutral citation
[2009] NAHC 102














CASE NO.: CC 03/2004



IN THE HIGH COURT OF NAMIBIA







In the matter between:







MUNUMA PROGRESS KENYOKA
1
ST
APPLICANT



SHINE SAMULANDELA
SAMULANDELA 2
ND
APPLICANT



MAKENDANO MANUEL MANEPELO
3
RD
APPLICANT



ALEX SINJABATA MUSHAKWA
4
TH
APPLICANT



DIAMOND SAMUNZALA SALUFU
5
TH
APPLICANT



FREDERICK NTAMBILWA ISAKA
6
TH
APPLICANT



HOSTER SIMASIKU NTOMBO
7
TH
APPLICANT



BOSTER MUBUYAETA SAMUELE
8
TH
APPLICANT



JOHN MAZILA TEMBWE
9
TH
APPLICANT



ALEX MAFWILA LISWANI
10
TH
APPLICANT







and







THE STATE
RESPONDENT







CORAM: MANYARARA,
A J







Heard on: 01 June 2009



Delivered: 03 July 2009







JUDGMENT







MANYARARA, AJ.: [1] This
is my judgment on the application for leave to appeal to the Supreme
Court heard on 1 June 2009.




[2] The applicants are not
legally represented; Mr. Small, with him Ms Lategan, represent the
state as they have done throughout these proceedings.







[3] Twelve persons initially
appeared before this court charged with High Treason and related
offences (the accused). At the time, all the accused were, between
them, represented by Mr. Grobler and Mr. Ndauendapo, respectively, on
the instructions of the Directorate of Legal Aid. Mr. Grobler and Mr.
Ndauendapo will hereinafter be referred to as the “defence
Counsel.”







[4] When the charges were put
to the accused, they all entered special pleas that this Court has no
jurisdiction to try them. They led evidence in support of their
special plea and the state led evidence opposing the special plea.
After hearing and considering all the evidence and submissions made
by the respective counsel, the issue was struck off.







[5] The accused then launched
an application for my recusal. This was also opposed by the state.
After hearing and considering all the submissions made, this
application was dismissed.







[6] The charges were again put
and all the accused refused to plead. A plea of Not Guilty was then
entered on behalf of each accused as required by law.







[7] The state led evidence on
the charges but the accused elected not to cross examine the
witnesses and refused to instruct defence counsel to cross examine.







[8] At the close of the state
case the accused applied for their discharge and the application was
dismissed.







[9] The issue of lack of legal
representation for the accused has been raised in the present
application. This issue was disposed of at the trial as follows:



(1) It is on the
record of this trial that the Directorate of Legal Aid granted the
accused legal representation in the persons Mr Grobler and Mr
Ndauendapo to defend the accused against the charges which have been
laid against them in these proceedings.







(2) It is also on record
that the accused refused the legal representation granted by the
Directorate to defend them in this trial, and refused to give any
instructions to counsel present in court to defend them. The accused
insisted that the only legal representation they wanted was legal
representation to challenge Namibia’s presence in Caprivi.








  1. It is further on record
    that the Directorate of Legal Aid informed the accused and that the
    Director came personally and informed the court that it was
    impossible for the Directorate to provide the type of legal
    representation suggested by the accused.









  1. It is on record too, that
    it was in the above circumstances that the two counsel provided by
    the Directorate ceased representing the accused and the accused were
    thus left without legal representation out of their own choice.”





[10] However, the Court
requested the two counsel to remain in attendance in case the accused
changed their minds and decided to instruct them after all. This,
the accused did not do. At one stage the accused laid a complaint
with the Law Society that the two counsel were in Court as “window
dressing.” The two counsel were thus compelled to ask the
Court to excuse them and the Court had no alternative but to grant
the request.





[11] Thereafter, the accused
refused to attend the trial although it was made abundantly clear to
them that they were entitled to attend and participate in the trial
and that it was in their best interest to attend and listen to the
state evidence after which they may be minded to challenge the
evidence or certain aspects of the evidence. The Court also caused
the accused to be brought individually into Court to explain to each
accused why the trial would take place in the absence of the accused.
But the exhortation and explanation also made no impression
whatsoever on the accused.







[12] The Court further
explained to the accused that in terms of our law allegations made
from the dock, that they are not Namibians, do not constitute
evidence; in order to constitute evidence, the accused must take the
witness stand and give evidence in support of the allegations, on
which they would be cross examined just like any other witness. This
explanation was also disregarded. In the result, the Court finally
ruled that the allegations were irrelevant, dismissed the allegations
and put the accused on their defence.







Therefore, the Court will not
permit the issue of lack of legal representation to be raised again
and the issue is closed.







[13] Two of the accused were
acquitted in the course of the trial upon the concession by the state
that it had not made out a case beyond reasonable doubt against them.
The rest of the accused were convicted of High Treason and sentenced
to varying terms of imprisonment.




[14] The erstwhile accused (now
applicants) have applied to the Court for leave to appeal to the
Supreme Court against their conviction and sentences and the
application is opposed.







[15] The law on granting or
refusing an application for leave to appeal is clear and it is
precisely as the state has submitted, that this Court does not have
an unimpeded right to grant leave to appeal to the Supreme Court;
before this Court can grant such leave, it has to be satisfied that
there are reasonable prospects of success on appeal. This is how the
Court approached the applicants’ application for leave to
appeal against sentence, i.e. after perusing (reading) the documents,
the Court was convinced that there are reasonable prospects of
success on appeal, in that another Court might arrive at a different
conclusion and alter the sentences. And it is on that basis that the
Court has granted leave to appeal against sentence only.







[16] A similar approach has
been adopted on the application for leave to appeal against
conviction covering the special plea on jurisdiction, my recusal, the
applicants’ Namibian nationality, conditional discharge etc.
One has only to read the record to realize that it is beyond dispute
that it is of the applicants’ making that they were convicted
of the offence charged, High Treason, by refusing to give evidence or
to instruct counsel to challenge state evidence, insisting that they
only wanted the Directorate of Legal Aid to get them lawyers who
would challenge Namibia’s occupation of Caprivi and so on. The
request could not be granted for reasons which are adequately dealt
with in my judgment on that issue.







[17] The record shows that,
after my refusal to recuse myself, I went out of my way to assist the
applicants in the trial but they spurned (rejected) the offer and did
their worst to disrupt the trial by singing and shouting and
sloganneering, to the extent that they were constantly reminded to
show respect to the proceedings and, ultimately committed for
contempt of court and excluded from the rest of the trial unless they
changed their behaviour, which they flatly refused to do.







[18] As a result, the only
evidence before the court came from the state and, in the absence of
any challenge, the Court was left in no doubt that the state had
proved beyond reasonable doubt that the applicants were guilty of
High Treason and convicted them accordingly. The Court adheres to
its judgment, to which reference should be made, and the Court is of
the firm view that, on the record as it stands, there are no
reasonable prospects of success on appeal against conviction and the
application is dismissed.







[19] In conclusion, let me make
it clear that as leave to appeal against conviction has been refused,
the applicants may still petition or apply to the Supreme Court to
grant them leave to appeal against conviction. But they should not
wait to come before the Supreme Court on the sentence part of the
application, which has been successful, and then suddenly raise the
issue of conviction in respect of which leave to appeal has been
refused. The appeal to the Supreme Court should be presented as one
matter for that Court’s decision.







[20] For the record, although
it is not the normal practice to read the whole of such a judgment
but to announce only the result, I have read the judgment to give the
applicants the advantage of professional interpretation and a copy of
the judgment will be provided to each applicant through Mr Shikuambi.







__________________



MANYARARA, AJ











ON BEHALF OF THE APPLICANTS In
Person







ON BEHALF OF THE
RESPONDENT Adv. Small


assisted by: Adv.
Lategan



Instructed by:
Office of the Prosecutor-General