S v Goagoseb and Another (CC6/08) [2010] NAHC 37 (08 June 2010);

Group

Full judgment




REPUBLIC OF NAMIBIA



CASE NO. CC6/08

IN THE HIGH COURT OF NAMIBIA

Held at Windhoek



In the matter between:

THE STATE

and

STEVEN GOAGOSEB Accused no. 1

MICHAEL WILLIAMS Accused no. 2



CORAM: VAN NIEKERK, J



Heard: 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 22, 23, 25 June 2009; 17, 18, 26 May 2010

Delivered: 8 June 2010

___________________________________________________________________________

JUDGMENT

VAN NIEKERK, J: [1] The two accused are standing trial on charges of murder and robbery with aggravating circumstances. On the first count they are alleged to have unlawfully and intentionally killed Anton Matesu (“the deceased”) between 22 and 23 January 2005 at Windhoek. On the second count they are charged that they, on the same date and at the same place unlawfully and with the intention of forcing the deceased into submission assaulted him by tying his hands and feet and gagging his mouth and/or hitting him over his body with intent to steal and that they took certain goods from him with the intention to steal. It is further alleged that aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977) are present in that the accused and/or an accomplice was/were before, during or after the commission of the crime wielding a firearm or any other dangerous weapon, or inflicting grievous bodily harm or threatening to inflict grievous bodily harm. The goods they are alleged to have stolen are a Proline computer (including the hard drive, the keyboard, screen and mouse); a Canon printer; two television sets; a Nu-tec microwave oven; three cooking pots with lids; a Kenwood food processor; a Singer sandwich toaster; a mirror; a Singer kettle; a Sansui DVD/home theatre system with speakers; a ring; a pick-up motor vehicle with registration number N75816W and ignition key; a Facet lady’s wrist watch; a Tempo men’s wrist watch; a Phillips shaver; an electric plug, a television antenna; a Siemens cell phone car charger; 3 compact discs; one pair of All Star trainer shoes; one pair of brown trainers; one Sansui remote control; a driver’s licence no. 201918; a Legal Shield card no. 102173; an identity card with number 65120500048; a Standard Bank cheque book; a brown money purse; a black hand bag; a blanket; a Trade Centre card; cards issued by Edgars, Foschini, Woermann Brock, the Social Security Commission and Namcol.

[2] The summary of substantial facts provided by the State in terms of section 144(3)(a) of Act 51 of 1977 gives the following information:

During the late night hours of January 22, 2005 or the early morning hours of January 23, 2005 the two accused accompanied the deceased in the deceased’s motor vehicle to the deceased’s residence situated at Erf 1311 Mountain Thorn Street in Akasia Park in Windhoek where the accused assaulted the deceased and/or tied his hands and legs and gagged his mouth. The deceased died on the scene due to asphyxia. The accused took from the deceased the properties as listed in Annexure A to the indictment and abandoned the deceased’s motor vehicle and ignition key at or near the Monte Christo Road in Okuryangava.

The accused acted with common purpose at all material times.”



[3] The State was represented throughout by Mrs Wantenaar. Ms Hamutenya appeared for accused no. 1 and Mr Basson for accused no. 2 on the instructions of the Director of Legal Aid.

[4] Both accused pleaded not guilty to both charges. Accused no. 1 handed in a so-called plea explanation in writing, which merely confirmed that he was pleading guilty and that he offered no explanation of any defence. He did, however, make admissions in terms of section 220 of Act 51 of 1977. These were that he admitted the identity of the deceased; that the body of the deceased did not sustain any further injuries during transportation to the mortuary; and that all the items allegedly stolen and listed in Annexure “A” to the indictment handed were found in his possession, except the key to the motor vehicle, a Volkswagen bakkie. Accused no. 2 made admissions in terms of section 220 which were put on record by his counsel. These were that he admitted the identity of the deceased; that the body of the deceased did not sustain any further injuries during transportation to the mortuary and until the post mortem was conducted; and that the goods listed in Annexure “A” were discovered at the joint residence of him and accused no 1, except the motor vehicle N75816W and its ignition key, and a ring.

[5] During the trial it became apparent that the accused were basing their case on denials that they were involved in the alleged murder and/or robbery of the deceased, but that, instead, the real culprits were the deceased’s wife (Bernadette Edwina Matesu, also referred to as “Wina”) and a friend of hers, Mr Fredrich Edward Besser (“Fred”), who was also acquainted with the deceased. They instructed their legal representatives to put certain versions and allegations to these witnesses during cross-examination. The accused did not testify and did not call any witnesses.

[6] Several State witnesses testified about events which took place at Khomas Mall, a club and bar in Khomasdal, on the evening of 22-23 January 2005, prior to deceased’s death. They were Mrs Matesu, Mr Besser, Mrs Matesu’s son Keith Jacobs (“Kido”), Mr Benito Xoagub and Mr Trevor Barry.

[7] Mrs Matesu married the deceased in 1994 in community of property. They have two children. They were both members of the Namibian Police at the time. Later deceased joined the Windhoek City Police. At a certain stage they moved into the house in Mountain Thorn Street, Acacia Park. According to Mrs Matesu, the deceased was jealous and had issues about money. He would drink too much at times and assault her. Later she could not tolerate his behaviour any longer and left deceased during November 2004. She moved to Erf 3304, Dahlia Street in Khomasdal with her children, to reside there with her mother. That area is also known as Spokiesdorp. Deceased transported the children to school every day and often visited her and the children there. He wanted her to return to him. However, he kept abusing alcohol and fighting with her from time to time. She therefore did not want to return.

[8] On 15 January 2005 deceased caused problems when she and her friends were at Khomas Mall. She and one of her friends laid charges of assault against deceased. Later that day deceased and two relatives arrived at her house in Spokiesdorp and removed several items of furniture, like televisions, beds, curtains and a television cupboard. These items were taken back to the house in Acacia.

[9] On Saturday 22 January 2005 the deceased invited her and her friends to come to a braai at their house in Acacia. He wanted to make up for the things he had done wrong. She gave him her bank card with which to buy food and drink for the braai. Deceased consumed some alcohol during the afternoon.

[10] At about 22h00 they cleaned up and took the children to her house in Spokiesdorp. Her friend Serena also came to park her car at this house in the yard. From there they all went to the club in Khomas Mall. They drove in the Matesus’ bakkie. At some time around midnight Mrs Matesu was dancing when accused started saying bad things about her and tried to grab her. In the process he fell and hit his head. He sustained an injury on his forehead which was bleeding a lot. They decided to take the deceased to hospital to get stitches. She went outside to see if her son Kido, who borrowed the bakkie earlier, was back. She saw him in the parking area and fetched deceased inside the club. When they came to the car, the two accused were already sitting at the back. When deceased refused to go to hospital they spoke to him in Damara, where after he agreed to go. Fred drove the car. She sat in front with Fred. Deceased, Kido, George and the two accused sat at the back.

[11] She was looking for her handbag which she thought was in the car to get the medical aid card. When she could not find it, she told Fred to drive to her house in Spokiesdorp. There she had to wait for her mother to open the door. Deceased joined her at the door. She looked for her handbag in the house, but could not find it. She accepted that she must have left it at the house at Acacia. She went outside where deceased picked an argument with her. He pushed or slapped her at the washing line pole. She decided not to go with him and said that if he wants to go to the hospital he should go alone. She went inside and lay down. Deceased and the other men left with the vehicle. It is common cause that she told Fred to take deceased wherever he wanted to go.

[12] At about 3h00 deceased came to her house again with the bakkie. It was the same time that Serena also came to fetch her car. Mrs Matesu did not then have a look at who were on the bakkie and she also did not speak to the deceased. The two vehicles drove off. At about 4h00 the deceased returned again and knocked at the window. They spoke for about 10, 15 minutes, but it was a kind of argument because she did not want him to make a noise and he wanted her to come out to talk, but she refused. She told him that he was drunk and that he would not remember anything he said the next day. She told him to come back the next day so that they could talk. She also said that she needed the car to go shopping the next day. They agreed to meet at 9h00. She saw deceased go back to the bakkie and talk to two men she did not know and who were sitting at the back. He then drove off after a while. She could not say if they were the same two who were earlier on the bakkie because she did not look at them carefully the first time. In my view this does not matter, because the two accused’s case during cross-examination was that they were indeed on the bakkie, but that Fred was driving and that deceased was also in the bakkie.

[13] The next morning she woke up at 9h00 and quickly got ready to meet deceased. He did not turn up. She phoned his cell phone, but only got voice mail and on the landline there was no reply. She walked up and down in the street in their neighbourhood in case he was there as was his habit, but she did not see him. During the day she tried several times to make contact by phone but with no success. She could not travel there by taxi as she did not have enough money on her. Between 16h00 and 17h00 she met Fred and one James in the street. They spoke about the previous night’s events. She mentioned that she has been trying to get hold of the deceased without success; that his cell phone was always on voicemail; and that the home phone was not answered. According to her, Fred mentioned that the two accused were naughty and dangerous boys who could easily have taken deceased’s cell phone from him or even injure him. (However, this version is denied by Fred.) At about 18h00 she persuaded a taxi driver to take her and her friend Leandra to Acacia Park. She told the taxi driver that she would pay him at Acacia once she has found her handbag.

[14] At the house she noticed that the gate was closed, but the garage door was half open. She found this strange, as deceased was always particular that the garage door should be kept closed. The bakkie was not there. She thought that the deceased might quickly have gone somewhere. Nevertheless she knocked on the doors and windows, walked around the house and called him. On her way out towards the gate she noticed that one of the living room windows was open. She shifted away the curtain and saw the sandals he normally wore on the floor. The bedroom door was closed. She noticed that the kitchen was in disarray and that some of her pots, the microwave oven, the television set and the CD player were missing. She called Leandra to come and have a look. The taxi driver also looked. She suggested to Leandra that they should go home, because the deceased might have also noticed that the items were missing and have gone to look for her to tell her about it. Alternatively she thought that the deceased might have put the items in the bedroom and wanted to pretend that the items were gone as a way to lure her back to the house. It seems the deceased had been trying to persuade her to return to him and she thought that perhaps this was a trick employed by him.

[15] She returned home and made further enquiries about her husband’s whereabouts, but to no avail. She then bathed the children and got them ready for bed. While thus busy she began to think that perhaps something had really happened and that someone might have broken in. She then called the police radio room and asked that her colleagues in the Task Force come to fetch her so that they could go to the house together. Between about 20h30 and 21h00 they arrived and they went to Acacia Park. They pulled the couch closer to the open window and she noticed, what she thought was her handbag, as well as bank cards and bank statements lying on the couch. She also noticed the house keys the deceased normally used on the couch. They got hold of the keys and unlocked the front door. Later she discovered that her handbag was not on the couch where she left it the Saturday before they left for Khomas Mall. A few days later the police delivered the handbag to her.

[16] She saw the spare set of house keys as well as her set which she left at the house after she moved to Spokiesdorp, hanging on a hook. She made the inference that the person(s) who locked the house after tying up the deceased and removing the property had locked the front door with the deceased’s keys and thrown them onto the couch from outside via the sitting room window.

[17] Inside in one of the bedrooms she found all the items the deceased had taken from her house in Spokiesdorp on 15 January. The main bedroom door was locked. They looked for the key and tried some of the other door keys, but with no success. Eventually her son forced it open. They discovered the deceased dead inside, tied up. She was upset and immediately went outside. She called deceased’s sister and reported their find and said the family must come immediately. After the phone call she noticed that the Task Force members were gone. She then phoned Hilaria at the Windhoek City Police and asked that she sends police to the house as something has happened there. After a while members of the Serious Crime Unit of the Namibia Police arrived with members of the Task Force. She provided information about the missing vehicle.

[18] She only returned to the house again on the 26th or 27th of January. She reported which items were missing, including the deceased’s ring, which he normally wore. On about 26 or 27 January, Mrs Matesu gave the police the spare keys to unlock the bakkie which had been found in the meantime. Inside behind the passenger seat the car keys normally used, as well as her office keys were found. It would appear that when the bakkie was abandoned, it was locked with the keys inside.

[19] Mrs Matesu denied that she ever asked Mr Besser to fetch her things that deceased had taken on 15th or that Mr Besser came to her house to talk to her late that night and that she refused to talk to him. She denied the accused’s instructions that the goods were taken from deceased’s house on her instructions to Mr Besser or that she had any knowledge that they would be paid N$300 to keep the goods at their house until Besser came to fetch them.

[20] Fred Besser confirmed that he was also at Khomas Mall that night, that deceased injured himself and that he needed medical attention. Deceased got onto the back of the bakkie. Mr Besser saw the two accused on the back as well. He knew accused no. 1 from before, as the latter often used to come visit in the street where Mr Besser resided. He also saw accused no. 2 with first accused quite a lot. At the Dahlia Street house Mrs Matesu got off and stayed behind. Deceased refused to go to the doctor and he drove deceased back to Khomas Mall after Mrs Matesu told him that he must take deceased to the Mall where he wants to be. The accused went with them. At the Mall he gave the vehicle key to deceased who parked the car closer to the club. He went into the club and later the deceased followed. He also saw the two accused there. Just before closing time he left to go to Club Remix with his friend Trevor. Deceased was still at Khomas Mall and the accused were around him. Mr Besser spent some time at Remix. At closing time he and Trevor went home at dawn.

[21] The next day he met Mrs Matesu in the street. She told him about her problem in trying to contact the deceased on his cell phone. He told her that he left deceased in the company of the accused and that they could perhaps have taken his cell phone because deceased was drunk and accused no. 1 used to do such things in the past. However, he denied Mrs Matesu’s version that he told her that the accused were dangerous and they might have hurt the deceased. The next day he heard that the deceased had passed away.

[22] He denied knowing where the deceased’s house was and said that he had never been there. On behalf of accused no. 1 Ms Hamutenya put the following instructions to Mr Besser, all of which he denied: When they were all at the house in Dahlia Street and Mrs Matesu told Mr Besser to take the deceased wherever he wants to be, she also told him to bring her goods back to her (as I understand it, these were the goods the deceased removed on the 15th). At about 3h00 around the time Khomas Mall closed, accused saw Mr Besser and deceased get into the vehicle; that they asked for a lift to the big shops; that Mr Besser agreed to drop them there as he was taking the deceased to the Katutura Hospital; that they got onto the back of the bakkie and that Mr Besser drove them to the house in Dahlia Street; that he then drove the accused and the deceased to the house in Acacia; that he left the accused in the living room, while he took the deceased into his bedroom; that Mr Besser came out and showed them all the goods they had to load onto the bakkie; that they did this, that he locked the house and drove back to Mrs Matesu’s house; that he spoke to Mrs Matesu and came back to them and informed them that the woman is behaving funny; that he drove away with them to the Damara location and off loaded them and the goods and told them to keep the goods there, they will come to fetch the goods later and give them N$300.00. Mr Basson put mostly the same instructions, except he stated that Mr Besser agreed to take the accused to the big shops if they would help him to collect Mrs Matesu’s goods from deceased’s house; that Mr Besser was carrying a firearm in his trousers that night; and that he dropped the accused and the goods off at accused no. 2’s house.

[23] When he was re-examined by State counsel Mr Besser stated that he was never treated as a suspect in the case and that he only heard for the first time the previous day, when he was being cross-examined, that he allegedly went with accused to collect the goods at deceased’s house.

[24] Mr Keith Jacobs also testified. He is the deceased’s stepson and also known by the name of “Kido”. The deceased used to be married to his mother. On 22 January 2 2005 he was at Club Remix and at about 24h00 he went to Khomas Mall, where he met the accused outside. He knew accused no. 1 already since about 2003. Accused no. 1 introduced accused no. 2 while they were standing at the deceased’s bakkie. Accused no. 1 told him that they had assisted the deceased inside the bar when he fell and hurt his forehead. He also asked Jacobs where deceased was employed and where he resided. Jacobs told him that deceased was a police officer at the Windhoek Municipality and that he resided in Acacia Park. Deceased and his wife then came out of the bar and moved towards the bakkie. Mrs Matesu said that deceased should be taken for medical treatment. Deceased had a wound in the centre of his forehead. Deceased refused to go, but the two accused spoke to him in Damara, where after he acquiesced. He insisted that his friend, Fred should drive the car. He got onto the back with Jacobs, the two accused and a man named George, also known as Kraai. Fred drove the bakkie and Mrs Matesu sat with him in front. Jacobs also sat at the back. They drove to Mrs Matesu’s house in Spokiesdorp, Khomasdal to fetch the medical aid card, which was in her handbag. At home she could not find her handbag. Deceased again refused to go to hospital and the Matesus quarrelled. Mrs Matesu decided to stay at home. Deceased returned to the vehicle and they drove back to Khomas Mall, except for George, who went home. Everyone got off the vehicle and deceased got behind the wheel. He parked the car in front of the bar. Jacobs left Khomas Mall to meet his friend and went to Club Remix. Later at about 5h30 he walked past the bar again when it had already closed. The deceased’s vehicle was no longer there.

[25] The next day he woke at about 10h00. That evening he went to the house with the police and his mother. The three outside doors of the house were locked. He noticed that the front window was open and they looked inside. They could see some items were missing and that the cupboard doors were standing open. The garage door was open and the deceased’s car was gone. They pulled the couch closer from the outside and saw the house keys lying on the couch. They succeeded in getting hold of the keys and opened the house. The bedroom door was locked. They could not find the spare key. At his mothers’ order, Jacobs kicked the door open and discovered the deceased’s body inside.

[26] From this witness’ testimony and the photographs taken at the scene the following is apparent. The deceased’s hands were tied tightly behind his back with a cord. His bare feet were tied at the ankles with shoe laces. His mouth was gagged. He was lying on his stomach on the floor next to the bed with his head close to the wall. The room was in a state of disorder and the bed was shifted away from its normal position. Cupboard doors were open. Drawers were pulled out completely and their contents were lying all over. The deceased was clothed in a T shirt and short trunks which appear to be either underwear or sleepwear. A pair of jeans was lying crumpled up close to the body as if he had just dropped his trousers onto the floor.

[27] From here the police investigation swung into action and a search was launched for the accused, more particularly for accused no 1, who was better known to the witnesses than accused no. 2. At about 23h00 that night the deceased’s bakkie was found, parked in Monte Christo Road near the Lafrenz industrial area in northern Windhoek.

[28] Benito Xoagub was also at Khomas Mall the night of 22 January 2005. He arrived between 21h00 and 22h00. After a while the deceased and his wife also arrived. At about 1h00 he also saw the two accused dancing there. He confirmed that deceased fell and injured his forehead during the evening and that deceased left with his wife for medical treatment. Later deceased returned alone without his wife. At about 3h00 the bar closed. He asked for as lift with deceased. He got on the back of deceased’s bakkie with the two accused, with the deceased driving. He asked accused no 1, whom he knew, where they were going. Accused no. 2 said they were looking for a lift to the big shops. Deceased drove to his wife’s house in Spokiesdorp and spoke to her at the window of the house for about 15 – 20 minutes. The witness then realised that he was close to his home and decided to walk home from there. He left the two accused still sitting at the back. This was at about 4h00 on Sunday morning, 23 January.

[29] Ms Patience Bassingthwaighte testified that she knew the deceased who was her neighbour in Acasia Park. He resided across the street next to the house opposite hers. On Saturday 22 January 2005 during the day there was a party on at deceased’s house. She heard a lot of noise and saw quite a lot of people at his house. She watched television all day until quite late. At about 3h00 she decided to go to bed, but first sat on her balcony to smoke. It was quiet at deceased’s house. After a while she observed deceased’s car driving towards his house very slowly. There were two persons sitting in front and one man on the back of the bakkie. She could see that it was deceased driving. The man at the back got off to open the gate and deceased drove inside the yard. Deceased and his passenger got off the vehicle and she saw deceased stumbling and feeling inside his pockets for the house keys. He went back to the car to look for the keys and spoke with the two men about where the keys could be. One said they might be at the house and one suggested that they might be at the hospital. They then got into the car and drove off. She then went to sleep. She did not notice if the gate was closed or left open. The next morning at about 8h45 she noticed that the gate was open and the car was gone. She found it strange as the deceased never left the gate open. She could not see the faces of the deceased’s companions.

[30] Mr Trevor Barry was not on the State’s list of witnesses. When cross-examined and blamed by the accused in cross-examination, Mr Besser mentioned him as the friend with whom he went to Club Remix. Mr Barry confirmed being in Mr Besser’s company at both Khomas Mall and Club Remix. He remembered the evening because he did not go out often with Mr Besser. He also recalled the incident when deceased fell and hurt himself and that Mr Besser assisted deceased by taking him to hospital. After about an hour Mr Besser returned. They remained at the club until about closing time between 3h00 and 4h00 and then went to Club Remix where they were drinking at his brother’s vehicle until the latter dropped them off close to their houses between 5h00 and 5h30.

[31] Another State witness was Ms Marchel Brigitte Lewis, who was the girlfriend of accused no. 2 during 2005. At that time she stayed with him in Tjikati Street, Katutura. On Friday, 21 January 2005 a lady friend of hers, Glanice, came to visit. I have the impression that glanice was the girlfriend of accused no. 1. On the Saturday they went to visit Ms Lewis’ mother. She told accused no. 2 that they would be back at 16h00 and that they would then go to a club. She and Glanice returned at about 18h00-20h00, but did not find accused no. 2 at home. Ms Lewis later left for Club Remix, but Glanice stayed at home. On the Sunday morning between 4 and 5 am Ms Lewis returned home and fell asleep. She woke up at around 9h00 or 10h00. She noticed some unknown items in the room. These were a television set (Exh 1, two pots (Exh 2 and 3), a computer, a kettle (Exh 4), a sandwich maker (Exh 5), and a mirror. There were also other items, but these were covered and she did not clearly see these. She asked accused no. 2 where these things came from, but he merely told her not to worry. She got angry and later decided to take her things and to return to her mother’s house. Accused no. 2 followed her. He succeeded in calming her down and she decided that she would not leave any more. Arriving at home, she decided that she would prepare herself to go to work the following day. [32] She prepared food, they ate and she slept. From some conversation she overheard between accused no. 1 and 2 that day, she understood and assumed that the computer had been fetched by some person in the meantime. She does not understand Damara/Nama well and could not state what was discussed between the two accused, but after the conversation, accused no. 2 said to her in Afrikaans that the computer’s money would be paid the next day. From this she assumed that the computer had been sold. The computer was indeed gone.

[33] That night she slept. Early the next morning accused no. 1 left. Then a person arrived who told accused no. 2 to wake up. He got up and left. She decided to get up and to prepare herself for work. Glanice took her to the taxi. On their way there, Ms Lewis decided that things were not right. She decided to phone her place of employment to say that she was unable to go to work. She was worried since the previous day about the happenings and the strange goods at home and the fact that accused no. 2 got up early and left. On her way to phone her workplace, she and Glanice passed the house where the two accused normally worked. She did not realise at the time that they were there, but when she passed the house, accused no. 2 called her and she and Glanice went into the house.

[34] There the two accused were talking about events that had occurred the Saturday night. They mentioned that they met the deceased at a club; that they asked a lift from him to the big shops; that they first drove with the deceased to Spokiesdorp to his wife and from there to his house. At some stage accused no. 2 and the deceased lay/slept on a bed in his house and accused no. 1 pressed the deceased on his throat until he fainted. While they were talking like this, accused no 1 was called and he left. At about 10h00 he returned with several police officers and handed over a red check bag to the police. It is common casue that this bag contained the DVD player removed from decesed’s home. The two accused were then handcuffed and went with the police to accused no. 2’s room where the other goods were found.

[35] About a week after the accused were arrested, she visited accused no. 2 in the cells. He repeated the story they had told earlier, but added that accused no. 1 had tied up the deceased’s hands and feet, where after the two of them loaded the goods on a car. According to her accused no. 2 never had a driver’s licence and does not know how to drive a vehicle.

[36] Bonifatius Goaseb (“Bonnie”) stays in Tjikati Street in the Damara location. He grew up with accused no. 1 and also knows accused no. 2. On Sunday 23 January 2005 he met accused no. 1 after church between 12h00 and 14h00. Accused no. 1 told him that he is selling a computer for N$1000-00. Bonnie wanted to buy it, but told accused no. 1 to keep it while he was paying it in instalments. However, accused no. 1 wanted him to take the computer while paying it off. Bonnie mentioned to his father, Eben Esse Gaoseb, that accused no. 1 is selling a computer that he wants to buy and that he is going to collect it. He then went with his cousin Eben Esse Aoxamub and accused no. 1 to fetch the computer and printer at the room rented by accused no. 2. Although he saw accused no. 2 there, it was accused no. 1 who brought the computer and all its components as well as the printer outside. They then took these items to the home of Eben’s mother (who is a police officer) in Luxury Hill, Soweto. Eben also testified and confirmed that they went to pick up the computer (that accused no. 1 was selling) and dropped it at his mother’s house.

[37] Later the same evening he met accused no. 1 again and bought a gold ring with a black stone for N$10-00, although accused no. 1 wanted N$25-00 for it. This ring was later identified by Mrs Matesu as the ring worn by him the night he was killed. It was denied on behalf of accused no. 1 during cross-examination that the ring was sold by him. Instead, it was alleged that Bonnie grabbed the ring from him and ran away. This the witness denied. As the allegations put to Bonnie were not repeated under oath, I do not attach any weight to them. There is nothing so inherently incredible about Bonnie’s story, nor is there any other evidence which compels me to accept accused no. 1’s version on this aspect as being reasonably possibly true.

[38] Bonnie’s father, Eben Esse Gaoseb also testified. He confirmed the material aspects of Bonnie’s version. After Bonnie told him that accused no. 1 wants to sell the computer, accused no. 1 came to his house to call Bonnie, who was not there. Mr Gaoseb then asked accused no. 1 why he was looking for Bonnie. Accused no. 1 told him that he is selling the computer to Bonnie and that he wants a deposit of N$100. Mr Gaoseb said that they did not just want to buy something like a computer from the street and that the computer should first be tested. Mr Gaoseb suspected that something might be amiss and arranged with his sister, who is a police officer, that the computer be taken to her house. After a while Mr Gaoseb instructed Bonnie to take the computer to the aunt’s house in Luxury Hill. On the Monday when the computer was switched on the deceased’s photograph appeared on the screen. By that time news had been received of the deceased’s death. A trap was set for accused no. 1 and he was lured to the house and arrested by Const. Tjitimisa. Accused no. 1 stated that he would take him to the other person involved and to where the goods were hidden. He took the police officer to accused no. 2. He did not mention anything about Mr Besser’s alleged involvement.

[39] On behalf of accused no. 1 it was put to Bonnie and all the other witnesses who testified on the matter of the computer, that accused no. 1 did not sell the computer, but pawned it to Bonnie’s father for N$100. All the witnesses denied this version. In the absence of any evidence under oath, I find that the computer was sold. Bonnie was not cross-examined on behalf of accused no. 2.

[40] Sergeant Nangolo was also at the house in Luxury Hill when accused no. 1 was arrested. He went to the house where accused no. 2 was pointed out by accused no. 1. I note that this was the place where Glanice and Ms Lewis were with the two accused earlier that morning and where the conversation about the previous day’s events occurred. He saw accused no. 2 in front of the house. When he disembarked from the car, accused no, 2 went inside and he followed him inside a room. He was arrested. Nangolo found a red and white bag with a DVD player inside. Accused no. 1 also entered the room and said to accused no. 2 that they should give back the things they took. Accused no. 2 also said that they should be honest and that the bag with the DVD was one of the things they took. He also said that the rest of the things were at his house. They took the police to accused no. 2’s house and pointed out the rest of the items taken from the deceased’s house. Amongst these items was Mrs Matesu’s handbag.

[41] Accused no. 2 also pointed out a watch (the Tempo men’s wrist watch) in another bag as one of the items which does not belong to him. Mrs Wantenaar submitted that it can be inferred that the rest of the contents of the bag belonged to accused no. 2. I agree. The question arises what the watch was doing there if it was supposed to be kept with the other goods until Fred Besser would come to fetch it that day.

[42] The State called Dr Gonzales to explain the post-mortem report drawn by the late Dr Elizabeth Shangula. He is a medical doctor for 35 years and has been a forensic specialist for 31 years during which he did many post mortems. He was present when the post mortem on deceased was conducted. He remembered that the hands and feet were tied and that the mouth was gagged. It was tied very tightly with a belt causing the tongue to push backwards. The deceased died as a result of asphyxia, i.e. as a result of a lack of oxygen caused by the tongue blocking the airways. The level of alcohol in the deceased’s blood was 0,19 gram per 100 millilitres of blood, which is an indication that deceased was highly intoxicated, which in the doctor’s opinion would have made it difficult for deceased to defend himself. However, the level of intoxication did not cause or contribute to his death. He explained that it would take about 6-7 minutes for a person to become unconscious and about 15-20 minutes to die from the kind of situation in which deceased was that day. The head injury which deceased sustained and the resultant blood loss (which was evident on the scene) did not contribute to his death. He said this because the body had no sign of blood loss which contributed to the death.

[43] The evidence was to the effect that Dr Shangula attended the scene where the deceased’s body was found. This must have occurred at around 21h00 or thereafter. She estimated the time of death to have been between 6 to 12 hours before. Mr Basson sought to demonstrate that this indicates that the death occurred long after accused left the premises with the goods, but it must be remembered that the time of death is merely an estimation which is notoriously difficult to make. I do not think that too much importance should be attached to the estimated time of death.

[44] On the available evidence the accused at first never mentioned anything about Mrs Matesu’s and/or Mr Besser’s alleged involvement in the taking of the goods and/or the deceased’s murder. Mr Besser’s name was mentioned by accused no. 1 only when on 5 March 2008 the two accused pleaded not guilty to the charges of murder and robbery with aggravating circumstances in the magistrate’s court in terms of section 119 of the Criminal Procedure Act. Accused no. 1 was represented by a legal practitioner who gave his plea explanation, which amounted thereto that he left Khomas Mall with the deceased and several other persons and was driven in a vehicle that was driven by Mr Besser. They drove to the house where Mrs Matesu resided and he left them and the vehicle there and went home on foot. He left the deceased alive. This explanation differs materially from the one which was posed as part of his instructions during this trial.

[45] In the State’s pre-trial memorandum (Exh “B”) accused no. 1 was asked to state whether he admitted or disputed “that during the late hours of 22/01/2005 or the early morning hours of 23/01/2005 you and second accused drove with the deceased in/on the deceased’s motor vehicle to the deceased’s residence (Erf 1311 Mountain Thorn Street, Acacia)”. In his reply dated 19 March 2008 (Exh “C”) to the State’s pre-trial memorandum accused no. 1 stated for the first time that he, Mr Besser, accused no. 2, and the deceased drove to the deceased’s house during the early hours of the Sunday morning and that Mr Besser was the driver.

[46] Accused no. 2 pleaded not guilty to the charges put in terms of section 119 and did not disclose any defence. In response to the State’s memorandum he stated that he would only respond to this and other questions during the trial.

[47] While it is of course always an accused’s right to remain silent and not to disclose his defence, one does expect in the normal course that an innocent person who has been accused of such serious charges as these would from the start when the police are confronting him, state loudly and clearly that it was not he who committed them and name the real perpetrator if he or she is known to him, as it allegedly was in this case. Both counsel for accused no. 1 and 2 suggested during argument that the accused might have mentioned the involvement of Mrs Matesu and Mr Besser earlier, but that this information was lost when the first police docket went missing. It is common cause that a second docket was compiled during early 2006. However, there is no evidence under oath that they indeed mentioned this to anybody before. When accused’s warning statements were re-taken on 2 October 2007, they refused to say anything.

[48] The accuseds’ version regarding Mrs Matesu sending Fred Besser to fetch goods is improbable. It is even more improbable that she would not accept them when they were brought. It is also improbable that Fred would leave goods with accused no. 2, whom he hardly knew and had only seen around with accused no. 1.

[49] Both Bonito Xoagub and Ms Bassingthwaighte saw deceased alone in the company of the two accused between 3h00 and 4h00. It is unlikely that when deceased left to go find the keys he again met up with Besser who then drove the vehicle again and returned with deceased to the house. This is not even the accused’s case. According to the accused, Fred drove the bakkie the whole evening. However, both Fred and Trevor Barry testified that he was at Club Remix and went straight home. Fred Besser made a good impression on me – he was calm and composed in the witness box and answered all questions with patience and graciousness, even when he was being accused.

[50] Mrs Matesu also made a good impression on me. She readily acknowledged that she had been regarded with suspicion by the deceased’s relatives and colleagues and that the police even treated her as a suspect for a while. This information could have reached the ears of accused no. 1 as there were connections between his girlfriend and Mrs Matesu. Information about these suspicions and the goings on between the Matesus before the deceased’s death could very well have come to the accuseds’ notice, as they were clearly well informed. Many questions were posed to her about her movements the next day and the manner in which she handled the fact that the deceased did not turn up for their appointment at 9h00. Suspicion was also directed at the fact that she did not immediately report the matter when she first went to deceased’s house and noticed that some items were missing. She gave the explanation that perhaps deceased had left to call her or that he had moved the items into one of the bedrooms to give the impression that there was something amiss to get her to come to the house. This last explanation is perhaps a bit fanciful, but in the light of the history of her relationship with the deceased and the removal of the items on 15 January, this version may not be so fanciful after all. The fact remains that she did have difficulty in reaching the deceased’s house that day. If she was a party to the removal of the goods, why would she deliberately delay calling the police? She said that she seriously started thinking that something may indeed be wrong when she was bathing the children that night. I do not find anything sinister in this. Sometimes the mind is not willing to accept obvious pointers to disaster, perhaps because the consequences are too ghastly to contemplate. However, she did eventually act and ask her colleagues in the Task Force to go with her to the house. This makes perfect sense to me. When they disappeared after the deceased’s body was found, it may be that they left to report the matter to the Serious Crime officers) she phoned the City Police and asked for help. She denied stating to Hilaria that the police should send a vehicle to the deceased’s house because there were people busy threatening to kill the deceased. Indeed, to have stated this would have been absurd as the body had already been found in the presence of the Task Force members. It is more likely that she made mention of the two accused because Mr Besser had mentioned that they were with the deceased earlier that morning while he was very drunk and could have taken his phone.

[51] Mr Basson referred me to the unreported judgment of State v Matlou and another by the Supreme Court of Appeals in South Africa (Case No. 479/09) delivered on 31 March 2010 and submitted that that case is very similar to the present one and that the same reasoning should be followed. In that case the appellants were convicted in the court a quo on charges of murder and robbery with aggravating circumstances. On appeal the conviction of murder was set aside and the appeal against the robbery conviction was upheld to the extent that a conviction of theft of a vehicle and two other items were substituted. In that case the three members of the court were agreed on the result but Cloete JA preferred to write his own reasons, in which Leach JA concurred. Bosielo JA wrote the main judgment. However, what weighed heavily with all three judges was that there was no evidence to show how and when the deceased was killed. The estimation was that he died some time during a period of three days. Furthermore, the only evidence linking the two appellants to the deceased was the fact that they worked together and that, quite soon after he could have died, they were in possession of his vehicle and two items belonging to him. They were not seen with the deceased during the critical period when he must have died. Although a firearm was found, there was no indication that the deceased had been shot. There was no admissible evidence linking the appellants to the place where the deceased’s decomposed body was found.

[52] The proved facts of that case are completely distinguishable from the facts in the present case. In casu the proved facts are that the deceased was last in the company of the two accused. They were both on the premises of the deceased by their own informal admission as repeatedly conveyed during the putting of their instructions to the State witnesses. They admitted that they removed the goods alleged to have been stolen from deceased’s premises and loaded them onto the vehicle. In this regard I note that these admissions, although not repeated under oath, may be taken into account, as opposed to exculpatory allegations put, but denied, during cross-examination and not repeated under oath. I have stated my reasons why I reject their story put only during instructions that Fred was also with them. The only reasonable inference on all the proved facts is that they were the persons who tied and gagged the deceased. The premises at Acacia Park are not large and it is unlikely that one of the accused could have tied and gagged the deceased without the other being aware of it. I cannot imagine that either of them would have proceeded to remove the goods from the premises if he was not sure that the deceased was out of action. Besides, as Mrs Wantenaar pointed out, the computer was removed from the very bedroom in which he was found. The two accused must also have known that the deceased would be able to identify them as the perpetrators. It is also unlikely that only one of them would have done all this to the deceased alone, but even if he did, the other must have known about it either before, during or shortly after the tying and gagging. The chance that some other unknown person did this after they left the premises is completely farfetched and unreasonable. On Monday morning they talked about the events in the presence of Glanice and Ms Lewis in terms which clearly show that their involvement with deceased that night went further than their story during the trial. Accused no. 2 lay on the same bed as deceased and accused no. 1 pressed deceased on his throat. Even though she was not sure which of them stated this, they were talking together. Neither of them denied anything the other said. Not one of them indicated that he disassociated himself with the action of the other. The accused knew that deceased was very drunk that night. In my view any person in his right mind would realise that if a very drunk person is gagged as tightly as the deceased was, with no chance of helping himself with his hands tied tightly behind his back, he could very well not get enough air and die. I agree with State counsel that the accused at least formed the intention to kill the deceased in the form of dolus eventualis.

[53] What is more, accused no. 1 was in possession of the deceased’s ring which he wore that night. In the absence of any other reasonable explanation, which there is not, he must have removed the ring from deceased’s finger. He therefore was in close proximity with the deceased at a time that the deceased did not stop him from removing the ring.

[54] These events must have occurred sometime after 4h00 and before 9h00 on Sunday morning, as by then they had already offloaded the goods at accused no 2’s house. I say this because when Ms Lewis woke up, these goods were already there. I also doubt that the two accused would have removed these goods from the deceased’s house in broad daylight. When Ms Bassingthwaighte looked at the house at 8h45, they had already left. The next day already accused no. 1 started to get rid of the computer and the ring. Accused no. 2 knew that the computer was being removed and that money would be obtained for it. I have no doubt that he knew that it was being sold. The DVD was moved to another house. These are not the actions of innocent persons merely left in custody of the goods. I am satisfied beyond a reasonable doubt that the accused deprived the deceased of his goods unlawfully and after violence was perpetrated on him.

[55] There is no evidence that accused no. 1 could not drive a vehicle. At least one of them took the bakkie to Monte Christo Road and left it there. However, I have doubt whether the accused intended to steal the bakkie. It was parked close by a service station next to a road which is not in a remote area. The car was left locked. I do not think it can be deducted that the only reasonable conclusion is that they did not care if it were stolen. I am prepared to find that they robbed the deceased of all the items in Annexure A, except the motor vehicle.

[56] In the result the two accused are convicted of murder and robbery with aggravating circumstances.









__________________________

VAN NIEKERK, J

































Appearance for the parties:









For the State: Mrs B Wantenaar

Office of the Prosecutor-General



For accused no. 1: Adv L Hamutenya

Instr. by Directorate of Legal Aid



For accused no. 2: Mr B D Basson B D Basson Incorporated

Instr. by Directorate of Legal Aid




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