Court name
High Court
Case number
CC 22 of 2010

S v Ngesheya (CC 22 of 2010) [2011] NAHC 297 (29 September 2011);

Media neutral citation
[2011] NAHC 297
Liebenberg J

NO.: CC 22/2010



In the matter between:





Heard on: 19 September 2011

Delivered on: 29 September 2011


Section 174 Application


[1] At the close of the State case Ms.
appearing on behalf of the accused, made application in terms of
section 174 of the Criminal Procedure Act
for the discharge of the accused on all three charges. Mr.
representing the State, opposed the application. Both counsel
submitted oral arguments in support of their opposing views.

[2] The charges
preferred against the accused and to which he pleaded not guilty,
were: murder; robbery (with aggravating circumstances); and defeating
or obstructing or attempting to defeat or obstruct the course of
justice. The defence raised by the accused is that he was not
present when the offences were committed but somewhere else; which
amounts to an alibi. The detail of the alibi was set out in his plea
explanation and it is trite law that the accused does not bear the
burden of proving that his alibi is true.
In this instance the accused gave the particulars of his alibi and
the prosecution accordingly knew from the onset which allegations it
had to rebut during the State case.

[3] Counsel
appear to be in agreement that the commission of the offences are
closely related to the extent that proof of the one would obviously
prove the other. In the circumstances of the case I consider that to
be a fair conclusion.

[4] Section 174
of the Criminal Code provides that:

at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict of
not guilty.”

[5] It is now a
well-established principle that the words

in the section means no evidence upon which a reasonable court,
acting carefully, may convict. It is clear from the section that the
court has a discretion (which must be exercised judiciously
to discharge the accused at the end of the State case if there is no
evidence to convict on. The criterion was reaffirmed in
v Teek
Brand AJA had the following to say at 130I – 131C:

Over the years the trite principle has been established - both in
Namibia and with reference to the identically worded s 174 of the
South African Criminal Code - that no evidence in terms of the
section means no evidence upon which a reasonable court, acting
carefully, may convict (see eg
v Nakale
(2) NR 455 (HC) at 457 and the authorities there cited). Somewhat
more controversial is the question whether credibility of the State
witnesses has any role to play when a discharge is sought under the
section. But the generally accepted view, both in Namibia and in
South Africa, appears to be that, although credibility is a factor
that can be considered at this stage, it plays a very limited role.
If there is evidence supporting a charge, an application for
discharge can only be sustained if that evidence is of such poor
quality that it cannot, in the opinion of the trial court, be
accepted by any reasonable court (see eg
v Mpetha and Others

1983 (4) SA 262 (C) at 265; S v
supra at 458). Put differently, the question remains: is there,
having regard to the credibility of the witnesses, evidence upon
which a reasonable court may convict?”

[6] The application is brought on
two bases namely, (i) that the credibility of the State witnesses are
of such poor quality that no reasonable court would accept it; and
(ii) that on the evidence adduced, no connection can be made between
the accused and the offences committed. The State in its opposition
of the application contended that although the State case is entirely
based on circumstantial evidence, the totality thereof is sufficient
to put the accused on his defence. It was also submitted that the
quality of the evidence adduced was not of such poor quality that it
must be outright rejected. The Court was furthermore urged to
favourably consider the evidence of Deputy Commissioner Agas
pertaining to a pointing out made to him by the accused of the crime
scene on the 8th of April 2008.

[7] The witnesses who allegedly gave
unreliable evidence were Fransina Kautwima and Martha Shilunga and
their evidence mainly focussed on whether or not there was a romantic
relationship between Fransina and the accused (the same time she was
involved in a relationship with the deceased); and whether the
accused was in possession of the mobile phones of the two witnesses
during the period immediately preceding the disappearance and
subsequent death of the deceased.

[8] Despite Fransina’s
protestation that the romantic relationship between her and the
accused had been terminated earlier, it would not appear to have been
the case as they were still sharing the same bed at the time.
Furthermore, according to Martha they still had an on-going affair
and it seems to me that Fransina had been hiding this fact from the
Court during her testimony. A possible explanation for this might
lie in the fact that both Fransina and Martha were suspects in the
early stages of the investigation and that Fransina now tries to
distance herself from the accused as far as possible. However, on
the evidence adduced, one is inclined to conclude that Fransina was
simultaneously involved in two romantic relationships i.e. with the
accused and the deceased. This, the State contended, was the
accused’s motive for killing the deceased.

[9] The relevance of the mobile
phones lies therein that from records obtained from the mobile phone
provider (MTC) which were handed into evidence, it was established
that several text messages (16) were sent to and from the deceased’s
phone and that of Martha, on the 19th of February 2008.
That was the day on which the deceased was allegedly murdered. It
would also appear that the SIM card of Martha’s phone was
interchanged with Fransina’s phone when phone calls were made.
It must be noted that with text messages the records only reflect the
numbers of the respective SIM cards and not the serial numbers of the
phones used; which means that a text message could have been sent
from a phone other than that of its owner. Besides the call
register, the records also do not reflect the content of the text
messages. Because the whereabouts of the deceased on that particular
day are unknown, it would be impossible to determine whether or not
he was in possession of his phone; and to date, the deceased’s
mobile phone has not been recovered.

[10] According to the witnesses
Fransina and Martha, the accused got possession of their phones when
they sent it to have the batteries recharged. When he returned to
their room on the night of the 19th they enquired from him
where their phones were; to which he replied that it remained at
Ohangwena. Fransina later retrieved their phones from the pocket of
his trousers and found same to be wet. The accused, however, denied
that he had possession of the witnesses’ phones at that stage.

[11] Although there are some
discrepancies between the evidence of Fransina and Martha pertaining
to the events that took place that night, I do not consider these to
be material. As far as it concerns relevant issues such as whether
or not the accused had possession of their mobile phones during the
stages when contact was established with the deceased’s phone,
they corroborate one another in all material respects. They were
clear in their testimony that their phones were found with the
accused and I do not consider their evidence to be of such poor
quality that no reasonable court would accept it.

[12] In my view, it was duly proved
that on the evening of 19 February 2008 the accused was in possession
of the mobile phones of the two witnesses Fransina and Martha. Also,
that the accused’s clothes, including the phones which were in
his trouser pocket, were all wet; and that it had been raining during
the day.

[13] I now turn to consider whether
the totality of the pieces of evidence put together, constitute
sufficient evidence before the Court to put the accused on his
defence. I shall deal with the pointing out of the crime scene,
allegedly made by the accused on 8 April 2008, first.

[14] This Court in its earlier
judgment delivered on the admissibility of a statement allegedly made
by the accused and noted down by Deputy Commissioner Agas, already
expressed its dissatisfaction with the intolerable situation where
the officer was actively involved in the investigation;, yet, he
considered himself suitable to conduct a pointing out of a crime
scene and the recording of a self-incriminating statement made by the
accused. Reference was also made to the circumstances giving rise to
the pointing out and the making of the statement; and the Court, in
the end, was convinced that the accused would not be given a fair
trial, should the statement be admitted into evidence. From the
evidence of one of the State witnesses it became apparent that
forceful methods were adopted to extract information from them whilst
they were still suspects; and whereas the accused complained of the
same treatment, this creates doubt in the Court’s mind as to
whether or not the subsequent pointing out of the crime scene and the
making of a statement was done without the accused having acted under
undue influence. According to the evidence of Warrant Officer
Rehabeam the accused informed him that he wanted to make a confession
to Deputy Commissioner Agas, which Rehabeam arranged. However, from
para 1 of the notes on the pointing out of a crime scene prepared by
Agas, it is indicated that Rehabeam informed him that the accused
“…is willing to point out the crime scene”,
without any reference what so ever made about a confession. Until
then, nothing has been said about a pointing out the accused wished
to make. This discrepancy remained unanswered and makes the
circumstances surrounding the pointing out of the crime scene by the
accused, even more suspicious.

[15] For the aforementioned reasons
I have come to the conclusion that, although the photo plan and
accompanying notes on the pointing out were handed into evidence and
form part of the evidential material against the accused; which have
to be considered along with all the other evidence, it should be
excluded as evidence, for its inclusion would undoubtedly infringe on
the fundamental right of the accused to a fair trial.

[16] By the exclusion of the
evidence on the pointing out of the crime scene alleged to have been
made by the accused, the only evidence remaining relates to the calls
made from the mobile phones of Fransina and Martha (whilst in the
possession of the accused), to that of the deceased; and the evidence
about a mobile phone that was handed in for repairs by the accused.

[17] According to the testimony of
Immanuel Sheyapo the deceased bought a Nokia 70 phone from him the
previous year on 30 November 2007. No other particulars about this
phone are available.

[18] Simon Shigwedha, a technician,
testified that between 20 – 23 February 2008, the accused
brought two mobile phones to him for repairs. These were a Nokia N70
and an LG, both having been damaged by water. The accused only
returned for the LG and whereas the Nokia remained uncollected, it
was eventually sold to an unknown person to cover the repair
expenses. No particulars of the phones were recorded at the stage of
repairs either. Thus, the only common feature between the phone the
deceased had bought and the one that the accused handed in for
repairs, is the make i.e. a Nokia N70.

[19] It follows that the SIM card
number and the mobile serial number which appears on the MTC printout
against the name of the deceased cannot be compared in order to see
whether it corresponds. In the absence of evidence showing that the
serial number of the Nokia N70 phone handed in for repairs
corresponds with the number registered with MTC, it would by law not
be permissible to draw such inference from the proved facts, simply
because it is not the only reasonable inference that can be drawn
from the facts.
This phone must have been one of a series of similar phones
manufactured and there was nothing unique about it. In
v Mtsweni
at 593E-G Smallberger AJA
referred with approval to the remarks of Lord Wright in
v Powell Duffryn Associated Collieries Ltd
which reads as follows:

must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective facts from
which to infer the other facts, which it is sought to establish. In
some cases the other facts can be inferred with as much practical
certainty as if they had been actually observed. In other cases the
inference does not go beyond reasonable probability. But if there
are no positive proved facts from which the inference can be made,
the method of inference fails and what is left is mere speculation
or conjecture ….”

[20] The fact that the specific
phone was damaged by water does not take the matter any further. No
inference can be drawn from the fact that the body of the deceased
was found in the water and the damaged phone handed in. Neither can
it be inferred that, because the phones of Fransina and that of
Martha, when found in the trouser pocket of the accused, were also
wet, therefore the accused is linked to the murder. Not only had it
been raining during the day, explaining the accused’s wet
clothes, but there is no evidence showing that the deceased was
killed whilst being in the water. Finding otherwise, in my view,
would be pure speculation and conjecture.

[21] In conclusion, the totality of
what has been said above is that the evidence adduced during the
State case is not such that a reasonable court, acting carefully, may
convict on any of the charges preferred against the accused or any
competent charge; and therefore, the accused should not be put on his

[22] In the result, on counts 1 –
3 the accused is found not guilty and discharged.

[23] In respect of the following
exhibits it is ordered that:

Exhibits 1 – 3 are forfeited to
the State

Exhibits 4 & 5 are to be returned
to the lawful owners.




Instructed by: KISHI


Instructed by: Office of the

Act 51 of 1977

R v Biya, 1952 (4) SA 514 (A) at 521D-E; R v Hlongwane,
1959 (3) SA 337 (A) at 340H and 341A-B

S v Shilamba, 1991 NR 334 (HC)

2009 (1) NR 127 (SC)

See: R v Blom, 1939 AD 188

1985 (1) SA 590 (A)

[1939] All ER 722 on 733