CASE NO.: CC
IN THE HIGH
COURT OF NAMIBIA
In the matter
MALUMO & 112 OTHERS
24 February 2011
to bar State leading new evidence - a constitutional bar - based on
the infringement of constitutional rights - violations of Article 12
(1)(b) - trial must take place within reasonable time, Article 12
(1((d) right to adduce and challenge evidence i.e. right to
cross-examination, Article 12 (1)(e) righ to have adequate time and
facilities for the preparation and presentation of defence before
commencement of and during trial.
Where State in
criminal proceedings intends to present evidence and accused person
alleges that evidecne was obtained in manner which violates a
fundamental right -concerns admissibility of evidence State intends
to rely upon - onus is on State to prove beyond reasonable doubt that
fundamental right not violated - no onus on accused person to prove
breach of fundamental right.
Late discovery of
witness statements tantamount to no discovery at all - may breach
constitutional right of accused person to fair trial and may be
excluded by Court. State in conducting a continuous investigation
during course of trial saddled with duty to respect and uphold
fundamental rights of accused person.
If new evidence be
allowed would necessitate calling of a number of witnesses who
previously testified - prolonging trial.
disclosure of witness statements - defene counsel if they had known
earlier in trial what they know now would have revised defences or
asked other questions of previous witnesses.
Right of State to
conduct investigations into circumstances of crime is circumscribed
both in respect of the common law and the Constitution.
In spite of fact
that it may have far-reaching consequences for State, Court may bar
admission of evidence obtained in violation of accused's
constitutional rights where its admission would render trial unfair
or otherwise detrimental to the administraton of justice - State does
not have unqualified right to produce new document or new witness
during any stage of trial.
statements - real risk - new statements may contain allegations based
on information obtained by means of secondary sources and not from
witnesses' original knowledge or memory of incidents.
Court would be
unable to distinguish between original knowledge and "implanted"
knowledge - creates real trial related prejudice.
Right of State to
present evidence by way of continuos investigations during course of
trial must be limited by the right of accused to fair trial.
CASE NO.: CC
HIGH COURT OF NAMIBIA
In the matter
MALUMO & 112 OTHERS
February 2011; 14 February 2011; 17 February 2011
on : 24
Mr Linus Kafuna, state witness number 350, was about to be sworn in
when defence counsel, Mr Kauta raised an objection. The objection
relates to the admission of the testimony of this witness, together
with the testimonies of nine other witnesses, on the basis that
should this Court hear their testimonies it would infringe the
accused persons' right to a fair trial in terms of the provisions of
Article 12(1)(a) of the Constitution of Namibia.
Messrs. Dube, Kruger, Neves, Nyoni, Kachaka and McNally supported the
 On 31 August
2001 this Court refused an application for disclosure of witness
statements to the defence. The evidence led on behalf of the State
during that application was that some state witnesses had received
death threats and had been intimidated by family members of the
accused persons in order to prevent those witnesses from testifying
against the accused persons. Subsequently at the commencement of this
trial on 15 March 2004 a compromise was reached between defence
counsel and state counsel which was made a order of court. The
essence of this compromise was that the State must disclose at least
3 court days prior to a witness being called to testify, the witness
statement of that state witness to defence counsel.
 On 10
September 2008 subsequent to an order by this Court to disclose all
the witness statements of one of the investigating officers the State
informed the Court that they had disclosed all the statements of
state witnesses contained in the police docket.
 On 31 January
2011 the defence was provided with ten statements of state witnesses.
From the written heads of argument of Mr Kauta the following (which
is not disputed) appears:
1. in respect of
witness, Brogan Maumbilo, that the statement contains an account of
events during the year 1998 relating how the witness was influenced
to go to Botswana and his participation in an attack on Mpacha
2. in respect of
Eustace Simataa, that the statement contains an account of events
during October 1998 which relate to how the witness was approached on
various occasions to be part of a group of persons who wanted to
secede the Caprivi region by violent means;
3. in respect of
Precious Katanga Kabula, that the statement relates to events during
1999 on unknown dates how unsuccessful attempts were made to
influence the witness to flee to Botswana for the purposes of
liberating the Caprivi region from Namibian rule;
4. in respect of
Chikoma Tryphinan Sezuni, that the witness was approached by several
persons who attempted to influence her to flee to Botswana in order
to join the liberation army of Mr Mishake Muyongo and if she had
agreed she would have secured employment in an independent Caprivi;
5. in respect of
Mukungu Mukangu Morricious, the statement relates a conversation how
someone joined others in Botswana with the aim of liberating Caprivi
from Namibian rule;
aforementioned statements had been deposed to between 30 December
and 28 January
 In respect of
the other five statements the deponents were, Elasca Samwele Sitali,
Linus Manga Kufuna, Chrispin Mulatehi Likemo, Edwin Sitali Mweti, and
Primes Vitssentsius Amwaamwa. These statements had been disposed to
during the period 28 December 2010 and 28 January 2011.
 Mr July
appearing on behalf of the State submitted that these last mentioned
statements are not new statements but additional statements. He
stated that in respect of Elasca Sitali a previous statement had been
deposed to on 14 August 2001; in respect of Linus Kufuna a previous
statement had been deposed to on 18 February 2000; in respect of
Chrispin Likemo a previous statement had been deposed to on 3 March
2001. It is not clear in respect of Edwin Mweti and Primes Amwaamwa
when they had deposed to previous statements but it appears to be
common cause that previous statements had been deposed to prior to
 In respect of
the first five witnesses mentioned they had not previously deposed to
any other statements other than those statements disclosed to defence
counsel on 31 January 2011 and labelled by counsel as "new
 Mr July
submitted that all the witness statements in broad would be dealing
with factual disputes and that the objection raised by the defence
affects not the admissibility of the evidence to be presented but
only the weight to be attached to such evidence and thus counsel
cannot object to the State leading such evidence. Other submissions
were also made on behalf of the State to which I shall return to in
 It was
submitted on behalf of the accused persons that the objection in
essence is a constitutional bar to leading new evidence by means of
the testimonies of aforementioned witnesses.
of constitutional rights, it was submitted, relates to violations of
Article 12(1)(b) of the Namibian Constitution which provides that a
trial shall take place within a reasonable time, failing which the
accused shall be released; Article 12(1)(d) the right of an accused
person to adduce and challenge evidence; and Article 12(1)(e) the
right of an accused person to have adequate time and facilities for
the preparation and presentation of their defence before the
commencement of and during their trial.
 It was
submitted by Mr Kauta that from the evidence contained in the
statements it is clear that the witnesses may give evidence which
goes to the merits of the case; that it covers aspects of evidence
which the State led over number of years and which had widely been
published in the print and electronic media.
It was furthermore submitted that the accused persons were not in a
position to address those issues as and when they arose during the
course of the trial; and that this impacted upon the manner in which
issue was taken with witnesses on certain relevant facts in their
It was submitted
that because witnesses who previously testified on relevant issues
could not have been confronted with the contents of these new
statements, since these statements had not yet been in existence, and
similarly these new witness should they testify cannot be confronted
with the replies of previous witnesses regarding the content of their
statements since the versions of the new witnesses could not have
been put to the previous witnesses because of the non-existence of
these new statements.
By way of
illustration Mr Kauta submitted that on 21 July 2008 a certain state
witness Richard Mbala testified and Richard Mbala was cross-examined
by himself. Statements taken this year indicate that a state witness
Primes Amwaamwa who was never cross-examined by himself is involved
in the matter relating to the testimony of Richard Mbala. Furthermore
that the defence of the accused person had been put to Richard Mbala
and that Richard Mbala has never been confronted with the new
statements the State now intends to use.
It was therefor
submitted that if the new evidence is to be allowed it effectively
means that Richard Mbala and Primes Amwaamwa need to be recalled.
to the objection
 Mr July in
short submitted a number of points in opposing the objection raised
by the defence.
Firstly, he submitted that the State has in compliance with the 3 day
rule referred to (supra)
these ten statements to the defence and it thus cannot be argued that
Article 12(1)(e) of the Constitution had been violated which
stipulates that accused persons should be afforded adequate time and
facilities for the preparation and the presentation of their cases.
that although it is labelled "an objection" what in essence
is before Court is an application in which certain relief is prayed
for and since it is an application counsel must prove what they
submit i.e. they must prove how the fundamental rights of the accused
persons are being violated.
 Thirdly, that
there is insufficient information before Court in respect of the
allegations that the right of the accused persons to a fair trial
will be prejudiced.
Fourthly, that the authority relied on by defence cousel in support
of their objection, (S
v Motata Case No. 63/968/07 an unreported judgment delivered on
a judgment of the Regional Court of Gauteng, in the Republic of South
AFrica and cannot be any authority on which this Court may rely.
 Fifthly, that
since the accused persons revealed no defences at the stage they
pleaded to the charges, the State has the duty to present all the
available evidence at the disposal of the State in order to prove its
 Sixthly, that
the defence has a tool, namely cross-examination, with which the
veracity of testimonies may be tested and counsel will have the
opportunity to challenge the evidence of these state witnesses.
 Seventhly, a
witnesses may in terms of section 167 of the Criminal Procedure Act
51 of 1977 be recalled and in terms of section 186 be subpoenaed by
this Court if the evidence of such a witness appears to the Court
essential to the just decision of the case. The question was posed
whether it would also be a violation of the right to a fair trial
should the Court decide to call a witness ?
 Eighthly, it
is common cause between the State and the defence that there is a
continuous investigation in this case by the investigating officers.
Defence counsel is not bringing an application that the State should
cease this continuous investigation. The State again asked the
question, namely, what is the purpose of this continuous
investigation if evidence discovered during the course of the
investigation may not be utilised by the State in order to prove its
 Ninethly, it
has happened during this trial that the Court allowed the State to
lead the evidence of a witness who had not deposed to a prior witness
statement, after the Court had ruled that a witness statement must
first be obtained and disclosed to the defence in compliance with the
3 day rule. In this instance, it was submitted there was no objection
by defence counsel that the accused persons had been prejudiced in
their right to a fair trial.
support of objection
This Court was provided with a copy of a judgment by the Regional
Court magistrate in S v
Motata (supra) in
which there was an application by the defence for an order to bar the
evidence of an unidentified new witness on the basis that it would
violate the right of the accused person to a fair trial in terms of
the provisions of the South African Constitution. This application
was granted inter
the basis of the timing of the disclosure of the witness statement .
This Court is not bound by a decision from any lower court within
this jurisdiction or outside this jurisdiction. In any event although
referred to in his heads of argument ostensibly in support of his
objection, Mr Kauta submitted that Motata
mentioned merely to illustrate the principle that a witness may be
barred to testify by a court of law.
It is at this stage trite law that an accused person, in compliance
with the provisions of Article 12(1)(e) of the Namibian Constitution,
is as a general rule, entitled to disclosure of all witness
statements and other relevant documentation (S
v Nassar 1995 (1) SACR 212 Nm at 240) and
that such disclosure should normally be made when the indictment is
served on the accused person in order to provide him or her with
sufficient time to prepare his or her defence.
AJ (as he then was) in Nassar
with approval from the Canadian case R
v Stinchcombe 1992 LRC (Crim) 68 where Sopinka J held
that in as much as disclosure of all relevant information is a
general rule, the Crown (State) must justify its refusal to disclose
i.e. the Crown (State) must bring itself within an exception to that
J held that where disputes over disclosure do arise the trial judge
may resolve them and that this may require not only submissions but
the inspection of statements and other documents and indeed, in some
He further stated that a voir
frequently be the appropriate procedure in which to deal with these
v Shabalala and Others v Attorney-General of Transvaal & Another
I shall later
return to this issue.
v Mlwandle 1999 (2) SACR 471 (CKHC) in
dealing with an application to
right of the State to continue with its investigations, it was argued
on behalf of the accused that such continued investigations whilst
the trial was in progress, would deny the accused his right to a fair
trial. Ebrahim J at 474 h - i held as follows:
the same time, the right which the State, as prosecuting authority,
has to conduct investigations into the circumstances of a crime is
circumscribed both in terms of the common law and the Constitution.
The State, in fulfilling this task, is saddled with the duty to
respect and uphold the fundamental rights of the accused. Where it
fails to do so, the admissibility of evidence obtained in isolation
of an accused's constitutional rights may be challenged by the
accused and, if its admission would render the trial unfair or
otherwise detrimental to the administration of justice, be excluded
by the court."
and continued at
476 f - g as follows:
to me that a situation may well arise where the investigations being
conducted by the State, whether before or during a trial, may be of
such a nature that a court is constrained to exclude the evidence
obtained in consequence thereof. In my view it will depend on the
facts and circumstances of a particular case whether such a decision
is justified or not. Accordingly, the decision whether the State
should be restrained from conducting further investigations should
only be taken on a case-by-case basis."
 Ebrahim J
refused the application since he found that the application was based
purely on speculative facts and were insufficient to enable the Court
to evaluate whether the investigations were being conducted in
violation of the accused's fundamental rights.
The aforementioned dictum was quoted with approval in Du
Toit en Andere v Direkteur van Openbare Vervolging, Transvaal: In
v Du Toit en Andere 2004 (2) SACR 584 (TPD) at 598 i - j - 599 (a).
Jordaan J in
considering an application to prevent the State from adducing further
documentary evidence which was not made available pursuant to a
request for further particulars found on the facts of that case that
the application was premature.
Jordaan J held that a Court would only be in a position to decide on
the admissibility of a document if the Court is made aware of the
contents of such a document. He quoted with approval the dictum in S
Mlwandle at 476 g - h where
Ebrahim J expressed himself as follows:
manifest, too, that the court must have insight into such evidence
before it can be in a position to determine its impact on the
accused's right to a fair trial and whether it is admissible or not.
An order which interdicts and restrains the State from conducting
further investigations and debars it from presenting the evidence
obtained in pursuance thereof, has far-reaching consequences. In my
view, it would be ill-advised, if not impossible for a court to
decide on the admissibility of such evidence without it having been
placed before the court for consideration."
Furthermore Jordaan J at 596 a - b and 598 f held that it could not
be said that the investigation had to screech to a halt at the
commencement of the trial and that further follow-up work could not
be done. If a new document or witness comes forward, the respondent
would be entitled to make use thereof. The mere fact that a document
was discovered later did not mean that it could be excluded on
that ground alone.
I agree with this statement, but will examine it in the context of
this case. I also agree with Ebrahim J in Mlwandle
he stated that an order which restrains the State from conducting
further investigations and debars it from presenting the evidence
obtained in pursuance thereof, has far-reaching consequences. Once
again this statement must be considered in the context of this case.
 In the
Canadian case of R v Antinello reported in the Canadian Rights
Reporter, vol. 28 CRR (2d) 65 dated 8 March 1995 the Crown made late
discovery of a witness where the accused person was charged with
first degree murder. The Crown became aware of the existence of this
witness eleven weeks prior to the commencement of the trial and
decided some ten days before the trial to call him as a witness.
Three days after the start of the trial, defence counsel was told for
the first time that the witness would be called. The defence counsel
protested and asked for a mistrial, or a direction that the witness
not be called.
 In an appeal
from a conviction on a charge of first degree murder Kerans JA at
paragraph 11 held as follows:
common ground that the Crown had a duty to disclose to the defence
the fact of the proposed Stapleton testimony. The learned trial judge
held that the Crown was guilty not of a failure to reveal but rather
arguably of an error about the timing of the disclosure. But the
failure to make a timely disclosure is, nonetheless, a failure to
disclose. It may breach the constitutional right of the accused to a
fair trial if that failure denies to the accused a reasonable
opportunity to prepare his defence."
continued and emphasised this point at paragraph 25 as follows:
leaves one remaining factor to asses on the topic of timeliness, that
is, the relationship between the day of disclosure and the day of
trial. That, with respect, is what this ground is about. Disclosure,
when it came, was too late to save this trial date and offer the
accused a fair trial."
This Court was also referred to another Canadian case, a decision of
the Ontario Family Court in the matter R
v B (S) reported in Canadian Rights Reporters, Vol. 1, CRR
at 188 delivered on 29 June 1990.
In this matter
five youths were charged with the crime of assault with intent to
steal and one of them was also charged with assisting a person
escaping from custody.
The Crown on the
third day of the trial disclosed "will say" statements to
the defnce. Four Crown witnesses had already given their testimonies
and the evidence-in-chief of a fifth witness had been led at that
 James J at
paragraphs 9 - 11 stated the objection as follows:
counsel argued that the disclosure precluded their clients' right to
make full answer and defence to the charges they faced.
The Crown has
offered to recall prior witnesses for further cross-examination.
Defence counsel argued that recall, even in the context of an order
excluding witnesses, will nor cure the matter. Defence counsel argued
that, if they had known earlier in the trial what they know now they
would have revised defences or asked other questions of the first
defence counsel advance, can the failure to disclose in a timely
fashion be cured by an adjournment of the trial."
and continues at
paragraphs 16 and 17 as follows:
not be the function of the trial judge in these types of applications
to review the recently disclosed "will-say" statements and
determine whether their content is contradictory, or whether counsel
could or could not have asked other questions of previous witnesses,
and whether rights have been deprived as a result. I ought to accept
the statements of defece counsel that, had they received disclosure
in a timely manner, they would have revised their defences, or asked
other questions of previous witnesses.
will not cure the defect in this disclosure process. Recall, however
graciously offered by the Crown, will not effectively restore the
I shall now evaluate the submissions on behalf of the State in
opposition to the objection. I shall deal with it in the same
sequence as referred to (supra).
Firstly, the 3 day rule came into existence to address specific
competing needs at a specific period (explained supra)
must be seen in his context. It must also be considered in the
context of what will further be said below in respect of the
timeliness of the discovery and the right of an accused person in
terms of Article 12 (1)(e) to be afforded adequate time and
facilities for the preparation and presentation of their deference
and Article 12 (1)(d) the right to call witnesses and cross-examine
those called against them. This trial may have reached a stage where
the 3 day rule does not serve any meaningful purpose.
 Secondly, in
a judgment delivered on 3 November 2008 this Court held that an
applicant must prove the existence and violation of a fundamental
right applicable in those instances where an applicant alleges that a
fundamental right has been violated by an Act of Parliament,
regulation or other legal prescript and where such alleged violation
forms the foundation of the relief sought by the applicant. It does
not apply in a situation where the State in criminal proceedings
intends to present evidence and an accused person alleges that the
evidence was obtained in a manner which violates a fundamental right
of that accused person.
 It is
necessary to explain this by repeating what this Court held in the 3
November 2008 judgment and in particular paragraphs 19 - 24:
In respect of the submission that a party seeking to establish the
existence of a constitutional right bears the onus of proving the
existence of such right and the violation of such right, this court
has been referred to van
den Berg and Kauesa (supra) in
den Berg (supra) the
High Court of Namibia with approval referred to Kauesa
v Minister of Home Affairs and Others 1995 (1) SA 51 (Nm) where
it was held (per O'Linn J following the Canadian decision in R
v Oakes (1986) 26 DLR (4th)
that the onus is on an applicant to prove that a fundamental right
or freedom has been infringed. It appears from Kauesa
the reason why an applicant bears the onus
prove the existence and violation of a fundamental right is because
of the presumption of constitutionality in respect of Acts of
Parliament or regulations promulgated under statutes. In Mathebula
J in answering the question who bears the onus
proving the violation of a fundamental right stated the following at
16 h - i:
now settled law that the answer to the question is: the applicant
who alleged and relies upon such infringement bears the onus to
prove the existence of a constitutional right and its infringement."
A reading of Mathebula
that the authorities relied upon deal with applications in which the
constitutionality of statutory provisions had been challenged on the
basis of the infringements of fundamental human rights.
also S v
Smit NO and Others 1996 (2) SACR 675 Nm).
v Mgcina 2007 (1) SACR 82 (T) the
Transvaal Provisional Division (consisting of three Judges)
finding of the court in Mathebula
concluded that the court was wrong in holding that the accused
person in that case bore an onus
prove an infringement of a fundamental right when it is alleged that
in the course of obtaining evidence against an accused person his
fundamental rights have been infringed. The court in Mgcina
that it is important to distinguish between two distinct situations.
The first situation is where an applicant alleges that a fundamental
right has been violated by an Act or legal prescript, and such
alleged violation forms the foundation of the relief sought by such
applicant. The second situation is where the State in criminal
proceedings intends to present evidence and an accused person
alleges that the evidence was obtained in a manner which violates
the fundamental rights of such accused person.
In the first situation a two-pronged enquiry is followed. It must
first be determined whether there has been a violation of a
fundamental right, and if so, is it justified to limit such right in
any way ? In this situation the applicant must prove the existence
and violation of a fundamental right. If an applicant is successful,
then the party seeking to limit that right bears an onus
prove the justification of such limitation.
The second situation (which is distinct from the first situation)
concerns the question whether evidence has been obtained which
violates a fundamental right. It concerns the admissibility
of evidence the
State intends to rely upon. In this situation an accused person
bears no onus to prove anything. The onus is on the State to prove
beyond reasonable doubt that a fundamental right had not been
violated. (See Mgcina
(supra) 94 h - 95 d)."
this Court was provided with statements deposed to by the five new
state witnesses. In addition as was stated in R v B by James J this
Court ought to accept the statement by defence counsel that had they
known earlier in the trial what they know now they would have
revised their defences or asked other questions of previous
Fourthly, I have already in paragraph 22 (supra)
with this issue.
this issue will be considered in conjunction with the issue of the
continuous investigation in this case.
 Sixthly, as
was submitted by defence counsel this may be true in respect of the
ten witnesses the State intends calling but not to those who had
already testified and who could not have been cross-examined on the
contents of these new statements and additional statements. In this
regard the right to cross-examine witnesses in terms of Article 12
(1)(d) of the Namibian Constitution is violated and this in turn
impacts upon the right to a fair trial guaranteed by Article 12
(1((a) of our Constitution.
the question whether it would be a violation of the right to a fair
trial where the Court recalls a witness in terms of section 167 of
the Criminal Procedure Act or subpoenas a witness in terms of
section 186 of the Criminal Procedure Act will depend on the
particular circumstances of each case and the need for a fair trial.
In terms of section 166 (2) of the Act, a witness called by the
Court may, with leave of the Court, be cross-examined by the
prosecutor and the accused person. After the Court has called a
witness an accused person must be given and opportunity to reopen
his or her case in rebuttal.
Zuma and Others 1996 (2) SACR 339 (N) at 340 a - c).
a criminal trial is not a game where one side is entitled to claim
the benefit of any omission or mistake made by the other side and
where a judge is an administrator of justice (R
v Hepworth 1928 AD 265 at 277) it
is a matter of common sense and fairness how far a court will go in
each case to repair the carelessness of a party.
Eighthly, the continuous investigation (as it was held in Du
Toit en Andere (supra) )
does not screech to a halt at the commencement of a trial and where
a new document or witness comes forward the State would be entitled
to make use thereof.
I am of the view,
for the reasons provided below, that the State does not have an
unqualified right to produce a new document or lead a new witness
during any stage of this trial. If this is not correct it means that
the State should in this particular matter be given free rein to
present evidence even at this late stage. The accused persons
pleaded to the charges on 15 March 2004.
The State has
already led 349 witnesses. There were a number of delays during the
course of this trial where the Court was precluded from hearing
evidence on the merits of the case. This Court due to a tragic
incident, had to relocate from Grootfontein to Windhoek during 2005,
resulting in a delay of five months. During the course of last year
due to an appeal lodged against the judgment of this Court in
consolidated trials-within-a-trial this Court was unable to sit for
period of six months. This is a very protracted trial because of the
large number of accused persons charged (there are presently 113
persons, some died in detention), each one of whom is facing 278
charges of very serious nature (high treason, murder, attempted
murder, sedition, public violence and malicious damage to property,
to mention some). As was submitted by counsel, from the discovery
made on 10 September 2008 it is clear that the State has a least 523
witnesses at their disposal, and this Court is often being reminded
by counsel that this case is not your ordinary run of the mill
criminal case. I agree with counsel on this point.
This Court is not
privy to how many more witnesses the State intends to call before
closing its case. How many unforeseen future delays there will be is
not known. What is to be expected though, is that when the State
closes its case, defence counsel will in all probability launch an
application for discharge in terms of section 174 of the Act in
respect of some of the accused persons. Those accused persons who
will be placed on their defence have the right to testify and the
right to call witnesses to testify on their behalf. A question often
asked and for which there is no answer is this: When will this trial
be finalised ?
I fully endorse what was said by Ebrahim J in Mlwandle
that the right which the State has to conduct investigations into
the circumstances of a crime is circumscribed both in respect of the
common law and the Constitution and that the State in fulfilling
this task is saddled with the duty not only to respect but also to
uphold the fundamental rights of an accused person.
 Mr Kauta
estimated that about 40 witnesses who had already testified would
need be recalled in the event of this Court allowing the State to
lead the evidence of these new state witnesses and hear evidence in
respect of the other additional statements. Even if this is not an
accurate estimation one is faced with the real possibility that in
such a scenario this trial would become even more protracted.
Furthermore should this Court allow the State to lead the evidence
of these new witnesses there exist a real possibility that where in
future whatever evidence is being dug up during this continuous
investigation this Court has to bear with the testimonies of those
surprise witnesses irrespective of the nature of those testimonies
and the impact it may have on the defence of accused persons.
 It will
depend on the facts and circumstances of each case whether a
decision to exclude evidence obtained during a trial in consequence
of continuous investigations, is justified or not.
The principle enunciated in aforementioned authorities (Mlwandle,
Du Toit en Andere, R v Antinello and
v B (supra) )
is that in spite of the fact that it may have far-reaching
consequences for the State a Court may bar the admission of evidence
obtained in violation of an accused's constitutional rights where
its admission would render the trial unfair or otherwise detrimental
to the administration of justice.
 The State
has an onus in criminal proceedings to show beyond reasonable doubt
that the admission of evidence will not ultimately render the trial
In this regard the State would do so by presenting evidence, in
probably, by leading investigating officers or other witnesses to
show that the accused persons would not be prejudiced should the new
and additional statements be admitted. Mr Kauta suggested to State
counsel that the procedure to be followed in this instance would be
to hold a trial-within-a-trial. This suggestion it appears to me was
not seriously considered, since it appears from the submissions by
Mr July that the State viewed the objection raised as a factor which
affects the weight to be attached to evidence and not the
admissibility of the evidence sought to be presented. No evidence
was presented by the State why these statements (i.e. the five new
statements and the five additional statements) could not have been
taken at an earlier stage. There is no answer to the question why it
was necessary at this stage of the trial to take these statements.
There is no evidence that the accused persons would not be
prejudiced should these witnesses be allowed to testify.
constitutional rights that would be violated should these witnesses
be allowed to testify are the right of an accused person to be
released should the trial not take place within a reasonable time
(Article 12 (1)(b) ), the right to cross-examine witnesses and the
right to adduce evidence (Article 12 (1)(d), and the right to be
afforded adequate time and facilities for the preparation and
presentation of their case
 Ninethly, in
this regard I shall accept that defence counsel did not object to
the reception of the evidence at that stage of the trial since the
accused persons had not been prejudiced by the admission of such
It also appears from the authorities referred to (supra)
the late discovery of witnesses statements is tantamount to no
discovery at all and where this failure can reasonably be expected
to limit their right to cross-examination and the opportunity of
accused persons to present their case, evidence based on these
statements may be
 It is trite
law that the judgments of other jurisdictions may have persuasive
authority. This is particularly true in the present instance where
no Namibian Court was previously required to rule on the issue of
debarring a party from presenting evidence.
Kriegler J in Bernstein
and Others v Bester and Others NNO 1996 (2) SA 751 (CC)
811 I - 812 A with
reference to foreign judgments stated the following:
study is always useful, particularly where the courts in exemplary
jurisdictions have grappled with universal issues confronting us.
Likewise, where a provision in our Constitution is manifestly
modeled on a particular provision in another country's constitution,
it would be folly not to ascertain how the jurists of that country
have interpreted their
 This Court
was in support of the objection, referred to "the risk of
contamination" in respect of the statements discovered at this
stage. The State did not specifically counter this submission. In a
nutshell it relates to the vast media attention attracted by this
case from its inception. Evidence has been disseminated on a
continuous basis by way of the printed and electronic media. In
addition it must be added that hundreds of state witnesses had
already testified, the majority whom hail from the Caprivi area, the
same area where the majority of the new witnesses reside.
 Even though
there is no evidence to this effect before this Court, I am of the
view, having regard to these factors, that there is a real risk that
these new statements may contain allegations based on information
obtained by means of secondary sources and not from the witnesses'
original knowledge or memory of incidents referred to in these
statements. I agree with counsel that it may be virtually impossible
for this Court given these circumstances, to distinguish between
original knowledge and "implanted" knowledge. This in turn
creates a very real trial related prejudice, and the impression (as
submitted by counsel) is created that the State patches up its case
as gaps are discovered.
 I have
indicated earlier that there is no explanation why this Court must
at this very late stage admit the evidence based on these statements
(i.e. new as well as additional statements) and furthermore there is
no explanation why these statements could not have been provided
much earlier during the course of the trial.
 The right of
the State to present evidence obtained by way of continuous
investigations during the course of this trial must be limited by
the right of accused persons to a fair trial.
 These are
the reasons why this Court made the following ruling on
24 February 2011:
1. That the
objection in respect of witnesses Brogan Maumbwilo, Eustace Mukela
Simataa, Precious Katangu Kabula, Chikoma Tryphinan Sezuni and
Mukungu Mukungu Morricious is hereby upheld.
the objection in respect of witnesses Elasca Samwele Sitale, Linus
Manga Kufuna, Chrispin Mulatehi Likemo, Edwin Sitali Mweti and
Primes Vitssentsius Amwaamwa is hereby dismissed.
The State is
however restrained from presenting evidence in this Court in respect
of these witnesses founded on the contents of their additional
this ruling is based on the view of this Court, namely that to allow
the first five witnesses to testify in respect of new evidence and
last mentioned five witnesses in respect of what are contained in
their additional statements would violate the fundamental right of
the accused persons to a fair trial guaranteed by the provisions of
Article 12 of the Namibian Constitution.
BEHALF OF THE STATE:
OF THE PROSECUTOR-GENERAL
BEHALF OF THE DEFENCE:
MR DUBE MR
KRUGER MR NEVES MR NYONI MR KACHAKA MR McNALLY
DIRECTORATE OF LEGAL AID