CASE NO.: CC
HIGH COURT OF NAMIBIA
In the matter
- 04 June 2010; 07 - 10 June 2010; 14 June 2010;
16 - 18 June 2010;
21 June 2010; 24 June 2010; 28 June 2010; 22 July 2010; 18 - 20
August 2010; 30 August 2010; 01 - 03 December 2010; 06 - 08 December
The accused persons stood jointly charged with murder on the first
count, robbery with aggravating circumstances on the second count,
kidnapping on the third count, possession of fire-arms without a
licence on the fourth count, and possession of ammunition on the
fifth count. Each accused person pleaded not guilty to all the
None of the
accused persons offered any plea explanation in terms of section 115
of the Criminal Procedure Act, Act 51 of 1977 as amended.
All the offences are alleged to have been committed on the 8th
July 2007 at or near the Khomas Hochland within the district of
 The summary of
the substantial facts read as follows:
Sunday the 8th
July 2007, the deceased and his wife Elke M G Fellinger arrived in
Namibia from Germany. After hiring the pick-up motor vehicle as
referred to in count 2 in the indictment, the couple drove in the
direction of Khomas Hochland. At or near the Francious Feste Stone
ruins in the district of Windhoek, the couple disembarked from this
motor vehicle and they were attacked by the accused who were armed
with the fire-arms and ammunition as referred to in counts 4 and 5.
Neither accused had a valid licence to possess these fire-arms and
ammunition. The accused persons shot the deceased at least once in
the head and he died at the scene due to gun shot injuries. The
accused persons then assaulted Elke M G Fellinger in the manner set
out in count 2 and they stole properties as set out in count 2. The
accused persons then dumped the body of the deceased and forced Elke
M G Fellinger into the motor vehicle and sped off. The accused
persons abandoned the motor vehicle after they overturned it and left
 The evidence
in this case may be broadly summarised as follows:
The State called W
H Pfeiffer, as its first witness. He is a practising legal
practitioner and owns a farm Okariro No. 282 in the Khomas Hochland
area within the district of Windhoek. On the fateful day he was
returning to Windhoek from his farm accompanied by his wife. Whilst
on their way they came across the deceased's motor vehicle which was
being driven reckless, at the time. He then tried to alert the driver
but instead the driver increased his speed. According to him he at a
certain point drove next to the vehicle and had a chance to look at
the driver, but the driver did not stop. He also noticed that the
driver seemed to be speaking to someone over a two way radio.
 After a while
he found the motor vehicle having overturned, and he again observed
the driver assisting the passenger in front to get out of the motor
vehicle as the passenger was bleeding heavily.
 The two male
persons at the time wore olive green safari clothes. He identified
accused no. 2 as having been the driver of the motor vehicle. He was
not called to identify the driver of the motor vehicle on an
identification parade though. He later on as he followed the motor
vehicle found it having been involved in an accident. He also met the
complainant on the scene, after the other occupant had left the
scene, and disappeared.
 As for the
next state witness, it became common cause that the deceased was with
his wife on that fateful day, having arrived in Namibia on the
morning of the
It is further
common cause that upon their arrival, they had hired a pick-up motor
vehicle. What transpired further is indicated in the summary of the
substantial facts as referred to in this judgment.
importantly is the complainant's evidence that she and her husband
whilst having stopped at a certain place, were confronted by two male
persons, also that one of the two male persons conducted a body
search on her, and took a little camera which he then put in his
pocket. The complainant was able to point out to court that the man
who had taken the little camera, was accused no. 1. The said camera,
was produced as an exhibit in court and the witness was able to
identify it as the camera that belonged to her. Through
investigations copies of photographs which were produced by another
witness from the memory card which was in the camera when taken from
the complainant on the date of the incident, were also identified by
the complainant, which she testified that they were taken in Germany
prior to their arrival in Namibia.
 Evidence that
the camera, identified by the complainant as hers, was placed before
court, that it had been given by accused, to his childhood friend Mr
himself testified that he got the camera from accused no. 1, though
he had earlier on refused to tell the police about the origin of the
camera, when first approached.
accused no. 1 had denied throughout that he had given the camera to
Namugongo. In cross-examination the first accused was questioned as
to why Namugongo would implicate him about the camera, but did not
say the reasons why. The complainant further testified that as a
result of the accident she was injured, and also suffered injuries
from the assault on her by the two accused persons. She was later on
taken to the Roman Catholic hospital for treatment.
evidence from Mr Pfeiffer is that he observed blood on the scene and
two fire-arms where the motor vehicle had overturned. He was also
able to figure out where the deceased's body could have been dumped
after the complainant had explained to him about what had happened to
them. The deceased's body was later on recovered upon information
given to the police and the witnesses.
Another state witness Mr Louw who at the time was a Chief Inspector
in the Namibian Police also testified that he had to attend the scene
of murder on the 8th
July 2007. He confirmed that several exhibits were collected where
the deceased's body was found, as well as where the motor vehicle had
overturned, and at a bridge. The exhibits were then sealed in
evidence bags. These were then taken to his office for safe custody.
According to Inspector Louw a green shirt found at the scene where
the deceased was found was put in a bag, specifically marked, with
NFE 03233, this exhibit was produced in court as Exhibit No. 4.
 Stones with
blood were also collected at a point where the motor vehicle had
overturned and placed in a bag marked as NFB 05797, which became
Exhibit 8 before the court as well as Exhibit NFB No. 05828, which
became Exhibit 9 before the court.
 A spent
cartridge was collected near the bridge, and like other exhibits also
placed in a bag marked NFB 05801 which was produced in court as
found on the scene where the motor vehicle had overturned were also
collected and were produced as Exhibits 12, 13 and 14 respectively.
 All the
exhibits collected at the scene were handed over to Inspector Louw
and then later handed over to the investigating officer Sgt. Hilundwa
at the time. Exhibit bags were all sealed.
 Accused no.
1's blood was later on drawn from his person and sealed in his
presence by the late Dr Shangula. The sample was then handed over to
NFSI laboratory and reference number allocated to it.
received the Exhibits at NFSI properly sealed with specific reference
numbers the said Exhibits were then forwarded to BCIT in their sealed
form, whereafter they were given BCIT reference numbers. Both Mr
Jason Moore and Dr Hildebrand testified about their experiences in
the DNA testing and on the control measures that are put in place to
guard against contamination. They also testified that the necessary
caliberation of the machines were done.
placed before court is that accused no. 1's sample marked NFB
reference no. 05253, was taken after he had been to NFSI accompanied
by witness Alfonso, that piece of evidence has not been disputed.
 Ms Swart's
evidence is that a portion of an exhibit is cut out, and it is then
sent out for examination.
 Ms Swart also
testified that she prepared the exhibits, that being the green
jacket, Exhibit 4, as NFSI exhibit 7 and then marked out areas of
interests. One of which was then labeled 7.5. This was then examined
by Dr Hildebrand who gave it reference number Q4. There was no
 From what Mr
Jason Moore and Dr Hildebrand did, sample Q4 matched control sample
K3. It has been established that sample K3 came from accused no. 1,
and the sample Q4 came from the green jacket which was found near the
deceased's body, where it had been found dumped.
 There is
evidence by the complainant that it was accused no. 1 who took the
camera from her, and that it was also him, who shot her husband, (the
deceased). It thus follows that accused no. 1 was in close contact
with the deceased.
 On the issue
of identification, it is common cause that no identification parade
was held in order for the witness Elke Fellinger to identify her
 That being
the case, there is still real evidence which was procured in the form
of a camera. The complainant herself has identified the camera, as
belonging to her, also identifying copies of the photographs, that
she said were taken in her country, Germany, prior to their arrival
in Namibia. This camera was received as real evidence in this court.
 Mr Namugongo
one of the state witnesses testified that he received the camera from
accused no. 1 whom he had known from their childhood. Throughout his
testimony, he persisted that the camera, came from accused no. 1 even
though when first approached by the police he was hesitant to reveal
the origin of the camera.
 Ms Elke
Fellinger, explained to this court that, accused no. 1 was the one
who had taken the camera from her, and placed it in his pocket, on
the date of the attack on her and the deceased. Also that it was the
same accused, who shot at her husband, as she remained with accused
no. 2 at the motor vehicle.
 Accused no.
1's version was a mere denial. He denied everything. He then called
one witness in order to strengthen his alibi.
In my view, if his
alibi was to be taken seriously by the court, such alibi could have
been raised upon his arrest. In the matter of
the court held:
"It did not
seem reasonably possible that his corroborating witness would not
come forward immediately upon his arrest, or at least some short time
later -and advise the police investigating the crimes, which has
shaken the whole community as a whole, that he had been with them at
the crucial times.
was equally not possible that the 1st
himself having so cogent an alibi, when arrested and charged did not
advise the police or the prosecution that this was the case. The only
inference that could be drawn from his failure to advise the police,
and from the other witnesses' failure to do so, was that the alibi
had no truth in it at all."
 It is trite
that in assessing the reliance to be placed on the evidence before
court, by the witnesses it must be emphasised at the very outset that
all the witnesses were quite independent and impartial with no
involvement either with the victim or with the accused persons (i.e.
 Also there is
absolutely nothing to suggest any bias on their part, they must
therefore be treated as honest witnesses.
 Counsel for
accused no. 1 tried to discredit the DNA evidence placed before the
court. There was evidence that there was no contamination, when
samples were analysed. What is of importance is the chain of the
evidence. No doubt that the DNA test is a complex one, which is based
upon the scientific thesis that all individuals, possess a unique
Accused no. 1 is
neither an identical twin to the deceased in this matter. Thus the
deceased's DNA found on the same jacket shown as accused no. 1's DNA,
show that it has been proven beyond reasonable doubt that indeed
accused no. 1 was the one who shot at the deceased as testified to by
the deceased's wife. Accused no. 1 had thus been in close contact
with the deceased. In the matter of
it was held:
onus of proof lies on the State, the adequacy of proof and the trial
court's evaluation of the evidence. The onus which rested upon the
State in a criminal case was to prove the guilt of the accused beyond
reasonable doubt. Not beyond all shadow of a doubt. Our law did not
require that a court had to act only upon absolute certainty - but
merely upon justifiable and reasonable convictions. Nothing more and
nothing less. What the courts have to consider is the cummulative
impression, with all the fragments made collectively in order to
determine whether the accused's guilt had been established beyond
 With regard
to accused no. 2, a confession which he had made after his arrest was
ruled to be admissible as it had been made to the authorized officer,
who testified before this court during the trial. The said confession
was made freely and voluntarily by accused no. 2. It has become part
of the evidence before the court. Like his co-accused, he denied any
involvement in the commission of the offences charged. Accused no. 2
had also made a pointing-out, which he had since also denied -
claiming that the pointing-out had been cooked by the police
themselves and he merely did what the police requested him to do. The
pointing-out was video recorded and the video became part of the
evidence before the court. Section 218 of the Criminal Procedure Act,
authorises the pointing-out, provided that such pointing-out is done
freely and voluntarily. It is trite that evidence of the pointing-out
is not admissible because it is an extra-curial admission, but
because it shows that the accused has knowledge of the place or thing
pointed out or some facts connected with it, from which knowledge an
inference with regard to accused's guilt can be drawn. The court had
the opportunity to view the video, and accused no. 2 could be clearly
seen, heading the police to the scene where the alleged murder was
carried out. Contrary to his claim that it was police who had
indicated to him about what to do, it became very clear from the
video, that accused no. 2 knew the scene and explained in full detail
in the confession how events unfolded on that date. In fact accused
no. 2 corroborates the complainant's evidence as to how the deceased
was killed, and who had killed the deceased.
 Moreover, the
DNA extracted and the examination done on sample Q5 and QH had the
same profile which matched K4, a blood sample drawn from accused no.
2. Further, that the blood and rock samples collected on the scene
where the vehicle had overturned proved beyond reasonable doubt that
accused no. 2 was at the scene as he himself had explained in his
 Ms Nehale,
testified how accused no. 2 arrived at her house. Accused no. 2 had
injuries. That was merely some few days after the incident. Ms Nehale
was not so clear about the exact date. Mr Pfeiffer, the first witness
too testified that the passenger appeared to have been hurt, and was
being assisted by the driver.
 Mr Nambahu's
evidence was about the recovered fire-arms, which were handed in to
him, which he then had to examine. These were handed in as exhibits
12, 13 and 14 respectively. Mr Nambahu also confirmed that the spent
cartridge matched fire-arm Exhibit 12, which was said to have been
used in the killing of the deceased.
 It was also
testified to by the deceased's wife that both accused had fire-arms
and that it was accused no. 1 who shot her deceased husband. She
added that accused no. 2 then moved towards where the deceased had
been shot. Accused no's 1 and 2 were both in possession of fire-arms
which were later on found abandoned at the scene. None of the accused
had a licence to possess such fire-arms. There is further evidence
before court that ammunition was recovered near the deceased's body
and these were said to belong to the two accused persons - according
to the complainant - the deceased's wife. Both accused had control of
these ammunition throughout.
After the deceased
was shot dead, by accused no. 1 the complainant was ordered into the
motor vehicle and the accused persons then drove off with both the
deceased's body and herself. She remained under their command, up
until when the motor vehicle was overturned. The complainant
testified that at some point in time she was struck with the
fire-arm. She had no idea where she was being driven to
 Each accused
person testified in his defence, denying any involvement in the
commission of the crimes charged. Further testimony is that they had
not known each other. Accused no. 1 specifically testified that he
only came to know accused no. 2 in September 2007. Whilst accused no.
2 testified that he came to know his co-accused in November 2007.
Accused no. 1
denied to have given the camera to Namugongo. Accused no. 1 then also
called a witness one Penda whom he claimed to have gone to see at the
Wanaheda Police Station, and that he would not have been involved in
the commission of the crimes as alleged.
Mr Penda could
however not shed sufficient light about the date, as he could not
with certainty recall. The court is of the view that Penda's version
cannot take this case any further.
 With regard
to the evidence on common purpose, the court heard that it was
accused no. 1 who produced a fire-arm from his person and shot the
deceased, whilst accused no. 1 had engaged the deceased, accused no.
2 approached the deceased's wife and started to search her -
demanding money - which according to the deceased's wife, accused no.
2 took from her. The deceased's wife was then forced into the motor
vehicle and was driven away.
From the evidence
before the court, it is clear that the spontaneous acts of accused
no. 2, searching and demanding money from the deceased's wife shows
that a plan existed. Thus the conclusion is that accused no. 2 was to
provide the additional force in case of any resistance from the
 In my view
accused no. 2 was part and parcel of the common design to commit the
offences, to employ such force as was necessary to subdue those
present at the scene.
 In his
confession, accused no. 2 gave full details about how events
unfolded, and which the court ruled admissible, accused no. 2
confirmed that they had firearms. The said fire-arms were
recovered at the scene by the police - almost immediately when the
vehicle had overturned. It is clear that the use of the said
fire-arms was part of the modus operandi. Ammunition too was
recovered on the scene.
 In terms of
the Arms and Ammunition Act, Act 7 of 1996, possession is described
to include "custody". The Act however does not define the
word "possess". Thus the ordinary meaning of the word
possession in legal terminology must be applied. The law does
recognise that possession through another is possible as long as the
parties have a common intention for control of the article. At no
time did accused no. 1 or accused no. 2 distance himself from one
 In the result
I am satisfied that the State has proved the two accused's guilt
beyond reasonable doubt.
 On the
credible evidence before court I am satisfied that firstly the
accused persons with common purpose shot at the deceased with direct
intent to kill him. Secondly, their intent which was common was to
subdue the deceased and his wife in order to rob them of their
properties. The two accused had lay in wait overnight and had been
armed with fire-arms. They had loaded the deceased's wife on the
vehicle thereby depriving her, her liberty - until the time the
vehicle overturned, and they abandoned it.
the two accused persons are convicted as charged on all the counts.
BEHALF OF THE STATE: MS NDLOVU
OF THE PROSECUTOR-GENERAL
BEHALF OF ACCUSED NO. 1:
OF LEGAL AID