Court name
High Court
Case number
2 of 2012
Case name
S v Tomas
Media neutral citation
[2012] NAHC 214
Judge
Liebenberg J













IN THE HIGH COURT OF NAMIBIA:



NORTHERN LOCAL DIVISION







HELD AT OSHAKATI







CASE NO.: CC 02/2012







In the matter between:







THE STATE







and







PAULUS TOMAS
…...................................................................................ACCUSED











CORAM: LIEBENBERG, J.







Heard on: 13, 16 – 20; 23 –
24; 27July 2012



Delivered on: 30 July 2012











JUDGMENT















LIEBENBERG,
J.:
[1]
The accused, an adult male, stands charged with the offence of
murder, read with the provisions of the Combating of Domestic
Violence Act
1
in that he on the
29
th
day of November
2010 at Uuthilindindi village, in the district of Oshakati, allegedly
killed one Johanna Lazarus (deceased).







[2] The accused is
legally represented by Ms
Kishi
while
Mr
Lisulo
appears
for the State.







[3] Accused pleaded
not guilty and in his plea explanation raised an alibi defence,
saying that he had been in Oshakati on the 29
th
of November 2010 in
search for employment; that he had spent the night there and only
returned to his village home the following day, the 30
th
of November.







[4] At the outset
of the trial and by agreement, a bundle of documents
2
were handed in, the
content of which are not disputed. These are: a photo plan and
explanatory notes depicting the crime scene and post-mortem
examination as compiled by Sergeant Shakuyunga of the Namibian
Police; the identification of the deceased’s body as per police
form Pol 51 being that of Johanna Lazarus; affidavits referring to
the removal of the corpse from the scene and the handing over of same
to members of the Namibian Police for safe custody; the affidavit and
accompanying post-mortem examination report compiled by Dr Perez; and
lastly, the record of proceedings held in the magistrate’s
court, in particular, pertaining to the section 119 proceedings
during which the accused pleaded not guilty.







[5] It thus appears from the foregoing
that the identity of the deceased, Johanna Lazarus, and the cause of
her death, are common factors. What however is in dispute is that it
was the accused who had killed the deceased as alleged in the
indictment.







[6] It seems clear from the
post-mortem examination report that the deceased’s death was
caused by head injury and the following chief post-mortem findings
were made: Multiple injuries to the head with fractures of the skull
(blunt injuries); fracture of the base of the skull; fracture with
depression of the frontal and left temporal bone of the skull;
subarachnoid haemorrhage widespread throughout the brain. External
injuries (open wounds) to the head of the deceased are clearly
visible from the photographs taken during the post-mortem
examination. Regard particularly being had to the fractures, there
can hardly be any doubt that it would have required considerable
force directed at the deceased’s head, to inflict injuries of
this nature to the skull. In this case, the death of the victim due
to head injuries is therefore not surprising and rather appears to
have been an inescapable consequence of the assault perpetrated on
her.







[7] Whereas there are no eye witnesses
who could possibly testify about the incident that led to the death
of the deceased, the entire case for the State rests on
circumstantial evidence. Mindful of the alibi defence relied on by
the accused, the State, in order to connect the accused to the
commission of the crime or at least to place him at the scene in
relation to time, called several witnesses; however, with mixed
success.







[8] Simon Akakuwa
(Simon), then fifteen years of age, testified that on the 29
th
of November 2010 at
about 14:30 he was on his way home from school when he saw the
accused in the company of one Alutman Paulus Shitaleni (Shitaleni) at
the cuca shops in Okau village. He approached them head on and they
crossed at a distance of approximately 4 – 5 metres. Besides
noticing that the accused was dressed in a blue striped T-shirt, and
khaki trousers (Bermudas) he paid no further attention to him and
proceeded home where he lives with his aunt Aune. After some time,
which he estimates between 17:00 and 18:00, his aunt called him
outside saying that there were two persons quarrelling a distance
away from their homestead and whether he was able to identify them.
3
He identified the
one on his clothes being the accused he had earlier seen at Okau,
while the other person with whom he was quarrelling, was identified
on her voice as being the deceased, also from their village. He
furthermore identified the accused’s voice at the time. Under
cross-examination he disputed the accused’s version put to him
to the effect that it was the previous day that he had seen the
accused in the company of Shitaleni at the cuca shops.







[9] The evidence of Aune Angula, the
aunt to Simon, does not add much to the State case except for saying
hat she and Simon corroborate one another pertaining to the incident
they witnessed where two persons were quarrelling at a distance; also
her identifying those persons on their voices being the accused and
the deceased. However, the evidence of these two witnesses relating
to time is contradicted by that of the witness Shitaleni, who claims
to have been in the accused’s company until approximately eight
o’clock that evening; therefore, he could not have been seen by
the two witnesses between 16:00 – 17:00 in the company of the
deceased, a short distance away from their home, as both testified.







[10] However, the evidence given by
Simon about him seeing the accused and Shitaleni at Okau, was
corroborated in material respects by Shitaleni himself, who said that
after he had finished work on that day (the 29th) at
around 11:00 he accompanied the accused who fetched him from work. It
seems common cause that they were friends prior to the incident that
led to the accused’s arrest. They went to Okau village where
they stayed until about 17:00. He recalls having seen Simon coming
from school, passing them. They parted company, each going to their
respective homes which are closely situated. He retired to bed and
was sleeping when awaken by the accused who told him that he came to
say goodbye; that he (Shitaleni) had to take a proper look at him as
it would be his last time to see him, as he had killed his
girlfriend. Also that Shitaleni had to collect his salary for work he
had done from the headman; that he could take the accused’s
clothes and also gave him a Nokia cellphone and returned Shitaleni’s
necklace (chain) to him which the accused was having. He further said
that as from the next day there would be people crying at the
accused’s as well as his girlfriend’s house, as he was
going to commit suicide. Shitaleni shared his room with his brother
Alutman Paulinus who was present during this incident and overheard
the conversation between the accused and Shitaleni. He also gave
evidence to that effect. Shitaleni thereafter escorted the accused
outside and returned to his bed. About the cellphone, Shitaleni said
he mentioned to the accused that he could not accept the phone after
the accused had killed someone as it would bring him into trouble; he
therefore in the morning took the phone to the house of his uncle,
Kashisha, to whom he gave it.







[11] In cross-examination Shitaleni
was adamant that he and the accused had been together on the 29th
and disputed allegations that the accused was in Oshakati on that
day. It was pointed out to him in cross-examination that the date of
the alleged meeting with the accused, as reflected in his witness
statement, was changed from “On Tuesday 30.11.2010” to
read “On Monday 29.11.2010…” and when asked
who had made the correction, he replied that it had to be the police
officer who reduced the statement to writing. He maintained his
position in cross-examination that the accused had been visiting him
on the said night; also that he made a phone call in their presence
to a person whom accused said was his cousin. As regards facts
testified on by the witness but which were not mentioned in his
witness statement, he explained that he indeed told the police
officer who reduced his statement to writing everything; therefore,
he was unable to account for the officer’s failure to record
everything as mentioned by him. The police officer in question was
not called to give evidence in respect of the statement.







[12] Alutman Paulinus (Alutman)
confirmed having been together with his brother Shitaleni when the
accused came into their room that night saying that he had killed his
girlfriend and that he were to commit suicide. Also that the accused
said he had come to say goodbye, and made the phone call from their
room to a family member. According to Alutman the accused was wearing
short khaki trousers, a striped T-shirt and blue striped Adidas
sandals. He further said that when the police came to their house the
following day, they enquired about shoeprints observed at their house
and which he (Alutman) said, was that of the accused.







[13] I interpolate to remark that
Alutman’s description of the accused’s clothing is
identical to that testified about by Simon, when he saw the accused
earlier that day at Okau; as well as the testimony of the
investigating officer, Detective Sergeant Joshua Shakuyungwa, when he
arrested the accused two days later.







[14] Lazarus Saavi
Tuhafeni (Saavi) is the younger sister of the deceased and according
to her, she, after arriving home at Uuthilindindi village during the
afternoon of 29 November 2010, handed her SIM card to the deceased
who thereafter used it in her own phone. The reason for this,
according to Saavi, was because the deceased was not having her own
SIM card with her. Saavi, on the other hand, did not have a cellphone
of her own and would normally use her SIM card in the phones of
either her mother or her siblings. The number of the witness’
card is 081 434 1744 and was active at the time; whilst the number of
the deceased’s SIM card is 081 634 4053. After dinner she and
the deceased retired for the night. When already in bed, a text
message was sent to the deceased’s phone and when shown to
Saavi, it read that the deceased had to come to the fence. She was
unable to see by whom the message was sent, but the deceased then
informed her that it was Iipinge (the accused) who said she had to
fetch her money.
4
After the deceased
changed into other clothes, she left at about 20:00, never to return.
In the morning, and whilst on their way to fetch water, Saavi and her
mother came upon the deceased in the field, lying dead next to the
footpath. A panga from their house was lying nearby, while a piece of
wood, covered in blood, was seen lying near the deceased’s
head.
5
There was also a
pair of sandals which Saavi identified being hers and after putting
these on she left to find help from the house of a neighbour, Mr
Absai Martin. The police were then summoned to the scene.







[15] Lahya Naivela (Lahya) a cousin to
the accused testified that on the night of 29 November 2010 she was
called twice on her cellphone by the accused, but from a different
number than his registered on her phone. According to her, her number
is 081 217 8635, while the one the accused was phoning from is 081
634 4053. She confirmed these calls from a MTC call list printout
made available to the witness according to which phone calls were
made to her phone on 29 November 2010 at 22h52 and 23h41,
respectively. Lahya testified that although the accused phoned from a
different number, it was indeed him she had spoken to on both
occasions, during which he told her that he had killed his
girlfriend. She asked him whether they had been quarrelling, which he
confirmed, but without saying what it was all about. Lahya said she
at first did not believe the accused, but when he phoned her the
second time she asked him whether he had informed ‘uncle
Ghadaffi’ and his elder sister Hilma accordingly, which he
denied. She then handed over the phone to her mother. Lahya
thereafter called ‘uncle Ghadaffi’ and Hilma but neither
knew anything about the earlier reports made by the accused. She was
subsequently called in the morning by Hilma who confirmed the earlier
reports about the deceased having been killed.







[16] In cross-examination Lahya was
questioned from her witness statement about some omissions in the
statement but which were testified on in Court; and other issues
which, according to her, were incorrectly recorded – despite
her having expressed her satisfaction with the statement under
cross-examination earlier. She explained that it could possibly be
attributed to lapse of time, but was confident that what she has
stated in Court is correct.







[17] The evidence
of the witnesses Iipinge Hamushila
6
and his wife
Paulina Sakaria is not of importantance to the outcome of these
proceedings in that it relates only to the cellphone that was brought
to Mr Hamushila in the morning and which subsequently was handed over
to the deceased’s mother by Mrs Sakaria. It would thus appear
from the evidence to have been the same phone the accused had given
to Shitaleni the previous evening.







[18] I now turn to summarise the
evidence given by the two police officers Constable Hamunyela
Haitenge and Detective Sergeant Joshua Shakuyungwa.







[19] Constable Haitenge at the scene
observed, next to the deceased’s body, the blood stained piece
of wood; a blue ribbon and further away, the panga. He noticed prints
that appeared to have been made by a sandal leading away from the
scene going in the direction of a nearby field situated between the
deceased’s homestead and that of the accused. These prints took
them up to a hoe lying in the field, a considerable distance away
from the deceased’s body. The hoe also had blood stains on its
handle (Exh ‘2’). The police were due to long grass in
that area unable to track these prints beyond this point. As a result
thereof the investigation was extended to all homesteads in that area
and at the house of Alutman, the same prints were observed. Upon
enquiry Sergeant Shakuyungwa learned that these were the prints of
the accused that had come to the said house the previous evening.
Constable Haitenge ended up at the accused’s house where he was
shown the accused’s room by the owner of the house. The accused
was not present when Levy jean trousers, allegedly that of the
accused were, found outside his room with blood spots on (Exh ‘1’).







[20] The search for the accused
continued throughout the night until the following morning when it
was reported that he had been spotted at Omubuka village,
approximately 10 km from home. The police went there and at the
village found the same prints they had been following the previous
day. At one stage they saw someone walking in a nearby field who,
when called by the police, started to run away. The police gave chase
and apprehended the accused who was dressed in a blue striped T-shirt
and short khaki trousers. He was bare feet as he had lost his sandals
during the chase. According to Sergeant Shakuyungwa the accused
appeared tired, was shivering and unable to speak. When one of the
police officers present asked the accused why he had run away he
replied by saying: “It was me who killed that girl”.
Sergeant Shakuyungwa immediately stopped the accused from making any
further statements whereafter they proceeded to the police station
where the accused was formally arrested and had his constitutional
rights explained to him. Whereas the accused according to Sergeant
Shakuyungwa was willing to confess, he tried to bring the accused
before a magistrate but was unsuccessful as no magistrate was
available. It is common cause that the accused when charged, provided
a phone number to the investigating officer, which turned out to be
that of the deceased. When asked why he had left the phone at
Shitaleni’s place the accused replied that the “body”
of the phone belonged to the deceased. As regards the forensic
analysis of the exhibits, Sergeant Shakuyungwa testified that these
were returned without being analysed; the reason being that there
could possibly have been contamination as the exhibits were not
packed separately, but put together when sent for analysis.







[21] It was put to Sergeant
Shakuyungwa in cross-examination that the reason why his witness
statement is silent about him having been to Shitaleni’s house
and the report made there to him about the accused having been there
the previous night; and the shoe prints observed at that house, is
because these things never happened. He confirmed however that,
although not mentioned in his statement, he did obtain statements
from the two witnesses about the accused having visited them and he
personally observed the shoe prints at that house the following
morning. He further disputed allegations about the accused having
been assaulted after his arrest in order to force him to confess to
the murder.







[22] Hilia Eliakim,
employed as Risk Administrator at Mobile Telecommunications (MTC),
Windhoek, testified and introduced into evidence data records
7
extracted from
their system reflecting information about phone calls and text
messages (SMS) made from and to a specific number; the duration of
the call; the time and date the call was made or received; the serial
number of the respective phones used; and the receiving tower that
registered the call. The witness explained that the receiving tower
closest to a cellphone in use will not necessarily register the call.
This will depend on the number of calls registered by the tower at
the given time and once its capacity becomes congested, the call will
automatically divert to the nearest available tower in the area. She
was unable to provide the radius of reception of a receiving tower,
but held the view that a call made from Oshakati will not be
registered by a receiving tower situated in the vicinity of Ondangwa
airport, as the distance between receiving towers in this instance is
simply too far.



[23] The accused
testified in his defence and denied his alleged involvement in the
killing of the deceased; though confirming that he and the deceased
at the time were in a romantic relationship. It is his testimony that
he left home (Uuthilindindi village) at 06:00 on the morning of 29
November and only returned again at 22:00 on the 30
th.
He had gone to Oshakati in search of work at a construction site but
which was unsuccessful. He said he met with one David Nashilongo on
the day of his arrival in Oshakati and they were in each other’s
company throughout until they parted ways at around 13:00 the
following day. He slept at home the night of his return to the
village but left again early in the morning (06:00) to meet with one
Andreas at Ombuga village so that they could go to the cuca shops at
Okau. They were still on their way there when they met with the
police who then arrested him and assaulted him by hitting him with
open hands and with the barrel of a firearm on his forehead. He was
also kicked with shod feet. This notwithstanding, he did not admit
having committed the crime under investigation. In cross-examination
he said that he did not disclose his alibi to the police as he
decided to do so in Court. This obviously deprived the State of the
opportunity to have the alibi investigated. Although the accused
admitted being the owner of khaki trousers and a blue striped T-shirt
which, he says, he used to wear, he denied having worn same on the
day in question as testified by three of the State’s witnesses.
He further disputes evidence about him having been seen in the
village together with the deceased during the said afternoon; that he
was in the company of Shitaleni during the day and visited his home
in the evening during which he confessed to the killing of the
deceased; that he phoned Lahya during the night and admitted having
killed his girlfriend; that he ran away when noticed by the police;
and that he, after being apprehended, admitted the killing of the
deceased to the police.



[24] During
cross-examination it emerged that the testimony given by the accused
in Court, in some respects, differs markedly from his explanation as
contained in the defence’s reply to the State’s pre-trial
memorandum. It must be said that this document, as well as the
minutes of the pre-trial conference subsequently held, were drawn by
the accused’s erstwhile legal representative, Ms
Koch,
who subsequently withdrew as counsel and was replaced by Mr
Kishi.
With the
commencement of proceedings it was put on record by his counsel that
the defence adheres to the said documents, which was also confirmed
by the accused. I shall deal with this aspect of the proceedings in
more detail later.







[25] The accused
called David Nashilongo who gave evidence in his defence to the
effect that the accused was in Oshakati on the 29
th
of November 2010
and in his company until about 20:30 when they parted company.
According to the witness he thereafter had no further contact with
the accused as he left for Windhoek the following morning. When
confronted in cross-examination with contradictions between his
evidence and that of the accused pertaining to time and place, he was
adamant that his version was the truth.







[26] Where an
accused, as in this case, relies on the defence of alibi, there is no
duty or onus upon the accused to prove the truth of the alibi, as the
onus remains on the State to rebut the accused’s defence.
8
What the State is
required to do is to present evidence that would prove that the
accused committed the offence charged and that his alibi defence is
false beyond reasonable doubt. The approach the trial court has to
follow is to consider the alibi in the light of the totality of the
evidence; regard being had to the credibility of the respective
witnesses testifying for the State and the defence, and the
reliability of such evidence. The court is not required to consider
the alibi defence in isolation. If the alibi in the light of all the
evidence adduced might reasonably be true and the accused is
otherwise unconnected to the offence charged, then the court must
acquit.







[27] The State
presented the evidence of four eye witnesses who claimed to have seen
the accused on the 29
th
of November 2010 at
different times at Okau and Uuthilindindi villages, respectively. The
first incident was during the afternoon at Okau when Simon on his way
home from school closely passed the accused and Shitaleni. Not only
did he recognise him on his face, but was also able to describe in
Court the clothing the accused was wearing at the time i.e. short
khaki trousers and a blue striped T-shirt. The accused was well-known
to him prior to this day for approximately two years as they in the
past played soccer together in the village. In these circumstances,
it seems highly unlikely that Simon could have mistaken the accused
for someone else – particularly where Simon’s evidence is
corroborated concerning his sighting of the accused at Okau on that
day.







[28] Shitaleni’s evidence
corroborates that of Simon in that he (Shitaleni) confirmed having
been in the company of the accused (since 11:00 that morning) and
when they met with Simon coming from school and passing them at Okau.
Shitaleni thereafter remained in the accused’s company until
they parted ways in the evening, going to their respected homes.
Unless these two witnesses have testified about a different date,
there can be no doubt whatsoever that it was the accused person who
was either seen at Okau by Simon or in whose company Shitaleni was on
that day.







[29] However, the
accused again met with Shitaleni that same night in their house when
he
inter
alia
informed
him and his younger brother, Alutman, that he had killed the
deceased. This in my view clearly rules out any possibility that the
State witnesses are confusing the events of the 29
th
of November with
any other day as alleged by the accused.







[30] Alutman not
only corroborates the evidence of Shitaleni in all respects
pertaining to the events that took place in their room that night,
but he was also able to describe in Court the accused’s
clothing, giving the same description as Simon, except for adding
that the accused was also wearing sandals. The wearing of sandals by
the accused when coming into their room as testified is, to some
extent, corroborated by the evidence of Sergeant Shakuyungwa who
enquired from the witnesses about the shoe prints he observed at the
said house the following morning; and which, in his view, were
identical to those observed earlier, leading away from the scene of
crime. The attire of the accused when arrested the following day
corresponds with the testimony of the other witnesses who had seen
him on the 29
th,
two days prior to his arrest. Not one of these witnesses was present
during the arrest and therefore would have been unable to give
evidence about the accused’s attire on that occasion; hence,
excluding the possibility of them being confused about his attire on
the said day, as alleged by the accused. It is not disputed that he
owns such clothing (except for the sandals) – only that he was
not wearing it on the day in question. Thus, despite the accused’s
denial of having worn the said attire on the mention dates, there is
evidence before Court of three independent witnesses who had seen the
accused dressed in the said attire at the relevant times.







[31] Joining in
with the events of the night of 29 November is the evidence of Lahya,
the accused’s cousin. She testified about two phone calls she
received from the accused that night during which he told her that he
had killed his girlfriend. Corroboration for these calls made to the
witness is found in the MTC call register according to which she
received on her cellphone
9
two calls made from
the deceased’s phone or SIM card, first at 22:52 and again at
23:41, both calls registered at the Okau receiving tower of MTC.
Though the witness was unable to say from whose phone these calls
were made, we now know that it was done by means of the deceased’s
SIM card, reflecting her number. Bearing in mind that on both
occasions there were conversations going on between the accused and
Lahya about this girl and what he did to her, it seems inconceivable
that she could have mistaken his voice with that of someone else –
least of all, with that of the deceased. It must be remembered that
according to the evidence of Saavi (deceased’s sister), the
deceased borrowed hér SIM card earlier that evening; which
seems to show that she either did not have her own SIM card, or for
some reason, was unable to use it – the latter seemingly the
more unlikely as according to the MTC records, it was indeed used
that same evening.







[32] The evidence
given by Shitaleni, Alutman and Lahya is damning in the sense that by
the time reports about the death of the deceased were made by the
accused, the death of the deceased as such, had not yet been
discovered. This only happened the following morning when the
deceased’s sister and mother came across the deceased lying in
the field. Logic dictates that if no one else had any knowledge of
the deceased’s death taking place on the night of the 29
th
,
except for those so informed by the accused himself that same night,
how could these persons otherwise have known about it even before it
was discovered the following day? These are independent witnesses who
appear to have had no grudge against the accused. On the contrary,
according to Shitaleni the accused handed a cellphone to him that
night
10
and told him that
he could collect his outstanding salary from work and also take his
clothes as he was planning to commit suicide. There is indeed before
Court the evidence of independent witnesses testifying about the
phone that was eventually handed over to the deceased’s mother.
Contrary to this evidence is the accused’s version that it was
on another day that he had brought the phone there in order to have
it charged. If the latter were indeed the case, it does not explain
why the phone was returned to the deceased’s family if there
were no prior arrangements made with Shitaleni to do so or why he
failed to collect it the following day.



[33] I can think of no reason why the
Court must disregard the evidence of these witnesses as none was
shown to be unreliable. Opposed thereto is the evidence of the
accused which merely amounts to a blunt denial of each and every
incident testified on by the State witnesses.







[34] I now turn to consider the
evidence of Aune Angula as corrobotated by Simon about the alleged
sighting of the accused at Uuthilindindi village during the afternoon
of 29 November 2010. It seems obvious from Aune’s evidence that
the reason why she called Simon outside was for him to identify the
two persons whom they saw quarrelling some distance away from the
house. Also that Simon at first identified the one person on his
clothes as being the accused as it corresponded with what he had seen
the accused wearing earlier in the day at Okau. Because of the
distance of about 300 metres, he was unable to identify these persons
on their faces. As these persons were talking loud, he thereafter
identified them on their voices as the accused and the deceased. Aune
also claims to have identified them on their voices – albeit
after Simon informed her that the one was the accused. Their
conclusions seem to have been fortified by the fact that the female
person after they separated, walked in the direction of the
deceased’s house.







[35] It seems to me
that when the Court considers the evidence of identification given by
these two witnesses, that a cautious approach should be followed for
various reasons. Firstly, neither witness was capable of making a
facial identification of these persons because of the distance; the
recognition of clothing cannot in itself constitute positive
identification, though it might be a factor to be considered together
with other evidence adduced in that respect on identification.
Secondly, a court required to assess evidence of voice identification
must treat such evidence with caution
11
and in the absence
of prior acquaintance such evidence is considered to be extremely
poor evidence.
12
In my view, more so
where the witness’ voice identification, as in this instance,
is made during a quarrel between two persons and the identifying
witness unable to state what exactly has been said during the
altercation. Thirdly, there is the contradicting evidence of
Shitaleni about the accused having been in his company throughout
that day and therefore could not have been where the two witnesses
claimed to have seen him busy quarrelling with the deceased in the
afternoon. The evidence is also contradicted by the defence
witnesses.







[36] For the foregoing reasons and in
my view, little weight should be given to the voice identification of
the accused by the witnesses Aune and Simon during the course of the
afternoon, as there is a strong possibility that they wrongly could
have identified the accused and the deceased at the time. In all
probability this was brought about by the distance of 300 metres
between the witnesses and those persons whom they claimed to have
identified and which, in any event in my view, would have made
identification beyond reasonable doubt, virtually impossible over
that distance. I do not consider their evidence as such to be false,
but merely unreliable when considered with the rest of the evidence.
Furthermore, this evidence must not be considered in isolation, but
has to be evaluated together with the totality of evidence adduced
during the trial.







[37] I have alluded
to the evidence of the State witnesses independently giving evidence
and that there is no legal ground why their evidence should not be
relied upon. None of these witnesses were shown to be untrustworthy;
they further corroborate one another in material respects.
Furthermore, the circumstances under which the respective witnesses
met with the accused on that day are such that the possibility of
mistaken identity can safely be excluded. The sum total of the
evidence of these witnesses places the accused at Okau village and
Uuthilindindi village as from the morning until late at night on the
29
th
of November. During
this period he, by virtue of their testimony, not only interacted
with the respective witnesses, but even admitted to the killing of
the deceased. What is evident from their testimony, as well as that
of the accused, is that there was no enmity between the witnesses and
the accused as they were either acquaintances or friends, and even
related. In these circumstances it seems unlikely that any of these
witnesses would have had reason to implicate the accused and connect
him with the murder.







[38] The Court was
urged to take into account the discrepancies pointed out in the
witness statements of Shitaleni and Sergeant Shakuyungwa compared to
their oral testimony in Court and it seems apposite to once again
repeat what has been stated in this jurisdiction in that respect.
Mainga, J (as he then was) in the oft quoted case of
Aloysius
Jaar
13
said that:







A
court of law should be careful in discrediting a witness because his
evidence in chief slightly departs from the statement a witness
should have told the police, especially in this country where it is a
notorious fact that the majority of the police officers who are
tasked with the duties to take statements from the prospective
witnesses and accused persons are hardly conversant in the English
language and
more
so that police officers who take down statements are never called and
confronted with the contradictions that an accused or a witness may
have raised in cross-examination
.
It has been said more than once in this court that a statement made
by an accused or witness to a police officer is of skeletal nature
and in evidence in chief a witness may elaborate on the statement.”
(emphasis
provided)







Also that police
officers tend to focus the statement on what
they
consider
to be more relevant;
14and
what is set out in a police statement is more often than not simply
the bare bones of a complaint and during oral testimony flesh is
added thereto.
15







[39] On the other hand is the evidence
of the accused and that of his witness showing that he on 29 November
was in Oshakati and therefore could not have been in the company of
the State witnesses during those periods, as alleged. It is therefore
the accused’s view that it could not have been him whom the
State witnesses saw on that day, and also disputes having confessed
to the commission of the murder, both to the witnesses and the
police. If shown that the accused’s alibi, when weighed up
against the evidence of the State witnesses, is reasonable possible,
then the accused must be acquitted.







[40] When the Court
considers the evidence given by the defence witness David Nashilongo
against that of the accused, there are material differences relating
to place and time between their respective versions, which remains
unexplained. It is further evident that the discrepancies in their
evidence are not bona fide mistakes made by any one of them, but
rather appears to have the making of fabricated evidence. It seems
inconceivable that they can differ on whether or not they spent the
night of 29 November in each other’s company playing pool
throughout the night at Okatana Service Station; and whether or not
they were still together the following day until they parted ways.
Corroboration in their versions (only) lies in the date they met in
Oshakati i.e. the 29
th,
that they were together seeking employment at a building site, and
that they went up to Okatana Service Station. When asked in
cross-examination why the date was clearly remembered Nashilongo
explained that he recalls going to Windhoek the following day, being
the 30
th.
I do not consider this explanation to strengthen his evidence on that
point in any way.







[41] After due consideration of the
evidence of Nashilongo, opposed to that of the accused and full
regard being had to the corroboration and discrepancies in their
respective versions, it seems to me that, for the following reasons,
the evidence of these two witnesses had either been concocted, or the
events testified about having transpired on a different date, or a
combination of both.







[42] I already
referred to the accused’s reply to the State’s pre-trial
memorandum and pertaining to the calling of a witness by the name of
Haipinge, it is clear that he in the interim has changed course and
switched the names of the witness he intended calling, disputing that
he ever intended calling a certain Haipinge. I find this explanation
suspect, for it is stated in his written reply that this person is a
bar tender who works at Mumbara’s Cuca Shop at Uuthilindindi
village, excluding any misunderstanding between him and his counsel.
It is further stated in the reply that
The
accuseds’ (sic) will tell the Court that between the 29
th
and 30th
of November 2010
he spent most of the time at Okavu location near Oshakati”
.
However, that was never his testimony for he claims to have spent the
night at Okatana situated in Oshakati and therefore could not have
been at Okavu situated ‘near Oshakati’. The accused’s
evidence in this regard is contradicted by Nashilongo, his own
witness. There is however more.







[43] If the
evidence of Lahya, supported by the call register of MTC, pertaining
to calls made to her by the accused during the night of the 29
th
were to be
believed, then it can be inferred from the register that the accused
was operating his phone by means of the SIM card of the deceased;
which calls were registered by the Okau-Kamasheshe receiving tower:
Provided that the calls were not automatically diverted to that tower
from another tower in that area. Taking into account that these calls
were registered late at night, this seems unlikely, and places the
accused in the vicinity of Okau and not Oshakati. Between the two
calls a further nine calls were made to various numbers, all
operation through the Okau-Kamasheshe tower and thereafter two more,
before the first call registered by a tower in Oshakati was at 05:38
on the 30
th.
On the 30
th
of November and
until 18:13 when the first call was again registered at the
Okau-Kamasheshe tower, no less than forty-two calls or SMS’s
were either made, sent or received and registered by towers in the
Oshakati area. Between 18:14 and 18:24 three more calls interchanged
between towers at Oshakati and Okau-Kamasheshe, whereafter all
fifty-one calls made thereafter until 11:27 on the 30
th,
were received by the Okau-Kamasheshe and Ompundja towers
respectively, the latter being the closest other tower to Okau. It
would also appear that the time the last call was registered (11:27)
by means of the deceased’s SIM card, is consistent with
evidence that the accused was arrested during the morning of the 01
st
of December.







[44] Because of the
interchange of calls received and registered by different towers
within a specific area, it appears to me that the Court is not, in
the light of what has been stated in
R
v Blom
16,
entitled to draw
the inference from the evidence set out in the foregoing paragraph,
that the accused was indeed within the immediate vicinity of the
tower that registered the calls made at a specific time. However, I
do not think that such evidence is completely without effect because
where it has been shown that a
number
of calls
were
registered over a period at only one tower, it seems to me reasonable
to infer from such evidence that the person who made or received
calls or SMS’s during that period, in all probability, was in
the said area. One such period would be between 21:59 on the 29
th
and 05:32 on the
30
th
during which at
least thirteen calls were registered at Okau-Kamasheshe tower. This
probability is consistent with the evidence given by the State
witnesses to the effect that the accused was seen at Uuthilindindi
village on the night of the 29
th
of November; thus,
in the area where the deceased was murdered. It is inconsistent with
the accused’s version about him having spent the night in
Oshakati. Another such period refers to the forty-two calls or SMS’s
registered in and around Oshakati on the 30
th
from 07:12 until
18:13. Not only does it tend to show that the accused was indeed in
Oshakati on this day as he claims, but it would also contradict his
version that he left town round about lunch time. Given the time
periods testified on by the defence witness and those reflected in
the call register, it raises the question in one’s mind as to
whether the defence witnesses did not meet in Oshakati on the 30
th
of November 2010
and not on the 29
th
as testified? In
the light of the unexplained contradictions in the defence case and
the unconvincing evidence of Nashilongo pertaining to these specific
dates, the latter seems to be a real possibility. This would
obviously leave the accused’s alibi defence without
corroboration.







[45] On the
accused’s own version he did not raise his alibi defence to the
police upon his arrest; which could have been to his advantage if
properly investigated at the time. At no stage prior to the
pre-trials, a period of over two years, was any mention made by the
accused about his alibi defence; and I fully endorse the sentiments
expressed in
S
v Thebus and Another
17
per
Lewis, AJA who, in
a similar situation, remarked as follow at 583e-g:







[13]
What is more telling, in my view, is that the version was raised only
at the trial, some two years after the incident. …. It is
equally not possible that the first appellant 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
can be drawn from his failure to advise the police, and from the
other witnesses' failure to do so, is that the alibi had no truth in
it at all.”







The right of an
accused to remain silent has always been acknowledged by the courts;
more so, since the advent of the Constitution through which a fair
trial is guaranteed by Article 12 (1)(f) – a right that the
courts have interpreted to also include the process of bringing an
accused person to trial i.e. during pre-trial proceedings.
18







[46] However, as
shown above, although an accused person has the right to remain
silent and is not obliged to disclose the basis of his defence during
pre-trial proceedings and even the trial itself, the decision to do
so, depending on the circumstances of the case, may not be without
consequences for the accused, as the court will be entitled to draw
inferences adverse to the accused’s case from such failure. In
the circumstances of the present case I find it difficult to believe
that the accused, when falsely accused of a murder he did not commit,
would not have spoken out and advised the police, the prosecution or
the court
a
quo
at
the first occasion afforded to him to do so. Thus, regard being had
to the evidence adduced pertaining to the accused’s alibi
defence, it seems reasonable to draw an inference from the accused’s
failure that his alibi defence came as an afterthought. This is
something the Court obviously may take into account when assessing
the evidence adduced at the trial.



[47] When considering the accused’s
alibi defence in the light of the totality of the evidence adduced,
full regard being had to the merits and demerits of the evidence
given by the State and the defence witnesses respectively, as well as
the probabilities, the Court is convinced that the alibi defence of
the accused is not reasonably true and accordingly, is rejected as
false beyond reasonable doubt.







[48] As mentioned,
in the absence of any eyewitnesses, the State case entirely rests on
circumstantial evidence; excluding the incriminating admissions made
by the accused to State witnesses, being direct evidence. Evidence
about shoe prints that were found at the scene of crime but later
disappeared in a nearby field, in my view, adds little value to the
State case. Although evidence of shoeprints is admissible, the courts
have laid down rules that it must be cautious when relying upon such
evidence especially where it is the only evidence against the accused
and the cogency of such evidence must depend upon all the
circumstances of the case. For example, whether or not, the imprint
in question has any distinctive characteristics or pattern.
19
In the absence of
expert evidence that would satisfy the requirement of identification
of an accused person merely on foot- or shoeprints and where the
evidence was the mere opinion of a police officer (as in this
instance) without disclosing the facts he relied on to come to his
conclusion i.e. relying on a distinctive characteristic or a pattern,
such evidence is insufficient and falls short from proper
identification of the accused person on his foot- or shoeprints. In
these circumstances the court will therefore not convict on footprint
evidence alone unless satisfied that the print has enough unusual
features to convince it beyond reasonable doubt that it bears a
unique resemblance to that of the accused.
20







[49] However, although the shoeprint
evidence in itself is insufficient for identification, it is not in
the present instance the only evidence against the accused which
links him to the murder. The shoe prints were again observed the
following day at the home of Shitaleni and were reported on (and
confirmed in evidence) to be that of the accused who had come there
the previous night. The shoe prints were further similar to those
observed at the scene of the murder and at the village where he was
arrested the following day. More over, the accused confessed to the
murder shortly after it was committed and even before it was
discovered. In the light of other evidence adduced, besides that
referring to the shoeprint identification, it seems to me that the
value of shoeprint evidence observed at the scene is largely
overshadowed by such other evidence connecting the accused directly
to the commission of the crime; thus, significantly reducing the need
for reliance on the shoeprint evidence for identification of the
culprit.



[50] The Court in its final analysis
of the evidence, despite having rejected the alibi defence of the
accused, still has to consider whether the accused’s version,
in view of the totality of the evidence, is reasonably true. In other
words, in the light of all the evidence adduced at the trial, has the
State succeeded in proving the accused’s guilt beyond
reasonable doubt? After consideration of all the evidence, due regard
being had to the merits and demerits of the State and defence
witnesses as well as the probabilities of the case, the answer is a
resounding ‘yes’. There is sufficient – in my view
overwhelming – evidence before the Court proving the accused’s
guilt beyond any doubt and his conviction on a charge of murder thus,
is inevitable.







[51] Whereas the
accused’s testimony has been rejected as false, the Court is
deprived of the assistance of important information pertaining to the
circumstances which led to the murder of the deceased –
information the accused alone could have placed before Court. In
circumstances where an accused’s account has been rejected as
false, the Court in
R
v Mlambo
21
per
Malan, J
(dissenting) held the view that the court may draw an inference that
the accused committed the assault with intent to kill, rather than
with a less serious form of
mens
rea.
It
seems worthwhile to repeat what I occasioned to say in this respect
in
The
State v Gerald Kashamba
22
at p 17:







[39] The Court, having rejected the
accused’s evidence regarding the shooting incident, does not
have the benefit of reliable evidence on the subjective state of mind
of the accused, in other words, to determine what was going on in his
mind the time when he fired the shot. (
S
v Mokeng,
1992 NR 220 (HC)) In deciding
that, the Court considers objective factors such as the type of
weapon or instrument used; at which part of the victim’s body
was the assault directed; and the nature of the actual injury
sustained by the victim. (
S v Beukes
1988 (1) SA 511 (A)) From these
indicators the Court will then draw certain inferences.”







[52] When applying the aforementioned
principles to the present circumstances I take into account that the
assault was directed at the head of the deceased resulting in her
death. It can be inferred from the serious nature of the injuries
reflected in the post-mortem examination report that substantial
force was required to inflict the injuries shown i.e. several skull
fractures, inclusive of the skull base. In the absence of any
evidence to the contrary, and regard being had to evidence that the
shoeprints observed at the murder scene led the police officers
directly to a bloodstained hoe lying in a nearby field, it can
reasonably be inferred that this was the murder weapon. Although the
hoe was not subjected to any forensic analysis to determine the
nature of the substance found on it perceived to be blood, there was
evidence about a piece of wood that broke off the handle of the hoe
found next to the body which was also bloodstained. Although the time
of death is unknown, it is obvious that the victim was left at her
own mercy until she succumbed. In these circumstances, the Court
concludes that the accused acted with direct intent (dolus
directus
) when killing the deceased.







[53] The last remaining issue for
consideration is to decide whether or not the provisions of the
Combating of Domestic Violence Act find application. A domestic
relationship under the said Act is defined in extremely wide terms
and includes two persons being of different sexes who are or were in
an actual or a perceived intimate or romantic relationship (s 3
(1)(f)). Whereas the accused in the present instance admitted that
the deceased was his girlfriend (a fact not disputed), this in terms
of the Act, constitutes a romantic relationship. Hence, the
provisions of Act 4 of 2003 find application, a factor that ought to
be given some weight and could even be an aggravating factor in
sentencing.







[54] In the result, the Court’s
judgment is as follows:







On a charge of Murder, read with the
provisions of the Combating of Domestic Violence Act, Act 4 of 2003,
the accused Paulus Tomas, is found:- Guilty.



















__________________________



LIEBENBERG, J







ON BEHALF OF THE ACCUSED Ms. F
Kishi







Instructed by: Dr Weder, Kauta &
Hoveka







ON BEHALF OF THE STATE Mr. D Lisulo







Instructed by: Office of the
Prosecutor-General







1Act
No 4 of 2003




2Exhibit
‘E’1-5




3The
estimated distance was between 250 – 300 metres.




4This
aspect of her evidence otherwise would have been inadmissible as
evidence in that it is hearsay evidence; however, in this instance
it was elicited through cross-examination and thus became admissible
evidence.




5The
significance of the piece of wood is that it is alleged to have
broken off from the handle of the hoe used to hit the deceased with.




6Also
referred to by the witness Shitaleni as uncle Kashisha with whom the
accused resided at the time.




7Exhibit
‘H¹’ and ‘H²




8R
v Biya,
1952 (4) SA 514 (A); S v Khumalo en Andere, 1991
(4) SA 310 (A) at 327G-I.




9No
264812178635




10The
owner of this phone is unknown though.




11S
v M,
1972 (4) SA 361 (T) at 364F




12R
v Mavuso,
1969 (2) PH H 168 (Swaziland)




13Unreported
Case No CA 43/2002 delivered on 19.12.2009.




14Simon
Nakale Mukete v The State,
(unreported) Case No CA 146/2003
delivered on 19.12.2005.




15Hanekom
v The State,
(unreported) Case No 68/1999 (date of delivery
unknown).




161939
AD 188




172002
(2) SACR 566 (A)




18S
v Malumo and Others (2),
2007 (1) NR 198 (HC) at 211F; S v
Kapika and Others (1),
1997 NR 285 (HC) at 285H-I.




19See
S v Imene, 2007 (2) NR 770 (HC) at 772D-G and the cases cited
therein; The South African Law of Evidence, Second Edition, -
Zeffertt & Paizes at 334.




20Zeffert
& Paizes
(supra) at 335.




211957
(4) SA 727 (A)




22Unreported
Case No CC 05/2008 delivered on 03.04.2009