Court name
High Court
Case number
9 of 2009
Title

S v Kayoka and Others (9 of 2009) [2012] NAHC 307 (29 October 2012);

Media neutral citation
[2012] NAHC 307
Coram
Van Niekerk J
Hinda AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK








REASONS FOR JUDGMENT



Case No: CA 9/2009








In the matter between:








NICOLOUS KAYOKA
......................................................................FIRST
APPELLANT



JOSEPH KAMONA
.....................................................................SECOND
APPELLANT



KUPEPA DETLIF MBAMBO
...........................................................THIRD
APPELLANT



KASOMA VINCENT KAMUTJONGA
.........................................FOURTH
APPELLANT








vs








THE STATE
..............................................................................................
RESPONDENT








Neutral citation: The State v Kayoka and others (CA
9-2012) [2012] NAHCMD 98 (29 October 2012)








Coram: VAN NIEKERK J and HINDA AJ








Heard: 20 June 2010



Delivered: 29 October 2010










REASONS FOR JUDGMENT










HINDA, AJ (VAN NIEKERK, J concurring):








[1] This appeal was heard on 20 June 2010 and having considered
argument on



behalf of both the appellants and the State, the Court came to the
conclusion that the appeal must succeed, that the convictions and
sentences must be set aside and that the reasons will follow in due
course. The following are our reasons.








Reasons








[2] The appellants were charged with robbery with aggravating
circumstances. All the appellants pleaded not guilty. Despite the
plea, all of the appellants were convicted and each sentenced to
sixteen (16) years of imprisonment of which five (5) years
imprisonment were suspended for five years on the usual conditions.








[3] In essence, the complainants’ case was that on 14 August
2005, they had been robbed by the appellants, who were armed with
pistols and clad in camouflage, of R 9000.00 and property valued at
Botswana Pula 1640. The appellants filed a notice of appeal against
both conviction and sentence that is adorned with multiple grounds of
appeal.








[4] The conviction of the appellants in this matter is principally
premised on a purported confession (in respect of the first and
second appellants) and evidence of identification (in respect of
first, third and fourth appellants). Those two issues arise for
consideration and decision. I have to be satisfied that the
confession and identification is in terms of the law.








The State’s case








[5] The first state witness was one Eskin Thando Mokate who testified
that he is a farmer and a mechanic who resides in Botswana and that
on 12 August 2005, he in the company of Mr. Jacobs and one KK entered
Namibia to fish in our waters. On 13 August 2005, Mokate met the
second appellant whom he had known from before as a refugee in
Botswana. The second appellant invited Mokate and his friends to his
house and offered them food to eat and it is at that occasion that
the second appellant informed Mokate about some people in Angola that
are interested in selling diamonds and insisted that Mokate lend him
money to buy diamonds. Mokate, in turn, approached Jacobs and asked
for money to give to the second appellant so that Mokate “can
get rid of Joseph
”. Mokate did not give the second
appellant the money and they left. They agreed to meet the next day.








[6] On 14 August 2005, Mokate and his friends met up with the second
appellant and they all drove towards the Namibia/Angola border to
arrange for an extension of their visas in order to stay longer in
Namibia. Whilst en route to the border the second appellant
requested the driver, Jacobs, to stop the motor vehicle so that he
may relieve himself. Jacobs obliged and the second appellant alighted
from the vehicle and went into the bush. Within a few moments three
men armed with pistols and clad in camouflage uniforms emerged. The
three men assaulted Mokate and his friends and robbed them of R 9000,
00; three cell phones and one pair of trousers. This witness
identified appellants one and four as the assailants and claimed that
second appellant is involved because he had pre-arranged the robbery.








[7] During cross-examination it was established that Mokate had made
a witness statement to the Police shortly after the robbery incident.
In that statement he told the police that he was called by the second
appellant and informed that there were people from Angola at
Mushangara Village who had diamonds for sale. On 13 August 2005,
Mokate in the company of Jacobs and one KK, went to the house of the
second appellant who informed them that he was going to call the
Angolans to come meet which did not materialise. They agreed to meet
the next morning. On 14 August 2005, Mokate, Jacobs and KK returned
to the second appellant’s house but did not find the second
appellant home. They met up with him later in the road and they all
returned to a place near second appellant’s house and stopped
in the road where the second appellant told Mokate to take the money
and follow him into the bush to meet the Angolans. Mokate refused and
suggested that the Angolans come to second appellant’s house at
around 12h00. As they jumped back into the motor vehicle, two men
armed with pistols and clad in camouflage uniforms came out of the
bush said to them “stop you are dealing illegally, we are
the police.”
The men took his cell phone, started searching
the car and then ran away.








[8] Camaldin Jacobs (Jacobs) was the next State witness. He is
the Managing Director of Kaikomo Butchery in Francis Town, Botswana
and he testified that he , Mokate and KK entered Namibia on 12 August
2005 to fish. Curiously, he added that they were on their way to
Zambia
.








[9] Jacob’s evidence on the robbery was that on 14 August 2005
whilst driving towards the Angola-Namibia border and close to a bushy
area, the second appellant had asked him to stop the motor vehicle
for him to relief himself. He obliged and the second appellant jumped
out of the back of the motor vehicle and went into the bush. Within
two minutes two men armed with pistols and clad in camouflage came
from the bush in the same direction that the second appellant went
into. The men pulled him out of the motor vehicle and hit him with
the pistol whilst accusing them of dealing in fire-arms. He claims to
have seen a third attacker though not properly and identified the
third appellant as the man who assaulted him whilst at the same time
asking for the whereabouts of money.








[10] Jacobs identified appellants three and four as the two robbers
at the scene. His identification of them is because the third
appellant is the one who be assaulted and stripped him. The fourth
appellant is the person who had assaulted Mokate. He was unable to
identify the third assailant.








[11] The next State witness was Mr. Mahunga, who identified the first
appellant “because he was present at the scene”
and claims that the first appellant was the person who was behind him
and pointed a fire-arm at him. Mahunga informed the police, on three
occasions that the third and fourth appellants were also at the
scene. However, this material fact was not recorded in his witness
statement.








[12] The first appellant claims that Mahunga implicates him because
of Mahunga’s inability to settle a debt long outstanding and
denies having been at the scene.








[13] The next State witness was the police officer, Mr. Simbwaye,
Unit Commander: Complaints and Discipline; Namibian Police stationed
at Rundu. He testified that on 10 October 2005 he was called by
Sergeant Tjoro to attend at Mukwe Police Station because there were
two suspects (appellants one and two) who were willing to confess. He
departed to Mukwe Police Station and interviewed appellants one and
two who confessed to a magistrate and implicated the third and fourth
appellants.



The state closed its case.








Defence case








[14] The first appellant denied any involvement in the robbery. His
version was that on 14 August 2005, he and the fourth appellant went
to Mahunga’s house in Kake Village for him to collect money
that was owed to him by Mahunga and that the latter is falsely
implicating him because of money that he owes him. On the confession,
he testified that the police gave him the names of appellants three
and four to include in his confession to the Magistrate on the
promise of being released and that he implicated appellants three and
four after being forced and assaulted by officer Nilengani and
Sergeant Tjoro.








[15] The next was second appellant who testified that he left Mokate
and the others in the car to relieve himself. He further testified
that they were all well and denied involvement. He testified further
that the names of the third and fourth appellants were given to him
by Simbwaye to implicate the others and that he did that under
duress.








[16] The third appellant testified that on 14 August 2005 he was in
Rundu busy with a lease transaction and remained in Rundu until 15
August 2005. He denied that he had a golden tooth then. He accused
the police of falsely incriminating him and claimed that had he been
involved, why Mahunga did not give his name to the police. Despite
the fact that some of the appellants called witnesses to bolster
their defence, the testimonies of those witnesses have no impact on
the issues for decision. Hence, I see no need to rehearse their
testimonies.








The Law








[17] The burden remains on the State prove the guilt of the accused
beyond reasonable doubt.



(See: R v Du Plessis 1924 T.P.D 103; R v Kham 1943 AD 324)








[18] An accused is presumed innocent until proven guilty according to
law.



(See:
Article 12 of the Constitution of the Republic of Namibia)








[19] Where an accused makes a confession to a Magistrate, such
statement is inadmissible as against a second joint accused.



(See: R v Black 1923 AD 38)








[20] The confessions were not introduced as evidence and cannot be
relied upon as evidence to show guilt of the first and second
appellants. Equally the confession cannot be the basis of guilt of
the third and fourth appellants.



[21] “In all cases that turn on identification the greatest
care should be taken to test the evidence. Witnesses should be asked
by what features, marks or indications they identify the person whom
they claim to recognise. Questions relating to his height, build,
complexion, what clothing he was wearing and so on should be put. A
bald statement that the accused is the person who committed the crime
is not enough. Such a statement unexplored, untested and
uninvestigated, leaves the door wide open for the possibility of
mistake. Where the accused is an ignorant native who is unrepresented
by counsel or attorney and who is therefore unable himself to probe
the evidence of identification and where the prosecutor has not done
so, the Court should undertake this task, as otherwise grave
injustice may be done.”



(See:
R v Shekelele & Another 1953 (1) SA 636 (T))








Evaluation of the evidence in the proceedings








[22] It is common cause that the trial Court found that the
complainants were involved in an illegal it was for an illegal
diamond transaction, not to fish. I agree because there is no
evidence that the complainants went fishing on one single day or
occasion. On the assault, I pause to ask myself why Mokone failed to
have informed the police of the alleged assault which is such a
material part of the allegations against the accused. There is no
medical evidence of assault – eg J88.








[23] Another aspect is the number of people who perpetrated the
robbery. Both Mokate and Jacobs told the police that two people,
armed with pistols and clad with camouflage assaulted them whereas
the evidence in Court was that there were three assailants.








[24] There is furthermore no evidence on why the Court accepted that
the identification of the appellants may not be mistaken given the
fact that they were in camouflage, unknown to the witnesses and seen
for the first time at a scene that was characterised with commotion
and fear.








[25] The Courts have always cautioned that greater care be taken to
test evidence of identification. Witnesses should be asked by what
features, marks or indications they identify the person whom they
claim to recognise.








(S v Shekelele, supra)








[26] The learned Trial Magistrate found that the first appellant had
mentioned the particulars of the fourth appellant to the Magistrate
who took the confession. This conclusion is impermissible in law
because the alleged written confession was never even tendered or
admitted as evidence in Court and that Magistrate never testified
despite the challenge by the first and second appellants and that the
alleged confession was excussed by threats and assault.








[27] It is for the aforegoing reasons that we held that the State has
failed to prove its case beyond reasonable doubt, that the appeal
succeeds in respect of all the appellants and that he convictions and
sentences are set aside.




























__________________



G Hinda



Acting Judge


















__________________



K van Niekerk



Judge









































































APPEARANCE








APPELLANTS:



Mr J Wessels



of Stern & Barnard



RESPONDENT:



Mr B S Konga



Office of the Prosecutor-General