Court name
Supreme Court
Case number
SA 5 of 2003
Case name
S v Narib
Media neutral citation
[2004] NASC 4











CASE
NO. SA 5/2003


IN
THE SUPREME COURT OF NAMIBIA







In
the matter between:














JOHN
NARIB



APPELLANT








And














THE
STATE



RESPONDENT








CORAM: STRYDOM,
A.C.J., et TEEK, J.A., et O’LINN, A.J.A.



HEARD
ON: 2004/04/13



DELIVERED
ON: 2004/10/29







APPEAL
JUDGMENT






O’LINN,
A.J.A.:



SECTION
I



INTRODUCTION: The
appellant was one of four accused persons who appeared in the
Namibian High Court on charges of murder and robbery. The said
accused were arraigned in the following order:



Gustav
Tjombala – Accused 1.



Lukas
Tjombala – Accused 2.



John
Narib – Accused 3.



Patric
Somseb – Accused 4.







The
indictment contained three counts which can be summarised as follows.








  1. The
    unlawful and intentional killing of Ingeborg Schultz on or about 3
    September 1994 at farm Olifantsfontein in the district of
    Grootfontein;









  1. The
    unlawful and intentional killing of Gustav Schultz on the same date
    and place;









  1. The
    robbery with aggravating circumstances in that the accused persons,
    unlawfully and with the intention of forcing them into submission,
    assaulted Ingeborg Schultz and Gustav Schultz, by shooting them with
    a firearm and unlawfully and with intent to steal, took from them a
    7.65 mm pistol and an unknown amount of money, being the property of
    Gustav and Ingeborg Schultz.







All
the accused pleaded “not guilty” and each filed an explanation of
plea in terms of Section 115 of the Criminal Procedure Act 51 of
1977, as amended, denying complicity in the crimes charged. None of
the accused raised the defence of an alibi in those explanations.





In
the course of the proceedings, the admissibility of certain
confessions or admissions by accused 1 and 2, was disputed by the
accused and consequently the Court proceeded to conduct a “trial
within a trial” to determine such admissibility.





At
the end of the said trial within a trial, the Honourable trial judge,
Gibson J, allowed the alleged statement by accused no. 1 but
disallowed the alleged statement by accused no. 2.





At
the end of the State case, counsel for accused 1 and 2 applied for
their discharge. The Court a quo granted the application and
discharged them.





However,
no express finding was made reversing the original decision of the
Court a quo admitting accused no. 1’s statement to Inspector
Knouwds as evidence in the trial and it must be assumed for the
purposes of this appeal that the said statement of accused no. 1
remained part of the admissible evidence against accused no. 1.





The
case now proceeded against accused 3 and 4. Accused 3 and 4
testified and also called several witnesses to testify on their
behalf. At the conclusion of the defence case and after hearing
argument – the Court a quo convicted both accused no. 3 and
4 on all three charges and sentenced both of them as follows:





(i) Imprisonment
for life on each of the two counts of murder.


(ii) Ten
years imprisonment on the robbery charge.





Accused
no. 3 John Narib applied for leave to appeal but the Court a quo
declined to grant leave. Thereafter the accused petitioned this
Court which then granted leave to appeal against conviction but
refused leave to appeal against sentence. Obviously, should the
appeal against conviction succeed, it will follow that the sentence
is also set aside. However, should the appeal against conviction
fail, the sentence will also remain as before.





Mr
Ndauendapo appeared for accused no. 1 and 4 in the Court a quo
but after the discharge of accused no. 1 at the end of the State
case, and in the course of his cross-examination, accused no. 3, on
behalf of accused no. 4, Mr Ndauendapo withdrew from the defence of
accused no. 4. Accused no. 4 then decided to conduct his own defence
from that stage. Mr Murorua appeared for accused 2 and 3 in the
Court a quo and continued to appear for accused no. 3 after
the discharge of accused no. 2 at the end of the case for the State.





On
appeal before us, Ms Schimming-Chase appeared for appellant (accused
no. 3) and Ms Verhoef for the State.





SECTION
II: THE ISSUES AND ARGUMENT ON APPEAL


There
was no dispute at the appeal stage about the fact that Mr and Mrs
Schultz were brutally murdered in their farm-house on the farm
Olifantsfontein in the Grootfontein district on or about 3pm Saturday
the 3rd of September 1994, by being shot with an AK 47
rifle by one or more intruders and that they were also robbed of some
of their belongings on the same occasion. It was also common cause
that at least two intruders were involved. What remained in
dispute was the identity of the intruders and their precise number.





Counsel
for appellant Ms Schimming Chase summarized the issues on appeal in
paragraph 2 of her written heads of argument as follows:






2.1. The
learned judge a quo erred in ruling that accused no. 1 should
be discharged at the close of the State case;








    1. The
      learned judge erred in accepting that the identification parade
      held on 4th August was properly conducted;









    1. the
      learned judge erred in accepting that the State had proved its case
      beyond reasonable doubt against the appellant;









    1. the
      cumulative effect of the above resulted in a failure of justice.”







Paragraphs
2.3 and 2.4 are generalisations. Paragraph 2.1 and 2.2 are more
specific. Paragraph 2.1 relates to the discharge of accused 1 at the
end of the State case. Its relevance to the case of the accused no.
3, the only appellant before us, can better be understood if it is
considered in conjunction with paragraphs 43-48 of counsel’s heads
of argument.





These
paragraphs, which were adhered to in counsel’s viva voce
argument, read as follows:






43. It
is common cause that only two people were involved in the commission
of the offence in 1994.







44. It
is further common cause that four people, including the appellant,
were charged with the commission of the offence. In this respect,
accused 1 and 2 and accused 3 and 4 were linked as co-perpetrators.







45. It
is trite law that the State must prove its case beyond reasonable
doubt. It is noteworthy that in view of this burden, the State had
four people on trial for an offence in which it was clear that only
two people committed the offence.







46. It
is submitted that one can only conclude that the State either had
sufficient evidence to sustain a conviction in respect of all four
accused, or was not able to build a strong case against any of the
accused. The former conclusion would be illogical. The second
conclusion creates confusion.







47. Even
the judge a quo at the close of the State’s case, put issues which
reflected this state of affairs at page 844, where she stated
as follows:







but
what does puzzle me in this case and, is that you have, as it were a
situation where you have one group of witnesses who accused certain
persons as having been present at the scene and being seen at the
scene and being identified. And another group of witnesses is
brought forward by the State who claim that another set of persons
were present at the scene at the time and no other persons were
present and were recognized and identified. And I think it is clear
on all accounts of the witnesses’ evidence that there were only
ever two persons seen entering. There were only ever two persons who
were seen emerging from the house, who were seen running away, that
there were two sets of footprints and so on. And yet here we have
four suspects and in a civil case perhaps it might be explained,
because the standard of proof is different, but in the criminal
prosecution given the very high standard of proof, I really have some
difficulty in understanding how the hearing (indistinct) State’s
counsel how one approaches a situation like that.’







48. It
is submitted that in view of the above the State did not have prima
facie
evidence beyond reasonable doubt to convict any of the
accused persons, and that it proceeded with the trial of this case on
“a trial and error basis”. On this basis alone, the judge
erred in convicting the appellant and accused 4.”









Counsel
for the State supported the judgment of the Court a quo,
including the decision relating to the admissibility of the
confessions allegedly made by accused 1 and 2 as well as the
discharge of accused 1 and 2 at the end of the case for the State. I
do not accept that it was common cause that only two persons were
involved in the commission of the crimes. But even if it was common
cause, such assumption was ill conceived and based neither on the
evidence, nor logic.





Even
if some purported witnesses allegedly saw only two persons entering
or leaving the house at a particular stage, it does not mean that
there were only two persons actually involved. The persons involved
may not all have entered at the same time and may not all have left
at the same time or at a time when the purported witnesses focussed
their attention on the farmhouse and its surroundings. Some of these
alleged witnesses were dishonest. Others may have been scared to
talk. There were several indications that more than two persons were
involved. As to dishonesty the most prominent witness was Johannes
Horaseb. He made several statements. In his original written
statement to the police shortly after the murder on 5 September 1994
he stated that one of the two men that he saw, was his son-in-law
Marcus Geiseb. The other one he recognised as Gustav, who was later
charged as accused no. 1. Michael Geiseb, according to Horaseb,
shouted at the other man to run. Michael Geiseb even ran towards
him. He recognized Michael Geiseb on his face and voice. He was
dressed in camouflage clothes.





Horaseb
confirmed this statement in another statement dated 17.9.94. Then in
a third statement on 11.8.95 he purported to withdraw his previous
statements, because according to him, “he was under the wrong
intention that the suspect was my son in law.”





This
statement was taken after an identification parade on 4.8.95, where
both Michael Geiseb and Gustav Tjombala as well as accused no. 3,
John Narib were present as suspects. Horaseb now identified John
Narib as the person he saw on 3 September 1994, coming out of the
house after the shooting. In his statement dated 11.8.1995, he now
confirmed that John Narib was the man he saw and no one else.
Horaseb alleged that John Narib was clad in PLAN uniform and he
recognized him on his movement, voice and build. On that day, Narib
had an object in his hand which appeared to be a rifle. He shouted
in the Damara language – “Kom kom, laat ons gaan”. These words
– freely translated into English – mean: “Come, come, lets
go”. The second and third statements referred to above were sworn
to by Horaseb.





When
Horaseb testified in Court, he at times stated that he did not
recognize any one of the two persons who came out of the house on the
day of the shooting. When confronted in cross-examination with his
previous statements, he said that he was forced to make them.
Horaseb was totally discredited as a witness and no Court could place
any reliance on his evidence if disputed unless it is corroborated by
other credible evidence. It follows that his testimony about two
persons he allegedly saw, is no basis for finding that there were
only two persons involved.





Victoria
Namises actually said in her written statement to the police dated
11.7.95 that at about 5pm she saw four men running about 500 meters
past her. At the time she was staying at Plot Kede. The four
persons were running from the direction of farm Olifantsfontein. She
could not give the date of the incident but said it was on a day when
Sergeant Geelbooi came to her at Plot Kede (Post Driehoek Form St
Andrew) and asked her whether “she saw any tracks going by”. She
further said: “I then answered that I saw four men ±1
hour ago running past ±500 metre
from us. I could see them clearly and even called to them to come
near, but they continued running. She further said: “I called to
Markus Geiseb whom I recognized, but he did not answer me. The other
man is Johannes, I do not know his surname, but he is the brother in
law Marcus: Marcus had a white bag of a bank in his hand. Johannes
had a black rucksack on his back.





Markus
was clad in blue trousers, a blue shirt and white trousers. The
other two men were clad in a blue trouser and green shirt and was
carrying a carry bag. The other one was clad in dark blue trousers
and a jacket which was camouflaged and is usually worn by the army.
They came from farm Olifantsfontein and proceeded in the direction of
the tarred road.





I
will be able to identify all the people, because I saw them
clearly………”





At
the identification parade on 4.8.95 she believed that she pointed out
Markus Geiseb, but according to the police record, she pointed out
Gustav Tjambala, later arraigned as accused no. 1. Victoria Namises
confirmed in her evidence under oath in Court that she saw four
persons, of which she knew one. She then said she saw all four
accused running but only knew one, by name of Augusto. When
asked to point him out in Court, she pointed out accused no. 1, the
one she had also pointed out at the identification parade. She
insisted, his name was Augusto.





She
said it was about 6pm on the Saturday when she saw the four men
running past. The witness was very confused as far as the
identification of the four persons are concerned and obviously very
little weight can be attached to her identification of any of the
four individuals.





She
however remained steadfast in regard to the four men she saw running
late on the afternoon of the Saturday, the day on which Sergeant
Geelbooi made the enquiries.





Sergeant
Visser, who was one of those following the tracks on the Saturday and
the Sunday, following the murder said they were following three (3)
sets of tracks. Visser testified: “At the beginning there was
three tracks and then the tracks split. So only two (2) tracks went
one way and one track went the other way”.





On
the question – So there were three pairs of tracks? The witness
replied: “That is affirmative, that we could find at that
stage
”.





Inspector
Van Zyl testified that when he interrogated accused no. 3, the latter
told him that they were three persons who were involved, i.e.
himself, Patric Somseb and one Dino, whom Van Zyl knew was Piet
Haraeb. Knouwds, a former inspector in the Namibian police,
testified that although he could not recall most of what accused no.
1 told him, one of the things that he could recall was that accused 1
and three other men went to a plot and caused trouble there. Knouwds
however did not record any such statement by accused no. 1 in the
statement he took down from accused no. 1.





The
witness Willemse also testified that accused no. 4 had told him that
they were three persons who went to the deceased’s’ home and that
he himself remained in the orchard at the time of the crime. The
persons who committed the crime, are obviously dangerous criminals.
They committed these crimes in broad daylight at a farmhouse within
sight of the residence of the employees on the farm. They must have
known that they could easily be detected by such employees,
particularly since they made use of an automatic firearm. It seems
that the culprits were not scared of detection by and/or interference
from those on the farm. There must be a reason for that. The reason
may be that there were some relatives and/or accomplices and/or
sympathisers on the farm. On the other hand some of those employees
or residents may have been too scared to tell the truth. This may
explain why Johannes Horaseb originally incriminated his son in law
Markus Geiseb, who according to him, moved in his direction after the
shooting, but later the same Horaseb withdrew that statement and now
incriminated John Narib, the appellant. John Narib was also
convicted of robbery in another case, not related to the case before
us. Some of the other witnesses had also been convicted of some
crimes not related to the present. No wonder that most of witnesses
called, contradicted themselves.





In
these circumstances, it could not be inferred that only two persons
were involved, being either accused no. 1 and no. 2, or accused no. 3
and no. 4. The argument by appellant that consequently it was either
accused no. 1 and accused no. 2, or accused no. 3 and accused no. 4,
cannot be correct. It appears that the Court a quo also made
this assumption. Not only does this appear from the passages quoted
by counsel for the appellant’s heads of argument, but the Court
went much further in the course of the argument by counsel in regard
to the application at the end of the State case for the discharge of
accused 1 and 2. The learned presiding judge even suggested that it
may assist to “streamline” the State case if she discharged
accused 1 and 2 in view of the alleged contradictory confessions made
by accused 1 and 2 to which former Warrant Officer Silver and former
Inspector Knouwds had testified, and the alleged confession by
accused no. 3, to which Inspector Van Zyl and Chief Inspector Kaundu
had testified. When State counsel Ms Jacobs after consultation with
the Prosecutor-General told the Court that she wished to withdraw her
concession that accused no. 1 and 2 should be discharged, the Court
put pressure on her not to withdraw her concession. Ms Jacobs
nevertheless persisted in her withdrawal of the concession previously
made.





The
problem the Court had was that in the alleged confessions and/or
admissions by accused 1 and 2, that they and they only were the
perpetrators of the crimes, whereas on the alleged confession by
accused 3, he and accused no. 4 were the sole perpetrators of the
crimes. This problem is related to but is nevertheless distinct from
the question whether or not the crimes were committed by only two
persons. This problem could however not be solved by discharging
accused 1 and 2 at the end of the State case in order to “streamline”
the State case and in that manner bring an end to the important
conflict in the State case.





The
Court should rather have put accused no. 1 and 2 on their defence in
order to have a fuller picture at the end of all the evidence to
decide the number and identity of the culprits. It was further
obvious that if accused no. 1 and 2 were discharged at the end of the
State case, that no. 3 and no. 4 could take advantage of that
discharge by alleging, that it is at least reasonably possible that
accused no. 1 and 2 were indeed the culprits as appears from their
alleged confessions and that accused no. 3 and 4 were indeed
innocent, alternatively could not be proved guilty beyond all
reasonable doubt.





This
in itself may not justify declining an application for discharge as
indicated in a fairly recent decision on the South African Court of
Appeal, but the case against accused no. 1 is not a case where it
could be said that there was “no evidence” against accused no. 1
at the conclusion of the State case.
1





An
important feature of accused no. 3’s case after the discharge of
accused no. 1 and 2 was precisely that there was a reasonable
possibility that the discharged accused no. 1 and 2 were in fact the
perpetrators. Accused no. 1 was even called to testify on behalf of
accused no. 3. In that testimony he even alleged that accused no. 4
was an old friend who exonerated accused no. 3 and incriminated
Maleagi Rasta.





The
Court had found in the trial within a trial that the confession of
accused no. 1 was made freely and voluntarily and was admissible.
The reason for discharging the accused at the end of the State case
was stated as:












The
evidence of the taking of the statement which I ruled admissible
during the trial within a trial by Inspector Knouwds measured against
that of Warrant Officer Silver in the main trial as well as his own,
is such that it was of such poor quality and so totally
discredited when weighed one against the other, that no reasonable
body of man or woman would have considered that evidence reliable
”.
My emphasis added).









It
is not clear from this judgment in which both accused no. 1 and no. 2
were discharged, whether the Court now reversed its decision on
admissibility; whether it was now of the opinion that the alleged
statements of accused no. 1 were never made; whether it was concocted
from Knouwd’s imagination; whether it was taken but was not given
freely and voluntarily or which other specific finding on events, if
any, was made following the aforesaid finding on credibility.





In
the trial, within a trial, the Court had stated:


In
regard to accused no. 1
:






My
ruling as regards to those admissions by accused no. 1, is that I do
not find that there was any substance in the alleged impropriety on
the part of the police officers. With regard to his arrest and
detention and questioning,







I
shall give the full reasons for that rule in the course of the
judgment. Accordingly I rule that those admissions were admissible”.









As
regards accused no. 2
:






I
cannot rule out the possibility
that accused no. 2 was subjected
to maltreatment as claimed. And accordingly my ruling is, that as
far as the alleged admission by accused no. 2 are concerned, those
were improperly obtained against his will by duress and his statement
is inadmissible”.





In
discharging accused 1 and 2, the Court made much of contradictions
relating to the times when certain actions relating to the arrest,
questioning and taking down of statements took place and
contradictions between police officers in that regard. Furthermore
the Court was perturbed at the inaccuracy of the investigation
diaries and the failure to catalogue the progress of the
investigations timeously and accurately.





The
Court was correct in pointing out the necessity for police officers
to keep proper investigation diaries, pocket books and other records
and to severely criticise the failure of the police officers involved
to do so. However the Court in my respectful view overemphasized
these failures and in so doing failed to focus on important
indicators and probabilities and to put these failures in its proper
context.





So
for example it should be kept in mind that investigating officers may
be overburdened with work as a result of the escalating crime rate,
and a police force which is generally undermanned, under-trained,
under-equipped and demoralized. In my respectful view, there are
sufficient indications of this unfortunate state of affairs in this
very case.





In
these circumstances, it is understandable that even conscientious
police officers may be inclined to spend their available time to
investigate the cases on hand, and to bring their investigation to a
conclusion by arrest and prosecution, rather than sit down to do the
administrative work such as writing up investigating diaries and
pocket books and preparing their own written statements.





Such
delays in doing the paper work may lead to mistakes and inaccuracies
when the police officers are required to testify after many months or
even years and certainly led to such inaccuracies and even conflicts
in this particular case, but that does not necessarily reflect on the
officers’ honesty, integrity and truthfulness.





One
must keep in mind that the defence is entitled to copies of all the
relevant statements and documentation before the trial begins whereas
the prosecution is not entitled to see the statements of defence
witnesses or be informed of the accused’s defence beforehand. The
defence thus has an unfair advantage on the prosecution. When the
proper statements and the relevant investigation diaries, pocket
books and other documentation are not prepared with care, the
prosecution witness becomes an easy victim in cross-examination and
is often embarrassed and confused to such an extent that his/her
credibility as a whole is affected.





It
is also evident from the testimony in the instant case, e.g. the case
of former Inspector Knouwds, that he probably did not have a proper
opportunity to consult with the representative of the
Prosecutor-General and to refresh his memory from the statements of
the accused before testifying, otherwise he would have remembered
when cross-examined by defence counsel, what questions if any, he had
asked the suspect and what answers the suspect had given.
Prosecutors should always properly consult with state witnesses
before calling them to testify. Police officers are also legally
entitled to refresh their memories before testifying, inter alia
from their own statements, from the statements of suspects and from
all relevant documentary material.





Memory
is of course always important for a police officer testifying in
Court, but a memory test should not be the dominant feature of the
judgment of his honesty and credibility.





The
Court should always take care to distinguish the neglect of police
officers and their unsatisfactory evidence in regard to dates and the
meticulous recording of the progress of the investigation, from the
larger issues and the probabilities.





The
Court a quo in the instant case appears to have ignored
certain important facts and probabilities. So e.g., it was a fact
that after Knouwds had taken down the statement of accused no. 1,
Knouwds alerted the investigating officer to arrest accused no. 2.
This clearly indicates that he was told by accused no. 1 of the
complicity of accused no. 2. The Court also erred in assuming that
the only evidence against accused no. 1 at the time of the
application for discharge was the alleged confession. At that stage
there was the evidence of Victoria Namises that she had seen four men
running in the veld from the direction of Olifantsfontein, the scene
of the murder. At the identification parade she pointed out accused
no. 1 as one of the four, although she was under the impression that
the person she pointed out was Markus Geiseb. When she testified in
Court, she again pointed out accused no. 1 as one of the four.





There
was also the evidence of Warrant Officer Silver and Detective Visser
about the three pairs of tracks they followed coming from farm
Olifantsfontein as well as those going towards farm Olifantsfontein.
According to both Silver and Visser, the shoes which accused no. 1
had on when arrested were inspected and in their opinion the shoes
appeared to correspond to the tracks that they had been following.
They however also said that Sergeant Geelbooi, who was with them was
the expert, and he confirmed that the tracks were similar to the
shoes worn by accused no. 1. Geelbooi was never called. Inspector
Van Zyl testified that Geelbooi had told him that the tracks led to
nothing and that Geelbooi refused to make a statement. It was open
to the Court to call Geelbooi as a witness, particularly because the
Court remarked on the absence of Geelbooi who was stated to be the
expert. Was it not for the hearsay statement of Van Zyl, a duty
would have rested on the Court in terms of Section 186 of the
Criminal Procedure Act to call Geelbooi. Alternatively, the Court,
even if not compelled by law to call Geelbooi, would have acted
wisely to call Geelbooi.
2





The
fact that Geelbooi was not called, left the evidence of Warrant
Officer Silver and Sergeant Visser uncontradicted. As experienced
police officers, their opinions in this regard was admissible, even
though they themselves did not claim to be “experts” in this
field. Obviously, their evidence although admissible, would not
carry the same weight as that of experts. There was also the
evidence by Visser that a woman in the veld where they were following
the tracks told them that she saw “Bumper” in the veld in the
area on the day she was questioned by Visser and Silver. The
identity of this alleged women witness was not disclosed by Visser,
but she may have been Victoria Namises, who also pointed out accused
no. 1 at the identification parade as well as in Court, as one of the
4 persons whom she allegedly had seen running in the veld with three
others on the day in question.





Insofar
as the Court a quo based its finding to discharge accused no.
1 and 2 on an assumption that only two persons had committed the
murders and robbery, the Court misdirected itself. Insofar as the
Court apparently relied on the consideration that a streamlining of
the State case can be achieved and that the conflict between the
alleged statements by accused no. 1 and no. 2 on the one hand and the
statement of accused no. 3 on the other, can in this way be avoided,
the Court also misdirected itself.





I
am satisfied that for the above reasons, the Court a quo erred
in granting the application for discharge of accused no. 1 at the end
of the State case in terms of section 174 of the Criminal Procedure
Act no. 51 of 1977.





SECTION
III


THE
STATE CASE AGAINST THE APPELLANT:





My
above findings are clearly not enough to let the appellant off the
hook. Although the argument based on the assumption that there were
only two perpetrators of the crimes charged, must fail, the conflict
between the alleged version of accused no. 1 in his alleged
confession and the version of accused no. 3 in his alleged
confessions, supports the argument on behalf of appellant that the
State has failed to prove the case against him beyond reasonable
doubt. Whether or not the appeal should succeed, must however depend
ultimately on the other evidence, directly incriminating the
appellant. I will now deal with such evidence seriatim.





1. THE
ALLEGED CONFESSIONS AND ADMISSIONS OF ACC. NO. 3:


The
most important evidence against appellant is the alleged confession
by him to Inspector Van Zyl and the admissions to Chief Inspector
Kaundu. The Court accepted the evidence of Van Zyl and Kaundu,
despite the appellant’s denial that he had made those confessions.
Although the accused admitted that he had visited the scene on two
occasions, namely one occasion when Van Zyl was not accompanied by
Kaundu and a later occasion shortly afterwards when he visited the
scene with both Van Zyl and Kaundu present, he denied that he had
pointed out any points and that he had made any confessions and/or
admissions on any of these occasions. The explanation by the accused
that Van Zyl himself in effect pointed out the various points of
relevance was farfetched.





I
can find no reason to reject or even seriously question or criticise
this finding of the Court a quo. There is also no reason to
find that even though the accused made those confessions freely and
voluntarily, he made them falsely. Van Zyl explained the accused’s
motivation and the background to the confessions as follows:






On
that particular day (i.e. 24/1/1995) I booked out accused no. 3 who
was at that stage in custody already for investigation purposes. I
was accompanied by Detective Sergeant Fourie. We drove to Tsumeb
with a vehicle, because I had an informant which I needed to speak to
there. On our way both Sergeant Fourie and myself spoke to the
accused. I started to ask him about his whereabouts on the day of
the murder. The accused told me that he was in Grootfontein. I told
him that I am in possession of information that he could possibly be
involved in the murder. The accused denied everything. We arrived
in Tsumeb where I spoke to my informer. Thereafter my informant
returned to Grootfontein with us because I wanted him to obtain
certain information for me there. On my way back from Tsumeb I
decided to pay a turn at Olifantsfontein, because I have never been
to the scene of the incident myself. I stopped in front of the
farmhouse. The moment when I stopped and got out of the vehicle,
then accused 3 told me that he wants to point out to us what happened
on that day. I told him that he was not obliged to point out
anything to me and anything that he might reveal can be used as
evidence at a later stage. He then said that he would like to point
out, because he wanted to get the thing off himself. Yes he then
started to direct me to the orange trees, how they came from that
direction and jumped over the fence. Yes, something that I should
add what the witness said was that he was with accused no. 4, which
he mentioned by name, who later became known as accused no. 4 as well
as a certain Dino. In other words they were three people.






They
went through the orange trees and accused no. 3 went around the house
from the left side to the back. And accused no. 4 went around the
house from the right side to the back. Both of them stood at the
respective corners of the house and waited for a couple of moments.
Accused no. 4 had an AK 47 rifle with him. Accused persons number 3
and 4 went simultaneously to the door of the house. Accused no. 3
entered the house first followed by accused no. 4. They went through
the kitchen up to the back part of the house where the bedrooms are
situated. Yes, then the deceased woman came from the left side of
the bedroom with a broom in her hands and stormed in the direction of
the accused persons. Accused no. 4 then started to fire in her
direction and she fell down. She fell down with the broom, a part of
the broomstick underneath her. Then the deceased man stormed from a
room with a spade in his hand. Then accused no. 4 also started to
fire in his direction and he also fell down with the spade next to
him. The accused no. 3 also pointed out to me the power box,
electrical power box, which was damaged. He also told me that the
house looked different at that stage when the incident took place,
because there was an arch now in the place where a door was. I have
to correct myself, My Lordship. There was a window now in the place
where the arch was, meaning the window has replaced the arch, yes
meaning the arch has replaced the window. And that there was also a
door which is no longer there in place.”





Van
Zyl explained how Inspector Kaundu became involved. He said:






And
then I asked accused no. 3 whether he would be prepared to point out
the scene in the similar manner as he did to me to an independent
officer and he did not have a problem. I then drove to the police
station and found Inspector Kaundu who was the station commander. I
asked him whether he would be willing to accompany me to the scene
where the accused would like to make certain indications, pointing
out, and he said yes. Accused no. 3, Inspector Kaundu and myself
then drove back to the farm again. Here again the accused pointed
out the scene to Inspector Kaundu as well. I then gave instructions
that accused no. 4 should be searched and arrested. He was also
arrested on the same day. After accused no. 4 was arrested, then
accused no. 3 ceased to cooperate and started to deny everything he
has acknowledged at a prior stage to me.”









Van
Zyl said that he established that “Dino” was the nickname of Piet
Haraeb but that this Piet Haraeb was already in custody for some
other crime when the crimes at Olifantsfontein were committed. It is
significant that accused no. 4 Patric Somseb was arrested on Van
Zyl’s instructions, as a result of the statement by accused no. 3,
incriminating accused no. 4 and putting most of the blame on accused
no. 4, leaving for himself mainly the rôle
of bystander and accomplice.





The
motive of accused no. 3 could certainly have been to ensure a lighter
sentence for himself by confessing timeously and placing the major
role and blame on accused no. 4.





The
question then arises why he suddenly upon return from the scene of
crime refused to further cooperate and again deny any knowledge of
the incident, as testified by Van Zyl.





The
answer probably lies in the fact that when they returned to the
police station, accused no. 3 was confronted by his friend and co
accused no. 4, who had in the meantime been arrested on the
instructions of Van Zyl on information provided by no. 3. Accused
no. 3 now probably realized that accused no. 4 will assume that no. 3
had betrayed him and that they would now be used against each other.





Furthermore,
accused no. 3 knew that he had not made any written statement and
consequently it would be easy to repudiate whatever he had said
before.





Kaundu
testified and corroborated Van Zyl, although there was a dispute
between them in regard to the reason why Kaundu never reduced his
version to a written statement for the purposes of the investigation
and preparation of the docket for trial. This dispute underlines the
lack of proper cooperation and coordination between the police
officers to which I have referred earlier and the apparent mistrust
between police officers which was also commented on by the Court a
quo
.





The
Court in regard to this dispute preferred Kaundu’s version. I do
not agree because Kaundu, as Chief Inspector and Station Commander of
the police at Grootfontein at the time, should have known without
being told by Van Zyl, that he was required in accordance with sound
police practices, to reduce his observations and what he said to the
accused beforehand, if any, and what the accused pointed out to him
and said to him when they visited the scene of crime. Kaundu also
explained that he had made notes and drew a sketch of the pointings
out in his pocket book, but that the pocket book had gone missing.





When
the Chief Inspector Kaundu commenced his visit to the scene with
accused and Van Zyl for the purpose of pointings out by accused no. 3
he did not ask Van Zyl to leave their company, seeing that Van Zyl
was the investigating officer to whom a statement and pointings out
had previously been made by the accused. Kaundu also failed to give
the accused any warning in terms of judge’s rules, as he should
have done before the pointings out commenced. Instead of giving the
accused the recognized warning, Kaundu, according to his evidence in
chief, said:






On
our arrival at the farm, before we went in the yard of the farm, the
inspector stopped the vehicle and then he told me that okay, he must
show you what he had shown me.”














There
was then some confusion on the side of the Court about who said what,
but eventually it became clear that first Van Zyl had said to Kaundu
– “Okay he must show you what he had shown me” and then Kaundu
told the accused that he must show him what he had shown to Van Zyl.
Kaundu continued:






And
then I started asking some questions to the accused. I asked him if
they are the ones who came in and entered into the farmyard? I then
asked, where they passed when they came into the farm. And then he
then first told me that no, they passed at the southern direction.
They crossed the first wire, until coming to the next wire which is
on the gravel road on the farm, from there we started moving, me and
him in front and Inspector Van Zyl he was behind us with a camera,
video camera. Then I and accused no. 3, we went up to the, we went
up to a small gate, small gate for people only. Its not for
vehicles. By that time that small gate was locked and then I asked
him how did you manage to go in, into the yard and he said we climbed
the what we shall we call it and then we went in. Then we went into
the yard and he showed me that. The accused indicated that they
climbed over the gate.”





Kaundu
continued:






Then
we went into the yard and he showed me that. Now, when we came at
this point, we divided ourselves. One of my friends went to the
right direction of the house and I myself went to the left. And then
we went up to the building. Then we get the first door of the
kitchen. So we came up to the door of the kitchen and then he told
me that ‘my friend was standing somewhere here and I went to open
(indistinct)’. (The witness is indicating towards the right hand
side, Your Lordship). And we entered the room. We went to the
kitchen there is a next door again which goes in the like a veranda.
This is a wall whereby the left side wall whereby the left side wall
is where the rooms are divided. In the corridor I experienced
myself, because of the blood, that that was the scene of the
incident. I could see the blood ……..when we came in that
corridor we saw some blood on the floor and that showed that there
were, I mean people lying there. I asked the accused that how
and who shot, whether he’s the one who shot the two deceased…
Then he told me that he’s not the one who was shooting. I mean the
one who was shooting was accused no. 4, his friend. During that
period I could not ask a lot of questions, simply because there were
no many owners and their relatives, those that know the items which
was inside the what shall we call it, those that can say there is
something which got lost, like this…….”









Kaundu
then pointed out on the sketch plan handed in and prepared by Chief
Inspector Malan, the direction followed by accused 3 and 4 as
allegedly pointed out to him by accused no. 3. Chief Inspector
Kaundu, who was the Commissioner of police at Gobabis when he
testified, apparently did not know, when he accompanied the accused
to the scene of the crime, that in order to ensure that the expected
statement to him, if it amounts to a confession, would pass the test
of being made by the accused freely and voluntary, in his sound and
sober senses and without having been unduly influenced thereto, as
provided for in section 217 of Act 51 of 1977, he should at least
warn the accused in terms of judges rules that he is not compelled to
make any statement or point out anything, but that should he do so,
such statement and pointing out may be used in evidence against him
at his trial. Inspector Kaundu obviously also did not tell the
accused that he is entitled to consult with a legal practitioner.
This failure is however mitigated, if not completely excused, by the
fact that according to Van Zyl, accused no. 3 had, immediately before
Kaundu was called upon consented to repeat the pointings out to
another independent person. This was done after Van Zyl had properly
warned accused no. 3 according to judge’s rules.





In
this case no effort was made to take accused no. 3 to a magistrate to
take down a statement when the accused allegedly stated that he
wished to get the matter of his chest and according to Van Zyl and
Kaundu, all the indications were, that the accused was willing and
ready to confess his part in the crime. Instead Inspector Van Zyl
and Chief Inspector Kaundu took the easy way of pointings out and
contemporaneous admissions and/or confessions to police officers, one
of whom was the investigating officer Van Zyl who even was present
when Chief Inspector Kaundu conducted the pointings out. It is
significant that in addition, no written statement was taken by any
of them from the accused and none of them explained why not. The
need for reducing such alleged statements to writing is obvious.
However, in view of the fact that the statements were made to police
officers who, in view of their rank, were justices of the peace in
terms of the law, such failure in itself does not make the statements
inadmissible. The reason for not taking the accused to a magistrate
for recording the confession was probably that as testified by Van
Zyl, when they arrived at the police station and accused no. 3 was
confronted by accused no. 4, he then refused to cooperate further.





When
the matter was heard in the Court a quo, the Court did not
consider the question of admissibility by means of the procedure of a
trial within a trial. Again this failure standing alone does not
amount to an irregularity in the proceedings, amounting to a failure
of justice.





It
does not appear from the record or the judgment of the Court a quo
that any special consideration was given to whether the alleged
statements to Van Zyl and Kaundu amounted to confessions or were
admissions. It seems to me however that in view of the fact that it
is trite law that a confession is defined as “an unequivocal
admission of guilt,” the statement and pointings out to Van Zyl
indeed qualify as a “confession”, whereas that to Kaundu should
be regarded as admissions. The distinction is important. Not only
can an accused be found guilty in terms of section 209 of the
Criminal Procedure Act 51 of 1977 on the single evidence of a
confession by such accused, provided the confession is confirmed in a
material respect by other evidence, or where the confession is not so
confirmed, if the offence is proved by evidence, other than the
confession, to have been actually committed,” but the requirements
for admissibility are also more stringent and extensive in the case
of confessions compared to admissions. Section 217 requires inter
alia
a confession to have been made not only freely and
voluntarily, but by the person “in his sound and sober senses and
without having been unduly influenced thereto”. Whereas the
admission, not amounting to a confession, need only have been made
voluntarily, in terms of section 219 A.





The
version of accused no. 3, relating to the alleged statements and
pointings out as testified to by Inspector Van Zyl, Sergeant Fourie
and Chief Inspector Kaundu, was for the most part confusing and
difficult to follow. Firstly, he alleged that Van Zyl threatened him
with a pistol when he booked him out of prison on 24th
January 1995 for questioning. Then when they visited the house and
immediate environment where the murders and robbery were committed,
he, the accused did not point out anything to Van Zyl. In response
to questions about the interior layouts of the house, accused said
that he had never been there before. According to him, Van Zyl took
him out of the house and asked him silly questions such as – “what
kind of tree is that…”





Accused
no. 3 then related how they drove from the house at Olifantsfontein
to the Chief Inspector’s office and then returned to the farm with
Kaundu. He said:






When
we came at the door, Inspector Van Zyl told me that I should show
Inspector Kaundu our movements that we have taken during our first
visit to the farm, when he, Fiku and myself and Fourie were there.
I was still handcuffed and we basically repeated the same movements
that we executed during our first visit earlier the day. Thereafter
Inspector Kaundu handed over the video camera to Inspector Van Zyl
and then I was instructed by Van Zyl that I would walk with Inspector
Kaundu. While I was walking with Inspector Kaundu, I told him that I
don’t know what Inspector Van Zyl’s plans are with me. And then
I also informed him about the fact that I was threatened with a
firearm by Inspector Van Zyl and that I intended to open a case
against him”.









Accused
no. 3’s counsel Mr Murorua then asked no. 3 “now at that
occasion, did you go inside the house accompanied by Inspector
Kaundu” and he replied: “Not at all”. The question and
answers proceeded as follows:






Q: “So,
was Inspector Kaundu taking notes as he was with you at the
occasion?”



A” “Not
at all.”



Q: “So
Inspector Kaundu informed this Court that he went inside the house
with you, only the two of you?”



A: “That
is a lie, it never happened.”



Q: “And
what happened from there?”



A: “We
went back to the vehicle.”



Q: “And
then?”



A: “While
we were driving back Inspector Van Zyl instructed Sergeant Timo over
the radio that accused no. 4 should be arrested.”



Q: “And
then?”



A: “We
arrived at the charge office and the Inspector asked accused no. 4
what his name is and he told.”


Go
on please.” “Thereafter Inspector Van Zyl instructed the staff
in the charge office that accused no. 4 and myself should be locked
up and then accused no. 4 wanted to know from the officers in there
why he should be locked up and then he was told, ask Inspector Van
Zyl, because these are his instructions.”





It
further appears from the evidence that accused did lay a complaint of
“threatening with a firearm” against Van Zyl, but the
Prosecutor-General refused to prosecute. In any event, this threat
was not alleged in support of an objection to the admissibility of
the alleged confessions and admissions. It is clear from the above
that no objection was made at the trial by the defence against the
admission of the alleged confession and admissions on the grounds
specified on the aforesaid sections 217 and 219A. What accused no. 3
and his counsel raised, was a complete denial of the alleged
pointings out, confession and admissions. This defence was so
far-fetched that the Court had no difficulty in rejecting it as
false, in the light of the evidence of Van Zyl, Kaundu and Fourie and
notwithstanding strenuous criticism of aspects of Van Zyl’s
evidence regarding the handling of the investigations.





The
fact that Van Zyl, already instructed the arrest of accused no. 4
whilst on their way from the crime scene to the police station, is
circumstantial evidence which strongly corroborates his evidence that
accused no. 3 had incriminated accused no. 4 in his statements to him
on that very day and only as a result of that information was he in a
position to order the arrest of accused no. 4. This fact also shows
convincingly that accused no. 3’s version that he had not pointed
out anything to Van Zyl and Kaundu, was patently false.





Furthermore
the fact that Van Zyl already contacted Kaundu soon after on his
return from the crime scene to the Police Station to arrange for
Kaundu’s visit to the scene of the crime for the purpose of further
pointings out by the accused, once again amounts to circumstantial
evidence, which corroborates Van Zyl’s evidence that accused had at
that stage already pointed out certain points of relevance to him,
had made certain admissions regarding his participation on the
commission of the said crimes and had consented to again point out
the relevant points to another police officer, who is not directly
involved in the investigation. It is also highly improbable that Van
Zyl would have called on Kaundu if he did not expect the accused in
the light of accused’s previous pointings out and consent, to make
such pointings out to an independent police officer.





The
requirements of the law regarding pointings out and contemporaneous
admissions and confessions, were again discussed and applied in the
decision of the Appellate Division of the Supreme Court of South
Africa in a case of Namibian origin, namely State v Sheehama.
3





I
have already pointed out various defects in the procedures followed
by Inspector Van Zyl and to a greater extent, that followed by
Inspector Kaundu. The instant case can however be distinguished from
the Sheehama case in various respects, inter alia:






(i) In
the instant case, there is no allegation, and certainly no proof of
any prior assaults on the accused.







(ii) The
first confession and/or admissions to Van Zyl before the pointings
out to him, were spontaneous.







(iii) Van
Zyl did however warn the accused in terms of judge’s rules.







(iv) Kaundu
did not warn the accused in terms of judges rules, but shortly before
any pointings out and contemporaneous admissions were made to Kaundu,
Van Zyl had so warned the accused and had obtained the accused’s
specific consent to again point out the relevant points to another
police officer not involved in the investigation.







(v) At
the trial of the accused there was no formal objection by the defence
to the admissibility of the statements of the accused on the grounds
provided for in section 217 and 219A of the Criminal Procedure Act 51
of 1977.






There
was some evidence that a video camera was used by Van Zyl to record
the scene at the pointing out by accused no. 3. No photographs or
video recording was however produced in Court, allegedly because the
recording was defective.





The
question arises why would the accused have made those confessions
and/or admissions and the pointings out if he was innocent. There is
of course the alleged statement by accused no. 3 that he wanted to
get this matter off his chest. I am not impressed by that alleged
motivation, even if made. The most probable reason is that the
accused had already committed other crimes, namely housebreaking and
theft and robbery and had been sentenced to 9 years imprisonment in
January 1995 for the latter crime. He foresaw the reasonable
possibility of a conviction on the Olifantsfontein crimes and decided
to place the blame, or most of the blame, on his co-accused, Patric
Somseb and in that way ensure a better result for himself.





2. COURSE
OF CONDUCT:





The
accused no. 3 had prior to 3 September 1994, when the crimes at
Olifantsfontein were committed, committed a serious crime together
with accused no. 4, Patric Somseb. The following particulars appear
from the record:






(a) In
July 1994, the crime of housebreaking and theft, where a pistol was
also stolen.







(b) In
August 1994, the month prior to the commission of the crimes of
Olifantsfontein, accused no. 3 and 4 were again charged together for
the crime of robbery. Accused no. 3 was convicted in January 1995
for this crime and sentenced to 9 years imprisonment. It is
unfortunately not clear from the record whether accused no. 4 was
also convicted in that case.





It
will be noted that the two crimes for which accused no. 3 were in
fact convicted and sentenced, demonstrate a violent course of
conduct, in order to rob and steal, with some features in common with
the heinous crimes at Olifantsfontein committed on 3 September 1994
for which accused no. 3 and 4 have been convicted and sentenced. It
is in regard to the latter conviction, that the present appeal has
been brought by accused no. 3.





There
is no reasonable doubt that accused no. 4 was one of the participants
in the aforesaid crimes. The association of accused no. 3 with no. 4
as friend and as accomplices in another crime, who often stayed
together, adds to the possibility that accused no. 3 also
participated with accused no. 4 in the crimes committed at
Olifantsfontein.





3. THE
ALIBIS





Both
accused no. 3 and 4 raised alibis at their trial but the Court a
quo
found that in the light of the evidence produced, these
alibis were mere fabrications. I have no reason to differ from that
finding.





4. JOHANNES
HORASEB:





The
witness Johannes Horaseb pointed out at an identification parade the
accused as one of the persons he saw at the home of the Schulzes,
immediately before or after shots were heard coming from the
farmhouse and he confirmed that evidence under oath in his testimony
at the trial.





Horaseb
had however made at least two conflicting statements to the police.
In one of those statements he had implicated his son in law Markus
Geiseb, also known as Hoddie. He was thus an extremely suspect and
unreliable witness and could not be believed, except on aspects which
were not disputed or in respect of which there was credible
corroboration.





5. One
of such aspects was that accused no. 4 often played soccer on the
farm and was one of the players who usually received oranges from Mr
Schulz. As to the identification of accused no. 3 as one of the
culprits who ran towards or from the house at the time when the shots
were heard, there are ample corroboration, including a confession and
admission by the accused himself.





It
follows that accused no. 3 knew Mr and Ms Schultz, the farm, the
farmhouse the environment, and even some of the employees and
residents on the farm. (See also in this regard par. 6 infra.)





6. Markus
Geiseb
, who had initially been implicated by his father-in-law
Johannes Horaseb, as one of those running from the farmhouse after
the shooting, and was consequently one of the suspects on the
identification parade arranged by the police, testified in the Court
a quo. By then Johannes Horaseb had withdrawn the allegation
he had initially made against Geiseb and said that he had made a
mistake. Geiseb was also one of the suspects on the identification
parade conducted by the police, but he was not pointed out by any of
the witnesses.





Geiseb’s
evidence in the Court a quo had nevertheless to be treated
with some caution in view of the initial incrimination by his father
in law. The Court a quo correctly considered his evidence “very
cautiously”. Marcus Geiseb however also landed in prison as a
result of a conviction for stock theft. He was asked by Warrant
Officer Silver to attempt to obtain information regarding the crimes
committed at Olifantsfontein whilst in prison. The Court a quo
summarized his evidence as follows:






He
said he knew accused no. 3 and 4 well, accused no. 3 from playing
football at farm Olifantsfontein up to August 1994. He knew accused
no. 4 at school. Markus said he happened to be in detention at the
same time as the accused persons and shared the same cell at one
stage at Grootfontein Police Station. He said one day he heard
accused no. 4 talking. Accused no. 4 said accused no. 1 and 2 were
innocent and should not be involved. Markus said he was also one of
those who stood in the identification parade in August 1995. He said
at the parade accused no. 3 was picked out and when that happened, he
was angry and said: ‘I will tell with whom I was, I will not go
down alone.’ He said that when he did get information he gave it
to the man who took over from the warrant officer who had resigned.
Markus Geiseb said on one of the days in the cell he saw and heard
accused no. 3 demonstrating how he shot the people at the farm with a
friend. He said this demonstration was in the presence of accused
no. 4, accused no. 1 and Piet Araeb. Marcus later said accused no. 3
later changed this account and said it was in fact accused no. 4 who
did the shooting. Accused no. 3 claimed that he tried to prevent the
shooting Marcus elaborated in his evidence. He said that when
accused no. 3 related these events accused no. 4 then interjected and
said ‘now I will tell you what you have to say in Court.’ You
must tell them that the police assaulted and threatened you and that
is why you admitted killing the people. He denied that accused no. 3
ever said that accused no. 1 was innocent. He contradicted himself
later and said that accused no. 3 challenged accused no. 4 and said:
‘You and I are involved in this. Why are you now involving accused
no. 1 and 2.’









7(a). Chrisjan
Nekongo
testified that he was on a visit to his aunt at Plot
Lemoentjie on Saturday 3 September, 1994. He was accompanied by a
friend with the name Gabriel Kavendome during that evening. He
testified that accused no. 3 and 4, were known to him also by the
names Sikutuma and Dawena respectively. He said no. 3 bought beers,
two bottles with N$10. Dawena had a pistol tucked into his trousers,
but with part sticking out above his trousers. Nekongo had made a
prior statement to the police but in that statement he mentioned only
accused no. 4, Dawena. It is noteworthy that when accused no. 4
testified in the trial, he admitted that he was known by the name of
“Dawena”.








7(b). Gabriel
Kavendome
corroborated the evidence of Chrisjan Nekongo. He
pointed out accused no. 3 and 4 in Court when he testified before
accused no. 1 and 2 were discharged and when there were still 4
accused in Court. He referred to accused no. 3 as Sikutuma and
accused no. 4 as Dawena. In his prior statement to the police he
referred to the people they saw as “Tawena” and “Fiku”. When
questioned about the name Fiku he explained that “Fiku” is the
abbreviation for Sikutuma. He said that he saw Sikutuma at the
police station three (3) days later where he was present when accused
no. 3 gave his name to the police as Sikutuma. He also stated that
the two accused passed at the Plot Lemoentjie on the same day that
the people were killed at Farm Olifantsfontein. He also acknowledged
that he did know the accused no. 3 and 4 before the evening of the
3rd of September. The police, according to him only
arrived after the two accused had already left.





The
learned judge a quo rejected both the evidence of Nekongo and
Kavendome. For the purpose of easy reference when commenting, I have
numbered the passages of the Court a quo’s reasons:






(i) Court:



Both
witnesses stated each in turn that the men did not stay long and left
shortly after buying the beer. They said this rapid departure by the
two men drew comments from the patrons and that is when they learnt
of the names of the two men, Tawena and Sikutuma…”










Comment:
Ad(i):
The evidence of Nekongo and Kavendome is very relevant at
least in so far as it - (a) fixed the presence of accused no. 3 and 4
on the evening of the murders at a place near Olifantsfontein, where
the crimes were committed; (b) the observation that accused 4 had a
pistol with him; (c) the accused left quickly and appeared to have
been in a hurry and the people present observed that and commented on
that observation. It is significant that the Court did not base its
rejection of this and other parts of the evidence on demeanour, but
only on alleged contradictions.






(ii) Court:



These
two witnesses, however were not always consistent, one with
the other or in their own evidence. (My emphasis added). Chrisjan
Nekongo said that he slept at Plot Lemoentjie which is his aunt’s
place whereas Gabriel left that night. Gabriel however said they
both left that night and this was after the police had visited and
they had talked to the police. But Chrisjan said he only heard of
the incident of the killing at Farm Olifantsfontein the following day
when the police called at Plot Lemoentjie…”









Comment:
Ad (ii)
: It was clear from the police evidence that they
followed tracks and visited on the Saturday as well as the next day
and even thereafter. It is obvious that they may have talked to a
potential witness on one day and again thereafter, or that they
talked to a specific witness on one day and to another witness the
next day. So Nekongo could have talked to the police on the Saturday
or both the Saturday and the next day, whereas Kavendome could have
talked to the police on the Saturday and by the time he testified, he
remembered the Saturday whereas Nekongo remembered the Sunday. Even
if they were “not always consistent” that does not mean that one
of them could not be correct.






(iii) Court:







The
evidence of these two witnesses, save for their reference to
seeing accused no. 3 and 4 at Plot Lemoentjie that
evening, is so
confusing and contradictory, it is difficult to know which part to
act on.”









Comment:
Ad (iii)
Even if contradictory in the two respects mentioned by
the Court, there was no good reason at all not to act on the evidence
that they saw accused no. 3 and 4 at Plot Lemoentjie on the evening
of the commission of the crimes charged. Surely the Court had no
reason to think that Nekongo and Kavendome had fabricated the whole
story, or had conspired to lie. There is also no reason to reject
their evidence about their own observations and the reaction of the
people present at the disco. And even if Kavendome had contradicted
Nekongo in some minor respects, that does not mean that both were
wrong and/or lying. One could be correct and the Court had to
consider whether one of them may not be correct.






(iv) Court:



Bearing
in mind the very high burden of proof in a criminal trial it will be
unjust and improper for me to find in favour of the State and
find that these witnesses were reliable and I could act upon. At the
end of the day it is difficult to say whether they did in fact
witness what they say they witnessed and whether they did hear what
they claim to have heard. I agree therefore with defence counsel,
Mr Murorua, that the evidence be rejected as a whole
.”









Comment:
Ad (iv)
: In my respectful view, the Court misdirected itself in
its aforesaid approach. The Court was not required to find on the
evidence of these two witnesses alone, in favour of the State.
The Court had to consider this evidence in the context of the whole
of the evidence led by the State and the Defence and the
probabilities, whether or not the accused’s guilt had been proved
beyond all reasonable doubt. Even if the witnesses had contradicted
each other and themselves in certain minor respects, it does not
follow that their evidence must be rejected as a whole,”
particularly not where there is some corroboration in favour of other
witnesses.





8. Agnes
Eibes
, who resides at Plot Lemoentjie, saw accused no. 4, known
to her as Tawena, arrive at Plot Lemoentjie at about 3pm on the
Saturday. Although she did not mention accused no. 3 or directly
incriminate him, she at least corroborated that his co-accused,
accused no. 4 was in the neighbourhood at the relevant time and place
and that he was known to her as “Dawena”.





9. Victoria
Namises
, testified that on the afternoon of Saturday 3 September
1994, she saw four persons running through the veld near Plot Kede
where she resided, from the direction of the farm Olifantsfontein.
She insisted that she would be able to identify the four persons and
actually pointed out all four accused in Court as the persons she saw
running. She nevertheless testified that she actually knew only one
of the four persons, but did not know anyone by name.





At
an identification parade held by the police in August 1995, she
pointed out one person whom she knows by the name of Augusto. When
asked in Court whether the person she had pointed out at the parade
is in Court, she pointed out accused no. 1 Gustav Tjambula. From the
record of the identification parade it is also clear that she there
also pointed out accused no. 1, Gustav Tjambula. However, in her
statements to the police dated 11 July 1995, she stated she had seen
four men, two of whom were Marcus Geiseb, known as Hoddie and his
brother in law, Johannes. In her second statement dated 16th
August, she said that the person she identified at the parade was
Marcus Geiseb and he was the same man she had mentioned in her
previous statement. I have already shown that she must have been
under a wrong impression when she testified that she had identified
Marcus Geiseb on the parade. The evidence of identification of the
four men she allegedly saw running was, as the Court correctly found,
“totally untrustworthy”. However her evidence that she saw four
persons running, is uncontradicted and there was no good reason to
reject her evidence in this regard.





It
must be remembered that Sergeant Visser of the police, who was one of
the police officers who followed the tracks on the afternoon of
Saturday 3 September, also testified that they found a woman in the
veld who told them that she had seen four persons running. The
evidence referred to under points 1-8 supra, concludes the
evidence directly implicating accused no. 3, the appellant.





I
must now briefly deal with some further evidence and factors which
are relevant to the question whether or not the accused no. 3 has
been proved guilty beyond all reasonable doubt.





10. Harold
Amgeibeb:





The
State called as its witness one Harold Amgeibeb, at the time 17 years
old, who was an inmate of the prison, awaiting trial in 1995. He
testified about conversations between inmates in prison in 1995-1996,
which also involved accused no. 3 and accused no. 4. What the State
counsel intended to achieve by calling this witness as a State
witness is difficult to follow, because his evidence in the main is
an incrimination of accused no. 4 and one Maleagi Rasta and the
exoneration of accused no. 3. The only aspect from his evidence
which shows up accused no. 3 in a bad light is the following:





According
to Amgeibeb, “Accused no. 3 told him that Van Zyl had requested him
to obtain information about the case. When he, i.e. accused no. 3,
started to reveal the information which he had received or obtained,
to Inspector Van Zyl to the effect that accused no. 4 and the person
called Maleagi, had been making certain movements on the farm
Olifantsfontein, but at all those times when he was writing the
statement of accused no. 3, what Inspector Van Zyl did was, wherever
accused no. 3 mentioned the name of the person Maleagi, he entered
the name of accused no. 3 in the statement. And that is how accused
no. 3 was charged with the case.”





If
accused no. 3 ever made such a statement to him, that would just
underline the capacity of accused no. 3 to fabricate, as accused no.
3 had done in his version of the encounters with Van Zyl and Kaundu
relating to the alleged pointings out and admissions to Van Zyl and
Kaundu. The alleged statements by accused no. 3 to Amgeibeb, at
least contains an admission that he did in fact make a statement to
Van Zyl, whereas in his evidence in Court, accused no. 3 denied that
he had made any statement about the commission of the crimes at
Olifantsfontein to either Van Zyl or Kaundu.





As
far as the contents of the alleged statement to Van Zyl is concerned,
the question arises how Van Zyl managed to substitute accused no. 3’s
name for that of Maleagi Rasta in a statement made by accused no. 3
and which probably had to be signed by accused no. 3. It is also
difficult to visualize what Van Zyl could have achieved by such a
substitution of actors in accused no. 3’s own statement. The
intention to produce evidence to incriminate Maleagi Rasta as the
partner in crime with accused no. 4 and to exonerate accused no. 3,
is even more pronounced in another part of Amgeibeb’s evidence
under cross-examination by defence counsel Ndauendapo. Amgeibeb
admitted having made a statement to Inspector Van Zyl.





In
the first part of the said statement by Amgeibeb, he explained how it
allegedly came about that he took a statement from accused no. 4. He
said: “Patrick Somseb is my friend for the past 10 years and
especially when we were in the cells that we are good friends, not
family…In 1996, while I was awaiting trial, I cannot remember the
exact date, Patric started talking with me about the murder case in
which he is an accused. He said which questions he will ask,
because he wants to use Afrikaans in Court and I have to write down
his questions in Afrikaans while he is speaking Damara, because his
Afrikaans is not so good





Paragraph
5: I asked him whether he committed this murder and he said: ‘I
did it, but not with John Narib
…” Amgeibeb was asked by
counsel: “Is that what he said” and he answered: “That is”.
“John put himself in a fire with his tongue? And he answered:
“Yes”. Amgeibeb statement to Van Zyl continued: “I asked him
with whom he was and he said: “Maleagi Rasta”. “I asked him
who shot him. He said, “Maleagi…” Amgeibeb continued: “I
asked him who shot him. He said ‘Maleagi’. “I asked him to
tell me how you came there and what you did? He said that ‘Maleagi
knows those farms as the palm of his hands and they planned and went
to Olifantsfontein…” (My emphasis added).





The
statement by Amgeibeb to Van Zyl then went into further detail about
how accused no. 4 told Amgeibeb how the crimes were committed in
which he and Maleagi allegedly were the only perpetrators. According
to Amgeibeb’s evidence accused no. 4 also told him how he and
Maleagi Rasta split and how he then arrived at the house of Agnes
Eibes and there bought two beers for N$10 and also paid the friend of
Agnes for sex.





The
evidence of Harold of what accused no. 4 told him obviously
corroborates that of Agnes Eibes on that aspect. Amgeibeb’s
evidence as contained in his statement and confirmed in his viva voce
evidence contained considerable and impressive detail of how the
crimes were committed and what happened to the AK 47 murder weapon
and pistol. Accused no. 4 denied the evidence of Amgeibeb. What is
however extremely worrying about the evidence of Amgeibeb and which
strengthens the suspicion of a fabrication to frame accused no. 4 and
Maleagi Rasta in order to exonerate accused no. 3, was that the
alleged original request by accused no. 4 to Amgeibeb to assist
accused no. 4 in his preparation for the envisaged trial by writing
down his intended questions in Afrikaans, turned out to be something
completely different, namely questions allegedly asked by the young
Amgeibeb about accused no. 4’s complicity in the crimes, leading to
and resulting in a complete confession by accused no. 4 of his
complicity in the crimes, the incrimination of Maleagi Rasta and a
total exoneration of accused no. 3.





The
defence witness Gazie Mbizo:
The suspicion of such a framing and
fabrication is strengthened by the nature of the testimony of a
defence witness, called on behalf accused no. 3 and in an attempt to
corroborate Amgeibeb. Gazie Mbizo testified that on the
Saturday 3 September he was also at Plot Lemoentjie at his uncle’s
house when accused no. 4 came to him where he was sitting. The
evidence continued:






When
he came to me, he told me that I should go with him somewhere. And I
asked him whereto? He told me that he was going to tell me on the
way. I told the accused that I was just about to go to my work…
So we walked together in the direction of my workplace …at Ohama…
While we were on our way accused no. 4 told me, lets go together and
look for some meat. And I asked him whereto?






And
he told me this side and thus pointed a direction. They were two.
The other person that was with accused no. 4 was at a distance away
from me, a little far away…The other person who was with accused
no. 4 was a distance away from us, but I could recognise him. I know
his face.







Then
accused no. 4 told me that I should not be afraid, because the man
has got a firearm with him in the bag, an AK47 and I could also see
that…”







When
asked who the man was whom he had recognized, he replied: “Maleagi
Soreseb…” Mbizo continued: “Thereafter we walked a little
distance further again, up to a road and when we came at the road
accused no. 4 opened his shirt and told me ‘Gazie, look here. You
are the only man who has seen me and whom I have shown this. Look at
this. Then he directed me to a pistol which was kept here at his
waist on the left side. And thereafter he told me, ‘if you ever go
and speak about this, and anything happens to me I’ll shoot and
kill you’. Yes thereafter I parted with accused no. 4. He went on
his way and I went to my work where I was told that I have to go to
Ovamboland on Friday at 12:00”.









On
further questioning Mbizo said that: “when he returned from
Ovamboland on the Monday following the Friday when he met accused no.
4 and Maleagi, he heard about the crimes that had been committed at
Olifantsfontein”. He then also allegedly caught up with a guy
called Harold and “he has told me that he was told”.





The
above evidence appears to be extremely artificial with no
understandable purpose of the alleged meeting, other than fabricating
evidence of the complicity of accused no. 4 and Maleagi Rasta. Why
would accused no. 4, on the very day of commission of the crimes call
out Mbizo just to take him to Maleagi Rasta and to show him a pistol
carried by himself and an AK47 carried by Rasta, incriminating both
himself and Maleagi Rasta and then warning Mbizo that he would kill
Mbizo, should he tell what he saw. How much easier and safer would
it not have been for accused no. 4, if he never called out Mbizo to
show him these weapons? Accused no. 4 denied this incident.





In
cross-examination by prosecuting counsel Ms Jacobs it was confirmed
that Mbizo had also made a statement to the police in which he made
further incriminatory statements against accused no. 4 and Maleagi
Rasta Soreseb.





According
to this statement, accused 4 told him when they were both prison
inmates at Grootfontein prison sometime after the meeting at Plot
Lemoentjie, “that it was him and Rasta Soreseb, also known as
Maleagi Rasta who killed the people on the farm.





Mbizo
then went on to confirm in the course of cross-examination in regard
to his police statement, that accused no. 4 admitted his guilt and
had given details of how the crimes were committed by him and Maleagi
Rasta. Accused no. 4 denied such a conversation in cross-examination
of Mbizo as well as in his own testimony.





It
seems that Mbizo was present at all the right places where accused
no. 4 was ready to incriminate himself and exonerate accused no. 3.
The only specific comment made by the learned presiding judge in the
Court a quo relating to the evidence of Mbizo was in regard to
Mbizo’s evidence relating to the meeting with accused no. 4 and
Maleagi Rasta at Plot Lemoentjie on 3rd September. The
learned judge said: “In my view this witness’s evidence was a
little confused as evidenced by his reference to accused no. 4 being
armed with a pistol on that occasion. There is no evidence in this
trial that up until he went to Farm Olifantsfontein accused no. 4 had
a pistol. The evidence is that the pistol was acquired at the
time of the robbery and the murders.”





The
learned judge, with respect, here misdirected herself. The fact that
a pistol of the deceased couple was amongst the goods stolen at the
time of the murder of the Schulz couple, does not mean that accused
no. 4 could not have had another pistol earlier that day, before
the murders of the Schultz couple. It appears from the record at the
sentence stage, that accused no. 3 and 4 had already stolen a pistol
in the course of a housebreaking and theft for which both had already
been convicted and sentenced in July 1994. The Court failed to
consider and comment on the obvious improbability of a meeting and
conversation, as related by Mbizo.





As
to alleged conversation in prison between Mbizo and accused no. 3,
the Court, only dealt with the thrust of the meetings in prison
wherein Piet Araeb and Gustav Tjambula, (originally accused no. 1)
participated and concluded:






But
it would seem from all the witness’ evidence in Court that while
various other participants were changed, the role of accused no. 4
remained the same. In my view, having regard to all the evidence of
these witnesses, the so-called attempt to fabricate a story to
confuse the accused’s role at the incident at Olifantsfontein,
failed abysmally. Hence the slip up by Willemse whom accused no. 3
called. Willemse referred to accused no. 4 actually saying accused
no. 3 was present on that occasion.”









The
witness Willemse:
The Court correctly accepted the evidence that
there was an attempt made by these witnesses to fabricate a story in
terms of which it would be alleged that accused no. 4 and Maleagi
Rasta Soroseb were the perpetrators of the crimes at Olifantsfontein
and that accused no. 3 was not involved at all. The slip up by
Willemse is that he was called by accused no. 3 to testify that
accused no. 4 had in the course of the alleged discussion in prison
by the inmates, told them that he and Maleagi Rasta was involved,
that he would admit his role as an accomplice, but would place the
main blame on Maleagi Rasta by alleging that the said Maleagi was the
one who shot and killed the Schulz couple and that he was mainly a
bystander.





The
slip up was that in the course of the cross-examination by
prosecuting counsel, Willemse quite clearly stated that what Harold
Eichameb had told him, was that accused no. 4 had told Eichameb that
the second person involved with him was John Narib, accused no. 3.
Willemse also stated that he even overheard accused no. 4 say at the
reception at Prison the previous day, that “he begins to realize
that the case is turning against him and he is not going to leave
accused no. 3 behind, that he is going to drag him with”.





When
re-examined by accused no. 3’s counsel Willemse contradicted
himself by now saying: “I heard from Harold Amgeibeb and the
accused himself that it was him and Maleagi Rasta. The accused was
talking about two persons, but I don’t know who the other person
is, two other persons.





In
cross-examination by accused no. 4 he said: “You told me that on
that day in question when the two people were gunned down, you were
in the orchard while the two persons went in and killed the old
people. Ja, you were eating oranges.





You
did not want to name the two guys, but at a later stage you revealed
the name Maleagi Soroseb.” The Court a quo did not deal at
all with the credibility of this witness and made no finding thereon,
as it should have done.





The
witness Piet Araeb:
Piet Araeb was also called by counsel for
accused no. 3 but said in Court that he knew nothing about the case
except that the witness Marcus Geiseb had told him on one occasion
that the police offered him N$500 as well as a discharge on the case
for which he was in custody in exchange for any information with
regard to this case. Later, in cross-examination by prosecuting
counsel he said that he heard accused no. 4 saying to no. 3 that he,
no. 3, was not involved in the case. He also heard him say at the
prison reception that he will drag accused no. 3 with him.





One
can only wonder why accused 4 would tell accused 3 something that
accused no. 3 was supposed to know, namely that he, no. 3, was not
involved. The Court again did not comment on this witness
specifically.





The
witness Gustav Tjambula:
Counsel for accused no. 3 called as his
witness accused no. 1, Gustav Tjambula, who had originally been
charged as accused no. 1 but was discharged at the end of the State
case. Tjambula now testified he heard in prison accused no. 4 saying
to accused no. 3: “You are not involved in the incident. Why do
you concern yourself with the case? It is me and Maleagi.”





However,
it was quite clear that Tjambula was called to corroborate the
evidence of the previous witness and gave almost identical evidence
to that of Piet Araeb. Piet Araeb was not an accused. It seems to
be quite a coincidence that he was also at the prison reception where
accused no. 4 broadcast it to all those present that he intends
dragging accused no. 3 with him. The Court found accused no. 4 an
intelligent person who conducted his case quite well after the
withdrawal of his counsel. One wonders why such a person would
declare his intention to incriminate another accused to all and
sundry.





The
evidence of the defence witness called to support the alibi of
accused no. 3 and 4 were unable to support the alibis. Nothing more
need be said about them.





Considerable
argument was devoted in the Court a quo to the question why
Maleagi Rasta was not one of the suspects on the identification
parade, in view of the evidence of several witnesses, pointing a
finger of accusation to him. Van Zyl explained that he had arrested
Maleagi, but he had an alibi to the effect that he had been playing
soccer at Grootfontein on the date and time in question. The Court
accepted Van Zyl’s evidence in this regard, which in turn was based
only on the alleged statement by a police constable at Grootfontein
that Maleagi Rasta was playing football as he alleged.





The
policeman’s name was not mentioned and no statement was taken from
him and he was not called as a witness by the State or the Court.
Van Zyl’s evidence in this regard was pure hearsay. The Court,
which had on other aspects severely criticised Van Zyl, now accepted
Van Zyl’s hearsay evidence without demur. It would have made the
case against accused no. 3 stronger, if Maleagi Rasta’s alleged
alibi was properly investigated and the witnesses supporting the
alleged alibi called and their evidence weighed in the scale. If
those witnesses could not support his alibi, Maleagi should have been
placed on the identification parade and charged, if pointed out. But
even if Maleagi was involved, that would not mean that accused no. 3
did not participate. The same applies to the possible involvement of
Gustav Tjambula.





There
was some evidence that a video camera was used by Van Zyl to record
the pointings out by accused no. 3 to Van Zyl and Kaundu, but no
recording was produced in Court. According to Van Zyl there was no
record because of some defect.





Neither
the murder weapon the AK47, nor any of the stolen goods were
recovered. Many of the witnesses for the State and defence were
prison inmates where there appears to be an abundance of potential
and even professional witnesses and advisors, able to concoct any
story required. Pitted against escalating serious crime and
dangerous and devious criminal gangsters are a few police
investigators and policemen with sufficient experience, expertise and
dedication to bring criminals to justice, but their numbers are
dwindling all the time.





SECTION
IV


CONCLUSION:


The
extremely difficult question is now whether the evidence adduced,
much of which are flawed, was enough to prove the case against
accused no. 3 beyond all reasonable doubt, whilst there remained a
reasonable possibility that one or more of the suspects Gustav
Tjambula, Marcus Geiseb, or Maleagi Rasta were participants.





The
case before the Court a quo was difficult to decide and so is
the appeal before this Court.





I
have criticised in the course of this judgment several aspects of the
judgment of the Court a quo. However the Court was justified
in accepting the testimony of Van Zyl and Kaundu and rejecting that
of the accused no. 3 in regard to his confessions and admissions. In
view thereof that the crimes were proved beyond reasonable doubt,
section 209 of the Criminal Procedure Act 51 of 1977 allows a
conviction to follow without more.





As
I have shown in my analysis of all the evidence, including the
circumstantial evidence and the probabilities in the case, there is
substantial additional evidence and other incriminating factors to
support the verdict of the Court a quo.





For
these reasons I am satisfied that it has not been shown that the
Court a quo came to a wrong conclusion in convicting accused
no. 3 as one of the participants in the gruesome crimes committed at
Olifantsfontein on 3 September 1994.





Consequently,
the following order should be made:





The
appeal is dismissed and the conviction and sentence confirmed.


















O’LINN,
A.J.A.


















I
agree


















STRYDOM,
A.C.J.














I
agree


















TEEK,
J.A.































COUNSEL
ON BEHALF OF APPELLANT



MS.
E. SCHIMMING-CHASE



INSTRUCTED
BY:



DIRECTORATE
OF LEGAL AID



COUNSEL
ON BEHALF OF RESPONDENT



MS.
A. VERHOEF



INSTRUCTED
BY



THE
PROSECUTOR-GENERAL







1
S v Lubaya 2001 (4) SA 1251 at 1255 per B-1257H.


See also S v
Shuping and Others, 1983 (2) BSC at 119.




2
See in this regard the decision of this Court in David Silungwe v
The State 8th December 2000; Albertus Monday v the State
21/2/2000, both not yet reported and the decisions referred to
therein; State v Dawid, 1990 NR 206 HC.




3
1991 (2) SA 860