No. SA 37/2008
THE SUPREME COURT OF NAMIBIA
the matter between
UUNONA FIRST APPELLANT
DAVID SECOND APPELLANT
Maritz, JA, Strydom,
AJA et Mtambanengwe, AJA
on : 02/06/2009
AJA:  This is a matter
which originated in the Regional Court, Walvis Bay, where the
appellants were arraigned on various serious charges. After a trial,
in which the appellants defended themselves, they were convicted and
sentenced as follows:
1 - Housebreaking with the intent to commit an offence unknown to the
State; five (5) years imprisonment.
2 – Robbery with aggravating circumstances; eight (8) years
3 – Attempted murder; ten (10) years imprisonment.
8 – Contravening sec. 2 of Act 7 of 1996 – Possession of a fire
arm without a licence; one (1) year imprisonment.
9 – Contravening sec. l 33 of Act 7 of 1996 – being in possession
of ammunition without being in lawful possession of a firearm capable
to fire such ammunition; six (6) years imprisonment.
appellant was convicted as follows:
1 – Housebreaking with intent to commit an offence unknown to the
State; four (4) years imprisonment.
2 – Robbery with aggravating circumstances; eight (8) years
3 – Assault with intent to do grievous bodily harm; four (4) years
appellants were not satisfied and launched an appeal to the High
Court against both their convictions and sentences imposed by the
Regional Court. There was some delay in the hearing of the matter as
the legal representative appointed for the appellants withdrew from
the appeal. Another legal representative was then appointed amicus
curiae to assist the Court
and, when the matter was thereupon heard in the High Court, only the
second appellant was present.
to the hearing of the appeal in the Court a
quo, the Court indicated to
counsel that it would require argument in regard to certain legal
questions. These were whether, on the evidence, it could still be
said that housebreaking was committed with intent to commit an
offence unknown to the State. The Court also invited argument in
regard to Counts 2 and 3, namely whether the convictions did not
amount to a splitting and whether the separate sentences imposed on
Counts 8 and 9, in regard to the first appellant, should not have
been taken together and only one composite sentence have been imposed
by the Regional Court.
the Court did not limit counsel’s argument to the legal issues
posed by it, both counsel arguing the matter, Mr. Corbett, who
appeared amicus curiae,
and Ms. Verhoef, who appeared for the State, only addressed the Court
on the issues raised by the Court. No argument was presented to the
Court concerning the merits of the appeal and no opportunity was
given to second appellant, who was present in Court, to address the
Court on the merits. According to this appellant he, in any event,
did not understand the proceedings which were taking place.
the Court a quo
subsequently handed down its judgment it was evident that the Court
has altered some of the convictions as well as some of the sentences.
It firstly changed the conviction on Count 1 from housebreaking with
the intent to commit an offence unknown to the State to housebreaking
with the intent to steal. This related to the convictions of both
appellants. It however left the sentences imposed by the regional
magistrate on that count undisturbed. In regard to the second
appellant the Court set aside the conviction of assault with intent
to do grievous bodily harm on count 3 and substituted therefor a
conviction of attempted murder. The Court also set aside the
sentence of 4 years imposed by the regional magistrate on that count
and substituted a sentence of seven (7) years imprisonment. Thirdly
the Court set aside the separate sentences imposed on counts 8 and 9,
in regard to first appellant, and substituted therefor one sentence
after taking together the two counts for purposes of sentencing.
This did not bring about a change in the sentences imposed as the
composite sentence remained a period of 18 months.
is no problem with the alterations brought about by the Court a
quo in regard to counts 1,
8 and 9. However, in regard to count 3 the second appellant was now
convicted of a more serious crime and heavier sentence was imposed.
This happened without any prior notice to the second appellant that
the Court, in the event that the appeal was unsuccessful, would
consider these changes.
the appellants were not satisfied with the outcome of their appeals
in the High Court and they applied for leave to appeal to this Court.
The applications were dismissed. They then petitioned the Chief
Justice and leave was granted to them both to appeal against their
convictions as well as the sentences imposed.
matter was due to be heard by this Court during its session in March
2009. On that occasion the first appellant terminated the services
of Mr. Grobler, the counsel appointed by Legal Aid. In order to
afford first appellant an opportunity to obtain another legal
representative through Legal Aid the matter was postponed to the next
session of the Court and was then set down for 2 June 2009. He was
also informed that the hearing of the appeal would not be delayed
indefinitely and that he may be well advised to prepare himself to
argue his appeal in person should his application for legal aid be
a day before the matter was due to be heard Legal Aid informed the
Registrar that the first appellant’s application for further
assistance was unsuccessful. The result was that when the matter was
called on the 2nd
June the first appellant was again without legal representation.
After the situation was explained to him by the Court through an
interpreter, the first appellant informed the Court that he would
argue his appeal in person. The matter then stood down until 18 June
2009 amongst other, to allow him more time to prepare his argument.
Handwritten Heads of Argument were submitted by the first appellant
and the matter could proceed on the extended date. The first
appellant addressed the Court through an interpreter who also
interpreted the further proceedings to the appellant.
background to this appeal was testified to by one Gavin Robberts who
stated that on the night of 18 October 1999, and at Swakopmund, he
was woken by the sound of breaking glass. He went to investigate.
He armed himself with his pistol and took with him a long metal
torch. When he entered the lounge he was set upon by two persons.
Although the lights were not switched on, street lights from outside
the house lit up the room to such an extent that he could see that
the person in front, closest to him, had something in his hand
although he could not make out what it was. The other person, who
was behind this attacker, held a knife in his hand. Robberts tried
to ward off his attackers by hitting at them with his torch as he
could not activate his pistol. He was all the time retreating
towards his bedroom and he was hitting at the heads and arms of the
attackers. He was stabbed in his neck and arm. The blade of a knife
broke off in his neck and had later to be surgically removed.
some stage Robberts capitulated and went to sit in the corner of his
bedroom. He told his attackers to take what they wanted and to
leave. The taller of the two men then switched on the light in the
room and went to rummage through his bags. The only description
given by Robberts of his attackers was that the one was taller and
younger than the other. When he was attacked this person was at the
back, behind the shorter attacker.
further testified that during the struggle he lost his pistol. After
the light was switched on it could be seen lying on the floor. The
shorter of the two attackers then picked it up, walked up to where
Robberts was sitting on the floor and tried to shoot him. Luckily
for Robberts he either did not know how to operate a firearm or could
not operate this particular pistol because, Robberts testified, it
was a single action pistol which needed to be cocked by hand before
it could be fired. In order to stop the attacker from working out
how to operate the pistol, Robberts again used his torch with which
he hit the attacker on the head and kicked him away from him. In the
process Robberts also switched off the light and was able to set off
the alarm system. They then both fled but took with them the torch
and the pistol.
was alerted by the alarm and after they had arrived, an ambulance was
called and Robberts was taken to the hospital. Later that morning
the police brought the second appellant to the hospital and although
Robberts initially identified him as one of the attackers he later
informed the police that he was not able to positively identify any
one of them.
further investigation the police found a red woolly hat as well as a
dagger inside the house. These articles did not belong to Robberts.
the police came to the hospital where Robberts was treated they saw
the first appellant emerging from the hospital. He had bandages
around his head and, when asked by the police what had happened to
him, he told them that he had been attacked by a friend when he
defended a lady. He said that he would later lay charges against his
police became suspicious, and when they were told by Robberts that he
had defended himself with a torch by hitting his attackers on the
head, the police went in search of the first appellant.
that morning the police found the two appellants together with three
other persons in a shack. The second appellant also had a wound on
his forehead. They requested both to accompany them to the hospital
where Robberts was. On their way to the police vehicle the first
appellant disappeared. Second appellant put up some resistance but
he was subdued and taken to Robberts. Because Robberts at that stage
identified second appellant as one of his attackers, the appellant
was arrested and locked up.
Matongwe, who found the red woolly hat in the house of Robberts,
testified that he recognized the hat as belonging to the first
appellant. He stated that he knew the first appellant well and saw
him on the previous day of the robbery, as well as on other
occasions, wearing the hat. The police then continued their search
for the first appellant.
first appellant was found a few days later in the shack of one
Gabriel Shikongo. The police also found the pistol belonging to
Robberts lying on a bed in the shack. When questioned, Shikongo
stated that the first appellant, when he came there, had the pistol
with him. When the first appellant was confronted with the
statement, he just kept quiet.
first issue which must be decided by this Court is the alleged
irregularities committed in the Court a
quo, namely that the
appellants were not given an opportunity to address the Court; did
not understand the proceedings and the fact that the first appellant
was absent when the appeal was heard.
Muvirimi, counsel for the State, conceded the above irregularities.
He, however, submitted that it is only an irregularity which resulted
in a failure of justice which would vitiate the proceedings. In this
regard counsel referred to S
v Davids; S v Dladla, 1989
(4) SA 172 (N).
the case of S v Davids; S v
Dladla, Nienaber, J, as he
then was, set out the law in regard to what constitutes an
irregularity and what the Court’s approach thereto should be. On p
193D to E the learned Judge stated the following:
criminal proceedings to be vitiated and a conviction to be quashed
there must first be an irregularity. An irregularity occurs
‘whenever there is a departure from those formalities, rules and
principles of procedure with which the law requires such a trial to
be initiated or conducted’. (S
v Xaba, 1983
(3) SA 717
728D). An irregularity will thus be committed if a rule of practice,
procedure or evidence, or a precept of natural justice recognized in
our law, is disregarded.
every irregularity, however, is fatal. To be fatal to the
proceedings the irregularity must result in a failure of justice;
there will be no failure of justice if there is no prejudice to an
accused, and there will be no prejudice to him if he would have been
convicted in any event, irrespective of the irregularity. Prejudice
must, in principle, be proved.”
where a conviction would in any event follow on the evidence before
the Court, untainted by the irregularity, there is no prejudice to an
accused and a conviction would be upheld.
the law, as set out by counsel for the State, he submitted that the
evidence, untainted by the irregularities, still proved the guilt of
both appellants and that the appeals should therefore be dismissed.
Counsel submitted that in balancing the interest of society against
that of the appellants the Court has a duty to ensure that guilty
persons do not escape conviction so that the integrity of the
judicial process is upheld.
further pointed out what was stated by Mahomed, CJ, in the case of S
v Shikunga and Another, 1997
NR 156 (SC) at
170F to 171D in
regard to errors arising from a constitutional breach. In this
regard the learned Chief Justice stated that there was no
justification for setting aside on appeal all convictions following
upon a constitutional irregularity committed by a trial court, and he
concluded that the test proposed by the common law was adequate also
in relation to constitutional errors.
in both the above cases, the Courts qualified the general rule and
stated that where the irregularity impaired a fundamental facet of
the administration of justice or when it could be said that the
irregularity was so fundamental that in effect there was no trial,
then the convictions should be set aside.
the Davis and Dladla-case
Nienaber, J, collected
various examples where the courts set aside convictions because the
irregularity committed was such that it culminated into a failure of
justice. Inter alia, the
Court referred to the prerogative of an accused to present his
defence and to be able to understand the proceedings. (See the cases
referred to in the judgment.)
Edition by Johann Kriegler, the learned author, also with reference
to various court cases, referred to instances where proceedings were
set aside as a result of irregularities which vitiated the
proceedings. (See p 765 to 769). In regard to an accused’s right
to address the Court the following is stated on p 768:
verontagsaming van die beskuldigde se betoogreg oor die algemeen
minder ernstig is as uitsluiting van sy getuienis en meermale nie as
fataal benadelend beskou is nie (R
v Cooper 1926
AD 54), kan dit weldeeglik in bepaalde omstandighede ‘n regskending
1975 (3) SA 694 (A))”.
disregard of an accused’s right to address the court is in general
less serious than the exclusion of his evidence and has frequently
not been considered as fatally prejudicial, it can, in particular
circumstances, most certainly cause a breach of the law.”) (My
the trial judge, per
incuriam, failed to give
the accused persons, who were undefended and were convicted of
robbery with aggravating circumstances and rape, an opportunity to
address the court in regard to sentence or to present evidence of
extenuating circumstances before imposing the death sentence. The
Appeal Court set aside the sentence and referred the matter back to
the Court a quo
to hear evidence and then to sentence the accused afresh.
the present matter first appellant was not even in Court when his
appeal was heard and he had no opportunity to make any submissions to
the Court. Furthermore the Court a
quo was at no stage
addressed on the merits of the appeal. Adv. Corbett, who acted
amicus curiae, only
argued the questions raised by the Court.
amicus curiae counsel
is appointed by the Court
to assist the Court. He or she may in the process also be of
assistance to the accused or appellant. However, an amicus
does not necessarily
represent the appellant and does not normally act on the instructions
of an appellant. Consequently concessions made by the amicus
do not bind an appellant
and cannot be held against him unless they are confirmed by him.
Because the amicus does
not speak for the appellant the latter should be present in Court and
be given an opportunity to address the Court. Where necessary an
interpreter should be provided to interpret to the appellant what is
happening in Court and to convey to the Court any submissions made by
the appellant. The appointment of an amicus
curiae is no doubt a
salutary practice and is mostly of great assistance to the Court as
most appellants, who cannot afford legal representation, are lay
persons without any knowledge of the law. However the role of the
amicus curiae must
not be lost sight of.
I am sure that this oversight by the Court a
quo happened per
incuriam it is also clear
from the Leso-case,
that does not save the situation. (p. 695G).
right of a party to be heard at all stages of the legal process is in
my opinion one of the fundamental tenets of the fair trial-principle
in our law and non-compliance therewith must, in the specific
circumstances of this case, vitiate the proceedings. However, this
irregularity relates only to the proceedings before the High Court.
the first appellant complained of irregularities during the
investigation process and during the trial, none were evident from
the record of the proceedings. The irregularities complained of are
in my opinion imaginary. Firstly second appellant complained that
the police did not hold an identification parade. However, Robberts,
who was the only person who could possibly identify his attackers,
had informed the police that he could not make any positive
identification. Secondly second appellant complained that during the
trial Robberts made a dock identification. This is untrue. Thirdly,
it was said that the Regional Magistrate, after asking some questions
to a witness Gariseb, did not then give appellant an opportunity to
ask further questions to the witness. There was no witness with the
name of Gariseb. If appellant meant the witness Gurirab then it is
clear that the questions asked by the magistrate and the answers
received in no way implicated the appellant.
the reasons set out hereinbefore, I am of the opinion that the Court
should set aside the proceedings and orders of the Court a
question now is whether we should refer the matter back to the High
Court to hear the appeals afresh before a differently constituted
Court, or whether we should deal with the appeals proper and bring
the matter to finality. Given the requirement of fairness at
hearings on every level of the appeal process, the former is
generally the preferred practice unless, of course, compelling
considerations require of this court to finally dispose of the
appellants requested the Court to deal with the issues raised in the
appeals and bring them to finality. We heard full argument on the
issues raised in the appeals and in my opinion we are in as good a
position as the High Court would have been to deal with them. The
appeal of the appellants was furthermore plaqued by inordinate delays
and a referral back to the Court a
quo will only bring about
further delay. Because of the conclusion to which I have come in
regard to the appeal of the second appellant, a referral back to the
High Court will only prolong his unjustifiable stay in prison. Also
in regard to the first appellant it is necessary that finality in
this long ongoing process be reached. I am therefore of the opinion
that compelling considerations of fairness and justice justifies this
Court to deal with the appeals and finalise them.
first appellant denied any complicity in the commission of the
crimes. He flatly denied that the red woolly hat belonged to him or
that he was in possession of Robberts’ pistol. He changed his
explanation under cross-examination as to how he sustained the head
injury and some of his explanations are, to say the least,
farfetched. I am not persuaded that the learned regional magistrate
was wrong in rejecting his evidence as false.
the evidence against the appellant is circumstantial, taken together
they spun a net from which the appellant could not escape.
regard to first appellant there is direct evidence from Robberts that
he hit the shorter of the two attackers on his head, using the metal
torch. First appellant had a wound on his head when he was found by
the police. The red woolly hat, found by Matongwe at scene of the
crime, was recognized by him as belonging to the first appellant with
whom he had been well acquianted. This evidence was accepted by the
trial court and no reasons were put forward why this finding should
be disturbed. The fact that the police subsequently kept up their
search for this appellant supported, in my opinion, the evidence of
Matongwe and, ultimately, it proved that the police had good reasons
to tie him to the crime. The finding of the pistol in the presence
of the appellant and the evidence of Shikongo that first appellant
had the pistol on his person when he came to his shack clinched the
case for the State. Although the description of Robberts of his
attackers does not count for much at least it did not eliminate the
first appellant as one of the offenders.
my opinion the State proved beyond reasonable doubt first appellant’s
complicity in the commission of the crimes for which he stood trial,
and the appeal against his convictions must be dismissed.
appellant was also given leave to appeal against the sentences
is no doubt that the sentences which were imposed were heavy, more
particularly the cumulative effect thereof. It is however trite that
sentencing is the domain of the trial court and that a Court of
Appeal would only interfere with the exercise of the discretion of
the trial court on certain limited grounds. (See generally S
v Van Wyk, 1993 NR 426 (SC)
At 165 and S v Alexander,
2006(1) NR 1 (SCA) at 4D-5E). In the present instance there is no
complaint of a misdirection committed by the trial court when it
imposed the sentences and none is evident from the record. It is
however still the duty of this Court to consider whether the sentence
individually, or taken cumulatively, are such that it can be said
that they are disturbingly inappropriate and whether this Court,
sitting as a Court of first instance, would have imposed a different
sentence. Only if there is such a difference between the sentence
this Court would have imposed, and that which was imposed by the
trial Court, can it be said that the trial court was unreasonable,
would it be competent for this Court to interfere with the sentence.
(See S v M 1976
(3) SA 644 (A) at 648H – 650F).
appellant has various relevant previous convictions which clearly
demonstrate his propensity to commit serious crimes. Robberts was
attacked in his house and set upon with knives. He was stabbed in
his neck and upper arm. It is common knowledge that the neck is a
particularly vulnerable area and an attack on that part of the body
may very well be fatal. The attack on Robberts was serious and went
on until his resistance was overcome.
callousness of the first appellant was clearly demonstrated when he
picked up Robberts’s pistol, put it to his head, and pulled the
trigger. Luckily for Robberts first appellant did not know how to
load and fire the pistol. At that stage Robberts posed no threat to
second appellant nor did he put up any resistance. He had completely
capitulated and was sitting down on the floor of the bedroom. If
second appellant had been successful in firing the gun his action
would have amounted to nothing less than an execution.
the above evidence is clear proof that the first appellant is a
dangerous criminal who would brook no resistance to fulfill his
criminal intent. The only way to protect the public against people
like him would be a lengthy sentence of imprisonment and the hope
that, when he is again released he would mend his ways.
my opinion there are no grounds on which this Court can interfere
with the sentences imposed by the Regional Court, either in regard to
the sentences imposed individually, or when considering the
cumulative effect thereof. In the result the appeal against the
sentences imposed is also dismissed.
the second appellant is in the same boat as the first appellant
irregularity that was committed in the Court a
quo, Mr. Grobler, who
represented this appellant, indicated that he would not be relying on
that irregularity and requested the Court to finalise the matter. He
submitted firstly that there was not sufficient evidence to convict
the appellant on any of the charges laid against him and that he
should have been discharged by the regional magistrate after the
close of the State’s case. In the alternative he submitted that
the Court a quo erred
in convicting the appellant of a more serious crime, namely that of
attempted murder on the charge of assault with intent, and increasing
his sentence of four years imprisonment to seven years imprisonment
without any prior notice to him. From this it follows that the
appellant would only be guilty of the crimes of housebreaking (Count
1) and robbery (Count 2) as the conviction of assault with intent was
part of the robbery and would constitute a impermissible duplication
regard to the alternative argument Mr. Grobler referred the Court to
cases such as S v Swanepoel
1945 AD 444 at p 451; S
v du Toit 1979 (3) SA 864
(A); S V Abrahams 1983
(1) SA 137 (A) at 146C and S
v Naidoo 1987 (3) SA 834
reading of the above cases shows that a rule of practice requires in
those circumstances that an appellant should be given prior notice
whenever a Court of Appeal considers either an increase of sentence
and/or to alter a conviction into a conviction of a more serious
crime. Failure to do so would have the result that the Court cannot
increase the sentence or convict the appellant of a more serious
crime. However because of the conclusion to which I have come on Mr.
Grobler’s main submission I need not deal further with this issue.
Grobler submitted that there was no evidence which tied the second
appellant to the crimes charged and that nothing incriminating was
found on the appellant. Furthermore counsel submitted that the
evidence, such as there was, did not raise an inference, as the only
reasonable one, of the appellant’s guilt.
agree with counsel. The evidence relied upon by the State is
circumstantial and although circumstantial evidence can be conclusive
in proving the guilt of an accused, the evidence in this instance is
of a neutral nature and raises no more than a suspicion which falls
short of proof beyond reasonable doubt.
are three main grounds on which the State’s case against the second
appellant is based. It is common cause that Mr. Robberts was
attacked by two persons. The State relies on his description of his
assailants as one being taller than the other. This conforms with
the fact that the second appellant is taller than the first
appellant. However, this only means that the description does not
exclude the second appellant and although it could therefore fit the
second appellant it could also fit any other person who is taller
than the first appellant.
second piece of evidence relied upon by the State was the fact that
some time after the robbery second appellant was found in a shack
with other people where first appellant was also present. This may
show that there was a closer association between first and second
appellants than what they had wanted the court to believe. Yet, to
conclude from that that the second appellant was involved in the
commission of the crimes is purely speculative.
evidence, as I understood counsel for the State, which clinches the
matter in favour of the State, is the head injury of the second
appellant. This evidence, counsel contends, placed the second
appellant at the scene of the crime and the other circumstantial
evidence must be evaluated in the light of this evidence. Together
the evidence amounted to an “unshaken edifice” in proving the
guilt of the appellant.
there is direct evidence by Mr. Robberts that he hit the smaller of
his attackers on the head there is no such evidence in regard to the
taller attacker except what was stated in general by the witness that
he fended his attackers off by hitting them with the torch on the
head and arms. Mr. Robbert’s evidence was that the taller man was
behind and at the back of the smaller person and whether in the
circumstances he was able to hit the taller man was left unclear.
Apart from the vagueness of the evidence I again find the evidence
inconclusive as far as the guilt of the appellant was concerned.
is again nothing which distinguish this evidence from the other
evidence relied upon by the State and to which I have referred
hereinbefore. This evidence does not identify the appellant as one
of the assailants who attacked Mr. Robberts on the fateful night.
Even if taken together with the other evidence I am satisfied that it
remains inconclusive as far as the guilt of the appellant is
concerned and it therefore does not raise the inference of guilt as
the only reasonable possibility.
was also reference to the fact that the appellant ‘resisted arrest’
and that that is a further indication of guilt. Second appellant
explained that he had previously broken his hand and the way the
constable was holding his arm was painful. He then tried to get out
of the painful grip by which the constable held him. This seems to
me to be a plausible explanation and nothing was done by the State to
refute this evidence. Even if the appellant was putting up some
resistance against arrest then that is as consistent with innocence
as it may be with guilt.
magistrate also found the second appellant to be a liar. However
bearing in mind that there was no evidence which incriminated the
second appellant the fact that he may have been lying was not enough
to tip the scales in favour of a conviction.
have therefore come to the conclusion that the appeal of the second
appellant must succeed.
the result the following orders are made:
1. In regard to the first appellant,
i.e. Mr. Salatiel Uunona, the appeal against his convictions and
sentences is dismissed.
2. In regard to the second appellant,
Mr. Josua David, his appeal succeeds and his convictions and
sentences are hereby set aside.
ON BEHALF OF 1ST
APPELLANT: In Person
ON BEHALF OF 2ND
APPELLANT: Adv. Z.J. Grobler
by: Legal Aid
ON BEHALF OF THE RESPONDENT: Adv. A. Muvirimi
by: The Prosecutor-General