CASE NO.: CC 04/2002
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
HYACINTH JAMES NINGISE
Accused 1
MACDONALD KAMBONDE
Accused 2
HENDRICK HENNY TSIBANDE
Accused 3
BRANDON DAVID OMSWA SIMILO
Accused 7
ISMAEL OAEB
Accused 9
VINCENT NDABULA MABUZA
Accused 10
MIKE SANDILE MABENA SKUMBUZA APANI
Accused 11
CORAM:
Silungwe, AJ.
Heard on:
2006.02.23-24; 2006.02.28; 2006.03.03; 2006.03.09;
2006.03.17;
Delivered on:
2006.03.24
______________________________________________________________________________
SENTENCE
[1] SILUNGWE, AJ: All seven accused have been convicted by this Court as
follows:
2
James H. Ningise (Accused 1) and Hendrick H. Tsibande (Accused 3):
Guilty as perpetrators on all four counts, namely: first and second
robberies with aggravating circumstances; and unlawful possession of a
machine gun or machine rifle and of ammunition in contravention of
section 29(1)(a), read with sections 1, 38(2)(a) and 32(2)(b) of Act 7 of
1996 (the Act);
Mike S. M. S. Apani (Accused 11):
Guilty on Counts 1, 3 and 4 as a perpetrator and on Count 2 as an
accomplice.
MacDonald Kambonde (Accused 2) and Ismael Oaeb (Accused 9):
Each Guilty on Count 2 as an accomplice;
Brandon D. O. Similo (Accused 7):
Guilty on Count 2 as an accessory after the after; and
Vincent N. Mabuza (Accused 10):
Guilty on the alternative count (to Count 2) of the theft.
At this stage, it is incumbent upon me to consider what condign sentences
should be meted out. In doing so, I am constrained to bear in mind not only
the main objectives applicable to sentencing, namely: deterrence, prevention,
3
reformation and retribution, but also the triad of three factors comprising the
nature of the crime or crimes committed, the personal interests or
circumstances of each accused and the interests of the community. See: S v
Tjiho 1991 NR 361 (HC) at 365B-E; S v Van Wyk 1993 NR 426 (SC) at 448B-C.
I propose to commence with the personal circumstances of the accused.
[2] James Ningise (Accused 1) is a 37 year old first offender who attained a
Grade 12 standard of education. He is a South African and a resident of Soweto
Township, Johannesburg. He comes from a family of 13 children; a sister of his
passed away recently as well as his brother, and one of his brothers is
seriously ill. He lost his mother in 1991. Although he is not married, he has
two children, one of whom is 17 years old but there is no one to pay school fees
for him. James once worked in a friend’s bakery; and at the time of his arrest,
he was a freelance male model and an escort of some well-to-do ladies. He was
arrested on November 17, 2000, and he has since been in custody awaiting
trial except for a period of 9 days during which he was an escapee and a
further period of 5 months imprisonment for escaping from lawful custody.
James laments the severe pain and discomfort he is experiencing from a bullet
lodged next to his spine. In addition, his right index finger has been
amputated.
[3] As against the foregoing personal circumstances, it is reiterated for puposes
of emphasis only that James (Accused 1) and Mike (Accused 11) played a
4
leading role in their planning to ensure a successful execution of the first and
second robberies. James shot and wounded Kapira during the second robbery
and Kapira returned fire that resulted in James’ agonizing bullet-pain which he
has since been experiencing; in other words, the bullet remains a thorn in his
flesh.
[4] The next accused is MacDonald Kambonde (Accused 2). He is 35 years old
a first offender and a Namibian citizen. He grew up in Windhoek where he
attended school up to Standard 9 which is the modern equivalent of Grade 11.
He is married and has five children who live with their mother in Windhoek. He
lost his own mother in 1983 who was survived by her husband (his father) who
is now a pensioner. At the time of his arrest on November 17, 2000, he was
employed by Professional Security Service CC (PSS) as a security officer and
driver and was earning N$900.00, plus N$30.00 danger allowance, per month
with which he was able to support his family. He has since lost his job and so
also the close relationship that he used to enjoy with his family. He is currently
busy studying for a degree in Theology; this is his first year and the course is
expected to last 4 years. I pause here to wish him success in his studies.
[5]
At the time of the commission of the second robbery, MacDonald was
driving his company’s armoured Toyota bakkie, in the process of transporting
the sum of N$5.3m from Windhoek to Ondangwa.
5
[6] The other crewman was Kapira who was later shot in the abdomen by
James but who survived to give a narrative of his encounter with the robbers
and of what MacDonald did or omitted to do in the matter.
[7] Had it not been for MacDonald’s obvious role in planning and co-operating
with the robbers, that robbery would probably not have materialised. His role
was thus critical to the successful execution of the second robbery.
[8] When MacDonald was cross-examined as he gave evidence in mitigation, it
came to light that at the time that he started working for the PSS company, he
was a trial-awaiting individual on a charge of robbery with aggravating
circumstances. He had previously been employed by Grey Security Services as
a security officer when he was arrested on July 20, 1999. He was later
convicted as charged on October 9, 2002, and sentenced to 11 years
imprisonment. Of course, that conviction does not count as a previous
conviction for the purposes of this case.
[9] I will now consider the personal circumstances of Hendrick H. Tsibande
(Accused 3), a Namibian citizen. Although he opted not to testify in mitigation
(no adverse inference flows from this as he was exercising his constitutional
right), Mr Christians, his learned legal representative, placed before me the
following personal circumstances from the Bar. Hendrick is 44 years old and a
6
first offender. Although unmarried, he is a father of four children, aged between
6 and 14 years, all of whom are attending school.
[10] At the time of his arrest (on December 20, 2000) he was a self-employed
businessman who owned two shebeens. He is a qualified plumber and used to
do contract work in his private capacity. Prior to Namibia’s attainment of its
independence in 1990, he was employed as a plumber in the Ministry of Works
(Transport and Communications) for four years.
[11]
At the time of his arrest, Hendrick used to make provision for the
maintenance of his children. He had to sell his businesses in order to meet
some of his legal expenses that had arisen as a result of this case.
[12] He has been in custody, trial-awaiting, since December 20, 2000, i.e. a
period of 5 years and 3 months.
[13]
As against his personal circumstances stands the evidence of his
fingerprint lifted from the dashboard of Schutt’s Nissan bakkie which links him
to the commission of both first and second robberies as that bakkie featured
prominently in both robberies.
[14]
This brings me to a consideration of the personal circumstances of
Brandon D. O. Similo (Accused 7), also a Namibian citizen. This accused opted
7
not to give evidence in mitigation and what I said in respect of Hendrick applies
to him as well. However, his learned legal representative, Mr Murorua, placed
before me Brandon’s personal circumstances from the Bar as follows. Brandon
is a 32 years old first offender who was gainfully employed (in the Ministry of
Health and Social Services) at the time of his arrest on November 22, 2000, at
75 Teresa Street, Camps Bay, Cape Town, South Africa. Since his arrest,
Brandon has spent 5 years and 3 months in custody awaiting the disposal of
the case.
[15] Brandon completed senior secondary school education (i.e. Standard 10)
and attended the University of Namibia (UNAM) but later dropped out due to
financial constraints. He is a father of two children, a 6 year old son who is
now in Grade 1 and an 8 year old daughter currently in Grade 2.
[16]
Brandon’s father passed away whilst he was in Standard 2. He was
survived by this accused’s now sickly mother who is suffering from a heart
disease and also from high blood pressure. The accused has one elder brother
and three young sisters, plus an ailing and blind grandmother. The accused is
a breadwinner for his family and this has been adversely affected since his
arrest. He gave full co-operation to the authorities from the time of his arrest
and he volunteered to be brought back to Namibia, following the withdrawal of
the bail application in Cape Town.
8
[17] However, the spirited manner in which he went about not only to secure
medical attention for James but more importantly to help him evade justice;
coupled with the lies that he told to shield Mike whose cell-phone he had used
to contact Dr Nghalipoh; and the subsequent lies he told to shield both James
and Mike militate against his interests as aggravating factors.
[18] I will now turn to the personal circumstances of Ismael Oaeb (Accused 9).
He is a 35 years old Namibian citizen and a first offender. He is the second
born in his parents’ family. The parents’ marriage broke down whilst he was
still young. As his mother was not earning much in her job, he opted to live
with his father most of the time. His mother lost her job while he was in
Standard 8. However, he managed to complete schooling and thereafter went to
UNAM for one year, but his lack of financial support could not allow him to
remain there much longer. He had been studying for a Bachelor of Science
Degree.
[19] After his premature departure from UNAM, he worked for Old Mutual. He
later left Old Mutual and got a job elsewhere as a financial broker, the job he
was doing at the time of his arrest. By then, he had embarked on part-time
marketing studies at the Polytechnic. His parents are alive; and he comes from
a family of four brothers (including himself) and three sisters.
9
[20] Although not married, Ismael has 5 children with different mothers. At the
time of his arrest, he was supporting two of those children.
[21] He is now pursuing a 4 year degree course in Theology and he already has
obtained certificates in biblical studies. I wish him success in his academic
endeavours.
[22] Ismael has been in custody awaiting trial for 5 years and 3 months. He
implores the Court to exercise mercy upon him by giving him a suspended
sentence.
[23] Mr Murorua submits on Ismael’s behalf that his criminal conduct consists
of renting a house at 1709 Agnes Street, Khomasdal, at which the then
seriously wounded James was treated by Dr Nghalipoh. However, the truth of
the matter is that Ismael’s criminal conduct goes beyond that.
[24] Not only did he make common cause with James and Mike during the
planning stage, but he also told lies to protect them; he drove to Cape Town
using his VW Golf car and travelled with, inter alia, Brandon; at the South
African-Namibian border, he travelled in his car with Mike, the latter being
behind the steering wheel; he was found by the South African Police at house
No. 75 Teresa Street, Camps Bay, Cape Town, wherein the sum of
N$909
250.00 was found, some five days after the robbery had occurred, which was
10
part of the money stolen during the second robbery in Windhoek; and he told
lies in an effort to shield Mike against detection. So much for Ismael.
[25] Time has now come for me to consider Vincent’s personal circumstances.
He is a South African citizen and a first offender aged about 34 years and 8
months. He was born in Nelspruit, South Africa. He is neither married nor has
he fathered any children. He attended school in Swaziland up to Grade 12 and
thereafter became a soccer player with a monthly income of R3000.00. He is in
possession of a coaching certificate, presumably in soccer. His parents have
both passed away but he has two brothers and two sisters, one of whom
passed away in 2001.
[26] Vincent has been rendering financial support to his brothers, including
paying their school fees and buying them clothes. Since his incarceration in
respect of this case, he has been unable to fulfil his obligations towards his
brothers.
[27] As Vincent grew up, he only had bare necessities of life and his parents
used to sell fruits and vegetables from their garden.
[28] He has been in custody awaiting trial since November 22, 2000, that is, a
period of 5 years and 3 months. He co-operated fully with the police.
11
[29] He concedes that although he told lies during the bail application in Cape
Town, once he was brought to Namibia, he told the truth. He volunteered a
statement to Commissioner Becker not to gain favourable treatment but
because he was innocent.
[30]
Mr Neves submits on Vincent’s behalf that his client was not at all a
leading figure in this matter; that the role he played was significantly less than
that of the other accused; that he is a positive, intelligent and co-operative
person; that he is good human material; and that he is not a danger to society.
[31] It now remains for me to consider the personal circumstances of Mike S.
M. S. Apani who, at this stage, continues to represent himself. He hails from
Durban but has a house in Johannesburg where he and his family live. But his
mother lives in Durban. He is a 38 year old South African and a first offender.
He is married with 6 children two of whom with his wife. Three children from
other women live with his mother in Durban, a pensioner. The fourth one, who
is aged 4 years and 9 months, lives in Namibia with the Namibian mother. His
eldest son is 22 years old and has completed Grade 12 standard of education
but he is still unemployed. Two girls are aged 17 years and 10 years,
respectively and two other sons are aged 11 years and 7 years, respectively. He
comes from a family of two: his young sister and himself. He attained Grade 12
standard of education and became self-employed. He deals in smashed motor
vehicles, rebuilds them and then sells them. He owned two mini buses that he
12
operated as taxis which gave him about R5000.00 –R6000.00 per month
(presumably put together). After his arrest, the bus service came to an end.
Recently, he received a message from Johannesburg to the effect that his house
rent had fallen into arrears amounting to R20,000.00 which has accumulated
over the past four years and is now due and owing to the Municipality.
[32] He implores the Court to take into account the period of about 5 years
and 4 months spent in custody trial-awaiting.
[33] He prays for mercy to be exercised in his favour so that sentences to be
passed run concurrently.
[34] During cross-examination, he told the Court, inter alia, that when he was
arrested in this case, his Namibian girlfriend was pregnant. He is aware of the
Karibib robbery case (S v Willem Swartz and Others CC 108/1999) in which the
accused, some of whom South Africans, were convicted of robbery with
aggravating circumstances involving N$4,5m, which resulted in prison
sentences ranging from 8-20 years.
[35] He testified that although he had been described as the mastermind in
this case, there was no evidence to that effect. As was shown in the judgment
on the merits, there was no dispute that he had arranged accommodation at
Falazza’s residence not only for himself, but also for James Ningise and Vincent
13
Mabuza; that when crossing the border into South Africa, he was the one that
drove, not his own BMW car, but Ismael Oaeb’s VW Golf car; among the
accused there present, he was the only South African; they all ended up in
house No 75 Teresa Street, Camps Bay, Cape Town; it is not in dispute that he
knew the landlady; I accepted the evidence of the South African Police officers
who had raided that house; their evidence shows that Mike prodced a bunch of
keys and on being asked which one could unlock a padlock securing a plastic
bag, that after speaking to Vincent Mabuza in Xhosa or Zulu, Mike pointed out
the key that unlocked the padlock and part of the money in Namibian currency
- the subject of the second robbery - was found therein and became an exhibit;
and reference was further made to cell-phone calls that had been made during
and around the material times, let alone the fact that Mike’s cell-phone had
been used by Brandon Similo for the purpose of inviting Dr Nghalipoh to attend
to the then seriously wounded James Ningise. I was thus persuaded to come to
the conclusion that Mike Mabena was possibly the mastermind in the matter
and have no hesitation in affirming this conclusion.
[36] It is time now to reflect on the nature of the crimes for which the accused
stand convicted as well as on the interests of the community.
[37]
It is indisputable that the two principal charges, to wit: the first and
second robberies with aggravating circumstances are “extremely serious
offence(s)”. See: S v Nombeulu 1996 (2) SACR 396 (E) at 406i-j – 407a; S v
14
Mathews Matheus judgment case number CA 74/2000 delivered on December
21, 2001 (unreported); James Boetie David v The State CA 5/1995; and S v
Willem Swartz and Others CC 108/1999. These crimes were not only
premeditated but were, more importantly, ingeniously planned and executed. A
most aggravating feature of the second robbery in particular was the blatant
and ruthless use of violence with a machine firearm thereby occasioning
serious bodily harm to Kapira and obviously exposing him to grave danger to
his well-being and to his life, let alone the damage that was caused to the PSS
Toyota bakkie and the disappearance of N$5,3m. As Jones, J. aptly remarked
in S v Nombeulu, supra, at 407d-e:
“This kind of violence is becoming more and more prevalent. People who
commit it show no mercy to their victims. They should know that their
conduct warrants their removal from society. Even first offenders who
commit a violent armed robbery like this should expect to serve a long term
of imprisonment when they are brought to justice. Society requires this for
its protection and as a mark of its disapproval. It is also necessary for
proper rehabilitation. Criminals capable of this degree of violence need to
learn new values.”
[38] And this Court, after referring to certain authorities regarding the crime of
robbery, had this to say in Mathews Mathews, supra, at p.10:
“We find ourselves in agreement with these judgments. In addition to its
seriousness, the crime has become significantly more prevalent in this
15
jurisdiction during recent years. As in the case of the Republic of South
Africa, our country too ‘at present suffers unprecented, uncontrolled and
unacceptable wave of violence, murder, homicide, robbery and rape. A
blatant and flagrant want of respect for the life and property of fellow
human beings has become prevalent. The vocabulary of our courts to
describe the barbaric and repulsive conduct of such unscrupulous
criminals is being exhausted. --- A court must be thoroughly aware of its
responsibility to the community, and by acting steadfastly, impartially and
fearlessly, announce to the world in unambiguous terms its utter
repugnance and contempt of such conduct.’”
(per Lombard, J., in S v Matolo en ‘n Ander 1998 (1) SACR 206 (O))
[39]
Further, in S v Steve Rico Kamahere and Kamaeibe Kazongaga, CC
89/1996, in a judgment delivered on November 14, 1997 (unreported),
Strydom, JP (as he then was) said:
“[I]n my opinion the aggravating circumstances present in the case by far
overshadow the mitigating circumstances placed before the Court. The
society must know that in circumstances such as these, the Court will step
in and protect those who are peaceful and orderly and will also protect
their possessions against robbers and thieves and this is also the message
the Court must send out to other would be offenders.”
[40] Mike Mabena has, in particular, invited the Court to pass a concurrent
sentence (as have James Ningise and Hendrick Tsibande in regard to Counts 1
and 2); and a “totally suspended sentence” has been pleaded on behalf of
16
Vincent Mabuza. It is here apposite, in the context of this case to refer to the
observations made in S v Karg 1961 SA 231 (A) at 236A-B:
“It is necessary to bear in mind that if sentences for serious crimes are too
lenient, the administration of justice may fall into disrepute and injured
persons may incline to take the law into their hands.”
[41] This was affirmed in S v Tcoeib 1992 NR 198 (HC) at 204A-C:
“It is not wrong that the natural indignation of interested persons and of
the community at large should receive some recognition in the sentences
that Courts impose, and it is relevant to bear in mind that if sentences for
serious crimes are too lenient, the administration of justice may fall into
disrepute and injured persons may incline to take the law into their
hands.”
[42] None of the accused shows any remorse as they all stubbornly maintain
their innocence in the matter.
[43]
Mr Christians implores the Court, on behalf of James Ningise and
Hendrick Tsibande, that sentences on Counts 1 and 2 should be ordered to run
concurrently while sentences on Counts 3 and 4 should be taken together for
purposes of sentence.
17
[44] While I find merit in Mr Christian’s submission concerning Counts 3 and
4, I do not accept the submission in regard to Counts 1 and 2 as these crimes
were perpetrated on different occasions and especially that the commission of
the first robbery was designed to facilitate the commission of the second one.
[45] It is submitted by Mr Murorua on behalf of MacDonald Kambonde and
Ismael Oaeb (Accused 2 and 9) that these accused did not play a leading role
in the planning and execution of the second robbery.
[46]
In the light of the evidence adduced in casu, I am satisfied that both
accused were cognizant of the criminal game plan; moreover, MacDonald
Kambonde was, in particular, obviously a participant in both the planning and
the execution of the second robbery. And for Ismael to have rented the facility
at No 1709 Agnes Street, Khomasdal, well in advance of the second robbery
and to have placed the said facility at the disposal of at least one of the
robbers, he obviously knew pretty well what the purpose of the facility was. As
regards, MacDonald, it is clear from Kapira’s evidence that he deliberately
facilitated the commission of the second robbery as he made common cause
with the robbers for his anticipated personal gain and sheer avarice. As
previously indicated, without MacDonald’s acquiescence and his role in the
criminal game plan, it is unlikely that the second robbery could have taken
place as it did.
18
[47] Mr Murorua further submits that the sentence currently being served by
MacDonald for robbery with aggravating circumstances be made to run
concurrently with the sentence to be imposed by the Court. I am not persuaded
by Mr Murorua as I do not think that MacDonald deserved such treatment.
[48]
Coming to Brandon, Mr Murorua asked the Court to exercise its
discretion, and to thus impose a caution and discharge or alternatively to
impose a sentence of imprisonment for two years wholly suspended on the
usual conditions. My immediate response is that I consider this submission to
be misconceived.
[49]
Mr Neves submits on behalf of Vincent Mabuza that the Court, in the
exercise of its discretion, should consider passing a totally suspended
sentence. In the circumstances of this case, I consider that there is no merit in
this submission.
[50]
As I have already dealt with Mike Mabena’s submission concerning
concurrent sentences on the two robbery charges, it is unnecessary to add to
what I have already said.
[51] In the interests of consistency, I bear in mind the sentences passed by
Maritz, J (as then was) in S v Willem Swartz and Others, supra, although that
case is distinguishable in certain respects, for instance, the N$4.5m which had
19
been the subject of the robbery, was recovered whereas, in casu, only the sum
of just over a million Namibian dollars was recovered.
[52]
In
sentencing
the
accused,
I
am
mindful
of
their
respective
blameworthiness, their personal circumstances as well as the time they have
spent in custody awaiting the disposal of this case.
[53] Consequently, the accused are sentenced as follows:
James Ningise (Accused 1):
Count 1:
15 years imprisonment
Count 2:
20 years imprisonment
Counts 3 and 4: are taken together for purposes of sentence. 3 years
imprisonment which is ordered to run concurrently with the sentence in Count
2. The sentences in Counts 1 and 2 are ordered to run consecutively. i.e. the
accused will serve an effective term of 35 years imprisonment.
MacDonald Kambonde (Accused 2):
Count 2:
20 years imprisonment which is ordered to run consecutively to
the sentence currently being served.
Hendrick H Tsibande (Accused 3):
Count 1:
15 years imprisonment
20
Count 2:
20 years imprisonment
Counts 3 and 4: are taken together for purposes of sentence. 3 years
imprisonment which is ordered to run concurrently with the sentence in Count
2. The sentences in Counts 1 and 2 are ordered to run consecutively. i.e. the
accused will serve an effective term of 35 years imprisonment.
Brandon D. O. Similo (Accused 7):
Count 2:
10 years imprisonment 3 years of which are suspended for a period
of 5 years on condition that the accused is not convicted of robbery
with aggravating circumstances or of the crime of being an
accessory
after
the
fact,
committed
during
the
period
of
suspension. The accused will thus serve an effective term of 7
years imprisonment.
Ismael Oaeb (Accused 9):
Count 2:
15 years imprisonment 3 years of which are suspended for a period
of five years on condition that the accused is not convicted of
robbery with aggravating circumstances or being an accomplice,
committed during the period suspension.
21
Vincent Mabuza (Accused 10):
Theft:
8 years imprisonment 3 years which are suspended for a period of
5 years on condition that the accused is not convicted of theft
committed during the period of suspension.
Mike S. M. S. Apani (Accused 11):
Count 1:
15 years imprisonment
Count 2:
20 years imprisonment
Counts 3 and 4: are taken together for purposes of sentence: 3 years
imprisonment which is ordered to run concurrently with the sentence in Count
2. The sentences in Counts 1 and 2 are ordered to run consecutively. i.e. the
accused will serve an effective term of 35 years imprisonment.
[54] In regard to the disposal of exhibits, I make the following orders:
[54.1]
In terms of section 34(1)(b) of the Criminal Procedure Act, 1977 (the
Act), it is ordered that the money as listed in Exhibit “ BON 1” (N$500,000.00)
and in Exhibit “BON 2” (N$409 250.000) in N$50.00 Dollar notes presently in
safekeeping at the Cash Service Centre of the First National Bank Limited in
Windhoek, being part of the money robbed on November 17, 2000, from City
Savings and Investment Bank, while being transported by PSS, and retrieved
22
by the Namibian and South African Police Services, be returned to First
National Bank.
[54.2] In terms of section 34(1)(b) of the Act, it is ordered that the Exhibits,
namely: money in the amount of N$205 000 at present in safekeeping by the
Commanding Officer Serious Crime Unit of the Namibian Police, being part of
the money robbed on November 17, 2000, from City Savings and Investment
Bank, while being transported by PSS and retrieved by the Namibian Police, be
returned to First National Bank.
[54.3] In terms of section 34(1)(a) of the Act, 1977 it is ordered that the
Exhibits, to wit: money of which the note numbers are listed in Exhibit FNB at
present in safekeeping at the Cash Service Centre of the First National Bank
Limited in Windhoek, be returned to First National Bank Namibia subject to
return of the moneys due to Immanuel Handjaba Kaukungua and Joseph
Heinrich insofar as it was taken from their respective bank accounts.
[54.4] In terms of section 34(1)(a) of the Act, it is ordered that Exhibit “1”, the
passport of Ismael Oaeb, be returned to him.
[54.5] In terms of section 34(1)(a) of the Act, 1977 it is ordered that Exhibit “3”,
the passport of Mike Sandile Mabena, be returned to him.
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[54.6] In terms of section 34(1)(a) of the Act, 1977 it is ordered that Exhibit “4”,
the passport of Brandon David Omswa Similo, be returned to him.
[54.7] In terms of section 34(1)(a) of the Act, 1977 it is ordered that Exhibit “5”,
the passport of Arvo T. N. M Haipinge, be returned to him.
[54.8] In terms of section 34(1)(a) of the Act, 1977 it is ordered that Exhibit “6”,
the passport of Hyacinth James Ningise be returned to him.
[54.9]
In terms of section 35(1)(a) of the Criminal Procedure Act, 1977 the
following Exhibits are ordered forfeited to the State:
[54.9.1] Exhibit “7”
:
R5 Machine gun No. 309094 & Magazine
[54.9.2] Exhibit “14”
:
Red Nokia 8210, serial No.
449306/10/261261/1 with sim card
[54.9.3] Exhibit “15”
:
Silver Nokia 8850 serial No.
448901/10/589070/0
[54.9.4] Exhibit “16”
:
Grey Motorola serial No. 448835-41-432796-4
[54.9.5] Exhibit “17”
:
Blue Nokia 6150 serial No. 493006/30/3866116
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[54.10] In terms of section 34(1)(a) of the Act, but subject to the orders set out
hereinbefore and to the fact that certain items so listed were handed to the
accused on July 08, 2005 and July 20, 2005, it is ordered that the items listed
in Exhibit “Y5” (Copy of the Exhibit Register of the South African Police) and in
Exhibit “GG” (Items confiscated at house No. 75, Teresa Street, Camps Bay)
including Exhibit “23” the Brown Checkered bag, Exhibit “24” Green, black
orange Lodestar suitcase, Exhibit “25” One Black Adidas sling bag, Exhibit “26”
One Blue Sure Travel bag, Exhibit “27” One black suitcase, Exhibit “28” One
Black Adidas bag and the South African ID of Mike S. M. S. Apani be returned
to the Namibian Police to be handed back to the appropriate accused. (if the
accused may lawfully possess such articles).
_________________
SILUNGWE, AJ.
25
ON BEHALF OF THE STATE:
Instructed By:
ON BEHALF OF ACCUSED 1 & 3:
Instructed By:
ON BEHALF OF ACCUSED 2, 7, 8 & 9:
Instructed By:
ON BEHALF OF ACCUSED 10:
Instructed By:
ON BEHALF OF ACCUSED 11:
Mr D. F. Small
Office of the Prosecutor-General
Mr W. T. Christians
Directorate of Legal Aid
Mr L. H. Murorua
Directorate of Legal Aid
Mr J. M. B. Neves
Directorate of Legal Aid
In Person