CASE NO.: CC 37/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
vs
SAM ANGOLO
Accused No. 1
JONATHAN ASHIPALA TAAPOPI
Accused No. 2
STEFANUS LAZARUS
Accused No. 3
THOMAS PHILLEMON
Accused No. 4
CORAM:
HINRICHSEN, AJ
Heard on:
13/10/2008; 14/10/2008; 20/10/2008; 21/10/2008; 22/10/2008;
23/10/2008; 24/10/2008; 31/10/2008; 18/05/2009; 19/05/2009;
26/05/2009; 28/05/2009; 29/05/2009
Delivered on:
30 July 2009
__________________________________________________________________
JUDGMENT
__________________________________________________________________
HINRICHSEN, AJ [1]
This is a hard case. The evidence reveals that on the
morning of Saturday, 14th May 2005 at about 6 a.m the body of Theresia Afrikaner
(the deceased) an adult female person was found in a dry riverbed at or near
Okuryangava. The Police apprehended four adult males, the four accused referred
to in the heading above. They are:-
-2-
SAM ANGOLO, (Accused No. 1)
JONATHAN ASHIPALA TAAPOPI, (Accused No. 2)
STEFANUS LAZARUS, (Accused No. 3)
THOMAS PHILLEMON, (Accused No. 4)
[2]
The accused were in due course charged basically with having committed
the offences of murder, rape and kidnapping upon the deceased. The amended
indictment specifying and linking the individual offences to the individual accused
with a summary of facts and a list of 24 witnesses appended appear on Exhibit A to
the court proceedings which were recorded and transcribed. The record runs to
1318 pages.
[3]
The charges, eighteen in all were read into the record. All accused pleaded
not guilty to all charges.
[4]
The four accused were represented at the commencement of the trial and
remained so to its conclusion on 30th of July 2009 as follows:-
Mr Wessels for Accused No. 1
Mr Muluti for Accused No. 2
Mr Coetzee for Accused No. 3
Mr Kavendjii for Accused No. 4
Mr Marondedze appeared throughout for the State
In what follows I shall simply refer to the State and to the accused by number or to
all the accused without specific reference to their legal representatives unless the
contrary appears.
-3-
[5]
All four the accused having pleaded “not guilty” the State had to prove the
commission of the crimes bearing the onus beyond reasonable doubt.
[6]
The so-called confession or “admission” by accused no. 2 was admitted by
me in evidence after a trial-within-a-trial.
[7]
All four legal representatives tested the State‟s witnesses. At the close of
the State‟s case they opted on instructions of their clients, the accused, not to
apply for a discharge in terms of Section 174 of the Criminal Procedure Act (No. 51
of 1977). They simply closed their case since they in their opinion had no case to
answer.
[8]
The question is whether the State succeeded in discharging the onus it had
to bear.
[9]
In summing up the evidence and making submissions based thereon the
legal representatives of all four accused went through the stages ranging from real
or direct evidence, circumstantial evidence to hearsay evidence.
[10]
The general and trite principles of criminal law were applied to the State‟s
evidence ranging from the doctrine of common purpose, dolus, mens rea to the
right of accused to remain silent the presumption of innocence and the right to a
fair trial guaranteed by the Namibian Constitution.
[11]
What is the direct evidence presented and proven by the State?
-4-
On Friday evening 13th May 2005 about half an hour apart and mainly witnessed
by the deceased‟s sister Maria and Fiona Afrikaner two assault incidences
occurred involving accused no 1 and no 2 assaulting the deceased and thereafter
all three i.e. the deceased and accused 1 and 2 disappearing into the darkness.
The deceased offered no physical resistance other than to scream and protest
vociferously. She might have been dragged rather than moved independently.
[12]
The prelude to the assaults was a drinking session at one or two nearby
shebeens whereat were present accused no. 1 and 2 and the deceased. Accused
no 2 had a quarrel with the deceased accusing her of drinking his alcohol whereas
initially both accused 1 and 2 admitted slapping the deceased, a light version of
common assault they both ultimately tendered pleas of assault with intent to do
grievous bodily harm (assault GBH). These pleas are justified and borne out by the
evidence. The assaults perpetrated upon the deceased were serious indeed. The
deceased was not merely slapped but was hit with fists and very likely with bricks
or stones. She fell to the ground and was bleeding. Her immobilised condition
caused by accused 1 and 2 coincides with the evidence that she was dragged
away from the second assault scene rather than walked without assistance. These
acts by the accused were accompanied by a serious threat by accused no. 2
levelled at the deceased‟s sisters Maria and Fransina witnessing the assaults, that
he would stab them into their vaginas “right now” with a knife. This warning by
accused no. 2 is evidence of a vicious state of mind spelling imminent and real
danger. These assaults qualify for the test in S v Mbelu 1966(1) PH H176(N):-
“However one express it, it is at least clear that there must be intent to do
more than inflict the casual and comparatively insignificant and superficial
injuries which ordinarily follow upon an assault. There must be proof of
intent to injure and to injure in a serious respect.”
-5-
[13]
I find moreover that accused no. 1 and no. 2 performed the acts of assault in
common purpose. Common purpose is defined by the Authors Jonathan Burchell
and John Milton in Principles of Criminal Law Second Edition (page 393) (Burchell
and Milton):-
“Where two or more people agree to commit a crime or actively associate
in a joint unlawful enterprise, each will be responsible for specific criminal
conduct committed by one of their number which falls within their
common design. Liability arises from their „common purpose‟ to commit
the crime.”
[14]
Aside from the sequence of events surrounding the discovery of the
deceased the next morning Saturday 14th May 2005 in a dry riverbed somewhere
distant from the assault scenes which happened the previous night, this is the sum
total of direct evidence offered by the State relating to the murder, rape and
kidnapping charges. All the direct evidence is confined to the two assault scenes
and does not link up, lead or point to the cardinal crimes allegedly committed
namely rape and murder.
[15]
The kidnapping charges are unrelated to any facts and any form of
evidence. What the State presumably had in mind as kidnapping was the action of
accused no. 1 and 2 dragging the deceased with them into the darkness after the
second fighting incident. I am disposing of the kidnapping charges at this juncture.
[16]
Burchell and Milton define kidnapping on page 519:-
“Kidnapping consists in unlawfully and intentionally depriving a
person of liberty of movement and/or his custodians of control.”
-6-
On the same page under the heading “NATURE AND PURPOSE” they list
occurrences of kidnapping:-
“Kidnapping occurs for various reasons: emotion (romantic infatuation; a
non-custodial parent taking a child from the custodial parent), economic
(slavery), financial (to exact a ransom); political (terrorist kidnapping of
officials to compel government action of one sort or another) and even
governmental (misguided determination to bring fugitives into the
jurisdiction of the South African courts).
Kidnapping is a form of conduct that involves the invasion of the personal
freedom of the victim while inflicting mental anguish of a greater or lesser
degree and exposing the victim to the risk of physical harm and, in cases of
ransom and terrorist kidnapping, death.
Although not frequently encountered in earlier times, kidnapping has
increasingly been resorted to in modern society and has attracted
increasingly severe punishment.”
[17]
It may readily be gathered that no kidnapping took place in this case.
Accordingly I rule that the charges of kidnapping are dismissed.
[18]
What other evidence is there which may possibly substantiate the charges
of rape and murder?
There are incidences of circumstantial evidence.
[19]
Firstly there is the evidence of witnesses having seen scratch marks on the
neck and arms of accused no 1 the existence whereof he denies, arguing that if
these marks existed they would have been picked up by the medical practitioner
who examined him. In fact Exhibit “M” (form J88) the medical examination report
on accused no. 1 contains the following relevant observations:-
-7“Behind Rt ear abrasions fresh 3 abrations, fresh abration marks; No on the
mastoid 10mm vertical. N2, and N3 on the posterior of the earlobe. 5mm;
3mm. Between the thumb and index finger dorsal around human bite mark
25 x 25 mm;
7x teeth marks.
Conclusion:
Injuries behind Rt ear and on the right earlobe and human teeth marks on
the left hand fit with the time and circumstances.”
This is a general remark of no significance since the late Dr Shangula had no idea
of the precise time nor of the circumstances.
[20]
Accused no 2 admitted having been scratched and bitten by the deceased.
Moreover Exhibit “N” (form J88) the medical Examination report relating to him
reveals much more:-
“Old abrasions and wounds and tattoo.
Fresh abrasions are described on the diagram Annexure A.
Healed wounds left upper arm (surgical ............) (illegible)
Any other injuries (“) Fresh abrasions at the back and left side chest
medially of the nipple.
Two small condylomata, on the penis.
DESCRIPTION OF OPEN WOUNDS, IF ANY:
(note the exact nature extent and position).
Abrasions: Back of the neck a vertical abrasion, left of spinal column at C6
level 20mm from C6 this abrasion is 7x2mm.
A roundish laceration wound medially of left nipple, 30 m from mid sterum,
and 40 m from left nipple. This wound have an induration of 30x15mm.
Conclusion:
The abrasions at the back of the neck and the bite mark on the chest do fit
in my opinion. “
Unfortunately the medical officer, the late Dr Shangula, says nowhere what “my
opinion” is.
-8-
[21]
The abrasions and bites referred to in Exhibits “M” and “N” could have been
inflicted in the course of the deceased fighting for her life and/or trying to prevent
rape or murder being committed upon her. But there is no further supporting
evidence for these possibilities.
[22]
These medical observations observing “fresh” abrasions on both accused
no. 1 and 2 are strong circumstantial pointers implicating them. But the medical
officer Dr Shangula while she signs the Affidavits in terms of Section 212(4)(a)
forming part of Exhibit “M” and “N” as “medical officer” she qualifies this by adding
the letters P.M.O also stating that she was in the service of the State. P.M.O
stands for Principal Medical Officer. The late Dr Shangula had behind her name
“MD” which stands for Medical Doctor. In Exhibit “M” she added Moscow behind
the letters M.D and stated that she was in the service of the State at Windhoek
Central Hospital on 14/05/2005 while in Exhibit “N” she stated that she was in the
service of the State at the Windhoek Police Mortuary on the same date 14/05/2005
on the date she conducted the medical examination on Accused No. 1 and 2
respectively.
The late Dr Shangula made these statements on the forms of Affidavits in terms of
Section 212(4)(a) of the Act. She did not make the statements under oath thereby
converting them to Affidavits which means that they are mere statements.
[23]
The question arises whether they are “certificates” in lieu of affidavits as
provided for in the proviso to Section 212(4)(a) in which event they would like
affidavits constitute prima facie proof.
-9-
At the end of the form the deponent of the Affidavit states that “I know and
understand the contents of this declaration” The Act does not define the terms
“Affidavit”, “declaration”, “statement” or “certificate” and these words would bear
their ordinary meaning for which I rely on the Shorter Oxford Dictionary.
The Shorter Oxford Dictionary defines the word” declaration” in Law as “A simple
affirmation (as opp. to an oath”).
“certificate” is defined as “A document wherein a fact is formally certified.”
“statement” is synonymous in meaning to “declaration” “allegation”, “assertion” or
“affirmation” but falls short in its evidentiary reliability of certificate as defined above
or “affidavit” which is defined as “a written statement sworn by deponent”. The
conclusion is that the contents of Exhibits “M” and “N” do not constitute prima facie
evidence as being neither affidavits nor certificates.
[24]
Next a Report by the National Forensic Science Institute also referred to as
a “Rape Kit” was introduced by the State as Exhibit “F” compiled by a laboratory
assistant by the name of A Kaupitwa who also co-signed Exhibit “F” together with
M. Swart, the Chief Forensic Scientist who was not called as a witness.
[25]
In cross-examination A Kaupitwa stated that the deceased and the four
accused were “non-secretors.” Exhibit “F”, the Report, established non-secretors
through saliva swabs; these latter being persons who have no ABO substances in
their body fluids. ABO is a blood grouping – The deceased belonged to blood
group B. Accused no. 1 belongs to blood group A. Accused no 2 belongs to blood
group AB. No blood group was established for accused 3. Accused no 4 has group
- 10 -
O. No conclusive semen test could be performed on the deceased. Accused no. 4
tested positive for semen.
[26]
The brief, i.e. underpants of accused no. 1 tested negative for semen. No
semen tests were performed on accused no. 2 and no. 3. In the upshot I find that
the forensic report Exhibit “F” is useless. It merely makes a few unrelated findings
on blood, semen, and saliva implicating none of the four accused.
[27]
Finally I refer to the scene involving accused no. 3 Stephanus Lazarus, also
known as Steven. He was amongst the group of people at the scene of the crime in
the riverbed on Saturday morning, 14th May 2005. He approached Police Sergeant
Elias Nangolo (Nangolo) and asked him addressing Nangolo by his name. Nangolo
testifies about this incident as follows:-
“.... how will the Police be able to determine who did that incident. And by
that time I asked who (sic) his name was and he said his name is Steven.
“Later on, I also spotted a black wallet which, was a bit near, where the
deceased was lying. I open the wallet and saw that there is a small piece
of paper, written Steven. So due to that fact, I was a bit surprised, that this
person was just asking a question as to how the police would determine,
who did this, crime and then I conveyed that information to Chief
Sheehama who was with me. So, Chief Sheehama instructed me to bring
that person to him. And I handed Accused no. 3 to Chief Sheehama as
well as the black wallet.” [Record page 514].
[28]
This incident raises suspicion against accused no 3 but not more than that –
Mr Coetzee for accused no. 3 submitted that “maybe he was just a concerned
citizen, a concerned bystander” (Record p. 1271 lines 4 – 5) or he was simply
curious. In any event as Mr Coetzee submitted, this does not establish a prima
facie case against accused no. 3.
- 11 -
[29]
There remains to consider the category of hearsay evidence. Mr Wessels for
accused no. 1, Sam Angolo, submitted that the Report on a Medico-Legal PostMortem Examination, Exhibit “L” in these proceedings is hearsay evidence. Why?
Because the author of Exhibit “L”, Dr Elizabeth Shangula passed away tragically
after having compiled it. In her stead Dr Simasiku Kavendjii explained and
commented on Exhibit “L”. Mr Wessels submitted that “... The contents of the
statement as read out by Mr Kavendjii therefore becomes hearsay in its totality, ...”
(Record p. 1205 lines 8 – 10) – That submission cannot be correct in the light of
Section 4 of the Criminal Procedure Amendment Act No. 24 of 2003 which reads
as follows:-
“Amendment of section 212 of Act No. 51 of 1977.
4.
Section 212 of the principal Act is amended by the insertion of the
following subsection after subsection (7):
“(7A) (a)
Any document purporting to be a medical record
prepared by a medical practitioner who treated or
observed a person who is a victim of an offence with
which the accused in criminal proceedings is charged, is
admissible at the proceeding and prima facie proof that
the victim concerned suffered the injuries recorded in
that document.” (Section (7A)(a)
[30]
In contradistinction to Exhibits “M” and “N” the late Dr Shangula in Exhibit “L”
certifies (my underlining) her actions and findings recorded therein to the
Magistrate, Windhoek. This in terms of the proviso to Section 212(4)(a) alone
would qualify as prima facie evidence. Exhibit “M” and “N” do not fall under (7A)(a)
since this section concerns only “... a person who is a victim ...”.
[31]
Even though Exhibit “L” constitutes prima facie proof as regards the injuries
recorded therein those injuries cannot be linked to any of the accused.
- 12 -
[32]
There remains to consider the evidence presented by warning statements.
The warning statements by accused no. 1, no. 3 and no. 4 went in and were read
into the record as Exhibits “G” (Record p 551) “H” (Record p 533) and “I” (Record p
558) respectively thereby being admitted in evidence without objection. Accused
no. 2 objected to his warning statement being admitted in evidence and it was
therefore not admitted in evidence.
[33]
In summary the warning statements by accused no‟s 1, 3 and 4 as regards
their contents are evidence of the preliminary assault scenes on Friday, 13th May
and of the next morning Saturday, 14th May after the body of the deceased was
found in the river bed. Again, no factual links to the rape and murder charges exist
in the warning statements.
[34]
The most important statement to consider is the statement made by
Accused no. 2 to Police Chief Inspector Van Schoor introduced as Exhibit “J” which
I ruled to be admissible as evidence (the statement). Its contents are as follows:-
“1.
On Friday, 2005-05-13 at about 23:00 myself and three male
persons went to NDARI shebeen at Ongawa Street, Okurayangawa.
The three male persons are Sam Nangolo, Steven Lazarus and
Filemon Thomas. We were sober when we arrived at the shebeen.
2.
We started ordering liquor and sat at our table. We received our
liquor and started to drink. At about 23:15, while drinking, three
black females came in the entrance of the shebeen. They had a
small girl of about 3 years old with them.
3.
I observed them ordering liquor from the bar. They went to a table
which was far from ours. My friend Sam notice that one of the
females was in school with him.
4.
Sam bought liquor for the females. We finish our drinks and went to
the next shebeen, namely Shikiro. We the male went to the next
door shebeen. The female stayed at the Ndari shebeen.
- 13 -
5.
After a while one of the females whom was at the Ndari shebeen
came to the Shikiro shebeen. She was wearing a black jean and
white top. She went to another table where she started drinking with
other people whom it seems she knew.
6.
A few minutes later Sam and the female went outside. It was a
while later when I decided to look for Sam. I went out of the
shebeen. I found Sam behind the shebeen with the female.
7.
I ask Sam why he was standing so long outside. He informed me
that he bought liquor for lady and that the female refuse to
accompany him to his house. Sam started to assault the female by
slapping her in the face with a flat hand. I also enquired from the
female whether she drank liquor which Sam bought for her. She
informed me “wat worry ek” namely why does it bother me.
8.
Due to her answer I slap her with the flat hand. She then jumped on
me. We fell to the ground. She scratched me on the left side of my
chest. She also bit be on my left leg.
9.
While we were wrestling on the ground my other two friends Steven
Lazarus and Fillemon Thomas came out of the shebeen.
10.
Sam, Steven and Fillemon pulled the female from me. They pulled
the female towards the riverbed. The pulled the female close to her
house in the riverbed. She screamed the whole time while she was
drag to the riverbed. I followed my friends while they pulled the
female.
11.
They stop near the female‟s house. I know the female just from
seeing her in the area.
My friend stopped pulling the female. I
arrived at the said scene. I observed that Sam was trying to pull up
the female to stand. Fillemon and Steven were throwing the female
with stone so that she can stand up. The female was screaming the
whole time while she was pulled and thrown with stones.
12.
The female who was with Sam in the same school arrived at the
scene. She asked Sam why he was assaulting the female. Sam
informed her that she drank his money and that he will not leave
her. The female turned around and only informed us she is going to
the other sister who was with them at the other shebeen to inform
her what is happening.
- 14 13.
My friends started to pull the female to the river. I followed them to
the river. The female was hit with stones by Steven and Fillemon
while Sam was pulling. They stop in the river.
14.
Sam pulled out a knife and started to cut the female‟s trousers. The
female was quiet; she did not scream and did not say anything. Sam
pulled the female‟s trousers off and climbed on the female. I
observed that he penetrated the female in her vagina. The female
was lying on her back. The female did not make any sign or noise. I
heard Fillemon and Steven asking Sam to finish because they also
want a turn on the female.
15.
I informed my friends that I could not do it because they were not
using a condom. I told them that I am going home. I turned around
and went home.
16.
On Saturday 2005-05-14 at about 12:00 Police officer arrived at my
house Erf B 4 Onusho Street, Hakahana, I was still sleeping. I was
informed that I was sleeping while someone was killed.
I was
arrested and taken to the police station.
Windhoek
2005-05-15
J. Taapopi”
[35]
It is clear that the State squarely based its charges against the four accused
on this statement, Exhibit “L”.
[36]
While Exhibit “L” is admitted as evidence this does not mean that its
contents is prima facie proof.
[37]
Counsel for accused no 1 and no 2 strongly argued in gist that it can only be
admitted as evidence against the author thereof being Accused no. 2 (Record p.
1204).
- 15 -
It is inadmissible as far as its contents are concerned. It is not a confession. It is an
exculpatory statement an admission that accused no. 2 was present at the scene;
it is not an unequivocal admission of guilt.
[38]
In the trial-within-a-trial-proceeding accused no. 2 stated that the content of
the statement was false. On this basis alone the truth or falsity of Exhibit “J” would
have to be tested by the vica voce evidence under oath of accused no. 2 which
needed to follow. Mr Muluti for accused no. 2 submitted correctly that:-
“It is trite law that evidence contained in a statement by one
accused is not admissible against a co-accused unless such
evidence has been repeated under oath by the maker of the
statement. It is common cause that accused no 2 did not testify
hence his statement is inadmissible against accused 1, 3 and 4
respectively. “(Record p. 1248 lines 10 -16).
[39]
Common law hearsay is, if not precisely, defined as:-
“Oral or written statements made by persons who are not parties
and are not called as witnesses are inadmissible to prove the truth
of matters stated.”
(LH Hoffmann DT Zeffertt: “The South African Law of Evidence”, Fourth Edition
(Zeffertt) (p. 623). This definition was accepted by the South African Appellate
Division in S v Holshausen 1984 (4) (SA) 852 (A). But this definition does not apply
in this case since it concerns parties, being the accused.
[40]
I refer to Exhibit “J” as the statement because it is like the warning
statements referred to above no more than that. Exhibit “J” the statement is not a
confession as far as the maker thereof, accused no. 2 is concerned.
- 16 -
[41]
Sections 219 and 217 of the Act do not therefore apply to accused no. 2
since these sections deal with confessions. Accused No. 2 does not confess as
regards himself. The definition of a confession is referred to in Hiemstra page 24 –
51:-
“What is a confession? – The Appellate Division in R v Becker 1929 AD
167 defined a confession as an unequivocal acknowledgement of guilt the
equivalent of a plea of guilty before a court of law. This statement is now
clothed with undisputed authority. The definition in effect means that all the
elements of the offence have to be admitted and that possible defences
should be excluded. See for instance, S v Nambeko and Another [1996] 4
IL SA 462 (EC).”
[42]
The maker of the statement, Exhibit “J”, accused no. 2, does not confess to
any crime he committed he did or did not do. He exculpates himself implicating
others. Similarly the statement not constituting an admission in terms of section
219 A does likewise not apply to accused no. 2.
[43]
But what does accused no. 2 do? – He pleads guilty and confesses on
behalf of especially accused no. 1 – and that he cannot do. Sect. 219 prohibits this.
What admission means in this context is that accused no. 2 in his exculpatory
statement makes a „confession‟ on behalf of the other accused especially accused
no. 1 which under these circumstances he has to do in order to exculpate himself.
Normally a confession would relate to the person making the statement. This is
best illustrated by the commentary of Hiemstra on section 219 of the Act (page 24
– 70):-
“The matter under discussion here is the admissibility against A of a
statement, which includes a confession or admission which A vicariously
made through B. The question of vicarious admissions is a topic about
which textbooks on the law of evidence can be consulted. See, for
- 17 instance, Schmidt (2004) par 19 1 6 and Zeffertt (2003) at 443 – 448. This
section applies to the admissibility against B of a confession which A made.
In Ndhlovu and Others v S [2002] 3 All SA 760 (SCA), 2002 (2) SACR 325
(SCA) the court was also not seized with such a case, but the
circumstances are sufficiently related to justify discussion. Accused 3 made
a statement at the time of his arrest which identified accused 1 as the man
who had fired the fatal shot in the particular murder/robbery. Accused 4
made a written statement with the same import. In the trial court (S v
Ndhlovu and Others 2001 (1) SACR 85 (W) Goldstein J found the extrajudicial statements of accused 3 and 4, who testified but contradicted the
contents of their statements, admissible against accused 1 as hearsay by
virtue of the provisions of section 3(1)(b) of the Law of Evidence
Amendment Act 45 of 1988. In the Supreme Court of Appeal‟s judgment,
Cameron JA held that the quality of the hearsay evidence and the
extraneous reliability guarantors make it imperative that the evidence be
admitted, as Goldstein rightly did (par. [52]). The Supreme Court of Appeal
distinguished S v Ramavhale 1996 (1) SACR 639 (A) with regard to
provisional admission of evidence (pars [19]-[20] and [42]). The ambit of
section 219 of the Criminal Procedure Act was not considered because the
statements were not confessions (S v Ndhlovu and Others 2001 (1) SACR
85 (W) par [47] at 99a). In S v Molimi and Another 2006 (2) SACR 8 (SCA)
par [24] the Supreme Court of Appeal held that the admission of the
hearsay evidence contained in the extra-curial statement of a co-accused
against the accused was in the interests of justice. It is ironic that a
confession, the most reliable extra-judicial statement, is inadmissible but
self-exculpatory statements are not.
A confession of one accused may not even be used indirectly against the
co-accused. What is meant appears from the case of R v Baartman 1960
(3) SA 535 (A) in which three accused were convicted of murder. One of
them made a confession implicating the other two. All that connected the
confessor to the murder was his confession and all that linked the other two
was that the three were in each other‟s company at about the time of the
offence. Although the direct implication of the other two in the confession
was therefore correctly left out of the court‟s consideration, Schreiner JA
found on appeal that they were nevertheless indirectly – and wrongly –
connected to the murder thereby.”
[44]
What immediately needs to be pointed out regarding Hiemstra‟s
commentary is:-
- 18 -
- firstly that the situation in South Africa regarding hearsay has changed by the
introduction of the Law of Evidence Amendment Act 45 of 1988 (the RSA Act)
which introduced a wide-ranging discretion depending on the court‟s opinion in the
interest of justice to admit hearsay evidence unknown to Namibian law on this
point.
That is why in the case of Ndhlovu and Others referred to in the commentary by
Hiemstra referred to above, the contents of the extra-judicial statements in issue in
that case, were considered correctly admissible by Goldstein J in the court a quo in
the case of S v Ndhlovu and Others also referred to in Hiemstra‟s commentary.
Section 3 of the RSA Act deals with hearsay evidence as follows:-
“3.
Hearsay Evidence – (1) Subject to the provisions of any other law,
hearsay evidence shall not be admitted as evidence at criminal or
civil proceedings, unless –
(a)
Each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence at such
proceedings;
(b)
The person upon w hose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
The court, having regard to –
(i)
The nature of the proceedings;
(ii)
The nature of the evidence;
(iii)
The purpose for which the evidence is tendered;
(iv)
The probative value of the evidence‟
(v)
The reason why the evidence is not given by the person
upon whose credibility the probative value of such
evidence depends;
(vi)
any prejudice to a party which the admission of such
evidence might entail; and
- 19 (vii)
any other factor which should in the opinion of the court
be taken into account, is of the opinion that such
evidence should be admitted in the interests of justice.
(2)
The provisions of ss (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such evidence is
hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of ss (1)(b)
if the court is informed that the person upon whose credibility the
probative value of such evidence depends, will himself testify in such
proceedings: Provided that if such person does not later testify in
such proceedings, the hearsay evidence shall be left out of account
unless the hearsay evidence is admitted in terms of para (1) of ss (1)
or is admitted by the court in terms of para (c) of that subsection.
(4)
For the purposes of this section –
“hearsay evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person
other than the person giving such evidence;
“party” means the accused or party against whom hearsay evidence
is to be adduced, including the prosecution.”
[45] The Namibian law governing hearsay is identical to the South African
common law prior to the coming-into-effect the RSA Act. The Namibian law is still
what Section 3(1)(a) and (b) of the RSA Act provide.–
The warning statements Exhibit “G” “H” and “I” and the statement by Accused No.
2 Exhibit “J” are of no evidentiary value implicating the Accused. This has been
demonstrated by the accused in this case by closing their respective cases
without leading any evidence under oath. There is likewise no agreement or
consent by any of the Accused that any of the statements in issue referred to
above may be admitted as evidence. If agreement or consent were granted by the
- 20 -
accused concerned to the State thereby causing admissibility of their statements,
that would undoubtedly have strengthened the State‟s case.
This raises the issue whether the silence of the Accused permits any adverse
inference against them.
[46] The constitutional principle of a fair trial laid down in Article 12 of the
Namibian Constitution in particular Article 12(d) which provides that “All persons
charged with an offence shall be presumed innocent until proven guilty” of
necessity implies that the State has to prove its case by discharging the criminallaw-onus beyond reasonable doubt. If the State has not succeeded in doing so at
the end of its case, there is no duty on an accused to respond by presenting his
case – he has a right to remain silent, if the State has not presented a prima facie
case (See S v Haikote and Others 1992 NR p.54 (H) (C)). Furthermore, it is trite
law that an accused‟s decision not to testify will not remedy the shortcomings in
the state‟s case (See State v Masia 1962 (2) SA 541 (A.D.) per Botha J.A. at 546).
[47] Mr Wessels for Accused No. 1 correctly submitted that as regards assault
GBH on a charge of murder, which in law is competent in terms of section 258(b)
of the Act, Accused No. 1 and 2 would have had to answer a prima facie case
which the State in this case succeeded in proving. However, this has been
obviated by the fact that they both tendered a plea of guilty to assault GBH.
Technically these are in any event the only charges which the State managed to
prove at least on a prima facie basis by means of direct evidence.
[48] The indirect evidence i.e. hearsay and circumstantial evidence presented by
the State falls far short of the prima facie target; - be it the so-called “rape kit”
Exhibit “F” the post-mortem-examination Exhibit “L” the warning statements
- 21 -
Exhibits “G” “H” and “I” and the self-exculpatory statement Exhibit “J”. This is what
the prosecutor Mr Marondedze must have meant when he stated that this was as
far as he could take his case - not exactly a forceful assertion of confidence.
[49] The crucial portion of Annexure “J”, the unproven State‟s case, is contained
in paragraphs 13, 14 and 15 thereof. Do the contents thereof establish the crimes
of murder and rape?
[50] While prior to the narrative in paragraph 14 the deceased was heard
screaming in protest she was now “... quiet, she did not scream and did not say
anything.” It is possible that the deceased was already dead after she “... was hit
with stones by Steven and Fillemon.”
[51] When Sam penetrated the deceased she “... did not make any sign or
noise.” – She could by that time have been dead – Accused No. 1 could have
unwittingly committed an act of necrophilia upon the deceased.
[52] In any event Accused No. 2 in his statement Exhibit “J” witnessed no
strangulation as was alleged in the post mortem report Exhibit “L”. Paragraph 13
and 14 would have implicated Accused no. 3 and 4 as socii criminis together with
accused no. 1, they being present at the scene participating in the action by
stoning the deceased and expressing the intention of wanting “... a turn on the
female”. Moreover they could well have been the principal perpetrators of murder
by stoning the deceased to death. It is uncertain by whom murder was committed
and by what means, stoning or strangulation. It is likewise uncertain whether rape
was committed. In most cases there is a complainant to complain of rape. In this
case there is no complainant. The victim could well have been dead when the act
- 22 -
of penetration was committed. The benefit of the doubt would have operated in
favour of at least Accused no. 1. Annexure “J” does not establish rape or murder.
[53] But these are all mere possibilities. As Mr Wessels for Accused No. 1 rightly
pointed out: “It is of course possible that that Accused No. 1, 2, 3 and 4 did rape
the deceased. It is possible that they killed her.” (Record p. 1299 lines 4 – 6).
[54] If in a civil case emanating from this criminal trial murder and rape became
an issue, a cause of action for civil remedies involving the lighter onus of proof on
a balance of probabilities may well lead to success in a civil claim for relief.
[55] There are shortcomings in the presentation of this case –
Firstly, and most importantly, no scientifically based DNA testing of semen
or blood, tissue or clothing took place. This Court is entitled to take judicial
cognizance of DNA testing in criminal cases of this nature and the
scientifically established effectiveness of this method of linking an accused
to the alleged criminal charges against him, permitting inferences a la Rex v
Blom (1939 AD 202).
Secondly, instead, nothing more than an ineffective so-called “rape kit” was
presented.
Thirdly, the State presented no sketch plan indicating the assault scene and
the murder scene, giving distance measurements. This resulted in drawn
out unnecessary inconclusive evidence being led on vague distances and
directions.
- 23 -
Fourthly a location plan as described above could have been coupled to or
substituted for an inspection-in-loco. This was not done.
Fifthly the post-mortem examination failed to establish a time of death on a
scientific basis. Instead, the examining doctor relied on a hearsay report of a
witness who was not even called by the State. The time of death is, in all
cases involving murder, and also in this case, very important.
[56] Whether State witnesses were ill-prepared for oral evidence under oath
based on their preceding statements to the Police is doubtful. They may have
been forgetful or the Police did not accurately reduce to writing of what the
witnesses said, mostly not in their mother‟s tongue. Mr Muluti for accused no. 2
highlighted this issue particularly in cross-examining the sisters of the deceased
Maria and Fransina Afrikaner.
[57] Finally should the State, the prosecution have plea-bargained with the
defence, knowing that the charges against the Accused would not succeed,
instead of embarking on a time-consuming trial? – The State‟s approach can be
justified by the announcement of Mr Kavedjii for Accused No. 4 that the latter “...
wants to be a State witness.” (Record p. 558), which announcement was made at
the stage when the warning statements by Accused 1, 3 and 4 were read into the
record. Mr Kavendjii submitted that it was “... not necessary for that witness
statement to be read into the record ...” The prosecution could at that stage not
have known that Accused No. 4, instead of turning State witness, would simply
close his case without testifying at all. Of course, his change of mind cannot be
held against him on the principle that no accused can be compelled to give
evidence.
- 24 -
[58] In the light of the above it is unfortunate that only limited justice can be done
in this case. Technically there is no evidence strong enough to bring to task the
culprits who caused the body of Theresia Afrikaner to lie in the riverbed.
[59] I find that the State has not proved any of the charges of murder, rape and
kidnapping against any of the Accused on a prima facie basis.
[60] In the result the Court‟s verdict is as follows:
Accused No. 1, Sam Angolo is acquitted of all charges against him. His
plea of guilty of assault with intent to do grievous bodily harm (assault GBH)
tendered by him being a competent plea to the charge of murder against
him is accepted and he is found guilty of assault GBH.
Accused No. 2, Jonathan Ashipala Taapopi is acquitted of all charges
against him. His plea of guilty of assault with intent to do grievous bodily
harm (assault GBH) tendered by him as being a competent plea to the
charge of murder against him is accepted and he is found guilty of assault
GBH.
Accused No. 3, Stefanus Lazarus is found not guilty and is discharged.
Accused No. 4, Thomas Phillemon is found not guilty and is discharged.
____________________
HINRICHSEN, AJ
- 25 -
COUNSEL ON BEHALF OF THE STATE:
Mr Marondedze
Instructed by:
Office of the Prosecutor General
COUNSEL ON BEHALF OF THE FIRST ACCUSED:
Mr Wessels
Instructed by:
Stern & Barnard
COUNSEL ON BEHALF OF THE SECOND ACCUSED:
Mr Muluti
Instructed by:
Muluti & Partners
COUNSEL ON BEHALF OF THE THIRD ACCUSED:
Mr Coetzee
Instructed by:
Tjitemisa & Associates
COUNSEL ON BEHALF OF THE FOURTH ACCUSED:
Mr Kavendjii
Instructed by:
Hengari, Kangueehi, Kavendjii Inc.