High_docs_judgments_criminal_the State vs Sam Angolo and Others

7/25/2019 High_docs_judgments_criminal_the State vs Sam Angolo and Others

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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. 2STEFANUS 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, 14thMay 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:-


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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 30thof 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.


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[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 States witnesses. At the close of

the States 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 States

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?


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On Friday evening 13thMay 2005 about half an hour apart and mainly witnessed

by the deceaseds 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 deceaseds 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 domore 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.


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[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 committhe crime.

[14] Aside from the sequence of events surrounding the discovery of the

deceased the next morning Saturday 14thMay 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.


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On the same page under the head ing 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:-


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Behind Rtear 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.


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[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.


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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, assertionor

affirmationbut 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


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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 Fis 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, 14thMay 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

faciecase against accused no. 3.


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[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 Post-

Mortem 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 Lconstitutesprima facieproof as regards the injuries

recorded therein those injuries cannot be linked to any of the accused.


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[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 nos 1, 3 and 4 as regards

their contents are evidence of the preliminary assault scenes on Friday, 13 thMay

and of the next morning Saturday, 14thMay 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.


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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 females 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 upthe 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.


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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 females trousers. The

female was quiet; she did not scream and did not say anything. Sam

pulled the females 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).


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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 voceevidence 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 Holshausen1984 (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.


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[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. 1and 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


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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 madea 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 extra-

judicial 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 Appeals 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 Others2001 (1) SACR

85 (W) par [47] at 99a). In S v Molimi and Another2006 (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 others 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 courts 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 Hiemstras

commentary is:-


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- 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 courts 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 quoin

the case of S v Ndhlovuand Othersalso referred to in Hiemstras 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


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(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 evidencewhich 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 orparty 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


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accused concerned to the State thereby causing admissibility of their statements,

that would undoubtedly have strengthened the States 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 criminal-

law-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

casehe 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 accuseds decision not to testify will not remedy the shortcomings in

the states 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 faciecase

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


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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 States 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 criministogether 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


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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 kitwas

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.


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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 mothers 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 States 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.


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[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 aprima faciebasis.

[60] In the result the Courts 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 Lazarusis found not guilty and is discharged.

Accused No. 4, Thomas Phillemonis found not guilty and is discharged.

____________________HINRICHSEN, AJ


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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.

Documents

High_docs_judgments_criminal_the State vs Sam Angolo and Others