CASE NO

CASE NO.: CC 04/2002

IN THE HIGH COURT OF NAMIBIA





In the matter between:





THE STATE





and





HYACINTH JAMES NINGISE Accused 1



MCDONALD KAMBONDE Accused 2



HENDRICK HENNY TSIBANDE Accused 3



BRANDON DAVID OMSWA SIMILO Accused 7



ARVO TSHEELI NATANGWE HAIPINGE Accused 8



ISMAEL OAEB Accused 9



VINCENT NDABULA MABUZA Accused 10



MIKE SANDILE MABENA SKUMBUZA APANI Accused 11





CORAM: Silungwe, J.





Heard on: 2002.10.15; 2002.10.28-31; 2002.11.01-20; 2003.01.15-22;

2003.01.24-30; 2003.02.03-28; 2003.03.10-14; 2003.04.14-

30; 2003.09.23-30; 2003.10.03-09; 2003.10.14-15;

2003.10.20; 2003.10.23-31; 2003.11.03-13; 2004.02.09-26;

2004.03.01-31; 2004.04.01-06; 2004.05.26-28; 2004.06.02-

11; 2004.06.21; 2004.11.11; 2005.02.07; 2005.02.21;

2005.02.28; 2005.03.14; 2005.03.17-18; 2005.04.25;

2005.04.27-29; 2005.05.19-20; 2005.07.04-15; 2005.07.18;

2005.07.20; 2005.07.27; 2005.12.06



Delivered on: 2006.02.22

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JUDGMENT



[1] SILUNGWE, AJ: All the present eight accused are jointly arraigned for the



following charges:







Count 1: Robbery with aggravating circumstances as defined in section 1 of

the Criminal Procedure Act, (Act 51 of 1977) as amended;





Alternatively,





1.2 Theft;





Count 2.1: Robbery with aggravating circumstances as defined in section 1 of

the Criminal Procedure Act, (Act 51 of 1977) as amended;





Alternatively,





2.2 Theft





Count 3: Possession of a machine gun or machine rifle in contravention of

section 29(1)(a), read with sections 1 and 38(2)(a), of the Arms and

Ammunition Act, (Act 7 of 1996);





Count 4: Possession of Ammunition in contravention of section 29(1)(a),

read with sections 1 and 32(2)(b), of Act 7 of 1996.







[1.1] The particulars of the charges are set out as follows:







Count 1.1: in that on or about 16 November 2000, and at or near Erf number

17, Schweringburg Street, Klein Windhoek, in the district of

Windhoek, the accused unlawfully and with the intention of

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forcing him into submission, threatened to assault Harald Schutt

by threatening to shoot him with firearm(s) and unlawfully and

with intent to steal took from him at gunpoint his cellular

telephone (valued at N$1000.00), his Nissan Bakkie with

registration number N12701SH (valued at N$51,000.00) with a

canopy valued at N$5,807.50 and a toolbox with a socket set,

spanners, hammers, chisels, pliers, wire stripper, screwdrivers,

drill set, test lamp, saws, files, drill (all valued at N$17,618.70) the

property of, or in the lawful possession of, the said Harald Schutt;

and that aggravating circumstances as defined in section 1 of Act

51 of 1977 are present in that the accused were before, during or

after the commission of the offence wielding firearms and

threatening to inflict grievous bodily harm.





Alternative to count 1:





Count 1.2 in that during the period 16 to 17 November 2000 and at or near

Windhoek in the district of Windhoek, the accused did wrongfully

and unlawfully steal a motor vehicle, a Nissan bakkie, with

registration number N12701SH (valued at N51,000.00) with a

canopy (valued at N$5,807.50), a cellular telephone at

N$1000.00), and a toolbox with a socket set, spanners, hammers,

chisels, pliers, wire stripper, screwdrivers, drill set, test lamp,

saws, files, drill (all valued at N$17,618.70) the property of, or in

the lawful possession of, the said Harald Schutt.





Count 2.1 in that on or about 17 November 2000, and at or near Windhoek,

in the district of Windhoek, the accused unlawfully and with the

intention of forcing him into submission, threatened to assault

Kapira Gerhard Thihuro by threatening to shoot him and/or by

shooting in his direction with firearms and by wounding him with

a shot fired from a R5 automatic machine gun or machine rifle

wrongfully and unlawfully and with intent to steal took from him

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N$5,300,000.00 cash, the property of, or in the lawful possession

of, City Savings Investment Bank (CSIB) and/or in the lawful

possession of, the said Kapira Gerhard Thihuro; and that

aggravating circumstances as defined in section 1 of Act 51 of

1977 are present in that the accused were before, during or after

the commission of the offence, wielding firearms and threatening

to inflict grievous bodily harm.





Alternative to Count 2:





Count 2.2 in that during the period 17 November 2000, and at or near

Windhoek in the district of Windhoek and/or in an unknown

district in the Republic of Namibia, the accused did wrongfully

and unlawfully steal N$5,300,000.00 the property of, or in the

lawful possession of, City Savings Investment Bank (CSIB) and/or

in the lawful possession of the said Kapira Gerhard Thihuro.





Count 3: that the accused are guilty of contravening section 29(1)(a), read

with sections 1 and 38(2)(a), of Act 7 of 1996:





in that on or about 17 November 2000, and at or near Windhoek

in the district of Windhoek, the accused did wrongfully and

unlawfully possess a machine gun or a machine rifle number

309094 being a firearm capable of delivering a continuous fire as

long as pressure is applied to the trigger thereof, without a permit

issued to them.





Count 4: that the accused are guilty of contravening section 29(1)(e), read

with sections 1 and 38(2)(b), of Act 7 of 1996:





in that on or about 17 November 2000, and at or near Windhoek

in the district of Windhoek, the accused did wrongfully and

unlawfully possess an unknown number of rounds of ammunition

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without being in lawful possession of a machine gun or machine

rifle capable of firing that ammunition.







[2] All the accused pleaded not guilty to all the charges. I pause here to



mention that Immanuel Hanjamba Kaukungua, Joseph Heinrich and Bertha



Nanduda all of whom had been jointly charged (with the rest of the accused) as



Accused 4, 5 and 6, respectively and who had also pleaded not guilty to all the



charges preferred against them, were discharged: Accused 4 and 5 were



discharged during the State‟s presentation of evidence when prosecution



against them was discontinued; and Accused 6 was discharged at the close of



the case for the State.







[3] A summary of the (alleged) substantial facts is set out as follows:







[3.1] On Thursday 16 November 2000, the Windhoek Branch of the Bank of



Namibia issued the Windhoek Branch of the City Savings and Investment Bank



(CSIB) with an amount of N$7,360,000.00. This amount consisted of N$3,000,



000.00 in new/used N$50.00 notes within a specific range of serial numbers,



N$4,000,000.00 used/re-issued N$50.00 notes and N$360,000.00 in used/re-



issued N$10.00 notes.







[3.2] This money was collected during the morning of 16 November 2000, from



the Bank of Namibia by Accused 2 and Kapira Gerhard Thihuro who were both



employed by Professional Security Services CC (PSS) as security officers. They

6





transported this money to the offices of CSIB in Windhoek. As CSIB requested



PSS to transport some of that money to the Ondangwa branch of CSIB,



Accused 2 and Kapira Gerhard Thihuro collected an amount of N$5,300,



000.00 of that money from CSIB during the afternoon of 16 November 2000.



The money was kept in safe custody at the offices of PSS in Windhoek before



(the anticipated) transportation thereof to Ondangwa on Friday 17 November



2000, at 01h00.







[3.3] At approximately 22h45 in the evening of Thursday 16 November 2000,



Harald Schutt arrived at his residence at No 7 Schweringburg Street in Klein



Windhoek, driving his Nissan bakkie with registration No. N12701 SH. As he



was opening the gate to his residence, the accused or some of them approached



him and demanded the keys of the motor vehicle and his cellular phone at



gunpoint. The accused took the Nissan bakkie with canopy and tools listed in



Count 1 as well as the cellular phone and drove off, after threatening to kill



Harald Schutt.







[3.4] At approximately 01h00 on Friday, 17 November 2000, Accused 2 (as



driver) and Kapira Gerard Thihuro (as crewman) departed for Ondangwa with



the N$5,300,000.00 in a PSS company vehicle, an armoured Toyota bakkie



registration No. N43572W. Whilst driving on the Windhoek-Brakwater road



towards Okahandja, the accused, who were travelling in the Nissan bakkie of



Harald Schutt, approached the Toyota bakkie and bumped against it. Accused

7





2 pulled the Toyota bakkie from the road and stopped the vehicle. The accused



in the Nissan bakkie fired shots towards the Toyota bakkie and demanded the



money and the key to the safe in which the money was. The accused received



the key to the safe from Accused 2, whereafter they removed the money from



the back of the Toyota bakkie. During the incident, Accused 1 shot Kapira



Gerard Thihuro in the abdomen with an R5 machine gun machine rifle number



309034 whereafter Kapira Gerard Thihuro shot Accused 1 with a PSS company



9mm pistol in the hand and/or abdomen. The accused drove off in the Nissan



bakkie with the money and the cellular telephone of Accused 2, leaving behind



Kapira Gerhard Thihuro and Accused 2.







[3.5] At approximately 07h45 on Friday 17 November 2000, the police found



the Nissan bakkie of Harald Schutt abandoned near Daan Viljoen road. The



canopy, registration plates, toolbox and tools as listed in Count 1 (sic) had been



removed from the vehicle and a registration plate with registration No.



N63013W was affixed to this vehicle. The Nissan bakkie as well as the Toyota



bakkie were damaged due to the bumping.







[3.6] During the morning of Friday 17 November 2000, Accused 7 took



accused 1 to the Roman Catholic Hospital in Windhoek where Accused 1



received treatment for the gunshot wound in his abdomen. Accused 1 was



arrested by the Namibian police whilst in the Roman Catholic Hospital.



Accused 2 and 3 were arrested in Namibia.

8





[3.7] On Sunday 19 November 2000, Accused 7, 8 ad 9 left Namibia together



with Accused 11 in motor vehicles of the latter and accused 9. They entered



South Africa on Monday 20 November 2000, with these two vehicles. On



Sunday 19 November 2000, Accused 10 flew from Windhoek to Cape Town.







[3.8] At approximately 04h30 on Wednesday 22 November, 2000, Accused 11,



Accused 10 and Accused 7, 8 and 9 were arrested by the South African Police



Service in house No. 75 Teresa Street, Camps Bay in Cape Town, South Africa,



and a bag containing N$909,250.00 in N$50.00 notes was found in this house.



Accused 11 was in possession of keys to open the padlock with which the bag



was locked. Accused 10 had N$50.00 notes in his possession.







[3.9] Marie Antoinette Blignaut of the Bank of Namibia identified the serial



numbers of the new/unused notes in the bag as falling within the range of



serial numbers of the new N$50.00 notes issued by the Bank of Namibia on 16



November 2000, to, amongst other banks, the Windhoek branch of CSIB.







[3.10.] During January and February 2001, Accused 5 deposited some of the



money stolen during the robbery into his account at SWA Bank in



Oranjemund. On 12 February 2001, Accused 4 deposited N$100 000.00 of the



money stolen during the robbery into his account at Swabou Bank in



Oranjemund. In September 2001, the Namibian Police recovered N$200 000.00



of the money stolen during the robbery in a hole in the ground near the

9





homestead of Jacob Thimoteus Nanduda in Ohangwena where it (sic) had been



buried by Accused 6.







[3.11] The accused (sic) did not have a permit to possess the R5 automatic



machine gun or machine rifle or ammunition to be fired from this gun or rifle.



The accused acted with common purpose at all material times.







[4] In this judgment, I will hereinafter refer to the accused as follows:







Hyacinth James Ningise, Accused 1, as James;



MacDonald Kambonde, Accused 2, as MacDonald;



Hendrick Henry Tsibande, Accused 3, as Hendrick;



Brandon David Omswa Similo, Accused 7, as Brandon;



Arvo Tsheeli Natangwe Haipinge, Accused 8, as Arvo;



Ismael Oaeb, Accused 9, as Ismael;



Vincent Ndabula Mabuza, Accused 10, as Vincent; and



Mike Sandile Mabena Skumbuza Apani, Accused 11, as Mike.







[5] MacDonald, Hendrick, Brandon, Arvo and Ismael (Accused 2, 3, 7, 8 and 9,



respectively) are Namibian citizens and were residents of Windhoek at all



material times. However, James, Vincent and Mike are non-Namibians who



happened to be in Windhoek, from South Africa, during the period 16-18



November 2000.

10





[6] Initially, Mr Christians represented James, Hendrick and Mike but during



the trial, his mandate to act for Mike was withdrawn. Mr Christians remains



the legal representative of James and Hendrick. MacDonald, Brandon, Arvo



and Ismael are all represented by Mr Murorua who also took over the



representation of Mike until the close of the case for the defence when Mike



opted to represent himself. Mr Neves appears for Vincent. The State is



represented by Mr Small, the Deputy Prosecutor-General.







[7] The case for the State is in substance a replica of the (alleged) substantial



facts. The case for the defence will be considered as I deal with the accused



individually. This has been a long trial, lasting nearly three and a half years,



with numerous witnesses testifying and the record (inclusive of exhibits) is in



excess of 12,000 pages. In the circumstances, it would be inappropriate to even



attempt to summarise the evidence of the witnesses. However, I bear in mind



all the evidence adduced in the matter as I prepare this judgment.







[8] The following facts are not in dispute.







[8.1] On October 13, 2000, Mike, with whom Vincent had stayed in Durban,



left Johannesburg, South Africa, by air together with Vincent, on a Windhoek -



bound flight.

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[8.2] On October 29, 2000, James too took a flight from Johannesburg to



Windhoek.







[8.3] On their respective arrival in Windhoek, Mike, Vincent and James stayed



at Sadrach (alias Falazza) Dube‟s residence as a result of Mike‟s initiative.







[8.4] From November 1, 2000 up to the end of that month, Ismael rented



house number No. 1709 Agnes Street in Khomasdal, Windhoek, from (Ms)



Heller Bezuidenhout.







[8.5] On Thursday November 16, 2000, the Bank of Namibia (BON) issued to



the Windhoek Branch of City of Savings and Investment Bank (CSIB) a sum of



N$7,360,000.00. This amount consisted of N$3,000, 000.00 in new N$50 notes



within a specific range of serial numbers, N$4,000,000.00 in used N$50 notes



and N$360,000.00 in used N$10 notes.







[8.6] MacDonald and Kapira were at all material times security officers



employed by Professional Security Service CC (PSS). In the morning of



November 16, 2000, they collected, in their official capacity, the amount of



money referred to in [8.5] above from the BON and transported it to the offices



of CSIB in Windhoek. That money was earmarked for transportation to CSIB



Branches at Ondangwa and Katima Mulilo.

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[8.7] CSIB requested PSS to transport N$5,300,000.00 (out of the total amount



received from the BON) to its Ondangwa Branch. Consequently, in the



afternoon of November 16, 2000, MacDonald and Kapira fetched the said sum



of money from CSIB and took it to the offices of PSS in readiness for its



transportation to Ondangwa.







[8.8] At about 22h45 on November 16, 2000, one Harald Schutt (Schutt)



arrived at his residence No 7, Schweringburg Street, Klein-Windhoek, driving a



Nissan bakkie with registration No. N12701SH.







[8.9] At once, assailants approached him and demanded, at gunpoint, keys of



the bakkie as well as his cell-phone.







[8.10] The robbers then took the Nissan bakkie with a canopy, tools as listed



in count 1 above and the cell-phone, threatening to kill Schutt as they drove



off. This was the first robbery which is the subject of the first count.







[8.11] At about 01h00 on Friday, November 17, 2000, MacDonald (as driver)



and Kapira (as crewman) set off for Ondangwa, transporting the



N$5,300,000.00 in a PSS company vehicle, to wit: an armoured Toyota bakkie



with registration No. N43527W. The money was kept in a locked safe located in



the back of the bakkie.

13





[8.12] While MacDonald and Kapira were on the outskirts of Windhoek, en



route to their destination, persons driving Schutt‟s Nissan bakkie caught up



with them and bumped against the Toyota bakkie they were travelling in.







[8.13] Using MacDonald‟s cell-phone, Kapira attempted to call Johannes



Henning Krugger Senior (Johannes Snr.), a co-proprietor of PSS, on the latter‟s



cell-phone. Johannes Snr. also endeavoured to telephonically contact Kapira in



response. These calls were registered in the Mobile Telecommunications Ltd



System (MTC) on Friday, November 17, 2000 between 01:29:20 and 01:32:11.







[8.14] MacDonald pulled the Toyota bakkie he was driving off the road and



stopped.







[8.15] The assailants in the Nissan bakkie fired shots at the Toyota bakkie and



demanded money and a key to the safe.







[8.16] The assailants obtained the safe key, and emptied the safe of its



contents. This was the second robbery which is the subject of the second



count.







[8.17] During the second robbery, Kapira was shot in the abdomen whereupon



he returned fire and thereby shot one of the robbers with a PSS company 9mm



pistol.

14





[8.18] The robbers drove away in the Nissan bakkie, taking with them the



money (from the Toyota bakkie), MacDonald‟s cell-phone and the rest of the



property referred to in the second charge, leaving behind the injured Kapira as



well as MacDonald.







[8.19] At approximately 07h45 on November 17, 2000, the Namibian Police



recovered Schutt‟s Nissan bakkie which had been abandoned near Daan



Viljoen Road, Windhoek. The canopy, registration plates, toolbox and tools as



listed in Count 1 were missing from the vehicle and a registration plate with



No. N63013W was affixed thereto.







[8.20] The Nissan and the Toyota bakkies were both damaged as a result of the



incidence of bumping, aforesaid.







[8.21] On November 17, 2000, Brandon requested Dr L C Nghalipoh to accord



medical attention to James who had sustained a gunshot wound in the



abdomen.







[8.22] Consequently, Dr Nghalipoh visited house No. 1709, Agnes Street in



Khomasdal which was being rented by Ismael and there attended to James



who was suffering from a serious abdominal wound. As James‟ condition



required surgery, he was referred to the Roman Catholic Hospital in Windhoek

15





where he was admitted and he received treatment for the gunshot wound in his



abdomen.







[8.23] While he was receiving treatment in the Roman Catholic Hospital,



James was arrested by the Namibian Police on the same day of his admission,



namely, November 17, 2000. A blood sample was obtained from him.







[8.24] MacDonald, too, was arrested in Windhoek on November 17, 2000, by



the Namibian Police. Hendrick was equally arrested by the police in Windhoek



on December 20, 2000.







[8.25] During James‟ treatment at the Roman Catholic Hospital, a projectile



was not removed from his body. X-rays taken of James by Dr Agnew on



November 20, 2000, showed that a bullet was still lodged in his body.







[8.26] None of the accused was at all material times in possession of a R5



automatic machine gun or machine rifle or ammunition to be fired therefrom.







[8.27] On Sunday, November 19, 2000, Vincent took a flight from Windhoek to



Cape Town, South Africa. On the same day, Brandon, Arvo and Ismael,



travelling in Ismael‟s Volkswagen Golf car (Golf) with registration No. N11322W,



and Mike, travelling in his BMW car with registration No. FH2377GP, left



Windhoek on their way to South Africa.

16





[8.28] On Monday, November 20, 2000, at 00h08, Mike and Ismael arrived at



Vioolsdrift border in South Africa in Ismaels‟ Golf car. On the same date at



00h10, Brandon and Arvo arrived at the South African Vioolsdrift border in



Mike‟s BMW car.







[8.29] At approximately 04h30 on Wednesday, November 22, 2000, Brandon



Arvo, Ismael, Vincent and Mike were all arrested by the South African Police in



house No. 75 Teresa Street, Camps Bay, Cape Town.







[8.30] Subsequently, all the accused referred to in paragraph [8.29], supra,



were returned to Windhoek (as regards Vincent and Mike, following their



extradition proceedings).







[9] A blood sample was collected from the steering wheel of Schutt‟s recovered



Nissan bakkie and when that sample, as well as two samples taken from



James, were sent for DNA testing, Dr Agnew found a positive match between



the sample collected from the Nissan bakkie (that had been used to facilitate



the commission of the second robbery) and the samples taken from James.







[10] Further, a fingerprint was lifted from the dashboard of the recovered



Schutt‟s Nissan bakkie which the State‟s evidence shows matched that of



Hendrick. But Mr Christians argues that the State has failed to establish that

17





the fingerprint in question was lifted from the Nissan bakkie. I will later return



to this point.







[11] The evidence of the South African police witnesses alleges that on



November 22, 2000, approximately five days after the commission of the



second robbery, a sum of N$909,250.00 in N$50 notes was found in house No.



75 Teresa Street, Camps Bay, Cape Town. That money was contained in a



black suitcase which was allegedly identified by Vincent as his. Brandon, Arvo,



Ismael, Vincent and Mike were all found there and arrested. They all (including



Vincent) claim they have no knowledge of the money found in that house.







[12] I will later assess and determine the case against and for each accused



individually.







[13] Mr Small‟s submission, on behalf of the State, as to what he reckons



should be the outcome of this case is set out here below.







[13.1] James:



Guilty on Count 1 (Robbery: Re: Schutt) as a co-perpetrator;



Guilty on Count 2 (Robbery: Re: money) as a co-perpetrator;



Guilty on Count 3 (Possession of machine gun) as a co-perpetrator;



Guilty on Count 4 (Possession of ammunition) as a co-perpetrator;

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[13.2] MacDonald:



Not guilty on Count 1;



Guilty on Count 2 as an accomplice;



Not guilty on Count 3;



Not guilty on Count 4.







[13.3] Hendrick:



Guilty on Count 1 as a co-perpetrator;



Guilty on Count 12 as a co-perpetrator;



Guilty on Count 3 as a co-perpetrator;



Guilty on Count 4 as a co-perpetrator.







[13.4] Brandon



Not guilty on Count 1;



Guilty on Count 2 as an accessory after the fact;



Alternatively: guilty of theft



Not guilty on Count 3;



Not guilty on Count 4.







[13.5] Arvo:



Not guilty on Count 1;



Guilty on Count 2 as an accessory after the fact;



Alternatively: Guilty of theft;

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Not guilty on Count 3;



Not guilty on Count 4.







[13.6] Ismael:



Not guilty on Count 1;



Guilty on Count 2 as an accomplice;



Alternatively: Guilty as an accessory after the fact;



Alternatively: Guilty of theft;



Not guilty on Count 3;



Not guilty on Count 4.







[13.7] Vincent:



Not guilty on Count 1;



Not guilty on Count 2 but guilty of the alternative crime of theft;



Not guilty on Count 3;



Not guilty on Count 4.







[13.8] Mike:



Guilty on Count 1 as an accomplice;



Guilty on Count 2 as a co-perpetrator;



Guilty on Count 3 as a co-perpetrator;



Guilty on Count 4 as co-perpetrator.

20





[14] The evidence adduced on behalf of the State shows, inter alia, that on



November 16, 2000, at about 20h00, Detective Sergeant R W Nangolo (D/Sgt)



of the Serious Crime Unit of the Namibian Police, while on standby duty,



observed a Volkswagen Golf car, with registration no. N113228W parked in



front of Nandos Restaurant (Nandos), Independence Avenue, Windhoek. The



Golf car had three occupants whom the witness came to know as James,



Brandon and Ismael. James and Ismael alighted from the car and went into



Nandos.







[15] SOME RELEVANT GENERAL LEGAL PRINCIPLES APPLICABLE TO



THIS CASE



[15.1] Onus of proof







[15.1.1] It is elementary that the onus of proof in our criminal justice



system rests upon the State to establish its case against each accused beyond



a reasonable doubt. In S v Ngunovandu 1996 NR 306 (HC), Steyn, J. expressed



himself in these terms, at 317G-318B:





“Of course anything in life is possible and extraordinary events do occur.

However, the criminal justice system and the administration of criminal justice

would be in serious jeopardy if absolute certainty were to be the required

criterion for a conviction.





Denning J, as he then was, in the judgment in Miller v Minster of

Pensions [1947] 2 All ER 372 at 373 in a well-known passage, says the

following:

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„Proof beyond reasonable doubt does not mean proof beyond the shadow

of a doubt. The law would fail to protect the community if it admitted

fanciful possibilities to deflect the course of justice. If the evidence is so

strong against a man as to leave only a remote possibility in his favour

which can be dismissed with the sentence “of course it is possible, but

not in the least probable”, the case is proved beyond reasonable doubt,

but nothing short of that will suffice.‟







A similar dictum is to be found in a judgment of the South African Court



of Appeal in S v Glegg 1973 (1) SA 34 (A). An excerpt from the English



headnote at 34H reads as follows:







„The phrase “reasonable doubt” in the phrase “proof beyond reasonable

doubt” cannot be precisely defined but it can well be said that it is a

doubt which exists because of probabilities or possibilities which can be

regarded as reasonable on the ground of generally accepted human

knowledge and experience. Proof beyond reasonable doubt cannot be put

on the same level as proof beyond the slightest doubt, because the onus

of adducing proof as high as that would in practice lead to defeating the

ends of criminal justice.‟ ”







[15.1.2] An in S v Van Wyk 1993 NR 426 (SC), the Supreme Court (per



Ackermann, AJA, with Becker, CJ., and Mahomed, AJA. [as he then was]



concurring) made the following observations at 438F-439A:







“It is convenient to cite here the following passages from the judgment in

S v Sauls and Others 1981 (3) SA 172 (A) at 182G et seg which were

quoted in the judgment of the Court a quo:

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„The State is, however, not obliged to indulge in conjecture and find an

answer to every possible inference which ingenuity may suggest any

more than the Court is called on to seek speculative explanations for

conduct which on the face of it is incriminating … A passage in a

minority judgment given by Malan JA in R v Malambo 1957 (4) SA 727 (A)

at 738 is apposite. I may add that two paragraphs in this passage were

cited with approval by Rumpff JA in S v Rama 1966 (2) SA 395 (A) at

401:





„In my opinion, there is no obligation upon the Crown to close every

avenue of escape which may be said to be open to an accused. It is

sufficient for the Crown to produce evidence by means of which such a

high degree of probability is raised that the ordinary reasonable man,

after mature consideration, comes to the conclusion that there exists no

reasonable doubt that an accused has committed the crime charged. He

must, in other words, be morally certain of the guilt of the accused.





An accused‟s claim to the benefit of a doubt when it may be said to exist

must not be derived from speculation but must rest upon a reasonable

and solid foundation created either by positive evidence or gathered from

reasonable inferences which are not in conflict with, or outweighed by,

the proved facts of the case.‟”







[15.1.3] An accused person, however, has no obligation to prove his innocence.



The Supreme Court of Appeal in the case of S v V 2000 (1) SACR 453 succinctly



put it thus at 455a-c:







“It is trite that there is no obligation upon an accused person, where the

State bears the onus, „to convince the court‟. If his version is reasonably

possibly true he is entitled to his acquittal even though his explanation is

improbable. A court is not entitled to convict unless it is satisfied not

23



only that the explanation is improbable but that beyond any reasonable

doubt it is false. It is permissible to look at the probabilities of the case to

determine whether the accused‟s version is reasonably possibly true but

whether one subjectively believes him is not the test. As pointed out in

many judgments of this Court and other courts the test is whether there

is a reasonable possibility that the accused‟s evidence may be true.”







[15.2] CIRCUMSTANTIAL EVIDENCE



Courts normally consider independent items of circumstantial evidence and



their cumulative effect. In R v De Villiers 1944 AD 493, the Appellate Division



said at 508 (per Davis, AJA with Watermeyer, CJ, Tindall, JA, Centliver, JA,



and Feetham, JA, concurring):







“As stated by Best, Evidence (5th ed …)

„Not to speak of greater numbers; circumstantial evidence – though each taken

by itself weigh but as a feather – join them together, you will find them pressing

on the delinquent with the weight of a millstone … It is of the utmost

importance to bear in mind that, where a number of independent circumstances

point to the same conclusion the probability of the justiness of that conclusion

is not the sum of the simple probabilities of circumstances but is the compound

result of them.‟





…The Court must not take each circumstance separately and give the accused

the benefit of any reasonable doubt as to the inference to be drawn from each

one so taken. It must carefully weigh the cumulative effect of all of them

together, and it is only after it has done so that the accused is entitled to the

benefit of any reasonable doubt which it may have as to whether the inference

of guilt is the only inference which can reasonably be drawn.”

24





See: also R v Blom 1939 AD 188 at 198; S v Hotel Onduri (Pty) Ltd and Another



1993 NR 78 at 82I-J – 83A-C.







[15.3] SINGLE WITNESS



In terms of section 208 of Act 51 of 1977, an accused may be convicted of an



offence on the evidence of any single competent witness provided the court,



after weighing the evidence of the single witness, is satisfied that the truth has



been told. A case in point is S v Sauls and Others 1983 (3) SA 172 (AD) where



the Appellate Division held as follows, at 180E-G:







“There is no rule of thumb, test or formula to apply when it comes to a

consideration of the credibility of the single witness (see: the remarks of Rumpff

JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial judge will weigh his

evidence, will consider its merits and demerits and, having done so, will decide

whether it is trustworthy and whether, despite the fact that there are

shortcomings or defects or contradictions in the testimony, he is satisfied that

the truth has been told. The cautionary rule referred to by De Villiers, JP in

1932 may be a guide to a right decision but it does not mean





„that the appeal must succeed if any criticism, however slender, of the

witness‟ evidence were well founded.‟





Per Schreiner, JA, in R v Nhlapo (AD 10 November 1952) quoted in R v

Bellingham 1955 (2) SA 566 (A) at 569. It has been said more than once that the

exercise of caution must not be allowed to displace the exercise of common

sense.”

25





[15.4] ACCESSORY AFTER THE FACT



Section 257 of Act 51 of 1977 provides that:







“If the evidence in criminal proceedings does not prove the commission of the

offence charged but proves that the accused is guilty as an accessory after that

offence or any other offence which he may be convicted on the offence charged,

the accused may be found guilty as an accessory after that offence.”







A person is an accessory after the fact to the commission of the crime if, after



the completion of the crime, he/she unlawfully and intentionally engages in



conduct intended to enable the perpetrator or the accomplice in the crime to



evade liability for his/her crime, or to facilitate such person‟s liability.







In S v De Villiers 1992 NR 363, this Court expressed itself in these terms at



370A-E (per O‟Linn, J, with Teek, J [as he then was] concurring):







“In the case of R v Nkau Majara 1954 AC 235 (PC), the Privy Council, in a case

which came on appeal from Basutoland and fell to be decided under the

Roman-Dutch common law as applied in the Cape of Good Hope, decided that:





„The term “accessory after the fact” as in criminal law does not, under the

law of South Africa – the Roman-Dutch common law – bear a meaning

identical with that which it has under the English law. To constitute a

person an accessory after the fact in South Africa it is sufficient to

establish that assistance was given to the principal offender in

circumstances from which it would appear that the giver associated

himself with, in the broad sense of that word, the offence committed, and

Roman-Dutch law makes no distinction for this purpose between giving

26



assistance by remaining inactive and refraining from doing something,

and giving assistance by doing something. The kind of impassivity, when

it occurs after the commission of an offence by another, which has for its

objective the giving of assistance to that other to escape, is under the law

of South Africa punishable as the offence of being an accessory after the

fact.‟





With humble respect I accept this quotation from the headnote of that case as

correctly stating our law. It is of course clear from the details of that case that it

is not merely impassivity in the case of failing to report a crime to the proper

authorities that amounts to an offence. It is that failure, coupled with the other

circumstances of accused‟s conduct, which constitutes such association with

the crime that thereby material assistance is rendered to the principal offender

after the completion of the offence.”







See: also S v Velumurugen and Another 1985 (2) SA 437 (D) at 446I-J –447A;



Jonas Kadila and Others 2001, Case No. SA 5/2000 (unreported judgement of



the Supreme Court).







[15.5] COMMON PURPOSE



The doctrine of common purpose provides that where two or more persons



agree to commit a crime or to 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. See: S v Safatsa and Others 1988 (1)



SA 868 at 897D; S v Mgedezi 1989 (1) SA 687 (A) at 705D-J – 706A; S v



Khumalo 1991 (4) SA 310(A) at 315G-I.

27





On a charge of having committed a “consequence crime”, it is not necessary to



establish precisely which member of the common purpose brought about the



consequence, provided that it is established that one of the group caused this



result.







[15.6] THEFT



It is trite law that theft is a continuing crime. By this is meant that:







“[T]he theft continues as along as the stolen property is in the possession of the

thief or of some person who was a party to the theft or of some person acting on

behalf of or even, possibly, in the interests of the original thief or party to the

theft.”







See: Per Tindall, J., in R v Attia 1937 TPD 102 at 106; R v Von Elling 1945 AD



234 at 240.







“Someone (X) who amino furandi assists the thief after the original contrectatio



is a thief and not merely an accessory after the fact if at the time of his



assistance the crime still continues (viz if the property is still in the possession



of the thief or of someone on his behalf). If the crime still continues, the thief by



his continuing control is effecting a present contrectatio and will in future effect



further contrectationes”. See: South African Criminal Law and Proceduce, Vol.



II, Common Law Crimes, Milton, 3rd Ed. at 631.

28





In S v Velumurugen and Another 1985 (2) SA 437, it was held at 446I-467D



that:





“Since theft is a „continuing crime‟ in the sense that it continues to be

committed as long as the thief, his agent or party to the theft is in

possession of the stolen property, one who assists such a person after

the original taking but while the theft „continues‟ usually qualifies as a

perpetrator and not merely as an accessory after the fact.”







And in S v Nakale 1994 NR 264 (HC) Strydom, JP (as he then was) and Frank,



J, observed at 265A, that: “As theft is a continuing offence, there is no such



thing as an accessory after the fact to the theft”. A person, who does what



would for another crime result in such a person being an accessory after the



fact, will be guilty of the crime of theft.







What is articulated in the South African Criminal Law and Procedure, Vol. II,



Common Law Crimes, Milton, 3rd Ed. at 630 is, in my view, apposite:







“A person whose conduct amounts to the crime of receiving stolen property

commits theft in nearly every case. By „receiving‟ the property he effects a

contrectatio of it, and the mere fact that the thief has already effected an initial

contrectatio does not matter. The receiver is a thief on an application of the

definition of theft, quite apart from the fact that this conclusion may perhaps

also be justified by the „continuing crime‟ doctrine. The only time that a

„receiver‟ is not also a thief is where he lacks animus furandi.”

29





[16] I now turn to consider the evidence against and for each accused in the



light of the preceding general legal principles.







[17] James



[17.1] The evidence against James is, inter alia, that he is a South African



citizen whose home is located in Soweto, Johannesburg. On October 29, 2000,



he left South Africa through Johannesburg Airport on flight No. SA 070, bound



for Namibia and that on arrival at Hosea Kutako Airport, he was granted a 90-



day visitor‟s entry permit. He was subsequently brought by Mike to stay with



him and Vincent at Falazza‟s residence.







[17.2] On November 11, 2000, James bought a Motorola cell-phone in



Windhoek for which he obtained a pre-paid No. 081 247 8851.







[17.3] On November 16, 2000, at about 20h00, D/Sgt Nangolo of the Serious



Crime Unit of the Namibian Police, who was on standby duty, observed a VW



Golf car with registration No. N113228W, parked in front of Nandos in



Independence Avenue, Windhoek. He saw Brandon remain in the vehicle and



two other occupants (of the vehicle), namely, James and Ismael, go into



Nandos.







[17.4] During the commission of the second robbery, Kapira shot one of the



assailants in the abdomen with a PSS company 9mm pistol.

30





[17.5] The assailants took N$5.3m from the Toyotta bakkie and drove off in the



Nissan bakkie with the money, et cetera.







[17.6.1] On November 17, 2000, at about 07h30, Brandon telephonically



contacted Dr LC Nghalipoh and told him that a friend of his was very ill and



that he needed to be seen at home. Dr Nghalipoh told Brandon that he should



bring his friend to the practice but Brandon responded that the friend was very



ill, adding that the doctor should go and relieve him of pain. The doctor



reiterated that the patient should be brought to his practice at 08h20; Brandon



agreed. When Brandon later arrived at the doctor‟s practice, without his



injured friend, he once again requested the doctor to go and relieve the patient



of pain at home. On the doctor asking Brandon what was wrong with his



friend, he responded that he had been shot by a friend.







[17.6.2] When the doctor enquired about payment for the patient he was



required to attend to, Brandon replied that money was not a problem, adding



that they could even pay N$3,000.00 should that be needed. The doctor



indicated that he would not go out to see the patient in the absence of a pre-



payment. Brandon left the practice and returned within a few minutes with a



batch of N$50 notes. Thereafter, the doctor and his secretary were led by



Brandon to a house in Khomasdal (which, as it transpired, was No. 1709,



Agnes Street) where the doctor found James. On examination, the doctor



indicated that the injury was quite serious and that the patient (James) should

31





be taken to a hospital or else he would die. Brandon and another person



insisted that he be treated there, but James was keen to be taken to hospital.



James allegedly told Dr Nghalipoh that he had been in pain for almost eight



hours.







[17.6.3] Subsequently, James was transported to the Roman Catholic Hospital



in Windhoek where he was admitted and given medical attention. On



admission, he gave his cell-phone number as well as that of Mike to the



hospital authorities.







[17.6.4] On November 20, 2000, X-rays were taken which, on the testimony of



Dr Nadine Agnew, showed that there was a bullet present in James‟ body.







[17.6.5] On examination of the X-rays, Warrant Officer Frederick Johannes



Vilonel (a ballistics expert) came to the conclusion that the bullet in James‟



body was a 9mm projectile.







[17.6.6] It is Mr Small‟s submission that a positive DNA match was made



between James‟ blood and a sample of blood collected by D/Sgt Shikufa from



the steering wheel of Schutt‟s Nissan bakkie which had been used to perpetrate



the second robbery.

32





[17.6.7] James‟ version is, inter alia, that on November 16, 2000, he was



invited to a party by Cheeks at house number 1709, Agnes Street, in



Khomasdal; that he remained at that house from 18h00 up to 21h00, during



which period a cousin of his and two girls used his cell-phone. At 21h00, he



and others went to Kalahari Sands Hotel and later to the Country Club where



they remained up to 00h50 on November 17, 2000. From there, they went to



his girlfriend‟s house in Eros and subsequently his cousin took him back to



Cheeks‟ house in Khomasdal at 02h30, arriving there at 02h45. After he had



had a bath, he started calling persons in South Africa. No explanation is given



why such calls were made so early in the day!







[17.6.8] Cheeks allegedly returned home at 06h00 – 06h10 on November 17,



2000, and allegedly shot James accidentally. Thereafter, Cheeks went out but



later returned with Brandon. Subsequently, James was seen by Dr Nghalipoh.



He then went to the Roman Catholic Hospital, by taxi, for treatment. He was



later arrested by the Namibian Police. He denies having been taken to the



hospital by Brandon.







[17.6.9] James‟ witness, Ashley Warner, testified that he and James were in



Eros during the early hours of November 17, 2000.







[17.6.10] Mr Christians submits that it is common cause that James had cell-



phone No. 081 247 8851 at the time of the second robbery. He goes on to say

33





that the position of the person who used James‟ cell-phone at the time of the



second robbery is indicated as Erospark which corroborates James‟ evidence



and that of Ashley Warner that they were in Erospark during the time of the



second robbery. He contends that the defence evidence of alibi as well as the



defence evidence showing the circumstances under which James was shot



should be accepted as reasonably possibly true; and that the Court should



thus give the benefit of doubt to James and thus acquit him.







[17.6.11] Mr Small, however, argues that the defence evidence in rebuttal of



the State‟s evidence is false and should be rejected as such. He submits that



some of the evidence against James and his co-accused is direct while some of



it is circumstantial. As regards circumstantial evidence, Mr Small contends



that it can, when put together, be compelling.







[18] On a proper evaluation of the evidence against and for James, the



following facts emerge.







[18.1] On October 29, 2000, James arrived in Windhoek and within about



three days of his arrival, Ismael (Accused 9) rented house No. 1709, Agnes



Street in Khomasdal.







[18.2] He subsequently joined Mike (Accused 11) and Vincent (Accused 10) as



they all stayed together at Falazza‟s house in Windhoek.

34









[18.3] On November 16, 2000, at about 20h00, D/Sgt Nangolo observed James



and Ismael emerge from Ismael‟s VW Golf car with registration No. N113228W



wherein Brandon (accused 7) remained; this was at Nandos in Independence



Avenue, Windhoek.







[18.4] At about 22h45 on November 16, 2000, the first robbery took place at



Schutt‟s residence in Klein Windhoek during which the assailants got away



with Schutt‟s Nissan bakkie with registration No. N12701SH.







[18.5] Shortly after 01h00 on November 17, 2000, Schutt‟s Nissan bakkie was



used to facilitate the commission of the second robbery during which one of the



robbers was shot by Kapira, the crewman who had been travelling with



MacDonald in the PSS unmarked security Toyota bakkie on a mission to



transport N$5.3 million to Ondangwa.







[18.6] On November 17, 2000, D/Sgt Shikufa collected a blood sample from



the steering wheel of Schutt‟s Nissan bakkie which positively matched the



blood sample taken from James. The expert evidence shows that there is only



one in 14 trillion chance that James is not the depositor of the blood found in



Schutt‟s Nissan bakkie.

35





[18.7] In the morning of November 17, Brandon telephoned Dr Nghalipoh and



asked the latter to give medical attention to James at home.







[18.8] Dr Nghalipoh was subsequently led to house No. 1709 Agnes Street,



Khomasdal, the very house that was being rented by Ismael, where he found



James with a serious abdomen injury. James told Dr Nghalipoh that he had



been in pain for almost eight hours.







[18.9] The cell phone used by Brandon to call Dr Nghalipoh bore Mike‟s cell



phone number, but Brandon claimed that it belonged to Cheeks who was



allegedly using house No. 1709 Agnes Street.







[18.10] Brandon gave as reason for requesting Dr Nghalipoh to treat James at



home that he was apprehensive about James‟ treatment elsewhere because the



latter was not in possession of (the requisite) immigration papers. On the



contrary, however, James had been given the 90-day entry visa on arrival at



Hosea Kutako Airport on October 29, 2000.







[18.11] When James‟s X-rays were examined, it was revealed that he still had



a 9mm projectile in his abdomen. I will later return to James.

36





[19] The next accused for consideration is MacDonald (Accused 2). It is



common cause that he was the driver of the PSS Toyota bakkie which was used



for the purpose of transporting the N$5,3 million from Windhoek to Ondangwa.







[19.1] It is not in dispute that MacDonald and Kapira were both security



employees of the PSS; and that they commenced their journey to Ondangwa at



01h20 on November 17, 2000. MacDonald had with him cell-phone No. 081



245 5850.







[19.2.1] The evidence against MacDonald, according to Kapira‟s testimony, is,



inter alia, that when the Nissan bakkie bumped against the Toyota bakkie



which MacDonald was driving, the latter said that persons (in the Nissan



bakkie) were going to rob them. When Kapira asked him why he had said so,



MacDonald made no response. Kapira then suggested that they should make a



U-Turn and quickly drive back; however, MacDonald yet again made no reply.







[19.2.2] Kapira used MacDonald‟s cell-phone and called his boss, Johannes,



Snr , about the (sudden) turn of events.







[19.2.3] The assailants demanded money and keys.







[19.2.4] MacDonald then said: “the keys are taken”. When Kapira queried how



(the keys had been taken), MacDonald kept quiet. Kapira denies having ever

37





handed the keys and the cell-phone to the assailants. A person was on the top



of the Toyota bakkie (MacDonald confirms this) and that person fired a shot



downwards upon the roof of the Toyota bakkie.







[19.2.5] When Kapira asked MacDonald for a pistol, the latter made no



response, whereupon Kapira found the pistol under MacDonald‟s seat. He



denied having been handed the firearm by MacDonald.







[19.2.6] When Kapira tried to shoot, MacDonald told him not to do so as he



(MacDonald) would be able to identify the robbers!







[19.2.7] A cell-phone print-out of MacDonald‟s cell-phone shows seven



incoming calls from a cell-phone bearing James‟s cell-phone number on



November 16, 2000, after 20h00. He is evasive when confronted with calls



made to his cell-phone from fixed numbers 271 266, 215 749 and 262 340,



especially that the said numbers also contacted cell phone numbers of Mike



and Hendrick.







[19.2.8] In a bail application, MacDonald said that he had heard one of the



robbers scream words to the effect that he had been shot or injured. But before



this Court he denies having said that.

38





[19.2.9] During the bail application, MacDonald stated that the robbers had



demanded safe keys. Before me, however, his testimony is that it was Kapira



that demanded the safe keys; he cannot say whether the robbers asked for the



safe keys. He is noticeably evasive.







[19.2.10] In his defence, MacDonald testifies, inter alia, that he did not



participate either directly or indirectly in any of the robberies, et cetera.







[19.2.11] In his attack on the prosecution evidence of MTC computer cell-



phone print-outs, Mr Murorua submits on behalf of MacDonald and the other



clients of his (Accused 7, 8 & 9) that such evidence is fraught with many



lacunae to be a useful aid to the argument advanced by the State, to wit, that



the cell-phone print-out evidence shows proof of interconnectivity between



MacDonald‟s cell-phone on the one hand and James‟ cell-phone on the other



and that, consequently, Macdonald was not party to the conspiracy in respect



of the second robbery. He goes on to say that the oral evidence of two witnesses



from the MTC, i.e. Messrs Riedel and van Wyk, is inadmissible as such



evidence is not only based on inadmissible MTC computer print-outs but also



the true author and preparer of the said print-outs is the MTC IT (Information



Technology) Department. In support of his argument, Mr Murorua cites the



case of S v Harper & Another 1981 (1) SA 88 (AD) at 91G-H and 94A. Mike



(Accused 11) joins issue with Mr Murorua in this regard.

39





[20] In casu, it is noteworthy to mention that there was, in reality, no



resistance to the admissibility of the computer print-outs.







[20.1] The admissibility of computer print-out evidence in criminal cases falls



within the purview of section 221(1) of the Act 51 of 1977.







[20.2] In S v Harper & Another, supra, the crucial question that arose was



whether or not computer print-outs are admissible as documents. In



considering the meaning of the term „document‟, as defined in section 221,



supra, Milne, J, made the following remarks at 95E-H, 96D-E and 97C-H:





“The extended definition of document is clearly not wide enough to cover a

computer, at any rate where the operations carried out by it are more than the

mere storage or recording of information…





The wording of the section … is entirely appropriate to the production of

microfilm as evidence since the microfilm itself can be produced. Furthermore,

microfilm is a means by which information is stored, and recorded … The

computer print-outs consist of typed words and figures and would, prima facie,

clearly fall within the ordinary meaning of the word „document‟.





It seems to me, therefore, that it is correct to interpret the word „document‟ in

its ordinary grammatical sense, and that once one does so the computer print-

outs themselves are admissible in terms of section 221. Once that situation has

been achieved, then it seems to me that the main thrust of the attack upon the

admissibility of those documents disappears.





I, accordingly, hold that the documents objected to are admissible and the

objection is overruled.”

40





[20.3] My understanding of the rationale in S v Harper & Another, supra, is



that information obtained from computer print-outs is, prima facie, admissible



provided the function of the computer was purely passive in that it merely



recorded or stored the information. In other words, the recording or storing of



such information by the computer should have been mechanical, that is,



without the intervention of the human mind.







[20.4] In casu, the information on the computer print-outs was recorded and



stored without the intervention of the human mind, I come to the conclusion



that those computer print-outs are admissible in evidence. Consequently, the



objection to their admissibility is overruled.







[21] One outstanding issue that needs to be resolved in relation to MacDonald



is the question of credibility to which I will return later.







[22] I now turn to consider the evidence against and for Hendrick (Accused 3).







[22.1] The prosecution case against Hendrick is that a fingerprint lifted from



the dashboard of Schutt‟s Nissan bakkie, the subject of the first robbery, which



was used to facilitate the commission of the second robbery, matched his own



fingerprint.

41





[22.2] Schutt testifies that a sticker shown on photograph 8 in Exhibit D had



been on the dashboard of his Nissan bakkie for a long time; and that it was still



there when the assailants relieved him of the vehicle during the first robbery



and after its recovery on the 16 and 17 November, respectively. Indeed, the



said sticker was still in the vehicle when Schutt gave evidence in this Court.







[22.3] On November 17, 2000, after the recovery of Schutt‟s Nissan bakkie,



D/Sgt Shikufa took photographs of the vehicle and lifted a fingerprint from the



sticker on the dashboard of the vehicle.







[22.4] Hendrick was arrested on December 20, 2000, but he could not say



where he was during the material time on November 16-17, 2000.







[22.5] His fingerprints were taken from him on December 20, 2000, and on



January 31, 2001, allegedly because his first set of fingerprints was not clear



enough.







[22.6] Inspector Blaauw, a fingerprint expert, compared the fingerprint lifted



from the Nissan bakkie with those of Hendrick and found that both sets



belonged to Hendrick.







[22.7] Mr G M Coetzee, Hendrick‟s fingerprint expert witness, is of the opinion



that Hendrick‟s fingerprint was on the folien.

42





[22.8] On being asked whether he had a cell-phone (at all material times),



Hendrick‟s response is that he took it for repair and that it got stolen. He does



not deny in cross-examination that he previously used a cell-phone No. 081



244 3351.







[22.9] On January 21, 2001, a starter pack for cell-phone No. 081 244 3351



was found in Hendrick‟s house.







[22.10] Exhibits Z4.1-Z4.9 show calls made from cell-phone No. 081 244 3351



between November 13 and 20, 2000.







[22.11] From November 13, 2000, at 12:43:20 up to November 16, 2000, at



23:32:23, a cell-phone with serial No. 493006303866116 (Exhibit 17) was used



with a sim card bearing No. 081 244 3351 which is attributable to Hendrick.







[22.12] On November 17, 2000, the sim card No. 081 244 3351 was used in a



cell phone with serial No. 448 8354 14 32 79 610 (Exhibit 16) at 08:04:44 and



08:06:22. This cell-phone allegedly belonged to Mike.







[22.13] Still on November 17, at 08:34:37, cell-phone with serial No. 49



3006303866116 (Exhibit 17) was again used with sim card No. 081 244 3351



(Hendrick‟s No.) until 19:02:05 on November 17, 2000.

43





[22.14] On November 18, 2000, the sim card with No. 081 244 3351 was used



in a cell-phone with serial No. 5678747874987412 until November 20, 2000.







[22.15] According to exhibit Z3.7-Z3.15, Mike allegedly used mostly exhibit 16:



a grey Motorola with serial No. 4488354143279610 from November 13-18,



2000 at 20:59:08 until he allegedly changed his sim card to exhibit 14: a silver



Nokia 8850 with serial No. 448901105890700.







[22.16] On November 12, 2000, a miss-call was indicated from a fixed



telephone No. 262 340 which appears on the print-out of MacDonald. Further,



on November 16, a cell-phone print-out of Hendrick registered incoming calls



from the same fixed line telephone No. 262 340. The printout of MacDonald



also reflects such calls.







[22.17] In addition, telephone contacts as shown on the print-outs of



MacDonald and Hendrick were made on November 16 from 18:31:28 to



23:32:23 and on November 17 at 08:34:37.







[22.18] Hendrick‟s version before this court is, inter alia, a denial of the State‟s



incriminating evidence. He alleges that he is unable to remember where he was



during the evening of November 16 and the early morning of November 17,



2000.

44





[22.18.1] He knew James and Mike, for instance, as he used to see them in the



company of Falazza.







[22.18.2] He explains that his fingerprint found in the Nissan bakkie got there



when he had an innocent lift from one Temba. At one stage he suggests that



the fingerprint was planted in the Nissan bakkie. At another stage, he suggests



(through his expert witness) that it was not found in the Nissan bakkie but that



it was lifted from another sticker!







[22.18.3] He denies having ever possessed the blue Nokia cell-phone (exhibit



17) and alleges that he knows nothing about the Tango Starter Pack with No.



081 244 3351 which was found in a cupboard in his house.







[22.18.4] He testifies that he cannot remember ever owning a cell-phone like



exhibit 17 (the blue Nokia). Further, he states that he cannot be positive about



that. Lastly, he says that he never owned a Nokia cell-phone.







[22.18.5] Hendrick‟s prevarication when giving evidence about the fingerprint



found in Schutt‟s Nissan bakkie and whether he used or owned a Nokia cell-



phone is conspicuous. I find that his version cannot reasonably possibly be



true; it is in fact false. I am satisfied that the State‟s witnesses are credible;



that the State has established that the fingerprint lifted from Schutt‟s Nissan



bakkie belongs to Hendrick and that it had not been left there innocently.

45





Further, I am satisfied that the Tango Starter Pack bearing the No. 081 244



3351, which was found in his house, belonged to him; that he had a cell-phone



at all material times; and that he made common cause in the matter.







[23] This brings me to a consideration of the case against and for Brandon



(Accused 7).







[23.1] The evidence that implicates Brandon is contained in the proceedings



before this Court as well as in the proceedings during bail applications in Cape



Town and in this Court (before another judge).







[23.2] Prior to, during the commission of the two robberies in question, and



presumably sometime thereafter, Brandon was employed in the Ministry of



Health and Social Services as an Assistant Personnel Officer. His office



maintains an attendance register which has to be signed in and out by



employees. Sick leave and vacation leave have to be notified to a relevant



superior.







[23.3] Brandon did not sign the attendance register and he was absent from



official duty for the weekdays: October 23-27; October 30-November 03;



November 6-10; November 13-17; and on November 20, 2000. He did, however,



mention to one co-worker, Shikimeni, that he was not feeling well and that he



was going to see a doctor, adding that he would report for duty later that day;

46





however, he never did. It is alleged that he informed both Shikimeni and



another co-worker - van Wyk - that he was going to see a doctor; that he was



booked off by the doctor and that he would send someone to bring to the



Ministry a (medical) certificate. No such person was ever sent and no medical



certificate was furnished by him.







[23.4] On November 16, 2000, at about 20h00, Brandon was, as previously



indicated, seen by D/Sgt Nangolo at Nandos, Independence Avenue, Windhoek,



in the company of James and Ismael. He remained in what we now know as



Ismael‟s VW Golf car with registration No. N113228W, while his other



companions went into Nandos.







[23.5] On November 17, 2000, at about 07h30, Brandon telephonically



contacted Dr Nghalipoh and reported to him that he had a very sick friend and



that he would like the doctor to see the patient at home. The rest of the



evidence in this regard is essentially a narrative of what was stated when the



evidence against, and for, James was reviewed, save to say that Brandon



allegedly told the doctor‟s secretary not to talk to anyone about the patient‟s



(James‟) injury. In the event of the Court accepting this narrative, why would



Brandon caution the doctor‟s secretary to refrain from revealing the patient‟s



injury if there was nothing to hide?

47





[23.6] On November 18, Brandon contacted Dr Nghalipoh by telephone to get a



progress report on his patient friend. The doctor spoke to him but made no



mention about police intervention in the matter.







[23.7] In the evening of November 18, Brandon again contacted Dr Nghalipoh



and expressed fury at him, accusing him of having reported the matter to the



police. He told the doctor words to the effect that he (the doctor) had betrayed



them. The question that at once springs to mind is whether Brandon‟s reaction



was innocent or whether he had, at that early stage, a clear picture of some



information or event about which he felt passionately protective!







[23.8] Subsequently, Dr Nghalipoh‟s secretary, who had accompanied the



doctor when the latter attended to the patient at his “home”, pointed out to



Const. Hilundua, house No. 1709, Agnes Street, Khomasdal, Windhoek, as



being the house where the doctor had attended to the patient. That was the



very house that Ismael had rented from (Ms) Bezuidenhout at the beginning of



November 2000. During that month, Bezuidenhout visited the house and there



found Ismael in the company of a friend of his, to wit, none other than



Brandon!







[23.9] Upon Bezuidenhout visiting the rented house at the end of November



2000, she found no one there and was thus compelled to break into her own



house!

48





[23.10] When Dr Nghalipoh was called to attend to James in the morning of



November 17, it was Mike‟s cell-phone No. 081 245 7929 that was used by



Brandon, although the latter would like the Court to believe that that cell-



phone belonged to someone by the name of Cheeks!







[23.11] On November 20, 2000, at 00h08, Ismael and Mike arrived in South



Africa at Vioolsdrift, travelling in Ismael‟s VW Golf car registration No.



N113228W. On the same date, at 00h10, Brandon and Arvo also arrived in



South Africa at Vioolsdrift, travelling in Mike‟s BMW car registration No.



FH2377GP. The explanation offered by Brandon, Ismael and Mike that the Golf



car had developed a clutch problem and that Mike was test-driving it across



the border sounds extremely spurious in the circumstances of this case: why



did the test-driving (if there was any) have to be through the international



border?







[23.12] As already shown, it is common cause that at about 04h30 on



November 22, 2000, Mike, Vincent, Brandon, Arvo and Ismael were all



apprehended by the South African Police at house No. 75 Teresa Street, Camps



Bay, Cape Town.







[23.13] On the occasion of the arrest of Mike, Vincent, Brandon, Arvo and



Ismael, the South African Police found in the house (of their arrest) the sum of



N$909,250.00 in a black suitcase, reportedly identified by Vincent as his.

49





When Vincent was asked as to who the owner of the money was, he allegedly



could not, or did not, provide an answer. The money was in a plastic bag



(within the suitcase) which was in batches of N$50.00 notes. The bag was



locked with a small padlock. Inspector Engelbrecht asked Vincent and Mike for



a key. Mike said something in Xhosa or Zulu to Vincent and thereafter he



handed over a bunch of keys from a drawer in the bedroom table. On being



asked which key could unlock the padlock, Mike allegedly indicated a key to



use whereupon Inspector Engelbrecht unlocked the padlock, opened the bag



and discovered that it was full of N$50.00 notes.







[23.14.] Brandon was aware, prior to the launching of the bail application in



Cape Town, that the Namibian Police were interested in money that had been



the subject of robbery in Namibia.







[23.15] Brandon‟s version, inter alia, is that he was not in any way involved in



the commission of the crimes as alleged.







[23.15.1] Although he alleges that he was booked off by Dr Saunderson from



October 23, 2000, the doctor‟s testimony, however, is that he saw Brandon on



October 24, not on October 23, and that he had no record of having booked



him off. If at all he booked him off, it would, at most, have been for a week as



the patient‟s complaint merely related to an ankle sprain. Further, Brandon



alleges that he returned to the doctor who booked him off again. But the doctor

50





has no records to indicate that the patient ever came back to him. Thus,



Brandon lacks medical support to show that he was booked off, as alleged, for



a prolonged period in excess of one week; and indeed, no leave whatsoever was



granted to him by his superior. It is quite clear that Brandon‟s story about his



absence from his place of work on the alleged medical ground is nothing less



than a figment of his imagination.







[23.15.2] Brandon alleges that Cheeks gave him his cell-phone number; that



Cheeks was originally from South Africa but that he could not tell whether the



latter was in South Africa or in Namibia at the time of giving evidence in Court.



Further, he claims that he telephonically contacted the doctor in Cheeks‟



presence and that he used Cheeks‟ cell-phone!







[23.15.3] Brandon denies that he introduced Cheeks to Ismael which is



contrary to Ismael‟s testimony during the bail application in Cape Town.







[23.15.4] Brandon states that he was with Ismael, Falazza and Ducks at



Nandos. During the High Court bail application, however, Brandon testified



that he had been with Ismael only. Obviously, Brandon‟s varying versions are a



manifestation that he is lying through his teeth. It is clear that Brandon played



a crucial role in facilitating the treatment of James and that he endeavoured to



conceal the circumstances in which James had sustained his serious



abdominal injury.

51





[23.15.5] On a proper evaluation of the evidence in its entirety, in so far as it



relates to Brandon, it is evident that the case against him is cogent. I accept as



truthful the State‟s version that Brandon told Dr Nghalipoh‟s secretary to



refrain from telling anyone about James‟ injury; that he accused Dr Nghalipoh



of having “betrayed” them as was evidenced by the police intervention in



James‟ case; that on his own version in his Cape Town bail application, he took



James to the Roman Catholic Hospital; that he owned a cell-phone at all



material times; inter alia, that he had told lies about, inter alia, having been on



sick leave; and that I am satisfied that the so called Cheeks is a fictitious



character. Brandon‟s cell-phone print-out tends to show that he must have



been well aware of what had happened. It seems to me that the main reason for



making his trip to Cape Town was possibly to go and have a fair share in the



ill-gotten loot. It is little wonder that he was found and arrested in the house



where part of the money stolen in the second robbery was discovered. I find



that he made common cause in the matter; that his version cannot reasonably



possibly be true; that it is false and, therefore, it is rejected as such.







[24.] I will now briefly examine the evidence against and for Arvo (Accused 8).



As in the case of Brandon, the evidence that implicates Arvo is contained in the



trial proceedings of this Court as well as during the bail applications in Cape



Town and in this Court before (a different judge).

52





[24.1] Arvo confirms that he travelled from Windhoek to Cape Town in Ismael‟s



Golf‟s car together with Brandon. He was found and arrested in house No. 75



Teresa Street, Camps Bay, Cape Town, together with Mike, Vincent, Brandon



and Ismael. It is common cause that the sum of N$909,250.00 was also



allegedly found in that house and that this was the subject of the second



robbery.







[24.2] He states that he only met Mike in Cape Town. But in the HighCourt



bail application, he testified that Mike and Ismael had driven through the



(South African) border using the VW Golf car; and that he and Brandon had



done the same, using the BMW car.







[24.3] It is alleged that Arvo made common cause with the lies of Brandon and



Ismael in the Cape Town bail application by tailoring his evidence in an



attempt to corroborate the false versions of Brandon, Ismael and Vincent.







[24.4] Arvo denies having in any way been involved in the commission of the



crimes charged.







[24.5] Mr Murorua submits on behalf of Arvo that his client knows Brandon



and Ismael but that he has no knowledge of the remainder of the accused.



However, Arvo‟s own evidence in the bail applications shows that Mike and

53





Ismael entered South Africa through the South African-Namibian border,



travelling in the Golf car while Brandon and Arvo did so using the BMW car.







[24.6] Mr Murorua further submits that in the circumstances of this case,



there is no conduct on the part of Arvo that attracts criminal liability. It seems



to me that there is merit in Mr Murorua‟s submission because I consider that



the evidence against Arvo is not sufficiently cogent to warrant a conviction,



either for being an accessory after the fact or for theft, as urged by the State. I



arrive at this conclusion because I am not persuaded that Arvo performed some



act or acts intended to assist the principal offenders to escape conviction as



opposed to safeguarding his own interests. His association with Brandon,



Ismael (with whom he had travelled together from Windhoek to Cape Town) and



with Mike and Vincent (with whom he was found, together with Brandon and



Ismael at house No. 75 Teresa Street, Camps Bay) raises a serious suspicion



against him but suspicions alone, no matter how strong they mighyt be, are



not enough to found a conviction.







[25] The next accused to be considered is Ismael (Accused 9). As previously



shown, Ismael rented house No. 1709 Agnes Street, Khomasdal, from



Bezuidenhout with effect from the beginning of November 2000. It was at this



house that Dr Nghalipoh attended to the seriously wounded James, having



been summoned there by Brandon.

54





[25.1] When Bezuidenhout visited the rented house during the month of



November 2000, she found Ismael there in the company of his friend, Brandon.







[25.2] On visiting the house at the end of November, Bezuidenhout found no



one there and had to break into it in order to gain entry.







[25.3] On November 16, 2000, at around 20h00, D/Sgt Nangolo saw Ismael‟s



VW Golf car, registration No. N113228W, parked in front of Nandos in



Independence Avenue, Windhoek. The Detective Sergeant observed James and



Ismael emerge from the car and go into Nandos, leaving Brandon alone in the



car.







[25.4] At 00h08 on November 20, 2000, Ismael and Mike entered South Africa



at Vioolsdrigt travelling in Ismael‟s Golf car, registration No. N113228W. And at



00h10 on the same day, Brandon as well as Arvo entered South Africa through



the same border post, using Mike‟s BMW car registration No. FH2377GP.



Ismael testifies that prior to his arrival in Cape Town and to meeting Mike, he



did not know him. When questioned that he travelled with Mike, his answer is



a denial. But both answers are clearly false; in the case of the second answer,



Ismael did in fact travel with Mike at the border between Namibia and South



Africa, albeit for a short distance only. This revelation renders the first answer,



too, false. When he was asked about calls made between him and Mike prior to



their arrival in Cape Town, he refused to respond.

55





[25.5] It is common cause that at about 04h30 on November 22, 2000, Mike



Vincent, Brandon, Arvo and Ismael were all arrested at house No. 75 Teresa



Street, Camps Bay, Cape Town.







[25.6] On the same day, the South African Police discovered N$909,250.00 in



the house where the five accused aforesaid were found too and arrested. This



money was in the bag which was itself contained in the black suitcase that was



allegedly identified by Vincent as his. The money was in batches of N$50.00



notes and formed part of the money which, I am satisfied, was the subject of



the second robbery.







[25.7] On being asked whether he knows Cheeks (to whom Brandon referred



to), his answer is that he does not know him personally; that he only knows



him by sight, adding that he was introduced to Cheeks by Brandon.







[25.8] When asked during the bail application in the High Court, where he was



during the evenings of November 16 and 17, 2000, he opted not to say where



he was.







[25.9] On November 16, 2000, calls from Ismael‟s cell-phone were made to the



cell-phone of Mike four times between 14:32:10 and 23:03:23. On November



17, he seemingly called Mike‟s cell-phone eleven times between 11:59:26 and



18:01:53. On the same day, Ismael apparently called Mike‟s cell-phone seven

56





times between 18:19:13 and 21:42:06. And on November 19, it appears called



Mike‟s cell-phone six times between 17:10:44 and 17:16:33. In the light of the



evidence before the Court, coupled with the many cell-phone calls that Ismael



made to Mike, not only on November 17, but also on November 16, 2000,



nearer the occurrence of the second robbery, would it be unreasonable to infer



that such calls were possibly not innocent?







[25.10] Like Brandon, Ismael denies having in any been involved in any of the



crimes charged.







[25.11] He alleges that his car developed a clutch problem, which, as



previously indicated, and for the reason given, sounds extremely spurious.







[25.12] It is clear to me that Ismael‟s evidence is replete with lies.







[25.13] Ismael was seen by D/Sgt Nangolo at Nandos, Independence Avenue,



Windhoek, where his Golf car was parked in the company of James and



Brandon prior to the commission of both robberies.







[25.14) It is not in dispute that Ismael rented the facility at house No. 1709



Agnes Street, Khomasdal, where James received his initial treatment. In



addition, it is evident that Ismael played a critical role in the scheme of things.



The timing of the acquisition of the rented facility almost coincided with the

57





arrival in Windhoek of James on October 29, 2000, Mike having previously



arrived on the 13th of that same month. Was the acquisition of that facility and



James‟ presence there a coincidence?







[25.15) Ismael, Brandon and Arvo all left Windhoek for South Africa on



November 19, 2000, barely two days after the commission of the second



robbery in this case. They all travelled in Ismael‟s Golf car. Was their travelling



together a coincidence?







[25.16] It so happened that on the same day of the departure of Ismael and his



companions, Mike, too, left Windhoek for Cape Town, driving his BMW car.



Was this occurrence by chance?







[25.17] Was it a mere coincidence that Ismael and his companions arrived at



the South African border – Namibian border at about the same time as Mike?







[25.18] Was it by chance that Ismael and Mike crossed the South African –



Namibian border together in Ismael‟s Golf car with Mike behind the steering



wheel?







[25.19] Was it by coincidence that Ismael, Brandon, Arvo, Vincent and Mike all



ended up together at house No. 75 Teresa Street, Camps Bay, Cape Town?

58





[25.20] Was it by chance that the South African Police raided house No. 75



Teresa Street, Camps Bay, and therein found not only the five accused referred



to in paragraph 25.19, supra, but also the sum of N$909,250.00 in N$50.00



notes which was part of the N$5.3 million that had been stolen during the



second robbery?







[25.21] Were the telephonic contacts among the accused, particularly during



the material times and in which Mike and James appear to be dominant, a



mere chance? To this and the preceding questions, my answers are in the



negative. However, the conclusions I am going to draw from my answers will



not negatively affect Arvo for the reasons previously given.







[25.22] In considering circumstantial evidence, the observations of the Full



Bench of this Court in S v Hotel Onduri (Pty) Ltd and Another 1993 NR 78 (HC)



at 82I-J-83A-C are apposite:







“In R v Sibanda 1963 (4) SA 182 (SR) Beadle CJ the then Chief Justice of

Rhodesia in an appeal said at 188F-G:





„It seems to me that this is one of those cases where, although each individual

item of evidence is quite insufficient to convict the appellant, the cumulative

effect of all this evidence proves the appellant‟s guilt beyond doubt. I approach

this case, therefore as was done in the case of R v de Villiers 1944 AD 493 at

508, where the Appellate Division approved the following statement of Best on

Evidence:

59



“Not to speak of greater numbers; even two articles of circumstantial evidence –

though each taken by itself weigh but as a feather, join them together, you will

find them pressing on the delinquent with the weight of millstone --- It is of the

utmost importance to bear in mind that, where a number of independent

circumstances point to the same conclusion the probability of the justness of

that conclusion is not the sum of the simple probabilities of those

circumstances, but is the compound result of them.‟”





This approach was also approved in the case of R v G 1956 (2) PH H266 (A),

where the Court said:





„The cumulative effect of a number of pointers converging from different angles

was very much greater than the mere total of their weight taken in isolation.‟ ”







[25.23] Bearing the contents of the preceding paragraph in mind, I am of the



view that when the various items of evidence in casu are put together, the



cumulative effect thereof brings me to the conclusion that Ismael is linked to



the second robbery. I find that he made common cause in the matter; that the



substance of his evidence cannot reasonably possibly be true; and that it is



false.







[26] As regards Vincent (Accused 10), he arrived together with Mike at Hosea



Kutako Airport from South Africa, via Johannesburg, on October 13, 2000. He



was thereafter taken to Falazza‟s house in Windhoek where he and Mike



stayed; and where James subsequently joined them.

60





[26.1] During his sojourn in Windhoek, he used a cell-phone number 081 246



4427.







[26.2] On November 17, 2000, he informed Falazza, following receipt of a call



from Mike to the effect that there was trouble, that James had been shot and



that they had taken the money and were gone.







[26.3] On November 19, 2000, Vincent arrived at Cape Town Airport on a flight



from Windhoek.







[26.4] On the same day, Brandon, Arvo and Ismael as well as Mike left



Windhoek in two vehicles on their way to South Africa.







[26.5] Vincent allegedly saw Mike and Ismael removing money from the panels



of Ismael‟s car and later saw Mike counting the money in a room.







[26.6] On November 22, 2000, at about 04h30, Vincent and Mike together with



Brandon, Arvo and Ismael were all found and arrested by the South African



Police in house No. 75 Teresa Street, Camps Bay, Cape Town.







[26.7] On the same occasion, some five days after the commission of the



second robbery, the South African Police found N$909,250.00 in the said



house No. 75 Teresa Street, Camps Bay, Cape Town, in a black suitcase

61





identified by Vincent as his. In the suitcase, the South African Police found a



plastic bag, which, as it transpired, contained a batch of N$50.00 notes. Upon



being asked as to whom the money belonged, Vincent allegedly could not, or



did not, provide an answer. The money was found on a top shelf of a cupboard



in the house. Since the bag was locked with a small padlock, Inspector



Engelbrecht asked Vincent and Mike for a key. After Mike had spoken to



Vincent in Xhosa or Zulu, he (Mike) allegedly handed over a bunch of keys



taken from a drawer in the bedside table. On request, Mike allegedly indicated



which key to use in the bundle. Engelbrecht unlocked the bag, opened it and



checked inside before handing the bag full of N$50.00 notes to van der Walt.



The money was identified by Ms Blignaut of BON as being part of the money



stolen during the second robbery. I find that the South African Police witnesses



are truthful and, therefore, that their evidence is credible.







[26.8] During the trial, Vincent voluntarily made a statement to C/Inspector



Becker on a video tape which was later transcribed and produced as an exhibit.



In that statement, he endeavoured to exculpate himself and to essentially



incriminate Mike.







[26.9] Print-outs of calls made from the cell-phone of Mike to that of Vincent



show that on November 13, 2000, three calls were made; on November 17,five



calls were made between 04:25:05 and 21:31:10; and on November 19, three



calls were made.

62





[26.10] Vincent denies any involvement in the commission of the crimes



charged.







[27] Mr Small submits that Vincent should, on his own version, be convicted of



the alternative crime of theft in respect of the second count.







[28] On the other hand, Mr Neves, Vincent‟s legal representative, urges the



Court to acquit his client on the ground that the ingredients of theft have not



been proved.







[29] Mr Neves submits that the alleged crime of theft was committed outside



the jurisdiction of this Court and that, as such, Vincent cannot be convicted by



this Court of the crime.







[30] Attention is here drawn to the case of S v Mwinga and Others 1995 NR



166 (SC) where the following observations were made at 171I-J-172A-B:







“In my view the Namibian Courts, faced with an „international law friendly‟

Constitution (Art. 144) and with its already „extensive‟ jurisdiction in common

law, should not base its jurisdiction on „definitional obsessions and technical

formulations‟ but should stay in step with the other common law

Commonwealth countries such as England and Canada. Thus in order to

determine whether the High Court has jurisdiction in a trans-national crime or

offence, all that is necessary is that a significant portion of the activities

constituting that offence took place in Namibia and that no reasonable

objection thereto can be raised in international comity.”

63





[31] In casu, it is common cause that the second robbery with aggravating



circumstances was committed in Namibia. The crime of theft is framed in the



alternative. As previously indicated, it is trite law that theft is a continuing



crime. See: S v Kruger en Andere 1989 (1) SA 785 at 787G-H. In the case of S v



Nakale, supra, Strydon JP (as he then was) and Frank, J remarked at 265A:







“As theft is a continuing offence there is no such thing as an accessory after the

fact to theft.”







Thus, a person who does what would for another crime result in such a person



being an accessory after the fact, will be guilty of the crime of theft. See: also S



v Kumbe 1962 (3) SA 197 (N) at 199.







[32] It is clear that Vincent‟s own version of his exculpation cannot reasonably



possibly be true and I find that it is in fact false. The discovery of the stolen



money in his suitcase and his lies in the Cape Town bail applications especially



lies in an endeavour to shield Mike, go to show that his intention in the matter



was not innocent.







[33] I will now consider the case against and for Mike (Accused 11). The



prosecution evidence shows that on October 6, 2000, he let Namibia by road to



return to South Africa. He came back to Namibia by air with Vincent on



October 13, 2000. Both of them stayed at Falazza‟s residence in Windhoek



where they were later joined by James. It was Mike that had made possible the

64





necessary accommodation arrangements for Vincent and James to stay at



Falazza‟s residence. Mike used cell-phone No. 081 245 7929 whilst in Namibia.







[33.1] On Wednesday 17, 2000, four calls were made from Mike‟s cell-phone to



that of James at 00:59:22; 01:02:14; 01:12:07 and 01:24:19.







[33.2] On November 16, 2000, five calls were made from Mike‟s cell-phone to



that of Hendrdick from 17:24:29 to 23:45:17; on the following day, seven more



calls were made to that of Hendrdick from 08:54:15 to 16:31:06; and on



November 18, four calls were made to that of Hendrick from 15:08:53 to



20:46:01.







[33.3] On November 16, four calls were made from Mike‟s cell-phone to that of



Ismael from 14:32:10 to 23:03:23; on the following day, eleven calls were made



to that of Ismael from 11:59:26 to 18:01:53; and on November 18, seven calls



were made to Ismael‟s cell-phone from 18:19:13 to 21:42:06.







[34] It is not in dispute that at about 04h30 on November 22, Mike, Vincent,



Brandon, Arvo and Ismael were all found and arrested in house No. 75 Teresa



Street, Camps Bay, Cape Town. On that occasion, the South African Police had



raided the said house. Also found in that house at about that time was money



amounting to N$909,250.00 in batches of N$50.00 notes which was contained



in the black suitcase identified by Vincent as his. When asked where a key to a

65





padlock securing the bag that contained the money was, Mike spoke to Vincent



and subsequently handed over a bunch of keys to the police. On being asked



which key could be used to unlock the padlock, Mike indicated the key,



whereupon the bag was opened and found to contain the money aforesaid.







[35] Mike has given testimony at length in an endeavour to exculpate himself.



He denies having taken part in the comission of any of the crimes charged. As



already indicated, he submits that the computer print-outs are unreliable and



should thus not be used in evidence. However, this issue has already been



decided and it is here unnecessary to say anything more about it. It suffices to



state that the evidence of the cell-phone print-outs speaks for itself.







[36] I accept as true the State‟s version of what transpired at the material time



at house No. 75 Teresa Street, Camps Bay, in particular, the conduct of Mike



and Vincent at the critical time. I find that Mike made common cause in the



matter; that his exculpatory version cannot reasonably possibly be true; and



that it is false.







[37] In my view, Mike and James appear to have played a leadership role in



the matter. On the evidence, it is apparent that Mike was possibly the



mastermind in this case. Seemingly, however, it cannot conclusively be said



that Mike was physically present when the commission of the second robbery



took place on account of the fact that the cell-phone print-out evidence shows

66





that calls were made between James and Mike at about the commission of the



said robbery. Had they been together at the time, no such calls could



necessarily have been made. But this does not mean that Mike was not



involved in the planning of the commission of the second robbery in all the



circumstances of the case.







[38] Reverting to James, is it a coincidence that he and Hendrick are



(forensically) linked to Schutt‟s Nissan bakkie? I do not think so for I am



satisfied, as already shown, that the blood sample that was left on the Nissan



bakkie belonged to James; and that the said sample had not been deposited



there innocently. I am further satisfied that the fingerprint found on the



dashboard of the Nissan bakkie was that of Hendrick; and that it had not been



left there in innocent circumstances. Moreover, I am satisfied that the first



robbery was committed for the purpose of facilitating the commission of the



second one. I have no difficulty in finding that the story as to how James came



to sustain his abdominal gunshot wound is a cock – and - bull story; that



Cheeks is a fictitious character; that James is placed at the scenes of the two



robberies by virtue of the blood sample taken from Schutt‟s Nissan bakkie



which matched his, as already indicated; that he is the robber that shot at



Kapira, and at whom Kapira shot, in the shoot-out during the commission of



the second robbery; that he still carries within his body the 9mm projectile;



that Brandon was insistent that James be treated at home by Dr Nghalipoh in



an attempt to conceal the circumstances in which he had sustained his injury;

67





and that James‟ story of having been accidentally shot is a concoction, and,



therefore, not credible. I find that the evidence of Dr Nghalipoh, his secretary,



D/Sgt Shikufa, D/Sgt Nangolo , the South African Police witnesses and other



State witnesses that testified in the matter is rather credible; that James made



common cause in the matter; that his version cannot reasonably possibly be



true; and, therefore, it is rejected as false.







[39] Returning to MacDonald, the critical evidence against him comes from



Kapira and from his (MacDonald‟s) cell-phone print-outs which to connects



him with the commission of the second robbery.







[40] Mr Murorua raises the issue that Kapira is a single witness. But evidence



of a single witness suffices to convict an accused person if the witness is



credible and the court is satisfied that the truth has been told. See: (S v Sauls



1981 (3) 172 (A) 180). I accept the evidence of Kapira as I find that he is a



credible witness and that the truth has been told. On the other hand, I find



MacDonald‟s evidence to be false.







[41] As regards, Hendrick I am here satisfied that the fingerprint that was



lifted from Schutt‟s Nissan bakkie was his; that it had not been left there in



innocent circumstances; that he was involved in both robberies; that he made



common cause in the matter; and, therefore, his evidence is rejected as false.

68





[42] Brandon played a crucial role in facilitating the treatment of James and



endeavouring to conceal the circumstances in which the former had sustained



his serious abdomenal injury.







[43] Bearing in mind all the evidence before me and my findings, it is evident



that the unfolding panorama in this matter demonstrates that the planning of



the two robberies with aggravating circumstances had entailed a great deal of



care and ingenuity. It is to the credit of the Namibian and the South African



Police who succeeded in putting together the pieces of what appeared to be a



jigsaw puzzle.







[44] In the light of what I have said in this judgment, I come to the folowing



conclusions:







James H Ningise (Accused 1):



Count 1: Guilty as a perpetrator;



Count 2: Guilty as a perpetrator;



Count 3: Guilty as a perpetrator;



Count 4: Guilty as a perpetrator.



He is convicted on all counts.







MacDonald Kambonde (Accused 2):



Count 1: Not Guilty;

69





Count 2: Guilty as an accomplice;



Count 3: Not Guilty;



Count 4: Not Guilty.



He is acquitted on Counts 1, 3 and 4 but convicted on Count 2 as an



accomplice.







Hendrick H. Tsibande (Accused 3):



Count 1: Guilty as a perpetrator;



Count 2: Guilty as a perpetrator;



Count 3: Guilty as a perpetrator;



Count 4: Guilty as a perpetrator.



He is convicted on all Counts.







Brandon D. O. Similo (Accused 7):



Count 1: Not Guilty;



Count 2: Guilty as an accessory after the fact;



Count 3: Not Guilty;



Count 4: Not Guilty.



He is acquitted on Counts 1, 3 and 4 but convicted on Count 2 as an accessory



after the fact.







Arvo T. N. Haipinge (Accused 8):



Count 1: Not guilty;

70





Count 2: Not Guilty;



Count 3:Not Guilty;



Count 4: Not Guilty.



He is acquitted on all Counts.







Ismael Oaeb (Accused 9);



Count 1: Not Guilty;



Count 2: Guilty as an accomplice;



Count 3: Not Guilty;



Count 4: Not Guilty.



He is acquitted on Counts 1, 3 and 4 but convicted on Count 2 as an



accomplice.







Vincent N. Mabuza (Accused 10);



Count 1: Not Guilty;



Count 2: Not Guilty on the main count but Guilty of the alternate Count



of theft;



Count 3: Not Guilty;



Count 4: Not Guilty.



He is acquitted on Counts 1, 3 and 4 but convicted on the alternative count of



theft.

71





Mike S. M. S. Apani (Accused 11);



Count 1: Guilty as a perpetrator;



Count 2: Guilty as an accomplice;



Count 3: Guilty as a perpetrator;



Count 4: Guilty as a perpetrator.



He is convicted on all counts as indicated above.









________________



SILUNGWE, AJ

72









ON BEHALF OF THE STATE: Mr D. F. Small





Instructed By: Office of the Prosecutor-General









ON BEHALF OF ACCUSED 1 & 3: Mr W. T. Christians



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 2, 7, 8 & 9: Mr L. H. Murorua



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 10: Mr J. M. B. Neves



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 11: In Person

73





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:

74





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,

75





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

76





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.

77





[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

78





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

79





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.

80





[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.

81





[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

82





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.

83





[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

84





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

85





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

86





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

87





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

88





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.

89





[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.

90





[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

91





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

92





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.

93









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

94





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.

95





[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

96









[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.

97





ON BEHALF OF THE STATE: Mr D. F. Small





Instructed By: Office of the Prosecutor-General









ON BEHALF OF ACCUSED 1 & 3: Mr W. T. Christians



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 2, 7, 8 & 9: Mr L. H. Murorua



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 10: Mr J. M. B. Neves



Instructed By: Directorate of Legal Aid









ON BEHALF OF ACCUSED 11: In Person