Professional Documents
Culture Documents
: CC 37/2007
THE STATE
vs
SAM ANGOLO
Accused No. 1
Accused No. 2
STEFANUS LAZARUS
Accused No. 3
THOMAS PHILLEMON
Accused No. 4
CORAM:
HINRICHSEN, AJ
Heard on:
Delivered on:
30 July 2009
__________________________________________________________________
JUDGMENT
__________________________________________________________________
HINRICHSEN, AJ [1]
morning of Saturday, 14th May 2005 at about 6 a.m the body of Theresia Afrikaner
(the deceased) an adult female person was found in a dry riverbed at or near
Okuryangava. The Police apprehended four adult males, the four accused referred
to in the heading above. They are:-
-2-
[2]
The accused were in due course charged basically with having committed
the offences of murder, rape and kidnapping upon the deceased. The amended
indictment specifying and linking the individual offences to the individual accused
with a summary of facts and a list of 24 witnesses appended appear on Exhibit A to
the court proceedings which were recorded and transcribed. The record runs to
1318 pages.
[3]
The charges, eighteen in all were read into the record. All accused pleaded
[4]
The four accused were represented at the commencement of the trial and
In what follows I shall simply refer to the State and to the accused by number or to
all the accused without specific reference to their legal representatives unless the
contrary appears.
-3-
[5]
All four the accused having pleaded not guilty the State had to prove the
[6]
[7]
All four legal representatives tested the States witnesses. At the close of
the States case they opted on instructions of their clients, the accused, not to
apply for a discharge in terms of Section 174 of the Criminal Procedure Act (No. 51
of 1977). They simply closed their case since they in their opinion had no case to
answer.
[8]
The question is whether the State succeeded in discharging the onus it had
to bear.
[9]
legal representatives of all four accused went through the stages ranging from real
or direct evidence, circumstantial evidence to hearsay evidence.
[10]
The general and trite principles of criminal law were applied to the States
evidence ranging from the doctrine of common purpose, dolus, mens rea to the
right of accused to remain silent the presumption of innocence and the right to a
fair trial guaranteed by the Namibian Constitution.
[11]
-4-
On Friday evening 13th May 2005 about half an hour apart and mainly witnessed
by the deceaseds sister Maria and Fiona Afrikaner two assault incidences
occurred involving accused no 1 and no 2 assaulting the deceased and thereafter
all three i.e. the deceased and accused 1 and 2 disappearing into the darkness.
The deceased offered no physical resistance other than to scream and protest
vociferously. She might have been dragged rather than moved independently.
[12]
The prelude to the assaults was a drinking session at one or two nearby
shebeens whereat were present accused no. 1 and 2 and the deceased. Accused
no 2 had a quarrel with the deceased accusing her of drinking his alcohol whereas
initially both accused 1 and 2 admitted slapping the deceased, a light version of
common assault they both ultimately tendered pleas of assault with intent to do
grievous bodily harm (assault GBH). These pleas are justified and borne out by the
evidence. The assaults perpetrated upon the deceased were serious indeed. The
deceased was not merely slapped but was hit with fists and very likely with bricks
or stones. She fell to the ground and was bleeding. Her immobilised condition
caused by accused 1 and 2 coincides with the evidence that she was dragged
away from the second assault scene rather than walked without assistance. These
acts by the accused were accompanied by a serious threat by accused no. 2
levelled at the deceaseds sisters Maria and Fransina witnessing the assaults, that
he would stab them into their vaginas right now with a knife. This warning by
accused no. 2 is evidence of a vicious state of mind spelling imminent and real
danger. These assaults qualify for the test in S v Mbelu 1966(1) PH H176(N):-
However one express it, it is at least clear that there must be intent to do
more than inflict the casual and comparatively insignificant and superficial
injuries which ordinarily follow upon an assault. There must be proof of
intent to injure and to injure in a serious respect.
-5-
[13]
I find moreover that accused no. 1 and no. 2 performed the acts of assault in
[14]
deceased the next morning Saturday 14th May 2005 in a dry riverbed somewhere
distant from the assault scenes which happened the previous night, this is the sum
total of direct evidence offered by the State relating to the murder, rape and
kidnapping charges. All the direct evidence is confined to the two assault scenes
and does not link up, lead or point to the cardinal crimes allegedly committed
namely rape and murder.
[15]
The kidnapping charges are unrelated to any facts and any form of
evidence. What the State presumably had in mind as kidnapping was the action of
accused no. 1 and 2 dragging the deceased with them into the darkness after the
second fighting incident. I am disposing of the kidnapping charges at this juncture.
[16]
-6-
On the same page under the heading NATURE AND PURPOSE they list
occurrences of kidnapping:-
[17]
[18]
What other evidence is there which may possibly substantiate the charges
[19]
Firstly there is the evidence of witnesses having seen scratch marks on the
neck and arms of accused no 1 the existence whereof he denies, arguing that if
these marks existed they would have been picked up by the medical practitioner
who examined him. In fact Exhibit M (form J88) the medical examination report
on accused no. 1 contains the following relevant observations:-
Conclusion:
Injuries behind Rt ear and on the right earlobe and human teeth marks on
the left hand fit with the time and circumstances.
This is a general remark of no significance since the late Dr Shangula had no idea
of the precise time nor of the circumstances.
[20]
Moreover Exhibit N (form J88) the medical Examination report relating to him
reveals much more:-
Conclusion:
The abrasions at the back of the neck and the bite mark on the chest do fit
in my opinion.
Unfortunately the medical officer, the late Dr Shangula, says nowhere what my
opinion is.
-8-
[21]
The abrasions and bites referred to in Exhibits M and N could have been
inflicted in the course of the deceased fighting for her life and/or trying to prevent
rape or murder being committed upon her. But there is no further supporting
evidence for these possibilities.
[22]
no. 1 and 2 are strong circumstantial pointers implicating them. But the medical
officer Dr Shangula while she signs the Affidavits in terms of Section 212(4)(a)
forming part of Exhibit M and N as medical officer she qualifies this by adding
the letters P.M.O also stating that she was in the service of the State. P.M.O
stands for Principal Medical Officer. The late Dr Shangula had behind her name
MD which stands for Medical Doctor. In Exhibit M she added Moscow behind
the letters M.D and stated that she was in the service of the State at Windhoek
Central Hospital on 14/05/2005 while in Exhibit N she stated that she was in the
service of the State at the Windhoek Police Mortuary on the same date 14/05/2005
on the date she conducted the medical examination on Accused No. 1 and 2
respectively.
The late Dr Shangula made these statements on the forms of Affidavits in terms of
Section 212(4)(a) of the Act. She did not make the statements under oath thereby
converting them to Affidavits which means that they are mere statements.
[23]
provided for in the proviso to Section 212(4)(a) in which event they would like
affidavits constitute prima facie proof.
-9-
At the end of the form the deponent of the Affidavit states that I know and
understand the contents of this declaration The Act does not define the terms
Affidavit, declaration, statement or certificate and these words would bear
their ordinary meaning for which I rely on the Shorter Oxford Dictionary.
The Shorter Oxford Dictionary defines the word declaration in Law as A simple
affirmation (as opp. to an oath).
[24]
[25]
- 10 -
[26]
The brief, i.e. underpants of accused no. 1 tested negative for semen. No
semen tests were performed on accused no. 2 and no. 3. In the upshot I find that
the forensic report Exhibit F is useless. It merely makes a few unrelated findings
on blood, semen, and saliva implicating none of the four accused.
[27]
Finally I refer to the scene involving accused no. 3 Stephanus Lazarus, also
known as Steven. He was amongst the group of people at the scene of the crime in
the riverbed on Saturday morning, 14th May 2005. He approached Police Sergeant
Elias Nangolo (Nangolo) and asked him addressing Nangolo by his name. Nangolo
testifies about this incident as follows:-
.... how will the Police be able to determine who did that incident. And by
that time I asked who (sic) his name was and he said his name is Steven.
Later on, I also spotted a black wallet which, was a bit near, where the
deceased was lying. I open the wallet and saw that there is a small piece
of paper, written Steven. So due to that fact, I was a bit surprised, that this
person was just asking a question as to how the police would determine,
who did this, crime and then I conveyed that information to Chief
Sheehama who was with me. So, Chief Sheehama instructed me to bring
that person to him. And I handed Accused no. 3 to Chief Sheehama as
well as the black wallet. [Record page 514].
[28]
This incident raises suspicion against accused no 3 but not more than that
Mr Coetzee for accused no. 3 submitted that maybe he was just a concerned
citizen, a concerned bystander (Record p. 1271 lines 4 5) or he was simply
curious. In any event as Mr Coetzee submitted, this does not establish a prima
facie case against accused no. 3.
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[29]
accused no. 1, Sam Angolo, submitted that the Report on a Medico-Legal PostMortem Examination, Exhibit L in these proceedings is hearsay evidence. Why?
Because the author of Exhibit L, Dr Elizabeth Shangula passed away tragically
after having compiled it. In her stead Dr Simasiku Kavendjii explained and
commented on Exhibit L. Mr Wessels submitted that ... The contents of the
statement as read out by Mr Kavendjii therefore becomes hearsay in its totality, ...
(Record p. 1205 lines 8 10) That submission cannot be correct in the light of
Section 4 of the Criminal Procedure Amendment Act No. 24 of 2003 which reads
as follows:-
[30]
certifies (my underlining) her actions and findings recorded therein to the
Magistrate, Windhoek. This in terms of the proviso to Section 212(4)(a) alone
would qualify as prima facie evidence. Exhibit M and N do not fall under (7A)(a)
since this section concerns only ... a person who is a victim ....
[31]
Even though Exhibit L constitutes prima facie proof as regards the injuries
- 12 -
[32]
The warning statements by accused no. 1, no. 3 and no. 4 went in and were read
into the record as Exhibits G (Record p 551) H (Record p 533) and I (Record p
558) respectively thereby being admitted in evidence without objection. Accused
no. 2 objected to his warning statement being admitted in evidence and it was
therefore not admitted in evidence.
[33]
their contents are evidence of the preliminary assault scenes on Friday, 13th May
and of the next morning Saturday, 14th May after the body of the deceased was
found in the river bed. Again, no factual links to the rape and murder charges exist
in the warning statements.
[34]
Accused no. 2 to Police Chief Inspector Van Schoor introduced as Exhibit J which
I ruled to be admissible as evidence (the statement). Its contents are as follows:-
1.
2.
3.
I observed them ordering liquor from the bar. They went to a table
which was far from ours. My friend Sam notice that one of the
females was in school with him.
4.
Sam bought liquor for the females. We finish our drinks and went to
the next shebeen, namely Shikiro. We the male went to the next
door shebeen. The female stayed at the Ndari shebeen.
- 13 -
5.
After a while one of the females whom was at the Ndari shebeen
came to the Shikiro shebeen. She was wearing a black jean and
white top. She went to another table where she started drinking with
other people whom it seems she knew.
6.
A few minutes later Sam and the female went outside. It was a
while later when I decided to look for Sam. I went out of the
shebeen. I found Sam behind the shebeen with the female.
7.
8.
Due to her answer I slap her with the flat hand. She then jumped on
me. We fell to the ground. She scratched me on the left side of my
chest. She also bit be on my left leg.
9.
10.
Sam, Steven and Fillemon pulled the female from me. They pulled
the female towards the riverbed. The pulled the female close to her
house in the riverbed. She screamed the whole time while she was
drag to the riverbed. I followed my friends while they pulled the
female.
11.
They stop near the females house. I know the female just from
seeing her in the area.
arrived at the said scene. I observed that Sam was trying to pull up
the female to stand. Fillemon and Steven were throwing the female
with stone so that she can stand up. The female was screaming the
whole time while she was pulled and thrown with stones.
12.
The female who was with Sam in the same school arrived at the
scene. She asked Sam why he was assaulting the female. Sam
informed her that she drank his money and that he will not leave
her. The female turned around and only informed us she is going to
the other sister who was with them at the other shebeen to inform
her what is happening.
- 14 13.
14.
Sam pulled out a knife and started to cut the females trousers. The
female was quiet; she did not scream and did not say anything. Sam
pulled the females trousers off and climbed on the female. I
observed that he penetrated the female in her vagina. The female
was lying on her back. The female did not make any sign or noise. I
heard Fillemon and Steven asking Sam to finish because they also
want a turn on the female.
15.
16.
I was
Windhoek
2005-05-15
J. Taapopi
[35]
It is clear that the State squarely based its charges against the four accused
[36]
While Exhibit L is admitted as evidence this does not mean that its
[37]
Counsel for accused no 1 and no 2 strongly argued in gist that it can only be
admitted as evidence against the author thereof being Accused no. 2 (Record p.
1204).
- 15 -
[38]
the statement was false. On this basis alone the truth or falsity of Exhibit J would
have to be tested by the vica voce evidence under oath of accused no. 2 which
needed to follow. Mr Muluti for accused no. 2 submitted correctly that:-
[39]
(LH Hoffmann DT Zeffertt: The South African Law of Evidence, Fourth Edition
(Zeffertt) (p. 623). This definition was accepted by the South African Appellate
Division in S v Holshausen 1984 (4) (SA) 852 (A). But this definition does not apply
in this case since it concerns parties, being the accused.
[40]
statements referred to above no more than that. Exhibit J the statement is not a
confession as far as the maker thereof, accused no. 2 is concerned.
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[41]
Sections 219 and 217 of the Act do not therefore apply to accused no. 2
since these sections deal with confessions. Accused No. 2 does not confess as
regards himself. The definition of a confession is referred to in Hiemstra page 24
51:-
[42]
The maker of the statement, Exhibit J, accused no. 2, does not confess to
any crime he committed he did or did not do. He exculpates himself implicating
others. Similarly the statement not constituting an admission in terms of section
219 A does likewise not apply to accused no. 2.
[43]
But what does accused no. 2 do? He pleads guilty and confesses on
behalf of especially accused no. 1 and that he cannot do. Sect. 219 prohibits this.
What admission means in this context is that accused no. 2 in his exculpatory
statement makes a confession on behalf of the other accused especially accused
no. 1 which under these circumstances he has to do in order to exculpate himself.
Normally a confession would relate to the person making the statement. This is
best illustrated by the commentary of Hiemstra on section 219 of the Act (page 24
70):-
- 17 instance, Schmidt (2004) par 19 1 6 and Zeffertt (2003) at 443 448. This
section applies to the admissibility against B of a confession which A made.
In Ndhlovu and Others v S [2002] 3 All SA 760 (SCA), 2002 (2) SACR 325
(SCA) the court was also not seized with such a case, but the
circumstances are sufficiently related to justify discussion. Accused 3 made
a statement at the time of his arrest which identified accused 1 as the man
who had fired the fatal shot in the particular murder/robbery. Accused 4
made a written statement with the same import. In the trial court (S v
Ndhlovu and Others 2001 (1) SACR 85 (W) Goldstein J found the extrajudicial statements of accused 3 and 4, who testified but contradicted the
contents of their statements, admissible against accused 1 as hearsay by
virtue of the provisions of section 3(1)(b) of the Law of Evidence
Amendment Act 45 of 1988. In the Supreme Court of Appeals judgment,
Cameron JA held that the quality of the hearsay evidence and the
extraneous reliability guarantors make it imperative that the evidence be
admitted, as Goldstein rightly did (par. [52]). The Supreme Court of Appeal
distinguished S v Ramavhale 1996 (1) SACR 639 (A) with regard to
provisional admission of evidence (pars [19]-[20] and [42]). The ambit of
section 219 of the Criminal Procedure Act was not considered because the
statements were not confessions (S v Ndhlovu and Others 2001 (1) SACR
85 (W) par [47] at 99a). In S v Molimi and Another 2006 (2) SACR 8 (SCA)
par [24] the Supreme Court of Appeal held that the admission of the
hearsay evidence contained in the extra-curial statement of a co-accused
against the accused was in the interests of justice. It is ironic that a
confession, the most reliable extra-judicial statement, is inadmissible but
self-exculpatory statements are not.
A confession of one accused may not even be used indirectly against the
co-accused. What is meant appears from the case of R v Baartman 1960
(3) SA 535 (A) in which three accused were convicted of murder. One of
them made a confession implicating the other two. All that connected the
confessor to the murder was his confession and all that linked the other two
was that the three were in each others company at about the time of the
offence. Although the direct implication of the other two in the confession
was therefore correctly left out of the courts consideration, Schreiner JA
found on appeal that they were nevertheless indirectly and wrongly
connected to the murder thereby.
[44]
commentary is:-
- 18 -
- firstly that the situation in South Africa regarding hearsay has changed by the
introduction of the Law of Evidence Amendment Act 45 of 1988 (the RSA Act)
which introduced a wide-ranging discretion depending on the courts opinion in the
interest of justice to admit hearsay evidence unknown to Namibian law on this
point.
That is why in the case of Ndhlovu and Others referred to in the commentary by
Hiemstra referred to above, the contents of the extra-judicial statements in issue in
that case, were considered correctly admissible by Goldstein J in the court a quo in
the case of S v Ndhlovu and Others also referred to in Hiemstras commentary.
3.
(a)
(b)
(c)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
- 19 (vii)
(2)
(3)
(4)
[45] The Namibian law governing hearsay is identical to the South African
common law prior to the coming-into-effect the RSA Act. The Namibian law is still
what Section 3(1)(a) and (b) of the RSA Act provide.
The warning statements Exhibit G H and I and the statement by Accused No.
2 Exhibit J are of no evidentiary value implicating the Accused. This has been
demonstrated by the accused in this case by closing their respective cases
without leading any evidence under oath. There is likewise no agreement or
consent by any of the Accused that any of the statements in issue referred to
above may be admitted as evidence. If agreement or consent were granted by the
- 20 -
[46] The constitutional principle of a fair trial laid down in Article 12 of the
Namibian Constitution in particular Article 12(d) which provides that All persons
charged with an offence shall be presumed innocent until proven guilty of
necessity implies that the State has to prove its case by discharging the criminallaw-onus beyond reasonable doubt. If the State has not succeeded in doing so at
the end of its case, there is no duty on an accused to respond by presenting his
case he has a right to remain silent, if the State has not presented a prima facie
case (See S v Haikote and Others 1992 NR p.54 (H) (C)). Furthermore, it is trite
law that an accuseds decision not to testify will not remedy the shortcomings in
the states case (See State v Masia 1962 (2) SA 541 (A.D.) per Botha J.A. at 546).
[47] Mr Wessels for Accused No. 1 correctly submitted that as regards assault
GBH on a charge of murder, which in law is competent in terms of section 258(b)
of the Act, Accused No. 1 and 2 would have had to answer a prima facie case
which the State in this case succeeded in proving. However, this has been
obviated by the fact that they both tendered a plea of guilty to assault GBH.
Technically these are in any event the only charges which the State managed to
prove at least on a prima facie basis by means of direct evidence.
[48] The indirect evidence i.e. hearsay and circumstantial evidence presented by
the State falls far short of the prima facie target; - be it the so-called rape kit
Exhibit F the post-mortem-examination Exhibit L the warning statements
- 21 -
[49] The crucial portion of Annexure J, the unproven States case, is contained
in paragraphs 13, 14 and 15 thereof. Do the contents thereof establish the crimes
of murder and rape?
[50] While prior to the narrative in paragraph 14 the deceased was heard
screaming in protest she was now ... quiet, she did not scream and did not say
anything. It is possible that the deceased was already dead after she ... was hit
with stones by Steven and Fillemon.
[51] When Sam penetrated the deceased she ... did not make any sign or
noise. She could by that time have been dead Accused No. 1 could have
unwittingly committed an act of necrophilia upon the deceased.
- 22 -
of penetration was committed. The benefit of the doubt would have operated in
favour of at least Accused no. 1. Annexure J does not establish rape or murder.
[53] But these are all mere possibilities. As Mr Wessels for Accused No. 1 rightly
pointed out: It is of course possible that that Accused No. 1, 2, 3 and 4 did rape
the deceased. It is possible that they killed her. (Record p. 1299 lines 4 6).
[54] If in a civil case emanating from this criminal trial murder and rape became
an issue, a cause of action for civil remedies involving the lighter onus of proof on
a balance of probabilities may well lead to success in a civil claim for relief.
Secondly, instead, nothing more than an ineffective so-called rape kit was
presented.
Thirdly, the State presented no sketch plan indicating the assault scene and
the murder scene, giving distance measurements. This resulted in drawn
out unnecessary inconclusive evidence being led on vague distances and
directions.
- 23 -
[56] Whether State witnesses were ill-prepared for oral evidence under oath
based on their preceding statements to the Police is doubtful. They may have
been forgetful or the Police did not accurately reduce to writing of what the
witnesses said, mostly not in their mothers tongue. Mr Muluti for accused no. 2
highlighted this issue particularly in cross-examining the sisters of the deceased
Maria and Fransina Afrikaner.
[57] Finally should the State, the prosecution have plea-bargained with the
defence, knowing that the charges against the Accused would not succeed,
instead of embarking on a time-consuming trial? The States approach can be
justified by the announcement of Mr Kavedjii for Accused No. 4 that the latter ...
wants to be a State witness. (Record p. 558), which announcement was made at
the stage when the warning statements by Accused 1, 3 and 4 were read into the
record. Mr Kavendjii submitted that it was ... not necessary for that witness
statement to be read into the record ... The prosecution could at that stage not
have known that Accused No. 4, instead of turning State witness, would simply
close his case without testifying at all. Of course, his change of mind cannot be
held against him on the principle that no accused can be compelled to give
evidence.
- 24 -
[58] In the light of the above it is unfortunate that only limited justice can be done
in this case. Technically there is no evidence strong enough to bring to task the
culprits who caused the body of Theresia Afrikaner to lie in the riverbed.
[59] I find that the State has not proved any of the charges of murder, rape and
kidnapping against any of the Accused on a prima facie basis.
Accused No. 1, Sam Angolo is acquitted of all charges against him. His
plea of guilty of assault with intent to do grievous bodily harm (assault GBH)
tendered by him being a competent plea to the charge of murder against
him is accepted and he is found guilty of assault GBH.
____________________
HINRICHSEN, AJ
- 25 -
Instructed by:
Instructed by:
Instructed by:
Instructed by:
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