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NOT REPORTBLE

CASE NO.: CA 40/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

MOSES MAPANI FIRST APPELLANT

KAPUNA EDGARS MUTANILIFU SECOND APPELLANT

and

THE STATE RESPONDANT

CORAM: HOFF, J et MARCUS AJ

Heard on: 6 November 2009

Delivered on: 09 July 2010

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APPEAL JUDGMENT

MARCUS, AJ.: [1] Appellants were charged with the murder of Kalaluka Ikabango. The allegation being that they unlawfully and intentionally killed the deceased on 18 March 2004 at Linyanti. Both appellants were further charged with 2 counts of assault with intention to do grievous bodily harm against Kenneth Mukawame and Erick Sibego on the same day at Linyanti. Appellants were found guilty on the murder charge and sentenced to 17 years imprisonment and convicted for common assault on the other two counts and sentenced to one year imprisonment respectively. The sentences on both counts were ordered to run concurrently. Appellants now appeal against the convictions and sentences.

[2] This matter was first on the roll on 27 March 2006. It was postponed to 26 May 2006 for fixing of a trial date. On the latter day the matter was by agreement postponed to 4 September 2006. The matter did not proceed as scheduled on 4 September 2006 and was thereafter postponed several times. First appellant’s legal representative was responsible for at least 3 postponements and when he failed to again appear again on 2 July 2007 the Court had just about enough of the delays and refused a further postponement and ordered the matter to proceed. The matter was heard for one day and thereafter postponed to 3 September 2007 for continuation of trial.

[3] The refusal by the magistrate to allow a further postponement on 2 July 2007 was, correctly in my view, not taken issue with by counsel appearing on behalf of first appellant. The learned magistrate was in my view correct in refusing a further postponement. It is true that the delays were largely due to the fault of first appellant’s legal practitioner, but it is well established that there is a limit beyond which a litigant may hide behind the negligence of his or her legal representative. See: Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SCA) at p 165. First appellant had a duty to ensure that his legal representative took his mandate seriously, and when it became apparent that his legal representative failed to do so take the necessary action. The learned magistrate explained to first appellant that he was free to obtain the services of a new legal representative as the trial progresses, which advice first appellant failed to heed, with devastating consequences for his defence. First appellant decided not to partake in the trial, despite numerous warnings by the Court as to its consequences. Second appellant on the other hand decided to conduct his own defence.

[4] Shortly before the hearing of the appeal, first appellant filed a notice to amend the grounds of appeal. A condonation application with regard to the late filing of the notice of appeal was also filed. Second appellant also filed a condonation application in respect of the late filing of the appeal. I have considered the reason advanced and decided to grant the application to amend the grounds of appeal and to condone the late filing of the notice of appeal by both appellants. First appellant in his additional grounds of appeal raised the objection that the learned magistrate relied on the medical report (post mortem report) in convicting first appellant, without calling the medical doctor who compiled the report to testify. I will first deal with this objection before considering the merits of the appeal.

[5] After calling the last State witness the prosecutor asked for a short adjournment in order to discuss the post-mortem report with the appellants. On resumption of the proceedings he indicated that appellants had no objection for the post-mortem report to be handed into Court. When asked to confirm the statement by the prosecutor, first appellant said that if he were representing himself he may not have had any objections but since he had a lawyer he had to inquire with him whether to accept it or not. It is clear to me that first appellant cannot be said to have agreed to the tendering of the post-mortem report. To record as the learned magistrate did that the report was tendered by consent was clearly a misdirection in respect of first appellant. The learned magistrate seems to have inferred consent by first appellant from the fact that first appellant was in fact representing himself.

[6] Second appellant when asked to confirm the statement by the prosecutor stated that he has no objection to the “corpse” being handed in. Even if the use of the word “corpse” might be a typographical error and second appellant consented to the admission of the medical report the matter did not end there. The Court a quo should have fully explained to second appellant, who was unrepresented his rights with regard thereto and after putting the contents of the report to him, ask him which facts contained therein he admits. If he did not admit some facts in the report then the medical doctor who compiled it should have been called. The Court should also have carefully explained the findings of the doctor contained in the report and asked the appellant whether he admits them. The medical terms contained in the report should have been explained to second appellant in lay terms and if the Court was unable to do so, called the doctor who compiled the report. See: S v Boois 2004 NR 74 (HC) at 78 and the cases cited.

[7] The learned magistrate did not comply with these rules, designed to ensure that especially an unrepresented accused receives a fair trial, but admitted the report holus bolus into evidence and later relied on the same report in convicting the appellants. For these reasons the post-mortem report as against both appellant is rendered inadmissible and must be excluded when considering the merits.

[8] What gave rise to this tragic incident appears to be the loss of a wallet belonging to first appellant, containing about N$ 1000.00 and other valuables. When first appellant realised that his wallet was missing, he went to see second appellant who had travelled together with him in his car to ask him about it. The next day second appellant, who felt bad about the disappearance of the wallet, went to see first appellant and together they went to look for three boys who had on the previous day helped to push the vehicle of first appellant. When they arrived at Linyanti they met a certain Kavende who said that he had heard that first appellant’s wallet had been stolen. He informed them that one of the boys who helped to push the vehicle had apparently stolen the wallet. According to second appellant Kavende went to look for the boys and brought them to first appellant’s vehicle.

[9] The first witness called by the State, Fedelis Muchali Mutanikelwa (in the record simply referred to as Muchali) testified that on 18 March 2004 he found three boys sitting at the back of first appellant pick up vehicle with their hands tied with wires. He had been attracted to the scene by the loud noise that was coming from the direction where the pick up was standing. On arrival he saw that the boys were bleeding from their heads and their shirts were covered in blood. He knew all three boys. One of the boys, by the name of Kalaluka, was working for his aunt as a herd boy. According to Muchali both appellants were randomly beating the boys, first appellant with his hands and second appellant was using a sjambok, demanding that the boys return the wallet with the money.

[10] Muchali told appellants to stop beating the boys and suggested to take Kalaluka to his aunt’s place since he was employed there. Appellants agreed and Muchali then led the group to his aunt’s place. On arrival first appellant, who by then had identified Kalaluka as the culprit, told Muchali’s aunt that Kalaluka had stolen his wallet and that he would take him away and bring him back as a dead dog unless he returns his wallet. The house were Kalaluka was staying was searched and when the wallet was not found, appellants took Kalaluka away in their pick up.

[11] The second witness called by the State was Alfonsina Lukonga Shibonwa the daughter of Muchali’s aunt. She testified that she knew the first appellant who was a teacher at Linyanti. She met second appellant for the first time on 18 March 2004, when he came with first appellant to her mother’s house accompanied by Muchali, Kalaluka and two other boys. According to her second appellant was holding Kalaluka and first appellant was holding the other two boys. First appellant told them that their herd boy (Kalaluka) had stolen his wallet which contained N$ 1000.00. She then asked Kalaluka whether he had taken the money. Kalaluka did not respond and only shook his head. According to her, first appellant said referring to Kalaluka as a dog, that he would take Kalaluka with him unless he returned the wallet with its content.

[12] Kalaluka had difficulties to stand and to walk. Second appellant hit him with a sjambok on the back to force Kalaluka to walk. Appellants searched Kalaluka’s room but failed to find the wallet. This infuriated first appellant and he loaded the deceased onto the vehicle. On the way to the vehicle second appellant again beat the deceased with a sjambok on the chest. A security guard who was present told first appellant not to take the law into his own hands and to report the matter to the police. Appellants ignored the advice and they took Kalaluka with them in the pick up. Shibonwa recalled that all three boys were visibly frightened when they arrived with the appellants. She saw that Kalaluka was heavily beaten. His shirt was unbuttoned and he had marks on his shoulder and on the back from the whippings with the sjambok.

[13] Second appellant testified that they drove to first appellant’s village. On arrival Kalaluka was asked what he was doing at the village. He responded by saying that he had taken first appellant’s wallet but had given it to one of first appellant’s employees. First appellant then told his workers to take Kalaluka to their sleeping quarters. The following morning they decided to go to look for the worker to whom Kalaluka gave the wallet. First appellant greeted Kalaluka and asked him how he was feeling. Kalaluka responded that he was fine but was still feeling the effect of the assaults of the previous day. As appellants were about to get into the vehicle they saw Kalaluka collapsing. When they looked at him they realised that he had passed away. They decided to take him back to Linyanti.

[14] When they arrived at Linyanti, Shibonwa was busy preparing lunch. She saw first appellant’s vehicle return to their house. It drove into the court yard where she and her mother were sitting. According to her first appellant said “I have brought your dead dog, he is here”. He opened the back of the vehicle and pulled the body on the legs and dropped it to the ground saying: “Here is your dog I have killed him”. She stated that it was Kalaluka’s body. Second appellant remained in the vehicle. Shibonwa’s mother asked why first appellant was bringing a dead body to her and not taking it to the police. Appellant no 1 responded by saying that since it was her herd boy she should take the body. He then said that he was going to pick up another “dog” that was working for a certain Mafale. Shibonwa and her mother then covered the body with a blanket. According to Shibonwa appellants left and returned with another boy. First appellant ordered the boy to uncover the Kalaluka’s body and to look at it. He told the boy that if he did not return his

money he would die like him. Appellants then left with the second boy. The police came late in the afternoon to collect the body.

[15] The last State witness to be called was Sergeant Ostan Minyoi, who was the investigating officer in the case. On 19 March 2004 he received a report concerning an alleged murder at Linyanti. Upon receiving the report he drove to Linyanti village where he interviewed various witnesses, which included Muchali, Alfonsina Shibonwa and her mother. He testified that he personally inspected the body of the deceased. He uncovered the body and saw a body of a male person who had multiple injuries over his body and had sand in his nose. He then asked the scene of crime officer to take photographs. After taking photographs they took the body to Katima Mulilo State mortuary. The following day they arrested appellants at Linyanti village.

[16] Second appellant denied that he assaulted any of the boys and suggested that it was in fact Muchali and Kavende who assaulted the boys. He stated that when they saw the assault on Kalaluka they asked his employer whether they could take him away to save him from further assaults. The suggestion by first appellant that he and second appellant intervened in order to save Kalaluka from further assaults has only to be stated to be rejected. Muchali and Kavende had no motive whatsoever to assault the boys. It was Muchali who intervened when seeing that appellants were assaulting the boys and took them to his aunt, who employed Kalaluka in order to resolve the matter. This fact was confirmed by second appellant. It is incredulous that Muchali, upon arriving at his aunt’s house would suddenly assault Kalaluka, or for that matter any of the other boys.

[17] Appellants on the other hand had every reason to be upset and angry at the boys. First appellant had lost his wallet containing about N$ 1000.00 and other valuables. To loose N$ 1000.00 is definitely not a small loss, especially in a village setting. The information that they received from Kavende was that the boys who had helped to push the vehicle had stolen the wallet. Second appellant was a passenger in first appellant’s vehicle at the time the wallet disappeared. He testified that he felt bad when first appellant told him that his wallet had disappeared. For all he knew, first appellant might also have suspected him of having taken the wallet. Second appellant was thus eager to assist first appellant in finding the real culprits, so as to dispel any suspicion that first appellant might have entertained towards him. This to me is the only plausible explanation for the enthusiasm he displayed to locate the wallet.

[18] The learned magistrate when considering the evidence on the charges of assault with intent to do grievous bodily harm found that in the absence of the testimonies of the two complainants and absence of medical evidence as to their injuries the charges could not be sustained and found appellants guilty of common assault. I am unable to agree with this finding insofar as second appellant is concerned. Muchali testified that when he arrived at second appellant’s vehicle he found the three boys bleeding from their heads and their shirts were covered in blood which according to him was an indication that they had been assaulted. The assault continued while he was

present. Second appellant was beating the three boys with a sjambok using a lot of force. He would turn the sjambok and use the thick side of it to beat the boys. Second appellant was aiming for the heads and the backs while beating the boys. Muchali further testified that the boys were so tired that they were unable to cry. This suggests that the assaults had been going on for a while. I am of the view that this evidence, which the Court a quo correctly accepted, is sufficient to found a conviction of assault with intent to do grievous bodily harm by second appellant. I shall take the mitigating factors that were advanced in the Court below into account when imposing an appropriate sentence on the two counts. The finding with regard to first appellant that the evidence was only sufficient to sustain a conviction of common assault is in my view correct.

[19] The next question is whether the State managed to prove the charge of murder. I shall examine this question next. Looking at the evidence it is clear that the only information shedding light on the death of the deceased is that of first appellant, which is contained in the admission that he made when he returned the body to Linyanti. According to Shibonwa first appellant took the body by its legs and threw it to the ground and said here is your dog I killed him. Is this admission sufficient to convict first appellant of murder?

[20] Counsel for first appellant submitted that this statement is insufficient to sustain a conviction of murder as the term “killing” is a neutral concept. By that I understood him to mean that such an admission does not displace a possible justification ground. I can accept that submission as a general statement. However the inquiry does not end there. The starting point is that the killing of a human being is prima facie unlawful. The right to life is the most fundamental of rights, which makes the enjoyment of any other human right possible. The prima facie unlawfulness can only be displaced if an accused can rely on one of the accepted justification grounds. Thus once it is admitted that the accused killed the deceased, an evidential burden is cast on the accused to establish the circumstances of a justification ground. See: Principles of Criminal law , Burchell & Milton, second ed. p.466; S v Manona 2001 (1) SACR 426 (Tk) at 427.

[21] A useful illustration is provided in Hoffmann & Zeffert in the 4^th edition of their work The South African Law of Evidence at p 497: “The accused is charged with murder. He maintains that he killed the deceased in self-defence. The onus or burden of proof (or primary onus, overall onus, the onus in its true or original sense, the risk of non-persuasion, the persuasive burden, the legal burden-call it what you will) rests on the State. The State has to prove that the accused unlawfully killed a human being, the deceased, and that he had the requisite mens rea. If self-defence is in issue, the State, if it is to be successful (i.e. get a conviction) has to satisfy the court that the accused did not kill the deceased in self-defence, precisely because it has to satisfy the court that the killing was unlawful. But let us assume that the evidence led by the State indicates, when the State closes its case, the accused had shot the deceased five times and that, as a result, the deceased dies. The State will have established a prima facie case; an evidential burden (or duty to adduce evidence to combat a prima facie case made by his opponent (or weerleggingslas) will have come into existence i.e. it will have shifted, or been transferred, to the accused, the onus still rests on the State; but, if the chance of losing is not to turn into the actuality of losing, the accused will have the duty to adduce evidence, if he wishes to be acquitted, so that, at the end of the case, the court is left with a reasonable doubt about whether he had acted in self-defence. If it is left with such a doubt, the State will have failed to discharge its onus, and the accused will have discharged his duty to adduce evidence in rebuttal; if there is no such doubt, the State will finally have satisfied the court that it is entitled to succeed – it will have discharged the onus; it will have won”.

[22] In the instant case first appellant did not aver that he acted in self-defence or for that matter rely on any other justification ground. He opted not to partake in the trial, despite various admonitions by the Court as to its consequences, and to rather wait for his legal representative. At the close of the State case the evidence was that first respondent together with second appellant had viciously attacked the three boys. Such was the viciousness of the assault that the deceased could not speak or walk. He was loaded onto the vehicle belonging to first appellant and returned the following day as a dead person. First appellant dragged the body by its legs and dumped it onto the ground saying, here is your dog I have killed him. The suggestion by second appellant that the deceased, who on his own version had been badly assaulted, was reasonably well the following morning and miraculously collapsed while boarding the vehicle is so fanciful that it can be dismissed as soon as it is made.

[23] The evidence at the end of the State’s case called for an answer by first appellant, to dispel the prima facie unlawfulness of the killing of the deceased. The contempt that first respondent showed towards the deceased, by dragging him by his feet and calling him a dog indicates to me that he intended to cause his death. Furthermore after killing the deceased first appellant went to fetch another boy and made him look at the deceased and threatened that the same would happen to him if he did not return his money. All these are not the actions of a person who accidently caused the death of another human being. The question also arises why appellants, who according to second appellant stopped the assaults against the deceased and

saw that the deceased was in a bad state did not take him immediately to the hospital if indeed they were concerned.

[24] According to Sergeant Minyoi who was the investigating officer in the case the body of the deceased which he personally inspected had multiple injuries over the body and had sand in the nose. Looking at the nature of the assaults against the deceased, the fact that the deceased was so weak that he could not stand or walk, the failure to take him to hospital when appellants took him away and the multiple injuries on the body and sand that must have been stuffed into his nose indicate that first appellant must at the very least have foreseen causing the death of the deceased, yet pursued his acts with recklessness as to whether or not death would ensue. See: S v Masia 1962 (2) SA 541 (A) at 546-7.

[25] The deceased, when he was taken away by appellants was, although weak, still alive. The evidence reveals that first appellant was furious when his wallet was not found after searching the deceased’s quarters and that the assaults continued virtually up the time of the deceased boarding first appellant’s vehicle. In my view it is reasonable to infer that after appellants left with the deceased first appellant, consistent with his threat to return the deceased as a dead dog, continued with the assaults which included the staffing of the nose of the deceased with sand and that these further assault

taken together with the earlier assaults eventually caused the demise of the deceased.

[26] With regard to second appellant there is no admission that he killed the deceased. Since that State did not call any witness to testify as to what happened when appellants took the deceased away, we only have the version of second appellant. Although I have rejected second appellant’s version in that regard as being nothing else but fanciful there is nothing to implicate second appellant in any further act that was committed by first appellant after they took the deceased away. The Court a quo rejected the explanation by second appellant and relied on the post mortem report to find appellants guilty of murder. I have ruled that the post mortem report is inadmissible. Without the report there is nothing in the record that could provide a basis for a conviction of murder of second appellant beyond a reasonable doubt. The conviction of murder of second appellant thus stands to be set aside.

[27] What remains is to consider two further grounds advanced on behalf of first appellant. The first ground is that the identity of the body that was examined by the doctor was not proved to be that of the deceased as no witness was called to identify the body to the doctor. This ground insofar as it concerns the identification of the body to the doctor is no longer a live issue as the medical report has been ruled to be inadmissible. I am satisfied that the body of the deceased was sufficiently identified by Shibonwa, who

together with her mother covered the body with a blanket, as being that of Kalaluka referred to in the charge sheet. Based on the evidence of second appellant there can be also no doubt that the person who was taken away by appellants and returned dead is Kalaluka, who was employed by Shibonwa’s mother as a herd boy.

[28] The last ground of appeal that was raised in the alternative on behalf of first appellant is that the ruling of the Court a quo for the matter to proceed on 20 October 2008, without first appellant’s legal representative being in Court, was a misdirection since that date had been fixed for purposes of setting a trial date. The submission is that the misdirection resulted in unfairness to first appellant and his conviction should therefore be set aside. Before considering the merits of the submission it will be useful to refer to the relevant facts in this regard.

[29] First appellant’s legal representative appeared in Court for the first time on 29 October 2007, by which time the State had already led two witnesses. On that date he asked for the matter to be postponed, to enable him to have the record of proceedings transcribed. The matter was postponed on a number of occasions and when it came before Court on 8 August 2008 the following entry was made by the magistrate: ‘Accused 1 and 2 present (matter) remanded to 21 October 2008 for fixing of trial date’.

[30] However contrary to the entry by the magistrate the matter returned to Court on 20 October 2008. On the resumption of the case the prosecutor indicated that the matter was on the roll for continuation of trial. He indicated that the State was ready to proceed and detailed the delays occasioned by the transcription of the record, which he submitted have prejudiced the State’s case. He stated that due to the delay in proceeding with the trial two crucial State witnesses had died. The prosecutor further stated that when he received the record he personally phoned first appellant’s legal representative, Mr Makando, to choose a date that suited him. According to the prosecutor Mr Makando had indicated that the week of 20 October 2008 suited him best and the matter was then set down accordingly. The Court then inquired from first appellant where his legal representative was. First appellant stated that he had spoken to Mr Makando and he had indicated that he would be at Court on the 20^th October 2008, which was the date for which the matter had been set down for. The Court ordered the matter to proceed without Mr Makando.

[31] The point taken on behalf of first appellant that the order by the Magistrate to proceed with the trial on 20 October 2008 originally taken by Mr Makando is unfortunate, as it opportunistically tries to shield first appellant from the devastating consequences of his counsel’s negligent conduct. To Mr Namandje’s credit this point was only raised in the alternative and not advanced with too much vigour and conviction. It is apparent that the entry by the Magistrate on 8 August 2008 was an incorrect entry as it did not reflect what must have been communicated to appellants who on that day were in Court. This conclusion is inescapable if one bears in mind that both appellants were in Court on 20 as opposed to 21 October 2008. If the entry was correct one would not have expected the appellants to be in Court on that day. Furthermore first appellant confirmed with Mr Makando whether he would be in Court on the date set down for continuation of the trial which the latter confirmed. It is in any event curious why Mr Makando was not in Court on the 21^st of October 2008 for fixing of the trial date or for that matter on any of the following days. This ground is baseless as it is opportunistic and is accordingly dismissed.

[32] For the reasons given I accordingly make the following order:

1. First appellant’s appeal against the conviction and sentence is dismissed;

2. Second appellant’s appeal against the conviction and sentence on count 1 succeeds.

3. Second appellant’s conviction and sentence on count 2 and count 3 are set aside and replaced with the following order: Second appellant is convicted on count 2 and 3 for assault with intent to commit grievous bodily harm and sentenced on each count to 3 years imprisonment. The sentence on count 2 and 3 are ordered to run concurrently.

(d) The sentence referred to in paragraph (c) is antedated to 23-10-2008.

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MARCUS, AJ

I agree

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HOFF, J

On behalf of the First Appellant: Mr S Namandje

Instructed by: Sisa Namandje and Company

On behalf the Second Appellant: In Person

On behalf of the Respondent: Adv. Esterhuizen

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