Nandago v The State

8/8/2019 Nandago v The State

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CASE NO: SA 3/ 2001

IN THE SUPREME COURT OF NAMIBIA

In the Appea l of :

TOBIAS NANDAGO APPELLANT

And

THE STATE RESPONDENT

CORAM: Strydom, C.J.; OLinn, A.J.A. et Chomba , A.J.A.

HEARD ON : 02/ 10/ 2001

DELIVERED ON : 06/ 03/ 2002

APPEAL JUDGMENT

CHOMBA, A.J.A.: On the 8th of May last year the appellant appeared

be fore the c ourt a quoand was charged with four other persons on four

counts, viz, one of murder and three of robbery with aggravated

circumstances as defined in section one of the Criminal Procedure Act,

Ac t No. 51 of 1977 (hereinafte r C.P.A.). On the murder c ount it was


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charged that on 19 November, 1998 at or near Katutura in the District of

Wind hoek, the five ac c used p ersons unlaw fully and intentiona lly killed

one Gottha rd t Manyand ero (Manyand ero), a ma le pe rson. On one of

the rob bery c ounts, nam ely the sec ond c ount, it wa s elabo rate d that o n

the same date and at the same venue as that pertaining to the murder

charge, the same accused persons did unlawfully and with the intent of

forcing them into submission, assault/threaten to assault Joshua

Hamufungu, (Hamufungu), Ma thew Iime ne, Step hanus Paulus and

Ma nyand ero by pointing them with fire arms and shoo ting Manyendero

and unlawfully and with intent to steal took from them N$2273,81 and

7,65CZ Pisto l with a mmunition, the property o f or in the law ful po ssession o f

Hamufungu, Ma thew Iime ne, Step hanus Paulus and Ma nyand ero and/ or

Jakob Jakob us Deelie; and tha t agg ravating c ircumstanc es as defined in

sec tion one of the C.P.A. we re present in tha t the ac c used and/ or an

accomplice were before, after or during the commission of the crime in

possession of d angerous wea pons, nam ely Pisto ls and threa tened to inflict

and inflic ted grievous bod ily ha rm.

It is unnecessary to make elaborate references to the remaining two

counts of aggravated robbery because all the accused persons were

ac quitted on those c ounts. On the sec ond c ount all but the ap pe llant

herein were acquitted while the appellant was convicted as charged

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except that the trial judge determined that the evidence fell short of

esta b lishing how muc h mo ney was sto len. The Jud ge c onseq uently

sentenced the appellant to nine years imprisonment on the murder

charge and seven years imprisonment on the other, ordering both

sentenc es to run co nc urrent ly. The p resent a ppea l a rises from those

c onvictions and sentenc es.

In recapitulating the facts of this case I remind myself that, shorn of the

involvement of the appellants erstwhile co-accused and of the two

c ounts on whic h all the a c c used we re a c quitted , the fac ts now lie in short

c ompass. In setting the se out it is nec essa ry first of a ll to outline those fa c ts

which constitute c om mo n cause. They are tha t ea rlier in the da y on the

18th of Nove mb er, 1998 the a ppellant b orrow ed a white Ford Saphire

saloon car, registration number N15106W, belonging to one Lazarus Petrus

who wa s the eighth prosec ution witness a t the tria l. The appellant

required it to enable him purchase liquor and deliver it to his shebeen in

Katutura Tow nship. Tha t mission ha ving be en ac c om plished, muc h la ter

in the evening of that day the appellant drove from the shebeen in the

same borrow ed c ar, meaning to g ive a lift to the sec ond ac c used , Erastus

Kinge, who lived in Sow eto. There were three o ther passeng ers in the c a r

one of whom, according to his own extra judicial statement made

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pursuant to section 115 of the C.P.A., was the fourth accused, Jonas

Shitulepo.

The a ppellant a nd his passeng ers eventua lly d rove to Hakaha na Servic e

Sta tion where they stop ped to refuel. The p etrol a ttend ant there, namely

Hamufungu, began to serve the customers, but shortly thereafter the front

sea t passenger ca me out, took over the p ump and po ured petrol into the

c ar tank. In due c ourse, a fter payment for the pe trol the oc c upants of

the car had resumed their seats, one passenger disembarked from the

c ar and hea de d for the room in whic h the p etrol attend ants usually take

their rest (attend ants room ). Two g unshots we re then heard in the

attendants room and in the aftermath of the confusion that followed,

Ma nyand ero, who w as a sec urity guard a t the filling sta tion, wa s found to

have susta ined tw o fa ta l injuries in the c hest. A substantial amo unt of

mo ney was sp irited awa y by the perpetrato rs of the rob bery and a p istol,

which Ma nyand ero had in the c ourse o f duty tha t night wa s a lso stolen.

Other und isputed fac ts a re the follow ing:

Ba llistics expert, Sup erinte nd ent Luc as W. Visser, who was prosec ution

witness num ber one, of the South African Polic e in the Ba llistics Sec tion o f

the Forensic Sc ienc e Laboratory, testified tha t on the 19th of July, 1999 he

rec eived from Ka tutura Polic e, Namib ia , the fo llow ing:

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1. 1 func tiona lly sound .38 Smith Wesson Revo lver (W &S Revo lver)

Seria l No. 12701/ 737646

2. 2 X .38 S&W c a lib re spent c artridges

3. 1 x 9mm spent b ullet

4. 1 x 9mm spent b ullet

Superintend ent Visser ca rried o ut a m ic rosc op ic examination of the

foregoing items with the following results:

1. 2 x 38 S&W spent c artridges were fired from the .38 S &W

Revo lver a forementioned

2. 1 x 9mm spent bullet was fired from the same .38 S&W

Revolver

3. The sec ond 9mm spent bullet was possibly fired from the

same revolver but owing to insufficient firing marks it was

d iffic ult to ma ke a definite finding

4. If both bullets we re fired from the same gun, then they w ere

fired from a wrong gun as such bullets ought properly to be

fired from a chambered 9mm parabellum caliber gun.

However the bullets can, albeit wrongly, be fired from a .38

S&W Revolver.

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The .38 S&W Revo lver, ac c ording to the polic e evidenc e, wa s rec ove red

from the appellant a fter his a rrest.

Dr. Nadine Louise Agnew, the second prosecution witness, a senior

medical officer at the Ministry of Health in the Namibian Government

Servic e, co nduc ted a po stmortem examination on the b od y of

Manyandero. The b od y was ide ntified to her by Co nstab le Mb and eka of

the Na mibian Police. The Doc tor s find ings were:

1. Palor of oral muc osa, lung s and b ra in

2. Left ventric le o f the hea rt was lac erated

3. There w as left haem othorax, that is 100 ml of b loo d in the left

side of the c hest

4. Rib frac tures both interiorly and posteriorly

5. Lac erated left kidney

6. Lac erated sp leen

7. Lac erate d left hem idiap hram

8. Lacerated pericardium with 150 ml of blood having

accumulated therein.

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The Doc tors exam ination a lso revea led tha t the dec ea sed susta ined two

gun shot entrance wounds in the chest and these exited from the back.

Consequently there was no bullet embedded in the deceaseds body.

She o pined that d ea th wa s c aused by the two gun shot w ounds in the

chest.

It was eq ua lly und isputed tha t the polic e rec ove red two spent b ullets from

the a ttend ants room a t Hakaha na Servic e Sta tion in whic h Ma nyand ero

was killed . Sergeant Felix Diunisius of Namibian Polic e Serious Crime

Sec tion, Wind hoe k, wa s the investiga tions officer. He to ld o f how he went

to Hakaha na Servic e Sta tion a fter rec eiving a rep ort. He the re found the

de ad bod y of Manyand ero. From the informa tion given to him by

Hamufungu, the Sergea nt asc ertained tha t the p erpetrato rs of the murder

and rob bery had used a Ford Saphire sa loo n c a r, reg istra tion No.

N15106W. In the ensuing investiga tions he ap p rehend ed the ap pellant

and rec overed from him the S&W Revolver, whic h was subseq uently sent

to the Ba llistics expert as ea rlier me ntioned . He a lso trac ed the o wner of

the Ford Saphire N15106W who turned out to be Laza rus Petrus. It was

upon informa tion from the last me ntioned person tha t Sergeant Diunisius

soug ht and late r apprehended the a ppellant. Upon his apprehension the

appellant denied being engaged in the two offences under review.

How ever the S&W revo lver was found in his possession and he admitted

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tha t it wa s his and tha t it wa s lic ensed in his na me. Sergea nt Diunisius

extracted from the revolver two spent cartridges, which were , inter alia,

the sub jec t o f Superintendent Vissers evidenc e.

The foregoing a re the inc ontrovertible fac ts of the present a ppea l.

The m a in stay of the appellant s c ase, given on o ath, was tha t he wa s not

pa rty to the comm ission of the two offence s. He c onc ed ed that the

murder we apon, na me ly the S&W revolver was his. He however

contended that one of his passengers on the material occasion, namely

the fifth accused at the trial was the actual perpetrator of the murder.

The a ppellant s version wa s further tha t the fifth ac c used , without the

appellants authority, took the revolver from the glove compartment of

the Ford Sapphire a nd we nt with it into the a ttend ants roo m from whe re

gun shots were shortly the reafter heard . Presently he saw the fifth

ac c used returning to the c ar and he had in his hands two -hand g uns. The

appellant imm ed ia tely c onc luded tha t the gun used to kill wa s his. He

asked the fifth accused where he had taken the gun from without

permission b ut the latte r never answered tha t question. In short, the

appellants position is that he disassociated himself from the fifth

ac c used s alleged c rimina l c ond uc t.

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The tria l judge d isbelieved the a ppellant and c onvicte d him of bo th the

murder and rob be ry with aggrava ting c irc umstanc es. He founded the

c onvic tions on the p rinciple of c ommon p urpo se.

In arguing the appeal on behalf of the appellant Ms. Hamutenya, as

expected, made common purpose the main pillar of appellants case.

Her argum ent is enc apsulated in the follow ing submission c onta ined in the

Hea ds of Arguments:

The simp le p rob lem in this c ase is tha t the re w as no suffic ient

evidence in the court a quo to prove that the accused persons

committed the murder by common purpose and the principal

offender has never bee n identified beyond rea sona b le doub t.

However, it is necessary to refer to two other paragraphs in the

appellant s heads of a rgument a s these raise o ther c olla teral issues, viz:

The m ain issue in this appea l is whether the evidenc e b efo re the

court a quo proved beyond reasonable doubt all the elements of

common purpose against the appellant, if not then the appeal

must suc c ee d . The issue is a lso whether ab senc e of a find ing as to

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who committed the murder a conviction on common purpose

without a p rinc ipa l offende r will follow .

It is further submitted that where several persons have been

charged with murder and it is certain that murder has been

c ommitted by o ne o r more o f them, but a rea sona ble d oub t exists,

then they m ust b e a ll ac quitted .

In support of the tail-end of the foregoing submissions Ms. Hamutenya

c ited the c ases of R v GANI and others 1957 (2) S.A. 212(A); S v JONATHAN

and ANDERE 1987(1) S.A.633; and S v KHOZA 1982(3) S.A. 1019.

As I perceive them, the supposed ly two c olla tera l issues a re in rea lity one

issue only. This is whether it is c om pete nt to c onvict a ny one o f several

persons jointly charged with murder, but where it is unclear as to which of

them a c tually delivered the c oup de grac e.

I have perused GANI and KHOZA, sup ra , and my und ersta nd ing of the m is

the follow ing. In GANI the tria l judge had he ld in effec t that the murder

wa s c ommitted by a ny one of three a c c used persons or a c ombination of

any two o f them. How eve r, he found tha t the evidenc e fell short of

identifying which one or which two of the accused were the principals.

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For that rea son he felt inhib ited from c onvicting, and d id not c onvict, any

of them of murder. He then considered the c row n s a lterna tive submission

that if a conviction of murder was not possible because of lack of

evidence of the identity (or identities) of the principal (s) then all three

should be c onvicte d o f being a c c essories a fter the fac t to murder. The

judge rejec ted tha t sub mission. His ra tiona le was tha t sinc e one o r two o f

the three must have a c tually c omm itted the murder that o ne o r those tw o

could not be accessories after the fact to the murder he or they

committed.

It still being undete rmined as to the p rinc ipa l offend er, and as c onvicting

all the three would mea n hold ing that the lone princ ipa l offender or any

two of them who were the principal offenders was or were accessory or

ac c essories a fter the fa c t to their ow n ac t of m urder, a position he found

untena b le, he felt that the only wa y out, as a ma tter of law, was to

ac quit a ll of them. He did exac tly that.

The Crow n appea led on a reserved question, nam ely -

Whether, the (tria l) co urt having found as a fac t:

(a ) That o ne o r any c ombination o f two of the three

ac c used persons had murdered the dec ea sed ; and

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(b ) That the Crown had not p roved that the three a c c used

ac ted in c onc ert; and

(c ) That it had been prove d during the tria l tha t a fter the

commission of the murder all three accused

participated in the disposal of the deceaseds body,

the trial judge was wrong in law in coming to the

conclusion that none of the three accused could be

convicted of being an accessory or accessories after

the fac t to the c rime of murder.

The appella te c ourt c onsisting o f Fagan, C.J. and four others, unanimo usly

set aside the acquittal on the alternative charge of accessory after the

fac t to murder. It instea d o rdered the three to b e re-arra igned o n that

alternative c harge.

As to KHOZA, there the sec ond ac c used , who neve r appea led , wa s

c onvicte d of murder. The first ac c used , KHOZA, appea led aga inst his

c onviction of murder with extenua ting c irc umstanc es. The ap pella te

court, also composed of five judges, held by a majority of three to two

that in as much as the only incontrovertible evidence against the

ap pellant wa s that he struck the dec ea sed with a c ane stic k, but it had

not been established conclusively that such striking had causally

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c ontributed to the d ea th of the dec ea sed , the murde r c onvic tion a ga inst

him wa s unsusta inab le. The co urt quashed tha t c onviction and

substituted it with one of c om mo n assault.

With due respect, therefore, GANI and KHOZA were wrongly cited in

support of the submission that where several persons are charged with

murder and it is proved that the murde r wa s ac tually c ommitted by one

or more of such persons, but the identity (or identities) of such person (or

persons) is unc lea r on the evidenc e, then they must a ll be a c quitted .

Despite GANI and KHOZA being wrongly cited for the proposition put

forward by Ms. Hamutenya, the proposition itself would appear, in a

prop er c ase, to be tena b le. How eve r, it is my considered op inion tha t

tha t prop osition is inapp lic ab le to the c ase whe rew ith the present appea l

is c onc erned . This appea l stand s or fa lls on the p rincip le of com mo n

purpose.

The c ritica l issue in this appea l is whether the a ppellant was a pa rty to the

murder and aggravated robbery, acting in concert with other persons.

That issue d id not esc ape the a ttention of the learned tria l judge . He

correctly analyzed and considered the essentials, which constitute

c om mo n purpose. He c ited the c ase of S. V. Mg ed ezi and Others 1989(1)

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S.A.687, which itemizes tho se essentia ls in a c ase where the re is lac k of

evidenc e o f an express agreeme nt by wo uld-be c riminals to pursue suc h

a p urpo se. Summarized , these essentials a re:

1. The p resenc e o f the ac c used a t the locus in quo;

2. Awareness on accuseds part of a plan to commit the subject

offence;

3. The a c c used s intent to ac t in tand em with his c ollea gues in the

furtherance of the c ommon purpose;

4. Performanc e b y the ac c used of som e a c t of assoc ia tion w ith the

c ond uc t of his c o-ac c used ;

5. Proof of mens rea on his part to commit the crime charged or

proof that he foresaw the possibility of the targeted offence

being committed and performing an act of association with

recklessness as to whether or not the targeted result of the

planned offence wa s to oc c ur.

The lea rned tria l judge d ete rmined , upon e xamination of the entirety o f

the evidence before him, that each and every one of the foregoing

essent ia ls was proved . The presenc e of the ap pellant a t Hakaha na

Servic e Sta tion w as c om mo n c ause. As to the sec ond , third and fourth

essent ia ls the judge d ete rmined as hereund er:

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..even if he is to be taken on his own turf, he allowed his

firea rm to b e used . His a ttempt to explain how the fifth ac c used

supposedly took his firearm from the glove box without being seen

by him when he (the first accused) was also in the vehicle was

mud d led a nd in fac t bordered o n absurdity. A co nc lusion is

inescapable that he knew that his firearm was going to be used to

induce people in the submission and if necessary to kill and that he

intended to achieve one of these objectives or at any rate was

rec kless as to w hethe r any of these ob jec tives we re to be a c hieve d.

Apart from allowing his firearm to be used another instance of

association is the transportation of the robber or robbers to and

from the sc ene .

I fully end orse the foregoing o bservations by the lea rned trial jud ge.

The judg e a lso sta ted tha t the a ppellant genera lly fared bad ly as a

witness both in examination-in-chief and especially under cross-

examination. He amp lified tha t assessme nt by referring to pertinent pa rts

of the evidenc e. How eve r I feel tha t there are other eq ua lly imp ortant

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self-inc riminating a spec ts of the appellant s evidenc e to which the judg e

d id not a dvert his mind.

Quite apart from being less than candid regarding the time when the

appellant said he placed his revolver in the glove compartment, his

evidenc e w as in p art to the follow ing effec t:

The fifth ac c used left the c ar at a time when the a ppe llant a nd his

c ollea gues in the c a r we re set to dep art from Hakaha na Servic e Sta tion.

The a ppellant pa tiently, supposed ly, let the fifth a c c used go to see one

Step hanus Paulus a t the service sta tion. While the fifth a c c used was in the

attend ants room the appellant hea rd two gunshots fired . Not long

thereafter he saw the fifth accused returning to the car holding two

handguns. He immedia tely c onc luded tha t his revo lver wa s used in the

shooting he ha d heard .

The question a rising from this is, if the fifth a c c used em erged from the

attendants room while in possession of two guns, how is it that the

appellant was so sure tha t it wa s his gun and not the othe r tha t was used ?

This question is imp ortant bec ause on his ow n evidenc e the appellant d id

not see the fifth accused take the appellants gun from the glove

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c om partme nt, nor did he see the fifth ac c used c a rrying a ny gun a s he left

the c ar sup posed ly to see Stephanus Paulus in the a ttend ants room .

Before venturing to provide an answer to that question, it is necessary to

examine a ttend ant evidential c irc umstanc es. The appellant testified tha t

the fifth ac c used wa s neve r a friend of his; but that tha t ac c used wa s a

regular patron at the appellants shebeen; that the fifth accused just

hap pened to have ha d a ride in the appellant s c a r at the time w hen the

appellant was taking home the second accused, who was a friend and

wo rkmate of the appellant. Yet it wa s the fifth ac c used who sa t with the

appellant in the front sea t of the c ar. Norma lly a d river instinct ively

chooses to sit with a friend, an acquaintance or a family member in the

front seat while othe rs less known to him sit behind. This is so bec ause one

is freer with a front seat passenger with whom one is associated in the

manner just mentioned and can therefore chat with him/her as one

drives. Ad d itiona lly we see this c hanc y rider, the fifth ac c used , being

allowed by the driver to delay the departure of the car solely so that the

fifth ac c used c ould see a friend in the a ttend ants roo m. It is not sta ted

whether it was critically necessary for the fifth accused to see that friend.

It wa s quite late in the night when this happened. In fac t it wa s a fter two

o c loc k in the morning when the urge to go and sleep would ha ve ma de

it imperative that the appellant should drop off his passengers as quickly

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as possib le so tha t he himself c ould g o home and slee p. The q uestion

may also be asked whether it is usual that a person with whom one is not

c onnec ted c an stea l a gun from a go od Sama ritan w ho is giving him a

ra re lift hom e, go out and c om mit a gha stly murder with it virtua lly in the

presenc e o f the guns ow ner, then c oo lly return to the c a r from which he

stole the gun and b rush a side w ith imp unity a query from the gun s ow ner

as to w here he took the g un from . Even mo re surprising is tha t tha t ow ner,

in the full knowledge that his mischievous casual passenger has

committed a serious offence using his gun without permission, helps the

murderer to esc ape from the sc ene of the c rime and from justic e.

These a re a c onc a tenation of rare and od d coinc ide nces, which a re

d iffic ult to a c c ep t as rep resenting the truth. They d o no t sugge st a no n-

existence of acquaintanceship between the appellant and the fifth

ac c used . To the co ntrary they strongly and c irc umstantially p rove

existence of acquaintanceship. And on that particular occasion they

sugge st tha t a tac it c ollaboration existed in the p lanning and c om mission

of the rob bery. This c an be inferred from the fac t that the a ppellant knew

that the a c tual perpe tra tor went to the attenda nts room a rmed with the

S&W revo lver, which wa s no d oub t loa ded . The a ppellant therefore m ust

have ha d know led ge tha t that gun would p rob ab ly be fired in the event

that the intended victims of the robbery or any one of them, put up

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resistanc e to the intend ed rob bery. That expla ins why the appellant

neve r d isassoc ia ted himself from the perpetrato r s deed , but instea d ga ve

solac e a nd help to the murderer to make go od his esc ape from justic e.

Reg ard ing the fifth ingred ient of com mo n purpose, i.e. me ns rea , this

menta l eleme nt is not a lwa ys c ap able of p roof through d irec t evidenc e.

It is usua lly inferred from proved fac ts relating to a person s c onduc t. In

the present c ase, when it is estab lished tha t the appellant travelled with

the p erpetrator of the subjec t offenc es to Hakaha na Servic e Sta tion; that

he allowed that perpetrator to assail the occupants of the attendants

room while armed with the appellants own revolver; that the appellant

was cock sure, upon hearing gun shots coming from the attendants

room, that his revolver was the one used to fire those shots; that the

appellant saw the perpetrator return to the appellants car and

nonetheless let the latter enter the car with the loot which included a

second handgun; and that the appellant sped off thereby, enabling the

perpe tra tor to esc ape from justice , it b ec om es irresistible to hold , and I so

hold, that the appellant had the necessary mens rea to commit the

sub jec t o ffences.

From all the foregoing inferences and facts, it is irresistible to additionally

hold, and I so hold, that the appellant did associate with the actual

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perpetrato r of the twin felonies both immedia tely before a nd imme dia tely

a fter c om mitting the sa id offenc es.

What distinguishes this case from those in which one or more accused

persons escape conviction on account of the prosecutions failure to

prove the role the one or more of such larger groups played in the

c om mission o f a sub jec t offenc e is this. Here the a ppellant s role in this

robbery and consequential murder was circumstantially established

beyond peradventure. He d rove with the murderer as his passeng er to

Hakaha na Servic e Sta tion, a llow ed the murderer ac c ess to the

appellant s S&W revo lver and the m urderer too k it with him to the

attendants room . The murderer initially used the revolver to , and d id,

score at least one of the occupants of the attendants room, and later

fired it at Ma nyand ero, fata lly wound ing him. All this wa s done to the

knowledge and with the c onnivanc e, as we ll as in the presenc e, of the

appellant. The murderer then returned to the a ppellants w a iting c a r with

the loo t and a n add itiona l handgun. The murderer having returned to

and entered the car, the appellant drove off and thus helped that

princ ipa l offend er to esc ape from justice . These c irc umstanc es c lea rly

po rtray the ap pe llant as an ac tive p a rtic ipa nt in the c rimes c harged .

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Unfortunately we have in this case an incongruous situation where the

appellant is glaringly guilty of charge, but the man he identified as his

ac c omp lic e in the crime ha s had to be a c quitted . Bec ause the State ha s

not appealed against the fifth accuseds acquittal, this appellate court

c annot return any verd ic t ad verse to him.

Since a s alrea dy indica ted in the p rec ed ing p aragrap h the Ap pe llant is

unquestionably guilty, having been convicted on impulsively compelling

evidenc e, I find no m erit in his appea l aga inst c onviction on both c ounts.

Com ing to the sentenc e, Ms. Hamutenya c onc ed ed that she knew of no

case in which a person convicted of murder, which is committed in the

prosec ution of a rob bery got only nine yea rs imp risonme nt. She howe ver,

submitted that a nine-year prison sentence deprives the inmate

c onc erned o f a c hanc e to ea rn a living fo r himself and his fam ily. Suffic e

it to state that in the Heads of Arguments regarding sentence, the

Prosecutor General, Mr. January, stressed the aggravating circumstances

in whic h the subjec t offenc es we re com mitted . He argued tha t in the

light of those circumstances, the sentence imposed by the trial judge in

relation to the murder wa s inadeq uate. Othe rwise a t the hea ring o f the

appea l he d id not find it nec essa ry to a dd ress us on sentenc e.

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This was a p a rticularly heinous homic ide. The vic tim, Ma nyandero, was

sleeping and although he seems to have woken up just before he was

fata lly shot, a ll for the sake of m one y, whic h the rob bers wa nted to stea l,

he had absolutely no chance of either defending himself or retreating to

avoid b eing shot. The gun-wield ing, murderous intrude r b loc ked the o nly

exit he c ould have used .

These c irc umstanc es c a ll for a muc h stiffer punishment tha n the o ne,

which wa s imp osed by the tria l judge in respec t of the m urder c onvic tion.

Moreo ver, the a ppellant wa s a t the materia l time a soldier in the d efenc e

force of Namibia. His clear duty was to ensure the safety and security of

Namib ians. To the c ontrary he enga ge d in a homicida l venture purely to

sa tisfy his ava rice for ea sy money. In my view he d eserves a c ond ign

prison sentenc e w hic h should a lso b e d eterrent. Moreover soc iety nee ds

prote c tion from c rimina ls like the a ppellant. To ensure tha t, the a ppellant

need s to b e inca rc erate d for a muc h longer pe riod .

In the event I would set aside the sentence of nine years imprisonment

and in replacement thereof impose one of twenty years imprisonment.

This sentenc e is to run c onc urrent ly with the sentenc e imp osed in respec t

of the robb ery c onvic tion.

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The appea l is c onsequently d ismissed in its entirety.

In concluding this judgment I must refer to the fact that in this appeal

there was a p reliminary ap p lic a tion for c ondona tion. This is bec ause Ms.

Hamutenya did not file her Heads of Arguments within the time stipulated

by the rules of the Court. How ever the Prosec utor Ge neral quite prop erly

intimated at the outset that he was not opposing the application.

Consequently the court granted the application and therefore

c ondonation was not an issue in this c ase.

(signed) CHOMBA, A.J.A.

I agree .

(signed) STRYDOM, C.J.

I agree

(signed) OLINN, A.J.A.

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STRYDOM C.J.:

I have read the judgment of my brother Chomba and agree therewith. It is

perhaps necessary to explain shortly how the matter came before us on appeal.

The appellant firstly applied to the trial Judge for leave to appeal against his

conviction and sentence. This application was unsuccessful. The appellant

thereupon filed a petition in terms of Act 51 of 1977 in which he repeated his

previous application. This petition was partly successful in that the appellant

was granted leave to appeal against his convictions only. However, after the

whole record was studied and after consultation with the other Judges of the

Supreme Court, a notice was sent to the appellant and the State, through the

Registrar of this Court, in which he stated as follows:

I have been requested to inform you that the Court would like to hear argumentwhy sentence of the appellant should not be increased in the event that theappeal is unsuccessful.

Consequent upon this notice both Counsel, during the appeal proceedings,

addressed us fully in regard to the sentence imposed by the Court a quo.

In the result the order proposed by my learned brother is set out as follows:

1. The appeal against the convictions for murder (Count 1) and robbery with

aggravating circumstances (Count 2) is dismissed;

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2. The sentence of 9 (nine) years imprisonment imposed for the conviction

for murder (Count 1) is set aside and a sentence of 20 (twenty) years is

substituted therefore;

3. The sentence of 7 (seven) years imposed for the conviction of robbery

with aggravating circumstances (Count 2) is ordered to run concurrently

with the sentence of 20 (twenty) years imprisonment imposed on Count 1.

(signed) STRYDOM, C.J.

I agree.

(signed) OLINN, A.J.A.

I agree.

(signed) CHOMBA, A.J.A.

COUNSEL ON BEHALF OF THE APPELLANT: Adv. L. Hamutenya(Amic us Curiae)

COUNSEL ON BEHALF OF THE RESPONDENT: Adv. H.C. Ja nuary(Prosecutor-General)

Documents

Nandago v The State