‘Reportable’ CASE NO.

: CC 12/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

KENNETH BUNGE ORINA

CORAM: LIEBENBERG, J.

Heard on: October 05; 06; 11 – 13; 18; 19; 21, 2010.
Delivered on: January 18, 2011.

JUDGMENT
TRIAL-WITHIN-A-TRIAL

LIEBENBERG, J.: [1] This is a trial-within-a-trial where the Court is required to

rule on the admissibility of five documents the State wants to rely on in proving the
guilt of the accused. Whereas defence counsel objected to the admissibility of the
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respective documents the Court ordered a trial-within-a-trial in which the

admissibility of each of these documents had to be determined.

[2] The objection lies against the following documents: (i) Proceedings held in
terms of s 119 of Act 51 of 1977 before magistrate Hangalo on November 20, 2007;
(ii) photo plan and explanatory key and notes in respect of a pointing out made to
Detective Chief Inspector Kurz on November 15, 2007; (iii) photo plan and
explanatory key and notes in respect of a pointing out made to Detective Inspector
Marais on November 20, 2007; (iv) a confession/admissions as documented by
magistrate Nicolaides on November 14, 2007; and (v) a document styled
“Identification of Body” (Pol. 51) dated November 22, 2007.

[3] Defence counsel objected to the admissibility of these documents on the basis
that the admissions and pointing out made by the accused came as a result of physical
assaults perpetrated on him by members of the Namibian Police; that he was
subjected to inhuman and degrading treatment during his detention at Oshivelo police
cells; that he was subjected to continuous interrogation by the investigating team; that
promises were made to him about better detention facilities and that the handcuffs
would be removed from his wrists. All these, it was contended, happened in the two
weeks preceding the accused’s appearance before magistrate Nicolaidis, to whom he
made certain admissions. The making of these admissions were not disputed. The
same applies to the s 119 proceedings and according to the accused, what he had
narrated to both magistrates at different stages, was not done freely and voluntarily as
it emanates from the assaults perpetrated on him and came as a result of the ill-
treatment he received during his detention. It was furthermore stated that what the
accused had related to the magistrates and what was recorded in those documents,
were fabrications three unidentified police officers forced him to admit and narrate to
the magistrates, respectively. The pointing out made to officers Kurz and Marais
were done under the same circumstances. It was further stated that the signing of a
document, according to which the accused identified a body as that of his wife, came
as a direct consequence of an assault perpetrated on him by the investigating team at
Windhoek police mortuary.
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[4] Where the admissibility of statements made by an accused is contested on the

basis of involuntariness on the part of the accused, the court is required to determine,
by means of a separate enquiry, into the admissibility thereof and this is generally
referred to as a trial-within-a-trial. The court is only required to consider the
admissibility of the statement in dispute and not the content thereof i.e. the facts,
while the State has the burden of proving beyond reasonable doubt that the maker of
the statement acted out of his own free will and without undue influence when making
the statement, or making any pointing out. In addition to the requirement of
voluntariness, the State must further prove that the accused person was in his or her
sound and sober senses and had not been unduly influenced. Because the accused
admits that what had been recorded by the respective magistrates and police officers
engaged in the pointing out correctly reflect what he had narrated to each on different
occasions, the content of these statements are irrelevant for purposes of this enquiry.
It would therefore be of no significance at this stage to know whether the accused’s
narrative amount to a confession or merely admissions.

[5] Besides the judicial requirements for admissibility of admissions and confessions
by an accused person provided for in ss 217 and 219A of Act 51 of 1977, the
Namibian Constitution in Article 12 also gives an accused person the right to a fair
trial (12 (1)(a)); the presumption of innocence until proven guilty according to law
(12 (1)(d)); and the right against self-incrimination. Evidence obtained from an
accused in violation of Article 8 (2)(b) is furthermore inadmissible (12 (1)(f)). Article
8 (2)(b) of the Namibian Constitution reads:

“No persons shall be subject to torture or to cruel, inhuman or degrading treatment

or punishment.”

Background

[6] In order to fully understand the circumstances surrounding the arrest and
detention of the accused it seems necessary to briefly mention other events unrelated
to this case, but which directly impacted on the police investigation and the detention
of the accused whilst in the holding cells at Oshivelo police station.
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During 2007 a special unit was established within the Criminal Investigation
Department of the Namibian Police called the “B-1 Butcher Unit” which was
specifically tasked to investigate the serial killing of female persons in and around
Windhoek whose bodies were thereafter dismembered and dumped at different places
along the B-1 main road; hence the name “B-1 Butcher” given to those cases.
Therefore, when black plastic refuse bags containing dismembered body parts were
found in Grootfontein on the 17th of September 2007, the B-1 Butcher Unit was
dispatched to Grootfontein and spearheaded the initial investigation. It then seems
that against that background, the investigating team at the time of the accused’s arrest,
had reason to believe that they were dealing with the person referred to as the “B-1
Butcher” because of the similarity found between the cases i.e. the dismembering of
the bodies. This time however, the body parts were not found along the B-1 main
road but in the surroundings of Grootfontein.

[7] There can be no doubt that the arrest of the accused as the “B-1” suspect, was a
high profile case and that specific precautionary measures would be put in place to
secure his custody. That is evident from the instructions given at regional level that
the accused had to be detained in solitary confinement at Oshivelo police station; that
he had to remain in handcuffs at all times; and that he was not entitled to receive
visitors whilst so detained.

[8] Because of the specified conditions under which the accused was kept at
Oshivelo, the accused contended that these amounted to being subjected to inhuman
and degrading treatment in that “he was kept under unhygienic conditions as the cell
in which he was kept had maggots; rats and bedding (infected) with bedbugs; and the
toilet full of human faeces. He was kept in a cell where direct sunlight fell into the
cell, which was very tiny.” It was also put to some State witnesses during cross-
examination that promises were made to the accused that, should he confess to having
committed the crime; the conditions under which he was detained at Oshivelo would
improve. In addition thereto, that he was assaulted by some members of the
investigating team as well as by three unidentified police officers, who assaulted him
on different occasions whilst coaching him into memorising and reciting certain
events implicating him in the commission of the murder under investigation. He was
also taken to different scenes where information was dictated to him and after being
 5

tortured, he was required to rehearse mock incidents of pointing out. It was submitted
on the accused’s behalf that the Court should therefore find the statements and the
different pointing out made by the accused to the police, not to have been made freely
and voluntarily; but that the accused, when he so acted, was under undue influence.
Accused’s detention and Assaults

[9] I shall first deal with the conditions under which the accused was detained at
Oshivelo police station and the alleged assaults perpetrated on him, in order to
determine whether it had any impact on the subsequent statements and pointing out
made by the accused, and if so, to what extent.

[10] For reasons, none other than convenience, I shall deal with the accused’s
allegation of assault and mistreatment, first.

[11] It is common cause that the accused was arrested in Grootfontein at around
noon on 30 October 2007 by the investigating team namely, Detective Sergeant Hoa-
Khaob; Detective Warrant Officer Gomeb; Warrant Officer Kandjimi; and Detective
Sergeant Eibes on a charge of murder. At that stage he was suspected of being the
infamous “B-1 Butcher”. After a search was conducted for the accused’s wife, he was
taken to the offices of the Criminal Investigation Department Grootfontein, where he
was interrogated. At around 21:00 he was taken to the police head quarters at Tsumeb
where the interrogation continued and where he was allegedly assaulted.

[12] According to the accused the Regional Crime Co-ordinator, Chief Inspector
Blaauw, joined them at midnight whereafter photos of dismembered persons were
shown to the accused and the interrogation continued until he was taken to Oshivelo
police station. There instructions were given that the accused had to remain in
handcuffs at all times. Accused said that from the clock in the vehicle he was
transported in, he could see that it was 2:00.

[13] I pause here to observe that the accused’s evidence relating to the time they
were joined in Tsumeb by Chief Inspector Blaauw (00:00) and their departure to
Oshivelo (2:00), is not supported by an entry made in the Occurrence Book (No.
1589) at Oshivelo police station upon their arrival, reflecting that the accused was
 6

already booked in at 23:59 on the 30th of October 2007. The entry furthermore states
that the accused was “free from injuries and no complaints”. Entry No. 1592 made at
00:30 reads: “Report: By D/W/O (2) Shidute(?) that all at the charge office sergeant
are under instruction that suspect as detained OB1589/10/07 is put in separate cells
being handcuffed and no visitor to him and serious surrounding inspection to be done
every hour to avoid escape, convey this massage to other shift O/S.”

[14] Bearing in mind the circumstances in which the accused found himself in at the
time, one might be inclined to accept that the accused’s reference to time might not be
correct or even relevant to the issues in dispute; however, when testifying, the accused
was very meticulous when referring to dates and times and what persons had said at
specific stages of the investigation and clearly relied thereon in an attempt to discredit
the State’s witnesses. In some aspects reliance was also placed on specific time
periods i.e. why the accused was only returned to Oshivelo several hours after he had
seen magistrate Nicolaides that afternoon. Therefore, the Court will have regard to
time frames relied on by the accused in his defence. As for the correctness of the time
recordings reflected in the Occurrence Book for the period of the accused’s detention
at Oshivelo police station, this was never disputed and there is no reason why those
recordings should not be relied upon as being correct.

[15] On the accused’s version he was assaulted several times by different persons
and these assaults can be summarised as follows:
The first incident took place in an office at the police head quarters, Tsumeb, on the
evening of his arrest when a “wooden log” was thrown at him, hitting him on the
lower abdomen and genitals; causing him intense pain and resulting in him falling
down onto the floor. Besides stating that he was assaulted by Warrant Officer Gomeb
and Sergeant Hoa-Khaob, who threw the log at him and kicked him, the accused was
not clear during cross-examination as to exactly who did what to him. Accused
further said that after the Regional Commander entered the office (later), he reported
to her the assaults perpetrated on him and only after she had spoken to the officers
(which the accused was unable to follow), the assaults stopped.
During the cross-examination of Warrant Officer Gomeb, it was put to him that he is
the one who threw the log on the accused’s abdomen and kicked him on his feet;
whilst to Sergeant Hoa-Khaob it was put that he also kicked the accused. Both
 7

officers denied these allegations. The accused contradicted himself during cross-
examination by denying that he had fallen onto the floor at the time; and when asked
to explain the discrepancy, he said that he could not exactly recall. This begs the
question, as to why then did the accused state it as a fact that ‘the pain was so intense
that he fell to the floor’, if he was unable to recall what had happened?

[16] Both Sergeant Hoa-Khaob and Warrant Officer Gomeb disputed allegations of
assault perpetrated on the accused by them. Hoa-Khaob confirmed that the accused
was indeed taken to their head quarters for reasons, amongst others, to obtain
instructions on the accused’s further detention. He said that although Warrant Officer
Gomeb entered the office in which they were with the accused, he never partook in
the questioning, as he was attached to the Scene of Crime Unit and thus, not part of
the investigating team. Gomeb confirmed this and said he merely entered the office
to ask Chief Inspector Blaauw about exhibits, whereafter he exited the room.

[17] The accused further testified that he was without food for the first two days
which left him tired and weak. When pointed out to the accused in cross-examination
that this aspect of his evidence was never raised with Sergeant Hoa-Khaob under
cross-examination, the accused explained that he forgot to tell his lawyer about it.
And, neither was Hoa-Khaob questioned about him slapping the accused after his first
appearance in court. Without giving convincing reasons, accused merely stated that
he forgot to convey to his lawyer everything that had happened at various stages and
about every assault perpetrated on him. This obviously brought about that crucial
aspects of the accused’s evidence, pertaining to the alleged assaults, were not
addressed in cross-examination of the State witnesses, implicated by the accused. I
shall return to this issue later herein.

[18] The second and further incidents of assault on the accused were, according to
him, committed by Warrant Officer Gomeb and three unidentified police officers on
diverse occasions between the 3rd and the 11th of November 2007. Accused said that
the first of these incidents was when he was fetched from Oshivelo by Gomeb and
three unidentified police officers on the morning of the 3rd. After a blood sample of
him was taken at Tsumeb hospital, they drove the accused to Grootfontein where he
was shown different scenes, allegedly where his wife was killed and her body parts
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dumped near the hospital and in the surrounding bushes. Accused was required to
memorise these scenes and when unable to do so, they revisited the scenes; whereafter
he was taken into the bushes, tied up and threatened to be killed with a firearm unless
he confessed to having killed his wife. He was kicked and hit with a belt to the point
where he broke down in tears and said they could kill him whilst the barrel of a
firearm was pushed into his mouth. A fabricated story as to how he allegedly had
killed his wife was read out to him and which he had to repeat. He was thereafter
required to recite what he was told, and when unable to do so, he was further
assaulted. Accused said this torturing lasted until late that night. After untying him,
Warrant Officer Gomeb drove him back to Oshivelo police station.

[19] According to the accused the three unidentified police officers, during the night
of the 6th and the 8th of November 2007, entered his cell and told him that he had to
recite the fabricated story about him having killed his wife. Whenever he did not
perform to their liking, he was assaulted and on the night of the 8th a wet blanket was
wrapped around his head, almost suffocating him in the process. This was after the
accused said that he would report them. As before, they were dressed in uniform.
When he reported the incident in the morning, the police officers on duty did not
believe him and said that he had been dreaming.

[20] He said that on the 10th of November 2007 the same three officers fetched him
from Oshivelo whereafter they returned with him to the different scenes visited before
in Grootfontein, and when he was unable to repeat what they had told him previously,
they again assaulted him. They visited the scenes twice, during which the accused
recited the fabricated story. He was then taken back to Oshivelo, but again fetched
the following morning (the 11th) which would be his “day for testing”. There was
some role play between the police officers pretending to be the magistrate; prosecutor
and investigating officer, while the accused was required to narrate to them what had
happened. He was also shown certain landmarks at the different scenes to remember
with the view of a future pointing out and was shown where and how to stand, whilst
doing so. He was warned not to inform anyone about what they had told the accused
(the fabricated story). Accused said that because their torture was so intense,
accompanied by trauma, he decided to do whatever they expected from him. He went
on to say that during that period he was urinating blood; had dizzy spells and fainted
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at times, due to lack of sleep, which was caused by him ‘being tortured by the police
during most of the nights’.

[21] The last incident of an alleged assault took place at the police mortuary in
Windhoek on the 22nd of November 2007, when he was beaten by Sergeant Hoa-
Khaob and Warrant Officer Kandjimi upon him informing them that he was unable to
identify the person as his wife. He said that after their return to Oshivelo his cell and
toilet were cleaned and in working condition; generally, that conditions pertaining to
his detention at Oshivelo improved and remained as such until his transfer to Oluno
Rehabilitation Prison on the 4th of January 2008.

[22] Despite the detail in which the accused testified, his version in some respects,
became somewhat muddled under cross-examination for instance, he was no longer
sure of the sequence in which they visited the different scenes and stated “I can’t say
categorically what they did.” He contradicted himself as to the stage they had told
him to keep quiet about their actions and involvement with him; on how many
occasions they had taken him to the different scenes; and at which stage he was
assaulted. When asked whether he sustained any injuries as a result of the assaults on
him he replied: “Yes, but I can’t say about the injuries – I was just beaten” and
“there could have been (injuries)”. Bearing in mind that the accused is a registered
male nurse, I find his response surprising, especially where he was beaten with a belt.
Regarding the assaults at night in his cell, the accused, under cross-examination, also
contradicted himself. In chief he said that the incident when a wet blanket was
wrapped around his head took place on the 8th, but then changed that to say that it
happened on their first visit to the cell, being the 6th of November. He also changed
his version as to what each person did at the time. This he explained by saying that he
became “mixed up” and was unable to confirm what he had said in his evidence in
chief. The same applies to him having said at the time that he would report the
officers, something he denied under cross-examination but explained that “it could be
a mix up of ideas.” When asked whether he reported these assaults to anyone,
accused said that he once told the police at Oshivelo but when asked to provide
names, he was unable to name these persons. When reminded that he at least knew
Gomeb, who had also assaulted him and whom he could have reported, he replied that
he was unable to answer the question.
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[23] On the events of the 10th of November 2007 the accused also gave conflicting
versions. Although he stated in chief that he was also beaten on that occasion, he
seemed to have been less certain of that fact under cross-examination and said that he
was not sure about it. He actually said: “I’m not sure – I don’t think they did” and
when reminded of what he earlier had said (that he was beaten) and asked to explain
how he was assaulted, the accused replied: “I’m not sure – unless I’m reminded.”
Accused also contradicted himself on the number of times they had visited the
different scenes on that day and whether he was assaulted or not the following day.

[24] As regards the promises made to him about an improvement in the conditions
under which he was detained, accused said that he did not believe Deputy
Commissioner Khariseb or the three unidentified police officers when making these
promises to him. Now if the accused did not believe that what was promised to him
would materialise, it seems to me, that even if promises were made to the accused in
that regard, then he was not influenced thereby to act in any specific manner to
achieve what was promised to him and therefore, it cannot be said that he was unduly
influenced on that point.
I accordingly find that the ground raised by the defence in its objection against the
admissibility of statements made by the accused about promises having been made to
him by police officers, to improve on the conditions under which the accused was
detained, should he confess, is without merit.

[25] I have alluded to the evidence of Warrant Officer Gomeb and Sergeant Hoa-
Khaob, both disputing the accused’s allegations of assaults perpetrated on the accused
by them. Inspector Ndhuulivali was the Station Commander at Oshivelo police
station during the whole period of the accused’s detention at Oshivelo and he testified
that he regularly visited the cells as part of his duties and on no occasion did the
accused report to him any assault perpetrated on him. As regards the cell in which the
accused was detained, Ndhuulivali said that the cell was like any one of the other cells
and the only complaint the accused lodged at the time was that the toilet was not
flushing properly; which he addressed immediately and was attended to. He
confirmed that they had received instructions that the accused had to remain in
handcuffs at all times; and that he had to be detained separately, as he was seen to be
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a flight risk. He denied that the accused was cuffed with his hands behind his back as
alleged. He said that notwithstanding the accused being handcuffed, he still would
have been able to help himself in the bathroom. Regarding the alleged assaults
perpetrated on the accused at night in the cell, Ndhuulivali testified that no person had
access to the prisoners, and in his view, it would not have been possible for police
officers from elsewhere, to have entered the accused’s cell at night and assault him as
he claims.

[26] The State, through the testimony of Inspector Ndhuulivali, introduced into
evidence three Occurrence Books (No’s 117 – 119) from Oshivelo police station,
covering the period of the accused’s detention and which reflect the accused’s
movement during that period. The correctness of the entries made referring to the
accused, were not disputed. Not all the entries made in respect of the accused confirm
the accused’s version. In fact, it contradicts his version in material respects as will be
shown infra.

[27] I have already alluded to the fact that the accused was booked in before
midnight on the 30th of October 2007 and therefore he could not have been kept at
Tsumeb until 02:00, as he claims. The movement of the accused, as reflected in the
Occurrence Books (hereafter referred to as “OB registers”), for the period 31 October
until 01 November, mainly corresponds with the accused’s evidence covering that
period.

[28] On 03 November 2007 two entries were made concerning the accused, namely,
that Warrant Officer Gomeb booked him out at 08:37 (entry no. 133) and again
booked him in at 11:51 (entry no. 142). This contradicts the accused’s version that
Gomeb and three unidentified police officers took him to the different scenes at
Grootfontein where they assaulted him until late into the night before returning him to
Oshivelo. Given the distance between Oshivelo and Tsumeb it seems most unlikely
that there would have been time to drive the accused to Grootfontein after a blood
sample of him was taken at the hospital in Tsumeb within the time frame of (less
than) three hours – let alone driving him to different scenes several times and
subjecting him to protracted assaults. If the accused was back at Oshivelo at noon,
then that would simply not have been possible. Therefore, the accused’s contention
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that he was at Grootfontein until late that night, is neither supported by the evidence
nor the probabilities.

[29] The same applies to the alleged events of 10 and 11 November during which the
accused was taken back to the different scenes at Grootfontein by the three unknown
police officers, who coached him over those two days and during which he was again
assaulted occasionally. There is no entry in the OB register on either of the dates
reflecting that the accused was booked out/ in during the period the accused claims to
have been in Grootfontein and manhandled by the unknown police officers.
According to the OB register the accused remained in the police cells from the time
he was booked in by Warrant Officer Gomeb on the 3rd until the 14th of November
when Sergeant Somseb collected him and took him to Grootfontein; where he
appeared before magistrate Nicolaidis for purposes of making a confession.

[30] As regards the allegation that the three unidentified police officers visited the
accused at night in his cell, this possibility was not only ruled out by Inspector
Ndhuulivali, but there are also no entries in the OB register on 06 and 08 November
2007, confirming the alleged visits. The accused’s claims are thus unsupported by the
facts.

[31] Should the Court find that the accused’s version is true and that he was indeed
assaulted, manhandled and humiliated as he claims, then any self incriminating act or
statement made by the accused thereafter would be inadmissible as evidence in the
main trial; as the sole purpose thereof was to force or influence him and extract
information and admissions from him, favourable to the State. In those circumstances
he would have been under undue influence and as such, cannot be seen to have acted
freely and voluntarily during the making of statements or any pointing out. Thus, the
admissibility of the five documents under consideration would firstly depend on the
requirement of voluntariness on the part of the accused before consideration is given
to the other requirements like the accused’s rights to legal representation.

[32] The approach to be followed by the Court in its assessment of the evidence
presented during trial-within-trial proceedings is the same as that during an ordinary
trial namely, that the Court should apply its mind not only to the merits and the
 13

demerits of the State and the defence witnesses, but also to the probabilities of the
case. The Court should be careful not to consider the evidence in compartments and
focus too intently upon separate and individual aspects of the evidence, but rather to
consider it in its totality and make its finding in view of all the evidence (S v Hadebe
and Others, 1998 (1) SACR 422 (SCA) at 426e-g; S v Singh, 1975 (1) SA 227 (N) at
228F-H).

[33] As far as it relates to the assaults perpetrated on the accused he, on his version,
was subjected to severe physical assaults over a period of two weeks and during
which he experienced intense pain. He was struck in the abdomen and genitals by a
log forcefully thrown at him; kicked; slapped; pinched and repeatedly beaten during
this period; but – on his own version – left without any visible injuries. This is
consistent with the respective entries made in the OB register every time the accused
was either booked in or out, stating that he was ‘free of injuries and without
complaints’. From the evidence of Inspector Ndhuulivali it is furthermore clear that
the accused never complained to him during his cell visits, except for the toilet which
he reported. The only “proof” of assault on the accused is only to be found in his own
evidence namely that, as from the morning after the first assault at the police head
quarters at Tsumeb on the day of his arrest, he noticed blood in his urine, which
condition continued up to the end. This he tried to prove through the testimony of Dr.
Kabangu, who only examined the accused on 16 May 2008, six months after the
alleged assaults. The doctor’s findings do not support the accused’s evidence as,
according to him, the traces of blood cells in the accused’s urine at the time could
rather be contributed to a medical condition, like infection or high blood pressure,
(which the accused was suffering from), and not as a result of an assault committed on
him in the past. He further testified that the accused mentioned to him that he was
tortured, without explaining in what way. He further explained that had the accused
been hit violently on his genitals, then he would have experienced difficulties in
passing urine; his testis would have been swollen and he would have suffered from
abdominal pain – none of which was present during his examination. I pause here to
remark that Dr. Kabangu said that the presence of blood cells in the accused’s urine
was only determined by the “dipstick” method and that it was not visible to the naked
eye.
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[34] From the medical evidence it may be concluded that, although there were traces
of blood cells picked up in the accused’s urine, this is not indicative of an assault
perpetrated on the accused prior to his examination; and in all probability, this was as
a result of an ailment the accused suffered from.

[35] When the accused was taken to Dr. Kabangu on the 1st of November, he (the
accused) had already observed blood in his urine, yet, he makes no mention thereof
and when asked to explain his failure, he said that he forgot to mention it. This,
despite the accused’s claim that he told the investigating team on the same day about
the blood he had observed in his urine and that he wanted to see a doctor. Also, when
a second blood sample was taken by a nurse at Tsumeb hospital two days later, he
again failed to make any mention about his medical condition to her. There can be no
doubt that the accused considered his medical condition as serious and therefore
sought treatment. Why then would he forget to raise it with medical officers at the
time; and could it be that his condition at the time was not as he now claims? From
the accused’s version there is no reasonable explanation why he failed to raise his
concerns over his medical condition with the medical officers, as both were in the
position to address it. Furthermore, on the State’s version the accused, at no stage
during his detention at Oshivelo, made a report to any one of several persons with
whom he came into contact, about assaults perpetrated on him or injuries he
sustained. Even when he later on appeared before two different magistrates and
commissioned officers, he made no mention thereof. The first report made by him to
that end was when he told Dr. Kabangu in May 2008 that he was tortured; without
mentioning to what extent. This first report made by the accused amounts to self-
corroboration; and in the circumstances, I do not find it to show consistency in his
version. The entries made in the OB register from the outset reflect that the accused
was free of injuries and on his own version; he never tried to show otherwise.

[36] Bearing in mind to what lenghts the accused went to discredit the State
witnesses (as shown later herein) and the exaggeration (to his benefit), of certain
conditions prevailing at the time, I am not convinced that the accused succeeded in
casting doubt in the Court’s mind on the truthfulness and credibility of the evidence
given by Warrant Officer Gomeb and Sergeant Hoa-Khaob about the events taking
place at Tsumeb police head quarters on the night of his arrest. These witnesses
 15

testified in a forthright manner and were not discredited during cross-examination.

Thus, there is no reliable evidence from which it might be concluded that the accused
was assaulted by members of the investigating team (or anyone else), on the night of
30 October 2007. I accordingly so find.

[37] The accused’s allegations of assault by the tree unidentified police officers lose
further credibility if regard is had to the time frames testified on by him and during
which the alleged assaults should have occurred. According to the accused these
assaults were of serious nature as he was beaten several times all over the body; he
was almost suffocated with a wet blanket; and subjected to intimidating tactics where
the barrel of a firearm was pushed into his mouth, accompanied by threats of being
killed. All this happened at stages where the records kept at Oshivelo police station
(i.e. the OB register) reflect that the accused was in the cells and without unwanted
visitors. The alleged visits to his cell would also have been with absolute
inobservance of specific orders given by officers in higher authority, namely, that no
visits would be allowed for the accused. I have already alluded to the fact that the
accused was meticulous in his evidence relating to dates and time frames and relied
thereon in order to cast doubt on the State’s case. It would therefore be unlikely that
he could have confused the dates and that the assaults had taken place on different
dates. In any event, that was not his testimony. The State witnesses furthermore
disputed the accused’s allegations that he was assaulted at any stage, albeit in
Grootfontein or in the cells at Oshivelo, as the accused claims; and there is nothing
showing that they should not be believed. In the absence of any other logical
explanation proving otherwise, the only conclusion to be reached on the facts is that
the accused’s evidence about assaults perpetrated on him on the 3rd; 6th; 7th; 10th and
11th days of November 2007, is fabricated and as such false. It is accordingly rejected
where in conflict with the evidence given by the State witnesses relating to the alleged
assaults perpetrated on the mentioned dates.

[38] The omnipresence of the three unidentified police officers during the accused’s
court proceedings and subsequent incidents of pointing out only surfaced during the
State’s cross-examination and this was never put to either Warrant Officer Gomeb or
Sergeant Hoa-Khaob when they testified. I find that surprising because the accused
specifically advanced thát as the reason why he decided not to inform the magistrate
 16

about him being assaulted and dictated to, to confess to the murder. The presence of
one of these persons at crucial stages of the investigation was, according to his
evidence, the main reason why he did not speak out when circumstances required him
to do so. As stated earlier, it would appear that there are crucial aspects of the
accused’s evidence about the assaults perpetrated on him, that he simply forgot to
mention to his legal representative; and whereas she was oblivious of these
allegations, she could not address those issues with the respective witnesses during
cross-examination. I therefore fully endorse the sentiments expressed in S v Boesak,
2000 (1) SACR 633 (SCA) at 647c-i where Smalberger JA stated:

“… it is clear law that a cross-examiner should put his defence on each and
every aspect which he wishes to place in issue, explicitly and unambiguously, to
the witness implicating his client. A criminal trial is not a game of catch-as-catch-
can, nor should it be turned into a forensic ambush.
[51] In this respect, we are in full agreement with the comments made by the
Constitutional Court in President of the Republic of South Africa and Others v
South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at
36J-37E:
'[61] The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth on a particular
point, to direct the witness's attention to the fact by questions put in cross-
examination showing that the imputation is intended to be made and to
afford the witness an opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her character. If a
point in dispute is left unchallenged in cross-examination, the party
calling the witness is entitled to assume that the unchallenged witness's
testimony is accepted as correct. This rule was enunciated by the House of
Lords in Browne v Dunn (1893) 6 R 67 (HL) and has been adopted and
consistently followed by our Courts.
[62] The rule in Browne v Dunn is not merely one of professional
practice but 'is essential to fair play and fair dealing with witnesses'. [See
the speech of Lord Herschell in Browne v Dunn, above] . . .
[63] The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed . . . particularly where the
imputation relies upon inferences to be drawn from other evidence in the
 17

proceedings. It should be made clear not only that the evidence is to be

challenged but also how it is to be challenged. This is so because the witness
must be given an opportunity to deny the challenge, to call corroborative
evidence, to qualify the evidence given by the witness or others and to
explain contradictions on which reliance is to be placed.'”

[39] On the present facts it seems inevitable to draw the conclusion that the only
reason why defence counsel was unaware of these crucial aspects of the accused’s
case, is because the accused invented this ‘evidence’ as the trial progressed; thereby
trying to make his version more credible.

[40] I shall briefly deal with the conditions prevailing at the time when the accused
made the observation of blood in his urine for the first time. According to the accused
his hands were cuffed behind his back at all times; thus, it was impossible for him to
relieve himself and therefore, passed urine on himself and defecated in his pants. Had
that been the case, one wonders how then would it have been possible for him to
make the observation of blood in his urine as he did and who cleaned him afterwards,
as it would virtually have been impossible for him to do so himself? To this the
accused’s response was that every time the officers came to collect him, he would
only put on clean clothes. However, had the accused’s hands been cuffed on the front
– as the State witnesses testified – he at least would have been able (although with
some impediment) to feed and relieve himself whilst in detention. It seems highly
unlikely that this only happened during the stages when the accused was taken to
Tsumeb or Grootfontein, as there were periods when days passed without the accused
leaving the cells i.e. from the 3rd – 14th November 2007. Except for specific
instructions that he had to remain in handcuffs at all times and was not allowed
visitors, there is nothing showing that the accused was treated differently from any of
the other inmates. From the OB register he was booked out by Constable Indongo on
the 5th of November and again by Constables Kefas and Mbishi on 14 December 2007
to visit the clinic; whilst there are other entries showing that he withdrew cash from
the monies kept on his behalf at the police station. The accused’s complaint about the
toilet being defective was, according to Inspector Ndhuulivali, immediately attended
to; which evidence was not disputed. It therefore does not appear from the evidence
presented to Court that – besides the specific instructions mentioned – the accused
 18

received different treatment than any of the other inmates and that he was singled out
to live under precarious circumstances whilst in detention at Oshivelo.

[41] I accordingly find the accused’s evidence on this point highly improbable and it
appears to be nothing more than an exaggeration of the conditions under which he
was detained; thereby attempting to create the impression that it was inhuman and
degrading, giving rise to promises made to him about improving his conditions if he
co-operates and confess to murdering his wife.

[42] For the conclusions reached infra, I do not deem it necessary to deal in any
detail with the last incident of an alleged assault taking place on the 22 nd of November
2007 at the Windhoek police mortuary; which will be dealt with later herein when the
admissibility of the document relating to the identification of the body is considered.

[43] Whereas the Court has rejected the accused’s evidence that he was assaulted by
Warrant Officer Gomeb and three unidentified police officers on different occasions
in Grootfontein and in the police cells at Oshivelo; on the basis that, on the facts, it
was virtually impossible to have happened, it would equally mean that these persons
could neither have coached the accused nor dictated to him what to say or which
pointing out to make to the police – the sole reason for assaulting him – during the
same period. It was not his evidence that any of the other members of the
investigating team dictated to him what to do or say to the magistrates and the officers
involved in the incidents of pointing out. It must therefore be accepted, and I
accordingly find, that the accused was neither assaulted nor dictated to, in the manner
he testified.

[44] Although it was never raised as a ground on which the defence contested the
admissibility of the documents in question, Ms. Mainga, appearing for the accused,
submitted that at certain stages of the pre-trial proceedings the accused had not been
warned of his right to legal representation and found support in the case of S v Calvin
Liseli Malumo and 116 Others (unreported) Case No. CC 32/2001 delivered on
01.03.2010. It must be said that at no stage during the trial-within-a-trial did the issue
arise about the accused’s rights not being explained to him, thereby failing to
timeously alert the State (who bears the onus of proof), to lead evidence to disprove
 19

the allegations made by the accused. Such practice must be discouraged as it leaves
the Court in the unenviable position of not having heard evidence on the issue(s) in
dispute; which in turn, could thoroughly have been dealt with in cross-examination.
As a result of such failure the Court is now restricted to what is reflected in the
records of court proceedings and documents; the very same documents in dispute.
The State should not be put in a position where it finds itself ambushed for having
failed to cover all possible objections that could be raised. Such practice is not in the
interest of justice, as the right to a fair trial is not construed to mean that it only
applies to the accused person, as it also applies to the State. Although stated in a
different context, White, J in S v Mqayi and Others, (unreported) Case No. CC 4/1999
Ciskei High Court delivered on 10.06.1999, said:

“In my opinion the cornerstone of an open and democratic society is a system of

justice which is fair to the accused, the prosecution, and the administration of justice
as a whole. It seems to me the Constitution envisages such a system of justice and
that it can never be said that the interests of justice are the interests of the accused
only.”

I fully endorse these sentiments expressed by the learned judge. In the present case
the State, in my view, would have been entitled to apply to the Court to have its
witnesses recalled in order to give evidence on the explanation, or otherwise, of the
accused’s right to legal representation. Whereas there was no such application, the
Court will consider the question whether the accused’s rights to legal representation
were duly explained to him or not as it appears from the documents under
consideration.

[45] Considerable weight was given to the Court’s findings in the Malumo case
(supra) where it was found that where a lay and unsophisticated accused is brought
before a magistrate (or a justice of the peace) to make a confession or admissions, that
it would be irregular to take down such statement without first having explained to the
accused person his or her right to legal representation and legal aid (See record p. 49
para [133] and p. 50 para [136]).
It is a well-established principle that the court is under a duty to adequately inform an
unrepresented accused of his or her right to legal representation; which right includes
 20

the entitlement to legal aid and that these rights equally apply to pre-trial proceedings.
Failure to explain these rights to an unrepresented accused would amount to an
irregularity and where a failure of justice had resulted from the irregularity (because
the accused was prejudiced and not afforded a fair trial), such failure would result in
the proceedings being vitiated (S v Shikunga and Another, 1997 NR 156 (SC)).

[46] The Court in Malumo further stated that where there is an allegation of assault
by the police, then the magistrate before whom the accused is brought for purposes of
making a confession, must put further relevant questions to the accused person in
order to establish whether the statement the accused is about to give, would be given
freely and voluntarily (See p. 34 para [81]). It seems apposite to quote the dicta relied
on from S v William Swartz and Others, (unreported) Case No. CC 108/99 delivered
on 29.10.1999 where Maritz J (as he then was) said the following:

“Of course, had the accused said anything which should have caused the magistrate
to suspect that the accused’s appearance before her was not freely and voluntarily,
or that he had been unduly influenced, she would have had the duty to further inquire
into the matter, and such a duty would have extended beyond the scope of the pre-
printed form.”

I fully endorse the Court’s finding; however, there are material factual differences
between the present case and the Malumo matter.

[47] In the Malumo case some of the accused persons brought to the magistrate for
purposes of making a confession or to give a statement informed the magistrate that
they had been assaulted; whilst some even showed marks or scars on their bodies as
proof thereof. It is against that background that the Court expressed the view that the
magistrate was under a duty to make further enquiries and to establish whether the
accused was not by the use of force brought to a confessing state of mind. In the
present case however, the accused (on his own version) confirmed that he did not
inform the magistrate of any assaults perpetrated on him. In fact, when specifically
asked whether he had been assaulted; threatened; encouraged or influenced to make a
statement, the accused answered in the negative. In these circumstances, I am unable
to find on that basis that the magistrate had reason to suspect that the accused’s
 21

appearance before her was not freely and voluntarily; and that she had the duty to
further enquire into the matter.

[48] I now turn to consider the admissibility of the respective documents contested
by the defence. For the reasons given herein supra, the Court will approach the
evidence relating to each document from the basis that, when the accused gave
explanations and made statements at different stages he was not – unless where
otherwise stated – acting under undue influence. It was confirmed by the accused that
what is contained in the statements made to the magistrates and the incidents of
pointing out made to the police officers, respectively, correctly reflect what he
narrated to them; albeit as he claims, that it was dictated to him beforehand and as
such, it was not of his own making.

[49] I shall deal with the contested documents seriatim and evaluate the evidence
adduced in respect of each.

The “Confession”

[50] It is common cause that the accused was brought before magistrate Nicolaidis
on 14 November 2007 for the purpose of making a statement. The only other person
present was the official interpreter, Nicolas Ndumba. Whereas the accused is
proficient in the English language there was no need for interpretation; however, the
magistrate testified that she deemed it necessary that the interpreter remained present
and also had him sign the document in that capacity; despite not making use of his
services. In principle I do not find that irregular, as the magistrate could not
beforehand have known whether the services of an interpreter would be required
halfway through the interview and recording of the statement. The continued
presence of the official interpreter therefore should not have had any influence on the
accused or the proceedings. It is further common ground that after the recording of
the statement, the accused read through it himself and, having been satisfied, he
appended his signature thereto, as provided for.

[51] Magistrate Nicolaidis testified that the accused appeared calm and collected and
not nervous or agitated; that he was very clear in what he said and, as he was
 22

proficient in the official language, there was no need to prompt him. Also that he
appeared to be in his sound and sober senses and he did not look like someone acting
under undue influence; neither that his statement appeared rehearsed or staged. She
further stated that the accused made a correction on the statement by inserting the
word “will” where it was appropriate. The accused denied this and said he was
instructed to insert the word.

[52] It was contended on the accused’s behalf that upon his entry into the office he
informed the magistrate that he need to speak to her alone. The magistrate disputed it,
but added, that had she received such a request, she would have informed the accused
that the interpreter had to stay in attendance. She was furthermore of the view that
such a request would not have raised any suspicion with her. It was further suggested
that the interpreter received and made several calls on his mobile phone whilst the
statement was recorded; and although the magistrate said she could not recall that
ever happening, she was adamant that she would not have allowed him that. The
interpreter, Mr. Ndumba, confirmed this and denied having made or received any
phone calls. He went on to say that after the accused enquired whether the
information he was about to disclose would be treated as confidential, he and the
magistrate both switched off their mobile phones. This aspect of his evidence is
inconsistent with the evidence given by the magistrate; and as the accused himself did
not give evidence to that effect either, it seems to me that the interpreter beforehand
(during this trial) got word of him being suspected of leaking information to someone
outside and therefore invented the story about the accused asking whether they could
be trusted and them switching off their mobile phones.

[53] As stated, the mere presence of the official interpreter could not have had any
impact on the statement recorded at the time as he played no role during the
proceedings, other than being a witness. It seems that the accused wants to create the
impression that he had reason to distrust the interpreter and therefore wanted him to
leave the office; yet, he did not say why he was distrustful of the interpreter. Had he
truly entertained that idea, then it was without merit, as there were no grounds on
which a reasonable person would have come to the same conclusion. He was not part
of those who investigated the case and there was clearly no previous contact between
 23

them before. I accordingly find the accused’s evidence on this point fanciful and
something that came as an afterthought.

[54] It was further contended that the magistrate misdirected herself by firstly, not
informing the accused of his right to legal aid during the taking down of the
statement; and that this Court should take a broader approach and endorse the
sentiments echoed in the Malumo case (supra), where it was stated that an accused
does not have to raise the issue of legal representation before the Court will consider
it (See p.49 para [131]). Secondly, that on the question whether the accused had made
previous statements, he replied in the affirmative, saying that he did so to the police.
This, it was argued, should have alerted the magistrate; and in the light of what was
stated in Rex v Gumede and Another, 1942 AD 398 at 433 and Malumo (supra), the
magistrate should have made further enquiries whether the accused was not brought to
a confessing mind by long hours of interrogation and assault.

[55] I am in respectful agreement with the sentiments expressed in the Malumo case
in that the Court has a duty to consider whether the accused was given a fair trial
without him first having to raise the issue of legal representation before the Court. I
am furthermore in agreement with the sentiments expressed in S v Kasanga 2006 (1)
NR 348 (HC) at 360D-E namely, that in order to decide whether an accused was
given a fair trial, it would be crucial to first determine whether the accused, before
being required to exercise or waive his or her rights, was duly informed of these rights
and thus able to take an informed decision. In S v Bruwer, 1993 NR 219 (HC) at
223C-F the Court stated that, although the concept of a fair trial must be given a wide
and liberal interpretation, “…I fail to see how it can be said, even against this
background that a trial will be less fair if a person who knows that it is his right to be
legally represented, resulted in a failure of justice is, as in most other instances where
a failure of justice is alleged, a question of fact” (Emphasis provided)

[56] In the present case, when brought before magistrate Nicolaidis, the accused had
already appeared in the magistrate’s court Grootfontein (on 01 November 2007)
where, according to the record of the proceedings, his rights to legal representation
and legal aid were duly explained to him. During these proceedings the accused
indicated that he understood the explanation given to him and that he required legal
 24

representation and legal aid. Under cross-examination, the accused denied that any
rights were explained to him; however, he stated that the case was postponed for
further investigation and to enable him to get a lawyer. He claims to have informed
the court that he had a lawyer in Kenya with whom he wanted to establish contact –
despite that not being reflected on the record. It then seems obvious that the accused
from the onset was aware of his right to legal representation; and since his first
appearance in court, he was also informed of his right to legal aid. Thus, the accused
was informed of the rights relating to legal representation and therefore in a position
to take an informed decision; which is apparent from his response to the magistrate
when asked whether he sought legal representation. On a question whether he had
made a similar statement and to whom, he replied: “Yes. To the police. They asked
questions and sometimes recorded my answers in writing. I was informed of my
rights at all time.” The Annexure to the statement further states: “Declarant duly
warned of his right to legal representation. Declarant wishes to proceed without
legal representation. Declarant warned that confession may/will be used against him
in eventual legal proceedings. Declarant duly warned that he is not obliged to make
any statement. Declarant wishes to proceed.” Accused did not dispute that these
explanations were given to him; neither that he was unaware of his right to legal aid.
There can be no doubt that when the accused, after being reminded of his rights,
elected to proceed making a statement, he was duly informed and mindful of the
consequences.

[57] The second ground of objection against the magistrate’s alleged failure to make
further enquiries into the reason why the accused wanted to make a statement to her is
also without merit. The accused’s report that he beforehand was questioned by the
police should in itself not have raised any suspicion in the magistrate’s mind,
requiring further questioning because it is common knowledge that the investigation
of a criminal case would require a certain degree of questioning or interrogation of the
suspect. There was nothing sinister in the accused’s reply prompting the magistrate to
make enquiries into. The submission that the accused was subjected to unreasonable
periods of interrogation – by adding up the hours he was booked out – is not
supported by the evidence. I believe that argument is founded on the accused’s
evidence that he was subjected to long periods of coaching and torturing by three
unidentified police officers – evidence this Court found to be false. The objection
 25

thus, is baseless. The accused’s reply cannot be viewed in isolation, but must be
considered in context and with full regard to his further explanation on the question as
to what circumstances brought him there and to which he replied: “When I did this I
was feeling bad. What I did was not fair. I actually went to police station,
Grootfontein twice, but I just passed by. I could not go and report the matter because
my mind was not free. While sitting in my cells I decided the fair thing to do is to
confess. I feel I did this thing, it was not my intention. But I did it, so I must report
it.” That answer clearly explains the reason how it came that the accused was brought
before the magistrate and there was nothing more to enquire into. As mentioned
earlier, unlike the situation in the Malumo matter, the accused, when specifically
asked, denied that he had been assaulted before and neither did he have any visible
injuries. On his own evidence he had no visible injuries. The explanation given by
the accused – to some extent – should lay to rest the alleged unwillingness of the
accused to make a statement to the magistrate at the time.

[58] Resultantly, the Court is satisfied that all legal requirements have been met and
that the statement made by the accused to magistrate Nicolaidis on the 14th of
November 2007, is admissible in evidence.

The section 119 proceedings

[59] I have earlier alluded to the fact that with the accused’s first appearance in court
on 01 November 2007, he was informed of his right to legal representation and legal
aid. On the pro forma reflecting these proceedings it is indicated that the accused
needed an attorney of his own choice and legal aid. The matter was remanded to 04
February 2008 and the record further reflects the reason for the postponement, being
further investigation and legal aid (“L/A”). However, the accused was brought before
the court on the 20th of November and informed that he was required to plead in terms
of s 119 of the Criminal Procedure Act 51 of 1977. It was explained to him that it
was not the trial and what the purpose was of taking his plea at that stage. The
magistrate then enquired from the accused whether during the trial, he would conduct
his own defence; engage the services of a lawyer of his own choice; or require legal
aid, to which the accused replied that he would apply for legal aid. From this I infer
that since his first appearance the accused had not yet applied for legal aid as he had
 26

earlier indicated. No further enquiries were made regarding legal representation for
the accused; and after the charges were put to him, the accused pleaded.

[60] It was submitted on behalf of the accused that the time when he was required to
plead in terms of s 119, he was not informed of his right to legal representation; that
he had not been informed of such right during the pre-trial proceedings; and therefore,
the s 119 proceedings should be ruled inadmissible (S v Kapita (1) 1997 NR 285
(HC); S v De Wee 1999 NR 122; The State v Calvin Liseli Malumo (supra)). This
submission is without merit as the accused’s right to legal representation and legal aid
had already been explained to him on his first appearance; furthermore, from his own
evidence it is clear that he already knew that he had the right to be legally represented.
I am unaware of any authority requiring a presiding officer to repeatedly explain to an
accused appearing before court, his or her right to legal representation; and where
such failure would result in the accused not be given a fair trial. It has been stated
that it was desirable that an accused should be advised of his rights to legal
representation and to remain silent at every stage of pre-trial proceedings where he
might incriminate himself; however, failure to do so could never have the result that
“evidence about such a step was inadmissible, merely because there was no such
advice”. See: S v Shaba en ‘n Ander, 1998 (1) SACR 16 (TPA).

[61] The principle of fairness in this context clearly does not lie in the number of
times an accused’s rights are explained to him or her, but whether the accused, before
exercising his or her right, was properly informed and understood that right and the
consequences thereof. In other words, whether the accused was in a position to make
an informed decision (S v Bruwer (supra)). In the light thereof, I am satisfied that
when the accused appeared before the court during the s 119 proceedings, he was
properly informed of his right to legal representation and legal aid.

[62] However, I am of the view that an irregularity was committed during those
proceedings, rendering the accused’s s 119 plea inadmissible as evidence in the main
trial. When the accused appeared in court on the 20th of November, he had already
indicated (on his first appearance) that he would require legal aid, and although the
court confirmed this with the accused, he was asked whether he required legal
representation during the trial and not during the s 119 proceedings where he was at
 27

risk of incriminating himself. From the manner in which the court enquired from the
accused whether he sought legal representation, it creates the impression that this
right only applies to the trial stage and not to the pre-trial proceedings. This is
misleading. Had the learned magistrate read the record of the proceedings he would
have realised that the accused had already informed the court that he wanted legal
representation, albeit on private instruction or legal aid. In these circumstances the
court, in my view, was under a duty to first explain to the accused what was expected
from him during those proceedings and the consequences thereof; secondly, to have
enquired from the accused whether he was willing to proceed without his legal
representative or not. It does not appear from the record that the accused at that stage
fully appreciated his position; neither that he was assisted in any way by the court to
comprehend that he was entitled to be legally represented during those proceedings.
What is clear is that the accused wanted legal representation and he should have been
afforded the opportunity to decide whether his legal representative should be present
during those proceedings or not. The court’s failure to determine something as crucial
as that, would amount to an irregularity, vitiating the entire s 119 proceedings.

Pointing out

[63] There are two incidents of pointing out made by the accused, the first being on
15 November to Detective Chief Inspector Kurz from Windhoek and the second, on
20 November 2007 to Detective Inspector Marais from Otjiwarongo. Neither of these
officers were involved in the investigation of the case against the accused in any other
way. Both officers completed identical pro forma documents titled “Notes on the
pointing out of scene(s) and or points”, except that the form used by Inspector Marais
in paragraph 5 provides that the accused be informed of his right to legal
representation and to have such person present; whilst the form used by Chief
Inspector Kurz makes no provision for that. In paragraph 3 of both forms the
accused was informed that he was in the presence of a Justice of the Peace; that he
was not compelled to point out any scene(s) or to say anything about such scene(s);
and that whatever he so points out or say would be noted down and photos of the
scene or pointing out would be taken and could be used as evidence during the
subsequent trial. According to the respective statements the accused indicated that he
understood the warning or rights explained to him and that he still wished to point out
 28

certain points. Both statements reflect that after the pointing out, the statements were
read to the accused and, having been satisfied that it was correct, signed by the
accused. This much was confirmed by both officers in their testimony before Court
and which evidence was left unchallenged.

[64] According to Chief Inspector Kurz he first interviewed the accused before he
started completing the pro forma document, during which he explained to the accused
the purpose of his visit. He also explained to him his rights – including the right to
legal representation and that he could have his legal representative present.
Furthermore, that he (Kurz) wanted to make a video recording of the interview and
pointing out, but when the accused refused such recording, the idea was abandoned
and only photographs were taken. Chief Inspector Kurz said that after he explained to
the accused his right to legal representation the accused said that they could continue
and that he did not require his lawyer to be present at that stage; and that this was
recorded on the document. I have been unable to find that entered into the record.

[65] Be that as it may, it was never disputed that the accused on both occasions was
informed of his right to legal representation; and, as this issue only arose during
defence counsel’s submissions, this aspect was not properly addressed during cross-
examination, as should have been the case. Ms. Mainga argued that the accused was
indeed aware of his right to legal representation, but again raised the issue of legal
aid, claiming that the accused was unaware thereof at the time. As mentioned earlier,
the accused was equally aware of his right to legal aid before he made any statements
or pointing out. This notwithstanding, on both occasions the accused was informed
that he was not obliged to say anything or make any pointing out, but should he
decide to proceed, that this could be used as evidence later. Thus, he was informed
that he could refuse to say anything or make any pointing out. In the circumstances
there seems to be nothing showing that the accused was uninformed as far as it
concerns his rights; and as a consequence of any doing or failure on his part, he would
be prejudiced and not be afforded a fair trial. To that end, all the requirements have
been met regarding both documents relating to the pointing out made by the accused.

[66] As far as it concerns both incidents of pointing out the objections against the
admissibility of the documents were that the accused did not make these freely and
 29

voluntarily as it emanates from (previous) assaults and what he was told to say i.e.
“the made-up story”. At no stage was it alleged that either Chief Inspector Kurz or
Inspector Marais played any role in forcing the accused into making any admissions
or any pointing out against his will. It therefore came as a surprise during the cross-
examination of these two witnesses when it was put to them that the accused had
informed them that he was unwilling or refused to make any pointing out, but that
both officers exerted pressure on him to proceed. When asked in cross-examination
whether Chief Inspector Kurz had forced him into making a statement and pointing
out, the accused did not confirm what had been put to the State witnesses and merely
replied that the document correctly reflected what he had said and that he made the
pointing out. According to him both documents reflect what he was told to say and
what he was shown earlier to point out to the police. He clearly contradicted himself
on the earlier imputation that it was Chief Inspector Kurz who did the pointing out
and that he just followed – also as far as it concerns the directions to the respective
scenes. Chief Inspector Kurz was not shown to be an unreliable witness; neither did
he have any reason to force the accused into making admissions and pointing out
against his will. Against this background I find the accused’s explanation that he had
no option other than to proceed unconvincing; and, when considered against the rest
of the evidence, unsubstantiated and highly improbable.

[67] Similarly, contrary to what was put to Inspector Marais in cross-examination,

the accused admitted that he did not refuse to make any pointing out to Marais; that he
was not forced in any way and that the document correctly reflects what transpired
between him and Marais. He confirmed Marais’s evidence to be correct, but was
unable to explain the discrepancies between his instructions to counsel and his
testimony. It seems inevitable to conclude that the accused deliberately fabricated
evidence to give (more) credibility to his story.

[68] At this juncture I wish to regress and briefly consider defence counsel’s
submission that the accused was in no position to initiate any pointing out; indicating
that he was forced into making admissions and the pointing out of certain points. As
shown above, there is no evidence supporting the contention that the accused was
forced into making admissions or any pointing out against his will. However, I do not
believe Sergeant Hoa-Khaob’s story when he said that the idea of the pointing out on
 30

both occasions had come from the accused. From the accused’s perspective, there
would not have been any need for that as he had already admitted his guilt to the
police and a magistrate. By analogy, it does not imply that therefore, the accused was
forced into making any admissions against his will. It seems to me that it would not
be improper for an investigating officer to ask a suspect or accused whether he or she
would be willing to make any pointing out relevant to the matter under investigation;
provided that there is no undue influence on him or her to do so and that the accused
is aware of his right to decline the request and remain silent. Both officers in this
instance explained to the accused that he was not compelled to say anything or make
any pointing out. Thus, even if the accused was asked by the investigating team
whether he was willing to make any pointing out and to which he acceded, he was
well aware that he could refuse as the consequences of his decision had also been
explained to him. However, when bearing in mind that, on the accused’s version, he
was forced – not by the investigating team but by three unidentified police officers –
to confess to the commission of the crime, then defence counsel’s submission loses
significance, and deserves no further consideration.

[69] In the result, the Court is satisfied beyond reasonable doubt that both statements
and accompanying annexures relating to two incidents of pointing out made by the
accused on 15 and 20 November 2007 respectively, are admissible evidence.

Identification of body

[70] It is common cause that the accused was taken to the Windhoek police mortuary
on the 22nd of November 2007 for purposes of identifying a body. Once again, I do
not believe that this was at the instance of the accused as Sergeant Hoa-Khaob has
testified, but rather that the idea came from the investigating team. According to the
accused he was taken into the mortuary by Chief Inspector Mbandeka where he was
shown a decomposed head, which he was unable to identify. They returned to the
office where he was told to sign the identification form which had already been filled
out. He refused and was thereafter handed over to the investigators who assaulted
him. The accused then signed the document. Sergeant Hoa-Khaob denied the
allegation of assault and Chief Inspector Mbandeka said he did not observe any
assault on the accused as the accused was in his presence at all times. Although it was
 31

put to Chief Inspector Mbandeka during cross-examination, that the accused was not
sure of the identity of the person, the accused, during his testimony, said that he was
unable to identify the person.

[71] According to Chief Inspector Mbandeka he also received from the police
officers the passports of the accused and his wife, from which he entered their names
onto the form before any identification was made. The reason for this, he explained,
is that the person making the identification might be shocked and unable to provide
the required information; therefore it is practice to first complete the form and to have
it signed afterwards. Now, if that explanation holds true, then such practice, in my
view, is open to abuse and criticism for more than one reason. Firstly, there is always
the possibility that no identification could be made. Therefore, why would it be
necessary to complete the form beforehand? Secondly, if the person required to make
the identification is capable of signing the document afterwards, why would he or she
not be able to provide his or her personal particulars and that of the deceased? The
required information is basic and any person would be able to furnish that information
within one minute. Should the person be in no state to provide the necessary
information, I can think of no reason why he or she should not be given time to get
control over his or her emotions first and thereafter provide the necessary information
– even if it means that the form is completed afterwards. Obviously, that will depend
on the circumstances of each case, and in my view, it is wrong to simply assume
beforehand that the person would not be able to provide the necessary information
afterwards.

[72] In this case Chief Inspector Mbandeka filled out the form, and as regards the
particulars of the accused and the deceased, obtained the information reflected
therein, from their passports and not from the person making the identification. That
obviously defeats the whole purpose of identification; as in this instance, the
“identification” was completed even before the body was viewed! That step was
irregular and contradicts the information borne out by the document namely, that the
body was first shown to the accused and thereafter identified. By doing it the other
way round, the accused could have experienced this procedure as pressure put on him,
not allowing him to decide for himself whether he was indeed able to identify the
person. The approach adopted when completing the form on the identification of a
 32

body in this case, is not conducive to fair pre-trial procedure and should not be
followed. Therefore, the State should not be permitted to rely on the document styled
“Identification of body” in proving its case against the accused; thus, the document
cannot be received into evidence.

[73] In the result, the Court makes the following order:

1. The following statements are declared to be admissible as evidence

against the accused in the main trial:
(i) The statement containing the confession/admissions made
to magistrate Nicolaidis on 14 November 2007.
(ii) The statements and annexures relating to two incidents of
pointing out dated 15 and 20 November 2007, respectively.

2. The following statements are declared to be inadmissible as

evidence against the accused in the main trial:
(i) The section 119 proceedings, as reflected in the court
proceedings held at Grootfontein Magistrate’s Court on 20
November 2007.
(ii) The statement titled “Identification of Body” dated the 22 nd
of November 2007.

______________________________
LIEBENBERG, J
 33

ON BEHALF OF THE ACCUSED MS. N. Mainga

Instructed by: Kishi Legal Practitioners

ON BEHALF OF THE RESPONDENT MR.N.M Wamambo

Instructed by: Office of the Prosecutor-General