REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case no: CC 32/2001 In the matter between: THE STATE and CALVIN LISELI MALUMO & 65 OTHERS ACCUSED Neutral citation: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14 September 2015) Coram: HOFF, J Heard: 24 February 2004 until 05 December 2014 Delivered: 7-11, 14 September 2015 Table of Contents of the Jugdment JUDGMENT...........................................................5 Flynote:...........................................................5 Introduction.......................................................9 The charges against the accused persons............................9
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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENTCase no: CC 32/2001
In the matter between:
THE STATEand
CALVIN LISELI MALUMO & 65 OTHERS ACCUSED
Neutral citation: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14
138,141,142,144,146,151,153,155,156,159,160,164,165,169,171 to 173, 178, 185,
187,193,195,196,199,202,209,213,228,230,231,234,239,249,261,276 and 277 of
attempted murder.
1. Bollen Mwilima Mwilima (Accused no 65)
2. Alfred Lupalezi Siyata (Accused no 80)
3. Charles Nyambe Mainga (Accused no 87)
4. Mathews Muyandulwa Sasele (Accused no 100)
5. Berhard Maungolo Jojo (accused no 98)
6. Victor Masiye Matengu (Accused no 60)
7. Alfred Tawana Matengu( Accused no 79)
8. Mathews Munali Pangula (Accused no 59)
9. Richard Simataa Mundia (Accused no 104)
10.Georffrey Kupuzo Mwilima (Accused no 68)
11.Adour Mutalife Chika (Accused no 2)
12.Kingsley Mwiya Musheba (Accused no 9)
13.Rodwell Sihela Mwanabwe (Accused no 30)
14.Kester Silemu Kambunga (Accused no 102)
15.Fabian Thomas Simiyasa (Accused no 96)
16.Albert Sakena Mangilazi (Accused no 55)
17. Osbert Mwenyi Likanyi (Accused no 57)
7
18.Richard Libano Misuha ( Accused no 48)
19.Moses Chicho Kayoka (Accused no 47)
20.Bennet Kacenze Mutuso (Accused no 69)
21.Charles Mafenyeho Mushakwa (Accused no 73)
22.Raphael Lyazwila Lifumbela (Accused no 6)
23.Sikunda John Samboma (Accused no 54)
24.Aggrey Kayaba Makendano (Accused no 11)
25.Theddeus Siyoka Ndala (Accused no 70)
26.Martin Siano Tabaundule (Accused no 71)
27.Chris Puisano Ntaba (Accused no 7)
28.Postrick Mowa Mwinga (Accused no 23)
29.Ndala Saviour Tatalife (Accused no 24)
30.John Panse Lubilo (Accused no 50)
[2] The following accused persons are found not guilty of the charges preferred
against them:
1. Leonard Mutonga Ntelamo (Accused no 84)
2. Norman Christopher John Justus (Accused no 93)
3. Muketwa Eustace Sizuka (Accused no 95)
4. Gerson Luka Luka (Accused no 101)
5. Robert Lifasi Chelezo (Accused no 97)
6. Richard Limbo Mukawa (Accused no 91)
7. Eugene Milunga Ngalaule (Accused no 64)
8. Mwilima Gabriel Mwilima (Accused no 61)
9. Jimmy James Mtemwa Liswaniso (Accused no 58)
10.George Kasanga (Accused no 77) - But guilty on count 272: C/S 2(c) read
with section 81(1)(a) of the Departure from the Union Regulation Amendment
Act, Act 34 of 1955, as amended by section 2 of the Departure from Namibian
Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.
11.Mashazi Allen Sameja (Accused no 67)
12.Richwell Mbala Manyemo (Accused no 115)
13.Gabriel Nyambe Ntelamo (Accused no 88)
8
14.Oscar Kashalula Muyuka Puteho (Accused no 49) – But guilty on count 273:
C/S 2(c) read with section 81(1)(a) of the Departure from the Union
Regulation Amendment Act, Act 34 of 1955, as amended by section 2 of the
Departure from Namibian Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.
15.Martin Sabo Chainda ( Accused no 103)
16. Ignatius Nawa Twabushalila (Accused no 44)
17.Patrick Itwa Likando ( Accused no 89)
18.Bernhard Mucheka (Accused no 75)
19.Tiiso Ernst Manyando ( Accused no 37)
20.John Samati Yalubbi (Accused no 53)
21.Oscar Nyambe Puteho (Accused no 72)
22.Kambende Victor Makando (Accused no 90)
23.Sylvester Lusiku Ngalaule (Accused no 8 )
24.George Masialeti Liseho ( Accused no 15) – But guilty on count 274: C/S 6(1)
of the Immigration Control Act 7 of 1993 – ILLEGAL ENTRY INTO NAMIBIA25.Austen Lemuha Ziezo (Accused no 121)
26.Andreas Puo Mulupa (Accused no 26)
27.Joseph Kamwi Kamwi (Accused no 3)
28.Herbert Mboozi Mutahane (Accused no 5)
29.Roster Mushe Lukato (Accused no 18)
30.Davis Chioma Mazyu (Accused no 16)
31.Rex Lumponjani Kapanga (Accused no 63)
32.Brandon Luyanda Luyanda (Accused no 120)
33.Frans Muhupolo ( Accused no 122)
34.Brighton Simisho Lielezo (Accused no 31)
35.Francis Buitiko Pangala ( Accused no 17)
JUDGMENT
HOFF, J:
9
Introduction
[1] On 2 August 1999, during the early hours of the morning, the town Katima
Mulilo was attacked by a group of individuals, some of whom were armed with
weapons of war. The following institutions were attacked namely, the Katima Mulilo
police station, Mpacha military base, the offices of the Namibian Broadcasting
Corporation (NBC), Katonyana police base, Wanela border post and the Bank
Windhoek branch. During the attack, a number of persons lost their lives, some were
seriously injured and property belonging to the State had been damaged. In the
aftermath of this attack, a number of individuals had been arrested and charged.
The charges against the accused persons
[2] On 15 March 2004, 278 charges were put to the accused persons who, at that
stage, were all legally represented.1The main count of high treason reads as follows:
‘That the accused are guilty of the crime of HIGH TREASON.
Whereas the Republic of Namibia at all relevant times was and still is a Sovereign State;
And Whereas the accused at all relevant times were citizens of the Republic of Namibia
and/or were domiciled in the Republic of Namibia and/or were resident in the Republic of
Namibia and thus owed allegiance to the Republic of Namibia (hereinafter referred to as the
State);
And Whereas the accused between JANUARY 1992 AND 06 December 2002 conspired
together with each other and with other persons at different places in the CAPRIVI REGION and on dates, the exact particulars of which are unknown to the State, to overthrow or
undermine the authority of the State, take over the authority of the State, coercing the State
into action or inaction, violating or threatening the existence, independence or security of the
Government and/or changing the Constitutional structure in the Caprivi Region;
And Whereas the Central committee of the United Democratic Party (UDP) of the Caprivi
Zipfel resolved to create the Caprivi Liberation Army as the fighting wing of the Party.
And Whereas the accused jointly or severally and with other persons grouped themselves
into an organization that was named the CAPRIVI LIBERATION MOVEMENT/ARMY,
1 See further paras 9,10 of the charge sheet.
10
abbreviated CLA/CLM, in pursuance of the abovementioned conspiracy; which organization
had as its objects;
1. To organize an army to liberate the Caprivi Zipfel from the present foreign
dominated regime of Namibia.
2. To create the nucleus of an independent country’s army.
3. To organized and purchase (where possible) arms and equipments that are to be
used for the liberation struggle.
4. To recruit all able bodied Caprivians into the army without any discrimination on
the basis of sex, religion and tribe.
5. To be the instrument for liberty, freedom and democracy.
6. To help in upholding the principles of liberty and respect of basic human rights.
7. To be a better organized, trained and disciplined military force.
8. To protect the freedom and territorial integrity of the Caprivi Zipfel.
9. To help the police in maintaining law and order of the country.
10. To serve the people, country and government of the Caprivi Zipfel.
And Whereas the accused and/or other persons after they became aware of the aims and
objectives of the conspiracy and/or purpose, aims and objectives of the CLM/CLA, joined in
and associated themselves with the conspiracy and/or the CLM/CLA and/or remained a
member thereof and/or furthered and supported the aims and objectives thereof;
And Whereas, the accused in pursuance of the conspiracy committed one or other of the
overt acts as stated in paragraph 1 to 22 hereunder;
Now therefore, the accused committed the crime of HIGH TREASON;
IN THAT about or between January 1992 and December 2002 and at various places in the
Caprivi Region the accused did unlawfully and with hostile intent against the State and to
undermine the authority of the State, take over the authority of the State, coercing the State
11
by violence into action or inaction, violating or threatening the existence, independence or
security of the Government;
1. Held various meetings where the coup d’etat was discussed, planned and agreed
upon;
2. Plan a violent take-over of the authority of the State in the Caprivi Region, and/or;
3. Gather on or about 2 – 3 October 1998 at Makanga forest to arm and train
themselves for the coup d’etat; and/or;
4. Gather on or about 7 to 14 October 1998 at Sachona to arm and train themselves
for the coup d’etat; and/or;
5. Gather on or about 15 to 27 October 1998 at Linyati and Lyiubu-Lyiubu forest to
arm and train themselves for the coup d’etat; and/or;
6. Escape, or assisted other persons to escape from several refugee camps in
Botswana to attend camps and training in Zambia, Angola and in Namibia to arm and
train themselves for the coup d’etat; and/or transported or assisted to transport other
for such purpose and/or;
7. Gather and conspired on 30 July to 2 August 1999 at Makanga rebel base with other
persons to carry out a coup d’etat in the Caprivi Region; and/or;
8. Gather and conspired with other persons at Cameroon rebel base and/or on other
places in the Caprivi Region, Zambia, Botswana and Angola to arm and train
themselves for the takeover of the authority of the State in the Caprivi Region; and/or
9. Fail to, after the said proposed coup d’etat or conspiracy came to his/her/their
knowledge, to report it to the Authorities/Namibian Police without further partaking
therein; and/or
10. Attempt to recruit or recruiting other persons for the coup d’etat; and/or
11. Conspire to steal fire-arms from Mpacha military base, Katounyana Special Field
Force base and Katima Mulilo Police Station and/or other places and/or take over
Mpacha military base, Katounyana Special Field Force base and Katima Mulilo
Police Station; and/or;
12
12. Conspire to attack and/or occupy and on 2 August 1999 did attack Mpacha military
base, Katounyana Special Field Force base, Wanela Border Station, Namibian
Broadcasting Corporation, Katima Mulilo Police Station and the Central Business
Area of Katima Mulilo as well as the house of Sgt. Liswani Mabuku and/or;
13. Conspire to arrest and/or kill the officials of the State in Caprivi and/or;
14. Perform or neglect to perform any duty resulting in procuring the conspiracy or
intended result of the conspiracy or neglecting to report the conspiracy immediately
or effecting the arrest of the conspirators;
15. Instigated or recruited or attempted to assist or recruit other persons to flee and/or go
to Botswana and/or other places in the Caprivi Region, Zambia or Angola to join the
Caprivi Liberation Army and/or to receive military training, and/or to mobilize
themselves into a rebel army with a view to take over the authority of the State in the
Caprivi Region.
16. Donate money or collect money to assist in rebel activities with a view to take over
the authority of the State in the Caprivi Region and/or;
17. Procure firearms or instigate others to procure firearm with a view to take over the
authority of the State in the Caprivi Region and/or;
18. Transported or assisted to transport other persons to flee the Caprivi Region to
places where they can receive military training and/or to flee to refugee camps with
the intent to support and mobilize the Caprivi Liberation Army and/or;
19. Gather at a meeting on 1 August 1999 at Linyanti where in the pursuance of the
conspiracy it was decided to attack various places in the Caprivi Region; and/or
20. Gather at Kaliyangile and Masokotwane rebel bases or at other places in the Caprivi
Region after the attack of 2 August 1999 with the aim to regroup militarily and/or to
remobilize the Caprivi Liberation Army to take over the authority of the State in the
Caprivi Region and/or;
21. Transported or assisted to transport rebels on the 2 August 1999 with the aim to
attack various places in the Caprivi Region with the aim to take over the authority of
the State in the Caprivi Region; and/or;
22. Render assistance in the form of food, water, transport, shelter or accommodation to
the rebels with the aim to take over the authority of the State in the Caprivi Region,
13
Which acts were likely to achieve the secession of the Caprivi from Namibia by military
means.’
[3] The second count of sedition reads as follows:
‘COUNT 2
That the accused is/are guilty of the crime of SEDITION.
In that upon or about or between January 1998 and February 2003 and at or near the
districts of Katima Mulilo and /or Grootfontein the said accused did unlawfully and with
seditious intent, participate in a gathering of a number of people, which gathering had the
intention to unlawfully defy, and subvert, challenge, resist and/or assail the authority of the
government of the Republic of Namibia by:
1. Addressing, participating, discussing, planning, supporting and resolving, at
various meetings held on dates the particulars of which are unknown to the State
and at several places in the Caprivi Region and/or Windhoek where it was
conspired to undermine the authority of the State and/or Government of Namibia
in the Caprivi Region by means of force and/or violent means, which meetings
had the aim to,
- Recruit persons or encourage persons to flee Namibia for Botswana or
other countries to join or become refugees in such countries, and /or;
- Encourage people to join the secessionist movement whose aim was to
separate Caprivi Region from Namibia, and/or;
- Donate money or other valuables to assist the secessionists in the
furthering of their aims; and/or
- To assist others to leave Namibia by way of providing transport, food,
accommodation and other assistance.
2. Shouting slogans, waving placards, and/or acting in such a manner or use a
language in such a manner or propagate certain viewpoints on political ideas,
that would have the effect of undermining the authority of the State in the Caprivi
region or elsewhere in Namibia.’
[4] Alternative to count 2 reads as follows:
‘ALTERNATIVE COUNT TO COUNT 2:
14
That the accused is guilty of contravention sections 3(a), 3(b), 3(c) or 3(d) of Act 71 of 1982.
In that upon or between July 2000 and May 2003 on days being a Saturday, Sunday or
public holiday, at or near Grootfontein Magistrate’s Court and/or at or near any building in
which a Circuit Court at Grootfontein in a court-room is situates or a place in the open air
within a radius of five hundred meters from a Court in the district of Grootfontein the accused
did wrongfully and unlawfully and without the permission of the magistrate,
a) Convened or organised a demonstration or gathering, or encourage, promote or
by means of force or threats cause the demonstration or gathering or
participation threat or address it; and/or
b) Print, publish, distribute or in any manner whatsoever circulate a notice
convening or organising the proposed gathering or demonstration; and/or
c) Attend or take part in any such prohibited demonstration or gathering; and/or
d) Demonstrate in contravention of Section 2(1) of the Act.’
[5] The third count of public violence reads as follows:
‘COUNT 3
That the accused is/are guilty of the crime of PUBLIC VIOLENCE.
IN THAT upon or about the 2nd day of August 1999 and at or near Katima Mulilo the said
accused and other persons, numbering more than 150 or there about, did unlawfully
assemble with common intent to forcibly disturb the public peace or security to invade the
rights of other persons, and the accused and the said persons acting in concert, did then
and there unlawfully and intentionally:
1. Attack members of the Namibian Police at various places; and or
2. Attack members of the Namibian Defence Force; and/or
3. Damage buildings belonging to the Namibian Government; and/or
4. Damage vehicle belonging to the Namibian Government;
5. Fires lots of firearms as well as with mortars and rocket launchers at various places
and persons in the Caprivi Region.’
[6] The fourth count of public violence reads as follows:
‘COUNT 4
THAT the accused are guilty of the crime of PUBLIC VIOLENCE.
15
IN THAT upon or about 18 April 1999 and at or near Chinzimane in the district of Katima
Mulilo the accused and other persons numbering twenty or there about, did unlawfully
assemble with common intent to forcibly disturb the public peace or security or to invade the
rights of other persons, and the said accused and the said persons acting in concert, did
then and there unlawfully and intentionally:
1. Fired several shots in the air and/or
2. Shouted and threatened to kill Chief Simasiku and/or Brian Lubeile Lisepo and/or
destroy the Khuta should he or the Khuta not support the secession of Caprivi from
Namibia and/or the taking over of the authority of the state in Caprivi.’
[7] The alternative to count 4 relates to the alleged contravention of s 1(1)(b) of
Proclamation AG 24 of 1989 in respect of threats directed at two individuals. The
murder charges had allegedly all been committed on the same day (save for count
12), namely on 2 August 1999 and the following persons had been killed: Cst Japhet
Kamati, warrant officer Majority Siloiso, Capt. George Mutafela, Lucas Simubali,
Mabuku Jameson Matonga, Gabriel Paulus, Cst. Richard Mwakamui and Gilbert
Simasiku Tubabe. The person killed in respect of count 12 was one Victor Falali.
Address by the State
[8] What the State endeavoured to achieve by calling 379 witnesses during the
course of the trial can be gleaned from the opening address of Mr July in the
following words:
‘MR JULY: In our system of law as in the legal system of most
communities of the world, it is not criminal to seek political reform. Constitutional changes
however far reaching, however radical and far reaching may be lawfully sought by legitimate
and constitutional means only. When the methods used become unlawful and
unconstitutional individuals using them commit high treason. It is, together with other
charges of the crimes which have been committed by those involved in the armed rebellion
in the Caprivi Region on the 2nd of August 1999. These would be the charges which the
State has set itself out to prove during this trial. The State will seek during this trial to bring
within the scope of the single prosecution, the development of the events which calumniated
into the attacks in the Caprivi Region on the second of August 1999. To this end, reference
will be made to events in other countries, i.e. Zambia, Botswana an Angola involving many
individuals in numerous events and last but not least, a number of documents that will show
that the events on the 2nd of August 99 in the Caprivi Region were premeditated with the aim
of overthrowing the legitimate Government of Namibia in the Caprivi Region. The State will
16
show that the armed secession in the Caprivi Region was planned by the political leadership
of the United Democratic Party, executed by the soldiers of the Caprivi Liberation Army and
supported by those who have similar aims and objectives of seceding Caprivi from the rest
of Namibia by military means. The State will lead evidence during this trial that will prove
beyond reasonable doubt that each of the accused having acted individually and collectively
committed criminal acts against the sovereign state of the Republic of Namibia under the
pretext of seeking political emancipation from Namibia. This objective was to have been
achieved through the use of violence. Some of the accused, together with their leaders
participated in the drafting of Namibia’s Constitution and some took up key positions in the
Government of the Republic of Namibia. Some of the accused participated in the creation of
the Government of National Unity in Namibia for the process of elections during 1989. It is a
notorious fact that Namibia’s Constitution provides that Namibia shall be governed as a
unitary state. Article 1(1) of the Constitution provides as follows, that the Republic of Namibia
is hereby established as a sovereign secular, democratic and unity state founded on the
principles of democracy, the rule of law and justice for all. Article 1(4) further provides the
national territory of Namibia shall consist of the whole of the territory recognised by the
International Community through the organs of the United Nations as Namibia, including the
enclave, harbour and port of Walvis Bay, as well as the offshore islands of Namibia and its
southern boundaries shall extent to the middle of the Orange River. This Constitution is
internationally regarded as one of the most liberal Constitutions in the world that guarantees
to all its people, civil liberties consistent with those of democratic nations in the world. The
State will show that the actions of the accused were performed in pursuance with a
conspiracy and with the knowledge and agreement of each accused who intent upon
subverting the constitutional structure of Namibia in the Caprivi Region by military means.
The evidence will show that these acts were preceded by inter alia the holding of meetings
where the idea of the violent secession of the Caprivi Region from Namibia was promoted,
the obtaining of weapons of war, the establishment of the rebel army, the establishment of
various rebel bases in Namibia and on foreign soil, and the recruiting of soldiers for the army
and persons in support of the secessionist idea. The State will further show that strategic
targets that were attacked were identified beforehand by those involved in the attack on the
2nd of August 99. In pursuance of these objectives, the accused killed, injured and damaged
property of law abiding citizens of the Republic of Namibia in the Caprivi Region. The State
will prove that a conspiracy existed amongst those involved that wanted to overthrow the
Namibian Government in the Caprivi Region. In preparation of these attacks, persons were
recruited in the Caprivi Region to leave Namibia in order to be trained in the use of automatic
firearms and explosives. Testimony will be led about the supporters of the rebels who
provided logistic and other support while the rebels were in the rebel camps preparing for the
attacks. The State proposes to arrive at the following overall picture, that the accused
17
participated in a conspiracy over the period covered in the indictment, but in reaching this
aim, rebel bases were established in the Caprivi Region and in neighbouring countries to
train the rebels; that meetings were held in various, was held at various times in around the
Caprivi Region with the aim of supporting the military insurrection of Namibia in the Caprivi
Region; that the exodus of people fled to Botswana and who wanted to return to Namibia in
order to overthrow the Government of Namibia in the Caprivi Region by violent means; that a
accused gathered at various rebel bases in order to prepare for the violent takeover of the
Namibian Government in the Caprivi Region; that shortly before the attack on the 2nd of
August 99, Makango Rebel Base became the prominent gathering place for the rebels from
where they were supposed to attack various targets in the Caprivi Region; that on the 2nd of
August 99, attacks took place in the Caprivi Region on different targets, where people were
injured, killed and where properties were damaged. The State will further prove that political
originations were involved in promoting of the military secession of the Caprivi Region from
the rest of Namibia. The accused are not on trial because of their political believes or
affiliations, but because of the criminal actions that they waged against the Namibian
Government and its people on the 2nd of August in the Caprivi Region. The Namibian people
are a peace loving nation who cherishes the heart for freedoms that we as Namibians enjoy
and never again should any Namibian have to resolve to violence to settle national
differences. They could and should be solved through dialogue and persuasion as provided
for in the constitution of Namibia. Namibia is a constitutional democracy governed by the rule
of law. At the conclusion of this trial, the State would ask the Court to evaluate the actions of
the accused that are contrary to the Laws of Namibia. The State does not propose that the
political aspirations of the Accused be judged, for this can be lawfully sought, provided it is
done by legitimate means and in accordance with the Constitution of Namibia. The State
intends to prove that the accused acted contrary to the law of Namibia and would pray at the
end of this trial that those are found criminally accountable for their actions. My Lord I ask
that that be handed in as part of the documentation as an exhibit. As it pleases My Lord.’
[9] It is necessary at this stage, before considering the evidence against each
accused person, to briefly deal with the common law offences of high treason,
sedition and public violence.
Common law principles of High Treason
[10] The authors in the work South African Law and Procedure2, describe the
elements of high treason as follows:
2 Milton JRL. 1996. South African Criminal Law and Procedure. Cape Town: Juta & Co, p 20.
18
‘The essential elements of treason are: (a) an overt act, (b) unlawfully committed, (c)
by a person owing allegiance to the State, (d) which possesses majestas, and (e) intention
(‘hostile intent’).’
[11] In S v Banda3, at 479C-E, Friedman J defined high treason as ‘any overt act
committed by a person, within or without the State, who, owing allegiance to the
State, having majestas, with the intention of:
‘(1) unlawfully impairing, violating, threatening or endangering the existence,
independence or security of the State;
(2) unlawfully overthrowing the government of the State’
(3) unlawfully changing the constitutional structure of the State; or
(4) unlawfully coercing by violence the government of the State into any action
or into refraining from any action.’
[12] CR Snyman4 at 301 stated in respect of the word maiestas, that “though
somewhat vague, denoted in principle the idea of supreme power or sovereignty”.
The writer is of the view that in a sovereign independent State which does not
acknowledge any higher authority the requirement of maiestas is no longer
necessary.
The actus reus
[13] An overt act is any act, if viewed objectively, which is seemingly and
apparently to all appearances innocent, may establish treason if it is performed with
an hostile intent.5
[14] The State need not actually be overthrown before high treason is committed.
Attempts to destroy the existence, independence or safety of the State are
punishable as completed and not attempted high treason.6 Incitement or conspiracy
to commit high treason are overt acts of the crime of high treason.7 No distinction is
made in high treason between the perpetrators of the act, the accomplice or the
accessory after the fact, because every person who, with hostile intent, assists in the
3 1990 (3) SA 466. 4 Synam CR. 2014. Criminal Law (6th Edition). Durban: LexisNexis,5 See S v Banda, supra at 473-474A; R v Leibrandt and others 1944 AD 253 at 284; R v Wentzel 1940 WLD 269 at 275.6 See Snyman, p 306.7 See Banda supra at 474.
19
commission of the crime, whether before or after the event, conforms to the wide
definition of the crime.8
[15] However a mere discussion of the possibility of acts of treason, not resulting
in any agreement, nor including any mutual incitement, does not amount to high
treason.9
[16] An overt act may manifest itself in a variety of forms. It may take the form of
verbal communications or written communications, if an individual speaks or writes in
the furtherance of an intent to overthrow, or violating the independence of the State,
or to coerce the government into action or refraining from any action. A declaration of
allegiance to a leader of an organisation who has declared support for an armed
struggle or for liberation or independence of a part of a unitary State would amount
to high treason.10
[17] An overt act may also be in the form of an omission. Friedman J in S v Banda
at 572A-B states the following:
‘According to the authorities that I have cited the crime of treason provides an
exception to the rule as to mere non-disclosure. It seems clear that anyone who, knowing of
the commission of this crime, refrains from giving information to the authorities must by
reason of this mere non-disclosure be regarded as having taken part in treasonable conduct.
Even bare knowledge of its attempt or commencement without disclosure of the same to the
authorities may render a person liable, even though the person has in no way taken part in
the plans of the principal offender. The afore-mentioned must apply with greater force to a
member of the armed forces, who has sworn an oath of allegiance to the State.’
Common purpose
[18] Hoffman and Zeffert 11 on p 190 on the issue of acts and declarations in the
furtherance of a common purpose have the following to say:
‘2 Acts and declarations in furtherance of a common purpose:
8 See Banda supra, at 474E.9 See Banda, Supra, at 474F.10 See S v Leibrandt and Others, supra, p 265, 273.11 Hoffman LH et Zeffertt D. 1989. The South African Law of Evidence. Durban: Butterworth’s.
20
There is some uncertainty as to whether this topic should be treated as an exception to the
rule that admissions are not vicariously admissible. Some say that it should; but the better
view, it is submitted, is that the reception of the declarations of persons engaged in a
common purpose stands on the same footing as acts done; in other words, they are received
when they are relevant acts. They are relevant, as will be seen below, when they are
“executive” statements; they are inadmissible when they are “narrative”, that is to say, when
they are not made in furtherance of a common purpose but as an account or admission of
past events. An admission contained in narrative is inadmissible precisely because
admissions are not, in general, vicariously admissible; but they may, of course, be received
against the persons making them.’12
[19] Executive statements may only be taken into account where there is evidence
aliunde laying the foundation of a common purpose. Boshoff J in S v Moumbaris and
Others13 at 685H-686A stated the following in this regard:
‘Once there is evidence aliunde of a common enterprise and the parties thereto, the
acts and statements, executive as opposed to narrative, of one of the socii criminis or co-
conspirators are admissible to confirm the scope of the common enterprise or the conspiracy
and the nature of the steps taken to carry it out, and there seems to be no reason why such
evidence should not be used to confirm the other evidence as to the parties who took part
therein; see judgment of Schreiner JA, as quoted in R v Leibbrandt and Others 1944 AD 253
at p 276; R v Mayet, 1957 (1) SA 492 (AD) at p 494.’
[20] Friedman J in Banda at 500J-501F explained the concept of common purpose
as follows:
‘It is a convenient and useful descriptive appellation of a concept, that, if one or more
persons agree or conspire to achieve a collective unlawful purpose, the acts of each one of
them in execution of this purpose are attributed to the others. The essential requirement is
that the parties thereto must have and did in fact have the same purpose – that is a common
purpose.
“The basis of this doctrine is the idea that such member of the plot or conspiracy
gave the other an implied mandate to execute the unlawful criminal act.” (Snyman
(op cit at 212) ). There need not necessarily be a conspiracy. On principle, it is sufficient if
collaboration or association commenced without premeditation and spontaneously as in the
12 See Banda supra p 506G-507A.13 1974 (1) TPD 681.
21
so-called “join-in” cases. The courts held “that association in the common design makes the
act of the principal offender the act of all’. Furthermore, the association need not be express,
but may also be implied and inferred from conduct. I need not for the purpose of this case
concern myself with the controversy surrounding the issue of causality, nor analyse the
conflicting judgments relating thereto. Although this doctrine has been criticised by Snyman
and Rabie who is critical of an approach that does not take into account the causal
contribution of each participant in a common purpose, I nevertheless believe that the
doctrine of common purpose is a useful and practical method of determining liability or
innocence where more than one person is involved in a joint unlawful activity pursuant to
their common design and objective, subject, however, to certain stringent conditions. An
accused cannot be found guilty of sharing a common purpose with other accused by a
process of osmosis. In the absence of a prior agreement or conspiracy, the doctrine of
common purpose may not be used as a method or technique to subsume the guilt of all the
accused without anything more. It cannot operate as a dragnet operation systematically to
draw all the accused. Association by way of participation, and the mens rea of each accused
person involved, are necessary and essential requirements.” ’
[21] In S v Mgedezi and Others14 at 705I-706C, Botha JA stated the following
regarding concept of common purpose:
‘In the absence of proof of a prior agreement, accused no. 6 who was not shown to
have contributed causally to the killing or wounding of the occupants of room 12, can be held
liable for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA
868 (A), only if certain prerequisites are satisfied. In the first place he must have been
present at the scene where the violence was being committed. Secondly, he must have
been aware of the assault on the inmates of room 12. Thirdly, he must have intended to
make common cause with those who were actually perpetrating the assault. Fourthly, he
must have manifested his sharing of a common purpose with the perpetrators of the assault
by himself performing some act of association with the conduct of the others. Fifthly, he must
have had the requisite mens rea; so, in respect of the killing of the deceased, he must have
intended them to be killed and performed his own act of association with recklessness as to
whether or not death was to ensue.’15
14 1989 (1) SA 687 (AD).15 See also S v Jama and Others 1989(3) SA 427(AD) at 436I.
22
[22] The existence of an agreement may be proved by way of an inference from
the facts and from circumstantial evidence. In Magmoed v Janse van Rensburg 16
the following was said by the court at 96E-F:
‘It is seldom that there is a direct evidence of such an agreement. Usually the court is
asked by the prosecution to infer it from the proven facts. But the fact that in a particular
case the prosecution relies upon inference to prove the agreement to accomplish a common
aim does not make the question as to whether the prosecution succeeded in establishing
this inference beyond doubt one of law.’
[23] In S v Thebus and Another 17 the Constitutional Court in South Africa had the
following to say:
‘The reliability requirements of a joint criminal enterprise fall into two categories. The
first arises where there is a prior agreement, expressed or implied, to commit a common
offence. In the second category, no such prior agreement exists or is proved. The liability
arises from an active association and participation in a common criminal design with the
requisite blameworthy state of mind.’
Hostile intention
[24] The hostile intention (animus hostiles) accompanying the act has been
described as the definitive element of high treason. Motive is irrelevant in the
commission of high treason. Hunt18 referred to a judgment in R v Leibbrandt where at
281 Schreiner J drew the distinction between motive and intention as follows:
‘Treason may be committed and the hostile intent be entertained with a view to
achieve some further purpose. The ultimate goal may be the achievement of some solid or
economic advantage for a portion or even for the whole community. It may be the
achievement of some political or ideological theory, or it may be the fulfilment of personal
ambition or the wreaking of personal hatred. None of these ultimate motives is relevant to
the enquiry whether treason has been committed or not. Whatever the factors are that
induce a citizen to entertain an intention to help the enemy, or to weaken the effort against
the enemy, if he acts in order to carry out that intention he commits an act of treason.’
16 1993 (1) SA 67 (A).17 2003 (2) SACR 319(CC). 18 Milton, p 33.
23
[25] Hunt at 34 states as follows:
‘Though an intent to overthrow the State certainly does constitute “hostile intent”,
hostile intent” is not confined, to this state of mind. Someone who intends “to coerce the
governing authority” by force, but has no intent to overthrow it, has “hostile intent”. ’
[26] ‘Hostile intent’ is a subjective, and not an objective element of the offence of
high treason. In R v Leibbrandt (supra at 284) Watermeyer J stated:
‘Now, clearly intention is something subjective, a state of mind which is incapable of
direct proof by witnesses. It can only be proved by inference from the acts and expressions
from the accused and from the surrounding circumstances.’
[27] Violence or force is not a prerequisite for the crime of high treason.19 In R v
Strauss 20 at 940 the following appears:
‘The requirement in the definition of high treason that the actions complained of must
have been done with hostile intention against the State does not mean that an accused must
have been animated by feelings of hatred or ill-will towards the State but merely that he was
intentionally antagonistic towards it.’
Common law principles on Sedition
[28] Sedition according to Snyman consists in unlawfully and intentionally taking
part in a concourse of people violently or by threats of violence challenging, defying
or resisting the authority of the State or causing such a concourse. The intention
required (not necessary hostile) is only to resist or challenge the authority of the
State without the object of overthrowing the government of the State and can be
committed by someone who owes no allegiance to the State.
[29] Contrary to Snyman’s view that violence is a necessary element of the crime
of sedition, the courts have over the years not included violence as an element of
this crime.
19 S v Banda, supra at 476E-F.20 1948 (1) SA 934 (A).
24
[30] In S v Twala and Others21 the court referred with approval to the decisions of
R v Endemann22 and R v Viljoen23 and Van Dyk J at 869G-H stated the following:
‘The gathering need not be accompanied by violent and forcible conduct and
violence is certainly not an essential part of the seditions gathering. What is essential is that
the gathering occurs with the necessary intent – see in this regard Endemann’s case at 147
at Viljoen’s case. Reliance on R v Klaas and Others 1915 CPD 58 at 63 for the contrary
proposition, ie that acts of violence should have been committed, cannot be supported as
INNES CJ in Viljoen’s case effectively incorporated the whole of DE VILLIERS’ judgment in
the Endemann case as far as the elements of sedition are concerned, where DE VILLIERS
JP specifically found that “to constitute the crime of sedition it is not necessary that acts of
violence should have actually been committed”.’
Moreover, if regard is had to the quality of the intention required, namely to defy or subvert
the authority of the State or its officials, there is no logical reason why violence must be
regarded as a natural concomitant, or an essential element of a seditious gathering.’24
Common law principles on Public Violence
[31] Snyman defines the crime of public violence as the unlawful and intentional
commission, together with a number of people, of an act or acts which assume
serious dimensions and which are intended forcibly to disturb public peace and
tranquillity or to invade the rights of others. This definition was quoted with approval
in S v Mlotswha.25
[32] Milton in Hunt26 mentions that the crime of ‘public violence has the unusual
feature that it involves punishment of an individual for the unlawful conduct of a
crowd of people. In other words, the crime of public violence does not require that
the wrongdoer should have committed some act of violence; it is sufficient that he
associated himself with the group of people who collectively perpetrated acts of
violence. The justification for substituting liability based upon the offender’s own act
and intent for liability based on the acts of the crowd is the following:
21 1979 (3) SA 864 TPD.22 1915 TPD 142.23 1923 AD 90.24 See also S v Zwane and Others (3) 1989 (3) SA 253 WLD at 261C.251989 (4) SA 787 (WLD) at 794E. 26 Milton, Vol II.
25
‘A person who is part of a group will draw courage from the conduct of others in the
group, and may well behave in ways that he would not act when alone. His chances of
detection are, in the nature of things, rather lower when he can hide in the rabble . . . .
[W]here several people are together acting violently, their weight of numbers in itself
increases the danger to public order inherent in their conduct.’27
[33] Milton (supra) continues at 76 as follows:
‘The essential point of distinction between public violence and high treason and
sedition lies in the fact that the latter two crimes are committed against the majestas of the
state: high treason requires an intention to overthrow or coerce the executive (hostile intent);
sedition requires an intention to defy or subvert the government’s authority. In public
violence there need be no defiance or nor attack on the public authorities. The three crimes
overlap where a number of people acting in concert and with hostile intent assemble and
disturb the public peace.’
Conspiracy
[34] Burchell and Milton 28 defines conspiracy as ‘an agreement between two or
more persons to commit or to aid or procure the commission of a crime.’ In S v
Moumbaris and Others 29 the court said the following in respect of conspiracy:
‘When considering the liability of the respective conspirators, it should be borne in
mind that everything done by any one of the conspirators in furtherance of the common
purpose is evidence against each and all the parties concerned, whether they are present or
absent and whether or not they were individually aware of what was taking place.’
[35] In S v Cooper and Others30 the following appears:
‘Although the common design is the root of a conspiracy, it is not necessary to prove
that the conspirators came together and actually agreed in terms to have the common
design and to pursue it by common means and so carry it into execution. . . .The detached
27 Smith ATH, Offences against Public order (1987) 3.28 Burchell and Milton.1997. Principles of Criminal Law (2nd Edition).Pietermaritzburg: Juta & Co, p 455.29 1974 (1) SA 681 (TPD) at 687E-F. 30 1976 (2) SA 875 (TPD) at 879E-F.
26
acts of the different persons accused, including their written correspondence, entries made
by them, and other documents in their possession, relative to the main design, will
sometimes of necessity be admitted as steps to establish the conspiracy itself. It is generally
a matter of inference deduced from certain acts of the parties’ concerned, done in pursuance
of a criminal purpose in common between them.’
[36] Disassociation may be raised as a defence in respect of a criminal charge and
in S v Ndebu and Another 31 the court, as per McNally JA, expressed itself as follows
at 135F:
‘It would seem clear that English law requires more than a simple last minute
withdrawal to enable a participant to escape a verdict of guilty on the main offence’
And with reference to an American case stated the following at 135H-I:
‘A declared intent to withdraw from a conspiracy to dynamite a building is not
enough, if the fuse has been set; he must step on the fuse.’
[37] In S v Beahan 32 the court held (per Gubbay, CJ) as follows on 324b:
‘I respectfully associate myself with what I perceived to be a shared approach,
namely, that it is the actual role of the conspirator which should determine the kind of
withdrawal necessary to effectively terminate his liability for the commission of the
substantive crime. I would venture to state the rule this way: where a person has merely
conspired with others to commit a crime but has not commenced an overt act towards the
successful completion of that crime, a withdrawal is effective upon timely and unequivocal
notification of the co-conspirators of the decision to abandon the common unlawful purpose.
Where, however, there has been participation in a more substantial manner something
further than a communication to the co-conspirators of the intention to dissociate is
necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.’
And at 324 d-e:
‘Clearly mere absence of physical presence from the crime, or a physical change of
place or flight from the scene, even if in consequence of voluntary action may not,
depending on the circumstances, serve to dissociate a co-conspirator for the ensuring
Mushwena (accused 12), Matheus Sasele (accused 100), John Samboma (accused
54), Chainda (accused 103) Bernard Maungulo (accused 98). This witness testified
that he, himself, as well as the accused persons identified by him in court started the
recruitment of individuals to join the CLA from the year 1991 until 1998 (when a
person was killed and people fled to Botswana) when the recruitment was
temporarily stopped.
[63] The witness testified about two meetings that he had attended during the year
1992. The first meeting was held at the DTA office Katima Mulilo where the idea of
seceding from the rest of Namibia was discussed. This meeting was chaired by
Muyongo. The topic of discussion was the acquisition of firearms from Unita in
Angola. The persons identified to obtain weapons from Angola were Thaddeus
Ndala and John Samboma. Geoffrey Mwilima was present and stated that “we just
have to fight so that the idea of seceding the region can come true.” It was also
resolved to demolish the bridge at Bagani, which separates the Kavango region from
the Caprivi region in order to prevent soldiers form coming to the Caprivi Region. In
respect of Bollen Mwilima (accused 65) this witness pointed him out in court as one
of the mobilisers of the CLA, stating that accused 65 was a teacher during 1992.
41 Page 3650.
36
[64] The second meeting during the year 1992 was convened in order to get
feedback from those persons who went to Angola. The feedback was that weapons
could be procured form Angola and that individuals could go there in order to receive
military training. It was discussed that weapons would be bought from donations
collected as well as the provision of food. This witness testified that Bollen Mwilima
(accused 65) was among those who had donated money for this purpose.
[65] Money would also be procured by requesting donations from members of the
public without informing them the aim of the donations. During cross-examination
the witness testified that persons from whom the money had been collected knew
the purpose for them donating money, namely to secede the Caprivi region. When
confronted with his testimony in chief to the opposite effect this witness explained
that there were two scenarios, namely those people who supported the idea of
secession would be informed the aim of collecting the money, but those who could
not be trusted were not informed of the purpose of the donations. Further during
cross-examination the witness testified that those individuals suspected of not
supporting the idea of seceding the Caprivi did not donate any money.
[66] During cross-examination the witness was not sure about the number of
meetings he had attended, mentioning 12 meetings, 16 meeting and more than 34
meetings. His explanation for this inconsistency was because of effluxion of time.
[67] William Miti Ndana was warned in terms of the provisions of s. 204 of the Act.
He testified that he resided in Masokotwani area and that during the October 1998
he was persuaded by one Thaddeus Muzamai to become part of the group of “92”.
The witness explained that he had been approached twice by Thaddeus Muzamai,
who on the second visit arrived with a motor vehicle and informed him to prepare
himself. During the first visit Muzamai had informed the witness that he, Muzamai,
would be able to secure employment for the witness. The motor vehicle driven by
Muzamai was a Toyota Hilux with registration number 1313 KM, which vehicle
belonged to Oscar Puteho. They left together with other individuals to Ngwezi, in
Katima Mulilo. From here they drove to Sachona (in the bush) were they found a
group of men and there they slept for the night. The next morning Thaddeus Ndala
who was the driver of a Toyota Hilux which vehicle was owned by Bollen Mwilima
37
brought food (bread) to the group. According to him he knew this vehicle. It was
here at Sachona according to the witness that he became aware of the mission of
the group namely to secede the Caprivi region from Namibia as this was mentioned
by the ‘overseer’ of the group John Samboma.
[68] The witness also observed a number of fire-arms. Here they were trained to
use fire-arms. From Sachona the group moved to Linyanti (where the cattle kraal of
Chief Mamili was) and subsequently the group moved to Libyu Libyu where they
stayed for about a week. More people joined the group at this place. It was at this
place Libyiu Libyu one night and during a buffalo stampede through their camp that
some members of the group escaped (about-three in number). A group (of about 4-
5 persons) was then instructed to pursue the escapees. The next morning when the
group of pursuers returned the group was informed that they have completed their
mission and that one of the escapees namely Victor Falali, had been killed. The
group subsequently left Libyu-Libyu and crossed into Botswana without any travel
documents. According to this witness they had been informed by Francis
Mushandikwe and John Samboma that they should inform the Botswana authorities
that they had been pursued by the Namibian Government.
[69] This witness testified that he knew Bolen Mwilima as a teacher at Machita and
that they used to play football together. This witness identified Bollen Mwilima
(accused 65), John Samboma (accused 54) and Thaddeus Ndala (accused 70) in
court. According to this witness they entered Botswana during October 1998; that
the group of 92 were members of the Caprivi Liberation Army (CLA) under the
leadership of Mushake Muyongo; and that they were eventually received at Dukwe
refugee camp.
[70] During cross-examination by Mr Kauta, this witness was referred to two
witness statements, one signed on 23 March 2000 and another signed on 11 March
2003. In the first statement he admitted stating that whilst at Sachona camp at one
stage Thaddeus Ndala brought food to the camp with the motor vehicle of Bollen
Mwilima the registration number of which he could not recall, whilst in the
subsequent statement (about 3 years later) he described the vehicle as a white 2.4
Hilux bakkie with registration number N 807 KM. The witness explained that he
38
subsequently remembered the registration number.42 This witness during cross-
examination confirmed that Bollen Mwilima was a teacher at Machita Combined
School in the Masokotwane area and that he never saw Bollen Mwilima at Sachona
bringing food to them. It was further put to the witness that Bollen Mwilima never
gave that vehicle to Thaddeus Ndala to use and did not know that his vehicle had
ever been to Sachona. This witness denied this could have been the case but could
offer no explanation for his disagreement.
[71] Bernard Bareke Kanzeka was warned in terms of s 204 of Act 51 of 1977.
This witness testified that during the year 1999 he had been employed at Shell
Petroleum Company at Katima mulilo in the Caprivi region as a debt coordinator
from 1991 until September 1998. Prior to this period he was employed in
SWATF/SADF as a chef and at 701 Battalion from 1981 until 1989. He joined the
DTA in the year 1981 (and was still a member of the DTA when he testified during
November 2005). He testified that he attended two meetings during the year 1998 at
the DTA office in Katima Mulilo. The first meeting took place during November. This
meeting was convened and addressed by Geoffrey Mwilima. The witness testified
that he was invited to this meeting by Geoffrrey Mwilima and that it was a secret
meeting. The topic of discussion was the secession of the Caprivi region by ‘way of
fighting,’43 and that weapons had to be procured to this end from Angola. The
attendants of this meeting were informed by Geoffrey Mwilima that they had to go to
Botswana to undergo training in order to liberate the Caprivi region. The attendants
had also been informed that they had to be collected for transporting people to
Botswana. This witness testified that some of the attendants were not ‘happy’ with
the idea. This he inferred from the murmuring he could hear.44
[72] The Court adjourned at the request of this witness due to the fact that he was
ill. He informed the Court that he suffered from high blood pressure and did not take
his medication. This Court adjourned for tea break. When proceedings resumed, Mr
Kauta addressed this Court and informed this Court about a ‘very disturbing trend' as
perceived by him, namely, that during the adjournment the witness was taken to the
office of the prosecutor and the witness statement was provided for him. Mr Kauta
also stated that he was aware that the prosecutors had an album which contained
42 (p 3388).43 (p 5553)44 (p 5559)
39
photographs of all the accused persons and intimated unprofessional conduct by the
prosecutors which had the effect of negating a fair trial. Mr Kauta charged that the
prosecutors had been coaching witnesses. Mr July in reply denied these allegations
and requested an adjournment until the next day in order to address the Court fully
on these allegations. This request was granted but the Court ruled that the
prosecution should continue to lead the witness’ evidence-in-chief.
[73] The witness, Kanzeka then testified that the attendants at the meeting
addressed by Geoffrey Mwilima ‘seemed’ all to have agreed to what had been
conveyed to them. The witness stated that he gained this impression because some
agreed to donate money, whilst others offered their vehicles in order to transport
persons.
[74] When Mr July tried to clarify this apparent contradiction the witness explained
that the attendants agreed to donate money and how people should go to Botswana
in order to liberate Caprivi but that some were not happy with the manner in which
Caprivi was to be ‘cut’ from Namibia namely by the use of force.45
Application for special entry in terms of s. 317
[75] The next day (01 December 2005) after an address by Mr D Small in which he
invited Mr Kauta either to withdraw the allegation of unprofessional conduct by the
prosecutors or to bring an application in terms of s 317 of Act 51 of 1977 (special
entry of irregularity or illegality), Mr Kauta brought such application. Two witnesses
were called in support of the application and two witnesses were called in opposition
to the application. The proceedings concluded on 5 December 2005. This Court
gave its ruling on 08 December 2005 in which a special entry was recorded as
follows:
‘The proceedings in connection with the trial in respect of the accused persons were
irregular to the extent that there having no identification parade held at any stage witnesses
during the course of their testimonies were required to identify accused persons in Court
whilst prior to such identification and during consultation with the prosecutors witnesses
were expected to identify accused persons mentioned in their statements by reference to a
photo album in which not only the photo of accused persons appear but also the identity of
45 (p 5582/5583
40
the persons so appearing on the photographs resulting in the fairness of the trial being
compromised.’
This Court then adjourned the proceedings to 17 January 2006.
[76] It must be stated that this court to the extent had it may have created the
impression by this quotation that it has in fact found that there was an irregularity and
the effect thereof on the fairness of the trial, that such an impression is not correct. It
is clear from the authorities that it is not the task of this Court to determine whether
there had indeed been an irregularity and therefor to decide on the merits and
consequences thereof. This is the function of the Court of Appeal. The purpose of a
special entry for the trial court is to record an irregularity which does not appear form
the record of the proceedings, ie to state in what respect the proceedings are alleged
to have been irregular or illegal. Should the Court of Appeal find that an irregularity
had occurred, it must determine in accordance with the proviso to s 322(1) of Act 51
of 1977 whether or not the irregularity had caused a failure of justice.
[77] Therefore the submissions by counsel appearing on behalf of the accused
persons to the effect that the recording of a special entry during these proceedings
had as a consequence (on the facts of this case) that this Court should disregard all
evidence presented by the State prior to the recording of the special entry, in so far
as it relates to the positive identification of accused persons in court, cannot be
countenanced.46
[78] This Court had stated the following on 11 February 2013 in the application
brought in terms of s 174 of the Act:
‘[68] The provisions of section 317 only introduce the irregularity.
[69] The effect of the special entry made by this Court on 8 December 2005 is
therefore important in this application only to the extent of the factual findings made
by this Court. On the authority of Botha supra any finding by this court that there
indeed had been an irregularity, is thus wrong.
46 See S v Kroon 1997 (1) SACR 525 (SCA) at 530 (b); S v Botha 2006 SACR 105 (SCA) at 110; Hiemstra’s Criminal Procedure (Service Issue 7 May 2014) at 31-29 et seq; Commentary on the Criminal Procedure Act by Du Toit et al (Service 51, 2013) at 31- 30 et seq.
41
[70] In my view therefore those positive identifications of accused person in court
prior to the ruling on 8 December 2005 remain as evidence presented by the State
and should be considered in this application.’
[79] When this Court resumed on 17 January 2006 this witness (Kanzeka) stated
he joined the DTA not in 1981 but on 25 October 1987. He testified that Geoffrey
Mwilima informed them that after the liberation of Caprivi they would get ‘a lot of
money and more jobs’.47 He testified that all present at the meeting agreed with
Geoffrey Mwilima, because they were all laughing. The witness recalled the
following persons to have attended this meeting in addition to Geoffrey Mwilima,
namely: Branson Kwala, Mathews Sasele, Patric Likando, Charles Mainga, Bollen
Mwilima, Chombo Linus, Gibson Luka, Sisuka, Chrispin Samahili, Jojo Bernard
Maungolo, Rex Kapanga, Gabriel Ntelamo, Gabriel Mwilima, and Risto Makapa. The
witness testified that he knew Geoffrey Mwilima as a teacher and one of his
customers at the service station. He knew Bollen Mwilima as a teacher at Kwena
and testified that Bollen Mwilima drove a white Toyota Hilux 1800 with registration
number N 804KM.
[80] This witness testified that he attended a second meeting during December
1998 at the DTA offices at Katima Mulilo chaired by Mishake Muyongo. According to
this witness the following persons were present Geoffrey Mwilima, Branson Kwala,
Likando Patrick, Bollen Mwilima, Rex Kapanga, Mathews Chirinda, Gabriel Ntelamo,
Eugnee Ngalaule, Alfred Siyota and Linus Chombo. The topic of discussion was the
secession of the Caprivi region from the rest of Namibia. At this meeting Mishake
Muyongo addressed them and inter alia stated that people had to go to Botswana in
order to get training on how to fight in order to liberate the Caprivi region.
[81] This witness testified that two persons opposed what was said by Muyongo.
The first one Francis Sizimbo wanted to ask something about fire arms and was told
to sit down. The second one Branson Kwala asked where the fire arms would be
obtained from to which Muyongo answered something to the effect that there were
other people who wanted to go to Botswana.48 This witness testified that Muyongo
had an account at Zambezi Shell Service Station and that fuel was to be used for the
exchange of weapons in Angola. He testified that Muyongo and Mathews Lutambo
47 (p 5929).48 (p 5982)
42
had access to that account. However at one stage Norman Justus had informed
him that he (ie Norman Justus) had authority to fill three drums each holding 210
liters, with fuel and that at at this occasion Mathews Lutambo was present.
[82] This witness was requested to point out all the persons he had mentioned
during his evidence-in-chief and the following persons were pointed out in court:
Gabriel Ntelamo (accused 88), Alex Kapanga (accused 63), Eugene Ngalaule
Austen Ziezo, Ntaba Christ and Kufwa Roster. Persons from other villages who were
there were: Brian Mboozi; Liseho George; Daves Mujuwo, David Mubone and Brian
Mushandikwe. He testified that Brian Mushandikwe was armed. This witness was not
warned in terms of s 204 of Act 51 of 1977.
[459] Given Lufela Ndungati testified that on 31 July 1999 he was at his village
when a man, Adams Muyumbano, collected him during the night and informed him
that they were going to the bush of Makanga. He was forced to go with and walked
on his own. At the roadside they met persons, inter alia Mikini Smith, who had a
weapon in his possession. At Makanga they were divided into groups. In his group
were Roster Kufwa, Jimmy Liswaniso, Aggrey Makandano and Osbert Likanyi. He
testified that he knew these persons. Aggrey Makandano and Osbert Likanyi were
armed and Jimmy Liswaniso had a ‘shell’ in his possession. He recognised the
vehicle of Jimmy Liswaniso, but the driver was unknown to him. He boarded this
vehicle. His group was supposed to attack the police station. They drove until Waya-
Waya where the alighted in order to circumvent the roadblock. The vehicle picked
them up at Liselo and took them to the police station.
[460] Ivan Jona Twabulamayo Mate testified that he returned to Namibia from
Botswana through the process of repatriation and he deposed to two statements,
one in 2001 and the second one in 2004. He testified that he went to Botswana
because he heard he could receive military training and education there. During July
1999 during the night he was picked up by Adams Muyumbano and Mikiti Smith in
order to go to Sachona. The driver was one Kavo Mowa. At Sachona they found a
witchdoctor who gave them ‘medicine’ in order to see the enemy first before the
enemy could see them and that he spent two days there and then left for Makanga.
He travelled in the vehicle of Jimmy Liswaniso from Sachona to Makanga, a white
Hilux with registration number N 133 KM. He could not see who the driver was. At
Makanga, David Mumbone entered his name in a book and was shown how to
handle a weapon. The persons were divided into different attack groups. He was not
in a group because he had a problem with his eyesight, could only see
approximately eight meters far, and that he informed David Mubone about it who
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informed him to go with the witchdoctor to Danbar Mushwena’s house. They
travelled with the vehicle of Kester Kubanga who dropped them at the house of
Danbar Mushwena, the vehicle was driven by Danbar Mushwena; that during the
State of Emergency he was at the village and was assaulted with sjambocks by the
police to the extent that the scars are still visible.
[461] During cross-examination he testified that his first statement was taken at the
police station; that he was not assaulted at that stage; that the police told him that
they knew what happened; that there was nothing he could do but to follow what
they were saying; that he considered himself at the mercy of the police; that he had
no option but to accept the story the police were telling him; that the police
approached him in connection with a second statement since they informed him that
the first statement concerned what happened at Makanga and they wanted
information about what happened at Sachona; that they informed him that they knew
what transpired at Sachona and wanted him to confirm that story; that he was taken
to the police station; that he was locked up in the police cells for one night because
he had refused to give them a statement; the next day the statement was recorded;
that the police informed him that so long as he would refuse to give a statement he
would remain in the cells; that it was a serious invasion of his rights and the
detention caused him a measure of fear; that he had no option but to confirm what
the police was saying and that even if the information were false he would have
confirmed it.
[462] During re-examination the witness testified that the contents of both the
statements emanated from him and that the police officers who had assaulted him
were not the same police officers who took down his statement. Thomas Franko
Mukoya testified that he was in the group destined to attack Mpacha (Military base).
The witness testified that he recognised the vehicle a white Toyota with registration
number N 133 KM as that of Jimmy Liswaniso which was driven by the owner
(Jimmy Liswaniso). This witness correctly identified the Jimmy Liswaniso in court as
accused no 58. This witness when he testified during his evidence-in-chief stated
that he gave his statement freely and voluntarily to the police. During cross
examination he admitted that he had been assaulted by the police prior to giving his
statement. The witness testified that he refused to give any information to the police
before he was assaulted. He testified that he was extensively assaulted over a
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period of one day, spent the night at a certain house and was picked up again by the
police the next morning. He testified that it was a humiliating experience. He was
assaulted because he denied knowledge of the incident and that the statement came
about as a result of force. He testified that when he was interviewed by the
prosecutor the previous day he did not mentioned the assault to the prosecutor, Mr
July, because the police had informed him that he should not even mention the
assault.
[463] This court stated the following on 11 February 2013 during its judgment in an
application in terms of s 174 of Act 51 of 1977:
‘[221] I have discussed the issue of torture and degrading and humiliating treatment
of witnesses (supra) and must mention at this stage that had the State presented the
evidence of this witness as the only evidence against the accused person I would have
disallowed such evidence and would have released the accused.’
[464] It is necessary to repeat what was said by this court at that stage at paras
[46], [47] and [48]:
‘[46] Article 8(2)(b) of the Constitution of Namibia provides that no persons shall be
subject to torture or to cruel, inhuman or degrading treatment and punishment.
[47] In the case of Jestina Mukoko v The Attorney-General an unreported judgment of the
Supreme Court of Zimbabwe delivered on 20 March 2012, Malaba DCJ in dealing with
section 15(1) of the Zimbabwean Constitution which is similarly worded as Article 8(2)(b) of
the Namibian Constitution, stated the following at p 32-33:
‘The obligation on the State, through its agents, not to admit or use in criminal
proceedings, information or evidence obtained from an accused person or any third party by
infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate
provision in the Constitution. It would be contrary to the object and purpose of the prohibition
under s 15(1) of the Constitution to allow admission or use of such information or evidence in
any legal proceedings.’
[48] The Court continues at 33 (last paragraph) to 34 as follows:
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‘At various stages of the whole process of proceedings by which the State deals with
persons suspected of crime who are in the custody of police officers, the Constitution
imposes duties for the protection of the fundamental rights of the subject. The primary duty is
on the law enforcement agents not to abuse executive authority in the investigation of crime
by torturing or treating suspects in an inhuman or degrading manner to extract information or
confessions to be used against them in legal proceedings anticipated to follow the
ill-treatment. If the duty fails to achieve its intended purpose at this stage, the law imposes
the duty on public prosecutors not to admit or use information or evidence obtained from an
accused person suspected of having committed a criminal offence or any third party by
torture, inhuman or degrading treatment when making prosecutorial decisions. If the duty
fails at this stage the law imposes the duty on judicial officers. Eventually it lies with the
Court to intervene through the exercise of its original jurisdiction to enforce or secure the
enforcement of fundamental rights.’
The Court continues at 35 as follows:
‘Information or evidence obtained from an accused person or any third party by
torture, inhuman or degrading treatment if admitted or used in legal proceedings would
reduce s 15(1) of the Constitution to a mere form of words. As JACKSON J put it in the
dissenting opinion in Korematsu v United States (1944) 323 US 214 at 246 “once judicial
approval is given to such conduct it lies about like a loaded weapon ready for the hand of
any authority that can bring forward a plausible claim of an urgent need”. In People
(Attorney-General) v O’Brien (1965) IR 142 KINGSMILL MOORE J of the Supreme Court of
Ireland said that: “to countenance the use of evidence extracted or discovered by gross
personal violence would . . . involve the State in moral defilement.’ (See also Ex parte
Attorney-General: In re Corporal Punishment by Organs of State 1991 NR 178 (SC); S v
Likuwa 1999 NR 151; The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment and Punishment, acceded to by Namibia during 1994).’
[465] It is necessary to determine in view of afore-mentioned passage what other
evidence implicated the accused person. It should be kept in mind that during the
s.174 application the credibility of witnesses were not assessed. Ruben Sikwala did
not identify the accused person. This witness was shown during cross-examination
to have contradicted himself and deviated from his witness statement in material
respects. In addition to this he had also been severely assaulted by the military
police at his village and also assaulted by members of the Namibian Police prior to
taking his statement. The same prohibition regarding the testimony of Mukoya would
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apply in his case. Bornbright Kufwa and Given Ndugati did not identify the accused
person in court. Their evidence corroborated each other in so far as the registration
number of vehicle of the accused is concerned. Both of them testified that the
registration number of the motor vehicle of the accused was N 133 KM. The accused
during his testimony conceded that he owned a motor vehicle with that registration
number during that time, but denied that anyone had borrowed this vehicle from him.
[466] When considering the evidence of three witnesses who testified that they had
been transported with the vehicle of the accused on the night of the attack the
following appears: Bornbright Kufwa testified that his group alighted at Waya-waya
were they were picked up again by the same vehicle and were off loaded at Engen
Service Station in Katima Mulilo; Given Ndugati and his group (which included
Jimmy Liswaniso) were taken to the police station in Katima Mulilo by this same
vehicle; Thomas Mukoya and his group were transported to Mpacha military base by
the same vehicle. The impression, from their testimonies, is created that all the
vehicles left Makanga at the same time. Their evidence becomes even more suspect
when regard is had to the contradiction between the testimony of Ndugati and that of
Mukoya. Ndungati testified the driver was unknown to him, whereas Mukoya testified
that the owner of the vehicle Jimmy Liswaniso himself was the driver. If Jimmy
Liswaniso was known to Ndungati why then did he testify that the driver was
unknown to him.
[467] The evidence of Mate must be viewed in the light of the facts that he was an
accomplice and a single witness. From the answers given during cross-examination
a distinct impression is created that the police had provided him with the information
which they wanted to see in his two statements and violated his right to freedom of
movement by detaining him in a police cell and in this way put pressure on the
witness to coo-operate with them. This witness stated that he would have done
anything to be released from the police cells. The testimony about the registration
number of the vehicle of the accused must be seen against this background, namely
that what appears in the witness statement was most likely information provided by
the police officers who recorded his statements.
[468] Mr McNally submitted that these witnesses were actual perpetrators of the
crime (of high treason) and their testimonies require particular scrutiny. Mr Mc Nally
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submitted that this was a case of mistaken identity and that this was so much
conceded by the State witness police officer Primus Amwaama where the following
appears at p 32989, lines 8-27 of the record:
‘And if on this deployment list there appears a name Jimmy Siswaniso you will agree
with me that is entirely different from Jimmy Liswaniso?... That is correct, My Lord.
And if the name Jimmy Siswaniso appears on the list you will agree with me that it cannot be
the same person that you refer to in this court as Jimmy Liswaniso? . . . It depends, My Lord,
but precisely I do agree with you.
So in other words we are talking about two different people here do you agree with me? . . .
There is a Jimmy Liswaniso and there is a Jimmy Siswaniso? . . . Correct.
And further at 32991, lines 18-20:
‘Now, you will agree with me Sir, that on that specific list Jimmy Liswaniso does not
appear. - - - Jimmy Liswaniso does not appear, My Lord.’
[469] The accused testified and denied any involvement during the attack or that his
vehicle could have been used as testified by the witnesses. The accused called his
wife Christina Nambo Liswaniso as a witness who testified that the accused, herself
and their children returned from the village Malengalenga on 1 August 1999; that the
vehicle was parked at the doorway of the courtyard; that he once lent his vehicle to
Chief Mamili during the month end of August 1999 and that herself and the accused
person do not belong to any political party. Mr McNally submitted that the State was
given to seize upon an apparent contradiction between the accused and his wife
where the accused testified that during July/ August 1999 he never lent his vehicle to
anyone. Mr McNally pointed out that by the time (ie month end of August 1999) the
attack was over.
[470] In my view, it should be apparent, from the evaluation of the evidence
presented by the State that this court cannot rely on the testimonies of any of the
witnesses called in order to prove any of the charges preferred against the accused.
Matheus Munali Pangula (accused no. 59)
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[471] Christopher Siboli testified that the accused, a police officer in Katima Mulilo,
was one of the persons who was looking for people to join the CLA. The witness
correctly identified the accused in Court. The witness testified that the accused
donated money during a meeting in order to acquire weapons. It was testified that
the accused attended a meeting at the new house of Muyoungo during 1997 where
the issue of secession was discussed.
[472] During cross-examination it was put to this witness that he name of Matheus
Pangula does not appear in his statement dated 23 March 1999 and the witness
agreed. It was put to the witness that the accused will deny that he was a recruiter
and mobiliser; that he will deny that he threatened the witness when the witness
came from Dukwe; that he was police officer and was not allowed to attend political
meetings of whatever nature; that if he happens to go to a meeting he would have to
go privately; that he was not a member of any political party- the witness replied that
DTA was his party; that he denied that he supplied any information about bases to
be attacked – the witness disagreed; that he only came to know the witness when he
had to question him in connection with theft – the witness asked: “Which theft ?”, but
this was not clarified.
[473] Lovemove Lutambo Litabula testified that during the year 1999 he was a
police officer at Katima Mulilo police station. At the time he testified he was a security
officer at De Beers Marine in Oranjemund. He testified than on 1 August 1999 he
was on duty as charge office sergeant. The accused was the shift driver whose duty
it was to collect and off-load those police officers who worked shifts. His (ie the
witness’s) shift ended at 14h00 and the accused was suppose to take him home but
he was taken home by the driver of the next shift since the accused was not there.
He testified that there was just one vehicle and the one driver would normally take
over from the previous driver, but he only saw the other shift driver with the vehicle
and no explanation was given. After lunch he returned to town and met Mushwena
Dunbar who asked him whether he could see him that evening. At around 18h00 he
went to the house of Mushwena since Mushwena had asked him to come to his
house but Mushwena was not there.
[474] Approximately 20h00 he found Mushwena driving a Ford bakkie of Richwell
Matengu. According to him Mushwena asked him to escort him. He agreed.
Mushwena drove up to the T-junction of Linyanti Road at Liselo where he parked the
vehicle next to the road. Mushwena asked him whether he knew that his (ie the
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witness’s) brother Messias was coming. Mushwena then went into the village and
returned. A Tata truck stopped a distance away ad Mushwena approached the GRN
truck and spoke to the driver. After a few minutes the truck left in the direction of
Mpacha. After a while another vehicle stopped. He recognised this vehicle as one
Allen Semeja used to drive. After 2-3 minutes Mushwena returned from this vehicle
and went back into the village. He later saw Mushewena driving this vehicle and that
there were people at the back of the vehicle they came to where he was sitting in the
vehicle. One Richard Shaweka came to the driver’s side. They then drove, and after
a while someone called his name and recognised the person as Aggrey Makandano.
He knew that Makendano was in Botswana. They drove up to the junction with
Ngoma road. At a busy area Mushwena told the drive to stop and told him that he
had to get off the vehicle and go with the group of people who were on the load box.
They all got off and they went into the bush area about 300m from the police station.
They went through the bush and after a while Makendano introduced him to the
group by saying: ‘This is Lovemore Litabula, he is brother to Messias’. According to
this witness his brother had earlier fled to Botswana.
[475] According to him they proceeded until Makendano informed him that they
were going to the police station and the he could go back home. He could observe
that some members of the group possessed fire-arms, some were without fire-arms.
Makandano had an AK 47 and he also observed a shotgun. When he left the group
was still there. Subsequently he heard a shot near the Shopping Centre and
thereafter rapid gunfire. He also heard shots from the direction of the police station.
He then returned to ‘Katima Base’ where he found Cst. Matongela and Cst. Mikini.
There was no conversation amongst them and he, himself, did not say anything.
The witness testified that he was ‘dumb-struck’. He stayed there until the morning
and returned to police station to report for duty. There he observed blood. The
soldiers were already there. The station commander Inspector Johnny Lifasi was
there. He observed a lot of ‘cartridges’. Thereafter operations started, patrolling the
area.
[476] The witness testified that he couldn’t tell whether the TATA truck observed by
him as the same truck used to be driven by Simyasa, but that it was similar. He
testified that at the stage he saw Mushwena with the vehicle of Richwell Matengu,
Matengu was not there. The witness identified Aggrey Makendano and Matheus
Pangula in court. During cross-examination by Mr McNally the witness testified that
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at the time of the incident he was a police officer for about 3 years and held the rank
of constable; that part of his duties involved reporting the commission of crimes;
protecting the community; that the swore to protect the “Namibian State”; that he
agreed that the had accompanied armed individuals to the police station; and that at
that stage there were police officers on duty.
[477] When asked what he thought these armed people was going to do at the
police station first stated that he was not aware of what was happening, but then said
that they were going to attack the police station. When asked whether it was not his
duty to have reported the incident to his colleagues the witness replied; “I feared my
life because things happened which I was not expecting to happen”.
[478] This court then had to direct that the witness answer the question. The
witness’s reply to the question was that he didn’t do anything. The question whether
he did not realise when arrived at Katima Base where he could get help, had to be
asked several times before the witness answered: “No I didn’t even think of that.” It
was put to the witness that not only did he fail to summon help and assist his
colleagues but that he concealed a crime. The witness disagreed. The witness
admitted that it is a crime to attack a police station, that he knew about the attack,
that he knew the identity of some of the perpetrators, and that he did not report that
crime. It was pointed to the witness that he deposed to his witness statement only in
2001 about 2 years after the incident to which the witness he replied that he feared
for his life. The witness was asked when he arrived at the police station the next day
and saw the blood of his colleagues having been spilled all over the place, whether it
not occur to him to come clean and to assist in the investigation. The witness just
replied that he did not do that.
[479] It was put to the witness that he was a co-perpetrator of the crime. The
witness replied that the was not prepared to tell some. It was put to the witness that
he should be an accused. The witness disagreed. I agree with Mr McNally that this
witness was a co-perpetrator. What is however apparent is that it was not disputed
that the accused had absented himself from duty. The witness Lubinda Mbumwae
testified that he was apprehended on 2 August 1999 by NDF soldiers and was
detained in the Katima Mulilo police cells. In that cell he found someone with a police
uniform who he recognised as the accused person whom he referred to as Bernard
Matheus Munile Pangula, and he then asked the accused why he was there. The
accused than explained than on the Sunday he had obtained the vehicle of Danbar
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Mushena (from one Henry Liswalelo) and took food to his mother who resided out of
town. On his return he was told to keep the vehicle and went to NHE where was
staying at that time because he had shifted form Katima Base. At midnight there was
a knock on his door. It was Dunbar Mushwena who asked him to ‘escort: him
somewhere’. They drove and when they reached a certain place called Ruliba he
was told to stop. Dunbar Mushwena got off the bakkie and went into the bush and
returned with armed people. He was then commanded to go to town and they went
near the Government Garage. Here he was told to get out of the vehicle. The armed
individuals also got form the vehicle and told him to go with them in order to fight,
where upon he asked them how we could fight without a fire-arm (gun). They
nevertheless proceeded towards the police station to a bushy area. When these
individuals left for the police station he managed to escape and went where he used
to stay at Katima Base. A few minutes later he heard gunshots. Early the next
morning he went to the police station where he was told to take some of the rebels
who had been arrested to the cells. The witness identified Bernard Matheus
Pangula as accused 59 in court.
[480] During cross-examination, by Mr McNally, the witness testified that when he
entered the cells he observed the uniform and went to the accused; that the
conversation took place on his arrival in the cells; that he also found in the cells were
Lupalezuvi and Tom Ben Munzie; that this was on 2 August 1999. The witness was
confronted with an entry in the occurrence book which reflects that the accused was
arrested on 3rd August 1999 and that he couldn’t have spoken to him on 2 nd August.
The witness insisted that when he entered the cell he met the accused. He was also
informed that Tom Ben Munzie according to the police occurrence book was only
arrested on 5 August 1998. The witness replied that he did not know Munzie at that
stage. The witness was referred to the testimony of Litabula who testified that he
had accompanied Dunbar Mushwena and the people who had attacked the police
station and that if Pangula was together with them, Litumbula would have mentioned
that since the two of them worked together in charge office. The witness said that he
could not comment and stated the possibility that Mushwena was involved in another
trip.
[481] It was further put to the witness that the accused never had such a
conversation with him. The witness insisted that what he testified about he had
heard from the accused, adding that he would not betray the accused who used to
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assist him to buy food. This Court subsequently during a trial-within-a-trial admitted
a statement made by this witness to Inspector Lifasi as a confession.112 This
statement relates to question posed to the accused when he arrived at the police
station by Inspector Lifasi, firstly regarding his failure to report on duty on 2 August
1999 form 06h00 until 14h00, and secondly why he had parked in front of the police
station and left before he was relieved. The following appears from p 3 to 4 that
judgment: “In reply to the first question accused 59 replied that he was afraid of the
shooting that took place in Katima Mulilo town. In reply to the second question
accused 59 related to him that he had received a message from his hamlet in
Kalumba area that his people are starving. He approached Mr Dunbai Mushwena
who provided him with a motor vehicle. He bought maize meal and delivered it to
Kalumba. On returning the motor vehicle he was requested by Mr Mushwena to
accompany Mr Mushwena. Accused no. 59 was requested to drive toward Mpacha
where he was told to stop the vehicle. Accused 59 when saw armed men coming
out form the bushes and got into the vehicle. He was then told to drive to Katima
Mulilo. Some of the armed men disembarked at a place approximately 500 m – 800
m from the police station and he off loaded a second group at the Namibian
Broadcasting Corporation (It is common cause that the NBC was also attacked that
same evening) He then returned home. When questioned after observing that he
was transporting ‘rebels’, why he didn’t report the matter to him (i.e Inspector Lifasi)
accused no. 59 replied that he was afraid that he might be killed. Inspector Lifasi
testified that having heard what accused no. 59 conveyed to him he became
‘suspicious’.
[482] The accused testified that he was arrested on 3 rd August 1999 and was
employed as a police officer and that had been in the police for almost 9 years. The
accused denied that he attended any political meeting. He denied that he
transported rebels to various places of attack; that at the time of the attack he was at
home and never participated in the attack; that on 1st August 1999 he was on duty
from 06h00 until 14h00; that at 14h00 the person who was supposed to relieve him
did not ‘turn up”, and he had to continue working until between 15h00 and 16h00
when the supervising officer sgt. Muyenga told him that the relief drier arrived late
from the farm and that he had to go and fetch him at home, which he did. This driver
then “dropped” him at Katima Base where he stayed; that during the early morning
hours of 2nd August 1999 he was with a boy, Moren Tuombale and they stayed 112 See judgment delivered on 16 July 2007.
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together until sunrise. This accused testified that he made the confession in order to
save himself from further beatings by Inspector Lifasi; that during the early morning
hours on 2 August 1999 he phoned the police station but received no answer; that
after sunrise a police officer, whose name he couldn’t recall, answered the phone
and he informed this police officer that there was ‘bush’ between his house and the
police station and that he couldn’t walk through the bush and asked to be picked up;
he was informed when a vehicle was available he would be picked up, so he waited
at home.
[483] Later during the day he decided that he had to go to the police station and
went to work where he performed charge office duties until 19h00 when Chief
Inspector Lifasi came and questioned him about his whereabouts on the day of the
attack; that he had informed Chief Inspector Lifasi that he as at home and knew
nothing of the attack; that Lifasi told him he was lying because he knew very well that
the people who attacked the Caprivi was the Mafwe people because the President of
the DTA is Mafwe and was already in Botswana; that he knew Lovemore Litabula,
they worked together the previous morning (1 August 1999); that he was not in the
company of or transport rebels who attacked the Katima Mulilo police station o 2nd
August 1999.
[484] During cross-examination the accused agreed that his responsibility is to
protect those he was “expected to protect’, that that particular responsibility he had
to perform conscientiously; that he knew the accused Matheus Sesesle and
Manyemo as former colleagues; that during 1998/1999 as police officer he became
aware of people “running” to Botswana; that the death of Victor Falali had been
reported to the police station; and that a group of 92 individuals left because of that
killing;
[485] The witness testified that he was unaware of the fact that rebel base had been
set up by the CLA across the Caprivi Region; that he did not know that the UDP
intended to break away from the DTA; that he was not aware of political meetings
that had been held during 1998-1999.
[486] The witness admitted that he was in possession of a fire-arm R 5 assault rifle
on 2 August 1999. The accused was asked why he had received an automatic
assault rifle on 30 July 1999. He explained that the Shift Commander Lovermore
Litabula instructed him to get three more weapons from the firearms store to be
165
distributed amongst the charge office personnel, since all security forces were
informed that there was an impending attack on Katima Mulilo, but the date was
unknown; that by 30 July 1999 he was aware of the attempt to secede the Caprivi
Region; that when he booked these rifles out he signed the fire arm register; The
accused agreed that the fire arm register reflects an entry made on 30 July 1999 that
a fire-arm with serial number 309217 was removed from the fire arms store and that
he signed for such fire arm.
[487] In respect of another entry in respect of a R5 rifle with serial number 302641
the accused stated that he couldn’t determine who signed for that rifle but that it
appears that the date it had been signed for was 8 February 1999. The accused
agreed that it is reflected in the firearms register that this fire arm went missing from
the police station in Katima Mulilo and that he could not deny that it went missing. It
appears form Ex EGV, that this rifle was issued to “C.O” (Charge Office?) on 16
October 1998. An entry made under the column when the firearm was handed, in it
reflects: “99.02.08 missing”. Someone signed for this firearm on 16 October 1998
and never returned it. It was put to the accused that a firearm with serial number
30264 from documentary evidence was found in possession of his co-accused John
Samboma. This accused referred to testimony to the effect that Sambona had no
fire arms on his return from Zambia. The accused was then referred to a Pol 7
register where in an entry it is reflected that a rifle with serial number 302641 was
found in possession of John Samboma. The witness agreed that that is what is
reflected in the register. The name and address of the finder (of the rifle) is reflected
as “Zambian Police”. The accused denied the evidence of Siboli that he attended
any political meeting. He gave as reason for Siboli testifying against him, that Siboli
testified for the money and that all the state witness who came were paid. My
impression from the answers given was that the accused referred to the normal
witness fees paid to state a witnesses who testify in criminal proceedings.
Nevertheless the accused testified that Siboli needed some money and that there
was loose money in the hands of the police.
[488] The accused testified that Danbar Mushwena is his uncle but that he had
never used that vehicle since he had a vehicle of his own. The accused further
denied that he had used that vehicle on 1st August 1999. This was however not put
to Danbar Mushwena during cross-examination. The witness was referred to the
testimony of Inspecter Lifasi to the effect that he personally went look for the
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accused on 2 August 1999 but that the accused was not at home. The accused
replied that the witness (Lifasi) misled the court. When asked why this was never
put to Lifasi, and after several attempts by the prosecutor to get an answer, the
accused a simply agreed that it was never put to the witness.
[489] It was put to the accused that Lifasi testified that he had not beaten the
accused person. The accused replied that several state witness testified about the
assaults. It was put to the accused that in his civil claim against the Government he
did not allege that John Lifasi had assaulted him. The accused first replied that in the
civil claim the allegation against John Lifasi was that Lifasi pointed a firearm at him.
The accused subsequently conceded that there was no allegation that John Lifasi
had assaulted him.
[490] It was put to the accused that he transported rebels on 2 August 1999 to the
police station and to the NBC and at the stage Inspector Lifasi could not have known
that he had transported rebels. The accused referred to the fact that his cousin had
his motor vehicle that evening and gave an extensive explanation. When it was put
to him that the vehicle of Dunbar Mwashena was a different vehicle the accused
gave a very sarcastic answer referring to the fact that he was a a good driver where
four vehicles were involved, that he was an invisible driver, was everywhere and
drove four cars at the same time.
[491] The accused was referred to the testimony at Lovemore Litabula who testified
that he (ie Lovemore Litabula) was taken home by the drive, George Kalundu,
contrary to the evidence of the accused that he took him home. The accused was
asked why this was not put to Lifabula during cross-examination. The accused
replied that he couldn’t recall since it was a long time ago. The accused was further
confronted with the testimony of Lubinda Mbumwae about what he had informed him
regarding his assistance to the rebels.The accused gave an incoherent answer, inter
alia, referring to the fact that he was feeding Libinda like his own son. This
corroborates the evidence of Lubinda Mbumwae on this point.
[492] Moven Siwamezi Tuobale was called as a defence witness and testified that
on 1st August 1999 he slept at the house of the accused. On the evening of 1 st
August 1999 they watched television and went to sleep between 22h00 and 23h00.
At round 03h00 to 04h00 he heard a “big sound” that he had never heard previously.
He then called the name of the accused person, who answered. They couldn’t sleep
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again. “Past 06h00” a Chevrolet (motor vehicle) came and picked up the accused
person. He thought that the accused was going to work. Since that day he had never
seen the accused again. This witness testified that the three children of the accused
were also in the house.
[493] What is immediately apparent from the testimony of this witness is that
according to him the accused was picked up at 06h00 by a Chevrolet and the
witness was under the impression that the accused went to work. This is
contradicted by the evidence of the accused himself who testified that he went to the
police station by himself late that day after no one came to pick him up that morning.
Furthermore the testimony of this witness that the accused answered him between
03h00 and 04h00 does not exclude the fact that the accused participated in the
attack earlier that evening. In his confession the accused person explained his
participation in the activities the previous evening.
[494] It was submitted by Mr McNally, that a court may reconsider its findings at a
trial-within-a-trial in the light of subsequent evidence presented during the
proceedings. This is certainly a correct statement of the law. I have re-considered
the evidence as a whole and must say that I am not convinced that there is evidence
which compels me to come to a different conclusion. The confession in my view
remains admissible evidence against the accused person.
[495] Criticism of the evidence of Lubenda Mumbwae especially his evidence that
he had a conversation with the accused on 2 August 1999 is well-founded since it is
common cause that the accused was only arrested on 3 August 1999 and couldn’t
have had a conversation of with the witness on 2 August 1999. I made mention in
my judgment of 10 July 2007 that the statement of Mbumwae was obtained on 4
June 2007 about 7 years and 10 months after his arrest and that although one
cannot exclude the possibility that a person may vividly recall events which
happened years ago it is also a known human trait that one’s memory fades with the
passage of time, especially where those events have not been reduced to writing
form which one may later refresh one’s memory. What is however is significant form
the testimony of Mtumbwae and what the accused has informed Inspector Lifasi are
the similarities between these two versions. There was no suggestion that the police
had prescribed to Mbumwae what to say in his statement or in court.
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[496] I am of the view having regard to the totality of the evidence that the version
of the accused is not reasonably possibly true and should be rejected. I am satisfied
that the State succeeded in proving that the accused had the necessary hostile
intent, committed an overt act and committed the charges preferred against him.
George Kasanga (accused no. 77)
[497] Mwisepi testified that the accused was in Dukwe and was one of the persons
who gathered there with the intention to secede the Caprivi Region. This witness
identified the accused person in court. During cross examination by Mr McNally it
was put to the witness that the accused will deny that he was with the witness in
Dukwe with the intention of secede the Caprivi Region. This witness disagreed with
this statement.
[498] Kingsley Simwanza Kalundu testified that one George Kasanga was a
traditional healer who treated persons including the witness himself to be invisible to
their enemies. The witness testified that the accused told them that they should go to
Angola to get training and thereafter ‘must come back to Namibia and ‘fight the
nation of Namibia in order to liberate Caprivi’. This witness when given the
opportunity to identify George Kasanga was unable to do so.
[499] Avelino Masule was warned in terms of the provisions of s 204 of Act 51 of
1977. This witness testified that on 22 August 1999 he went to the house of his
friend George Kasanga at Cowboy Compound in Katima Mulilo when he arrived
there two boys informed him that Kasanga was inside the house with the ‘big man,
Mr Muyongo’. He waited outside. After a while Muyongo came out and drove away.
The accused informed him that he needed assistance since they would be going to
Singalamwe. Two vehicles were parked there namely an Isuzu 4ᵡ4 and a Toyota
Land Cruiser with GRN number plates. One of the boys went with George Kasanga
in one vehicle and the other boy was with him following the vehicle driven by
Kasanga. They passed a police station check point and crossed into Zambia and
drove next to the Kwando river until they reached a certain point where they
encountered eight boys dressed in UNITA uniforms. Six wooden boxes were loaded
onto the vehicles, three boxes in each vehicle. The boxes were not opened but he
knew that there were fire-arms in those boxes. They returned to the house of the
accused where the boxes were off-loaded. The witness testified that the next
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morning the accused informed him that there were firearms in those boxes and told
the witness not to tell anybody about this. The accused then gave him N$ 50.00. The
witness testified that he asked the accused whether the firearms were still at his
house and the accused replied that the same night, after the witness had left, he
took the firearms to the house of Chief Mamili.
[500] This witness identified George Kasanga as accused no 77 in court. This
witness testified that he is an Angolan national and he and the boys communicated
in the Shimbundu language. The witness testified that he knew the accused since
1989 when he arrived in Katima Mulilo. During cross examination by Mr McNally it
was put to the witness that the accused will deny that he ever took the witness along
to accompany him to collect boxes. The witness replied that he knew that to be the
case (as testified by him). It was further put to the witness that the accused will deny
that he gave him money for whatever purpose. The witness confirmed that he
received money from the accused.
[501] The accused testified that during the year 1999 he was employed by Rumdel
Construction as an excavator chain operator; that he went to Dukwe on 29 March
1999 because he was hunted by the Special Field Force members and the police
because the police used to come to his house and asked him to point out the
soldiers of Muyongo whom he did not know. He returned through repatriation on 15
July 1999 and he resumed his work at Rumdel Construction. The accused denied
that he was a witchdoctor; that he did not know about plans to secede the Caprivi
Region since he is not a Caprivian but hails from the Kavango Region; that on the
night of 1st August 1999 he was at home with his wife. The accused denied that he
received boxes containing fire-arms from UNITA, and wanted to know why the
witness had not reported him to the police.
[502] During cross examination, the accused testified that he was never in a military
or police force; that he did not know the witness Masule before he gave his
testimony in court. When the accused was asked why the witness Masule was never
during cross-examination confronted with the fact that he never knew the witness,
the accused replied that there was no need to ask that question by counsel. The
accused replied that he was aware of the fact that people were leaving for Botswana
and that each individual went there because of ‘certain circumstances’; that he
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returned because Minister Jerry Ekandjo promised that no one would trouble them
on their return home; that he did not know Mwisepi when he was in Dukwe and only
came to see him when he testified in Grootfontein; that he was born on 8 April 1948
and was 64 years old; the accused admitted that he knew Mishake Muyongo and
Geoffrey Mwilima as parliamentarians, but denied that Muyongo ever visited his
house; he denied that he collected boxes of fire-arms after he had been visited by
Muyongo and that the testimony of the State witness was a fabrication; the accused
denied giving any money to the State witness. The accused admitted that he crossed
into Botswana at a place called Parakarunga, a place not gazette as a point of entry,
adding that no one who is fleeing would go through a ‘gazette cross-point’. The
accused testified that when he left for Botswana he did not know about a refugee
camp there.
[503] The accused denied that he followed people who supported the idea of
secession. It was submitted by Mr July in his heads of argument that the accused
admitted that he crossed the border of Namibia into Botswana at a place other than
a gazette point of entry. It was submitted that his is not only one of the charges
against the accused but also constituted an overt act to the count of high treason
and that the accused had the necessary hostile intent. It was further submitted that
those accused who found themselves in Dukwe camp had gone there with the
purpose of seceding the Caprivi Region from Botswana. It was submitted by Mr July
in his heads of argument that when this accused went to Botswana he might not
have had any hostile intent but that the evidence before court is that those who had
been lured to Botswana were soon informed of the purpose why they were there and
then formed the required hostile intent. I agree with Mr July that there is no evidence
that when the accused departed for Botswana he had the necessary hostile intent
but I disagree that there is any evidence from which it can be inferred that the
accused person subsequently formed the required hostile intent. In this regard it was
submitted by Mr McNally that the accused gave reasons why he had gone to Dukwe
and this was not challenged by the State and that the accused also gave reason for
his repatriation.
[504] It must be observed that Mwisepi’s evidence that the accused was one of
those who had gathered there in Dukwe with the intention to secede the Caprivi is a
general statement devoid of any particularities. Mr McNally further submitted that
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Masule never testified that he saw any fire-arms inside those boxes and that his
evidence that he was given money was challenged by the accused person. I need
not evaluate the evidence of Kalunda since this witness did not identify the accused
person. In respect of the evidence of Masule, Mr McNally submitted that the denial
by the accused of that witness’s testimony was never discredited and that there was
no reason why this court should hold the evidence of Masule over and above the
evidence of the accused. Mr McNally submitted that the accused has not
contradicted himself and that he was not discredited in any way.
[505] In respect of the alleged journey into Zambia in order to collect the six wooden
boxes and what transpired thereafter, the witness is a single witness and the
accused denied that version. It is not correct as submitted by the State in their heads
of argument that there is no evidence that challenges the State’s case in respect of
the testimony of Masule. It was also submitted by Mr July that the suggestion by the
accused that the witness did not report him earlier should be seen within the context
of what the accused has asked the witness not to do and paid him N$ 50.00. This
may be a valid observation but does it show that the accused was an untruthful
witness to the extent that this court should reject his denial that Masule and himself
embarked upon a journey to Zambia? I do not think so.
[506] The State is saddled with an onerous duty to prove the commission of an
offence beyond reasonable doubt, whereas an accused has no duty to prove his
innocence. I am not satisfied that the State has succeeded to prove an overt act and
hostile intention by the accused person. What is however admitted by the accused
was that he wrongfully and intentionally departed from the Republic of Namibia at a
point other than a gazette exit point.
Richard Simaata Mundia (accused no. 104)
[507] Christopher Lifasi Siboli testified and identified the accused as a person who
was willing to see the region seceded and was also identified as a member of
Kopano ya tou. The witness testified that the accused was a recruiter and a
transporter. The accused testified that in 1997 chief Boniface Mimili travelled to
Barotseland, Zambia for discussions concerning the secession of Caprivi from
Namibia and joining Barotseland in Zambia. He testified that the accused had
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escorted the chief. When the chief returned he was welcomed by his subjects at
Wenela border post one of whom was Berhard Maungolo. The witness testified that
when the Chief returned, he (ie the witness) did not have a conversation with the
accused. The witness testified that during 1998 the accused attended a meeting at
Lisikili where the issue of secession was discussed.
[508] The witness testified that a ‘good number of people’ gathered at Shell Filling
Station in Katima Mulilo to be transported to the CLA base in Singalamwe. There
were vehicles ready to transport these people. The accused was present there and
had a fuel order. The witness testified that a white man Norman Justus also arrived
there and spoke to the accused. The witness testified that the accused was one of
the persons who secured people to be taken to Angola for the acquisition of
weapons and military training during the year 1997. The witness testified that during
the year 1998 the accused was employed at the Ministry of Education and attended
a meeting where the theft of diesel from the Government which diesel was to be
exchanged for weapons in Angola was discussed. The witness testified that during
1998 the accused arrived at Zambezi filling station with a Government order book for
fuel which was filled in 6 ᵡ200 litre drums which book was eventually signed by
accused no 93. During cross examination the witness testified that he was not close
enough to Norman Justus and the accused to hear what they were talking about.
[509] Nasco Liswaniso Chombo was warned in terms of s 204 of Act 51 of 1977. He
testified that during December 1998 he was at his village Lisikili, he was in the
company of one Christopher Simataa Muswea busy drinking when Richwell
Mukungu, Richard Mundia, Johnny Puteho and Sherlock Sinfwa told them that they
were ‘lacking behind’ in that area, and informed them that Caprivi would be cut from
Namibia. They said that they would secure a vehicle to take them to Botswana. The
witness testified that they respondent by saying that they would wait. Richwell
Mukungu told them that they would be trained as soldiers in order to come and ‘cut
Caprivi’ in Katima Mulilo. Richwell Mukungu, informed them that the ‘cutting’ would
be achieved by way of ‘fighting using firearms’ against the Namibian Government.
Richwell Mukungu Matengu is the full name according to this witness. The witness
testified Richard Mundia used the same words. The witness testified that at a later
stage a white Mazda ‘open van’ driven by Richwell Mukungu Matengu arrived.
Richard Mundia was also in the vehicle. The witness and Christopher Simataa
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Muswea boarded the vehicle and they drove to Namalovi where they found 19
individuals who also boarded the vehicle which headed in the direction of
Masokotwane. They were dropped off at Masokotwane and Richard and Richwell
returned. They spent the night at Masokotwane at the village of Gasper Machana
who escorted them the next morning to the Chobe River where all of them crossed
into Botswana. It was 23 December 1998. They arrived at Dukwe refugee camp
where they stayed for five months. Nothing happened at the camp and he returned
to Namibia through repatriation. On 2 August 1999 he was at his home and was not
involved in the attacks. This witness identified Richwell Mukungu as accused no 105
and Richwell Mundia as accused no 104.
[510] During cross-examination by Mr McNally the witness testified that he received
no military training in Dukwe. When the witness testified that he heard about the
issue of secession from Richwell and the accused, he was referred to his statement
which reflects that the issue of secession came to his attention through the radio and
the newspapers when the 92 rebels left Botswana in October 1998. The witness
agreed that he heard about the issue of secession prior to him having a conversation
with the accused during December 1998. It was put to the witness that the accused
will deny that he ever transported them to Masokotwane. The witness disagreed with
this statement.
[511] Voster Mukungu Nawa testified that one Richard Mundia told him during
December 1998 to go to Botswana in order to fight for his country. According to him
Richard Mundia informed him that he would receive training in firearms. This witness
was unable to identify Richard Mundia in court.
[512] Vesmus Haipa testified that he is a member of the Namibian Police Force and
was stationed at Katima Mulilo during the year 1999. On 27 October 1999 at 14h00
he was together with Inspector Simasiku and went to the house of the accused
person where he found his wife ‘Grace’. At that stage the accused had been
arrested. Inspector Simasiku explained the purpose of their visit. She agreed and let
them into the house. During the search the wife of the accused was present and they
informed her what documents they intended to take. These items were taken to the
police station and booked into the Pol 7 register. He testified that he asked the wife
of the accused who was the owner of the items, seized and she replied that it
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belonged to the accused person. According to the witness, the items seized were
booked in the Pol 7 register under entry Pol 7/340/99. I must state that these
documents contained no incriminating evidence.
[513] The State in its heads of arguments in connection with the testimony of Oscar
Mwisepi refered to the record113 and contends that the accused was in the company
of John Samboma (accused no 54), Bennet Mutuso (accused no 69), Richard Libano
Misuha (accused no 48) and Oscar Muyuka Puteho (accused no 49) near Masida
with weapons after the attack on Katima Mulilo. This is incorrect. The record reflects
that the witness Mwisepi found five persons near firearms and he named them as
John Samboma, Richard Samati, Bennet Mutuso, Richard Misuka and Oscar
Muyuka Puteho. The witness also referred to Richard Samati as John Samati114 and
the same names are repeated. 115 The accused did not identify Richard Misuha
neither did he identify the accused person.
[514] The State further in their heads of arguments submitted that the motor vehicle
of the accused was at Makanga on 1 August 1999 where the final preparations were
made for the attack the next day. The record does not support this submission. It
was further submitted by the State that Ex ACC was found in the house of the
accused person. This is incorrect. The police officer Vesmus Haipa testified that it
was found in the house of Geoffrey Mwilima (accused 68).
[515] The accused testified that he was arrested on 26 August 1999. He was
employed by the Ministry of Education as a senior driver and he was a member of
the DTA. The accused denied that he attended any political meetings during 1997
and 1998 where it was conspired to overthrow the Government of the Republic of
Namibia by violent means. The accused denied that he influenced people to go to
Botswana in pursuance of a conspiracy to secede the Caprivi from Namibia. The
accused denied that he transported persons to the Namibia/ Botswana border in
pursuance of the conspiracy and denied that he donated diesel to be exchanged for
firearms. The accused denied the evidence of Siboli that he was a member of
Kopano ya Tou, adding that he had never joined an army or the police force; denied
that he attended a meeting in 1998 at the DTA office where there was a discussion
that people should steal diesel; denied that he had a fuel order book at Shell Filling
113 P 719, lines 10-23.114 P 765.115 P 836.
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Station; and he denied attending a meeting at Lisiskili where an agreement was
reached to secede the Caprivi through fighting. The accused denied, as testified by
Nasco Chombo, that the accused had informed him that Caprivi would be cut; that
he did not have any knowledge of a possible attack in Caprivi or plans to violently
secede the Caprivi Region; that he never recruited people to go to Botswana or to
join a military force.
[516] During cross examination, the accused testified that the hails from Muziba
village in the Lisikili area; that he acquired a Namibian identity document on 15 July
1992; that he was not present at a meeting where a decision was taken to separate
the UDP from the DTA; that in 1975 he went into exile to join SWAPO in Zambia;
that he attended one meeting of DTA in 1994 adressed by Mr Dirk Mudge; that he
attended no other DTA meetings; that he know Muyongo as a parliamentarian; that
he never spoke to Muyongo; that he drove Muyongo and Chief Mamili to South
Africa in 1998; that he did not know Thaddeus Ndala; that the passangers in his
vehicle were the Chief, Muyongo and councilor Francis Sizimbo; that when they
arrived in South Africa they found Victor Mwituti, Afred Chilinda, David Siseho,
Albertina Musukubiri and David Muchali were already there – there were eight
people in the delegation; that he does not recall that Ndala formed part of the
delegation; that he cannot dispute neither can he confirm that Ndala was part of that
delegation; that he does not know whom they went to see in South Africa- he was
only the driver; that he never said during the bail application in Grootfontein that
there were eighteen persons in the delegation; that he did not know whether a Mr
Mutengu was part of the delegation.
[517] The accused testified that after the proceedings on the bail application was
given to him, he pointed out to counsel the name Richard Mukungu whom he did not
know. It was put to the accused that if in the bail proceedings no reference was
made to Richwell Mukungu he could not have pointed that out to counsel. The
accused agreed. It was put to the accused that in the bail proceedings reference is
made to a Mr Matengu only and not Mr Makungu. The accused replied that Matengu
Richwell Makungu is the same person and this person was not part of the
delegation. The accused was asked whether he knew Matengu Richwell Makungu
twice but evaded the question. When asked for a third time he explained that when
he boarded the vehicle from his village to Ngweze he ‘came to know’ the Matengu he
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used to work with at the Ministry of Education. The accused testified about the
vehicle he boarded on the day of his arrest and that Matengu Richwell Makungu is
accused no 105. The accused was asked whether he has known Matengu Richwell
Makungu before his arrest and the accused replied that he came to know him at
work at the Ministry of Education. When asked whether Matengu Richwell Makungu
was not his brother-in-law, the accused confirmed it. When asked why he told the
court he met him on the day of his arrest, the accused gave an inconsequential
reply.
[518] The accused was referred to the answer given when asked whether he had
heard about the UDP to which he had replied that he heard that it was a party. This
was contrasted with his reply to the same question during the bail application when
he stated that he heard about it in 1985 until it was ‘demised this year’ (1999). The
accused denied that is what he said during the bail application and blamed it on a
wrong interpretation by the interpreter (in the bail application). The accused testified
he only came to hear in court that Muyongo and the Chief left for Botswana, that he
never heard of it previously; that he did not know about a group of 92 persons who
crossed into Botswana from Namibia; that he did not know that subsequently there
was an exodus of people to Botswana; that he only came to hear about it in court;
that he knew nothing about the issue of secession; that he only came to hear about it
in court; that prior to his arrest he knew nothing about plans to secede the Caprivi
Region.
[519] The accused was referred to a question whether he had been outside
Namibia and his reply that he was in South Africa and Zambia and was referred to
this reply to the same question where he also included Zimbabwe. The accused
replied that it was ‘mistakenly’ omitted. The accused was referred to his testimony
that the last time he was in Zambia was in 1975 while his answer to the same
question was July 1999. The accused replied that he took drought relief food for
school children. The accused denied that he had ever been to Angola and was
referred to Exhibit EGF a diary of one of the accused persons, Ndala, that he was
part of a group that went to Angola. The accused replied that he does not know how
it came about that his name appears in that diary. In the diary it appears that on 15
August 1998 he was part of a group consisting, inter alia, of Ndala, Muyongo,
Walibita and Samboma who went with the aim to obtain overall support in connection
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with the problem in Caprivi. The accused denied that he was on that trip. The
accused testified that he has no knowledge that the CLA had sought assistance from
UNITA in 1998. The accused testified that he does not know the Masokotwani areas,
and that he was only at the school; the accused denied the evidence of Siboli that he
was a committee member of Kopano Ya Tou since he never joined an army when he
returned to Namibia and that the evidence before court is that all who belonged to
Kopano Ya Tou were ex-soldiers. The accused denied that he supported the idea of
secession as testified by Siboli. The accused was reminded that this was not put to
Siboli by counsel to which the accused replied that he gave those instructions.
[520] The accused was reminded of a question asked during cross-examination to
inform the court whom of the accused persons he had known prior to his arrest and
that he replied that he knew no accused person. The accused was confronted with
an earlier reply that he knew Norman Justus. The accused was further reminded that
the evidence of Siboli that the accused was at the filling station with an order book
signed by accused 93 was never disputed during cross-examination to which the
accused replied that he gave instructions to deny it. The accused testified that he did
not know Nosco Chombo and denied encouraging or inciting Chombo during
December 1998 to go to Botswana. The accused was reminded of what counsel had
put to Chombo namely that the talk of going to Botswana and secession was rife at
that stage. The accused replied that he did not give such instructions to his counsel.
[521] The accused conceded that he never testified about Masokotwani during his
evidence-in-chief. The accused was reminded that counsel had put it to Nosco
Chombo that the accused will testify that he never transported him to Masokotwani
and that he never testified about it. It was submitted by Mr July that the evidence of
the witness in this regard stands uncontradicted. The accused testified that his
command of the English Language is poor. It was suggested to him that should
someone allege that his command in English is good that would be fraudulent. The
accused agreed with this statement. The accused was then confronted with his
application for employment (Exhibit EUZ) in which he himself had stated that his
command of reading, writing and speaking of the English language was good. The
accused during cross – examination testified that there was never a need for him to
phone Muyongo. The accused was confronted with the telephone numbers of
Muyongo found in his possession and written down by the accused person himself in
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a diary of the year 1993. The accused explained that those numbers were recorded
in the event the need arose for him to contact Muyongo in connection with food.
[522] The evidence of the witness Nosco Chombo that the accused had informed
him that Caprivi would be cut from Namibia was never challenged during cross-
examination. The defence of the accused is not only merely a bare denial of all
incriminating evidence against him, but he denied any knowledge of occurrences
which are not in dispute, eg that there was an excodus of people to Botswana. The
evidence of Nosco Chombo was never seriously challenged during cross
examination, save for the statement that the accused would deny transporting the
witness to Masokotwani. In my view there is no reason for this court to reject the
evidence of the witness Nosco Chombo. This witness testified in fairly detail what
was said during their conversation, by whom, described their journey until the point
where they were loaded and testified that the accused was not present when they
crossed the river into Botswana. If this witness ever had a reason to falsely implicate
the accused he could have for example, exaggerated the involvement of the accused
by stating that the accused himself assisted them to cross the river. I am satisfied
that the evidence of this witness is satisfactory in all material respects.
[523] I must state that the evidence of Siboli that the accused was a member of
Kopan ya Tou must be approached with caution in view of the uncontested evidence
by the accused that he was never in the army (obviously referring to the SWATF)
and this evidence cannot be relied upon. The accused on the other hand was a poor
witness who on a number of occasions during cross-examination was unable to
explain contradictions, ascribed anomalies to either typing errors or to interpreters
not translating what he had said; admitted indirectly to dishonest conduct and at
times gave non-sensical answers. An outstanding feature of his evidence-in-chief as
well as replies during cross-examination, as alluded to afore-mentioned, is to have
closed his eyes (figuratively speaking) and his ears to the events which occurred
around him in Caprivi especially during the years 1998 and 1999, because in my
view he not only did not have a reasonable explanation for incriminating evidence,
but it conveniently suited him to do so. His ignorance of the attempted secession is
gainsaid by a statement of a co-conspirator and co-accused to the effect that he
participated in that attempt. His evidence cannot be reasonably possibly true and is
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rejected as false. At the very least, the accused knew about the attempted secession
and failed to inform the authorities about it.
Mashazi Allen Samenja (accused no. 67)[524] Christopher Siboli testified and identified that accused person in court as a
mobiliser of persons with the aim of seceding the Caprivi region. He testified that the
accused donated money for the purpose of acquiring weapons in Angola. During
cross-examination it was put to the witness that the accused will deny that he had
attended any meeting with the witness. The witness replied that the accused may do
so. It was put to the witness that the accused will say that he only knows the
accused facially, to which the witness answered: ‘we used to drink together’.
[525] Profysen Pulano Muluti testified that the accused person encouraged him to
go to Botswana where he would receive money (50 pula). This witness testified that
he eventually together with four persons crossed the Chobe river into Botswana. He
testified that the accused is his brother. He identified Allen Sameja as accused no 67
in court. They went on foot to Botswana. This witness was not cross-examined.
[526] Linus Kambunga Mumbonda testified that on 1 January 1999 he went with
one Richwell Mukungu from his village to Ngwezi on the way to Botswana with the
aim to attend school. At the market in Ngwezi they were told to board a vehicle and
drove to Lyibu-Lyibu and eventually proceeded to Dukwe. He testified that he was
transported by one Allen Sameja but was unable to identify Allen Sameja in court.
[527] Elvis Kanungu Elijah testified that during December 1998 two men, namely
Robert Chelezo and Allen Sameja came to his village and told him to go to Dukwe in
order to find employment and education and thereafter to return to Namibia in order
to separate the Caprivi from Namibia. This witness testified that he eventually
travelled and reached the Chober river. Here Robert Chelezo directed him to cross
the river. Robert Chelezo was in the company of Allen Sameja. This witness was
unable to identify either Allen Sameja or Robert Chelezo in court. The testimonies of
Linus Mumbonda and Elvis Elijah who failed to identify the person Allen Sameja in
court will not be considered in the evaluation of the evidence.
[528] The accused testified that he was arrested on 4 August 1999 and was
employed at a UN Agency, Food and Agriculture Organisation as regional
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coordinator of a project called Food Security and Nutrition Programme in Caprivi
Region, since 1997. He testified that he is a member of SWAPO and has never been
a member of the DTA or the UDP; that he has never influenced people to flee to
Botswana in pursuance of a conspiracy to secede the Caprivi from Namibia by
military means; that he was never an organiser of people to go to Botswana and
never transported people to Botswana. In respect of the evidence of Siboli that he
was a mobiliser in his area, the accused denied it and explained that he is a member
of SWAPO since 1992, that he was a very active member, was not only an ordinary
member but had a portfolio in SWAPO party. The accused further pointed out that
according to Siboli his (ie Siboli’s) area for mobilization was the Lisikili Livula village
and that his village is about 140 km away. The accused testified that during 1992 he
was in Grade 12 at school ‘in town’ and was not in his village. The accused stated
that he started Grade 12 in 1991 and he had to repeat it in the year 1993 when he
received his senior certificate. This certificate was received on Exhibit EVA.
[529] The accused denied that he influenced Profysen Muluti to go to Botswana and
explained with reference to the record116and the evidence-in-chief of the witness
when asked what made him to go to Botswana, Profysen testified that one
‘gentlemen’ Progress Lifasi had asked the accused at the courtyard of Lifasi:’you
what is the reason that where others are going you are not going you are not going
there?’. According to him Lifasi then said the he would make arrangements for
transport and that where he was going would be things like jobs, schools and that he
would be paid money. The accused testified that it was Progress Lifasi who had
influenced the witness to go to Botswana and not him. The accused testified that he
did not know Linus Mubonda. The accused denied that he had knowledge of the
issue of secession and had no knowledge about impeding attacks on Katima Mulilo.
He testified that on 2 August 1999 he was with his family at home in Katima Mulilo,
and that he rented a house from a Mr Mucheka.
[530] The accused testified that he knew Siboli only facially and had seen Siboli for
the first time in March 1999. The accused testified that when he is not in town he
stayed at his village Malihera in Batubaja area, 110 km south of Katima Mulilo.
During cross-examination by Mr Neves the accused confirmed that the Mr Mucheka
he referred to was also a SWAPO supporter.
116 P 20773.
181
[531] The accused was cross-examined by Mr July. The accused testified that he
knows Mucheka is a member of SWAPO. The accused was asked whether he knew
any of the other accused persons before court before his arrest117 and the accused
replied in the affirmative mentioning Gibson Luka, Mucheka, Gabriel Mwilima, Patrick
Iita Likando; that he knew Muyongo and Geoffrey Mwilima as parliamentarians,
Muyongo as the president of the opposition party; that he heard about the UDP
somewhere during 1987; that he used to hear that the President of the UDP was
Muyongo; that his portfolio in 1989 in SWAPO was Chairperson of SWAPO Youth
League from the Sangwali to Linyanti area – a district chairperson; that from 1987 to
1994 he was an active member but from 1994 until his arrest he was a passive
member of SWAPO since in 1994 he was employed by the UN Agency and one of
the policies of this agency was that one was not allowed to participate in active
politics; he denied that he promised to give the witness Muluti fifty pula.
[532] It appears from the record that Muluti had a conversation with Progress Lifari,
that jobs and school would be available in Botswana and that money may be paid to
him. When Muluti was asked who had informed him about money118he replied that
Progress told him and Allen Sameja also told him and ‘he hinted that when you go
there you will get something like 50 pula’. Muluti testified that the accused told him
only on one occasion about the 50 pula. It would therefore be incorrect to suggest
that the accused had promised to pay Muluti 50 pula.
[533] The accused was confronted with his testimony in evidence-in-chief where he
testified that he had no knowledge about secession. The accused replied that he
understood Mr McNally to refer to personal knowledge, that he had no personal
knowledge about the issue of secession and only heard about it over the radio and
read about it in the newspaper. The accused testified that he had been aware that a
group of 92 had crossed into Botswana. The accused denied knowing a person
going by the name Robert Chelezo. The accused testified that he became aware of
an exodus of people through the NBC. He testified that (with reference to the year
1992) he went to school during January and returned during December because of
the distance and that he had no money for transport and that during the May/June
holiday he attended a NANSO Regional Conference where he was elected as 117 P 37534 lines 31-32.118 P 20774, Line 9.
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Deputy Regional Chairperson of NANSO and that he never returned home during
the course of that year.
[534] The accused was referred to cross-examination during a bail application
brought during September 1999 when he was asked whether he knew Ben Munzie
and was referred to a question to the same effect by Mr July namely whether he
could ‘recall any co-accused before court or who were co-accused before court’. The
accused replied that the reference to accused persons were accused persons
presently before court. The accused is supported by the record on this point. The
accused testified that he had informed the court during the bail proceedings that he
knew Ben Munzie, and then narrated the circumstances under which he met Munzie,
adding that Munzie comes from a place called Sabero from the same area the
accused hails from.
[535] The accused was referred to the testimony of Siboli to the effect that the
accused was a mobiliser in the year 1992, and that the accused allegedly donated
money to acquire weapons in Angola. It was put to the accused that he only knew
Siboli facially as testified by the accused; that Siboli had no reason to falsely
implicate him in this case. The accused replied that Siboli was a hired witness,
because he was shown photographs, that Siboli never mentioned his name in a
statement by Siboli deposed to on 23 March 1999, that if Siboli had known about his
involvement in the attempt to secede the Caprivi Region he would at that stage have
said so, which shows that his testimony was an afterthought. In reply to further
questioning the accused referred to Exhibit BAR, stating that Siboli was given
photographs and his name and that is why Siboli was able to point him out.
[536] The accused was asked whether there was any evidence that Siboli was
shown a photograph of the accused and that was why he was able to identify the
accused, to which the accused replied that that evidence came from Mr July himself
since Siboli was part of a group of witnesses referred to by Mr July. The evidence by
Mr July is a reference to the testimony of Mr July during an application for a special
entry in terms of s 317 of Act 51 of 1977 brought by defence counsel Mr Kauta. The
accused agreed that the witness Profysen Muluti was not cross-examined by
counsel and that it was counsel’s decision not to cross-examine. The accused
agreed that Profysen Muluti testified about a meeting addressed by Muyongo during
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1998 at Malengalenga which meeting was addressed by Muyongo and where
Muyongo made certain promises; that after this meeting Muluti returned to his village
and had only later heard about a group of 92 that had gone to Botswana. The
accused denied that he had informed Muluti about the group of 92 as testified to by
Muluti. The accused was referred to the evidence of Muluti who testified that he
heard about the group of 92 since the accused ‘during Fridays’ used to drive to the
village from Ngweze. The accused denied that he used to drive to the village every
Friday.
[537] I do not think that much turns on the evidence that Muluti heard from the
accused that a group of 92 individuals had gone to Botswana, since, this it appears
from the evidence, was public knowledge, except to attack the credibility of the
accused, especially in view of the fact that the testimony of Muluti was not disputed
during cross-examination. The accused called one witness, namely Delicious Matota
Sameja who testified that he lives in Malihera area and was unemployed. He testified
that the accused is his younger brother and during the years 1991 and 1992 the
accused was attending school in Katima Mulilo and that the accused was a member
of SWAPO. During cross-examination, the witness testified that the accused did not
use to come home during those years (ie 1991/1992) because amongst them no one
was employed; that he only saw the accused during the month of December when
the school closed.
[538] It appears from the replies given to the questions by the prosecution that this
witness is an uneducated person. He had no concept of distance (kilomentres),
could not say how old he was in 1991, could not tell his age when he testified (on 9
April 2013), only knows that 1968 appears on his identity card, did not know how old
the accused was or in which month the accused was born. This witness candidly
informed the prosecutor that he is ‘not learned’. The witness testified that he knows
Profysen Muluti as a younger brother, actually a cousin. The accused also testified
that Muluti is a cousin (not a biological brother).
[539] Mr July submitted that the accused tried to convince this court why the
testimonies of Siboli and Muluti should be rejected without any plausible reason why
this court should do so. The reason given by the accused, it was submitted, was that
Siboli was hired witness and that photographs had allegedly been shown to Siboli is
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the furthest from the truth. It was further submitted that the explanation by the
accused (for the rejection of the evidence of Siboli and Muluti) is ‘speculative and
inconceivable’. This court needs to look at the uncontested evidence of Muluti in
order to determine whether he had incriminated the accused before it can consider
whether the testimony should be rejected or not.
[540] It is apparent from the record that when the accused ‘hinted’ about money to
be obtained in Botswana, Muluti was alone (ie not in the company of a third person).
No one else heard what was said and no one else came to testify about this
conversation. The witness Muluti is therefore a single witness. I am of the view that
the fact that the accused had ‘hinted’ about money in Botswana can by no stretch of
the imagination be found to be proof beyond reasonable doubt that the accused had
persuaded Muluti to travel to Botswana for the purpose of seceding the Caprivi from
Namibia by violence. Similarly, in spite of the denial by the accused, the fact that he
had informed Muluti about a group of 92 who had crossed the border into Botswana
is no proof that the accused had any prior knowledge of a conspiracy to secede the
Caprivi by violence means. At that stage it was common knowledge that a group of
armed men crossed from Namibia to Botswana, a group which was referred to as
Muyongo’s army.
[541] I do not support the submission that the reasons given by the accused person
why the evidence of Siboli should be rejected, can be characterized as ‘speculative
and inconceivable’. There was evidence during the application in terms of s 317 that
photographs of accused persons with their names had been shown to state
witnesses and although there is no evidence that any photograph and the names of
this accused was shown to Siboli, this court has reason to treat that evidence with
circumspection. Siboli is also a single witness. The evidence of the accused person
was not of such a poor quality, as was suggested. There were no material
contradictions and even where the accused person had denied evidence not
contested during cross-examination gives this court no reason to reject the evidence
as not reasonably possibly true and to reject it as false.
[542] The evidence of the witness who testified on behalf of the accused did not
contradict the evidence of the accused in any manner. I am accordingly of the view
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that the State has failed to prove the commission of all the charges preferred against
the accused person beyond reasonable doubt.
Clients of Mr Neves
Geoffrey Kupuzo Mwilima (accused no. 68)
[543] Oscar Mwisepi testified and identified the accused as a leader of the
movement to secede Caprivi Region and that he ‘offered himself’ for that aim. He
testified that the accused chaired meetings. The witness testified that the accused
was present at a meeting at Liselo at 1997 where the issue of secession was
discussed as well as the formation of an army. The witness testified that he accused
supported the idea of secceding the Caprivi from Namibia. Mwisepi testified that the
accused attended the 3rd meeting during the year 1998 at the DTA office where the
suspension of Muyongo was discussed. In relation to the Liselo meeting the witness
testified that the accused arrived there with Muyongo and the accused gave a short
history how Caprivi and Namibia differ. The witness further testified that the accused
‘entirely committed’ himself by influencing people to go to Botswana and gave
information about the issue of secession.
[544] The evidence-in-chief of Mwisepi mentioned hereinbefore is also referred to.
During cross examination the witness was referred to the first meeting held in
September 1998 in Liselo and asked what the accused had said at that meeting. The
witness replied that the accused had said something but couldn’t remember what
was said. It was submitted by Mr Neves that the witness had testified: 119 ‘ If I am not
mistaken. . . Geoffrey Mwilima. . . said something at the meeting. . . .’ Mwisepi, later
during cross-examination confirmed that when asked what the accused said at the
Liselo meeting, he could not remember. It was put to the witness that the accused
did not attend the meeting at Liselo in 1998, the witness disagreed. The witness was
asked which meeting he attended was the accused the chairman. The witness
replied that the reference to chairman was a mistake, but that all the meetings he (ie
the witness) had attended the accused was present.
[545] Christopher Lifasi Siboli testified that the accused was present during the year
1989 when the CLA was formed. The witness testified that the accused was present
119 P 2000, line 19-20.
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during the year 1991 at a meeting where ex-SWAFT/Kopano ya Tou’ members
attended and where the accused supported the secession of the Caprivi. The
accused was identified by the witness in court. The witness testified that the accused
in 1992 at a DTA meeting agreed that people should go to Angola in order to acquire
weapons and appointed this witness, John Samboma and Thaddeus Ndala to go to
Angola. The witness testified that the accused attended a second meeting during
1992 at which meeting the reply from Angola was reported; that the accused
donated money; that the accused attended a meeting in 1993 at the DTA office in
Katima Mulilo were the issue of secession was discussed; that the accused
addressed a meeting at the DTA office in 1997 where the topic of discussion was the
acquisition of weapons from UNITA in Angola; that the accused attended a meeting
at the old house of Muyongo in 1997 addressed by Muyongo where the issue of
secession was discussed; that the accused attended a meeting in 1997 at the new
house of Muyongo where the topic of discussion was the donation of money for the
acquisition of weapons; that the accused attended a meeting at Liselo village in 1997
where secession was discussed; that the accused attended a meeting at Sibinda
village in 1997 where secession was discussed; that the accused attended a
meeting in 1997 at Sikuvi village where secession was discussed; that in 1997 he
was at the house of Victor Muituti from which a number of persons left for Linyanti to
see the Chief and from there went to Kasani, Botswana to the Governor with a letter
from the chief in which the issue of secession was mentioned.
[546] Mr Neves in his heads of argument referred to contradictions by this witness.
He submitted that this witness testified that the accused was a member of Kopano
ya Tou but failed to identify the accused as having attended a meeting of Kopano ya
Tou. It was pointed out that the witness testified that he was a member of the DTA
organizing committee since 1985 but in his statement of 23 March 1999 reflects that
he only became a member of the organizing committee in 1991. It was pointed out
that in a statement dated 23 March 1999 no mention is made about an organisation
called Kopano ya Tou playing any role in the issue of secession and that this was
conceded by the witness. It was further pointed out that the witness could not recall
attending any meetings in 1990 or in 1996. Reference was further made to the cross-
examination by Mr Kauta where the witness was reminded of his testimony during
cross-examination that during the year 1997 he could not recall any meetings where
secession was discussed. The witness replied that meetings took place but that he
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was unable to point out places where the meetings took place. The witness was
asked whether he could remember with whom he had attended the meetings in 1997
and replied: ‘they are present whom I used to attend the meeting with’.
[547] The witness testified that he made a mistake when he stated in evidence-in-
chief that he did not attend any meetings during 1996. The witness was asked to
confirm that he attended a meeting at Lisikili during 1998 and replied that he
attended a meeting at Lisikili but was unsure when that was; that he could not recall
how many meetings he had attended during 1997; that he could not remember when
the CLA was formed; that he was not present at the meeting when the CLA was
formed. It was put to the witness that the accused denies being a mobiliser to which
the witness replied that he (ie the witness) would also have denied it if he were in the
shoes of the accused. It was put to the witness that the accused did not attend any
of the meetings testified to by the witness where upon the witness replied that he
was not suppose to deny it.
[548] Progress Munsa Mulunga testified that he joined the DTA in 1991 and was
elected in 1998 as chairperson of Kashese branch. He testified that the accused and
John Mabuku addressed a meeting during 1998 at Kashese branch of the DTA
informing the attendants that Muyongo intends to leave parliament and intends to cut
Caprivi from Namibia by using firearms. This witness identified the accused person
in court.
[549] This witness further testified that he found the accused at the Shell Filling
Station in Katima Mulilo with 12 persons. According to this witness the accused
informed him that he was taking these persons to Angola and that one John
Samboma was amongst those persons. This witness testified that in 1998 a meeting
was called at the DTA office in Katima Mulilo by Mishake Muyongo and the accused.
At this meeting Muyongo informed the attendants that he had left parliament to stand
on his own in Caprivi, that he had taken that stance because the people in Caprivi
are suffering too much. The accused complimented what Muyongo had said and
according to this witness, the accused said that it was because of that reason that
they ‘should be cut away from Namibia’. The witness testified that Muyongo stated
that the cutting would be done by fighting using fire-arms and Muyongo mentioned
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John Samboma, Thaddeus Ndala and Francis Mushandikwe amongst others who
were to use those firearms.
[550] During cross-examination the witness confirmed that the accused said that
Caprivi had to be seceded by ‘the barrel of the gun’. Mr Neves in his heads of
argument submitted that he heard that people were going to Angola but in his
evidence –in-chief the witness incriminated the accused. Mr Neves referred the
witness to a statement deposed to in 2000 where it does not appear that the
accused came with John Mabuku at the Kasheshe meeting. The witness replied that
it was a mistake. Mr Neves further pointed out that in the statement deposed to by
the witness no mention is made of the accused chairing a meeting at the DTA office
it only appeared subsequently in a statement deposed to during the year 2003 and
submitted that the police was instrumental in adding names, events and contents of
such events in order to build a case against the accused. In this regard reference
was made to the evidence of State witness Morgan Mbonabi who to a question: ‘. . .
did the police ask you if Geoffrey Mwilima spoke about getting guns to free Caprivi,
to cut Caprivi at the meeting?’ replied: ‘Its correct’.
[551] The witness was confronted with a document purporting to be a statement in
which he allegedly complained about beatings and torture by the police. The witness
denied the contents of such a document or that he was the author thereof. It was put
to the witness that the accused will deny that he attended any meeting testified by
the witness. The witness confirmed that the accused attended those meetings. It was
put to the witness that the accused will deny ever addressing those meetings. The
witness insisted that the accused indeed addressed those meetings. During cross-
examination, the witness testified about three meetings which according to him the
accused had attended. Mr Neves referred to the cross-examination by Mr Nyoni and
pointed out that the witness had testified that at the filling station, the witness
testified that the accused had said he was taking those 12 people to Angola, that
during cross examination the witness stated that the accused did not inform him of
the purpose of the journey and later testified that he had stated during his evidence
in chief that the accused told him that he was taking those people to Angola for
military training. The record reflects that the witness did not testify in his evidence-in-
chief that the purpose of the journey to Angola was for military training. Bernard
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Bareka Kanzeka testified and the content of his evidence was already referred to
hereinbefore.
[552] Shailock Sitali Sinfwa testified that the accused called, attended and spoke at
meetings during 1998 at the Regional Office of the DTA where the attendants were
informed that the UDP separated from the DTA and that the Caprivi will be seceded
from Namibia. The witness identified accused no 75 as Geoffrey Mwilima.
[553] Charles Kachiolwa Matome testified that during the year 1998 Muyongo and
Geoffrey Mwilima addressed attendants at a meeting held at his village. Muyongo
said that he came from parliament in order to take his people out of Captivity of
SWAPO and that is why he had left in order to form his own army. Geoffrey Mwilima
spoke and said that he was in agreement with Muyongo. Geoffrey Mwilima chose
two men Immanuel Makandano and Richard Shihelwa Kawana to pursuade the
youth to join. This witness was unable to identify Geoffrey Mwilima in court. The
witness stated that he was unable to do so due to poor eyesight. This witness was
75 years old when he testified on 30 January 2006.
[554] Daniel Sitali testified that during 1998 he attended a meeting at the DTA office
addresses by Muyongo who informed those in attendance that he wanted to
resuscitate the UDP in order to stand on his own and that he was not going to be
part of the DTA. At this occasion Geoffrey Mwilima asked the attendants if they had
heard what was said and whether they agree. All the attendants agreed including the
witness himself. This witness was unable to identify Geoffrey Mwilima in court due
to poor eye sight. The witness was 62 years old when he testified on 31 January
2006. This court placed on record120 that accused 68 ‘had his nose and his mouth
covered with his hand when the previous witness was given the opportunity to
identify persons, and he is doing the same now.’ The previous witness was Charles
Matome. Although both these witnesses were unable to identify Geoffrey Mwilima
exclusively due to poor eye sight, the accused deliberately tried to disguise himself in
order to make it difficult for these witnesses to identify him.
[555] Gobfrey Sibeso testified that on 1 August 1999 at the main Khuta at Linyata
there was a discussion about secession. At this occasion, one Geoffrey Mwilima
120 P 6637.
190
stated: ‘ . . . we who fall under UDP, we cannot go for that issue. We have just to cut
Caprivi from the rest of Namibia’. This witness failed to identify Geoffrey Mwilima in
court.
[556] Brian Lisepo Lubeile was an Induna and testified that on the day of the
inauguration of the new chief, Geoffrey Mwilima was amongst a group of people who
opposed the inauguration. Geoffrey Mwilima was identified by this witness in court as
accused no 68. During cross examination, the witness testified that the accused was
not suppose to be ‘anti’ because he is part of the Royal family. When asked what the
accused did wrong the witness replied because he was waiting for a person who had
gone to Botswana. It was put to the witness that two police officers Chief Inspector
Shishanda and Ben Munzie handed two letters to Geoffrey Mwilima who after
reading those letters left. The witness replied that he never saw that.
[557] Vessimus Haipa testified that the house of the accused was searched on 27
October 1999 in the presence of the wife of the accused. The documents found were
booked in by Sgt. Simasiku as per Pol 7/330/99 (Exhibit EFH). There were 59
documents entered in the Pol 7 register, inter alia, a document ‘Aims and Objectives
of CLA’; UDP letterheads, one with the announcement of a UDP meeting, UDP press
releases dated 3 March 1999 and 7 April 1999 respectively, a copy of a document
titled: ‘The Mafwe tribe rejects George Simasiku as Mafwe’; and a piece of paper
with Muyongo’s telephone number in Denmark.
[558] Geoffrey Kupuzo Mwilima testified that he knows of three persons in the
Caprivi Region with the names of Geoffrey Kupuzo Mwilima, that he was born at
Kanono Village in the Caprivi Region; that he joined the DTA in 1978; that during
1985 after Muyongo had returned from exile the UDP was formed with the intention
to affiliate to the DTA; that prior to his arrest there was no witness statement
implicating him; that the first witness statement was obtained during November 1999;
that from one of the statements obtained from Inspector Goraseb he indicated that
he received instructions from Windhoek to arrest executive members of the UDP and
all prominent members of the Mafwe tribe and that he (ie the accused) interpreted
that as ‘political victimization and hatred’; that at the time of his arrest he was not an
executive member of the UDP; that he was arrested on 4 August 1999 at home and
taken to the charge office where he was blind folded by Sgt. Evans Simasiku; the
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blindfold was later removed and he was questioned by police officers Patrick
Liswani, Kashawa and Haipa about the whereabouts of Muyongo; by that time it was
a well-known fact that Muyongo was in Denmark; he was questioned why he did not
go to Botswana; why he was not accepting George Simasiku on his chief to which he
replied that it was a traditional matter; they started to assault him with open hands,
with fists, by kicking him and by using sjamboks for about 15 minutes; Patrick
Liswani kicked him on his right cheek and Haipa kicked him on his left cheek, he lost
consciousness; when he woke up he was wet; he was taken to the office of the
Station Commander where the assaults and torture continued; the interrogations
continued; warrant officer Mukena told the other police officers to stop; on 7 August
he was taken to Katima Mulilo General Hospital; the Minister of Defence, Mr
Nghitima visited him in hospital and arranged for transport and he was flown to
Windhoek on 16 August 1999.
[559] In respect of the witnessess who testified against him and who had identified
him he stated that because he was a public figure it was easy for any one to identify
him. The accused testified that he did not know Mwisepi, saw him for the first time in
Grootfontein; that the witness had been couched; that what Mwisepi testified about
the Liselo meeting in 1998 was a reproduction of what he was told by the police; that
he was in the central committee which suspended Muyongo in September and
afterwards never shared a political platform with Muyongo; that parliament resumed
from 15 September to 18 November and it was impossible to be at two places at one
time; that he does not support secession; that he has no knowledge of a meeting
held at Ngwezi Community Hall; that on 4th September 1998 during a demonstration
the DTA members in Caprivi Region tried to express their unhappiness with the
manner in which Muyongo was suspended without giving him a fair hearing. The
accused explained that the phrase: ‘Muyongo is Caprivi and Caprivi is Muyongo’ was
a simple political quotation which means that Muyongo is enjoying support in the
Caprivi and it was a caution to the DTA Central Committee that the expulsion of
Muyongo may cost them loss of support.
[560] The accused referred to the record121 where Mwisepi testified that the accused
was not involved in the issue of seceding the Caprivi Region. The accused also
referred to the record122 where Mwisepi when asked who accompanied Muyongo to 121 P 789.122 P 612.
192
the Liselo meeting stated that it was Francis Sizimbo. The accused testified that
Chrisopher Siboli identified him in court because he was a public figure and because
of the yellow and green album. The accused testified in relation to the testimony of
Siboli that the CLA was formed in 1989 that it was a hectic year, there was no
SWAPO Government, UNTAG was here, there were elections, that he was not
aware of such an organisation, that the Republic of Namibia only came into
existence on 21 March 1990. The accused denied any knowledge about a meeting
where the acquisition of firearms was discussed and testified that in respect of the
report at a subsequent meeting, Siboli during cross-examination by Mr Kauta
testified that he never went to Angola; that Siboli was a ‘non-entity’ in the DTA; that
he never donated any money for the acquisition of firearms; that the only meeting he
addressed in 1998 at Lisikili was a meeting where he was in the company of DTA
Vice-President Phillemon Moongo and Mike Venaani, who was the Secretary
General; that warrant officer Popyeninawa never testified that he had addressed a
meeting where the topic was to secede the Caprivi Region and that Popyeinawa had
described him as an information gatherer; that he never attended a meeting at the
house of Leonard Ntelamo in 1997; that Leonard Ntelamo testified and denied
knowledge of such a meeting; the wife of Ntelamo also denied knowledge of such a
meeting; that he never invited Bernard Mucheka to a political meeting at his house;
that Progress Mulonga was one of his students; that Mulonga in his witness
statement stated that John Mabuku addresses a meeting at Kasheshe branch in
1998 and another meeting at DTA office addressed by Chris Mushanana; that the
witness substituted his name for the names of John Mabuku and Chris Mushanana
because John Mabuku and Chris Mushanana are not in court; that the witness
Mulongo conceded that John Mabuku addressed a DTA meeting at Kasheshe but
this was during 2000; that Mulonga had a hearing problem at school, had to sit in
front of the class; that he never met Mulongo at Zambezi Shell Service Station.
[561] The accused testified that according to the evidence of Insp. Goraseb during
cross-examination, his house was searched after his arrest and the police did not
find any documents; that no search warrant was presented in court for the search of
his house on 27 October 1999; that he was never informed of the intended search of
his house by the police; that he was not taken to his house before the search; that he
did not attended a meeting at the house of Muyongo during 1996 as testified by
Progress Lifasi Mibonda; that he knows Charles Mulate Lizazi as one of his students
193
at Simataa Secondary School in 1984; that he did not attend a meeting in 1997
addressed by Muyongo; that the UDP broke away from the DTA on 12 January
1999; that he did not speak to Brian Lubeile on 18 April 1999; that he resigned from
the DTA because of a situation of insecurity in the Caprivi Region after the death of
Victor Falali.
[562] During cross-examination by Mr Kauta, the accused testified that he knows
Leonard Ntelamo as one of his students in 1977; that he has never been to the
house of Leonard Ntelamo; that in 1998 there was no political party registered under
the name of UDP. During cross-examination by Mr Muluti the accused denied
sending John Samboma to Angola to acquire weapons from UNITA as testified by
Siboli. The accused was cross examined by My January on behalf of the State. The
accused testified that he was a member of the UDP from its foundation until it
affiliated to the DTA in 1987; that from 1987 the UDP was non-existent; that he
resigned from the DTA because of the state of insecurity in the Caprivi and because
his life as a former member of the DTA was in danger. The accused conceded that
the reason that his life was in danger was a new fact introduced by him.
[563] The accused was referred to a bail application in which Mr Lourens Campher
was the prosecutor. During the bail application he was asked if he was a member of
the UDP and he confirmed it. The witness replied that his answer must be seen in
context since he did not state when he was so a member. It was put to him that the
bail application at that stage referred to the present tense. The accused disagreed.
The accused was referred to the bail application in 2002 in which Mr Campher
prosecuted when he was asked how many meetings he had attended in the Caprivi
Region to which question he replied that he attended several meetings. The accused
replied that he does not know.
[564] The accused was asked whether he could recall that he gave that reply (ie
attending several meetings in the Caprivi Region) to which the accused replied: ‘ yes
from the time I entered politics up to the time of my arrest’. The accused was asked if
he could recall what he told the court why he attended several meetings. The
accused replied: ‘the question is too general’. The accused agreed that in that bail
application he stated that he attended several meetings in the Caprivi Region in
order to inform them (members of the public) about laws which had been passed in
194
Parliament. The accused agreed that it would be difficult to identify Mwisepi at a
public meeting. The accused when he was asked who were the executive members
in UDP stated: ‘ Albis Maswahu, Joel Mutonga, Patrick Limbo (Secretary General),
Gabriel Siseho, Gideon Matengu, himself, Muyongo (President), Cooks Liyoba (Vice-
President), Dunbar Mushwena (Treasurer). The accused testified that he knew
Stephen Mamili as a cousin, who came to the accused whilst the accused was in
Windhoek and informed the accused that he (ie Stephen Mamili) had been elected
as Secretary-General in 1994. The accused testified that no office bearers existed
during 1996, 1997 and 1998 that himself was not an office bearer during these
years; that the reason why there were no office bearers is because some resigned
and some died; that Cooks Mujoba resigned around 1992; that Stephen Mamili
informed the accused in 1998 that a certain Alfred Tawana was elected as Vice-
President of the UDP; that in 1999 there was no office bearers of the UDP.
[565] It was submitted by Mr July that the accused testified that during 1996, 1997
and 1998 there were no office bearers in the UDP, but in the bail application where
Mr Campher was the prosecutor there was at least one executive member namely,
Mr Cooks Mujoba as Vice-President. The accused testified that he agreed with the
constitution of the UDP at the time he was a member of the party and strove towards
the objectives of the UDP as contained in the Constitution. The accused testified that
one of the objectives of the UDP was that the Caprivi should be independent,
through peaceful means and negotiations with the Government of the Republic of
Namibia. The accused testified that when Muyongo came back from exile he was in
favour of the secession of the Caprivi Region and that Mr Dirk Mudge, Mr Matjila and
himself flew to Katima Mulilo where Muyongo was discouraged and Muyongo then
agreed to join the internal democratic process and that is why the UDP affiliated itself
to the DTA. The accused testified that he head for the first time about the secession
of the Caprivi after the attacks on 2 August 1999, on the radio.
[566] The accused was referred to Exh C 123 where the prosecutor Mr Kozonguizi
referred him to some documents bearing the logo of the UDP were found in his
house after a search by the police to which he replied: ‘ Yes, I know the documents
which were found in my house in a khaki envelope’. The accused replied that he was
not asked about UDP documents and that his answer was not in relation to the UDP
123 P 28.
195
documents. The accused was provided with a document and asked whether he had
previously seen a copy of such document to which the accused replied that he said it
during a bail application in 2002, but that he saw the original for the first time that
day. The accused denied that Mr Campher had said that the original documents
would be produced at the trial. This document has a title: ‘The Central Committee of
the United Democratic Party (UDP’ of Caprivi Zipfel’ and that amongst its resolutions
was the creation of the Caprivi Liberation Army (CLA). The accused replied that this
document is useless since no date appears on it.
[567] The accused was provided with a document which he identified as his original
letter of resignation from the DTA and also identified his signature.124 This document
was received as Exhibit EVP. The accused was referred to Hansard where it is
reflected that he was asked during a debate in Parliament if he as a member of UDP
had been consulted by Muyongo when Muyongo decided to secede Caprivi from the
rest of the nation. The accused replied that it was a correct reflection of what was
asked. It was submitted by Mr July that the testimony of the accused was that he
resigned from Parliament in February 1999 because of the security situation in
Caprivi at the time but in his bail application in 2002 (Exh. J4), he stated that his
resignation was because the management committee of the UDP in the Caprivi
resolved on 12 January to withdraw the United Democratic Party from the DTA. The
accused further testified that he himself decided to resign and that no organisation
decided that he needed to resign from Parliament. What is apparent is that, in
addition to the fact that there is a contradiction in respect of the reasons provided
why the accused had resigned from Parliament, is the evidence by the accused
himself that the UDP as a party was functioning and made a resolution that the UDP
should withdraw from the DTA. The UDP was in existence and not a non-existing
party as testified by the accused.
[568] The accused was confronted with the contradictory explanations as the
reason for his resignation and provided a meaningless reply. The accused was
asked whether he was aware of the fact that during December 1998 to January 1999
UDP was operational in Botswana. The accused replied on the negative. The
accused conceded that the President of the UDP, Muyongo, and the Secretary-
General of the UDP, Stephen Mamili were in Botswana at that stage. The accused
124 P 38637.
196
was referred to Exhibit ETC where the following appears in respect of 1 January
1999:
‘Meeting for 1999
UDP Day
Agenda: Report on Xmas reception, Review of year 1998 activities of the Party,
withdrawal of the UDP from the DTA, The way ahead of the Party, Party Portfolio,
Any other reasons.
The President welcome everybody with open heart. He said today we find ourselves
in Botswana for the simple reason we want to liberate Caprivi.
Gosping is bad one another. Division amongst us will take us nowhere
Members attended:
President Mr Muyongo
Chief Mamili
S.G. Steve Mamili
Mabuku John
Sizimbo Francis
Walubita Conrade
Samboma John
Lyonga John
Puleho Cletius
Kasimanzi Vincent
Mushwena Moses
Ndala Thaddeus
Mushandikwe Francis
Kachiolwe Geo
Mutorwa Chrispin’
[569] Exhibit ETC1 continues as follows:
‘Liberation of the Caprivi needs commitment which it total. The struggle can be long
and can be short. The people here in Kachisono are the leaders who will be accountable for
everything that will take place hope of the future of our case to liberate Caprivi. The
President emphasised that gossiping is hurtful and that he does not like it. He said that we
should work as brothers, as leaders. We should set example and lead by example. The
issue of tribal lines should not be tolerated amongst us. The question of being in prison is
197
still a living reality as long as we still report at the police every day. The infiltrators among our
people in Dukwe should be isolated when identified. The President also emphasised the fact
that we should have patience enough. A letter was written to the Manager of Kachisono
centre for the welcome and the arrangements for the Christmas reception extend to us.
Review of 1998. The year 1998 will be year to be remembered for a long time to time. Plans
to liberate Caprivi started in 1991 plus 1998 were intended to be a year of implementation.
Also in 1998 a group of soldiers was organised as Caprivi Liberation Army. Many things
happened such as the resignation of the President of the DTA leaving parliament and the
National Council. The struggle will and has advantages and disadvantages to liberation of
Caprivi. Will need a lot of sacrifice. 1998 has been a turning point in the liberation of Caprivi.
The party UDP worked very hard during the year 1998 to organise the people of Caprivi to a
case of liberation of the, or to the cause of Liberation of the Caprivi. A number of people
expressed themselves on the happenings of the year 1998. The delegation and
determination of the Caprivian people to liberate themselves from the Oshiwambo
Government. 2. Withdrawal of UDP from the DTA. It was agreed that we cannot liberate
Caprivi while the UDP is still affiliated in the DTA. The UDP is the vehicle through which we
will achieve independence of the Caprivi the president requested the meeting to endorse the
withdrawal of the UDP from the DTA. A resolution was taken to withdraw the UDP from DTA
with no opposition at all. All members available voted. Unanimously that was with effect from
1st January, 1999. 3. The way ahead. The UDP will not leave a stone unturned in the
process of liberating Caprivi from the Owambos. The President emphasised that it is to look
for ways and means including diplomacy and armed struggle. The president called upon the
people back home to double the efforts in addressing the problems. He also said they should
even go to the embassies in Namibia to sell our course. The president warned our people
should know that we are involved in a liberation struggle and not a picnic. The President
warned that we should check the ways we do our things. He called upon all members
present that they should have respect to one another. He further said we should avoid the
following leaders. Opportunism, gossiping and disunity amongst ourselves. We should be
serious with our case and mean liberate Caprivi at all costs come what may. In our liberation
the key one is the barrel of the gun. As a result our people at home will be on a high risk
being targets of our enemies and we should inform them. People at home should also work
hard, publicise our course, make meeting to inform them what is expected of them in our
struggle help the CLA in all possible way. Everybody should set herself/himself a goal and
what he/she is going to do for the Caprivi and its people. We should all focus on Caprivi to
achieve our mission. We should not be self-centered’.
[570] The accused replied that the minutes totally exonerated him, his name was
not mentioned, and he was not there. The minutes is proof that the UDP was a
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functioning political party even in exile. The accused testified that he was not aware
that the UDP was operational in Botswana. During cross examination a copy of a
press release (Exhibit EVR) was provided to the accused and asked whether his
signature appears on it. The accused replied: ‘It looks like my signature but it is not
my signature’. The letter of resignation appears on a UDP letterhead. The accused
stated that the signatures on Exh. EVR and Exh EVP are not the same. The
Constitution of the DTA on which the signature of the accused appears was handed
in and marked Exhibit EVU. The accused acknowledged that his signature appears
on this document. Two letters addressed to the Windhoek Prison and signed by
Mwilima (Exhibit EVW and EVX) were also handed into court. The accused admitted
that his signature appears on Exh. EVP and that it appears to be his signature on
Exh. EVR, and admitted that his signature appears on Exh. EVU (DTA Constitution).
In respect of the signature on Exh. EVR (the press release) it appears to me to be
similar to the signatures on Exhibits EVP and EVU, but I am not prepared and not in
a position to state that it was definitely the accused person who had signed Exhibit
EVR.
[571] The accused was referred to a bail application (Exh. J5)125 in which he was
asked whether he was still an office bearer of the UDP ‘at that stage’. This stage
referred to the stage when the accused tried to revitalize the UDP. The accused
explained that the UDP Congress was supposed to have taken place in 2000, after
six years according to the constitution, but because no Congress took place
‘automatically those other members who were previously serving in the Central
committee or in the executive, could still continue up to the time when the Congress
was going to be held’. The accused confirmed (twice) that he was considered an
office bearer of the United Democratic Party. The accused was asked 126 to explain
that if he were not a member of the UDP how it was possible to be an office bearer
to which the accused replied as follows:
‘. . . I was very clear from the beginning that I was a member of the United
Democratic Party, a card carrying member of the United Democratic Party. I think I was very
clear on that. Up till today? . . . My Lord, My Lord yes, I haven’t tendered any resignation’.
This bail application was heard on 27 September 2002.
125 P 574 of J5.126 P 576 – 577 of J5.
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[572] The prosecutor (Mr Campher) then pointed out to the accused that in a
previous bail application he had denied being a member of the UDP. The accused
replied that the answer was with reference to the UDP in Botswana. The accused
was then referred to the record of the previous bail application where the following
was posed:
‘. . . you are making reference to “my party”. Which party is that?. . . United
Democratic Party, being a member of the DTA. Mr Mwilima are you still a member of this
party? . . . No.
Why not? What happened?’.
[573] The reply given by the accused was inconsequential. The accused was
referred to the bail application during 2002 and was asked whether he was still a
member of the UDP. The accused denied that he was a member. The accused was
confronted with his evidence in the bail application that he testified that he was a
card carrying member of the UDP whilst in court he testified that he never had a
UDP card. The accused maintained that he never had a UDP card. The accused
denied that the withdrawal of the UDP from the DTA did not influence his decision to
withdraw from parliament.
[574] The accused was referred to his testimony that he conducted only one
meeting during the year 1998 and that it appears that he conducted several
meetings to which the accused replied that he said that he had conducted several
meetings from 1985 when he joined parliament until the time of his arrest.127 The
accused further testified that he testified in the bail application of 2002 that he
conducted several meetings from 1985 until February 1999 when he resigned.128
This is a contradiction, the first period referred to is a longer period that the second
period- the accused was arrested during August 1999.
[575] Baxtor Kulobone testified on behalf of the accused. According to his testimony
he was employed from 2000 to 2007 as human rights monitor in Katima Mulilo. A
person by the name of Progress Mulonga visited their office and he spoke to the
witness and Mulonga was requested to put his complaint in writing. Mulonga
submitted a piece of paper the next day written in the Silozi language to the effect
that this person was abused by the police ie the investigators in the case of High
127 P 38 712.128 P 38726.
200
Treason. During cross examination this witness stated that he knew Progress
Mulonga but conceded that he could not testify whether Progress Mulonga who
testified in court is the same person who visited his office. The witness was referred
to the fact that Mulonga denied the contents of the document presented in court. The
witness could not controvert that evidence. The witness testified that he never
investigated the allegations filed by this person.
[576] The accused during cross-examination handed in copies of identity
documents (Exhibit EVT1, EVT2 and EVT3) in an attempt to show that there are a
number of Geoffrey Mwilima’s in Namibia. One, Exh. EVT2 is a copy of the identity
document of the accused. The other two persons were not parliamentarians. The
evidence of the witness called by the accused does not assist him in his defence at
all, and is a belated attempt to have the evidence of Mulunga excluded on the basis
that he had been tortured by the police. The accused, like all the other accused
persons before court, never gave a plea explanation. His defence is a denial of
incriminating evidence against him. The explanation by the accused why he was
identified by witnesses, was because he was a public figure. This was not put to the
State witness.
[577] The accused was a witness who contradicted himself on a number of
occasion in particular his connection with the UDP which in my view clearly pointed
to the fact that the accused was an untruthful witness. The UDP, from the evidence
adduced, played a pivotal role in the attempt to secede the Caprivi from Namibia.
The Central Committee of the UDP resolved to create the CLA, the fighting wing of
the party (Exhibit EVS) in which its aims and objectives gravitate towards the
secession of the Caprivi Region from the rest of Namibia by an armed struggle, a
‘liberation struggle’ as reflected in that document. The accused from his own
testimony in a bail application was an office bearer of the UDP (though this was
subsequently denied). There was no explanation for this contradiction. The accused
attempted to show that he was not involved in the activities of the UDP and feigned
ignorance in respect of the issue of secession. However, the accused testified in a
bail application that he attended several meetings (though he denied that he
attended those meetings during the year 1998, save one meeting). The issue of
secession was on the lips of everybody in the Caprivi except those of the accused.
201
[578] Amongst the documents seized during a search of the house of the accused
were documents reflecting the aims and objectives of the CLA, and letterheads of
the UDP. Even though this search was done in the absence of the accused, his wife
gave permission for the search by the police officer and was present during the
search. The wife is a person who was entitled to give such permission in the
absence of the accused. It was never denied that the documents entered in Pol
7/330/1999 were not so seized by the police officers. The wife of the accused was
also never called to dispute that she gave permission for the search. In terms of the
provisions of s 22 of Act 51 of 1977 one of the instances where a premise may be
searched without a search warrant is where permission was given for such a search
and I have indicated that the wife of the accused could have given permission to
search the premises. This court was referred to the testimony129 of Chief Inspector
Goraseb on the day the accused was arrested by Chief Inspector Goraseb at the
house of the accused, and where the Chief inspector Goraseb was asked, during
cross examination, whether he had any knowledge of anything which was found in
the house of the accused person, to which the witness replied that he did not have
any knowledge of anything which was found in the house of the accused. It was
never the testimony of this witness that nothing was found at the house of the
accused as testified by the accused, and the suggestion that anything found
subsequently must have been ‘planted’130, is not justifiable.
[579] The accused was not only an untruthful witness but he was also evasive and
tried to usurp the function of this court by comparing and evaluating evidence of
other witnesses. The only reasonable inference to be drawn from the documents
discovered in the house of the accused, the testimonies of the State witnesses (even
though not above criticism), and the untruthfulness of the accused, is that he was
actively promoting the secession of the Caprivi Region from the rest of the Republic
of Namibia as testified by the State witnesses. I have alluded to the fact that the
evidence of the State witnesses is not above criticism. So far example the testimony
of Mwisepi that he could not during cross-examination remember what the accused
had allegedly said at the Liselo meeting whilst he had during his testimony in chief
explained what was allegedly said. Also in respect of the testimony of Siboli who
testified that the accused was a member of Kopano Ya Tou but failed to identify the
accused as a member of Kopano Ya Tou. Similarly, the testimony of Mulungo where 129 Given during a trial-within-a-trial.130 P 30917.
202
he testified that the accused had told him at Shell Filling Station that the accused
had informed him that the accused was taking a number of individuals to Angola.
This witness conceded at one stage that it was a conclusion drawn by himself but
later testified that the accused had informed him that the purpose of the journey was
for military training in Angola. Those parts of the testimonies must be approached
with caution. The evidence of the accused does not exclude the fact that he had
attended public meetings in the Caprivi Region. The accused is a person who
admitted that he wanted to revive the UDP. This is the same party who established
the CLA, which in turn was responsible for the attacks on Katima Mulilo. Although
the accused testified that his aim was in order to participate in a democratic process
on order to re-enter parliament, I am of the view that this explanation is self-serving.
[580] The evidence viewed as a whole in my view establishes the required hostile
intent and overt acts beyond reasonable doubt. The inference is further inescapable
that the accused had prior knowledge of a conspiracy to secede the Caprivi from the
rest of Namibia and that he failed, especially as a former parliamentarian, to inform
the authorities about it.
Adour Mutalife Chika (accused no. 2)
[581] Oscar Mwisepi identified the accused as someone whom he had met in
Botswana. George Alufeya Sizuka testified that he had been to Botswana during the
year November 1998. During July 1999, he returned to his village Gungwe. Whilst at
his village, one Rodwell Squeeze Sihela arrived there in the company of Adour
Mutalife. They asked them (ie the witness and his brother John Libuku) to
accompany them to Ngweze in order to look for ‘piece work’. The witness refused.
Subsequently, on a second occasion, they said: ‘Let us go and join our friends so
that we can cut the Caprivi Region’. On this occasion he was also with his younger
brother John Libuku. The witness testified that he refused. The witness testified
about a gunbattle on 2 August 1999. That day, he was at his village about one
kilometre from Katima Mulilo, he could hear it. The police arrived about 06h00 –
07h00 and arrested Rodwell Squeeze at his parents’ residence and also arrested
Adour Mutalife. They were found in the courtyard. Prior to their arrest, he saw them
but did not speak to them. They looked dirty and it appeared that they were
frightened. Their clothes were soiled with dirt. They had something around their
necks, some fibre. The witness testified that he knew Robert Sihela as his cousin.
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Adour Mutalife is not related to him. This witness identified Adour Mutalife as
accused no.2 in court and Rodwell Sihela as accused no.30. Adour Mutalife was
easily identifiable on 17 October 2007 by this witness when he gave his evidence –
in-chief. On 18 October 2007 counsel requested a re-identification. The witness
failed to identify Adour Mutalife.
[582] The record reflects that the second time the head of the accused was bald
and that he wore spectacles, whereas the previous day hid head was covered with
hair and he did not wear any spectacles. During the judgment of this Court in the
application in terms of s 174 of Act 51 of 1977, I found that the witness had correctly
identified the accused person since there was no suggestion at that stage when
Adour Mutalife was pointed out, that it was not accused no.2 before this Court. I shall
for the purpose of this judgment accept the same.
[583] During cross-examination, it was put to the witness that the accused was not
arrested on the day as testified to by the witness. The witness replied that the
accused ‘was arrested on that very day’. It was put to the witness that the accused
never spoke to him. The witness confirmed that the accused spoke to him.
[584] John Libuku testified that he resides at the village Nyanda Nyanda in the
Gunkwe area, about 15 km away from Katima Mulilo. He testified that he was in
Botswana since he had been told by one Chrispin Mandoile that in Botswana he
would get military training. He testified that he boarded a vehicle at Engen, Shell
Filling station. Rodwell Sihela, his uncle, was amongst those who boarded the
vehicle. They departed for Masokotwane and thereafter left on foot for Botswana.
After his return during July 1999, Chika Adour Mutalife and Rodwell arrived there
and informed them to go to town in order to prepare militarily for a fight in order to
get Caprivi (their nation). He testified that George Sizuka was with him at that stage.
They were requested twice and were told that the Government would be fought
against. After this discussion, Rodwell and Adour Mutalife returned to town. The
witness testified that the two requests were made on two different days.
[585] On the 2nd of August 1999, he saw the two young men in the village and they
appeared to be soiled with dirt. He testified that he saw a ‘black thing’ around the
neck. It is not clear around whose neck this ‘black thing’ was seen. The witness
204
testified that they (ie Rodwell Sihela and Adour Mutalife) said that they went to fight
at the police station, that the fight did not last long because they were few and ran
away from there.The witness testified that not many days passed after that day when
the police arrived at the village and ‘picked them up’.He knew Rodwell Sihela as a
cousin and Adour Mutalife as a friend of Rodwell. This witness identified Rodwell
Sihela as accused no.30 but failed to identify Adour Mutalife. During cross-
examination by Mr Neves, the witness testified that he was unable to provide the
dates during the month July when they had those conversations since he had
forgotten the dates. The witness testified that the next time he saw those two
individuals was during August. The witness denied that he was ever shown and was
ever explained where the accused would be seated and testified that it was the first
time for him to be in the courtroom.
[586] The accused testified that he was arrested on 10 August 1999 at Nyanda
Nyanda village in Gunkwe area in the Caprivi Region. He was then 19 years old. He
testified that he was arrested at the courtyard of his aunt, the mother of his cousin,
Rodwell Sihela, accused no.30. The accused testified that he was questioned and
thereafter assaulted at the courtyard. He was then taken into the bush and was
again assaulted. Thereafter, he was taken to the police station in Katima Mulilo
where he was put in a room in which there was a corpse. After a few minutes, he
was taken to Mpacha military base and flown to Grootfontein where he was kept in
solitary confinement until he was taken to court on 23 August 1999. The accused
testified that he left for Botswana on 12 November 1999 when he was 18 years old
for educational purposes and stayed in Dukwe. On 13 July 1999, he returned to
Namibia through repatriation. The accused testified that he had no political affiliation
at the time of his arrest.
[587] The accused testified that the witness George Sizuka alleged during Sizuka’s
testimony that the conversation took place during the year 2002 at a time when he
(ie accused) was already in custody for 3 years and that the evidence of this witness
in that regard must be false. The accused testified that no other witness identified
him in court. It must be stated at this stage that the evidence by Sizuka was that he
had a conversation with the accused during August 1999 and not during 2002 as
testified by the accused. The accused was mistaken in respect of this point. The
accused testified that he did not know George Sizuka and that on the day this
205
witness had identified him, he did so even before the procedures were explained to
this witness and this he found strange since from the testimony of this witness he
met the accused only on two occasions in 2002 when he (accused) was in prison. It
is correct that the witness testified that he had seen the accused previously only on
two occasions. The accused further explained that he sat next to the only female
interpreter when he was identified and that it was easy for anyone to have told the
witness that he was seated next to the female interpreter. This was however never
put to the witness when he identified the accused on the first occasion.
[588] During cross-examination, the accused admitted that he left Namibia through
an ungazetted border crossing into Botswana. He testified that he pleaded not guilty
to the charges because Minister Jerry Ekandjo addressed them in Botswana and
asked them to come back to Namibia and that the Minister had indemnified them
from prosecution. The accused admitted that he pleaded not guilty to all the charges
and put the State to prove each and every allegation and at that stage had never
mentioned about unlawfully exiting the country, neither did he testify about it in his
evidence-in-chief. The accused testified that prior to his arrest he only knew Rodwell
Sihela. The accused admitted that during his evidence-in-chief he never testified
about the charges relating to a demonstration in or near a court building. The
accused testified that he was put in a room in which there was a corpse in order to
instill fear in him, because a police officer told him that he would be killed like that
person. The accused testified that on 10 August 1999, he was arrested together with
Rodwell Sihela.
[589] The accused confirmed that he was asked during his evidence-in-chief when
was the first time that he had appeared in a court of law and he said 23 August 1999.
It was then put to the accused that he was convicted on 19 January 1998 to which
the accused replied that he would not recall that. He was asked whether he could not
recall that he was given a suspended sentence that day and the accused replied in
the affirmative. The accused was asked when he had changed his appearance when
the witness was asked to re-identify him. The accused replied that it was pure
speculation since he had never changed his appearance. The accused was asked
whether the testimony of a witness (a police officer), who had testified to that effect
was incorrect, and the accused confirmed it. The accused however conceded that
the evidence of the police officer was never challenged in court to the effect that he
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had changed his appearance. The accused explained that it was not challenged
because it was pure speculation.131
[590] The accused was asked whether it was not pure speculation on his part that
the witness Sizuka had referred to the year 2002. The accused was adamant that
the witness referred to the year 2002 and referred the prosecutor to a specific page
in the record in support for his evidence that reference was made to the year
2002.132It appears from the record that the witness was asked during cross-
examination by Mr. Kachaka on which date he claims to have heard from Rodwell
Sihela about the cutting of the Caprivi to which the witness replied that he does not
know the date. The witness was then asked during which year and the witness
replied 2002. When asked what he heard in 2002, the witness replied that Caprivi
should be cut. The witness replied that he was sure about the year. After Mr Neves
cross-examined this witness there was no re-examination by Mr January. This
explains the reference to the year 2002 by the accused person. The witness
however during his evidence-in-chief referred to the year 1999. It is logical that the
witness could not have heard about the cutting of the Caprivi from either the accused
or Richwell Sihela since both of them were in custody by 2002. This witness was
clearly mistaken about the year 2002 during cross-examination by Mr Kachaka.
[591] It was put to the accused that he was totally disregarding the evidence-in-
chief of that witness. The accused disagreed. The accused testified that from 31 July
1999 until 8 August 1999 he stayed with his sister in her house at New Look, Katima
Mulilo, that he was unemployed and did nothing at the house at his sister. On 8
August 1999 he left for his aunt’s place in Gunkwe about 40 km away from Katima
Mulilo. On 9 August 1999, he was at Gunkwe, doing nothing. On 10 August, he was
arrested at his aunt’s place, Gunkwe area. The accused testified that he never heard
of the UDP and never heard about the issue of secceding the Caprivi Region. The
accused testified that until November 1998, he had never heard about a prominent
politician and a chief who had gone to Botswana. The accused testified that until the
time that he went to Botswana he had never heard that there was an exodus of
people to Botswana.
131 P.38390 - 38391132 P. 19478
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[592] The accused testified that he met Oscar Mwisepi in Dukwe, but that he does
not know Lascan Sikosi. The accused testified that no witness testified that he was
soiled with dirt or had fibres around his neck and that the Adour Mutalife Chika
referred to by the witness John Libuku is not him. The accused agreed that he did
not testify about that because the witness did not refer to him. The accused
conceded that he did not testify in his evidence-in-chief that he was not involved in
the attack on 2 August 1999 since no witness had testified to that effect. The
accused testified that the witness Sizuka had testified that he (Sizuka) only came to
know him (accused) in 2002. This is however not supported by the record. The
accused conceded that counsel never cross-examined the witness in respect of that
testimony because it was obvious that he (accused) was in prison. The accused
testified that he heard testimonies in court that the exodus to Botswana was on the
lips of everyone, especially after 26 and 28 October 1998 but could not explain how
this could have been put to witness. The accused replied that this was never put to
the witness George Sizuka who had identified him and the best person to answer
this was counsel himself.
[593] The accused testified that when he left for Botswana for education, he had his
last exams results with him, went there without a study permit, without a passport,
did not know the institution where he would be studying, that it was enough for him
that his friend told him that there was ‘education in Botswana’. The accused denied
that he went to Botswana in order to fight for the liberation of Caprivi by military
means. The accused admitted that his goal for going to Botswana was not achieved
because he did not attend any classes but denied that he, like so many others like
him, had been fooled in this regard. The accused admitted that he never made any
inquiries about when he would receive this education in Dukwe.
[594] The accused, when confronted with what he had said according to the State
witness, replied that John Libuku never said that he was referring to him. The
accused when confronted with what was said about fighting the Government of
Namibia replied that John Libuku never referred to him, ie that the person he was
referring to as Chika Adour Mutalife was accused no.2. The accused testified that he
cannot dispute the testimony of John Libuku namely that Libuku was recruited to be
part of the attack on Katima Mulilo. The accused disputed that Libuku was recruited
by Rodwell Sihela and Adour Chika Mutalife.
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[595] It was submitted by Mr. July that the date of the arrest of the accused is not
material to the charges in the indictment. I agree that not much turns on the date of
his arrest. It is common cause that the accused was arrested only once at the
courtyard of his aunt at Nyaunda Nyanda village in the Gunkwe area together with
Rodwell Sihela. It is further common cause that he had been arrested after the attack
on 2nd August 1999. It was further never put in dispute that two State witnesses ie
George Sizuka and John Libuku witnessed the arrest of two individuals ie accused
no.30 and Adour Mutalife Chika.
[596] Mr Neves in his heads of arguments raises a suspicion about the ability of the
witness George Sizuka to be able to identify the accused in one occasion and
thereafter failed to identify him on the second occasion. I have referred to this part of
the record hereinbefore and do not wish to repeat why this court accepted the
identification of the witness Sizuka. The testimony of the police officer Japhet Ndadi
Ashipala was not disputed that the accused had a haircut and was wearing
spectacles on the day the witness was asked to re-identify him. Mr Neves tried to
show during the cross-examination of this witness that if Sizuka had known Adour
Mutalife, he should have been able to identify him on the second occasion as well.
One should however not lose sight of the fact that the witness had seen the accused
only on two occasions, years before his testimony and that to identify a person in a
group of more than 120 individuals is not the same when a group consists only for
example of 10 individuals. The witness Sizuka during cross-examination denied that
he was ever shown or was ever explained where the accused would be seated. The
witness further denied that prior to his testimony a photo of the accused was shown
to him. The testimony of the witness was not disputed. When Mr Neves during cross-
examination put it to the witness that he was very quick to point out the accused the
previous day, the witness replied that by that stage he had already seen the
accused.133
[597] The testimony of John Libuku that the accused and Rodwell Sihela had told
him that they went to fight at the police station and that the fight did not last long,
since they were few and ran away was never disputed by the accused during cross-
examination. The accused also never denied this evidence during his evidence-in-
133 P.19493/4
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chief and this evidence stands uncontradicted. The reply by the accused that the
witness never referred to him Adour Mutalife Chika, accused no.2, will hereinafter be
considered.
[598] It is common cause that the accused was arrested, after the attack, on 10
August 1999. The State did not dispute the date of his arrest. It was never suggested
at any stage that the two State witnesses George Sizuka and John Libuku did not
observe their arrest by the police. From the testimony-in-chief by the witness George
Sizuka, it is clear that he and his brother John Libuku had conversations with the
accused and accused no.30, prior to the attack on 2 August 1999. The testimony of
Sizuka that he heard about the issue of the cutting of Caprivi from Richard Sihela
during 2002 is a conspicuous error since at that stage both the accused and Richard
Sihela (accused no.30) were in custody, they were arrested on the same day. It was
thus very opportunistic of the accused to exploit this apparent mistake with an
argument that he could not have had conversations with the witness during 2002
because he was in custody.
[599] To return to the issue of identification, the following needs to be said: the
testimonies of George Sizuka and John Libuku corroborate one another regarding
the vein of the discussions with accused no.30 and Adour Mutalife Chika prior to the
attack on Katima Mulilo. The accused argued in court, because John Libuku did not
identify him in court, that the Adour Mutalife Chika mentioned by the witness was
someone else, not accused no.2. The fallacy of this argument is that it disregards his
positive identification by the witness George Sizuka and the testimonies of the two
State witnesses that they were together (in each other’s company) when they had
these conversations. Thus, even if John Lubuku failed to identify Adour Mutalife
Chika, George Sizuka did. There is furthermore no evidence to the effect that a third
person had accompanied accused no.30 and the accused person. The only other
person present with Richard Sihela was Adour Mutalife Chika, and this Adour
Mutalife Chika was identified as accused no. 2 in court. Therefore, when John Libuku
testified about an Adour Mutalife Chika, he could only have referred to accused no.2.
[600] The evidence of the accused that he went to Botswana for the purposes of
education is highly unlikely in view of his answers given during cross-examination in
this regard. The accused was an evasive and argumentative witness who once he
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had latched onto his ‘2002- argument’ stuck to it. Similarly, his argument that the
Adour Mutalife Chika referred to by the State witnesses was not accused no.2, was
adhered to until the end of his cross-examination.
[601] If one has regard to the uncontroverted evidence in respect of the contents of
a conversation after the attack in respect of a fight at the police station, the
appearance of the accused person (ie was soiled with dirt), the conversations prior to
the attack, the bare denials by the accused and the fact that the accused was a poor
witness, compel me to conclude that the accused participated in a conspiracy with
hostile intent and with the aim to secede the Caprivi from Namibia by violent means
or at the very least had knowledge thereof and failed to alert the relevant authorities.
Kingsley Mwiya Musheba (accused no.9)
[602] Lemmy Kasoondaha Haufiku, a member of the Namibian Defence Force
(NDF) who held the rank of Captain during the year 1999 testified that he was
stationed at Mpacha Military Base as an interrogating officer and was in charge of all
captured materials of the ‘enemy’. On 2 August 1999, he was asleep when he heard
the sound of an assault rifle being fired and the sound of a bombshell. He took his
AK47 and went to investigate and established that the sound came from the
quartermaster. He met some of his colleagues and subsequently there was an
exchange of fire with unknown persons. When the firing ceased, they searched the
area and captured ‘four enemies’. Those persons were taken to the interrogation
room where he interrogated them. One of these persons was identified as Raphael
Lifumbela. The other three identified themselves, on his request, as Silvester
Ngalaule, Musheba Mwiya and Christ Ntaba. Raphael Lifumbula was requested to
identify some of the enemy that had been killed. Lifumbela identified three bodies as
Chizza, Albrin Mwabi and Herbert Muketela. They also seized material which were
found next to the bodies and around enemy positions. These included a military bag,
a military sleeping bag, various other materials, as well as a list of names, an Ak47
of Chinese origin with 17 rounds of live ammunition, a pistol machine gun, 60 mm
mortar, a pipe and also a motor shell. All these materials were handed in at the
police station pending an investigation.
[603] He testified that a person holding the rank of Captain in the NDF is a
commissioned officer. This witness further testified that he was assisted during the
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interrogation by Corporal Libebe who acted as an interpreter, interpreting from Lozi
to English. He testified that Raphael Lifembela was identified by Corporal Libebe
because he recognized him. He testified that those captured were interrogated
separately (one by one). During cross-examination, he testified that after they had
interrogated those persons who had been captured, they were kept in the
interrogation room and later that morning handed over to members of the Namibian
Police Force.
[604] It was put to the witness that he testified about an event he had not witnessed
personally and that a report was made to him. The witness denied this. It was further
put to the witness that there is no occurrence book that will show that on 2 August
1999 at around 10h45, he had handed over to Inspectors Theron and Karstens
prisoners of war. The witness replied that the question should be directed at
Inspector Karstens. The witness was directed to his witness statement which did not
mention that such a handover took place. The witness replied that he mentioned it to
the officer who took down his statement.
[605] Kennedy Muhisami Teyeho testified that one Kingsley Mwiya Musheba
attended a meeting at Kahenda during the year 1998 during which seccession was
discussed. This witness failed to identify Kingsley Mwiya Musheba in Court. Boyd
Nasilele Mambo testified that he was on a GRN Tata truck driven by Fabian
Simiyasa on 1st August 1999 to Makanga, that Kingsley Musheba went with him from
Makanga to Mpacha military base. This witness was unable to identify Kingsley
Musheba as one of the accused persons before court. Johnny Katanga Shapaka
testified that on 2 August 1999, he was employed by the Namibian Defence Force
and held the rank of major. At that stage, he was a company commander and the
acting commanding officer of Mpacha Military Base. At about 03h00, he was awoken
by a blast. He investigated and encountered soldiers outside the building who called
him. He observed a dead person under an orange tree, two further bodies were
discovered. In the vicinity of these bodies, they found a 60 mm mortar, two shells of
RPG7, about three 60 mm shells. He took those weapons to the duty room. He left in
the company of a driver in a Caspir and proceeded in the direction of the airport
where he heard the sound of gunfire and then returned to a roadblock. When he
returned, he was informed that three rebels had been captured and he went to the
conference hall in order to see them. He subsequently received reports about
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incidents at the NBC and at the police station. Eight of his soldiers were injured. He
was then informed that the captured rebels were Raphael Lifumbela, Sylvester
Ngalanle, Mushaba Mweya and Chris Ntaba. He was subsequently informed that
three soldiers had been killed at the shopping centre.
[606] The witness was referred to Exhibit Q (compiled by D/Sgt D.J.Mouton) photo
31 and testified that the person on the photo looked like Raphael Lifumbela. The
witness was shown photo 32 and stated that that individual was also captured and
that he knew him. The person on photo 33 was identified to have been together with
Raphael Lifumbela. The witness was shown what was referred to as a deployment
list which indicated the targets of attack written on two sheets of paper as well as
names of individuals. These two sheets of paper were received provisionally as
exhibits and marked Exhibits DAY and DAZ. The witness also testified about eight
persons who had been apprehended at Mpacha village and brought to Mpacha
Military Base.
[607] During cross-examination by Mr. Neves, the witness was asked whether he
could exclude the possibility that the soldiers could have been at Cowboy compound
in Ngweze and the witness replied that he could not confirm because the soldiers
were on patrol and scattered all over the town. The witness was also asked about
the period of time that he had spent with the four captured rebels and replied that he
could not tell the exact time which he had spent with them. It was never during cross-
examination put to this witness or to Haufiku that the accused was arrested at
Cowboy compound in Katima Mulilo.
[608] The accused testified that he was born in Kayenda area in the Caprivi Region
and was arrested on 2 August 1999 in Cowboy (Compound) Katima Mulilo. Prior to
his arrest, he was resting at his brother’s house and heard the noise of fire arms until
sunrise. In the morning, the shooting continued. Between 10h00 and 11h00, soldiers
and police officers arrived there at Cowboy Compound. His name was asked and he
responded by saying: ‘Kingsley Mwiya’. His clothes were then torn, he was
blindfolded, his hands and feet were tied, he was assaulted and thrown into a vehicle
and was transported to place which he later identified as a base for soldiers. Photos
were taken and he was again assaulted. The next day, he was flown to Grootfontein.
He testified that he was never in Dukwe, had no political affiliation and attended no
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political meetings. The accused denied that he was arrested at Mpacha military
base.
[609] During cross-examination, he testified that the name he provided was
‘Kingsley Mwiya Musheba’. The accused testified that he did not know who arrested
him and was not aware of anyone else who had been arrested with him. He testified
that he only came to know that other persons had been arrested when they went to
court on 23 August 1999 and did not know any of his co-accused. The accused
testified that he only knew the persons at the village where he used to reside but did
not know anyone in the rest of the Caprivi Region. The accused testified that he did
not know Raphael Lifumbela, Sylvester Ngalaule, or Chris Ntaba; does not know any
person with the surname of Mwilima; that he does not know Mwiya Musheba. The
accused testified that he complained to the Legal Assistance Center (LAC) of being
assaulted. The witness testified that whilst he was in Grootfontein, a person in
civilian clothing who appeared to be a police officer from the disciplinary committee
came to him and he laid a complaint of the theft of his wallet but did not inform this
individual about any assault perpetrated on him. The accused testified that he did not
know about a shooting incident at Mpacha military base, but does not dispute that 4
persons had been arrested at Mpacha military base.
[610] The accused was referred to the cross-examination by Mr. Kachaka where
the witness Johnny Shapaka was referred to Exh. Q and photos 31, 32, and 33 and
where Shapaka testified that the persons depicted on those photos were at Mpacha
military base on 2 August 1999. The accused was then asked whether Shapaka did
not make an identification in respect of photo 32. The accused disagreed. The
accused agreed that he had previously in respect of the same photo 32 made an
identification of himself. The accused said:134 ‘Yes, I said the face it is me who is
there’. The accused however took issue with the name Mwiya Musheba stating that
his name is Kingsley Mwiya Musheba. The following was put to the accused during
cross-examination:135
‘What I am saying on the face, on the person reflected in this photograph you did an
identification, correct?...
That is correct, My Lord.
134 P.38822 lines 10-11.135 P.38822 lines 17-23.
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Now, the same that Shapaka did identifying a person from the face on the appearance do
you agree with me that he also made the same identification that you did forget the name?...
I do not see it that way, my Lord.’
[611] The accused was asked whether he could dispute the evidence of Shapaka
that the person on photo 32 was captured at Mpacha to which the accused replied
that he disputes it. The accused was asked whether this was not disputed at the
stage when Shapaka testified and the accused said something to the effect that his
lawyer had stated that the witness (Shapaka) did not ‘pinpoint’ him. This obviously is
a reference to the testimony of Shapaka when asked to identify persons in court
mentioned by him during his testimony, he (ie Shapaka) did not do so. The accused
confirmed that the person on photo 32 is a client of Mr.Neves. It was further put to
the accused that on the timeline that the shootings took place around 03h00 and
persons were captured about 05h00, none of the captured persons could have been
in Katima Mulilo at that stage. The accused replied that he did not know because he
was not there, ie amongst those arrested at Mpacha military base.
[612] The accused testified that he consulted with a person attached to the LAC in
order to claim compensation for the assaults perpetrated on him by the soldiers and
that he provided the required information to that effect namely that he was arrested
at Cowboy and was assaulted. The accused was however unsure whether he had
signed any document. Exhibit EMG is an affidavit deposed to by one Mwiya Kingsley
Musheba on 17 July 2001 at Grootfontein prison in which the deponent describes
how he was arrested. It is stated that he was arrested on 2 August 1999 at about
10h00 at the BP Service Station in Katima Mulilo while he was waiting for a lift to his
village Kaenda, by Captain Henry Mwilima (a Captain in the NDF), sgt Evans
Simasiku, Patric Liswani, Haipa and sgt Mbinge and was assaulted. The accused
denied that it is his signature which appears on the affidavit.
[613] The accused during cross-examination denied that prior to his arrest he had
known the aforementioned officers. Exhibit EWE is a letter from the LAC in which
the Chief of the Namibia Defence Force is informed of a claim for damages by
Kingsley Mwiya Musheba in respect of an assault perpetrated on him. In this letter it
is stated that the accused was arrested on 2 August 1999 at his house in Kayenda
village by members of the police force unknown to him. Exhibit EWF is a copy of a
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combined summons in which the plaintiff is reflected as Kingsley Mwiya Musheba as
plaintiff and the Minister of Home Affairs and Minister of Defence cited as first and
second defendants respectively. Claim A relates to an alleged assault perpetrated on
him at Mpacha Military Base and Claim B in respect of wrongful and unlawful arrest
by members of the Police unknown to the plaintiff during the morning of 2 August
1999 at his house at Kayenda village. Attached to the combined summons was a
power of attorney signed by one Kingsley Mwiya Musheba on 6 June 2000.
[614] The contents of Exhibits EWF and EWE are similar in so far as it relates to
where the deponent was arrested. The accused does not exclude the possibility that
he had indeed signed Exh. EWF, he said he does not know if he had signed it, but
denied that the signature on the power of attorney was his signature. When the
accused was asked the amount that was claimed for damages, he stated the amount
of N$550,000.00. The amount claimed in Exh.EWF in respect of Claim A is
N$300,000.00 and in claim B, N$250,000.00. The place in Exhibit EWF where, in
terms of the particulars of claim, he was arrested, was Kayenda village whereas in
his testimony it is stated as Cowboy compound in Katima Mulilo. In claim A, it was
alleged that the plaintiff at Mpacha Military Base, near Katima Mulilo, found himself
lying on the floor, blindfolded, handcuffed and his legs tied ‘from approximately 2
August 1999 until sometime on 4 August 1999’. The accused however testified that
he was flown to Grootfontein on 3 August 1999. Nowhere in Exhibit EWF is it
mentioned that he was arrested at Cowboy Compound in Katima Mulilo.
[615] It is common cause that the accused was arrested only once. If he had been
arrested at his house in Nayenda village, then it follows that his testimony that he
was arrested at Cowboy Compound must be false. The question which needs to be
answered is: Why would a person tell a lie in respect of the place where he was
arrested? The answer, in my view, would lie in the inescapable conclusion, namely
to admit that he had been arrested at Mpacha military base, he would have no
defense against the charge of high treason.
[616] The accused by testifying that he was arrested at Cowboy Compound and not
at Mpacha military base (the scene of the crime) actually raises an alibi as his
defense. The accused pleaded not guilty and never disclosed his defence of an alibi
as he could have in terms of s 93 of Act 51 of 1977. The defense of an alibi was also
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not disclosed during cross-examination. The defence of an alibi was first raised at a
late stage when the accused gave his testimony-in-chief. It is trite law that the onus
is on the State to disprove an alibi and no onus on an accused person to prove his or
her alibi. The ultimate test is whether there is proof beyond reasonable doubt that the
offence has been committed, and a court in considering this onus may take into
account that the accused had raised a false alibi. In S v Zwayi136, Ebrahim AJ said:
‘It should be apparent that if the Court is properly to assess whether there is a
reasonable possibility of the alibi being true, the details thereof should be provided since in
its absence the accused’s defense is simply a bare denial. In my view, if these details are
only disclosed, as in the present instance, at the late stage when the accused testified, the
value to be accorded to the alibi may be adversely affected. I cannot see on what basis an
accused can claim that he would be prejudiced in the presentation of his defense if he had to
disclose the details of his alibi defence during cross-examination of the State’s witnesses.
On the other hand, if he withholds same until he testifies, there is prejudice to the State since
the State will not have been provided with the opportunity of leading evidence which could
expose the alibi as being false’.
[617] The fact that an accused has no onus in respect of his or her defence of an
alibi does not mean that the defence had no duty to present evidence in support of it.
The accused’s mere ipse dixit possesses little persuasive force. In S v Thebus and
Another137, one of the issues was the right of an accused to remain silent after his
arrest by a police officer in connection with a defence of an alibi. Moseneke J in the
main judgment referred to the defence of an alibi as follows138:
‘[60] An alibi defence has often generated judicial debate on whether it is an
exception to the right to silence. In R v Cleghorn139 the peculiarity of an alibi is explained as
follows:
“(T)here is good reason to look at alibi defence with care. It is a defence entirely
divorced from the main factual issue surrounding the corpus delicti, as it rests upon
extraneous facts, not arising from the res gestae. The essential facts of the alleged
crime may well be to a large extent incontrovertible, leaving but limited room for
manoeuver whether the defendant be innocent or guilty. Alibi evidence, by its very
136 1997 (2) SACR 772 (CK) at 778 h-j.137 2003 (6) SA 505 (CC).138 Par 60.139 100 CCC (3d) 393 (SCC)
217
nature takes the focus away from the area of the main facts and gives the defence a
fresh and untrammelled start. It is easy to prepare perjured evidence to support it in
advance.” ’
[618] It has been held that proof of a false alibi affects the credibility of an accused
person and does not prove the commission of the offence beyond reasonable doubt.
However, in Thebus, the following occurs in a concurring judgment140:
‘One further point needs to be made. It should be clear from what we have said that
we do not see that a valid distinction can be drawn in this context between adverse
inferences going to guilt, and adverse inferences going to credit. There is of course a
conceptual difference between inferences going to credit and inferences going to guilt. But in
the context of an alibi, the practical effect of the adverse inference to be drawn for the
purposes of credit, namely, that the alibi defense is not to be believed, will often be no
different to the effect of the inference to be drawn with respect to guilt, namely that the late
tender of the alibi suggests that it is manufactured and that the accused is guilty.’141
[619] It is admitted by the accused that photo 32 in Exhibit R is a photo of himself.
Witness Shapaka identified the person on photo 32 as one of the persons arrested in
the early hours of the morning on 2 August 1999. This evidence was never disputed.
Lemmy Haufiku testified that one of those arrested identified himself as Musheba
Mwiya. The accused testified that amongst the accused persons before court, he
does not know one Musheba Mwiya. There is no such person before this Court
according to the accused. The accused was an untruthful witness. His version that
he had been arrested at Cowboy Compound is rejected as false.
[620] I am satisfied that there is proof beyond a reasonable doubt that the accused
was one of the individuals arrested inside Mpaha military base in the early hours of
the morning on 2nd August 1999, that an overt act was proved and that the only
reasonable inference to be drawn is that he had the necessary hostile intent.
Clients of Mr Kachaka
Richwell Mbala Manyemo (accused no. 115)
140 Written by Goldstone J et O’Regan J.141 See also the judgment of Yacoob J at par [112].
218
[621] Oscar Mwisepi testified that Richwell Manyemo was amongst a group which
was given then task of organising rebels after the attack on 2 August 1999. He
testified that he, himself, was given the task by Richwell Manyemo and Lorenz
Simbozi to go to Masida in order to meet the group of John Samboma, who ‘happens
to be one of the accused here’. This witness identified Richwell Manyemo as
accused no 115 in court.
[622] This court had (supra) referred in more detail to the testimony of this witness.
Mr Kachaka in his heads of argument submitted that Mwisepi was not a credible
witness Counsel referred to the testimony of the witness that he was tasked by
Richwell Manyemo and Lorenz Simbozi to meet the group of Samboma. The court
was further referred to the testimony of the witness142 where he testified that this
group was divided and that he (i.e. the witness himself), Lorenz Simbozi, Francis
Kaveto and another person were assigned to work along the road to Linyati, and
Richwell Manyemo and others were assigned to work along the Kangolo. The
witness then testified that when the instructions were issued for different people to
be assigned to work along different roads he (i.e. the witness) was not present. It
was submitted by Mr Kachaka, and correctly so, that what was testified about
assigning, was hearsay.
[623] It was submitted that the witness when asked what other task he performed
after the attack he replied that those whom he had been working with some fled to
Botswana, some were just afraid of the police, others went to look for employment
and that from that time their idea was sort of interrupted. It was pointed out that
during cross-examination by defence counsel Mr Kruger this witness stated that the
committee was his idea. It was submitted that Mwisepi was taken to task during
cross-examination when he first testified that all Caprivians were in favour of the idea
of seceding the Caprivi region, which he later changed to all Caprivians at Dukwe
Refugee camp, and still later when confronted with clear examples from his own
testimony of people who were not in favour of the idea, he conceded that fact.
[624] It was submitted that Mwisepi exaggerated by first stating that there was only
one idea to secede by military means, yet when confronted with his own testimony in
chief, he conceded that there was also the way of negotiating the independence of
the Caprivi Region. It was further submitted that from the cross-examination of
defence counsel Mr Nyoni, when he dealt with this same issue (i.e. the excursion
142 P. 713
219
into the bush by Mwisepi to meet the group of John Sambona), argued that Mwisepi
was regarded as a spy, a person not to be trusted prior to the attack, that Mwisepi
did not participate in the attack and the contradictory reasons provided by him, and
that he had mislead the NBC after his return through repatriation regarding his future
involvement in the issue of secession. It was submitted that Mwisepi was a single
witness and that his testimony should be approached with caution. It was submitted
that Richwell Manyemo was just put in the group by the witness based on hearsay
because the person the witness worked with was Lorenz Simbozi and Simbozi was
not brought to court to testify.
[625] Michael Mutaniniye Tubazumbwe testified that he (i.e. the witness himself)
went to Dukwe because Richwell Manyemo explained to him since he (i.e.
Tubazumbe) is from the ‘military’ he should go and train people there. The witness
testified that he had this conversation during November 1998. According to the
witness the accused arranged transport which eventually took him to the border with
Botswana and thereafter he crossed with other person into Botswana. This witness
identified Richwell Manyemo in court as accused no. 115. The witness testified that
upon his return from Botswana the accused confronted him by asking him why he
had come back. He testified that the accused referred to his (accused’s) brother as a
coward because he had returned from Botswana. During cross-examination it was
put to the witness that the accused was the last born and could not have had a
younger brother. The witness replied that he was in school together with the younger
brother Frederus Manyemo. The witness conceded that this name does not appear
in his first witness statement. He testified that the name appears in the second
statement deposed to months later because he then recalled the name and provided
it to the police. It was pointed out by counsel that the name the witness provided to
the police was ‘Muyakwe’, a name not mentioned in court. The witness conceded
that it is reflected in his statement that the name given was ‘Muyakuyi’ and that it is
also reflected in the statement that he does not know the other names. The witness
conceded that in a statement deposed to by him on 27 November 2000 he referred
to an incident which occurred during March 2000 namely the conversation which he
had with the accused and his younger brother. The witness conceded that there was
nothing in the statement that the accused spoke to him during 1998 before he left for
Dukwe.
220
[626] It was put to the witness that the accused worked at Omega 250km away
from Katima Mulilo and that during November he was at Omega and never came to
Katima Mulilo. The witness replied that on weekends he used to come to Katima
when he was off. It was put to the witness that the accused did not come home
during March 2000 and did not have a conversation during March 2000 with the
witness. The witness disagreed.
[627] There was no re-examination. There was no evidence presented why the
name ‘Muyakuyi’ appeared in his second statement and why there is no mention
made in the first witness statement that the accused had recruited the witness to go
to Botswana. Hamlet Kachibolewe Muzwaki testified that he came to know about the
goal of cutting the Caprivi region from Namibia when he visited the courtyard of
Richwell Manyemo, his uncle, during December 1998. Manyemo told him as follows:
‘What are you still doing while the others have left. That he started telling me that the
government of Namibia has got a discrimination and they are mistreating us. Only
Owambo people are the people who are receiving jobs. So the best way that we will
do is to cut Caprivi from the rest of Namibia. He continued telling me that I must go
everything is ready and I must get a gun to liberate Caprivi.’
[628] The witness further testified about an incident at night when he saw John
Samboma and two white men arrived at the house of Richwell Manyemo in a 4X4
vehicle and that John Samboma was carrying a big gun. The witness testified that
the visit lasted about an hour but he could not hear what was said. During cross-
examination it was put to the witness that the accused never had the conversation
testified to by the witness. The witness disagreed. During cross-examination the
witness conceded that he never mentioned in his witness statement that John
Samboma arrived there with a big gun and that he told the police that the white
people came to look for African artefacts (curious). It was put to the witness that the
accused was running a shop and that he had to order things for the shop. The
witness replied that the shop had ‘collapsed’ a long time ago and that there was
nothing in the shop. The witness was referred to his evidence-in-chief during which
he stated that he wanted to buy something the next day and went to the shop. The
witness agreed that he said so. During re-examination the witness testified that he
recalled about the big gun when he arrived ‘here’ (in Windhoek) and also recalled the
second visit of the two men to the house of the accused.
221
[629] Raymond Kamwi Sezuni testified he was employed at Telecom Namibia as
branch manager at Katima Mulilo. The witness was provided with a copy of a printout
for telephone number 4140 and testified that this number was allocated to Manyemo
Richwell Mbala. The printout reflects that telephone calls were made to Denmark.
The first call was made on 20 October 1999 and the last on 23/25 November 1999.
Calls were also made to Botswana. The first call was made on 25 December 1999
and the last on 14 March 2000. During cross-examination, the witness conceded that
those calls did not prove that Richwell Manyemo actually made the phone calls since
any other member of his household could have made those telephone calls. In
addition the numbers called cannot reflect who was called or which part of the
country was called.
[630] The accused testified that he was arrested on 18 May 2000 at Okalongo in
the Oshana Region. The accused denied that he was part of a group, testified to by
Mwisepi, which was given a task of organising the rebels after the attack; that he did
not know Mwisepi and saw him for the first time when Mwisepi gave evidence; that
he never instructed Mwisepi to go to the group of John Samboma; that he did not
know about a group which organised a second attack; that he has three wives and
twelve children; that no one of his children went to Botswana; that he never
personally phoned Botswana or Denmark; that he did not know the witness Michael
Tubazumbe and saw him for the first time in the witness box; denied that he told the
witness to go to Botswana because of his knowledge of military issues; did not know
that the witness went to Botswana; that he was never at loggerheads with the
witness because he returned from Botswana; that he is his mother’s last born and
has not younger brother; denied that the witness was his neighbour since childhood.
[631] The accused testified that he never told the witness Muzwakwi anything about
discrimination by the Government of Namibia and mistreating them; denied that he
told the witness to get a gun in order to liberate the Caprivi Region; that he knows
the witness very well; that Muzwakwi is his grandchild and that in the year 1998
Muzwakwi was 10 years old; that his first born was 24 years old in 1998; that the
mother of Muzwaki is his biological daughter.The witness denied that John
Samboma had ever been to his courtyard and denied that two white men came to his
courtyard during the night. During cross-examination by Mr July the witness was
asked whether he had ever been out of the country (Namibia). The accused replied
in the affirmative, namely, that he left Namibia on 18 November 1998 for Denmark.
222
The accused testified that he did not go there to visit someone but to do certain
projects; that he returned to Namibia on 25 November 1999; that he lodged in a hotel
in Denmark (Mucar Hotel); that the projects were in connection with animal
husbandry. The accused could not recall the name of the place they went to see
those projects. The accused testified that they met an old white man and his wife
whose names he doesn’t know. The accused testified that they were two who
travelled from namibia and the other person in his company was Michael Siyanga.
When the accused was asked who paid for their airfare he was ambivalent saying:
‘I believe it is the Government because those two white men are the one that paid
our ticket.’
[632] The accused testified that he did not know whether the ‘money came from the
pockets of those white men or it came from the Government’. When the accused
was asked in what form Government paid for the tickets he replied that the tickets
were paid in cash because one cannot board an aeroplane on credit. The accused
testified that he did not know were those white people stayed adding that he
concluded that they were from Namibia because the Government had sent them to
help the community; that the white men came to his village Bilto and visited villages
and areas; that they just saw the vehicle stopped and the white men embarked from
the vehicle ‘the old one with his wife’, and that the white men asked for the Induna;
that he was chosen by the people to accompany the two white people to Denmark;
that he did not ask the white people where they were coming from, or who they were,
or who they represent; that they (the white people) did not inform them about their
names by explained that they were sent by the Government; that the white people
not tell them which Ministry they represented; that by the time he had spoken to
those white people he had already been expelled from the Police Force143; on his
return he was reinstated; that he cannot deny that there were rebels in the bush after
the attack on 2 August 1999; that the reason why he was expelled according to a
letter he had received was because he had absconded from work from 4 December
1998, but that he was on leave during December; that he signed a visa application
form but did not complete it on 9 November 1999; and that he was unemployed at
that stage.
[633] The accused was asked why it appears on the visa application form that he is
a pensioner, and replied that he was not a pensioner as did not complete the
143 Expelled on 31 March 1999.
223
application form. The accused admitted that he provided information to someone in
order to complete the visa application form; that he signed indicating the correctness
of the information contained in the application form but not to confirm that he was a
pensioner. When the accused was asked for an explanation why it was indicated on
the visa application form that he was a pensioner he became evasive by first pointing
out that he only applied for pension during 2009 when he was in prison. The
accused eventually said:
‘My Lord there is nothing I can say on that what is written there. I so not even know
why it is written like that.’
[634] The accused was further confronted with an inscription on the visa application
for that the journey would be financed by him personally. The accused gave an
inconsequential reply but concluded by saying that it would have been impossible for
him to have generated N$ 10 000.00 whilst he was unemployed. The accused
agreed that it was a criminal offence to consciously provide incorrect information on
official document. The accused testified that the passport he had used to travel to
Denmark, was taken by police officer Popyeinawa, and explained that after his arrest
Popyeinawa asked him about his passport and that he gave Popyeinawa a
declaration which he made on 6 April 2000 in which he had declared certain items
including his passport, to be missing. This declaration was made at Okalongo: the
witness testified that he does not know when the passport got lost.
[635] The accused confirmed that in the declaration he stated that the passport got
lost on 1 February 2000 together with a driver’s licence and his identity document.
The accused explained that he made the declaration only two months later since had
has three wives and three houses and had to made enquiries (presumably from the
wives). The identity document and driver’s licence were discovered after he had
made the declaration and he thought that he could have lost his passport in Rundu
at one of the shops there. During cross-examination the accused was provided with
a statement of one Mathias Strydom, a trip manager at Trip Travel, indicating that
the accused left Copenhagen on 26 November 1999 at 19h10 for Frankfurt and left
Frankfurt at 22h35 for Windhoek. The accused insisted that he arrived in Windhoek
on 25th November 1999. The accused was further confronted with the statement of
Strydom to the effect that the accused had visited the office of Trip Travel on 9
November to make certain payments and again on 10 November 1999 and not as
224
the accused testified earlier that he visited the offices only once during November
1999. The accused agreed that the statement of Strydom was correct.
[636] The accused also agreed that he paid for accommodation at the Mercury
Hotel for seven nights. The accused explained that the statement of Strydom
referred to what had happened in 1999 and some years later in 2013 he was bound
to forget that he visited the offices twice and not once. The accused explained that
the white people who took him to the offices of Trip Travel paid for his expenses. The
accused denied that he attended meetings where secession was discussed and
denied that after 2 August 1999 he remained in contact with Mishake Muyongo who
was in Denmark. The accused testified that he could not deny that there was a plan
for a second attack, but denied that he was part of a group which planned a second
attack. The accused was confronted with his evidence-in-chief to the effect that he
and his children had no information about people going to Botswana. The accused
replied that is correct and that he only heard about it at end of October 1998 when
he was at Ngweze to receive his salary, when he was informed about Muyongo,
Mamili and Governor John Mabuku who had gone to Botswana. The witness
conceded that his reply previously that he did not hear about it was incorrect. The
accused explained that the reason why he did not mention the fact that he heard in
1998 about people going to Botswana was that he had forgotten about it.
[637] It was put to the witness that he made telephone calls to Denmark. The
accused replied that just because he applied for a telephone line does it mean that
he made the calls to Denmark. When asked why Michael Tubazumbe implicated him
the accused gave a long winded answer, asking instead why the witness had not
been arrested for going to Botswana. The accused eventually replied that he did not
know and that the police should know. The accused denied that he had informed the
police in his warning statement more what he knew about the issue of secession
than what he testified in court.
[638] The evidence presented by the State through the witness Mwisepi was that
the accused person was involved in the planning of a second attack in the Caprivi. I
have evaluated the testimony of Mwisepi who had testified against accused no 115
in respect of the same incident and had cautioned myself in accepting the testimony
of Mwisepi for the reasons mentioned. Mr Kachaka, in his heads of arguments,
refered to contradictions and exaggerations by Mwisepi as well as hearsay evidence.
I have indicated that the witness Mwisepi in respect of this incident was a single
225
witness and that I am not satisfied that it can be found that his evidence was
satisfactory in all material respects. As I have indicated hereinbefore, I shall not take
into account the evidence of Mwisepi in considering whether the State has
succeeded in discharging its burden of proof in respect of this accused. The
evidence of Sezuni only related to the allocation of a telephone line and that
telephone calls had been made to Botswana and to Denmark. The evidence did not
prove to which place in Denmark the telephone calls were made or who the recipient
of those telephone calls was.
[639] Michael Tubazumbe testified about two incidents. In the first, he narrated that
the accused person recruited him to assist with military training in Botswana because
of his experience as a soldier and that he eventually left for Botswana. This witness
is therefore an accomplice and his evidence must be approached with caution.
During cross-examination the witness conceded that in his statement no mention is
made of any conversation he had with the accused prior to his journey to Botswana
in November 1998. The witness conceded that he never informed the police that the
accused had influenced him to go to Dukwe. The reason why this alleged incident is
not reflected in his witness statement was not explained during re-examination.
[640] If this incident does not appear in his witness statement, which in my view is a
material omission, the question remains when did he remember about this incident.
There is also no answer to this question. The second incident relates to the year
2000 after the witness had returned from Botswana when the accused allegedly
expressed his disappointment with his return and insulted another person as being a
coward. This person (who had been insulted) was indicated as the brother of the
accused person namely ‘Federus Manyemo’. The witness claimed that they
attended the same school. This witness conceded that this name does not appear in
his first statement but that the name ‘Muyakuyi’ appears in the second statement.
The name ‘Federus Manyemo’ does not appear in the second statement. It was put
to the witness that the accused denies having a younger brother and the accused
himself was the last born. Federus Manyemo did not testify. he accused denied
having such a confrontation with the witness.
[641] Hamlet Muzwaki also testified about two incidents. During the first, the
accused had informed him during December 1998 to liberate the Caprivi Region. It
was put to this witness during cross-examination that the accused never had such a
conversation with him. In respect of the second incident and the nocturnal visitors,
226
this witness conceded during cross-examination that he did not inform the police in
his statement of having seen any big gun, and conceded that he told the police that
the white people came to look for curios.
[642] The explanation by this witness during re-examination that he recalled the big
gun shortly before he was due to testify is highly unlikely and implausible since this
witness testified on 7 February 2006 more than 7 years after those alleged incidents.
The same explanation is given for his testimony that the two white men visited the
courtyard of the accused for a second time, namely, that before he gave his
testimony he recalled that incident. If it is accepted for the sake of argument that
John Samboma and two white men indeed visited the accused, then the inference
that they were for an innocuous purpose cannot be excluded as conceded by the
witness although it appears from the re-examination that according to this witness
that it was the accused who had mentioned that the white men came looking for
curios and that this was just a ruse. This witness also contradicted himself by first
denying the existence of a shop and later conceded that there was such a shop.The
testimony of the accused can be described as being pregnant with suspicion.
[643] The journey of the accused to Denmark is clouded in secrecy. The accused
does not know the name(s) of the place or places where they went in connection
with the projects and the identities of his beneficiaries are unknown. It is also
unknown to which Government Ministry these white people had been attached to. In
my view from normal human experience it is highly unlikely that a person like the
accused who was unemployed at that stage, not to have enquired any detail of these
white persons, person who paid for all his expenses in respect of his airfare and
accommodation in Denmark. The accused admitted during cross-examination that
he provided incorrect information on his visa application form when he stated that he
was a pensioner when he was in fact unemployed at that stage.
[644] The argument by Mr Kachaka that the word which appears on the application
form is a different word is of no consequence since the word on the visa application
form very closely resembles the word ‘pensioner’. In any event it is a case of
splitting hairs since the accused had admitted during cross-examination that the
word pensioner appears on the visa application form. The dispute about the exact
date the accused had arrived at Hosea Kutako airport is immaterial in the
determination of his credibility as a witness. It was never disputed that he returned
from Denmark during November 1998. Similarly is the contention that the accused
227
first referred to an old white man and a woman and later to two white men and still
later in the record to white persons. This apparent contradiction is of no
consequence. The denial by the accused that he does not know who made
telephone calls from his telephone to Denmark is highly unlikely and raises a
suspicion, especially in view of his journey to Denmark, that he went to visit
Muyongo. The accused was an evasive and argumentative witness.
[645] In spite of aforementioned suspicion, the question remains whether there is
any evidence that the accused came into personal contact with Muyongo whilst in
Denmark, and if so, the implications of such contact. Although it was put to him
during cross-examination by Mr July that he went to visit Muyongo there is no
evidence to support it and it remains a suspicion. In the determination of whether the
commission of an offence had been proved beyond reasonable doubt a court must
have regard to the evidence by the State as well as what was presented by an
accused. I have referred to the weakness of the testimonies of the respective State
witnesses and am of the view that in spite of the fact that the evidence of the
accused is not above criticism that it cannot be rejected as false. There thus
remains a doubt whether it was proved beyond reasonable doubt that the accused
committed the offences preferred against him, and he must be given the benefit of
such doubt.
Rodwell Sihela Mwanabwe (accused no. 30)
[646] Duscan Simasiku Nyoka testified that he resides in Muambezi village in the
Gungwe area and that he went to Botswana during the year 1998. He went there
because Chris Muchanana, Progress Munana and progress Mubonda told them that
those individuals who had failed Grade 7 could go to Botswana for ‘some studies’.
This was said at the school. The witness testified about an incident after the attack
on 2 August 1999 where he was questioned by the police at his village about the fact
that he had been to Dukwe. The police apprehended him and he was in the
company of three other person when they drove in the direction of the town but on
their way they he saw vehicles rushing to the village of Rodwell Sihela, namely,
Nyandayanda. He saw the police collecting Rodwell Sihela from the courtyard of his
mother and observed black ‘cloths’ tied behind the head of Rodwell Sihela. When
Rodwell Sihela was brought closer to where they were standing he observed some
black powder on his ears, and also observed a bangle with ‘charms’ around it on his
228
wrist and a string hanging from his neck. At that stage Sihela was blindfolded and
was kicked by the police, the cloth came off and he observed black powder on the
temples of his head, on his ears and on the sides of his eyes. The witness was
asked about black marks he had observed on another person (Gilbert Poshowe) and
how those marks looked to him and the witness replied:
‘My Lord for me personally, I didn’t have that time or concentration to determine what
these black powder marks were because of the shock that was in me and also on top
of the shock very much also that they made on me that’s why I was not able to
determine and concentrate what these black powder marks were’.
[647] The witness testified that the black powder marks appeared to be the same.144
The witness testified that they were then all loaded including Rodwell Sihela and the
vehicle started to move. The witness testified when they approached a school he
was released by the police. His friend Lasken was also released. This accurred
during the morning of 10 August 1999 after sunrise. The witness testified that he
knew Rodwell Sihela from 1992 and they attended school at Ngungwe. This witness
identified Rodwell Sihela as accused no. 30 in court. During cross-examination the
witness testified that two police officers kicked the accused on his chest. During
cross-examination it was pointed out that the witness did not in any one of his four
statements he had deposed to mentioned about black marks on Gilbert Poshove.
The witness explained that he told the police about the black marks when his first
statement was taken and he had taken it for granted that it was recorded in the first
statement. It was put to the witness that the accused doesn’t know anything about a
wristband or black marks. The witness disagreed.
[648] It was put to the witness that prior to the witness observing the accused he
had already been kicked many times by the police. The witness agreed adding that
the accused was also hit on his back with the butts of guns. Mr Kachaka in his heads
of argument submitted that this witness had conceded that the black marks could
have been polish from the boots of the police. I was however unable to locate that
concession in the record. Lasken Munalula Sikosi testified but failed to identify the
accused because of an ‘eyesight’ problem. George Aluteya Sizuka’s testimony was
already dealt with. He identified Rodwell Sihela as accused no. 30. John Libuka also
testified and his testimony was already dealt with.
144 P. 7995.
229
[649] Chrispin Mandoile Mandoile testified that he left for Botswana after two
persons namely, Danbar Mushwena and Francis Liemo Mubita had spoken to him
on two separate occasions during 1998 about going to Botswana in connection with
the secession of the Caprivi region. Transport was arranged by Danbar Mushwena
and he boarded a motor vehicle at Shell Filling Station driven by one Gasper
Mashana who off-loaded them at Masokotwani. He was in a group of 16 individuals.
His nephew Rodwell Sihela was also in this group. They proceeded on foot from
Masokotwani until they reached the field of Mr Kasungo where they found other
individuals and the members of the group increased to 36 individuals. They
proceeded to Baragorongo and from there to Kasani. From Kasani they were
transported to Dukwe where they arrived on 17th November 1998. On 24 June 1999
he returned to Namibia through repatriation. Individuals who formed part of the group
of sixteen who returned with him were Rodwell Sihela, Johnny Libula and George
Sizuka. On 2 August 1999 he heard the sounds of gunshots coming from the
direction of the town around 06h00. This time he saw Rodwell Sihela running and he
asked him: ‘Why are you running?’ Sihela replied: Why, I am running, I am also
seeing people who are busy running and I can even hear gunshots. That is why I
am also running, coming to you house . .’ The witness testified that thereafter he did
not ask further questions and did not see Rodwell Sihela carrying anything at that
stage. According to this witness he told Sihela:
‘If that’s the situation or if that is the case, you can proceed, go to your elder sister,
Ida.’
[650] The witness testified that Sihela looked like someone in fear. This witness
identified Rodwell Sihela in court as accused no. 30. The witness was not cross-
examined by counsel who appeared on behalf of accused no. 30.
[651] The accused testified that he was arrested on 10 August 1999 in the morning
at his mother’s courtyard. On that morning between 05h00 and 06h00 he was
awoken by police officers who blindfolded him and told him to sit down. He was
thereafter kicked and hit with the butt of a firearm. He was then loaded onto a
vehicle. There were three police vehicles. On the way to the police station he was
again assaulted. At the police station he was put in a room in which there were
corpses. From the police station he was taken to Mpaha Military Base. At Mpacha
he boarded an aeroplane and was flown to Grootfontein where he was kept from the
10th to 23rd of August 1999 when he appeared in Court.
230
[652] The accused denied that there was black powder on his body on 10 August
1999. The accused denied that he told George Sizuka that they should ‘join our
friends’, or that he had told him that they should go to Ngweze to look for piece work.
The accused testified that George Sizuka is his brother (actually cousin). The
accused was referred to the testimony of Sizuka regarding the alleged conversation
referred to (supra) and was reminded that Sizuka had testified that his younger
brother John Libuka was also present at that stage. The accused agreed that they
were together.145 The accused stated146: ‘I will answer it like that these people they
were two My Lord as I indicated that John was with Alufeya. Let us start about the
testimony of John Lubuka.’ The accused was then reminded by counsel Mr Kachaka
that as a witness he was not there to analyse the evidence of a state witness and to
point to contradictions. When the accused was asked the same question he replied:
‘Me and my friend were not there’.
[653] The accused was referred to the testimony of George Alufeya Sizuka where
he testified about a second occasion where Sizuka had testified in his evidence-in-
chief: ‘The second trip when they came let us go and join our friends so that we cut
the region.’ The accused stated: ‘We did not utter those words . . .’
[654] The accused was referred to the testimony of John Libuku147 who testified: ‘It
is something like we were going to fight at the police station but the fight did not take
a long time because they were few and ran away from there.’ This was apparently
said when they were on their way to a football field to play football. The accused
replied that he did not see the witness (John Libuku) and that he did not go with him
to play soccer and did not tell him about a fight at the police station. The accused
was referred to the testimony of Chrispin Mandoile. The accused denied that he met
his uncle on 2 August 1999 because he (i.e. accused) was at the village in the
Gunkwe area. The accused was asked why his uncle and cousins would testify as
they did and the accused replied:148
‘Chrispin Mandoile is my uncle. We did not have differences with him. There is no
time that I had differences with him. I will not be in a better position to know why
should he come and start telling such kinds of stories in court. Maybe it is the police
officer, who told him that they will give him money to come and testify on my behalf.’
145 P. 37727-37728146 P. 37728147 At p. 19331 lines 47148 P 37730 lines 20-26
231
[655] The accused replied as follows in respect of John Libuku:149
‘John Libuku is also my brother. Me who is standing here I will not know the reason
that brought him to come here. The reason is just known by the police officers who
brought them here who were paying them money. The same also applies to Alufeya
Sizuka George he was also my brother. We were living nicely together at the village
and we did not have any problem. I did not have a problem with him. I will not know
the reasons why he came here and start fabricating such kind of stories it will just be
known by the police officers.’
[656] The accused person showed scars on his body to the Court and testified that
those scars were as a result of the assaults perpetrated on him. The accused
testified that photos had been taken by someone from LAC of those scars and that
his claim against the Government was settled ‘outside Court’. During cross-
examination, the accused testified that he left Namibia on 13 November 1999 and
that he arrived in Botswana on 14 November 1999; that he was very sure about this
date; that he went alone to Botswana, all by himself; that he did not go to a specific
place in Botswana, but went there because he heard there was free education; that
he was born on 15 July 1972; that he went to Dukwe; that he did not have a
passport; that he did not have a student permit; that he took along his standard 5
certificate; that he did not cross the border at a designated border post; that he heard
about the issue of secession for the first time during September, November 1998
over the radio; that people were fleeing to Botswana; that he heard over the radio the
death of Falali; that he heard over the radio that those responsible for the death of
Falali were arrested and brought to Windhoek Prison; that he did not hear over the
radio that the CLA or Muyongo’s army was responsible for the death of Falali; that he
did not know why people were fleeing to Botswana following Muyongo; that people
fled with weapons of war; that the stayed 8-9 months in Botswana; that he knows
Adour Chika Mutalife who was in Botswana; that Adour Mutalife did not tell him why
he was in Botswana but saw him ‘registering for education’, that he, himself, did not
tell Adour why he was in Botswana; that Minister Jerry Ekandjo came and addressed
the Caprivians in Dukwe.
[657] The accused was asked why he had vehemently refused an order by the
court orderly to sit on a chair in the passage during an adjournment, and the accused
replied that no reason was provided for such an order. When asked whom did he
149 P 37731 lines 6-16
232
speak to during the adjournment the accused stated that he did not speak his co-
accused that he spoke to a member of the media; that he had heard about free
education from his friends Diaz and Tieho who in turn also heard about it; that he did
not ask them whether they received free education in Botswana; at that stage he
was in the village and unemployed; that he had the conversation with his friends only
one; that he had no idea where in Botswana he would find education; that he
returned because the Minister asked them to return; and that he did not ask the
Minister about free education.
[658] The accused disagreed that he came back through repatriation in order to
continue to fight for the secession of Caprivi. The accused denied that he collected
people at the village and took them to Makanga prior to the attack on 2 August 1998.
The accused denied that he went through rituals at Makanga in order to make him
invisible in preparation for the attack and, denied that he participated in the attack,
he testified that he was at home at Gunkwe on 2 August 1999; that Gunkwe is
approximately 40-45 km from Katima Mulilo; and that at Gukwe one would not be
able to hear gunshots in Katima Mulilo. The prosecutor reminded the accused that it
was not put to any of the sate witness (that the accused was at Gunkwe on 2 August
1999) to which the accused replied that it was the decision of his legal
representative.
[659] The accused was informed that he had effectively raised an alibi defence.
The accused gave an answer which made no sense. The accused was reminded
that he did not testify in his evidence-in-chief that he was at his village on 2 August
1999 to which the accused replied: ‘I said I was at Gunkwe and that is where I was
arrested’. The accused conceded that he had earlier testified that he was together
with Adour Chika Mutalife when they were arrested on 2 August 1999 but that it was
a mistake as he was arrested on 10 August 1999. The accused denied that he was
together with Adour Chika Mutalife on 2 August 1999.
[660] The accused denied that he ran away from the attack and that he went home,
adding that he was at his village. The accused testified that Adour Chika Mutalife is
his brother150 in the ‘cultural sense’. The accused corrected himself by saying that he
went to Botswana in the year 1998, and not in the year 1999. The accused testified
that his nickname is ‘Squeeze’. The accused testified that Adour Mutalife was
150 P. 37781 lines 17-34.
233
arrested together with him at Nyandayanda village in Gunkwe area on 10 November
1999.
[661] Mr Kachaka submitted that under cross-examination the testimony of John
Libuku was full of contradictions and refered to the following: That the witness
admitted under cross-examination that he told police officer Chizabulyo that when
the accused was arrested, the accused confirmed to the police who had arrested him
that he was coming from Ngwezi and that he was there fighting, but when confronted
with this the witness testified that when the accused was arrested he (i.e. the
witness) was not so close and did not hear anything at all when the accused was
talking to the police.
[662] I must state that counsel is perfectly entitled to question the testimony of the
witness in order to point out a contradiction, since this was indeed a contradiction.
However, it must be emphasised that whatever was said by the accused to the
police officers who arrested him, in view of the circumstances under which he had
been arrested, amounts to an inadmissible confession, and the State cannot, as it
appears to me from their heads of argument, rely on such communication as support
for their argument that the accused had committed the crime of high treason.
[663] Mr Kachaka pointed to another contradiction where the witness John Libuku
was reminded of his evidence-in-chief that he was with George Sizuka when he was
approached by the accused and Adour Mutalife, but that in his statement to the
police he stated that when the accused and Adour Mutalife had left, he called
George Sizuka and informed him about the discussion he had with the accused and
Adour Mutalife. Another example highlighted was what appeared from the record 151
where he was asked whether he had talked to George Sizuka what his uncle
(Mandoile) had said about going to Botswana and was asked:
‘Did you not tell George that there are work opportunities in Botswana, let’s go? You
didn’t say that? . . . No. I did not tell him that’.
[664] When asked what his answer would be if George Sizuka said that he told him
about job opportunities in Botswana the witness replied152:
‘Him if he knows that I did not tell him that, he’s not going to testify concerning that’.
151 P. 19356 lines 10-12.152 P. 19356 lines 19-20
234
[665] Counsel in his heads of argument (page 13) referred to the record153 where
this witness in response to what is quoted: ‘You say you didn’t say that?’ replied: ‘I
would say he would be telling lies’. I scrutinised the record but could find no such
reply on the page referred to by counsel. What appears from the record154 during the
cross-examination of George Sizuka when he was asked what he (i.e. Sizuka) would
say if John Libuku tells the Court that he (Libuka) did not say anything to him
(Sizuka) about going to Botswana for work, Sizuka replied: ‘I would say he would be
telling lies’. Mr Kachaka also referred to a reply by the witness Sizuka as to when
the accused had talked to him about cutting Caprivi, referred to the year 2002 more
than two years after the arrest of the accused. My observation in this regard is the
same when I discussed the same point raised by accused no. 2. Counsel did not
submit that this court should reject the evidence of George Sizuka as false or
unreliable and there is no cogent reason for this Court to do so.
[666] To return to the testimony of John Libuku, his testimony regarding the journey
to Botswana corroborates the testimony of witness Mandiole. Libuku testified that he
went to Botswana because there were suppose to be military lessons. I must say
that his evidence on this point is hearsay. However Libuku testified that he travelled
together with Mandiole, that the group consisted of 16 individuals who boarded a
vehicle at a filling station, that he did not know the other persons in the group except
his uncle Chrispin Mandiole and Richard Sihela, that the driver of the vehicle was
one Gasper Machana, that from Masokotwane they walked until they reached certain
fields and came to a place called Parakalunga.
[667] Much was made by counsel that the witness testified about two different filling
stations, Engen and Shell. I am however not persuaded that the testimony of Libuku
on this point should be disbelieved. Mandiole testified that they boarded a vehicle at
Shell Filling Station and his evidence was not disputed on this point. It should
however be emphasised that Libuku’s testimony corroborates the testimony of
Mandiole that the accused was part of a group which left Botswana and that he was
not alone. The accused could give no plausible reason why these two witnesses
would fabricate their testimonies against him. Mr Kachaka in his heads of argument,
correctly submits, that it was the submission by the State that the evidence of
Chrispin Mandiole was challenged. Counsel however submitted that the accused did
so during his defence. In making this submission counsel appears to be ignoring, 153 P. 19356 lines 10-12154 P. 19476 lines 17-20
235
conveniently so, one of the aims of cross-examination alluded to in this judgment. I
wish to refer to S v Boesak155 where the Constitutional Court referred to President of
the Republic of South Africa and Others v South African Rugby Football Union and
Others156 and where the following appears:
‘[a]s 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 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’.
Langa DP continues at para [27] as follows:
‘The SCA held that this rule applies to the challenging of all evidence adduced by the
other party, whether on the basis of hearsay, inadmissibility, lack of proof of
authenticity, or accuracy.’
See also S v Katama157.
[668] Failure to cross-examine may therefore prevent a party from later disputing
the truth of the witness’s evidence. The testimony of Mandiole stands
uncontroverted. In addition to his narration of their journey to Botswana this witness
also testified about an incident on 2 August 1999 when he asked the accused why
he was running and the accused informed him about gunshots and other people who
were also running. The defence of the accused, just like the defence of accused no.
9, is an alibi. His testimony was that on the day of the attack he was at his village,
40-45 km from Katima Mulilo and that he did not participate in the attack. The
accused never gave a plea explanation, his defence was never put to the witnesses
during cross-examination (in particular to Chripsin Mandiole), and he first raised his
defence during his evidence-in-chief.
[669] I must accept the evidence of Mandiole (in the absence of any challenge
thereto) that the accused replied to a question that he was running because of
gunshots. The accused conceded that one would not be able to hear gunshots in his
village if gunshots were fired in Katima Mulilo. The evidence of the accused that he
was at his village on 2 August 1999 must be rejected as false. I need further to refer
to the authorities referred to in my evaluation of the evidence against accused no. 9. 155 2001 (1) SACR 1 (CC) at p 12. Para [26]156 2000 (1) SA (CC) at para [61]157 2000 (1) SACR 162 (NMS) at 183h
236
The same is applicable in respect of his accused. Further support that the accused
was an untruthful witness is to be found when he contradicted himself during this
testimony. His testimony is that he went to Botswana alone. However during cross-
examination the accused was asked where he had heard about education in
Botswana and he mentioned the names of his friends Tieho and Daiz. The record
reflects the following158:
‘They told me that they heard that in Botswana there is fire education that is why
people were fleeing there. That is why I went there with them. They are even still there.’
(Emphasis provided)
[670] This Court also accepts the evidence of Geroge Sizuka (in the absence of any
serious dispute) to the effect that the accused tried to recruit him to participate in the
attempt to secede the Caprivi Region. I am satisfied that the evidence presented by
the State proves beyond reasonable doubt that the accused was one of the
conspirators in an attempt to secede the Caprivi Region from Namibia by violent
means, that he participated in the attack and thus had the required hostile intent.
Kester Silemu Kambunga (accused no. 102)
[671] Progress Lifasi Mibonda testified about an incident during the year 1998 whilst
he was at his village Batubatja. Chris Mushana and Cesta Kuvunga approached him
in connection with a group of people who needed to cross into Botswana. Chris
Muchana spoke to him. It was during the evening and there were nineteen people in
this group. This group was supposed to cross into Botswana at Situnga. The witness
testified that he accompanied the group to his friend Manja who lived near Situnga.
Late in the evening the group the group crossed a tributary into Botswana. He,
himself, Manja, Cesta and Chris returned. The witness testified that the vehicle
driven by Kester Kambunga was a yellow Hilux. The witness testified that he knew
Kester Kambunga, as teacher at Makanga. The witness witness identified Kester
Kambunga as accused no 102 in court. The witness testified that he did not know
who the owner was of the vehicle driven by the accused. The witness testified that
he did not go to Botswana. The witness was not cross-examined by any counsel.
158 P. 37765 lines 30-30 and p. 37766 line 1
237
[672] Bernard Kanzeta testified that he was an officer in the DTA and that he was
fetched from his house in Ngwezi by Kester Kambunga and Mathews Mutambo in
order to attend a meeting during November 1998. He was off loaded at the meeting
but these two individuals were not at the meeting at the DTA office. The witness
Kanzeka testified about another incident where Kester Kambunga came to him in the
Ngonga are around 22h00 and informed him that he had brought people who wanted
to go to Botswana. The witness testified that he demanded payment and Kester
Kambunga have him N$ 150.00. The witness described the vehicle driven by Kester
Kambunga as a Toyota Hilux yellow in colour with registration number N 678 KM. He
testified that he took the group to the banks of the Kwando river and showed them
where to cross. The river was shallow and they could walk, crossing the river. The
witness testified that when he returned from the river he found that Kester
Kambunga was gone. The witness testified that there were thirty people in that
group.
[673] Kanzeka testified about a second occasion when Kester Kambunga
requested transport and help, and this time he had five people. The witness testified
that he was not paid but that he helped because of the payment he had received on
the first occasion. He testified that he did not take those five people to the banks of
the river but just showed them the direction to take. The witness testified that he
never saw Kester Kambunga again from that day. The witness identified Kester
Kambunga as accused 102 in court. During cross-examination by Ms Sithole-
Mwenda, the witness was referred to his witness statement in which he had stated
that Geoffrey Mwilima had sent a driver to fetch him to attend the meeting. The
witness retorted that there is no difference between his statement and his testimony
in court. It was put to Kanzeta that the accused denies ever having brought any
person to him to assist in their transportation to Botswana and denies paying him the
amount of N$ 150.00. The witness disagreed. It was put to the witness that the
accused never picked him up for a meeting at the DTA offices. The witness denied
this.
[674] Progress Munsu Mulonga testified about a meeting held in 1998 at the DTA
offices and where the issue of secession was discussed. He testified that one of the
attendants was Kester Kambunga. This witness identified Kester Kambunga as
accused 102 in court and testified that prior to the meeting, he had known Kester
238
Kambunga as a teacher. During cross-examination by Mr Nyoni, the witness testified
that he was a born half deaf. During cross examination by Ms Sithole-Mwenda it was
put to the witness that the accused did not attend any meeting at the DTA offices
with him in 1998 where the issue of seceding the Caprivi from the rest of Namibia
was discussed. The witness replied that he saw the accused at that meeting.
[675] Jeremiah Masule Kanchele testified that during the year 1998 he was the
Induna at Mototela village. He testified that Kester Kambunga is his young cousin.
The witness testified about an incident where his son had made a report to him and
that as a result of this report, he confronted Kester Kambunga and that he told
Kester Kambunga that he should stop telling the ‘kids’ that he would arrange work for
them in Botswana. He testified that when he said this, Kester Kambunga did not
respond, that he just looked at the witness and left. He testified that Kester
Kambunga hails from Makanga area. This witness identified Kester Kambunga as
accused no 102 in court. During cross-examination by Ms Sithole-Mwenda, it was
put to the witness that the accused had a discussion with him, in his capacity as a
member of the family but that the accused never had any discussions with him in
respect of the topic he had testified about. The witness responded by stating that he
indeed had such a discussion with the accused person.
[676] Mukushi Events Kaine was warned in terms of s 204 of Act 51 of 1977. This
witness testified that on 1 August 1999 he was at Kashishi village at a traditional
dance and was waiting for his girlfriend so they could return to his village Masida.
Whilst he was waiting at a T-junction some distance away, he was confronted by
three armed men. Two of the men he recognised as Kenneth Samulandela and
Thadeus Muzamai. They wanted to know why he was there at the village if he had
been to Dukwe. He was subsequently escorted until they came to crop fields where
he observed three motorvehicles parked alongside the road near Makanga. These
vehicles were all Hilux bakkies, one white in colour, one yellow in colour and one
white in colour with green stripes. He identified the vehicles as belonging to Jimmy
Liswaniso, Kester Kambunga and Martin Chainda. The witness testified that the
vehicles were known to him because he used to travel in these vehicles whenever
they journeyed to Katima Mulilo as passangers. The witness then narrated how they
were subsequently joined by a group of approximately fifty men. He boarded the
vehicle belonging to Jimmy Liswaniso and they travelled until they reached Waya-
239
Waya where they disembarked and walked to Liselo where he again got onto the
vehicle of Jimmy Liswaniso and went near the NBC in Katima Mulilo where they
disembarked. This witness was not cross-examined by Ms Sithole-Mwenda who
represented the accused at that stage.
[677] Walters Mwezi Sikochi was warned in terms of s 204 of Act 51 of 1977. This
witness testified about an incident on the evening of 1st August 1999 at Makanga
where a group of persons were addressed by Shadrick Chainda who said: ‘ today is
the last day and what will happen is we will fight against the force members of the
Namibian police, Namibian Defence Force’. At midnight they were told to move out
to where about 10 motorvehicles were parked. He recognised two motorvehicles.
One was a yellow car belonging to Kester Kambunga, and the other was a GRN
Tata truck. According to this witness Kester Kambunga was not present. During
cross examination by Ms Sithole-Mwenda the witness conceded that he recognised
a yellow Toyota Hilux Bakkie, that he did not see the driver of that vehicle, and did
not know the registration number of this vehicle.
[678] A number of witnesses were called but failed to identify the person they
referred to in their testimonies as Kester Kabunga.
[679] The accused testified that he was arrested on 23rd August 1999 at his home in
Makanga, in the Caprivi region and taken to the police cells at Katima Mulilo. The
next morning he was taken for interrogation and was assaulted by police officers. He
testified that he laid a complaint at LAC who was persuing that claim. The accused
testified that he did not know the witness Progress Mibonda and only saw him in
court; that he had never taken anybody to Mibonda; that when the witness testified
that the witness spoke to Chris Muchanana (which he could not exclude to be the
case) but that he was not there, that he was not part of that group; that he does not
know who Muchanana is; that he, ie himself, was a teacher at Makanga. When the
accused was referred to the evidence of Progress Mibonda that he was driving a
yellow motorvehicle, the accused responded by saying that he had a yellow vehicle
and stated: ‘He could not know whose bakkie it was but the bakkie was mine. I had a
yellow bakkie yes!’. The witness then in reply to the follow up question stated that
there were many yelloy bakkies in the region so what the witness had seen might not
have been his bakkie.
240
[680] The accused testified that he did not collect the witness Kanzeka and did not
even know where the house of the witness was. The accused denied that he took
people to the witness at Ngonga area and that he had ever been in that area. He
denied that he paid N$ 150.00 to the witness. The accused was referred to the
testimony of Kanzeka that the motorvehicle the accused was driving was a Toyota
Hilux 1800 yellow in colour with registration number N 678 KM. The accused
admitted that the motorvehicle was his and stated further that it would not have been
difficult for Kanzela to know the registration number because Kanzeka worked as a
petrol attendant at the filling station. The accused was referred to the testimony of
Kanzeka that on another occasion the accused brought a group of five persons to
him. The accused replied that he had never ever taken people to the witness. The
accused denied that he ever attended a meeting at the DTA office in 1998 as
testified by Progress Mulonga. The accused testified that he had never worked at the
DTA offices.
[681] The accused admitted that Jeremiah Kanchele is his counsin but denied that
he had ever spoken to Kanchele’s son about going to Botswana. He testified that he
used to discuss family matters with Kanchele. The accused denied that Kanchele
had confronted him and had told him not to tell Kanchele’s son about going to
Botswana. The accused stated, in respect of the four witnesses who pointed him out
and who testified against him that there was nothing else they could have done
because they were followed by the police and found themselves in the hands of the
police. This was however not put to one of these witnesses during cross-
examination. During cross examination by Mr July, the accused testified that there
were no ill-feelings between himself and the witness Kanchele; that he could not
remember the conversations with Kanchele but could recall conversations in
connection with family matters. In respect of the DTA meeting, the accused
concedes that he said in evidence-in-chief that he could not remember that meeting
and that was something different from denying that he attended such a meeting. It
was put to the accused that he was changing his testimony from what he had
testified in-chief and the accused agreed.159 The accused testified that he did not
know the witness Progress Mulonga and that he saw him for the first time when he
gave his testimony.
159 P 38208, line 32.
241
[682] The accused conceded that he might have given the witness a lift to the
meeting and that he cannot dispute the evidence of the witness on that point. When
asked why the witness would have testified about receiving N$ 150.00 from the
accused, the accused speculated that the police could have influenced or threatened
the witness. When asked whether he had ever lend his vehicle to someone else, the
accused replied that it was possible that he could have lent his vehicle to one of his
colleques or to his brother or other family members. The accused conceded that he
did not testify about this during his testimony-in-chief. The accused was referred to
the fact that during the cross-examination of the State witnesses, it was not put to
them that he had lend his vehicle to a coleque or to a relative. The accused replied
that he gave such instructions. The accused conceded that he never told the police
that he had lend his vehicle with registration number N 678 KM to a colleque or a
relative and further conceded that he made no reference to his motorvehicle in his
plea explanation. I must state that there was no plea explanation. It must be stated
that the accused pleaded not guilty and gave no plea explanation.
[683] The accused testified that he was a member of the DTA, an inactive member
up to the time of his arrest, that he was not a registered member but a party
supporter. The accused testified that there was a DTA branch at Makanga. He also
testified that he came to hear about the UDP in 1998 ‘when it was being said it has
disaffiliated itself from the DTA’. It was pointed out to the accused that the evidence
presented shows tthat he was a recruiter of persons to go to Botswana in order to
fight for the secession of Caprivi from Namibia. The accused denied that he ever
recruited anyone for the purposes of secceding the Caprivi Region. It was further
pointed out that there is testimony that he supported the rebels who gathered at
Makanga bush and provided them with transport to Waya-Waya in order to
commence the attacks in the Caprivi on 2nd August 1999. The accused replied that
not one of the four witnesses who had testified in court testified to that effect. The
accused confirmed that evidence was presented in court that his vehicle transported
people from Makanga bush to various places in preparation for the attacks on 2 nd
August 1999.160 When asked whom of the accused persons he had known prior to
his arrest, the accused mentioned Mr Mucheka, Gabriel Ntelamo, Leornard Ntelamo,
Geoffrey Mwilima and Richard Mundia.
160 P 38218, lines 20-23.
242
[684] The accused was referred to the testimony of Mukushi Events Kaine that his
motorvehicle was seen on the night of 1st August 1999 at Makanga. The accused
replied that he did not know Events Kaine and stated that his vehicle was with him at
home. The accused was reminded that counsel did not put it to the witness Kaine
that the yellow Toyota Hikux Bakkie was with the accused on the night of 1st August
1999. The accused agreed that that was not put by counsel to the witness, but that
he gave such instructions. The accused agreed that his vehicle could not have been
at two places at the same time. The accused testified that he became aware during
1998 that there was an exodus of people to Botswana. This was announced over the
radio. He however did not know the reason for such exodus. The accused testified
that he only came to hear about secession when witnesses testified in court.
[685] The accused agreed that in his position as principal of a school, if he had
knowledge of treasonous activities taking place that he had a responsibility to inform
the Namibian authorities about it and knew that not to do so constitutes a criminal
offence. The accused denied that he had any prior knowledge of the attacks on 2 nd
August 1999. The accused was confronted why his counsel had, during cross-
examination of the witness Borniface Libanda, put it to the witness that people were
going to Botswana because of information circulating, whilst the accused had
testified that he did not know why people were leaving for Botswana.
[686] The accused replied that he does not think that he woudld have given such
instructions to counsel. The accused was referred to the testimony of Borniface
Libanda who had testified that at a meeting, one Kester Kabunga pointed out two
things, namely, that those in attendance should assist and must learn to help those
who wanted to go to Bostwana. The accused agreed that was the testimony of the
witness, but that the witness did not refer to him. The accused was referred to the
testimony of this same witness who testified that those present at the meeting
agreed to assist those 30 people and donated N$ 150.00. The accused replied that
he heard that testimony and that the witness was not referring to him. The accused
was refered to the testimony of the same witness who testified that those 30
individuals were taken with four cars, after the meeting chaired by Kester Kabunga,
to Ngonga. The accused replied that he recalled such evidence.
243
[687] The accused was referred to the evidence of Berhard Kanzeka who testified
that Kester Kabunga (whom he had identified as the accused) came to Ngonga
requesting him to assist to take persons to Botswana. The accused replied that he
recalled that evidence. The accused was asked whether he recalled the evidence of
Kanzeka that Kester Kabunga gave him N$ 150.00 for assisting to take those people
to Botswana. The accused replied that he heard the evidence. The accused was
asked whether he still mantained that the Kester Kabunga referred to by Boniface
Libanda is a different Kester Kabunga that gave the N$ 150.00 to Bernard Kanzeka?
The accused replied that he is not the Kester Kabunga, Libanda had referred to. The
accused testified that he knew Borniface Libanda prior to his arrest, as his cousin.
[688] The accused was referred to Exhibit EGO1 at p 21 (a translation from Silozi)
where Brian Mboozi stated what occurred on 10 December 1998 namely:
‘I paid an amount of N$ 100.00 to join Liyonga in order to proceed to Lizaule. I went
with three people. Their names are as follows: Myself, George Ndugati from Masida village
with his wife and Tupelo Calicius. The people who were responsible for our crossing were
Kester Kabunga who I paid N$ 100.00, John Liyonga who asked me in the presence of Mr
Kabunga that if I go to Botswana being a spy the NDF will kill me because they do not want
spying in relation to the case of Muyongo’
[689] The accused replied that he does not know about the encounter on 10
December 1998. The accused was asked whether he had known John Samboma
prior to his arrest and the accused answered in the affirmative. When asked why his
name was not mentioned amonst those accused persons before Court whom the
accused had known, the accused stated that John Samboma was not someone he
used to be with. The accused, when asked, stated that he was not aware of any
other Kester Kabunga who was a principal at a school who drove a yellow Toyota
Hilux bakkie with registration umber N678KM.
[690] Mr Kachaka questioned, when the accused was confronted with the evidence
of the witness Borniface Libanda (who was on application by the State declared a
hostile witness), whether the State could rely on the testimony of such a witness in
order to prove its case against the accused person. As indicated (supra), the
accused confirmed the testimony of Libonga as put to him by Mr July. The
application to declare the witness Libonga a hostile witness, was brought during the
244
re-examination by Mr January. The reason why such an application was brought,
was because the witness, during cross-examination by defence counsel, in particular
the cross-examination by Mr Samukange, testified that his evidence-in-chief is a true
reflection of one of his statements, but that the contents of his statement itself is
false, because the statement reflects what Sgt. Evans Simasiku had told him, and
did not come from the witness himself. He testified that due to the particular
circumstances under which the statement had been obtained, namely, duress, he
had no option but to sign the statement. The witness testified that he deposed to four
witness statements.
[691] The application was successful and Mr January cross-examined the State
witness which cross-examination was limited to the consideration whether or not
what is contained in the statement was false and was prescribed to him by the
police. The witness was extensively cross-examined and it is not necessary for me to
go into much detail regarding the replies of the witness during such questioning,
save to state the following: the witness gave his testimony in chief on a Thursday
and (for reasons which are irrelevant) was cross examined only on the next Monday
morning; during the entervening week-end the witness attended a gathering of family
members in Windhoek; no-one according to the witness enquired why he was in
Windhoek and he informed no-one whey he was here, coming from the Caprivi
region; that the method employed by Sgt. Simasiku in obtaining his statement was
by asking questions and the witness providing the answers and in this way sgt.
Simasiku compiled what the witness refered to as a ‘comprehension’. The witness
thereafter signed this statement; the witness was informed by the prosecutor during
consultations to testify the truth and that he should feel free to testify; that the
witness was sworn in and reminded by the court to tell the truth; that the witness did
not tell the truth during his testimony in chief because the witness waited to be given
the ‘option’ by the court to tell his story from the bottom of his heart; that he at no
stage during his testimony-in-chief gave any indication that he was being untruthful;
that he would not have revealed his testimony as an untruth had he not been
questioned by Mr Samukange about people fleeing to Botswana because of
assaults, intimidation and torture; that Kester Kabunga is his cousin; that the house
of Kester Kabunga is five metres away from his house; that they grew up together;
that on the morning of 2nd August 1999 on his way to school he was stopped by four
245
school children who got into his vehicle and the one whose name he mentioned, told
him about the attack on Katima Mulilo that morning.
[692] The witness was a very evasive witness, gave inconsequential answers, gave
answers which made no sense at all, to such an extent that this court had to remind
the witness that this court has to establish the true facts and was not interested in
‘failry tales’. This witness was a poor witness and the distinct impression this Court
got was that the witness was not truthful when he made the allegation that his
testimony in chief was false. If Sgt. Simasiku had provided all the necessary
information the question which comes to mind how could Sgt. Simasiku have known
that he was stopped by children, that the one whose name was mentioned informed
him about the attacks that morning on his way to school? This was information only
known to the witness himself.
[693] I am satisfied that what the witness testified in his testimony-in-chief was not
an untrue version of the events testified to by the witness and that the allegation that
the contents of his witness statement had been prescribed to him by Sgt. Simasiku,
is false. The Sate was thus in my view entitled to confront the accused during cross-
examination with the testimony-in-chief by the witness, Libanda. The testimony of
Progress Mibonda was not disputed and stands uncontradicted, namely that he
assisted the accused person to get a group of persons to cross the border into
Botswana. The description of the vehicle used by the accused is also not disputed.
The evidence of the witness Kanzeka was that he had assisted the accused on two
occasions to get individuals across a river and into Botswana, although this was
denied by the accused. The testimony of Kanzeka was that on one of those
occasions, the group consisted of 30 persons and he was paid N$ 150.00 by the
accused.
[694] The evidence of Libonda supports the evidence of Kanzeka. Libonda testified
about a gathering where N$ 150.00 was collected to assist a group of 30 persons on
the request of the accused, that this group was transported to Ngonga at night and
that the vehicle of the accused was one of the vehicles used. Kanzeka testified that
the accused arrived there with his yellow Toyota Hilux bakkie with registration
number N 678 KM, and that he observed three vehicles. A reasonable inference to
be drawn is that the N$ 150.00 collected at the gathering was the money paid to
246
Kanzeka when he demanded payment. The accused confirmed that he was the
owner of the motor vehicle with registration number N 678 KM. The Kester
Kambunga referred to by Libonda can in the circumstances refer to no other person
than accused no 102.
[695] Mukushi Events Kaine testified that on the evening of 1st August 1999, he
observed the motorvehicle of the accused at Makanga prior to the attack, and that he
knew that vehicle since he used to travel with that vehicle to Katima Mulilo. This
testimony was never challenged during cross-examination and stands
uncontradicted. Walters Sikochi also testified about observing the vehicle of the
accused at Makanga on the evening of 1st August 1999. Although the witness
conceded during cross-examination that he did not see the registration number of
the yellow Hilux Toyota bakkie (and that by implication that it could have belonged to
someone else) it was never put to the witness (as testified by the accused) that the
vehicle of the accused was not at Makanga but was at the home of the accused
person. The evidence by the accused that his vehicle was at his home on the
evening of 1st August 1999, must in view of the uncontested evidence that his vehicle
was observed at Makanga, be rejected as false.
[696] The reason given by the accused why the witnesses, Mibonda, Kanzeka and
Kanchele had incriminated him was, as indicated previously, pure speculation. When
confronted by Exhibit EGO, an inscription made by a co-conspirator about his
involvement in assisting that individual from crossing the border into Botswana, the
accused stated that he had no knowledge of such an incidence. The accused did not
categorically deny that such inscription was not the truth. This inscription is an
executive statement.
[697] The evidence adduced by the State overwhelmingly proves that the accused
was actively involved in transporting a large number of individuals to cross illegally
into Botswana and made his vehicle available to transport rebels from Makanga prior
to the attacks on 2nd August 1999. The bare denial by the accused cannot be
reasonably possibly true in the circumstances. I am satisfied that the evidence
proves beyond reasonable doubt overt acts committed by the accused and that he
possessed the required hostile intent.
247
Fabian Thomas Simiyasa (accused no. 96)
[698] Oscar Mwisepi testified in respect of his role in attempiting to secede the
Caprivi Region by stating that he (ie Mwisepi) was the body guard of Muyongo, that
he persuaded people (to join the course), and that he was one of the persons
‘involved in logistics’,ie that he was responsible for transport. He testified that people
were divided and assigned in different places and that he was in Liselo where he
performed these roles. Persons who performed the same role (ie in respect of
transport) were Eugene Ngalaule and Fabian Simiyasa. It appears that the accused
guarded Muyongo only one night.161 The witness testified that Fabian Simayasa (like
Eugene Ngalaule) recruited young men and women and arranged for transport to the
border with Botswana. Mwisepi testified that Fabian Simiyasa gave a lift to a young
man, who had guarded Muyongo and also gave a lift to a group who had attacked
the town. One of the persons so given a lift according to Mwisepi is an accused
person, O’Brian Sinkolela Mwanayambe. Mwisepi testified that the reason why
people were going to Botswana was to ‘enhance the idea of seceding Caprivi’.
[699] When asked how he knows Fabian Simiyasa, the witness replied as follows:
‘He is a prominent person My Lord, the person who I know that he played a big role
in the idea of seceding the region. I remember he is a person who gave a lift to some people
from Liselo to join those at Makanga. That I remember he is a person also that moved from
Makanga to Kalumba who happened to take water for the ninety two (92) on October 6. That
he is one of those who happened to have been an escort to Muyongo when he was entering
Botswana. That I remember he is one person who gave a lift to some young men to go and
join them with others whilst the day of the shooting was drawing closer my Lord’
[700] Ms Sithole-Mwenda, counsel appearing on behalf of the accused at that
stage, rose and remarked that the witness was testifying as if he were amongst
those who had been given a lift and wanted to get clarity on that point. The witness
replied that he was one of those who played a role. Mr January pointed out that if
any part of the testimony of a witness is not clear to counsel, it could be clarified
during cross-examination where upon this court respondend as follows:
161 P 622.
248
‘Yes, I can understand that but to obviate the need for unnecessary cross-
examination by defence counsel it is imperative that the witness as far as possible testifies
about his experiences which he gained first hand, and not to include hearsay because then
counsel would have to clarify the idea that at the end it was just hearsay evidence.’
[701] The witness was subsequently asked that his testimony regarding Fabian
SimiyAsa being involved with transportation, where he got that information from and
the witness replied as follows: 162
‘That My Lord where such issues used to be done, that’s the places where I used to
be found that making a bit of clarification. I regard his as my parent as well that my biological
father is married to the young sister and its in the village where I used to stay. From the
house where I used to sleep to the house, to his house is less than hundred(100) metres.
Thank you so much my Lord
(Mr January): Please proceed with your next person. . .’
[702] It is clear, at least to me, that the reply of the witness did not answer the
question namely, from where he had obtained such information. It not only left the
question unanswered but created more uncertaintly. Mr Kachaka in his heads of
arguments submitted in this regard that the witness in his summary (in response to
the question how the witness knows Fabian Simiyasa) appears to have put together
all that the witness had heard from other persons, over the radio, and read in
newspapers, and remarked that the witness had testified himself that he (ie the
witness) was not part of the events which unfolded on 2 August 1999. Nevertheless,
as I have indicated, the answer remains unclear.
[703] During cross examination by Ms Sithole-Mwenda, the witness testified that the
accused was one of the persons who transported Muyongo when he fled Namibia
but stated that he was not part of the entourage. When Mwisepi was asked how he
then knew that the accused transported Muyongo to Botswana the witness replied
that it was not a secret. This in my view implies hearsay evidence on this point. The
witness was asked whether he was part of the group which attacked the town and
which group was given a lift by the accused. The witness replied that he was not part
of such a group. The witness conceded that this evidence was hearsay. The witness
was asked if he were with the accused when according to the witness water was
162 P 776, lines 1-11.
249
delivered to the group of 92 at Kalumba. The witness replied he was in the village
Liselo where the water was taken from, but was not with the accused when he went
to deliver the water at Kalumba. This again amounts to hearsay.
[704] It was put to Mwisepi that the accused was between September and October
attending a caretaker’s training at Harmony Centre, then in Okakarara ‘ for about
eight weeks’. 163The witness disagreed. It was put to the witness that the accused
denies ever giving a lift to someone to attack Katima Mulilo on 1 st August 1999, that
on 1st August he was on stand-by (duty) at work and was summoned to go and
inspect a pipeline just before Kongola, that he inspected an engine at the village
Mutumbwe, and that he went to park his vehicle around 21h00 at the office and took
a lift home. The witness replied that he had no comment, but disagreed with the
statement. It was put to the witness that the accused was a fieldworker who at times
worked during weekends and that it was not possible for him to recruit persons or
organise transport, that he had no persmission to keep a vehicle at his home164 and
was given any motorvehicle which was available whenever there was work to do and
that the vehicles he used to drive were at other times driven by the other drivers. The
witness disagreed. The witness testified that he does not know why the accused did
not go to Botswana. It was put to the witness that the accused will deny any alleged
conversation he had with the witness where it was alleged that one of his co-
accused had supplied him with diesel, that he had not previously met this co-
accused until they were arrested and that he used to hear that this individual was the
head of the government garage. The witness replied that he testified about what he
knew.
[705] Alfred Kupulo Kupulo was warned interms of s 204 of Act 51 of 1977. This
witness testified that he had joined the CLA in order to fight the Government of
Namibia. The witness testified about an occasion when he found himself in a group
of men at Kalumba where the accused brought food to them. The witness testified
that the accused arrived there with a 4ᵡ4 Colt, Government vehicle. According to this
witness, the accused told the group not to be worried about food and water since he
would supply it to them. During cross examination, the witness was referred to an
affidavit apparently deposed to by this witness and which was used in court in
Botswana in an extradition application in respect of 13 individuals and in which 163 P 1436, line 9.164 P 1437.
250
affidavit the witness stated that one Danbar Mushwena brought food to them at
Kalumba. The witness confirmed this, and was asked for an explanation. The
witness replied that both of them, ie Danbar Mushwena and the accused brought
food. When asked why he did not mention Danbar Mushwena earlier the witness
replied that he was not asked how many persons brought food to them. It was put to
the witness that the accused denies bringing food to them or promised to bring water
to Kalumba, that the accused was at work and parked the vehicle as usual at 17h00.
The witness disagreed stating that he, himself, drunk the water and ate the food. The
witness agreed that the incident accured on a work day but stated that the food was
brought during the night.
[706] Walters Mwezi Sikochi testified that Fabian Simiyasa was at Makanga on 1st
August 1999 and was driving a TATA Truck. This witness identified another accused
person in court as Fabian Simiyasa. This was a wrong identification. Hubby Habaini
Sinyabata testified that on Sunday, 1st August 1999 during the evening he was at his
village at Itobo, when he observed a big vehicle, a TATA arrived loaded with people
and stopped near his house. His brother-in-law disembarked, came to the courtyard,
got a lunchbox and got onto this GRN vehicle. According to this witness the driver
was Fabian Simiyasa. This witness was unable to identify Fabian Simiyasa as one of
the accused persons before court.
[707] Richard Bakabuba Sikwela testified that he hails from Masida village and that
on 1st August 1999 he was collected from his village by certain individuals who were
armed with fire-arms. They travelled in a Hilux bakkie to a rebel camp, Makanga and
narrated what transpired there. He boarded a vehicle destined for Katonyana, other
groups departed for other destinations amongst others Wanela Border post, the
police station, NBC and the Shopping Centre. The group in which he was consisted
of about 12 individuals. They travelled from Makanga in a GRN TATA, white in
colour truck driven by Fabian Simiyasa. The witness described how they passed a
road block. He only possessed a stick whilst other members of the group were
armed with firearms. The witness described what happened at Katonyana and that
he eventually fled the scene. This witness failed to identify Fabian Simiyasa as one
of the accused pesons. This witness was not cross-examined by counsel appearing
on behalf of the accused, namely, Ms Sithole-Mwenda.
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[708] Vincent Simwanza Mayumbelo testified that he was employed as a security
guard by the firm ‘Katima Security’ and his duty was to guard motorvehicles
belonging to the Government of Namibia. On Sunday, 1st August 1999, he was
performing duty at ‘Rural, Water Supply’ when there came a ‘government driver’
between 9h00 and 10h00 to collect a vehicle. The driver was one Fabian Simiyasa,
who informed him that he was there to collect a vehicle in order to go to Kongola to
repair a water pump. Fabian Simiyaza came to collect a white TATA lorry with
registration number GRN 10972 and ‘signed in the book’. Fabian Simiyasa did not
inform him when he would be returning. According to this witness, Fabian Simiyasa
returned during the night at about 02h00 and parked the vehicle. The time was
registered by the driver and he signed. The driver was then picked up by a Colt
double cab GRN motorvehicle. After the driver had left he heard the sound of
gunfire. The witness was unable to identify Fabian Simiyasa as one of the accused
persons in court.
[709] During cross-examination, it was put to this witness that Fabian Simiyasa
says that he came to park the vehicle at approximately around 21h00. The witness
disagreed and said it was around 02h00. It was put to the witness that Fabian
Simiyasa says that there was much work and the distance between Katima Mulilo is
around 120km and that was the reason he returned only at 21h00. The witness
insisted that it was 02h00. It was further put to the witness that when Fabian
Simiyasa brought the vehicle back he did not register it in a book. The witness
insisted that Fabian Simiyasa signed the book. It was put to the witness that no Colt
vehicle came there to pick him up but that he took a taxi from town centre. The
witness replied that he, ie the accused, boarded a GRN vehicle. The witness
conceded that he did not see the driver of the GRN motor vehicle and did not see the
GRN number but the reason for failing to observe the number and the driver was due
to the fact that the GRN vehicle parked some distance away from where he was.
[710] Kennedy Muchisani Tiyeho testified that during 1998 he went to Botswana in
the hope of finding employement, but later returned through repatriation. On 1st
August 1999 whilst at his village Sikalenge, Fabian Simiyasa arrived there and told
him that they should come together that evening. He testified that Fabian Simiyasa is
known to him as Simiyasa was employed at Water Affairs and used to repair
boreholes. That evening Fabian Simiyasa arrived there with TATA vehicle, the
252
property of the Government. The witness testified that when he had a conversation
with Fabian Simiyasa earlier that day; he arrived there with the same vehicle. A
number of men including himself boarded the vehicle and they drove to Kaliyangile
where three young men also boarded the vehicle. One of them was armed with a
firearm. They proceeded to Makanga where he found many people and they were
registered by a Mr Chainda. There were also other vehicles. He subsequently
boarded a green Bantam vehicle with other persons and left for Waya-Waya and
from there to Mpacha. The witness failed to identify Fabian Simiyaza as an accused
person before court.
[711] Mountain Efferson Chiyeye testified that on 30 July 1999 he reported for work
at Rural, Water, Supply where he was employed as a senior artisan foreman. That
morning he received people from Kongola who were operating the engine at that
pump station. Kongola pump station is 127 km from Katima Mulilo and under the
jurisdiction of Rural, Water Supply for the maintenance of the pump station which
provides water for a distance of about 70km to communities. He opened job cards
and instructed Fabian Simiyasa to take the job cards, and a Mr Chakanda and to
proceed to the pump station and service it. Both Fabian Simiyasa and Chakanda
were employed by ‘Rural Water Supply’. The witness testified that on the
maintenance section he was the overall supervisor. The witness testified that in
addition to the service of the engine at Kongola, the other job cards were for
Mutongwe where they were suppose to construct a platform for an engine. After he
had given those instructions he ‘opened a trip authority’. Fabian Simiyasa asked for
permission to go and get his salary at the bank, there was only one branch at that
stage namely, Bank Windhoek, situated about 200m from Rural Water Supply. The
trip authority was made out for a month and it was in respect of a TATA truck, which
was a new truck which they had just received and was assigned to Fabian Simiyasa
‘specifically for use’ and was acquired a few months earlier. The vehicle was
assigned to Fabian Simiyasa for use in respect of the repair of all Rural Water
Supply infrastructures.
[712] The witness testified that he only saw Fabian Simiyasa again on Sunday 1st
August 1999 when Simiyasa came to his house. The witness testified that the
procedure is that once a job has been completed the person who did the work would
return with the job card to the supervisor but that Fabian Simiyasa did not return to
253
him on the Friday neither did he do so on the Saterday. On Sunday 1st August 1999
Fabian Simiyasa came to him to ask for the key of the TATA truck. He found it
strange and asked Simiyasa where the key was and Simiyaza replied that it was in
the office of Pieter Tweufilwa, the artisan at the mechanical section. They drove to
Rural Water Supply where the key was handed over to Fabian Simiyasa and this
witness also entered the kilometre reading and completed all the necessary
documentation in respect of the trip authority. Whilst completing the trip authority he
instructed Simiyasa not to leave Gilbert Chakanda behind because Chikanda had by
then been 3 days in town without operating the water pump engine at Kangolo.
During the early hours of 2nd August 1999, he heard gunshots in all directions. At
about 07h30 he drove to Rural Water Supply and found a lot of people had gathered
at the gate entrance who reported to him about the shooting intown. There were also
two police officers. He told Gilbert Chakanda whom he found there that since
Simiyasa was nowhere to be seen that he should go back and instructed the other
employees to return home since the situation was chaotic.
[713] On the 3rd August 1999 he was visited at home by two persons from Safety
and Security who made enquiries about the whereabouts of the TATA truck. At that
stage, he thought that the truck should be at Kongola in possession of Fabian
Simiyasa and he informed thse two persons accordingly. These individuals asked
whether they could go to Rural Water Supplies to see if the vehicle was there. When
they got there, they found the vehicle there. On inspection he found the vehicle dirty
and full of grass on the sides and on the bumpers, the loadbox was dirty and he
observed items such as toothbrushes, slippers and other goods. Inside the loadbox,
the paintwork was in order but outside where scratches. At this stage Simiyasa was
not present. On Monday, 9th August 1999, he discovered a leave form in respect of
Mr Simiyasa with Ms. Simeja and inspected the leave form. On this form only the
name of Fabian Simiyasa appeared and it was recorded in the handwriting of Ms
Simeja. No further details like the period of the leave, the date when it was requested
or the signature of the applicant were apparent from the leave form. The witness
testified that he had no knowledge about this leave application.
[714] On 22 August 1999 he was at home when Fabian Simiyasa arrived there in
his own motorvehicle, it was during a week-end and during the day. Fabian Simiyoza
asked whether the witness was looking for him to which the witness answered in the
254
affirmative since he has not seen him at work. Fabian Simiyasa then told him that he
was on leave and the witness encquired who had approved his leave to which
question Fabian Simiyasa replied that it was the witness himself. The witness replied
that he did not approve such leave and he became ‘bitter’ because he was accused
of doing something which he did not do. The witness testified that he asked Fabian
Simiyasa where he was on 2nd August 1999. Fabian Simiyasa replied that he had
gone to Mutongwe ‘delivering the soil’. The witness testified that he had previously
observed no soil on the loadbox of the TATA truck. The witness testified that Fabian
Simiyasa told him that he did not go to Kongola because he did not have time to go
there and an intense quarrel ensued because of the fact that Fabian Simiyasa did
not go to Kongola.
[715] The witness was asked whether he knew the GRN registration number and
the witness replied ‘it is in the series of the 10 000 ‘s’ ’ and that there were two
trucks. The witness testified that a one ton 4ᵡ4 TATA truck was assigned to Fabian
Simiyasa and the other one ton TATA was assigned to the artisans of the
Mechanical section and that during the period 30 July to 2 August 1999 that other
truck was in the garage, it was not operating and that the only TATA truck which was
available was assigned to Simiyasa. The witness testified that since Kongola is
127km from Katima Mulilo he expected the distance travelled by the truck to be in
exess of 200km inclusive of passing through Mutongwe on his way to Kongola or on
his way back, however on his inspection the vehicle had only travelled 22km. This
figure was calculated by himself by subtracting the kilometre reading on the trip
authority (before the journey was undertaken) with the kilometres reading on the
odometer and the difference was 22km. The witness testified that from Katima Mulilo
to Mutongwe is about 55km. The witness testified165 their Directorate was the only
directorate in the region who had those types of vehicles namely, 1 ton 4ᵡ4 trucks.
[716] During cross examination by Ms Sithole-Mwenda, the witness testified that
Fabian Simiyasa was a senior handyman and that they had a good relationship; that
Fabian Simiyasa was responsible for servicing and repairing of boreholes, pumps
and pipelines along the Kongola line, and did civil and mechanical work; that the
keys of the vehicles were kept in the office of Mr Tweufilwa and that drivers had
access to that office; that 30 July 1999 was payday; that he was surpriced to hear
165 P 24525, lines 17-19.
255
that Fabian Simiyasa requesting the keys of the truck from him because Fabian
Simiyasa knew that the keys were kept in the office of Tweufilwa; that he did not
mention in his statement toothbrushes and slippers but that were included in the dirt
he referred to in his statement; that he stated in his statement that he only knew one
police officer at the time, namely Shadrick Mayo, but did not state in his statement
that he went with two police officers to inspect the TATA truck; that he inspected the
TATA truck after Fabian Simiyasa had returned it; the witness conceded that he did
not know if the toothbrush and slippers were on the loadbox before Fabian Simiyasa
received the vehicle.
[717] The witness was asked since the keys of all the vehicles were kept in the
office of Mr Pieter Tweufilwa whether there was a possibility that other drivers could
have used the truck assigned to Fabian Simiyasa to which the witness replied that
he would not know about it. The witness on a question put to him, replied that other
regions also had one ton TATA trucks. When asked whether a truck from another
region could have been seen in Caprivi region the witness replied that he would not
know that.
[718] The instructions of Fabian Simiyasa was put to the witness namely that he
had worked over that weekend on the instructions of the witness and that he could
not have gone on Friday or the Saterday to Kongola because he had to sort out
domestic issues’. The witness replied in re-examination that Fabian Simiyasa was
suppose to ask for permission to attend to his private issues and not to accept the
keys and take the job cards to do the work. It was put to the witness that Fabian
Simiyasa did not go with Chakanda because he could not find him in town, that since
time was running out he decided to check the pipeline from Katima to Mutombwe
and carried soil which he used to work with at Mutombwe and he then continued to
Masida and when it got dark, he decided to return; that in respect of the 22 km on
the odometer he did not know what could have happened because he used the
vehicle in the rural areas. It was put to the witness that Fabian Simiyasa said that he
signed the application for leave form after he had completed it and that the witness
approved his leave. The witness replied that he had never authorised any leave. It
was put to the witness that the events of 22nd August 1999 as narrated by the
witness is denied by Simiyasa, the witness replied that his testimony was the truth.
256
[719] The accused testified that he was arrested on 16 th August 1999 and was at
that stage employed by Rural Water Supply, ie by the Government of Namibia as
senior handyman. He testified that he was arrested at work and taken to the police
station where he was assaulted. The accused confirmed the evidence of Chiyeye
that he was given certain instructions. On the Saterday, he was still busy at the bank.
On Sunday, he couldn’t find the person who was supposed to go with him. The
accused related how he went to the house of Chiyeye and was later provided with
the keys of the vehicle, a one ton GRN TATA truck, a small truck white in colour with
registration number 10972. When he arrived at Mutombwe he ‘fixed’ the engine and
carried on to inspect the pipelines up to Masida and returned home in Ngweze and
parked the vehicle at about 21h00. When he arrived at the gate, he met the security
guard who open the gate, parked the vehicle and gave the keys to the security guard
and then proceeded to his house at Liselo. The accused denied that he had taken
food to Kalumba as testified by Kupolo; never promised to bring food and water; that
he did not drive with a GRN Colt 4ᵡ4 to Kalumba; that he had never been at Kalumba
and does not know Kupolo; that Kupolo testified ‘lies’ gainst him because Kupolo
himself was a secessioninst and in order not to be arrested he had to mention a
name; that he played no part in the cutting of Caprivi as testified to by Mwisepi; that
on October 6, he was not in Katima Mulilo but at school at Harmony Centre; that he
did not escort Muyongo; that he did not give a lift to anyone.
[720] During cross-examination by Mr July, the accused denied that he was at
Makanga. He testified that prior to his arrest, he was a member of SWAPO. He
testified that he heard over the radio that the President of the UDP was Mishake
Muyongo. The accused stated that there were many GRN TATA trucks in existence
in the Caprivi Region during 1999, that at Works Department, at Education, at the
hospital were TATA trucks –all white in colour, but in respect of one ton TATA trucks,
he was aware of two at the place he was employed but did not know about other
TATA trucks in other departments. The accused testified that a vehicle would be
assigned depending on the type of work he had to do and for small works he would
use a small vehicle like a Nissan Safari or the Colt 4ᵡ4. There were two Colt vehicles
with registration numbers 10496 and 10475. The accused testified that he used the
Colt GRN 10495 in the field at boreholes during the year 1998 but does not know
which month he used that vehicle. The accused denied that he drove that Colt
vehicle during the year 1999.
257
[721] It was pointed out to the witness that counsel who appeared on his behalf had
put to the witness Hobby Sinyabata that Mr Simiyasa was a helpful person who liked
to give lifts to help almost everyone and that this instruction is contrary to his
evidence namely that he did not give lifts to people.The accused disagreed. The
accused denied that he received an instruction from Cheyeye that under no
circumstances should the accused leave for Kongola without Gilbrert Shakanda.
According to the accused he was just instructed to give Shakanda lift to Kongola.
The accused agreed that it was not put during cross-examination to Mountain
Chiyeye that he did not give any instruction to the accused that the accused should
not leave without GilberT Shakanda. The accused testified that he had agreed with
Gilbert Shakanda to pick him up at his home between 9h00 and 10h00 but when he
arrived there just past 10h00 Gilbert was not at home. The accused testified that
when he could not find Shakanda, he left for his village and thereafter left after
14h00 to carry out his assignment.
[722] The accused conceded that he did not testify during his testimony-in-chief that
he first went to his village for lunch. The accused denied that he testified that he first
went to Mutombwe and denied that after Mutombwe he went to inspect the pipeline
at Masida. The accused testified that he did not go to Kongola. The accused testified
that when Katima Mulilo was attacked he was asleep at his village, Liselo
approximately 10km from Katima Mulilo. The accused testified that he knew that it
was 21h00 when he returned the TATA truck because he had a watch and that he
told the security guard to record the time. It was however never put to the security
guard that he was asked to record the time. The accused testified that he was on
leave from 2nd August 1999. It was pointed out to the accused that it was never
disputed during cross-examination of the witness that the vehicle was assigned to
the accused for the entire month of August. The accused agreed that it was not
disputed.
[723] The accused testified that his leave was for a period of 15 days and that he
had applied for leave a week before he went on leave. The accused could not recall
the date when he applied for leave, but stated that it was during July. He put in leave
in order to rest at the village. It was however not put during cross examination to
Chiyeye that the accused applied for leave a week earlier and it was not put to the
258
witness Chiyeye that he would be able to find the accused at Liselo village should he
need him. The accused testified that when he woke up during the morning of 2nd
August 1999 he could hear the sound of gunfire. When it was put to the accused that
he knew exactly where those sounds came from and what caused those sounds, the
accused disagreed. The accused denied that, prior to 1st August 1999, he knew of
plans to secede the Caprivi region by violent means, and stated that he did not know
about the exodus of people to Botswana. The accused testified that he was not
aware of any rebel bases and denied that he took food to persons at such rebel
bases.
[724] The accused in an unguarded moment testified that no child of his went to the
‘struggle’.166 The accused was asked which ‘struggle’ he was referring to since the
prosecutor himself never referred to a struggle. The accused replied that he heard
about secession over the radio on 2nd August 1999. The accused conceded that he
had heard over the radio that a group of Caprivian men crossed the Chobe River on
27 October 1998 with weapons of war. The accused conceded that he heard over
the radio about Caprivians leaving Namibia illegally for Botswana but did not hear
the reason why they had left. The accused testified that he had been employed at
the Ministry of Rural Water Supply from 1995. The accused was asked: ‘since 1995
there were no other Fabian Simiyasa who was responsible for fixing boreholes in
Caprivi. . .’ and the accused replied that (the other) Fabian Simiyasa was not
there167but that there were many other people who were repairing boreholes.
[725] The accused testified that the trip authority was made out for only one day by
Chiyeye but conceded that had Chiyeye known that he would be on leave, Chiyeye
would not have made out the trip authority for one day. The accused denied that he
registered people to join the CLA. The accused testified that he did not know the
security guard Vincent Mayumbelo and that he saw the security guard for the first
time when he returned the TATA truck that evening. The accused testified that he
saw Hobby Sinyabata for the first time when the witness gave his testimony in court.
The accused denied that he had driven a GRN TATA truck full of people as testified
by Hobby Sinyabata. The accused testified that he did not know Kennedy Tiyeho
prior to his arrest and does not know where Sikelenge village is situated. The
accused denied ever going to Sikelenge village. The accused denied that he ever 166 P 38106, line 30-31.167 P 39116, line 24-25.
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went to Makanga in a GRN truck as testified by Walter Sikochi. The accused agreed
that if he had travelled to Mutobwe and back to Katima Mulilo the distance travelled
would have been in excess of 100km.
[726] The accused further agreed that according to the testimony of a Mr Ludik who
inspected the speedometer cable, there was an unscrewing and screwing of the
cable of the vehicle, but added that that evidence did not concern him since he didn’t
do it. The accused was confronted with job cards made out on 23 rd and 24th
September 1999 for work to be completed on the Kongola road and why someone
would complete these jobcards if he was at Harmony centre. The witness replied that
it was possible, since the job would have to wait until he had returned. This reply
does not make any sense at all.
[727] The accused was referred to Exhibit EGO1 (H1(2)) where Brian Mboozi, a co-
accused stated:
‘On the 29th July 1999 we were sent that we must go to Sasha camp so that we could
go and get 91 mortars and its bombs. Now it was found that the one which they trusted there
at Linyati that it was the one which was confiscated by the Bostwana last year with the 92.
We came back on 2nd August 1999 at the time at night. The one who gave us lift was
Simiyasa. He brought us to Chandu at night. We found that others were already sent to
their posts. At the time of 02:00 then we ran with the young man. Now seeing that then I saw
that I should go to Zambia then I escaped. Then I went to Makanga where I stayed for two
months and few weeks. Up to now is where I came from.’
The reference to Simiyasa in my view is vague and does not refer to the accused
before court. The accused denied knowing Mboozi and denied taking persons to
Chandu.
[728] I shall deal with two issues in the evaluation of the evidence presented to
Court. The first issue referred to by Mr Kachaka in his heads of argument is that
contrary to the submission by counsel appearing on behalf of the State, no inference
can be made that the accused person was the driver of the TATA truck as testified
by the State witness since the accused had given an account of all his movements
with this TATA truck. It must be kept in mind that those State witnesses who testified
about seeing Fabian Simiyasa driving this white GRN TATA truck did not identify
260
Fabian Simiyasa in court. It is further common cause that the accused person was in
possession of a white GRN TATA truck on 1st August 1999, which TATA truck was
parked at Rural Water Supply. A few hours later the town of Katima Mulilo was
attacked. The security guard testified that the GRN TATA truck was returned by the
accused approximately 02h00 and that he subsequently heard the sound of gunfire.
It is not clear how long after the vehicle was parked he heard those sounds.
Mountain Chiyeye testified that at that stage, there were only two one ton GRN
TATA trucks in the Caprivi Region. This testimony was never disputed. Although
there was the suggestion during cross-examination by Ms Sithole-Mwenda that the
possibility existed that someone else employed by Rural Water Supply could have
driven that vehicle, this possibility can be excluded since the evidence of the
accused himself does not support the possibility of another person driving the vehicle
whilst the vehicle was in his possession, and there is no evidence at all that this
vehicle was used by someone else after 21h00 if, for the sake of argument, the
version of the accused is accepted. The possibility that another vehicle from a
difference region could have been seen by the witness is so remote and amounts to
speculation and should be excluded.
[729] The evidence of Chiyeye which is also uncontested, is that during the period
30 July until 2nd August 1999, the second TATA truck was not operational and was in
the garage. This leaves only one GRN TATA truck operational in Katima Mulilo on 1st
and 2nd August 1999 and that was the vehicle used by the accused on 1st August
1999. I have excluded the possibility that someone else could have driven that
vehicle. Although the witness Richard Sikwela could not identify Fabian Simiyasa
who according to the witness he had seen at Makanga and who had driven a GRN
TATA truck from Makanga to Katonyama where an attack took place, his testimony
that he had observed a GRN TATA truck and had travelled in such a truck from
Makanga to Katonyana was never disputed during cross-examination by counsel. In
fact, not one question was put to this witness during cross-examination. This
evidence, namely, that a GRN TATA truck was at Makanga and was driven to a
target which was attacked by the rebels, stands uncontroverted and must be
accepted by this Court. There is only one person in my view who could have been
the driver of that GRN TATA truck on 1st August 1999 and that was the accused. If
this is accepted, as it should be, then there could also have been only one person
who could have driven the vehicle at Sikalenge village as testified by Kennedy
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Tiyeho, only one person who could have driven the GRN TATA truck as testified by
Walter Sikochi, and only one person who could have driven the vehicle at Itobo
village as testified by Hubby Sinyabata, namely the accused person. This in my view
is the only reasonable inference to be drawn from the evidence presented by the
State.
[730] The evidence by the accused that he drove the vehicle, inter alia, to
Mutumbwe and returned it at 21h00 cannot be accepted as reasonably possibly true
in the circumstances. It is not disputed that according to the odometer reading that
GRN TATA truck only registered 22km. If the version of the accused is to be
accepted, then the distance travelled should have been in excess of 100km in view
of the fact that Mutumbwe is approximately 50km from Katima Mulilo. The
explanation by the accused that he did not know what had happened since that
vehicle is used in the rural area cannot be accepted as a plausible explanation. It is
in fact no explanation at all. The accused never suggested that the odometer was
defective. This would have been highly unlikely in view of the fact that it was still a
new vehicle. If one therefore has regard to the distance travelled, namely 22km, then
the testimony of the accused that he travelled to Mutumbwe must be false. There is
the further suggestion that the speedometer cable had been tampered with.
[731] The testimony by the accused that he parked the GRN TATA truck after
21h00 is rejected. The evidence of the security guard was that this vehicle was
parked by the accused approzimtely 02h00. This witness is a person who was seen
by the accused for the first time that day and is in my view an independent witness.
The testimony by the accused that he had told the security guard to record the time
was never put to the security guard. This is an important omission. If this was indeed
the case, it would have supported the version of the accused that he had parked the
vehicle hours prior to the attacks. The security guard, Mr Vincent Mayumbelo,
testified that after the accused had parked the GRN TATA truck, that a GRN Colt
motorvehicle transported the accused from Rural Water Supplies, contrary to the
version of the accused that he left on foot. This GRN vehicle was parked a distance
away and the witness could not see the driver or the registration number. That this
was the imagination of this witness is highly unlikely. Why would the witness have
testified about a Colt motorvehicle? If he had not seen such a vehicle? It is
262
significant that the accused had previously, and this was admitted by the accused,
used a GRN Colt motorvehicle in connection with his employment.
[732] Then there is the testimony about the application for leave form seen by
Mountain Chiyeye only on 9th August 1999. This in my view is also an independent
witness and there was no suggestion that he testified out of malice or ulterior motive.
It was never put to this witness during cross examination that the accused had
already applied for leave one week prior to 30 July 1999. This witness denied that he
had ever authorised any leave in respect of the accused even through it was put to
him that he did so. The record clerk Ms Semeja was not called to explain how she
obtained the application for leave form. The explanation by the accused why he did
not take along the water pump operator, Mr Chakanda is also suspect and indirect
opposition of what he was instructed to do. According to the accused, the agreement
was that he should get Chakanda between 9h00 and 10h00 but left only at 14h00
after he apparently could not find him. It appears to me that it was convenient for the
accused person not to have the company of Cahkanda because this would certainly
have jeorpadised his hidden agenda for the day. The accused down played the
instruction by Chiyeye that he should not leave without Chakanda by stating he was
only required to give Chakanda a lift. This cannot be true in view of the uncontested
evidence that it was important for Chakanda to get to Kongola because the
waterpump had not been operational for three days.
[733] The second issue relates to what was testified by Alfred Kupulo Kupulo and
the response by the accused to that evidence. Kupulo testified that his uncle
Kennedy Molamo informed him about the existence of the CLA during September
1998 and he decided then to join the CLA. On 6 October 1998 he travelled with a
vehicle driven by Kenneth Sitali to Sibinda, where more people joined them including
one Albert Mangalazi, who is married to his aunt. Mangalazi hails from the village
Liselo. Approximately 22 men joined them and the same night they proceeded to
Kalumba. The next morning Fabian Simiyasa brought food to them.
[734] The accused testified that during September-October 1998 he underwent
training at Harmony Centre (situated between Windhoek and Rehoboth) and later at
Okakarara for a period of eight weeks. This is an alibi defence. Although it was put to
Kupulo that the accused denies bringing food to the rebels at Kalumba, the reason,
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ie the alibi defence, was never put to this witness during cross examination as
testified to by the accused in his evidence-in-chief. What was put to the witness was
that the accused was at work and that the vehicle allegedly used by the accused was
parked as ‘usual at 17h00’. This is a glaring and material contradiction, a
contradiction which seriously impacts on the credibility of the accused. The ‘Harmony
Centre- alibi’ was first raised during evidence-in-chief by the accused.
[735] During cross-examination, the accused was questioned whether jobcards
would have been made out on 23rd and 24th September 1998 for work to be
completed along the Kongola road if Rural Water Supplies was aware of the fact that
he was at Harmony Centre to which the accused replied it was possible. The
accused was also confronted with a job card 267 West to Mazoba for 6 October
1998 in respect of the installation of an engine and questioned why such a job card
was generated if his employer had known that he was at Harmony Centre. The
accused was was shown a document which he identified as a fuel voucher provided
by ‘Water Affairs’ dated 18 October 1998. When asked what that fuel vouncher
reflects the accused replied: 168‘it is indicating that I went and fuelled this
motorvehicle on the 18th’ (GRN Colt 4ᵡ4, no 10495). The accused also identified his
signature on the fuel voucher. The accused explained that he could have been in
Katima Mulilo on 18 October 1998.
[736] The accused was hereupon referred to his evidence-in-chief where he
testified: ‘On the 6th October My Lord I was not in Katima Mulilo. Mid-September we
came here to school at Harmony Centre. Then we went towards the end of October
1998. . . ‘ to which the accused replied that he could not recall the dates ‘very well’. It
should be abundantly clear that the ‘Harmony Centre-alibi’ ie the alibi that the
accused was not in Katima Mulilo on 6 October 1998 is false. The evidence proves
the contrary. The criticism of the testimony of Kupulo to the effect that the witness
had given two different versions under oath in two different Courts ( ie in Botswana
and in Namibia) in respect of who had brought food to the rebels at Kalumba was
adequently explained by the witness during cross-examination.
[737] I have discussed (supra) the consequences of raising a false alibi and have
refered to the relevant authorities and need not repeat same. The testimony of the
168 P 38185, lines 22-26.
264
accused that he was not the driver of a GRN TATA truck on 1st August 1999 when
rebels were transported to Makanga in preparation for the attacks and from Makanga
to pre-determined targets earmarked for attack by the rebels, and in particular
Katonyana police base, is rejected as false. I am satisfied the accused supplied the
rebels (ie members of the CLA) food at Kulumba, and by transporting rebels on 1st
and 2nd August 1999 for armed attacks in Katima Mulilo, that his conduct amounted
to overt acts, and that he had the required hostile intent.
Albert Sakena Mangilazi (accused no. 55)
[738] Oscar Munisitwela Mwisepi testified that Albert Mangilazi was someone who
he had “met the second time in the refugee camp,” and that Albert Mangilazi used to
give them advise concerning “the struggle”. During cross-examination Mwisepi
testified that he first came to know Mangilazi when they were at Lisello. It was put to
the witness that Mangilazi says that he has never advocated for the secession of the
Caprivi through the barrel of the gun and therefore could not have given them advice
or an update on the status of the struggle. The witness disagreed. It was put to the
witness that Mangilazi did not go to Dukwe with the idea of seceding the Caprivi
through the barrel of the gun but went there because he was harassed by the
members of the Special Field Force. The witness denied that there was such
harassment by members of the Special Field Force and that was just a ‘slogan’ used
by Mangilazi.
[739] This witness identified Albert Mangilazi in court as accused no. 55. Oscar
Luwake Simbulu was warned in terms of s. 204 of Act 51 of 1977. This witness
testified about an event of how he went to Singalamwe and subsequently to the
border of Angola and returned later. Thereafter the whole group moved to Sachona.
At Sachona a group of men came to join them and Mangilazi was amongst this
group. The witness testified that the accused held no position and was an ordinary
member of the group like himself. This witness identified Mangilazi as accused no.
55 in court. During cross-examination the witness testified that they remained at
Sachona camp for approximately a week and a half. He testified that he knew
Mangilazi from Liselo area since Mangilazi’s house is situated near the New
Apostolic Church. It was put to the witness that the accused was not part of the
group. The witness disagreed.
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[740] Michael Maswabi Nuwe was warned in terms of s. 204 of Act 51 of 1977.
This witness recounted events of how a group of men went into Angola with John
Samboma in order to obtain military training from UNITA. They were unsuccessful.
The witness identified the accused person as one of the members of this group.
This group then went to Sachona where they were taught how to use bombs,
mortars, and AK 47 assault rifles. The witness testified that the accused was their
chef. He further testified that he stayed for six days with this group before he
escaped. This witness testified that he subsequently went to Dukwe refugee camp
in Botswana where he observed the accused. This witness identified Mangilazi as
accused no. 55 in Court. During cross-examination the witness testified that at
Sachona they were divided into groups but that the accused was not in the same
group as he was. He testified that he knew Albert Mangilazi since they were together
in the Army. It was put to him that the accused was never in the Army. The witness
insisted that the accused was in the Army. It was put to him that the accused was
never a chef. The witness replied that he, ie the witness, was telling the truth.
[741] The witness confirmed that he had testified that the accused was one of the
group that went with John Samboma in order to fetch firearms and confirmed that he
was told this by one Frederick Ntambilwa. It was put to the witness that this was
hearsay evidence. The witness disagreed and said even though he had heard about
it he personally saw them as they ‘were crossing’. It was put to the witness, as
instructions that Albert Mangilazi had never been at Sachona or at any rebel base
and that he has never been to Angola and thus could not have accompanied John
Samboma into Angola. The witness insisted that he was present in the “camp” and
that he went to fetch firearms.
[742] It was submitted by Mr Kachaka in his heads of argument that even though
the witness identified Mangilazi his identification was challenged, because the same
witness pointed at Kester Kabunga (accused no. 102) as John Samboma, and so
this witness could have made a mistake in the dock identification of the accused.
This in my view amounts to conjecture.
[743] Richard Kafunole Mutanale testified that he resides in Liselo village and that
during the year 1998 he met a man by the name of Albert Mangilazi who informed
him about a DTA meeting the next day at Sachona. The next day he, and other
young men left for Sachona. At Sachona they were welcomed by Francis
Mushandikwe, who to their surprise, told them that they should have strong hearts
266
and commitment of whatsoever will happen. The witness testified that he decided to
sneak away with his younger brother at night, however on their way, on the road,
Mangilazi recognized them and ordered them to board a motor vehicle, which they
did. They drove, passed Liselo, joined the road to Linyanti, but diverted to Kalumba
and entered the bush where they were off loaded. Here their names were registered
on request by Mangilazi and Mangilazi said the following: “. . . at that place where
you come, we come here to form or to make the army, private army.” Mangilazi told
him that the army belonged to Muyongo and that the purpose of the army was to cut
Caprivi from Namibia.
[744] Early in the morning, according to this witness, he and his young brother
succeeded to escape and went home. The witness testified that he had known
Mangilazi for a long time because he (ie Mangalazi) got married in Liselo. The
witness identified Mangilazi in court as accused no. 55. During cross-examination by
Ms Sithole-Mwenda the accused testified that during the year 1999 (month unknown)
the police came to him at his village where he was interrogated – he was under the
influence of liquor. The next day his statement was taken at the police station by
officer Chizabulyo. He was provided with a list of names and questioned about those
names. It was put to the witness that the accused will say that his testimony was a
fabrication because he lived at Sikahunga, very far from Liselo. The witness
disagreed. It was put to the witness that he did not know the accused. The witness
replied that because the accused found himself in trouble he would say so.
[745] It was put to the witness that the accused never told him about a DTA meeting
or took the witness to Mushandikwe. The witness replied that the accused knows
him, that’s the truth.
[746] Alfred Kupulo Kupulo was warned in terms of s. 204 of Act 51 of 1977. The
witness testified that he hails from Kupolo’s village. He testified that in his quest to
join the CLA he was transported by a motor vehicle driven by one Kenneth Sitali to
Sibinda. They stopped at Liselo School where approximately seven persons got onto
the vehicle. One of those persons was Albert Mangilazi. At Sibinda they found a
group of about 22 persons in the bush and moved to Kalumba at night. They
travelled in two vehicles. They stayed for two days at Kalumba and food was brought
to them. From Kalumba they were transported to Sachona where they arrived on 8
October 1998. They stayed for two weeks at Sachona and then moved to Linyanti
where they stayed for one day and then left for Libyu – Libyu. At this place three
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young men escaped and were followed, which eventually lead to the death of Victor
Falali. (The evidence on record is that Victor Falali was shot).
[747] It was because of this incident that the whole group of 92 men were forced to
leave and went to Botswana. The witness identified Albert Mangilazi as accused no.
55 in Court. The witness testified that at Sibinda and Kalumba, Albert Mangilazi and
Kache Bronson were group leaders who had the responsibility of preventing fights
amongst the men and to ensure that the members respect one another. The witness
testified that when they arrived at Kasani, Botswana, they informed the Botswana
Police what they had been told to inform the police, namely that they were harassed
where they came from. They stayed with the police for 3 days. On the third day, the
whole group was taken to Mahalape Prison where they stayed for one month and
four days. At Mahalape Prison they were joined by Mishake Muyongo, Chief Mamili
and other individuals of their group on 8 November 1998.
[748] The witness testified that the following persons except Muyongo and Chief
Mamili were with him at Mahalape Prison: John Samboma, Patrick Mwinga, Francis
Mushandikwe, Gilbert Poshowe, Albert Mangilazi, Patrick Toyano, Kenneth
Kacholwa, Desmond Spilanyambe, Patrick Matongo, Ignatius Twabushalila, Oscar
Puteho, Mapenyeho Mushakwa, Jimmy Silitongo, Kenneth Kafufu, Victor
Samaihinga, Fabian Ndozi, Christopher Mushawati, Kester Liselo, and Charles
Lipchipisa. These were the names could recall. The witness testified that from
Mahalapi Prison they were removed to Dukwe, but not all members of the group
were taken to Dukwe, some of them went with Mishake Muyongo. The witness
testified that he was not sure whether they left Mahalapi Prison on 2 nd or 3rd
December 1998.
[749] During cross-examination by Ms Sithole-Mwenda the witness testified that the
group of 92 departed for Botswana on 27 October 1998 and that Albert Mangilazi is
married to his aunt (his father’s sister). It was put to the witness that Albert Mangilazi
was at Kasani and at Dukwe, but not at Mahalapi Prison. The witness disagreed,
stating that from Kasani they moved together to Malahapi Prison and from Malahapi
to Dukwe. The witness stated that he was sure that Mangilazi was at Malahapi
Prison. It was suggested during cross-examination that the accused was substituted
for someone else. The witness denied this.
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[750] Theophilus Kamati testified that he is a member of the Namibian Police and
during the year 2000 assigned as investigating officer to the High Treason
Investigation Team, and was stationed at Grootfontein. He testified that on 19 July
2002 approximately 10h00 he was at the office of the High Treason Unit in Katima
Mulilo busy with preliminary investigations in respect of three suspected rebels, who
had been arrested under the Immigration Act, 7 of 1993. The suspects were
Kacious Mundia Pelekelo, Frederick Ntambilwa, and Albert Mangalazi. These
suspects informed him that they had entered Namibia from Botswana during April
2001. The suspects gave very good co-operation. There were three bags which
were brought from the charge office and he asked them to identify each bag. Each
one of the suspects identified his bag. He asked Albert Mangilazi to open his bag.
Inside the bag was one AK 47 magazine black in colour with 30 live rounds of
ammunition. One brown AK 47 magazine with 30 live rounds of ammunition, a water
container with a yellow cap, a blanket and tablets. Kacious Pelekelo identified his
bag. Inside the bag were a water bottle with water, herbs, a military bag, military
boots (size 10), blankets and tablets. This person informed him that he received
those items from one Manuel Makendano at Makwatale, Masida village. The third
person Frederick Ntambilwa identified his bag. Inside this bag he observed a
blanket, tablets, a military trouser and other items. This person informed him that he
received those items from Manuel Makandano and Patrick Chindo at Makwatale,
Masida. These items were booked in a Pol 7 register under number 45/2002 by
himself. These suspects were arrested by another police officer.
[751] During cross-examination the witness was referred to a statement by Petrus
Itula Shanyengange, one of the arresting officers, where the following was recorded
by the witness as recording officer:
“Albert Mangilazi told me that they were coming from Dukwe, Botswana. He
further stated that they were inside the country Namibia for two weeks. He went
on telling us that they wanted to see an “induna” headman so that they could
report themselves to the Namibian Police as they were apparently fired to be in
the bush.”
[752] Counsel endeavored during cross-examination to show to the witness the
difference between what the accused had allegedly said and that what Frederick
Ntambilwa had said, namely something different, and that the word “they” allegedly
used by Mangilazi was misleading. It was put to this witness that Albert Mangilazi
269
does not know about the items mentioned by the witness that were allegedly found in
his bag, that he never identified items to the witness, that he does not recall the
witness, but the police “were the ones who were telling him that these are your
things”, that there was confusion in respect of the items collected from the three
suspects. The witness replied that counsel’s client was not telling the truth, and that
he (i.e. the witness) never told the suspects which bag was whose bag. It was put to
the witness that there was a confusion and mix up in respect of the bags and the
items. The witness replied: “Not in my presence . . .” The witness agreed that he did
not arrest the suspects on 19 July 2002 and conceded that he handled bags which
had already been handled by other officers. The witness was further taken to task in
respect of Exhibit EJL, the warning statement of the accused, taken down in the
presence of the witness by officer Kombungu, during which the accused was
informed of his right to legal representation to which the accused answered in the
affirmative, but added that he had no money available but that in spite of this reply
they (i.e. police officers) went ahead, questioned the accused and recorded his
answers. The witness eventually conceded that after the accused had indicated that
he wanted legal representation, they should have stopped there.
[753] The accused testified that he was arrested on 18 July 2002 and that he was
charged with contravening the Immigration Act. He testified that he was arrested
along the road while he was on his way to Katima Mulilo police station to report
himself. It was at night and he was alone. He was locked up in cell 6 and was taken
to a certain office the next morning where he was informed by police officers that he
was being charged with high treason and was informed that he was amongst the
group of 92 men who went to Botswana on 27 th October 1998. The accused testified
that he went to Botswana in November 1998. The accused testified that he does not
know the witness Oscar Luware Simbulu, that he never set foot at Sachona as
testified by Simbulu, that he was surprised that Simbulu testified about a name which
is the same as his name, that he is not the Mangilazi Mangilazi referred to by the
witness, that he was at his village Sikaunga, that he has never undertaken a trip with
the witness Michael Mwaswabi Nuwe, that he never cooked for that group, that he
was in Dukwe but never saw Nuwe in Dukwe, that he does not know the witness
Alfred Kupulo Kupulo, that he never boarded a motor vehicle with Kupulo, that he
was not at Sibinda, that Kupulo being a rebel himself accused him of things he did
not do, that he never married the aunt of Kupulo, that he hails from Sikawunga
village which is 135 miles from Liselo, that he does not know the witness Mwisepi
270
and has never been with Mwisepi, that he has never advised Mwisepi about
seceding the Caprivi Region or said anything about the barrel of the gun, that he did
not tell the witness Richard Kaulanole Mutanale about a meeting at Sachona, that he
does not know Mutanale, that he did not have a motor vehicle and never took
Mutanale and his younger brother to Kalumba in the bush, that he did not tell
Mutanale anything about registration of names.
[754] During cross-examination by Mr Muluti the accused testified that prior to his
arrest he did not know John Samboma, and never undertook a trip to Angola.
During cross-examination by the State the accused testified that he returned to
Namibia in order to inform the authorities that a “child of Namibia has come back to
his village or his country”. The accused denied that he came back in preparation for
a second attack. The accused admitted that he left Namibia at a place other than a
designated point of exit, admitted that he illegally left Namibia and that he returned to
Namibia at an undesignated border crossing point. It was pointed out to the accused
that counsel did not during cross-examination put it to any of the State witnesses that
the accused could not have been with them because he was at his village
Sikawunga. The witness replied that it was put to Liwate, Nuwe, Kaulanole and
Kupulo. This reply is however not supported by the record.
[755] The accused was asked whether he was aware of the fact that two groups
went to Angola, one group via Singalamwe and the other group via Sachona. The
witness replied he could not confirm or deny it, because he was not there. The
accused denied that he was appointed as a chef at Sachona. The accused denied
that he was at Libyu-Libyu, the accused testified that he could not confirm or deny
that a number of individuals escaped from Libyu-Libyu when a herd of buffaloes had
stampeded through the camp. The accused denied that he was present when a
report was made at Libyu-Libyu that Victor Falali had been killed. It was put to the
accused that the group who took the decision to cross into Botswana was the same
group who had been to Angola, who had been at Sachona, who had been at
Kalumba, and who had been at Sibinda. The witness replied that he could not testify
to things where he was not present.
[756] The accused denied that he was part of the group of 92 who were responsible
for the death of Victor Falali. The accused denied that he was aware of the attack
prior to 2nd August 1999 or that he supported that attack. The accused denied that he
was present. The accused was asked whether he was aware of anybody or any
271
organization who took responsibility for the attack on Caprivi on 2nd August 1999 to
which the accused replied that he does not know. It was put to the accused that his
defence to the evidence tendered against him is that he knows nothing about it. 169The accused agreed. It was put to the accused that it was never during cross-
examination put to the State witness that he was at his village Sikawunga, but what
was put to witnesses was that their testimonies were ‘factious’ and ‘imaginations’;
the accused agreed.
[757] The accused confirms that he testified that he does not know the State
witnesses. The accused testified that he did not know any of his co-accused prior to
his arrest, that he only saw Geoffrey Mwilima in newspapers because he was a
parliamentarian. The accused testified that he never met any of his co-accused in
Dukwe. The accused testified that he left Namibia because he was assaulted by
police officers, but does not know who those ploce officers were, or the reason why
they had assaulted and threatened him at his courtyard at Sikawunga. The accused
stated that he is unable to say who the police officers were, i.e. was not able to
differentiate, just saw them in uniform.
[758] The accused was reminded that counsel had put it to the witness Mwisepi that
the reason why the accused went to Botswana was because he was harassed left,
right and centre by the Special Field Force. It was further pointed out that he did not
testify in his evidence-in-chef what was put by counsel to Mwisepi. The accused
replied that he did testify about it. The accused is not supported by the record in this
regard. The accused testified that he gave such instructions to counsel, but could
not differentiate whether they were indeed from the Special Field Force. The
accused testified that he left Dukwe on 17th July 2002, that he did not inform the
authorities there, because he was homesick. The accused testified that he could not
inform the authorities in Botstwana because at that stage the repatriation had been
stopped.
[759] The testimony by Kupulo that the accused got on to the motor vehicle at
Liselo school, that they moved to Kalumba, and from there to Sachona, then moved
to Linyanti and thereafter to Libyu-Libyu was never specifically disputed during
cross-examination. Defence counsel expressed her believe that because the witness
knows the accused very well he could have replaced the person who jumped onto
the vehicle with the name of the accused, similarly replaced an unknown person who
169 P 37961 lines 9-11
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allegedly was a group leader at Sibinda and Kalumba with the accused. This counsel
submitted was done because the witness was not good at remembering faces. The
witness’s answer was that it was impossible for him that he could have forgotten the
identity of a person who was married to his father’s sister. This, namely that the
accused was married to the aunt of the witness, was never disputed during cross-
examination and I must therefore accept that at the stage when the witness was
cross-examined this was not an issue in dispute. It was thus not an issue in dispute
that the witness knows the accused very well. The denial by the accused during his
testimony in chief that this was not the case is self-serving because it fits in with his
testimony that he did not know Kupulo prior to his arrest.
[760] I have (supra) discussed the consequences at the failure at a party to put his
case to opposing witnesses and need not repeat same. It suited the accused to
remove himself from the village of Liselo to some other place because it was testified
that the accused stayed near a church. In Exhibit EJL, a warning statement, the
accused, stated that he stayed in Liselo village. This was never disputed during
cross-examination. The accused during his evidence-in-chief testified that he never
saw the witness Nuwe in Dukwe. This evidence however is contradicted by what was
put to Nuwe during cross-examination namely: “Albert will say he was never in
Sachona only saw you at Dukwe for the first time”. The denial of the accused that he
had ever saw Nuwe at Dukwe fies in with his defence of a bare denial of
incriminating evidence against him. It however appears that the accused was not
truthful by denying that he had never seen Nuwe at Dukwe.
[761] If the evidence at Kupulo is accepted that the accused was with the group as
testified by Kupulo it follows (though this was denied during cross-examination) that
the accused must have been at Malahapi Prison in Botswana. The testimony by the
accused that he does not know the state witnesses, if true, does not explain how
these witnesses were able to correctly identify the accused in court. The only
explanation in my view for this fact, is that the accused was known to the witnesses,
in spite of his denial. The submission by Mr Kachaka in his heads of argument that
the witnesses who identified the accused were able to do so with the assistance of
Exhibit BAR, lose sight of the fact that the accused was very well known to the
witness Kupulo, and that Kupulo certainly would not have needed the assistance of
photographs in order to identify the accused person. The same applies in respect of
273
the witness Nuwe who testified that he knew the accused because they were
together in the Army.
[762] This Court must approach the evidence of the witness who had identified the
accused with caution since all four of them were accomplices or co-perpetrators, as
correctly submitted by counsel. This does however not mean that their testimonies
must be disregarded. The response by the accused to their testimonies is that those
testimonies were fabrications and denied any involvement in the events as testified
by the witnesses. I am aware that the accused has no onus to prove his innocence.
I have however referred to evidence which I regard as uncontested by the accused
during cross-examination in particular the evidence of Kupulo that the accused was
part of the group of 92 men who crossed the river Chobe with weapons of war. The
accused was evasive during cross-examination 170he contradicted himself, and did
not deny during his evidence-in-chief that two AK 47 magazines with 60 rounds of
live ammunition were found in his bag.
[763] It was put to police officer Kamati during cross-examination that there was a
confusion and mix up of bags. Kamati conceded that this could have been the case
but was sure this never happened in his presence. The accused took his defence of
a bare denial to a different level when during cross-examination he could not recall at
all whether he had appeared in court in Botswana on charges of contravening
immigration laws. The reason for this loss of memory according to the accused was
that if it happened, it occurred a long time ago. Appearing in a court of law is not an
experience one would easily forget especially when such appearance was in a
foreign country. The accused testified that he could not recall much on event
because it occurred a long time ago, but ironically, he is adamant that other events
which also occurred a long time ago, did not occur as testified by the State
witnesses.
[764] During cross-examination when the accused was questioned why he
specifically chose Botswana and not another country, for example Zambia, in order
to escape from the alleged harassment by members of the Namibian Police Force,
the accused ascribed his choice to divine revelation.
[765] I am of the view, having considered all the evidence presented that the
testimony of the accused is not reasonably possibly true in the circumstances. I am
170 See one example on p 37936-37937.
274
further satisfied that the evidence presented by the State beyond reasonable doubt
and I am satisfied that the only inference to be drawn is that the accused had the
required hostile intent.
Clients of Mr Nyoni
Osbert Mwenyi Likanyi (accused no.57)
[766] Walter Mwezi Sikochi testified that he observed Osber Likanyi at Makanga
bushes prior to the attack on Katima Mulilo and identified Osber Likanyi as accused
no.57. During cross-examination by Mr Nyoni, it was put to this witness that
education was not really on his programme when he left for Botswana, the witness
replied: ‘It can be’. The witness testified that on 31st July 1999 at night he was
collected by five individuals of whom one was armed; that he was collected for the
purpose of war; that at Makanga he met his brother Herbert Mutahane and his
friends but that he never asked what was going on; that there was ample opportunity
for him to escape from Makanga; that he did not know what was going to take place
at Makanga; that he submitted himself to treatment by a witchdoctor; that he never
asked what the purpose of the treatment was; that Chainda told him that their
agenda was to fight the government; that when he submitted himself to the treatment
he knew exactly what was to be done that evening; that he decided to fight after he
had heard a speech by Shadrack Chainda; and that he was positioned near the
storeroom at Mpacha military base.
[767] The witness agreed that when he was asked during his testimony in-chief-
testimony to ‘list’ those persons who were with him at Makanga, he did not mention
Osbert Likanyi and that he only mentioned Osbert Linkanyi the next day after the
court had adjourned; that he had seen Osbert Likanyi from a distance at Makanga,
but did not have a conversation with him; that the name of Osbert Likanyi was on a
list the police had; that he was not mistaken when he observed Osbert Likanyi at
Makanga; that Osbert Likanyi was married to Erika Silubanga (deceased) who was
the cousin of the witness. It was put to the witness that it was impossible for Osbert
Likanyi to have been at Makanga, the witness disagreed.
[768] Michael Maswabi Nuwe testified and identified the accused as one of the
refugees at Dukwe refugee camp. He testified that he (ie himself) escaped from
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Dukwe together with other persons on 10 April 2001, including Osbert Likanyi and
returned to Namibia. Osbert Likanyi was leading the group. This witness testified
about their wanderings inside the Caprivi Region moving from one place to another
in order to evade the security forces and that the purpose of this group was to initiate
a second attack in the Caprivi Region. The witness testified that the accused was in
possession of an AK47 at Masokotwani. Osbert Likanyi also provided food, khaki
uniforms, trousers and boots to them. The witness testified that they were arrested
on Sunday 16 July 2001.
[769] During cross-examination by Mr Nyoni, the witness agreed, on the
assumption that Osbert Likanyi was with the group, that their main activity was
camping and conceded that no person was injured and no building was damaged. It
was put to the witness that the accused did not leave Dukwe together with the
witness. The witness disagreed.
[780] Oliver Munyandi Mbulunga testified that on 2 October 1998 during the
evening Thaddeus Ndala arrived at the outskirts of his village Singoweka and sent
Osbert Likanyi to fetch him. According to this witness, Osbert Likanyi informed him
about a DTA meeting the next day at Ngwezi. He agreed and accompanied Osbert
Likanyi to a motor vehicle where he found other individuals. There was no meeting.
The next day, he was transported with others to Singalamwe where John Samboma
told them that they were going into Angola in order to get assistance of a military
nature. The witness testified that he was part of the group of 92 who entered
Botswana and that Osbert Likanyi was one of the members of that group.171 During
cross-examination by Mr Nyoni, the witness testified that on 10 May 2002, he
appeared in court on charges of unlawfully departing from Namibia and of unlawfully
entering Namibia, was convicted and sentenced. The witness conceded that Osbert
Likanyi was a messenger when he was sent to fetch him at the village and that he
and Osbert Likanyi were seriously misled.
[781] The witness was then referred to the testimony of Nuwe who testified that
from the time they were at Mosokotwani until their arrest on 16 June 1999, all they
did was simply camping. The witness agreed; the witness agreed that he did not
leave Dukwe camp with Osbert Likanyi adding that they left at different times. During
171 P. 3205/6
276
re-examination, the witness testified that he did not know what Osbert Likanyi was
thinking when he informed him about the DTA meeting. The witness testified that he
was ‘not aware whether he (Osbert) was also in that group” which went to Angola
and Zambia.
[782] John Mulanli Mwabela testified that on 1st August 1999, Osbert Likanyi arrived
at his village Kansoko and escorted him under arms to Makanga bushes. This
witness was unable to identify Osbert Likanyi in court. Given Lufela Ndugati testified
that during the night of 31st July 1999 one Adams Muyumbano collected him from his
village and forced him to Makanga bush. The next day, they were divided into groups
and his group was assigned to attack the police station. He testified that one Osbert
Likanyi was armed and also in this group. The witness was unable to identify Osbert
Likanyi in court.
[783] Theophilus Kamati testified that he is a Detective Chief Inspector in the
Namibian Police and was part of the investigating team in this case. On 6 December
2002, he accompanied the Regional Commander Chief Inspector Goraseb to Ngoma
Police Station. They preceded to the Botswana Immigration offices where they met
members of the Botswana police. Three individuals were handed over to them
namely Boster Samuel Mubyata, Alex Mafwila and Osbert Likanyi Mweti. These
three individuals identified themselves. On 7 December 2002, he drove to Ngoma
Police Station in order to conduct an investigation to see whether the suspected
persons can be linked to the crime of high treason or whether they just went to
Botswana illegally.
[784] During the evidence-in-chief of this witness he testified that he had explained
the right of legal representation to Osbert Likanyi, that he was entitled to legal aid
and that he has the right to remain silent. The witness testified that Osbert Likanyi
chose not to remain silent and that when he heard his rights, he just started talking.
At this point, the prosecutor, Mr July, informed the court that he was at the proverbial
cross-roads and was not sure whether he could proceed to the next step of the
enquiry into what the contents of the discussions were. This Court informed Mr July
that since the State relies on a waiver of his rights by the accused person, there
must be a clear waiver of his rights by the accused and that I doubted whether that
threshold had been passed. Mr July then tried to lead the witness in respect of the
277
contents of the discussion he had with Osbert Likanyi to which Mr Nyoni objected. Mr
July then led the witness in respect of what had happened after this witness had
discussions with the individual Osbert Likanyi. It must be stated that anything which
Osbert Likanyi had allegedly said to this witness incriminating himself in respect of
the charges preferred against him, would be an inadmissible admission or
inadmissible confession because on 10 December 2002, the witness was a warrant
officer, and cannot be relied upon as evidence against the accused. There is in any
event no evidence that the accused understood what was explained to him. This
witness was not cross-examined by Mr Nyoni.
[785] Oliver Simosika Chunga and Chrispin Khama Shaweke both testified and
incriminated Osbert Likanyi. However, both these witnesses failed to identify the
individual referred to as Osbert Likanyi as any of the accused persons before Court.
The accused testified that he was employed as a police officer based at Katounyana
for a period of six years and that he was discharged when he refused a transfer to
Windhoek. The accused testified that he went to Botswana because the police and
soldiers came to his village and assaulted him and he eventually arrived at Dukwe.
[786] The accused stated that he never travelled to Angola and was never at
Sachona or Libuye-Libuye rebel camps. The accused testified that he left Dukwe on
6th November 2002 with a permit in order to look for piece work. He arrived in Kasani
where he spent the night. The next morning, on his way to Muwana Lodge, he was
arrested, taken to Kazungula and was taken to Kasani the next day where he stayed
from 7th November 2002 until 6th December 2002. The accused admitted that when
he left for Botswana, he entered Botswana through an ungazetted point. The
accused testified that he never went back to Dukwe after he had left the place. It
would have been difficult to do so according to him because the police had
confiscated his permit. The accused testified that on 2 August 1999, he was in
Dukwe. He denied that he left Dukwe on 10 April 2001 for the Caprivi in order to
initiate a second attack.
[787] The accused was reminded172 that both, Nuwe and Mulonga, testified that he
was their leader in preparation for a second attack in Caprivi Region. The accused
denied this. The accused testified that after his arrest, he never made a statement to
172 P.38911
278
the police and never applied for bail. The accused testified that no evidence was led
to substantiate an allegation in the further particulars that he was involved in an
attack on the police station in Katima Mulilo. During cross-examination, he was
asked whether he agreed that the first time he had volunteered information as to why
he was against allegations that he was at Libyu-Libyu. The accused disagreed,
stating that the person, one Mwanalushi, who was supposed to testify about that did
not do so when he was in Court.
[788] The accused testified that during June 1998, he was at home at Nanyanti
village. The accused testified that he joined the DTA in 1987 and was a member of
no other political party. The accused then explained that the reference in an affidavit
that he was a member of the UDP is wrong and that he had informed counsel about
it. The accused testified that he does not know why it appears in the affidavit that he
resides in the village of Kapani. The accused was asked whether he was aware that
many allegations in this trial were concerned about the existence or non-existence of
the UDP and the accused agreed. The accused was asked why was it that he
referred to the mistake in his affidavit only for the first time during cross-examination.
The accused replied that he did not know that his affidavit would be brought into this
trial. These mistakes were never rectified.
[789] The accused denied belonging to the UDP, adding that he knew about it in the
year 1985, but was not aware of its existence in 2003. The accused testified that he
was a branch secretary of the village in the DTA. The accused testified that the two
mistakes he referred to were the only mistakes which appeared in his affidavit. The
accused testified that he voluntary left Dukwe. The accused testified that he was
arrested in the bush by the Namibian Police (in the presence of the Botswana Police)
and testified that Chief Inspector Kamati explained to him at Ngoma Police Station
that he was arrested for high treason, something which he did not understand. The
accused agreed that he did not testify about this incident previously.
[790] The accused was referred to his affidavit deposed to on 13 May 2003 (Exhibit
EWJ) in which he stated as follows:
‘I was based at Dukwe Refugee Camp. I was then taken from Dukwe to Kasani
Prison and from there I was taken to Kazungula Boarder (sic) Post. At Kazungula, I was
279
forcibly and unlawfully arrested by the Namibian Police. At the time of the arrest, I was still at
the hands of the Botswana Prison Officers. When the Namibian Police tried to get me, I
refused. They then used force.’
[791] The accused replied that ‘they have just mixed it up’. The accused confirmed
that he signed the statement. A commissioner of oaths certified that the deponent
(accused) has knowledge, that he knows and understands the contents of his
affidavit, which was SIGNED and SWORN TO before the Commissioner at
Grootfontein on this 13 May 03’.
[792] The first sentence of paragraph 3 of Exhibit EWJ reads as follows: ‘I am a
member of the United Democratic Party’. The accused testified that no warning
statement was taken by police officer Kamati; that Kamati wanted him as a witness
and he refused. The accused testified that during his interaction with police officer
Kamati there was no assault on him, neither did police officer Goraseb assaulted
him. The accused testified that he had never been to Libyu-Libyu, Singalawe or
Sachona. The accused testified that he did not now Olivier Chunga prior to Chunga’s
testimony, but knew Michael Nuwe and Walter Sikochi. The accused testified that on
1 August 1999 he was in Botswana and could not have been at Makanga.
[793] The accused testified in relation to the invitation to attend a DTA meeting that
he was never misled by any body and that he never gave any instruction to counsel
that he was misled. The accused testified that the witness Walter Sikochi is the
cousin of his wife and that he knew Sikichi since 1981. The accused testified that
Sikochi had pointed him out because he (ie the accused) had lived with him for quite
a long time and not because he did something wrong. The accused testified that
Sikochi was mistaken when he pointed him out as having been at Makanga and that
Sikochi did not mention his name. When the accused was asked why the evidence
of Nuwe to the effect that the accused was in possession of an AK 47 at
Masokotwani was never challenged, he replied that it was ‘fabricated evidence’.
When it was put to the accused that it was the first time for him to testify about a
fabrication, the accused replied that it was his first time to be in the witness box to
answer those allegations. The accused testified that the whole evidence of Nuwe
was a fabrication.
280
[794] The accused admitted that there was an attack and that people died. The
accused testified that he cannot deny that 92 individuals gathered at Libyu-Libyu.
The accused testified that he could not dispute that the group of 92 at Libyu-Libyu
was responsible for the killing of Victor Falali, adding that one Kupulo shot Falali.
The accused agreed that no instruction was put to Kapulo that he shot Falali. The
accused testified that he spoke to Oscar Mwisepi at Dukwe and that Aggrey
Makendanno (accused no 11) had informed him on 6 August 1999 in Dukwe
Refugee Camp that he (ie Makendano) would be leaving on 6 August 1999 for
Maun, and that he missed Makendano on 9 August 1999. The accused denied that
he was in Katima Mulilo during the attacks on 2 August 1999. The accused testified
that he received training as a police officer in the use of handguns and do not know
how to operate an AK 47 or a R1-rifle. The accused was referred to Exhibits EGO1,2
and 3 (a translation of inscription on an exercise book) in which the following
appears: ‘At Kapani all men are in possession of this type of firearm AK 47 / R1.
Those who know and can confirm about these firearms are those in the bush which
men came from the same village 1. Mr Osbert Likanyi 2. Mr Francis Lifalaza’, and
was asked for his comment. The accused replied that it was a fabrication and denied
knowledge thereof. The accused testified that he was on his own when he left for
Botswana and was not part of the group of 92. The accused was reminded of
evidence led in court that Aggrey Makendano was the leader of the group who
attacked the police station in Katima Mulilo. The accused confirmed that he heard
such evidence. The accused was asked would he be surpriced if it is reflected that
the second in command was a person by the name of Osbert Likanyi to which the
accused replied that he would not, since it does not refer to him.
[795] It was further put to the accused that that is the reason why he testified that
he saw Makandano in Botswana, whereas evidence indicates that he was part of the
group which attacked the police station on 2 August 1999. The accused replied that
Sikochi testified that he left Makendano in Botswana and that Sikochi told the truth.
Mr Nyoni in his heads of argument submitted that the accused person was not part
of a group that went to Angola and Zambia and subsequently to Botswana. The
State witness Mbulungu testified about an incident that under the pretext of attending
a DTA meeting he arrived at Singalawe where they were told about a trip to Angola.
This witness when asked, whether the accused was amongst those who went to
Angola via Zambia, replied that he could not remember since the events took place a
281
long time agao. I agree that there is no evidence that the accused was amongst this
group who went to Botswana. Mr Nyoni further submitted that the accused is not
linked by any witness as having been in the alleged group of 92 at any of the rebel
camps and where and when he is alleged to have joined the group of 92 has not
been proved.
[796] There was however a State witness ie Olivier Mbulungu who testified173 that
he himself was in the group of 92 and identified the accused to be part of the group.
This evidence was not challenged during cross-examination and stands
uncontradicted. The submission by Mr Nyoni that Mbulungu must have been
mistaken the accused for someone else when he observed the accused at Kasani
Prison since the testimony of the accused is that he was on his own when he left for
Botswana, did not take into account the uncontroverted evidence of Mbulungu that
the accused was indeed part of the group of 92. Mr Nyoni further criticized the
testimonies of Nuwe and Mbulungu, inter alia, because they were silent as to how
and where and in what circumstances the accused was elected as leader of the
group and that there is no allegation that they were informed that they would be led
by the accused. Mr Nyoni further submitted that the plan to mount a second attack is
so imaginary and unrealistic that Michael Nuwe conceded that it was nothing but a
dream. This concession by the witness cannot be considered to be a concession that
the testimony of this witness was nothing but an imagination. Although it was denied
that the accused was part of a group that left Dukwe with the aim to mount a second
attack, it was never denied during cross-examination that the accused was in
possession of an AK 47 at Masokotwani and that he provided uniforms, clothes and
foof to his companions in the bush.
[797] Mr July submitted that in Exhibit EG02, authored by a co-conspirator, the
accused was referred to as being a person at Kapani who was in possession of a
fire-arm and that this evidence is admissible against the accused person. The reply
by the accused that it was a fabrication begs the question why the author (Brian
Mboozi) had mentioned his name. Mr Nyoni criticised the evidence of Sikochi as
unreliable, since he was an accomplice who had tendered his witness statement
under threat; that he was a witness who unjustifiably felt forced to make dock
identification; was an accomplice who was not open and honest with the court about
173 P 3206.
282
why he set out from Namibia to Botswana; that the truth of the matter may lie in an
unguarded statement that he followed Muyongo to Botswana; that he was an
accomplice who was not open and honest how he got to the Makanga bushes; that
he contradicted himself about his decision to be part of the CLA. I agree with this
summary. In respect of his presence at Makanga, the witness at first tried to create
the impression that he was escorted to Makanga under duress, however it appear
later from his testimony that he was a willing participant. I am of the view that his
testimony in respect of the identification that the accused was seen by him at
Makanga should be approached with caution especially in view of the fact the scene
was mobile, with many people in the bush, and the witness did not communicate with
Osbert Likanyi. This witness, as correctly submitted by Mr Nyoni, was a self
confessed corrupt individual who subsequently became a police officer. I shall
therefore exclude his evidence to the effect that he had seen the accused at
Makanga.
[798] The submission by Mr Nyoni that the State’s submissions in their heads of
argument that the accused revealed that he was a rebel on 4 November 2002 was
quite mischievous and incorrect. I agree. I have alrady indicated that such evidence
in inadmissible and excluded. I however disagree with the submission by Mr Nyoni
that the testimony of the accused was unshaken. There are some material
contradictions. The accused testified that he was a member of only the DTA. His
explanation that he stated on Exhibit EWJ that he was a member of the United
Democratic Party and that this was a mix up is implausible. The accused is an adult
and an intelligent person and his testimony that this court should believe him when
he denied membership of the UDP should be rejected. The question why the
accused would so strongly deny any connection with the UDP is to be found during
cross-examination when the accused admitted that many allegations in this trial were
concerned about the existence or non-existance of the UDP. The evidence of the
accused that he was not aware of the existence of the UDP during 2003 is
contradicted by himself in Exhibit EWJ.
[799] The testimony of the accused that Aggrey Makandano (accused no 11) was in
Dukwe Refugee Camp as late as 6 August 1999 is in contrast with the evidence that
accused no 11 was inside Namibia at the stage. The journey of the accused from
Dukwe to Namibia as testified to by the accused is contradicted by what is contained
283
in his affidavit (Exh. EWJ). In this Court, he testified that he voluntarily left Dukwe
and was arrested next to the road on his way to Muwana Lodge. In Exhibit EWJ the
accused stated that he was taken from Dukwe to Kasani prison and from there to
Kazangula border post where he was unlawfully arrested by the Namibian police.
The implication is clear, namely, that he did not voluntarily leave Dukwe. The
accused then gave a third version namely that he had been arrested in the bush by
the Namibian police in the presence of the Botswana police. The accused denied
deposing to a witness statement however Exhibit EWK was handed in as a witness
statement deposed to by the accused person on 10 December 2002.
[800] The accused was an untruthful witness. I have indicated that the evidence
that he was part of the group of 92 was never challenged and must be accepted as
uncontroverted evidence. The evidence of Nuwe supports the evidence of Mbulungo
about an excursion in the bush with the accused and their attempts to evade the
security forces. Further support that the accused was actively involved in the attempt
to secede the Caprivi is to be found in Exhibit EGO2. The denial by the accused of
any involvement in the attempts to secceded the Caprivi region is in view of the
totality of the admissible evidence referred to hereinbefore not reasonably possibly
true and is rejected as false. I am accordingly of the view that the State has
succeeded in proving the commission of overts acts and that the accused had the
required hostile intention.
Gabriel Nyambe Ntelamo (accused no.88)
[801] Bernard Bareka Kanzeka testified about two meetings he had attended during
the year 1998. The first meeting was during November 1998 addressed by Geoffrey
Mwilima and the second meeting during December 1998 chaired by Muyongo. A
more detailed version of the testimony of this witness has been dealt with.174 It was
submitted by Mr Nyoni that the alleged events which took place at the DTA offices in
Katima Mulilo in November 1998 was recorded by the police in the statement of this
witness on 16th March 2001. In that statement, Gabriel Ntelamo was not mentioned
as one of the persons who allegedly attended that meeting and this fact was
174 Supra.
284
conceded by Kanzeka. This court was referred to the record where the following
appears:175
‘In your statement do you agree that you never mentioned that Gabriel Ntelamo was
one of the persons who attended the first meeting?...
Yes, My Lord.’
And continued176:
‘And I am prepared to give you the benefit that you could have been mistaken in
including him in that meeting?...
It’s correct, My Lord.’
[802] It was submitted by Mr Nyoni that this meeting was addressed by an
individual whose identity remains unknown to this Court since Geoffrey Mwilima was
not identified by this person in court. I must say that it is immaterial whether the
identity of the speaker at the meeting was known or not because in a charge of high
treason, an accused may be convicted if he had knowledge of treasonous activities
and failed to report that to the authorities. In the present instance, it is thus not
necessary by the State to prove the identity of a speaker at a meeting. I have found
(supra) that the second meeting (during December) testified to by the witness
Kanzeka could never have been addressed by Muyongo since at that stage, he was
already in Botswana. With reference to the testimony of Shailock Sitali Sinfwa, it was
submitted that the accused never offered his vehicle to transport people to
Botswana. The record reflects the following177:
‘Then he informed me My Lord, that if there are certain people that I have found, who
are prepared already to go to Botswana I should bring them to him and transport was not a
problem because he was going to use the vehicle of his elder, Gabriel Ntelamo, My Lord.’
[803] It was submitted by Mr. Nyoni that this conversation took place between
Leonard Ntelamo and the witness Sinfwa and that Gabriel Ntelamo was not linked to
the discussion, at all. I agree that the reference to Gabriel Ntelamo is no proof at all
that the accused had availed his vehicle for transporting persons to Botswana.
175 P.6121 lines 7-9176 At p.6121 lines 10-13177 P.5171 lines 21-2 to 5172 lines 1-3
285
[804] Progress Munsu Mulonga testified and I have already referred to his
testimony. During cross-examination by Mr Nyoni, the witness confirmed that he
attended three meetings during the year 1998. The first meeting was held in
Kasheshe and addressed by John Mabuka, the second meeting at the DTA office
addressed and chaired by Mushanana, and a third meeting called and addressed by
Geoffrey Mwilima. The witness testified that no meeting which he had attended was
addressed by Muyongo. The witness in his first two statements had never informed
police officers that people raised their hands in agreement with the idea of
secession. The witness conceded that in his third statement the police drove to his
village and he deposed to a statement three years after he had deposed to the first
statement, in which statement the police had put in the issue of the raising of hands.
It was put to the witness that the accused will deny that he attended any meetings
with the witness to which the witness replied that he had personally seen the
accused at the meeting in Katima Mulilo. It was submitted by Mr. Nyoni that
Mulonga’s testimony lacks credibility and is unreliable. It was submitted by Mr. Nyoni
that Mulonga portrayed himself as a saint, yet evidence depicted him as an active
secessionist. Reference was made to his testimony that the issue of secession was
not palatable to him and that he never associated himself with the ideas of secession
proposed at the meetings. It was submitted that the witness testified that he did not
do anything in common purpose with those who propounded the idea of seceding
the Caprivi yet a state witness police officer Emo Dumani Popyeinawa unveiled him
as an active secessionist and that this destroyed the credibility of this witness.
[805] Mr. Nyoni further submitted that his testimony contains fundamental
contradictions. In evidence-in-chief, he testified that a meeting that he had attended
in 1998 addressed by Muyongo, Muyongo had informed those in attendance that he
had left Parliament to stand on his own in Caprivi because the people in Caprivi were
suffering and declared that the Caprivi should be cut from the rest of Namibia by the
barrel of the gun. It was at this meeting according to Mulonga that those who
attended raised their hands to show support and thereby associating themselves
with what was said. However, subsequently, his testimony under cross-examination
Mulonga asserted that no such meeting took place.178 The witness conceded that
Muyongo did not address any of the meetings testified to by this witness. In respect
178 P.6866
286
of the testimony of Kanzeka, what is apparent is the concession made that he could
have been mistaken that the accused attended that meeting during November 1998.
[806] In respect of the evidence of Sinfwa, I have indicated that the evidence does
not establish any proof that the accused had provided his vehicle to transport
persons to Botswana and that he was aware of the purpose of such journey. The
criticisms pointed out by Mr. Nyoni in respect of the testimony of the witness
Mulonga has merit in my view. His testimony must be approached with caution in
particular his evidence that the accused attended a meeting at the DTA office where
he had raised his hand in agreement to the proposal to secede the Caprivi from the
rest of Namibia.
[807] The accused testified that he is a qualified teacher and was the principal at
Kwena school, that he was a member of TUN which was affiliated to the DTA and
that he was not involved in the politics of the DTA except for attending rallies in
1998; that he knew Mishake Muyongo as a member of parliament; that he was not
aware of the idea of seceding the Caprivi; that he attended one DTA meeting in
1989; that he knew about the UDP which was formed by Muyongo was affiliated to
the DTA but does not know whether the UDP was operative during the years 1996-
1998; that he never associated himself with the UDP; that he did not know the
witnesses Kanzeka and Progress Mulonga; that he knew Geoffrey Mwilima but never
discussed politics with him; that Kanzeka implicated him because Kanzeka was
arrested and opted to be a witness; that his defense against the allegations is that he
did not attend the alleged meetings and did not provide any transport or in any way
assisted to seccede the Caprivi from Namibia; that prior to his arrest, he was not
aware of the CLA; that he was alone at his school.
[808] I am of the view that the accused was not discredited during cross-
examination to the extent that his defense should be rejected as not reasonably
possibly true. I am of the view that the evidence presented by the State failed to
prove the commission of any of the preferred charges against the accused person.
Admissibility of the deployment list
287
[809] Mr July has in his heads of argument as well as during his submissions made
in court, referred this court to and relied upon an exhibit referred to as a deployment
list in which names similar to that of some of the accused persons appear and where
the institutions to be attacked were also mentioned. During my ruling in the s 174
application I found that this exhibit was admitted provisionally and could not be used
by the court for consideration at that stage. Mr July contended that the exhibit had
indeed been finally received by this court and that it was proved by handwriting
experts that the author of that exhibit was one David Mubone who according to the
witnesses had on 1st August 1999 and at Makanga recorded the names of persons
present at Makanga on a piece of paper.
[810] It was argued by Mr July that since that exhibit (subsequently) marked Exhibit
EGK (1) is an exhibit properly before this court, this court should consider it as
evidence against the accused persons at this stage of the trial. The implication is that
this Court had erred when it was not considered during the s 174 application
judgment. It was submitted, inter alia, by Mr Nyoni, that to do so would render this
trial unfair in respect of the accused persons and this court was referred to the
applicable authority in this regard.
[811] It is necessary also to refer to the submission by Mr July in respect of a
number of confessions which this court had found to be inadmissible after trials-
within-a-trial, that since a finding in a trial-within-a-trial is interlocutory in nature that
this court may reconsider its findings at this stage. It was submitted that in view of
evidence presented subsequent to the ruling in the trials-within-a-trial, to the effect
that the deponents to those confessions were at the time they had made their
confessions to the magistrate, well aware of their entitlement to legal aid, and urged
this court to find the confessions as admissible evidence against those accused
persons. The question is whether this court should be amendable to consider these
submissions in respect of Exhibit EGK (1), the deployment list, the confessions, or
whether it would be unfair to do so, as admitted by Mr Nyoni.
[812] In S v Ndhlovu and Others179, Cameron JA expressed himself as follows:
‘[18] Third, an accused cannot be ambushed by the late or unheralded admission
of hearsay evidence. The trial court must be asked clearly and timeously to consider
and rule on its admissibility. This cannot be done for the first time at the end of the
trial, nor in argument, still less in the court’s judgment, nor on appeal. The 179 2002 (2) SACR 325 (SCA) at 338.
288
prosecution, before closing its case, must clearly signal its intention to invoke the
provisions of the Act, and, before the State closes its case, the trial Judge must rule
on inadmissibility, so that the accused can appreciate the full evidentiary ambit he or
she faces.’
[813] In S v Molimi180, Nkabinde J stated the following, which is the answer to the
question posed, in my view:
‘[42] This court has said that the right to a fair trial requires a substantive rather
than a formal or textual approach and that “it has to instil confidence in the criminal
justice system with the public, including those close to the accused, as well as those
distressed by the audacity and horror of crime”. It is not open to question that a ruling
on the admissibility of evidence after the accused has testified is likely to have an
adverse effect on the accused’s right to a fair trial. It may also have a chilling effect
on the public discourse in respect of critical issues regarding criminal proceedings.
More importantly, proceedings in which little or no respect is accorded to the fair trial
rights of the accused have the potential to undermine the fundamental adversarial
nature of judicial proceedings and may threaten their legitimacy. There are further
adverse consequences. For example, when a ruling on admissibility is made at the
end of the case, the accused will be left in a state of uncertainty as to the case he is
expected to meet and may be placed in a precarious situation of having to choose
whether to adduce or challenge evidence.’
[814] I agree that in such an instance an accused person would suffer trial
prejudice. It will certainly be unfair and as pointed out in Molimi at para [54] of that
judgment that the right of an accused at all important stages to the ambit of the case
he or she has to meet goes to the heart of a fair trial. Whether this court had erred in
disregarding Exhibit EGK (1) during the s 174 application judgment, is immaterial at
this stage. This may be a point to be argued on appeal.
[815] In respect of the confessions ruled inadmissible during the trial, the State
should have, before the conclusion of its case applied to court to reconsider its ruling
in respect of those confessions. To do so at this late stage would, in my view, be
tantamount to an ambush, and would certainly render the trial unfair.I therefore, for
these reasons, decline to reconsider my findings in respect of Exhibit EGK (1) and in
respect of the relevant confessions.
180 2008 (2) SACR 76 (CC) para 42.
289
[816] I have for these reasons came to my findings without considering Exhibit EGK
(1) and the confessions in respect of my evaluation of the evidence against the
accused persons already dealt with, and shall also not be considering those
documents in respect of the accused persons still to be dealt with. I must state that
Mr McNally in respect of his client, Mathews Pangula (accused no 59), made a
similar submission in respect of a confession admitted as evidence against the
accused person. For the reasons mentioned I refused to reconsider my finding in
respect of that accused person.
Accused persons who did not testify: Principles on failure to give evidence
[817] I shall now deal with those accused person who elected not to testify in their
own defence. However, before I do so, I need to consider the apporopriate
approach, in considering whether or not the State has succeeded to discharge the
onus to prove the commission of an offence beyond reasonable doubt. Under our
common law the effect of a failure to testify by an accused would depend on the
circumstances of a particular case. In S v Mthetwa181 it was explained as follows:
‘Where the state case against an accused is based on circumstantial evidence and
depends upon the drawing of inferences therefrom, the extent to which his failure to give
evidence may strengthen the inference against him usually depends on various
considerations. These include the cogency or otherwise if the state case, after it is closed,
the case with which the accused could meet it if innocent, or the possibility that the reason
for his failure to testify may be explicable upon some hypothesis unrelated to his guilt. . . .
Where, however, there is direct prima facie evidence implicating the accused in the
commission of the offence, his failure to give evidence, whatever his reason may be for such
failure, in general ipso facto tends to strengthen the State case, because there is then
nothing to gainsay it, and therefore less reason for doubting its credibility or reliability . . ..’
[818] With the advent of the Constitutional order the question whether the rules in
Mthetwa are compatible with an accused’s constitutional right to silence and right not
to be a compellable witness against himself or herself, arose and was considered in
S v Brown182 by Buys J. A five-part answer was given and summarized by
Schwikkard Van der Merwe as follows183:
1811992(3) SA 766 (A) at 769 A-E(Emphasis in original) 182 1996 (2) SACR 49 (NC)183 Principles of Evidence 2nd Edition p 511-512
290
1) “No adverse inference can be drawn against an accused merely by virtue of the
fact that he has exercised his constitutional right to refuse to testify.”
2) If an accused exercises his constitutional right to silence, the court is left with
nothing but the uncontroverted prima facie case presented by the state: the
silence of the accused has no probative value.”
3) It follows that the court is really only called upon to decide whether the
uncontradicted prima facie case of the prosecution must harden into proof
beyond reasonable doubt.”
4) The accused’s constitutional right to silence cannot prevent logical inferences:
the circumstances of a case may be such that a prima facie case, if left
uncontradicted, must become proof beyond reasonable doubt. This happens
not because the silence of the accused is considered an extra piece of
evidence but simply because the prima facie case in a particular case is in the
absence of contradictory evidence on logical grounds strong enough to
become proof beyond reasonable doubt.”
5) If the accused’s silence is, in the assessment of the prosecution’s
uncontroverted prima facie case, neither treated as “evidence” nor as a “factor”,
then it can hardly be argued that the drawing of logical inferences indirectly
compels an accused to testify or amount to a situation where an accused is
being penalized for having exercised his constitutional right to refuse to testify.”
[819] In S v Boesak184 it was held as follows:
‘The right to remain silent has application at different stages of criminal prosecution.
An arrested person is entitled to remain silent and may not be compelled to make any
confession or admission that could be used in evidence against that person. It arises again
at the trial stage when an accused has the right to be presumed innocent, to remain silent,
and not to testify during the proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no consequences attaching to a decision to
remain silent during the trial. If there is evidence calling for an answer, and an accused
person chooses to remain silent in the face of such evidence, a court may well be entitled to
conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of
the accused. Whether such conclusion is justified will depend on the weight of the
evidence.”185
184 2001 (1) SACR 1(CC) at [24]185 At p 542 E-G.
291
[820] It is in my view apposite also to refer to the judgment of Goldstone J et
O’Regan J in S v Thebus (supra) 186where the following appears:
‘This Court has held that an adversarial system of criminal procedure necessarily
forces hard choices on an accused, not by the operation of an unfair rule of law, but by the
fundamental nature of the adversarial process itself. This Court has held that such choices
which flow from the character of the adversarial system do not constitute an infringement on
the right to silence.187 Once the prosecution has produced evidence sufficient to establish a
prima facie case against the accused, the accused faces the choice of staying silent, in
which event he may be convicted, or seeking to lead evidence which may or may not be
incriminatory. This hard choices faced by the accused is the consequence not of an unfair
rule of law, but of the operation of the adversarial system coupled with the absence of a valid
defence. In an adversarial system there can be no immunity from facing such choices and
having to make such a choice cannot offend the right to silence as entrenched in our
Constitution.’
[821] I shall therefore approach the evidence presented by the State, and consider
same, having due regard to the afore-mentioned principles in our present
constitutional dispensation.
Clients of Mr Nyoni.
Oscar Kashalula Muyuka Puteho (accused no. 49)
[822] Michael Maswabi Nuwe testified about an incident where under the pretext
that he would be attending a DTA meeting he eventually found himself with a group
of persons at Sachona and unwillingly took part in a journey to Angola. At Sachona
they were trained in the techniques of using fire arms. The witness testified that
Oscar Puteho was one of the leaders of this group and that he Oscar Puteho was
their instructor in the operation of 60 mm and 80 mm motor pipes. Oscar Puteho was
identified by the witness as accused no. 49 in court. The witness further testified that
they were warned by the accused of a rule that no one should escape from Sachona,
and that the consequences of any escape or attempted escape would be that such a
person would be shot. The witness testified that he was together with the accused
person in the SWATF.
186 See also S v Katari 2006(1) NR 205 (HC) at 210.187 Osman and Another v Attorney-General, Transvaal 1998(4) SA 1224 (CC); 1998(2) SACR 493.
292
[823] My Nyoni in his heads of argument submitted that the witness Nuwe deposed
to three witness statements and that not in one of those statements is the name of
the accused mentioned. This Court was referred to Exhibit AV deposed to by the
witness on 17th November 1998, Exhibit AW deposed to on 8th March 2003, and
Exhibit AX deposed to on 2nd June 2003. In respect of the first statement this Court
was referred to the record188 where the following appears:
“. . . when the Police recorded that statement, all I am asking you is you were
quite clear of Oscar, you were quite sure of his roles and you knew about his
identity, is that not so? . . . yes, I was clear with the role he performed and his
identity.
All I am saying is, with all the visions of what Oscar did and well knowing about
his identity, you said nothing about him in that statement, when you were telling
tales to the police who did what and where. . . . I could not say anything about
Oscar.
Court: Excuse me? . . . I could not say anything about Oscar.
Why not? . . . Or I did not say anything about Oscar.
Nyoni: Thank you. . . . I was not asked anything about Oscar or which is
confirmed by Oscar.”
“In respect of the second statement189of 3rd March 2003: your next statement was
on 3rd March 2003 is that correct? . . . Correct.
And again Oscar does not appear in that statement . . . . Even if he does not
appear in the other statement.”
[824] It was submitted by Mr Nyoni that what is conspicuous from these answers is,
firstly that the witness conceded that he never implicated Oscar in any of the
statements tendered to the Police, and secondly, that there is no plausible reason
why, if Oscar did what the witness had described in Court, his statements should be
silent about the accused, especially when he alleges that when the statements were
recorded, he was not only alive about the roles that Oscar allegedly played, but he
was also quite clear about the identity of the accused. Mr Nyoni submitted that the
188 p 2778189 p 2781
293
witness contradicted himself fundamentally during re-examination by Mr July when
the witness was referred to his first statement where the following appears:190
“Yes but can you confirm for the purpose of the record that in this particular
statement where you made reference of Oscar Puteho it is in fact Putego
Putego, can you confirm that fact?
Mr Nyoni: That is grossly leading, My Lord”
[825] This Court then put on record that the second person’s name who appears in
the record is “Putego Putego”. This witness that testified that the person referred was
indeed the accused before the Court. This reply it was submitted by Mr Nyoni stands
in stark contrast to what the accused had testified during cross-examination. Mr
Nyoni submitted that the unreliability of the assertion that Puteho Puteho in his first
statement is a reference to Oscar is apparent from the clarification which this Court
sought from Nuwe when this Court wanted to know why the witness could not have
provided the Christian name to the Police to which the witness replied that his
memory failed him so ‘I just give those names Puteho Puteho. This Court then
directed the attention of the witness to the name of the second person in his
statement as Putego Putego and not Puteho and the witness replied that he did not
record the statement.
[826] Mr Nyoni submitted that Nuwe’s credibility in alleging that the person referred
to in his statement as Puteho Puteho was further destroyed with the introduction of
Exhibit ETC by the State which reflects that a person by the name of Puteho Puteho
attended a UDP meeting on 1st January 1999 at Kachiso Centre Mogodisani
Botswana. It was submitted that there was indeed a person answering to Puteho
Puteho who was deeply connected to secession by violent means. It was submitted
by Mr Nyoni that not only did the Christian names of Puteho not appear in the
witness statements but none of the varied and prominent roles alleged in Nuwe’s
testimony in Court were recounted in any of Nuwe’s three statements.
[827] It was submitted by Mr Nyoni that even if one were to assume for the sake of
argument, that Nuwe had forgotten the names of the accused on all three different
and separate occasions when his statements were recorded by the police, at least
one would have expected that the criminal activities the accused is alleged to have
committed as alluded to by the witness, would be contained in the statements, but
190 p 2851
294
not even those roles appear in any of the statements. It was submitted that there is
absolutely no explanation for the omission of the alleged offending roles that Oscar
Puteho is alleged to have undertaken, which Nuwe only brought up, for the first time
in Court when he testified.
[828] My Nyoni submitted that the evidence of Nuwe that the accused had trained
them in the use of big weapons i.e. 60mm and 80mm motor pipes is contradicted by
the evidence of Oliver Mbunlungu who testified that they were given instructions on
G3 and R1 rifles. There was no training in other weapons ‘because there was no
room for that’. It was further submitted that Nuwe’s testimony also conflicts with that
of Alfred Kupulo Kupulo where the latter testified that except for Patric Mwinga the
other instructors at Sachona were Francis Mushandikwe, Progress Munuma and
Alfred Kakena. Oscar Mwisepi testified that he met Oscar Puteho in Dukwe,
Botswana and that Oscar Puteho was one of the platoon leaders. He testified that
he also met Oscar Puteho at Masida when he was in the company of inter alia John
Samboma, John Samati, Richard Misuha, Bennet Mutuso and Oscar Puteho
Muyuka. This witness identified Oscar Puteho in court as accused no 49.
[829] Mwisepi testified that after the attack (on 2 August 1999) a regrouping
committee was formed with the task of organising the rebels and that he (i.e. the
witness) was one of the members of this group. Mwisepi testified that Richwell
Manyemo who was part of this group instructed him to meet with the group of John
Samboma at Masida bush where he found John Samboma, Richard Samati, Bennet
Mutuso, Richard Mishua and Oscar Muyuka Puteho. In the vicinity of this group were
firearms. The purpose of this visit by him was to take food to them and to hear the
difficulties they were experiencing. It was submitted by Mr Nyoni that the witness
could not have been part of this regrouping committee since the alleged
secessionists considered him to be a spy and that he was mistrusted and referred to
the following incidents: firstly, at a meeting where the escape of the Stephen Mamili
group was discussed prior to the attack, the witness was labelled as an informer;
secondly, just before the attack the witness was excluded from attending meetings
where the planning of the attack was discussed and that is why he did not know
exactly when, where and in what manner the attack was going to take place; thirdly,
that Mwisepi had nothing to do with the attack on 2 August 1999, that he was caught
by surprise on 2 August 1999 and at that stage was no longer part of any attack.
295
[830] Mr Nyoni submitted that Mwisepi contradicted himself as regards why he did
not take part in the attack. Mwisepi explained that he did not take part because
there was a lot of work to be done at the village, other commitments. However he
testified that on 2nd August 1999 he was in bed with his girlfriend where he had
‘overnighted’ in Ngweze township (Katima Mulilo). It was submitted that even if there
was such a regrouping committee formed, Mwisepi would have been the last person
to be trusted to have a secret meeting with rebels in the bush. Mr Nyoni referred to
the testimony of Richwell Munyemo (accused no. 115) who during cross-examination
by Mr Nyoni denied any knowledge that such a regrouping committee existed and
denied that he ever tasked Mwisepi to go into the bush in order to contact any
alleged rebel.
[831] It was further pointed out by counsel that Mwisepi testified that he observed
firearms in the vicinity of the group of rebels he visited but in his statement to the
police he stated that these persons were unarmed and that his explanation for this
discrepancy was that he had informed the police officer (who took his statement) that
those men were indeed armed. It was submitted that Mwisepi was a single witness
and that his evidence should be approached with caution. It was further submitted by
Mr Nyoni that either through his confusion or just mere overzealousness to please
the State, Mwisepi was adamant throughout his testimony that the exodus to
Botswana was solely for the purpose of making preparations and eventually to return
to Namibia and carry out an armed struggle to secede Caprivi.
[832] It was submitted in this regard that what is apparent from the evidence, what
motivated many Caprivians to undertake this exodus to Botswana were a host of
influences, and mob psychology. My Nyoni further pointed out that the witness
Mwisepi was a self-confessed liar when he from his return through repatriation (on
28 May 1999) informed the NBC that in future he would not be supporting the idea of
seceding the Caprivi from Namibia. During cross-examination by Mr Nyoni it was put
to the witness that the accused will deny that he was at Masida. The witness insisted
that the accused was there. It was put to the witness that the accused will say that
he was in fact in Zambia to which the witness replied: ‘ I met the group of Oscar at
Masida coming from Zambia’. The witness further confirmed during cross-
examination that he was informed in the year 2000 by police officer Popeinawa that
he would be used as a State witness in this case, but that he nonetheless persisted
with his secessionist ideas until the year 2001.
296
[833] The prosecution called a number of other witnesses whose evidence should
be excluded for two reasons. In the first instance because of torture, and secondly,
because they were unable to identify the accused person in Court. Mr Nyoni in his
heads of argument submitted in respect of these witnesses that: Ruben Bakubulo
Sikwela was subjected to torture and his evidence was ruled inadmissible. He
testified that he had been severely assaulted by the police prior to him giving his
witness statement. Christopher Lifasi Siboli failed to identify Oscar Puteho in court as
one of the accused persons. Alfred Kupulo Kupulo failed to identify Oscar Puteho in
court as an accused persons.
[834] Thomas Franco Mukoya was subjected to torture prior to him giving his
statement to the police and his evidence was ruled inadmissible. Vasco Simombela
was severely tortured and his evidence was ruled inasmissible. The State in their
heads of argument submitted that the name of the accused appears on the
deployment list Exhibit EGK1 and that he is referred to in Exhibit EGO2 (page 10 of
the translated version), as being part of a second group, purportedly set off before
the matter came up in court. The name Puteho Muyuka it was submitted was a
reference to the accused person. It appears from Exh. EGO2 that two individuals
with the name Puteho were part of this group namely, Puteho Oscar and Puteho
Myuka.
[835] The question remains what weight this court should attach to the testimony of
the evidence. In respect of the witness Michael Nuwe it is common cause that he
did not implicate the accused in any of his witness statements to the police. His
reasons for not doing so is unconvincing and this Court must therefore approach his
testminy with caution. In respect of the testimony by Mwisepi there is merit in the
criticism of his evidence by Mr Nyoni and his evidence must similarly be approached
with caution. It was submitted by Mr July that Aaron Jonas a prison warden at
Grootfontein Prison testified that both Oscar Puteho’s were held as accused persons
and that his evidence has placed any suggestion of confusion that may have existed
that accused 49 had been mistakenly mentioned or identified by witnesses in court
beyond doubt.
[836] In this regard I need to make two observations. Firstly, in respect of Exhibit
EGO2 it was submitted by the State that the name Puteho Muyuka refers to the
accused person. If that is accepted to whom does the name Puteho Oscar refer to?
Another question which comes to mind is whether the names connected to Puteho
297
refer to a single person to two individuals? There is uncertainty in this regard.
Secondly, in considering whether or not a prima facie case has hardened into proof
beyond reasonable doubt, other considerations, other than the issue of identity,
including the credibility of a witness must be considered. I must express my
reservations in accepting that the evidence of the witnesses is of such a nature that
this Court may conclude that such evidence is sufficient, in the absence of any
evidence by the accused, that the guilt of the accused was proved beyond
reasonable doubt. I am of the view that the State has not discharged its onus to
prove the commissioner of any of the preferred charged against the accused person
except for those charges under the Immigration Act of 1993.
Martin Sabo Chainda (accused no.103)
[837] Christopher Lifosi Siboli testified and identified accused no. 103 as one of the
individuals who had recruited persons to join the CLA. The witness referred to the
accused only as Chainda stating that he did not know his first names. This witness
during cross-examination persisted that it was the accused person and no other
Chainda whom he knew as the person who recruited individuals for the CLA.
[838] Kasunga Kasunga testified that Martin Chainda told him: ‘These young boys
who went to Botswana they came back so now we are going to cut Caprivi.’ This
witness testified that Martin Chainda referred to the CLA which would cut Caprivi.
This witness testified that Martin Chainda told him this because Chainda knew that
he was a member of SWAPO. This witness, when given the opportunity to identify
Martin Chainda, was unable to do so. It was submitted by Mr. Nyoni that the
identification by this witness of Martin Chainda was erroneous. Mr July in his reply
submitted that the record is absent of any objections by counsel that Siboli’s
identification was wrong. Mr. Nyoni criticized the evidence of Siboli as ‘rigidly biased’
that he was not even prepared to consider that he may be mistaking Martin Sabo
Chainda, before Court, with the latter’s brothers, Shadreck Chainda and Justus
Chainda who were indeed members of SWATF.
[839] This Court was referred to the record where the following exchange
appears:191
191 P.4751 lines 2-6
298
‘Do you by any chance know or could have known one Justus Chainda? … I know
Chainda, the one who is seated there.
So you don’t know Justus Chainda? … Even if I maybe knew him or I just saw him,
but the one I know is the one over there.
I presume you probably knew one Shadreck Chainda. Is that correct? … My Lord,
there can be a lot of Chaindas but the Chainda that I know is the one who is over
there, my Lord.
And naturally you would not know that the two Chaindas I have given you, Shadreck
and Justus were ex-SWATF members. You know, is that correct? … That one over
there, My Lord, he was in the old Army but those you are talking about, I don’t know
them, my Lord.’
[840] And the record continues as follows:192
‘For your information, Mr Chainda was a student nurse in the year 1978. What is your
answer to that? … I don’t know about his nurse profession, because people can treat us but
I don’t know who these are.’
[841] Mr. Nyoni referred to the testimony of Richard Simvula Chainda, a witness
called on behalf of the State and who under cross-examination conceded:193 that he
is the stepbrother of the accused, that the accused was never a soldier or a member
of SWATF, that he (ie the witness) was a member of SWATF, that the accused
originally trained as a nurse, and that the accused was never a member of 701
Battalion. The record further reflects that according to this witness, the accused had
a history of a diabetic illness and that between August 1998 and June 1991, because
of this diabetic illness, the accused sometimes was unable to go to work. It was
submitted by Mr. Nyoni that the testimony of Richard Chainda entirely contradicted
the evidence of Siboli. Mr. Nyoni further submitted that the assertion by the State
Prosecutors in opposition to the application for a discharge in terms of s 174 was
that Martin Sabo Chainda ‘was identified in Court as having recruited persons for the
CLA’. This Mr. Nyoni submitted is not supported by the record.194 The record reflects
that the evidence was led by Mr. January and the witness was in the process of
identifying accused persons in court whose names were mentioned by the witness:
192 P.4753 lines 18-20, p.4754193 P. 20678 - 20679194 P.3657
299
‘Okay proceed. Could you state his195 position where he is sitting? … My Lord, from
the first row, he is in the third row and from the wall, he is seated in third position.
What type of clothes is he wearing? …He’s wearing a long sleeve shirt which has got
the colors of white and black.
It’s accused no.100. Yes anyone, else?
… The other one is Mr. John Samboma seated next to Mr Chainda.
What is the name of Mr. Chainda? …My Lord, I just know him by that name, I’ve
forgotten the other names.
Mr Samboma is accused 54, My Lord. I just want to establish and Mr. Chainda 103.
Anyone else? …’
[842] It was submitted by Mr. Nyoni that Siboli simply described the location of Mr
Samboma by reference to Chainda and that Chainda was not implicated by Siboli as
one of the persons who recruited members for the CLA. I agree with Mr. Nyoni since
the record does not reflect, until that pointing out, that Chainda has previously been
referred to in the evidence-in-chief of this witness. Had the record made reference to
the fact that the witness had testified that Chainda recruited members for the CLA
that pointing out would have been allowed as evidence against the accused, but the
record does not reflect it. The submission that there was no objection at that stage is
immaterial. The name of the accused was mentioned in order to indicate the position
of accused no.54. In any event, even if it is accepted for the sake of argument that
there was a valid identification, then the foundation of such identification, namely that
Chainda was in the SWATF, was destroyed by the testimony of State witness,
Richard Chainda to the contrary.
[843] On this point, the State has led mutually destructive versions from Siboli and
Richard Chainda. The effect of this is that the perceived evidence to be favorable to
the State is destroyed by the evidence of another State witness. In this instance, it
cannot be expected of the accused to supplement any defect in the State’s case.
The evidence presented by the State does not prove the commission of any offence
by the accused person. I therefore need not consider the other submissions in
respect of Siboli made by Mr. Nyoni.
Ignatius Nawa Twabushalila (accused no.44)
195 The witness referred to Mathews Sasele
300
[844] Progress Munsu Mulonga testified about an incident at Shell Filling Station
where he met Geoffrey Mwilima who was in the company of John Samboma. On the
motor vehicle were twelve men including Ignatius Twabushalila. This witness
testified that Geoffrey Mwilima told him that he was on his way with those people to
Angola for military training. The witness stated that Geoffrey Mwilima could not have
kept quiet because of the fact that he (ie the witness) used to attend meetings also
attended by Geoffrey Mwilimo, at which meetings it was mentioned that the Caprivi
Region must be liberated through the barrel of the gun and that people must go to
Angola for military training. This witness identified Ignatius Twabushalila in court as
accused no.44.
[845] It was submitted by Mr. Nyoni that during cross-examination, Mulonga
testified that he had never said anything to Twabushalila; that there is no evidence
that Twabushalila had agreed with what was allegedly said by Mwilima; that there is
no evidence that Twabushalila ever went to Angola for anything; that Mulonga
admitted that he himself never went to Angola. Mr. Nyoni submitted that there is a
material conflict in Mulonga’s evidence as to whether Mwilima told him what the
purpose of the alleged journey to Angola was. In the evidence in court, he testified
that nobody told him about the purpose of the journey to Angola and that during
cross-examination, it appeared that it was an assumption made by this witness that
those individuals went to receive military training. It was submitted that only when
this Court sought some clarification from the witness that he changed to the version
that Geoffrey Mwilima informed him that those individuals were on their way to
Angola in order to receive military training. I agree with this submission.
[846] It was further submitted that the incident at the filling station is devoid of any
ring of truth. In this regard, the following was submitted: It is common cause that
Mulonga was born half deaf; that Mulonga could not hear the interpreter in court
when the clerk attempted to administer the oath in court; that the interpreter had to
speak at the top of his voice and into the ear of the witness; Mulonga could not hear
the prosecutor who was 2 metres from him, and could not hear the presiding Judge;
that he was not aware of the sound system in court; that this problem caused him to
leave the school early because he could not hear the teachers, that he had to leave
his employment as storeman after barely eight months and that consequently, one
would have to shout into Mulonga’s right ear if he is to hear anything at all. It was
301
submitted that the filling station is a public place and this is where it is alleged by
Mulonga that the exchange between him and Mwilima took place.
[847] Mr. Nyoni remarked that no wonder when this court questioned him as to why
Mwilima would inform him of such a sensitive issue at a filling station Mulonga
conceded that it would have been a dangerous thing to do so,196 especially in view of
the fact that Mulonga had never at any meeting showed any support for the idea of
seceding the Caprivi Region. Given the disability of this witness, it would certainly in
my view, have been foolhardy for Geoffrey Mwilima to have shouted what the
purpose at the journey was. Mr. Nyoni further submitted that Mulonga testified during
cross-examination that he never had a personal encounter with Mwilima and that he
(ie the witness) had done nothing to lull Mwilima into believing that he (witness) was
part and parcel of the secessionist movement.
[848] It was submitted by Mr. Nyoni that Geofrrey Mwilima himself during his
testimony denied not only meeting Mulonga at the filling station but also denied that
he ever made such a report to Mulonga. Mr. Nyoni submitted that Mulonga during his
evidence-in-chief portrayed himself as a saint197, yet what he informed the police (i.e.
officer Popyeanawa) depicted him as an active secessionist.198 This court was urged
to approach his evidence with caution because not only is the witness a single
witness in respect of the alleged incident at the filling station but he is also an
accomplice.
[849] This Court (supra) dealt with the testimony of this witness where he testified
about three DTA meetings he had attended, one of which was addressed by
Muyongo and where the attendants or some of them had raised their hands to
indicate their agreement with Muyongo, but that this witness later during cross-
examination disavowed such testimony by stating that Muyongo never addressed
such a meeting.199 It was submitted by Mr. Nyoni, and correctly so, that not only was
Mulonga untruthful, but that he falsely implicated those who have allegedly attended
ECH6 and ECH7 contain “requested specimen writing” and “collected specimen
writing” and were compared by handwriting experts and the analysis done proved
the accused to be the author of the questioned documents.”
[904] It was submitted by Mr July that Exhibit EGH (1-5) prove that the accused was
a leader figure in the CLA and was committed to fight militarily for the independence
of Caprivi from Namibia. It was further submitted that documents authored by David
Mumbone were found in the military bag seized inside Mpacha military base. It was
submitted by Mr July that Ex EGH3 in graphic detail outlines the plan to invade the
Caprivi Region and the connection between the UDP and the CLA is clearly
demonstrated by the remarks by Spiderman. Exhibit EGH 5 at point II appears the
following: “300 CLA members are ready if everything comes fruitful.” It was
submitted by Mr July that these documents are executive statements and admissible
as evidence against the accused. I agree.
[905] The accused elected not to testify. The evidence presented by the State is of
such a nature that it begs an explanation from the accused person, in particular the
documentary evidence. I am satisfied that in the absence of any evidence by the
accused, that the State has succeeded to prove the commission of the charges
against the accused beyond reasonable doubt in respect of overt acts and the
inference that same were committed with a hostile intent.
323
Oscar Nyambe Puteho (accused no.72)
[906] It was submitted by Mr Samukange in his heads of argument that accused no
72 should have been acquitted in the application in terms of s. 174 because this
Court had at that stage relied on incorrect evidence. It was submitted that this Court
relied on the evidence of Exhibit EGJ 1-3 which exhibits relates to Martin
Tubaundule (accused no 71). It was submitted that the evidence led in respect of
accused no 71 was to the effect that he was in possession of a diary with a leather
cover and was also in possession of other handwritten documents which formed part
of exhibit EGJ 1-3 and that these documents related to the armed struggle in the
Caprivi Region. The material was sent to a handwriting expert who testified in Court
and concluded that the author of those documents was Martin Tubaundule (accused
no 71). It was submitted that accused no 72 was not found with any written material
and that no handwriting specimen was taken from him.
[907] Mr July conceded that Exhibit EGJ (1-3) was found to be authored by accused
no 71 but disagreed that there is no evidence which links the accused to the
offences charged. Mr July referred to Exhibit ENY (1) in support of his contention
that the accused went to Botswana with the group of 92. This exhibit, a newspaper
article, was received as an exhibit in a trial-within-a trial and it is trite law that such
evidence may not be used in the main trial. It was submitted that the accused was a
secretary in Dukwe as testified by Mwisepi. This evidence is insignificant. It was
submitted that the accused was in Zambia with Stephen Mamili in June 1999 when
he was supposed to have been in Dukwe. It was submitted that the accused was
arrested with other co-accused in Zambia and that this is not disputed.
[908] Mr Samukange in an alternative argument referred to the testimony of
Christopher Siboli who testified that the accused attended a meeting in Windhoek-
West during the year 1995 where the succession of the Caprivi was discussed. Mr.
Samukange submitted that is was put to Siboli during cross-examination that the
accused only attended the University of Namibia (UNAM) during the years 1996 until
1998 and thus could not have attended a meeting during 1995. Siboli replied 206:
“Yes, he is a student. It’s okay, it’s right.” It is not clear to me whether Siboli
conceded to the fact that the accused was a student at UNAM or to the fact that the
206 P.4483 lines 6-7.
324
accused was a student between the years 1996 until 1998. This Court was referred
to the testimony of Siboli during cross-examination by Mr Kauta in respect of the
Windhoek-West meeting when the witness was asked whether he attended only one
meeting with a Mr Mutame to which the witness replied that there is nothing he could
remember because it happened a long time ago. Siboli also could not remember
what decision was taken at that meeting.
[909] Mr Samukange submitted that Siboli is contradicted on another occasion
when he gave testimony in respect of Kopano ya Tou. This Court was referred to the
fact that the witness testified that he was present at Kopano ya Tou meetings where
the topic of secession was discussed. Siboli testified that he was not in the “old
army” but only did national service for one year. This evidence was contrasted with
the evidence of State witness David Simbulu, a former SWATF member, attached to
701 Battalion, who testified that the membership of Kopano ya tou was not open to
non 701 Battalion members. Siboli testified that he attended Kopano ya tou and
therefore Siboli could not have attended those meetings he had testified to. In view
of the answers given during cross-examination in respect of the Windhoek-West
meeting in 1995 and in the view that Siboli being a single witness in respect of that
incident, this court cannot rely on such testimony since it was not clear and
satisfactory in all material respects.
[910] Constance Kabuba Inyambo, a Zambian national, testified that in June 1999,
she was at her village, Nkanda in Katima Mulilo, Seseke district, Zambia, when they
received visitors. One was her cousin, Stephen Mamili. Thaddeus Ndala introduced
her to the others as Moses Mushakwa, Charles Mushakwe and Oscar Puteho. She
was informed that they were looking for a witch doctor. Her sister was with her at that
stage. She testified that the Zambian Police subsequently arrived at their court yard
and arrested these visitors. Ruth Lungowe Luyambo corroborated the evidence of
her sister, Constance, in material respects. She testified that Thaddeus Ndala
introduced Charles Mushakwa and Oscar Puleho to her and that this group was
subsequently arrested by the police on 18 June 1999. These two witnesses were not
asked to identify Oscar Puteho. According to their testimonies, the identities of the
members of the group were revealed by Thaddeus Ndala.
325
[911] Mr July referred to the bail application (Exhibit B2) of the accused on 31 July
2000 in which the accused described how he fled to Botswana on 10 December
1998 due to harassment by members of the Namibian Police Force in Katima Mulilo.
The accused testified that after a few months at Dukwe, he left the refugee camp in
the year 1999 together with Charles Mushakwa destined for Zambia. They met other
accused persons in Kasani before they crossed the border into Zambia where they
stayed until they were arrested. During cross-examination by Mr Small, the accused
testified that they were five individuals including one Mamili who left for Zambia. He
testified that he met Thaddeus Siyoka Ndala in Kasani who was part of the group.
The accused testified that, though he had been granted political asylum in Botswana,
the conditions were unbearable and he left for Zambia in order to seek for political
asylum. The accused conceded that when he left Namibia for Botswana, he crossed
the border at an ungazetted border point, that he entered Botswana at an ungazetted
point, that he travelled on foot through the Caprivi region and entered Zambia from
the Caprivi region at a point not designated as a gazetted border point.
[912] The accused admitted that he was a member of UDP and that he agreed with
the aim of the UDP that the Caprivi should be a separate entity by “democratic
means”. His testimony was that he was an ordinary member of the UDP and was not
an office bearer. It was submitted by Mr July that the accused with the four other
individuals escaped from Botswana in order to prepare for the military attack which
took place on 2nd August 1999. Mr July also referred to Exhibit EGO 2 which reflects
that Oscar Puteho was one of those who were in the second group who escaped
from Botswana. Mr July submitted that p 10 of Exhibit EGO 2 refers to two Puteho’s,
namely Oscar and Muyuka and is indicative of the involvement of accused no.72. Mr
July submitted that the CLA was the military wing of the UDP and that in view of the
resolutions taken by the UDP on 1st and 20th January 1999, the accused was actively
working towards the achievement of those resolutions so adopted that the evidence
is sufficient to prove the involvement of the accused in secessionist activities.
[913] It is common cause that the accused was arrested during June 1999, together
with other accused persons, in Zambia. It is further common cause that the group
referred to as the ‘Stephen Mamili group’ was arrested in Zambia and handed over
to members of the Namibian Police during June 1999 consisted of, Stephen Mamili,
Moses Mushwena (accused no 12), Thaddeus Ndala (accused no.70), Martin
326
Tubaundule (accused no.71), Charles Mushakwa (accused no.73) and Oscar
Nyambe Puteho (accused no 72). Stephen Mamili died whilst in detention after he
had been arrested by the Namibian Police.207 George Mundia testified in Court that
he is an immigration officer employed by the Zambian Government and is stationed
at Mungo Regional office in the Western Province of Zambia and was a member of
an advisory committee which advises the Provincial Joint Operations Committee. He
testified that the group of Stephen Mamili appeared before the advisory committee
and were questioned regarding their purpose of entering Zambia. Each one had a
similar story, namely that they had been granted asylum in Botswana but could not
accept the conditions there and decided to enter Zambia in order to seek asylum.
Each one of them then completed an immigration form called “Form 1”. These
documents were completed on 23 June 1999. He testified that the six Namibians
arrived the previous day under police escort from Katima Mulilo Police Station in
Zambia. He testified that their recommendation to the Chief Immigration Officer in
Lusaka was not to grant the six applicants asylum because false information was
provided when completing the immigration forms. The question which needs to be
considered at this stage is: did the State prove the commission of any of the offences
preferred against the accused person beyond reasonable doubt in the face of the
silence by the accused?
[914] The proven facts which this Court must accept is the following: the accused
fled to Botswana on 10 December 1999 and stayed for a few months in Dukwe. He
escaped and entered Zambia with co-accused persons and was arrested during
June 1999. His application for political asylum in Zambia was unsuccessful. He was
a member of the UDP. In order to answer above mentioned question, two other
questions need to be considered, namely: was an overt act proven and secondly,
was it proven beyond reasonable doubt that the accused had the required hostile
intent? The argument of the State is that the mere fact that an individual has fled to
Botswana constitutes to an overt act. In my view, this is a too broad and too general
statement which does not make provision for the fact that there may well be
exceptions to this contention. Even if it is accepted for the sake of the argument, that
this constitutes an overt act, can it then be inferred that the required hostile intention
was present beyond reasonable doubt?.
207 See the judgment delivered on 23 February 2004.
327
[915] Exhibit EGO2 is merely the confirmation of a common cause fact, namely,
that the accused had escaped from Dukwe. To infer that the accused was involved in
secessionist activities because he was a member of the UDP (an ordinary and
inactive member as reflected in Exhibit B2), would be to convict the accused by the
fact of his association to that political party. Even if it is accepted that the CLA was
the military wing of the UDP, is the only reasonable possible inference to be drawn
that the accused supported the secession of the Caprivi Region by violence? As
indicated above, hostile intention is the definitive element of the offence of high
treason and is a subjective element of that crime.
[916] I am not satisfied that such an inference may be drawn from the proven facts.
In my view, the State has not succeeded to prove the commission of the preferred
charges against the accused person beyond reasonable doubt, save for those
charges under the Immigration Act 7 of 1993.
Charles Mafenyeho Mushakwa (accused no.73)
[917] Oscar Mwisepi testified and identified the accused person as someone who
went to Zambia. It is common cause that the accused was in Zambia during June
1999. It is not disputed that the accused was together with accused no.72 when they
were arrested on 18 June 1999. It is also common cause that the accused who was
part of the Stephen Mamili group was handed over to members of the Namibian
Police Force by members of the Zambian Force on 7 August 1999.208 Christopher
Lifasi Siboli testified and stated that Charles Mushakwa was someone who recruited
persons for the CLA and that he was also a mobiliser of persons in connection with
the secession of the Caprivi Region. This witness identified Charles Mushakwa in
Court as accused no.73. This witness testified about a meeting held at the DTA
office in Katima Mulilo when John Samboma and Thaddeus Ndala returned with an
answer from Angola that weapons could be procured from Angola and that people
could go to Angola for military training. The witness testified that the accused was
one of the attendants at this meeting. It was submitted by Mr Samukange that the
evidence of this witness on this point stands uncorroborated by any testimony from
any other witnesses and reminded the Court that this witness’s evidence should be
treated with particular caution.
208 P.10 of judgment delivered on 23.2.2004
328
[918] Oliver Munyandi Mbulunga testified that he (i.e. the witness himself) was in a
group of persons on their way to Angola led by John Samboma, who informed the
group that they were on their way to Angola for training and military assistance. The
witness testified that Charles Mushakwa was one of the members of this group
which consisted of about 60 individuals. According to this witness, they were first led
into Zambia and thereafter into Angola. He testified that John Samboma informed
them that the reason why military assistance was sought was to secede the Caprivi
“through fighting” and was informed that UNITA would provide the required military
assistance. This witness identified Charles Mushakwa in court as accused no.73.
This witness in his testimony gave a brief background of events which occurred prior
to him finding himself in the group of John Samboma. He testified that on 2 October
1998, he was at his village in Sinkoweka when Thaddeus Ndala arrived there and
used Osbert Likanyi to inform him about a DTA meeting the next day in Ngwezi. This
was however just a pretext.
[919] Mr Samukange in his heads of agreement submitted that it is common cause
that the accused no.73 was in prison in Zambia on 2 August 1999 and had been
there for some months and could not have participated in the planning and execution
of the events which took place on 2nd August 1999. It is indeed common cause that
the accused was in prison in Zambia on 2nd August 1999 but not for some months.
The evidence by accused no.72 (in the bail application) was that they arrived in
Zambia during June 1999. They were arrested on 18 June 1999 and handed over to
the members of the Namibia Police Force on 7 August 1999 which covers a period of
a few weeks. Nevertheless, the witness Mbulunga testified about events which
occurred shortly after 2nd October 1998. At that stage, the accused was not in
Zambia.
[920] It was also submitted that Mbulunga was unable to identify the accused
person. This is not correct. The record209 reflects that the accused was identified.
There was no confusion between Charles Mushakwa as accused no.73 and another
individual by the name of Christopher Mushakwa. Bernard Baleka Kanzeka testified
about a meeting during the year 1998 where the topic of secession was discussed
and where Charles Mushakwa was one of the attendants. This witness also testified
209 P.3148 lines 11-24 and 3149 lines 1-11.
329
that Charles Mushakwa is known to him as a person who used to teach or to coach
people in Katima Mulilo to go to Botswana and thereafter to return to liberate the
Caprivi Region. This witness testified that he knows about this coaching because he
“found him busy teaching or coaching or mobilizing people”.210 This witness identified
Charles Mushakwa in court as accused no.73.
[921] It was submitted by Mr Samukange and correctly so, that this witness did not
identify the accused on the first day of his testimony. The witness however identified
the accused on the second day of his testimony and there is no evidence that that
was an erroneous identification. In Exhibit EGL, the following inscription appears in
the diary on the date of 28 October 1998:
“Mr Vincent Kasinanzi drove the President’s (car) bakkie he crossed Chobe river at
Libulibu into Botswana to Kasane where he joined the group of 92 CLM.”
[922] And on 29 October 1998 the following appears:
“We started from Satau to Kasane and we met The President Mishake Muyongo
- Keneth Sitali
Charles Mushakwa
Thaddeus Ndala
Mubuyaeta Muluhida
+/- 4 km to Kachikau
And then drove to Kasane Police Station.
Everybody was interrogated. Just after 17hrs, Chief Mamili arrived with Matomola Loozi and
Kelezu Immanuel. They were all interrogated and then after we slept in the prison hall.”
[923] These inscriptions appear in the diary of a co-accused (now deceased).
These inscriptions are executive in nature. The accused person did not testify. The
evidence presented by the state clearly called for answers by the accused person.
The evidence in my view establishes covert acts committed by the accused person.
The only reasonable inference to be drawn in view of this evidence is that it was
proven beyond reasonable doubt that the accused had the required hostile intent.
210 P.6067 lines 17-19.
330
Clients of Mr Muluti.
Rafael Lyazwila Lifumbela (accused no.6)
[924] Lemmy Kasoondaha Haufiku testified that during the year 1999, he was
employed by the Ministry of Defence at Mpacha Military Base and held the rank of
Captain. On 2 August 1999, the military base came under attack. There was an
exchange of gunfire. Subsequently, four persons were captured, namely, Rafael
Lifumbela, Musheba Mwiya, Chris Ntaba and Sylvester Ngalaule. He testified that he
personally interrogated the captured persons and that Rafael Lifumbela gave him
certain information. He testified that a number of different types of material as items
found inside the premises of Mpacha Military base were seized. This witness
testified that three members of the “enemy” were killed and Rafael Lifumbela was
asked to identify the three corpses, which he did. Counsel who appeared on behalf
of the accused at stage, Ms Sithole – Mwenda, did not cross-examine this witness.
[925] Fabian Simana Libebe testified that he is employed by the Namibian Defence
Force and held the rank of full Corporal. On 2nd August 1999 about 03h00, he was
awaken by small arms fire. He received information that persons had been arrested
and were being kept in the conference room and went to the conference room.
Inside the conference room, he recognized Rafael Lifumbela because they had
worked together in the South African Defence Force (SADF) from 1981 until 1989 at
Mpacha Military Base. It was put on record by Mr January211 that the accused was
undefended at that stage and had absented himself (together with other accused
persons) from the proceedings without leave by the Court and that the State’s case
was prejudiced by their absence. I must add that this Court had impressed upon
accused persons in Court the importance of their presence during the criminal
proceedings and those accused persons had been informed of the provisions of
s.159 of Act 51 of 1977, but in spite of this information still chose to absent
themselves. The effect of the absence of this accused was that this witness was not
given the opportunity to identify the accused in Court.
[926] Moses Mulemwa Sesa testified that he was a member of the Namibian
Defence Force. On 2nd August 1999, he was at Mpacha Military Base. He had
arrived at Mpacha Military Base from Oamites Military Base on 31st July 1999. On 1st
211 P.16767 lines 14-20.
331
August 1999, he and other soldiers were deployed in the western part of Mpacha
military base. They were in the trenches when the base was attacked and remained
there until the morning. He went to the headquarters where he found the late Captain
Mwilima interrogating “suspected enemies”. He recognized his best friend Rafael
Lifumbela Lamzila as one of them. He testified that he and Rafael Lifumbela were
together in the SADF for some time and that they worked as radio operators. The
witness identified the accused person in Court.
[927] It was submitted by Mr Muluti that none of the witnesses who claimed that
accused no.6 was arrested were able to identify the accused. This contention is not
supported by the record. I need to comment on the absence of the accused person
at the stage when state witness Libebe gave his testimony. This accused person
consciously and deliberately chose to absent himself form the proceedings in spite of
the fact that this Court had impressed upon him (and the other accused persons in
the group) the importance why they should be present during the trial. This group
absented itself because they were dissatisfied about a ruling given in respect of an
application initiated by them. The State was prejudiced by the fact that the State
witness was not in a position to identify the accused in court. There is a
misconception that the issue of a fair trial should be considered exclusively from the
viewpoint of an accused person. This is wrong. One of the other parties with an
interest in a criminal trial, is the State which prosecutes on behalf of the Namibian
public. The accused, by absenting himself without leave from this Court, undermined
the fairness of the trial vis-à-vis the interests of the State. It appears that this
accused now wishes to benefit from his conduct by claiming that he was not
identified by a State witness in court. The accused, in my view, cannot cry foul
because the trial from his perspective is unfair where he himself through his very
own conduct, caused prejudice to the State case. His choice to absent himself from
the trial cannot be without certain consequences. One of these consequences, in my
view, is that the evidence against the accused by State witness Libebe stands
uncontroverted, namely that he recognized the accused on 2nd August 1999 inside
Mpacha military base.
[928] The evidence by Captain Haufiku to the effect that a person captured inside
the base, one Rafael Lifumbela, was asked to identify three corpses and which he
also did, stands uncontradicted since not one question was asked during cross-
332
examination by counsel Ms Silhole-Mwenda. The evidence by Moses Sesa that he
recognized his “best friend” Rafael Lifumbela, and the fact that he identified him in
Court stands uncontroverted. This witness was not cross-examined by counsel who
appeared on his behalf, but was cross-examined by Mr Neves in respect of his ability
to have recognized Rafael Lifumbela. It was not once put on record by either Ms
Sithole-Mwenda or by Mr Neves that the witness identified accused no 97 as
submitted by Mr Muluti in his heads of argument.
[929] It was submitted by Mr Muluti that the witness Libebe testified that he was 65
years old, that he would be able to identify Rafael Lifumbela if he could see him
closely, that he had problems with his eyes and as a result no identification took
place. This certainly would have been valid points to be considered in determining
why the witness failed to identify the accused person, if the accused person had
been present in Court at the time the witness was asked to identify Rafael Lifumbela.
It was, however, not disputed by any defence counsel that the accused no 6, Rafael
Lifumbela, was absent at the stage state witness Libebe was asked to identify him.
The prejudice to the State remains there. The submission by counsel that there is no
link to connect the Rafael Lifumbela arrested on 2nd August 1999, to accused no 6,
cannot be supported. The evidence established the contrary, namely, that Rafael
Lifumbela, accused no 6, was arrested inside Mpacha military base on 2nd August
1999 shortly after an attack on the military base.The submission by Mr. Muluti that
the final nail in the coffin of the State’s case was the failure to produce photographs
depicting the accused as one of the rebels captured at Mpacha on 2nd August 1999
does not detract from the cogency of the other evidence presented by the State.
[930] The accused elected to remain silent. I am satisfied that, in the absence, of
any evidence by the accused, that the evidence presented by the State has proven
beyond reasonable doubt the commission of the offences which will be stipulated
hereunder.
Francis Buitiko Pangala (accused no. 17)
[931] Walter Mwezi Sikochi testified that he observed Francis Pangala on the
evening of 1st August 1999 at Makanga when the final preparations for the attack the
next morning were made. The witness testified that Francis Pangala did not have a
333
firearm and that he did not know where Pangala went to. This witness identified
Francis Pangala as accused no. 17 in Court. The witness testified about a number of
persons whom he had found at Makanga including Hoster Sikunga and Jimmy
Siswaniso. It was submitted by Mr Muluti that a number of witnesses were called by
the State to testify against the accused, but that only two witnesses were able to
identify him in court. It was further submitted that the evidence of the witnesses
Thomas Franco Mukoya and Ivan Jona Twabulamayo Mate should be also excluded
at this stage as in the same way that their testimonies were excluded during the s.
174 application judgment due to the fact that they had been tortured. I have indicated
(supra) that their testimonies will be disregarded for the purpose of this judgment.
[932] The witnessess called, but failed to identify the person referred to as Francis
Pangala, were Hastingo Kufwa Kambukwa, John Mulauli Mwabela, and Mukushi
Events Kaine. In respect of the evidence of Walter Sikochi it was submitted by Mr
Muluti that his evidence that he had observed Hoster Sikunga and Jimmy Siswaniso
was undermined by the fact that both these person who were called as state
witnesses denied during their testimonies that they were ever at Makanga rebel
base. It was submitted that the reliability of Sikochi as far as his observation of
persons who were at Makanga has been undermined and discredited by those two
state witnesses. Mr July in his reply to the submission by Mr Muluti contended that
comparisons between the evidence of Walter Sikochi and Hoster Sikunga are
erroneous since the State had unsuccessfully attempted to declare Hoster Sikunga
as a hostile witness.
[933] It is indeed correct as stated by Mr July that this court in its ruling 212 in an
application to declare Hoster Sikunga a hostile witness found that there was no
evidence in support of the application to have the witness declared hostile. In respect
of State witness, Jimmy Siswaniso, the State also attempted to have him declared a
hostile witness. This court in its ruling213 directed that the witness statement the
State intended to use, must, in view of the denial by Siswaniso of having made such
a statement, first prove that the particular statement had been deposed to by
Siswaniso. This was not done. Both Hoster Sikunga and Jimmy Siswaniso testified
that on the evening of 1st August 1999 they were at home in their respective villages.
The fact that these state witnesses had not been declared hostile witnesses implies,
in my view, that their vica voce evidence stand as evidence presented by the State. 212 See judgment of 25 June 2008213 Ex tempore ruling of 25 September 2006
334
This evidence contradicts the evidence of Sikochi in so far as his testimony placed
Sikunga and Siswaniso at the scene at Makanga bushes. Sikochi is a single witness
in respect of his testimony that the accused was at Makanga the evening of 1 st
Augsut 1999. In view of the contradicting evidence of other state witnesses, this
Court cannot find that his testimony was clear and satisfactory in all material
respects.
[934] Given Lufela Ndugati testified that on the evening of 1st Augsut 1999 he was
at Makanga bush. One of the persons he had seen there was Jimmy Siswaniso who
had in his possession a ‘shell’. He also observed one Pangala which he identified as
the accused person.
[935] As indicated the State witness Siswaniso’s testimony that he was at his village
contradicts the testimony of Sikochi that he had seen Siswaniso at Makanga. The
testimony of Siswaniso implies that Sikochi was wrong when he testified that
Siswaniso was at Makanga bush. Mr July submitted that the reference by Mr Muluti
to Hoster Sikunga’s denial about not being at Makange or involved in the attacks is
disproved as his name appears on the deployment list Exhibit EGK1. The State
cannot at this stage and in his manner attempt to discredit Sikunga’s testimony. It is
inappropriate to do so. Sikunga is a witness called at the behest of the State. His
evidence was that he was not at Makanga. I need to remind the State what this
Court found in the application to have Sikochi declared a hostile witness. The
following appears from the summary of the judgment:
‘Application to have witness declared hostile. Witness implicated accused persons in
commission of crime (first statement). During vica vove evidence witness denounced
contents of first statement. Witness alleged he signed first statement in order to
prevent further assaults on him by police officers. Witness deposed to a subsequent
statement (second statement) disavowing contents of first statement and stating in
second statement that he had been forced to sign first statement. State in
possession to two statements, one favourable and one unfavourable to State’s case
prior to calling witness to testify – hazardous practice to call witness in these
circumstances. State had been forewarned that there is a very strong possibility that
witness may disavow first statement – took a calculated risk by calling witness.
Party entitled to apply to Court to have witness declared hostile where witness gives
unfavourable evidence contrary to what party calling witness expects – particularly
where unfavourable evidence comes as total surprise. State not surprised –
335
forewarned of the probabilities by witness. Application to have witness declared
hostile, dismissed.’
[936] The fact that the name of the witness Sikunga appears on Exhibit EGK(1) is
meaningless in view of his vica voce evidence to the contrary. In view of the
contradiction by Siswaniso the testimony of Ndungati must be approached with the
required caution. In the absence of any testimony by the accused person the test
remains: Has the evidence presented by the State proved the commission of the
preferred offences beyond a reasonable doubt? I am not satisfied that it does.
Sylvester Lusiku Ngalaule (accused no. 8)
[937] Johnny Katangala Shapaka employed by the NDF and who held the rank of
major during the year 1999 testified about the events at Mpacha military base on 2nd
August 1999. He testified that one of the investigators informed him of the name of
captured rebels including the name of Sylvester Ngalaule. This is obviously hearsay
evidence since this investigator’s identity is unknown. This witness also testified
about photographs in Exhibit Q. Another state witness called to testify against the
accused, was Lemmy Kasoondaha Haufiku, whose evidence was referred to (supra).
He testified that three of the rebels captured identified themselves as requested.
Once was Silvester Ngalaule. It was submitted by Mr Muluti, and correctly so that
this witness was not asked to identify Sylvester Ngalaule in court. It was submitted
that the State failed to establish a link between Sylveter Ngalaule and accused no. 8.
[938] It was submitted by Mr Muluti that it is common cause that photographs were
produced in court of weapons and other objects captured on 2nd August 1999 at
Mpacha Military Base and that the State produced photographs of the alleged rebels
killed, damages caused to buildings, as well as the photographs of accused no. 9
alleged to have been captured together with accused no. 6 and accused no. 8, but
that no photograph of accused no 8 was produced to validate and verify the
allegation that the was captured on 2nd August 1999 during the attack. This correctly
reflects the record. It was submitted that the State’s failure to produce any
photograph of accused no. 8 at Mpacha military base subsequent to his capture was
fatal. Mr Muluti submitted that state witnesses testified that photographs were taken
of all the rebels captured on 2nd Auugust 1999 at Mpacha Military Base but not one
depicting accused no. 8 was produced in Court.
336
[939] I agree with Mr Muluti that the evidence presented by the State is of such a
nature that in the absence of any testimony by accused no. 8 it has not been proved
beyond reasonable doubt that the accused committed any of the preferred charges
against him.
Sikundeka John Samboma (accused no. 54)
[940] Christopher Siboli testified and reference was made to his testimony earlier.
In addition the witness testified to the following: During the first meeting in 1992 the
accused said he wholeheartedly accepts the idea of secceding the Caprivi from the
rest of Namibia. At the second meeting the accused donated money for the
acquisition of weapons from UNITA. During the year 1993, at a meeting which took
place at the DTA office in Katima Mulilo, the accused was one of the attendants
where the topic of discussion was the secession of the Caprivi Region. The witness
testified that during the year 1997 the accused was present at a meeting at the DTA
office where secession was discussed. The witness testified that the accused
attended meetings during the year 1998 where secession was discussed. At one of
the meetings the accused and Thaddeus Ndala reported that weapons had been
purchased, namely mortar pipes, handgranades and AK’s. Siboli testified to a
meeting at the DTA office where there was a discussion that weapons be exchanged
for diesel with UNITA – the accused informed the meeting of this option. According
to the witness it was decided that diesel should be stolen from the Government by
using fuel order books in particular from Zambezi, Shell Service Station.
[941] The witness testified about an occasion at Shell Filling Station in Katima
Mulilo where vehicles arrived and where drums were filled with diesel to be
exchanged for fire arms with UNITA and a number of persons had to be transported
as well. According to this witness the accused was present when this convoy left the
filling station for Singalamwe where those persons had to be off loaded. On their
way from the filling station they first stopped at Sentra shop where they collected
food which had already been paid for by the accused. The witness testified that at
the Kwando river they met members of UNITA where diesel was exchanged for
weapons and ammunition. Thaddeus Ndala and John Samboma spoke to the
members of UNITA. They returned to Singalamwe base. The accused testified that
he himself and the accused at a later stage came to visit Singalamwe in order to
ascertain the needs of the group they had left in Singalamwe.
337
[942] Mr Muluti in his heads of argument made reference to the heads of argument
of the State where a number of witnesses were referred to by the State on whose
testimonies the State relied in this trial. The witnesses who were called to testify
were Christopher Lifasi Siboli, Progress Muusu Mulonga, Olivier Munyanda
Mbulunga, Luwate Oscar Simbulu, Michael Maswabi Nuwe, Beauty Mukelabai
Munyandi, Robert Silo Fena Nyambe, Alfred Kupulo Kupulo, Oscar Munistitwela
Mwisepi, Paulo Frederick, Hamlet Kachibolewa Muzwaki and Beavan Moloki Nzie.
Mr Muluti submitted that in conforming with the ruling of this Court in the s. 174
application the evidence of witnesses who failed to make a positive identification of
the accused in court were excluded.
[943] Counsel submitted that only the evidence of the following witnesses therefor
should be considered by this Court namely Christopher Siboli, Oscar Mwisepi, Alfred
Kupulo, Oliver Mbulunga, Beauty Luyambo, Robert Nuambe, Oscar Simbulu, and
Beaven Nzie. It was submitted that the testimony of Siboli is riddled with material
contradictious, inconsistencies, lies and conjecture. I shall first summarized the
evidence of those who had identified John Samboma in court before considering the
submissions by Mr Muluti. I have referred to the evidence of these witnesses earlier
in this judgment.
[944] Luwabe Oscar Simbulu testified about an incident when he was a passenger
in a motor vehicle driven by Steven Kwala at night. At some point the vehicle
stopped, Kwala blew on a whistle and a number of people, including the accused,
emerged from the bushes. Thereafter this group of people, which included himself,
was led by the accused into Zambia and thereafter into Angola in order to receive
military training from UNITA, and to acquire weapons in order to secede Caprivi from
Namibia.
[945] Oliver Munyandi Mbulunga testified that he became aware of the idea to
secede Caprivi from Namibia during the year 1998. This witness testified about an
incident where he was picked up at night during October 1998 and was transported
with a vehicle to Masida where he found between 40 and 50 people in the bush. At
some stage the accused arrived there in a motor vehicle. Thereafter persons
boarded two motor vehicles and the accused told them that they were heading to
Angola for training. They drove to Singalamwe from where they entered Zambia and
eventually entered into Angola.
338
[946] Robert Silofela Nyambe testified that during the years 1998 to 1999 he
resided at a place in Zambia, called Imushu. He knew the accused since the
accused had grown up in that village. The witness recounted that during the winter
in 1999 he had observed the accused going around in the villages collecting food
which he took to Nambumbwe Island, and observed the accused moving between
Namibia and Zambia. He observed that the accused was in possession of AK 47
rifle at a stage when the accused was in the company of Simisho, a Namibian
national. They exchanged greetings and then he continued with his journey.
[947] Beauty Mukelabai Munyandi testified that she resides in the village Kongola in
the Caprivi Region. During the years 1998 to 1999 she was in Zambia. At one point
during 1998 she decided to visit her parents at a place called Malonde in Zambia
where she saw the accused and one Isumushu. She recognized them from Kongola
in the Caprivi. On another occasion in 1999 she saw the accused with Isumushu and
twelve other people. The accused was in possession of two AK 47’s the other
people were carrying maize meal. She testified that at one stage she saw Akson
Masule taking food to the camp of the rebels at Nabumbwe in Zambia.
[948] On 30 July 1999 she and her husband decided to travel to Namibia. On her
way she saw people moving in three groups. The accused was in the first group. All
those in that group were carrying fire-arms and were heading in the direction of
Namibia. She testified that she saw the three groups at the “border of Singalamwe”
on the Zambian side. She testified that she knew accused since they were living
together and that the accused referred to her as his niece.
[949] Alfred Kupulo Kupulo testified about his journey in order to join the CLA. This
Court has earlier dealt with the testimony of this witness. The witness testified that
the accused was the leader of the group at Sachona and introduced himself to the
group by mentioning his name. He was a leader at Libulibu where after the killing of
Falali he gave the members of the CLA two options. He was the leader of the group
of 92 members of the CLA.
[950] The accused was at Mahalape prison in Botswana with other members of the
group of 92. Muyongo and Chief Mamili were also present. The accused told the
group of 92 that after their arrival in Botswana they must tell the Botswana Police
Force members that they left Caprivi because of harassment by the Namibia Police
339
Force members. It must be stated that this evidence of the witness Kupulo stands
uncontroverted.
[951] Beaven Moloki Nzie testified that he resided in the village Manzunzu in
Zambia during the year 1999. During that year soldiers of the Zambian Defence
Force came there at the village and were looking for John Samboma and his group.
The witness testified that he knew John Samboma as a pastor of the 7 th day Sabbath
Church. They handed rebels who were at the village over to the soldiers during
October 1999. John Samboma was not present but on an island ‘Nomansland
between Zambia and Angola’. He was requested by the soldiers to fetch Samboma.
He was unable to do so because Samboma had crossed over into Angolo. At a later
stage he saw the accused when he was handed over to the Zambian soldiers by
UNITA rebels. This witness was not cross-examined by any defence counsel.
[952] It was submitted by Mr Muluti that the identification by Beauty Munyandi is not
incriminating but confirmation that she knew accused no. 54 as they resided in the
same area of Kongola. In respect of her evidence that the accused was in
possession of fire-arms, it was submitted that the evidence of this witness
contradicted the evidence of Akson Masule. Counsel however submitted that the
evidence of witnesses should be excluded by this Court. Akson Masule was one of
those witnesses. On what basis can this Court now compare the evidence of these
two witnesses? Mr Muluti submitted that the reference to the 30 th of July 1999 her
testimony is highly improbable since this witness cannot read or recall dates of first
events. The date 30 July 1999 in the testimony of this witness may be explained as
counsel suggested, namely, that it was the prosecutor who led the evidence-in-chief
who introduced that date and not the witness herself. Mr Muluti further submitted that
this witness is unable to identify an AK 47 because she confirmed that she does not
know what an AK 47 is. This witness conceded that she could not distinguish
between an AK 47 and a hunting rifle. I must accept that the knowledge of this
witness in respect of fire-arms is limited and I cannot rely on her testimony that the
fire-arm which she saw was indeed an AK 47 fire-arm. This witness testified during
cross-examination by Mr Dube that she had seen police officers carrying fire-arms
and concluded those fire-arms to be AK 47’s since she only knew AK 47’s.
[953] It was however never during cross-examination put to the witness that she
had in fact observed no fire-arm in the possession of the accused person. The other
alleged contradictions referred to by counsel are in my view not material
340
contradictions which may impact upon the credibility of this witness. I agree that the
ability of this witness to recollect dates of past events is suspect and that this Court
has reason to approach her testimony with caution in so far as the recollection of
dates are concerned. However this court cannot disregard her evidence in toto.
What must be accepted is that this witness at some stage in Zambia observed the
accused in possession of a fire-arm or fire-arms. Mr Muluti submitted in respect of
the witness Siboli that he testified that the accused had recruited members for the
CLA since 1991-1998 but later changed that he only recruited during 1997.
[954] It was submitted that Siboli testified that the accused and Thaddeus Ndala in
1992 at a meeting at the DTA office in Katima Mulilo were appointed by Geoffrey
Mwilima to acquire weapons from UNITA, but later testified that a meeting took place
at the old house of Muyango where it was agreed that the accused and Thaddeus
Ndala should purchase fire-arms. It was submitted that Siboli testified that
subsequent to several meetings, it was resolved to get persons to go to Angola in
1997, that Siboli stated that no persons were secured in 1997 but later changed that
persons were taken to Angola in 1997. It was submitted that during cross-
examination Siboli admitted that Siboli during examination-in-chief denied that he
received any military training in his life, but under cross-examination admitted that he
received military training when he enrolled for national service and made a mistake
when he denied it.
[955] It was submitted that Siboli in cross-examination contradicted his evidence-in-
chief when he stated that the reason he did not go with the accused and Thaddeus
Ndala to purchase fire-arms was because his child was sick, but later changed that it
was due to the pregnancy of his wife. It was submitted that Siboli testified that he
took his wife to the village the afternoon before the attack but under cross-
examination testified that he took her to the village a week before the attack. It was
submitted that Siboli testified that in 1985 he attended only one meeting regarding
the issue of secession and that this contradicts his earlier testimony that he became
aware for the first time about the issue of secession in 1989. This was also in
contradiction of his evidence, it was submitted, during cross-examination that he
attended meetings about secession in 1987. It was submitted that Siboli has shown
to be an unreliable witness with poor memory and recollection of events, that he was
inconsistent and contradicted himself on several occasions.
341
[956] Mr Muluti further submitted that the evidence of the witnesses Oscar Simbula
and Oliver Mbulunga materially contradicted each other and two other state
witnesses and cannot safely be relied upon. It was submitted that Simbulu testified
that on a Saturday in October 1998 he boarded a vehicle which drove in the direction
of Kongola for approximately 70-75 km from Katima Mulilo. While there in the
vehicle he was travelling in, they found a 4X4 diesel pump vehicle driven by
Thaddeus Ndala. Mbulunga testified that on 2 October 1998 he became aware of
the idea to secede the Caprivi and was picked up at night on this date by Thaddeus
Ndala and Osbert Likanyi, to attend a DTA meeting at Katima Mulilo. The vehicle
was a white Hilux driven by Thaddeus Ndala. This vehicle instead drove on the
Sangwala-Kongola road and stopped at Masida, where they were instructed to
disembark from the vehicle and directed to walk towards the bush where he found
approximately 40 or 50 people. Simbulu testified that after they passed the vehicle
driven by Ndala who was alone in the vehicle, the driver blew a whistle and he saw
people emerging from the bushes with their travel bags and that he recognised
Moses Kayoka, John Samboma and Thaddeus Ndala. Counsel submitted that
Simbulu has contradicted himself since his earlier testimony was that Ndala was
sitting in a 4X4 diesel pump, but now Ndala was coming from the bushes.
[957] It is clear that the evidence relates to the same incident. Counsel cannot
deduce from the evidence that the place Simbulu travelled to on a Saturday in
October 1998 was indeed a place called Masida in the absence of direct testimony to
that effect. I do not see the contradiction as submitted by counsel. It was also
submitted that Mbulunga testified that before leaving Masida the accused informed
them that they were heading for Angola for training and upon arrival they numbered
approximately 60 persons. Mbungula has contradicted his earlier version, it was
submitted, where he stated they were approximately 40 or 50 and that he never
mentioned more people joined them at Masida. This alleged contradiction is in my
view of no consequence. The witness was clearly guessing the number of individuals
and did not commit himself to an exact number of people. It was submitted that
Simbulu testified that after they crossed the border of Namibia and Zambia they
heard two gunshots as a result of which Samboma told them to run, whilst Mbungula
never testified about this incident. In my view this is not a material contradiction.
[958] Mr Muluti referred to a number of other difference between the testimonies of
the witness Simbulu and that of Mbungula in respect of what was encountered
342
during their endeavours to obtain military assistance from UNITA and their journey
into Namibia. Mr Muluti also referred to the testimony of Kupulo and submitted that
his evidence in respect of the number of people he found at Sachona differed from
the number of people testified to by Simbulu – I have pointed out (supra) that the
testimonies referred to approximate figures and is immaterial. Mr Muluti submitted
that Kupulo testified about the type and number of weapons seen by him a Sachona
whilst Mbungula’s testimony who also testified about weapons which were brought
from UNITA does not correspondence with that of Kupulo. The mere fact that their
testimonies differ does not imply that their testimonies are not trustworthy. It all
depends upon the circumstances when they made their respective observations.
[959] Oscar Mwisepi testified that the accused was the leader of the 92 members of
the CLA and that he escaped from Gaborone to Namibia. It was submitted by Mr
Muluti that during cross-examination Mwisepi’s evidence was that he was not
amongst the group of 92 and that the evidence of Mwisepi that the accused was the
leader is therefore hearsay evidence and inadmissible. It was submitted that the
evidence that the accused escaped from Gaborone is also hearsay evidence. I
agree with the submission made by counsel. In respect of the witness Nyombe it was
submitted by Mr Muluti that he contradicted himself.
[960] In a bail application (Exhibit F4) on 20 September 1999 Aggrey Makendano
testified that on 12 August 1999 he reported himself to the police. He testified that
he was in Dukwe but left Dukwe in June 1998 and went to Zambia. He testified that
he was a member of the Caprivi Liberation Movement (CLM). He testified that he
went to Dukwe for the purpose of liberating the Caprivi region. He testified that their
leader was John Samboma and that in Zambia they received training from John
Samboma. Exhibit ETC consists of a number of documents one of which was a
document of minutes taken by Stephen Mamili the Secretary General of the UDP on
1 January 1999 at the Kagisong Centre, Mogodithsane in Botswana. One of the
members present was John Samboma. Muyongo and Chief Mamili were also
present. It reflects the following:
‘Liberation of Caprivi needs commitment which is total. The struggle can be long and
can be short. The people here in Kagisong are the leaders who will be accountable
for everything that will take place.’
‘Review of 1998:
343
-The year 1998 will be the year to be remembered for a long time to come. Plans to
liberate Caprivi started in 1991 and 1998 was intended to be a year of
implementation. Also in 1998 a group of soldiers was organised as Caprivi Liberation
Army.’
‘The way ahead:
The UDP will not leave a stone unturned in the process of liberating the Caprivi from
the Ovambos. The President emphasises that it is to look for ways and means
including democracy and armed struggle.
. . .
In our liberation struggle the key one is the barrel of the gun as a result our people at
home will be on high risk being targets of our enemies and we should inform them.’
[961] Section 246 of Act 51 of 1977 reads as follows:
‘246. Presumptions relating to certain documents.-
Any document, including any book, pamphlet, letter, circular letter, list, record,
placard or poster, which was at any time on premises occupied by any association of
persons, incorporated or unincorporated, or in the possession or under the control of any
office-bearer, officer or member of such association, and-
(a) on the face whereof a person of a name corresponding to that of an
accused person appears to be a member or an office-bearer of such
association, shall, upon the mere production thereof by the prosecution at
criminal proceedings, he prima facie that the accused is a member of an
office-bearer of such association, as the case may be;
(b) on the face whereof a person of a name corresponding to that of an
accused person who is or was a member of such association, appears to be
the author of such document, shall, upon the mere production thereof by the
prosecution at criminal proceedings, be prima facie proof that the accused is
the author thereof;
(c) which on the face thereof appears to be the minutes or a copy of or an
extract from the minutes of a meeting of such association or of any committee
thereof, shall, upon the mere production thereof by the prosecution at criminal
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proceedings, be prima facie proof of the holding of such meeting and of the
proceedings thereat;
(d) which on the face thereof discloses any object of such association,
shall, upon the mere production thereof by the prosecution at criminal
proceedings, be prima facie proof that the said object is an object of such
association.’
[962] The effect of this section is that Exhibit ETC became admissible by its mere
submission and thereby became prima facie proof. Mr Muluti submitted that Exhibit
ETC is a narrative statement as opposed to an executive statement. I do not agree.
It refers to the establishment of a fighting force through which the Caprivi region was
to be liberated and spelled out the way ahead i.e. the future plan of action. It is in my
view an executive statement. Exhibit EGF (7) at p 52 of whom the author is
Thaddeus Ndala (accused no 70) reflects that John Samboma was the leader of a
group of 4 men who went to Angola to look for a suitable place at the UNITA camp.
Exhibit EGF(8) by the same author which relates to the ‘history of the first CLA
commando’s for independence struggle’ at p 9.
‘John Samboma who was the leader of the group crossed over to Angola leaving the
whole group, there to go and look for a suitable place somewhere in Angola next to
the Namibia/Angola border.’
[963] This is a confirmation of leadership role played by the accused as testified to
by the state witnesses. Exhibit EGF (8) at p 23 reflects the following on Tuesday 24
November 1998:
‘The lady from the UNHCR in Botswana came to visit us at Mahalape prison at
16h30. She was met by Mr. Muyongo, Chief Mamili B, John Samboma, Ndala Ovens,
Malubita Conrad, Kachiolwa Geoffrey and Steve Mamili.’
[964] This is confirmation that the accused was at Mahalapi prison as testified to by
Kapulo. In Exhibit EGO, the following appears of p. 3 of the translation:
‘We left this camp because the water ran out. We went to Singalamwe at the border.
Others went to buy some AK 74’s from Angolans. The number came to 10+4=14. We then
went to SASHA CAMP, Samboma asked for accommodation form Captain Kambinda.
Kambinda declined, until the UNITA superior accepted that is when I could do. We
requested from the ‘Induna’ i.e. Induna Imushu, he gave us an Island near Sasha
Camp/UNITA.’
345
And at p 4:
‘At the camp we found 45+3=48 people. There was no relish apart from salt only.
John Samboma requested pots from his extended family members a big gun and a
small one, because John Samboma comes from Zambia.’
[965] This excerpt corroborates the evidence of Nyambe that the accused collected
food which he took to Nambumbwe island. The evidence of Kupulo, as indicated
earlier, stands uncontroverted. Even if I were to disregard the testimonies of Siboli
and Mwisepi, the rest of the evidence against the accused clearly required an
answer from him. Accused no. 11 a self-confessed member of the CLM testified that
his leader was John Samboma. Kupulo who was part of the group of 92 testified that
the accused was the leader of the group. Exhibit EGF(8) supports the evidence of
state witnesses that the accused led an excursion into Angola in order to make
contact with UNITA with the view of procuring weapons and other military
assistance.
[966] I am satisfied that a very strong prima facie case has been established which
clearly requires an answer from the accused. The accused elected not to testify. I am
satisfied that in the absence of any evidence by the accused person, that the State
succeed in proving the commission of the crime of high treason beyond reasonable
doubt.
Clients of Mr Kavendji.
George Masialeti Liseho (accused no. 15)
[967] Dominikus Mwaposi Liseli, a police officer attached to the Special Field Force
testified that he was stationed at Ngama Border post on 2 March 2000 when he was
approached by two persons wearing the uniform of Rhino Security Company. They
had a shotgun. One person identified him by way of an identity document and the
other person gave his name as George Liseho Masialeti. This witness then testified
about information he received from this individual elicited by the police officer which
this court, during the judgment in terms of the s. 174 application, found to be an
inadmissible confession. The evidence of this witness was in any event not linked to
any accused person before court. The “evidence” of this witness is therefore
excluded.
346
[968] Ruben Bakububa Sikwela testified that he was in a group which attacked the
Katonyana Police base on 2nd August 1999. This witness as previously indicated
was severely beaten prior to him giving his record witness statement to the members
of the investigating team. I have indicated in my judgment in the s. 174 application
that the evidence of this witness was to be excluded on the basis of his torture by
members of the police force. Thus on this basis any incriminating evidence against
accused by this witness is excluded.
[969] Bornbright Mutendelwa Kufwa testified that he saw George Liseho at
Makanga on the night of 1st August 1999 and that he was in possession of a fire arm.
George Liseho was identified by this witness in Court as accused no. 15. This
witness testified that he was approached by the police on 22 August 1999. He was
not interviewed but assaulted, arrested and thrown in a cell where he remained for
nineteen days. He was not interviewed or asked anything relating to the attack and
was released. The witness testified that he suffered an injury to the knee and
showed the injury to court. There is in my considered view no indication that this
witness has provided any statement to the police as a result of assaults perpetrated
on him. There is no evidence that the assaults were perpetrated for the purpose of
obtaining from this witness information or a confession, neither does the evidence
indicate that Constitutional provisions had been violated.
[970] It was submitted by Mr Kavendjii that the evidence of this witness should be
treated with extreme caution firstly because he is an accomplice witness, secondly,
because his identification of the accused is highly suspect, and thirdly, because he
was a poor and unreliable witness. It was submitted that the witness testified that he
was at the Makango bushes and saw Jimmy Siswaniso there. Jimmy Siswaniso
contradicted the testimony of this witness. The staff then tried in vain to have Jimmy
Siswaniso declared a hostile witness. It was further pointed out that this witness
testified that he saw Hoster Sikunga at Makanga bush on the night of 1st August
1999. Again when Hoster Sikunga was called to testify by the State with the sole
aim to corroborate the evidence of this witness, Sikunga contradicted the evidence of
this witness and the State failed again to have Hoster Sikunga declared a hostile
witness.
[971] It was submitted that the State, for the sake of expediency, would like this
Court to forget this materially contradicting and destructive evidence, and that is why
there is no attempt to explain these contradictious, or at least to advance arguments
347
as to which evidence this Court must have regard to. I have, when I dealt with the
evidence against accused no. 17, concluded that this court cannot disregard the viva
voce evidence presented by the State to the effect that Siswaniso and Sikunga were
not at Makanga bush on 1st August 1999. I must therefore also concluded that the
evidence of this witness is not clear and satisfactory in all material respects.
[972] Given Lufela Ndungati testified that he saw George Liseho at Makanga. This
witness recognized the accused person as the George Liselo who was at Makanga
during the period when he was there. It was submitted by Mr Kavendjii that this
witness testified that Jimmy Siswaniso was in the group of people who went to attack
the police station and that Jimmy Siswaniso was holding a “shell” at Makanga. At
the police station himself, Jimmy Siswaniso and Roster Kufwa were hiding in small
shrubs.
[973] It was submitted that this evidence was not corroborated by Jimmy Siswaniso
(co-accused) who testified that he was never at Makanga bushes or close to any
place that was attacked. It was submitted by counsel, and correctly so, that this
Court cannot without any basis provided by the State conclude that the testimony of
Jimmy Siswaniso must be excluded, and that the testimony of this witness must be
accepted, especially if the evidence tendered relates to the same events or
occurrences. I agree with counsel that the contradictions are not mere bona fide
errors.
[974] Hestings Kulwa Kambulwe testified that he was at Makanga on 1st August
1999 and that George Liseho was one of the individuals at Makanga. It was
apparent during cross-examination that this witness was brutally assaulted by
members of the police force. He testified that he had informed the prosecutors that
he was assaulted by the police during the recording of his statement. This witness
failed to identify George Liseho as one of the accused person before Court.
[975] Ivan Jona Twabulamayo Mate testified that he recognized George Liseho at
Sachona where he was together with other individuals with the purpose to secede
the Caprivi from Namibia. This witness identified George Liseho as accused no. 15
in court. During cross-examination this witness testified that he had been assaulted
by members of the police force with a sjambok prior to the police extracting a
statement from him. This Court previously ruled that the evidence of this witness be
excluded. Frederick Nkona Muhupulo testified that he attended the funeral of Freddie
348
Liseho. After the funeral George Liseho gave him an AK 47. He was arrested
during March 2000 for the unlawful possession of a fire-arm and was convicted. This
witness testified during cross-examination that he received the fire-arm from one
George Moniker. It appears from the testimony of this witness that George Moniker
and George Liseho are two different individuals. The witness testified that the fire-
arm which was collected by the police was the fire-arm he had received from George
Moniker.
[976] It was submitted by Mr Kavendjii that it is logically impossible for one person
to receive the same fire-arm from two different persons at the same time. It was
submitted that no explanation was proferred during re-examination as to why the
witness testified that he received the fire-arm from George Moniker, that it was not
established through any evidence who this George Moniker is, that it was not
established that Liseho Moniker which appeared on the deployment list and the
George Moniker mentioned by this witness during his testimony is the same person.
It was submitted (a submission with which I agree) that there is no proof that it was
the accused who handed over the AK 47 to this witness.
[977] Walter Mwezi Sikochi testified that he recognized four people form the village
Makanga on 1st August 1999, one of whom was Liseho George. It was submitted by
Mr Kavendjii in his heads of argument that the evidence of Sikochi must be treated
with caution because he is a self-confessed criminal who gave information to the
police and later testified in order to save his own soul214, that the identification of the
witness in Court was not independent but was facilitated by the underhand tactics of
the prosecution, by using a photo album,215 that on his own version he is a corrupt
person who got employment in the police force by paying a bribe216, and that it is his
testimony that the police were putting certain things to him and he merely had to
confirm those things because of the fear to go to the cells.217 At the risk of being
repetitive I need to emphasize parts of certain judgments referred to (supra) in
connection with the evaluation of evidence where an accused has exercised his or
her constitutional right not to testify.
[978] In Brown (supra) it was stated that what the Court is really called upon to
decide whether the uncontradicted prima facie case of the prosecution must harden
214 p 11326215 p 11337-11338216 p 11351-11352217 p 11355 lines 3-16
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into proof beyond reasonable doubt. But whether this prima facie evidence must
harden into proof beyond reasonable doubt, in my view, must depend on the
passage in Boesak where the following appears:
“If there is evidence calling for an answer, and an accused person chooses to
remain silent in the face of such evidence, a court may well be entitled to
conclude that the evidence is sufficient in the absence of an explanation to prove
the guilt of the accused. Whether such conclusion is justified will depend on the
weight of the evidence.”
(emphasis provided)
[979] It should be noted that the use of the word “may” is in my view indicative of a
discretion which must be exercised judicially by the court, and that a court must
decide what weight to attach to the evidence. The critisism of the evidence Sikochi
is not without merit, but his does not mean that this court should reject the evidence
of Sikochi as a whole. It may though generate some doubt as to whether such
evidence may safely be accepted by this Court.
[980] I also need to comment on a submission made in the heads of argument of
the State and I must say that this is not an isolated instance. The State in support of
its argument that the accused stands to be convicted referred to the evidence of
Lemmy Haufiku a member of the Namibian Police who testified that he accused had
stated that he went to Botswana because of Muyongo who said that they should go
to Botswana to come back and fight to cut Caprivi from Namibia. Haufiku also
testified that the accused acknowledged that he was a member of the CLA and that
he partook in the attack at Mpacha. Haufiku at that stage was a non- commissioned
officer and counsel should know that evidence of an inadmissible confession cannot
be argued in Court, neither should it appear in heads of argument. The State in their
heads of argument referred this Court to the evidence of testimonies in chief as
implicating accused persons in the commission of offences ignoring the findings by
this Court that the testimonies of those witnesses be disregarded since it was
revealed during cross-examination that those witnesses had been severely tortured
prior to the extraction of witness statements by members of the police. I get the
impression that counsel in these instances refers to the testimonies-in-chief of these
witnesses, and is for some reason, reluctant to accept the findings of this Court to
the effect that the testimonies of those witnesses are to be excluded.
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[981] I have referred to the deficiencies of the state witness (supra) and that the
evidence of these witnesses, save possibly that of Sikochi, does not warrant a reply
from the accused. In respect of the testimony of Sikochi for the reasons mentioned
(supra) this Court should approach it with caution. I am not convinced that the weight
to be attached to the evidence of Sikochi is of such a nature that it requires a reply
form the accused person. It was submitted by Mr July that there is direct evidence
that the accused was in Botswana as a refugee and that he returned to Namibia
without having applied for voluntary repatriation. This appears to be common cause.
[982] I am not convinced that the State has proved the commission of the charges
preferred against the accused, same those contraventions in terms of the
Immigration Act, Act 7 of 1993.
Austen Lemuha Ziezo (accused no. 121)
[983] Mukushi Events Kaine testified that he was at Makanga on 1st August 1999
where he saw approximately 50 person in the bush where he recognised Austen
Ziezo. This witness when given the opportunity failed to identify Austen Ziezo as one
of the accused persons before court. Ruben Bakabuba Sikwela testified about
events which developed on 1st August 1999 and gave incriminating evidence
regarding the involvement of Austen Ziezo whom he had identified in court as
accused no 121. This court cannot for reasons mentioned earlier, consider the
testimony of this witness in determining whether the State has discharged its onus.
[984] Bornbright Mutendelwa Kufwa testified that on the night of 1st August 1999
Richard Misuha and a friend requested him to accompany them. These two
individuals were armed. They subsequently went into the bush at Makanga. He was
in a group assigned to attack Wanela Border Post. He boarded a Toyota Hilux white
in colour with registration number N 133 KM and they disembarked at Engen Service
Station in Katima Mulilo. They were informed to go to the shopping centre. Some
members of the group were armed while others were unarmed. This witness testified
that Austen Ziezo was one of the individuals at Makanga. This witness identified
Austen Ziezo as accused no 121 in court. This witness was assaulted but as
previously stated and for the reasons mentioned, the evidence of this witness is
accepted despite the allegation of an assault. This witness testified that at Makanga
the accused had nothing in his possession.
351
[985] Mr Kavendjii referred to the testimony of this witness to the effect that Jimmy
Siswaniso was observed by this witness and incorporates the same argument when
he dealt with the accused no 15, George Liseho. Given Lufela Ndungati testified
about how he was collected at night to go to Makanga bush where he was assigned
to attach the police station. He was asked during his evidence-in-chief to name the
people at Makanga who were from his village. He did not mention the name of the
accused person. He, however, identified the accused as one of the persons he had
seen at Makanga bush and pointed him out in court. Later during cross-examination
he changed his testimony, saying that he doesn’t know Austen Ziezo and that he did
not see him at Makanga bush. This witness further testified about their journey to the
police station and what transpired there.
[986] In view of the material contradiction by this witness, in respect of the issue of
the presence of the accused at Makanga bush, this court will disregard that part of
his testimony and the testimony of the participation of the accused in subsequent
events. The State in their heads of argument referred to the testimony of a state
witness namely Thomas Franco Mukoya, whose testimony this court has found to be
inadmissible due to torture perpetrated on him.
[987] John Mulanti Mwabela testified about the events on 1st August 1999 at
Makanga and the persons he had observed there. This witness was however unable
to identify the person he referred to as Austen Ziezo, in court. Michael Malubeka
Ziezo testified about a meeting addressed by Muyongo and where Austen Ziezo was
one of the attendants. According to this witness Austen Ziezo raised his hand in
agreement with what was said by Muyongo. This witness when given the opportunity
to do so, failed to identify Austen Ziezo as one of the accused persons before court.
[988] Andreas Nelumbu testified that as a member of the Namibian Police Force he
was stationed during the year 2001 at the Trans Kalahari Police station at the border
post. On 25 August 2001 he received a phone call from one Hangero the Principal
Immigration Officer at the border post and as a result drove to the border post which
is about 500 meters from the police station. At the border post he found two
gentlemen with emergency travel documents in their possession issued by the
Namibian Ministry of Home Affairs. These documents reflected the identities of these
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two individuals as Ziezo Austen Lemuha and Brendan Luyanda respectively. He
asked them why they had returned from Botswana and they explained to him that
they sought political asylum and that they had decided to leave Namibia due to
harassment by members of the Namibian Police Force. This witness testified that
these two persons were eventually transported to Windhoek.
[989] Exhibit EEV is a list containing voluntary repatriation application forms and it
appears from this list that the accused person returned to Namibia after applying for
repatriation on 8 June 1999. It was submitted by Mr July that the accused was
incriminated by accused no. 120 to have been during the attacks at Mpacha with
reference to the evidence of the witness Michael Maluboka Ziezo. This witness
testified about a conversation he had with one Brandan Luyanda at the house of
Luyanda at about 10h00 on 2 August 1999 when the witness asked Luyanda where
he came from. According to this witness Luyanda replied that he came from Mpacha
Military Base where they attacke, but that matters did not go according to plan, that
they had failed, that the charms did not work very well, and that they ran away from
that place. The witness testified that he told him that he was with Austen Ziezo (p
711). A person by the name of Brendan Luyanda Luyanda is before this court as
accused no. 120.
[990] Mr July in his heads of argument (in reply) submitted that the accused made
an undisputed confession as well. This court was not referred to any document
which reflects such a confession. If the confession is what the witness, Michael Ziezo
had heard from Brendan Muyanda, I should point out that a confession is admissible
only against its maker and cannot be used to implicate a co-accused. Brendan
Luyando did not testify. Therefor what was allegedly said by the witness amounts to
inadmissible hearsay evidence. Michael Ziezo in any event failed to identify the
person he referred to in his evidence-in-chief as Brendan Luyando as any one of the
accused persons before court.
[991] My remarks in respect of the witness Bornbright Kufwa when I dealt with the
evidence against accused no 15 apply with the same effect in respect of this
accused. The accused did not testify. I am not satisfied that the State presented
evidence against the accused person which required an answer from him. The State
has failed to prove the commission of the offences preferred against the accused,
353
save for a contravention made in Immigration Act, Act 7 of 1993. Ziezo testified that
when he at a later stage asked Austen Ziezo what was on his face Ziezo responded
by saying that it was not his business and said that he was coming from Makanga.
Aggrey Kayaba Makendano (accused no. 11)
[992] Ruben Bakabuba Sikwela testified that he saw Aggrey Makendano at
Makanga rebel camp and that Makendano had a fire-arm which looked like an AK
47. This witness identified Aggrey Makendano in court as accused no. 11. This
witness during cross-examination testified that he had severely been assaulted by
the police prior to deposing to his witness statement. The evidence of this witness
will be disregarded.
[993] John Mulauti Mwabela testified that on the night of 1 August 1999 he was in
the group assigned to attack the town centre. He recognized Aggrey Makendano.
This witness however failed to identify Aggrey Makendano as an accused person
before court. Hastings Kufwa Kambukwe testified that he was collected from his
house by one Osbert during the night of 31 July 1999. At Makanga he was placed in
the group that went to attack Mpacha military base. He testified that Aggrey
Makendano was at Makanga. This witness failed to identify Aggrey Makendano in
court. The evidence of this witness was excluded during the s. 174 application in
view of the fact that his witness’ statement was extracted from him after he had been
severely tortured by members of the Namibian Police.
[994] Thomas Franco Mukoya testified that the was collected from his village during
the night of 1st August 1999. At Makanga he was allocated to a group which was to
attack Mpacha military base. Aggrey Makendano was there at Makanga. This
witness identified Aggrey Makendano in court as accused no. 11. In the s. 174
application, the evidence of this witness was excluded due to the fact that the
witness had been severely assaulted by members of the Namibia Police Force prior
to deposing to his witness statement. Given Lufela Ndungati testified that at
Makanga he was allocated to the group which was destined to attack the police
station. Aggrey Makendano was the leader of this group and was armed. This
witness failed to identify Aggrey Makendano as one of the accused persons in court.
354
[995] Lovemore Lutumbo Litabula’s testimony was dealt with earlier at para [491].
According to his evidence the accused person, whom he had identified in court, was
near the police station that evening together with other individuals and the accused
was armed. He subsequently heard shots coming from the police station. In the
morning (i. e. a few hours later) when he reported for duty, he observed blood in the
charge office. It is not disputed that police officers had been killed at the police
station. I also dealt with the criticism by counsel in respect of the evidence of this
witness. Peter Siswaniso Munenda testified that during the year 1998 he was
approached by Aggrey Makendano and another person, Petros Ngoshi, who had
asked him to go to Dukwe with the purpose of liberating the Caprivi Region. He was
informed, according to him, that when he returned he would be expected to fight the
Government of Namibia. He testified that he did not respond because he did not take
what they told him as serious. He testified that Aggrey Makendano was from
Sachona village and was a teacher. He was not asked to identify Aggrey
Makendando.
[996] Kennethy Malumo Matengu testified that during the year 1998 Muyongo
resigned from the DTA and addressed a public meeting at Sachona where he gave
reasons for his resignation. During the year 1999 he saw his uncle, Oscar Puteho
Muyuka, coming from Zambia and entered his (i.e. Muyuka’s) house. There were
other people inside the house including one Aggrey Makendano. Puteho informed
them about his group from Zambia who were soldiers destined to fight for Caprivi.
Puteho and Aggrey Makendano told them that their idea was to look for a camp at
Sachona from where they could fight. Inside the house they concealed firearms in
the witness’s bedroom. Aggrey Makendano was in possession of an AK 47 and two
extra magazines. The witness testified that he knows Aggrey Makendano and that
Makendao hails from Sachona. When given the opportunity to identify Aggrey
Makendano, the witness failed to do so.
[997] Walter Mwezi Sikochi testified that he was at Makanga bush on the evening
prior to the attack where he saw Aggrey Makendano and saw Makendano again the
next day. According to him, Makendano was standing very far from him. The
circumstances under which he saw Makendano the next day does not appear from
the record. At that stage the accused was not armed and the witness did not speak
to him. Ivan Jona Twabulmayo Mate testified that at Sachona he came to know a
355
person by the name of Aggrey Makendano from Sachona; they left for Makanga after
spending two days at Sachona. He stayed for another two days at Makanga. He
was not divided into a group. The person by the name of Aggrey Makendano was
also present at Makanga. The witness was unable to identify Aggrey Makendao in
court. It emerged during cross-examination that this witness was brutally assaulted
by members of the Namibia Police Force. His evidence was ruled inadmissible in
the s. 174 application
[998] In respect of the witness Walter Sikochi, Mr Kavendji reminded the court to
approach his evidence with caution and in support of this submission, repeated his
argument when he dealt with the evidence against accused no’s 15 and 121. In
respect of the evidence of Lovemore Litabula, Mr Kavendji referred to the cross-
examination of Mr McNally in support of his submission that the evidence of this
witness is riddled with distortions and untruths. Counsel further submitted that the
testimonies of Lovemore Litabula and that of Given Lufela Ndungati differ on the
most crucial aspect namely whether or not the accused was at Katima Mulilo police
station.
[999] Fedelis Mujiwa Sinvula was called as a witness by Aggrey Makendano,
accused no 11. Sinvula’s testimony relates to his own employment in the Ministry of
Education since the year 1985 and at the different schools he had taught as a
teacher over the subsequent years until he was transferred to Silumbi Combined
school during January 2011. He testified that he knew Aggrey Makendano since his
elder sister got married to Pastor Frank Makumba Mushandikwe who is a cousin of
Aggrey Makendano. He then testified about the educational background of the
accused including the tertiary education of the accused at the University of Namibia
from 1995 until 1997 and that the accused at a certain stage came to teach at
Mayuni Senior Secondary school in February 1998.
[1000] He testified about the preferences of the schools on the accused’s application
form for employement, namely, Sikosiyana Senior Secondary School, Simataa
Senior Secondary School and Mayuni Senior Secondary School. He testified that the
accused was employed there from 4 February 1998 until 31 December 1998 as a
temporary teacher. According to this witness, he did not know that the accused had
been employed at some other school than Mayuni Senior Secondary School or any
356
other institution during the years 1991-1998. The witness testified that Immanuel
Makendano is the elder brother of accused no 11 and that Immanuel Makendano
was employed by Katima Mulilo Town Council. Certain documents were received as
exhibits.
[1001] During cross examination, the accused testified that he was in the defence
force as a section leader during January 1985 until 31 March 1990 – until the
demobilization of the force, when he was confronted with a document to this effect.
The testimony of this witness in my view does not assist the accused in respect of
any defences which possibly could have been raised by the accused.
[1002] I agree with the submission by Mr Kavendji that from all the witnesses called
by the State, this Court only need to consider the testimonies of three witnesses,
namely, Walter Sikochi, Lovemore Litabula and Christopher Siboli. Mr July in his
heads of argument referred this court to a number of occasions accused no. 11 had
addressed this Court and where he stated that Caprivi is not part of Namibia, that
they are not part of this trial, and that they should not be called to cross-examine
witnesses. This was said by the accused as spokesperson on behalf of the
previously undefended 31 accused persons. Reference was made to the record:218 219
‘. . .we ask to be referred to another judge who will listen to our political views . . .
because we believe that we are Caprivians and we are not criminals that we should
be forced to be tried or prosecuted (indistinct) criminal court of Namibia . . . ‘
and
‘Therefore, we the thirty one plus and twelve other Caprivians who are here in this
court and the twelve who are there in Windhoek Prison currently, all those exiled
Caprivians elsewhere in the world are they need total freedom and independency of
Caprivi because historically, geographically, linguistically traditionally, culturally,
linguistically and ethnically Caprivi was not part and is not part of Namibia shall never
be part of Namibia by force. My Lord the Caprivians are entitled to be independent
and with the same total freedom and independency like other countries. We want to
be masters and developers of our own motherland, we deserve the rights to elect our
own leaders in our country, Caprivi.’
218 P 11217 lines 16-23219 P 11223 lines 13-24 and p 11224 line 6
357
[1003] It was submitted by Mr Kavendji that nothing more should be read into the
addresses by the accused other than a confirmation of his challenge to the
jurisdiction of this Court. However, what was said by accused no. 11 must be seen in
context. The underlying motive of this attack on Katima Mulilo on 2 August 1999 was
a consequence of a political agenda of the UDP and in particular its leader at that
stage, Mishake Muyongo. Muyongo arrived in Namibia from exile just before the
elections at the end of 1989 with the aim to secede the Caprivi Region from the rest
of Namibia. This was the testimony of Geoffrey Mwilima. Muyongo was dissuaded
and agreed to participate in democratic elections. It appears with the wisdom of
hindsight that this idea of secceding the Caprivi Region was never abandoned. The
evidence presented to court is that the Caprivi Liberation Army also known as the
Caprivi Liberation Movement was established by the UDP, as an instrument to
liberate the Caprivi Region by violent means with the aim to establish an
independent State. In order to achieve this ultimate goal, it was politically expedient
to sacrifice human lives.
[1004] Accused no. 11 in his bail application testified that he went to Botswana in
order to achieve this ultimate aim, namely the attainment of the independence of the
Caprivi region. The accused as a member of the Caprivi Liberation Movement was
prepared to make his own contribution through the ‘barrel of the gun’. His testimony
was that he left Dukwe refugee camp and crossed illegally into Zambia as a member
of the Caprivi Liberation Movement. In Zambia, he and others received training from
co-accused John Samboma. The only training they could have received was military
training in preparation for attacks in the Caprivi Region. Accused no. 11 was arrested
a few days after the attack on Katima Mulilo. During the bail proceedings he testified
that he had abandoned the belief he previously held. This in my view was self
serving, because he had to convince the magistrate to release him on bail. Had the
accused informed the magistrate that he still held those views, bail would on this
basis not have been considered.
[1005] What the accused informed this Court during his address is in my view much
more than just a confirmation of his challenge to the jurisdiction of this Court. It is
consistent with his political views he held when he fled to Dukwe and subsequently
to Zambia in his capacity as member of the Caprivi Liberation Movement and
consistent with the aims of the CLA, namely an independent Caprivi.
358
[1006] I agree with Mr Kavendjii that the evidence presented by the State through the
three witnesses referred to leaves much to be desired and that those testimonies
must be approached with caution. However their testimonies must be considered in
view of what is contained in Exhibit F(4). There is uncontroverted evidence that
accused no 54 was the leader of a group of men referred to as the group of 92 and
member of the CLA. Accused no 11 refers to accused no 54 as his leader in his bail
application. In what respect was he led by accused no 54?
[1007] The accused elected not to testify. I am of the view that the evidence against
the accused required an answer from him. I am further satisfied that the State had
succeeded to prove the commission of the offences set out hereunder beyond
reasonable doubt.
Clients of Mrs Aggenbach
Mandate and jurisdiction of the High Court over the Caprivi Zipfel
[1008] Ms Aggenbach called two defence witnesses namely Dr John Makala Lilemba
and Mr Phil Ya Nangolo. The state witnesses Dr Sakeus Akweenda and Bernard
Sibalatani were recalled and cross-examined. Ms Aggenbach in her heads of
argument submitted that the State has failed to prove beyond reasonable doubt that
Namibia has majestas over the territory known and described as the Eastern Caprivi
Zipfel where all the alleged offences, as contained in the indictment, preferred
against the accused have been committed, and subsequently failed to prove beyond
reasonable doubt that any of the accused committed the crime of high treason or
sedition.
[1009] Ms Aggenbach filed voluminous heads of argument in order to drive this point
with reference to the testimonies of the few witnesses referred to. In a nutshell, it
was submitted that at the time the territory formerly known as German South West
Africa in 1990 there were in existence two mandates. The one in respect of the
territory known as the Eastern Caprivi Zipfel and the other territory, German South
West Africa. The argument, as I understand it, is that only the territory formerly
known as German South West Africa attained independence on 28 March 1990 to
359
the exclusion of the territory the Eastern Caprivi Zipfel. The logical consequence of
this argument is that the Caprivi Region is a territory under British rule since
Germany, in an agreement between Britain and Germany in 1890, only obtained a
sphere of influence and not a territorial claim. This agreement is referred to as the
Heligoland/Zanzibar Treaty. Ms Aggenbach submitted that on the evidence of Mr
Phil Ya Nangolo the boundaries set in terms of the Berlin Conference in 1890 were
not altered by the Heligoland/Zanzibar Treaty.
[1010] Sakeus Akweenda testified that he holds the degrees LLB, LLM and a PhD in
Law from the University of London and that his doctoral thesis covers all boundaries
and territorial claims from the time the territory became known as German South
West Africa until present day Namibia. His doctoral thesis is titled ‘International law
and the Protection of Namibia’s Territorial integrity: Boundaries and Territorial
Claims’. His evidence in respect of the issue of two mandates theory was that there
is no room for such a theory because no power challenged the sovereignty of
Germany over the whole area. During cross-examination by Mrs Aggenbach in
respect of the boundaries of Namibia Dr. Akweenda testified as follows:
‘The boundaries of Namibia can only be found in three treaties, three instruments.
The whole north, with the exception of notification or clarification of where there were
disputes or where there were uncertainties so the whole north from the mouth of the Kunene
to the Zambezi River by the Katima rapids is the Germany/Portuguese declaration of 30
December 1886. Then the whole South then which is from the mouth of the Orange River is
the agreement of 1 July 1890 that is the Anglo Germany Agreement. That agreement
defined boundaries of wherever a Germany colony touched a British territory, everything is
in that document. It is so compact, so the whole from the south the orange River that is
where it touches the 20 east degree, 22nd, the 21st second paragraph, 21st longitude all the
way then to Chobe until where the center of the main channel of Chobe touches the
Zambezi is that second instrument. By the time Germany lost its colony, German South
West Africa the boundary constituted by the Zambezi River that is from, just Zambezi River
from the agreement to join the 1886 and then 1890 just a river that was not defined. By
1890 it is in the thesis and the book, Germany was saying the boundary of the Zambezi that
is between Germany South West Africa and Northern Rhodesia should be the main channel.
What happened is that in 1932 starting all the way from 31, 32 the Union of South Africa and
the administration in Northern Rhodesia have been negotiating which negotiations led
them to the exchange of notes whereby they agree that the Taalweg should be the boundary
in that river. Then they demarcated it. They went all the way to prepare a map depicting
360
which Islands where that line runs and they define which island fall to South West Africa
and which island fell to Northern Rhodesia, so that is those two exchange of notes are what I
refer to as the third instrument to the extreme north, east.’
[1011] Mr Phil Ya Nangolo disagreed, and testified that the agreement was not a
boundary treaty and stated that the mandate instrument over the area which formerly
constituted German South West Africa was instituted, the Western Caprivi was
actually under control of the British from Bechuanaland. It was submitted by counsel
that in terms of the Heligoland/Zanzibar treaty that Namibia is a successor State and
that Germany could give no more, as what it had at that stage namely a sphere of
influence and that the State failed to prove that the Caprivi region forms part of the
territory of Namibia and that Namibia has majested over the Caprivi.
[1012] The State in their heads of argument refers to an unreported judgment of the
South West African Supreme Court in 1985, prior to Namibia’s independence which,
inter alia, dealt with the legal position as applicable in the Eastern Caprivi Zipfel at
that stage in the matter of Moraliswani v Mamili220 where Strydom J at p 2 stated:
‘The Caprivi was a part of German South West Africa, in respect of which, after
World War I, a mandate was conferred upon the Union of South Africa and was to
be governed as an integral part of the Union of South West Africa.’
[1013] The following appears in Namlex:
‘Prior to the colonial presence in Namibia, the laws in force were the customary laws
of the various communities. Germany first annexed portions of Namibia as a colony
in 1884. The boundaries of the territory, which became known as German South
West Africa, were set forth in agreements concluded in 1886 with Portugal and in
1890 with Great Britain. The territory was administered by German colonial officials,
who initially issued only a small number of regulations. A Governor’s Council
representing the colonial settlers was established in 1908.’
[1014] Dr Akweenda, an expert in International Law, gave evidence as to the
agreement in 1884, 1886 and 1890 and how the territory of German South West
Africa was created. In his condensed thesis published as a law handbook, he
explained to Court how the agreement between Britain and Germany of 1 July 1890 220 Case I 389/85 delivered on 12 June 1985.
361
created the southern boundary and eastern boundary of Namibia. He also
specifically indicated how the Caprivi became part of German South West Africa and
when the boundaries agreed to between Portugal and Germany in 1886 become the
boundary of present day in Namibia.221 Dr Akweenda referred to Article III of the
1890 Agreement as set out in Exhibit ECO and read with Exhibit ECU (which is the
official United Nations map of Namibia, compiled on the basis of general Assembly
Resolution A/RES/31/150 of 20 December 1976-Dissemination of information of
Namibia). Article III of 1890 agreement reads as follows:
‘In Southwest Africa the sphere in which the exercise of influence is reserved to
Germany is bounded:
1. To the south by a line commencing at the mouth of the Orange river, and
ascending the north bank of that river to the point of its intersection by the 20 th
degree of east longitude.
2. To the east by a line commencing at the above-named point, and following the 20th
degree of east longitude to the point of its intersection by the 22nd parallel of south
latitude; it runs eastward along that parallel to the point of its intersection by the 21st
degree of east longitude; thence it follows that degree northward to the point of its
intersection by the 18th parallel of south latitude; it turns eastwards along that parallel
till it reaches the river Chobe; and descends the center of the main channel of that
river to its junction with the Zambesi , where it terminates.’
[1015] The following appears in Moraliswani:
‘Because of the geographical location the administration of the Caprivi was
transferred to the Resident Commissioner and other officers of the Bechualand
Protectorate by Proclamation No. 23 of 1922, also with retrospective force from 1st
January, 1921. Section 2 of the Proclamation applied all the laws in force in
Bechualand Protectorate to the Caprivi as well as laws thereafter made for the
protectorates unless specifically excluded from operation in the Caprivi.
The Caprivi was so administered until 1929 when by Proclamation No. 196 of 1929
the administration was transferred to the Administrator for south West Africa as from
the 1st September 1929. The Administrator was given all he powers set out in section
2(a) and (b) of Act No. 49 of 1919. In his turn the Administrator by Proclamation
26 of 1929, applied all laws, then in existence in the Territory of South West Africa, to
221 Doctorate thesis.
362
the Caprivi and further enacted that all laws made after 1 September 1929, unless
specifically so stated, shall apply to the Caprivi (section 2 of Proclamation No. 26 of
1929).
The situation again changed when, by Proclamation No. 147 of 1939, the
administration of the Eastern Caprivi was transferred to the Department of Native
Affairs and thus came under the authority of the Minister of Native Affairs of the
Union Government. (Section 2 of the said Proclamation). The power to legislate for
the Caprivi was however not transferred to the Minister and was retained by the
Governor-General. In terms of section 3 of the said proclamation all laws in force
immediately before the coming into effect of the proclamation were to remain in force
until repealed or amended. This proclamation became effective on the 1st August
1939.’
[1016] In the proclamation, the Easter Caprivi Zipfel is described as ‘that portion of
the Caprivi Zipfel which lies East of a line running due South from beacon No. 22
situated on the border between the said Mandated Territory and Angola’. The
remainder of the Caprivi Zipfel (that is that part located to the west of beacon No. 22)
remained with the rest of South West Africa. Section 4 of the Proclamation however
retained the jurisdiction of the High Court of South West Africa over the Eastern
Caprivi Zipfel. The following appears in Moraliswani at p 3-4:
‘As far as the South West African Administration is concerned the Caprivi more or
less vanished from the scene during this period and only emerged again after certain
constitutional development took place and is now again very much part of the South
West African political scene. The development to which I have referred was brought
about by the Development of Self-Government for Natives in South West Africa Act,
Act No. 54 of 1968. Acting in terms of the powers conferred therein on the State
President of the Republic of South Africa, the latter, by proclamation No. R.261 of
1972, recognized the tribal authorities of the two tibes of the Caprivi namely the
Mafwe and Besubia tribes. This development was taken a step further when the
State President by Proclamation R.6 of 1972 constituted a Legislative Council for the
Caprivi as from the 18th January 1972 with limited legislative powers. Still acting
under the powers conferred upon him by Act No. 54 of 1968, the State President, by
Proclamation No. R.42 of 1976, declared the Eastern Caprivi as a self-governing
area within the Territory of South West Africa.’
363
[1017] It is apparent from the evidence of Dr Akweenda and the Moraliswani matter
that the territory known as the Caprivi Zipfel has since 1890 been part of the territory
of Namibia even though it had from time to time been administered separately from
the rest of Namibia. It is on this basis that the drafters of the Constitution of Namibia
included the following in the preamble:
‘committed to these principles, have resolved to constitute the republic of Namibia as
a soverign secular, democratic and unitary State securing to all out citizens justice,
liberty, equality and fraternity.”
[1018] The submission that Eastern Caprivi Zipfel is not specifically mentioned in the
Constitution becomes in view of the aforesaid, superficous. Mr Phil Ya Nangolo, an
International Human rights Practitioner, admitted that he is not an expert on
International Law and not an expert on the interpretation of international instruments.
This Court has therefore no reason not to accept the evidence of Dr Akweenda that
there was never two mandates in respect of two different authorities and that the
territory known as the Eastern Caprivi Zipfel was part of the territory of Namibia prior
to its attainment of independence in March 1990. It follows that all the accused
persons are subjects of the Namibian State to whom they owed an allegiance since
the foundation of the Namibian State.
Thaddeus Siyoka Ndala (accused no. 70)
[1019] Christopher Lifasi Siboli testified and identified the accused person in court as
a person who was actively involved in the secession of the Caprivi from Namibia in
the following ways: he attended a meeting of a committee in 1998 at the DTA office,
Katima Mulilo where Mishake Muyongo and Geoffrey Mwilima had discussions on
the secession of Caprivi from Namibia by violent means and that the accused
supported this idea; the accused was present when the CLA was formed in 1989 and
that the accused has recruited persons for the CLA; that at a meeting in the year
1992 chaired by Mishake Muyongo he accepted to go to Angola to acquire fire arms
for the purpose of seceding the Caprivi Region; that he donated money to acquire
fire arms in Angola; that during the year 1997 he attended various meetings at the
364
DTA office, at the old house of Mishake Muyongo, at Liselo village and at
Masokotwani where the secession of the Caprivi was discussed.
[1020] Alfred Kapulo Kapulo’s evidence has been dealt with earlier. This witness
testified that whilst at Sachona, Thaddeus Ndala and Kennith Sitali brought food to
the camp on one occasion. He testified that it was the first time for him to see
Thaddeus Ndala. Subsequently, they left Sachona for Linyanti, apparently because,
according to John Samboma, their presence became known. The group consisted of
about 100 individuals and they were transported in two vehicles. He travelled in the
vehicle driven by Thaddeus Ndala. The accused identified Thaddeus Ndala in court
as accused no 70.222
[1021] Oliver Muyandi Mbulunga’s evidence was dealt with earlier. This witness
testified about an incident where Thaddeus Ndala had send Osbert Likanyi to inform
him about a DTA meeting the next day. This witness also testified about an occasion
where John Samboma led a group into Zambia and torward a UNITA camp. On their
return from the UNITA camp to Zambia they encounted Thaddeus Ndala and Steven
Mamili who had brought food for the group. This witness identified Thaddeus Ndala
as accused no 70 in court. The evidence of this witness, in particular his
identification of accused no 70, was not challenged during cross-examination by
counsel who appeared on behalf of the accused.
[1022] William Miti Ndana’s testimony was dealt with earlier. This witness testified
that during October 1998 he was persuaded by one Thaddeus Muzamai to become
part of what he referred to as the group of 92. At some stage he found himself at
Sachona with a group of about 20 persons. The witness testified that Thaddeus
Ndala brought them food whilst at Sachona and that Thaddeus Ndala drove a
vehicle belonging to one of the co-accused persons. According to this witness,
Thaddeus Ndala is a person whom he had known from Katima Mulilo. This witness
identified the person he referred to as Thaddeus Ndala as accused no 70 in court.
The evidence of this witness was never challenged during cross-examination by
counsel who appeared on his behalf at that stage. The identification by the witness
was not placed in dispute. Exhibit EGF(8) referred to earlier on p 8 refers to the
222 P 2965.
365
history of the first CLA Commando’s for independance struggle. In an inscription on
p 14 the following appears:
‘Wednesday the 28th October 1998 at 18h15 Mr Mishake Muyongo the president of
UDP – led the group of four men out of Katima Mulilo. Their names are as follows:
(a) Ndala Thaddeus Siyoka
(b) Sitali Kenneth
(c) Mushakwa Charles Mafenyeho
(d) Muhinda Mubuyaeta
We were five in number. Branson Kwala borrowed the Hilux single vehicle
registration no was N 807 KM and drove us to Mphundu via Machifa Road.’
[1023] It was submitted by Mr July that Exhibit EGF (2) was found in possession of
accused no 70 at the time of his arrest. This exhibit contains, under the heading
‘Required Equipment’, a list of weapons needed as well as other materials. On p 3 of
this exhibit appears the following:
‘29/10/98 Mr Muyongo and 4 men crossed at a different place into Botswana and
reported ourselves at Kasane police station.
But then the 92 men (CLA) crossed into Botswana on 27/10/98 Wed.
Reason for forming the CLA was that if: - peaceful negotiations concerning Caprivi
fails we should have something to reply on. To from up this army we used a
“collective decision”.’
[1024] The accused admitted in a bail application brought on 31/07/2000 that he was
a former member of the SWATF and that he was a member of the UDP at that stage.
Exhibit ETC reflects that Thaddeus Ndala was one of the members of the UDP who
attended a meeting on 1 January 1999 in Botswana. I have referred to Exhibit ETC
and that what is contained therein (ie the minutes of the UDP meeting) amounts to
an executive of statement.
[1025] It was submitted by Ms Aggenbach that the documents confiscated from the
accused at Grootfontein Prison was unlawfully confiscated for lack of either a search
warrant, court order or permission from the accused. Counsel also submitted that it
is common cause that the accused was part of the ‘Mamili-Group’, that the accused
366
left for Botswana in 1998 before he left for Zambia where he and others in the Mamili
group were arrested in June 1998 and remained in prison in Zambia until they were
abducted. This court dealt with this allegation of abduction in a judgment and the
Supreme Court also delivered a judgment in respect of this issue.
[1026] It was also submitted by Ms Aggenbach that the evidence of the State witness
should be rejected on the basis of unreliability. I must state that in respect of the
evidence of Siboli to the effect that the CLA was founded in 1989, this is highly
unlikely because in 1989 there was as yet no Government in an independent
Namibia hence also no reason for the existence of such an organisation at that
stage. This evidence is also contrary to other evidence that the CLA was formed only
at a much later stage. The evidence of Siboli about the formation of the CLA and
who were apparently present on such an occasion is rejected. The testimonies of
Mbulunga and Ndala stand unconverted. The evidence of Kupulo as far as it
concerns the accused was also not challenged during cross-examination.
[1027] The accused elected not to testify in the face of the evidence which requires
an answer from him. I am accordingly satisfied that the evidence presented by the
State at the conclusion of the trial constitutes proof beyond reasonable doubt - that
the accused committed overt acts with the required hostile intent and that the
accused committed the offences as set out hereunder.
Martin Siano Tubaundule (accused no. 71)
[1028] Rassens Luslizi Kumana testified that his cousin Francis Mubita approached
him on 2 November 1998 and suggested that he should go to Botswana. The next
day he was at Zambezi filling station in Katima Mulilo where Francis Mubita was
waiting for him. The witness was with a friend. Subsequently they moved in a convoy
of three vehicles from the filling station to Liselo. One of these vehicles was a dark
blue Hilux bakkie with registration number N 408 KM and was driven by Martin
Tubaundule. Thereafter they left for Lizauli where they spent the night and the next
day crossed into Botswana. Martin Tabaundule was identified in court as accused no
71. This evidence was not disputed by the accused.
[1029] Hamlet Kachibolewa Muzwaki testified that during October/November 1998
he attended a meeting at school premises in the village of Sibinda addressed by
367
Mishake Muyongo after his resignation from Parliament. The topic of discussion was
the secession of the Caprivi Region from Namibia. One of the attendants was Martin
Tubaundule. Muyongo, according to this witness, said that he resigned from
Parliament and that he was there in order to ‘make his own army for Caprivi’. This
evidence was not disputed by the accused. Simeon Nghinomenwa Kaipiti, a member
of the Prison services, testified that on 10 August 1999, Stephen Mamili, Charles
Mushakwa, Thaddeus Ndala, Moses Mushwena, Martin Tubaundule and Oscar
Nyambe were admitted at Grootfontein Prison together with their properties including
diaries and letters which were entered into the admission register. These properties
were subsequently handed over to Inspector Haingumbi.
[1030] Eimo Dumeni Popyeinawa, one of the investigating officers was presented
with a document which he identified as a document belonging to Martin Tubaundule
which inter alia contains the following inscription:
‘16/12/1998, this date I left the Caprivi to join the armed struggle for the Caprivi
Liberation Army. To fight for independence is not mere verbal talk. Then to take the
armed struggle . . . to take it all means, not leaving unturned stones. The key for the
struggle is armed struggle. We have to take some risks.’
[1031] This is an extract from EGJ(1) when compared with the handwriting of the
accused person by a handwriting expert it was found to be highly probable the
handwriting of the accused. This accused person was also present at the meeting of
1 January 1999 in Botswana referred to in Exhibit ECT, p 275. It was submitted by
Ms Aggenbach that Exhibit EGJ 1 – EGJ 3 a diary found by Simeon Kapiti was
unlawfully confiscated by the prisons authorities. In respect of the testimony of the
handwriting expert it was submitted that the finding was inconclusive and only highly
probable that of the accused person. It was submitted by Ms Aggenbach that the
accused was part of the Mamili group, was in prison in Zambia since June 1999 and
that there is no evidence that the accused made any contact with any of those who
are alleged to have launched the attack on 2nd August 1999. In respect of the
identification of accused no 71 by the witness Rassens Kumana, it was submitted
that the witness testified that the accused was his school principal. The submission
that the witness was not asked to identify whom he could recognise as having
transported people, but asked to identify those persons mentioned in his evidence
368
before court is inconsequential, since the evidence was that the accused was one of
the drivers of vehicles who transported persons to the border of Botswana.
[1032] In respect of the evidence of Muzwaki, it was submitted by Ms Aggenbach
that the witness in his first statement in 2000, when questioned by the police, did not
mention the issue regarding seceding the Caprivi, that he gave three successive
statements and in all three had forgotten about the meeting which he referred to
which was held in 1998. It was submitted that after 8 years the witness testified
about that meeting in his viva voca evidence. I agree that one could legitimately
question the ability of the witness to remember such an incident after such a long
time, but it is not uncommon for witnesses to testify about events not mentioned in
their witness statements.
[1033] I only considered the evidence of State witnesses who were able to identify
the accused person. There were a number of other witnesses called who gave
incriminating evidence against the accused but who were unable to identify him.
Nevertheless in spite of the criticism raised by Ms Aggenbach, I am of the view that
the cumulative effect of the evidence presented by the State was of such a nature
that it required an answer from the accused.
[1034] The accused elected not to testify. I am satisfied that the evidence presented
by the State, in the absence of a reply by the accused person, proves the
commission of the offences mentioned hereunder beyond reasonable doubt.
Andreas Puo Mulupa (accused no. 26)
[1035] Isah Siyobo Mulupa testified that the accused is his brother who went to
Botswana during the year 1998. He, himself, did not go to Botswana and did not
know why his brother went to Botswana. On his brother’s return from Botswana he
went to him and the following appears from the record223:
‘Okay. When did you ask him? . . . I went there when I heard that he arrived from,
when he came back. That’s why I went there and informed him that he must not be
involved in this thing which I heard.
223 P 22798.
369
Did he say anything in reply? . . . He just informed me that: “We were shooting.”
Did he inform you where he was shooting? . . . At Katima Mulilo.
Did he tell you when he shot at Katima Mulilo? . . . He did not tell me the time.
Did he give you a date that he shot at Katima Mulilo? . . . He said that: “The date is
unknown.”
What is the date, what is the date that he gave you? . . . I informed him that: “No, I
don’t know about the date, I did not go to school.’
[1036] This witness did not identify his brother Andreas Malupa in court. It was
submitted by Ms Aggenbach in her heads of argument that it is common cause that
the accused was one of those who had been abducted from Zambia. It was
submitted by Ms Aggenbach that the State in its heads of argument224 refers this
Court to the alleged testimony of witness Oscar Mwisepi with reference to specific
pages in the record,225 however the testimony which appears on those pages
referred to does not relate at all to Andreas Mulupa, accused no 26. It was submitted
and correctly so, that the events referred by Mwisepi on those pages pertains either
to what transpired at Bank Windhoek on the morning of 2 August 1999, that Mishake
Muyongo is the witness’uncle, the manner in which the witness became aware of
secession, and the manner in which the witness recruited people to go to Botswana.
Ms Aggenbach submitted it is a serious typographical error and that the evidence
appearing on those pages of the record should be rejected as that evidence does not
implicate the accused person.
[1037] The State in its heads of argument refers to the following witnesses in support
of the submission that the accused should be convicted of high treason and other
charges: Ruben Sikwela and Akson Masule and Exhibit EGK1, the deployment list.
The testimony of Ruben Sikwela was ruled inadmissible by this Court during the s
174 application.
224 P 186 and 187.225 P 600 lines 23, p 603 lines 3 & 20, p 650 line 23, p 626 lines 8 – 10, p 626 line 24, p 627 line 1.
370
[1038] Akson Masule testified that he is a witch doctor and that during the year 1999
John Samboma accompanied by Andreas Mulupo and one Mutuso approached him
at Imushu, Zambia with a request to provide them with medicine since they wanted
to secede the Caprivi Region. This witness testified that he consequently treated a
number of persons on the island Navumbwe. This witness failed to identify Andreas
Mulupo as any one of the accused person before court.
[1039] I am not satisfied that the State has presented evidence which proves the
commission of any of the charges preferred against the accused person beyond
reasonable doubt, in spite of the failure of the accused to testify.
Joseph Kamwi Kamwi (accused no. 3)
[1040] Christopher Siboli testified that he saw Joseph Kamwi on 2 August 1999 at
approximately 10h00 at the Katima Mulilo shopping centre with a fire arm in his
possession. Hieronymus Bartholomeus Goraseb, the Regional Commander of the
Caprivi region and member of the Namibian Police, testified that between 06h00 and
07h00 on 2 August 1999, Joseph Kamwi and Brian Mushandikwe were arrested. At
the time of their arrest they were unarmed. They were walking in a footpath a few
metres into the bush. They were searched and a bottle of Vaseline with some
ointment and a white bandage was found. They had no wounds. It was suspicious.
He then instructed that they be arrested.
[1041] It was submitted by Ms Aggenbach that the testimony of Siboli is contradicted
by the testimony of Chief Inspector Goraseb. In this regard it was pointed out that if
the accused were arrested between 06h00 and 07h00 unarmed, Siboli could not
have seen him at 10h00 with a fire arm. I agree. Counsel further submitted that in
respect of the pointing out in Court, the witness Siboli referred to the person he had
seen with the fire arm and who he claimed to be his cousin only as Joseph because
he did not know the surname but referred to that person as Joseph Tutalife. I must
conclude that in view of the testimony by Chief Inspector Goraseb, Siboli could not
have seen accused no 3 at 10h00 with a fire arm. The evidence of Siboli to that
effect is accordingly excluded.
371
[1042] Witnesses also called by the State were Ivan Jona Mate Twabulayo and
Bornbright Mutendelwa Kafwa. I have earlier pointed out that the testimonies of
these witnesses were to be excluded due to the fact that they were severely tortured.
Ms Aggenbach pointed out that the testimony of Siboli to the effect that the accused
had allegedly attended a meeting were Kapano ya tou members during 1991 where
the topic of discussion was the secession of Caprivi falls outside the period
contained in the charge sheet. I expressed my reservations earlier that an issue like
the secession of the Caprivi could have arisen at such an early stage.
[1043] Ms Aggenbach further in respect of Exhibit EGK1, and EGX submitted that
there is no evidence that the accused was at Makanga and the fact that a name
similar to his name appears on the deployment list cannot take the matter any
further. In respect of the evidence of officer Popeinawa that the accused was seen in
the company of rebels days before the attack and gave water to Popeinawa was
referred to Popeinawa by a different name. I must state that Popeinawa was the last
State witness called in this trial and testified about this work in the Caprivi as
undercover police officer and who acted in different capacities during that period in
order to obtain information regarding the issue of secession during a long period
prior to the attack on 2nd August 1999. The statements deposed to by Popeinawa do
not contain a number of events testified to by the witness in his evidence in chief.
The witness acknowledged the deficiencies of his statements in this regard. The
evidence that the accused was seen in the company of rebels is tenuous.
[1044] I am of the view that the evidence presented by the State in the absence of
any evidence by the accused does not prove the commission of the preferred
charges against him beyond reasonable doubt.
Herbert Mboozi Mutahane (accused no. 5)
[1045] Walters Mwezi Sikochi testified that one Herbert Mutahane was at Makanga
bushes on the night of 1 August 1999 and that this individual participated in the
attack on Katima Mulilo the next day. The accused was arrested in the bushes near
Caprivi Toyota in Katima Mulilo on 2 August 1999. Hieronymus Bartholomeus
Goraseb, a member of the Namibian Police with the rank of Chief Inspector, testified
about an incident on 2 August 1999 where he was in the company of constable
372
Kashere. The accused and Derrick Ndala had been arrested by other members of
the Police force.
[1046] It was submitted by Ms Aggenbach that Walters Sikochi had deposed to a
statement to the police in which he stated that he last saw his bother Herbert
Mutahane on 27th July 1998 when he accompanied him to Katima Mulilo. The two
parted at a known hitch hiking spot where his brother got a lift. Since then he never
saw him again. He had no knowledge why his brother was arrested, had only heard
rumours of seceding the Caprivi from the rest of Namibia and concluded that his
brother could have been arrested for secessionist activities. His witness statement is
a contradiction of his testimony- in- chief. This witness was unwilling when given the
opportunity to identify person mentioned in his evidence-in-chief to do so and
expressed the view that what he had given the court was quite enough, and could
not be expected to do more. He wanted to know if the court has the right to force a
witness to do what he was not feeling to do.
[1047] According to the witness he had expressed his unwillingness to Mr July when
he consulted with the witness for the first time. It was submitted by Ms Aggenbach
that it was only after consultations with Mr July in the prosecutor’s office (after an
adjournment) that he reluctantly and half-heartedly pointed at some accused persons
who included the accused and Chris Ntaba. A number of witnesses ie Ruben
Sikwela, Ivan John Mate Twabulamayo, Bornbright Kufwa, Given Lufela Ndungatti,
were called by the prosecution. The testimonies of these witnesses as stated
previously were declared inadmissible.
[1048] The only testimony which placed the accused at Makanga is that of Sikochi.
He was a witness who gave to contradictory statements under oath and was
obviously reluctant to cooperate with the prosecutor. Sikochi is thus a single witness
and this court can only rely on this testimony if it was clear and satisfactory in all
material respects, which it was not. The testimony of Chief Inspector Goraseb
related to an incident, as testified by him, after the arrest of the accused. The
accused led them to a place in the bush where weaponry had been hidden under
leaves and branches, namely a RPG7 rocket launcher, a RPG7 shell, an AK47 rifle
and a shotgun. Chief Inspector Goraseb described the accused as a boy of
approximately 16 years old who spoke to Cst Kashera in a language unfamiliar to
373
him. Cst Kashera then asked him to follow them and the boy led them to a small
riverbed. It appears from the evidence of Chief Inspector Goraseb that the accused
had not been warned of any of his constitutional rights prior to him making the
pointing out. Cst Kashera was not called to testify.
[1049] When Chief Inspector Goraseb testified the accused was an unrepresented
accused. It is nevertheless my view that in the absence of any objection to the
admissibility of that pointing out that the accused was not informed of his
constitutional rights, neither was he informed about the Judges rules. The pointing
out is inadmissible and so is the subsequent discovery of the weaponry mentioned
by the witness.
[1050] I am not satisfied that the State has succeeded in proving the commission of
any of the preferred charges against the accused beyond reasonable doubt in spite
of the failure by the accused to testify.
Chris Puisano Ntaba (accused no. 7)
[1051] Walter Mwezi Sikochi testified that Chris Ntaba was at Makanga on 1st August
1998 where the final preparations were made for the attack on 2nd August 1999. The
witness identified Chris Ntaba as accused no 7 in court. It was submitted by Ms
Aggenbach that the testimony of Walter Sikochi was that one of his friends Chris
Ntaba invited him to advance his education in Botswana and testified that Chris
Ntaba was at Makanga. It was submitted that Sikochi testified with reference to the
Chris Ntaba at Makanga that this person did not go with him to Mpacha.
[1052] The evidence of the witness Johnny Shapaka was dealt with previously. Ms
Aggenbach in her heads of argument referers this court to the record226 where it
apparently appears that the person depicted on photographs 31, 32 and 33 were
part of the group of eight persons who were captured at Mpacha village and not at
Mpacha military base. The record does not reflect such testimony on the page
referred to by counsel.
226 P 13658.
374
[1053] Shapaka testified that the four rebels who were first captured were captured
around 04h00 and the group of eight rebels were captured around 07h00 – 08h00.227
Lemmy Haufiku’s evidence was already dealt with previously. This witness testified
that he handed over the captured rebels to the police at 10h30. It was submitted by
counsel that the evidence by Ben Shikesho that he found the three persons
appearing on photos 31, 32 and 33 upon his return from Katima Mulilo after 14h00
when he went to ask their names cannot be correct since if the accused was still
there he certainly was not amongst the four handed over to the police by Haufiku
earlier in the morning.
[1054] Daniel Mouton testified that he visited Mpacha military base on 2nd August
1999 just after 14h00 and testified about quite a number of photographs taken by
him which forms part of the evidence before Court. At that stage he was a detective-
sergeant in the Namibian Police force assigned to the Serious Crime Unit in
Windhoek and was employed as official photographer and draughtsman. In respect
of Exhibit Q and photographs 31, 32, and 33, he testified, were photos taken by
himself on 2nd August 1999 after 14h00 and at Mpacha Military Base. The witness
testified that the second person who appears on photo 33 is Chief Inspector Blaauw.
The witness testified that photos 31, 32 and 33 were taken more or less within the
same period. The members of the police force to whom the suspected rebels were
handed over were not called to testify in respect of the handing over of these
individuals.
[1055] The accused elected not to testify. The evidence against the accused is that
he was captured on the morning of 2nd August 1999 inside Mpacha military base and
was asked to identify himself which he did. Photographs were taken after 14h00 of
the accused at Mpacha military base. Mr Kachaka during cross-examination put it to
the witness Mouton that he could not deny that the accused was arrested elsewhere
and then brought to the military base. The witness conceded that he could not deny
it. There is however no evidence that the accused was captured elsewhere.
[1056] Nevertheless this accused person elected not to testify. I am satisfied that the
prima facie evidence presented by the State proved the presence of the accused
person on the premises of Mpacha military base on the morning of 2nd August 1999.
227 See cross examination by Mr Neves.
375
This constitutes an overt act. In my view the only reasonably inference to be drawn
in these circumstances is that the accused had the required hostile intent. I am
satisfied that the evidence presented by the State, in the absence of any evidence by
the accused person, proves beyond reasonable doubt the commission of the
offences referred to hereunder.
Roster Mushe Lukato (accused no. 18)
[1057] Euster Lwamaemo identified Roster Lukato as his brother and testified that
during 1998 – 1999 his brother stayed at the village Chisozu at his mother’s court
yard. During December 1998 the accused went missing from the village only to
return during June 1999 by way of repatriation.
[1058] David Ashipala testified that he is a member of the Namibian Police Force. On
15 April 2000 at around 04h00 they departed for a specific village with the aim of
tracing people who allegedly participated in the attack on 2 August 1999. He was in
the company of other members of the Police Force as well as members of the
Special Field Force. Near a village in Makanga area one group of officers remained
at the roadside and another group went into the village. He was in the group who
stayed behind. Those who went into the village later returned with a suspect and an
AK 47. This AK 47 was covered with sand. The suspect later became known to him
as Roster Lukato. Three other suspects namely, Francis Pangelo, Frederick Lutuhezi
and Kisko Twaimango Sakusheka were also arrested. He testified that police officer
Kanyetu led this group into the village.
[1059] Bonfacious Kanyetu testified that he is a member of the Namibian Police
Force and held the rank of warrant officer during the year 2000. The corroborated
the evidence of David Ashipala. He testified about another suspect, Davis Mazyu
who was also arrested. According to him, Roster Lukato was arrested in the village
and that he seized an AK 47 which the accused had received from Mazyu. He
testified that this AK 47 was hidden outside the courtyard in nearby bushes. He
further testified that inside the room of Roster Lukato, he seized ammunition for a R1
riffle. This accused was one of those individuals who had absented themselves from
the proceedings without permission by this Court and he was therefore not present
when the two police officers gave their testimonies. During my ruling in the s 174
376
application, I stated that the evidence established at least that the accused had
contravened the provisions of the Arms and Ammunition Act
[1060] Mr July submitted that the accused went to Botswana as a refugee in Dukwe
which was the breeding ground of the conspiracy, was repatriated and his name
appears on the deployment list and that he made an “undisputed confession”.
[1061] I have expressed my view earlier in respect of the contention that the mere
fact that an accused person was a refugee in Dukwe does not necessarily constitute
an overt act. The “undisputed confession” referred to by Mr July had been ruled
inadmissible. The evidence of Kanyetu in respect of the seizure of the AK 47 rifle
and the ammunition for an R1 rifle is very scant. It is not clear what procedure was
followed prior to the seizure of the AK 47 and whether any rights were explained. I
still hold the view that the evidence presented by the State does not prove the
commission of the first count. In view of the uncertainty in respect of the
circumstances of the seizure of the AK 47 and the ammunition, I am of the view that
the testimony of Kanyetu in this regard cannot safely be accepted as admissible
evidence.
[1062] I am not satisfied that the evidence presented by the State has proved the
commission of the preferred charges against the accused in spite of failure by the
accused to testify, beyond reasonable doubt.
Davis Chioma Mazyu (accused no. 16)
[1063] Walters Sikochi testified that Mazyu Davis was with him on 1st August 1998
when the final preparations were made for the attack on Katima Mulilo the next day.
Sikochi identified Mazyu Davis in court as accused no. 16. Ruben Sikwela was
called and gave incriminating evidence against the accused person. This evidence
was ruled inadmissible. Bornbright Kufwa also gave incriminating evidence against
the accused. His testimony was also ruled inadmissible. I have expressed the view
that Sikochi is a single witness and a co-accused whose evidence may only be
accepted as a basis for a conviction if such evidence is clear and satisfactory in
every respect. The evidence of this witness as indicated (supra) cannot be
categorized as such.
377
[1064] I am not satisfied that the State has proved the commission of the preferred
offences beyond reasonable doubt in spite of the failure by the accused to testify.
Postrick Mowa Mwinga (accused no. 23)
[1065] Oscar Mwisepi testified that Postrick Mwinga was in Dukwe. Mwisepi
identified Postrick Mwinga as accused no 23. Mwisepi testified that after the attack
on 2 August 1999 the accused identified himself on NBC Radio station (Silozi
section) calling on his fellow rebels to come back home and that ‘they should not go
ahead with rebelling against the State’. Rennety Koyi Mukushwani, the wife of the
accused, was informed of the provisions of s. 198 of Act 51 of 1977 and was willing
to testify. She testified that during September 1999 she heard the accused over the
radio. She was in a state of shock and did not hear much. She said that she heard
him saying:
‘. . . you should come and report yourself, you my friends to the police officers or
hand yourself to the police officers.’
The witness testified that her husband was a police officer.
[1066] Shailock Sinfwa Sitali identified the accused as one of the attendants at a
meeting during the year 1998 at the Regional office of the DTA where Mishake
Muyongo informed the gathering that the UDP separated from the DTA and that the
Caprivi will be seceded from Namibia. Ms Aggenbach in her heads of argument
submitted that Muyongo did not at this meeting give instructions that the members
should organize people. All that Muyongo said was that the UDP has pulled away
from the DTA, was going to stand as an independent party and that they should go
around in the villages informing the villagers of that. It was submitted that the
testimony of the witness was that it was a public meeting and that there was police
presence. Oliver Simasiku Chunga also testified that Postrick Mwinga identified
himself over the radio and announced that ‘the people in the bush must come and
hand themselves over’.
[1067] The evidence of Michael Maswabi Nuwe has been referred in more detail
earlier. This witness testified about a convoy which left at night from the offices of the
DTA and they were destined for Angola. At the DTA office before they departed they
378
were joined by Postrick Mwinga. The witness identified Postrick Mwinga in court as
accused no. 23.
[1068] Alfred Kupolo Kupolo testified that Postrick Mwinga was at Sachona and was
responsible for roll calls. According to this witness, Postrick Mwinga was a firearm
instructor at Sachona, was an instructor at Lyibulibu, and was with him at Mahalape
prison in Botswana. At Mahalape prison he was appointed as a group leader in
Dukwe, and gave theoretical training about firearms in Dukwe. This witness identified
the accused in court as accused no. 23. During cross-examination by Mr
Samukange it was put to the witness that the accused was never in the camp and
had never joined them. The witness disagreed. It was put to the witness that the
accused will tell the Court that he first met the accused in Dukwe. The witness
disagreed and added that the accused was his instructor at Sachoma.
[1069] Willem Eiman testified that during the year 2000 he was a member of the
Namibia Police Force stationed at Katima Mulilo as a fingerprint expert. On 2
January 2000 he accompanied (the late) Inspector Francis, another warrant officer,
and one Postrick Mwinga. He took photographs of pointing-outs made by Postrick
Mwinga to Inspector Francis. He testified that prior to the pointing-outs Postrick
Mwinga was informed by Inspector Francis that he was not forced to do any pointing-
outs and that pointing-outs would be used as evidence in a Court of law. According
to Eiman the conversation between Inpsector Francis and Postrick Mwinga was
conducted in the English language. It was the evidence of this witness that amongst
the various places pointed out by the accused, included Makanga base from where
the attack was launched and Katounyana Police Camp which was one of the
institutions which had been attacked on 2nd August 1999. This witness confirmed
that the photographs contained in Exhibit EHJ were the photographs taken by
himself.
[1070] I must observe that what was said by Inspector Francis to Postrick Mwinga
could only have been testified to by Inspector Francis. Eiman can obviously testify
about what he heard was said by Inspector Francis. What is not clear is whether the
accused person had been informed of his right to legal representation prior to
making the pointing-outs. I have reservations about whether the pointing-outs in
379
these circumstances can be considered as admissible evidence against the
accused. This witness was not cross-examined.
[1071] The accused did not testify. I am of the view that, even if Exhibit EHJ were to
be excluded, the evidence presented by the State required an answer from the
accused person. The reference to the cross-examination by Ms Aggenbach of
witness Kupulo cannot assist the accused person. The version of the accused was
put to the witness as counsel was duty bound to do, but that does not elevate such
instructions put to the witness as evidence. The evidence by Kupulo stands
uncontroverted. The evidence of Kupulo referred to earlier was that the group of
people was the group of 92 who, after the death of Victor Falali, fled to Botswana.
[1072] I am satisfied that the evidence presented by the State, in the absence of any
testimony by the accused persons, proves beyond reasonable doubt the commission
of an overt act with the required hostile intent and that the accused stands to be
convicted of the crimes referred to hereunder.
Ndala Saviour Tutalife (accused no. 24)
[1073] Harrison Mufungulwa Sikumba testified that the accused is his brother and
that the accused went missing from their village since 1998 and was only seen about
a week after the attacks on Katima Mulilo on 2nd August 1999. The witness testified
that the accused informed him that he had returned from Botswana. The testimony
of this witness was that the accused informed him that he was forced by his leaders
to join the CLA, that he was at Katouyana where ‘shootings’ took place and that he
managed to escape from Katouyana. The accused then requested to be taken to his
father so that his father could take him to the Chief. The Chief was then informed,
who in turn sent for police officers to arrest the accused. This witness testified that
after the arrest of the accused he discovered an AK 47 rifle, a magazine, a
camouflaged trouser, a brown cloth and a rung in the courtyard of the accused. This
discovery was made according to this witness after the accused had written a letter
from prison in which he indicated where these items could be found. This witness
was not cross-examined and his evidence must be accepted as uncontroverted.
380
[1074] It was submitted by Ms Aggenbach that what was said to this witness to the
effect that he came from the bush, that he was forced by his leaders to join the CLA
and that he was at Katouyana is inadmissible hearsay. I disagree. What was said
by the accused where admissions to his brother about his involvement in the attack
on Katima Mulilo on 2nd August 1999. I must accept that what was said by the
accused was said freely and voluntarily. There is no suggestion that he was under
any compulsion to do so when he so informed his brother. The fact that the accused
elected not to testify does not convert what he said into inadmissible hearsay. It
remains incriminating evidence against him. It is significant that counsel does not
deny that the accused has said to his brother what his brother had testified to in his
evidence-in-chief.
[1075] It was further submitted by Ms Aggenbach in respect of the items discovered
on the basis of a letter received from the accused that this is highly improbable as all
letters are censored and that the accused would have been extremely naïve to do so
if the items were indeed left by him. I accept that there is censorship of mail of
prisoners leaving the prison premises but there is no evidence that all letters are
censored, and to do so amounts to speculation. In any event the fact that those
items had been discovered as a result of a letter received from prison was never
disputed. The evidence was that the letter was not available because it was probably
washed with clothes.
[1076] Jennifer Nando Tutalife, the sister of the accused, testified that the accused
arrived at night at her courtyard during the time of the State of Emergency. She
asked him where he was coming from and he then said that he came from Dukwe,
Botswana.228 The accused then requested to see their father in order for the father
to take him to the traditional Khuta. The witness further corroborates the testimony
of Harrison Sikumba in respect of the subsequent events.
[1077] Jacobus Hendrik Karstens testified that during August 1999 he was a member
of the Namibian Police Force and held the rank of Detective Inspector and was
stationed at Katima Mulilo. On 17 August 1999 he was requested by Inspector
Sydney Philander to accompany him to a pointing out. Police Officer Luponjani, a
photographer, also accompanied him. Near Makanga in the bushes the accused
228 P 24731 line 3
381
pointed out a rebel base. He testified that he observed that people had stayed there
from the way the bushes had been arranged. He observed inter alia a fireplace,
places where people had slept, empty containers, water cans, torches, various
house hold utensils, a 210 litre green drum, a pair of black shoes, loose bandages
and 14 bags of ‘Namibia Sun’ maize meal. Karstens testified that his only role that
day was to witness the pointing-outs. He was not involved in anything else.
Inspector Philander was not called to testify about the pointing-outs by the accused
on 17 August 1999. There is therefore no evidence in respect of the process
followed prior to the pointing-outs. There is accordingly no evidence that the accused
had been informed of his right to legal representation and what his response was.
[1078] The State has the onus to prove that the pointing-outs was made freely and
voluntarily and that an accused person had made an informed decision after his
constitutional rights had been explained and after he had been warned according to
the Judge’s Rules. The record is silent in respect of these requirements. In the
absence of such evidence, the evidence of Karstens about a pointing-out by the
accused person is inadmissible. The State in its heads of argument referred to
Exhibit EGO(2) which indicated that the accused was to have obtained a donation of
firearms from Makanga.
[1079] The accused person elected not to give evidence. I am satisfied that the State
has in the absence of any evidence from the accused proved an overt act by the
accused with the required hostile intent, beyond reasonable doubt and that the
accused stands to be convicted of the offences mentioned hereunder.
Brighton Simisho Lielezo (accused no. 31 )
[1080] Beauty Mukelabai Munyandi testified about a meeting she had attended which
had been convened by Induna Imushu in Zambia. Councilor Conrad Walvifa said at
this meeting that the children of Caprivi and the children of Zambia should join to
form one State. She further testified about an incident when she saw John Samboma
in Imushu together with 12 other men. John Samboma was in possession of two AK
47 rifles and that the accused was in the company of John Samboma at the time she
had seen Samboma with AK 47 rifles. I have earlier discussed the criticism against
the witness regarding her ability to identify an AK 47 rifle and my conclusion is that
382
from her own testimony she was not in a position at that stage to distinguish
between various firearms and her testimony that what Samboma carried were two
AK 47 rifles cannot be safely accepted as evidence against the accused persons.
[1081] Naseb Kambindo Thihumisa testified that on 27th/28th July 1999 he was in the
company of his brother Brighton Shimusho Lielezo who said to him that those who
came from Botswana were going to be killed and that he, i.e. the witness, had to go
and look for his families if the witness wanted to join others, i.e. the rebels in the
bush. The witness testified that he refused. The testimony of this witness implies
that his brother tried to recruit him. The witness testified that after a few days his
brother went missing from their village. The witness was not asked to identify his
brother. Mr July in his heads of argument submitted that this witness made an
undisputed confession, Exhibit EHR. Exhibit EHR was ruled inadmissible.
[1082] It was submitted by Ms Aggenbach that there is no shred of evidence which
places the accused anywhere at Makanga on the evening of the attack or at any
place of attack. I am of the view that the evidence presented by the State, in spite of
the failure of the accused to testify, does not prove the commission of the offences
preferred against him, beyond reasonable doubt.
John Panse Lubilo (accused no. 50)
[1083] Hobby Habaini Lusilo testified that on 2nd August 1999 his brother-in-law,
Richard Masupa Mungulike (accused no. 34), told him that he was with friends at
Mpacha military base where there was fighting and that soldiers died. This witness
was questioned about this fighting in evidence-in-chief and the following appears:229
‘Yes, is that the only thing he told you regarding the fighting? . . . He told me that
Kempase, that one of them Mpase who had gone together with him, he noticed that
his big toe . . . was shot.
Who was shot? . . . John Mpase.’
[1084] The witness testified that they then went to Sikelenge village in order to drink.
The record continues as follows:230
229 P 8147230 P 8150
383
‘So we went myself and my brother-in-law to the place of John and I really confirmed
that it was true.
What did you confirm, what did you do? . . . I saw with my own eye, myself I saw.
What did you see? . . . Yes, I saw where he was wounded and even himself he said
that yes, it is a bullet.
Where was he wounded? . . . On the big toe . . .
Now he said it was a bullet, did he mention where he was, at which place he was
shot . . . He said that it was at Mpaha, . . .
Now do you know what is the full names of John Panse? . . . Yes
Please tell us . . . John Panse Lubilo.’
[1085] This witness when given the opportunity to identify John Panse Lubilo failed to
do so and stated that he was unable to do so because their faces have changed.
This witness testified that he knew John Panse Lubilo as the village Induna. It was
submitted by Ms Aggenbach in her heads of argument that this witness surely knows
John Panse Lubilo is certain, as he testified to that effect and that according to State
witness Sem Mbinge this witness was the one who pointed out the courtyard of the
Induna of Kaenda to him. It was submitted that if this witness is to be believed he
should not have had any problems to identify the accused.
[1086] Sem Mbinga, a member of the Namibia Police Force, testified that on 30
August 1999 he, himself, together with other police officers and accompanied by
Hobbi Sinyabata left for Kaenda village. On their arrival Hobbi Sinyabata pointed out
two individuals who became known to him as Richard Masupa Mungulike and
Joseph Kabuyana. Sinyabata also pointed out the courtyard of the Induna. The
Induna was absent but his wife was present and the wife accompanied them to the
next village namely, Nyanga-Nyanga and pointed out her husband who was
subsequently arrested by Inspector Karstens.
[1087] Jacobus Hendrik Karstens testified that on 1 September 1999 he was
approached by sergeant Chizabulyo who informed him that the accused was
384
prepared to make a pointing out. The witness testified that he identified himself to
the accused person and informed him of his right to remain silent and his right to
legal representation. The witness testified that he informed the accused that should
he wish to continue to make a pointing out, photographs would be taken which would
be used as evidence against him in a court of law. He testified that the accused
understood what was explained to him. Thereafter on the instructions of the accused
they proceeded to Kaenda area. They stopped next to the road and the accused led
them a few hundred metres into the bush were he pointed out a spot between two
small trees. The accused was instructed to remove what was buried there. The
accused dug a hole and removed a white plastic bag. Inside this bag was a G3 rifle
and a magazine. Photographs were taken by officer Mbinge. Thereafter they
returned to the police station.
[1088] Inspector Karstens testified that sergeant Chizabulyo acted as an interpreter
because the accused was not fluent in the official language and that at the time he
had informed the accused of his rights only himself and sgt Chizabulyo were present
with the accused. Inspector Karstens testified that he observed an injury on the left
toe of the accused which appeared to have been caused by a bullet. When asked
about the injury, the accused explained that he was running back to his village and
allegedly stepped into a stick which caused the injury. This witness was not cross-
examined.
[1089] What is apparent to me from the testimony of this witness is that the witness
did not testify about the response of the accused person when his rights were
explained to him.231 What he testified was that the accused understood his rights and
that he cooperated. It does not appear from the record whether the accused
informed him that he wished to obtain such legal representation or that he waived his
right to legal representation. Nothing was explained that he may consult with a legal
representative prior to the pointing-out. Nothing was said about legal aid. Another
aspect that must be touched upon is namely the fact that sergeant Chizabulyo was
used as an interpreter. Sgt Chizabulyo was one of the investigating officers in this
case, and, as pointed out by Ms Aggenbach had a vested interest in the matter.
What was interpreted is unknown. Sgt Chizabulyo was deceased by the time
inspector Karstens testified.
231 P 31742 – 31744..
385
[1090] I am not satisfied that the pre-conditions to have such a pointing out to be
admitted as evidence against the accused person were met by the State.
Consequently this pointing out by the accused cannot be used on evidence against
him.
[1091] The evidence against the accused is that Hobbi Sinyabata testified that he
observed a wound on the big toe of John Panse Lubilo, who told him that he was
wounded at Mpacha. Sinyabata failed to identify the accused in court but identified
the courtyard of John Lubilo whom he knew was an induna. Subsequently the wife of
the accused identified him. The evidence of Sinyabati was not disputed neither was
the evidence of Sem Mbinge. The evidence of Inspector Karstens was that he
observed an injury on the big toe of the accused person. Karstens, in my view, could
not express an opinion of what could have caused such an injury, but it is not denied
that the accused was injured on his big toe. The accused himself gave an innocent
explanation on how he sustained such injury according to Karstens. The accused
through the testimony of Sinyabati placed himself at Mpacha military base. This is an
admission by the accused.
[1092] I am of the view that the in the face of such evidence an answer was due by
the accused. I am satisfied that the evidence presented by the State proved the
commission of an overt act by the accused and the only reasonable inference in the
circumstances is that the accused had the required hostile intent at the relevant time.
I am satisfied that the State has proved beyond reasonable doubt that the accused
committed the offences mentioned hereunder.
Rex Lumponjani Kapanga (accused no. 63)
[1093] Bernard Kanzeka testified that Rex Kapanga attended a meeting in November
1998 which was addressed by Geoffrey Mwilima at the DTA office where Mwilima
informed the attendants about secession, the donation of money, and that people
must go to Botswana. It was submitted by Ms Aggenbach that there is no evidence
that the accused agreed or associated himself with what the speakers had said at
any of the two meetings testified to by this witness. The testimony about a meeting
addressed in December 1998 by Muyongo is a physical impossibility since Muyongo
was in Botswana at that stage and this must be common cause. Ms Aggenbach with
reference to the State’s head of argument232 pointed out that according to the State
232 On p 191.
386
the witness Shailock Sinfwa testified that the accused attended a meeting in 1994
where Muyongo informed the attendants that the UDP will separate from the DTA
and that Caprivi should be part of the Western Province of Zambia. Counsel
submitted that the record reflects that reference was made to a “Mr Rex” by the
witness and that it was the prosecutor who concluded that it must be Rex Kapanga,
accused no 63. It was submitted that this witness (ie Shailock Sinfwa) did not identify
the person “Mr Rex” as one of the accused persons before court.
[1094] The State in their heads of argument submitted that the witness Oscar
Mwisepi had identified the accused on having attended “secessionist meetings”233
whilst the record on that page reflects something different.
[1095] The evidence by Kanzeka that the accused attended a meeting in November
1998 must be approached with caution as he is a single witness and his evidence
should only be accepted if it is clear and satisfactory in all material respects. I am of
the view that the evidence presented by the State even in the absence of testimony
by the accused person is not of such a nature as to require an answer from the
accused in spite of the fact that the accused elected not to testify. I am of the view
that the State did not prove the commission of the preferred charges against the
accused person.
Brandan Luyanda Luyanda (accused no. 120)
[1096] The State in its heads of argument submitted that the accused was identified
in court to have been at Makanga before the attack on Katima Mulilo namely by
Ruben Bakabuha Sikwela, Bornbright Mutendelwa Kufwa, Given Iufela Ndungati,
and Thomas Franco Mukoya. The testimonies of these witnesses were ruled
inadmissible due to torture perpetrated on them prior to the extraction of their
witness statements by members of the Namibian Police Force.
[1097] It was submitted that the accused was in Dukwe. Michael Maluboka Ziezo
testified about an incident after the attack on Katima Mulilo where he was in the
company of Chikomozo O’Brien Mafendo when he observed Brendan Luyanda with
233 P 767 lines 16 – 20.
387
a “bandage” on his head. This witness testified that he asked Brendan where he was
coming from and Brendan replied that he was coming from Ngwezi and then he (ie
Brendan) proceeded walking. They followed Brendan to his house. There Mafendo
left them and he then asked Brendan again where he was coming from. Brendan
replied that he was coming from Mpacha Military Base which they had attacked.
When asked how it went, Brendan replied that it did not go well. Brendan further
informed him that he had a fire arm but did not shoot anybody. He testified that
Brendan is well known to him since they used to play soccer together. This witness,
when given the opportunity to do so, failed to identify the person he referred to as
Brendan Luyanda, as one of the accused persons before court.
[1098] The witness Michael Nuwe gave incriminating evidence against Brendan
Luyanda, but when given the opportunity to identify him, made it clear that Brendan
Luyanda was not in court. Mukushi Events Kaine Zorrow gave incriminating evidence
against one Brendan Luyanda, but failed to identify Brendan Luyanda as one of the
accused persons before court.
[1099] The State in their heads of argument referred to Exhibit EGO (2) where
reference is made to a fire arm with Brendan Luyanda at Masida (R1 rifle). As
testified by Andreas Nelumbo and Moses Shaama, the accused and Austen Ziezo
(accused no 121) reported at Buitepos Border Post from Botswana and had in their
possession emergency travel documents on 30 August 2001.
[1100] The evidence presented by the State, in my view, does not, in the absence of
testimony by the accused, prove the commission of the offences preferred against
the accused person.
Frans Muhupulo (accused no. 122)
[1101] Kruger Chasunda testified that in August 1999, he was at his village Sivanga
when Frans Muhupulo arrived at this courtyard and requested a fire arm from him.
The witness testified that the accused knew that he possessed a R1 rifle. The
testified that the accused is his cousin. According to the witness, Frans Muhupulo
informed him that he needed the fire arm for a short while in order to hunt. The gave
him the fire arm which was in good operational condition, together with two rounds of
ammunition. The witness testified that at a later stage he received information that
the police were looking for Frans Muhupulo. He thereafter went to Frans Muhupulo
388
and asked him why the police were looking for him. Frans replied that the police
were suspecting that he took part in the attack. When he asked Frans whether this
was true Frans gave no answer – just remain silent. The witness did not identify
Frans Muhupulo as one of the accused persons before court.
[1102] The State in their heads of argument submitted that the accused was at
Makanga camp on 1st August 1999 where the final preparations were made before
the attack on 2nd August 1999. The State relies on the testimonies of Ruben Sikwala
and Given Ndungati in support of this submission. This court had ruled the evidence
of these two witnesses as inadmissible due to the torture perpetrated on them prior
to extracting witness statements form them, by members of the Namibian Police
Force. The State also referred to the fact that the name of the accused appears on
the deployment list Exhibit EGK (1).
[1103] I am of the view that the evidence presented by the State does not prove the
commission of the preferred charges against him beyond reasonable doubt in spite
of the failure by the accused to testify.
Witnesses warned in terms of s 204 of Act 51 of 1977
[1104] A number of State witnesses were warned in terms of the provisions of s 204
of Act 51 of 1977. This section protects accomplices and other witnesses who will,
through their evidence have to disclose that they themselves have committed
offences. This section makes it possible for the State to call one or more concurrent
wrongdoers as witnesses against the other wrong doers. Such a witness may be
indemnified against prosecution of specific offences where the Court is satisfied that
the witness has answered frankly and honestly all questions put to such a witness. A
Court however may refuse to give such indemnification. Such a witness, because of
his or her interest in the ruling by the Court whether or not to discharge such witness
from prosecution, has a right to be heard before the Court comes to a decision.
[1105] My understanding of the authorities is that such a determination can be made
after judgment but before the conclusion of the trial. I shall therefore for this reason
not at this stage deal with the issue of the indemnification or otherwise of those
witnesses warned interms of s 204.
389
The Charges of High Treason, Murder and Attempted murder
[1106] I have indicated earlier, at para 43, the submission made on behalf of the
State that should this Court find sufficient evidence has been presented by the State
to establish the crime of high treason or sedition, the other charges in the indictment
should be regarded as overt acts and that those other charges be regarded as being
stopped on the instructions of the Prosecutor-General, except the charges of murder
and attempted murder.
[1107] I wish to consider this statement in view of the rule against the duplication of
convictions with regard to the provisions of s 83 of Act 51 of 1977. Two practical aids
were developed by the Courts in order to determine whether there is a duplication of
convictions, namely, the ‘same evidence’ test and the ‘single intent’ test. The same
evidence test provides that if the evidence which is necessary to establish one
charge also establishes the other charge, there is only one charge. The single intent
test provides that if there are two acts each of which would constitute an
independent offence but there was one intent and both acts are necessary to realize
this intent, there is only one offence. The elements of the crime of high treason are
an overt act, unlawfully committed, by a person owing allegiance to the State, which
possesses majestas, and hostile intent. Violence is not a necessary element of of the
crime of high treason. The history abounds with so-called ‘Bloodless coup d’etat’s’
were governments have been overthrown without firing one single shot.
Nevertheless, the crime of high treason is committed in these circumstances.
Violence however is often inevitable as in the instant case.
[1108] Therefore, if the same evidence test is applied, the evidence necessary to
prove high treason would not necessarily prove the crime of murder and therefore
two offences have been committed. In respect of the single intent test it would
appear to me that if that test is applied, the conclusion would be that more than one
offence was committed. Hostile intention may include an intention to overthrow the
State but the crime of high treason is also committed even in the absence of an
intention to overthrow the State, where for instance, the intention was merely to
coerce the governing authority, by force. Hostile intention, in my view, may include
the intention to murder but that will not necessarily be the case, and it will depend
390
upon the circumstances of a particular case whether hostile intention excluded the
intention required to commit the crime of muder.
[1109] It was held in S v Globler234 that in order to determine whether more than one
crime had been committed, would depend on the description of the offence, ie the
elements of the offence. In Globler, the accused was convicted of the crimes of
robbery and murder where he had entered a shop with a firearm with the intention to
intimidate the victims. In the course of the robbery a person was killed. The Court
found that there was no duplication of convictions with reference to the different
elements of the crimes of murder and robbery. It was also held in Globler that it is
impossible to determine a formula which would cover each and every case and to
provide an answer to the question of whether or not there has been a duplication of
convictions.
[1110] For the reasons stated, I am of the view that to convict an accused person on
a charge of high treason as well as on a charge of murder would not amount to a
duplication of convictions. I have indicated at para [33] that the crimes of high
treason, sedition and public violence overlap where a number of people acting in
concert and with hostile intent assemble and disturb the public peace. Therefore,
where an accused has been convicted of high treason, it would be a duplication of
convictions to convict such a person for the crime of sedition or public violence as
well.
[1111] The record is permeated with words and phrases used during meetings, in
documents, and during the testimonies of State witnesses namely: ‘cutting the
region’, ‘fire-arms’, ‘weapons of war’, ‘fighting with firearms’, ‘liberation struggle’,
‘secession’, ‘military wing’, ‘army’, ‘CLA/CLM’, and by ‘violent means’. These words
and phrases are the antithesis of the words: negotiations, democratic means and
peacefully. In my view, the co-conspirators, and those who became aware of the aim
to secede the Caprivi region by violent means and failed to report it to the authorities
had foreseen that violence would be inevitable and that it would invariably result in
the killing of human beings and associated themselves with such an eventuality.
234 1966(1) SA 507 (AA) at 512A.
391
Order: Convictions
[1] The following accused persons are hereby convicted of:
Count 1-High Treason;
Counts: 5, 6, 7, 8, 9, 10, 11, 12 and 13 of murder; and
Counts: 32, 34 to 41, 43 to 50, 52,56,58,60,62,63,64,66,68,70,76,78,80,84,87 to