S v Malumo and Others (2) (CC 32 of 2001) [2006] NAHC 52 (28 February 2006)

CASE NO.: CC 3 2 / 2 0 01 IN THE HIGH COURT OF NAMIBIA In the m a t t er between: THE STATE a nd CALVIN LISELI MALUMO + 1 18 OTHERS CORAM: HOFF, J Heard on: 2 0 0 6 . 0 2 . 2 2, 2006.02.27 Delivered on: 2 0 0 6 . 0 2 . 28 JUDGMENT: HOFF, J: This is an application in terms of. Section 317 of Act 51 of 1977 for a special entry in terms of the following irregularities: 1. that this Court made, a ruling that the State is permitted to lead evidence outside the p a r a m e t e rs of the further particulars supplied to Accused No. 90; 2. that this Court erred in t h at contrary to the concession made by the State t h at they particularize four meetings against Accused No. 90, in holding t h at the further particulars supplied in essence form part of the s u m m a ry of substantial facts in t e r ms of section 144 of Act 51 of 1977; 3. t h at this Court erred in putting form over s u b s t a n c e; 4. that this Court erred in law by reading the p h r a se "various meetings" disjunctively as opposed to conjunctively rendering the words "planned attacks" of paragraph (a) of the further particulars supplied meaningless; and 5. that this Court erred in law by effectively abrogating the further particulars supplied by the State prejudicing the defence of Accused No. 90 which h as the effect of infringing the right of Accused No. 90 to a fair trial as envisaged in the Namibian Constitution. This application was opposed by the State. In considering this application it is t h us necessary to look at the ruling itself a nd the r e a s o ns for s u ch a ruling. The basic objection by Mr Kauta was t h at since the State provided further p a r t i c u l a rs the State is b o u nd by those further particulars provided a nd should not be allowed to lead evidence of incidents relating to events outside those incidents referred to in their further particulars. This is also the first irregularity referred to in this application a nd it is from this alleged irregularity that the other alleged irregularities flow from. In my previous ruling which I shall refer to as "the further particulars ruling" I have given r e a s o ns why I have found that the further particulars requested a nd the further particulars provided are confusing and e m b a r r a s s i ng a nd do not wish to repeat those reasons. It is t h us on this basis t h at I have in the further particulars ruling considered two options. Firstly t h at it a p p e a rs to me t h at w h at was provided by the State is a conflagration of a s u m m a ry of s u b s t a n t i al facts (section 144 of Act 51 of 1977) and further particulars (section 87 of Act 51 of 1977). I have t h en indicated that if one considers the information provided by the State as s u m m a ry of the s u b s t a n t i al facts on which the State relies u p on then the State is not precluded from leading evidence outside w h at is contained in the s u m m a ry since the State is not b o u nd by the facts referred to in the s u m m a r y. I have secondly indicated that if all the information provided by the State in r e s p o n se to the request for further particulars should be regarded as further p a r t i c u l a rs t h en the further particulars refer to as least five separate a nd distinct meetings allegedly a t t e n d ed by Accused No. 90 a nd t h at in addition he attended "various other meetings." It is on the b a s is t h at the further particulars refer to "various other meetings" t h at this Court ruled t h at the State is not precluded from leading evidence which is perceived as evidence outside the further particulars a nd this Court remarked t h at it would have expected an request for further a nd better particulars since the p h r a se "various other meetings", is vague. The p a r t i c u l a rs requested were very specific. P a r a g r a p hs 1.7 a nd 1.8 read as follows: "1.7 Was accused at a meetings (s) were the violent take-over was planned or did he plan the violent take-over himself ? Precise and full particulars are requested. 1.8 If accused planned the violent take-over at a meeting (s), the State is requested to furnish particulars with respect to the place and date of such meetings." In section A of the reply by the State u n d er the heading "Summary of Evidence" the State t a b u l a t ed four different meetings i.e. one at the DTA office in Katima Mulilo, one at Linyanti village during 1998, one at the h o u se of Richwell Matengu M u k u n gu during 1998, a nd one during 1999 at the h o u se of Gabriel Mwilima. In section B u n d er the heading: "More specifically the allegations against the accused are the following": a p p e a rs at par. 1 (a) "the accused attended various other meetings and particularly a meeting on 01 August 1999 at Linyanti Khuta where the planned attacks were discussed." In my view this reply far from being specific is vague a nd e m b a r r a s s i ng a nd I m u st repeat w h at I have said in "the further particulars ruling" i.e. t h at one would have expected a request for further a nd better particulars. This was not done. My u n d e r s t a n d i ng of the s u b m i s s i o ns on behalf of Accused No. 90 is that the "various other meetings" referred to in section B m u st be u n d e r s t o od a nd limited with reference to the four meetings referred to in section A. I disagree since there is no indication from the further particular provided to which meetings are referred to by the p h r a se "various other meetings" hence it c a n n ot now be suggested that this Court erred in reading that p h r a se disjunctively. The alleged irregularity t h at form is being p ut above s u b s t a n ce is in my view a bald assertion a nd without s u b s t a n c e. It should in addition be clear from what was said supra t h at there is no foundation t h at this Court in "the further particulars ruling" abrogated the further particulars supplied by the State. I am of the view t h at this application for s special entry in terms of section 317 of Act 51 of 1977 is frivolous a nd this Court accordingly refuse to record the alleged irregularities stipulated by counsel in this application. HOFF, J ON BEHALF OF THE STATE: ADV. JANUARY Instructed by: OFFICE OF THE PROSECUTOR-GENERAL ON BEHALF OF ACCD NO. 9 0: MR KAUTA Instructed by: DIRECTORATE OF LEGAL AID