S v Ningise and Others (CC 4 of 2002) [2006] NAHC 5 (22 February 2006)

IN THE HIGH COURT OF NAMIBIA CASE NO.: CC 0 4 / 2 0 02 In t he m a t t er between: THE STATE a nd HYACINTH JAMES NINGISE MCDONALD KAMBONDE HENDRICK HENNY TSIBANDE BRANDON DAVID OMSWA SIMILO ARVO TSHEELI NATANGWE HAIPINGE ISMAEL OAEB VINCENT NDABULA MABUZA MIKE SANDILE MABENA SKUMBUZA APANI CORAM: Silungwe, J. A c c u s ed 1 A c c u s ed 2 A c c u s ed 3 A c c u s ed 7 A c c u s ed 8 A c c u s ed 9 A c c u s ed 10 A c c u s ed 11 Heard on: 2 0 0 3 . 0 9 . 2 3 - 3 0 ; 2 0 0 3 . 1 0 . 0 3 - 0 9; 2 0 0 2 . 1 0 . 1 5; 2 0 0 2 . 1 0 . 2 8 - 3 1; 2002.11.01-20; 2 0 0 3 . 0 1 . 1 5 - 2 2; 2 0 0 3 . 0 1 . 2 4 - 3 0; 2 0 0 3 . 0 2 . 0 3 - 2 8; 2 0 0 3 . 0 3 . 1 0 - 1 4; 2 0 0 3 . 0 4 . 1 4- 30; 2 0 0 3 . 1 0 . 1 4 - 1 5; 2 0 0 3 . 1 0 . 2 0; 2 0 0 3 . 1 0 . 2 3 - 3 1; 2 0 0 3 . 1 1 . 0 3 - 1 3; 2 0 0 4 . 0 2 . 0 9 - 2 6; 2 0 0 4 . 0 3 . 0 1 - 3 1; 2 0 0 4 . 0 4 . 0 1 - 0 6; 2 0 0 4 . 0 5 . 2 6 - 2 8; 2 0 0 4 . 0 6 . 0 2- 2 0 0 5 . 0 2 . 21 11; 2 0 0 5 . 0 2 . 2 8; 2 0 0 5 . 0 4 . 25 2 0 0 5 . 0 4 . 2 7 - 2 9; 2 0 0 5 . 0 5 . 1 9 - 2 0; 2 0 0 5 . 0 7 . 0 4 - 1 5; 2 0 0 5 . 0 7 . 18 2 0 0 5 . 0 7 . 2 0; 2 0 0 5 . 0 7 . 2 7; 2 0 0 5 . 1 2 . 06 2005.02.07; 2 0 0 5 . 0 3 . 1 7 - 1 8; 2 0 0 4 . 1 1 . 1 1; 2 0 0 4 . 0 6 . 2 1; 2 0 0 5 . 0 3 . 1 4; Delivered on: 2 0 0 6 . 0 2 . 22 JUDGMENT (1) SILUNGWE, AJ: All t he p r e s e nt eight a c c u s ed are jointly arraigned for t he following charges: Count 1: Robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, (Act 51 of 1977) as amended; Alternatively, 1.2 Theft; Count 2.1: Robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, (Act 51 of 1977) as amended; Alternatively, 2.2 Theft Count 3: Possession of a machine gun or machine rifle in contravention of section 29(l)(a), read with sections 1 and 38(2)(a), of the Arms and Ammunition Act, (Act 7 of 1996); Count 4: Possession of Ammunition in contravention of section 29(l)(a), read with sections 1 and 32(2) (b), of Act 7 of 1996. [1.1] The p a r t i c u l a rs of the c h a r g es are set out as follows: Count 1.1: in that on or about 16 November 2000, and at or near Erf number 17, Schweringburg Street, Klein Windhoek, in the district of Windhoek, the accused unlawfully and with the intention of forcing him into submission, threatened to assault Harald Schutt by threatening to shoot him with firearm(s) and unlawfully and with intent to steal took from him at gunpoint his cellular telephone (valued at N$ 1000.00), his Nissan Bakkie with registration number N12701SH (valued at N$51,000.00) with a canopy valued at N$5,807.50 and a toolbox with a socket set, spanners, hammers, chisels, pliers, wire stripper, screwdrivers, drill set, test lamp, saws, files, drill (all valued at N$ 17,618.70) the property of, or in the lawful possession of, the said Harald Schutt; and that aggravating circumstances as defined in section 1 of Act 51 of 1977 are present in that the accused were before, during or after the commission of the offence wielding firearms and threatening to inflict grievous bodily harm. Alternative to count 1: Count 1.2 in that during the period 16 to 17 November 2000 and at or near Windhoek in the district of Windhoek, the accused did wrongfully and unlawfully steal a motor vehicle, a Nissan bakkie, with registration number N12701SH (valued at N51,000.00) with a canopy (valued at N$5,807.50), a cellular telephone at N$1000.00), and a toolbox with a socket set, spanners, hammers, chisels, pliers, wire stripper, screwdrivers, drill set, test lamp, saws, files, drill (all valued at N$ 17,618.70) the property of, or in the lawful possession of, the said Harald Schutt. Count 2.1 in that on or about 17 November 2000, and at or near Windhoek, in the district of Windhoek, the accused unlawfully and with the intention of forcing him into submission, threatened to assault Kapira Gerhard Thihuro by threatening to shoot him a n d / or by shooting in his direction with firearms and by wounding him with a shot fired from a R5 automatic machine gun or machine rifle wrongfully and unlawfully and with intent to steal took from him N$5,300,000.00 cash, the property of, or in the lawful possession of, City Savings Investment Bank (CSIB) and/or in the lawful possession of, the said Kapira Gerhard Thihuro; and that aggravating circumstances as defined in section 1 of Act 51 of 1977 are present in that the accused were before, during or after the commission of the offence, wielding firearms and threatening to inflict grievous bodily harm. Alternative to Count 2: Count 2.2 in that during the period 17 November 2000, and at or near Windhoek in the district of Windhoek and/or in an unknown district in the Republic of Namibia, the accused did wrongfully and unlawfully steal N$5,300,000.00 the property of, or in the lawful possession of, City Savings Investment Bank (CSIB) and/or in the lawful possession of the said Kapira Gerhard Thihuro. Count 3: that the accused are guilty of contravening section 29(1)(a), read with sections 1 and 38(2)(a), of Act 7 of 1996: in that on or about 17 November 2000, and at or near Windhoek in the district of Windhoek, the accused did wrongfully and unlawfully possess a machine gun or a machine rifle number 309094 being a firearm capable of delivering a continuous fire as long as pressure is applied to the trigger thereof, without a permit issued to them. Count 4 : t h at the accused are guilty of contravening section 29(l)(e), read with sections 1 and 38(2) (b), of Act 7 of 1996: in that on or about 17 November 2000, and at or near Windhoek in the district of Windhoek, the accused did wrongfully and unlawfully possess an unknown number of rounds of ammunition without being in lawful possession of a machine gun or machine rifle capable of firing that ammunition. [2] All the a c c u s ed pleaded not guilty to all t he charges. I p a u se here to mention t h at I m m a n u el H a n j a m ba K a u k u n g u a, J o s e ph Heinrich a nd B e r t ha N a n d u da all of w h om h ad been jointly charged (with the rest of t he accused) as Accused 4, 5 a nd 6, respectively a nd who h ad also pleaded n ot guilty to all the charges preferred against t h e m, were discharged: Accused 4 a nd 5 were discharged d u r i ng the State's p r e s e n t a t i on of evidence w h en prosecution against t h em w as discontinued; a nd Accused 6 w as discharged at t he close of the case for t he State. [3] A s u m m a ry of the (alleged) s u b s t a n t i al facts is set o ut as follows: [3.1] On T h u r s d ay 16 November 2 0 0 0, t he Windhoek B r a n ch of the B a nk of Namibia i s s u ed t he Windhoek B r a n ch of t he City Savings a nd I n v e s t m e nt B a nk (CSIB) with an a m o u nt of N$7,360,000.00. This a m o u nt consisted of N$3,000, 000.00 in n e w / u s ed N$50.00 notes within a specific range of serial n u m b e r s, N$4,000,000.00 u s e d / r e - i s s u ed N$50.00 n o t es a nd N $ 3 6 0 , 0 0 0 . 00 in u s e d / r e issued N$ 10.00 notes. [3.2] This money w as collected during the morning of 16 November 2 0 0 0, from the B a nk of Namibia by Accused 2 a nd Kapira Gerhard Thihuro who were both employed by Professional Security Services CC (PSS) as security officers. They t r a n s p o r t ed t h is money to the offices of CSIB in Windhoek. As CSIB requested PSS to t r a n s p o rt some of t h at money to t he O n d a n g wa b r a n ch of CSIB, Accused 2 a nd Kapira Gerhard Thihuro collected an a m o u nt of N$5,300, 0 0 0 . 00 of t h at money from CSIB d u r i ng t he afternoon of 16 November 2 0 0 0. The money w as k e pt in safe custody at the offices of PSS in Windhoek before (the anticipated) t r a n s p o r t a t i on thereof to O n d a n g wa on Friday 17 November 2 0 0 0, at OlhOO. [3.3] At approximately 2 2 h 45 in t he evening of T h u r s d ay 16 November 2 0 0 0, Harald S c h u tt arrived at his residence at No 7 Schweringburg Street in Klein Windhoek, driving his Nissan bakkie with registration No. N12701 SH. As he w as opening t he gate to his residence, t he a c c u s ed or some of t h em a p p r o a c h ed him a nd d e m a n d ed t he keys of t he motor vehicle a nd his cellular p h o ne at gunpoint. The a c c u s ed took the Nissan bakkie with canopy a nd tools listed in C o u nt 1 as well as the cellular p h o ne a nd drove off, after t h r e a t e n i ng to kill Harald Schutt. [3.4] At approximately OlhOO on Friday, 17 November 2 0 0 0, Accused 2 (as driver) a nd Kapira Gerard Thihuro (as crewman) departed for O n d a n g wa with the N$5,300,000.00 in a PSS company vehicle, an a r m o u r ed Toyota bakkie registration No. N43572W. Whilst driving on the Windhoek-Brakwater road towards O k a h a n d j a, the accused, who were travelling in the Nissan bakkie of Harald Schutt, a p p r o a c h ed the Toyota bakkie a nd b u m p ed a g a i n st it. Accused 2 pulled the Toyota bakkie from the road a nd stopped the vehicle. The a c c u s ed in t he Nissan bakkie fired s h o ts towards the Toyota bakkie a nd d e m a n d ed t he money a nd t he key to t he safe in which t he money was. The a c c u s ed received t he key to t he safe from Accused 2, whereafter they removed t he m o n ey from the b a ck of t he Toyota bakkie. During t he incident, Accused 1 s h ot Kapira Gerard T h i h u ro in the a b d o m en with an R5 m a c h i ne g un m a c h i ne rifle n u m b er 3 0 9 0 34 whereafter Kapira Gerard T h i h u ro s h ot Accused 1 with a PSS c o m p a ny 9 mm pistol in t he h a nd a n d / or a b d o m e n. The a c c u s ed drove off in t he Nissan bakkie with t he money a nd the cellular telephone of Accused 2, leaving b e h i nd Kapira G e r h a rd T h i h u ro a nd Accused 2. [3.5] At approximately 0 7 h 45 on Friday 17 November 2 0 0 0, the police found the Nissan bakkie of Harald S c h u tt a b a n d o n ed n e ar D a an Viljoen road. The canopy, registration plates, toolbox a nd tools as listed in C o u nt 1 (sic) h ad been removed from the vehicle a nd a registration plate with registration No. N63013W w as affixed to this vehicle. The Nissan bakkie as well as t he Toyota bakkie were d a m a g ed d ue to the b u m p i n g. [3.6] During the m o r n i ng of Friday 17 November 2000, Accused 7 took a c c u s ed 1 to the R o m an Catholic Hospital in Windhoek where Accused 1 received t r e a t m e nt for t he g u n s h ot w o u nd in his a b d o m e n. Accused 1 was arrested by the Namibian police whilst in t he Roman Catholic Hospital. Accused 2 a nd 3 were arrested in Namibia. [3.7] On S u n d ay 19 November 2 0 0 0, Accused 7, 8 ad 9 left Namibia together with Accused 11 in motor vehicles of t he latter a nd a c c u s ed 9. They entered S o u th Africa on Monday 20 November 2 0 0 0, with these two vehicles. On S u n d ay 19 November 2 0 0 0, Accused 10 flew from Windhoek to Cape Town. [3.8] At approximately 0 4 h 30 on Wednesday 22 November, 2 0 0 0, Accused 1 1, Accused 10 a nd Accused 7, 8 a nd 9 were a r r e s t ed by the S o u th African Police Service in h o u se No. 75 Teresa Street, C a m ps Bay in Cape Town, S o u th Africa, a nd a bag containing N $ 9 0 9 , 2 5 0 . 00 in N$50.00 notes w as found in this h o u s e. Accused 11 w as in p o s s e s s i on of keys to open the padlock with which t he bag w as locked. Accused 10 h ad N$50.00 notes in his possession. [3.9] Marie Antoinette Blignaut of the B a nk of Namibia identified t he serial n u m b e rs of the n e w / u n u s ed notes in the bag as falling within t he range of serial n u m b e rs of the new N$50.00 notes i s s u ed by the B a nk of Namibia on 16 November 2 0 0 0, to, a m o n g st other b a n k s, t he Windhoek b r a n ch of CSIB. [3.10.] During J a n u a ry a nd February 2 0 0 1, Accused 5 deposited some of the money stolen during t he robbery into h is a c c o u nt at SWA B a nk in O r a n j e m u n d. On 12 F e b r u a ry 2 0 0 1, Accused 4 deposited N$100 0 0 0 . 00 of the money stolen during t he robbery into his a c c o u nt at S w a b ou B a nk in O r a n j e m u n d. In S e p t e m b er 2 0 0 1, the Namibian Police recovered N$200 0 0 0 . 00 of the money stolen d u r i ng the robbery in a hole in the g r o u nd n e ar the h o m e s t e ad of J a c ob T h i m o t e us N a n d u da in O h a n g w e na where it (sic) h ad been buried by Accused 6. [3.11] The a c c u s ed (sic) did not have a permit to p o s s e ss t he R5 a u t o m a t ic m a c h i ne g un or m a c h i ne rifle or a m m u n i t i on to be fired from this g un or rifle. The a c c u s ed acted with c o m m on p u r p o se at all material times. [4] In this j u d g m e n t, I will hereinafter refer to t he a c c u s ed as follows: Hyacinth J a m es Ningise, Accused 1, as J a m e s; MacDonald Kambonde, Accused 2, as MacDonald; Hendrick Henry T s i b a n d e, Accused 3, as Hendrick; B r a n d on David O m s wa Similo, Accused 7, as B r a n d o n; Arvo Tsheeli Natangwe Haipinge, Accused 8, as Arvo; Ismael Oaeb, Accused 9, as Ismael; Vincent Ndabula Mabuza, Accused 10, as Vincent; a nd Mike Sandile M a b e na S k u m b u za Apani, Accused 1 1, as Mike. [5] MacDonald, Hendrick, B r a n d o n, Arvo a nd Ismael (Accused 2, 3, 7, 8 a nd 9, respectively) are Namibian citizens a nd were r e s i d e n ts of Windhoek at all material times. However, J a m e s, Vincent a nd Mike are n o n - N a m i b i a ns who h a p p e n ed to be in Windhoek, from S o u th Africa, during the period 16-18 November 2000. [6] Initially, Mr C h r i s t i a ns represented J a m e s, Hendrick a nd Mike b ut d u r i ng the trial, his m a n d a te to act for Mike was withdrawn. Mr Christians r e m a i ns t he legal representative of J a m es a nd Hendrick. MacDonald, B r a n d o n, Arvo a nd Ismael are all represented by Mr M u r o r ua who also took over t he r e p r e s e n t a t i on of Mike u n t il the close of the case for the defence w h en Mike opted to r e p r e s e nt himself. Mr Neves a p p e a rs for Vincent. The S t a te is r e p r e s e n t ed by Mr Small, t he Deputy Prosecutor-General. [7] The case for t he State is in s u b s t a n ce a replica of the (alleged) s u b s t a n t i al facts. The case for t he defence will be considered as I deal with t he a c c u s ed individually. This h as been a long trial, lasting nearly three a nd a half years, with n u m e r o us w i t n e s s es testifying a nd the record (inclusive of exhibits) is in excess of 12,000 pages. In t he c i r c u m s t a n c e s, it would be inappropriate to even a t t e m pt to s u m m a r i se the evidence of the witnesses. However, I bear in mind all t he evidence a d d u c ed in the m a t t er as I p r e p a re this j u d g m e n t. [8] The following facts are not in dispute. [8.1] On October 13, 2 0 0 0, Mike, with w h om Vincent h ad stayed in D u r b a n, left J o h a n n e s b u r g, S o u th Africa, by air together with Vincent, on a Windhoek - b o u nd flight. [8.2] On October 29, 2 0 0 0, J a m es too took a flight from J o h a n n e s b u rg to Windhoek. [8.3] On their respective arrival in Windhoek, Mike, Vincent a nd J a m es stayed at S a d r a ch (alias Falazza) D u b e 's residence as a r e s u lt of Mike's initiative. [8.4] From November 1, 2 0 00 up to the end of t h at m o n t h, Ismael r e n t ed h o u se n u m b er No. 1709 Agnes Street in Khomasdal, Windhoek, from (Ms) Heller Bezuidenhout. [8.5] On T h u r s d ay November 16, 2 0 0 0, the B a nk of Namibia (BON) i s s u ed to t he Windhoek B r a n ch of City of Savings a nd Investment B a nk (CSIB) a s um of N $ 7 , 3 6 0 , 0 0 0 . 0 0. This a m o u nt consisted of N$3,000, 0 0 0 . 00 in new N$50 n o t es within a specific range of serial n u m b e r s, N$4,000,000.00 in u s ed N$50 n o t es a nd N $ 3 6 0 , 0 0 0 . 00 in u s ed N$10 notes. [8.6] MacDonald a nd Kapira were at all material times security officers employed by Professional Security Service CC (PSS). In the m o r n i ng of November 16, 2000, they collected, in their official capacity, the a m o u nt of money referred to in [8.5] above from the BON a nd t r a n s p o r t ed it to the offices of CSIB in Windhoek. T h at money w as e a r m a r k ed for t r a n s p o r t a t i on to CSIB B r a n c h es at O n d a n g wa a nd Katima Mulilo. [8.7] CSIB r e q u e s t ed PSS to t r a n s p o rt N$5,300,000.00 (out of t he total a m o u nt received from the BON) to its O n d a n g wa B r a n c h. Consequently, in the afternoon of November 16, 2 0 0 0, MacDonald a nd Kapira fetched the said s um of money from CSIB a nd took it to the offices of PSS in r e a d i n e ss for its t r a n s p o r t a t i on to Ondangwa. [8.8] At a b o ut 2 2 h 45 on November 16, 2000, one Harald S c h u tt (Schutt) arrived at his residence No 7, Schweringburg Street, Klein-Windhoek, driving a Nissan bakkie with registration No. N12701SH. [8.9] At once, a s s a i l a n ts a p p r o a c h ed h im a nd d e m a n d e d, at gunpoint, keys of the bakkie as well as his cell-phone. [8.10] The robbers t h en took the Nissan bakkie with a canopy, tools as listed in c o u nt 1 above a nd the cell-phone, threatening to kill S c h u tt as they drove off. This w as the first robbery which is t he subject of t he first count. [8.11] At a b o ut OlhOO on Friday, November 17, 2 0 0 0, MacDonald (as driver) a nd Kapira (as crewman) set off for Ondangwa, t r a n s p o r t i ng the N $ 5 , 3 0 0 , 0 0 0 . 00 in a PSS c o m p a ny vehicle, to wit: an a r m o u r ed Toyota bakkie with registration No. N43527W. The money was kept in a locked safe located in the b a ck of the bakkie. [8.12] While MacDonald a nd Kapira were on the o u t s k i r ts of Windhoek, en route to their destination, p e r s o ns driving Schutt's Nissan bakkie c a u g ht up with t h em a nd b u m p ed against t he Toyota bakkie they were travelling in. [8.13] Using MacDonald's cell-phone, Kapira a t t e m p t ed to call J o h a n n es Henning Krugger Senior ( J o h a n n es Snr.), a co-proprietor of PSS, on the latter's cell-phone. J o h a n n es Snr. also e n d e a v o u r ed to telephonically contact Kapira in r e s p o n s e. These calls were registered in the Mobile Telecommunications Ltd System (MTC) on Friday, November 17, 2 0 00 between 01:29:20 a nd 0 1 : 3 2 : 1 1. [8.14] MacDonald pulled the Toyota bakkie he w as driving off the road a nd stopped. [8.15] The a s s a i l a n ts in the Nissan bakkie fired s h o ts at t he Toyota bakkie a nd d e m a n d ed money a nd a key to t he safe. [8.16] The a s s a i l a n ts obtained t he safe key, a nd emptied the safe of its contents. This w as the second robbery which is the subject of the second count. [8.17] During the second robbery, Kapira was shot in the a b d o m en w h e r e u p on he r e t u r n ed fire a nd thereby shot one of the robbers with a PSS c o m p a ny 9 mm pistol. [8.18] The r o b b e rs drove away in the Nissan bakkie, taking with t h em the money (from t he Toyota bakkie), MacDonald's cell-phone a nd t he rest of the property referred to in t he second charge, leaving behind the injured Kapira as well as MacDonald. [8.19] At approximately 0 7 h 45 on November 17, 2 0 0 0, t he Namibian Police recovered S c h u t t 's Nissan bakkie which h ad been a b a n d o n ed n e ar D a an Viljoen Road, Windhoek. The canopy, registration plates, toolbox a nd tools as listed in C o u nt 1 were missing from t he vehicle a nd a registration plate with No. N63013W w as affixed thereto. [8.20] The Nissan a nd the Toyota bakkies were both d a m a g ed as a r e s u lt of the incidence of b u m p i n g, aforesaid. [8.21] On November 17, 2000, B r a n d on requested Dr L C Nghalipoh to accord medical attention to J a m es who h ad s u s t a i n ed a g u n s h ot w o u nd in the a b d o m e n. [8.22] Consequently, Dr Nghalipoh visited h o u se No. 1709, Agnes Street in Khomasdal which w as being rented by Ismael a nd there a t t e n d ed to J a m es who w as suffering from a serious a b d o m i n al w o u n d. As J a m e s' condition required surgery, he w as referred to the Roman Catholic Hospital in Windhoek where he w as a d m i t t ed a nd he received t r e a t m e nt for the g u n s h ot w o u nd in h is a b d o m e n. [8.23] While he w as receiving t r e a t m e nt in the Roman Catholic Hospital, J a m es was a r r e s t ed by t he Namibian Police on t he same day of h is admission, namely, November 17, 2 0 0 0. A blood sample w as obtained from him. [8.24] MacDonald, too, was arrested in Windhoek on November 17, 2 0 0 0, by t he Namibian Police. Hendrick w as equally a r r e s t ed by the police in Windhoek on December 20, 2 0 0 0. [8.25] During J a m e s' t r e a t m e nt at the R o m an Catholic Hospital, a projectile w as not removed from his body. X-rays t a k en of J a m es by Dr Agnew on November 20, 2 0 0 0, showed t h at a bullet w as still lodged in his body. [8.26] None of t he a c c u s ed was at all material times in possession of a R5 a u t o m a t ic m a c h i ne g un or machine rifle or a m m u n i t i on to be fired therefrom. [8.27] On S u n d a y, November 19, 2 0 0 0, Vincent took a flight from Windhoek to Cape Town, S o u th Africa. On the s a me day, Brandon, Arvo a nd Ismael, travelling in Ismael's Volkswagen Golf car (Golf) with registration No. Nl 1322W, a nd Mike,, travelling in his BMW car with registration No. FH2377GP, left Windhoek on their way to South Africa. [8.28] On Monday, November 20, 2 0 0 0, at 0 0 h 0 8, Mike a nd Ismael arrived at Vioolsdrift border in S o u th Africa in Ismaels' Golf car. On the s a me d a te at OOhlO, B r a n d on a nd Arvo arrived at the S o u th African Vioolsdrift b o r d er in Mike's BMW car. [8.29] At approximately 0 4 h 30 on Wednesday, November 22, 2 0 0 0, B r a n d on Arvo, Ismael, Vincent a nd Mike were all arrested by the S o u th African Police in h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. [8.30] Subsequently, all t he a c c u s ed referred to in p a r a g r a ph [8.29], supra, were r e t u r n ed to Windhoek (as regards Vincent a nd Mike, following their extradition proceedings). [9] A blood sample w as collected from the steering wheel of S c h u t t 's recovered Nissan bakkie a nd w h en t h at sample, as well as two samples t a k en from J a m e s, were sent for DNA testing, Dr Agnew found a positive m a t ch between the sample collected from t he Nissan bakkie (that h ad been u s ed to facilitate t he commission of the second robbery) a nd the s a m p l es t a k en from J a m e s. [10] Further, a fingerprint w as lifted from the d a s h b o a rd of the recovered S c h u t t 's Nissan bakkie which the State's evidence shows m a t c h ed t h at of Hendrick. B ut Mr Christians a r g u es t h at the State h as failed to establish t h at the fingerprint in question w as lifted from the Nissan bakkie. I will later r e t u rn to t h is point. [11] The evidence of the S o u th African police witnesses alleges t h at on November 2 2, 2 0 0 0, approximately five days after t he commission of t he second robbery, a s um of N $ 9 0 9 , 2 5 0 . 00 in N$50 notes w as found in h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. That money w as contained in a black s u i t c a se which w as allegedly identified by Vincent as his. B r a n d o n, Arvo, Ismael, Vincent a nd Mike were all found there a nd arrested. They all (including Vincent) claim they have no knowledge of the money found in t h at h o u s e. [12] I will later a s s e ss a nd determine the case against a nd for each a c c u s ed individually. [13] Mr Small's submission, on behalf of the State, as to w h at he r e c k o ns should be t he outcome of this case is set out here below. [13.1] James: Guilty on C o u nt 1 (Robbery: Re: Schutt) as a co-perpetrator; Guilty on C o u nt 2 (Robbery: Re: money) as a co-perpetrator; Guilty on C o u nt 3 (Possession of m a c h i ne gun) as a co-perpetrator; Guilty on C o u nt 4 (Possession of ammunition) as a co-perpetrator; [13.2] MacDonald: Not guilty on C o u nt 1; Guilty on C o u nt 2 as an accomplice; Not guilty on C o u nt 3; Not guilty on C o u nt 4. [13.3] Hendrick: Guilty on C o u nt 1 as a co-perpetrator; Guilty on C o u nt 12 as a co-perpetrator; Guilty on C o u nt 3 as a co-perpetrator; Guilty on C o u nt 4 as a co-perpetrator. [13.4] Brandon Not guilty on C o u nt 1; Guilty on C o u nt 2 as an accessory after the fact; Alternatively: guilty of theft Not guilty on C o u nt 3; Not guilty on C o u nt 4. [13.5] Arvo: Not guilty on C o u nt 1; Guilty on C o u nt 2 as an accessory after the fact; Alternatively: Guilty of theft; Not guilty on C o u nt 3; Not guilty on C o u nt 4. [13.6] Ismael: Not guilty on C o u nt 1; Guilty on C o u nt 2 as an accomplice; Alternatively: Guilty as an accessory after the fact; Alternatively: Guilty of theft; Not guilty on C o u nt 3; Not guilty on C o u nt 4. [13.7] Vincent: Not guilty on C o u nt 1; Not guilty on C o u nt 2 b ut guilty of t he alternative crime of theft; Not guilty on C o u nt 3; Not guilty on C o u nt 4. [13.8] Mike: Guilty on C o u nt 1 as an accomplice; Guilty on C o u nt 2 as a co-perpetrator; Guilty on C o u nt 3 as a co-perpetrator; Guilty on C o u nt 4 as co-perpetrator. [14] The evidence a d d u c ed on behalf of t he State shows, inter alia, t h at on November 16, 2 0 0 0, at a b o ut 2 0 h 0 0, Detective Sergeant R W Nangolo (D/Sgt) of t he Serious Crime Unit of the Namibian Police, while on s t a n d by duty, observed a Volkswagen Golf car, with registration no. N113228W p a r k ed in front of Nandos R e s t a u r a nt (Nandos), I n d e p e n d e n ce Avenue, Windhoek. The Golf car h ad three o c c u p a n ts w h om the witness came to k n ow as J a m e s, B r a n d on a nd Ismael. J a m es a nd Ismael alighted from the car a nd w e nt into Nandos. [15] SOME RELEVANT GENERAL LEGAL PRINCIPLES APPLICABLE TO THIS CASE [15.1] Onus of proof [15.1.1] It is elementary t h at the o n us of proof in our criminal justice system rests u p on t he State to establish its case against each a c c u s ed beyond a reasonable doubt. In S v Ngunovandu 1996 NR 306 (HC), Steyn, J. expressed himself in these t e r m s, at 317G-318B: "Of course anything in life is possible and extraordinary events do occur. However, the criminal justice system and the administration of criminal justice would be in serious jeopardy if absolute certainty were to be the required criterion for a conviction. Denning J, as he then was, in the judgment in Miller v Minster of Pensions [1947] 2 All ER 372 at 373 in a well-known passage, says the following: 'Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.' A similar dictum is to be found in a j u d g m e nt of the S o u th African Court of Appeal in S v Glegg 1973 (1) SA 34 (A). An excerpt from t he English h e a d n o te at 34H r e a ds as follows: The phrase "reasonable doubt" in the phrase "proof beyond reasonable doubt" cannot be precisely defined but it can well be said that it is a doubt which exists because of probabilities or possibilities which can be regarded as reasonable on the ground of generally accepted human knowledge and experience. Proof beyond reasonable doubt cannot be put on the same level as proof beyond the slightest doubt, because the onus of adducing proof as high as that would in practice lead to defeating the ends of criminal justice.' " [15.1.2] An in S v Van Wyk 1993 NR 4 26 (SC), t he S u p r e me C o u rt (per Ackermann, AJA, with Becker, CJ., a nd Mahomed, AJA. [as he t h en was] concurring) m a de t he following observations at 438F-439A: "It is convenient to cite here the following passages from the judgment in S v Sauls and Others 1981 (3) SA 172 (A) at 182G et seg which were quoted in the judgment of the Court a quo: The State is, however, not obliged to indulge in conjecture and find an answer to every possible inference which ingenuity may suggest any more than the Court is called on to seek speculative explanations for conduct which on the face of it is incriminating ... A passage in a minority judgment given by Malan JA in R v Malambo 1957 (4) SA 727 (A) at 738 is apposite. I may add that two paragraphs in this passage were cited with approval by Rumpff JA in S v Rama 1966 (2) SA 395 (A) at 401: In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.'" [15.1.3] An a c c u s ed person, however, h as no obligation to prove his innocence. The S u p r e me Court of Appeal in the case of S v V 2 0 00 (1) SACR 4 53 succinctly p ut it t h us at 455a-c: "It is trite that there is no obligation upon an accused person, where the State bears the onus, 'to convince the court'. If his version is reasonably possibly true he is entitied to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused's version is reasonably possibly true but whether one subjectively believes him is not the test. As pointed out in many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused's evidence may be true." [15.2] CIRCUMSTANTIAL EVIDENCE C o u r ts normally consider i n d e p e n d e nt items of c i r c u m s t a n t i al evidence a nd their cumulative effect. In R v De Villiers 1944 AD 4 9 3, the Appellate Division said at 5 08 (per Davis, AJA with Watermeyer, CJ, Tindall, JA, Centliver, JA, a nd F e e t h a m, JA, concurring): "As stated by Best, Evidence (5th ed ...) 'Not to speak of greater numbers; circumstantial evidence - though each taken by itself weigh but as a feather - join them together, you will find them pressing on the delinquent with the weight of a millstone ... It is of the utmost w r q w r t n n rp tn h e nr in m i nH t h a t; w h e re a number of independent circumstances point to the same conclusion the probability of the justiness of that conclusion is not the sum of the simple probabilities of circumstances but is the compound result of them.' ... The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn." See: also R v Blom 1939 AD 188 at 198; S v Hotel Onduri (Pty) Ltd and Another 1993 NR 78 at 82I-J - 83A-C. [15.3] SINGLE WITNESS In t e r ms of section 208 of Act 51 of 1977, an a c c u s ed m ay be convicted of an offence on t he evidence of any single competent witness provided t he court, after weighing the evidence of t he single witness, is satisfied t h at the t r u th h as been told. A c a se in point is S v Sauls and Others 1983 (3) SA 172 (AD) where t he Appellate Division held as follows, at 180E-G: "There is no rule of t h u m b, test or formula to apply w h en it comes to a consideration of the credibility of t he single witness (see: t he r e m a r ks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial j u d ge will weigh his evidence, will consider its m e r i ts a nd demerits a n d, having done so, will decide w h e t h er it is t r u s t w o r t hy a nd whether, despite t he fact t h at there are shortcomings or defects or contradictions in the testimony, he is satisfied t h at t he t r u th h as been told. The cautionary rule referred to by De Villiers, JP in 1932 may be a guide to a right decision b ut it does n ot m e an 'that the appeal m u st succeed if any criticism, however slender, of t he witness' evidence were well founded.' Per Schreiner, JA, in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569. It h as been said more t h an once t h at the exercise of caution m u st n ot be allowed to displace the exercise of c o m m on sense." [15.4] ACCESSORY AFTER THE FACT Section 2 57 of Act 51 of 1977 provides that: "If the evidence in criminal proceedings does not prove the commission of the offence charged but proves that the accused is guilty as an accessory after that offence or any other offence which he may be convicted on the offence charged, the accused may be found guilty as an accessory after that offence." A person is an accessory after t he fact to t he commission of t he crime if, after t he completion of t he crime, h e / s he unlawfully a nd intentionally engages in c o n d u ct intended to enable the p e r p e t r a t or or the accomplice in t he crime to evade liability for h i s / h er crime, or to facilitate s u ch person's liability. In S v De Villiers 1992 NR 3 6 3, this Court expressed itself in t h e se t e r ms at 370A-E (per O'Linn, J, with Teek, J [as he t h en was] concurring): "In the case of R v Nkau Majara 1954 AC 235 (PC), the Privy Council, in a case which came on appeal from Basutoland and fell to be decided under the Roman-Dutch common law as applied in the Cape of Good Hope, decided that: The term "accessory after the fact" as in criminal law does not, under the law of South Africa - the Roman-Dutch common law - bear a meaning identical with that which it has under the English law. To constitute a person an accessory after the fact in South Africa it is sufficient to establish that assistance was given to the principal offender in circumstances from which it would appear that the giver associated himself with, in the broad sense of that word, the offence committed, and Roman-Dutch law makes no distinction for this purpose between giving assistance by remaining inactive and refraining from doing something, and giving assistance by doing something. The kind of impassivity, when it occurs after the commission of an offence by another, which has for its objective the giving of assistance to that other to escape, is under the law of South Africa punishable as the offence of being an accessory after the fact.' With humble respect I accept this quotation from the headnote of that case as correctly stating our law. It is of course clear from the details of that case that it is not merely impassivity in the case of failing to report a crime to the proper authorities that amounts to an offence. It is that failure, coupled with the other circumstances of accused's conduct, which constitutes such association with the crime that thereby material assistance is rendered to the principal offender after the completion of the offence." See: also S v Velumurugen and Another 1985 (2) SA 4 37 (D) at 446I-J -447A; Jonas Kadila and Others 2 0 0 1, Case No. SA 5 / 2 0 00 (unreported j u d g e m e nt of t he S u p r e me Court). [15.5] COMMON PURPOSE The doctrine of c o m m on purpose provides t h at where two or more p e r s o ns agree to commit a crime or to actively associate in a joint unlawful enterprise, each will be responsible for specific criminal c o n d u ct committed by one of their n u m b er which falls within their common design. Liability arises from their "common purpose" to commit the crime. See: S v Safatsa and Others 1988 (1) SA 868 at 897D; S v Mgedezi 1989 (1) SA 6 87 (A) at 7 0 5 D -J - 706A; S v Khumalo 1991 (4) SA 310(A) at 315G-I. On a charge of having committed a "consequence crime", it is not n e c e s s a ry to establish precisely which m e m b er of the c o m m on p u r p o se b r o u g ht a b o ut t he c o n s e q u e n c e, provided t h at it is established t h at one of the group c a u s ed this result. [15.6] THEFT It is trite law t h at theft is a continuing crime. By this is m e a nt that: "[T]he theft continues as along as the stolen property is in the possession of the thief or of some person who was a party to the theft or of some person acting on behalf of or even, possibly, in the interests of the original thief or party to the theft." See: Per Tindall, J., in R v Attia 1937 TPD 102 at 106; R v Von Elling 1945 AD 2 34 at 240. "Someone (X) who amino furandi a s s i s ts t he thief after the original contrectatio is a thief a nd not merely an accessory after the fact if at the time of his a s s i s t a n ce the crime still continues (viz if t he property is still in the p o s s e s s i on of t he thief or of someone on his behalf). If the crime still continues, t he thief by h is continuing control is effecting a p r e s e nt contrectatio a nd will in future effect further contrectationes". See: South African Criminal Law a nd Proeeduce, Vol. II, C o m m on Law Crimes, Milton, 3rd Ed. at 6 3 1. In S v Velumurugen and Another 1985 (2) SA 4 3 7, it w as held at 4 4 6 I - 4 6 7D that: "Since theft is a 'continuing crime' in the sense that it continues to be committed as long as the thief, his agent or party to the theft is in possession of the stolen property, one who assists such a person after the original taking but while the theft 'continues' usually qualifies as a perpetrator and not merely as an accessory after the fact." And in S v Nakale 1994 NR 264 (HC) Strydom, JP (as he t h en was) a nd F r a n k, J, observed at 265A, that: "As theft is a continuing offence, there is no s u ch thing as an accessory after the fact to the theft". A person, who does w h at would for a n o t h er crime result in s u ch a person being an accessory after t he fact, will be guilty of the crime of theft. W h at is articulated in t he S o u th African Criminal Law a nd Procedure, Vol. II, C o m m on Law Crimes, Milton, 3rd Ed. at 6 30 is, in my view, apposite: "A person whose conduct amounts to the crime of receiving stolen property commits theft in nearly every case. By 'receiving' the property he effects a contrectatio of it, and the mere fact that the thief has already effected an initial contrectatio does not matter. The receiver is a thief on an application of the definition of theft, quite apart from the fact that this conclusion may perhaps also be justified by the 'continuing crime' doctrine. The only time that a 'receiver' is not also a thief is where he lacks animus furandi." [16] I n ow t u rn to consider t he evidence against a nd for each a c c u s ed in t he light of t he preceding general legal principles. [17] James [17.1] The evidence against J a m es is, inter alia, t h at he is a S o u th African citizen w h o se h o me is located in Soweto, J o h a n n e s b u r g. On October 2 9, 2 0 0 0, he left S o u th Africa t h r o u gh J o h a n n e s b u rg Airport on flight No. SA 0 7 0, b o u nd for Namibia a nd t h at on arrival at Hosea Kutako Airport, he w as g r a n t ed a 9 0- day visitor's entry permit. He w as s u b s e q u e n t ly b r o u g ht by Mike to s t ay with h im a nd Vincent at Falazza's residence. [17.2] On November 1 1, 2 0 0 0, J a m es bought a Motorola cell-phone in Windhoek for which he obtained a pre-paid No. 081 2 47 8 8 5 1. [17.3] On November 16, 2 0 0 0, at a b o ut 2 0 h 0 0, D / S gt Nangolo of t he Serious Crime Unit of the Namibian Police, who w as on s t a n d by duty, observed a VW Golf car with registration No. N113228W, parked in front of N a n d os in I n d e p e n d e n ce Avenue, Windhoek. He saw B r a n d on r e m a in in the vehicle a nd two other o c c u p a n ts (of the vehicle), namely, J a m es a nd Ismael, go into Nandos. [17.4] During the commission of t he second robbery, Kapira shot one of the a s s a i l a n ts in the a b d o m en with a PSS c o m p a ny 9 mm pistol. [17.5] The a s s a i l a n ts took N$5.3m from the Toyotta bakkie a nd drove off in the Nissan bakkie with the money, et cetera. [17.6.1] On November 17, 2 0 0 0, at a b o ut 0 7 h 3 0, B r a n d on telephonically contacted Dr LC Nghalipoh a nd told h im t h at a friend of his w as very ill a nd t h at he needed to be seen at h o m e. Dr Nghalipoh told B r a n d on t h at he s h o u ld bring his friend to the practice b ut B r a n d on responded t h at t he friend w as very ill, a d d i ng t h at the doctor s h o u ld go a nd relieve h im of pain. The doctor reiterated t h at t he patient should be b r o u g ht to his practice at 0 8 h 2 0; B r a n d on agreed. W h en B r a n d on later arrived at the doctor's practice, without his injured friend, he once again r e q u e s t ed the doctor to go a nd relieve t he p a t i e nt of p a in at h o m e. On the doctor a s k i ng Brandon w h at w as wrong with his friend, he r e s p o n d ed t h at he h ad been shot by a friend. [17.6.2] When t he doctor enquired a b o ut p a y m e nt for t he patient he w as required to a t t e nd to, B r a n d on replied t h at money w as not a problem, adding t h at they could even pay N$3,000.00 should t h at be needed. The doctor indicated t h at he would not go o ut to see the patient in t he a b s e n ce of a pre p a y m e n t. B r a n d on left the practice a nd r e t u r n ed within a few m i n u t es with a batch of N$50 notes. Thereafter, t he doctor and his secretary were led by B r a n d on to a h o u se in Khomasdal (which, as it t r a n s p i r e d, was No. 1709, Agnes Street) where the doctor found J a m e s. On examination, the doctor indicated t h at t he injury was quite serious a nd t h at the p a t i e nt (James) should be t a k en to a hospital or else he would die. B r a n d on a nd a n o t h er person insisted t h at he be treated there, b ut J a m es w as keen to be t a k en to hospital. J a m es allegedly told Dr Nghalipoh t h at he h ad been in pain for almost eight h o u r s. [17.6.3] S u b s e q u e n t l y, J a m es w as t r a n s p o r t ed to the R o m an Catholic Hospital in Windhoek where he w as admitted a nd given medical attention. On admission, he gave his cell-phone n u m b er as well as t h at of Mike to t he hospital authorities. [17.6.4] On November 20, 2 0 0 0, X-rays were t a k en which, on t he testimony of Dr Nadine Agnew, showed t h at there w as a bullet p r e s e nt in J a m e s' body. [17.6.5] On examination of the X-rays, W a r r a nt Officer Frederick J o h a n n es Vilonel (a ballistics expert) came to the conclusion t h at t he bullet in J a m e s' body w as a 9 mm projectile. [17.6.6] It is Mr Small's s u b m i s s i on t h at a positive DNA m a t ch was m a de between J a m e s' blood a nd a sample of blood collected by D / S gt Shikufa from the steering wheel of S c h u t t 's Nissan bakkie which h ad been u s ed to perpetrate the second robbery. [17.6.7] J a m e s' version is, inter alia, t h at on November 16, 2 0 0 0, he w as invited to a p a r ty by Cheeks at h o u se n u m b er 1709, Agnes Street, in Khomasdal; t h at he r e m a i n ed at t h at h o u se from 18h00 up to 2 1 h 0 0, d u r i ng which period a c o u s in of his a nd two girls u s ed his cell-phone. At 2 1 h 0 0, he a nd others w e nt to Kalahari S a n ds Hotel a nd later to the Country Club where they remained up to 0 0 h 50 on November 17, 2 0 0 0. From there, they w e nt to his girlfriend's h o u se in Eros a nd s u b s e q u e n t ly his cousin took h im b a ck to C h e e k s' h o u se in K h o m a s d al at 0 2 h 3 0, arriving there at 0 2 h 4 5. After he h ad h ad a b a t h, he s t a r t ed calling p e r s o ns in S o u th Africa. No explanation is given why s u ch calls were m a de so early in the day! [17.6.8] Cheeks allegedly returned h o me at 0 6 h 00 - 0 6 h l0 on November 17, 2 0 0 0, a nd allegedly s h ot J a m es accidentally. Thereafter, C h e e ks w e nt o ut b ut later r e t u r n ed with B r a n d o n. Subsequently, J a m es was seen by Dr Nghalipoh. He t h en went to t he R o m an Catholic Hospital, by taxi, for t r e a t m e n t. He was later arrested by t he Namibian Police. He denies having b e en t a k en to the hospital by B r a n d o n. [17.6.9] J a m e s' w i t n e s s, Ashley Warner, testified t h at he a nd J a m es were in Eros during t he early h o u rs of November 17, 2 0 0 0. [17.6.10] Mr C h r i s t i a ns s u b m i ts t h at it is c o m m on c a u se t h at J a m es h ad cell p h o ne No. 081 2 47 8 8 51 at the time of t he second robbery. He goes on to say t h at the position of t he person who u s ed J a m e s' cell-phone at t he time of t he second robbery is indicated as E r o s p a rk which corroborates J a m e s' evidence a nd t h at of Ashley W a r n er t h at they were in E r o s p a rk during t he time of t he second robbery. He c o n t e n ds t h at the defence evidence of alibi as well as the defence evidence showing the c i r c u m s t a n c es u n d er which J a m es w as s h ot should be accepted as reasonably possibly true; a nd t h at the C o u rt s h o u ld t h us give the benefit of d o u bt to J a m es a nd t h us acquit him. [17.6.11] Mr Small, however, argues t h at t he defence evidence in r e b u t t al of t he State's evidence is false a nd should be rejected as s u c h. He s u b m i ts t h at some of t he evidence against J a m es a nd his co-accused is direct while some of it is circumstantial. As regards c i r c u m s t a n t i al evidence, Mr Small c o n t e n ds t h at it can, w h en p ut together, be compelling. [18] On a proper evaluation of the evidence against a nd for J a m e s, t he following facts emerge. [18.1] On October 2 9, 2 0 0 0, J a m es arrived in Windhoek a nd within a b o ut three days of his arrival, Ismael (Accused 9) rented h o u se No. 1709, Agnes Street in Khomasdal. [18.2] He s u b s e q u e n t ly joined Mike (Accused 11) a nd Vincent (Accused 10) as they all stayed together at Falazza's h o u se in Windhoek. [18.3] On November 16, 2 0 0 0, at a b o ut 2 0 h 0 0, D / S gt Nangolo observed J a m es a nd Ismael emerge from Ismael's VW Golf car with registration No. N113228W wherein B r a n d on (accused 7) remained; this w as at Nandos in I n d e p e n d e n ce Avenue, Windhoek. [18.4] At a b o ut 2 2 h 45 on November 16, 2 0 0 0, the first robbery took place at S c h u t t 's residence in Klein Windhoek d u r i ng which the a s s a i l a n ts got away with S c h u t t 's Nissan bakkie with registration No. N12701SH. [18.5] Shortly after OlhOO on November 17, 2 0 0 0, S c h u t t 's Nissan bakkie w as u s ed to facilitate the commission of the second robbery during which one of the r o b b e rs w as shot by Kapira, the c r e w m an who h ad been travelling with MacDonald in the PSS u n m a r k ed security Toyota bakkie on a mission to t r a n s p o rt N$5.3 million to Ondangwa. [18.6] On November 17, 2 0 0 0, D / S gt Shikufa collected a blood s a m p le from the steering wheel of S c h u t t 's Nissan bakkie which positively m a t c h ed t he blood sample t a k en from J a m e s. The expert evidence shows t h at t h e re is only one in 14 trillion c h a n ce t h at J a m es is not t he depositor of the blood found in S c h u t t 's Nissan bakkie. [18.7] In t he m o r n i ng of November 17, B r a n d on telephoned Dr Nghalipoh a nd a s k ed t he latter to give medical attention to J a m es at h o m e. [18.8] Dr Nghalipoh w as s u b s e q u e n t ly led to h o u se No. 1709 Agnes Street, Khomasdal, the very h o u se t h at w as being rented by Ismael, where he found J a m es with a serious a b d o m en injury. J a m es told Dr Nghalipoh t h at he h ad been in pain for almost eight h o u r s. [18.9] The cell p h o ne u s ed by B r a n d on to call Dr Nghalipoh bore Mike's cell p h o ne n u m b e r, b ut B r a n d on claimed t h at it belonged to Cheeks w ho w as allegedly u s i ng h o u se No. 1709 Agnes Street. [18.10] B r a n d on gave as r e a s on for requesting Dr Nghalipoh to treat J a m es at h o me t h at he w as apprehensive a b o ut J a m e s' t r e a t m e nt elsewhere b e c a u se t he latter w as not in possession of (the requisite) immigration p a p e r s. On the contrary, however, J a m es h ad been given the 90-day entry visa on arrival at Hosea Kutako Airport on October 2 9, 2000. [18.11] When J a m e s 's X-rays were examined, it w as revealed t h at he still h ad a 9 mm projectile in his a b d o m e n. I will later r e t u rn to J a m e s. [19] The next a c c u s ed for consideration is MacDonald (Accused 2). It is c o m m on c a u se t h at he w as t he driver of the PSS Toyota bakkie which w as u s ed for t he p u r p o se of t r a n s p o r t i ng t he N$5,3 million from Windhoek to O n d a n g w a. [19.1] It is not in d i s p u te t h at MacDonald a nd Kapira were both security employees of t he PSS; a nd t h at they commenced their j o u r n ey to O n d a n g wa at 0 1 h 20 on November 17, 2 0 0 0. MacDonald h ad with h im cell-phone No. 0 81 2 45 5 8 5 0. [19.2.1] The evidence against MacDonald, according to Kapira's testimony, is, inter alia, t h at when the Nissan bakkie b u m p ed against the Toyota bakkie which MacDonald was driving, the latter said t h at p e r s o ns (in the Nissan bakkie) were going to rob t h e m. When Kapira a s k ed h im why he h ad said so, MacDonald m a de no r e s p o n s e. Kapira t h en suggested t h at they should m a ke a U-Turn a nd quickly drive back; however, MacDonald yet again m a de no reply. [19.2.2] Kapira u s ed MacDonald's cell-phone a nd called h is boss, J o h a n n e s, S nr , a b o ut t he (sudden) t u rn of events. [19.2.3] The a s s a i l a n ts d e m a n d ed money a nd keys. [19.2.4] MacDonald t h en said: "the keys are taken". When Kapira queried how (the keys h ad been taken), MacDonald kept quiet. Kapira denies having ever h a n d ed t he keys a nd the cell-phone to the a s s a i l a n t s. A p e r s on w as on t he top of t he Toyota bakkie (MacDonald confirms this) a nd t h at p e r s on fired a s h ot d o w n w a r ds u p on t he roof of the Toyota bakkie. [19.2.5] W h en Kapira a s k ed MacDonald for a pistol, the latter m a de no response, w h e r e u p on Kapira found t he pistol u n d er MacDonald's seat. He denied having been h a n d ed the firearm by MacDonald. [19.2.6] W h en Kapira tried to shoot, MacDonald told h im n ot to do so as he (MacDonald) would be able to identify t he robbers! [19.2.7] A cell-phone print-out of MacDonald's cell-phone shows seven incoming calls from a cell-phone bearing J a m e s 's cell-phone n u m b er on November 16, 2 0 0 0, after 2 0 h 0 0. He is evasive w h en confronted with calls m a de to h is cell-phone from fixed n u m b e rs 271 2 6 6, 2 15 749 a nd 262 3 4 0, especially t h at t he said n u m b e rs also contacted cell p h o ne n u m b e rs of Mike a nd Hendrick. [19.2.8] In a bail application, MacDonald said t h at he h ad h e a rd one of the robbers s c r e am words to the effect t h at he h ad been s h ot or injured. B ut before this Court he denies having said t h a t. [19.2.9] D u r i ng t he bail application, MacDonald stated t h at t he r o b b e rs h ad d e m a n d ed safe keys. Before me, however, h is testimony is t h at it w as Kapira t h at d e m a n d ed t he safe keys; he c a n n ot say w h e t h er t he r o b b e rs a s k ed for the safe keys. He is noticeably evasive. [19.2.10] In h is defence, MacDonald testifies, inter alia, t h at he did not participate either directly or indirectly in a ny of the robberies, et cetera. [19.2.11] In h is a t t a ck on the prosecution evidence of MTC c o m p u t er cell phone p r i n t - o u t s, Mr M u r o r ua s u b m i ts on behalf of MacDonald a nd t he other clients of his (Accused 7, 8 8s 9) t h at s u ch evidence is fraught with m a ny lacunae to be a useful aid to the a r g u m e nt advanced by t he State, to wit, t h at the cell-phone p r i n t - o ut evidence shows proof of interconnectivity between MacDonald's cell-phone on the one h a nd a nd J a m e s' cell-phone on t he other a nd that, consequently, Macdonald w as not party to the conspiracy in respect of the second robbery. He goes on to say t h at the oral evidence of two witnesses from the MTC, i.e. Messrs Riedel a nd van Wyk, is inadmissible as s u ch evidence is not only b a s ed on inadmissible MTC c o m p u t er p r i n t - o u ts b ut also the true a u t h or a nd preparer of the said p r i n t - o u ts is the MTC IT (Information Technology) D e p a r t m e n t. In s u p p o rt of h is a r g u m e n t, Mr M u r o r ua cites the case of S v Harper & Another 1981 (1) SA 88 (AD) at 91G-H a nd 94A. Mike (Accused 11) j o i ns issue with Mr M u r o r ua in this regard. [20] In casu, it is noteworthy to m e n t i on t h at there w a s, in reality, no resistance to t he admissibility of t he c o m p u t er print-outs. [20.1] The admissibility of computer p r i n t - o ut evidence in criminal c a s es falls within the purview of section 221(1) of t he Act 51 of 1977. [20.2] In S v Harper & Another, supra, t he crucial question t h at a r o se w as w h e t h er or not c o m p u t er print-outs are admissible as d o c u m e n t s. In considering t he m e a n i ng of the t e rm 'document', as defined in section 2 2 1, supra, Milne, J, m a de t he following r e m a r ks at 95E-H, 96D-E a nd 97C-H: "The extended definition of document is clearly not wide enough to cover a computer, at any rate where the operations carried out by it are more than the mere storage or recording of information... The wording of the section ... is entirely appropriate to the production of microfilm as evidence since the microfilm itself can be produced. Furthermore, microfilm is a means by which information is stored, and recorded ... The computer print-outs consist of typed words and figures and would, prima facie, clearly fall within the ordinary meaning of the word 'document'. It seems to me, therefore, that it is correct to interpret the word 'document' in its ordinary grammatical sense, and that once one does so the computer print outs themselves are admissible in terms of section 221. Once that situation has been achieved, then it seems to me that the main thrust of the attack upon the admissibility of those documents disappears. I, accordingly, hold that the documents objected to are admissible and the objection is overruled." [20.3] My u n d e r s t a n d i ng of the rationale in S v Harper & Another, supra, is t h at information obtained from c o m p u t er p r i n t - o u ts is, prima facie, admissible provided t he function of t he c o m p u t er w as purely passive in t h at it merely recorded or stored t he information. In other words, the recording or storing of s u ch information by the c o m p u t er should have been m e c h a n i c a l, t h at is, w i t h o ut the intervention of t he h u m an mind. [20.4] In casu, t he information on t he c o m p u t er print-outs w as recorded a nd stored without t he intervention of t he h u m an mind, I come to t he conclusion t h at those c o m p u t er p r i n t - o u ts are admissible in evidence. Consequently, t he objection to their admissibility is overruled. [21] One o u t s t a n d i ng i s s ue t h at n e e ds to be resolved in relation to MacDonald is the question of credibility to which I will r e t u rn later. [22] I now t u rn to consider t he evidence against a nd for Hendrick (Accused 3). [22.1] The prosecution case against Hendrick is t h at a fingerprint lifted from the d a s h b o a rd of S c h u t t 's Nissan bakkie, t he subject of the first robbery, which w as u s ed to facilitate the commission of the second robbery, m a t c h ed h is own fingerprint. [22.2] S c h u tt testifies t h at a sticker shown on p h o t o g r a ph 8 in Exhibit D h ad b e en on t he d a s h b o a rd of his Nissan bakkie for a long time; a nd t h at it w as still t h e re w h en t he a s s a i l a n ts relieved him of the vehicle during t he first robbery a nd after its recovery on t he 16 a nd 17 November, respectively. Indeed, the said sticker w as still in t he vehicle w h en S c h u tt gave evidence in t h is Court. [22.3] On November 17, 2 0 0 0, after the recovery of S c h u t t 's Nissan bakkie, D / S gt Shikufa took p h o t o g r a p hs of the vehicle a nd lifted a fingerprint from the sticker on t he d a s h b o a rd of t he vehicle. [22.4] Hendrick w as a r r e s t ed on December 20, 2 0 0 0, b ut he could n ot say where he w as during t he material time on November 16-17, 2 0 0 0. [22.5] His fingerprints were t a k en from him on December 20, 2 0 0 0, a nd on J a n u a ry 3 1, 2 0 0 1, allegedly b e c a u se his first set of fingerprints w as n ot clear enough. [22.6] Inspector Blaauw, a fingerprint expert, c o m p a r ed the fingerprint lifted from t he Nissan bakkie with those of Hendrick a nd found t h at b o th sets belonged to Hendrick. [22.7] Mr G M Coetzee, Hendrick's fingerprint expert witness, is of t he opinion t h at Hendrick's fingerprint w as on the folien. [22.8] On being asked w h e t h er he h ad a cell-phone (at all material times), Hendrick's r e s p o n se is t h at he took it for repair a nd t h at it got stolen. He does not deny in cross-examination t h at he previously u s ed a cell-phone No. 081 244 3 3 5 1. [22.9] On J a n u a ry 2 1, 2 0 0 1, a s t a r t er pack for cell-phone No. 081 244 3 3 51 w as found in Hendrick's h o u s e. [22.10] Exhibits Z4.1-Z4.9 show calls m a de from cell-phone No. 081 244 3 3 51 between November 13 a nd 20, 2 0 0 0. [22.11] From November 13, 2 0 0 0, at 12:43:20 up to November 16, 2 0 0 0, at 2 3 : 3 2 : 2 3, a cell-phone with serial No. 4 9 3 0 0 6 3 0 3 8 6 6 1 16 (Exhibit 17) w as u s ed with a sim card bearing No. 0 81 2 44 3 3 51 which is a t t r i b u t a b le to Hendrick. [22.12] On November 17, 2 0 0 0, t he sim card No. 0 81 2 44 3 3 51 was u s ed in a cell p h o ne with serial No. 4 48 8 3 54 14 32 79 610 (Exhibit 16) at 08:04:44 a nd 08:06:22. This cell-phone allegedly belonged to Mike. [22.13] Still on November 17, at 08:34:37, cell-phone with serial No. 49 3 0 0 6 3 0 3 8 6 6 1 16 (Exhibit 17) w as again u s ed with sim c a rd No. 081 244 3 3 51 (Hendrick's No.) until 19:02:05 on November 17, 2 0 0 0. [22.14] On November 18, 2 0 0 0, the sim card with No. 0 81 2 44 3 3 51 w as u s ed in a cell-phone with serial No. 5 6 7 8 7 4 7 8 7 4 9 8 7 4 12 until November 20, 2 0 0 0. [22.15] According to exhibit Z3.7-Z3.15, Mike allegedly u s ed mostly exhibit 16: a grey Motorola with serial No. 4 4 8 8 3 5 4 1 4 3 2 7 9 6 10 from November 13-18, 2 0 00 at 2 0 : 5 9 : 08 until he allegedly changed his sim card to exhibit 14: a silver Nokia 8 8 50 with serial No. 4 4 8 9 0 1 1 0 5 8 9 0 7 0 0. [22.16] On November 12, 2 0 0 0, a miss-call w as indicated from a fixed telephone No. 262 340 which a p p e a rs on the print-out of MacDonald. Further, on November 16, a cell-phone print-out of Hendrick registered incoming calls from the s a me fixed line telephone No. 262 340. The p r i n t o ut of MacDonald also reflects s u ch calls. [22.17] In addition, telephone c o n t a c ts as s h o wn on the p r i n t - o u ts of MacDonald a nd Hendrick were m a de on November 16 from 18:31:28 to 23:32:23 a nd on November 17 at 08:34:37. [22.18] Hendrick's version before this court is, inter alia, a denial of the State's incriminating evidence. He alleges t h at he is u n a b le to r e m e m b er where he w as during the evening of November 16 a nd the early m o r n i ng of November 17, 2000. [22.18.1] He k n ew J a m es a nd Mike, for instance, as he u s ed to see t h em in the c o m p a ny of Falazza. [22.18.2] He explains t h at his fingerprint found in t he Nissan bakkie got there w h en he h ad an innocent lift from one Temba. At one stage he suggests t h at the fingerprint w as planted in t he Nissan bakkie. At a n o t h er stage, he suggests (through h is expert witness) t h at it w as not found in the Nissan bakkie b ut t h at it w as lifted from a n o t h er sticker! [22.18.3] He denies having ever p o s s e s s ed the blue Nokia cell-phone (exhibit 17) a nd alleges t h at he knows n o t h i ng a b o ut the Tango S t a r t er Pack with No. 081 2 44 3 3 51 which was found in a c u p b o a rd in his h o u s e. [22.18.4] He testifies t h at he c a n n ot r e m e m b er ever owning a cell-phone like exhibit 17 (the blue Nokia). F u r t h e r, he s t a t es t h at he c a n n ot be positive a b o ut that. Lastly, he says t h at he never owned a Nokia cell-phone. [22.18.5] Hendrick's prevarication w h en giving evidence a b o ut the fingerprint found in S c h u t t 's Nissan bakkie a nd w h e t h er he u s ed or owned a Nokia cell phone is c o n s p i c u o u s. I find t h at his version c a n n ot reasonably possibly be true; it is in fact false. I am satisfied t h at the State's witnesses are credible; t h at the State h as established t h at the fingerprint lifted from S c h u t t 's Nissan bakkie belongs to Hendrick a nd t h at it h ad not been left there innocently. Further, I am satisfied t h at the Tango S t a r t er Pack bearing t he No. 0 81 244 3 3 5 1, which w as found in his h o u s e, belonged to him; t h at he h ad a cell-phone at all material times; a nd t h at he m a de c o m m on c a u se in t he m a t t e r. [23] This brings me to a consideration of the case against a nd for B r a n d on (Accused 7). [23.1] The evidence t h at implicates B r a n d on is contained in t he proceedings before t h is C o u rt as well as in the proceedings during bail applications in Cape Town a nd in this Court (before a n o t h er judge). [23.2] Prior to, d u r i ng the commission of the two robberies in question, a nd p r e s u m a b ly sometime thereafter, B r a n d on was employed in t he Ministry of Health a nd Social Services as an A s s i s t a nt Personnel Officer. His office m a i n t a i ns an a t t e n d a n ce register which h as to be signed in a nd o ut by employees. Sick leave a nd vacation leave have to be notified to a relevant superior. [23.3] B r a n d on did not sign the a t t e n d a n ce register a nd he w as a b s e nt from official d u ty for the weekdays: October 23-27; October 30-November 0 3; November 6-10; November 13-17; a nd on November 20, 2 0 0 0. He did, however, mention to one co-worker, Shikimeni, t h at he was not feeling well a nd t h at he w as going to see a doctor, adding t h at he would report for d u ty later t h at day; however, he never did. It is alleged t h at he informed b o th Shikimeni a nd a n o t h er co-worker - van Wyk - t h at he w as going to see a doctor; t h at he was booked off by t he doctor a nd t h at he would send someone to bring to the Ministry a (medical) certificate. No s u ch p e r s on was ever s e nt a nd no medical certificate w as furnished by him. [23.4] On November 16, 2 0 0 0, at a b o ut 2 0 h 0 0, B r a n d on w a s, as previously indicated, seen by D / S gt Nangolo at Nandos, Independence Avenue, Windhoek, in the c o m p a ny of J a m es a nd Ismael. He remained in w h at we now k n ow as Ismael's VW Golf car with registration No. N113228W, while his other c o m p a n i o ns went into Nandos. [23.5] On November 17, 2 0 0 0, at a b o ut 0 7 h 3 0, B r a n d on telephonically contacted Dr Nghalipoh a nd reported to h im t h at he h ad a very sick friend a nd t h at he would like t he doctor to see t he patient at home. The rest of the evidence in t h is regard is essentially a narrative of w h at w as s t a t ed w h en the evidence against, a nd for, J a m es w as reviewed, save to say t h at B r a n d on allegedly told t he doctor's secretary not to talk to anyone a b o ut t he patient's (James') injury. In t he event of t he Court accepting this narrative, why would B r a n d on caution t he doctor's secretary to refrain from revealing t he patient's injury if there w as nothing to hide? [23.6] On November 18, B r a n d on contacted Dr Nghalipoh by telephone to get a progress report on h is p a t i e nt friend. The doctor spoke to h im b ut m a de no m e n t i on a b o ut police intervention in the matter. [23.7] In the evening of November 18, B r a n d on again contacted Dr Nghalipoh a nd expressed fury at him, accusing him of having reported t he m a t t er to t he police. He told the doctor w o r ds to the effect t h at he (the doctor) h ad betrayed t h e m. The question t h at at once springs to mind is w h e t h er B r a n d o n 's reaction w as innocent or w h e t h er he h a d, at t h at early stage, a clear picture of some information or event a b o ut which he felt passionately protective! [23.8] Subsequently, Dr Nghalipoh's secretary, who h ad a c c o m p a n i ed the doctor w h en the latter a t t e n d ed to the patient at his "home", pointed o ut to Const. Hilundua, h o u se No. 1709, Agnes Street, Khomasdal, Windhoek, as being the h o u se where t he doctor h ad a t t e n d ed to t he patient. T h at w as the very h o u se t h at Ismael h ad rented from (Ms) B e z u i d e n h o ut at t he beginning of November 2000. During t h at m o n t h, B e z u i d e n h o ut visited the h o u se a nd there found Ismael in t he c o m p a ny of a friend of his, to wit, n o ne other t h an Brandon! [23.9] Upon B e z u i d e n h o ut visiting the rented h o u se at the end of November 2 0 0 0, she found no one there a nd was t h us compelled to break into h er own house! [23.10] When Dr Nghalipoh w as called to a t t e nd to J a m es in t he m o r n i ng of November 17, it w as Mike's cell-phone No. 081 2 45 7929 t h at w as u s ed by- B r a n d o n, although t he latter would like t he C o u rt to believe t h at t h at cell p h o ne belonged to s o m e o ne by the n a me of Cheeks! [23.11] On November 20, 2 0 0 0, at 0 0 h 0 8, Ismael a nd Mike arrived in S o u th Africa at Vioolsdrift, travelling in Ismael's VW Golf car registration No. N113228W. On t he s a me date, at OOhlO, B r a n d on a nd Arvo also arrived in S o u th Africa at Vioolsdrift, travelling in Mike's BMW car registration No. FH2377GP. The explanation offered by B r a n d o n, Ismael a nd Mike t h at t he Golf car h ad developed a clutch problem a nd t h at Mike w as test-driving it a c r o ss t he border s o u n ds extremely s p u r i o us in t he c i r c u m s t a n c es of this case: why did t he test-driving (if there was any) have to be t h r o u gh the international border? [23.12] As already shown, it is common c a u se t h at at a b o ut 0 4 h 30 on November 2 2, 2 0 0 0, Mike, Vincent, B r a n d o n, Arvo a nd Ismael were all a p p r e h e n d ed by t he S o u th African Police at h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. [23.13] On the occasion of the arrest of Mike, Vincent, B r a n d o n, Arvo a nd Ismael, the S o u th African Police found in t he h o u se (of their arrest) t he s um of N$909,250.00 in a black suitcase, reportedly identified by Vincent as his. W h en Vincent w as a s k ed as to who the owner of the money was, he allegedly could not, or did not, provide an answer. The money w as in a plastic bag (within t he suitcase) which w as in b a t c h es of N$50.00 notes. The b ag w as locked with a small padlock. Inspector Engelbrecht a s k ed Vincent a nd Mike for a key. Mike said something in Xhosa or Zulu to Vincent a nd thereafter he h a n d ed over a b u n ch of keys from a drawer in t he bedroom table. On being a s k ed which key could u n l o ck t he padlock, Mike allegedly indicated a key to u se w h e r e u p on Inspector Engelbrecht unlocked t he padlock, opened t he bag a nd discovered t h at it w as full of N$50.00 notes. [23.14.] B r a n d on w as aware, prior to the l a u n c h i ng of the bail application in Cape Town, t h at the Namibian Police were interested in money t h at h ad been t he subject of robbery in Namibia. [23.15] B r a n d o n 's version, inter alia, is t h at he w as not in any way involved in the commission of the crimes as alleged. [23.15.1] Although he alleges t h at he was booked off by Dr S a u n d e r s on from October 2 3, 2 0 0 0, the doctor's testimony, however, is t h at he saw B r a n d on on October 24, not on October 2 3, a nd t h at he h ad no record of having booked h im off. If at all he booked h im off, it would, at most, have been for a week as the patient's complaint merely related to an ankle sprain. Further, B r a n d on alleges t h at he r e t u r n ed to the doctor who booked h im off again. B ut the doctor h as no records to indicate t h at the patient ever came b a ck to him. T h u s, B r a n d on lacks medical s u p p o rt to show t h at he w as booked off, as alleged, for a prolonged period in excess of one week; a nd indeed, no leave whatsoever w as g r a n t ed to h im by his superior. It is quite clear t h at B r a n d o n 's story a b o ut his a b s e n ce from his place of work on the alleged medical ground is n o t h i ng less t h an a figment of his imagination. [23.15.2] B r a n d on alleges t h at C h e e ks gave him his cell-phone n u m b e r; t h at C h e e ks w as originally from S o u th Africa b ut t h at he could not tell w h e t h er t he latter w as in S o u th Africa or in Namibia at the time of giving evidence in Court. F u r t h e r, he claims t h at he telephonically contacted t he doctor in C h e e k s' p r e s e n ce a nd t h at he u s ed C h e e k s' cell-phone! [23.15.3] B r a n d on denies t h at he introduced C h e e ks to Ismael which is c o n t r a ry to Ismael's testimony d u r i ng the bail application in Cape Town. [23.15.4] B r a n d on s t a t es t h at he was with Ismael, Falazza a nd D u c ks at N a n d o s. During the High Court bail application, however, B r a n d on testified t h at he h ad been with Ismael only. Obviously, B r a n d o n 's varying versions are a manifestation t h at he is lying t h r o u gh his teeth. It is clear t h at B r a n d on played a crucial role in facilitating t he t r e a t m e nt of J a m es a nd t h at he e n d e a v o u r ed to conceal t he c i r c u m s t a n c es in which J a m es h ad s u s t a i n ed his serious a b d o m i n al injury. [23.15.5] On a proper evaluation of t he evidence in its entirety, in so far as it relates to B r a n d o n, it is evident t h at t he case against h im is cogent. I accept as truthful t he State's version t h at B r a n d on told Dr Nghalipoh's secretary to refrain from telling anyone a b o ut J a m e s' injury; t h at he a c c u s ed Dr Nghalipoh of having "betrayed" t h em as w as evidenced by t he police intervention in J a m e s' case; t h at on his own version in his Cape Town bail application, he took J a m es to t he R o m an Catholic Hospital; t h at he owned a cell-phone at all material times; inter alia, t h at he h ad told lies about, inter alia, having been on sick leave; a nd t h at I am satisfied t h at the so called C h e e ks is a fictitious character. B r a n d o n 's cell-phone print-out t e n ds to show t h at he m u st have been well aware of w h at h ad h a p p e n e d. It s e e ms to me t h at t he m a in r e a s on for m a k i ng h is trip to Cape Town w as possibly to go a nd have a fair s h a re in the ill-gotten loot. It is little wonder t h at he was found a nd a r r e s t ed in the h o u se where p a rt of t he money stolen in the second robbery w as discovered. I find t h at he m a de c o m m on c a u se in t he matter; t h at his version c a n n ot reasonably possibly be t r u e; t h at it is false a n d, therefore, it is rejected as s u c h. [24.] I will now briefly examine t he evidence against a nd for Arvo (Accused 8). As in the c a se of Brandon, the evidence t h at implicates Arvo is contained in the trial proceedings of this Court as well as during the bail applications in Cape Town a nd in t h is Court before (a different judge). [24.1] Arvo confirms t h at he travelled from Windhoek to Cape Town in Ismael's Golf's car together with B r a n d o n. He w as found a nd a r r e s t ed in h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town, together with Mike, Vincent, B r a n d on a nd Ismael. It is c o m m on c a u se t h at t he s um of N $ 9 0 9 , 2 5 0 . 00 w as also allegedly found in t h at h o u se a nd t h at this was the subject of t he second robbery. [24.2] He s t a t es t h at he only m et Mike in Cape Town. B ut in t he HighCourt bail application, he testified t h at Mike a nd Ismael h ad driven t h r o u gh the (South African) border u s i ng the VW Golf car; a nd t h at he a nd B r a n d on h ad done the s a m e, u s i ng t he BMW car. [24.3] It is alleged t h at Arvo m a de c o m m on c a u se with the lies of B r a n d on a nd Ismael in t he Cape Town bail application by tailoring his evidence in an attempt to corroborate the false versions of B r a n d o n, Ismael a nd Vincent. [24.4] Arvo denies having in any way been involved in the commission of the crimes charged. [24.5] Mr M u r o r ua s u b m i ts on behalf of Arvo t h at his client k n o ws B r a n d on a nd Ismael b ut t h at he h as no knowledge of the r e m a i n d er of t he accused. However, Arvo's own evidence in t he bail applications s h o ws t h at Mike a nd Ismael entered S o u th Africa t h r o u gh t he S o u th African-Namibian border, travelling in t he Golf c ar while B r a n d on a nd Arvo did so u s i ng t he BMW car. [24.6] Mr M u r o r ua further s u b m i ts t h at in the c i r c u m s t a n c es of this case, there is no c o n d u ct on t he p a rt of Arvo t h at a t t r a c ts criminal liability. It s e e ms to me t h at t h e re is merit in Mr M u r o r u a 's s u b m i s s i on b e c a u se I consider t h at the evidence a g a i n st Arvo is not sufficiently cogent to w a r r a nt a conviction, either for being an accessory after t he fact or for theft, as urged by t he State. I arrive at this conclusion because I am not p e r s u a d ed t h at Arvo performed some act or acts i n t e n d ed to assist the principal offenders to escape conviction as opposed to safeguarding his own interests. His association with B r a n d o n, Ismael (with w h om he h ad travelled together from Windhoek to Cape Town) a nd with Mike a nd Vincent (with w h om he w as found, together with B r a n d on a nd Ismael at h o u se No. 75 Teresa Street, C a m ps Bay) raises a serious suspicion against h im b ut suspicions alone, no m a t t er how strong they mighyt be, are not enough to found a conviction. [25] The next a c c u s ed to be considered is Ismael (Accused 9). As previously shown, Ismael r e n t ed h o u se No. 1709 Agnes Street, Khomasdal, from Bezuidenhout with effect from the beginning of November 2 0 0 0. It w as at this h o u se t h at Dr Nghalipoh attended to t he seriously w o u n d ed J a m e s, having been s u m m o n ed t h e re by Brandon. [25.1] When B e z u i d e n h o ut visited the r e n t ed h o u se during t he m o n th of November 2 0 0 0, s he found Ismael there in t he c o m p a ny of his friend, B r a n d o n. [25.2] On visiting t he h o u se at the end of November, Bezuidenhout found no one there a nd h ad to b r e ak into it in order to gain entry. [25.3] On November 16, 2 0 0 0, at a r o u nd 2 0 h 0 0, D / S gt Nangolo saw Ismael's VW Golf car, registration No. N113228W, p a r k ed in front of N a n d os in I n d e p e n d e n ce Avenue, Windhoek. The Detective Sergeant observed J a m es a nd Ismael emerge from t he c ar a nd go into N a n d o s, leaving B r a n d on alone in the car. [25.4] At 0 0 h 08 on November 20, 2000, Ismael a nd Mike entered S o u th Africa at Vioolsdrigt travelling in Ismael's Golf car, registration No. Nl 13228W. And at OOhlO on the s a me day, B r a n d on as well as Arvo entered South Africa t h r o u gh t he s a me border post, u s i ng Mike's BMW car registration No. FH2377GP. Ismael testifies t h at prior to his arrival in Cape Town a nd to meeting Mike, he did not know him. When questioned t h at he travelled with Mike, his a n s w er is a denial. But b o th a n s w e rs are clearly false; in t he case of the second answer, Ismael did in fact travel with Mike at the border between Namibia a nd S o u th Africa, albeit for a s h o rt distance only. This revelation r e n d e rs the first answer, too, false. When he w as a s k ed a b o ut calls m a de between him a nd Mike prior to their arrival in Cape Town, he refused to r e s p o n d. [25.5] It is c o m m on c a u se t h at at a b o ut 0 4 h 30 on November 2 2, 2 0 0 0, Mike Vincent, B r a n d o n, Arvo a nd Ismael were all a r r e s t ed at h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. [25.6] On t he s a me day, t he S o u th African Police discovered N $ 9 0 9 , 2 5 0 . 00 in the h o u se where the five a c c u s ed aforesaid were found too a nd arrested. This money w as in the bag which w as itself contained in t he black suitcase t h at w as allegedly identified by Vincent as his. The money w as in b a t c h es of N$50.00 notes a nd formed p a rt of t he money which, I am satisfied, w as t he subject of the second robbery. [25.7] On being asked w h e t h er he knows C h e e ks (to w h om B r a n d on referred to), his a n s w er is t h at he does not know him personally; t h at he only k n o ws h im by sight, adding t h at he w as introduced to C h e e ks by B r a n d o n. [25.8] When asked during t he bail application in the High Court, where he w as d u r i ng t he evenings of November 16 a nd 17, 2 0 0 0, he opted not to say where he w a s. [25.9] On November 16, 2 0 0 0, calls from Ismael's cell-phone were m a de to the cell-phone of Mike four times between 14:32:10 a nd 2 3 : 0 3 : 2 3. On November 17, he seemingly called Mike's cell-phone eleven times between 11:59:26 a nd 18:01:53. On the s a me day, Ismael apparently called Mike's cell-phone seven times between 18:19:13 a nd 2 1 : 4 2 : 0 6. And on November 19, it a p p e a rs called Mike's cell-phone six times between 17:10:44 a nd 17:16:33. In t he light of t he evidence before the Court, coupled with the m a ny cell-phone calls t h at Ismael m a de to Mike, not only on November 17, b ut also on November 16, 2 0 0 0, n e a r er t he occurrence of t he second robbery, would it be u n r e a s o n a b le to infer t h at s u ch calls were possibly not innocent? [25.10] Like Brandon, Ismael denies having in any been involved in a ny of the crimes charged. [25.11] He alleges t h at h is car developed a clutch problem, which, as previously indicated, a nd for t he r e a s on given, s o u n ds extremely s p u r i o u s. [25.12] It is clear to me t h at Ismael's evidence is replete with lies. [25.13] Ismael was seen by D / S gt Nangolo at Nandos, I n d e p e n d e n ce Avenue, Windhoek, where his Golf car w as parked in the c o m p a ny of J a m es a nd B r a n d on prior to the commission of both robberies. [25.14) It is not in dispute t h at Ismael rented the facility at h o u se No. 1709 Agnes Street, Khomasdal, where J a m es received his initial t r e a t m e n t. In addition, it is evident t h at Ismael played a critical role in t he s c h e me of things. The timing of the acquisition of t he rented facility almost coincided with the arrival in Windhoek of J a m es on October 29, 2 0 0 0, Mike having previously arrived on t he 13th of t h at s a me m o n t h. Was the acquisition of t h at facility a nd J a m e s' p r e s e n ce there a coincidence? [25.15) Ismael, B r a n d on a nd Arvo all left Windhoek for S o u th Africa on November 19, 2 0 0 0, barely two d a ys after the commission of t he second robbery in t h is case. They all travelled in Ismael's Golf car. W as their travelling together a coincidence? [25.16] It so h a p p e n ed t h at on t he s a me day of the d e p a r t u re of Ismael a nd his c o m p a n i o n s, Mike, too, left Windhoek for Cape Town, driving h is BMW car. Was this occurrence by c h a n c e? [25.17] W as it a mere coincidence t h at Ismael a nd his c o m p a n i o ns arrived at the S o u th African border - Namibian border at a b o ut the s a me time as Mike? [25.18] Was it by c h a n ce t h at Ismael a nd Mike crossed t he S o u th African - Namibian border together in Ismael's Golf car with Mike b e h i nd the steering wheel? [25.19] W as is by coincidence t h at Ismael, Brandon, Arvo, Vincent a nd Mike all ended up together at h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town? [25.20] Was it by c h a n ce t h at t he S o u th African Police raided h o u se No. 75 Teresa Street, C a m ps Bay, a nd therein found not only t he five a c c u s ed referred to in p a r a g r a ph 2 5 . 1 9, supra, b ut also t he s um of N $ 9 0 9 , 2 5 0 . 00 in N$50.00 notes which w as p a rt of t he N$5.3 million t h at h ad been stolen d u r i ng t he second robbery? [25.21] Were t he telephonic c o n t a c ts a m o ng the a c c u s e d, particularly during the material times a nd in which Mike a nd J a m es a p p e ar to be d o m i n a n t, a mere c h a n c e? To this a nd the preceding questions, my a n s w e rs are in the negative. However, the conclusions I am going to d r aw from my a n s w e rs will not negatively affect Arvo for t he r e a s o ns previously given. [25.22] In considering circumstantial evidence, the observations of t he Full Bench of this Court in S v Hotel Onduri (Pty) Ltd and Another 1993 NR 78 (HC) at 82I-J-83A-C are apposite: "In R v Sibanda 1963 (4) SA 182 (SR) Beadle CJ the then Chief Justice of Rhodesia in an appeal said at 188F-G: It seems to me that this is one of those cases where, although each individual item of evidence is quite insufficient to convict the appellant, the cumulative effect of all this evidence proves the appellant's guilt beyond doubt. I approach this case, therefore as was done in the case of R v de Villiers 1944 AD 493 at 508, where the Appellate Division approved the following statement of Best on Evidence: "Not to speak of greater numbers; even two articles of circumstantial evidence - though each taken by itself weigh but as a feather, join them together, you will find them pressing on the delinquent with the weight of millstone — It is of the utmost importance to bear in mind that, where a number of independent circumstances point to the same conclusion the probability of the justness of that conclusion is not the sum of the simple probabilities of those circumstances, but is the compound result of them.'" This approach was also approved in the case of R v G 1956 (2) PH H266 (A), where the Court said: The cumulative effect of a number of pointers converging from different angles was very much greater than the mere total of their weight taken in isolation.' " [25.23] Bearing t he c o n t e n ts of the preceding p a r a g r a ph in mind, I am of t he view t h at w h en t he various items of evidence in casu are p ut together, t he cumulative effect thereof brings me to t he conclusion t h at Ismael is linked to the second robbery. I find t h at he m a de c o m m on c a u se in the matter; t h at t he s u b s t a n ce of h is evidence c a n n ot reasonably possibly be t r u e; a nd t h at it is false. [26] As regards Vincent (Accused 10), he arrived together with Mike at Hosea Kutako Airport from S o u th Africa, via J o h a n n e s b u r g, on October 13, 2 0 0 0. He was thereafter t a k en to Falazza's h o u se in Windhoek where he a nd Mike stayed; a nd w h e re J a m es subsequently joined t h e m. [26.1] During his sojourn in Windhoek, he u s ed a cell-phone n u m b er 0 81 2 46 4 4 2 7. [26.2] On November 17, 2 0 0 0, he informed Falazza, following receipt of a call from Mike to t he effect t h at there w as trouble, t h at J a m es h ad b e en s h ot a nd t h at they h ad t a k en t he money a nd were gone. [26.3] On November 19, 2 0 0 0, Vincent arrived at Cape Town Airport on a flight from Windhoek. [26.4] On t he s a me day, Brandon, Arvo a nd Ismael as well as Mike left Windhoek in two vehicles on their way to S o u th Africa. [26.5] Vincent allegedly saw Mike a nd Ismael removing money from t he p a n e ls of Ismael's car a nd later saw Mike counting the money in a room. [26.6] On November 2 2, 2 0 0 0, at a b o ut 0 4 h 3 0, Vincent a nd Mike together with Brandon, Arvo a nd Ismael were all found a nd arrested by the S o u th African Police in h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. [26.7] On t he s a me occasion, some five days after the commission of t he second robbery, t he S o u th African Police found N$909,250.00 in t he said h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town, in a black suitcase identified by Vincent as his. In the suitcase, t he S o u th African Police found a plastic bag, which, as it transpired, contained a b a t ch of N$50.00 n o t e s. Upon being a s k ed as to w h om t he money belonged, Vincent allegedly could not, or did not, provide an answer. The money w as found on a top shelf of a c u p b o a rd in t he h o u s e. Since t he bag was locked with a small padlock, Inspector Engelbrecht asked Vincent a nd Mike for a key. After Mike h ad s p o k en to Vincent in Xhosa or Zulu, he (Mike) allegedly h a n d ed over a b u n ch of keys t a k en from a drawer in t he bedside table. On request, Mike allegedly indicated which key to u se in t he b u n d l e. Engelbrecht unlocked the bag, opened it a nd checked inside before h a n d i ng the bag full of N$50.00 notes to v an der Walt. The money w as identified by Ms Blignaut of BON as being p a rt of t he money stolen during the second robbery. I find t h at t he S o u th African Police witnesses are truthful and, therefore, t h at their evidence is credible. [26.8] During the trial, Vincent voluntarily m a de a s t a t e m e nt to C / I n s p e c t or Becker on a video tape which was later t r a n s c r i b ed a nd produced as an exhibit. In t h at statement, he endeavoured to exculpate himself a nd to essentially incriminate Mike. [26.9] Print-outs of calls m a de from t he cell-phone of Mike to t h at of Vincent show t h at on November 13, 2000, three calls were made; on November 17,five calls were m a de between 04:25:05 a nd 21:31:10; a nd on November 19, three calls were m a d e. [26.10] Vincent denies a ny involvement in t he commission of t he crimes charged. [27] Mr Small s u b m i ts t h at Vincent should, on his own version, be convicted of t he alternative crime of theft in respect of the second count. [28] On t he other h a n d, Mr Neves, Vincent's legal representative, u r g es the Court to acquit his client on t he ground t h at the ingredients of theft have not been proved. [29] Mr Neves s u b m i ts t h at the alleged crime of theft w as committed outside the jurisdiction of this Court a nd that, as s u c h, Vincent c a n n ot be convicted by this Court of the crime. [30] Attention is here d r a wn to the case of S v Mwinga and Others 1995 NR 166 (SC) where the following observations were m a de at 171I-J-172A-B: "In my view the Namibian Courts, faced with an 'international law friendly' Constitution (Art. 144) and with its already 'extensive'jurisdiction in common law, should not base its jurisdiction on 'definitional obsessions and technical formulations' but should stay in step with the other common law Commonwealth countries such as England and Canada. Thus in order to determine whether the High Court has jurisdiction in a trans-national crime or offence, all that is necessary is that a significant portion of the activities constituting that offence took place in Namibia and that no reasonable objection thereto can be raised in international comity." [31] In casu, it is c o m m on c a u se t h at the second robbery with aggravating c i r c u m s t a n c es w as committed in Namibia. The crime of theft is framed in t he alternative. As previously indicated, it is trite law t h at theft is a c o n t i n u i ng crime. See: S v Kruger en Andere 1989 (1) SA 7 85 at 787G-H. In the c a se of S v Nakcde, supra, Strydon JP (as he t h en was) a nd F r a n k, J r e m a r k ed at 265A: "As theft is a continuing offence there is no such thing as an accessory after the fact to theft." T h u s, a person who does w h at would for a n o t h er crime result in s u ch a p e r s on being an accessory after t he fact, will be guilty of t he crime of theft. See: also S vKumbe 1962 (3) SA 197 (N) at 199. [32] It is clear t h at Vincent's own version of his exculpation c a n n ot r e a s o n a b ly possibly be true a nd I find t h at it is in fact false. The discovery of t he stolen money in his suitcase a nd his lies in the Cape Town bail applications especially lies in an endeavour to shield Mike, go to show t h at h is intention in t he m a t t er w as not innocent. [33] I will now consider the case against a nd for Mike (Accused 11). The prosecution evidence s h o ws t h at on October 6, 2 0 0 0, he let Namibia by r o ad to r e t u rn to South Africa. He came back to Namibia by air with Vincent on October 13, 2000. Both of t h em stayed at Falazza's residence in Windhoek where they were later joined by J a m e s. It was Mike t h at h ad m a de possible the n e c e s s a ry a c c o m m o d a t i on a r r a n g e m e n ts for Vincent a nd J a m es to s t ay at Falazza's residence. Mike u s ed cell-phone No. 081 2 45 7 9 29 whilst in Namibia. [33.1] On W e d n e s d ay 17, 2 0 0 0, four calls were m a de from Mike's cell-phone to t h at of J a m es at 00:59:22; 01:02:14; 01:12:07 a nd 01:24:19. [33.2] On November 16, 2 0 0 0, five calls were m a de from Mike's cell-phone to t h at of Hendrdick from 17:24:29 to 23:45:17; on the following day, seven more calls were m a de to t h at of Hendrdick from 0 8 : 5 4 : 15 to 16:31:06; a nd on November 18, four calls were m a de to t h at of Hendrick from 15:08:53 to 2 0 : 4 6 : 0 1. [33.3] On November 16, four calls were m a de from Mike's cell-phone to t h at of Ismael from 14:32:10 to 2 3 : 0 3 : 2 3; on t he following day, eleven calls were m a de to t h at of Ismael from 11:59:26 to 18:01:53; a nd on November 18, seven calls were m a de to Ismael's cell-phone from 18:19:13 to 21:42:06. [34] It is not in dispute t h at at a b o ut 0 4 h 30 on November 22, Mike, Vincent, B r a n d o n, Arvo a nd Ismael were all found a nd a r r e s t ed in h o u se No. 75 Teresa Street, C a m ps Bay, Cape Town. On t h at occasion, the S o u th African Police h ad raided t he said h o u s e. Also found in t h at h o u se at a b o ut t h at time w as money a m o u n t i ng to N$909,250.00 in b a t c h es of N$50.00 notes which w as contained in t he black suitcase identified by Vincent as his. When asked where a key to a padlock securing the bag t h at contained the money w a s, Mike spoke to Vincent a nd s u b s e q u e n t ly h a n d ed over a b u n ch of keys to t he police. On being a s k ed which key could be u s ed to u n l o ck the padlock, Mike indicated t he key, w h e r e u p on t he bag w as opened a nd found to contain t he money aforesaid. [35] Mike h as given testimony at length in an endeavour to exculpate himself. He denies having t a k en p a rt in t he comission of any of the crimes charged. As already indicated, he s u b m i ts t h at the c o m p u t er p r i n t - o u ts are unreliable a nd s h o u ld t h us not be u s ed in evidence. However, this i s s ue h as already been decided a nd it is here u n n e c e s s a ry to say anything more a b o ut it. It suffices to state t h at t he evidence of t he cell-phone print-outs s p e a ks for itself. [36] I accept as true the State's version of w h at t r a n s p i r ed at the material time at h o u se No. 75 Teresa Street, C a m ps Bay, in particular, the c o n d u ct of Mike a nd Vincent at the critical time. I find t h at Mike m a de common c a u se in t he matter; t h at his exculpatory version c a n n ot reasonably possibly be t r u e; a nd t h at it is false. [37] In my view, Mike a nd J a m es a p p e ar to have played a leadership role in the m a t t e r. On the evidence, it is a p p a r e nt t h at Mike w as possibly t he m a s t e r m i nd in this case. Seemingly, however, it c a n n ot conclusively be said t h at Mike w as physically p r e s e nt w h en the commission of t he second robbery took place on a c c o u nt of t he fact t h at the cell-phone print-out evidence s h o ws t h at calls were m a de between J a m es a nd Mike at a b o ut t he commission of the said robbery. Had they been together at the time, no s u ch calls could necessarily have been m a d e. B ut t h is does not m e an t h at Mike w as not involved in t he planning of t he commission of the second robbery in all the c i r c u m s t a n c es of the case. [38] Reverting to J a m e s, is it a coincidence t h at he a nd Hendrick are (forensically) linked to S c h u t t 's Nissan bakkie? I do not t h i nk so for I am satisfied, as already shown, t h at t he blood sample t h at w as left on t he Nissan bakkie belonged to J a m e s; a nd t h at t he said sample h ad n ot been deposited there innocently. I am further satisfied t h at the fingerprint found on t he d a s h b o a rd of the Nissan bakkie w as t h at of Hendrick; a nd t h at it h ad not been left there in innocent c i r c u m s t a n c e s. Moreover, I am satisfied t h at the first robbery w as committed for the p u r p o se of facilitating the commission of the second one. I have no difficulty in finding t h at the story as to how J a m es came to s u s t a in h is abdominal g u n s h ot w o u nd is a cock - a nd - bull story; t h at Cheeks is a fictitious character; t h at J a m es is placed at t he s c e n es of t he two robberies by virtue of the blood sample taken from S c h u t t 's Nissan bakkie which m a t c h ed his, as already indicated; t h at he is the robber t h at shot at Kapira, a nd at w h om Kapira shot, in t he shoot-out d u r i ng t he commission of the second robbery; t h at he still carries within his body t he 9 mm projectile; t h at B r a n d on w as insistent t h at J a m es be treated at h o me by Dr Nghalipoh in an a t t e m pt to conceal the c i r c u m s t a n c es in which he h ad s u s t a i n ed his injury; a nd t h at J a m e s' story of having b e en accidentally s h ot is a concoction, a n d, therefore, not credible. I find t h at t he evidence of Dr Nghalipoh, his secretary, D / S gt Shikufa, D / S gt Nangolo , the S o u th African Police witnesses a nd other State w i t n e s s es t h at testified in t he m a t t er is r a t h er credible; t h at J a m es m a de common c a u se in the matter; t h at h is version c a n n ot r e a s o n a b ly possibly be true; a n d, therefore, it is rejected as false. [39] R e t u r n i ng to MacDonald, t he critical evidence a g a i n st h im comes from Kapira a nd from his (MacDonald's) cell-phone p r i n t - o u ts which to c o n n e c ts him with t he commission of the second robbery. [40] Mr M u r o r ua raises t he i s s ue t h at Kapira is a single witness. B ut evidence of a single witness suffices to convict an a c c u s ed p e r s on if the witness is credible a nd t he court is satisfied t h at the t r u th h as b e en told. See: (S v Sauls 1981 (3) 172 (A) 180). I accept t he evidence of Kapira as I find t h at he is a credible w i t n e ss a nd t h at the t r u th h as been told. On the other h a n d, I find MacDonald's evidence to be false. [41] As r e g a r d s, Hendrick I am here satisfied t h at t he fingerprint t h at w as lifted from S c h u t t 's Nissan bakkie w as his; t h at it h ad not been left there in innocent c i r c u m s t a n c e s; t h at he w as involved in both robberies; t h at he m a de common c a u se in t he matter; a n d, therefore, his evidence is rejected as false. [42] B r a n d on played a crucial role in facilitating the t r e a t m e nt of J a m es a nd endeavouring to conceal the c i r c u m s t a n c es in which t he former h ad s u s t a i n ed his serious a b d o m e n al injury. [43] Bearing in m i nd all the evidence before me a nd my findings, it is evident t h at the unfolding p a n o r a ma in t h is m a t t er d e m o n s t r a t es t h at t he p l a n n i ng of the two robberies with aggravating c i r c u m s t a n c es h ad entailed a great deal of care a nd ingenuity. It is to the credit of the Namibian a nd t he S o u th African Police who succeeded in putting together t he pieces of w h at a p p e a r ed to be a jigsaw puzzle. [44] In t he light of w h at I have said in this j u d g m e n t, I come to the folowing conclusions: James H Ningise (Accused 1): C o u nt 1: Guilty as a perpetrator; C o u nt 2: Guilty as a perpetrator; C o u nt 3: Guilty as a perpetrator; C o u nt 4: Guilty as a perpetrator. He is convicted on all c o u n t s. MacDonald Kambonde (Accused 2): C o u nt 1: Not Guilty; C o u nt 2: Guilty as an accomplice; C o u nt 3: Not Guilty; C o u nt 4: Not Guilty. He is a c q u i t t ed on C o u n ts 1, 3 a nd 4 b ut convicted on C o u nt 2 as an accomplice. Hendrick H. Tsibande (Accused 3): C o u nt 1: Guilty as a perpetrator; C o u nt 2: Guilty as a perpetrator; C o u nt 3: Guilty as a perpetrator; C o u nt 4: Guilty as a perpetrator. He is convicted on all Counts. Brandon D. O. Similo (Accused 7): C o u nt 1: Not Guilty; C o u nt 2: Guilty as an accessory after t he fact; C o u nt 3: Not Guilty; C o u nt 4: Not Guilty. He is acquitted on C o u n ts 1, 3 a nd 4 b ut convicted on C o u nt 2 as an accessory after t he fact. Arvo T. N. Haipinge (Accused 8): C o u nt 1: Not guilty; C o u nt 2: Not Guilty; C o u nt 3: Not Guilty; C o u nt 4: Not Guilty. He is acquitted on all C o u n t s. Ismael Oaeb (Accused 9); C o u nt 1: Not Guilty; C o u nt 2: Guilty as an accomplice; C o u nt 3: Not Guilty; C o u nt 4: Not Guilty. He is acquitted on C o u n ts 1, 3 a nd 4 b ut convicted on C o u nt 2 as an accomplice. Vincent N. Mabuza (Accused 10); C o u nt 1: Not Guilty; C o u nt 2: Not Guilty on the m a in c o u nt b ut Guilty of t he alternate C o u nt of theft; C o u nt 3: Not Guilty; C o u nt 4: Not Guilty. He is acquitted on C o u n ts 1, 3 a nd 4 b ut convicted on the alternative c o u nt of theft. Mike S. M. S. Apani (Accused 11); C o u nt 1: Guilty as a perpetrator; C o u nt 2: Guilty as an accomplice; C o u nt 3: Guilty as a perpetrator; C o u nt 4: Guilty as a perpetrator. He is convicted on all c o u n ts as indicated above. SILUNGWE, AJ