s v julius (cc 63-2007) [2016] nahcmd 234 (17 august 2016)ejustice.moj.na/high...
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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case No: CC 63/2007
In the matter between
THE STATE
versus
JAN JULIUS FIRST ACCUSEDGEORGE JAMBEINGE SECOND ACCUSED
Neutral citation: S v Julius (CC 63-2007) [2016] NAHCMD 234 (17 August 2016)
Coram: SHIVUTE, J
Heard: 18 – 27 January 2010, 1 – 8 February 2010, 30 November 2011, 10 – 27 April 2012, 21 January 2013 – 8 February 2013, 28 March 2013, 4 June 2013, 19 – 29 November 2013, 11 December 2014, 9 – 11 June 2015, 20 – 21 January 2016, 18 February 2016 and 19 May 2016.
Delivered: 17 August 2016
REPORTABLE
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Fly notes: Criminal law – Accomplice – Robbery with aggravating circumstances
– Accused 1 deviating from his normal route – stopping a vehicle carrying cash in
transit – Disembarking from vehicle – Talking privately to a hitchhiker – loading the
hitchhiker in the vehicle through the driver’s door – hitch hiker attacking accused 1’s
colleague the security guard – Accused 1 disarming the security guard – Accused 1
failing to assist the security guard when attacked by the hitch hiker – Accused 1
stopping where the getaway vehicle was and assisting to offload and load the cash
into getaway vehicle – Company rules prohibiting accused 1 to give lifts – Accused 1
intentionally and unlawfully engaging in conduct furthering the commission of a crime
by perpetrators – Accused 1 guilty as an accomplice to robbery with aggravating
circumstances.
Criminal law – Doctrine of recent possession – Money stolen during the robbery on
29 December 2004 – Accused 2 in possession of the money since 30 December
2004. Police finding the money in possession of accused 2 on 8 January 2005 –
Money linked to the robbery - Accused failed to give an explanation that could be
reasonable true how he came to possess the money- Accused 2 found in recent
possession of the money that was stolen – Court entitled to draw an inference that
accused 2 stole the money - Accused 2 guilty of theft.
ORDER
(a) Accused 1 – Guilty of robbery with aggravating circumstances of N$3 710 000
(three million seven hundred and ten thousand) as an accomplice.
(b) Accused 2 – Guilty of theft of N$1 515 000 (one million five hundred and
fifteen thousand)
JUDGMENT
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SHIVUTE J:
[1] Each accused person pleaded not guilty to an indictment containing one
count of robbery with aggravating circumstances as defined in s1 of Act 51 of 1977
( the Act) The allegations are that on 29 December 2004 at or near Brakwater Road,
Windhoek in the district of Windhoek the accused did unlawfully and with intention of
forcing him into submissions, assault Stefanus Iyambo by pointing a pistol at him
unlawfully with the intention to steal, took from him N$ 5 735 000 cash, the property
of or in lawful possession of the said Stefanus Iyambo and or Fidelity Cash
Management Services Group, Namibia and that aggravating circumstances as
defined in s1 of Act 51 of 1977 were present in that the accused and/or the
accomplice were, before or after or during the commission of the crime, in
possession of a dangerous weapon, namely a pistol. The accused persons acted
with a common purpose before, during and after the incident.
[2] The accused persons were charged with four others. However, the four were
discharged in terms of s174 of the Act.
[3] I will now proceed with the summary of the facts of the case. The State called
several witnesses. However, I will only confine myself to the evidence that concerns
the two accused persons.
[4] Stefanus Iyambo testified that on 29 December 2004 he was employed by
Fidelity Cash Management Group as a crewman. He was responsible for entering
the money bags or boxes into the book if he had to take the money to the bank. On
the above mentioned date, he and accused 1 who was also employed by Fidelity
Cash Management Group in his capacity as a security officer as well as a driver,
were given money to deliver to several banks namely: First National Bank, Standard
Bank, Bank Windhoek and Nedbank in the Erongo Region. Accused 1 deviated from
the normal route and picked up a hitchhiker at the traffic lights near Katutura State
Hospital. Before accused 1 picked up a hitch hiker, he first made a phone call.
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[5] Accused 1 opened for the hitchhiker from the inside as the door to the truck
does not open from the outside. Accused 1 got out of the vehicle and talked to the
hitchhiker. Accused 1 told the witness that they were going to give a lift to the
hitchhiker. Iyambo reminded accused 1 that it was prohibited to give lifts to
hitchhikers as they had cash in transit. The hitchhiker was given a lift by accused 1
and he sat between accused 1 and Iyambo. They drove for a distance up to
Brakwater near Nampower service station. The hitchhiker grabbed Iyambo on the
collar of his shirt and took out a firearm and ordered him not to move. Iyambo and
the hitchhiker fought. Whilst they were fighting, the hitchhiker was also giving
directions to accused 1 where he should drive to. Iyambo called accused 1 to assist
him but the latter did not do so.
[6] The witness (Iyambo) managed to hold the arm of the the hitchhiker that was
holding the firearm up. Iyambo also managed to get hold of his firearm but accused 1
told him not to shoot and took it from him. The witness opened the passenger door
and the hitchhiker kicked him and the witness fell from the car. Accused 1 went out
of the car but he was still on the driver’s side. When the witness fell from the car, the
hitchhiker followed him and kicked him again. The hitchhiker sprayed the witness
with pepper spray on the face. However, the witness was able to see with his right
eye. Whenever the witness wanted to move, the hitchhiker was stepping on him with
his shoes. The witness observed accused 1 opening the vehicle. The vehicle had
built – in safes and he opened them one by one and took out the money bags.
Although the witness did not see other people, he could hear movements of more
than one person on the other side of the vehicle.
[7] Whilst the witness was still lying on the ground being stepped on by the
hitchhiker, he saw accused 1 with another person. They went in front of the car. The
person took accused 1’s shirt and tied up accused 1 with his arms backwards. The
shirt used was accused 1’s uniform that he was wearing. It was removed from
accused 1. After accused 1 was tied up, he was placed on top of the witness. The
hitchhiker left the witness and the witness heard a sound of a motor vehicle being
driven away. The witness took his cell phone in order to phone people at the office
but accused 1 took the cell phone from the witness and instead spoke with people
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from the office. Before people from the office came, accused 1 allegedly told the
witness that they (accused1and Iyambo) would only stay in jail for three months.
Those men who robbed them would come and bail them out because they have big
lawyers. If those people bail them out, accused 1 would give the witness something.
Accused 1 further told the witness that the hitchhiker was his friend.
[8] Cornelius Johannes Janke testified that on the date in issue he was working
for Fidelity Cash Management Services Namibia as a manager when he received a
phone call from Eric van der Walt concerning this case. He drove to the scene. He
saw Stefanus Iyambo at the scene and some of the boxes that were carried in the
vehicle lying around the car. The witness asked Iyambo what happened and he said
he should ask the driver, accused 1. The witness stated that Iyambo was really
shaken as he was shaking his head as if he could not believe what happened. The
witness proceeded to talk to accused 1. Accused 1 informed him that they gave a lift
to a hitchhiker. The witness asked accused 1 how the robbers got into the vehicle
because they had a system on the vehicle where the keys to different safes were
locked in the vault itself with a special lock that was obtained from overseas and the
keys could not be duplicated in Namibia. Accused 1 informed him that they used a
bolt cutter to cut the lock. They looked for the lock but it was not seen. They also did
not see the bolt cutter. Accused 1 informed the witness that the hitchhiker held the
gun to the crewman’s head, and told him not to move. The people told accused 1 to
open the lock; he opened for the keys to the safe and told him (accused 1) to help
them offload the money that was in the boxes inside the vaults. Accused 1 said he
did not know the hitchhiker and he did not have time to look at the registration
number of the vehicle that was used as a get – away. In terms of the company
procedures, accused 1 was responsible for locking the safes or vaults.
[9] Accused 1 further told the witness that after the hitchhiker put the gun against
the crewman’s head, he told him to pull off the road. Where he stopped there was a
blue Toyota Corolla. Whilst still at the scene, Chief Inspector Sheehama and Warrant
Officer Scott arrived as well as Mr van der Walt and took over the investigations.
[10] The witness further testified that when they are given money to transport they
do not know how much money they are carrying. The amount of money is normally
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sealed in a container and the people from the security company who pick up the
money from the bank sign for the sealed container. However, the bank keeps record
of the amount of money given for delivery. The company paid N$ 1.7 million to the
bank.
[11] Kantema Frans, a Sergeant in the Namibian Police Force, testified that he
visited the scene of crime. He interviewed Iyambo as to what happened. Iyambo
informed him that they picked up a hitchhiker. Whilst they were driving, the hitchhiker
struggled with him. Whilst he was talking to Iyambo he observed tears coming from
his eyes and he was crying. Iyambo informed him that the hitchhiker sprayed him
with a pepper spray. Sergeant Kantema and Constable Heita recovered a pistol and
a cap at the scene. The witness identified a pistol and a cap in the photo plan. The
witness proceeded to testify that he was also informed that an R4 rifle was also
stolen during the robbery that belonged to the security company entrusted to
transport the money. It was further Constable Kantema’s testimony that he was
among the police officers who arrested accused 2 at a certain guest house on 6
January 2005. His vehicle was also taken to the police station. Accused 1 was
handed over to Chief Inspector Sheehama and Warrant Officer Scott.
[12] Warrant Officer Geoffrey Scott testified that when he arrived at the scene he
found Fidelity Guards Cash – in – transit vehicle in a stationery position. Iyambo and
accused 1 were also at the scene. He interviewed accused 1 as to what happened.
Accused 1 told him that he and Iyambo picked up a hitchhiker near Katutura
Hospital. Accused 1 further allegedly told him that it was common practice by Fidelity
guards to give lifts to hitchhikers in order to supplement the employees’ income.
Accused 1 was asked why he did not assist Iyambo and he said he was afraid to be
shot. The witness also testified that he observed accused 1 assaulting Chief
Inspector Sheehama. Accused 1 denied any involvement in the robbery. The witness
further testified that accused 2 took the police officers to House No. 5 Tauben Glen,
Hochland Park, where they found a white Toyota Corolla parked. According to
accused 2, the vehicle belonged to his relative. A green Cymot trunk was found with
a large amount of money that was in the boot of the car. The money was
confiscated, photographed and taken to Serious Crime Unit. The money was
wrapped in plastic bags belonging to the bank. The money was counted by the bank
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tellers and handed over to Mr Janke who was the representative of the bank.
Accused 2 was also present and he signed a certain form for the money to be
returned to the bank. The witness identified a disposal of stolen property form. The
document was handed in as Exhibit C.
[13] Eric van der Walt, by then an employee of Fidelity Guards Services, testified
that on 29 December 2004 at about 04h30, he went to the office to load two vehicles.
One of them was destined for Swakopmund and Walvis Bay whilst the other was
destined for Katima Mulilo. Accused 1 and Iyambo were destined for the coast. A key
was handed over to accused 1. After the vehicle was loaded, all the keys were
locked up in a small locker that is fitted on to the vehicle. Accused 1 and Iyambo
drove away and at about 06h15 the witness received a phone call from accused 1
who reported to him that they were robbed by a hitchhiker that they picked up along
the road on their way to the coast. Accused 1 informed him that all the money was
gone except the boxes that had coins.
[14] He phoned Sergeant Kantema and Mr Janke. The witness went together with
Sergeant Kantema to the scene at Brakwater where they found Mr Janke. When he
walked to the vehicle he saw that all the vaults were opened. The padlock was
missing from the little safe. He observed Iyambo who appeared to be dirty because
he was full of grass. Iyambo went to the witness and hugged him and he (Iyambo)
started to cry on his shoulders. The witness told Iyambo to calm down. Iyambo
informed Van Der Walt that accused 1 first made a phone call on their way to
Swakopmund, he deviated from the normal route and stopped at a stop at the traffic
lights near Katutura State Hospital. Accused 1 instructed Iyambo to open for the
hitchhiker but Iyambo refused. Thereafter, the hitchhiker went to the driver’s door,
accused 1 got out of the vehicle to enable the hitchhiker to get into the car in order to
take a seat between accused 1 and Iyambo. Near the turn off from Brakwater the
hitchhiker drew a pistol and instructed Iyambo to work together. Iyambo and the
hitchhiker wrestled.
[15] Iyambo tried to get the pistol from the hitchhiker and accused 1 told him to
cooperate and not to fight the hitchhiker. Accused 1 also said to Iyambo that if he
cooperates he would also get some money. Iyambo was pulled out of the vehicle
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and laid down the ground with his face down. Some people arrived in a blue vehicle.
He could not identify the people because he was lying with his face down. The
vehicle was opened and the people removed the money and left. When he was
asked about the pistol, he said his pistol was thrown away in the bush. That pistol
was found in the bush the same day. Accused 1’s rifle was also gone.
[16] Constable Elia Nangolo testified that he also visited the scene of crime on 29
December 2004. He was with Sergeant Dax and met Chief Inspector and Warrant
Officer Scott as well as Iyambo and accused 1 at the scene. According to the
witness, Iyambo appeared to be in pain and told him that he was sprayed with a
pepper spray. His further evidence is that accused 2 took the police to a certain
house where the money was recovered from a green trunk that was locked in the
boot of a car. The boot was opened from the back seat of the car. The trunk had a
padlock and accused 2 said that the key of the padlock was left in the car that was at
the police station. Accused 2 went with the police officers to fetch the key whilst the
witness remained at Hochland Park where the car was parked. When the trunk was
opened, the money was found. The witness identified the car and the trunk with the
money in a photo plan Exhibit F, photographs 1 – 17. Some money was also
recovered in the northern region from a certain Sunnyboy who is now deceased.
[17] Ms Clive Pegram, an administrator at First National Bank, testified that on 28
December 2004, she ordered money from Bank of Namibia in order to supply the
local branches. Among the branches to be supplied with the money were
Swakopmund, Karibib and Walvis Bay. She ordered three million seven hundred and
ten thousand Namibia Dollars ( N$3 710 000.) The money was delivered with a
plastic on. It was a silver plastic provided by Bank of Namibia. The money was
packed in bags and delivered to the security company. The plastic bags had serial
and seal numbers. People from Fidelity Guards Services signed for receiving the
money and they are supposed to transport the money to various branches. When
they deliver the money they must remove the strip and bring the bag in a big seal.
They keep record of the bags because the branches give orders of a specific amount
and specific denominations.
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[18] The witness further testified that she received a notification from Fidelity
Guard Services that there was a robbery in connection with the money. The witness
had made a list of the bags with serial numbers concerning the money received from
the bank. There were two bags for Karibib with the numbers 842473418 and
842473419 containing N$ 120 000 and N$ 70 000 respectively.
[19] The two bags destined for Karibib had a total amount of N$ 190 000 (one
hundred and ninety thousand). There were eight bags destined for Walvis Bay and
each had a serial number. The total amount destined for Swakopmund was N$ 1 520
000 (one million five hundred and twenty thousand). Apart from the above mentioned
bags there were twelve bags destined for Walvis Bay and each bag also had serial
numbers. The total amount of the money destined for Walvis Bay was N$ 2 000 000
(two million). The serial numbers of the bags are as listed in Exhibit G. The total
amount that was destined for Karibib, Swakopmund and Walvis Bay was N$ 3 710
000 (three million seven hundred and ten thousand) that FNB dispatched to its
branches. The witness further testified that Bank of Namibia also gave the bank
serial numbers of the bank notes that were in the bags. First National Bank
recovered all the money that was stolen.
[20] Warrant Officer Zachariah Amakali testified that he interviewed Mr. Iyambo
who informed him that accused 1 was a driver of the vehicle in which he was
travelling. Accused 1 stopped the vehicle and gave a lift to an unknown man who
came in through the driver’s door and sat between him and accused 1. When they
drove further, the hitchhiker started to wrestle with Iyambo and the vehicle was
stopped at Brakwater. The hitchhiker sprayed a pepper spray on Iyambo. A rifle and
money were removed from the vehicle. On 8 January 2005 the witness was called to
go to the office by Chief Inspector Sheehama. At the office he found Warrant Officer
Scott, Sergeant Nangolo and Chief Inspector Sheehama. Accused 2 took them to a
house in Hochland Park, number 5 in Tauben Glen. At that house there was a white
Honda vehicle with registration number N55047W. Accused 2 opened the vehicle,
went inside and pulled the back seat. One could not open the boot from outside.
Accused 2 opened the boot from the inside. In the boot there was a green metal box
that was locked with a padlock. There was no key for the padlock. The witness drove
with accused 2 to the police station and fetched the key from the vehicle that was
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confiscated from accused 2. Accused 2 got the key and when they went back to
Hochland Park, accused 2 opened the metal trunk.
[21] There was money inside the trunk. Members of Scene of Crime were called to
photograph the scene at house number 5, Tauben Glen. The box with money was
placed in Chief Inspector Sheehama’s custody. On 15 January 2005 he was
approached by one Sunnyboy Emvula who was accompanied by a legal practitioner.
They had money in their possession packed in bags that are used by the banks. The
money was taken to the bank to be counted and it was N$ 48 000 (forty eight
thousand). The money was handed over to Mr Janke of Fidelity Guards Services.
[22] Jacobs Otto testified that on 6 January 2006 he received a report from police
officer Mr Mbekele who was the head of the office in Karas Region. He informed him
that there was a robbery of N$ 5 700 000 (five million seven hundred thousand) and
that his service were needed to trace the money. Accused 1 who was the driver of
the vehicle was also to be transported to Keetmanshoop for interrogation. Accused 1
was taken to Keetmanshoop on 7 January 2005.
[23] Aune Namutuwa testified that her husband, the late Sunnyboy Emvula,
instructed her to hand over a box that was in the garage to one Helmut Uusiku.
Uusiku was in the company of a lot of people. They opened the safe and they found
money but she was not told how much it was. Her husband had also instructed her
to go to one Paulina Stephanus where she was given a blue carry bag. The following
day, the people who collected the safe or box that was in the garage also came and
collected the black bag she received. There was money in those bags. The witness
was again instructed by her husband to go to Omukondobolo village, where she was
given a plastic containing money by Mr Petrus Eelu. The money was N$ 80 500
(eighty thousand five hundred). This money was again given to the people who
collected the previous bags of money. Some of those people were policemen. The
money that was found in the safe was packed in bundles of hundred dollar notes and
fifty dollar notes. All the money she gave to those people was in bundles.
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[24] Petrus Isak testified that he was given money by Sunnyboy. It was
roundabout N$ 80 000 (eighty thousand). The money was later collected by
Sunnyboy’s wife.
[25] Helmut Shilomboleni Uusiku confirmed that he was instructed by Sunnyboy to
get money from the safe that was inside the garage and gave it to a certain man.
The safe was opened at Sunnyboy’s home. It was in N$100 and N$50 dollar notes.
He further testified that on 10 January 2005 he also accompanied Sunnyboy’s wife to
a certain village called Omukondombolo to go and collect money from a certain man.
There, they were given a blue plastic bag containing the money. That money was
also counted and it was N$ 80 500 (eighty thousand five hundred). The money was
in N$100 and N$50 dollar denominations.
[26] Mary Thikamamoshili Kalangula Ndakalako testified that she is an aunt to
accused 2. During 2004 she was staying at Hochland Park, Sniphoof Street No.5
Tauben Glen area. On 30 December 2004, accused 2 visited her house. He asked
for permission to leave his vehicle there. He told her that he would fetch it later.
Accused 2 parked the vehicle and went back with another vehicle that was waiting
for him outside. He did not give her the key. The following day, 31 December 2004,
accused 2 called her to inform her that he was not able to collect the car.
[27] On 7 January 2005, accused 2 phoned her to ask whether there was anyone
at home as he wanted to collect his licence that he said was in his vehicle. On 8
January 2005 accused 2 came in the company of police officers. They all went to the
vehicle and removed a green case. It was put on the ground. Some police officers
left with accused 2 and others remained with the case. When they returned they
opened the padlock to that box. There was money inside the case. The money was
counted. They took the money and accused 2 and they also towed the vehicle where
the money was found. The money was packed in bundles.
[28] Chief Inspector Oscar Sheehama testified that he arrested accused 1 at the
scene of crime after he had interrogated him. He further testified that during his
investigations he was assisted by Fidelity Management Services team. After
accused 2 was arrested, he took the police to a white car because the police were
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asking the whereabouts of his car. The car was parked at Hochland Park. Accused 2
took the police to Hochland Park. At Hochland Park the witness saw the trunk that
was found in the car. There was money in the trunk. The money was packed in
bundles. The money was booked in as exhibit. Some money was also recovered in
South Africa. It was handed to the witness by Captain Marree. The total amount of
money recovered in South Africa was N$ 1 339 000 (one million three hundred and
thirty nine thousand). The document that accompanied the money was admitted in
evidence and marked as Exhibit R. All the money that was recovered, whether in
Namibia or South Africa was handed over to Fidelity Security Services.
[29] Sergeant Frederick Dax testified that on 29 December 2004 he attended a
scene of crime in connection with this matter. He found accused 1 and the crewman
as well as Warrant Officer Scott and other police officers at the crime scene. He was
also present when accused 2 was arrested from a certain guesthouse in Windhoek.
Accused 2 was informed of his rights. When he was being questioned, he was
informed that one Kasimbingwe was also arrested in this matter. It is worth
mentioning that Kasimbingwe was accused 3 in this matter. Accused 2 wanted to
make sure that accused 3 was arrested in Keetmanshoop and that was the reason
why accused 2 was taken to Keetmanshoop. They found accused 3 there. Accused
2 and 3 were both questioned. From there the witness drove with accused 2 back to
Windhoek. Accused 2 directed them to a certain house in Tauben Glen, Hochland
Park. There was a white Honda Ballade parked in the yard with other cars. When the
vehicle was opened, a green trunk was found. It was locked with a padlock.
[30] Marie Antoinette Blignaut, an employee of Bank of Namibia, testified that she
is a vault custodian entrusted with the safekeeping of bank notes. On 27 January
2005 she was summoned to go to the Serious Crime Unit to verify some notes
discovered from a cash robbery. When she arrived there, she found a lot of cash in
bundles lying on the table. The bundles consisted of new bank notes that were still
sealed. Some of the notes were re-issuable notes but they were packed the way
they are usually packed by Bank of Namibia. The money was in Namibia Dollar
currency. The money was vacuum sealed or wrapped as it was vacuum packed by
printers. Inside the vacuum seal wrapping there was a white strip with what
appeared to be a black circle or logo on it and if one looks closely it was printed in
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capital letters ‘SABN’ on the white strip. SABN stands for the South African Bank
note company logo. That is the company in South Africa that authorises note
printing. Namibia currency is printed in South Africa. Bank of Namibia is the only
institution in Namibia authorised to make orders for the money to be printed. The
printed money come to Bank of Namibia and Bank of Namibia distributes it to
commercial banks. The bundles of money that was found on the table carried the
same black circle or logo and the word SABN. There is no way a private person can
at any stage package or wrap or have in his possession a seal like that.
[31] Accused 1, Johannes Julius, testified that on 29 December 2004 he was on
duty as a driver at Fidelity Guards Services. He was destined to take money to the
coast. In his company was his collegue, Mr Iyambo, a security guard. From the office
they went to refuel the vehicle at Tauben Glen. When he departed from Tauben
Glen, he passed via the railway over the bridge. He again proceeded to the other
side of the road to pick up a hitchhiker for extra income. He was supposed to drive
on the bypass but instead he deviated from that to go and look for hitchhikers. He
saw a person coming from the side of the crewman. Accused 1 opened the door, got
out of the vehicle and asked where the hitchhiker was going and how much money
he was willing to pay. He offered to pay N$50 (fifty dollars). Accused 1 allowed the
hitchhiker to sit in the middle between him and Iyambo. The person told accused 1
that he was going to Walvis Bay. According to accused 1, it was as common practice
to pick up hitchhikers although it was not allowed because his salary was very low
and he used the extra money paid by hitchhikers to sustain him during the month. At
that stage his salary was N$1800 (one thousand eight hundred). He had no benefit
and no medical aid.
[32] Accused 1 was paid N$50 (fifty dollar) by the hitchhiker. They did not know
each other before. He drove for about a kilometre and he noticed that the hitchhiker
was wrestling with Iyambo. He also observed that the hitchhiker was armed with a
firearm in his hand. The hitchhiker started to give accused 1 instructions to pull off
the road. Accused 1 reduced the speed of the vehicle. As the hitchhiker was
insisting, accused 1, pulled off slowly. The guard was screaming asking accused 1 to
help him. At that time it was impossible to help him because he had to concentrate
on the driving. Accused 1 was also frightened by the firearm he saw.
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[33] Apart from the hitchhiker who was armed, Mr Iyambo was armed with a pistol
and accused 1 was armed with an R4 rifle that was under the driver’s door. It was
not possible for accused 1 to grab his R4 rifle because one had to open the door in
order to get it. Accused 1 further testified that he never disarmed Mr Iyambo. Mr
Iyambo’s firearm was found at the scene and there is no evidence adduced before
this court that accused 1 touched it. Accused 1 again testified that he never told
Iyambo not to shoot the hitchhiker because the hitchhiker is accused 1’s friend, as
Iyambo never had a firearm in his hands. However, accused 1 confirmed that he
shouted ‘do not shoot’ but this was not meant for Iyambo. He was telling the
hitchhiker because accused 1 was concerned for his safety and that of Mr Iyambo.
Accused 1 further said the reason why he opened the door of the vehicle and moved
out of the vehicle to go and speak to the hitchhiker outside the vehicle was because
he did not know the hitchhiker before and that if he knew him, he was just going to
tell him to come in straight away.
[34] When accused 1 parked the vehicle, his intention was to run away. However,
immediately he jumped out he saw a Toyota Corolla parked in front of the vehicle he
was driving. The driver got off the vehicle and pursued him. The driver of the Toyota
Corolla had a firearm. He pointed a firearm at accused 1 and told him to stand still.
Accused 1 was very scared. The gunman instructed accused 1 to walk around the
side where Iyambo landed when he fell from the vehicle. The hitchhiker was also on
that side. When they got to the side where Iyambo and the hitchhiker were, the
gunman instructed accused 1 to open the truck. The truck had side doors to be
opened and that is where the money was. At the time, accused 1 was given
instructions to open the doors of the truck the guard was busy wrestling with the
hitchhiker. When he opened the small door, the padlock was not locked. He took out
the keys to open the other doors. The padlock that was not locked was just hanging
on the door. The padlock was supposed to lock a small safe that was in the vehicle.
It was the duty of the manager to lock the door with a padlock once everything is
loaded in the vehicle. After accused 1 opened the box, he took out the boxes or
packets of money and loaded it in the Toyota Corolla because the gunman was
behind him. After accused 1 finished to load the money in the Toyota Corolla, his
hands were tied with his shirt and he was placed on top of Mr Iyambo.
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[35] In the vehicle there was a radio communication, if it was true that accused 1
had picked up an argument with Mr Iyambo concerning the giving of a lift to a
hitchhiker, Mr Iyambo was supposed to inform the people at the office. Iyambo also
had a cell phone which he could have used, so accused 1 testified. Concerning the
instructions that accused 1 received from the hitchhiker, he complied with the
instructions because he was afraid for the hitchhiker to shoot them. Furthermore,
accused 1 testified that if he was part and parcel of the people who robbed, he was
not going to be given instructions, he could have driven straight to the spot where the
hitchhiker wanted him to stop.
[36] After the robbers had left, accused 1 took Iyambo’s cell phone to call the
office in order to inform them that they had been robbed. He used Iyambo’s cell
phone because his cell phone was taken by the robbers. Accused 1 further testified
how he was allegedly assaulted by the police and tortured. Accused 1 was then
taken to Dordabis as well as Keetmanshoop. Accused 1 through cross – examination
disputed that the hitchhiker got into the vehicle through the driver’s door. He instead
said it was Mr Iyambo who disembarked in order to allow the hitchhiker to go in the
car. He further confirmed that he observed Mr Iyambo getting the hitchhiker’s arm
away and Iyambo took out his own firearm, but the hitchhiker was still pointing a
firearm at Mr Iyambo. Accused 1 confirmed that the money that he was supposed to
deliver to the banks on the date in issue was packed in the packages similar to those
depicted in photograph 11 Exhibit H. According to Exhibit H, the packaging appears
to be a white plastic bag with what appears to be a navy strip that seals the bag at
the top. When it was put to accused 1 as to what happened to the register in which
Iyambo was writing the serial numbers of the bags, accused 1 disputed that Iyambo
wrote in the register because it was dark. However, this is contrary to the instructions
put to Iyambo that his writing in the car was a calculation as to how to divide the
money that Iyambo knew was at the back of the bakkie. Concerning Mr Iyambo’s
testimony that accused 1 allegedly told him that ‘these guys will come and bail us out
after three months, they will bring us lawyers’. Accused 1 said he did not say it and
he never heard of such a thing. However, this is in contrast with the instructions put
to Iyambo that in fact, it was Iiyambo who told accused 1 that ‘he should not worry,
because these guys will assist us, they have lawyers, do not worry!.’ Accused 1
16
vehemently denied that he ever gave such instructions and that he ever heard
Iyambo telling him so.
[37] Accused 2, George Jambeinge, testified that he was arrested between the
night of 8 January and the early hours of 9 January 2004. He was taken to the police
station, interrogated and assaulted in connection with this matter. He was later taken
to Keetmanshoop where the police continued to interrogate him. There he was
assaulted by a person known as ‘Fikila’. Whilst at Keetmanshoop, accused 2 heard a
name ‘Sunnyboy Emvula’ being mentioned. Accused 2 called Chief Inspector
Sheehama and told him that Sunnyboy Emvula is the person who bought his
(accused 2’s) car in Windhoek. Chief Inspector Sheehama then asked for the
whereabouts of the car. Accused 2 told him that the car was parked at his aunt’s
place in Windhoek because it was not fully paid for. The police asked him whether
he could accompany them to the house where the car was parked. That was how
accused 2 took the police to house NO. 5 at Tauben Glen, Hochland Park. The car
was parked in the yard. He told the police that he had a spare key to the car. The car
he was referring to is the car that was found in his possession when he was arrested
and it was parked at the police station. He went with two police officers to the police
station to get the spare key for the car whilst other police officers remained at the
house where the car was.
[38] After they picked the spare key from the other car, they went back and he
opened the car that was parked at the house. The boot of the car was locked and
there was no key to open it. The boot was opened from inside by pulling out the
leather seat covers. When the boot was opened there was a trunk. The trunk was
pulled out of the boot, behind it there was a key. The police tried to open the trunk
with that key but it did not open. Although accused 2 was not sure if that key could
open the trunk, he tried to open but to his surprise, the key opened the padlock to
the trunk. There were newspapers on top of the trunk. When the newspapers were
removed, they discovered that there were bundles of money in the trunk. Accused 2
explained to the police that it was not his money. However, the police insisted that it
was his money. The police told him to stand near the trunk and took photographs.
The reason for accused 2 with the police to go to the house where the car was
17
parked was to show them that he had sold the car to Sunnyboy Emvula and where
the car was. Nothing else was discussed. The money was taken to the police station.
[39] There were a lot of police officers at the police station as well as some people
from the security company. He was introduced to the people from the security
company and those people interrogated him. Accused 2 told Chief Inspector
Sheehama that his vehicle had been bought by Sunnyboy and it must only be him
who could have put the money in the boot. Since the vehicle belonged to accused
2’s cousin, Sunyboy wanted to see the owner of the vehicle. He deposited some
money on 30 December 2004. On that day, Sunnyboy went to see accused 2. He
was in the company of his girlfriend and they requested accused 2 to give them the
car to test drive it with his girlfriend. They drove the car alone. When they brought it
back, Sunyboy requested accused 2 to park the car at a safe place. That is how the
car came to be parked at accused 2’s aunt’s house.
[40] On another date after accused 2 and Sunnyboy left the car at the house of
accused 2’s aunt, accused 2 phoned his aunt to ask if there were people at home.
He went to the house and collected his licence from the car on 31 December 2004,
which was the last time he entered that car apart from the date when he went with
the police. He further testified that the police did not ask him anything concerning
Sunnyboy prior to him telling the police that he sold the car to Sunnyboy. If he had
not heard the name Sunnyboy being mentioned accidentally by the police whilst he
and accused 3 were in another room, the police were not going to know that he had
sold the car to Sunnyboy. He volunteered to tell the police what happened between
him and Sunnyboy. He was not assaulted to point out the car, he pointed it out
willingly. Through cross-examination, accused 2 said Sunnyboy Emvula went with
the key to the car. However, accused 2 had a spare key and did not tell Sunnyboy
that he had a spare key. Sunnyboy came into the yard and wrote down the
kilometres on the speedometer before they left the car at the house. Furthermore,
accused 2 testified that he normally locks the boot of his car because people at the
car wash used to steal CD’s. However, he could not remember that he is the one
who locked the boot the day he was with Sunnyboy. Before accused 2 met with
Sunnyboy on 30 December 2004, accused 2 took the car to the car wash and the
boot was cleaned, there was no trunk. When it was put to accused 2 that police
18
officers testified that they took him to the police station to get the key of the padlock
to the trunk but he never disputed it, accused 2 responded that he could not dispute
it because the trunk did not belong to him.
[41] Counsel for the State urged that both accused persons should be convicted.
In support of her proposition, she argued that banks ordered money from Bank of
Namibia in the sum of N$5 735 000 (five million seven hundred and thirty five
thousand) as alleged in the indictiment. Fidelity Cash Management Services was
entrusted to transport the money to its destinations. The money was sealed in bags
with serial numbers and placed in safes in the truck. Accused 1 was the driver of the
truck accompanied by the co-guard Iiyambo. They were both armed. The doors to
the truck could not be opened from the outside or broken into. Fidelity Cash
Management Services took all the precautionary measures to safeguard the money.
The only manner in which a robbery could be effected was to have an accomplice
assisting the robbers. According to the managing director, the driver was the senior
personnel in the truck. He was in control of the vehicle and he would decide when to
stop and where to stop. When accused 1 stopped to give a lift to a hitchhiker, he was
warned by Mr Iyambo that it was against the company’s policy. After he gave a lift to
the hitchhiker, there was an argument between accused 1 and Iyambo. In order for
accused 1 to give a lift to the hitchhiker, he had to deviate from his normal route and
went to a specific place to pick up the hitchhiker during early hours of the morning. It
was also dark. Counsel argued that the only logical conclusion is that accused 1 had
a premeditated intent and arranged with the hitchhiker and the robbers.
[42] Counsel continued to submit that when Iyambo was interviewed by the
Manager, he informed him that before accused 1 deviated from his route, he first
made a phone call. This, according to counsel, is why accused 1 could not explain
why the robbers left with his cellphone and not with that of Iyambo. Logically, that
was to prevent anyone from matching calls made by accused 1 to any of the
accomplices. Although accused 1 alleged that he and Iyambo regularly picked up
hitchhikers, this assertion was denied by Iyambo. Counsel argued that after the
robbers left, accused 1 tried to calm down Iyambo by saying that he should not be
scared because robbers have lawyers and money, they would bail them out after
spending a short period of time in custody. Although accused 1 denied that, there
19
was nothing like that said, it was put to Iyambo that in fact it was Iyambo who uttered
those words to accused 1. Counsel further argued that the behaviour of accused 1 in
the vehicle was not consistent with the behaviour of an innocent person, because he
failed to help Iyambo and he disarmed Iyambo when Iyambo managed to draw his
pistol. Accused 1 even told Iyambo not to shoot. Accused 1 was in control of the
truck, he could have driven the truck to a safe place. When he was asked why he did
not help Iyambo, he said he was concentrating on driving and when he was asked
specific questions, he was very evasive. He told the court that he did not really pay
attention as to what was going on between Iyambo and the hitchhiker.
[43] Counsel further argued that the reason why accused 1 did not pay attention to
the scuffle between Iyambo and the hitchhiker was because he was on the lookout
for the getaway vehicle in order to pull the vehicle from the road to where the other
accomplices were waiting for the cash. It was counsel’s argument that after the
vehicle had stopped, Iyambo was pepper sprayed and refrained to the ground. He
was subjected to violence whilst accused 1 was not. Furthermore, when accused 1
was asked as to how the robbers got access to the small safe where the keys for the
individual safe were, accused told the manager that the robbers cut the padlock with
a bolt cutter. But when people searched at the scene and the nearby bushes, a bolt
cutter was nowhere to be found. Again during his testimony he said the padlock was
not locked because Van Der Walt forgot to lock it. When accused 1 was questioned
at the scene he never said the padlock was not locked.
[44] Although accused 1 walked several times to the getaway vehicle to put the
money in the boot, he claimed that he could not remember the registration number.
He could not even give the description of the hiker, despite the fact that he talked to
him facing each other before he gave him a lift. Counsel argued that the court should
also have regard to the demeanour of accused 1 after the robbery. Iyambo was
visibly shaken whilst accused 1 was not. Instead he was violent towards Chief
Inspector Sheehama. Although Counsel for the defence contended that Iyambo
contradicted himself with regard to his testimony at the police and his version in
court, counsel for the state argued that these were very minor contradictions and
have no bearing on his credibility.
20
[45] Counsel for the State argued that there is circumstantial evidence that fits into
the implication of accused 1’s involvement in the robbery, taking into account
accused 1’s explanation for his conduct, his behaviour before, during and after the
robbery.
[46] With regard to accused 2, counsel for the State argued that the State did not
prove that accused 2 acted with common purpose with others to commit robbery with
aggravating circumstances. However, the accused may be convicted of competent
verdicts to robbery with aggravating circumstances. The State argued that it had
proved that accused 2 had committed theft. The court should have regard to the
evidence of accused 2’s aunt, at whose house the vehicle for accused 2 was parked,
who testified that on 30 December 2004, accused 2 asked her to park his vehicle at
her house. This was within 24 hours after the Fidelity Cash Management Services
truck was robbed. He did not leave the key to the vehicle with her. She only came to
see him again when he went to her house in the company of police officers. Money
was found in accused 2’s vehicle to the amount of N$1 515 000 (one million five
hundred and fifteen thousand). Accused 2 had signed a disposal of property form for
the money to be returned to the rightful owner. Furthermore it had never been
disputed that the 2nd accused took the police officers to the vehicle where the money
was or that the accused was found in possession of the money, except later during
the trial when accused 2 said he did not know anything about the money before it
was discovered by the police. Counsel further argued that accused 2 was in
possession of the key that opened the padlock to the trunk. Therefore the court
should not believe accused 2’s version that the key was found next to the trunk.
What was disputed was that he did not know about the robbery. Accused 2 claimed
to have been given the money by Sunnyboy Emvula and that there is no proof that
the money was linked to the robbery.
[47] Counsel for the State further argued that accused 2 was found in recent
possession of the money as he had it within 24 hours after the robbery. Accused 2
parked his vehicle at the house on 30 December 2004. Accused 2 gave two different
explanations as to how he came to possess the money. Furthermore the State is of
the opinion that the explanation given by accused 2 is not reasonable. Therefore the
court should find accused 2 guilty of theft.
21
[48] On the other hand, counsel for the defence argued that although the State
adduced evidence that accused 1 made a telephone call before he picked up a
hitchhiker, there is no proof that such call had a link between accused 1 and his co-
accused persons. Counsel further argued that the hitchhiker came through Mr
Iyambo’s door. Mr Iyambo omitted to tell this court that a gun was pointed to his ribs
as it appeared in his police statement. Iyambo failed to inform his superior when
accused 1 deviated from his normal route. Furthermore, counsel argued that the
court should not believe the version of Mr Iyambo that accused 1 allegedly told him
not to worry as those guys had big lawyers and that they would have money to bail
them out of jail after spending three months. This story is a concoction to implicate
accused 1 because if witness Iyambo was not involved in the robbery, it would not
make any sense for accused 1 to give much information to Iyambo. It was again
counsel’s argument that there is a discrepancy in the State’s case as one could not
assume that because accused 1 had picked up a hitchhiker he was involved in the
robbery. This also goes to the fact that accused 1 by not assisting Iyambo, did not
mean that he was corroborating with the robbers. It was counsel’s argument that if
accused 1 was acting in cohort with the robbers, there was no need for the robber to
direct him where he should go. He could have driven there straight without any
direction.
[49] Concerning the issue that accused 1 failed to explain properly as to what
happened, this was due to the fact that a firearm was used and it was not expected
for accused 1 to behave normally. He was also assaulted by the police. Accused 1
informed the people at the office that a robbery took place when he used Iyambo’s
cellphone. The fact that accused 1 was not assaulted by the robbers was because
Iyambo pulled out a gun and the robber wanted to submit both Iyambo and accused
1 under his control. For accused 1 to take a firearm, the door had to be opened, that
was why the robber did not pay much attention to accused 1. Concerning the
padlock and the bolt cutter that were not found at the scene, according to evidence,
one needs a special tool to open the padlock, it was not expected of the robbers to
leave such a special tool at the scene. It was a point of criticism that Iyambo was
responsible for loading and accepting what was loaded in the truck but there is no
evidence as to who was supposed to see to it that the small safe where the keys
22
were kept was locked and whether it was negligently left open. Furthermore, any
person in the position of accused 1 would have assisted the robbers because a
firearm was used and this contributed to the fact that accused 1 was not able to
identify the robbers.
[50] Counsel argued that there were discrepancies in Iyambo’s testimony because
he testified that he opened the door and again he said he fell out of the vehicle and
also the robber fell down. Again Iyambo testified that accused 1 disarmed him.
However, in his statement he said it was an arm light in complexion that disarmed
him and at the same time he also said the robber was a black person.
[51] With regard to accused 2, counsel argued that Inspector Sheehama testified
that he did not know who opened the trunk. Furthermore, accused 2 gave a
reasonable explanation as to how the money got into his car, so counsel argued.
Counsel argued that although the money was found in the vehicle, the vehicle did
not belong to accused 2, it belonged to his cousin and he had sold it on behalf of his
cousin to Sunnyboy Emvula. Therefore it could not be said that accused 2 was found
in possession of stolen goods. Accused 2 had no knowledge of the robbery,
therefore there is no link between the money and the robbery. Counsel again argued
that there is no evidence proving that each of his clients committed any offence and
he asked for their acquittal.
[52] Having summarised the evidence as well as arguments from both counsel
and having considered the authorities referred to me by counsel in support of their
arguments, I propose to first deal with the evidence concerning accused 1.
The following are common cause:
There were two crewmen in the vehicle accused 1 and Mr Iyambo who was the
security guard. Both crewmen were armed with firearms.
Accused 1 was the driver of the motor vehicle that was carrying the money. He was
the person in charge. However, he deviated from his normal route to pick up a hitch
hiker although he was aware that it was prohibited to give lifts to hitch hikers.
Accused 1 disembarked from the vehicle and went to talk privately to the hitch hiker
before the hitch hiker went into the vehicle. It is also common cause that Mr Iyambo,
was attacked by the hitchhiker and subjected to violence and accused 1 was not
23
subjected to violence. The money that was destined for the banks in Karibib and the
coast was robbed from the vehicle whilst the robbers were armed with a firearm. It is
common cause that accused 1 did not assist Iyambo whilst he was subjected to
violence.
[53] One of the issues to be decided by this court is whether accused 1 acted in
cohort with the robbers. The State rests its case on circumstantial evidence as well
as direct evidence. There are two cardinal rules of logic where the court is required
to draw inferences from circumstantial evidence. These rules are set out in R v Blom
1939 AD 188 and adopted by this court in S v HN 2010 (2) NR 429 (HC) as follows:
‘(a) The inference sought to be drawn must be consistent with all proved
facts. If it is not then the inference cannot be drawn.
(b)The proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn. If they do not exclude
other reasonable inferences, then there must be doubt whether the
inference sought to be drawn is correct.’
[54] Apart from circumstantial evidence the State has also relied on the evidence
of a single witness as to what happened during the robbery. Mr Iyambo testified that
accused 1 disarmed him whilst he was struggling with the hitch hiker. However, this
version was criticised by counsel for accused 1 that the court should not believe him
in this respect because Mr Iyambo contradicted himself by saying it was accused 1
who disarmed him whilst in his statement he said it was a hand that was light of
complexion that disarmed him. The court does not find any merit in this argument
because if one has had regard to the statement of Iyambo that is before court,
Iyambo said:
‘I felt that someone was removing my firearm out of the holster at my hip. When I
looked back I could see that the hand that was removing the firearm was light of complexion.
There I am sure it was the hand of Jan Julius’.
The above statement speaks for itself and I find no contradiction in it. Another
criticism levelled at Iyambo’s testimony is that the court should not believe Iyambo’s
evidence that accused 1 told him not to worry as ‘those guys had big lawyers’ and
that they would have money to bail them out. Iyambo did not contradict himself in
24
this regard. If there is a contradiction this should be levelled against accused 1. This
is so, because it was put to Iyambo that in fact it was Iyambo who told accused 1 not
to worry, as ‘those guys’ would assist them. However, when accused 1 testified he
disowned his instructions and said there was nothing of that sort said. I find this to be
detrimental to accused 1’s credibility. Another version of Iyambo that attracted the
defence’s criticism was that Iyambo lied by saying that accused 1 told him not to
shoot the hitchhiker. Accused 1 does not dispute that he shouted ‘do not shoot’.
However, he said he was not telling Iyambo not to shoot but he was telling the
hitchhiker. Iyambo cannot be faulted in this regard, because he heard accused 1
shouting ‘do not shoot’. Iyambo’s testimony was further criticised because in his
testimony in court he omitted to say that a firearm was pointed at his ribs and that he
contradicted himself by saying he opened the door and fell down in his statement
whilst in court he said he was kicked on the chest and fell down. Although there are
discrepancies in this regard I do not find these contradictions to be material and
detrimental to Iyambo’s credibility because whether Iyambo omitted to say that the
gun was pointed at his ribs, it is common cause that a gun was indeed pointed at
Iyambo. It is also not in dispute that the hitchhiker and Iyambo fell from the vehicle.
Those contradictions are not material.
[55] On the other hand, accused 1 contradicted himself with regard to the padlock
of the small safe where the keys for the individual safe were put. Accused 1 told the
manager of Fidelity Cash Management Services that the padlock to the small safe
was cut with a bolt cutter. However, when accused 1 testified in court he said that Mr
van der Walt negligently forgot to lock the safe. This version was not put to Van der
Walt. I find these contradictions to be material and they are detrimental to accused
1’s credibility.
[56] Although Iyambo is a single witness, the court having weighed his evidence
and considered its merits and demerits, it is satisfied that the truth has been said
despite minor shortcomings in his evidence. Iyambo’s evidence is clear and
satisfactory. It needs not to be discredited because his statement slightly differs with
his testimony in court. Accused 1’s version could not reasonably be possibly true in
the circumstances. It therefore needs to be rejected.
25
[57] Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may
be convicted of any offence on the single evidence of any competent witness. In Sauls 1981
(3) SA 172 (A) 180, it was held that ‘there is no rule of thumb test of formula to apply when it
comes to the consideration of the credibility of a single witness’. The trial court should weigh
the evidence of the single witness and should consider its merits and demerits and, having
done so should decide whether it is satisfied that the truth had been told despite short
comings or defects or contradictions in the evidence.’
[58] The court having considered direct and circumstantial evidence in this matter,
it is evident that accused 1 by deviating from his normal route to pick up a hitchhiker;
by disembarking from the motor vehicle in order to have a private discussion with
him; by giving a lift to a hitch hiker whilst he had a larger amount of money in transit
and it being contrary to the company rules; by failing to assist Iyambo; by disarming
him and by saying to Iyambo that the robbers would assist them as such he should
not worry, the only conclusion that could be drawn from all these findings is that
accused 1 had pre-arranged with the hitchhiker and perpetrators to commit the crime
of robbery. Accused 1 unlawfully and intentionally engaged in conducts whereby he
furthered the commission of this crime by facilitating and encouraging the
commission of this robbery. Accused 1 transported the hitch hiker to the crime
scene. Accused 1 contradicted himself as to the status of the padlock where the
keys to the safe were. Accused 1 was responsible to lock the safes. He personally
took the money and loaded it in the getaway vehicle. He was not subjected to any
violence. His conduct before, during the robbery and after was not consistent with
the conduct of an innocent man. It was not a mere coincident that accused 1 went to
pick up a hitch hiker in the early hours of the morning. Accused 1 colluded with the
robbers or perpetrators to commit this offence.
[59] Although the State alleged in the charge sheet that N$5 735 000 (five million
seven hundred and thirty five thousand) was stolen that was destined for several
banks, the State only managed to prove theft of N$3 710 00 that was destined to
First National Bank branches for Karibib and the coast. It has never been proved as
to how much money was destined for Standard Bank, Ned Bank and Bank
Windhoek. The state had only proved beyond reasonable doubt that N$3 710 000
(three million seven hundred and ten thousand) was robbed from the vehicle.
26
[60] I therefore find accused 1 guilty of robbery with aggravating circumstance as
an accomplice and the money stolen is N$3 710 000 (three million seven hundred
and ten thousand).
[61] Coming to accused 2, it is common cause that an amount of N$1 515 000
was found in the vehicle that was under his control. Accused 2 took the police
officers voluntarily to that vehicle. The only question to be decided is whether
accused 2 was part and parcel of the perpetrators who robbed the money from the
armoured vehicle. There is no sufficient evidence that accused 2 was one of the
robbers. However, accused 2 was found in possession of a large amount of money
that is linked to the robbery and he is unable to give an explanation that could
reasonable be true. Accused 2 firstly said he was given the money by one Sunnyboy
Emvula through instructions given to his counsel. However, when he testified he
changed his version and said he was not aware of the presence of the money in the
vehicle and he could only assume that the money was put in the vehicle by
Sunnyboy Emvula who went to test the vehicle with his girlfriend since he was
buying the vehicle for his girlfriend.
[62] Accused 2 had the key to the vehicle. There is evidence from Ms Kalangula
that accused 2 is the one who parked the vehicle at the house where it was found on
30 December 2004, a day following the commission of the robbery. Although
accused 2 claimed that the vehicle was parked by Sunnyboy Emvula this evidence
was disputed by Ms Kalangula that accused 2 after parking the vehicle he went with
his friends who were waiting in another vehicle outside. Furthermore, accused 2 said
that he found the key to the trunk lying near the trunk. This was disputed by the
evidence of police officer Nangolo and Warrant Officer Amakali who corroborated
each other when they testified that after the trunk that contained money was found in
the car it was locked and was only opened after accused 2 was taken to fetch the
key of the padlock that was in accused 2’s other car at the police station. The version
that accused 2 left with the police after the trunk was found and it was only opened
after accused 2 and the police came back was corroborated by Kalangula’s
testimony. This court rejects accused 2’s version that he found the key to the
padlock of the trunk lying in the car as well as the version that accused 2 was not
27
aware of the money before it was recovered by the police because it cannot be
reasonable possibly true in the circumstances. It is the court’s finding that accused 2,
although he was allegedly selling the vehicle on behalf of his cousin, the vehicle was
in his lawful control. Accused 2 had the key to the car as well as the key of the
padlock of the trunk. It is highly improbable that Sunnyboy would leave a large
amount of money in the vehicle that he intended to buy. The money that was found
in possession of accused 2 was part of the money that was robbed from Fidelity
Guards Services truck on the 29 December 2004. It was linked by the evidence of
Ms Blignaut, an employee of Bank of Namibia, who testified that she is a vault
custodian and identified how the money was packaged with a logo on it and printed
SABN on the white strip. The bundles consisted of new bank notes and old ones that
were sealed and that no private person could package or wrap or have in possession
a seal like the one issued by SABN. Only bank of Namibia is authorised to order the
money from South African Bank Note Institution.
[63] Accused 2 was found in possession of recently stolen money. Where a
person was found in possession of recently stolen goods and has failed to give an
explanation which could reasonable be true, a court is entitled to infer that such
person had stolen the article or that he is guilty of some other offences. This doctrine
of recent possession has been applied in our courts, amongst others in S v Kapolo
1995 NR 129 (HC).
[64] Since accused 2 has failed to give a reasonable explanation which could
reasonably be true, this court is entitled to infer that accused 2 stole the money
found in his possession. The State has proved its case beyond reasonable doubt
and accused 2 is accordingly found guilty of theft.
[65] In the premise the following verdicts are made:
(a) Accused 1 – Guilty of robbery with aggravating circumstance of N$3 710 000
(three million seven hundred and ten thousand) as an accomplice.
(b) Accused 2 – Guilty of theft of N$1 515 000(one million five hundred and
fifteen thousand)
28
-----------------------------
NN Shivute
Judge
APPEARANCES:
THE STATE: Ms A Meyer
Office of the Prosecutor-General, Windhoek
ACCUSED: Mr JMB Neves
Instructed by Directorate of Legal Aid, Windhoek
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