REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENTCase no: CC 03/2004

In the matter between:

PROGRESS KENYOKA MUNUMA 1ST APPLICANTSHINE SAMULANDELA SAMULANDELA 2ND APPLICANTMANUEL MANEPELO MAKENDANO 3RD APPLCIANTALEX SINJABATA MUSHAKWA 4TH APPLICANTDIAMOND SAMUNZALA SALUFU 5TH APPLICANTFREDERICK ISAKA NTAMBILWA 6TH APPLICANTHOSTER SIMASIKU NTOMBO 7TH APPLICANTJOHN MAZILA TEMBWE 8TH APPLICANT

v

THE STATE RESPONDENT

Neutral citation: Munuma v S (CC 03/2004) [2018] NAHCMD 87 (10 April 2018)

Coram: UNENGU AJ

Heard: 21 - 22 February 2018

Delivered: 10 April 2018

Flynote: Criminal Procedure – Special plea in terms of s 106 (1) (f) and (h) of

the Criminal Procedure Act 51 of 1977 – Accused raising ECZ not being part of

Namibia and Prosecutor-General not having a title to prosecute them – Criminal

2

Procedure – s 106 (1) not providing for an accused to plead twice to offences in

same charge – Accused previously pleaded to same charges raising special plea of

court not having jurisdiction to try the offences – Second plea outside the law,

therefore, a nullity – Article 1 (4) of the Constitution – Allegation that ECZ not part of

Namibia is a challenge to Article 1 (4) of the Namibian Constitution – Therefore, plea

is incompetent, unconstitutional and a nullity – Law of evidence – Evidence – expert

witness – Mr Ya Nangolo not expert witness on boundaries of Namibia – Special

plea rejected by court.

Summary: Criminal Procedure – The accused whose first special plea in terms of

s 106 (1) (f) of the Criminal Procedure Act 51 of 1977 was rejected by this court and

the Supreme Court, are raising the same plea in the present proceedings. In addition

to the challenge against the jurisdiction of the court to try the offences, the accused

are also pleading in terms of s 106 (h) that the Prosecutor-General has no title to

prosecute them. The ground for the second plea is that the ECZ does not form part

of Namibia as defined in Article 1 (4) of the Constitution.

Held that the special plea was dealt with in the first proceedings by this court and the

Supreme Court, therefore, the accused are barred by the principle of res judicata to

raise the same plea.

Held further, that s 106 (1) of the Criminal Procedure Act 51 of 1977 does not

provide for a second plea on the offences in the same charge; that the Act, unlike

common law, cannot be developed by courts but it is for Parliament to amend it,

therefore, the plea is outside the law and a nullity.

Held further, that the witness Mr Ya Nangolo is not an expert witness with regard the

boundaries of Namibia.

Held furthermore, that the allegation by the accused that the ECZ does not form part

of Namibia as defined in Article 1 (4) of the Constitution is a challenge against the

Constitution and as such is incompetent, invalid and a nullity; and reject the special

plea.

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ORDER

1. The special plea in terms of s 106 (1)(f) and (h) of the Criminal Procedure

Act 51 of 1977, is rejected;

2. This court has territorial jurisdiction to try the accused with the offences

listed in the indictment; and

3. The Prosecutor-General has a title to prosecute accused 1, 2, 3, 4, 5, 6, 7

and 8 with the offences against them listed in the indictment.

JUDGMENT(Special plea in terms of s 106 (1) (f) and (h) of the Criminal Procedure Act 51 of

1977 as amended – Jurisdiction)

UNENGU, AJ

[1] These proceedings are a repeat of the previous proceedings this court and

the Supreme Court have already pronounced itself upon more than once. However,

the accused are still persisting with the same issue to the extent that it has become

boring to hear the same story time and time again even though, so it appears, that in

the present proceedings the goal post has been shifted slightly from the original

place – with regard the ground to the plea and the additional plea that the

Prosecutor-General does not have a title to prosecute them.

[2] On 30 June 2014, after the charges preferred against them by the State were

put to them, the accused pleaded that the court had no jurisdiction to try the

offences1 and alleged that they were abducted in the Republic of Botswana and

unlawfully brought into the jurisdiction of this court by the officials of the Namibian

Police Force and or the Namibian Defence Force and or other agents of the Republic

of Namibia in concert with and with the full knowledge of the officials of the

government of the Republic of Botswana.

1 s 106(1)(f) of the Criminal Procedure Act 51 of 1977.

4

[3] However, I dismissed the special plea and found that this court has

jurisdiction to try the offences the accused charged with.2

[4] Leave to appeal the judgment to the Supreme Court was refused3 but were

granted leave by the Honourable Chief Justice after he was petitioned.

[5] In the Supreme Court, the appeal by Mr Samuele, who was accused no. 7 in

the proceedings before this court, was upheld and a permanent stay of prosecution

against him of the offences preferred against him in the indictment was ordered. His

co-accused Progress Kenyoka Munuma, Shine Samulandela Samulandela, Manuel

Manepelo Makendano, Alex Sinjabata Mushakwa, Diamond Samunzala Salufu,

Hoster Simasiku Ntombo and John Mazila Tembwe were unlucky as their appeal

against the judgment of this court was dismissed and remitted the case to this court

for them to stand trial on the indictments brought against them.4

[6] On 6 September 2016 when the proceedings resumed before me, I was

informed that Mr Tjombe briefed by the Directorate of Legal Aid in the Ministry of

Justice to represent the accused in the trial was no longer wanted by the accused

and instead they preferred Ms Agenbach to defend them.

[7] Ms Agenbach then replaced Mr Tjombe but soon discovered during

consultations that she could not represent accused nos.: 6 and 8 due to conflict of

interest. In the result, Mr Neves was appointed to represent the two accused.

[8] On behalf of accused 1, 2, 3, 4, 5 and 7, Ms Agenbach mounted another

challenge against the jurisdiction of the court to try the offences and the title of the

Prosecutor-General to prosecute5 the accused. This, Ms Agenbach did even though

the Supreme Court dismissed their appeal on jurisdiction and remitted the matter to

this court for the accused to stand trial on the indictments brought again them.6

2 The State v Munuma (CC 03/2004) [2014] NAHCMD 363 (27 November 2014).3 Munuma v The State (CC 03/2004) [2015] NAHCMD 60 (16 March 2015).4 Supreme Court Case No. SA 37/2015 delivered on 22 August 2016.5 S 106 (1)(f) read with s 106 (1)(h) of the Criminal Procedure Act 51 of 1977, as amended.6 Progress Kenyoka Munuma and others Case No. SA 37/2015delivered on 22 August 2016.

5

[9] In my view, the judgment of the Supreme Court dismissing the challenge

against the jurisdiction of this court to trial the offences preferred again them in the

indictment has been put to bed. The same plea cannot be raised again for the

second time.

[10] In any event, s 106(2) of the Criminal Procedure Act does not allow two or

more pleas to be tendered separately or one after the other has failed. It provides

that two or more pleas may be pleaded together except that a plea of guilty may not

be pleaded with any other plea to the same charge.

[11] Hiemstra’s Criminal Procedure7 comments that when the court has rejected a

plea against jurisdiction, the trial has to proceed and the point can be raised again by

means of an appeal, which the accused have done. No repeat of a special plea in

terms of s 106 (1) is allowed.

[12] That being the case, the proceedings in the instant matter are irregular. The

plea, even though different grounds were raised, is outside the Criminal Procedure

Act rendering it a nullity, and it is trite that from a nullity flows nothing.

[13] Ms Agenbach in her submissions both in written heads of argument and oral

tried very hard to justify the second special plea. A statutory provision as opposed to

common law, court has no power to develop s 106 of the Criminal Procedure Act,

nor to read something in the section which the section does not provide for. It is for

Parliament to amend the section. The provisions of subsection (2) of s 106 are clear

and leave no room for any doubt as to what it stipulates. Two or more pleas may be

pleaded together not separately except the plea of guilty.

[14] Section 106 (1)(h) applies to the prosecutors’ locus standi to prosecute in the

case. In Ndluli v Wilken NO en Andere8 it was held that in a prosecution by the State

“the prosecutor” in s 106(1)(h) does not refer to the State but to the person who act

as prosecutor in court. Further, that the objection posed by such a plea is an

objection to the right or power of the person acting as a prosecutor in the case. In the

instant matter the objection should not have been directed against the Prosecutor-

General of the Republic of Namibia but against the prosecutor, Mr Wamambo who 7 [Issue 1] 15-20.8 1991 (1) SA 297 (A).

6

conducted the prosecution on behalf of the State. As a consequence therefore and

for reasons stated above, and in view of the fact that the special plea on jurisdiction

of the court in terms of the s 106(1) (f) has already been adjudicated upon by this

court and the Supreme Court, I come to the conclusion that there is nothing before

this court to rule on. It follows, therefore, that the alleged special plea against

jurisdiction of this court to try the offences preferred against the accused in the

indictment is spurious and must fail on this point alone. The accused will not be

allowed to abuse the court process unabated. They had their opportunity in both this

court and the Supreme Court. They are barred on the basis of res judicata rule to

raise the same special plea again albeit on different grounds.

[15] There is still another hiccup in the patch of the accused with regard the

challenge on the jurisdiction of this court on the ground that the Eastern Caprivi

Zipfel (the ECZ) or Strip was never part of the former German South West Africa

which became the Republic of Namibia on 21 March 1990.

[16] In her main heads of argument, Ms Agenbach argues that the State failed to

prove beyond a reasonable doubt that the ECZ forms part of the national territory of

Namibia as defined in Article 1 (4) of the Namibian Constitution depriving this court

from competent territorial jurisdiction and the Prosecutor-General of competent title.

[17] Article 1 (4) of the Constitution provides as follow:

‘The national territory of Namibia shall consist of the whole of the territory recognized by the

international community through the organs of the United Nations as Namibia, including the

off-shore islands of Namibia and its Southern boundary shall extend to the middle of the

Orange River’.

[18] During the trial of the matter, exhibit “O” an official map No. 3228 of the United

Nations dated March 1983 was received and admitted into the record of proceedings

as evidence and forms part of record. This happened during the evidence of Dr

Akweenda who testified for the State. On this map (exhibit “O”), there is an

inscription which reads:

7

‘On the basis of resolution 31/150 adopted by the General Assembly on 20 December 1976

and other resolutions of the General Assembly this map represents an official United Nations

map of Namibia and supersedes any other map on Namibia or South West Africa hitherto

published by South Africa’.

[19] It is public knowledge that the United Nations Organization is an international

body which replaced the League of Nations the latter being the body which, after the

first World War, gave the mandate to the Union of South Africa to administer

Namibia then South West Africa on behalf of the British Government. It follows,

therefore, that the United Nation’s official map (exhibit “O”) on Namibia (South West

Africa) is a legal and recognized map of Namibia by the international community of

the United Nations identifying the territory of Namibia including the enclave, harbor

and port of Walvis Bay and the off-shore islands and the ECZ as provided for in

Article 1 (4) of Namibia’s Constitution.

[20] Both counsel were invited by the court during submissions to address it on the

implication of Article 1 (4) of the Constitution in regard the issue of the ECZ not being

part of the Republic of Namibia and whether that allegation is not a challenge of the

provisions of Article 1 (4) of the Constitution of Namibia therefore incompetent which

this court cannot hear due to lack of locus standi in indicio. Both counsel did and

gave different views. Ms Agenbach argued that the allegation does not challenge

Article 1 (4) of the Constitution, while her colleague argued that it does. The United

Nations’ official map, exhibit ”O” includes the ECZ, the port of Walvis Bay and the

off-shore islands as part of Namibia as is provided in Article 1 (4) of the Constitution.

[21] Article 1 (6) states that the Constitution shall be supreme law of Namibia,

meanwhile Article 80 (2) calls upon this court to uphold the Constitution and the

fundamental rights and freedoms guaranteed thereunder – barring it from hearing

and adjudicating on any challenge against the Constitution.

[22] It is clear from what is stated above that the allegation of accused to allege in

their plea that the territory or region called ECZ now known as Zambezi Region is

not part of Namibia is unconstitutional, invalid and as such a nullity.

8

[23] I must also mention here that none of the legal practitioners representing the

State and the accused referred the court to or produced any South West

Africa/Namibia map without the ECZ. I have also not seen one in my life. That being

so, on this point also the special plea is rejected on the basis of a nullity due to the

fact that it is a violation of Article 1 (4) of the Constitution of Namibian.

[24] I turn now to consider the merits of the special plea self in the event the two

points discussed above do not successfully dispose of the special plea and also for

purpose of completeness.

[25] As pointed out before, the eight accused in the matter are charged with

crimes of high treason, sedition, public violence and offences of illegal possession of

fire arms and ammunition, amongst others. The State alleges that during the period

from September 1998 until December 2003, the accused were involved in attempts

to overthrow the government of the Republic of Namibia in the former Caprivi Region

and to secede it from the rest of Namibia. They did not succeed in the first challenge

against the jurisdiction of this court to try the offences preferred against them. Not

satisfied with the decision in the first challenge against the jurisdiction of this court to

try them, they have now raised another special plea in terms of the same s 106 (1)(f)

and a second plea in terms of s 106(1)(h) that the Prosecutor-General does not have

a title to prosecute them, pleading that the former ECZ (now Zambezi Region) did

not form part of South West Africa (Namibia), therefore the Prosecutor-General does

not have a title to prosecute the alleged offences committed outside the territorial

jurisdiction of Namibia.

[26] As the State bears the onus to prove beyond reasonable doubt that this court

has jurisdiction to try the accused where a special plea has been raised9, the State

then represented by Mr Wamambo called witnesses to prove jurisdiction of the court

and the title of the Prosecutor-General to prosecute the accused. Ms Agenbach

moved the special plea on behalf of the accused including accused six and eight

who are Mr Neves’ clients. To be specific they pleaded as follows:

‘Territory known and described as the Eastern Caprivi Zipfel demarcated as the portion of

the Caprivi Zipfel which lies east of a line running through beacon 22 situated on the border

between the mandated Territory and Angola, by Union of South Africa Proclamation 147 of 9 Progress Kenyoka Munuma and other v State Case No. SA 37/2015, delivered: 22 August 2016.

9

1939, does not fall within the international borders of the national territory of the Republic of

Namibia as defined in article 1 (4) of the Namibian Constitution.’

[27] The State called Mr Charles Mlambo, Chief Librarian who testified that all the

accused before court registered as voters for district 16 which was the ECZ during

October 1989 to vote in the National General Elections contested by SWAPO, DTA,

and other small political parties in Namibia. It is common cause and public

knowledge that the people from the Zambezi Region, then ECZ, participated in the

elections.

[28] It is further common cause and public knowledge that Mr Mishake Muyongo

from that area stood as the President of the DTA, one of the parties which took part

in the elections. Had the DTA won the elections of 1989, most probably Mr Mishake

Muyongo an extraction from the Zambezi Region would have been the first State

President of the Republic of Namibia.

[29] Mr Mlambo’s evidence is based on public documents from the National

Archives of Namibia of which he was the custodian thereof. No objection was raised

to Mr Mlambo’s evidence by Ms Agenbach.

[30] Mr Oscar Muhapi Muhapi, a Control Administrative Officer in the Ministry of

Home Affairs and Immigration a native from the Zambezi Region was called next to

testify. In his testimony Mr Muhapi told the court that accused one to eight applied for

Namibian citizenship and provided exhibits K1-K8 as proof of applications for

Namibian citizenship in respect of accused one to eight respectively.

[31] The accused in their own testimony admitted to have applied for Namibian

identity documents of which some have obtained already while others are still waiting

to receive. According to them, they applied for the Namibian identity documents for

their children to be accepted in schools and for other services like the withdrawing of

money from their bank accounts.

[32] I am inclined to agree with Mr Campher arguing that the accused regarded

themselves as Namibian nationals when they or their parents registered them as

Namibians and obtained National documents of Namibia. Mr Campher argues that

10

the accused are just pretending not to be Namibian citizens because they are in

trouble. I do not think Ms Agenbach will disagree with her colleague’s argument of

Mr Mushake Muyongo and the people of Zambezi Region participating in the 1989

general national elections of Namibia.

[33] Meanwhile, Mr Phil Ya Nangolo was also called to testify for the defence. I

shall come back to his testimony when dealing with the evidence of Dr Sakeus

Akweenda. Both Dr Akweenda and Mr Ya Nangolo were called by the State and the

defence as expert witnesses on the boundaries of Namibia respectively.

[34] With regard the testimony of the accused self, it is fair and reasonable to state

that they testified, amongst others, that they were all born in the former ECZ (now

Zambezi Region); that they attended schools there where they were taught English

and Silozi languages. They testified further that they regard themselves as

Caprivians and not Namibians because, they speak a language or languages

peculiar to that region alone; that they dance differently from the inhabitants of

Namibia and eat different types of food dissimilar from food eaten, for example, by

the Oshiwambo and Otjiherero speaking Namibians.

[35] The accused’s testimony concentrated mostly on their culture and the way of

livelihood which have nothing to do with the special plea. They attempted at times to

tell the court that Zambezi was not part of Namibia but were unable to justify why

they were saying so. It also became clear during their testimony, due to the low level

of their education, that the claim that Zambezi region is not part of Namibia was

based on hearsay stories they heard from other people using them for purpose of

politics or that somebody else told them to say so. None of the accused has placed

facts before court about the special plea on jurisdiction of the court or against the title

of the Prosecutor-General to prosecute them. Be that as it may, accused John

Mazila Tembwe admitted working in Windhoek from 1993 to 1998. Their evidence is

irrelevant and does not assist the court in resolving the dispute.

[36] As pointed out before, both the State and the defence called expert witnesses

on the boundaries or borders of the former South West Africa now Namibia in the

persons of Dr Akweenda and Mr Ya Nangolo respectively.

11

[37] There are requirements to be met before a witness can qualify to give expert

evidence or opinion in a case. Experts are generally called to assist the court to give

evidence on matters calling for specialized skill or knowledge like the present matter.

[38] In Holtzhausen v Roodt10 the following was said:

‘The witness must be a qualified expert. It is for the judge to determine whether the witness

has undergone a course of special study or has experience or skill as will render him or her

an expert in a particular subject.’

[39] It is stated further that it is necessary for the expertise to have been obtained

professionally but the facts upon which the expert opinion is based must be

admissible proved by admissible evidence which facts must be either within the

personal knowledge of the expert or on the basis of facts proved by others.

[40] The judgment goes further that if the expert has observed them, then the

expert must testify to their existence but the opinion evidence must not usurp the

function of the court and is not permitted to give opinion on legal or the general

merits of the case neither to be asked or answer questions which the court has to

decide.

[41] In S v Collop11 the court said that although expert witness, a doctor may refer

to textbooks and treaties, but such books and treaties are not evidence per se.

[42] In his written heads of argument Mr Campher, counsel for the State also

referred the court to the judgment of Menday v Protea Assurance12 where the

following was said concerning expert witnesses.

‘In essence the function of an expert witness is to assist the court to reach conclusions on

matters on which the court itself does not have a necessary knowledge to decide. It is not

the mere opinion of the witness which is decisive but his ability to satisfy the court that,

because of his special skill, training or experience, the reasons for the opinion which he

expresses are acceptable.

10 1997(4) SA 766 (W) at 772 G-I.11 1981 (1) SA 150 (A).12 1976 (1) SA 565 (EC).

12

There are dangers inherent in expert testimony. Nonetheless the court, while exercising due

caution, must be guided by the views of an expert when it is satisfied of his qualification to

speak with authority and with the reasons given for his opinion.

However eminent an expert may be in a general field, he does not constitute an expert in a

particular sphere unless by special study or experience he is qualified to express an opinion

on that topic. The dangers of holding otherwise-of being overawed by a recital of degrees

and diplomas-are obvious; the court has then no way of being satisfied that it is not being

blinded by pure “theory” untested by knowledge or practice. The expert must either himself

have knowledge or experience in the special field on which he testifies (whatever general

knowledge he may also have in pure theory) or he must rely on the knowledge or experience

of others who themselves are shown to be acceptable experts in that field’.

[43] The question now arises, taking into account the authorities cited above,

whether Dr Akweenda and Mr Ya Nangolo would qualify as expert witnesses and

whether the evidence tendered by them in the matter is admissible expert evidence

which this court must use for purpose of the resolution of the dispute.

[44] In respect of Dr Akweenda, the answer is yes. He qualifies and meets the

requirements of an expert witness as per the above authorities. According to his

testimony, Dr Akweenda did not only do his PHD thesis on the boundaries of

Namibia from the time of the German colonial occupation but also authored books on

International Law, is a part time lecturer at the University of Namibia teaching

International Law and an admitted legal practitioner of this court, amongst others. He

has written an article titled Territorial Integrity published in the Journal of

International and Comparative Law in 1989, an article titled the Legal Significance of

Boundary Questions Reappraisal with particular emphasis on Namibia and an article

titled Preservation of Customary Rights and Boundary Treaties Recent Practice and

International Law published in 1990. Dr Akweenda’s CV has a long list of notable

events he engaged in in his career as a lawyer and serves on several committees

and commissions including as a member of a commission on Namibian boundaries.

[45] Dr Akweenda testified extensively on issues raised in the special plea.

Therefore and due to the length of his testimony a summary thereof will be sufficient

for purpose of my judgment.

13

[46] Dr Akweenda testified that three major instruments or international

agreements are the basis of the Namibian territory. The first instrument he said, is

the Declaration of 30 December 1886 between Portugal and Germany which set up

the northern boundary between Angola and Namibia from the mouth of Kunene

River until where the line touches the rapids of the Zambezi River at Katima Mulilo.

According to him, the declaration or the instrument does not speak of Caprivi or

Zambezi. The second instrument is the Anglo-German Agreement of 1 July 1890

which set up the boundary from where the Orange River empties into the Atlantic

Ocean forming the southern boundary between South Africa and Namibia, the

eastern boundary between Botswana and Namibia until where the line touches the

river Chobe up to where the Chobe terminates into the Zambezi River. The third

instrument are letters or exchange of notes of July 1933. The witness emphasized

that there are no other instruments demarcating the boundaries of Namibia apart

from the three instruments just mentioned.

[47] Article 1 of the Declaration between Portugal and Germany of 30 December

1886 provides as follows:

‘The boundary line between the Portuguese and the German possessions in South West

Africa shall follow the course of the Kunene River from its mouth to the cataracts which are

formed by the river to the South of the Humbe when crossing the range of the canna Hills.

From this point the line will run along the parallel as far as the River Kubango and thence it

continues along the course of the same river as far as Andara, which place is to remain

within the sphere of the German interests. From this place the boundary-line will continue in

a straight direction eastwards as far as the rapids of Catima, on the Zambezi.’

[48] The heading of the declaration reads as follow:

‘Declaration between Portugal and Germany, respecting the delimitation of the possessions

of the two powers and their respective spheres of influence in South Africa. Signed at

Lisbon, December 30, 1886.’

[49] The witness told the court that the word ‘possessions’ in the declaration

means territories. He said that at times, instead of saying German colonies, they

called the colonies German possessions. He explained further that it was convenient

14

for the colonial powers to use lines, straight lines from one point to another point

than measuring the distance in kilometres.

[50] On a question by the court whose possession was it from Andara where the

boundary line continued in a straight direction eastwards as far as the rapids of

Katima on the Zambezi, Dr Akweenda answered that whatever was south of the line,

belonged to Germany and anything to the north, belonged to Portugal. The

agreement was confirmed with minor amendments by an agreement between the

Union of South Africa and Portugal in Cape Town on 22 June 1926, he added.

[51] Dr Akweenda testified further that the Agreement between Britain and

Germany on July 1, 1890 signed at Berlin in article III, defines the south and eastern

borders between the British sphere of influence and those of Germany in South West

Africa (Namibia). Article III reads as follow:

‘In South West Africa the sphere in which the exercise of influence is reserved to Germany is

bounded –

1. To the south by a line commencing at the mouth of the Orange River and ascending

the north bank of the river to the point of its intersection by the 22nd parallel of south latitude

it runs east along that parallel to the point of its intersection by the 21st degree of east

longitude; thence it follows that degree northward to the point of its intersection by the 18 th

parallel of south latitude; it runs eastward along that parallel till it reaches the River Chobe;

and descends the centre of the main channel of that river to its junction with the Zambezi,

where it terminates.’

[52] The Article further provides:

‘It is understood that under this arrangement Germany shall have free access from her

Protectorate to the Zambezi by a strip of territory which shall at no point less than 20 English

miles in width. The sphere in which the exercise of influence is reserved to Great Britain is

bounded to the west and north-west by the above-mentioned line. It includes lake Ngami.’

[53] In Article VII the two powers, Great Britain and Germany undertook that

neither will interfere with any sphere of influence assigned to the other by Articles I to

IV. That one power will not in the sphere of the other make acquisitions, conclude

Treaties, accept sovereign rights or protectorates, nor hinder the sphere of influence

15

of the other, amongst others. Freedom of trade, navigation of the lakes, rivers and

canals and of the ports on these waters was free to both flags; and no differential

treatment was permitted as regards transport or coasting trade; goods of whatever

origin, were subject to no dues, except those not differential in their incidence which

may be levied to meet expenditure in the interest of the trade; transit dues were not

permitted and no monopoly or favour in matters of trade could be granted.

[54] The other important and relevant instrument regarding the boundary of the

Territory of South West Africa testified to by Dr Akweenda, is the exchange of letters

or notes of 1933, which provided for the boundary between now Namibia and

Zambia in the Zambezi River and the allocation of islands on the river to Namibia

and Zambia.

[55] When asked by Mr Wamambo to comment on the allegations in para 68(1) of

the special plea that the territory known and described as the Eastern Caprivi Zipfel

therein referred to as ECZ and demarcated as the portion of the Caprivi Zipfel which

lies east of the line running through the south on beacon 22 situated on the border

between the said mandatory territory and Angola by Union of South Africa

Proclamation 147 of 1939, does not fall within the international borders of the

national territory of the Republic of Namibia as defined in article 1 (4) of the

Namibian Constitution – Dr Akweenda replied that South Africa only had the power

to administer the German South West Africa as a trust territory but had no power to

change or modify the territory. He said further that the territory was a whole including

what is today known as Zambezi Region. According to him, any Proclamation by the

Union of South Africa trying to detach any section from the territory that Proclamation

is a nullity.

[56] Dr Akweenda testified that the United Nations drew up an official map exhibit

“O” for Namibia including the Caprivi strip, Walvis Bay and the off-shore islands as

part of Namibia. According to him the United Nations were serious with regard

Namibia so much so that the General Assembly terminated the mandate and

Namibia became a direct responsibility of the United Nations and set up a United

Nations Council for Namibia based in Lusaka, Zambia to run the affairs of Namibia

including Caprivi till her independence.

16

[57] It is further Dr Akweenda’s evidence that the Republic of Namibia is the

successor state to German South-West Africa whose sovereignty was in abeyance

during the mandate status. According to him the allegation that the Prosecutor-

General of the Republic of Namibia has no lawful or competent authority to

prosecute or arraign the accused for offences within the ECZ is wrong because the

ECZ, known as Zambezi region was always part of Namibia.

[58] After testifying, Dr Akweenda was cross-examined by Ms Agenbach for

several days. Questions counsel asked where based on the extractions from

Volumes written by Dr Akweenda self on research he conducted on the boundaries

of Namibia for his PHD thesis with a few exceptions only. Most of the time Dr

Akweenda was asked to comment on his own work from the two volumes he used

during his evidence in-chief and on international law principles as well as on South

Africa laws which were only enacted for purpose of the administration of South-West

Africa and the ECZ.

[59] To a large extend, questions asked or statements put to Dr Akweenda to

answer or make comments on were hearsay, not facts of personal knowledge of

witnesses who testified for the defence, which is why I agree with the argument of Mr

Campher that Dr Akweenda is an expert on international law, although cross-

examined at length by Ms Agenbach often repetitively, his evidence was never

shaken. Dr Akweenda gave a long and telling history on the boundaries of Namibia.

[60] As pointed our above, Mr Phil Ya Nangolo, the witness called by the defence

as an expert witness does not qualify to give expert evidence on the boundaries of

Namibia. He might be an expert in another field but surely not on the boundaries of

the then South-West Africa now the Republic of Namibia, due to lack of attributes of

an expert witness, such as undergoing a special study on the boundaries or borders

of Namibia then South-West Afroca.

[61] In the judgment of Mendy v Protea Assurance Co. Ltd above, which is good

law, in my view, we learn that however eminent an expert may be in general, he

does not constitute an expert in a particular sphere unless by special study or

experience, he is qualified to express an opinion on that topic. In this matter, no

evidence was presented before court that Mr Ya Nangolo undergone a special study

17

or has the experience to express an opinion on the boundaries of Namibia. He lacks

own knowledge and experience in the field or topic he was called to give expert

opinion. This court, therefore, will not be blinded by untested theory regurgitated by

Mr Ya Nangolo from textbooks, statutes and legal principles of International Law.

[62] As an ordinary witness, Mr Ya Nangolo was inconsistent and has contradicted

himself in many material respects. At one stage he testified that the region which is

the subject matter of the special plea, starts at the village of Mbambi in the Kavango

East Region. Thereafter, he said the region starts from Andara which is far from

Mbambi and then later, he classified the region as the ECZ, an area lying on the east

of the Kwando/Linyanti and Chobe Rivers. This area according to Mr Ya Nangolo

was a Barotse Kingdom ruled by King Lewanika and was a British Protectorate,

similar to North Rhodesia and Bechuanaland.

[63] If he is correct that the ECZ was a British protectorate, therefore was not

under the German sphere of influence, why was it, after World War I, classified a “C”

mandate together with South-West Africa (Namibia)? The evidence is that only

Germany and Italy were defeated in the war whose colonies were then taken away,

classified and placed under the control of the League of Nations. Britain never lost

her possessions after World War I. Mr Ya Nangolo cannot be correct in that respect.

He is wrong. Only German colonies were placed under the control and supervision of

the League of Nations in Southern Africa.

[64] Much has also been said by the defence about the Barotse Kingdom of King

Lewanika as if this Kingdom was the ECZ. Documentary evidence produced during

the trial states the opposite. On page 248 Volume 1 of Dr Akweenda’s thesis at

Foodnote: 128 the following appears:

‘After the death of Maramba, then powerful leader of the Barotse, the Kololo conquered the

Barotse territory. Subsequently, Sebituane moved his residence to Sesheke. During his

reign Sebituane extended his Kingdom by conquest as far as the Upper Kwando. He died in

1851 and was succeeded by his son Sekeletu, who made his principal residence at

Sesheke. Sekeletu died from leprosy in 1864 and was succeeded by an infant son. A “pretty

chief” called Bololo was therefore, appointed to act as Regent. Bololo was killed by the

Barotse in 1867. The latter under the leardership of Sepopo, the son of their late Maramba,

attacked the Kololo and virtually exterminated them, consequently, the whole of their country

18

was added to the Barotse Kingdom. Sepopo took up his permanent residence at Sesheke.

However, in 1876 a rebellion took place, Sepopo was killed and his nephew Wanawina, a

son of his elder brother Mosebesu, was put to the throne. Later Wanawina was driven from

power by his cousin Leboshe, a son of the late Maramba. Further, in 1884 Leboshe was

driven from his throne by a rebellion but in the following year he managed to get back to

power and assumed the name of Lewanika.’ (See also the Barotse Boundary Award of

1905 and; the Portuguese – Northern Rhodesia Union Agreement of 16 August

1931, Article 1).

[65] None of the accused before court has testified that he was a descendant from

the Barotse Kingdom. They testified that they were from the Mafwe or Mayeyi tribes

living along the eastern banks of the Kwando and Linyati Rivers in the Zambezi

Region. Barotse Kingdom was in Northern Rhodesia now Zambia along the western

border with Angola according to the authority.

[66] I took notice of and considered counsel’s written and oral submissions. Ms

Agenbach submitted a 335 pages main heads of argument which she expanded on

during oral submissions. It is trite law that law or principles of law without facts is not

evidence. Law must be applied to the facts presented before court in the form of

admissible and relevant viva voice evidence or otherwise by witnesses called by the

opposing parties. In the present matter by the State and the accused.

[67] However, most authorities collected and cited by Ms Agenbach in her written

heads of argument are not supported by the evidence testified by witnesses she had

called, making the authorities irrelevant and must be disregarded. For example all

laws enacted by the Union of South Africa and those enacted by the Republic South

Africa after 1961 for purpose of the administration of the ECZ and South West Africa

are irrelevant for purpose of the special plea. In fact some law cited by Ms Agenbach

supports the State’s case that the ECZ forms part of Namibia.

[68] Consequently, I have no doubt in my mind considering the oral evidence

presented by Dr Akweenda and the other two State witnesses supported by

documentary evidence handed in as exhibits such as exhibit “O”, the United Nations

Official Map and the case law referred to, that the State had managed to prove

beyond a reasonable doubt that the Eastern Caprivi Zipfel now Zambezi region,

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forms part of the national territory of Namibia as defined in Article 1 (4) of the

Namibian Constitution granting this court territorial jurisdiction and the Prosecutor-

General a competent title to prosecute the accused with the offences listed in the

indictment.

[69] In the results, the following order is made:

1. The special plea in terms of s 106 (1)(f) and (h) of the Criminal Procedure

Act 51 of 1977, is rejected;

2. This court has territorial jurisdiction to try the accused with the offences

listed in the indictment; and

3. The Prosecutor-General has a title to prosecute accused 1, 2, 3, 4, 5, 6, 7

and 8 with the offences against them listed in the indictment.

----------------------------------

E P UNENGU

Acting Judge

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APPEARANCES:

APPLICANTS: E. Agenbach

Instructed by Directorate of Legal Aid, Windhoek

RESPONDENT: L. Campher

Office of the Prosecutor-General, Windhoek