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

29